PERB Decision No. 2290E

Texto completo

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
INGLEWOOD UNIFIED SCHOOL DISTRICT,
Charging Party,
V.
INGLEWOOD TEACHERS ASSOCIATION,
Respondent.
Case No. LA-CO-1491-E
PERB Decision No. 2290
October 29, 2012
Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Joshua E. Morrison, Attorney, for
Inglewood Unified School District; California Teachers Association by Robert E. Lindquist,
Attorney, for Inglewood Teachers Association.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Inglewood Unified School District (District)
of
the Office
of
the General Counsel's dismissal ( attached)
of
its unfair practice charge. The charge, as
amended, alleged that the Inglewood Teachers Association (Association) violated the
Educational Employment Relations Act (EERA)1 by failing or refusing to meet and confer
with the District. The charge alleged that this conduct constituted a violation
of
EERA
section 3543.6, subdivision (c).
The Board has reviewed the entire record in this matter and given full consideration to
the appeal and the response thereto. Based on this review, the Board finds warnmg
dismissal letters to be well-reasoned, adequately supported by record and accordance
with the applicable law. Accordingly, the Board hereby adopts the warning and dismissal
letters as the decision of the Board itself, as supplemented by the discussion below.
1 EERA is codified at Government Code section 3540 et seq.

BACKGROUND
The Association is an affiliate
of
the California Teachers Association (CTA) and the
National Education Association. The Association is the exclusive representative
of
certificated
employees who are employed mainly as contract classroom teachers in kindergarten through
grade level 12. The Association and the District board entered into a collective bargaining
agreement (CBA) effective July 1, 2006 through June 30, 2009.
The CBA includes the following articles: 	Article VIII (8) governing Work Days and
Hours; Article XI (11) governing Class Size; Article XII (12) governing Compensation;
Article XIII (13) governing Fringe Benefits; Article XXVI (26) containing the Reopener
Clause; and Article XXVIII (28) containing the Zipper Clause.
The Zipper Clause states as follows:
The parties agree that all negotiable items have been discussed
during negotiations leading to this Agreement, including salaries
and benefits, leaves and transfers and therefore further agree that
negotiations will not be reopened on any item during the life
of
this Agreement except by mutual agreement or as provided
elsewhere in this Agreement.
The Reopener Clause states as follows:
No later than April 1
of
each year
of
this agreement the parties
agree to reopen negotiations on Article 12, Compensation, and
Article 13, Fringe Benefits, and one additional article per party.
2
On September 3, 2010, the parties entered into a tentative agreement (TA), amending
certain terms and rolling over the others 	extending the force and
	of
the CBA through
30, 2013.2 The 	amended the Reopener Clause to state:
No later than April 1
of
each year
of
this agreement the parties
agree to reopen negotiations on two (2) articles per party,
exclusive of Article 12 & Article 13.
(Strike-outs and underlining omitted.)
Also on September 3, 2010, the parties entered into a memorandum of understanding
to reduce the school year.

As alleged by the District, on February 23, 2011, the District "provided" the
Association with the Proposal for a Side Letter Agreement (Proposal). This document
describes a then current deficit
of
$32 million and states that a "fiscal recovery plan has been
initiated."
It
next includes a chart showing reductions that had already been approved by the
District board, including the elimination
of
positions, the transfer
of
funds, the reinstatement
of
a revenue source and the elimination
of
cellular telephones with exceptions for certain
administrators.
It
then states that there was still a large gap between the approved reductions
and the deficit, as a result
of
which the District was to submit to the District board for
approval, also on February 23, 2011, a resolution to reduce or eliminate particular kinds
of
services (338 full-time equivalents).
It
concludes with a proposal "as an option to reduce the
number
of
full time equivalents." The option includes a chart listing certain proposals,
estimated cost savings associated with each, and comments. The proposals include
reinstatement
of
furloughs, elimination
of
certain fringe benefits, a salary rollback, a freeze on
step in column and an increase in class size ratios and maximums with state waiver. The
document concludes with: "The reductions are painful but necessary. The District is hopeful
that the parties can reach an Agreement that will allow the District to emerge from this crisis
fiscally solvent."
The Association filed a response to the charge on October 26, 2011 (Response).3 The
23, 2011, was one a
financial information meetings that were being held in response to the District's fiscal crisis
and were intended to provide information regarding s efforts to cut costs and avoid
Absent a factual dispute, PERB may rely on facts provided by the respondent in
accordance with PERB Regulations (PERB Regulations are codified at Cal. Regs., tit. 8,
sec. 31001 et seq.). (Service Employees International Union #790 (Adza) (2004) PERB
Decision No. 1632-M.) As noted in the dismissal letter, nothing in the MMBA or PERB case
law requires a Board agent to ignore the facts provided by a respondent, and to only consider
the facts provided by the charging party. (Board agent's dismissal, p. 5.)
3

state receivership. The format
of
the Proposal is similar in content and format to financial
information disclosures provided by the District to the Association in the course
of
these
meetings showing how much had been reduced as
of
February 23, 2011, March 9, 2011, and
March 23, 2011. (Response, Exhibit 5.) Also according to declarations provided by the
Association, no member
of
the bargaining team attended these meetings, the parties agreed as a
ground rule that they were not engaged in "meeting and negotiating" at these meetings, and at
every such meeting the parties acknowledged the existence and operation
of
this ground rule.
On February 28, 2011, the District board met and adopted the District's Certificated
Staffing Formula for bargaining unit and non-bargaining unit positions. The Certificated
Staffing Formula carried over classroom teaching staffing ratios contained in the Proposal.4
As alleged by the District, the president
of
the Association, Peter Somberg (Som berg), was
present and addressed this item at the meeting. The special agenda states that the District "is
implementing a fiscal recovery plan" and "[b ]y approving the staffing formulas, the District
will have a standardized basis in which to make staffing decisions."
The charge does not allege that the District ever provided the Association with the
Certificated Staffing Formula. Nor does the charge allege that either the Proposal or the
Certificated Staffing Formula was sunshined for purposes
of
initiating negotiations.
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson
(Hasson) informed Somberg that the District "will be submitting its initial proposal to a
reopener Agreement for 2011-12 to the Governing Board for public hearing [on April 2 7,
2011] pursuant to Government Code 3547" and that
he should "consider this a formal demand
to bargain." Hasson's letter does not refer back to the February 23, 2011, Proposal.
For example, the Proposal proposed increased class size ratios for kindergarten
through third grade from 30: 1 to 32: 1, and increases in class size ratios for other grade levels
as well, in order to allow the District "to reduce certificated personnel expenditures and avoid
insolvency." The Certificated Staffing Formula shows the same increased class size ratios for
kindergarten through third grade from 30: 1 to 32: 1.
4

By letter dated April 26, 2011, Somberg informed Hasson that "the District's demand
to bargain is untimely because Article XXVI requires the parties to reopen negotiations no
later than April 1" and that the Association "declines to engage in negotiations pursuant to
your request." The letter also states, "[a]s you explicitly know - because you were a party to
the negotiations - the District is precluded from reopening Articles XII and XIII by operation
of
Article XXVI."
On April 27, 2011, the Initial Proposal for 2011-2012 Reopener Negotiations
(Reopener Proposal) was sunshined. The agenda states that the Reopener Proposal was
required to be sunshined "prior to the initiation
of
negotiations." It goes on to state, "the initial
proposal submitted by the Inglewood Unified School District for reopener negotiations is
recommended for adoption." The agenda further states that "[b]y approving this request, the
District will be able to begin negotiations for a reopener agreement." Under fiscal impact, the
agenda states that it is "subject to negotiations. "5
Attached to the agenda is a document entitled "Proposals for a Reopener Agreement."
It
describes the District's implementation
of
a fiscal recovery plan, but states that it did not go
far enough in reducing the deficit and therefore "the District will propose changes to
workyear/workhours, compensation, benefits, and class-size."
It
concludes that "in accordance
with the current bargained Agreement, the District proposes that the following contract articles
be bargained for the 2011-12 year," specifically listing Articles VIII,
XI, XII
and XIII.
By letter dated August 5, 2011, counsel for the District informed CTA Regional
Uniserve Director Jeff Good that "the District demands immediate bargaining on the collective
bargaining proposals recently sunshined by the District." Attached to the letter is an amended
initial proposal dated July 27, 2011. The amended proposal deletes references to Articles XII
5 This is in contrast to the special agenda for the District board meeting of February 28,
2011, which describes the fiscal impact for the Certificated Staffing Formula as "none."
5

