Santa Ana Unified School District (PERB 2332E)

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 41,
Charging Party, Case No. LA-CE-5203-E
v. PERB Decision No. 2332
SANTA ANA UNIFIED SCHOOL DISTRICT, October 3, 2013
Respondent.

Appearances: A. Alan Aldrich, Senior Labor Relations Representative, and Marianne Monfils,
Labor Relations Representative, for California School Employees Association and its
Chapter 41; Law Offices of Eric Bathen, Eric Bathen, Attorney, for Santa Ana Unified School
District.
Before Huguenin, Winslow and Banks, Members.
DECISION

WINSLOW, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both the California School Employees Association
and its Chapter 41 (CSEA) and Santa Ana Unified School District (District) to the attached
proposed decision by an administrative law judge (ALJ). This dispute centers on the District’s
obligation under the Educational Employment Relations Act (EERA)’ to negotiate over its
decision to reduce the work year of approximately 244 bargaining unit members in light of a
settlement agreement the parties reached in July, 2006 (2006 Agreement) that ostensibly

resolved an earlier unfair practice charge filed by CSEA over a similar earlier decision to

reduce hours and work years of employees.

: EERA is codified at Government Code section 3540 et. seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

The instant unfair practice charge alleges that the District unilaterally changed terms
and conditions
of
employment when it repudiated the 2006 Agreement and reduced the work
year for employees in May 2008, without completing negotiations regarding the decision and
effects
of
that decision. Rejecting the District's claim that the 2006 Agreement was void, the
ALJ ordered the District to honor that agreement. However, the ALJ refused to order any
remedy for the District's unilateral reduction in the 2008-2009 work year for approximately
244 employees, concluding that CSEA had waived its right to pursue a remedy at the
conclusion
of
negotiations for a successor contract in September 2008.
Both parties except to the proposed decision. CSEA appeals from the ALJ' s conclusion
that it waived its right to pursue its claim for back pay for approximately 244 unit members
whose work year was reduced in fiscal year (FY) 2008-2009; and the District appeals from the
ALJ's conclusion that the settlement agreement in the earlier unfair practice case was
authorized and valid.
The Board has reviewed the hearing record, the proposed decision, and both parties'
exceptions and supporting briefs. Based on this review, we find that the ALJ' s findings
of
fact
that form the basis for his conclusion that the settlement agreement in PERB unfair practice
charge Case No. LA-CE-4706-E was binding on the District are supported by the record. We
therefore adopt them as the findings
of
the Board itself, except as noted specifically and as
supplemented in the decision below. We also affirm the ALJ' s conclusion that the initial
settlement agreement is binding on the District in accordance with the discussion below.
However, for reasons discussed below, we reverse the ALJ's conclusion that CSEA
waived its right to seek a remedy for that part of the instant unfair practice charge alleging the
District unilaterally reduced the work years of approximately 244 employees; and we reject the
District's claim that this dispute should be deferred to arbitration.
2

FACTUAL SUMMARY
Beginning in 2003, the parties began litigating Case No. LA-CE-4706-E, based on a
complaint alleging that the District had refused to negotiate over its decision to reduce
employees' work years.
	At
issue in Case No. LA-CE-4706-E, was the meaning
of
two
separate articles in the parties' collective bargaining agreement (CBA). CSEA claimed that
Article 3.7.2.l required the District to negotiate all "work year changes," and to refrain from
implementing those changes until negotiations were completed.2 The District claimed that
CSEA had waived the right to negotiate over any decision to reduce the work year by virtue
of
the language in Article 16.1.2, which provided, in pertinent part:
The District reserves the right to reduce the hours
of
an occupied
or unoccupied position; the Association knowingly and
specifically waives its right to meet and negotiate over such
decisions
....
The District will not reduce the hours
of
an
occupied position below the minimum level required for
benefits, unless the incumbent can be transferred or reassigned
to a position with the minimum level
of
hours required for
benefits
....
Both parties reaffirm that Article 16 constitutes the
parties' agreement concerning the impact,
if
any,
of
the
District's decision to reduce hours
of
employment or to lay-off
bargaining unit employees.
When the District decides that it is necessary to reduce the work
year
of
a unit member, the District shall notify the Association
and provide an opportunity to meet and confer regarding the
decision and to negotiate the impact
of
such decision.
In July 2006, after completing the administrative hearing, the parties settled Case
No. LA-CE-4706-E by agreeing to remove Article 16.1.2 from the CBA effective July 1, 2007,
"unless negotiated to continue in a successor agreement." CSEA also explicitly waived its
2 Article 3. 7 .2.1 provides, in pertinent part:
All work year changes shall be brought to the attention
of
CSEA
....
Negotiations shall be scheduled regarding work year
changes. Work Year Changes will be implemented after the
conclusion of negotiations.
3

claim for back wages "or restoration
of
positions as a function
of
the remedy requested in Case
No. LA-CE-4706-E." The attorney for the District, Keith Breon (Breon), explained that he
recommended this settlement to his client even though Article 16.1.2 contained language
favorable to management's interests, because he believed there was a risk that the District
could incur substantial financial liability
if
PERB ordered a back pay remedy in Case
No. LA-CE-4706-E.
The parties signed the 2006 Agreement in two stages. CSEA signed it on July 13, 2006
at the District office in the presence
of
Breon and Amelia Ayala (Ayala), the District's director
of
classified services. The District did not sign the 2006 Agreement until July 18, 2006,
because Ayala had to discuss it with her superior, Juan Lopez (Lopez), the associate
superintendent
of
human resources. On July 18, 2006, Ayala verbally authorized Breon to sign
the agreement, according to Breon' s testimony.
The 2006 Agreement was not submitted to the District's governing board for
ratification or approval. Lopez and other District witnesses testified that they were unaware
the settlement was being negotiated, were unaware
of
its terms and would not have assented to
removing Article 16.1.2
if
they had been aware
of
such a proposal. Ayala was not called as a
witness by the District, although it had identified her as a possible witness.
The CBA expired on June 30, 2007, and during that summer the parties exchanged
proposals for a successor agreement, including proposals to modify Article 16.1.2, as
envisioned by the last clause
of
the 2006 Agreement. The District proposed to reinstate
Article 16.1.2, at least as to its provisions securing CSEA's waiver of the right to negotiate
over decisions to reduce work years. CSEA proposed certain modifications
of
this article.
During these negotiations the District was represented at the table by Ayala and occasionally
Lopez. Breon was replaced at the table in April 2007, by Lopez, but continued advising the
4

District regarding negotiations until September or October 2007. In July 2007, Breon
submitted to Ayala his ideas for District proposals concerning Article 16.1.2, including one
which read: "Establish and clarify the District's right to reduce the work year
of
positions
(occupied or unoccupied) and establish CSEA' s right to meet and confer regarding the affects
[sic]
of
District's decisions." 3
By September 13, 2007, the parties agreed to a successor CBA for a new three-year
term. This agreement simply continued all the terms
of
the previous agreement for a three
year term and permitted the parties to continue making proposals on all topics, except duration.
In January 2008, CSEA learned that the District was considering reducing the work
years
of
approximately 244 custodians and public safety officers. It demanded to bargain over
this decision, to which the District, through Eric Bathen, replied that Article 16.1.2 relieved the
District
of
any obligation to negotiate over a decision to reduce work years. After CSEA cited
the settlement agreement in Case No. LA-CE-4706-E, and ultimately produced a copy
of
it, the
District claimed to be unaware
of
the settlement or any other agreement to remove
Article 16.1.2 from the CBA.
The parties continued to negotiate for a successor agreement while maintaining their
respective positions about Article 16.1.2, the District insisting it had no obligation to bargain
over the decision to reduce work years and CSEA insisting on the validity
of
the 2006
Agreement, eliminating its prior waiver
of
the right to bargain over work year reductions.
In May 2008, the District sent notices to approximately 244 custodians, safety officers
and other employees, notifying them that their work year would be reduced for the
3 This proposal essentially attempts to reinstate provisions of Article 16.1.2. Clearly
such a proposal would have been unnecessary from the District's perspective, unless it
believed Article 16.1.2 had been deleted from the CBA.
5

2008-2009 FY. Negotiations regarding work year reduction for these employees had not
occurred.
Ultimately the parties sought the assistance
of
a mediator in June 2008. Among the 48
unresolved issues listed by CSEA were Article 16.1.2 and "dispute over reduction
of
work
years." The instant unfair practice charge was also filed in June 2008, alleging unilateral
reduction in work years and repudiation
of
the settlement agreement in Case
No. LA-CE-4706-E, among other things.
Mediation proceeded through the summer, resulting in a tentative agreement in August
2008. However, CSEA's membership decisively rejected this tentative agreement and the
parties returned to the bargaining table. By September 2008, a new tentative agreement was
reached and was ratified by the membership. The September agreement incorporated tentative
agreements reached the previous June and provided generally that "no further negotiations will
occur regarding 2007-2008 and 2008-2009." At issue here, is paragraph 16
of
the September,
2008 agreement which provided:
16) 	The [present] P .E.R.B. case shall be dismissed with
prejudice after ratification by both parties with the exception
of
the allegations related to 16.1.2. Both parties agree to negotiate
any and all issues related to 16.1.2 as soon as possible.
PERB issued a complaint on January 6, 2009, alleging that the District had unilaterally
changed its policy regarding work year reductions on January 22, 2008, when it approved the
reductions in work year without satisfying its duty to meet and negotiate with CSEA.4
4 The complaint cites Article 3. 7 .2 and the settlement agreement in Case
No. LA-CE-4706-E as the basis for the District's policy concerning work year reductions.
Article 3. 7 .2 provides, in pertinent part:
"Any proposed changes in work year, shall be monitored by
Human Resources, in cooperation with CSEA and negotiation
with CSEA:
...
Negotiations shall be scheduled regarding work
6

PROPOSED DECISION
After assessing the credibility
of
various witnesses, the ALJ concluded that Breon had
the apparent authority to enter into the settlement agreement that removed Article 16.1.2 from
the parties' CBA. He also concluded that the 2006 Agreement was enforceable even though it
had not been ratified by the District's governing board, distinguishing the legal authority relied
on by the District because it both pre-dated EERA, and because the statutes cited were not
applicable to labor agreements. Therefore, the ALJ held that the District had violated EERA
section 3543.S(c) by repudiating the settlement agreement in Case No. LA-CE-4706-E. He
ordered the District to honor the 2006 Agreement. 5
The ALJ rejected CSEA's request for a make whole remedy for approximately 244
employees whose work year was unilaterally reduced beginning in the 2008-2009 FY. In the
ALJ' s view, the agreement reached by the parties in September 2008, laid to rest all disputes
arising in 2007-2008 and 2008-2009 and specifically called for the dismissal with prejudice
of
the allegations contained in this unfair practice case, "with the exception
of
the allegations
related to [CBA Article] 16.1.2." 	The ALJ reasoned that because he resolved the issue
of
the
status
of
Article 16.1.2 by deleting that article from the CBA, the issue was resolved. He also
reasoned that because the reduction in work years occurred in 2008, and the parties agreed no
further negotiations would occur regarding 2008-2009, CSEA had therefore waived its right to
claim a remedy for the District's alleged failure to bargain over the 2008 work year reduction.
year changes. Work year Changes will be implemented after the
conclusion of negotiations."
5 Both parties have pointed out in their exceptions that the proposed order mistakenly
refers to Case No. LA-CE-5203-E. We agree that this was a clerical error that the order should
have referred to Case No. LA-CE-4706-E.
7

