Oakland Unified School District (PERB 2875E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OAKLAND EDUCATION ASSOCIATION,
Charging Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SF-CE-3481-E
PERB Decision No. 2875
October 16, 2023
Appearances: California Teachers Association by Mandy Hu, Staff Attorney, for
Oakland Education Association; Fagen, Friedman & Fulfrost by Roy A. Combs and
Mary J. Breffle, Attorneys, for Oakland Unified School District.
Before Krantz, Paulson, and Nazarian, Members.
DECISION1
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB) on exceptions by Oakland Unified School District to a proposed decision of an
administrative law judge (ALJ). The complaint involves two primary claims that the
District violated its bargaining obligations under the Educational Employment
Relations Act (EERA).2 The first claim relates to a District policy prohibiting it from
implementing a school closure, merger, or consolidation without a planning period
1 PERB Regulation 32320, subdivision (d) authorizes us to designate a
decision, or any part thereof, as non-precedential. (PERB Regulations are codified at
Cal. Code Regs., tit. 8, § 31001 et seq.) Applying the criteria the regulation
enumerates, we designate as non-precedential Part IV of the Discussion, the remedial
order, and the appendix. All other sections are precedential.
2 EERA is codified at Government Code section 3540 et seq. All undesignated
statutory references are to the Government Code.

2
lasting at least nine months following a vote to approve the action, unless
stakeholders at the impacted school(s) propose a faster timeline. Specifically, the
complaint alleges that the District changed this policy in January 2022 without
affording Oakland Education Association (OEA) adequate notice and opportunity to
bargain in good faith over the decision and/or the effects thereof. The second claim,
which relates to a February 2022 District decision to merge or close certain schools
(including partial closure by truncating certain grades), alleges that the District
implemented the decision without affording OEA adequate notice and opportunity to
engage in good faith effects negotiations.3
Although the parties and the ALJ often blended their discussion of the
complaint’s two primary claims, we read the proposed decision as dismissing the first
claim while sustaining the second. The ALJ’s proposed remedy would direct the
District, among other steps, to comply with its bargaining duties and provide
make-whole relief to the extent OEA establishes compensable harms in compliance
proceedings. In its exceptions, the District admits it had an obligation to bargain over
the effects of closure decisions, but it argues that the ALJ erred by: (1) finding OEA
established a prima facie case that the District violated that duty; (2) not dismissing
the complaint based on waiver or laches; and (3) issuing a make-whole remedy even
absent any evidence of compensable harm. OEA filed no exceptions and urges
several rationales supporting the ALJ’s overall conclusions and remedy.
Having reviewed the record de novo, we depart from the proposed decision by
partially sustaining the complaint’s first claim. While we affirm the ALJ’s central holding
3 Except where context dictates otherwise, we treat closures as a category that
also includes, mergers, consolidations, and grade truncations.

3
that a decision to close schools is a non-mandatory subject of bargaining, we hold that
an employer must bargain over the amount of notice employees receive, either in
effects and implementation bargaining over a particular school closure decision or as
a mandatory subject if the issue arises as a proposed new or changed policy of
general application.4
FACTUAL AND PROCEDURAL BACKGROUND
OEA represents the District’s certificated employees. While the conduct OEA
alleges to be unlawful did not commence until the winter of the 2021-2022 school
year, the District adopted its nine-months’ notice policy on school closures following
post-impasse negotiations in 2019. We therefore begin by summarizing those
negotiations.
I. 	The Parties’ 2017-2019 Contract Negotiations
On June 30, 2017, the parties’ 2014-2017 collective bargaining agreement
(CBA) expired. The CBA included Article 12.9, entitled “Transfer/Consolidation Due to
School Closure/Replacement,” which provided employees with certain rights in the
event of a school closure. Furthermore, Article 12.8 provided certain employee rights
in consolidations, which can result from an enrollment decline or from a decision to
consolidate schools, among other causes.
In June 2018, the parties reached an initial impasse in their negotiations for a
successor to the 2014-2017 CBA. In fall 2018, the parties participated in post-impasse
4 “Non-mandatory” describes subjects about which parties need not bargain,
although they may choose to do so. (Cerritos Community College District (2022)
PERB Decision No. 2819, p. 19 (Cerritos).) These topics can equally be referred to as
being “permissive,” or as falling outside the “scope of bargaining” or “scope of
representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,”
that is imprecise because it could also mean illegal bargaining subjects.