and XIII. 6 The amended initial proposal also deletes Article VIII on Work Days and Hours,
maintains Article XI on Class Size and adds Article XXVI on Negotiation Procedures. The
District proposed the following in regard to Article XXVI:
Amend Article XXVI to allow either party to present unlimited
reopener proposals for the 2011-12 and 2012-13 school years at
any time.
The District's letter explains its goal in reopening Article XXVI:
[O]ur goal in opening Article XXVI is to remove a barrier that
arguably prevents the parties from collectively bargaining certain
cost saving measures, such as adjustments to salary and/or
benefits. Once this barrier has been removed, we intend to
present bargaining proposals (including with respect to
Articles
12
and 13) aimed at restoring the District to fiscal
solvency.
By letter
of
August 18, 2011, CTA responded that the Zipper Clause acts as a bar to any
negotiations during the term
of
the agreement. On September 28, 2011, the District filed the
unfair practice charge.
DISMISSAL OF THE UNFAIR PRACTICE CHARGE
The Office
of
the General Counsel issued a warning letter on November 10, 2011,
finding that the allegations regarding the Proposal and Certificated Staffing Formula were
untimely. The warning letter concluded that notwithstanding the timeliness issues, the charge
failed to state a prima facie case
of
refusal to bargain. The District filed an amended charge on
November 29, 2011, alleging although the Proposal
of
23, 2011, was not a
6 Articles XII and XIII relate to Compensation and Fringe Benefits, respectively, and
presumably were deleted from the District's initial proposal because, as pointed out in
Somberg's letter of April 26, 2011, these articles are not subject to being reopened
plain language of the Reopener Clause. The District acknowledged this point in its Request for
Impasse Determination/Appointment of Mediator (Request), filed with PERB on August 30,
2011, of which the Board takes official notice. Attached to the Request is the Statement
of
Facts prepared by the District, which states "each year the District may open any two articles
other than Articles 12 and 13." As for the procedural history and status of that matter, the
Association filed an opposition dated September 6, 2011, and the District withdrew its request.
PERB issued the notice of withdrawal and closure of case on September 7, 2011.
6

"reopener proposal," the document was still effective for purposes
of
reopening the CBA under
the Reopener Clause, citing Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223. To find otherwise, alleges the District, is to elevate form over substance.
The amended charge also alleged that "[w]ith respect to the topic
of
class size, the April 27
document relates back to the February 23, document" and that the Association "did not
communicate its refusal to negotiate class size prior to March 28, 2011" and therefore "the
instant Charge is timely." The Board agent dismissed the charge on December 22, 2011,
addressing each
of
the District's newly alleged contentions, concluding that the Association
was under no duty to bargain. The District filed a timely appeal from the dismissal on
January 17, 2012. The Association filed a timely response on February
7,
2012.
DISCUSSION
The District's appeal raises no new issues that were not previously raised, considered
and addressed with one exception. The District contends that the existence
of
any actual
confusion7 as to whether the Proposal created a bargaining obligation on the part
of
the
Association under the Reopener Clause "involves factual considerations not appropriate for
resolution prior to hearing."
Based on our review
of
the record, we do not agree that the District has made sufficient
allegations upon which to conclude that there is a factual dispute concerning the parties' intent
or actions in this matter. The Office
of
the General Counsel properly concluded that,
notwithstanding the statute of limitations issues raised by the allegations of the charge, the
District failed to allege sufficient facts to demonstrate that the Association was under any duty
7 Though not cited in the District's appeal, the District may be relying on a principle
discussed in Kern Community College District (1983) PERB Decision No. 337. In that case,
the college district claimed that it was confused as to the object of the union's various requests
for negotiations. The Board held that if the college district were confused, "the duty to bargain
in good faith behooved it as a minimum to seek clarification of the [union's] position."
7

to bargain. Establishing a duty to bargain is a necessary precondition to establishing a prima
facie violation
of
that duty. 8
The most obvious deficiency with the charge is that it fails to allege that the parties
were indeed confused about their bargaining obligations. There are no factual allegations upon
which to even infer that the parties were confused. The factual context in which the Proposal
was prepared was that the parties were engaged in ongoing meetings over the fiscal crisis
during which the District was in the practice
of
providing the Association with financial
disclosures in chart form showing the cost savings from certain approved reductions. The
District does not dispute this fact. Nor does the District dispute the existence
of
a ground rule
agreed to by the parties that they were not engaged in a meet and negotiate process during
these meetings.
Moreover, the District did not allege that the Proposal was sunshined at a public
meeting
of
the District board, nor is there any factual support suggesting that it was. 	That
would have at least demonstrated that the District considered the Proposal to be a bargaining
proposal requiring public input prior to the initiation
of
negotiations (even
if
the Association
did not), as was the case with the Reopener Proposal. Further, only five days after the date
of
the Proposal, the board met and adopted the District's Certificated Staffing Formula, the
purpose
of
which was to give the District "a standardized basis in which to make staffing
decisions." Given the short time frame between the date
of
the Proposal and the adoption by
the District board
of
the Certificated Staffing Formula with its stated purpose to allow the
District to make decisions (rather than initiate negotiations) and the undisputed context in
which the Proposal arose, we reject the District's contention that they have succeeded in
"[I]t is axiomatic that a refusal to bargain is not an unfair practice if the refusing party
had no duty to bargain." (Metropolitan Water District of Southern California (2009) PERB
Decision No. 2055-M.)
8

making a prima facie showing that the Proposal created a bargaining obligation on the part
of
the Association.
Furthermore, the charge does not allege elemental facts demonstrating that a demand to
bargain was made, i.e., the name
of
the District representative who provided the Proposal to
the Association, the means by which the District provided it to the Association or the agent
of
the Association to whom it was provided. Based on all
of
the above and ignoring the central
legal issue discussed below, from a pleading perspective only, we conclude that the amended
charge does not sufficiently allege facts supporting the District's case. As the Board stated in
Sylvan Union Elementary School District (1992) PERB Decision No. 919, "[a]s a general rule,
PERB case law requires that the demand be sufficient to put the other party on notice that the
Association desires to bargain, or to meet and discuss, a negotiable subject."
Notwithstanding all
of
the above factual deficits in the charge, the central legal issue in
this case is whether the District's Proposal "had the effect ofreopening the CBA," as alleged
by the District. In order to conclude that the District alleged a prima facie violation
of
the duty
to bargain, it must demonstrate that the Association had a duty to bargain as a threshold matter.
The analysis regarding whether the Proposal "had the effect
of
reopening the CBA"
necessarily begins with an examination
of
the Zipper Clause.9 In pertinent part, it states that
the parties "agree that negotiations will not be reopened on any item during the life
of
the
Agreement except by mutual agreement or as provided elsewhere in the Agreement."
Therefore, as a general operative rule, for the life of the CBA, negotiations were barred unless
one
of
two exceptions applied.
The first exception applied in the case of a mutual agreement. There are no allegations
that any such mutual agreement existed. To the contrary, the parties agreed on a ground rule
9 PERB may interpret contract language if necessary to decide whether there has been
an unfair practice. (Inglewood Unified School District (1991) PERB Order No. Ad-222; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
9

that prohibited the parties from considering the fiscal insolvency update meetings to be meet
and negotiate sessions. The District does not dispute this fact.
The second exception to the Zipper Clause's bar on reopening the CBA can be found in
the Reopener Clause. Under this clause, only two articles
of
the CBA per party, except
Articles XXII and XXIII on Wages and Fringe Benefits, are subject to reopening "[n]o later
than April 1."
Based on the factual allegations
of
the charge, we conclude that the District did not
reopen the CBA in a timely fashion under the Reopener Clause. The District's attempt to
reopen the CBA was through Hasson's letter
of
April 20, 2011, stating that the District would
be submitting its "initial proposal" to a "reopener" agreement to the District board for
sunshining on April 27, 2011, and that the Association should consider the letter a "formal
demand to bargain." This conclusion is borne out by the board's action at the meeting
of
April 27, 2011, during which it accepted the District's recommendation to adopt the District's
initial proposal so that the District could begin negotiations for a reopener agreement.
Despite the District's contention that Hasson's letter "relates back" to the Proposal,
Hasson's letter does not even reference that document. The District is correct that Newman-
Crows Landing, supra, PERB Decision No. 223 stands for the principle that a demand to
bargain need not be in a particular form. The District is not correct that the Office
of
the
General Counsel elevated form over Proposal nor
s letter created a bargaining obligation on the part of Association. It is evident
from Hasson's April 20, 2011, letter that the District to trigger the exception to the
Zipper Clause found in the Reopener Clause. Given the April 1 deadline, its efforts were
simply untimely. As there is no factual support for the District's "relates back" argument, we