The District excepts to the part of the proposed decision upholding the 2006 Agreement
in Case No. LA-CE-4706-E, and CSEA excepts to the ALJ's conclusion that CSEA waived its
right to a make whole remedy for the employees whose work year was reduced for the 2008
2009 FY.
DISCUSSION
The Settlement Agreement in Case No. LA-CE-4706-E
The District asserts two separate reasons to nullify the 2006 Agreement settling Case
No. LA-CE-4706-E. First, it claims that Breon did not have authority to act as its agent in
entering into the 2006 Agreement. Second, the 2006 Agreement is invalid, according to the
District, because the governing board never ratified it and ratification of the 2006 Agreement
was required because the effect of the settlement was to alter the CBA. We address each claim
in turn.
The Authority of the District's Agent
PERB first addressed the issue of agency in Antelope Valley Community College
District (1979) PERB Decision No. 97 (Antelope Valley), a case relied upon by the ALJ to
conclude that settlement of Case No. LA-CE-4706-E was within the scope of Breon's authority
or apparent authority, as an agent of the District. However, only two of three Board members
participated in Antelope Valley, and although they agreed on the result, they based their
conclusion on two differing rationales. Drawing on the National Labor Relations Act (NLRA)
and California common law, Chairperson Harry Gluck (Chairperson Gluck) fashioned a test
that would find an agency relationship where "[ a]pparent authority results from conduct of the
principal upon which third persons rely in dealing with agents. The liability of the principal
attaches where such reliance was reasonable and results in a change in position by the third
party." (Antelope Valley, at p. 11.)
8

Member Ray Gonzales (Member Gonzales) concurred in the result, but disagreed with
Chairperson Gluck's application
of
the NLRA rule to EERA. The NLRA section 2(2)
specifically includes in its definition
of
employer "any person acting as an agent
of
the
employer, directly or indirectly." EERA has no similar definition. Therefore, in
Member Gonzales' view, the Legislature did not intend for the Board to adopt the private
sector rule, but instead PERB must decide agency on a case-by-case basis. It is not necessarily
reasonable to attribute acts
of
supervisors to the principal in all cases, even
if
the employees
perceive employer involvement in the supervisor's actions, according to Member Gonzales.
Because there was a split opinion in Antelope Valley, it is not considered precedential
authority, and the ALJ's reliance on it was misplaced. (Inglewood Unified School District
(1990) PERB Decision No. 792 (Inglewood), affd. sub nom., Inglewood Teachers Assn.
v.
Public Employment Relations
Bd.
(1991) 227 Cal.App.3d 767.) In Inglewood, PERB
determined that in order to establish ostensible or apparent authority
of
an employer's agent,
the union "was bound to establish representation by the principal [the employer]
of
the agency,
justifiable reliance by the party seeking to impose liability on the principal
...
and a change in
position resulting from that reliance." (Inglewood, at pp. 19-20.)
More recent PERB decisions concerning agency articulate slightly different tests. For
example, in Compton Unified School District (2003) PERB Decision No. 1518 (Compton), the
Board described the test as "whether the perception
of
agency is reasonable under the
circumstances" and cited with approval National Labor Relations Board (NLRB) case law:
"whether under all circumstances, employees 'would reasonably believe that the employee in
question [the alleged agent] was reflecting company policy and speaking and acting for
management."' (Citations omitted.) In West Contra Costa County Healthcare District (2011)
PERB Decision No. 2164-M (West Contra Costa), at p. 7, the Board reiterated this test: "Both
9

PERB and the courts have held that apparent authority to act on behalf of the employer may be
found where the manifestations of the employer create a reasonable basis for employees to
believe that the employer has authorized the alleged agent to perform the act in question."
Under either the Inglewood test or the tests more recently articulated in Compton and
West Contra Costa, the facts in this case sufficiently demonstrate that CSEA's reliance on
Breon's authority was reasonable. Breon had represented the District in labor relations matters
with the CSEA bargaining unit since 1978. In the particular case, Case No. LA-CE-4706-E,
Winston Best (Best), the District's then-associate superintendent of human resources, signed
PERB's Notice of Appearance form designating Breon as the District's representative in the
case.6 He testified without contradiction that the District, through its former Associate
Superintendent for Human Resources, Archie Polanco (Polanco), sought Breon's services in
defending against Case No. LA-CE-4706-E. Breon appeared on behalf of the District at the
informal conference in that case along with Polanco, and Breon prepared and signed a brief on
behalf of the District at the close of the formal hearing. 7
On July 13, 2006, Breon and Ayala, met with CSEA President, Ira Hyepock, and CSEA
Staff Member, Margie Strike, to discuss the settlement of Case No. LA-CE-4706-E. On that
day, CSEA signed off on the agreement in the presence of Breon and Ayala. The District did
not sign on that day because Ayala had to discuss changes in it with her superior, Lopez. On
July 18, 2006, according to Breon, Ayala authorized him to sign the 2006 Agreement. He did
6 The Notice of Appearance indicates that it remains valid until a written revocation of
it is filed with PERB. No revocation was filed by the District in Case No. LA-CE-4706-E.
7 During the litigation of Case No. LA-CE-4706-E, but before the 2006 settlement,
Best, Polanco and the District's Superintendent, Al Mijares, were all replaced.
10

so, and copies were distributed to CSEA officials who were present and to Ayala who was also
present.8
After entering into the 2006 Agreement on the District's behalf, Breon continued to
represent the District in negotiations with CSEA during part
of
the 2006-2007 FY until April
2007. Ayala, and occasionally Lopez, attended these negotiations as the District's
representative after Breon was no longer at the bargaining table. During these sessions, the
parties bargained over Article 16.1.2, the District proposing to restore it, or a modified version,
to the CBA, and CSEA resisting these proposals.9
In its exceptions, the District disputes that Breon had apparent authority to settle Case
No. LA-CE-4706-E, citing Lopez' testimony that he never authorized anyone to sign the
settlement agreement and did not even know settlement was being discussed. We concur with
the ALJ' s credibility determination in favor
of
Breon based on the fact that the District did not
call Ayala to testify. Ayala was the director
of
classified personnel and was identified by
Breon as the District's management representative who relayed to him that Lopez authorized
Breon to sign the 2006 Agreement. The unexplained failure to call Ayala after having listed
her as a potential witness allows us to reasonably infer that her testimony would have been
8 There are sufficient facts in this record to conclude that Breon also had actual
authority to enter into the settlement agreement in Case No. LA-CE-4706-E. In Chula Vista
Elementary School District (2004) PERB Decision No. 1647, at p. 7, PERB noted: "'Actual
authority' is that which an employer intentionally confers upon the agent, or intentionally or
negligently allows the agent to believe him or herself to possess." By designating Breon as the
District's representative in Case No. LA-CE-4706-E, the District gave him actual authority to
defend the District in the unfair practice proceedings in that case. By permitting a high-level
manager (the director of classified personnel) to accompany Breon in settlement discussions
which ultimately resulted in her direction to him to sign the agreement, the District allowed
Breon to believe he had actual authority from the District to enter into the agreement.
9 For example, the District submitted a proposal to CSEA as early as January 2007,
seeking to restore the terms of Article 16.1.2. This proposal references the earlier PERB
settlement "regarding layoffs" and notes that the settlement did not preclude either party from
negotiating changes in the contract language. (Charging Party's Exh. IV.)
11

contrary to the District's litigation position. (Daikichi Sushi (2006) 335 NLRB 622, 633.)
This is especially so, as Ayala presumably had direct knowledge
of
whether Lopez had
authorized Breon, through her, to sign the settlement agreement.
10
PERB has "determined that it will normally afford deference to the [ALJ's] findings
of
fact involving credibility determinations unless they are unsupported by the record as a
whole." (Anaheim City School District (1984) PERB Decision No. 364a.) Nor will the Board
overturn credibility determinations absent evidence to support overturning those
determinations. (County
of
Santa Clara (2012) PERB Decision No. 2267-M.) We conclude
that the ALJ' s factual finding that Ayala authorized Breon to sign the 2006 Agreement is
supported by the record as a whole. The District has offered no basis in its exceptions for
overturning this finding. Instead, the District asserts that the 2006 Agreement is not
enforceable as a matter
of
law because the District's governing board did not ratify it, relying
on various provisions in the Education Code. We tum now to those assertions.
The Validity
of
the Settlement Agreement Under the Education Code
The District claims that certain sections
of
the Education Code and cases interpreting
those sections prevent enforcement
of
the 2006 Agreement. We note at the outset
of
this
discussion that it is not within PERB' s jurisdiction to enforce the Education Code, and we are
10
The District also claims that Breon lacked authority to enter into the settlement
agreement in Case No. LA-CE-4706-E, because attorneys are not permitted to enter into
agreements on behalf
of
their clients without specific authority to do so. This argument begs
the question we have resolved. Breon did have the specific authority to enter into the
settlement agreement in Case No. LA-CE-4706-E as evidenced by his unrebutted testimony
that the District's Director of Classified Services, Ayala, gave him specific authorization to
sign the 2006 Agreement. Moreover, any limit a client may place on an attorney's authority to
settle a case is usually privileged communication. Neither CSEA nor PERB was in any
position to know of any limits the District may have allegedly placed on Breon's settlement
authority, and neither CSEA nor PERB can be held to a belated assertion that the settlement of
Case No. LA-CE-4706-E exceeded that authority.
12

powerless to remedy violations of the Education Code. ( Oxnard Educators Association
(Gorcey and Tripp) (1988) PERB Decision No. 664; Desert Community College District
(2007) PERB Decision No. 1921.) However, PERB does have jurisdiction to interpret the
Education Code in an effort to harmonize its provisions with EERA and other statutes under
PERB'sjurisdiction. (San Mateo City School Dist. v. Public Employment Relations Bd (1983)
33 Cal.3d 850, 865; Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168; Sonoma County
Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App. 3d 689; Cajon
Valley Union School District (1989) PERB Decision No. 766; Wilmar Union Elementary
School District (2000) PERB Decision No. 1371, at p. 13.) With these principles in mind, we
tum to the District's claims.
The District argues that Education Code section 17 604 invalidates the settlement
agreement in Case No. LA-CE-4706-E, because that agreement was never ratified by the
governing board. This section permits school districts to delegate the power to contract to a
superintendent or his or her designee and provides, in pertinent part: "Wherever in this code
the power to contract is invested in the governing board of the school district or any member
thereof, the power may by a majority vote of the board be delegated ..... " (Emphasis added.)
The statute also contains the caveat, "no contract made pursuant to the delegation and
authorization shall be valid or constitute an enforceable obligation against the district unless
and until the same shall have been approved or ratified by the governing board." We do not
agree with the District's assertion that this provision applies to unfair practice settlement
agreements.
Education Code section 17604 appears in the division and chapter of the Education
Code pertaining to school facilities and has not been applied outside the context of vendor and
construction contracts. (American Federation of Teachers v. Board of Education (1980)
13

