Berkeley Unified School District (PERB 2268E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

BERKELEY COUNCIL OF CLASSIFIED
EMPLOYEES,
Charging Party, Case No. SF-CE-2732-E
Vv. PERB Decision No. 2268
BERKELEY UNIFIED SCHOOL DISTRICT, | May 29, 2012
Respondent.

Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Berkeley
Council of Classified Employees; Kingsley Bogard by Paul R. Gant, Attorney, for Berkeley
Unified School District.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Berkeley Unified School District (District) to a
proposed decision (attached) of a PERB administrative law judge (ALJ). The ALJ concluded
that the District unlawfully insisted to impasse on a non-mandatory subject of bargaining
during successor agreement negotiations with the Berkeley Council of Classified Employees
(BCCE), and thereby violated section 3543.5(a), (b) and (c) of the Educational Employment
Relations Act (EERA).!

The Board has reviewed the entire record in this case, including the parties’ stipulation

of facts, the ALJ’s findings of fact and conclusions of law, the District’s exceptions, and

BCCE’s response thereto. The ALJ’s findings of fact are supported by the record and neither

' EERA is codified at Government Code section 3450 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

party excepts thereto.2 Accordingly, we adopt the ALI' s findings of fact as the findings of the
Board itself, except as expressly noted below. The ALJ's conclusions oflaw are well reasoned
and in accordance with applicable law. 	We adopt the ALJ's conclusions, as supplemented by
our discussion below of issues raised by the District's exceptions.
FACTUAL SUMMARY
The parties' stipulated facts are described in the proposed decision. In short, the
parties' collective bargaining agreement expired on June 30, 2007. From June 30, 2007
through mid- June 2008, the parties sought agreement through negotiations for a successor
agreement. PERB declared impasse in mid-June 2008, and thereafter the parties continued to
negotiate with assistance of a mediator.
The parties' expired prior agreement contained a provision permitting the District to
recoup erroneous overpayments in salary by withholding from the employee's wages "over the
same period of time the error occurred unless other arrangements are made with the Director of
Classified Personnel or designee." The District demanded to include this provision in the
successor agreement. BCCE refused to renew the recoupment provision, contending that the
old language improperly waived statutory rights of employees, and instead proposed alternate
language. The District insisted on the old language. 	It is undisputed that during their
negotiations and mediation BCCE contended that the recoupment provision waived employee
rights and was a non-mandatory subject of bargaining.3
2 PERB Regulation 32300(c) provides that "[a]n exception not specifically urged shall
be waived." (PERB regs. are codified at Cal. Code Regs., tit.8, sec. 31001, et seq.)
3 The ALJ relied on the parties' written communications included with their stipulation
to find that "BCCE made clear to the District [BCCE's] position that it could not be required to
bargain over the subject" of renewal of the recoupment provision. The District does not except
to this finding, and we do not disturb it here. (PERB Reg. 32300(c).) We deem this finding
sufficient on the matter of notice by BCCE to the District that it declined to negotiate renewal
of the expired recoupment provision, despite our dissenting colleague's different view.
2

On September 30, 2008, BCCE filed the instant charge. Thereafter, in October 2008
the parties determined they had resolved all other outstanding issues relating to the successor
agreement, including compensation and benefits. The remaining unresolved issue concerns the
disputed recoupment provision, as to which the parties sought but were unable to reach
agreement.
DISCUSSION
The District challenges four
of
the ALJ' s conclusions
of
law. We review each.
l. 	The District excepts first to the ALJ' s conclusion at page 6 that the recoupment
procedure proposed by the District was "indistinguishable from the recoupment procedure
considered" in California State Employees' Assn.
v.
State
of
California (1988)
198 Cal.App.3d 374 (CSEA). We deny the exception.
CSEA involved a state effort to recoup alleged salary overpayments to individual
employees. After an audit allegedly revealed erroneous salary advances (overpayments), the
state sent affected employees a form letter notifying each
of
the amount and the basis for the
claimed overpayment. The letter described a repayment schedule for deducting the repayments
from wages, and offered the employee a one-week opportunity to negotiate a modification to
the proposed repayment schedule based on hardship.
The CSEA court ruled that the state's recently-enacted statutory policy
of
protecting
employee wages took precedence over an older statute ostensibly permitting the state to recoup
alleged overpayments by offsetting past overpayments directly against current employee
Moreover, we conclude below at page
11
that the District's proposal to renew the recoupment
provisions was not merely non-mandatory but at variance from mandatory external law and
thus nonnegotiable. While obliged to discuss whether a subject is within the scope of
representation (Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375 (Healdsburg)), a
negotiating party does not waive its right not to negotiate over an otherwise non-negotiable
subject by failing to object that the subject is also non-mandatory.
3

wages. The CSEA court quoted with approval from Barnhill v. Robert Saunders & Co. (1981)
125 Cal.App.3d 1, at p. 6, as follows:
[t]he policy underlying the state's wage exemption statutes is to
insure that regardless of the debtor's improvidence, the debtor
and his or her family will retain enough money to maintain a
basic standard of living, so that the debtor may have a fair chance
to remain a productive member of the community. 	. ..
Moreover, fundamental due process considerations underlie the
prejudgment attachment exemption. Permitting appellant to
reach respondent's wages by setoff would let it accomplish what
neither it nor any other creditor could do by attachment and
would defeat the iegislative policy underlying that exemption.
We conclude that an employer is not entitled to a setoff of debts
owing it by an employee against any wages due that employee.
(CSEA, at p. 377)
The District urges that because its proposed recoupment procedure was contractual -
a bargaining proposal relating to wages - its proposed procedure was dissimilar to and
distinguishable from the statutory recoupment procedure used in CSEA. 	We are not persuaded.
We conclude, with the ALJ, that it is the similarities, not the distinctions, between the
District's procedure and that in CSEA which are of moment to our analysis. Both procedures
transgress state policy protecting employee wages from prejudgment attachment. Like the
statutory procedure in CSEA, the District's proposed procedure permits the District, without
employee consent and without a court order or other due process, to withhold alleged past
overpayments from wages currently due and owing to the employee. The District's proposed
recoupment procedure, like the statutory procedure in CSEA, conflicts with mandatory external
law.
2. 	The 	excepts next to 	ALJ' s conclusion at page 6 	the
cited "no authority persuasively contradicting" the holding in CSEA. 	We deny the exception.
4

