San Bernardino County Superintendent of Schools (PERB 2934E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION and its CHAPTER 633,
Charging Party,
v.
SAN BERNARDINO COUNTY
SUPERINTENDENT OF SCHOOLS,
Respondent.
Case No. LA-CE-6761-E
PERB Decision No. 2934
December 20, 2024
Appearances: David L. Barber, Chief Counsel, Amy Dunning and Richard Treadwell,
Staff Attorneys, for California School Employees Association and its Chapter 633;
Atkinson, Andelson, Loya, Ruud & Romo by William A. Diedrich and Beverly A.
Ozowara, Attorneys, for San Bernardino County Superintendent of Schools.
Before Krantz, Paulson, and Krausse, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by Charging Party California School Employees
Association and its Chapter 633 (CSEA) to the proposed decision of an administrative
law judge (ALJ). The complaint alleges that Respondent San Bernardino County
Superintendent of Schools (SBCSS) violated the Educational Employment Relations
Act (EERA) in two main respects.1 First, the complaint alleges that SBCSS failed to
bargain in good faith by conditioning its willingness to reach a successor collective
1 EERA is codified at Government Code section 3540 et seq.

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bargaining agreement (CBA) on CSEA waiving bargaining unit employees’ statutory
right to be paid for the holidays to which they are entitled under the Education Code.2
Second, the complaint alleges that SBCSS subsequently failed to participate in good
faith in mandatory impasse resolution procedures by continuing to insist that CSEA
waive statutorily-required holidays.
After an evidentiary hearing, the parties submitted post-hearing briefs. The ALJ
then issued a proposed decision finding no violation and dismissing the complaint.
CSEA filed exceptions to the proposed decision, which SBCSS opposed. SBCSS filed
no exceptions of its own.3
We have reviewed the proposed decision, the record, and the parties’
arguments. For the reasons explained below, we affirm the ALJ’s conclusion that
SBCSS did not violate EERA.
FACTUAL AND PROCEDURAL BACKGROUND
SBCSS is a county office of education that, as part of its field of responsibility,
provides special needs services to school districts. CSEA exclusively represents a
bargaining unit of classified employees at SBCSS. At all relevant times, SBCSS has
compensated its classified employees on an hourly basis. Classified employees
normally have a base schedule of 7 work hours per day, though the record reflects 6
hours per day for paraeducators. Because SBCSS compensates classified employees
2 The term “bargain” is equivalent to “meet and confer,” as well as “meet and
negotiate.” (PERB Reg. 32096, codified at Cal. Code Regs., tit. 8, § 32096.)
3 By choosing not to file any exceptions, SBCSS acceded to the ALJ’s
conclusion that CSEA filed its charge within the statute of limitation. This timeliness
issue is therefore not before us, and we express no opinion on it.

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on an hourly basis, they do not have a set annual salary, but the parties nonetheless
often use the term “salary.” As used in this decision, the term means estimated
annualized compensation based on an hourly rate multiplied by the normal number of
hours per day for the classification and the number of paid days per year, assuming
there is no overtime or other factors causing a deviation in annualized pay.
To provide context to the parties’ dispute over holiday pay, we summarize the
Education Code’s holiday and vacation provisions, as well as the parties’ bargaining
history on those issues. After summarizing this context, we describe our factual
findings regarding the negotiations that gave rise to this charge.
I. 	Education Code Provisions on Holidays and Vacation for Classified Employees
Education Code sections 45203, 45205, and 45206.5 provide paid holidays for
classified public school employees. These provisions have evolved over time,
primarily through legislative decisions to add holidays. The current version of these
Education Code sections specify the following holidays (while allowing employers to
make certain substitutions): January 1, the third Monday in January, February 12, the
third Monday in February, the last Monday in May, June 19, July 4, the first Monday in
September, September 9, November 11, Thanksgiving Day, and Christmas Day. (See
Ed. Code, § 45203 [listing holidays and incorporating by reference certain national
holidays]; id., § 45205 [affording leeway to substitute certain holidays]; id., § 45206.5
[adding September 9 or a substitute holiday of the employer’s choosing, in honor of
Admission Day]; see also 5 USC § 6103(a) [listing national holidays].)
Education Code section 45203 affords employees the right to receive holiday
pay if they are on paid status during any portion of the workdays immediately

4
preceding or succeeding a holiday, but, significantly for this case, employers have the
right to provide holiday pay even to employees who are not on paid status on such
days. (Id., 4th par. [section 45203 does not bar an employer “from providing holiday
pay for employees who have not been in paid status on the days specified herein”].)
Education Code section 45197 provides that classified employees accrue
vacation credit, while also describing the allowable bases for such accrual.
II. 	The Parties’ Pre-2020 Bargaining History Over Holidays and Vacation
As of the mid-1980s, Article 5.4 of the parties’ CBA, entitled “Hours,” provided
as follows: “The work year is computed to be 180 days of class sessions, pre[-]school
time and in-service, plus 20 days of holidays and vacation, or 200 days of service for
all classes except Developmental Centers for Handicapped minors.” A note to the
1985-1986 and 1987-1989 instructional aide salary schedules similarly reflected this
distribution of days in the work year. Although the CBA in the 1980s did not list the
specific holidays or specify how many of the 20 extra paid days were holidays as
opposed to vacation, both parties accede to the ALJ’s finding that bargaining unit
employees were at that time paid for 180 workdays, 10 holidays, and 10 vacation
days, for a total of 200 paid days per year.
As of the 1980s, when the CBA reflected 200 paid days per year, SBCSS
calculated the hourly rate for each classified position by: (1) calculating 1/200 of an
intended annualized compensation amount, thereby arriving at a daily rate;
and (2) dividing the daily rate by the number of daily hours worked in a normal day,
resulting in an hourly rate. For example, the 1985-1986 instructional aide salary
schedule listed the annual salary and hourly rate for Range 1 as $8,217.00 and $5.87,

