Santee Elementary School District (PERB 1822E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTEE TEACHERS ASSOCIATION,
Charging Party,
v.
SANTEE ELEMENTARY SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4268-E
PERB Decision No. 	1822
F e b r u a r y 	2 2 , 	2006
Appearances: 	California Teachers Association by Rosalind D. Wolf, Attorney, for Santee
Teachers Association; Parham & Rajcic by Mark R. Bresee, Attorney, for Santee Elementary
School District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the Santee Teachers Association (STA) and the
Santee Elementary School District (District) to an administrative law judge's (ALJ) proposed
decision (attached). 	The unfair practice charge alleged that the District violated the
Educational Employment Relations Act (EERA)1 by unilaterally changing a policy pertaining
to concerted activities and adopting regulations to implement the policy without giving the
STA prior notice or opportunity to bargain.
The Board has reviewed the entire record in this matter, including, but not limited to,
the unfair practice charge, the District's position statement, the complaint, the amended unfair
practice charge and first amended complaint, the answers to the complaint and first amended
complaint, the parties' post-hearing briefs, the transcripts and exhibits, the proposed decision,
EERA is codified at Government Code section 3540, et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

the parties' exceptions and responses to exceptions. 	In light of its review, the Board affirms
the ALJ's proposed decision, subject to the discussion below.
DISCUSSION
1. Timeliness of Amended Charge
The ALJ determined that the amended charge was timely filed because it related back
to the original charge. We find this determination to be unnecessary.
In the original complaint issued on June 5, 2001, the Board agent identified the
District's conduct which constituted an unfair practice, including the District's adoption of a
new board policy without providing the STA an opportunity to negotiate the effects of the
change in policy. 	The impact or effects of the board policy (BP) are spelled out in the
administrative regulation (AR), which the District or Superintendent Marcia Johnson
approved and implemented without first providing STA notice and an opportunity to bargain.
Because the AR defines the impact of the BP on unit employees, STA's demand to bargain
the impact of the BP on January 10, 2001, was a demand to bargain the AR.
It was therefore unnecessary to amend the complaint to add an allegation regarding the
unilateral adoption of the AR because all the fundamental elements of a prima facie case for
the District's failure to engage in effects bargaining upon demand already existed in the
original complaint. 	Since the original complaint is sufficient on its face, the issue relating to
timeliness of the amended complaint is moot and requires no further discussion.
2. 	Waiver of Right to Negotiate the Decision to Adopt the BP
The ALJ found that STA waived the right to negotiate the BP. We agree. The Board
has long held that a union may waive the right to bargain a contractual matter within the scope
of representation, (San Mateo County Community College District (1979) PERB Decision
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No. 94 (San Mateo).) But a waiver of the right to bargain must demonstrate clear and
unmistakable language (Amador Valley Joint Union High School District (1978) PERB
Decision No. 74) or demonstrative behavior waiving a reasonable opportunity to bargain over
a decision not already firmly made by the employer (San Mateo). 	Such a waiver will never be
lightly inferred. 	(Oakland Unified School District (1982) PERB Decision No. 236.) A waiver
might be shown by inaction on the part of the exclusive representative (Los Angeles
Community College District (1982) PERB Decision No. 252), but the evidence must
demonstrate an intentional relinquishment of the union's right to bargain. 	(San Francisco
Community College District (1979) PERB Decision No. 105.)
STA states that the parties' practice had been that the District would not adopt a new
proposal before bringing the proposal for discussion to the joint Employer-Employee
Relations Committee (EERC). For several years, the parties had engaged in interest-based
bargaining through the EERC, at which the parties presented their interests. Some of those
"interests" eventually evolved into proposals, which were not adopted as policies until full
discussion with the exclusive representative. 	However, the last round of negotiations for a
successor agreement had become more adversarial, leading to the "work to rule" action by
STA and the development of the BP.
The District states that it gave STA sufficient notice but that STA waived its right to
bargain the BP by failing to make a demand. Notice of the BP was provided before its first
reading at the December 5 board meeting and before its second reading and adoption at the
December 19 meeting. Association President Lynne Beerle (Beerle) raised her concerns
about the proposal at the December 5 meeting but did not demand to bargain the BP. Again,
at the December 19 board meeting, Beerle expressed her concerns that the BP would cause
damage to the relationship between the teachers and the District, but did not demand to
W	
3

bargain. Neither Beerle nor other STA representatives otherwise demanded to negotiate the
BP. The BP was adopted by the board at the December 19 meeting after its second reading.
After the BP was raised at the December 5 board meeting, Beerle asked CTA staff
member Marilyn Sanderson (Sanderson) for advice as to what action to take on the BP.
Sanderson testified as to her response:
Q. And after you received a copy of the policy, do you recall
what advise you gave Ms. Beerle, or what your conversation was
with Ms. Beerle at that point?
A. . . . Generally, we talked about the contents of the policy,
and Lynne asked me what should we do, should we do
something about this. And after I read the policy, I said, I don't
think there's any action to take at this point. If the board passes
it, it clearly deals with some areas that we're going to be
concerned about, but if you -- and speaking to Lynne, if you
choose to speak at a board meeting about it, as you do on many
other things, I certainly think that that's appropriate.
Q. And why did you not think there was any action to take at
this point?
A. Well, a couple of reasons. The board policy, as I read it,
appeared to be dealing with a situation that didn't exist at that
time. There was no strike, there was no prohibition against
concerted activities because the negotiated agreement was
expired. It seemed to me, in reading that proposed board policy,
that it was to deal with an emergency situation, and I took that to
mean a strike. Also, that policy clearly stated, in one of the
paragraphs, that any action by the board that would impact the
negotiated agreement sufficient notice ~ these aren't the exact
words, but that notice would be given and the association would
have the opportunity to bargain those impacted areas. So it was
my understanding, from reading this board policy, that the
district was preparing for future or potential actions that weren't
in current existence, and that if they took some action that dealt
with the contract, we would go through the negotiations process
to deal with those.
Q. Did you think about the possibility of demanding to bargain
that policy?
A
.....4.4............. 	.*+ .........
4

A. At that time I didn't see a need to file a demand to bargain.
The board policy hadn't passed. 	It's been my advice to chapters
that if a policy is passed that requires some need to bargain, that
we file a demand to bargain the impact and the effect of a
policy, or an action, resolution, whatever the board might pass.
So at that point in time, no, I did not. [R.T., Vol. II, pp. 79 - 82.]
In her testimony, Beerle acknowledged that she did not demand to bargain the policy.
She testified that the policy stated that she would be given an opportunity to bargain the
policy and so was waiting for that opportunity. This was based on the past practice of raising
these issues with the EERC before they became District policies. At the December 5 and 19
board meetings, Beerle instead expressed concern that the adoption of the BP would damage
the relationship between the teachers and the District. (R.T., Vol. I, pp. 79-82.)
A valid request to negotiate will be found if it adequately indicates a desire to
negotiate on a subject within scope. 	(Newman-Crows Landing Unified School District (1982)
PERB Decision No. 223.) The determination as to whether a communication constitutes a
proper request to negotiate will be determined on a case-by-case basis. 	(Delano Joint Union
High School District (1983) PERB Decision No. 307.) Protests over an employer's
contemplated unilateral action is not the same as a demand to bargain. 	(Id.)
We conclude that STA had adequate notice of the proposed BP and that, after serious
discussion as to the consequences of such a demand, Beerle and Sanderson decided not to
demand bargaining. 	Although Beerle expressed concern that adoption of the BP could
damage the relationship between the teachers and the District, she did not demand to bargain
the BP during the December 5 and 19 board meetings at which it was discussed and did not
demand to negotiate the BP thereafter. 	The testimony of Sanderson and Beerle clearly
confirm the ALJ's finding that STA made a reasoned decision not to demand bargaining of
the BP itself. STA's later demand to negotiate impacts of the BP does not comprise a demand
to negotiate the BP itself. 	We therefore find that STA waived its right to bargain the BP.
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STA argues that the adoption of the BP was unlawful since the District had not raised
it at the bargaining table. According to STA, there can be no waiver during negotiations for a
successor to an expired agreement during impasse, citing various National Labor Relations
Board (NLRB) decisions to support this contention. The District counters that STA
misconstrues the cited cases, and that this theory flies in the face of Board precedent.
According to the District, this policy was not being negotiated and so not subject to the
Board's impasse procedures; waiver is a possible defense during pre-impasse negotiations.
We agree with the District. In California State Employees' Assn. v. Public
Employment Relations Bd. (1996) 51 Cal. App. 4 th 923, 937 [59 Cal. Rptr. 2d 488], the court
of appeals stated:
A unilateral change at expiration of a contract may be lawful if
the employees' exclusive representative expressly waived its
right to negotiate the subject of the change.
In conclusion, we find that STA clearly and unmistakably waived its right to negotiate
the BP. 	STA received notice of the proposed BP before the December 5 board meeting. 	STA
witnesses testified to its deliberate decision not to demand to bargain the BP. Although
protesting the proposed BP at the December 5 and December 19 board meetings, STA did not
demand to bargain the proposed BP.
3. Waiver of the Right to Negotiate the AR
The ALJ found the District unilaterally adopted the AR without giving STA notice and
the opportunity to bargain. Because we would not amend the complaint to add a unilateral
change allegation as to the AR, this discussion is moot. Consistent with our findings above,
we vacate the findings of the ALJ as to this allegation.
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4. 	Waiver of the Right to Negotiate the Impacts of BP
The ALJ found that the District unlawfully refused STA's demand to bargain the
impact of the BP. We agree. "An employer is obligated to provide the exclusive
representative with notice and an opportunity to negotiate over the effects of its decision that
have an impact upon matters within scope." (Oakland Unified School District (1985) PERB
Decision No. 540 (Oakland), citing Newark Unified School District, Board of Education
(1982) PERB Decision No. 225 and Healdsburg Union High School District and Healdsburg
Union School District/San Mateo City School District (1984) PERB Decision No. 375.) In
this case, STA received a copy of the proposed BP shortly before the December 5 board
meeting. The BP was adopted on December 19. STA expressed concerns about the BP but
did not request to bargain the BP at these meetings. Rather, STA demanded to bargain the
impacts of the BP on January 10, 2001 and the District expressed its refusal to negotiate on
January 19, 2001.
The District argued that STA may not wait for implementation of the BP to demand
bargaining on its impacts. The District's argument lacks merit. The District cites Victor
Valley Union High School District (1986) PERB Decision No. 565 (Victor Valley) and
several non-precedential hearing officer decisions. 	In Victor Valley, the Board found the
evidence of formal notice to the union of a plan to change instructional minutes insufficient to
demonstrate waiver. The Board stated that, "[n]otice must be given sufficiently in advance of
a firm decision to make a change to allow the exclusive representative a reasonable amount of
time to decide whether to make a demand to negotiate." (Victor Valley, p. 5.) However,
unlike the instant matter, the issue in Victor Valley involved negotiation over a change in
terms and conditions of employment, not over the impacts of the change.
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In contrast with Victor Valley are cases involving negotiations over layoffs and the
impacts of the decision to layoff employees. For example, in Oakland, the employer's
decision to lay off employees took place two months before its implementation. 	The Board
held that this timeframe "provided ample opportunity for good faith negotiations to take place
prior to implementation of the resolution.. . ." (Oakland, p. 17; emphasis added.) In this
case, the BP was approved on December 19. However, there was no effective date stated on
the BP, only an approval date; there was no strike or threat of strike; and thus, there was never
opportunity for implementation of the BP.
Even if the BP had become effective upon its approval, the BP provides for the
superintendent to develop a written plan to "delineate actions to be taken in the event of a
strike or threatened strike." That plan is the AR. Contrary to the District's contention, the BP
says nothing about bargaining the effects of the BP, particularly impacts as detailed as those
found in the AR. Instead, the BP merely provides that to the extent the policy modifies
existing contractual provisions with employee organizations, employee organizations shall be
provided an opportunity to demand to bargain the modifications prior to their effective date.
The BP itself does not indicate what provisions of the expired collective bargaining agreement
(CBA) would be modified.
In light of these facts, we find that STA has not waived its right to negotiate the
impacts of the BP. The Board therefore finds the District to be obligated to bargain the
impact of the BP as set forth in the AR and concludes that the District violated EERA when it
refused STA's demand to bargain the impacts.
5. 	Interference - Unalleged Violation
The ALJ found that the District interfered with unit employees' protected rights
through some provisions of the BP and AR. We agree. PERB has held that an Unalleged
8