107 Cal.App.3d 829, 836.) This statute does not govern settlement agreements made pursuant
to PERB proceedings, which are governed by EERA and found in the Government Code. For
similar reasons we are not persuaded by Amelco Electric
v.
City
of
Thousand Oaks (2002) 27
Cal.4 th 228 (Amelco) or Seymour
v.
State
of
California (1984) 156 Cal.App.3d 200 (Seymour),
both cited by the District. These cases involved a public works contract and a contract for the
lease
of
a building, respectively. Both
of
these transactions are governed by specific statutory
authorization and delegation requirements.
11
There are no similar requirements applicable to
the settlement
of
unfair practice cases.
The District also argues that City and County
of
San Francisco
v.
Cooper (1975)
13
Cal.3d 898 (Cooper), renders the settlement agreement void because it was not ratified by
the governing board. We agree with the ALJ's analysis
of
Cooper. 	That case was decided
under the Winton Act, the predecessor to EERA. By its specific terms, the Winton Act, at
former Education Code section
13
081 (d) required that binding decisions arising from the meet
and confer process must be ratified by a "written resolution, regulation, or policy
of
the
governing board effectuating [the negotiators'] recommendations." Thus, as Cooper observed,
any agreements reached pursuant to the Winton Act between employers and employee
representatives must be ratified by the governing board before they are binding on the school
district. As the ALJ correctly points out, the Winton Act, including Education Code
section 13081 (d) was repealed by SB 160, which enacted EERA, and no similar requirement
of
ratification is found in EERA. Thus, Cooper is inapplicable to this case. Cooper was decided
11
In Amelco, the Court refused to hold a city liable for abandonment
of
a public works
contract because "such [a] theory is fundamentally inconsistent with the purpose
of
the
competitive bidding statutes." (Id. at p. 228.) In Seymour, the court held that oral agreements
regarding the lease of a building were invalid because they were not approved by the Director
of General Services as required by Government Code section 11005, et seq., and Government
Code section 14608. 
14

a year before EERA was enacted.
	It
must be presumed that the Legislature was aware
of
the
Supreme Court's interpretation
of
the Winton Act explicitly requiring governing board
ratification
of
agreements arising from the meet and confer process. (Estate
of
Sax ( 1989) 214
Cal.App.3d 1300, 1304; Summerfield
v.
Windsor Unified School Dist. (2002)
95
Cal.App.4th
1026, 1032). Yet, the Legislature consciously chose not to import former Education Code
section 13081 ( d) into EERA.
12
As noted in Employment Development Dept.
v.
California
Unemployment Ins. Appeals Bd. (2010) 190 Cal.App.4th 178, 193 (EDD): "every word
excluded from a statute must be presumed to have been excluded for a purpose."
We are not willing to import a requirement that the Legislature rejected, especially in
light
of
our own precedents holding that ratification by a vote
of
a governing board is not the
sine qua non
of
a binding agreement entered into by an employer's duly authorized agents.
13
See San Francisco Unified School District (1984) PERB Decision No. 476 (San Francisco), at
pp. 5-6, where the Board upheld the validity
of
an agreement between the union and district
negotiators to extend a collective bargaining agreement beyond its termination date, even
though the district's governing board had not approved the agreement to extend.
First, we find no basis to conclude that the acceptance mandated
by EERA [sec. 3540.l(h)] must be nothing short
of
formal
adoption by the District board
of
education. Secondly, good faith
bargaining requires that designated negotiators be invested with
sufficient authority to fully engage in negotiations on their
principals' behalf. [Citations omitted.] Here, the District's
signatory to the extension agreement held himself out to be the
District's legitimate spokesperson and, except for the Petitioner's
assertion, there is nothing to indicate he was not.
12
Compare MMBA section 3505.1, which does require that a memorandum ofunderstanding (MOU) be presented to the governing body "for its determination" as a
condition for the MOU to be binding on the parties.
13
See Muroc Unified School District (1978) PERB Decision No. 80, at p. 21: "customs
indulged under the limited rights and obligations of the Winton Act are unpersuasive in the
context of negotiations pursuant to the EERA."
15

(See also Apple Valley Unified School District (1990) PERB Order No. Ad-209.)14
The District also cites to Education Code section 35161 in support of its claim that the
settlement agreement of an unfair practice case was void without ratification or approval by its
governing board. This section does not support the District's argument. Section 35161
permits delegation of any of its powers to an "officer or employee of the district .... The ...
board, however, retains ultimate responsibility over the performance of those powers or duties
so delegated."15 This provision supports CSEA's claim-once the settlement was entered into
by an agent of the District, it is the District's responsibility to assure performance of the duties
so delegated. In contrast to Education Code section 17604, this delegation provision
conspicuously omits the phrase, "no contract made pursuant to the delegation and authorization
shall be valid or constitute an enforceable obligation against the district unless and until the
same shall have been approved or ratified by the governing board." (Ed. Code§ 17604.)
The District's reliance on Education Code section 35163 to repudiate or deny the
legitimacy of Breon's agency is also misplaced. This statute states that every "official action
taken by the governing board of every school district shall be affirmed by a formal vote of the
members of the board .... " The District urges us to read into this statute the same provisions
14 We note that ratification is required to secure a binding agreement when such
requirement has been explicitly agreed to by the parties, either through negotiating ground
rules or in express contract language. (Capistrano Unified School District (1994) PERB Order
No. Ad-261; Downey Unified School District (1980) PERB Order No. Ad-97.) No evidence
was produced in this case to indicate that ratification by the governing board was a prerequisite
for the validity of the settlement agreement in Case No. LA-CE-4706-E.
15 Education Code section 35204 authorizes school districts to contract with a qualified
"attorney in private practice, as an employee or independent contractor ... for whatever
purpose the governing board deems appropriate."
16

contained in section 17604, namely a ratification requirement by a vote of the governing board.
For reasons following, we do not read section 35163 so expansively.
Section 3 5163 is more general than section 17 604 in that it does not contain language
invalidating contracts brokered by district agents unless they are ratified by the governing
board. Section 35163 prescribes no consequence for the failure of a governing board to affirm
"official actions" by a vote. Because the Legislature has shown that it knows how to impose a
requirement that contracts entered into by delegated agents be ratified (Ed. Code§ 17604) and
in particular that labor agreements be ratified by a governing board (MMBA § 3 505 .1; former
Education Code§ 13081(d)), it cannot be inferred that the more generally-worded
section 35163 imposes the same ratification requirement. (EDD.)
Reading section 35163 as expansively as the District urges, would conflict with
Education Code section 35161, which explicitly permits delegation of any power the district
itself possess. In this case, the District gave Breon apparent and actual authority to settle Case
No. LA-CE-4 706-E. There is no evidence that it limited his authority in terms of settlement
parameters. Without such parameters or other limits on his authority, it is the original
delegation to Breon to represent the District in Case No. LA-CE-4706-E that is "official
action" by the District. There is nothing in the record that indicates Breon was not authorized
to represent the District in the litigation of LA-CE-4706-E by appropriate "official action."
There is scant judicial guidance on the question of what constitutes "official action" by
a school district, although courts have invoked Education Code section 35163 to invalidate
non-ratified contracts in certain limited circumstances. Significantly, at least two have
demurred on the question of whether Education Code section 3 5163 is mandatory or directory.
(California School Employees Assn. v. King City Union Elementary School Dist. (1981)
116 Cal.App.3d 695, 702 (King City); Lucas v. Board of Trustees (1971) 18 Cal.App.3d 988,
17

992.) Cloverdale Union High School Dist.
v.
Peters (1928) 264 Pac. 273, held that a vote
of
the governing board was required to validate an employment contract to a teacher. 	King City
held that section 3 5163 required a vote or other manifestation
of
governing board assent to lay
off
employees.
Other cases have invoked Education Code section 35163 to immunize a school district
from tort liability for the unauthorized actions
of
school board members who allegedly
engaged in malicious conduct (Lipman
v.
Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d
224), or to void a contract where ratification is required by some other statute, as in
Santa Monica Unified Sch. Dist.
v.
Persh (1970) 5 Cal.App.3d 945 (former Ed.
Code§
15961).
We have found no case in which Education Code section 35163 supports the
invalidation
of
a litigation settlement agreement entered into by a district's agent under
circumstances present in this case, i.e., where the agent was authorized generally to represent
the District in the litigation with no apparent limitation on his authority; where the agent was
given explicit authority to enter into such agreement; where the settlement agreement placed
no encumbrance on the public fisc; and where there is no underlying statute or regulation either
requiring the governing board to ratify this agreement, or prohibiting an agreement unless it is
ratified.
Important public policy considerations also inform our interpretation
of
Education Code
section 3 5163. The purpose
of
EERA is to promote the improvement
of
employer-employee
relations. (EERA § 3540.) To that end, PERB is empowered to investigate alleged violations
of
the EERA and take any actions the Board deems necessary to effectuate the policies
of
EERA. (EERA § 3541.3(i).) Since the inception
of
the agency, settlement conferences
preceding formal hearings have been deemed actions necessary to effectuate the policies of
18

EERA. (PERB Reg. 32650.
16
) 	Policies encouraging voluntary settlement
of
labor disputes,
including alleged unfair practices, cannot be overstated. Early resolution
of
disputes without
litigation plays an obvious role in improving employer-employee relations, as it eliminates the
cost, acrimony, and time
of
litigation and allows the parties to craft an agreement that fits their
particular circumstance, PERB' s interest in assisting parties in settling their disputes cannot be
gainsaid.
	If
an employer could, by simply failing or refusing to present a settlement agreement
for ratification, renege on an agreement consented to by its agent on which both PERB and the
other party rely, there would be no stability or peace in labor relations. Public employers could
enter into agreements with exclusive representatives on any manner
of
disputes--grievance
settlements, collective bargaining agreements, unfair practice settlements--which more often
than not require concessions on both sides, and then renege on the agreement simply by
refusing or failing to put the matter to a vote
of
the governing board.
17
PERB' s role as a
credible broker in assisting parties to settle their disputes would also be seriously undermined
if
a party could renege on an agreement simply by claiming its governing body did not vote to
ratify a settlement
of
an unfair practice case. (See Victor Valley Joint Union High School
District (1980) PERB Decision No. 148; Union
of
American Physicians and Dentists (Stewart)
(1988) PERB Decision No. 663-S [both
of
which noted that PERB's policy
of
encouraging
16
PERB Regulations are codified at California Code
of
Regulations, title 8,
section 31001 et seq.
17 While employee organizations are not subject to similar statutes regarding delegation
of
public authority, it would be equally detrimental to labor stability
if
unions could renege on
agreements with impunity simply by claiming that their executive board did not vote on the
agreement. See Alhambra City and High School Districts (1986) PERB Decision No. 560, at
p. 14: "Absent good cause, once a tentative agreement is reached, there is an implication that
both parties' negotiators will take the agreement to their respective principals in a good faith
effort to secure ratification. (NLRB
v.
Electra-Food Machinery (9th Cir. 1980) 621 F.2d 956
[104 LRRM 2806];
HJ.
Heinz Co. v. NL.R.B. (1941) 311 U.S. 514 [7 LRRM 291].)
19

voluntary settlement agreements would be undermined if a party refused to honor the
agreement].)
Consequently, we believe that harmonizing Education Code section 35163 with other
sections of the Education Code, such as sections 35161 and 35204 and with EERA requires us
to read Education Code section 35163 narrowly. Its requirement that "every official action"
taken by a governing board shall be affirmed by "a formal vote of the members of the board"
does not by its plain meaning require that an unratified agreement be invalidated. This is in
contrast to section 17604, which explicitly requires ratification of contracts entered into
pursuant to that section as a condition to their enforceability. This difference between sections
17604 and 35163 suggests that if the Legislature intended that "every official action,"
including agreements entered into by delegated agents, must be ratified as a condition of
validity, it would have replicated the wording of section 17604 in section 35163.
Nor does Education Code section 35163 supersede Education Code sections 35161 or
3 5204, both of which permit a school district to delegate any of its powers to employees,
officers and attorneys, including attorneys in private practice who are retained as either an
employee or independent contractor. 18 The principles developed under PERB's precedents
regarding agency and the requirements of EERA section 3540.1 (h) are served by an
interpretation of section 35163 that recognizes that school districts frequently act through their
agents, especially in the area of labor relations, and that when those agents act with apparent or
18 Common sense requires some reasonable limitation on an alleged requirement that
"every official action" taken by a school district must be affirmed by a vote of the governing
board, otherwise the district would be paralyzed by the fact that its governing board cannot be
in session perpetually. For example, in a litigation context, it defies credulity that a governing
board would have to vote to approve litigation strategies, such as not calling Ayala as a
witness, or a hypothetical agreement by its attorney to assent to an extension of time to file a
pleading.
20