The District relies on Social Services Union
v.
Board
of
Supervisors (1990)
222 Cal.App.3d 279 (Social Services), contending that it constitutes "persuasive authority"
contradicting the holding in CSEA. 	We are not persuaded.
We conclude that Social Services does not contradict CSEA. Social Services involved a
wage deduction reimbursing the County
of
Tulare (County) for premium increases in employee
health insurance dependent coverage paid by the County while negotiations and mediation
transpired under the Meyers-Milias-Brown Act (MMBA)4 over those very premium increases.
After mediation the parties proceeded to a final outcome under procedures in the County's
local rules (local rules) adopted pursuant to the MMBA.
Under the local rules a bargaining dispute unresolved after mediation would be
submitted to the County's Board
of
Supervisors for a binding decision on the merits. Among
the disputed matters thus ultimately determined by the Board
of
Supervisors was how
employees with dependent coverage would pay the premium increases accrued during the
fourteen (14) month period over which bargaining and mediation had occurred. The Board
of
Supervisors, in the exercise
of
its discretion under its local rules, determined that the
employees with dependent coverage should repay the County the fourteen (14) month cost-of-
premium increases in prospective monthly wage deductions over eight months. 5
The union thereafter challenged the prospective monthly deductions, likening them to
wage deductions disapproved
of	
CSEA and claiming that 	any event the union lacked
authority to waive employee rights under the state policy forbidding prejudgment ,vage
attachments. 	The Social Services court acknowledged 	state policy underlying CSEA' s rule
· MMBA is codified at Government Code section 3500 et seq.
5 Under the EERA, an employer's ability to shift to employees the cost of increased
health insurance premiums during the period of negotiations and impasse resolution turns on
the parties' past practice and the dynamic status quo. (Pajaro Valley Unified School District
(1979) PERB Decision No. 51 (Pajaro).)
5

prohibiting employers from attaching employee wages to recoup alleged wage overpayments.
The Social Services court then distinguished CSEA, ruling that wage deductions for increased
insurance premiums were expressly permitted under Labor Code section 224. In these
circumstances, concluded the court, application
of
the CSEA rule would be inappropriate.
Labor Code section 224 provides:
The provisions
of
Sections 221, 222 and 223 shall in no way
make it unlawful for an employer to withhold or divert any
portion
of
an employee's wages when the employer is requ,ired or
empowered so to do by state or federal law or when a deduction
is
expressly authorized in writing by the employee to cover
insurance premiums, hospital or medical dues, or other
deductions not amounting to a rebate or deduction from the
standard wage arrived at by collective bargaining or pursuant to
wage agreement or statute, or when a deduction to cover health
and welfare or pension plan contributions is expressly authorized
by a collective bargaining or wage agreement.
Nothing in this section or any other provision
of
law shall be
construed as authorizing an employer to withhold or divert any
portion
of
an employee's wages to pay any tax, fee or charge
prohibited by Section 50026
of
the Government Code, whether or
not the employee authorizes such withholding or diversion.
(Emphasis added.)
The Social Services court observed:
The County correctly contends that Labor Code section 224 is a
'specific' statute permitting the withholding
of
insurance
premiums by an employer 'when a deduction is expressly
authorized in writing by the employee to cover insurance
premiums, hospital or medical dues,
...
or when a deduction [to
cover health and welfare or pension plan contributions6] is
expressly authorized by a collective bargaining or wage
agreement.'
Of course, the County had no right to collect additional
premiums until bargaining obligations under the MMBA were
concluded. At that time, however, prospective salary deductions
to cover premium increases were authorized by the board's
resolution as part of the collective bargaining process. 	such,
The bracketed portion was omitted from the text of Labor Code section 224 quoted in
the court's opinion.
6

the deductions were not prohibited by the attachment and
garnishment laws. To hold otherwise would be an unlawful
interference with the rights and obligations
of
the parties to
resolve disputes regarding conditions
of
employment by
collective bargaining pursuant to the MMBA. It would also be
violative
of
the MMBA's purpose
of
'providing a reasonable
method
of
resolving disputes regarding wages, hours, and other
terms and conditions
of
employment between public employers
and public employee organizations.'
	(§
3500.)
(Social Services, at pp. 286-287.)
The Social Services court also rejected the union's alternative claim that the union
lacked authority to waive its members' rights under state attachment and garnishment laws.
The court acknowledged that in general unions lack the capacity to waive employees' statutory
or constitutional rights, but held that Labor Code section 224 "expressly authorizes agreements
between public employees and their employers for the payment
of
health care costs through
payroll deductions. (Lab. Code, § 224.)" (Social Services, at p. 287.)
The court's holding in Social Services is based on the accepted principle that parties
have full power through collective bargaining to establish a health and welfare program and to
provide for earnings deductions to pay for it, as expressly authorized by Labor Code
section 224. The court in Social Services held that CSEA was not applicable because "[n]either
the debt itself nor the method
of
payment resulted from collective bargaining."
(Social Services, at p. 287.) The court in Social Services implicitly recognized the
applicability
of
the CSEA rationale in a collective bargaining setting, but concluded that it did
not apply "at least in the circumstances of this case" based on the factual distinctions between
the two cases. (Social Services, at p. 288.) Based on those distinctions, the court concluded
that the payroll deductions were not extra judicial seizures of the type condemned in CSEA,
because both the obligation to pay increased costs incurred for dependent coverage and
method of payment by payroll deduction came into existence as a result of collective
7

bargaining. By contrast, here the debt itself does not result from collective bargaining.
Instead, the debt comes into existence as a result of an employer's determination that it has
overpaid an employee wages earned. Social Services therefore is not analogous.
We conclude for the reasons discussed above, and for those recited by the ALJ, that
Social Services permits collectively-bargained deductions from wages, but only for the limited
purposes authorized in Labor Code section 224. 7 Social Services does not authorize employers
and unions to create through collective bargaining additional exceptions to the state policy
confirmed in CSEA against prejudgment attachment of wages.
3. 	The District excepts next to the ALJ' s conclusion at page 7 that the disputed
recoupment provision was not a mandatory subject of bargaining, and that because of BCCE's
lawful refusal to negotiate over it, the provision expired. We deny the exception.
The District relies, in part, for this exception on its own reading of CSEA and Social
Services. 	We have considered the District's analysis of these cases, and as discussed above,
we conclude the District is mistaken. In addition, the District urges that under traditional
scope of representation analysis its recoupment proposal relates to wages and thus is a
mandatory subject of bargaining. We disagree.
Generally, matters related to wages fall within the scope ofrepresentation under our
statutes, including EERA. (Anaheim Union High School District (1981) PERB Decision
No. 177; San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d
850 (San Mateo).) Thus, matters relating to wages customarily are mandatory subjects of
bargaining.
7 Statutory exceptions to a general rule conferring rights are narrowly construed.
(Los Rios Community College District (1977) EERB Decision No. 18 [Prior to January 1978,
PERB was known as the Educational Employment Relations Board or EERB.]; City of
National City v. Fritz (1949) 33 Cal.2d 635.)
8