violation may be found by the trial judge provided it is intimately related to the subject matter
of the complaint, part of the respondent's same course of conduct, and was fully litigated at the
hearing, with respondent having the opportunity to examine and cross-examine witnesses.
(Tahoe-Truckee Unified School District (1988) PERB Decision No. 668 (Tahoe-Truckee).)
Therefore a trial judge must carefully evaluate Unalleged violations on a case-by-case basis to
protect against violations of due process.
The proposed decision characterized interference as an Unalleged violation,
commenting that the issue was not raised in "the charge or complaint; however, STA raised
this issue in its opening statement at the hearing and in its post-hearing briefs. The District
made no response, either in its opening statement, its original brief, or its reply brief." On
appeal, the District does not dispute the propriety of the Unalleged violations; rather, the
District argues that it did not engage in interference with employees' protected rights. 	The
District apparently believes the interference allegations were fully and fairly litigated at
hearing and has now waived the ability to argue otherwise. Given the District's concession,
we will evaluate whether the District interfered with employees' rights.
The District excepts to the ALJ's findings regarding interference in its opening brief:
"Importantly, the regulations make it very clear that they do not attempt to, will not be, and
cannot be implemented in a manner that would be contrary to law in general or the rights of
STA unit members in particular" because "[t]he regulation specifies that it shall not be
applied in any manner that is in conflict or inconsistent with the law." (District's opening
brief, p. 12.) In support, the District cites the express language of the AR that the District
may not "interfere with .. . employees for exercise of their protected rights." The District
points to the testimony of Superintendent Johnson on the issue that, it asserts, mitigated the
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effect of the policy.2 Further, the District argues that it is not prevented from disavowal of
any unlawful conduct. 	(Inglewood Unified School District (1987) PERB Decision No. 624;
Long Beach Community College District (1998) PERB Decision No. 1278).3
EERA section 3543(a) guarantees employees the right to "form, join, and participate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations." EERA section 3543.5(a) makes
it unlawful for employers to "impose or threaten to impose reprisals on employees, or
otherwise to interfere with, restrain, or coerce employees because of their exercise of rights
guaranteed by this chapter." The test for whether a respondent has interfered with the rights of
2Johnson testified on this issue as follows:
Q. Is it your ~ was it your belief that this policy and
administrative regulation would allow you to be above the law?
A. 	No.
Q. 	Would it allow you to violate the law in terms of
implementing any emergency procedures?
A. 	No.
Q. 	The — was it your intent to ignore the law in the event of a
strike and do whatever you wanted to?
A. 	No.
(R.T., Vol. III, p. 23.)
3The Board has held that: 	"An honestly given retraction can erase the effects of a prior
coercive statement. . . . The key question in cases involving the discontinuance of illegal
activity is whether the employer's retraction was made in a manner that completely nullified
the coercive effects of the earlier statement." (Sacramento City Unified School District (1985)
PERB Decision No. 492, ALJ's proposed dec. at p. 28, emphasis added.) The cases cited by
the District involve the adequacy of attempted retractions actually made by the employer. 	In
this case, there is no evidence that the District has attempted to retract the inappropriate
portions of the BP or AR. The District however argues that the Board should consider
"prospective" disavowals of unlawful conduct but has cited no authority for this argument. 	We
thus find that the District's argument lacks merit.
10

employees under the EERA does not require that unlawful motive be established, only that at
least slight harm to employee rights results from the conduct. 	The Board has described the
standard as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. 	(State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106.)
Under the above-described test, a violation may only be found if EERA provides the
claimed rights. In Clovis Unified School District (1984) PERB Decision No. 389, the Board
held that a finding of coercion does not require evidence that the employee actually felt
threatened or intimidated or was in fact discouraged from participating in protected activity.
We find that the ALJ's proposed decision correctly found an independent violation of
interference. First, the BP prohibits "any strike, walk-out, slowdown, or other such strike-
related type activities by employees of the District. . . .The District may take disciplinary
action against employees, taking into account the seriousness of the behavior and the
District's efforts to rebuild relations following the withholding of services by employees." As
explained by the ALJ, the phrase "or other such strike-related type activities" interferes with
employee rights because of its ambiguity, the possibility of a broad interpretation in the
future, and its resulting chilling effect on employees' protected rights. 	(Cf. Los Angeles
County Federation of Labor v. County of Los Angeles (1984) 160 Cal.App.3d 905 [207
Cal.Rptr. 1] (LA. County Federation), in which the court found an ordinance that punished
employees for instigating, participating in, or affording leadership to a strike to be overbroad
and unduly chilling to protected rights despite the provision of a severability clause in the
ordinance.) 	Thus, a broad interpretation of the BP may effectively restrain employees from
11

engaging in protected conduct, such as the "work to rule" program, rallies, leafleting, and
peaceful picketing. 	(See, e.g., Hilmar Unified School District (2004) PERB Decision
No. 1725; San Marcos Unified School District (2003) PERB Decision No. 1508; NLRB v.
Servette. Inc. (1964) 377 U.S. 46 [55 LRRM 2957]; Modesto City Schools (1983) PERB
Decision No. 291; Los Angeles Unified School District (1990) PERB Decision No. 803.)
The District argues that specific language in the BP prohibits interference and
therefore ameliorates its prohibitions, namely:
To the extent the policies modify current contractual provisions
with employee organizations, employee organizations shall be
provided an opportunity to demand to bargain the modifications
prior to their effective date.
We disagree that this or any other provision of the BP prohibits interference with
protected rights. 	We therefore reject this argument and affirm the ALJ's analysis and ruling
regarding the phrase "or other such strike-related type activities" in the BP.
Second, the District excepts to the ALJ's finding that the AR would deprive
employees of, among other items, their payroll deduction privileges, a right protected by
EERA section 3543.1, and thus per se interference in violation of EERA. (Rio Hondo
Community College District (1983) PERB Decision No. 292 (Rio Hondo).) In Rio Hondo.
the employer adopted an emergency resolution, which threatened to withdraw certain
employee privileges, including dues deductions, of employee organizations that encourage its
members to participate in a work stoppage. Finding a violation, the Board explained the
chilling effect that such deprivation of rights inflicts on employees:
A threat to punitively suspend statutory rights tends to
undermine the status of the exclusive representative and has a
chilling effect on employee activity. This is so because an
employer's threat is backed by the considerable power than an
employer holds over an employee. Even if acting illegally, an
employer can withhold employment and earnings for months or
even years before a legal remedy can be effected. 	Faced by such
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potential hardship and dire consequences, an employee might
well be persuaded to forego rights, even those provided by the
Legislature and protected by the Board, rather than test the
employer's authority and intent.
Further, in Rio Hondo, the Board declared that, "even without implementation, the threat to
suspend statutorily protected employee organization rights in an emergency resolution
constitutes a violation of section 3543.5(a)." (Rio Hondo, citing Barstow Unified School
District (1982) PERB Decision No. 215.) We find that, in this case, the AR's threatened
withholding of payroll deductions similarly chills employees' participation in protected
conduct and violates Section 3543.5(a).
The District argues that the following language mitigates the impact of the interference
by limiting the superintendent's powers to take these actions:
The District shall not impose or threaten to impose reprisals,
discriminate or threaten to discriminate, or otherwise interfere
with, restrain or coerce employees for the exercise of their
rights.
This statement, however, is buried within the lengthy recitation of emergency
procedures and regulations in the AR and, similar to the court's finding in L.A. County
Federation, "the portions that we find invalid so permeate the section that, merely to excise
them, would leave a section unintelligible." (L.A. County Federation, at p. 910, emphasis in
original.)4 Consequently, we find that this provision does not clearly disclaim the unlawful
portions of the AR.
4L.A. County Federation differs in some respects from the matter before us. In L.A.
County Federation, the court found large portions of an emergency ordinance prohibiting
strikes to be so broad as to be unenforceable. In this case, the withholding of employee rights,
including statutory rights, are unlawful in part because of the District's unilateral change in
terms and conditions of employment and in part because of unlawful interference with rights
specifically guaranteed to employees under EERA. 	However, the principle that the District's
brief "disavowal" buried within the AR is insufficient to ameliorate the unlawful aspects of the
AR remains the same.
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Therefore, we hold that the AR's threat to eliminate employee payroll deduction
privileges interfered with employees' rights under EERA, and that the adoption of the AR was
unlawful and should be rescinded.
In its exceptions, STA now asks the Board to expand on the ALJ's ruling, to find a
right to strike under EERA by overturning the Board's decision in Compton Unified School
District (1987) PERB Order No. IR-50, and to find that the BP and AR both interfered with
this protected right. 	STA says that it raised this allegation in the charge and amended charge
in paragraph 5, which states, in pertinent part:
On or about December 19, 2000, the District adopted a policy
purporting to prohibit Association activity protected by the
EERA, and threatening disciplinary action for engaging in
Association activity protected by the EERA.
a. Since expiration of the Agreement in June 30, 2000, the
District had no policy purporting to prohibit Association activity
protected by the EERA, and no policy authorizing disciplinary
action for engaging in Association activity protected by the
EERA.
b. On or about December 19, 2000, the District Governing
Board adopted New Board Policy 4141.6 . . . .
. .. . .. ............................
c. At the meeting, Association President Lynne Beerle protested
the Board action.
We do not find that the above paragraph clearly alleged a violation of interference
under EERA, other than a derivative violation of the District's alleged unilateral change. If
anything, STA is merely introducing its claim that the District board unilaterally changed its
policy. Neither the complaint nor the amended complaint alleged interference with the right
to strike as an independent violation and STA did not seek to amend the charge or complaint
to include this violation. STA's mention of this issue in its opening statement merely asserts
that the District had no right to insist that employees' waive their statutory rights, such as in a
14