reject it as an effort to recast its failure to invoke the Reopener Clause by April 1 as a factual
dispute or contrary legal theory as urged by the dissent. We conclude that the absence of any
factual support for the District's "relates back" argument alone is fatal to its case. At best, the
District's Proposal may be construed as an offer for a mutual agreement to reopen the CBA
under the first exception to the Zipper Clause. To invoke this exception, however, would have
required an acceptance of the offer by the Association.
We agree with the dissent that at this stage of the proceedings it is not the function of
the Board to determine whether the District's factual allegations are credible. We accept as
true for purposes of determining the sufficiency of the charge the District's factual allegations.
The District's central contentions --- the Proposal "had the effect ofreopening the CBA" and
Hasson's April 20, 2011, letter "relates back" to the Proposal --- are not factual. 	They are
conclusory characterizations of the facts girded to no viable theory of law, and we are not
bound by any precedential authority to accept them as true.
Moreover, to accept them as true would require us to ignore undisputed facts and
documentary evidence filed in connection with the charge, i.e., that during the time the
February 23, 2011, Proposal was developed the parties were meeting to discuss the District's
fiscal crisis for informational purposes only and not as part of a negotiation process; that the
parties were operating under a ground rule that specifically characterized the meetings in that
way; that neither the Proposal nor the Certificated Staffing Formula was sunshined for the
purpose of initiating negotiations; that the District knew how to invoke the Reopener Clause as
evidenced by Hasson' s April 20, 2011, letter; that the Association knew how to refuse a
negotiation demand as evidenced by Somberg' s April 26, 2011, letter; that neither Hasson' s
11

letter nor the Reopener Proposal specifically refer back to the Proposal; and that both those
documents instead use verb tense indicating the opposite.
10
Equally important
is
the legal import
of
the Zipper Clause. Neither the District
nor
the
dissent appears to accord the Office
of
the General Counsel's discussion
of
this subject
appropriate significance. The Office
of
the General Counsel's analysis is consistent with the
general view
of
how zipper clauses operate. Generally a zipper clause gives both parties the
right to refuse to bargain changes in all matters covered by the terms
of
the clause during the
life
of
the agreement. (Sylvan Union Elementary School District (1989) PERB Decision
No. 780; Los Rios Community College District (1988) PERB Decision No. 684.)
In practical terms, the clause purports to fix for the life
of
the
agreement (absent mutual agreement to negotiate changes)
those terms and conditions
of
employment established by past
practice, as well as those established by the express terms
of
the
contract: . . .
[iIJ
Regardless
of
the existence
of
a zipper clause,
neither party to a collective bargaining agreement has a duty to
negotiate over any matter covered by the agreement during its
term (subject,
of
course, to reopener provisions)
....
[ii]
We do
not view zipper clauses to be inherently inconsistent with any
rights or obligations provided by EERA. Indeed, as long as such
clauses are freely entered into, they could serve to further
stabilize and harmonize bargaining relationships.
[ii]
[After
construing the specific zipper clause at issue, the Board
concluded] we construe this zipper clause as affording both
parties the right to refuse to negotiate changes in the status quo as
to otherwise negotiable terms and conditions
of
employment for
the duration
of
the agreement (subject to reopener provisions),
..
(Id. at pp. 13-15.)
Hasson's letter of April 20, 2011, states that the District "will be submitting its initial
proposal to a reopener Agreement ... for public hearing" on April 27, 2011. (Emphasis
supplied.) The April 27, 2011, District board agenda refers to the Reopener Proposal as the
"initial" proposal, not as a revised or amended proposal. The Reopener Proposal, attached to
the agenda, states that the "District will propose changes to workyear/workhours,
compensation, benefits, and classroom size." (Emphasis supplied.)
12

As applied here, the purpose
of
the Zipper Clause was to foreclose further negotiations
regarding resolved matters within the scope
of
representation. (See Los Angeles Community
College District (1982) PERB Decision No. 252.) Although neither party was precluded from
making and/or agreeing to proposals outside the scope
of
the Reopener Clause, the Zipper
Clause operated as a "shield" to protect both the District and the Association against the
unwanted imposition
of
a duty to negotiate changes to the status quo during the term
of
the
CBA.
In sum, based on our review
of
the record, we do not agree with the dissent that there is
a factual dispute or contrary viable theory
of
law supporting the District's position in this
matter. (See Eastside Union School District (1984) PERB Decision No. 466.) The Office
of
the General Counsel did not decide the ultimate merits, but rather determined that the District
did
not
meet its burden
of
stating a prima facie case
of
refusal to bargain. A charge alleging a
refusal or failure to bargain is necessarily predicated on establishing a duty to bargain.
If
a
duty cannot be established, there can be no unfair practice. Contrary to the dissenting opinion,
resolution
of
the dispute is not so much a matter
of
contract interpretation as it is a matter
of
accurately characterizing the parties' representations, at the time in which they were made, and
of
the parties' actions, at the time in which they occurred. Based on the District's own actions
and representations in this matter during the time period in question, we conclude that the
District did not make a prima facie showing that the District invoked the Reopener Clause in a
timely fashion. Therefore, by existence of a binding agreement and operation of the Zipper
Clause, the Association was under no duty to bargain as a threshold matter of law. We
conclude that dismissal of the charge is warranted.
13

ORDER
14
The unfair practice charge in Case No. LA-CO-1491-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member Huguenin joined in this Decision.
Member Dowdin Calvillo' s dissent begins on page 15.

DOWDIN CALVILLO, Member, dissenting: I respectfully dissent. 	For the reasons set
forth herein, I find that the charge alleges sufficient facts to state a prima facie case and would
remand this matter to the Office of the General Counsel for issuance of a complaint.
DISCUSSION
The only issue before us is whether the charge alleges sufficient facts to state a prima
facie case of refusal to bargain. 	Public Employment Relations Board (PERB or Board)
Regulation 32615(a)(5) requires a charging party to provide a "clear and concise statementof
the facts and conduct alleged to constitute an unfair practice." In determining whetheran
unfair practice charge alleges a prima facie case, the Board applies the following standard:
To determine whether a charge alleges a prima facie case, the
Board must assume that the essential facts alleged in the charge
are true. (San Juan Unified School District (1977) EERB
Decision No. 12. 1) 	It is not the function of the Board agent to
judge the merits of the charging party's dispute. (Saddle back
Community College District (1984) PERB Decision No. 433;
Lake Tahoe Unified School District (1993) PERB Decision
No. 994.) Disputed facts or conflicting theories of law should be
resolved in other proceedings after a complaint has been issued.
(Eastside Union School District (1984) PERB Decision No. 466,
pp. 6-7.)
(Golden Plains Unified School District (2002) PERB Decision No. 1489 (Golden Plains).)
Statute of Limitations
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months priorto the
filing of the charge." 	limitations period begins to run once the charging party knows, or
should have known, of 	conduct underlying 	charge. (Gavilan Joint Community College
1 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
15

District (1996) PERB Decision No. 1177.) In a refusal to bargain case, the statute
of
limitations is triggered by one party's communication
to
the other that it will not negotiate with
it. (Berkeley Unified School District (2008) PERB Decision No. 1976.)
In this case, the charge alleges that, on February
23
and 28, 2011, the Inglewood
Unified School District (District) requested to negotiate over its proposals over class size, but
that the Inglewood Teachers Association (Association) failed to communicate its refusal to
bargain over those proposals prior to March 28, 2011. In finding the charge untimely as to the
February
23
and 28, 2011 proposals, the majority adopts the Board agent's determination that
the "conclusory allegation" that the Association failed and refused to bargain those proposals is
insufficient because it is unsupported by any dates on which the Association is alleged to have
so failed and refused.
I disagree. The amended charge clearly states that the Association failed to
communicate its refusal to bargain these proposals prior to the limitations date
of
March 28,
2011. Implicit in this allegation is the allegation that the parties were, in fact, engaged in
negotiations during that time period. While the majority places much emphasis on the
Association's contention that the parties had agreed to a "ground rule" that they were not
meeting and conferring during their February
23
and subsequent meetings, I find the nature
of
these meetings and particularly the nature
of
the February 23, 2011 Proposal for a Side Letter
Agreement (Proposal) to constitute disputed issues of fact. The majority also relies on the
allegations by the Association that the District did not "sunshine" its Proposal prior to a public
meeting and that it met and adopted the s Certificated Staffing only days
after it was presented. While such facts, if proven at an evidentiary hearing, may be relevant to
16

the ultimate determination of whether or not the Proposal gave rise to a bargaining obligation, I
believe it inappropriate to resolve this issue at this stage of the proceedings. 	Therefore, I find
that the charge alleges sufficient facts to establish the timeliness of the charge for purposes of
stating a prima facie case.
Refusal to Bargain Allegations
PERB has long held that the absolute refusal to meet and confer over a matterwithin
the scope of representation is a per se violation of the duty to bargain in good faith. (Stockton
Unified School District (1980) PERB Decision No. 143; Sierra Joint Community College
District (1981) PERB Decision No. 179 (Sierra).)2 A refusal to discuss a proposal based upon
a party's belief or perception that the proposal concerns a subject outside the scope of
representation is a per se violation of the duty to bargain. (Regents of the University of
California (2010) PERB Decision No. 2094-H; Sierra.) Class size is expressly enumerated
among the matters specified as within the scope of representation under EERA. (EERA
§ 3543.2; Sonoma County Office of Education (1997) PERB Decision No. 1225.)
The duty to bargain is triggered by a valid request to bargain over a subject within the
scope of representation. (Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223 (Newman-Crows Landing); State of California (Department of Veterans
Affairs) (2010) 	Decision No. 2110-S.) "While it is not essential that a request to
negotiate be specific or made in a particular form ... it is important for the charging party to
2 In other cases involving alleged bad faith conduct during bargaining, the Board applies
a "totality of the circumstances" test. (See, e.g., Pajaro Valley Unified School District (1978)
PERB Decision No. 51.)
17