However, when external law establishes immutable provisions in an area otherwise
within the scope
of
representation, matters are negotiable only to the extent
of
the employer's
discretion, that is, to the extent that the external law does not "set an inflexible standard or
insure immutable provisions." (San Mateo, at pp. 864-865.) Thus, where the external law is
silent or otherwise fails clearly to "set an inflexible standard or insure immutable provisions,"
the parties may negotiate. (Ibid.) Contrarily, where external law sets an immutable standard,
the parties may negotiate only over including such a provision without a change in substance in
their negotiated agreement. (Id. at p. 866.)
We conclude, with the ALJ, that California's state policy against prejudgment
attachment
of
employee wages, codified in garnishment and attachment statutes (discussed in
CSEA) and in Labor Code sections 221-224 (discussed in Social Services) establishes an
inflexible standard and immutable provisions. Under California law, absent an employee's
written authorization an employer is forbidden to reduce wages currently due and owing to the
employee in order to recoup monies allegedly due and owing by the employee to the employer.
Exceptions to this general rule are described in Labor Code section 224. 	The only exception
permitted solely on the basis of an express authorization in a collective bargaining or wage
agreement is a deduction for health and welfare or pension plan contributions. (Labor Code
section 224; Social Services.)
The District urges that our precedents, and those
of
the National Labor Relations Board
(NLRB), regarding voluntary payroll deductions support its contention that its recoupment
procedure is a mandatory subject. We find the District's analogy to voluntary payroll
deductions unpersuasive. The issue there was whether the employer would provide to
employees who voluntarily request it, the service of withholding from their wages an
authorized sum and remitting the sum to a third party designated by the employee.
9

(Jefferson School District (1980) PERB Decision No. 133.) The deductions were voluntary,
authorized by employees, not involuntary recoupment initiated by the employer of wages
allegedly overpaid in a prior pay period.
The District relies also on our decision in Laguna Salada Union School District (1995)
PERB Decision No. 1103 (Laguna Salada). 	There, we held that after negotiating with a
teachers' union for general wage adjustment (there a decrease), and maintaining the status quo
wage scale throughout the negotiations and impasse resolution procedures, the school district
employer was obligated to negotiate as well over the methodology of adjusting the employees'
wages to the new (there lower) wage level, and that this subject matter was not reasonably
comprehended in the school district employer's last best and final offer to the teachers' union.8
In that case, the employer unilaterally imposed the adjustment for an entire annual salary
within a single one-month payroll period. We concluded that the methodology for
implementing the overall wage adjustment, like the adjustment itself, was negotiable, and that
having failed to address the matter in its last best and final offer to the union, the employer
acted unlawfully when it thereafter imposed a lump-sum adjustment in the final payroll period
for the fiscal year.
We distinguish Laguna Salada from the case before us. Here, the District's proposal
seeks the BCCE' s agreement to transgress external law forbidding an employer to implement a
prejudgment attachment of an individual employee's wages based on an alleged, previous
overpayment to the particular employee. In Laguna Salada, by contrast, the employer
implemented a general wage adjustment applicable 	case is not about the
methodology used by an employer for adjusting a negotiated decrease in wages, as was the
10
By contrast in Social Services the employer and the union did negotiate without
agreement on the methodology for implementing the affected employees' payment of the
premium increase for health benefits dependent coverage.

case there. This case
is
about agreeing to allow an employer to set off a prior alleged
overpayment against wages due without the employee's written authorization - a type
of
self-
help collection that violates the absolute exemption wages have from prejudgment attachments.
As the California Supreme Court has long expressed,"[w]ages
of
workers in California have
long been accorded a special status generally beyond the reach
of
claims by creditors including
those
of
an employer." (Kerr's Catering Service
v.
Department
of
Industrial Relations (1962)
57 Cal.2d 319, 325.)
We conclude, with the ALJ, that the District's proposed recoupment procedure for
wages allegedly overpaid to individual employees exceeds the ambit
of
negotiable exceptions
to California's policy protecting employee wages from prejudgment attachment, and that the
District's proposal is therefore a non-mandatory bargaining subject to which the parties had no
right to agree in the first place as it was at variance from mandatory external law and thus
nonnegotiable. As the California Supreme Court held in San Mateo, "[ w]here statutes are
mandatory, as are these [Education code provisions], a contract proposal which would alter the
statutory scheme would be nonnegotiable
....
" (San Mateo, at
p.
866.) 	The state statutes
regarding wage garnishment, attachment and deductions are mandatory. Because the
recoupment procedure embodied in the contract provision here at issue alters the state's
statutory scheme, the provision is not only non-mandatory but, more importantly, non-
negotiable. 9
The District contends in addition that as a provision in its expired collective agreement
BCCE, 	proposed recoupment procedure survived expiration of its prior collective
bargaining agreement, and that upon satisfying its duty to bargain over renewal thereof,
We note that negotiating parties are free to propose and to include in their collective
bargaining agreement references to and restatements of mandatory external law, but not
provisions inconsistent therewith. (San Mateo, at p. 866.)
11

including exhaustion
of
mandatory impasse procedures, the District may continue to
implement this contractual procedure. We disagree.
As a general matter, employers and unions operating under our statutes must meet and
negotiate in good faith regarding mandatory bargaining subjects, either to an agreement or
through the conclusion
of
mandatory impasse resolution procedures. (San Mateo County
Community College District (1979) PERB Decision No. 94 (San Mateo CCD).) During the
negotiations and any impasse procedures, the duty to participate in good faith in negotiations
(and the correlative duty during impasse procedures to participate therein in good faith), oblige
the parties not to act unilaterally regarding mandatory bargaining subjects. (Pajaro;
San Francisco Community College District (1979) PERB Decision No. 105; accord, NLRB
v.
Katz (1962) 369 U.S. 739; San Mateo CCD; Moreno Valley Unified School District (1982)
PERB Decision No. 206 (Aforeno Valley).)
During negotiations and impasse resolution procedures, parties must refrain from
changing the policies concerning mandatory subjects
of
bargaining contained in an expired
collective agreement. (San Mateo CCD; Moreno Valley.) At the conclusion
of
impasse
resolution procedures,
if
impasse persists, or
if
impasse is broken and thereafter is again
reached, the employer may implement proposals on mandatory subjects "reasonably
comprehended within previous offers made and negotiated between the parties." (Modesto
City Schools (1983) 	Decision No. 291, pp. 33, 38; Modesto City Schools/Modesto City
Schools, et al. 	(1980) PERB Order IR-12, pp. 4-5; Laguna Salada.) However, even at
an employer may not impose proposals on non-mandatory subjects or which conflict
with statutory rights of employees or
of
the union. 	(Chula Vista City School District
(l
Decision No. 834 (Chula Vista); Rowland Unified School District (1994)
Decision No. 1053.)
12