no-strike clause, after the contract had expired. 	In its post-hearing brief, STA distinguished
this case from various cases in which there was an imminent threat of strike but concluded
that since there was no such emergency in this case, the District's threatened suspension of
statutory rights violated EERA section 3543.5(a). 	This constitutes the entire extent of STA's
discussion regarding alleged interference by the District before the issuance of the proposed
decision. Under these circumstances, we find that STA's request does not provide adequate
notice and opportunity to defend, was not fully litigated, does not show that the parties had
the opportunity to examine and be cross-examined on the issue, and therefore, does not meet
the requirements for an Unalleged violation. 	(Tahoe-Truckee: Eureka City School District
(1985) PERB Decision No. 481.)
Further, as previously found, STA waived its right to negotiate the BP, and its
prohibition against "any strike, walk-out, slowdown." Clearly, STA has also previously
waived the right to strike as evidenced by the "no-strike clause" found in Article XXII of the
expired CBA. 	Thus, the Board need not consider whether the District has interfered with the
right to strike or whether the right to strike is protected under EERA.
Accordingly, the Board finds that the District's prohibition of "other such strike-related
type activities" in the BP and the threatened "loss of payroll deduction privileges" in the AR
interfere with, restrain, and coerce employees in the exercise of their statutory rights to engage
in activities in support of STA and to dues deductions, in violation of EERA section 3543.5(a).
Remedy
The ALJ ordered rescission of the offending language in the BP and of the entire AR,
and that the District post a notice incorporating the terms of the order. 	Given the above
findings, the ALJ's proposed remedy is appropriate and is hereby adopted as the remedy of
the Board itself.
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ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, those portions of the charge and complaint alleging the Santee Unified School
District's (District) unilateral adoption of Board Policy 4141.6 (BP 4141.6) is dismissed.
Those portions of the charge and complaint alleging the District's unilateral adoption of
Administrative Regulation 4141.6 (AR 4141.6) and its refusal to bargain the impact of
BP 4141.6 in violation of the Educational Employment Relations Act (EERA), Government
Code section 3543.5(a), (b) and (c). In addition, Unalleged violations of EERA section
3543.5(a) are found in certain language of BP 4141.6 and AR 4141.6.
Pursuant to EERA section 3541.5 (c), it is hereby ORDERED that the District, its
governing board and its representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Maintaining AR 4141.6, which we adopted unilaterally without
providing the Santee Teachers Association (STA) with prior notice or an opportunity to
bargain;
2. 	Failing and refusing to meet and negotiate in good faith with STA
regarding the impact of BP 4141.6;
3. 	Denying to STA rights guaranteed by EERA, including the right to
represent bargaining unit members;
4. 	Interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by EERA, including the right to be represented by, and engage in activities in
support of, their chosen representative;
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5. 	Interfering with, restraining, and coercing employees in the exercise of
their statutory rights by prohibiting them from engaging in "strike-related type activity" in
BP 4141.6, and by threatening them with "loss of payroll deduction privileges" in AR 4141.6.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) work days following service of a final decision in this
matter, rescind AR 4141.6;
2. 	Upon request, meet and negotiate with STA regarding the impact of
BP 4141.6, until the parties reach agreement or exhaust the statutory impasse procedures;
3. Within ten (10) work days following service of the final decision in this
matter, rescind the language "other such strike-related type of activity by employees" from
BP 4141.6;
4. Within ten (10) work days following service of the final decision in this
matter, post at all work locations where notices to certificated employees customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that the District will comply with the terms of this
Order. 	Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material;
5. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. Respondent shall provide reports, in writing, as directed by the General
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18
'
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on STA.
Chairman Duncan and Member Shek joined in this Decision.

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-4268-E, Santee Teachers
Association v. Santee Elementary School District, in which all parties had the right to
participate, it has been found that the Santee Elementary School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c). 	The District violated EERA by refusing to meet and negotiate in good faith with the
Santee Teachers Association (STA) regarding the adoption of Administrative Regulation
4141.6 (AR 4141.6) and the impact of Board Policy 4141.6 (BP 4141.6). The District also
interfered with, restrained, and coerced employees in the exercise of their statutory rights to
engage in activities in support of STA by its promulgation of overly broad language in
BP 4141.6 prohibiting these activities, and by its threat in AR 4141.6 to deprive employees of
payroll dues deductions.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Maintaining AR 4141.6, which we adopted unilaterally without
providing STA with prior notice or an opportunity to bargain;
2. 	Failing and refusing to meet and negotiate in good faith with STA
regarding the impact of BP 4141.6;
3. 	Denying to STA rights guaranteed by EERA, including the right to
represent bargaining unit members;
4. 	Interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by EERA, including the right to be represented by, and engage in activities in
support of, their chosen representative;
5. 	Interfering with, restraining, and coercing employees in the exercise of
their statutory rights by prohibiting them from engaging in "strike-related type activity" in
BP 4141.6, and by threatening them with "loss of payroll deduction privileges" in AR 4141.6.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. Within ten (10) working days of the service of a final decision in this
matter, rescind AR 4141.6;
2. 	Upon request, meet and negotiate with STA regarding the impact of
BP 4141.6, until the parties reach agreement or exhaust the statutory impasse procedures;

3. Within ten (10) working days of the service of the decision in this
matter, rescind the language "other such strike-related type of activity by employees" from
BP 4141.6.
Dated: 	SANTEE ELEMENTARY SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
22

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTEE TEACHERS ASSOCIATION,
Charging Party,
v.
SANTEE ELEMENTARY SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4268-E
PROPOSED DECISION
(10/4/02)
Appearances: 	California Teachers Association by Rosalind D. Wolf, Staff Counsel, for Santee
Teachers Association; Parham & Rajcic by Mark R. Bresee, Attorney, for Santee Elementary
School District.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
A union representing a unit of elementary school teachers claims that the school district
unilaterally adopted a policy prohibiting certain concerted activities, and a set of regulations to
implement that policy, without giving the union prior notice or opportunity to bargain. The
union contends that the policy and regulations change several terms and conditions of
employment of the teachers, and deprive them of their statutory right to engage in concerted
activity. 	The union further contends that the district refused the union's request to negotiate
the impact of the policy.
In defense, the school district contends that the union had sufficient notice prior to
adoption of the policy and regulations, but failed to request negotiations, thus the district's
conduct was not unlawful. 	The district also contends that allegations regarding the regulations
are time-barred.
--~ 	~

The Santee Teachers Association (STA or Union) filed an unfair practice charge against
the Santee Elementary School District (District) on February 13, 2001, alleging the District's
unilateral adoption of the new policy and its refusal to bargain the impact of the policy. The
Office of the General Counsel of the Public Employment Relations Board (PERB) issued a
complaint on June 5, 2001, alleging that by its adoption of the new policy and refusal to
bargain its impact, the District violated Educational Employment Relations Act (EERA)
section 3543.5(a), (b), and (c).1 An informal settlement conference was held in the PERB
office in Los Angeles on December 13, 2001; however, the matter was not resolved.
On January 24, 2002, the Union filed an amended charge and a motion to amend the
complaint, adding the allegation that the District unlawfully adopted an administrative
regulation to implement the new policy, which changes several provisions of the parties'
expired collective bargaining agreement. The Union claimed that it first learned of the
adoption of the administrative regulation at the PERB informal hearing in a statement made by
the District's attorney. 	In opposition to the motion, the District contended that the amendment
is time-barred, filed more than a year after the administrative regulation was adopted. 	The
District further contended that statements made in the context of settlement negotiations cannot
form the basis of an unfair labor practice charge. 	The Division of Administrative Law of
PERB issued a first amended complaint (Complaint) on March 13, 2002, adding the allegation
that the District, by unilaterally adopting the administrative regulation and by changing its
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
N
2