have signified its desire to negotiate to the employer by some means." (Newman-Crows
Landing, at pp. 7-8.)3 In Newman-Crows Landing, PERB observed:
"[A] valid request to bargain need not be made in a particular
41
form or in haec
verba/
so
long as the request clearly indicates a
desire to negotiate and bargain on behalf
of
the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions
of
employment." [Quoting
Al
Landers Dump Truck,
Inc. (1971) 192 NLRB 207.]
In other words, a valid request will be found, regardless
of
its
form or the words used,
if
it adequately signifies a desire to
negotiate on a subject within the scope
of
bargaining
....
As discussed above, the majority interprets the allegations and supporting evidence
submitted by the charging party to conclude that the District's February 23 Proposal did not
constitute a valid demand to bargain and, therefore, did not create a duty to bargain. Further,
the majority concludes, the District did not reopen the collective bargaining agreement in a
timely fashion under the reopener clause
of
the agreement. The majority finds the context in
which the Proposal arose to be undisputed and rejects the District's contention that the
Proposal was submitted for the purposes
of
bargaining, thereby creating a bargaining
obligation on the part
of
the Association. I disagree.
3 The same standard for unilateral change violations by employers applies to allegations
of
unlawful unilateral changes by unions. (Regents
of
the University
of
California (2010)
Decision No. 2105-H; The Regents
of
the University
of
California (1992) PERB Decision
No. 922-H.) Accordingly, the Board applies the same standard types
of
alleged per se
violations of the duty to bargain by unions, such as the absolute refusal to bargain allegations in
this case.
4 In haec verba means "In these words; in the same words." (Black's Law Dictionary, 6
th
ed. (1990).)
18

At this stage of the proceedings, it is not the function of the Board to determine whether
the facts alleged as by the District are credible, nor to ascertain the parties' interpretation of the
February 23 Proposal. Unlike the majority, I find a factual dispute exists as to whether or not
the February 23, 2011 Proposal constituted a valid demand for bargaining. The February 23,
2011 Proposal is entitled "PROPOSAL FOR A SIDE LETTER AGREEMENT" between the
District and the Association and states that it is "respectfully submitted to the Association."
The Proposal sets forth specific bargaining proposals within the scope of representation,
including increases in class size ratios and class size maximums. The Proposal further
concludes, "The District is hopeful that the parties can reach an Agreement that will allow the
District to emerge from this crisis fiscally solvent." For purposes of establishing a prima facie
case, and accepting the allegations of the charge as true, I view this language as sufficient to
signify a desire to negotiate over the proposals contained therein, including the proposed
increase in class size ratios and class size maximum. Because the Board has no authority to
resolve the factual dispute between the parties as to whether the Proposal was intended as a
request to negotiate, I would find that the charge states a prima facie case of refusal to bargain
and remand the matter for issuance of a complaint to develop a full evidentiary record.
(Golden Plains, supra, PERB Decision No. 1489.)
The majority further accepts the Association's position that that the February 23, 2011
Proposal did not constitute a valid demand to reopen the collective bargaining agreement
(CBA) 	light of the zipper clause contained in 	XXVIII and 	reopener provisions of
Article XXVI. Additionally, the Association argues that the April 27, 2011 and August 5,
2011 proposals did not constitute valid demands to negotiate because they were not made
within the time frame specified in the CBA for making reopener proposals.
19

The Association's arguments are based upon the Association's contention that
Article XXVI provided a limited contractual right to reopen the contract subject to two
conditions precedent that the District failed to meet: (1) a timely demand to bargain "[njo later
than April 1 of each year of this agreement"; and (2) express notice of which two articles of the
agreement the District demanded to reopen. The District, in turn, argues that, pursuant to the
terms of the CBA, it was entitled to reopen the contract, that its February 23, 2011 Proposal
constituted a valid demand to negotiate under the provisions of the CBA, and that its April 27,
2011 Proposal "related back" its prior February 23, 2011 Proposal.
Both parties' arguments are based upon their conflicting interpretations of the CBA
between the parties, as well as their conflicting interpretations as to whether or not the
February 23 Proposal constituted a valid request to bargain. Resolution of this dispute will
require an interpretation of the agreement to determine the parties' intent surrounding both the
reopener language in Article XXVI and the zipper clause in Article XVIII and the proper
interpretation of those provisions. In addition, resolution of this dispute will require an
interpretation of the parties' intent and actions surrounding the February 23 Proposal. In
processing an unfair practice charge, the role of a Board agent is to investigate the charge to
determine if an unfair practice has been committed, but the Board's regulations do not
"empower agents to rule on the ultimate merits of a charge." (Eastside Union School District
(1984) PERB Decision No. 466 (Eastside); PERB Regs. 32620 and 32640.) Thus, the Board
has stated, "where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Eastside.)
20
The Association's arguments are based upon the Association's contention that
Article XXVI provided a limited contractual right to reopen the contract subject to two
conditions precedent that the District failed to meet: 	(1) a timely demand to bargain "[n]o later
than April 1
of
each year
of
this agreement"; and (2) express notice
of
which two articles
of
the
agreement the District demanded to reopen. The District, in turn, argues that, pursuant to the
terms
of
the CBA, it was entitled to reopen the contract, that its February 23, 2011 Proposal
constituted a valid demand to negotiate under the provisions
of
the CBA, and that its April 27,
2011 Proposal "related back" its prior February 23, 2011 Proposal.
Both parties' arguments are based upon their conflicting interpretations
of
the
CBA
between the parties, as well as their conflicting interpretations as to whether or not the
February 23 Proposal constituted a valid request to bargain. 	Resolution
of
this dispute will
require an interpretation
of
the agreement to determine the parties' intent surrounding both the
reopener language in Article XXVI and the zipper clause in Article XVIII and the proper
interpretation
of
those provisions. In addition, resolution
of
this dispute will require an
interpretation
of
the parties' intent and actions surrounding the February 23 Proposal. In
processing an unfair practice charge, the role
of
a Board agent is to investigate the charge to
determine 	an unfair practice has been committed, but the Board's regulations do not
"empower agents to rule on the ultimate merits
of
a charge." (Eastside Union School District
(1984) PERB Decision No. 466 (Eastside); 	Regs. 32620 and 32640.) Thus, the Board
has stated, "where the investigation results in receipt
of
conflicting allegations
of
fact or
contrary 	proceedings,
if
not due process, demand that a
issued and the matter be sent to formal hearing." (Eastside.)
20

Because of the significant factual and legal disputes concerning the parties' intent and
interpretation of these provisions, it is inappropriate for the Board to resolve these disputes at
this juncture. (Golden Plains, supra, PERB Decision No. 1489.) Accordingly, I would
remand this matter to the Office of the General Counsel for issuance of a complaint so that the
contract interpretation issues may be resolved following a full evidentiary hearing.
21
Because
of
the significant factual and legal disputes concerning the parties' intent and
interpretation
of
these provisions, it
is
inappropriate for the Board to resolve these disputes at
this juncture. (Golden Plains, supra, PERB Decision No. 1489.) Accordingly, I would
remand this matter to the Office
of
the General Counsel for issuance
of
a complaint so that the
contract interpretation issues may be resolved following a full evidentiary hearing.
21