By contrast, as to non-mandatory bargaining subjects, employers and unions operating
under our statutes may meet and negotiate in good faith regarding such subjects, or they may
decline to do so. (Lake Elsinore School District (1986) PERB Decision No. 603
(Lake Elsinore); Chula Vista.) Negotiating over a non-mandatory subject does not convert it to
a mandatory subject, nor does it oblige the party who has begun so negotiating to continue.
(Chula Vista.) Subject to the duty to discuss whether any matter is within the scope
of
representation (Healdsburg, at pp. 8-10), a party may at any time announce its decision not to
negotiate further regarding a non-mandatory subject, and decline thereafter to discuss it.
(Chula Vista.) A party may not condition its negotiation of, or agreement to, mandatory
subjects on agreement by the other party to negotiate on or reach agreement on a non-
mandatory subject. (Lake Elsinore; Chula Vista.) 	Conditioning to impasse an agreement on
any mandatory subject upon the other party's agreement regarding a non-mandatory subject
constitutes a per se refusal to bargain in good faith as to the mandatory subject. (Ibid.) 	Parties
who reach final agreement on a non-mandatory subject may incorporate that agreement along
with other agreements into an overall collective bargaining agreement. (Poway Unified School
District (1988) PERB Decision No. 680 (Poway).) Once ratified the agreement on the non-
mandatory subject is effective for its term. (Eureka City School District (1992) PERB
Decision No. 955; Poway.) At the expiration
of
the agreement on the non-mandatory subject
either party may refuse to negotiate or renegotiate on that non-mandatory subject. (Ibid.)
Neither party is required by its statutory duty regarding mandatory subjects to refrain from
any non-mandatory subject. (Ibid; El Centro Elementary School District
(2006) PERB Decision No. 1863.)
Having exhausted its EERA bargaining and impasse resolution obligations, an EERA
employer may impose. However, by exhausting these statutory obligations, an EERA
13

employer neither sheds its external law limitations, nor acquires greater authority over
employee terms and conditions
of
employment.
Labor Code section 224 permits withholding "required or empowered
....
by state or
federal law." This language refers to mandatory withholding
of
payroll taxes and the like,
or
to levies based on post-judgment debts pursuant to court order, but does not permit
withholding
of
the employer's own pre-judgment claims
of
past wage overpayments. (Dept.
Industrial Relations, DLSE Opn. Letters, Nos. 1998.07.31 (July 31, 1998) p. 2 [designed to
prevent "an employer from being able to deduct from an employee's wages anything other than
those items that the employer is obligated by law to make ... "]; 1998.09.18 (Sept. 18, 1998)
p. 2 [examples given include "income tax withholding, FICA and the like"].)
10
EERA obliges unions and employers to undergo defined processes in good faith pursuit
of
agreement. EERA neither requires nor empowers an employer to make deductions from
wages due an employee in order to satisfy the employer's own claims. As to claims against its
employees, an EERA employer stands in the same position as any other pre-judgment creditor
under California's wage exemption statutes, that is, a court order is a prerequisite to a levy on
employee wages to satisfy the employer's claim.
We thus conclude, with the ALJ, that the recoupment provision in the District's prior
agreement with BCCE was a non-mandatory subject, and consequently neither party was
Brinker Restaurant Corp.
v.
Superior Court (2012) 53 Cal.4
th
1004, 1029, fn. 11:
The DLSE 'is the state agency empowered to enforce California's
labor laws, including IWC wage orders.' "(Morillion
v.
Royal
Packing Co. (2000) 22 Cal.4
th
575, 581.
...
) The DLSE's
opinion letters," ' " 'while not controlling 	the courts by
reason
of
their authority, do constitute a body
of
experience and
informed judgment to which courts and litigants may properly
resort for guidance.' " ' " (Seymore
v.
Metson Marine, Inc. (2011)
194 Cal.App.4 th
361,369, fn. 5
...
; see Morillion, at p. 584
[relying on DLSE opinion letters to inform its interpretation of
the IWC's wage orders].)
14

obliged to negotiate nor renew it. We also conclude, with the ALJ, that
as
a non-mandatory
subject, the recoupment provision in the District's prior agreement with BCCE was not part
of
the status quo on mandatory subjects. Thus, the recoupment provision did not survive
expiration
of
that agreement, since only mandatory subjects are governed by EERA duty to
make no change while negotiating or participating in impasse resolution procedures.
4.
	The District excepts lastly to the ALI' s proposed order at page 7 that the District
violated EERA section 3543.S(a), (b) and (c) by insisting to impasse on a non-mandatory
subject
of
bargaining. We deny the exception.
We have concluded, as discussed herein above, that the District failed and refused to
meet and negotiate in good faith with BCCE when the District insisted to impasse on a non-
mandatory bargaining subject, viz., its recoupment procedure. We conclude that the District
violated EERA section 3543.S(a) and (c) as well. We explain.
Where the same employer conduct concurrently violates more than one unfair practice
provision, it is the duty
of
the Board to find more than one violation. (San Francisco
Community College District (1979) PERB Decision No. 105 (San Francisco).) The District's
insistence to impasse on the recoupment provision, a non-mandatory subject, violated EERA
section 3543 .5(b) by denying the BCCE its statutory right as an exclusive representative to
represent unit members in their employment relations with the District. (EERA § 3543.l(a);
San Francisco.) The same conduct interfered with employees because
of
their exercise
of
representational rights in violation of EERA section 3543.5(a). As the Board observed in
San Francisco:
Collective negotiations [are] the cornerstone of the EERA. To
this end, employees have the right to select an exclusive
representative to meet and negotiate with the employer on their
behalf. (Sec. 3543.) An employer's [insistence to impasse on a
non-mandatory subject of bargaining] is in derogation of its duty
to negotiate with the exclusive representative and necessarily
15

interferes with employees in their exercise of protected rights.
This interference constituted at least slight harm, and although
the District offered ... reasons for its actions, none constituted
operational necessity that might excuse the District's conduct. ...
(Carlsbad Un(fied School District (1/30/79) PERB Decision
No. 89 at pages 1-12.)
(San Francisco, at pp. 19-20.)
PERB has broad authority to remedy unfair practices. (EERA § 3541.5(c).) We
conclude that the ALJ's proposed remedy falls well within the ambit of that authority.
CONCLUSION
We hold that by insisting upon a proposal permitting it to recoup from current wages
alleged wage overpayments made in prior payroll periods, the District insisted to impasse on a
non-mandatory subject of bargaining, thereby violating EERA section 3543.5(c). We hold that
this conduct likewise denied to employees their right to participate in an employee
organization for the purpose of representation, thereby violating EERA section 3543.5(a), and
that this conduct likewise denied to BCCE, an employee organization, rights to represent
employees in their employment relations with the District, thereby violating EERA
section 3543.5(b).
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, and pursuant to the Government Code, Educational Employment Relations Act (EERA)
section 3541.5(c), it is hereby ORDERED that the Berkeley Unified School District (District)
and its representatives shall:
CEASE AND DESIST FROM:
1. 	Insisting to impasse on its proposal for recoupment of overpayments.
2. 	By the conduct described in paragraph 1, interfering with bargaining unit
employees' right to participate in the activities of an employee organization of their choosing.
16