policies on a wide array of terms and conditions of employment cited therein, violated EERA
section 3543.5(a), (b), and (c).
The District answered the Complaint on March 25, 2002, denying any wrongdoing and
again contending that allegations regarding the administrative regulation are time-barred.
A formal hearing was conducted in San Diego on June 3, 4, and 5, 2002, before
Administrative Law Judge Thomas J. Allen. Thereafter, the matter was reassigned to the
undersigned, who also attended the hearing. After the filing of post-hearing briefs, the matter
was submitted for decision on September 13, 2002.
FINDINGS OF FACT
The facts are, with few exceptions, undisputed.
The District is a public school employer as defined in EERA section 3540.1. The STA
is an employee organization as defined in section 3540.l(d) and at all times relevant has been
the exclusive representative, as defined in section 3540.1(e), of an appropriate unit of the
District's elementary school teachers.
STA and the District have had a history of collective bargaining since 1977. Their
most recent collective bargaining agreement (Agreement) expired on June 30, 2000.2 Article
XXII of the Agreement, which had been in each of the parties' agreements since 1977 without
alteration or discussion, reads in part:
PROHIBITION OF CONCERTED ACTIVITIES
It is agreed and understood that there will be no strike, work
stoppage, slowdown, picketing or refusal or failure to fully and
faithfully perform job functions and responsibilities or other
interference with the operations of the District by the Association
or by its officers, agents, or employees during the term of this
Agreement, including compliance with the request of other labor
All dates refer to the year 2000, unless otherwise specified.
w	
3

organizations to engage in such activity. It is agreed and
understood that any employee violating this article may be
subject to discipline up to and including termination by the
District. It is understood that in the event this article is violated,
the District shall be entitled to withdraw any rights, privileges, or
services provided for in this Agreement or in District policy from
any employee and/or the Association.
From 1977 until the events at issue herein, the parties enjoyed a trusting and
cooperative relationship in which many issues were resolved informally in ad-hoc meetings
and joint committees, especially the Employer-Employee Relations Committee (EERC) which
met monthly. Also during that time, representatives of both parties received training in
"interest-based bargaining" and used this technique successfully in their negotiations. 	Thus,
although issues were sometimes difficult and impasse was sometimes declared, the parties had
always been able to resolve their differences and reach agreement. Further, STA never had to
make a formal demand to bargain and the District never added or modified a policy impacting
unit employees without first discussing it with STA. 	However, shortly after the Agreement
expired, that compatible relationship started to disintegrate, for reasons no witness was able to
explain.3
The parties met informally a few times beginning in July, but no proposals for a new
agreement were exchanged. 	At some time in August, District Superintendent Marcia Johnson
(Johnson) informed Lynn Beerle (Beerle), STA president, that she (Johnson) was instructed not
to engage in any negotiations with STA without the presence of District counsel, Jack Parham
The parties presented testimony and arguments placing some blame on each other for
escalating the breakdown. I need not, and do not, make any finding in this regard.
A	
4

(Parham). 	The parties held their first formal bargaining session on October 5.4 At that time
they exchanged interests, to wit: 	STA expressed interest in work schedules and wages.
Specifically, STA said it wanted competitive wage increases in order to attract new teachers.
STA also said it wanted to benefit from Governor Davis' recent announcement of a 10.95 per
cent cost-of-living adjustment (COLA) in the state's education budget, which STA contended
was earmarked for teacher salaries, and which teachers in neighboring school districts were
receiving, at least in substantial part. 	The District expressed interest in fiscal responsibility
and its desire, in the face of declining enrollment, to avoid having to cut programs. Thus, a
conflict developed between STA's desire to save teachers and the District's desire to save
programs, and strong words were exchanged. Beerle testified, uncontradicted by any
respondent witness, that at this session, in response to STA's request for a District proposal,
Parham, said, "If we gave our proposal now, it would piss you off."
After the session, contrary to the parties' past practice of issuing joint negotiation
updates to inform unit employees, STA issued its own "Negotiation's Update," criticizing the
District's position, and ending as follows: "[W]e too feel frustrated and angry." STA also
issued its regular November newsletter, arguing teachers' entitlement to the state COLA and
criticizing the District. The newsletter also announced an STA rally to be held on
November 21 outside the District office, at which California Teachers Association President
Wayne Johnson would speak, and after which Beerle would present STA's position at the
board meeting scheduled for that evening.
Although the record does not indicate who served on the respective parties'
negotiation teams, it is apparent that Beerle had the authority to represent STA on negotiation
matters.
ur	
5

The next bargaining session was held on October 25. The District presented a proposal
which provided, inter alia, for a 4.5 per cent wage increase. 	STA summarily rejected the offer
and issued an update on October 25 criticizing the District. On November 6, the parties each
issued updates arguing their respective positions.5 STA also distributed to unit employees a
document urging their participation in a "Work to Rule" program.6 Beerle testified that under
this program, teachers were to do everything required of them, but were not to volunteer for
anything extra, e.g., serving on committees. At STA's November 14 council meeting, Beerle
urged teachers to wear union t-shirts every Friday and at the November 21 rally, and to
STA's newsletter was formatted with tiny pictures of ticking bombs instead of
computer "bullets." Beerle testified that this was not meant as a threat of strike or violence,
but was just an attempt at some humor in what was then a grim situation.
6 The Work to Rule program, entitled "STA Participation," reads as follows:
I will support in all activities STA has planned to show the
dissatisfaction our bargaining unit has with the negotiations.
1. 	I will work my contractual hours (Meet with all teachers
in the school parking lot in the morning and enter the school
together. 	I will then leave at my ending contractual time and
meet my fellow teachers in the parking lot to go home). This is
referred to as Work to Rule - Only.
2. 	I will email board members, write letters or any other
form of communication to let them know how I feel.
3. 	I will attend the board meeting on November 21. All
teachers must be present to show our solidarity! All! (More
information will follow in a flyer.)
4. 	I will not attend district committees that I have
volunteered to unless directed by my site administrator (Keep
track if directed and remember listening is participation). 	Any
committees I attend during contractual hours, I will support by
listening! 	I will not volunteer for any committees from this point
forward. 	[Emphasis in original.]
6

maintain the Work-to-Rule program, at least until the next negotiating session scheduled for
November 30. In addition, STA circulated to teachers, parents, and the community, a rally
flyer which contained, inter alia, 	a photo of Governor Davis apparently admonishing the
"hear-no-evil, see-no-evil, speak-no-evil" monkeys that the state COLA was for teacher
salaries.7 The rally was held as scheduled on November 21 and was well attended; STA took
exception to the unusual presence of the Sheriffs Department, which it believed the District
had called in order to intimidate rally participants.8 At the board meeting which followed,
approximately 54 STA representatives, teachers, parents, and community members, an
unusually high number, spoke in favor of STA's position.
During this period, and since July, the EERC had not held any meetings. 	STA
cancelled a few sessions; then at some time in November/December, Beerle told the District
that STA had no issues to bring before the EERC.
The next bargaining session, and the last one for several months, was held on
November 30. 	STA presented its proposal calling for, inter alia, a 10.95 per cent wage
increase. The District caucused for approximately 15-20 minutes, then returned to the table,
called STA's offer irresponsible, and declared impasse. 	STA did not oppose the declaration of
impasse, and the parties subsequently entered into impasse-resolution proceedings. 	On
December 1, the District issued another update, and also a letter to unit employees from
Superintendent Johnson, stating that "any salary settlement over what we have offered will
result in our having to immediately cut programs, services and other [critical] resources,"
Beerle testified that STA was just "having a little fun" depicting the monkeys.
8 Johnson testified that she had called the Sheriffs Department only because she
wanted protection for everyone, not to show hostility to the rally participants.
77

criticizing STA's offer, and explaining why impasse was the only choice. 	For its part, STA
distributed a flyer announcing "Negotiations Break Down! Impasse Declared" and urging "No
more district 'business as usual'."
Johnson testified that by this time, she believed a strike was a "real possibility" within
the next few months, because of concerns on the state of negotiations voiced to her by
teachers, parents, and community members, because of threats from some teachers to "do
whatever it takes" to get a favorable contract, and because of STA's mass picketing.9
However, notwithstanding that STA acknowledged that a strike could be a "last resort," there
is no evidence that STA had any strike plans, or that any STA officer or member had
threatened the District with a potential strike.10 Further, except for a few signs carried at the
November 21 rally and a few signs at one school campus unauthorized by STA, regular
picketing did not begin until after December. 	Both parties expressed hope of resolving their
differences and reach a contract. In that regard, Johnson's December 1 letter to the unit closes
with these words: 	"[W]e remain optimistic that we will be able to reach an agreement with
STA in the near future." And, according to Beerle, STA was committed to using every
possible means to that end. However, it was not until spring of 2001 that the parties resumed
Johnson acknowledged that a strike option would be viable only after impasse-
resolution proceedings were concluded.
10 Former STA Consultant Marilyn Sanderson testified that a "strike buildup" would
involve appointing and instructing picket captains, preparing picket signs, establishing a
system for picketers to exchange materials, and taking a strike-authorization vote among unit
members, none of which was done.
8

negotiations, which finally resulted in a successor agreement executed on August 17, 2001. 11
Thus, there was no contract in effect from June 30, 2000 until August 17, 2001. In the interim,
STA formed a Crisis Committee on December 13 and prepared a Crisis Calendar on
December 14 calling for email, newsletter and postcard campaigns, appearances at board
meetings, picketing, and the continuation of the Work-to-Rule program; and the District
approved the new policy and administrative regulations which inform these proceedings.
New Board Policy 4141.6
Board By-Law 9311 (BB 9311), entitled "Board Policies," regulates how District
policy is established: 	a new policy "shall normally be given two readings by the Board" before
adoption, and "[A]t its second reading, the policy may be adopted by a majority vote of all
members of the Board." Drafts or suggestions for new policy may be presented to the board by
the superintendent "when changes in law occur and when specific needs arise." In late 2000,
Johnson drafted new Board Policy 4141.6 (BP), based on language provided by the California
School Boards Association (CSBA), and presented it to the board. It reads as follows:
CONCERTED ACTION/WORK STOPPAGE
The Governing Board recognizes the importance of maintaining
positive relations with employees, employee organizations,
parents/guardians and community members throughout the
collective bargaining process, 	hi the event of an impasse in
negotiations, the Board shall make a good faith effort to reach an
agreement with the employee organization through participation
in state mediation and fact-finding procedures.
The Governing Board is responsible to provide for the education
of the pupils attending the schools in the District, even in
circumstances where the operation of the District is impeded by
concerted action by District employees. It is the intent of the
Board of Education to enact these policies to allow for the
The no-strike clause of the expired Agreement was carried into the new agreement
without discussion or modification.
99