4
mediation, but they still could not reach an agreement. On January 31 and February 1,
2019, the parties participated in post-impasse factfinding. On February 15, 2019, the
factfinding panel issued a report.
Meanwhile, in December 2018, the District publicly stated that it would have to
consider school closures to save money to fund employee wage increases. OEA
challenged that contention by e-mail dated December 21, 2018, asserting that closing
schools is bad public policy and causes lost revenue from lower enrollment, which
would offset any savings. In the same e-mail, OEA sought to bargain over what it called
“the District’s intention to close and/or consolidate public schools and exacerbate [its]
financial duress.”
In January 2019, the District’s Board of Education voted to close one District
school after the 2018-2019 school year. On January 28, 2019, OEA reiterated its
request to bargain over school closure decisions. The District responded by asserting
that it had no duty to bargain over closure decisions but was willing to bargain over the
effects thereof. While the District offered February 5 or 6 as potential bargaining dates,
the parties were at the time working with the factfinding panel on a report, and
accordingly negotiations did not occur until later that month, during a strike OEA held
from February 21 through March 1, 2019. During the strike, the parties held bargaining
sessions as well as meetings that included elected officials and other community
stakeholders. Both the bargaining sessions and the stakeholder meetings contributed
to the parties’ efforts to resolve the strike and reach a successor CBA.
On February 26, 2019, OEA proposed a moratorium on school closures. In
response, the District reiterated that it would not negotiate over school closure
decisions. Board of Education President Aimee Eng, who was not a member of the

5
District’s bargaining team and had no formal bargaining authority, attended multiple
meetings where she helped develop a proposed framework on procedures for school
closures. The District’s bargaining team, however, rejected including any such
proposal in the CBA. Eng was present when this was conveyed, and she committed to
sponsor a Board of Education resolution establishing procedures the District would
follow before deciding to close a school. Eng worked with OEA bargaining team
members to draft a resolution for Eng to bring before the Board of Education. Eng told
OEA that because she was merely one Board of Education member, there were limits
to what she could promise. Eng did not purport to represent any other Board of
Education members when she engaged in discussions with OEA. At the District’s
request, OEA confirmed that the CBA would not include new procedures on school
closure decisions.
On March 1, 2019, the parties reached a tentative agreement for a successor
CBA, and on March 3, 2019, OEA members ratified the agreement. The parties
ultimately finalized a new CBA effective from July 1, 2018, through June 30, 2021. The
new CBA did not change Articles 12.8 and 12.9, though it added provisions elsewhere
to assist teachers forced to move to a new site or within the same site.
On March 20, 2019, the Board of Education approved the resolution Eng
proposed. Specifically, it passed a resolution entitled “Improving Community
Engagement for Proposed School Changes” (Resolution 1819-0178), which included
the following new procedures related to school closures:
“BE IT FURTHER RESOLVED, that no closure, merger, or
consolidation would occur without inclusion of a planning
period (no less than a school year or 9 months) between
the vote to approve the action and its implementation,
unless a recommendation has been brought forward by a

6
team representing multiple stakeholders from the impacted
school communities to accelerate the implementation; and
“BE IT FURTHER RESOLVED, that prior to the Board’s
final decision, staff shall present to the Board a preliminary
financial analysis of foreseeable impacts of the proposed
changes on the district’s budget, including student and staff
projected attrition or growth, as well as projected costs
associated with services, staffing and any facility
improvement costs deemed necessary to implement the
proposed changes; and
[¶] . . . [¶]
“BE IT FURTHER RESOLVED, to ensure the successful
transition of students who are displaced by school closures,
students will have access to priority enrollment, individual
student and family ‘case management’ will be provided to
support the transition to welcoming schools, and student
progress will be monitored.”
In September 2019, the Board of Education voted to merge four schools into
two after the 2019-2020 school year. In carrying out these mergers, the District
complied with the nine-month requirement set forth in Resolution 1819-0178.
II. 	The Parties’ Negotiations to Extend the 2018-2021 CBA
The parties negotiated over a potential extension to their 2018-2021 CBA, but
they failed to reach agreement before June 30, 2021, at which point the CBA expired.
In November 2021, the parties reached a tentative agreement to modify and extend
the CBA until October 31, 2022. While OEA promptly ratified this tentative agreement
in November 2021, the Board of Education did not ratify it until March 23, 2022.
III. 	The District Decisions Giving Rise to This Dispute
On December 15, 2021, two Board of Education members introduced a
proposed resolution directing the District’s Superintendent “to present the Board at the