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respectively. The 1987-1989 instructional aide salary schedule listed the annual salary
and hourly rate for Range 1 as $9,232.00 and $6.59, respectively, an increase of
approximately 12 percent compared to 1985-1986.
In negotiating a new CBA covering 1990-1992, the parties changed their
approach to the above calculations. Revised language in CBA Article 5.4 reflected the
change, as follows: “The work year is computed to be 180 days of class sessions and
pre-school time and one in-service day. The one in-service day shall be effective July
1, 1990.” Thus, the parties removed all reference to “20 days of holidays and
vacation,” “200 days of service” in total. The parties’ salary schedule covering the first
six months of 1990 listed the annual salary for Range 1 as $10,313.00, but did not list
an hourly rate. Neither party has objected to the ALJ’s calculations based on this
number. Dividing the annualized Range 1 salary by the revised total of 181 annual
workdays and by 7 hours in a workday, the hourly rate became $8.14. Accordingly,
while the annual salary increased by 11.71 percent, the hourly rate increased 23.52
percent.
The record evidence supports the ALJ’s characterization of the above CBA
changes, including the parties’ agreement to remove any mention of holidays from the
CBA. The parties agreed to a real wage increase, which in the case of Range 1
amounted to 11.71 percent, as reflected in the higher annualized number. The
remaining 11.81 percent increase to the hourly rate arose from a mutually
agreed-upon bookkeeping change (dividing the annualized target salary by 181 days
rather than 200 days), reflecting the parties’ agreement to eliminate discrete holiday
and vacation payments by spreading throughout the year the CBA’s 10 holidays and

6
10 vacation days. This change at least slightly benefitted CSEA-represented
employees, in two ways. First, it increased their base pay for overtime calculations.
Second, spreading out holiday and vacation pay throughout the year can lead to a
more consistent income stream without idiosyncratic anomalies for employees who
start or end their employment, or take unpaid leave, around the time of a holiday.
By the time the parties executed their CBA effective July 1, 2017,
through June 30, 2020, they had further adjusted the language. The provision entitled
“Hours,” now designated as Article 6, no longer defined the work year, though it did
refer to the “in-service” or “non-student day” as the “181st work day.” Moreover, under
Article 9, section 9.5, entitled “Vacation,” subsection 9.5.2 provided that: “Classified
employees shall be granted vacation in accordance with Education Code 45197(b)
and (c).” Thus, while in 1990 CSEA traded 10 vacation days for extra hourly wages, it
later bargained to gain back discrete vacation accrual. The record is silent as to
whether this gain was in lieu of a wage increase for certain years.
In contrast to this reversion to a more traditional approach to vacation pay, the
CBA remained silent on holiday pay, still reflecting the 1990 bargain to spread holiday
pay throughout the year.
III. 	The Parties’ 2020-2022 Negotiations
In February 2020, the parties provided public notice regarding the types of
changes they would be seeking in their upcoming CBA negotiations. As relevant here,
CSEA proposed to add discrete holidays to the CBA, while SBCSS proposed to
“[r]eview and amend leave provisions to align with current law.” Soon thereafter, the

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COVID-19 pandemic led the parties to extend their CBA through June 30, 2021,
thereby pausing negotiations for more than a year.
When bargaining resumed, CSEA led off with a proposal dated June 7, 2021.
This proposal suggested a new section 9.5.8, entitled “Scheduled Holidays,” providing
classified employees with 16 paid holidays.
On June 11, 2021, SBCSS responded with a counterproposal that included the
following language:
“9.5.8 SCHEDULED HOLIDAYS - Employees shall be
entitled to the following paid holidays provided the
employee is in paid status during the working day
immediately preceding or the working day succeeding the
holiday:
Independence Day
Labor Day
Admission Day (Identified as day before Christmas)
Veteran’s Day
Thanksgiving
Day after Thanksgiving
Christmas
Day before New Year’s
New Year’s Day
Martin Luther King Day
Lincoln’s Birthday
Washington’s Birthday
Memorial Day.
“9.5.8.1 Bargaining unit members are compensated for the
holidays listed in 9.5.8 as part of their annual salary.
“9.5.8.2: When a holiday herein listed falls on a Sunday, the
following Monday shall be deemed to be the holiday in lieu
of the day observed. When a holiday listed herein falls on a
Saturday, the preceding Friday shall be deemed to be the
holiday in lieu of the day observed. When an employee is
required to work on any said holiday(s), (s)he shall be paid