actual authority, a district may not rely on a failure to comply with Education Code
section 3 5163 to disavow an agreement made by the agent that was within the scope
of
his or
her apparent authority. This is especially true where, as here, the school district employer fails
to put the employee organization or PERB on notice that any settlement
of
an unfair practice
charge needs to be ratified by the governing board.
19
The District produced no evidence
of
regulations or written policy or established practice requiring governing board ratification
of
unfair practice settlements.
For all
of
the reasons discussed above, we conclude that Education Code section 35163
does not require a vote
of
the District's governing board to bind the District to a settlement
agreement
of
an unfair practice charge entered into by its duly authorized agent who had
apparent and actual authority to enter into the agreement where no one from the District put
either PERB or CSEA on notice that a ratification vote would be required.
Even
if
we were to accept the District's assertion that it must ratify an unfair practice
settlement agreement, the doctrine
of
equitable estoppel applies in this case to prevent the
District from relying on Education Code section 35163 under the circumstance
of
this case.
Equitable estoppel may be applied against the government where justice and right require it.
(Driscoll
v.
City
of
Los Angeles (1967) 67 Cal.2d 297, 306; City
of
Long Beach
v.
Mansell
(1970) 3 Cal.3d 462, 493 (Mansell).) Traditionally stated, "the vital principle is that he who by
his language or conduct leads another to do what he would not otherwise have done shall not
subject such person to loss or injury by disappointing the expectations upon which he acted."
19
If
ratification by the governing board was in fact required in this case, it is
logical to presume that Ayala would have alerted the parties, including PERB, to that fact.
Had that occurred, PERB would have refrained from dismissing the complaint in Case
No. LA-CE-4706-E until ratification had occurred. There was no evidence that she or anyone
else informed the parties to the settlement agreement that ratification by the governing board
would be required, although she did inform CSEA that she needed Lopez' approval before the
District signed the 2006 Agreement. 
21

(Seymour v. Oelrichs (1909) 156 Cal. 782, 795.) Generally, estoppel will be applied when four
elements are present: (1) the party to be estopped must be apprised of the facts; (2) he must
intend. that his conduct shall be acted upon, or must so act that the party asserting the estopped
had a right to believe it was so intended; (3) the other party must be ignorant of the true facts;
and (4) he must rely on the conduct to his injury. (Mansell, id.) However, estoppel will not be
applied "against the benefit of the public." (County of San Diego v. Cal. Water Etc. Co. (1947)
30 Cal.2d 817, 829-830.)
Equitable estoppel has been applied to estop a county from recouping public assistance
payments where those payments were made as a result of the county's negligent
misrepresentations. (County of Orange v. Carl D. (1999) 76 Cal.App.4th 429). The doctrine
has also been invoked to prevent a city from asserting paramount title to land (Mansell); to
prevent a school district from asserting the statute of limitations against a teacher seeking
reinstatement after having been erroneously advised by the district that reinstatement was
unavailable (Lerner v. Los Angeles Board of Education (1963) 59 Cal.2d 382); to prevent a
county from asserting a tort claims limitation statute after a county agent advised the plaintiff
not to hire an attorney (Farrell v. County of Placer (1944) 23 Cal.2d 624.)
In this case, we find the four elements of equitable estoppel present. By its assertion,
that ratification of the 2006 Agreement was required in order to bind the District, it must have
known of that position when its agents entered into the agreement. Yet such "fact" was
concealed from both CSEA and PERB, both of whom relied on the actual representation by the
District's agents, Breon and Ayala, that they had authority to enter into the agreement and no
further ratification or authorization was required. The District intended both CSEA and PERB
to rely on its representation that the unfair practice in Case No. LA-CE-4706-E was settled by
Breon's signature on July 18, 2006, because it was obviously bargaining for the outcome of
22

that agreement--CSEA would drop its litigation of Case No. LA-CE-4706-E and the
accompanying potential back pay award in exchange for the deletion of Article 16.1.2 from the
collective bargaining agreement the following year. The District also intended that PERB
would permit the withdrawal of the complaint it issued in the case, with prejudice. There is no
evidence that either PERB or the CSEA knew or should have known that ratification by the
District's governing board was required, and both PERB and CSEA obviously relied on the
District's representation that the settlement was final when Breon signed it. If CSEA had not
so relied, it would not have withdrawn its unfair practice charge, and PERB would not have
sanctioned the withdrawal.
We assume for the sake of this discussion that Education Code section 35163 is a
policy adopted for the benefit of the public. This statute assures, for example, that claims on
the public fisc will not be made based on unauthorized transactions by low-level employees; or
that employees will not be laid off without the formality of a vote by a majority of the
governing board at a public meeting; or that long-term employment obligations will not be
entered into absent a vote by the governing board.
Balanced against these interests are the equities in this case. Relying on the District's
representations, CSEA withdrew from litigation that could have resulted in a back pay remedy
for unit members. In deleting Article 16.1.2 from the CBA, it also gave up a significant
protection for unit members, i.e., the guarantee that the work hours of any position would not
be reduced below what was needed to qualify for health benefits.
PERB also relied on the bona fides of the parties when it assisted in the settlement of
LA-CE-4706-E. As the agency charged with the administration of BERA, PERB has an
institutional interest in assuring that settlements of unfair practice charges achieve labor peace.
PERB' s ability to broker settlement agreements is seriously undermined by conduct such as
23

occurred here, where a party claims that a settlement is void years after it was entered into,
after PERB nor CSEA has virtually any ability to revive the original charge. And, as the
subsequent developments evolved in this case, it is plainly evident how the District's complete
reneging on the 2006 Agreement created additional conflict, rather than labor peace.
No harm to the public fisc will occur as a result
of
estopping the District from using
Education Code section 35163 to deny the 2006 Agreement. To the contrary, that agreement
relieved the District
of
potential liability. The only arguably adverse result to the District
flowing from the 2006 Agreement relevant here was that it had a duty to bargain over the
decision to reduce the work year
of
bargaining unit employees. The duty to bargain this
decision does not obligate the employer to commit to any particular outcome. (Oakland
Unified School District (1982) PERB Decision No. 275; San Francisco Community College
District (1979) PERB Decision No. 105.) It is a process, not a prescription.
On balance, we conclude that estopping the District from asserting Education Code
section 3 5163 in this case does not nullify a strong rule
of
public policy adopted for the benefit
of
the public. As discussed above, it is not established that section 35163 even applies to the
settlement
of
unfair practice charges. PERB precedent strongly suggests that it does not.
(San Francisco.) We find the more significant public policy favoring labor peace and the
credibility
of
the PERB settlement process requires that parties coming to this Board with the
ostensible and actual authority to settle unfair practice charges do in fact bind their principals
to an agreement, unless the other party and PERB are put on notice
of
the limits
of
their
authority. Any remedies the District believes it may have against its former agent or its
employees for failing to bring the 2006 Agreement to the governing board for approval lie in
other forums.
24

Deferral to Arbitration
In its post-hearing brief to the ALJ, the District argued that because Article 16.1.2 is
still in the CBA due to the alleged invalidity of the 2006 Agreement, any dispute as to the
meaning of Article 16.1.2 must be deferred to binding arbitration. The proposed decision did
not address this deferral claim, and the District renews the claim in its exceptions. The District
asserts that both Article 16.1.2. and Article 3.7.2 are at the "center of the dispute between the
parties," that there is binding arbitration and therefore deferral is required. We disagree.
EERA section 3541.5(a)(2) prohibits PERB from issuing a complaint "against conduct
also prohibited by the provisions of the agreement between the parties until the grievance
machinery of the agreement, if it exists and covers the matter at issue, has been exhausted,
either by settlement or binding arbitration. However, when the charging party demonstrates
that resort of the contract grievance procedure would be futile, exhaustion shall not be
necessary." We conclude that resort to arbitration would be futile and that the dispute is not
covered by the grievance machinery.
The CBA prohibits the arbitrator from awarding back pay for any period greater than
the pay period immediately preceding the filing of the grievance. This limitation could
produce an award, if favorable to CSEA, that conflicts with EERA, which directs PERB to
remedy unfair practices with make-whole orders.20 A make-whole order in this case could
encompass a longer time period than that proscribed by the CBA.
While we recognize that we are not called upon in this case to rule on a post-arbitration
deferral claim, we note that contractual limitation on the scope of an arbitrator's authority to
20 Arbitrators' refusal to order make-whole remedies when they find bargaining
violations has resulted in PERB finding that such awards are repugnant to EERA. (Ramona
Unified School District (1985) PERB Decision No. 517; Dry Creek Joint Elementary School
District (1980) PERB Order No. Ad-81a.)
25

fully remedy contract violations that are also unfair practices could render resort to arbitration
futile within the meaning
ofEERA
section 3541.5(a)(2). (See Texaco, Inc. (1977)
233 NLRB 375, 376.) We see no reason to defer to a process that on its face, cannot provide
the same scope
of
remedy available in an unfair practice proceeding.
The parties' CBA defines a grievance as a "statement by a unit member that the District
has violated an express term
of
this agreement." (Art. 10.1.) With respect to Article 16.1.2,
the dispute is not about whether it has been violated, but is more existential: Is Article 16.1.2
"an express term
of'
the CBA or not? Therefore, the statutory requirement
of
EERA
section 354 l .5(a)(2) that the grievance machinery cover "the matter at issue" is not met here.
We also conclude that deferral would be inappropriate here because resorting to the
grievance procedure regarding Article 16.1.2 would be futile. 	Article 10.8.5
of
the CBA limits
the arbitrator's authority by prohibiting him or her from adding to, subtracting from or altering,
deleting amending, or modifying the terms
of
the CBA. Presented with the issue in this case-
whether the 2006 Agreement removed Article 16.1.2 from the CBA--the arbitrator would be
called upon to remedy the grievance either by "adding" Article 16.1.2 back into the CBA,
if
he/she found for the District, or by "removing" it
if
he/she found in favor
of
the Union. Doing
either would exceed the authority given to the arbitrator by the CBA and he/she would be
powerless to order such a remedy. This would make resort to arbitration to settle the issue
of
the status
of
Article 16.2.1 futile. 	(See Inglewood Unified School District (1991) PERB Order
No. Ad-222 [an arbitration award in excess of the scope
of
the arbitrator's authority may be
unenforceable].)
Finally, the Union represents that the CBA does not permit it to pursue grievances in its
own name except as to certain limited articles not relevant to this dispute. PERB has refused
to defer cases to arbitration where the employee organization itself did not have the right to file
26

a grievance over the alleged violation. (Moreno Valley Unified School District (1995) PERB
Decision No. 1106; Redwoods Community College District (1994) PERB Decision No. 1047.)
Article 10.1.1 provides:	
"If
rights guaranteed to the Association are violated, the Association
President may file a grievance without the signature
of
another individual unit member." The
District disagrees that this prevents the Union from pursuing a grievance alleging a violation
of
Article 3.7.2, but it presented no evidence
of
bargaining history that would rebut the Union's
interpretation or that illuminates the meaning or past application
of
Article 10.1.1.
Deferral is an affirmative defense and the party asserting it bears the burden
of
producing facts that justify deferral. (San Francisco Unified School District (2004) PERB
Decision No. 1730; Charter Oak Unified School District (1982) PERB Order No. Ad-125.)
The District failed in its burden to prove that the Union could in fact file a grievance in its own
name, or that the grievance procedure authorizes an arbitrator to resolve the dispute, or that an
arbitrator could award an appropriate remedy. For these reasons deferral is not appropriate in
this case.
The September, 2008 CBA
CSEA excepts to the conclusion by the ALJ that by entering into the September 2008
CBA settlement, the Union waived its right to pursue any make-whole remedy for those
employees whose work year was unilaterally reduced beginning in the 2008-2009 FY. We
reverse the ALJ' s determination for the following reasons.
21
It is well settled that a waiver
of
statutory rights, such as the right to pursue unfair
practice cases, or the right to negotiate, will not be lightly inferred. (San Marcos Unified
21
Because the language of the September 2008 agreement is not in dispute, the
question of whether there was a clear and unmistakable waiver is a question of law.
(Long Beach Community College District (2003) PERB Decision No. 1568, at p. 12.) The ALJ
concluded there was a waiver without making any credibility determinations. Consequently,
we review those conclusions without any particular deference to the proposed decision.
27