7
soonest possible opportunity (e.g., a Special Board meeting) a list of school
consolidations sufficient to achieve at least an estimated $8 million in ongoing
savings.” On January 12, 2022, the Board of Education adopted a final version of this
resolution.5 Unlike the earlier draft, the final resolution explicitly waived the nine-month
requirement and other provisions of Resolution 1819-0178. Specifically, the final
version directed the Superintendent to present the Board of Education with a list of
school consolidations that could be reasonably implemented by Fall 2022 and/or Fall
2023, “notwithstanding” the requirements of Resolution No. 1819-0178.
On January 31, the Superintendent presented the Board of Education with a
proposed resolution listing schools slated for closure, merger, or grade truncation
following different school years, including six schools to be impacted at the close of
the 2021-2022 school year (i.e., June 2022), timing that was possible only because
the District waived the nine-month requirement in Resolution 1819-0178.
On February 3, OEA sent the District a letter seeking to bargain over the
proposed school closures and the District’s decision to waive Resolution 1819-0178.
On February 8, the District responded as follows:
“[The District] disagrees with OEA’s position that the
decision to close schools is subject to negotiations with
OEA. Moreover, the impact of school closures has been
contemplated in the negotiation of successor contract
agreements and therefore the impact of school closures on
OEA members is addressed in our collective bargaining
agreement.”
About an hour after the District’s response, OEA e-mailed the District that it was
“clarifying and amending” its February 3 letter by adding a request to bargain over “the
5 All further dates refer to 2022 unless otherwise noted.

8
impacts and effects of the decision to close or consolidate schools.” Approximately a
half-hour later, the Board of Education held a meeting and voted to implement an
amended list of school closures, consolidations, and grade truncations, including
some scheduled to take effect in June, after the 2021-2022 school year.
Within days of the Board of Education’s vote on February 8, the District began
implementing the closures scheduled for June, including by notifying impacted staff
that they would be transferred and working with impacted families to choose new
schools. For families, the District’s first communication was on February 9, when
District Superintendent Kyla Johnson-Trammell notified the community of the
upcoming closures. Two days later, on February 11, Johnson-Trammell sent families a
further message, which “mapped out a timeline of next steps” and stated that the
District’s goal was to notify families of new school placements for the next school year
by March 10—“the same notification date as all other families who are applying
through the enrollment process to new schools for next year.”
One of the schools slated for grade truncation after the 2021-2022 school year
was La Escuelita; the Board of Education decided to truncate grades 6-8 while leaving
the lower grades. On February 11, the principal at La Escuelita held a meeting with La
Escuelita middle school teachers, to discuss how teachers “could help students and
parents navigate the whole enrollment process.” Parents of students in the truncated
grades at La Escuelita were given an “Opportunity Ticket” to allow their children to be
transferred to schools of their choice. The teachers then “took on helping parents do
[the enrollment process].” Specifically, a District teacher at La Escuelita, Jennifer
Brouhard, helped students with the enrollment process. On February 18, the District’s

9
human resource department wrote to Brouhard about the recent truncation of La
Escuelita middle grades, offering to help Brouhard find another job.
After OEA filed this charge on February 15, the District e-mailed OEA on
February 28. The District’s e-mail stated that the District viewed OEA’s February 8
clarification as “substantially the same as the February 3, 2022 demand.” The e-mail
further stated that while the District continued to believe there were no bargainable
effects of its decisions, OEA should specify which effects it sought to bargain, and the
District would review OEA’s response.6
PERB’s Office of the General Counsel issued the complaint in this matter on
March 4, and OEA filed a request for injunctive relief on March 22. We denied this
request but expedited the matter at all levels. The ALJ held a formal hearing on
May 20, August 9-10, and September 7. The parties submitted post-hearing briefs on
November 11, and the ALJ issued the proposed decision on January 30, 2023.
DISCUSSION
In resolving exceptions, we apply a de novo standard of review. (City of San
Ramon (2018) PERB Decision No. 2571-M, p. 5.) We have discretion to reverse a
proposed decision or administrative determination even on issues as to which neither
party appealed. (State Employees Trades Council United (Ventura, et al.) (2009)
PERB Decision No. 2069-H, pp. 6-7; Rio Hondo Community College District (1979)
PERB Decision No. 87, p. 3, fn. 3.) Here, though the parties focus mainly on the
6 The ALJ found that the parties’ interactions after OEA filed this charge
contributed to, or at least did not negate, the District’s violations. While we find no cause
to disturb those findings, there is no need to re-narrate the remainder of these events.
As discussed post, the District had already violated EERA when OEA filed this charge,
as by then it was too late for good faith negotiations over implementation and effects,
including over alternatives and the amount of notice teachers would receive.