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compensation, or, at the Superintendent’s discretion, given
compensatory time off for such work, in addition to regular
pay received for the holiday, at a rate of time and one-half
his regular rate of pay.”
Later the same day, the parties exchanged still more proposals on this topic,
which led to a tentative agreement. First, CSEA Labor Relations Representative Steve
Moreno e-mailed SBCSS a counterproposal that accepted SBCSS’s proposed
sections 9.5.8 and 9.5.8.1, while slightly modifying the language SBCSS had shown in
section 9.5.8.2. Adjacent to 9.5.8 and 9.5.8.1, the proposal contains typewritten
marginal comments (akin to those created using Microsoft Word’s comment feature)
indicating that that the parties reached a tentative agreement on those provisions as of
that date. Like the ALJ, we infer that Moreno inserted the comments, as each one
begins with the initials “MS.”
SBCSS then offered a further proposal, which bridged the remaining gap
regarding section 9.5.8.2. This proposal included sections 9.5.8 and 9.5.8.1 as CSEA
had already agreed, and it accepted CSEA’s proposed revision to section 9.5.8.2.
SBCSS included marginal comments, again akin to those created using Microsoft
Word’s comment feature, indicating that it tentatively agreed to all three provisions.
On June 14, 2021, the parties exchanged proposals that included the
previously agreed-upon language in sections 9.5.8, 9.5.8.1, and 9.5.8.2. However,
these proposals reflected that CSEA had deleted one of the marginal comments
noting a tentative agreement and replaced it with the comment: “Further discussion
required.”
On July 7, 2021, CSEA passed a proposal that added Juneteenth to the list of
paid holidays in section 9.5.8.1. Later that day, SBCSS accepted this addition. Still the

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same day, CSEA passed a comprehensive proposal that made no further changes
regarding holidays.
On July 13, 2021, Moreno wrote SBCSS Assistant Superintendent for Human
Resources William Roberts, as follows:
“[A]fter discussions on July 7, 2021, at the negotiations
table, CSEA and [SBCSS] could not come to an
agreement regarding the Holidays Tentative Agreement
and on the language and intent of Article 9.5.8.1 and how it
relates to Article 9.5.8, which is still in discussion. As a
result, CSEA cannot agree to the language in
Article 9.5.8.1, for several reasons including that classified
employees are not salaried positions.
“We look forward to resolving this issue at the table in
upcoming negotiations and completing the
proposed 2021-2024 [s]uccessor contract.”
On July 19, 2021, CSEA Senior Labor Relations Representative Valerie Hollins
e-mailed Roberts a letter stating, among other things, that “CSEA will not agree to
waive CSEA’s statutory right to Holidays, as listed in Education Code §45203,
including the most recent addition of Juneteenth as a recognized Federal holiday.”
The letter also stated that “PERB has previously determined that an employer cannot
insist to impasse [on] a proposal that CSEA waive its statutory rights and/or negotiate
a non-mandatory subject of bargaining” and that any attempt to do so would lead
CSEA to file an unfair practice charge. The letter further stated that any previous
waiver had expired with the CBA, while encouraging Roberts “to reconsider your
position on maintaining no Holidays in the CBA.”
Roberts responded to Hollins’ letter on August 21, 2021, and the parties
exchanged further correspondence on August 25 and September 21, 2021, but full

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copies of those documents are not in the record. Meanwhile, in a proposal dated
September 16, 2021, CSEA added a marginal comment next to subsection 9.5.8.1,
citing Hollins’ July 19, 2021 letter and noting that CSEA could not agree to the
language SBCSS had proposed.
On September 22, 2021, SBCSS modified its proposal regarding section 9.5.8
as follows: “Employees shall be entitled paid for the following paid 14 holidays
provided the employee is in paid status during the working day immediately preceding
or the working day succeeding the holiday.” It also proposed to modify subsection
9.5.8.1 as follows: “Bargaining unit members are compensated for 12 of the holidays
listed in 9.5.8 as part of their annual salary. In recognition of the holidays, an
additional 1% shall be added to the annual salary effective 7/2/2021.” SBCSS
explained in a marginal comment that the effect of its proposal was to add two
additional days of pay across all salary schedules.
On September 30, 2021, CSEA rejected this proposal and countered by
proposing to delete subsection 9.5.8.1 entirely.
In a proposal dated February 28, 2022, SBCSS deleted section 9.5.8 and
subsections 9.5.8.1 and 9.5.8.2, instead proposing “no changes from 9.5.7 to 9.10.4.”
On March 17, 2022, CSEA filed an impasse determination request stating:
“The parties have exchanged proposals and reached a
tentative agreement on five of the seven articles. The
current collective bargaining agreement (CBA) is expired
[and] does not provide for paid holidays, despite CSEA's
regular proposals to include holidays. The employer insists
holiday pay is included in the salary, but there is no
evidence in the CBA to support the employer's claim.
“The parties have exchanged proposals on salary, but the

11
employer has taken a position where they will not agree to
a salary agreement without CSEA agreeing to withdraw its
holiday proposal.
“On February 28, 2022, during regularly scheduled virtual
negotiations, the employer and CSEA both engaged in a
discussion where each party made their positions clear;
there will not be an agreement and further negotiations on
the salary and holiday proposal are futile.”
PERB’s Office of the General Counsel (OGC) determined that an impasse
existed.
IV. 	Post-Impasse Procedures and CSEA’s Charge
The parties engaged in post-impasse mediation, but they were unable to reach
agreement on the holiday issue. Accordingly, the parties proceeded to factfinding, with
their disagreement over holiday pay as the only remaining issue in dispute.
CSEA filed this charge after mediation and before factfinding.
On March 3, 2023, Impartial Factfinding Chairperson Donald Raczka issued a
report. The other two panel members (one appointed by CSEA and the other by
SBCSS) filed dissenting opinions. Raczka’s report noted the lack of a written
agreement clearly incorporating paid holidays into the salary schedule but stated that
“something happened in the 1990 agreement that changed the work year from 200
days to 181 days and there was a calculation in the salary schedule that was a likely
outcome of incorporating the Holidays.”