School District (2003) PERB Decision No. 1508.) As this Board recently noted in Fairfield
Suisun Unified School District (2012) PERB Decision No. 2262, at p. 16: "Waivers of the
right to bargain are disfavored and must therefore be shown by 'clear and unmistakable'
language." (See also Amador Valley Joint Union High School District (1978) PERB Decision
No. 74, at p. 8; Compton Community College District (1989) PERB Decision No. 720, at p. 19
[waiver by contract effective only if it was "fully discussed" and "consciously yielded" to].)
If the language of the agreement is clear, PERB may interpret the parties' agreement
and determine whether there is a waiver according to the agreement's plain meaning. If the
language is ambiguous, the Board may consider bargaining history or other extrinsic evidence
to assist in interpretation. (Clovis Unified School District (2002) PERB Decision No. 1504.)
However, the party arguing in favor of the waiver bears the burden of proving its existence,
given the strong public policy disfavoring waivers based on inference. (Long Beach
Community College District (2003) PERB Decision No. 1568.)
The ALJ determined that the Union had waived its right to pursue the current unfair
practice complaint with respect to any claim concerning the reduction in work year in 2008
2009. He based this conclusion on two portions of the parties' September 2008 CBA
settlement agreement: "No further negotiations will occur regarding 2007-2008 and 2008
2009" and paragraph 16, which states:
The [present] P.E.R.B. case shall be dismissed with prejudice
after ratification by both parties with the exception of the
allegations related to 16.1.2. Both parties agree to negotiate any
and all issues related to 16.1.2 as soon as possible.
The ALJ refused to order back pay or otherwise remedy the District's May 2008
unilateral reduction of the work year for approximately 244 employees. He interpreted the
above-quoted paragraph 16 as a waiver of the Union's right to pursue a make-whole remedy,
28

noting that in the Union's first amended unfair practice charge and in the requested remedy,
Article 16.1.2. was mentioned only as "an issue separate and distinct from work year
reductions." (Proposed Dec., at p. 16.) As we discuss below, this is a mis-reading
of
the first
amended charge.
We disagree that the language in the September 2008 CBA agreement constituted a
waiver
of
the Union's right to seek a remedy for the District's unilateral reduction in the work
years
of
approximately 244 employees. As a starting point, the language in question,
"allegations related to [Article] 16.1.2," is ambiguous. It becomes even more ambiguous after
a close reading
of
the first amended unfair practice charge, filed
13
days before the parties
reached their September 2008 settlement.
The amended charge alleged numerous unfair practices including: refusing to bargain
over the decision to reduce the work year and unilaterally implementing work year reduction
for approximately 244 employees before negotiations were completed; refusing to negotiate
over the decision to transfer duties from one classification to another; refusing to provide
relevant information; engaging in surface bargaining, etc.
The factual statement accompanying the unfair practice form organizes the allegations
in different groups associated with the separate alleged unfair practices. For example,
"[p]aragraphs 6 through 18 below address the District's unilateral reduction
of
unit member
work years." Those paragraphs narrate the following events: the settlement
of
Case
No. LA-CE-4706-E, resulting in Article 16.1.2 being removed from the CBA; no further
agreements to add Article 16.1.2 back in to the contract; the January 2008 notification by the
Union to the District that Article 16.1.2 had been removed from the CBA; the District's denial
of the settlement of Case No. LA-CE-4706-E; the District's approval of a work year reduction
for hundreds of custodians, school police and other safety officers; the Union's demand to
29

bargain over this decision to reduce work years; the exchange
of
proposals in the Spring 2008
without agreement on work year reduction; the May 18, 2008, District notification to
approximately 244 employees that their work years would be reduced in the 2008-2009 FY;
the occurrence
of
this reduction while the parties were engaged in negotiations over the matter.
The central dispute in this case is the status
of
Article 16.1.2--whether the 2006
settlement
of
Case No. LA-CE-4706-E was valid and therefore removed that article from the
CBA. The District maintained that this clause was in the CBA and it waived the Union's right
to bargain over any management decision to reduce work years. The Union believed the
opposite--that the waiver that was Article 16.1.2 was removed from the contract as
of
July 1,
2007, and therefore the District was obligated to bargain over the decision to reduce work
years before unilaterally reducing them. The parties' actions in the first six months
of
2008,
regarding work years, were inextricably related to their opposing views
of
Article 16.1.2. If
the District believed that Article 16.1.2 had been removed, it presumably would have
negotiated over its decision to reduce work years. Conversely,
if
CSEA believed that
Article 16.1.2 remained in the CBA, it presumably would not have demanded to negotiate over
the decision to reduce work years, a right arguably waived by contract. In short, the actions
the District took in January and May 2008 to effectuate the reduction
of
the work years and
about which CSEA complained in this unfair practice charge, flowed from their respective
views regarding the status
of
Article 16.1.2. On this basis, it is more than reasonable to
interpret the allegations regarding the 2008 work year reduction as being "related to Article
16.1.2."
In the proposed decision, the ALJ misapprehended the first amended charge. He stated,
"CSEA's first amended unfair practice charge listed seven 'charges' against the District. Only
30

the last 'charge' mentioned CBA Article 16.1.2:"22 Charge No. 7 (to be distinguished from
paragraphs in Factual Statement) reads, in pertinent part: "By repudiating the express
provisions
of
Article 16.1.2, which respondent asserts is in full force and effect, by reducing
unit member daily hours below 4 hour[ s] per day and eliminating district provided Health and
Welfare benefit coverage, RESPONDENT
...
refuses or fails to bargain in good faith."
There were several provisions in Article 16.1.2. One
of
them read: "The District will
not reduce the hours
of
an occupied position below the minimum level required for benefits,
unless the incumbent can be transferred or reassigned to a position with the minimum level
of
hours required for benefits." By the time PERB issued a complaint in the instant unfair
practice charge, the allegations concerning this portion
of
Article 16.1.2 regarding minimum
hours and benefits were either moot or settled. Obviously, this part
of
Article 16.1.2 was not
part
of
the parties' dispute when the case went to hearing. The dispute was over the part
of
Article 16.1.2 regarding the waiver
of
bargaining rights: "When the District decides that it is
necessary to reduce the work year
of
a unit member, the District shall notify the Association
and provide an opportunity to meet and confer regarding the decision and to negotiate the
impact
of
such decision."
By its allegations in Charge No. 7, CSEA attempted to lay claim to the beneficial
language
of
Article 16.1.2, but it consistently maintained throughout this litigation that
Article 16.1.2 was excised from the CBA in its entirety. Charge No. 7 was ultimately
irrelevant to the question
of
the validity
of
the 2006 settlement, and it was not logical for the
ALJ to imply that because Charge No. 7 was the only place in the first amended unfair practice
22
This statement is also inaccurate. Paragraph 7 of the factual statement of charges in
the first amended unfair practice charge references the settlement agreement in Case
No. LA-CE-4706-E and attaches it as an exhibit to the instant unfair practice charge. Because
the settlement agreement in Case No. LA-CE-4706-E mentions Article 16.1.2, we deem the
unfair practice charge itself to "mention" that article in paragraph 7.
31

charge that cited Article 16.1.2, that CSEA intended to waive its remedy for the wrongs that
flowed from the District's repudiation
of
the 2006 Agreement settling Case
No. LA-CE-4706-E.
We are also persuaded by the testimony concerning negotiations
of
the September 2008
CBA settlement that there was no clear and unmistakable waiver by that agreement. Both Alan
Aldrich (Aldrich), the CSEA staff representative for the Union, and Robert Chavez (Chavez),
the Union president, testified about the events that led to the September 2008 agreement. They
both testified that they, Lopez, and others participated in two sidebar meetings assisted by a
mediator on September 16, 2008. Chavez testified that when the subject
of
the work year
unfair practice charge came up, Aldrich said he was not going to withdraw the "reduction
of
work year unfair." Aldrich communicated this multiple times, and Chavez was certain
of
this
in his testimony.
Later that day, after an agreement had been reached, the parties reconvened to
summarize the terms
of
their agreement. According to Aldrich, Lopez, who took the lead in
the summarizing, failed to mention paragraph 16 in his summary. At that point, Aldrich
declared that that paragraph allowed CSEA to pursue the unfair practice on the "reduction
of
work year" and "will also create a vehicle for the parties to try to fix that language [regarding
Article 16.1.2] through subsequent negotiations." (Reporter's Transcripts [R.T.], Vol.
11.)
Lopez did not object to this statement. Nor did anyone else on the District's bargaining team
make any objection or contradict Aldrich's declaration.
Lopez also testified about the events
of
September 16, 2008, but was less definite than
the Union witnesses. He was not sure
of
who attended what sidebar meetings with the
mediator. Nor did he recall discussing the reduction of work year issue in the sidebar
meetings. Most significantly, Lopez did not deny Aldrich's account of the summary meeting.
32

For these reasons, we credit Aldrich's and Chavez' testimony and find that the District did not
dispute the Union's statement at the bargaining table, that the September 2008 settlement
agreement did not waive CSEA's right to pursue the reduction of work year portion of this
unfair practice charge.
The reduction in work years for the 2008-2009 FY is inextricably related to the parties'
dispute over Article 16.1.2. There is no evidence of a clear and unambiguous waiver of the
right to seek a remedy for the unilateral reduction in the work years, and we conclude there
was no such waiver.
The Remedy
PERB has broad powers to remedy unfair practices. EERA section 3541.S(c) provides:
The board shall have 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 our without back
pay, as will effectuate the policies of this chapter.
In cases in which the employer has unilaterally changed a term and condition within the
scope of negotiations, PERB has used its remedial power to order a return to the status quo ante,
including a restoration of pay, benefits and positions, if necessary. (Pittsburg Unified School
District (1983) PERB Decision No. 318 [make whole remedy is appropriate in a unilateral
change case in which the decision itself is negotiable]; Davis Unified School District, et al.
(1980) PERB Decision No. 116.) Decisions to change employees' work year are negotiable.
(North Sacramento School District (1981) PERB Decision No. 193.)
In this case, the District violated EERA section 3543.S(c) when it reduced the work year
of approximately 244 employees, effective July 2008, without negotiating over its decision with
33