STAT£ OF
CALIFORNIA
=============-===============
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
70()
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax
(818) 551-2820
December 22, 2011
Joshua
E.
Morrison, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA 90703
Re: Inglewood Unified School District
v.
Inglewood Teachers Association
Unfair Practice Charge No. LA-CO-1491-E
DISMISSAL LETTER
Dear Mr. Morrison:
EDMUND
G.
BROWN
JR.,
Governor
The above-referenced unfair practice charge was filed with the Public
Employment Relations
Board (PERB or Board) on September 28, 2011. The Inglewood Unified School District
(District or Charging Party) alleges that the Inglewood Teachers Association (Union or
Respondent) violated section 3 543 .6( c)
of
the Educational Employment Relations Act
(EERA
or Act) 1 by failing or refusing to meet and confer with the District about several
bargaining
proposals.
Charging Party was informed in the attached Warning Letter dated November 10, 2011,
that
the above-referenced charge did not state a prima facie case. You were advised that,
if
there
were any factual inaccuracies or additional facts that would correct the deficiencies
explained
in that letter, you should amend the charge. You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it on or before November 18, 2011,
the charge would be dismissed. As memorialized in your letter to the undersigned dated
November 21, 2011, that deadline was subsequently extended until November 30, 2011.
On November 29, 2011, Charging Party filed a First Amended Unfair Practice Charge (First
Amended Charge). For the following reasons, the charge, as amended, still does not state a
prima facie case. Therefore, the charge is hereby dismissed based on the facts and
reasons set
forth in the November 10, 2011, Warning Letter and this Dismissal Letter.
Additional Facts Alleged in the First Amended Charge
The original charge alleged that on or about February, , 20 l 1, the District provided the
Union with a "Proposal for a Side Letter Agreement" (February Proposal). The First
Amended Charge elaborates:
1
EERA is codified at Government Code section 3 540 et seq. The text of the may be
found at www.perb.ca.gov.
STATE OF CALIFORNIA EDMUND G. BROWN JR., Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PERB
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) $51-2809
Fax: (818) 551-2820
December 22, 2011
Joshua E. Morrison, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA 90703
Re: Inglewood Unified School District v. Inglewood Teachers Association
Unfair Practice Charge No. LA-CO-1491-E
DISMISSAL LETTER
Dear Mr. Morrison:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 28, 2011. The Inglewood Unified School District
(District or Charging Party) alleges that the Inglewood Teachers Association (Union or
Respondent) violated section 3543.6(c) of the Educational Employment Relations Act (EERA
or Act)' by failing or refusing to meet and confer with the District about several bargaining
proposals.
Charging Party was informed in the attached Warning Letter dated November 10, 2011, that
the above-referenced charge did not state a prima facie case. You were advised that, if there
were any factual inaccuracies or additional facts that would correct the deficiencies explained
in that letter, you should amend the charge. You were further advised that, unless you
amended the charge to state a prima facie case or withdrew it on or before November 18, 2011,
the charge would be dismissed. As memorialized in your letter to the undersigned dated
November 21, 2011, that deadline was subsequently extended until November 30, 2011.
On November 29, 2011, Charging Party filed a First Amended Unfair Practice Charge (First
Amended Charge). For the following reasons, the charge, as amended, still does not state a
prima facie case. Therefore, the charge is hereby dismissed based on the facts and reasons set
forth in the November 10, 2011, Warning Letter and this Dismissal Letter.
Additional Facts Alleged in the First Amended Charge
The original charge alleged that on or about February, 23, 2011, the District provided the
Union with a "Proposal for a Side Letter Agreement" (February Union with a "Proposal fo
Amended Charge elaborates:
EERA is codified at Government Code section 3540 et seq. The text of the may be
found at www.perb.ca.gov.

LA-CO-1491-E
December 22, 2011
Page 2
Although the February 23 [Proposal] was not entitled "reopener proposal," nor
did that document bear other magic words
...
to that effect, PERB has held that
"it is not essential that a request to negotiate be specific or made in a particular
form." Newman-Crows Landing Unified School District (1982) PERB Dec. No.
223 [(Newman-Crows Landing)]. To the contrary, PERB observed:
"[A] valid request to bargain need not be made in a particular
form; or in haec verba, so long as the request clearly indicated a
desire to negotiate and bargain on behalf
of
the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions
of
employment. In other words, a valid request will be
found, regardless
of
the form or the words used,
if
it adequately
signifies a desire to negotiate on a subject within the scope
of
bargaining."
Ibid. (quoting
Al
Landers Dump Truck, Inc. (1971) 192 NLRB 207 [(Al Landers
Dump Truck)]).
Here, the subject
of
class size was clearly within scope, and not barred by the
applicable zipper clause or reopener provisions
of
the CBA. The District,
moreover, clearly ( and timely) signified its desire to negotiate on that subject,
insofar as its bargaining demand was presented on February 23, 2011. 	That the
District did so without specifically invoking the term "reopener" is a matter
of
form rather than substance.
The original charge also alleged that on or about April 27, 2011, the District sunshined
pursuant to Government Code section 3547, and gave the Union notice of, an "Inglewood USD
- District Initial Proposal for 2011-2012 [R]eopener [N]egotiations" (April 27 Proposal). 	The
First Amended Charge alleges that, "[ w ]ith respect to the topic
of
class size, the April 27
[Proposal] relates back to the February 23 [Proposal]."
Finally, the First Amended Charge alleges that "[the Union] did not communicate its refusal to
negotiate class size prior to March 28, 2011," and that, "[a]s such, the instant Charge is
timely."
Discussion
Regarding the February 23, Proposal, the 	Charge merely restates facts
previously alleged and otherwise consists 	conclusions of law and legal argument, but does
not include any new factual allegations in support the charge. 	Moreover, the reliance on
Newman-Crows Landing and Al Landers Dump Truck in the block-quote above is misplaced.
At issue in Newman-Crows Landing was whether a statement by a union representative "that
the subject of layoffs was negotiable and that the District had the responsibility to meet and
negotiate with [the union]" constituted a valid demand to negotiate the effects of a layoff.
LA-CO-1491-E
December 22, 2011
Page 2
Although the February 23 [Proposal] was not entitled "reopener proposal," nor
did that document bear other magic words . . . to that effect, PERB has held that
"it is not essential that a request to negotiate be specific or made in a particular
form." Newman-Crows Landing Unified School District (1982) PERB Dec. No.
223 [(Newman-Crows Landing)]. To the contrary, PERB observed:
"[A] valid request to bargain need not be made in a particular
form, or in haec verba, so long as the request clearly indicated a
desire to negotiate and bargain on behalf of the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions of employment. In other words, a valid request will be
found, regardless of the form or the words used, if it adequately
signifies a desire to negotiate on a subject within the scope of
bargaining."
Ibid. (quoting Al Landers Dump Truck, Inc. (1971) 192 NLRB 207 [(Al Landers
Dump Truck)]).
Here, the subject of class size was clearly within scope, and not barred by the
applicable zipper clause or reopener provisions of the CBA. The District,
moreover, clearly (and timely) signified its desire to negotiate on that subject,
insofar as its bargaining demand was presented on February 23, 2011. That the
District did so without specifically invoking the term "reopener" is a matter of
form rather than substance.
The original charge also alleged that on or about April 27, 2011, the District sunshined
pursuant to Government Code section 3547, and gave the Union notice of, an "Inglewood USD
- District Initial Proposal for 2011-2012 [Rjeopener [Njegotiations" (April 27 Proposal). The
First Amended Charge alleges that, "[ with respect to the topic of class size, the April 27
[Proposal] relates back to the February 23 [Proposal]."
Finally, the First Amended Charge alleges that "[the Union] did not communicate its refusal to
negotiate class size prior to March 28, 201 1," and that, "[als such, the instant Charge is
timely."
Discussion
Regarding the February 23, Proposal, the First Amended Charge merely restates facts
previously alleged and otherwise consists of conclusions of law and legal argument, but does
not include any new factual allegations in support the charge. Moreover, the reliance on
Newman-Crows Landing and Al Landers Dump Truck in the block-quote above is misplaced.
At issue in Newman-Crows Landing was whether a statement by a union representative "that
the subject of layoffs was negotiable and that the District had the responsibility to meet and
negotiate with [ the union]" constituted a valid demand to negotiate the effects of a layoff.