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Raczka made the following recommendations for resolving the parties’ dispute:
“RECOMMENDATION ONE
“The parties will agree on the wording of an Article
within the Collective Bargaining Agreement similar to
the wording within [SBCSS] Policy 4363.[4]
“According to the material presented, this wording is: ‘A
confidential employee shall be entitled to the following
fourteen (14) paid holidays provided the employee is in paid
status during the working day immediately preceding or the
working day immediately succeeding the holiday:
Independence Day, Labor Day, Admissions Day (Identified
as the day before Christmas), Veteran’s Day, Thanksgiving,
Day after Thanksgiving, Christmas, Day before New Year’s,
New Year's Day, Martin Luther King Day, Lincoln’s Birthday,
Washington’s Birthday, Memorial Day, Juneteenth.’
“RECOMMENDATION TWO
“The parties will share the cost of including the
Holidays as paid days with [CSEA] assuming 4% and
the SBCSS assum[ing] 2.36%.
“Article 4.1.1 of the Collective Bargaining Agreement gives
the method of determining the annual salary adjustments by
taking the average salary increase of 12 benchmarked
county districts listed within the Article. This increase is
calculated in May and retroactive to July 1 of the school
year. This salary increase is an automatic cost to the
SBCSS. If, for example, the average increase of the
districts is 6%, then the salary schedule will adjust by
that 6%.
4 At the time of the formal hearing in this matter, SBCSS Policy 4363 governed
holidays for confidential and management employees. Under the policy, SBCSS
affords 14 paid holidays to confidential employees who are in paid status during the
workday immediately preceding or succeeding a holiday. In contrast, the policy
withholds paid holidays from management employees, though it specifies
compensatory time off for managers required to work on a holiday.

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“As noted above, the cost for each additional paid day is
.53%. Of the fourteen holidays listed, 12 [fall] within the
work year. Therefore, the cost of adding these 12 Holidays
is 6.36% (12 days times .53% for each day).
“The Chair recommends the cost of adding these paid
Holidays be shared by having [CSEA] dedicate the first 4%
of the salary adjustment for 2022-2023 as calculated by
Article 4.1.1 for this purpose. And the SBCSS will assume
the remaining 2.36% cost (1.36% more than its proposed
settlement).”5
On May 18, 2023, SBCSS modified its outstanding proposal to adopt Raczka’s
recommendations, effective July 1, 2023. The proposal would increase the number of
paid workdays in the year by adding all the holidays referenced in the Education
Code, and two other holidays, as paid workdays. But the proposal would raise the
annual salary schedules by only 2.36 percent, rather than by the larger percentage
that would correspond to the full number of added workdays, if hourly wage rates were
held constant. SBCSS proposed to accomplish this by reducing hourly wage rates so
that annualized compensation would increase only by 2.36 percent on July 1, 2023.
However, unrelated to the holiday issue, SBCSS proposed a retroactive 8.48 percent
salary increase, effective as of a year earlier (July 1, 2022).
In a letter dated June 21, 2023, Roberts informed CSEA that SBCSS would
implement its proposal based on Raczka’s recommendations, effective July 13, 2023,
“unless a prior resolution is reached with CSEA.”
5 In stating that 2.36 percent equates to 1.36 percent more than SBCSS
proposed, Raczka refers to the fact that, beyond regular wage increases, SBCSS had
proposed increasing annualized pay by an additional 1 percent, corresponding to 2
added holidays.

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In a memo dated July 31, 2023, Roberts informed employees that SBCSS was
implementing Raczka’s recommendations. Roberts’ memo stated, in part:
“After meeting with CSEA on May 18, 2023, concerning
Holidays without success, SBCSS has opted to implement
the recommended settlement proposed by the fact-finding
panel, with the exception that it will not implement the
decision retroactively, meaning there will not be an
adjustment to the 2022-2023 salary increase.
“Accordingly, effective July 1, 2023, the following changes
will be implemented by SBCSS:
“● The classified work year will be increased by 14
holidays.
“● All classified salary schedules shall be increased by
2.36%.
“● All classified employees will now have the Holidays listed
above incorporated into their work year.
“This change will result in an increase of 2.36% to annual
salary, with no additional workdays. Moreover, while the
hourly rate will decrease slightly, annualized salary will
increase 2.36%. Additionally, the parties have not finalized
salary for the 2022-2023 school year. In accordance with
Article 4, this amount has been calculated at 8.48%, and
will be applied to all classified salary schedules effective
July 1, 2022, once an agreement is reached.”
SBCSS then imposed the changes Roberts described. CSEA filed a separate
unfair practice charge regarding this imposition, primarily alleging that SBCSS
imposed new employment terms that were not reasonably comprehended within its
last, best, and final offer (LBFO). We take administrative notice of the records filed so
far in that case (designated as Case No. LA-CE-6840-E), including Roberts’ memo
dated July 31, 2023. However, we express no opinion on the merits of that charge.