continuous operation of District programs. 	To the extent the
policies modify current contractual provisions with employee
organizations, employee organizations shall be provided an
opportunity to demand to bargain the modifications prior to their
effective date.
Any strike, walk-out, slowdown, or other such strike-related type
activities by employees of the District could materially disrupt
the operation of the schools of the District and prevent the
continuous education of the children attending District schools.
Therefore, the Governing Board shall view any strike, walk-out,
slowdown of mandatory or discretionary duties, or other such
strike-related type of activity by employees of the school District
as a prohibited act.
During any threatened or actual withholding of services, the
Board shall keep parents/guardians and community informed
about the status of District negotiations, the educational program
and safety measures that have been taken by the District.
When feasible, the Board desires to keep schools operating
during any work stoppage. The Superintendent or designee shall
take steps necessary in order to help ensure the safety of students,
staff and District property during a work stoppage. 	Such steps
shall be reported to the Board as soon as possible.
The Board recognizes that preparation is necessary to reduce
disruption during a work stoppage and to ensure that students
receive the education to which they are entitled. The
Superintendent or designee shall develop a written plan that shall
delineate actions to be taken in the event of a strike or threatened
strike. 	The plan shall include specific responsibilities of the
Board and District staff, plans to maintain District operations,
appropriate student instruction and supervision, as well as
communication and safety issues.
The Board believes that employees shall be held accountable for
their behavior during any labor dispute. 	The District may take
disciplinary action against employees, taking into account the
seriousness of the behavior and the District's efforts to rebuild
relations following the withholding of services by employees.
(Emphasis added.)
As was customary, at some time between December 1 and December 5, Beerle received
a copy of the agenda for the board meeting scheduled for December 5. 	The agenda contained,
10

inter alia, an item calling for the first reading of the BP. Attached was a copy of the BP and a
note from Assistant Superintendent Sue Yakubik (Yakubik): 	"Dear Lynne, Here is new policy
that will be going to the Board for a first reading. I wanted to let you know that it would be
presented at the December 5 Board meeting. Sue"12 Beerle testified that this was the first time
she ever received a copy of a new board policy before its adoption. Beerle attended the board
meeting, where she questioned the need for the BP and expressed her concern that the BP, as
well as the appearance of the Sheriffs Department at the November 21 rally and Johnson's
December 1 letter to the unit employees, "may have lasting effects on the relationship between
the teachers and the administration."
Some time after December 5, Beerle sought the advice of STA consultant Marilyn
Sanderson (Sanderson) as to what action, if any, to take on the BP. 	Sanderson did not
recommend any action, as she believed the BP guaranteed STA the opportunity to bargain any
impact of the BP after board adoption, and after a strike declaration, neither of which had yet
occurred. 	Sanderson also did not want to "exacerbate" an already tense situation, thereby
risking the District's implementation of its contract offer, which it was privileged to do during
impasse. However, Sanderson did encourage Beerle to speak against the BP at the next board
meeting.
The next board meeting was scheduled for December 19. Prior to that date, Beerle
received the agenda, which contained an item for the second reading, followed by the
statement: 	"It is recommended that the Board of Education approve new Board Policy
12 Yakubik testified that she also called Beerle prior to December 5 to inform her of the
first reading of the BP. Beerle did not recall speaking with Yakubik before the Board meeting;
however, she would not deny it if Yakubik so testified. 	Accordingly, I credit Yakubik in this
regard.
11

4141.6." Again attached to the Agenda was a copy of the BP, as well as a copy of the new
Administrative Regulation 4141.6 (AR). The Agenda made no reference to the AR; however,
Yakubik sent Beerle a note stating that the AR would be discussed at the meeting. Beerle sent
a copy of this package to Sanderson.
At the December 19 board meeting, Beerle spoke against the BP and the AR, calling
them a "hostile action, severing lines of communication," and saying that teachers were
committed to a safe environment for students and that she believed a new contract would be
reached before the end of the year. 	Beerle testified that she did not think the board would
adopt the BP or the AR before considering STA's position. Beerle did not make any request or
demand to bargain the BP or the AR, believing, as did Sanderson, that STA would be able to
bargain its impact.13
At the December 19 meeting, the board adopted the BP and held the AR for further
review. An article in the San Diego Union Tribune dated December 21, reporting on the
adoption, quotes Sanderson's response as follows: 	"Districts often put together such policies
as a precaution when they reach an impasse in salary negotiations." Sanderson did not deny
making that statement, but said she believed the timing of the adoption, coming so soon after
the declaration of impasse, was "meant to intimidate employees."
Johnson testified regarding her interpretation of the language of the BP as follows: 	the
phrase "employee organizations shall be provided an opportunity to demand to bargain the
modifications prior to their effective date," means that prior to December 19, STA could have
successfully demanded bargaining, but since December 19, STA could no longer bargain the
There is no evidence that the District would have refused a demand to bargain prior
to December 19. Thus, I need not make a credibility finding as to Yakubik's and Johnson's
speculative testimony that, if a demand had been made, the BP would have been "pulled."
12

BP's adoption. Johnson was uncertain, however, as to whether STA would have the right to
bargain prior to its implementation. As to "concerted activity," Johnson stated that it was not
as powerful as the word "strike," thus STA would be less likely to take offense.14 Johnson
explained that the BP would prohibit only strikes, slowdowns, or other activity which would
"disrupt the normal operations of the schools to be able to provide instruction." As to
"discretionary duties," Johnson contended this includes only such mandatory, but excusable,
non-classroom duties such as issuing report cards, and attending parent conferences and open
houses. Johnson acknowledged that prior to adoption of the BP, STA had not engaged, or
threatened to engage, in anything which she considered to be "concerted activity," including
the November 21 rally and the Work-to-Rule program, as none of this activity had slowed
down or disrupted school operations.
Administrative Regulation 4141.6
Pursuant to BB 9311, Johnson drafted Administrative Regulation 4141.6 to implement
the BP. BB 9311 reads, in part:
The application of policies is an administrative task to be
performed by the Superintendent and the Superintendent's staff,
who shall be held responsible for the effective administration and
supervision of the entire school system.
. . . . . . . . . . 	. . . . . . . .
When policies are amended, the Superintendent or designee shall
review corresponding administrative regulations to ensure that
they conform to the intent of the revised policy.
Both Johnson and her executive secretary, Arietta Schaffer (Schaffer), testified that
BB 9311 does not required the board to "adopt" administrative regulations; rather, the board
merely "approves" what the superintendent has drafted.
14 Johnson had replaced CSBA's use of the word "strike" with "concerted activities."
13

As noted above, AR 4141.6 was not approved at the December 19 board meeting, but
was held for further review. Johnson testified that, while this was the first time the board had
ever taken such a high interest in a proposed administrative regulation, it was only a few board
members who had minor concerns, i.e., they wanted "a couple of words" changed, and wanted
the board vice president rather than the superintendent given the authorization to implement
the AR if the board president should be unavailable. Johnson made what she characterized as
"cosmetic changes" and sent to the board members a revised AR, along with a memorandum15
stating that she would discuss the AR with them at the next board meeting on January 9.
Johnson testified that she allayed board members' concerns in telephone conversations prior to
January 9, thus she saw no need to meet with them on January 9. Notwithstanding the changes
she made, Johnson claimed that the AR was approved, by her, on December 19; December 19
is cited on the last page of the AR as the date of approval.
On January 26, 2001, at Johnson's instruction, Schaffer mailed copies of the BP and the
revised AR to the board's distribution list, along with a cover memo instructing recipients to
update their respective board Policies and Administrative Regulations notebooks. Although
The memorandum reads, in part:
HIGH PRIORITY
AR 4141.6 Concerted Action/Work Stoppage
Please, please, please bring your comments on AR 4141.6 to
Tuesday, January 9 th . . . . Remember: you are authorizing the
superintendent to proceed ONLY for strike-type actions in which
I cannot get to you for direction. 	The actions would be taken to
assure the smooth operations of our schools for student safety.
14

Schaffer could not recall specifically whether she sent this package to STA, she assumes she
did, as STA is on the board's distribution list.16
STA witnesses testified that in their interpretation of BB 9311, it is the board which
must adopt administrative regulations, and since AR 4141.6 was not put on the agenda for
action at the December 19 meeting, STA had no idea when or if it would be adopted at all. In
opposition, the District argues that STA must have known that the board does not approve
regulations, as a board member stated this at the December 19 meeting, which Beerle
attended. However, Beerle testified that she did not recall hearing such a statement, and I have
no reason to discredit her testimony. 	Thus, Beerle and Sanderson were both uncertain as to
what was meant by the phrase, "bring the administrative regulation to the Board for review,"
which appears in the December 19 board meeting minutes; however, they did nothing to clarify
this language. Further, Sanderson did nothing to clarify the December 21 San Diego Union
Tribune article, which erroneously attributed to the newly-adopted BP some of the language of
the AR.
AR 4141.6 reads:
CONCERTED ACTION/WORK STOPPAGE
The Superintendent shall be empowered, under any of the
following conditions, to implement District emergency
organization and operational procedures for the continuous
operation of the school District should there be reason to believe
that the operation of the schools may be impaired by activities of
an employee organization.
16 Beerle testified that she did not recall seeing Schaffer's mailing, thus she had no
knowledge that any action had been taken on the AR. Further, neither the BP nor the AR could
be located in a current search of STA's board Policies and Administrative Regulations
notebooks. However, as all critical dates herein predate January 26, 2001, I therefore make no
finding as to whether STA received Schaffer's mailing.
15