10
complaint’s second claim, we exercise our discretion to also consider the first claim,
involving the nine-month requirement in Resolution 1819-0178. We exercise our
discretion in this manner because the two claims are integrally related, the nine-month
requirement was a primary focus of OEA’s efforts to bargain in 2022, and it lies at the
center of this case. Furthermore, the proposed decision contained mistakes of law
regarding the nine-month requirement, and the labor-management community would
gain clarity from a precedential decision addressing it.
I. 	OEA’s Prima Facie Case
If an employer wishes to change terms or conditions of employment for
represented employees, it must provide the employees’ union with adequate notice
and opportunity to bargain before making its decision, and the employer must then
bargain in good faith upon request. (The Accelerated Schools (2023) PERB Decision
No. 2855, p. 13 (Accelerated Schools).) Even if the decision falls outside the scope of
bargaining, the employer must provide adequate notice and opportunity to bargain in
good faith over the implementation and effects of that decision, to the extent such
implementation and effects are reasonably likely to impact represented employees.
(International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment
Relations Bd. (2011) 51 Cal.4th 259, 265 & 276 (Richmond Fire Fighters); County of
Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24 (Santa Clara I); County
of Santa Clara (2019) PERB Decision No. 2680-M, p. 12 (Santa Clara II).)
For the sake of brevity, we use the word “effects” as shorthand for a broad
category that comprises both the effects and implementation of a decision on a
non-mandatory bargaining subject. (Richmond Firefighters, supra, 51 Cal.4th at
pp. 265, 276; City of Glendale (2020) PERB Decision No. 2694-M, p. 54, fn. 12;

11
Santa Clara II, supra, PERB Decision No. 2680-M, p. 12; City of Palo Alto (2017)
PERB Decision No. 2388a-M, p. 40; Santa Clara I, supra, PERB Decision No. 2321-M,
p. 25, fn. 16; Salinas Valley Memorial Healthcare System (2012) PERB Decision
No. 2298-M, pp. 6, 12, 14, 16-17, 20 & 22 (Salinas).) Negotiations over
implementation typically include proposed alternatives. (Accelerated Schools, supra,
PERB Decision No. 2855, p. 14, fn. 8; Oxnard Union High School District (2022)
PERB Decision No. 2803, p. 52 (Oxnard); County of Santa Clara (2021) PERB
Decision No. 2799-M, p. 27 (Santa Clara III).) For instance, even though an employer
has no duty to bargain over a decision to lay off employees, the California Supreme
Court has noted the scope of required effects bargaining includes “the timing of layoffs
and the number and identity of the employees affected.” (Richmond Firefighters,
supra, 51 Cal.4th at pp. 265, 276.) Thus, one purpose of effects bargaining is to permit
the exclusive representative an opportunity to persuade the employer to consider
alternatives that may diminish the impact of the decision on employees. (Accelerated
Schools, supra, p. 14, fn. 8; Oxnard, supra, p. 52; Santa Clara III, supra, p. 27.)
Effects bargaining violations are equally harmful as decision bargaining
violations, as each disrupts and destabilizes employer-employee relations by creating
an imbalance in the power between management and employee organizations.
(Accelerated Schools, supra, PERB Decision No. 2855, p. 17; Santa Clara I, supra,
PERB Decision No. 2321-M, pp. 23-24.) In other words, the effects bargaining
obligation is not an inferior duty. (Accelerated Schools, supra, p. 17; Santa Clara I,
supra, p. 24; Santa Clara II, supra, PERB Decision No. 2680-M, p. 13.)

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A. 	The Nature and Scope of the District’s Bargaining Duty
The ALJ, citing Bellflower Unified School District (2014) PERB Decision
No. 2385, p. 6, correctly explained that an employer need not bargain over school
closure decisions but normally must bargain over the effects such a decision has on
represented employees. However, further analysis is required regarding the District’s
change to the nine-month requirement in Resolution 1819-0178.7
The proposed decision correctly stated that a union can prove an employer
changed or deviated from the status quo by showing: (1) deviation from a written
agreement or written policy; (2) change in established past practice; or (3) a newly
created policy or application or enforcement of existing policy in a new way. (Oxnard,
supra, PERB Decision No. 2803, p. 31.) The proposed decision also correctly found
that Resolution 1819-0178 was not a bilateral agreement. Although OEA’s interactions
with the District on this issue bled into collective bargaining, the parties reached a final
settlement of their contract negotiations with no more than a promise that the Board of
Education would consider the policy that the parties had worked on jointly and which
eventually became Resolution 1819-0178. Thus, even though the parties negotiated
over the resolution’s language, its eventual passage was not promised when the
parties reached a contract settlement, and its eventual passage therefore does not
share critical characteristics of a bilateral agreement.
However, in evaluating whether OEA established a change in the status quo,
the ALJ mistakenly relied on a standard for unwritten past practices. Citing Pittsburg
7 Although Resolution 1819-0178 provides an exception to the nine-month
requirement if stakeholders at the impacted school(s) propose a faster timeline, the
District does not claim that exception applied here.