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In August 2023, the parties completed negotiations on a new CBA effective July
1, 2022, through June 30, 2025. The parties did not change any existing provisions in
Article 6 (“Hours”) or Article 9 (“Leave Provisions”), and they explicitly noted that this
case would continue, as follows: “The SBCSS and the CSEA agree that PERB case
LA-CE-6761-E regarding entitlement to paid Holidays and/or any lawsuits regarding
the same shall not be affected by this agreement.”
On November 14 and 15, 2023, the ALJ held a formal hearing. After the parties
submitted post-hearing briefs, the ALJ issued the proposed decision dismissing the
complaint and underlying charge.
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
However, to the extent that a proposed decision has adequately addressed issues
raised by certain exceptions, the Board need not further analyze those exceptions.
(Ibid.) The Board also need not address alleged errors that would not affect the
outcome. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5 (San Ramon).)
In determining whether a party has violated its duty to bargain 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.) Per se
violations generally involve conduct that violates statutory rights or procedural
bargaining norms. (Id. at 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

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faith. (Fresno County In-Home Supportive Services Public Authority (2015) PERB
Decision No. 2418-M, p. 15 (Fresno).)
An impasse resolution procedure continues the bargaining process. (Moreno
Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d
191, 199 (Moreno Valley).) Where a labor relations statute requires one or more
impasse dispute resolution procedures, or where the parties voluntarily agree to such
a procedure, both parties must participate in good faith. (Id. at p. 198; County of Santa
Clara (2020) PERB Order No. Ad-483-M, pp. 5-6; City of Davis (2012) PERB Decision
No. 2271-M, p. 6.) In evaluating a claimed failure or refusal to participate in good faith
in impasse resolution procedures, PERB applies the same per se and totality of
conduct tests that govern bad faith bargaining claims. (Moreno Valley, supra, 142
Cal.App.3d at pp. 199-200, 206; Temple City Unified School District (2008) PERB
Decision No. 1972, p. 12, fn. 12.)
Here, the central theme of CSEA’s exceptions is that, over its objection, SBCSS
insisted to impasse and throughout the impasse procedures on a waiver of employees’
statutory right to receive paid holidays. According to CSEA, “the pre-impasse status
quo was a waiver of mandatory statutory rights, and so SBCSS violated EERA by
insisting on retaining that waiver when CSEA firmly declined to agree to such a
waiver.” SBCSS counters that it was never in dispute that “paid holidays for classified
employees listed in Education Code §§ 45203 and 45206.5 are mandatory,” but rather
the dispute is over how bargaining unit employees are to be paid for the statutory
holidays, a topic on which the statutes are silent.

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Part I below explains the governing legal principles, while Part II applies those
principles to the unusual facts presented.
I. 	Governing Legal Principles
This case requires distinguishing between two principles of good faith
bargaining that are often conflated or mistakenly combined. The first principle allows a
party to make proposals on permissive bargaining topics but prohibits such a party, at
the time of impasse or thereafter, from conditioning its willingness to sign an overall
agreement on its counterpart conceding to a permissive or illegal proposal.6 We refer
to this as “insisting to impasse” on a permissive or illegal proposal. The second
principle is that if an employer unilaterally imposes new employment terms and
conditions after impasse, it cannot impose terms that require mutual consent.
Part A below covers the first of these principles, while Part B covers the second
and notes certain examples in which an employer can lawfully insist to impasse on a
proposal but cannot lawfully impose it after impasse. Part C summarizes past
decisions explaining how these principles apply to employer proposals that a union
waive statutory rights. Finally, Part D explains that the Education Code sets inflexible
parameters as to certain terms while leaving flexibility as to others, which can impact
whether a party may lawfully insist to impasse on a proposal and/or whether an
employer can lawfully impose a new employment term after impasse.
6 “Permissive” describes subjects about which parties need not bargain,
although they may choose to do so. (Oakland Unified School District (2024) PERB
Decision No. 2875, p. 3, fn. 4.) We sometimes refer to such topics as falling outside
the “scope of bargaining” or “scope of representation.” (Ibid.) In contrast, an illegal
proposal is one that parties cannot lawfully agree upon. (City of San Jose (2013)
PERB Decision No. 2341-M, pp. 43-44 (San Jose).)

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A. 	Insisting to Impasse on an Illegal or Permissive Proposal
If a party insists to impasse on an illegal proposal, that constitutes a bargaining
violation irrespective of whether or how its counterpart responded to the proposal.
(San Jose, supra, PERB Decision No. 2341-M, p. 44.)
Where the proposal at issue is merely permissive, a different analysis applies.
(San Jose, supra, PERB Decision No. 2341-M, pp. 43-44.) In such instances, if the
party receiving such a proposal effectively indicates that it will not bargain over the
proposal because it is permissive, the proposing party must either withdraw the
proposal by the time the parties reach a bona fide impasse, or otherwise demonstrate
its willingness to reach an overall agreement without any concession by its counterpart
on the permissive topic. (See Anaheim Union High School District (2016) PERB
Decision No. 2504, p. 9 [party that objects to bargaining need not use any “magic
words,” but must make it sufficiently clear that it “is unwilling to engage in further
negotiations on the issue”] (Anaheim); State of California (Department of Personnel
Administration) (2009) PERB Decision No. 2081-S, pp. 3-7 [context is critical in
determining whether receiving party has unequivocally refused to bargain over
permissive proposal and whether proposing party thereafter unlawfully insisted on the
proposal to impasse]; Lake Elsinore School District (1986) PERB Decision No. 603,
pp. 7-10 [same] (Lake Elsinore).) Thus, the proposing party may be able to lawfully
maintain the proposal by specifying an alternate set of parameters—involving
exclusively mandatory bargaining topics—on which it could reach agreement even in
the absence of any concession on the permissive topic. (See Lake Elsinore, supra,
p. 7 [although a party may not insist on permissive proposal as absolute requirement