LA-CO-1491-E
December 22, 2011
Page 3
(Newman-Crows Landing Unified School District, supra, PERB Decision No. 223, emphasis
supplied.) PERB concluded that it did not. (Ibid.) Just as the statement at issue in
Newman-
Crows Landing did not constitute a valid demand to negotiate the effects
of
the layoff, so in the
present case, the February
23
Proposal also does not constitute a valid demand to negotiate
pursuant to the parties' reopener clause based on the following circumstances: The February
23
Proposal (
1)
was labeled "Proposal for a Side Letter Agreement"; (2) did not correlate any
of
the proposals in it to any
of
the Articles
of
the collective bargaining agreement (CBA); (3)
did not purport to reopen any
of
the Articles
of
the CBA or invoke the reopener provision
of
Article XXVI
of
the CBA; and (4) not only contained proposals relating to articles that could
be reopened pursuant to the reopener clause, but also contained proposals relating to articles
that could not be reopened pursuant to the reopener clause.
At issue in the case
of Al
Landers Dump Truck, was whether a union's request, shortly after its
certification as the exclusive bargaining representative, "to set a date 'to continue in good faith
our Collective Bargaining Agreement Negotiation as stipulated by the National Labor
Relations
Act"'
constituted a valid demand to bargain. (Al Landers Dump Truck, supra, 192
NLRB 207.) The National Labor Relations Board found that this "was a sufficiently clear and
proper request." (Ibid.) Not only is the February
23
Proposal not nearly as clear a request to
bargain as the request at issue in
Al
Landers Dump Truck,
but-unlike
the employer in
Al
Landers Dump
Truck-the
Union here was also under no obligation to honor this request
unless it was a proper request pursuant to the reopener clause contained in the parties' CBA.
The only reasonable interpretation
of
the reopener clause places the burden on the District to
inform the Union that it desires to reopen two articles pursuant to that reopener clause and to
identify which two articles it desires to so reopen. 	Any other interpretation
of
the reopener
clause would unreasonably shift the burden onto the Union to guess at the District's intent.
This in turn would undermine the "zipper" clause in the parties' CBA, the purpose
of
which is
to relieve the parties
of
the obligation to meet and confer for the life
of
that CBA, with the
narrow exception
of
reopener negotiations pursuant to the reopener clause in that CBA.
Charging Party does not explain the intent behind the statement in the First Amended Charge
that "[w]ith respect to the topic
of
class size, the April 27 [Proposal] relates back to the
February 23 [Proposal]." Insofar as the intent is to show that the April 27 Proposal thereby
became a timely proposal pursuant to the reopener clause in the parties' CBA, this appears to
be a novel theory that has not been discussed, let alone approved, in any prior Board decision.
"The 'relation back' doctrine allows for exception to the limitations period
if
the amended
eharge is sufficiently connected to the original charge." (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959
.)
	That is not the issue here.2 Moreover,
2 The phrase ''relates back" is also used in Board decisions to describe circumstances in
which conduct that allegedly occurred within the six months limitations period "relates back"
to conduct that occurred outside that period, making the former allegation untimely. 	(See, e.g.,
.State
of
California (Department
of
Corrections) (2003) PERB Decision No. 1559-S, stating
that "[aJ violation is not timely where the State's conduct during the iimitations period relates
back to the original offense" outside that period.) That is also not the issue here.
LA-CO-1491-E
December 22, 2011
Page 3
(Newman-Crows Landing Unified School District, supra, PERB Decision No. 223, emphasis
supplied.) PERB concluded that it did not. (Ibid.) Just as the statement at issue in Newman-
Crows Landing did not constitute a valid demand to negotiate the effects of the layoff, so in the
present case, the February 23 Proposal also does not constitute a valid demand to negotiate
pursuant to the parties' reopener clause based on the following circumstances: The February
23 Proposal (1) was labeled "Proposal for a Side Letter Agreement"; (2) did not correlate any
of the proposals in it to any of the Articles of the collective bargaining agreement (CBA); (3)
did not purport to reopen any of the Articles of the CBA or invoke the reopener provision of
Article XXVI of the CBA; and (4) not only contained proposals relating to articles that could
be reopened pursuant to the reopener clause, but also contained proposals relating to articles
that could not be reopened pursuant to the reopener clause.
At issue in the case of Al Landers Dump Truck, was whether a union's request, shortly after its
certification as the exclusive bargaining representative, "to set a date "to continue in good faith
our Collective Bargaining Agreement Negotiation as stipulated by the National Labor
Relations Act'" constituted a valid demand to bargain. (Al Landers Dump Truck, supra, 192
NLRB 207.) The National Labor Relations Board found that this "was a sufficiently clear and
proper request." (Ibid.) Not only is the February 23 Proposal not nearly as clear a request to
bargain as the request at issue in Al Landers Dump Truck, but-unlike the employer in Al
Landers Dump Truck-the Union here was also under no obligation to honor this request
unless it was a proper request pursuant to the reopener clause contained in the parties' CBA.
The only reasonable interpretation of the reopener clause places the burden on the District to
inform the Union that it desires to reopen two articles pursuant to that reopener clause and to
identify which two articles it desires to so reopen. Any other interpretation of the reopener
clause would unreasonably shift the burden onto the Union to guess at the District's intent.
This in turn would undermine the "zipper" clause in the parties' CBA, the purpose of which is
to relieve the parties of the obligation to meet and confer for the life of that CBA, with the
narrow exception of reopener negotiations pursuant to the reopener clause in that CBA.
Charging Party does not explain the intent behind the statement in the First Amended Charge
that "[ with respect to the topic of class size, the April 27 [Proposal] relates back to the
February 23 [Proposal]." Insofar as the intent is to show that the April 27 Proposal thereby
became a timely proposal pursuant to the reopener clause in the parties' CBA, this appears to
be a novel theory that has not been discussed, let alone approved, in any prior Board decision.
"The relation back' doctrine allows for exception to the limitations period if the amended
charge is sufficiently connected to the original charge." (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) That is not the issue here. Moreover,
The phrase "relates back" is also used in Board decisions to describe circumstances in
which conduct that allegedly occurred within the six months limitations period "relates back"
to conduct that occurred outside that period, making the former allegation untimely. (See, e.g.,
State of California (Department of Corrections) (2003) PERB Decision No. 1559-S, stating
that "[a] violation is not timely where the State's conduct during the limitations period relates
back to the original offense" outside that period.) That is also not the issue here.

LA-CO-1491-E
December 22, 2011
Page 4
the above-quoted statement from the First Amended Charge merely presents a legal conclusion
that is incapable
of
showing that the April 27 Proposal, in fact, relates back to the February 23
Proposal, whatever the legal effect
of
that fact,
if
proven, might be. Insofar as the intent
behind this statement is to show that the allegations regarding the February
23
Proposal were
timely included in the original charge, which was filed more than six months later, the
same
defect is noted.
Assuming arguendo that, as alleged in the First Amended Charge, "[the Union] did not
communicate its refusal to negotiate class size prior to March 28, 2011," and that, "[a]s such,
the instant Charge is timely" regarding the February
23
and 28 Proposals, these proposals still
would not constitute proper demands to bargain pursuant to the reopener clause in the
parties'
CBA for the reasons, unrelated to timeliness, stated above and in the November 10, 2011
Warning Letter, which
is
incorporated herein by this reference.
Right to Appeal
Pursuant to PERB Regulations,3 Charging Party may obtain a review
of
this dismissal
of
the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service
of
this dismissal. (Cal. Code Regs., tit.
8,
§ 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies
of
all
documents must be provided to the Board.
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 3213 5( 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.)
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
J PERB 's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of the PERB Regulations may be found at www.perb.ca.gov.
LA-CO-1491-E
December 22, 2011
Page 4
the above-quoted statement from the First Amended Charge merely presents a legal conclusion
that is incapable of showing that the April 27 Proposal, in fact, relates back to the February 23
Proposal, whatever the legal effect of that fact, if proven, might be. Insofar as the intent
behind this statement is to show that the allegations regarding the February 23 Proposal were
timely included in the original charge, which was filed more than six months later, the same
defect is noted.
Assuming arguendo that, as alleged in the First Amended Charge, "[the Union] did not
communicate its refusal to negotiate class size prior to March 28, 2011," and that, "[ajs such,
the instant Charge is timely" regarding the February 23 and 28 Proposals, these proposals still
would not constitute proper demands to bargain pursuant to the reopener clause in the parties'
CBA for the reasons, unrelated to timeliness, stated above and in the November 10, 201 1
Warning Letter, which is incorporated herein by this reference.
Right to Appeal
Pursuant to PERB Regulations," Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs., tit. 8, $ 32635, subd. (a).) Any document filed with the
Board must contain the case name and number, and the original and five (5) copies of all
documents must be provided to the Board.
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.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) ((916) 322
FAX: (916) 327-7960
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. The text of the PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1491-E
December 22, 2011
Page 5
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20)
calendar days
following the date
of
service
of
the appeal. (Cal. Code Regs., tit. 8, § 32635, subd. (b).)
Service
All documents authorized to be filed herein must also
be "served" upon all parties to the
proceeding, and a
"proof
of
service" must accompany each copy
of
a document served
upon
a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly
"served"
when personally delivered
or
deposited in the mail or deposited with a delivery service and properly addressed. A
document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself,
must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall beaccompanied by
proof
of
service
of
the
request upon each party. (Cal. Code Regs., tit. 8, § 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZA1'JNE MURPHY
General Counsel
By---------------
Bernhard Rohrbacher
Supervising Regional
Attachment
cc: Robert E. Lindquist, Attorney
LA-CO-1491-E
December 22, 201 1
Page 5
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs., tit. 8, $ 32635, subd. (b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of service" must accompany each copy of a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, $ 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs., tit. 8, $ 32135, subd. (c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration of the time required for
filing the document. The request must indicate good cause for and, if known, the position of
each other party regarding the extension, and shall be accompanied by proof of service of the
request upon each party. (Cal. Code Regs., tit. 8, $ 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By
Bernhard Rohrbacher
Supervising Regional Attorney
Attachment
cc: Robert E. Lindquist, Attorney