3.	
By the conduct described in paragraph
1,
denying to the Berkeley
Council
of
Classified Employees (BCCE) its right to represent its members in their
employment relations with the District.
B.	
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Upon request, reopen the negotiations for the successor agreement
without maintaining its proposal, or in the alternative (since the parties have reached
agreement as to the remaining subjects),
if
it
is
BCCE's choice, withdraw the proposal for
recoupment
of
overpayments and execute the parties' remaining agreement.
2.	
Within ten (10) workdays following service
of
a final decision in this
matter, post at all locations where notices to employees are customarily posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent for
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 calendar days. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by
any other material.
3. 	Within thirty (30) workdays following service
of
a final decision in this
matter, notify the General Counsel
of
the Public Employment Relations Board, or her designee,
in writing,
of
the steps the employer has taken to comply with the terms of this Order.
Continue to report in writing to the General Counsel, or her designee, periodically thereafter as
directed. All reports regarding compliance with this Order shall be served concurrently on
BCCE.
Chair Martinez joined in this Decision
Member Dowdin Calvillo's dissent begins on page 18.
17

DOWDIN CALVILLO, Member, dissenting: I respectfully dissent from the majority
opinion. In my view, the record fails to establish that the Berkeley Unified School District
(District) unlawfully insisted to impasse on a non-mandatory subject of bargaining. I therefore
would reverse the administrative law judge's (ALJ) proposed decision for the reasons set forth
below.
DISCUSSION
Notice of Opposition to Bargaining
As noted by the majority, parties are free to negotiate over non-mandatory subjects of
bargaining if they wish. (Lake Elsinore School District (1986) PERB Decision No. 603 (Lake
Elsinore); Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista).)
PERB has held repeatedly, however, that a party opposing negotiation over a purportedly
non-mandatory subject must communicate its opposition to further negotiations about the
non-mandatory proposal. (San Mateo County Community College District (1993) PERB
Decision No. 1030 (San Mateo); State of California (Department of Personnel Administration)
(2009) PERB Decision No. 2081-S (DPA); Chula Vista.) In San Mateo, the Board stated:
Under Lake Elsinore, the Board held that parties may engage in
negotiations dealing with permissive, nonmandatory subjects of
bargaining, but once a party subsequently decides to take a
position that the nonmandatory subject not be included in the
collective bargaining agreement, that party must express its
opposition to further negotiation on the proposal as a prerequisite
to charging the other party with bargaining to impasse on a
nonmandatory subject of bargaining.
San Mateo involved the issue of whether released time for union activities was a
mandatory subject of bargaining. The Board held that, while there was a statutory right to
reasonable released time under Higher Education Employer-Employee Relations Act
18

(HEERA) 1 section 3569, released time was also a mandatory subject of bargaining over which
the employer could insist to impasse. The Board further held that, although the union raised
the issue of released time during negotiations and impasse proceedings, there was no evidence
that it informed the employer it would not bargain over the subject based upon its statutory
right to reasonable released time.
DPA involved similar facts to the case before us. In DPA, the parties engaged in
negotiations over several provisions that the union contended were non-mandatory subjects of
bargaining because they would require a waiver of statutory rights. Those statutory rights are
included in the provisions under Labor Code section 233 protecting against discrimination for
having used sick leave to attend to a family member, the right to sue under the federal Fair
Labor Standards Act, and statutory rights concerning notice of a proposed transfer. The union
expressed its opposition to the state's proposal as follows:
YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS
THAT REQUIRE US TO AGREE TO WAIVE STATE LAW
FOR OUR MEMBERS. THAT IS NOT A LEGITIMATE
EFFORT TOWARDS AGREEMENT.
(Emphasis in original.)
The Board found this statement insufficient to put the state on notice that it opposed
negotiations on the subjects it believed were non-mandatory, in that it merely set forth the
union's belief that the state's proposals sought a waiver of state law, but did not communicate
whether or not the union would be willing to consider such proposals. Thus, the Board held
that the state did not unlawfully insist to impasse on a non-mandatory subject of bargaining
requiring the waiver of statutory rights.
1 HEERA is codified at Government Code section 3560 et seq.
19

Nothing in the record before the Board indicates that the Berkeley Council of Classified
Employees (BCCE) ever communicated to the District a clear opposition to negotiating over
the wage overpayment recoupment procedure. (DPA.) To the contrary, the parties stipulated
that they exchanged proposals regarding Article 9.10.3 but were unable to reach agreement.
The fact that the District did not except to the ALJ's finding that "BCCE made it clear to the
District [BCCE's] position that it could not be required to bargain over the subject" of renewal
of the recoupment provision does not establish that BCCE communicated a clear opposition to
further negotiations over the provision. As in DPA, I would find this language insufficient to
put the District on notice that BCCE would not negotiate over the subject, but merely set forth
its belief that the subject was not a mandatory subject of bargaining. Accordingly, because
BCCE failed to put the District on notice that it opposed further negotiations on what it
believed was a non-mandatory subject, I would dismiss this case on that basis alone. (DPA;
San Mateo.)
Mandatory Subject of Bargaining
Even assuming, arguendo, that BCCE communicated its opposition to further
negotiations to the District, it must still establish that the wage overpayment recoupment
provisions of Article 9.10.3 amounted to a waiver of statutory rights, such that it constituted a
non-mandatory subject of bargaining over which the District was not privileged to insist to the
point of impasse.
In support of its determination that the District could not continue to impose the
provisions of Article 9 .10 .3 	impasse, 	majority, like 	on 	decision
of the court of appeal in California State Employees' Assn. v. State of California (1988)
198 Cal.App.3d 374 (CSEA). 	In that case, the state sought to recoup alleged erroneous salary
20

overpayments by unilaterally imposing a repayment schedule on affected employees under
which the state would deduct the amounts due directly from the employees' paychecks. 	Unlike
in this case, there was no collective bargaining agreement provision addressing the issue, and
the state did not seek to bargain prior to imposing the deductions. Instead, the state relied on
the provisions of Government Code section 17051, which had previously been interpreted to
authorize the setoff of prior wage overpayments from current wages.2 (See Geftakys v. State
Personnel Board (1982) 138 Cal.App.3d 844.) 	The court held, however, that the
subsequently-enacted wage garnishment law superseded the more general provisions of
Government Code section 17051 and "provides the exclusive judicial procedure by which a
judgment creditor can execute against the wages of a judgment debtor." Thus, the court
concluded, the state was not authorized to setoff the wage overpayments from the wages
due to the employees. (CSEA at p. 3 77, citing Barnhill v. Robert Saunders & Co. (1981)
125 Cal.App.3d 1, 6.)
Government Code section 17051 provides:
Whenever any warrant is drawn in favor of a payee having a
claim against the State and is delivered to a State agency for
delivery to a payee, and prior to delivery to the payee any facts or
circumstances exist which would affect the validity or alter
amount of the claim, the person authorized to make payments out
of any funds under the direct control of the State agency may
indorse and deposit the warrant in the treasury to the credit of the
fund or appropriation upon which it was drawn or deposit it to the
credit of the appropriate account under his control. 	such a
warrant is deposited to the account under the control of the State
agency, it shall, when necessary, pay the portion of the claim then
due and payable and return the balance to the treasury to the
credit of the fund or appropriation upon which the warrant was
drawn.
21