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for agreement, permissive issue may have bearing on party’s position on economic
matters or other mandatory proposals].)
Moreover, if a proposal includes a mix of permissive and mandatory topics, or if
it is unclear whether the proposal is partially or wholly permissive, the receiving party
cannot flatly refuse to bargain. Instead, it must seek in good faith to clarify the
proposal and clearly state its willingness to bargain over any aspects of the proposal
involving a mandatory bargaining topic. (Cerritos Community College District (2022)
PERB Decision No. 2819, pp. 23-24, fn. 9 (Cerritos); City of Palo Alto (2017) PERB
Decision No. 2388a-M, p. 33; Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375,
pp. 9-10.) Thus, a party must bargain over mandatory subjects even though in doing
so it must address proposals that also touch on permissive subjects. (Anaheim, supra,
PERB Decision No. 2504, p. 11 [finding such a circumstance “neither unprecedented
nor particularly troubling”].)7
B. 	Limits on Imposing New Terms After Impasse
If negotiations reach a bona fide impasse and the parties complete any required
or agreed-upon post-impasse procedures without the employer committing any
7 Bargaining over ground rules represents a special case. Ground rules are a
mandatory subject of bargaining, meaning neither party can refuse to bargain over
them. (County of Orange (2018) PERB Decision No. 2594-M, pp. 12-14 (Orange).)
However, bargaining over ground rules is analytically distinct from bargaining over
substantive terms, meaning that neither party can lawfully refuse to bargain over
substantive terms merely because of a dispute over ground rules, and as a result
PERB precedent establishes certain default ground rules that apply absent an
agreement to the contrary. (Ibid.)

20
unremedied unfair practice during the negotiations or impasse procedures, then the
employer can lawfully impose new employment terms or conditions. (City of Glendale
(2020) PERB Decision No. 2694-M, p. 60.) But if the employer chooses to avail itself
of this right, it must respect certain limits. First, the terms imposed must be reasonably
comprehended within the employer’s LBFO, meaning they are not regressive
compared to the LBFO and the employer afforded the union a full opportunity to
bargain over such terms. (Id. at pp. 59, 62-63.) Moreover, the employer cannot impose
terms giving it unfettered discretion over a mandatory topic. (Los Angeles Unified
School District (2013) PERB Decision No. 2326, p. 2 (LAUSD).) Finally, the terms
cannot be ones for which mutual consent is necessary. (San Ramon, supra, PERB
Decision No. 2571-M, p. 13.)
Precedent establishes a non-exhaustive list of terms requiring mutual consent,
including: an arbitration clause, durational language akin to that in a contract, a
management rights clause or other waiver of the right to bargain, a no-strike clause, or
another statutory rights waiver. (San Ramon, supra, PERB Decision No. 2571-M,
pp. 12-14; Fresno, supra, PERB Decision No. 2418-M, pp. 21-24 & 35-37.) Notably,
certain terms requiring mutual consent involve mandatory bargaining subjects, which
means a party is free to demand concessions on such topics as a condition for
reaching an overall agreement, but reaching impasse does not privilege the employer
to unilaterally impose terms involving these topics. (See, e.g., San Ramon,
supra, pp. 13-14 [contract duration is a mandatory subject, but after impasse employer
may not impose duration for new employment terms]; Fresno, supra, pp. 35-37
[although no-strike clause is a mandatory subject, after impasse employer may not

21
impose a no-strike clause or other waiver of statutory rights].) In contrast, a proposal
to modify a bargaining unit is both permissive (meaning it cannot be a condition for
reaching an overall agreement) as well as one requiring mutual consent, absent a
PERB unit modification order. (Orange, supra, PERB Decision No. 2594-M, pp. 11-12;
Chula Vista City School District (1990) PERB Decision No. 834, pp. 37-39 (Chula
Vista).)
C. 	Waivers of Statutory Rights
Applying the above principles to cases in which employers propose statutory
rights waivers, PERB has developed a nuanced line of precedent. While an employer
can never unilaterally impose a statutory rights waiver, PERB decisions classify
certain proposed statutory rights waivers as mandatory topics, others as permissive,
and still others as illegal. These designations control whether an employer can insist
to impasse on such waivers.
The quintessential example of a statutory rights waiver that involves a
mandatory bargaining topic is a no-strike clause. (Fresno, supra, PERB Decision
No. 2418-M, pp. 35-37.) Other statutory rights waivers, in contrast, are permissive,
including a proposal for a union to contractually waive its right to file a grievance in its
own name, or to waive its right to arbitrate without a grievant’s consent. (Mt. Diablo
Unified School District (1990) PERB Decision No. 844, p. 2; Chula Vista, supra, PERB
Decision No. 834, pp. 18-23 & 31-35.) The same is true of proposals that a union
waive statutory rights by withdrawing or settling a pending grievance, unfair practice
charge, or lawsuit. (See, e.g., Lake Elsinore, supra, PERB Decision No. 603, pp. 6-9.)