1. 	The condition that the activities occurred and precluded
official Governing Board action in an emergency or regularly
scheduled meeting of the Governing Board.
2. 	The receipt of official written materials indicating the
employee organization's intent to commit acts which would
impair the District's operations prior to the 24-hour notice
required for calling a special meeting of the Governing Board
3. Obtaining a minimum of three District employee
affidavits stating that the District employee organization intended
to engage in activities which would occur prior to the 24-hour
notice required for calling a special meeting of the Governing
board.
4. 	The condition that none of, or an insufficient number of
Governing Board members could be contacted and assembled for
a special meeting within the required 24-hour notification period
for such a meeting.
5. 	The condition that the Governing Board did not desire to
meet until its next regularly scheduled meeting.
Emergency organization and operational procedures shall become
effective immediately upon declaration of an emergency by the
Superintendent, and shall prevail to the extent that these policies
and/or regulations are not in conflict with or inconsistent with the
law and shall remain in effect until further order of the
Superintendent or Governing Board.
Emergency organization and operational procedures shall pertain
to and supersede all District policies and/or regulations and
contradictory contractual provisions after the required
negotiations have been completed.
When the Superintendent declares an emergency situation to
insure the continuous operation of the school District, the
following emergency regulations shall be in effect:
1. 	No employee of the District shall be granted a leave of
absence for personal business.
2. 	Personal necessity leave is authorized for employees only
when the same is due to:
16

a. 	Death or serious illness of a member of such
employee's immediate family.
b. 	Accident involving such employee's person or
property, or the person or property of a member of such
employee's immediate family.
District employees who take personal necessity leave for one of
the reasons set forth above shall be required to file with the
Assistant Superintendent, Human Resources satisfactory evidence
of entitlement to such leave.
3. 	In order to be granted sick leave for absences claimed to
be due to illness or injury (other than pursuant to an industrial
accident or illness leave) an employee must file with the Assistant
Superintendent, Human Resources, a statement signed by his or
her physician or medical advisor attached to the appropriate
District leave form.
Said certificate shall be submitted within one (1) day after the
employee's return to work, 	hi the event a District employee fails
or refuses to furnish said certificate, said absences shall be treated
as and be deemed to be absence without leave and be subject to
discipline.
4. Except as otherwise provided herein, all of the leave
policies and regulations of the District shall remain in full force
and effect.
5. 	The Superintendent, or designee, shall prepare for
submission to the Governing Board a disciplinary report, setting
forth the name and relevant information concerning each
employee who is believed to have:
a. 	been absent without leave on any workday or
portion thereof;
b. 	engaged in a walk-out, slowdown, work stoppage,
or similar activity;
c. engaged in acts of vandalism directed against real
or personal property of the school District or the personal
property of others located on school property;
17

d. 	suggested, encouraged, intimidated, coerced, or by
any other means attempted to initiate or aid in a boycott
by school pupils of the District;
e. 	suggested, encouraged, intimidated, coerced, or by
any other means attempted to persuade one or more pupils
of the District not to attend school; or
f. 	by any means unduly intimidated, coerced
substitute teachers, non-concerted action personnel,
administrators, volunteers, Board members, or members
of any of the families; or
g. 	in any manner damaged or caused to have
damaged the real or personal property of the personnel
outlined in (f) above; or
h. 	acted or failed to act in a manner which the
Superintendent believes warrants disciplinary action by
the Governing Board provided that a reasonable person
would have known the conduct was inimical to the
education of students.
Procedures with respect to said disciplinary report shall be as
follows:
a. 	Notice shall first be given to the employee
pursuant to Education Code section 44031, and he or she
shall be given an opportunity to review the disciplinary
report and comment thereon.
b. 	In the event such employee desires to enter and
have attached to the disciplinary report his or her own
comments, such employee shall do so within five (5)
working days of receipt of notice, or he or she shall be
deemed to have waived such a right.
c. 	Said disciplinary report, together with any written
comments filed by the employee, shall then be placed in
the employee's personnel file.
d. 	Immediately after said disciplinary report is placed
in the employee's personnel file, said disciplinary report
shall be submitted to the Governing Board, together with
any written comments filed by the employee, for
18

consideration and determination on whether the Board
will commence disciplinary action, including but not
limited to immediate suspension and adoption of a
resolution of intention to dismiss the employee.
6. 	No compensation shall be paid to or on behalf of any
employee unless the Superintendent, whose duty it is to draw the
warrants, is satisfied that the employee has faithfully performed
all of his or her prescribed duties (Education Code § 45055). The
term "compensation" as used herein shall include, but shall not be
limited to, employer contribution, if any, toward the cost of any
health, welfare, or group benefits of the employee.
11. 	The Superintendent is authorized to reassign any and all
employees, as needed, in order to keep the school open and
operating.
12. 	The Superintendent is authorized to organize the District's
personnel and its material resources in any manner necessary in
order to keep the school open and operating.
13. 	The Superintendent is authorized to require that any
District property held by District employees be immediately
delivered to the designated representatives. As used herein
"District Property" includes, but is not limited to, keys,
computers, equipment, instructional materials, registers, grade
books, lesson plan books, attendance records, seating charts,
pupil scholastic data, and any other material or data important to
the operation of the school District.
Maintenance of District Operations
At the discretion of the Superintendent or designee, employees
reporting for duty may be temporarily assigned to other
duties. . . .
Days of instruction lost due to a work stoppage may be made up
following the end of the normal school year.
1
. . . . . . . . . . . . . .
9

Activities of Employees
The District shall not impose or threaten to impose reprisals,
discriminate or threaten to discriminate, or otherwise interfere
with, restrain or coerce employees for the exercise of their rights.
Employees engaging in a work stoppage shall not prevent access
to school facilities by other employees, substitutes or students;
use or threaten physical violence or bodily injury; trespass;
distribute malicious or defamatory leaflets or materials; or
otherwise coerce or intimidate individuals in the conduct of
school business.
During an actual or threatened work stoppage, an employee shall
not retain in his/her possession any district property, including
but not limited to student attendance and grading records, lesson
plans, keys, computers, equipment and supplies.
Employees shall not use students to distribute messages that
promote or explain the position of any employee organization
that is contemplating or engaged in a work stoppage. In addition,
employees shall not use classroom or other duty time to promote
an employee organization 's position in negotiations or in a work
stoppage.
When parents and/or students raise questions related to a work
stoppage, employees shall approach the subject in accordance
with the District's policy on controversial issues (BP 6144) and
shall not allow such discussions to interfere with their regular
work responsibilities.
Salary and Benefits
Employees withholding services shall not receive salary or
unemployment benefits during the period of the work stoppage.
Any employee withholding services may be subject to the loss of
payroll deduction privileges.
The district may not pay contributions to health care benefits if
employees fail to work the minimum number of hours per month
as specified in the collective bargaining agreement, Board policy
or administrative regulation. However, the district shall offer
employees the option of paying their own coverage under
COBRA (29 USC 1161-1169)
20

If the district determines that it will withhold its contributions to
employees' life and disability insurance, employees shall be
offered an opportunity to retain these coverages by paying the
contributions themselves. (Insurance Code 10116)
Employees whose vacation leave has been authorized prior to the
work stoppage shall receive vacation pay for the authorized
period.
If an employee is on a paid sick or disability leave when the work
stoppage begins, he/she shall be entitled to continued payments as
long as he/she remains ill or disabled and is otherwise eligible
according to Board policy and collective bargaining agreements.
The Superintendent or designee may determine that credit shall
not be applied toward probationary service, salary schedule
advancement, permanent status, vacation earnings, retirement
credit or sick leave accrual during the period of time that
employees withhold services. 	[Emphasis in original.]
The parties stipulated, and I find, that prior to adoption of the AR, the following
policies were in effect, having been established by the expired Agreement:
the Board had sole discretion to declare an emergency
permitting modification of the Agreement where an event
"threatens life, property or the essential physical operation" of the
District.
Personal Necessity leave could be taken for a variety of
reasons, including but not limited to those listed in [the
Agreement]. [17]
a physician's statement could be required only for just cause,
or after three consecutive days of leave.
employees accrued ten days of sick leave per school year,
causes for discipline were set forth in [the Agreement].[18]
17 Article XI(B)(8)(d) of the Agreement lists several possible reasons for personal
necessity leave.
18 Article XIX(B) lists several possible reasons for discipline.
21

derogatory material could not be placed in an employee's
personnel file unless the employee was given an opportunity to
correct the situation, and to review the materials at a conference
in the presence of an Association representative.
procedures for discipline, including an evidentiary hearing,
were set forth in [the Agreement].[19]
provisions governing employee compensation were set forth
in [the Agreement].
employees were entitled to advance on the salary schedule
pursuant to [the Agreement].[20]
provisions governing employee health and welfare benefits
were set forth in [the Agreement] and did not authorize the
Superintendent to withhold the employer contribution toward the
cost of employee benefits for any reason.
prior to reassignment, an employee was entitled to two days
advance notice, a conference to discuss the reason for the change,
and at least one working day for the purpose of move orientation
and lesson planning.
the school year was a maximum of 185 days [unless the State
provided increased funding for lengthening the school year].
the District was required to make payroll deductions as
authorized in writing by an employee.
The parties also stipulated, and I find, the following:
[I]t is the District's position that AR 4141.6 is a regulation
implementing BP 4141.6 which by its title and by its terms
applies only in circumstances where the Superintendent
determines that the operation of the District is impeded by
concerted action by District employees (BP 4141.6
[paragraph] 2).
19 Article XIX(C) and (D) provides for notice and an evidentiary hearing prior to an
employee receiving discipline.
2020 Article XII (D) and (H) provides for employee salary "advancement", or increases,
for completing outside classes.
22

The Demand to Bargain
Shortly after the December 19 board meeting, on December 22, the District closed for
winter break and reopened on January 8, 2001. By letter to the District dated January 10,
2001, STA demanded to bargain the "impact" of BP 4141.6. By letter to STA dated
January 19, 2001, the District refused the demand, stating, inter alia: "The Board has already
taken formal action on this policy. 	Given the current climate and concerted actions of STA,
we would be adversely impacted by initiating negotiations . . . STA's January 10, 2001
demand to bargain is therefore untimely."
LEGAL ISSUES
1. Are the allegations of the amended charge and complaint time-barred?
2. 	Did the District unilaterally adopt Board Policy 4141.6 without providing STA
with notice and an opportunity to bargain?
3. 	Did the District unilaterally adopt Administrative Regulation 4141.6 without
providing STA with notice and an opportunity to bargain?
4. 	Did the District unlawfully refuse STA's demand to bargain the impact of Board
Policy 4141.6?
5. 	Did the District otherwise violate the EERA?
CONCLUSIONS OF LAW
The Amended Charge/Complaint
EERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing of the charge." The limitations period begins to run once the charging party knows, or
should have known, of the conduct underlying the charge. 	(Gavilan Joint Community College
23