I believe the more analogous situation to the one at hand was addressed by the court in
Social Services Union v. Board of Supervisors (1990) 222 Cal.App.3d 279 (Social Services).
In Social Services, the Tulare County board of supervisors authorized a twenty percent
increase in the premiums for dependent health insurance coverage. The parties bargained over
the implementation of the increase, during which time the county continued to pay the
increase. Upon reaching impasse and exhaustion of the county's impasse procedures, the
county unilaterally sought to recoup the past due employee health insurance premium increases
by deducting them from employee paychecks over a specified period of time. The union raised
the same arguments as in this case, that it could neither voluntarily agree through collective
bargaining to collection of the past due premiums by way of payroll deduction without
individual authorization, nor could the county legally do so upon termination of the impasse
procedures, citing CSEA. The court disagreed, holding that the county was entitled to
implement its proposal upon reaching impasse and exhaustion of the local impasse resolution
procedures. In so doing, the court found that the deductions "were authorized by the board's
resolution as part of the collective bargaining process" and, as such, were not prohibited by the
attachment and garnishment laws. Thus, the court stated:
To hold otherwise would be an unlawful interference with the
rights and obligations of the parties to resolve disputes regarding
conditions of employment by collective bargaining pursuant to
MMBA. It would also be violative of the MMBA's purpose
of 'providing a reasonable method of resolving disputes regarding
wages, hours, and other terms and conditions of employment
between public employers and public employee organizations.'
(Social 	at pp. 286-287.)
22

The court distinguished CSEA, finding that "[n]either the debt itself nor the method of
payment resulted from collective bargaining." In contrast,
the obligation of the affected employees to pay the increased
costs incurred for coverage of their dependents, as well as the
method of payment (by payroll deductions over eight pay
periods), came into existence as a result of collective bargaining
and impasse proceedings undertaken pursuant to the MMBA and
the County policy. Therefore, the payroll deductions did not
constitute extrajudicial seizures condemned in [CSEA].
The court in Social Services also addressed the argument that, even if the right to
recoup premiums is properly determined through collective bargaining procedures, the union
cannot voluntarily waive its members' rights under the attachment and garnishment laws.
While noting that "[g]enerally, a collective bargaining agreement may not waive statutory
rights which arise from an extraordinarily strong and explicit state policy" (citing Wright v.
City of Santa Clara (1989) 213 Cal.App.3d 1503, 1506) and that "[c]ollective bargaining
agreements may not contain provisions abrogating employees' fundamental constitutional
rights" (citing Phillips v. State Personnel Bd. (1986) 184 Cal.App.3d 651, 660), the court
found that the Labor Code expressly authorizes agreements between public employees and
their employers for the payment of health care costs through payroll deductions. Thus, the
court concluded, "public policy would not be promoted by limiting the County's recourse to
the filing of individual lawsuits against each of its affected employees."
The same principles apply to this case. On its face, the recoupment of wage
overpayments relates to wages, an enumerated subject of bargaining. (EERA§ 3543.2(a).)
has also held that 	methodology used by an employer for 	wages 1s a
mandatory subject of bargaining. (Laguna Salada Union School District (1995) PERB
Decision No. 1103.) In this case, there is no dispute that the parties bargained over the
23

recoupment provision and exhausted applicable impasse resolution procedures. Thus, as in
Social Services, the method of repayment of wage overpayments resulted from the collective
bargaining and impasse procedures undertaken pursuant to EERA. While the majority argues
that the "debt itself' did not result from collective bargaining, the amount of wages properly
due to employees is a direct product of collective bargaining. Therefore, the obligation to
repay overpaid wages did arise at least indirectly from collective bargaining. The issue in this
case is the methodology to be used in recovering those overpayments.
Accordingly, as in Social Services, I do not find that, under the circumstances presented
here, public policy would be promoted by limiting the District's recourse to the filing of
individual lawsuits against each affected employee. 3
Based upon the foregoing, I conclude that the District did not violate EERA when it
insisted to impasse on the procedure for recovering wage overpayments set forth in
Article 9.10.3.
Because I wouid find that the wage overpayment procedure set forth in Article 9 .10.3
was a mandatory subject of bargaining, I wouid not address the District's aiternate theory that
Article 9 .10. 3 itself continued in effect upon expiration of the agreement.
24

APPENDIX
NOTICE TO
EMPLOYEES
POSTED BY ORDER OF
THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State of
California
F
After a hearing in Unfair Practice Case No. SF-CE-2732-E, Berkeley Council
of
Classified
Employees
v.
Berkeley Unified School District, in which the parties had the right to participate,
it has been found that the Berkeley Unified School District (District) violated the Government
Code, Educational Employment Relations Act (EERA) section 3543.S(a), (b) and (c), by
insisting to impasse on its proposal for recoupment
of
erroneous overpayments directly from
the paychecks
of
employees.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Insisting to impasse on its proposal for recoupment
of
overpayments.
2. 	By the conduct described in paragraph
1,
interfering with bargaining unit
employees' right to participate in the activities
of
an employee organization
of
their choosing.
3. 	By the conduct described in paragraph 1, denying to the Berkeley
Council
of
Classified Employees (BCCE) its right to represent its members in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Upon request, reopen the negotiations for the successor agreement
without maintaining its proposal, or in the alternative (since the parties have reached
agreement as to the remaining subjects),
if
it is BCCE's choice, withdraw the proposal for
recoupment
of
overpayments and execute the parties' remaining agreement.
Dated: 	BERKELEY UNIFIED SCHOOL DISTRICT
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD F
BERKELEY COUNCIL OF CLASSIFIED
EMPLOYEES,
Charging Party,
V.
BERKELEY UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CE-2732-E
PROPOSED DECISION
(December 10, 2009)
Appearances: 	Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Berkeley
Council of Classified Employees; Miller Brown & Dannis by John R. Yeh and Ingrid A.
Scherschel, Attorneys, for Berkeley Unified School District.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
Berkeley Council of Classified Employees (BCCE) initiated this case under the
Educational Employment Relations Act (EERA or Act) 1 by filing an unfair practice charge
against the Berkeley Unified School District (District) on September 30, 2008. On January 2,
2009, the Office of the General Counsel of the Public Employment Relations Board (PERB or
Board) issued a complaint alleging that the District maintained to the point of bargaining
impasse a proposal for contract language permitting the District to recover erroneous
overpayments made to employees by deducting the overpaid amounts directly from the
employee's paycheck. This conduct is alleged to violate section 3543.S(a), (b), and (c) of the
Act.
On January 22, 2009, the District filed its answer to the complaint, denying the material
allegations of the complaint and raising a number of affirmative defenses.
1 The EERA is codified at Government Code section 3540 et seq. 	Hereafter all
statutory references are to the Government Code unless otherwise indicated.