13
Unified School District (2022) PERB Decision No. 2833, p. 12 (Pittsburg), the ALJ
stated that a past practice can only establish the status quo if it was “regular and
consistent” or “historic and accepted,” and the ALJ therefore found that Resolution
1819-0178 was not in effect long enough to establish a status quo. This was an error
not only because the resolution was in effect almost three years, but more
fundamentally because Resolution 1819-0178 reflected a written past practice. The
“regular and consistent” or “historic and accepted” standards apply to unwritten past
practices; they do not apply if there is a written document reflecting the past and/or
new policy. (Pittsburg, supra, pp. 10-12 & fn. 6.) Thus, because Resolution 1819-0178
and the resolution changing it were written policies, the District changed a written
policy, implemented a new written policy, and/or enforced an existing policy in a new
way. (See, e.g., Alameda County Management Employees Assn. v. Superior Court
(2011) 195 Cal.App.4th 325, 345 [employer’s duty to bargain over change in layoff
policy does not turn on whether policy was contained in a collective bargaining
agreement].)
Written policies and written agreements differ, however. Most notably, if a
covered topic falls outside the scope of representation, then it matters whether the
status quo is established in a policy or an agreement. We explain.
While a non-mandatory topic does not become mandatory merely because a
bilateral agreement has a provision on that topic (Salinas, supra, PERB Decision
No. 2298-M, p. 15), a mutually ratified agreement is binding, and repudiating such an
agreement during its term can establish a per se violation or bad faith under the
totality of the circumstances (EERA, § 3540.1, subd. (h); Oxnard, supra, PERB
Decision No. 2803, pp. 46-47; Region 2 Court Interpreter Employment Relations

14
Committee & California Superior Courts of Region 2 (2020) PERB Decision
No. 2701-I, p. 42; County of Tulare (2015) PERB Decision No. 2414-M, pp. 29-30
(Tulare); Standard School District (2005) PERB Decision No. 1775, adopting proposed
decision at p. 16).8 Accordingly, if a CBA provision covers a non-mandatory bargaining
subject, the employer typically can decide to repudiate the provision only when the
contract expires, whereas an employer can generally make such a decision at any
time if the provision merely appears in a policy.9
As noted above, in this instance the District changed a policy rather than a
bilateral agreement. With that background, we consider whether the nine-month
requirement was a mandatory bargaining subject.
The most important purposes of the nine-month requirement, from the
perspective of OEA and its members, were that it: (1) provided OEA time to bargain
over alternatives or other measures to lessen or offset negative impacts; and
(2) provided affected employees notice to plan their lives based on a likely upcoming
reassignment or layoff, including such fundamental choices as whether to look for
other jobs and whether to rent or buy housing near their current workplace. In both
8 We overrule El Centro Elementary School District (2006) PERB Decision
No. 1863 (El Centro) to the extent it held that a party cannot violate its duty to bargain
in good faith when it repudiates a collectively bargained provision on a non-mandatory
subject during the term of the agreement. Indeed, as we noted a decade after El
Centro, “a statute that encouraged the negotiation of agreements, yet permitted the
parties to retract their concessions and repudiate their promises whenever they
choose, would impede rather than promote good-faith bargaining.” (Tulare, supra,
PERB Decision No. 2414-M, p. 29.)
9 In either case, if the decision impacts terms or conditions of employment then
the employer must still provide adequate notice and opportunity to bargain over
implementation and effects.

15
respects, notice of closure is akin to notice of layoff. Accordingly, we rely on
analogous precedent holding that an employer must bargain over the amount of layoff
notice employees receive, either in effects/implementation bargaining over a particular
layoff decision or as a mandatory subject if the issue arises as a proposed new or
changed policy of general application. (Richmond Fire Fighters, supra, 51 Cal.4th at
pp. 265, 276; Anaheim Union High School District (2016) PERB Decision No. 2504,
p. 10; Salinas, supra, PERB Decision No. 2298-M, p. 16; Placentia Unified School
District (1986) PERB Decision No. 595, p. 21 (Placentia); San Mateo City School
District (1984) PERB Decision No. 383, p. 18.)
A school closure can often lead to a transfer or reassignment rather than a
layoff, particularly for employees who have worked in the school district for some time.
But this distinction does not aid the District, because EERA specifically states that an
employer must bargain over “transfer and reassignment policies.” (EERA, § 3543.2,
subd. (a)(1).)
For these reasons, we hold that an employer must bargain over notice of a
school closure, either in effects/implementation bargaining over a particular closure
decision or as a mandatory subject if the issue arises as a proposed new or changed
policy of general application. Thus, while an employer has no duty to adopt a
prospective policy providing for minimum notice of closures, where it does so—in this
case via the nine-month requirement—that becomes the status quo, and a subsequent
change normally requires decision bargaining, absent a valid business necessity
defense.10 A policy on notice of closure is by no means permanent, however, as the
10 The District’s exceptions do not argue such a defense.