22
Still other statutory rights waivers are illegal, typically because external law sets
an immutable and therefore non-waivable standard. (Berkeley Unified School District
(2012) PERB Decision No. 2268, p. 9.) This category includes, for example, proposals
to allow an employer to garnish employee wages without employee consent, thereby
violating the California Labor Code. (Id. at pp. 9-11.) However, given that wages are a
mandatory subject of bargaining, garnishment proposals are mandatory provided they
do not conflict with external law. (Id. at p. 9; see LAUSD, supra, PERB Decision
No. 2326, pp. 14-15 [parties cannot negotiate away or waive rights guaranteed by
statute, but “may agree to incorporate an external law-derived right into the collective
bargaining agreement,” and/or negotiate “more generous terms” or other agreements
“in areas left unaddressed by the external law”].)
D. 	Proposals on Topics Covered Under the Education Code
For bargaining parties bound by EERA, the Education Code is often the most
salient external law. “Because EERA exists alongside the Education Code, the former
gives way to the latter when there is a specific conflict between the statutes.” (Cerritos,
supra, PERB Decision No. 2819, p. 20; Gov. Code, § 3540 [EERA “shall not
supersede other provisions of the Education Code”].) However, “the Education Code’s
supersession over EERA is not absolute.” (Cerritos, supra, p. 20.) Rather, as the
California Supreme Court first explained in San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, parties may bargain over matters the
Education Code regulates, provided that its provisions would not be “replaced, set
aside or annulled by the language of the proposed contract clause.” (Id. at p. 864.) In
other words, the Education Code does not “fully occupy the field” on any subject, and

23
bargaining is permitted to the extent a proposal “would not supersede the relevant part
of the Education Code” and instead “would strengthen it.” (Id. at p. 866.) Thus, the
Education Code precludes bargaining only to the extent it “clearly evidences an intent
to set an inflexible standard or insure immutable provisions.” (Id. at pp. 864-865.)
Notably, the Supreme Court has repeatedly reaffirmed these principles since first
announcing them. (See, e.g., United Teachers of Los Angeles v. Los Angeles Unified
School Dist. (2012) 54 Cal.4th 504, 515-516; Board of Education v. Round Valley
Teachers Assn. (1996) 13 Cal.4th 269, 286.)
PERB, too, has consistently followed these principles. For instance, as noted
ante at page 22, in LAUSD, supra, PERB Decision No. 2326, the Board explained that
precedent on EERA’s interplay with the Education Code aligns with broader precedent
on the relationship between collective bargaining and external law. (Id. at pp. 14-15.)
Accordingly, there is a duty to bargain whenever the Education Code leaves discretion
as to terms or conditions of employment, and the parties may agree to “additional
employee protections beyond those provided in the Education Code” if they do not
circumvent or eviscerate mandatory statutory provisions. (Cerritos, supra, PERB
Decision No. 2819, p. 22; San Francisco Unified School District (2009) PERB Decision
No. 2040, p. 5, fn. 4.)
II. 	Application of Governing Principles to the Present Facts
CSEA contends that SBCSS has unlawfully insisted to impasse on CSEA’s
agreement “to eliminate paid holidays specifically identified and mandated by [the
Education Code],” or stated another way, “to continue the waiver of paid holidays that
had been part of the contract since 1990.” If that were what occurred, we would have

24
no trouble finding it illegal to insist to impasse on a waiver of statutorily provided
holidays; by the same token, the parties’ CBAs over three decades would all have
contained illegal terms. However, the facts do not match CSEA’s narrative. Rather, the
parties agreed to spread out the accrual and payment of holidays.
CSEA focuses on the absence of a holidays article and the diminution of the
work year from 200 to 181 workdays beginning in 1990. But we consider those facts
together with the clear bargaining history from 1990 and the parties’ practices over 30
years, which show that the parties’ 1990 agreement improved holiday pay accrual and
payment methodologies rather than eliminating holiday pay. (County of Merced (2020)
PERB Decision No. 2740-M, p. 15 [where contract is silent or ambiguous, bargaining
history and past practice are relevant].) Using these interpretive tools, we find that the
parties agreed to incorporate holiday and vacation pay into the hourly rate, thereby
decreasing the number of days in the work year from 200 to 181. Far from eliminating
holidays for classified employees, the parties’ 1990 agreement resulted in more
generous terms than the Education Code mandated. As noted at page 6, ante, the
agreement increased overtime rates and avoided anomalies based on whether
employees were in paid status the day before or after a holiday.
CSEA characterizes the 1990 agreement as having eliminated paid holidays
“for an alleged one-time increase in annual salary.” But the significant increase the
parties bargained in 1990—a sizable portion of which was based on incorporating
holiday pay—has continued year after year since then, compounded by other
increases. Throughout these years, employees working overtime have earned more