CSEA.23 Therefore, an order directing the District to negotiate with CSEA over its decision to
reduce the work year for these employees is appropriate. It is also appropriate to order a
restoration of the status quo, including reinstatement to a full work year, back pay and benefits
for employees whose work year was reduced.
However, in this case we believe it is desirable to give the parties a limited time to
negotiate over the restoration of the status quo. The dispute between these parties over the
District's obligation to bargain over work year reductions began as early as 2003. Beginning
with the 2006 Agreement and continuing through the 2008 CBA settlement, the parties have
consistently agreed to "negotiate any and all issues related to 16.1.2 as soon as possible."
(September, 2008 CBA, par. 16.) As far as the record in this case indicates, the parties have not
reached agreement on matters related to Article 16.1.2. In addition, there may be several
different methods for these affected employees to be made whole. Therefore, a negotiated
remedy is quite likely the best way to determine the scope of a make-whole remedy in this case.
We note also that the record is not clear as to the extent of the work year reduction for these
employees. The initial unfair practice charge alleges that their work year was reduced from
twelve months to eleven-and-a-half months. In CSEA's June 14, 2008 request for factfinding, it
avers that approximately 244 employees had their work year reduced by either two weeks or
one month for the 2008-2009 FY.
In order to give the parties an opportunity to fulfill the obligations to negotiate over any
and all issues related to Article 16.1.2, including matters related to back pay, we will order the
23 The proposed decision did not specifically find a violation regarding the reduction in
these employees' work year because the ALJ concluded that the Union had waived its right to
seek a remedy. Based on our review of the administrative record presented to the ALJ, there is
substantial evidence that the District reduced the work year of 244 custodial and school safety
employees in May 2008 and did so without completing negotiations concerning this work year
reduction with the Union. We hold that such conduct violated EERA section 3543.S(c).
34

parties to negotiate for a period
of
60 days a remedy mutually satisfactory to them before the
matter will be submitted for compliance. (See Desert Sands Unified School District (2010)
PERB Decision No. 2092.)
If the parties have not reached an agreement regarding the remedy within that time, we
will order the District, upon demand by CSEA, to restore to each bargaining unit member
whose work year was reduced effective July 2008 the work year schedule he or she would have
worked in 2008-2009 and in years following had the District not unilaterally reduced his or her
work year in the 2008-2009 FY. We will also order that each employee whose work year was
reduced in July 2008 be paid back pay and benefits, with interest thereon at the legal rate,
between July
1,
2008, and the date he or she was offered reinstatement to the work year he/she
worked before the July 2008 reduction.
Finally, it is the ordinary remedy in PERB cases to order that the party found to have
committed an unfair practice to post a notice incorporating the terms
of
the order. Posting
of
such a notice informs employees
of
the resolution
of
the matter and
of
the employer's readiness
to comply with the ordered remedy. (Placerville Union School District (1978) PERB Decision
No. 69.) We order that remedy here.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law, and the entire record in the
case, it is found that the Santa Ana Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3540, et seq., by repudiating a
settlement agreement with the California School Employees Association and its Chapter
41
(CSEA) in Case No. LA-CE-4706-E; and by unilaterally reducing the work year of
approximately 244 custodians, public safety officers and other unit members effective
35

July 2008 without negotiating with CSEA concerning the decision to reduce the work year for
those employees.
Pursuant to section 3543.5(c) of the Government Code, it is hereby ORDERED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Repudiating agreements with CSEA, including the settlement agreement
in Case No. LA-CE-4706-E.
2. 	Taking unilateral action to reduce the work year of bargaining unit
members effective in July 2008 without negotiating with CSEA over the decision to reduce the
work year of those unit members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Honor the settlement agreement with CSEA in Case No. LA-CE-4706-E.
2. 	Bargain with CSEA upon request about the decision to reduce the work
year of the approximately 244 employees who were notified of such reductions in May 2008.
3. 	Make whole all bargaining unit members whose work year was reduced
as of July 1, 2008, by restoring each of them, upon request by CSEA, to the work year he or
she would have worked had the reduction not occurred and by paying each of them back pay
and benefits from July 1, 2008, to the date each of them is offered reinstatement to the work
year they each worked before July 1, 2008, with interest at seven (7) percent per annum.
With regard to the make whole remedy, this Order shall be stayed for 60 days to
provide the parties an opportunity to meet and negotiate over a mutually acceptable remedy.
In the event no agreement is reached within 60 days and the parties have not mutually agreed
to an extension of time within which to do so, CSEA shall notify the General Counsel of the
36

Public Employment Relations Board (PERB), or the General Counsel's designee, so that
compliance proceedings may be initiated.
4. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the District are customarily posted,
copies of the notice attached hereto as an Appendix. The Notice must be signed by an
authorized agent of the District, indicating that it will comply with the terms of this Order.
Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable
steps shall be taken to ensure that the notice is not reduced in size, altered, defaced, or covered
with other material.
5. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The District
shall provide reports, in writing, as directed by the General Counsel or her designee. All
reports regarding compliance with this Order shall be concurrently served on CSEA.
Members Huguenin and Banks joined in this Decision.
37

APPENDIX
NOTICE TO EMPLOYEES
POSTED
BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5203-E, California School
Employees Association and its Chapter
41
v.
Santa
Ana
Unified School District, in which all
parties had the right to participate, it has been found that Santa Ana Unified School District
violated the Educational Employment Relations Act (EERA), Government Code section 3540
et seq., by repudiating a settlement agreement with the California School Employees
Association and its Chapter
41
(CSEA) in Case No. LA-CE-4706-E; and by unilaterally
reducing the work year
of
approximately 244 custodians, public safety officers and other unit
members in July 2008, without negotiating with CSEA concerning the decision to reduce the
work year for those employees.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.	
Repudiating agreements with CSEA, including the settlement agreement
in Case No. LA-CE-4706-E.
2. 	Taking unilateral action to reduce the work year
of
bargaining unit
members effective in July 2008 without negotiating with CSEA over the decision to reduce the
work year
of
those unit members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1.	
Honor the settlement agreement with CSEA in Case
No. LA-CE-4706-E.
2. 	Bargain with CSEA upon request about the decision to reduce the work
year
of
the approximately 244 employees who were notified
of
such reductions in May 2008.
3. 	Make whole all bargaining unit members whose work year was reduced
as
of
July 1, 2008, by restoring each
of
them, upon request by CSEA to the work year he or she
would have worked had the reduction not occurred and by paying each
of
them back pay and
benefits from July 1, 2008, to the date each of them is offered reinstatement to the work year
they each worked before July 1, 2008, with interest at seven (7) percent per annum.

-
2
--
With regard to the make whole remedy, this Order shall be stayed for 60 days to
provide the parties an opportunity to meet and negotiate over a mutually acceptable remedy.
In the event no agreement is reached within 60 days and the parties have not mutually agreed
to an extension
of
time within which to do so, CSEA shall notify the General Counsel
of
the
Public Employment Relations Board (PERB), or the General Counsel's designee, so that
compliance proceedings may be initiated.
Dated:
-------
SANTA ANA UNIFIED SCHOOL DISTRICT
By:
----------
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

ST ATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 41,
Charging Party,
v.
SANTA ANA UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5203-E
PROPOSED DECISION
(6/15/2011)
Appearances: A. Alan Aldrich, Senior Labor Relations Representative, and Marianne Monfils,
Labor Relations Representative, for California School_Employees Association and its
Chapter 41; Eric Bathen, Attorney, for ~anta Ana Un~fied School District.
Before Thomas J. Allen, Admi~strative Law Judge.
PROCEDURAL HISTORY
In this case, a uriion argues that an employer made a unilateral change in policy by
repudiating the settlement
of
an earlier case before the Public Employment Relations
Board (PERB or Board) in violation
of
Educational Employment Relations Act (EERA)
section 3543.5(c).1 The employer denies any violation
oflaw,
arguing in part that the PERB
settlement is unenforceable.
The California School Employee_s Association a~d its Chapter
41
(CSEA) filed an
unfair practice charge against the Santa Ana Unified School District (District) on June 12,
2008. CSEA filed amended charges on September 3 and October 31, 2008. The Office
of
the
General·Counsel
of
PERB issued an unfair practice complaint (complaint) against the District
on January 6, 2009. The District filed an answer to the complaint on January 22, 2009.
1 EERA is codified at Government Code section 3540 et seq.

PERB held an informal settlement conference on February 17, 2009, but the case was
not settled. PERB held a formal hearing on June 30, August 5 and September 30, 2009. After
briefing, the case was submitted for decision on January 14, 2010.
FINDINGS OF FACT
The District is a public school employer under EERA. CSEA is the exclusive
representative
of
a unit
of
the District's classified employees.
From December 2003 to July 2006, CSEA and the District were parties to PERB Unfair
Practice Case No. LA-CE-4706-E (LA-CE-4706-E), which ended in a settlement agreement
mediated by a PERB Regional Attorney (PERB Settlement). The PERB Settlement was on
PERB letterhead and stated in full:
In 'the interest
of
promoting harmonious labor relations
between the parties and to avoid the uncertainty, inconvenience,
and expense
of
litigation, the California School Employees
Association & its Chapter
41
and the Santa Ana Unified School
District, in settlement
of
the above-captioned unfair practice
charge before the Public Employment Relations Board, agree as
follows:
1.
A dispute has arisen between the parties concerning
negotiations over regarding [sic] reductions
of
unit member work
years.
2. California School Employees Association & its
Chapter
41
hereby withdraws Unfair Practice Charge No.
LA-CE-4706-E with prejudice.
3·. This Settlement Agreement does not constitute an
admission
of
wrongdoing, contract or statutory violation, or
liability on the part
of
any party to the agreement.
4. This Settlement Agreement represents a full and
complet~ resolution
of
the claims and disputes between the
parties based upon the above-referenced matter.
5. The undersigned parties represent that they have read
and understand the terms of this settlement and that they are
2

authorized to execute this Settlement Agreement on behalf
of
their principals.
6.
Effective July
1,
2007, Article 16.1.2 shall be removed
from the provisions
of
the Agreement between CSEA Chapter
41
and the Santa Ana Unified School District; unless negotiated to
continue in a successor contract.
7.
Effective July
1,
2007, the parties shall retain all rights
with respect to layoff and reductions
of
hours as established by
provis[i]ons
of
the Education Code and Educational Employment
Relations Act [EERA].
8. Charging party will make no claim for back wages or
res[t]oration
of
positions as a function
of
the remedy requested in
Case No. LA-CE-4706-E.
The date
of
July
1,
2007, referenced in the sixth and seventh numbered paragraphs; was the
expiration date
of
the parties' collective bargaining agreement (CBA).
The preamble and the first five numbered paragraphs
of
the PERB Settlement represent
standard language in settlement agreements mediated by PERB. Pursuant to the second
numbered paragraph, PERB gave official notice that CSEA' s unfair practice charge was
withdrawn with prejudice, the complaint was dismissed, and the case was closed.
In LA-CE-4706-E, CSEA alleged that the District refused to negotiate a decision to
reduce employees' work years. The District argued that CSEA had waived its right to
negotiate the decision under CBA Article 16.1.2, which stated in part:
When the District decides that it is necessary to reduce the work
year
of
a unit member, the District shall notify the Association
and provide an opportunity to meet and confer regarding the
decision and to negotiate the impact
of
such decision.
CSEA denied this was a waiver and pointed to CBA Article 3.7.2.1, which affirmatively_stated:
All work year changes shall be brought to the attention of CSEA.
All work year change requests submitted to Human Resources
between October 30 and April 30 shall be noticed to CSEA in the
following May; all work year change requests submitted to
Human Resources between April 30 and O~tober 30 shall be
3