16
employer need only bargain before changing it and retains “the ultimate power to
refuse to agree on any particular issue.” (Claremont Police Officers Assn. v. City of
Claremont (2006) 39 Cal.4th 623, 630, quoting Building Material & Construction
Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 665; accord County of Sonoma
(2023) PERB Decision No. 2772a-M, p. 27 [requiring negotiations over county charter
amendments involving peace officer discipline does not block reform, as employer
need only bargain in good faith before making change].)
In the alternative, even if we were to deem precedent on notice of layoffs
insufficiently analogous to guide the outcome, we would reach the same conclusion
under the general test set forth in Anaheim Union High School District (1981) PERB
Decision No. 177 (Anaheim), which states that a subject falls within the scope of
representation if: (1) it is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) it is of such concern to both
management and employees that conflict is likely to occur and the mediatory influence
of collective negotiations is the appropriate means of resolving the conflict, and (3) the
employer’s obligation to negotiate would not significantly abridge its freedom to
exercise those managerial prerogatives (including matters of fundamental policy)
essential to the achievement of its mission.11 (Id. at pp. 4-5; Oxnard, supra, PERB
Decision No. 2803, p. 42.)
Applying Anaheim, supra, PERB Decision No. 177, the test illustrates why a
general policy on notice of closure is a mandatory bargaining subject, but notice is
11 Our conclusion under Anaheim is an alternate holding because there is
sufficiently related precedent on notice of layoffs, and when there is such guiding
precedent, we need not “reinvent the wheel” by applying the Anaheim test on a blank
slate. (Accelerated Schools, supra, PERB Decision No. 2855, p. 15.)

17
merely a bargainable implementation matter when it arises in the wake of a particular
closure decision. In either context, amount of notice is logically and reasonably related
to an enumerated term and condition of employment such as transfer and
reassignment, it is of such concern to both management and employees that conflict is
likely to occur, and the mediatory influence of collective negotiations is the appropriate
means of resolving the conflict. However, the third Anaheim element—the level of
managerial freedom that may be abridged—tilts toward requiring decision bargaining
when parties discuss a general policy of prospective application when no closure
decision is pending, while it tilts toward only requiring effects bargaining when the
issue arises because of a particular closure decision.
Here, when the nine-month requirement first arose in 2019, it was a potential
general policy of prospective application. The District was therefore overbroad in the
extent to which it refused to bargain, but this case contains no challenge to that 2019
conduct. In the same timeframe as the District made this overbroad pronouncement, it
adopted the nine-month requirement via a Board of Education resolution. As noted
above, the District certainly did not need to do so, but when it did, that written policy
became the new status quo. Then, in 2022, OEA’s bargaining request reflected a
blend of the two scenarios contemplated above. OEA had a decision bargaining right
as to the District’s change in prospective policy, and it had a right to bargain
implementation and effects of specific school closure decisions.

18
In the current procedural posture, however, OEA no longer pursues a decision
bargaining remedy. Accordingly, we proceed to analyze the effects bargaining aspects
of the complaint’s two primary claims.12
B. 	The District’s Implementation
In an effects bargaining case, the threshold issue is whether the employer
provided adequate advance notice to allow meaningful negotiations before
implementation. Absent adequate notice, a union has a valid unfair practice charge
irrespective of whether it requests to bargain effects. (County of Ventura (2021) PERB
Decision No. 2758-M, p. 42.) To trigger a union’s obligation to request bargaining, the
employer must provide notice that “clearly” informs the union of the nature and scope
of the change. (Id. at p. 43.)
The ALJ focused on the fact that the District failed to afford OEA advance
notice of the specific schools selected for closure or grade truncation, much less in a
manner that would have allowed meaningful negotiations before the District began
implementing its decision in February 2022. While we affirm that analysis, we also
note that the District had at that point already committed an even more fundamental
failure to provide notice and opportunity to bargain in good faith over its decision to
waive the nine-month requirement set forth in Resolution 1819-0178. The District
adopted this change without notice on January 12 and, still without providing OEA
12 Nothing in this decision should be construed to mean that the District had a
bargaining duty relative to other aspects of waiving Resolution 1819-0178, beyond
changing the nine-month requirement. For instance, while school districts must consult
with certificated employee unions over “educational objectives, the determination of
the content of courses and curriculum, and the selection of textbooks” (EERA,
§ 3543.2, subd. (a)(3)), the scope of representation does not include priority
enrollment or case management for families impacted by closures.