25
net income because the parties incorporated holiday pay into the hourly rate, while
employees who only work a regular schedule have not lost compensation.8
Bargaining parties can agree to more generous terms than those set out in the
Education Code, if doing so strengthens the Education Code’s provisions rather than
annulling them. (Cerritos, supra, PERB Decision No. 2819, p. 21; LAUSD, supra,
PERB Decision No. 2326, pp. 14-15.) CSEA nonetheless argues that “it is not clear
that the Education Code actually permits” spreading the pay for statutory holidays
across a year of paychecks “because doing so makes the holidays something less
than the celebratory paid holidays required by law.” But we find no legislative intent
preventing a beneficial practice as to accrual and payment, provided that the increase
tied to holidays covers at least the number of holidays the Legislature declared. In
other words, the Education Code sets a floor regarding entitlement to holiday pay, but
bargaining over the timing of holiday accrual and payment can strengthen the
statutory provisions. Indeed, the Education Code invites more generous accrual terms.
(Ed. Code § 45203, 4th par. [clarifying that statutory language on holiday pay shall not
be interpreted as barring employer “from providing holiday pay for employees who
have not been in paid status on the days specified herein”].)
We are also mindful that timing of accrual and/or payment is normally a
mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB
8 Given this history, even if CSEA were correct that SBCSS’s proposal was
permissive, that would not necessarily result in annualized pay increasing by the
equivalent of 14 additional days. Rather, SBCSS would be permitted, in any resumed
negotiations, to make a new wage proposal to account for the change in holiday pay
methodology.

26
Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when”
employees are paid].) We harmonize that general principle with our above finding that
the Education Code includes a default provision for holiday accrual requirements while
allowing more generous provisions. For these reasons, SBCSS did not violate EERA
in proposing to continue the parties’ longstanding practice. Indeed, that proposal
involved a mandatory bargaining topic.9
Finally, we do not accept CSEA’s argument that the parties’ longstanding
approach to holiday pay expired with the contract. Normally, an employer cannot
reverse a previous understanding unless it first affords the exclusive representative
advance notice and an opportunity to bargain to impasse or agreement. (Antelope
Valley Community College District (2018) PERB Decision No. 2618, p. 15.) However,
where the previous understanding is a statutory rights waiver, such a waiver normally
9 Even if CSEA had been correct that SBCSS’s proposal was merely
permissive, CSEA’s legal claim would still have failed. As noted above, a party that
refuses to bargain over a permissive proposal must make it sufficiently clear that it “is
unwilling to engage in further negotiations on the issue.” (Anaheim, supra, PERB
Decision No. 2504, p. 9.) CSEA did not do so. The closest it came was Hollins’ letter
to Roberts dated July 19, 2021. Context is important: this letter came only eight days
after the parties had reached a tentative agreement on holiday pay and just five days
after CSEA reneged on this tentative agreement and noted that further discussion on
the issue was required. Moreover, Hollins’ letter did not include an explicit refusal to
bargain. Rather, the letter closed by stating: “We look forward to resolving this issue at
the table in upcoming negotiations.” Most telling is that the parties continued to
exchange proposals regarding holiday pay through February 2022, demonstrating that
CSEA was in fact willing to engage in further negotiations. Eventually, SBCSS shifted
its position by proposing to follow Raczka’s recommendation and replace the parties’
non-traditional accrual and payment practices with the Education Code’s default.
Thus, even if SBCSS’s proposal had been permissive, the facts would still not reflect a
respondent conditioning its willingness to reach agreement on a permissive proposal
after its bargaining counterpart clearly indicated a refusal to bargain over it.

27
expires at the CBA’s conclusion. (LAUSD, supra, PERB Decision No. 2326, p. 40, fn.
28.) Here, for all the reasons discussed above, the parties’ 1990 agreement was a
beneficial pay practice that exceeded a statutory floor, meaning it strengthened rather
than waived a statutory right. Accordingly, its terms remained the status quo at the
end of the parties’ CBA, and SBCSS followed EERA by continuing the longstanding
practice during negotiations.10
For the foregoing reasons, CSEA has failed to prove that SBCSS conditioned
its willingness to reach a CBA on CSEA agreeing to a permissive or illegal proposal.
As noted ante, we leave for resolution in a separate, pending case the question of
whether SBCSS complied with EERA when it imposed its new holiday pay proposal
based on Raczka’s factfinding recommendations.
ORDER
The complaint and underlying unfair practice charge in PERB Case
No. LA-CE-6761-E are hereby DISMISSED.
Members Paulson and Krausse joined in this Decision.
10 A similar circumstance arises when public entities collectively bargain
compensatory time off arrangements. (See 29 U.S.C. § 207(o)(2)(a)(i) [permitting
negotiated agreements for compensatory time off when public employees work
overtime].) Such an arrangement requires mutual consent, but once agreed upon, it
becomes a beneficial pay practice that strengthens rather than waives a statutory
right. Maintaining such an arrangement as the status quo pending negotiation serves
to stabilize labor relations by preventing compensatory time off arrangements from
stopping and starting suddenly when a CBA lapses or is renegotiated. (See generally
City of Montebello (2016) PERB Decision No. 2491-M p. 10 [PERB precedent on
unilateral changes is designed to prevent actions that destabilize labor relations];
LAUSD, supra, PERB Decision No. 2326, p. 40 [same].)