noticed to CSEA in the following November. Negotiations shall
be scheduled regarding the work year changes. Work Year
Changes will be implemented after the conclusion
of
negotiations.
The matter went to formal hearing before a PERB Administrative Law Judge (ALJ) on
September 29, 2004, but the ALJ retired before writing the decision.
Before another ALJ prepared to write the decision, a PERB Regional Attorney made an
effort to settle the matter. On April 6, 2006, the Regional Attorney sent the parties a letter
stating in part:
This letter is to confirm that the parties have agreed to make one
last attempt to settle this case. With that goal in mind, we have
scheduled telephonic informal settlement conferences on April
25, 2006 from 10:30 to 11:30 a.m. and April 27, 2006 at 2:30
p.m.
	lfwe
are making progress, the door is always open for our
having additional discussions.
Later, on May 30, 2006, the Regional Attorney issued an official notice
of
a telephonic
informal settlement conference to be held on June 15, 2006. Both the letter and the notice
went to GSEA and to attorney Keith Breon (Breon), who represented the District throughout
the litigation.
On December 16, 2003, the unfair practice charge in LA-CE-4706-E was served by
mail on Al Mijares (Mijares), the District's superintendent. On January 9, 2004, a notice
of
appearance form designating Breon as the District's representative was signed by Winston Best
(Best), the District's associate superintendent
of
human resources. The notice
of
appearance
stated:
I, the undersigned party, hereby designate as my representative
the person whose name and address appears below, and authorize
such representative to appear on my behalf in this preceding [sic].
This designation shall remain valid until I file a written
revocation of it with the Public Employment Relations Board.
4

5
After PERB issued a complaint on February 23, 2004, Breon represented the District at an
informal settlement conference, accompanied by Archie Polanco (Polanco), the District's
executive director
of
classified personnel. During the litigation, Mijares, Best and Polanco
were all replaced, but Breon was not.
In 2006, in response to the Regional Attorney's post-hearing settlement efforts, Breon
drafted a five-paragraph settlement proposal, stating in part:
2. 	CSEA shall make no claim for back wages or restoration
of
positions as a function
of
the remedy requested in
LA-CE-4706-E.
3. 	Effective July
1,
2007, Article 16.1.2 shall be deleted
from the provisions
of
the agreement between CSEA
Chapter
41
and the Santa Ana Unified School District
unless negotiated to continue in a successor contract.
Breon shared the draft proposal with Amelia Ayala (Ayala), the District's director
of
classified
personnel services and Breon's contact at the District.
Breon testified that Ayala told him she had shared the draft proposal with Juan Lopez
(Lopez), the District's assistant or associa~e superintendent
of
human resources. Breon further
testified that Ayala told him Lopez had problems only with the fourth numbered paragraph (not
quoted above). The District identified Ayala as a potential witness in this case but she did not
testify at the hearing. Under the circumstances, I credit Breon's testimony as to what Ayala
told him.
Lopez testified he had no recollection of seeing Breon' s draft and "would never
support" the deletion
of
language in CBA Article 16 .1.2, as Breon's draft proposed. Lopez
also·signed a declaration, admitted into evidence by stipulation, that neither he nor "anyone in
the District" participated "in the· negotiation, drafting or approval" of the PERB Settlem~nt.
Having credited Breon's testimony about Ayala's participation, I cannot credit Lopez'

testimony that no one in the District participated in drafting or appr.oving the PERB Settlement.
I also do not credit Lopez' denial that he participated, through Ayala,
in
the drafting and
approval
of
the PERB Settlement.
Some version
of
Breon' s draft .proposal was transmitted to the PERB Regional
Attorney, who prepared the final PERB Settlement.
	On
July 13, 2006, CSEA Chapter
President Ira Hyepock (Hyepock) and CSEA Labor Relations Representative Margie Strike
(Strike) signed the PERB Settlement during negotiations in the District's executive conference
room. Hyepock, Strike and .Breon testified that Ayala witnessed the signing, and her secretary,
Kelly Perlangeli (Perlangeli), made copies for everyone present. Like Ayala, Perlangeli did
not give evidence.
Hyepock and Strike testified that Camille Boden (Boden), the District Executive
Director
of
Risk Management, was present and received a copy
of
the PERB Settlement. In a
declaration, admitted by stipulation, Boden denied she was present or had any knowledge
of
the PERB Settlement. Boden also denied meeting Breon or participating in negotiations.
Although Breon did not specifically testify that Boden was present at the signing
of
the PERB
Settlement, he did testify she was there "part
of
the time" at negotiations that day. Given the
testimony
of
Hyepock, Strike and Breon, and the lack
of
testimony from Ayala or Perlangeli, I
do not credit Baden's denial, that she was present and had knowledge
of
the PERB Settlement.
Unlike CSEA, the District did not sign the PERB Settlement on July 13, 2006. Breon
testified that Ayala told him "she had to disc~ss it with Juan [Lopez], and whom else I don't
know." Later, on July 18, 2006, she authorized Breon to sign it in her office and in Strike's
presence. Perlangeli again made copies for those present.
In his declaration, Lopez stated in part, "I had no knowledge
of
the [PERB
Settlement]," and, "Neither I, nor any other District administrators or staff members, had seen
6

the [PERB Settlement]." Because I credit the testimony
of
Hyepock, Strike and Breon about
Ayala and Boden, I cannot credit Lopez' claim that no District administrators or staff members
had seen the PERB Settlement. I also do not credit Lopez' denial that he knew abo:ut the
PERB Settlement.
On this record, I cannot determine which District personnel, besides Ayala and Boden,
knew about the PERB Settlement. 	The District's current ·Superintendent and its current
Executive Director
of
Human Resources submitted declarations, admitted by stipulation, that
they had no knowledge
of
the PERB Settlement, but they did not assume their positions until
after the PERB Settlement was signed, and their predecessors did not testify. The record does
not show who,
if
anyone, normally monitored litigation for the District, but such a person
would presumably know that LA-CE-4706-E had been settled. Breon testified that "nobody in
the District administration ever asked _me what happed to LA-CE-4706-E."
There seems to be no doubt that the PERB Settlement was not submitted to the District
Board
of
Education (District Board) for approval. Various declarations submitted by the
District, and admitted by stipulation, offered the conclusion that such approval would be
required, but none stated the basis for that conclusion. There was no evidence that the .District
had any policy to that effect.
In the summer
of
2007, the parties attempted to negotiate a successor to their CBA.
Both parties proposed modified language for Article 16.1.2 without specifically discussing the
PERB Settlement. The parties did not agree on any modified language. Instead, in September
2007, the parties signed the following agreement (2007 Agreement):
The parties agree that it is in the interest of the District and CSEA
to have stability during the period in which the parties negotiate
the successor agreement. To this end the parties agree as follows:
7

1.	
The parties agree to create a new collective agreement
between CSEA and the District with a term
of
July
1,
2007 to June 30, 2010.
2. 	The above referenced collective agreement shall embody
all
of
the continuing specific terms
of
the agreement that
expired on June 30, 2007 with the exception
of
the
duration clause.·
3. 	Pursuant to the provisions
of
this agreement the parties
shall have a free and unlimited right to make successor
agreement proposals on any subject matter within scope,
with the exception
of
the previously determined duration
clause.
4. 	Nothing in this agreement shall be construed as limiting
any rights the parties otherwise retain under the provisions
of
the Educational Employment Relations Act (EERA).
Lopez signed the 2007 Agreement on behalf
of
the District after replacing Breon on the
District's bargaining team. There is no evidence that the 2007 Agreement was submitted to the
District Board for approval.
The parties continued their attempts to negotiate modified contract language, without
much success. In December 2007, Strike sent a letter to Lopez demanding that the District
bargain "the decision and effects
of
any decision to reduce the hours"
of
certain employees.
Attorney Eric Bathen (Bathen), who replaced Breon as District legal counsel, responded that
the matter was controlled by CBA Article 16, especially by the following language in
Article 16 .1.2:
Both parties reaffirm that Article 16 constitutes the parties'
agreement concerning the impact,
if
any,
of
the District's
decision to reduce hours
of
employment or to lay-off bargaining
u~it employees. 	·
Strike replied that Article 16.1.2 had been removed by the PERB Settlement. Bathen had no
previous knowledge of the PERB Settlement, nor was he able to locate a copy at the District.
Eventually, Strike provided him with a copy
8

In January 2008, the District Board took action to approve reductions in employees'
work years. CSEA Senior Labor Relations Representative, Alan Aldrich (Aldrich), who joined
the CSEA bargaining team, demanded to bargain any such reductions. Bathen, who joined the
District bargaining team, responded that the matter was controlled by CBA Article 16.1.2. The
parties continued to negotiate regarding contract language.and other issues between them,
reaching some tentative agreements in April 2008.
In April 2008, the District Board approved specific reductions
in
employees' work
years for 2008-2009, and in May 2008 it notified employees about those reductions. In June
2008, CSEA filed this unfair practice charge. In June, CSEA filed with PERB a request for
impasse determination and appointment
of
a mediator, listing "CBA Article 16, [section]
16.1.2" and "Dispute over Reduction
of
Work years" as two
of
forty-eight unresolved issues in
dispute._ In August 2008, with the help
of
a State Mediator, the parties reached a
comprehensive tentative agreement, but the CSEA membership voted against ratification.
In September 2008, with furthe~ aid from the State Mediator, the parties reached
another agreement (2008 Agreement), stating in part:
WHEREAS, the Parties have been negotiating for a
successor CBA since before the expiration
of
the previous
agreement on June 30, 2007; and
WHEREAS, the Parties now desire to end these
negotiations and settle all outstanding issues pursuant to the terms
of
this agreement.
NOW THEREFORE, the Parties agree as follows:
15) 	All tentative agreements as
of
June 3, 2008 shall be
incorporated into a new 2007-2010 agreement as set forth
in Exhibit A including the MOU regarding seniority tie
breakers dated August 1, 2008.
No further negotiations will occur regarding 2007-2008
and 2008-2009.
9

16) 	The [present] P.E.R.B. case shall be dismissed with
prejudice after -ratification by both parties with the
exception
of
the allegations related to 16.1.2. Both parties
agree to negotiate any and all issues related to 16.1.2 as
soon as possible.
The 2008 Agreement was ratified by both the CSEA member_ship and the District Board.
At the time
of
the 2008 Agreement, CSEA' s first amended unfair practice charge listed
seven "charges" against the District. Only the last _"charge" mentioned CBA Article 16.1.2:
Charge No.
7:
By repudiating the express provisions
of
Article
16.1.2, which respondent asserts is in full force and effect, by
reducing unit member daily hours below 4 hour[
s]
per day and
eliminating district provided Health and Welfare benefit
coverage, RESPONDENT [the District] refuses or fails to bargain
in good faith in violation
of
sections [sic] 3543.S(c). Said
conduct constitutes derivative violations
of
sections 3543.S(a)
and 3543.S(b). Said conduct also constitutes additional evidence
of
the district refusal to bargain over reduction
of
assignments as
described in paragraphs 6-18
of
the initial charge filed
of
June 12,
2008.
Two separate "charges" mentioned work year reductions:
Charge No.
1:
By flatly refusing to bargain over the decision to
reduce unit member work years, Respondent refuses or fails to
negotiate in good faith with the exclusive representative in
violation
of
EERA section 3543.S(c). Said conduct constitutes
derivative violations
of
EERA sections 3543.S(a) and 3543.S(b).
Charge No. 2: By unilaterally implementing some 244 reductions
of
unit member work years before the parties reached agreement
during contractually mandated negotiations, RESPONDENT
breaches the established terms
of
the collective agreement in
violation
of
EERA section 3543.S(c). Said conduct constitutes
derivative violations ofEERA sections 3543.S(a) and 3543.S(b).
The first amended charge also listed thirteen requested remedies, only one
of
which mentioned
Article 16.1.2:
9. 	The District shall be ordered to cease and desist engaging
in repudiation of Article 16.1.2 of the agreement with
respect to daily hours and Health and Welfare benefits.