19
notice and an opportunity to bargain, implemented the change as early as January 31,
when its list of school closures included multiple scheduled to take effect just over four
months later. On February 3, OEA promptly sought to bargain over the District waiving
the nine-month requirement, but OEA in fact had no duty to request bargaining given
the District had not provided it with any advance notice, much less adequate notice.13
The District’s change to the nine-month requirement constitutes a further
reason supporting the ALJ’s conclusion that the District did not provide adequate
notice and opportunity to bargain in good faith over the implementation and effects of
its specific school closure decisions. Thus, while the ALJ correctly found that the
District’s February 8 communication denied any duty to bargain effects and the District
began implementation just days later without adequate time to negotiate in good faith
over alternatives and other implementation and effects, the District had already
prevented good faith negotiations by unilaterally altering the nine-month framework.
That change fast-tracked the process to such a degree that the District had to begin
implementation almost immediately, when OEA had previously relied on the fact that
the nine-month requirement provided time to discuss alternatives. In this sense, the
District’s decision amounted to a unilateral change in the ground rules of bargaining
13 The District argues that OEA’s February 3 request sought only decision
bargaining. This argument is not dispositive for multiple, independent reasons: (1) The
District had a decision bargaining duty as to changing its general policy of prospective
application; (2) OEA had no duty to request or participate in bargaining given the
District’s lack of notice and precipitous implementation—OEA could simply file an
unfair practice charge; (3) OEA’s February 3 request elicited a broad refusal to
bargain, specifically including both decision and effects negotiations; and (4) When
OEA later clarified on February 8 that its request included effects, the District
responded that it viewed this clarified demand to be “substantially the same as the
February 3, 2022 demand.”

20
over implementation, because ground rules include the amount of time allocated to
bargaining and any deadline for meaningful discussion of alternatives. (See City of
Arcadia (2019) PERB Decision No. 2648-M, pp. 35-36 [employer cannot unilaterally
decide timing of negotiations, when to commence, deadlines for finishing, or other
similar issues].)
While the District had to provide adequate notice and an opportunity to bargain
before implementing its decision to waive the nine-month requirement in Resolution
1819-0178, the District is fully empowered to change the resolution after adequate
notice and a reasonable opportunity to bargain. The District did not come close to
doing so, especially given that the initial proposed resolution in December 2021 did
not include the later-added explicit change to the nine-month requirement.
For similar reasons, we reject the District’s argument that it complied with
Compton Community College District (1989) PERB Decision No. 720 (Compton),
which allows an employer to implement its decision before completing effects
negotiations if it can establish each of three elements: (1) the implementation date
was based on an immutable deadline or an important managerial interest, such that a
delay in implementation beyond the date chosen would effectively undermine the
employer’s right to make the decision; (2) the employer gave sufficient advance notice
of the decision and implementation date to allow for meaningful negotiations prior to
implementation; and (3) the employer negotiated in good faith prior to and after
implementation. (Id. at pp. 14-15.) Even assuming for the sake of argument that the
District could satisfy the first element, the District did not show that it provided
advance notice, much less with sufficient time to allow meaningful pre-implementation

21
negotiations. The District therefore cannot establish the second and third Compton
elements.
The District’s other arguments are primarily relevant to its waiver defense,
which we analyze in Part II, post. However, to the extent relevant to OEA’s prima facie
case, there are multiple reasons why the District failed to afford OEA adequate actual
or constructive notice that could substitute for the District’s failure to write OEA with
notice of its plans. First, a public meeting and its associated agenda or other
documents generally do not provide sufficient notice to a union unless the public entity
sends such a document to a union official, in a manner reasonably calculated to draw
attention to a specific item and with adequate time for good faith negotiations to
ensue. (Regents of the University of California (2004) PERB Decision No. 1689-H,
adopting proposed decision at p. 45; Victor Valley Union High School District (1986)
PERB Decision No. 565, pp. 5-6 & fn. 6.) The current facts do not remotely satisfy this
standard.
Even if a public board agenda or document can be enough to provide adequate
actual notice in limited circumstances, there is another, independent reason why that
is not the case here. As noted, the Board of Education draft resolution in December
2021 did not include the later-added explicit change to the nine-month requirement,
and when the Board of Education added such language to the January 12 version of
the resolution, it was then enacted without sufficient time to bargain in good faith.
OEA sought to bargain on February 3, just three days after the district
publicized a list of schools and their closure/truncation dates, showing certain actions
to be taken in less than nine months. In its February 8 response, the District denied
any duty to engage in either decision or effects negotiations, only to change its tune