STATE
OF
CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los
Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale,
CA
91203-3219
Telephone: (818) 551-2809
Fax
(818) 551-2820
November
10, 2011
Joshua
E. Morrison,
Attorney
Atkinson, Andelson, Loya,
Ruud
&
Romo
12800 Center Court Drive, Suite 300
Cerritos,
CA
90703
Re: Inglewood Unified School District
v.
Inglewood Teachers Association
Unfair Practice Charge
No.
LA-CO-1491-E
WARNING LETTER
Dear
Mr. Morrison:
EDMUND G.
BROWN JR.,
Governor
The
above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB
or
Board) on
September
28, 2011. The Inglewood Unified School District
(District or Charging Party) alleges that
the Inglewood Teachers Association (Union or
Respondent) violated section 3543.6(c)
of
the Educational
Employment Relations Act
(EERA
or Act) 1 by failing or refusing to
meet and confer with the District about several
bargaining
proposals.
I.
Facts as Alleged
A. The Parties' Agreements
1.
The Collective Bargaining Agreement
The Union, an affiliate
of
the California Teachers Association (CTA), is the exclusive
representative
of
a unit
of
certificated employees, including classroom teachers, within the
District. The District and the Union are parties to a collective bargaining agreement (CBA)
that became effective July 1, 2006 and was originally to "remain in full force and effect unless
modified in accordance with the other provisions contained herein through June 30, 2009."
Article XXVI, Negotiations Procedures,
of
the CBA originally provided in relevant part:
No later than April l
of
each year
of
this agreement the parties agree to reopen
negotiations on Article 1 Compensation, and Article 13, Fringe Benefits, and
one additional article per party.
Article XVIII, Zipper,
of
the CBA provides in full:
1
EERA is codified at Government Code section 3540 et seq. The text
of
the EERA and
PERB Regulations may be found at www.perb.ca.gov.
STATE OF CALIFORNIA EDMUND G. BROWN JR.. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
P.E.R.B
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2809
Fax: (818) 551-2820
November 10, 2011
Joshua E. Morrison, Attorney
Atkinson, Andelson, Loya, Ruud & Romo
12800 Center Court Drive, Suite 300
Cerritos, CA 90703
Re: Inglewood Unified School District v. Inglewood Teachers Association
Unfair Practice Charge No. LA-CO-1491-E
WARNING LETTER
Dear Mr. Morrison:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on September 28, 2011. The Inglewood Unified School District
(District or Charging Party) alleges that the Inglewood Teachers Association (Union or
Respondent) violated section 3543.6(c) of the Educational Employment Relations Act (EERA
or Act)' by failing or refusing to meet and confer with the District about several bargaining
proposals.
I. Facts as Alleged
A. The Parties' Agreements
1 . The Collective Bargaining Agreement
The Union, an affiliate of the California Teachers Association (CTA), is the exclusive
representative of a unit of certificated employees, including classroom teachers, within the
District. The District and the Union are parties to a collective bargaining agreement (CBA)
that became effective July 1, 2006 and was originally to "remain in full force and effect unless
modified in accordance with the other provisions contained herein through June 30, 2009."
Article XXVI, Negotiations Procedures, of the CBA originally provided in relevant part:
No later than April 1 of each year of this agreement the parties agree to reopen
negotiations on Article 12, Compensation, and Article 13, Fringe Benefits, and
one additional article per party.
Article XVIII, Zipper, of the CBA provides in full:
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1491-E
November
10, 2011
Page 2
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life
of
this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
Among the other provisions
of
the
CBA
is Article XI, Class Size.
2.
	The Tentative Agreement
The
District and the Union are also parties to a Tentative Agreement (TA) that revises
certain
provisions
of
the CBA and otherwise keeps it
"in
full force and effect unless modified in
accordance with the other provisions contained herein through June 30, 2013." The
TA revises
Article XXVI, Negotiations Procedures, to read in relevant part as follows:
No later than April 1
of
each year
of
this agreement the parties agree to reopen
two (2) articles per party, exclusive
of
Article 12 and Article 13.
The TA also revises portions
of
Articles XI, Class Size, and XII, Compensation.
	It
does
not
revise Articles XIII, Fringe Benefits, or XVIII, Zipper.
B. 	The District's Bargaining Proposals
1.
	February 23, 2011
On or about February 23, 2011, the District provided the Union with a "Proposal for a Side
Letter Agreement" (February 23 Proposal). The February 23 Proposal states that "[t]he
District has an interest in remaining fiscally solvent" .and lists, over three pages,
"reductions"
that "have been approved."
It
then states that "[a]lthough these reductions are significant, a
large gap exists between the approved reductions and the deficit." It further states that " [a] s a
result, on February 23, 2011, the District will submit a resolution for reduction or elimination
of
particular kinds
of
services, which includes a total
of
338 full time equivalents, for the
Governing Board's approval." It finally states that "[t]he following proposal is respectfully
submitted to the Association as an option to reduce the number
of
full time equivalents that
must be reduced in order to meet the requirements for fiscal recovery." This statement is
followed by a list
of
seven (7) proposals to or for "Reinstate five furlough days for 2010-11,"
"Eliminate Standard Income Protection Plan," "Three Tier Cap on Health and Welfare,"
"10%
Salary Rollback," "Freeze on Step in Column," "Increase 	class 	ratios 	size
maximums," and "Additional Cuts"
of
several bargaining unit positions. 	Specifically, the
February 23 Proposal proposes to increase the student-teacher ratio for grades K-3 from 30: 1
to 32:1, for grades 4-6 from 30:1 to 34:1, and for grades 7-12 from 26:5 to 34:1.
The February 23 Proposal does not correlate any
of
these proposals to any of the Articles
of
the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopen er
provision of Article XXVI of the CBA.
LA-CO-1491-E
November 10, 201 1
Page 2
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life of this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
Among the other provisions of the CBA is Article XI, Class Size.
2. 	The Tentative Agreement
The District and the Union are also parties to a Tentative Agreement (TA) that revises certain
provisions of the CBA and otherwise keeps it "in full force and effect unless modified in
accordance with the other provisions contained herein through June 30, 2013." The TA revises
Article XXVI, Negotiations Procedures, to read in relevant part as follows:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 and Article 13.
The TA also revises portions of Articles XI, Class Size, and XII, Compensation. It does not
revise Articles XIII, Fringe Benefits, or XVIII, Zipper.
B. 	The District's Bargaining Proposals
1 . 	February 23, 2011
On or about February 23, 2011, the District provided the Union with a "Proposal for a Side
Letter Agreement" (February 23 Proposal). The February 23 Proposal states that "[the
District has an interest in remaining fiscally solvent" and lists, over three pages, "reductions"
that "have been approved." It then states that "[allthough these reductions are significant, a
large gap exists between the approved reductions and the deficit." It further states that "[als a
result, on February 23, 2011, the District will submit a resolution for reduction or elimination
of particular kinds of services, which includes a total of 338 full time equivalents, for the
Governing Board's approval." It finally states that "[the following proposal is respectfully
submitted to the Association as an option to reduce the number of full time equivalents that
must be reduced in order to meet the requirements for fiscal recovery." This statement is
followed by a list of seven (7) proposals to or for "Reinstate five furlough days for 2010-1 1,"
"Eliminate Standard Income Protection Plan," "Three Tier Cap on Health and Welfare," "10%
Salary Rollback," "Freeze on Step in Column," "Increase in class	Salary Rollback," "Freeze o
maximums," and "Additional Cuts" of several bargaining unit positions. Specifically, the
February 23 Proposal proposes to increase the student-teacher ratio for grades K-3 from 30:1
to 32:1, for grades 4-6 from 30:1 to 34:1, and for grades 7-12 from 26:5 to 34:1.
The February 23 Proposal does not correlate any of these proposals to any of the Articles of the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopener
provision of Article XXVI of the CBA.