On February 3 and 19, 2009, informal settlement conferences were held, but the matter
was not resolved.
On November 24, 2009, the parties, in lieu of formal hearing, submitted a stipulated
record of facts for determination of the issues in the case, together with briefs, and the matter
was submitted for decision.
FINDINGS OF FACT
By way of its answer, the District admitted that it was a public school employer within
the meaning of section 3540. l(k).
The facts submitted by way of stipulation are as follows:
1. 	BCCE is an exclusive representative within the meaning of section 3540.l(e) of
certain unit member employees of the District.
2. 	During the period from June 30, 2007, through September 30, 2008, and
continuing thereafter, BCCE and the District were meeting and negotiating over a successor
agreement to their July 1, 2004-June 30, 2007, agreement pursuant to section 3543.3. The
complete expiring agreement has been entered in the record as an exhibit.
3. 	On June 16, 2008, PERB declared the parties were at impasse.
4. 	BCCE and the District conducted mediation sessions on July 28, September 4,
25 and 29, 2008, and October 24, 2008, with State-appointed mediator Steve Pearl in
attendance at most sessions.
5. 	BCCE and the District have met and negotiated, and resolved all outstanding
issues relating to the successor agreement, including compensation and benefits, with BCCE's
salary increases for 2007-2008 and 2008-2009 paid to unit members retroactive to July l of
each respective year. BCCE and the District also reached agreements on articles related to
Payroll Advances, Industrial Accident Leave, Seniority and Salary Notice.
2	2

6. 	The only remaining unresolved issue between the parties pertains to the
deduction of overpayments made to employees by the District, as provided in Article 9.10.3,
"Errors in Payment," of the expiring agreement between the parties.
7 	Article 9.10.3 of the July 1, 2004-June 30, 2007, agreement states that "[a]
payroll overpayment shall be repaid to the District over the same period of time the error
occurred unless other arrangements are made with the Director of Classified Personnel or
designee."
8. 	BCCE and the District exchanged proposals regarding Article 9.10.3 of the
July 1, 2004-June 30, 3007 agreement but were unable to reach agreement on an alternative
provision.
9. 	On January 2, 2009, PERB issued the complaint in the instant case.
10. 	During the processing of the case the parties filed position papers with PERB,
which have been included in the record.
ISSUE
Did the District unlawfully insist to impasse on maintenance of the payroll
overpayment recoupment provisions because it was not a mandatory subject of bargaining?
CONCLUSIONS OF LAW
Insistence to impasse on non-mandatory subjects of bargaining constitutes a per se
violation of the duty to bargain. (Modesto City Schools (1983) PERB Decision No. 291;
Lake Elsinore School District (1986) PERB Decision No. 603, citing NLRB v. Wooster Div. of
the Borg- 	(1 	8) 3 	U.S. 	Under 	supersession doctrine, a bargaining
proposal that would alter a statutory scheme, such as one set forth 	provisions of the
Education Code, is considered a non-mandatory subject of bargaining. (San Mateo City School
Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 864-866 [proposal that "would
3

replace or set aside" a statutory provision amounting to an "inflexible standard" or "immutable
provision"].) A subject that is covered by statute is negotiable to the extent a party seeks to
include such a provision without any change in substance.	
(Id.
at p. 866.)
BCCE contends that the proposal authorizing the District to recoup overpayments
occurring as a result
of
"error" is a non-mandatory subject
of
bargaining because the Labor
Code prohibits such involuntary deductions from employee paychecks, and that by insisting to
impasse on inclusion
of
such authorization in the successor agreement, the District violated the
EERA. BCCE further contends that the overpayment recoupment provisions violate the Code
of
Civil Procedure which sets forth the exclusive means for such action in terms
of
wage
garnishment and attachment procedures for the collection
of
legal debts.
The District contends that the recoupment provisions, which existed in the prior
agreement, constitute a mandatory subject
of
bargaining that in no way conflicts with
the
Labor Code.2 Further, it argues that because the parties previously agreed to the arrangement
and the current negotiations resulted in agreement as to all subjects except the disputed
provision, that provision continues in effect under the legal requirement obligating the
employer to refrain from unilaterally changing contract terms following the expiration
of
an
existing contract.
More specifically, BCCE relies on Labor Code sections 221, 222, and 224, for the
proposition that employers in California are prohibited from imposing 	involuntary
deductions or offsets against wages earned and owed to the employee. 	Section 221 states, in
part, that it "shall be unlawful 	any employer to collect or 	from an
Based on the correspondence of the parties included 	the stipulated record, I find
that BCCE made clear to the District its position that it could not be required to bargain over
the subject. (See State
of
California (Department
of
Personnel Administration) (2009) PERB
Decision No. 2081-S.)
4

employee any part of wages theretofore paid by said employer to said employee." Section 222
provides that it "shall be unlawful, in case of any wage agreement arrived at through collective
bargaining, either willfully or unlawfully or with intent to defraud an employee, a competitor,
or any other person, to withhold from said employee any part of the wage agreed upon."
Section 224, citing sections 221 and 222, provides that it is not "unlawful for an employer to
withhold or divert any portion of an employee's wages when the employer is required or
empowered so to do by state or federal law or when a deduction is expressly authorized in
writing by the employee to cover insurance premiums, hospital or medical dues, or other
deductions not amounting to a rebate or deduction from the standard wage arrived at by
collective bargaining."3 (Italics added by BCCE.) BCCE asserts: "In other words, the
employee may authorize a deduction from his or her paycheck, but unless the employee has
done so in writing, the employer may not make a deduction unless authorized by law to do so.
A union cannot agree on the employee's behalf."
In support of this reasoning, BCCE notes California State Employees' Assn. v. State of
California (1988) 198 Cal.App.3d 374. In that case the union filed a petition for writ of
mandate to compel the employer to make full salary payments without deductions to recoup
prior alleged overpayments. (Id. at p. 375.) The state's defense relied on Government Code
section 17051, which a prior appellate court had concluded authorized recoupment of such
overpayments through deductions from salary warrants coming due. (Id. at p. 376, citing
Geftakys v. State Personnel Board (1982) 138 Cal.App.3d 844.) The appellate court concluded
that the Geftakys decision, previously relied upon, had been superseded by the Legislature's
subsequent enactment of the wage garnishment and attachment procedures set forth in the
See San Lorenzo Education Assn. v. Wilson (1982) 32 Cal.3d 841.
5