22
somewhat later in the month, after OEA filed this charge. By then, the violation had
occurred, and the District could not cure its violation unless it rolled back to an earlier
point. As we held in Santa Clara I, supra, PERB Decision No. 2321-M: “In the face of
unilateral implementation, a demand to bargain is futile,” because at that point there is
no “level playing field” for fair negotiations to occur. (Id. at p. 24.) Accordingly, OEA
was not required to pursue negotiations to perfect its charge. (Ibid.)
In sum, OEA has established a prima facie case that the District failed to
provide adequate notice and opportunity to engage in good faith effects negotiations
before implementing two decisions: (1) the decision to change the nine-month period
requirement in Resolution 1819-0178; and (2) the decision to close schools and
truncate grades after the 2021-2022 school year.
II. 	The District’s Waiver Defense
Because waiver is an affirmative defense, a party asserting waiver bears the
burden of proof. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13 (Culver
City).) A party seeking to establish waiver of the right to bargain may allege
contractual waiver, waiver by inaction, or waiver by negotiations history, but any of the
three types of waivers must be clear and unambiguous.14 (County of Merced (2020)
PERB Decision No. 2740-M, pp. 10 & 19 (Merced).) PERB therefore resolves any
doubts against finding a waiver of the right to bargain. (Ibid.)
14 We have alternatively articulated the standard as whether contract language
is “clear and unmistakable,” which means the same as “clear and unambiguous.”
(Merced, supra, PERB Decision No. 2740-M, p. 10, fn. 7.)

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A. 	Contractual Waiver
A contractual waiver must appear within a bilateral agreement rather than in a
unilaterally implemented policy. (Culver City, supra, PERB Decision No. 2731-M,
pp. 18 & 20.) A contractual waiver remains in effect only during the term of the
contract, unless the parties have explicitly agreed that it continues past contract
expiration. (Id. at pp. 13, 18-19.)
Here, when the District violated EERA by failing to provide adequate notice and
opportunity to bargain over the implementation and effects of its decision, the parties
had no CBA in effect because the District had delayed ratifying the parties’ tentative
agreement to extend their lapsed 2018-2021 CBA. An unratified tentative agreement
cannot waive the right to bargain. (Culver City, supra, PERB Decision No. 2731-M,
adopting proposed decision at p. 39.) In other words, a party cannot delay ratifying a
tentative agreement while seeking to benefit from any waivers contained therein;
rather, part of the employer’s incentive to negotiate and finalize an agreement is to
obtain the benefit of such waivers. Thus, we need not determine the extent to which
the parties’ CBA contained a waiver when it eventually took effect.
B. 	Waiver by Conduct
To establish waiver of the right to bargain based on evidence other than an
effective contract, it is necessary to demonstrate “conscious abandonment” of the
right. (Culver City, supra, PERB Decision No. 2731-M, p. 18.) Showing that a union
consciously abandoned its right to bargain typically involves proof that “the union had
clear notice, meaning advance knowledge, of the employer’s intent to change policy
with sufficient time to allow a reasonable opportunity to bargain about the change and
then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26

24
[internal quotation marks omitted; emphasis original].) However, a union’s
acquiescence to a unilateral change in one or more instances does not waive its right
to bargain regarding a future change on the same subject. (County of Kern & Kern
County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.)
OEA’s conduct does not reflect conscious abandonment of its right to bargain.
In December 2018 and January 2019, OEA promptly sought to bargain after the
District raised the possibility of school closures to pay for teacher salary increases. But
the District refused, and it did so in an overbroad manner, failing to recognize, for
instance, that notice of closures is bargainable either in implementation/effects
bargaining or as a mandatory topic, depending on the circumstances. (See ante at
pp. 14-17.) Even while the District refused to bargain, its Board of Education President
helped to settle OEA’s strike by negotiating language to bring before the Board of
Education, including the nine-month requirement. Nothing about this history suggests
OEA consciously abandoned its right to bargain. Thereafter, in January 2022, the
District acted precipitously to eliminate the nine-month requirement and approve
school closures on a fast track. Particularly considering the nine-month requirement’s
history, and the fact that the District did not provide adequate notice to OEA, the
District cannot establish that OEA’s 2022 conduct reflected conscious abandonment.
Nor can OEA’s conduct subsequent to the District’s failure to provide adequate notice
establish waiver.
III. 	The District’s Laches Defense
To establish laches, a respondent must show that: (1) the charging party
unreasonably delayed in prosecuting its case, and (2) either the charging party
acquiesced in the acts about which it complains, or the respondent suffered prejudice

25
from the charging party’s unreasonable delay. (Santa Ana Unified School District
(2017) PERB Decision No. 2514, p. 22.) The District cannot show any of these
elements. OEA never acquiesced in the District’s conduct, and OEA prosecuted the
case vigorously. We find no reason to find that any litigation delays were
unreasonable or attributable solely to OEA. Nor do we find evidence that any delays
have prevented the District from taking any action, much less prejudiced its ability to
defend this action.
For the foregoing reasons, the record is sufficient to establish the two
bargaining violations alleged in the complaint.15
IV.*
ORDER*
APPENDIX*
15 We also affirm the ALJ’s conclusion that an employer’s bargaining violations
derivatively interfere with protected union and employee rights. (Oxnard, supra, PERB
Decision No. 2803, pp. 2 & 54.)
* See footnote 1, ante.