11
Two separate requested remedies specifically mentioned work year reductions:
1.	
The District shall be ordered to cease and desist engaging
in a flat refusal to negotiate over the decision to reduce
unit member work years; and engaging in a flat refusal to
negotiate over the decision to reduce hours in general.
2. 	The District shall be ordered to cease and desist engaging
in unilateral reductions
of
unit member work years and
daily hours
of
employment.
Another requested remedy (number 3) was to order the District to "cease and desist engaging
in a generalized breach
of
the provisions
of
article 3. 7
.2
of
the [CBA]," which required
negotiations regarding work year changes.
Aldrich testified that during mediation he said in the presence
of
Lopez and Chad
Hammitt (Hammitt), the District's Executive Director
of
Human Resources, that CSEA would
not withdraw its unfair practice charge with regard to work year reductions. Aldrich
remembered that when he said this, Lopez was looking down at his papers. CSEA Chapter
President Robert Chavez, who was present, testified similarly: that Aldrich said CSEA would
not withdraw its charge regarding the reductions. Lopez and Hammitt testified they never
heard anyone in mediation say that the 2008 Agreement did not resolve the work year
reduction issue.
ISSUE
Did the District make a unilateral change
of
policy?
CONCLUSIONS OF LAW
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if

certain criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope
of
representation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
negotiations. (Walnut Valley Unified School District (1981) PERB Decision No
..
160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
In the present case, there is no dispute that the PERB Settlement concerned a matter
within the scope
of
representation, and the District repudiated it. The District argues, however,
that there was no change in policy because the PERB Settlement was never enforceable.
The District argues first that the PERB Settlement was unenforceable because it was
never approved by the District Board. The District's argument relies in part on City and
County
of
San Francisco
v.
Cooper (1975)
13
Cal.3d
898,
in which the Supreme Court agreed
with the conclusion:
that under the act a written agreement, though executed by
representatives
of
both the employer and employees, could not, in
itself, bind the school board. [Emphasis in the original.]
The District's argument seems to ignore the fact that the "act" to which the Supreme Court
referred was the Winton Act (fonrterly Education Code section 13080 et. seq.), which was
completely repealed and replaced by EERA. The Supreme Court explicitly relied on former
Education Code section 1308l(d), noting:
By the specific terms
of
section 13081, subdivision (d), the
Winton A~t provides that binding decisions arising out
of
the
"meet and confer" process.must be culminated "by written
resolution, regulation, or policy
of
the gov~rning board
effectuating [the negotiators'] recommendations." (Italics added
[by the Supreme Court].)
EERA does not so provide.
12

The District's argument also relies on Education Code section 17604, which states in
part:
Wherever in this code the power to contract is invested in the
governing board
of
the school district or any member thereof, the
power may by a majority vote
of
the board be delegated to its
district superintendent, or to any persons that he or she may
designate, or
if
there be no district superintendent then to any
other officer or employee
of
the district that the board may
designate. The delegation
of
power may be limited as to time,
money or subject matter or may be a blanket authorization in
advance
of
its exercise, all as the governing board may direct.
However, no contract made pursuant to the delegation and
authorization shall be valid or constitute an enforceable
obligation ~gainst the district unless and until the same shall have
been approved or ratified by the governing board, the approval or
ratification to be evidenced by a motion
of
the board duly passed
and adopted.
On its face, Education Code section 17604 applies "[ w]herever in this code [that is, the
Education Code] the power to contract is invested in the governing board
of
the schoo_l district
or any member thereof." Since the repeal
of
the Winton Act, contracts with exclusive
representatives are governed by EERA in the Government Code, and not the Education Code.
Furthermore, Education Code section 17604 appears in title
1,
division
1,
part 10.5,
chapter 5
of
the Education Code; part 10.5 is entitled "School Facilities," while chapter 5 is
entitled "Property Maintenance and Control." Education Code section 17604 has not been
applied outside the context
of
construction and vendor contracts. (See American Federation ,of
Teachers, Local No. 1050
v.
Board
of
Education (1980) 107 Cal.App.3d 829 [limiting the
application
of
former Education Code section 3965 6].)
I conclude that neither the Education Code nor EERA required that the PERB
Settlement be approved by the District Board to be enforceable. Furthermore, there was no
evidence that the District had any policy requiring such approval.
13

14
The District also argues that Breon lacked authority to sign the PERB Settlement. The
question is one
of
agency. In Antelope Valley Community College District (1979) PERB
Decision No. 97, PERB stated:
Under California common law, the acts
of
an agent within his
actual or apparent authority are binding on the principal.
[Emphasis in the original; footnote omitted.] Apparent authority
results from conduct
of
the principal upon which third persons
rely in dealing with agents. The liability
of
the principal attaches
where such reliance was reasonable and results in a change in
position by the third party.
Although the EERA does not specifically include "agent" in the
definition
of
employer, it is concluded that historically accepted
labor relations principles
of
agency authority and principal
liability must be applied to cases arising under the EERA.
In the present case, both CSEA and PERB changed positions in reliance on Breon's apparent
authority: CSEA withdrew with prejudice its unfair practice charge in LA-CE-.4706-E,
specifically waiving any claim for back wages or restoration
of
positions, while PERB
dismissed its unfair practice complaint and closed the case. The question is whether this
reliance was reasonable.
After the original unfair practice charge in LA-CE-4706-E was served on the District's
Superintendent, the District's Associate Superintendent
of
Human Resources designated Breon
as the District's representative. That designation was never revoked. Breon represented the
District at the informal settlement conference, accompanied by the District Executive Director
of
Classified Personnel Services, and later throughout the litigation. CSEA representatives
signed the PERB Settlement in the presence
of
the District's Director
of
Classified Personnel
Services and Executive Director
of
Risk Management, in the District's executive conference
room. A CSEA representative later saw Breon sign the PERB Settlement in the presence and
the office of the Director of Classified Personnel Services.

I conclude that both PERB and CSEA reasonably relied on Breon's apparent authority,
and that the PERB Settlement is therefore enforceable. The District's repudiation
of
the
Settlement Agreement was therefore a unilateral change in policy that violated EERA
section 3543.S(c). Because this conduct interfered
with
the rights
of
employees and denied the
rights
of
CSEA, it also violated EERA section 3543.S(a) and (b).
REMEDY
EERA section 3541.S(c) states:
The board [PERB] shall have the power to issue a decision and
order directing an
off
ending 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 [EERA].
In the present case, the District has been found to have violated EERA by repudiating the
settlement agreement with CSEA in Unfair Practice Case No. LA-CE-4706-E. It is therefore
appropriate to order the District to cease and desist from such conduct and to honor the
settlement agreement, including its deletion
of
CBA Article 16.1.2. It is also appropriate to
order the District to post a notice incorporating the terms
of
the order. (Placerville Union
School District (1978) PERB Decision No. 69.)
CSEA argues that it is appropriate to order a remedy for employees whose work years
were reduced in 2008-2009. The problem with CSEA's argument is the 2008 Agreement
between CSEA and the District, which states in part:
WHEREAS, the Parties have been negotiating for a
successor CBA since before the expiration of the previous
agreement on June 30, 2007; and
WHEREAS, the Parties now desire to end these
negotiations and settle all outstanding issues pursuant to the terms
of
this agreement.
15

16
NOW THEREFORE, the Parties agree as follows:
15) 	All tentative agreements as
of
June 3, 2008 shall be
incorporated into a new 2007-2010 agreement as set forth
in Exhibit A including the MOU regarding seniority tie
breakers dated August 1, 2008.
No further negotiations will occur regarding 2007-2008
and 2008-2009.
16) 	The P .E.R.B. case shall be dismissed with prejudice after
ratification by both parties with the exception
of
the
allegations related to [CBA Article] 16.1.2. [Emphasis
added.] Both·parties agree to negotiate any and all issues
related to 16.1.2 as soon as possible.
In this Proposed Decision, I have resolved the allegations related to CBA Article 16.1.2 by
upholding the PERB Se_ttlement, which deleted that Article in its entirety.
The 2008 Agreement
~ooks
to the future. The parties express a desire to end their
negotiations and settle "all outstanding issues." The parties agree to negotiate "any and all
issues related to [Article] 16.1.2," but no further negotiation will occur "regarding 2007-2008
and 2008-2009" when the work year reductions occurred. Most significantly, the parties
agreed that the present case should be dismissed with prejudice "with the exception
of
the
allegations related to [Article] 16.1.2." In both the specific "charges" and the requested
remedies in CSEA's first amended unfair practice charge, Article 16.1.2 was mentioned only
as an issue separate and distinct from work year reductions.
The 2008 Agreement could have excepted from dismissal "the allegations related to
work year reductions" or "the allegations related to Article 3.7.2," which required negotiations
regarding work year changes, but it did not. Reading the 2008 Agreement together with the
unfair practice charge, I conclude that the 2008 Agreement clearly and unambiguously
disposed of all issues relating to past work year reductions. I therefore conclude that it would

17
be inappropriate to order a remedy for employees whose work years were reduced in 2008
2009.
PROPOSED ORDER
Upon
the foregoing findings
of
fact and conclusions
of
law, and the entire record in this
case, it is found that the Santa Ana Unified School District (District) violated the Educational
Employment Relations Act (Act), Government Code section 3540 et seq., by repudiating a
settlement agreement with the California School Employees Association and its Chapter
41
(CSEA)
in
Unfair Practice Case No. LA-CE-5203-E.
Pursuant to
section 3541.S(c)
of
the Go~ernment Code, it hereby is ORDERED that the
District, its governing board and
its
:representatives shall:
A. 	CEASE AND DESIST FROM:
Repudiating agreements with CSEA, including the settlement agreement in
Unfair Practice Case No. LA-CE-5203-E.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1.	
Honor the settlement agreement with CSEA
in
Unfair Practice Case No.
LA-CE-5203-E.
2. 	Within ten (10) workdays
of
the service
of
a final decision in this matter,
post copies
of
the Notice attached hereto as an Appendix at all work locations where notices to
employees in the District customarily are posted. The Notice must be signed by an authorized
agent
of
the District, indicating that it will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.

18
3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the General Counsel
of
the Public Employment Relations Board (PERB or Board),
or the General Counsel's designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
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 during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
PERB Regulation 32135(d), provided the filing party also
places the original, together with the required number of copies and proof
of
_service, in the
U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090 and 32130.)

19
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).)
Thomas J. Allen
Administrative Law Judge