District (1996) PERB Decision No. 1177.) However, a timely-filed charge may be amended to
include otherwise untimely allegations, provided they are intimately related to and arise from
the same course of conduct as the allegations in the original charge. 	(Temple City Unified
School District (1989) PERB Decision No. 782.) This "relation back" doctrine has typically
allowed an amendment alleging a new theory of violation, but not one alleging new facts.
(Regents of the University of California (Lawrence Livermore) (1997) PERB Decision
No. 1221 (UC Regents (Lawrence Livermore)).) But in Willits Unified School District (1991)
PERB Decision No. 912, the original charge alleged the employer's unilateral elimination of
its past practice of providing release time to attend PERB informal conferences, while the
amended charge alleged a somewhat different fact, i.e., a past practice of providing release
time "for problem-solving sessions relating to working conditions...." In his decision,
adopted by PERB, the administrative law judge stated:
The original charge . . . and the amended charge . . . both state the
same central allegation, i.e., that the District committed an unfair
practice when it denied released time . . . . All else is an
elaboration of factual allegation and legal theory. 	Since both the
original and amended charge are based on . . . the same central
fact, the amended charge is timely under the relation back
doctrine.
Here, there is no dispute that the original charge regarding the BP was timely filed.
The AR was written at virtually the same time as the BP, by the same author, for the same
purpose, and based on the same central fact, i.e., the District's new concerted-activities policy.
I find therefore that the AR is intimately related to the BP and is part of the District's same
course of conduct. 	Further, the amended complaint was issued well in advance of the hearing,
the District was fully prepared to defend against the additional allegations, and they were fully
litigated. 	The District suffered no prejudice. 	Accordingly, I conclude that the allegations
24

regarding AR 4141.6 in the amended charge and complaint may relate back to the date of filing
the original charge and are not time-barred.21
Adoption of Board Policy 4141.6
In determining whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. 	(Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if
certain criteria are met: 	(1) the employer implemented a change in policy concerning a matter
within the scope of representation; and (2) the change was implemented before the employer
notified the exclusive representative and gave it an opportunity to request negotiations.
(Walnut Valley Unified School District (1981) PERB Decision No. 160; 	Grant Joint Union
High School District (1982) PERB Decision No. 196.)
In the instant case, it is undisputed that Article XXII of the Agreement, the no-strike
clause, did not survive the Agreement's expiration nor was it discussed during negotiations
thereafter. Thus, in December 2000, as there were no prohibitions or limitations on
employees' concerted activities, the BP constituted a change in policy.
21 There is nothing in the "relation-back" doctrine which requires the charging party to
show it did not know, and could not have known, the facts supporting the amendment prior to
its filing. Neither Burbank Unified School District (1986) PERB Decision No. 589, nor
Monrovia Unified School District (1984) PERB Decision No. 460, both cited by the District,
hold otherwise; the amendments sought in both cases were denied because they did not
sufficiently relate to the original charge, not because the union had prior knowledge of the
alleged violation. Thus, I need not reach the issues of whether STA should have known the
AR was adopted at the same time as the BP, or whether STA may rely on a statement made in
the context of a settlement conference as the basis for its amended charge.
25

The issue therefore is one of notice and opportunity to bargain. 	The District contends
that STA had sufficient notice of the board's intention to adopt the BP, but waived its right to
bargain by failing to make a demand; STA disagrees.
An employer may take unilateral action if it is demonstrated that the exclusive
representative waived its right to negotiate. 	But any waiver of the right to bargain will not be
lightly inferred. 	(Oakland Unified School District (1982) PERB Decision No. 236.) To show
that an exclusive representative has waived its right to negotiate, there must be evidence of
either "clear and unmistakable" language (Amador Valley Joint Union High School District
(1978) PERB Decision No. 74) or of "demonstrable behavior waiving a reasonable
opportunity to bargain over a decision not already firmly made by the employer." (San Mateo
Community College District (1979) PERB Decision No. 94.) A waiver can be shown by
inaction on the part of the exclusive representative (Los Angeles Community College District
(1982) PERB Decision No. 252), but the evidence must indicate an intentional relinquishment
of the union's right to bargain. 	(San Francisco Community College District (1979) PERB
Decision No. 105.)
STA contends that: (1) two weeks is not a reasonable time in which to make a demand
to bargain; (2) the BP, as well as the AR, promised the opportunity to bargain prior to
implementation; (3) no bargaining demand had ever been made in the parties' 20-year history;
and (4) STA's vigorous objections to the BP and the AR at the two December board meetings
should be seen as a bargaining demand. However, cases cited in support of STA's position are
distinguishable, to wit:
In Arvin Union School District (1983) PERB Decision No. 300, the school board
adopted a new discipline policy at its meeting in August 1980. The union was not notified of
26

the meeting or its agenda, did not attend the meeting, and did not receive a copy of the new
policy until the next school year began in September. However, the union took no action at
that time beyond asking its attorney for a legal opinion and informally discussing the issue
with a district representative. In early January 2001, shortly after meeting with the district
regarding the first unit employee disciplined under the new policy, the union objected to the
policy, demanded bargaining, and filed an unfair practice charge. 	PERB held that the union
had not waived its right to bargain prior to January 2001, because there was no notice or
opportunity to bargain prior to the district's adoption of the policy. By contrast, in the instant
case, STA President Beerle had received a copy of the BP prior to December 5, knew that it
would be read at that meeting, and attended the meeting. And although STA witnesses claim
that they were uncertain how many readings the board might hold, STA certainly knew prior to
the December 19 meeting that adoption at that meeting was recommended. Beerle and
Sanderson discussed the matter and made a reasoned decision on behalf of STA not to seek
bargaining prior to adoption, but to wait and seek bargaining prior to implementation. Thus, I
find that STA had sufficient notice of the District's intended action, but engaged in
"demonstrable behavior" waiving its right to bargain.22
STA also cites Goleta Union School District (1984) PERB Decision No. 391, wherein
the school district made a unilateral decision to employ outside consultants to perform
bargaining unit work. 	The union did not demand bargaining because it believed, in error, that
it was protected by a clause in the parties' contract prohibiting subcontracting. Instead, the
union requested a meeting with the district, warned that its action was a breach of contract, and
22 STA's argument that two weeks' notice is insufficient time to demand bargaining is
rendered moot by its decision not to demand bargaining, thus I make no finding thereon.
27

demanded a return to the status quo. PERB found that by this conduct, the union had made a
bargaining demand. Here, by contrast, although STA representatives spoke against the BP and
the AR at the December 5 and 19 board meetings, it did not accuse the District of breaching
the Agreement, nor did it demand that the BP or AR not be adopted or that they be rescinded.
Further, in light of STA's avowed decision not to demand bargaining in December, it is not
reasonable for STA to contend, in retrospect, that it actually made such a demand.
Accordingly, I conclude that the District provided STA with notice and opportunity to
bargain prior to its adoption of the BP, that STA waived its right to bargain, and that the
District's adoption of the BP did not violate EERA.
Adoption of Administrative Regulation 4141.6
In Barstow Unified School District (1982) PERB Decision No. 215 (Barstow), the
employer, in anticipation of an employee slowdown, unilaterally passed a resolution changing
its leave policy. In finding a violation, PERB stated:
Regardless of the unprotected character of employee conduct, an
employer may not unilaterally change matters within the scope of
representation in violation of the duty to negotiate in good faith.
Here, it is clear from the expired Agreements well as the parties' stipulations regarding
past practices, that implementation of the BP, through the AR, would have far-reaching effects
and a general adverse impact on unit employees regarding numerous matters within the scope
of representation,23 including personal leave, sick leave, causes for discipline, disciplinary
procedures, contents of employee personnel files, compensation, salary advancement, health
23 	A comparison of the AR to the Agreement and stipulations shows clearly that impact
is "reasonably foreseeable" and not merely presumed; thus I reject the District's argument in
this regard. 	(UC Regents (Lawrence Livermore).)
28

and retirement benefits, tenure, work year, and union dues deductions.24
It is undisputed that STA received a copy of the AR prior to the December 19 board
meeting, and knew it corresponded to the BP which was recommended for adoption at that
meeting. But the AR was not adopted at the December 19 meeting; rather, it was held for
board review. STA was uncertain as to whether the board itself was required to adopt the AR
or what further procedures might be required before it became final. 	However, STA did not
seek clarification from the District, believing that the AR would not be adopted without the
District first considering STA's position. Rather, as it had done with the BP, STA initially
made a decision not to demand bargaining regarding the AR.
Shortly after the winter break, on January 10, 2001, STA changed its position and
demanded to bargain the "impact" of the BP. As the AR defines the impact of the BP on unit
employees, I find that STA's demand was, in effect, a demand to bargain the AR. Johnson
claims that she adopted the AR on December 19; if this were true, it would predate STA's
demand to bargain. 	However, adoption of the AR was not communicated to STA until
January 26, 2001, at the earliest, nor is there evidence that it was communicated to any other
person or entity, including the board, prior to that date. Thus, I cannot credit Johnson's private
conclusion as to the adoption date of the AR. Rather, I find that the AR was not adopted at any
time prior to Schaffer's transmittal of January 26, 2001, which postdates STA's bargaining
demand as well as the District's refusal of that demand. 	I therefore find that the District
unilaterally adopted the AR without honoring STA's prior demand to bargain.
24 There is no dispute that these terms and conditions survived expiration of the
Agreement.
29

Accordingly, I conclude that the District failed its obligation to bargain in good faith
with STA regarding the adoption of AR 4141.6, in violation of EERA section 3543.5(c). By
this conduct, the District also interfered with the rights of unit employees to be represented by
STA in violation of EERA section 3543.5(a), and denied STA its right to represent unit
employees in violation of EERA section 3543.5(b).
Refusal to Bargain the Impact of BP 4141.6
An employer must bargain the reasonably foreseeable impact on unit employees of
matters within the scope of representation contained in a change in policy, even when there is
no obligation to bargain the decision to change the policy. (UC Regents (Lawrence
Livermore): Mt---------------,. Diablo Unified School District (1983) PERB Decision No. 373.)
As discussed above, the AR, which implements the BP, would affect several matters
within the scope of representation including, inter alia, personal leave, sick leave, causes for
discipline, disciplinary procedures, contents of employee personnel files, compensation, salary
advancement, health and retirement benefits, tenure, and work year. And as noted above, on
January 10, 2001, STA demanded to bargain the impact of the BP and on January 19, 2001, the
District refused its demand.
Accordingly, I conclude that the District failed its obligation to bargain in good faith
with STA regarding the impact of BP 4141.6, as set forth in AR 4141.6, in violation of EERA
section 3543.5(c). By this conduct, the District also interfered with the rights of unit
employees to be represented by STA in violation of EERA section 3543.5(a) and denied STA
its right to represent unit employees in violation of EERA section 3543.5(b).
30