Code of Civil Procedure. (Id., citing Code of Civil Procedure, sections 481.010, et seq. and
706.010, et seq.) The court stated:
Both the wage garnishment law and the attachment law protect
wages from creditors. The wage garnishment law provides the
exclusive judicial procedure by which a judgment creditor can
execute against the wages of a judgment debtor, except for cases
of judgments or orders for support. 	[Citation.]
(Id. at p. 377.) The court added that such a recoupment procedure also conflicts with the
"fundamental due process considerations" underlying the statutory debtor procedure. (Ibid.)
The parties have presented PERB with one issue: whether the language of the existing
contract, proposed for renewal, constitutes a mandatory or non-mandatory subject of
bargaining. 	I find that the contract proposal at issue here is a non-mandatory subject because it
is indistinguishable from the recoupment procedure considered in California State Employees'
Assn. v. State of California, supra, 198 Cal.App.3d 374. The District cites no authority
persuasively contradicting the cited case, and I therefore choose to follow its reasoning in
concluding that the recoupment procedure proposal here would be in conflict with the statutory
provisions for wage garnishment and attachment procedures, as well as the state constitutional
due process guarantee. (See Randone v. Superior Court (1971) 5 Cal.3d 536; Rios v. Cozens
(1972) 7 Cal.3d 792; see also California State Personnel Bd. v. California State Employees
Assn. (2005) 36 Cal.4th 758; State Personnel Bd. v. Department of Personnel Administration,
et al. (2005) 37 Cal.4th 512.)
The District does cite Social Services Union Local 35 v. Bd. of Supervisors a/Tulare
County, et al. (1990) 	Cal.App.3d 279. However, in that case the court concluded that the
involuntary collection of increases to health insurance premium were distinguishable from the
erroneous salary advances in California State Employees' Assn. v. State of California, supra,
198 Cal.App.3d 374, because the increased costs incurred "came into existence as a result of
6

collective bargaining" and therefore the deductions "did not constitute extrajudicial seizures."
(Social Services Union Local 35
v.
Bd.
of
Supervisors a/Tulare County, et al., supra,
222
Cal.App.3d at
p.
287.) The court added that the wage garnishment and attachment law was not
implicated since the employees, who had prior notice
of
the planned premium increases, could
have chosen to cancel insurance coverage
if
they wished to avoid the involuntary deductions
imposed once the union and the employer negotiated to impasse.	
(Id.
at pp. 287-288; see also
Chula Vista City School District (1990) PERB Decision No. 834, pp. 38 [union may
not by
contract waive employees' statutory rights].)
The District's contention that it acted lawfully in maintaining the practice
of
recoupment, alongside the subjects as to which the parties have reached agreement, must also
be rejected. I find misplaced the District's reliance on the rule that provisions as to which
agreement has not been reached are status quo terms and conditions the employer is required to
maintain following the expiration
of
the prior agreement. Here the parties have agreed to
disagree regarding whether the disputed proposal constitutes a mandatory subject
of
bargaining
which the District maintained to impasse.4 Since the disputed provision was not a mandatory
subject
of
bargaining, it expires by virtue
of
BCCE's lawful assertion that it cannot be required
to negotiate over it. (Chula Vista City School District, supra, PERB Decision No. 834,
pp. 39-41.)
Accordingly, I find that the District violated section 3543.5(c) by insisting to impasse
on a non-mandatory subject
of
bargaining. 	This conduct also violated sections 3543.S(a) and
3543.5(6).
4 The stipulated record contains correspondence from the District stating its desire to
move forward with conclusion of all terms for which there was agreement, and to sever the
overpayment issue, in a manner similar to the way such subjects had been reserved for post-
execution negotiation in the past.
7

REMEDY
Section 3541.S(c) grants 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, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
In this case it has been determined that the District violated its obligation to negotiate in
good faith by insisting to impasse on its proposal for recoupment
of
erroneous overpayments
directly from the paychecks
of
employees. As a result
of
this violation, the District has also
interfered with employees' right to participate in the activities
of
an employee organization
of
their choosing and denied BCCE its right to represent employees in their employment relations
with a public school employer. The appropriate remedy is to cease and desist from such
unlawful conduct.
The District shall also be ordered to reopen the negotiations for the successor
agreement without maintaining its proposal, or in the alternative (since the parties have
reached agreement as to the remaining subjects),
if
it is BCCE's choice, withdraw the proposal
for recoupment
of
overpayments and execute the parties' remaining agreement. (California
State Employees' Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4th 923, 946.)
It is also appropriate that the District be required to post a notice incorporating
terms
of
this order. 	Notice should be signed by an authorized agent
of
	District
indicating that it will comply with the terms thereof. 	The Notice shall not be reduced 	size.
Posting
of
such notice will provide employees 	notice that the 	has acted in an
unlawful manner and is being required to cease and desist from this activity and will comply
with the order. It effectuates the purposes of the EERA that employees be informed
of
the
resolution of the controversy and the District's readiness to comply with the ordered remedy.
8

(Davis Unified School District (1980) PERB Decision No. 116; see also Placerville Union
School District (1978) PERB Decision No. 69.)
PROPOSED ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, and pursuant to section 3541.S(b), it is hereby ordered that the Berkeley Unified School
District (District) and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Insisting to impasse on its proposal for recoupment
of
overpayments.
2.	
By the conduct described in paragraph
1,
interfering with bargaining unit
employees' right to participate in the activities
of
an employee organization
of
their choosing.
3. 	By the conduct described in paragraph
1,
denying to the Berkeley
Council
of
Classified Employees (BCCE) its right to represent its ·members in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1.	
Upon request, reopen the negotiations for the successor agreement
without maintaining its proposal, or in the alternative (since the parties have reached
agreement as to the remaining subjects),
if
it is BCCE's choice, withdraw the proposal for
recoupment
of
overpayments and execute the parties' remaining agreement.
2. 	Within ten (10) workdays
of
service
of
a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies
of
the Notice
attached 	The Notice must be signed by an authorized agent for
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 calendar days. Reasonable steps
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shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by an
other material.
3. 	Within 30 workdays of service of a final decision in this matter, notify
the General Counsel of the Public Employment Relations Board, or her designee, in writing, of
the steps the employer has taken to comply with the terms of this Order. Continue to report in
writing to the General Counsel, or her designee, periodically thereafter as directed. 	All reports
regarding compliance with this Order shall be served concurrently on BCCE.
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 the
Public Employment Relations Board (PERB or Board) 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 95811-4124
(916) 322-8231
FAX: (916) 327-7960
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, § 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing. 	(Cal. Code Regs., tit. 8, §§ 32135, subd. (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 3213 5( d),
provided the filing party also places the original, together with the required number of copies
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and
proof
of
service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c)
and
(d);
see also Cal. Code Regs., tit.
8, §§
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, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
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Admin is t rat iv e Law Judge
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