Unalleged Violations
There is another issue which must be considered here, i.e., whether the BP or the AR
themselves might unlawfully interfere with employees' statutory rights to engage in concerted
activities and their right have union dues deducted from their paychecks. 	I recognize that this
issue was not alleged as an independent violation in either the charge or the complaint;
however, STA raised it in its opening statement at the hearing and in its post-hearing briefs.
The District made no response, either in its opening statement, its original brief, or its reply
brief.
PERB has held that an Unalleged violation may be found by the trial judge provided it
is intimately related to the subject matter of the complaint, part of the respondent's same
course of conduct, and was fully litigated at the hearing, with respondent having the
opportunity to examine and cross-examine witnesses. 	(Tahoe-Truckee Unified School District
(1988) PERB Decision No. 668.) At this hearing, Superintendent Johnson was asked to
explain various phrases of the BP and the AR, and there was nothing precluding the District
from eliciting more testimony from her or from other witnesses in this regard. 	Thus, I find that
the District had notice of the issue, that the language of the BP and the AR was fully litigated,
and that the issue may be entertained.
EERA section 3543(a) guarantees to employees the right to "form, join, and participate
in the activities of employee organizations of their own choosing." And section 3543.5(a)
declares it unlawful for a public school employer to "[i]mpose or threaten to impose reprisals
on employees,... or otherwise to interfere with, restrain, or coerce employees because of their
exercise of rights guaranteed by this chapter." To demonstrate an independent violation of
31

EERA section 3543.5(a), the charging party must show that: 	(1) the employee exercised rights
under EERA; (2) the employer had knowledge of the exercise of those rights; and (3) the
employer imposed or threatened to impose reprisals, discriminated or threatened to
discriminate, or otherwise interfered with, restrained or coerced the employees because of the
exercise of those rights. 	(Novato Unified School District (1982) PERB Decision No. 210;
Carlsbad Unified School District (1979) PERB Decision No. 89.)
The standard for showing that an employer has interfered with the rights of employees
under EERA has been described in State of California (Department of Developmental
Services) (1983) PERB Decision No. 344-S, at p. 12, as follows:
[I]n order to establish a prima facie case of unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. Los Angeles Community College District
(Kimmett) (10/19/79) PERB Decision No. 106. 	Carlsbad Unified
School District (1/30/79) PERB Decision No. 89
It is not required that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. Nor is it required to establish that the employee actually felt
threatened or intimidated or was in fact discouraged from participating in protected activity.
(Clovis Unified School District (1984) PERB Decision No. 389.)
In Los Angeles County Federation of Labor v. County of Los Angeles (1984) 160
Cal.App.3d 905 [207 Cal.Rptr. 1] (LA County Federation).25 the court dealt with a county
charter amendment which, in effect, punished unions and employees for striking. 	Disciplinary
provisions of the amendment would be applied to "any employee who instigates, participates in
or affords leadership to a strike," or who "engage[s] in any concerted action to withhold . . .
25 This case was filed and processed under the Meyers-Milias-Brown Act.
32

services" from the county. The court found that the words "instigates," "participates," and
"engage[s]," which were undefined in the amendment, to be overbroad and unduly chilling, as
they might restrain employees from talking to each other about a potential desire to strike, or
from staying at home to avoid crossing a picket line. Thus, notwithstanding the severability
clause, the court held that the objectionable portions permeated the amendment to such an
extent that the entire amendment had to be stricken.
Similarly, BP 4141.6 prohibits not only strikes, walkouts and slowdowns, but "other
such strike-related type activities" as well. Nowhere in the BP is this phrase defined, and
Johnson's opinion as to its meaning is no guarantee against a broader interpretation by the
District at some future time. 	Thus, unit employees could reasonably be restrained from talking
among themselves or to STA about the possibility or need for a strike, and from engaging in
rallies, leafletting, peaceful picketing, and the Work-to-Rule program, believing them to be
prohibited. I therefore find that this language is overbroad and would tend to have a chilling
effect on unit employees, restraining and coercing them from engaging in activities guaranteed
in EERA section 3543(a). (LA County Federation; see also, Lafayette Park Hotel (1998) 326
NLRB 824 [159 LRRM 1243] and Aroostook County Regional Ophthalmology Center (1995)
317 NLRB 218 [150 LRRM 1310], decisions of the National Labor Relations Board striking
down overbroad rules limiting protected activities.)
The BP also prohibits slowdowns of "discretionary" as well as of "mandatory" duties.
In Los Angeles Unified School District (1990) PERB Decision No. 803, citing Palos Verdes
Peninsula Unified School District (1982) PERB Decision No. 195, and Modesto City Schools
(1983) PERB Decision No. 291, PERB reiterated the distinction between mandatory,
discretionary, and purely voluntary duties, and held that only a slowdown or cessation of
33

purely voluntary duties is protected against punishment. Thus, I do not find the language of
the BP unlawful in this regard.
As to the AR, it would, inter alia, deprive employees of their "payroll deduction
privileges," a right guaranteed by EERA section 3543.1. In Rio Hondo Community College
District (1983) PERB Decision No. 292 (Rio Hondo). PERB held that eliminating payroll dues
deductions is unlawful per se, even by emergency no-strike resolution, and stated, at p. 10:
[I]f in the name of preparedness a district proceeds to violate
legally protected rights of employees and employee organizations,
then calm and reason have given way to labor law violations.
Further, although the AR has not yet been implemented, PERB has held that "even without
implementation, the threat to suspend the statutorily protected employee organization rights in
an emergency resolution constitutes a violation of subsection 3543.5(a)." 	(Ibid., citing
Barstow.)
Accordingly, I conclude that on their face, the prohibition of "other such strike-related
type activities" in BP 4141.6 and the threatened "loss of payroll deduction privileges" in AR
4141.6 interfere with, restrain, and coerce employees in the exercise of their statutory rights to
engage in activities in support of STA and to dues deductions, in violation of EERA section
3543.5(a).
REMEDY
EERA section 3541.5(c) gives PERB:
. . . the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action,... as will effectuate the policies of this
chapter.
Here, the District refused to meet and negotiate in good faith with STA regarding
matters within the scope of representation, i.e., the adoption of Administration Regulation
34

4141.6 and the impact of Board Policy 4141.6. 	The District also interfered with, restrained,
and coerced employees in the exercise of their statutory rights to form, join and participate in
the activities of an employee organization for the purpose of representation, by its
promulgation of an overly broad policy prohibiting concerted activities and by its threat to
cease payroll dues deductions. The appropriate remedy for the refusal to negotiate is an order
that the District rescind the AR, and meet and negotiate in good faith with STA regarding the
impact of the BP. (Barstow.) The appropriate remedy for interference, restraint and coercion
is an order to rescind the offending language in Board Policy 4141.6 and in Administrative
Regulation 4141.6. 	(LA County Federation: Rio Hondo.)26
It is also appropriate that the District be directed to post a notice incorporating the
terms of the order. 	Posting of such a notice, signed by an authorized agent of the District, will
provide employees with notice that the District has acted in an unlawful manner, is being
required to cease and desist from this activity and to rescind the unlawful BP and AR, and will
comply with the order. 	It effectuates the purposes of the EERA that employees be informed of
the resolution of this controversy and the District's readiness to comply with the ordered
remedy. 	(Placerville Union School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, those portions of the charge and complaint alleging the Santee Unified School
District's (District) unilateral adoption of Board Policy 4141.6 (BP 4141.6) is dismissed.
However, those portions of the charge and complaint alleging the District's unilateral adoption
I do not find, however, that the phrase "other such strike-related type activities" so
permeates the BP as to warrant striking the entire policy.
3
26
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of Administrative Regulation 4141.6 (AR 4141.6) and its refusal to bargain the impact of
BP 4141.6 in violation of the Educational Employment Relations Act (EERA), Government
Code section 3543.5(a), (b) and (c) are sustained. In addition, Unalleged violations of EERA
section 3543.5(a) are found in certain language of BP 4141.6 and AR 4141.6. Pursuant to
EERA section 3541.5(c), it is hereby ORDERED that the District, its governing board and its
representatives, shall:
A. 	CEASE AND DESIST FROM:
1. 	Maintaining AR 4141.6, which we adopted unilaterally without
providing the Santee Teachers Association (STA) prior notice or opportunity to bargain;
2. 	Failing and refusing to meet and negotiate in good faith with STA
regarding the impact of BP 4141.6;
3. 	Denying to STA rights guaranteed by EERA, including the right to
represent bargaining unit members;
4. 	Interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by EERA, including the right to be represented by, and engage in activities in
support of, their chosen representative;
5. 	Interfering with, restraining, and coercing employees in the exercise of
their statutory rights by prohibiting them from engaging in "strike-related type activity" in
BP 4141.6, and by threatening them with "loss of payroll deduction privileges" in AR 4141.6.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Within ten (10) working days of the service of a final decision in this
matter, rescind AR 4141.6;
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2. 	Upon request, meet and negotiate with STA regarding the impact of
BP 4141.6, until the parties reach agreement or exhaust the statutory impasse procedures;
3. 	Within ten (10) working days of the service of a final decision in this
matter, rescind the language "other such strike-related type of activity by employees" from
BP 4141.6;
4. 	Within ten (10) working days of the service of a final decision in this
matter, post at all work locations where notices to certificated employees customarily are
posted, copies of the Notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that the District will comply with the terms of this
Order. 	Such posting shall be maintained for a period of thirty (30) consecutive workdays.
Reasonable steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced
or covered with any other material;
5. Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the San Francisco Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with
PERB itself within 20 days of service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Cal. Code Regs., tit. 8, secs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of California Code of Regulations, title 8,
section 32135(d), provided the filing party also places the original, together with the required
number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. 	Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
Ann L. Weinman
Administrative Law Judge
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