LA-CO-1491-E
November 10, 2011
Page 3
The charge alleges that the Union "has failed and refused to bargain these proposals."
2.
	February 28, 2011
On or about February 28, 2011, the District's Governing Board adopted a "Certificated
Staffing Formula" (February 28 Proposal) for bargaining unit and non-bargaining unit
positions. 	According to the charge, "[t]his strategy was discussed with
[the
Union]
...
on
or
about February
16
and March 3, 2011, and [Union] President Peter Somberg was also
present
and addressed this item at the February 28, 2011 meeting
of
the District's Governing
Board."
The February 28 Proposal proposes to increase the student-teacher ratio for grades K-3
from
the "Contractual [Staffing Ratio]"
of
3
0:
1 to a "Recommended Staffing Ratio"
of
3 2:
1,
for
grades 4-6 from 30:1 to 34:1, for grades 7-8 from 26.5:1 to 36:1, for Comprehensive HS
City
Honors grades 9-12 from 26.5: 1 to 40:
1,
and to keep the student-teacher ratio for Continuation
School grades 9-12 unchanged at 26.5:
1.
The February 28 Proposal also does not correlate this proposal to any
of
the Articles
of
the
CBA, nor does it purport to reopen any
of
the Articles
of
the CBA or invoke the reopener
provision
of
Article XXVI
of
the CBA.
The charge alleges that the Union "has failed and refused to bargain these proposals."
3. 	April 27, 2011
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson (Hasson)
informed Union President Peter Samberg (Somberg) that "[t]he District will be submitting its
initial proposal to a reopen er Agreement for 2011-12 to the Governing Board for public
hearing pursuant to Government Code 3547" and that "[t]he public hearing will be held on
April 27, 2011."
By letter dated April 26, 2011, Som berg informed Hasson that "the District's demand to
bargain is untimely because Article XXVI requires the parties to reopen negotiations no later
than April
l"
and "[y ]our notice dated April 20, 2011 fails to meet th[is] contractual condition
to require [the Union] to engage in bargaining." Somberg further informed lfasson that
the
Union "declines to engage in negotiations pursuant to your request" (emphasis in original).
On or about April 	2011, the District sunshined pursuant to Government Code 3 54 7, and
gave the Union notice of, an "Inglewood USD - District Initial Proposal for 2011-2012
[R]eopener [N]egotiations" and also labeled "Proposals for a Reopener
Proposal). 	The April 	Proposal states in relevant part:
[T]he District proposes that the following contract articles be bargained for the
2011-12 year:
Article VIII - Workdays & Hours of Employment
LA-CO-1491-E
November 10, 201 1
Page 3
The charge alleges that the Union "has failed and refused to bargain these proposals."
2. 	February 28. 2011
On or about February 28, 2011, the District's Governing Board adopted a "Certificated
Staffing Formula" (February 28 Proposal) for bargaining unit and non-bargaining unit
positions. According to the charge, "[t]his strategy was discussed with [the Union] . . . on or
about February 16 and March 3, 2011, and [Union] President Peter Somberg was also present
and addressed this item at the February 28, 201 1 meeting of the District's Governing Board."
The February 28 Proposal proposes to increase the student-teacher ratio for grades K-3 from
the "Contractual [Staffing Ratio]" of 30:1 to a "Recommended Staffing Ratio" of 32:1, for
grades 4-6 from 30:1 to 34:1, for grades 7-8 from 26.5:1 to 36:1, for Comprehensive HS City
Honors grades 9-12 from 26.5:1 to 40:1, and to keep the student-teacher ratio for Continuation
School grades 9-12 unchanged at 26.5:1.
The February 28 Proposal also does not correlate this proposal to any of the Articles of the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopener
provision of Article XXVI of the CBA.
The charge alleges that the Union "has failed and refused to bargain these proposals."
3. 	April 27, 2011
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson (Hasson)
informed Union President Peter Somberg (Somberg) that "[the District will be submitting its
initial proposal to a reopener Agreement for 2011-12 to the Governing Board for public
hearing pursuant to Government Code 3547" and that "[the public hearing will be held on
April 27, 2011."
By letter dated April 26, 2011, Somberg informed Hasson that "the District's demand to
bargain is untimely because Article XXVI requires the parties to reopen negotiations no later
than April 1" and "[your notice dated April 20, 2011 fails to meet this] contractual condition
to require [ the Union] to engage in bargaining." Somberg further informed Hasson that the
Union "declines to engage in negotiations pursuant to your request" (emphasis in original).
On or about April 27, 2011, the District sunshined pursuant to Government Code 3547, and
gave the Union notice of, an "Inglewood USD - District Initial Proposal for 2011-2012
[[Rjeopener [Njegotiations" and also labeled "Proposals for a Reopener Agreement" (April	Rje
Proposal). The April 27 Proposal states in relevant part:
[Th	[The District proposes that the following contract articles be bargained for t
2011-12 year:
Article VIII - Workdays & Hours of Employment

LA-CO-1491-E
November 10, 2011
Page 4
Article XI - Class Size
Article XII - Compensation
Article XIII - Fringe Benefits
(Emphasis in Original.) The April 27 Proposal does not invoke the reopener provision
of
Article XXXVI
of
the CBA.
The charge alleges that the Union "has failed and refused to bargain this proposal."
4.
	August 5, 2011
By letter dated August
5,
2011, District Counsel Joshua
E.
Morrison (Morrison) informed
CT
A
Regional Uni Serve Director Jeff Good (Good) that "the District demands immediate
bargaining on the collective bargaining proposals recently sunshined by the District."
Attached to this letter was an "Amended Initial Proposal for 2011-2012 Reopener
Negotiations," dated July 27, 2011 and also labeled "Proposals for Reopeners" (August 5
Proposal), which states in relevant part:
On April 27, 2011, the District presented a proposal for 2011-2012 re-opener
negotiations to the public. 	The District hereby amends the proposal presented
on April 27, 2011 to delete references to Article VIII, Article XII and Article
XIII and to identify in their place Article XXVI, specifically paragraph A which
applies to re-opener negotiations. This proposal is authorized by Article XXVI
paragraph A
....
Accordingly, re-opener negotiations pursuant to Article XXVI, paragraph A
will now address the following contract articles during the 2011-12 year:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 2011-12 and 201
	13
school years at any time.
(Emphasis in original.)
The letter to which the August 5 Proposal was attached stated that "there is no language, let
alone clear and unmistakable language, barring the parties from reopening the terms
of Article
XXVI itself' and that "[s]irnilarly, there is no clear and unmistakable language barring the
parties from reopening negotiations in July, 2011 with respect to the 2011-12 school year."
LA-CO-1491-E
November 10, 201 1
Page 4
Article XI - Class Size
Article XII - Compensation
Article XIII - Fringe Benefits
(Emphasis in Original.) The April 27 Proposal does not invoke the reopener provision of
Article XXXVI of the CBA.
The charge alleges that the Union "has failed and refused to bargain this proposal."
4. 	August 5. 2011
By letter dated August 5, 2011, District Counsel Joshua E. Morrison (Morrison) informed CTA
Regional UniServe Director Jeff Good (Good) that "the District demands immediate
bargaining on the collective bargaining proposals recently sunshined by the District."
Attached to this letter was an "Amended Initial Proposal for 2011-2012 Reopener
Negotiations," dated July 27, 201 1 and also labeled "Proposals for Reopeners" (August 5
Proposal), which states in relevant part:
On April 27, 2011, the District presented a proposal for 2011-2012 re-opener
negotiations to the public. The District hereby amends the proposal presented
on April 27, 2011 to delete references to Article VIII, Article XII and Article
XIII and to identify in their place Article XXVI, specifically paragraph A which
applies to re-opener negotiations. This proposal is authorized by Article XXVI
paragraph A . . . .
Accordingly, re-opener negotiations pursuant to Article XXVI, paragraph A
will now address the following contract articles during the 201 1-12 year:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 201 1-12 and 2012-13 school years at any time.
(Emphasis in original.)
The letter to which the August 5 Proposal was attached stated that "there is no language, let
alone clear and unmistakable language, barring the parties from reopening the terms of Article
XXVI itself" and that "[similarly, there is no clear and unmistakable language barring the
parties from reopening negotiations in July, 2011 with respect to the 201 1-12 school year."

LA-CO-1491-E
November 10, 2011
Page 5
The charge alleges that the Union "has failed and refused to bargain this proposal."
C. 	Impasse Proceedings
By letter dated August 18, 2011, Good informed Morrison that "[Union] tolerance
of
the
District's repeated demands to reopen the Agreement has reached an end" and that "[t]he
parties are now at impasse over the District's proposal to reopen the Agreement."
On August 3
0,
2011, the District filed a Request for Impasse Determination/Appointment
of
Mediator (PERB Case No. LA-IM-3664-E). By letter dated September 7, 2011, the District
withdrew said request without prejudice.
II. 	Discussion
A. 	The District's Burden to Allege a Prima Facie Case
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and
Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Untfied School District (1991) PERB Decision No. 873.)
B. 	The District's Allegations Regarding the February 23 and 28 Proposals Are
Untimely
EERA section 3 541.S(a)(
l)
prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating that the
charge is timely filed. 	(Tehachapi Un{fied School District (1993) PERB Decision No. 1024;
State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
In Saddleback Valley Un(fied School District (1985) PERB Decision No. 558, the Board held
that "the six month period is to be computed by excluding the day the alleged misconduct took
place and including the last day." In Saddleback the school employer adopted a proposal on
June 20, 1984. The Board thus calculated that "the six-month period started on June 21, 1984,
the day after the school board adopted the proposal, and ended at the close of business on
2 PERB Regulations are codified at Code of Regulations, title VIII, section 3100 l et
seq. 	The text of the PERB Regulations may be found at www.perb.ca.gov.
LA-CO-1491-E
November 10, 2011
Page 5
The charge alleges that the Union "has failed and refused to bargain this proposal."
C	C 	Impasse Proceedings
By letter dated August 18, 2011, Good informed Morrison that "[Union] tolerance of the
District's repeated demands to reopen the Agreement has reached an end" and that "[the
parties are now at impasse over the District's proposal to reopen the Agreement."
On August 30, 2011, the District filed a Request for Impasse Determination/Appointment of
Mediator (PERB Case No. LA-IM-3664-E). By letter dated September 7, 2011, the District
withdrew said request without prejudice.
II. 	Discussion
A. 	The District's Burden to Allege a Prima Facie Case
PERB Regulation 32615(a)(5)" requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
B. 	The District's Allegations Regarding the February 23 and 28 Proposals Are
Untimely
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that "the six month period is to be computed by excluding the day the alleged misconduct took
place and including the last day." In Saddleback the school employer adopted a proposal on
June 20, 1984. The Board thus calculated that "the six-month period started on June 21, 1984,
the day after the school board adopted the proposal, and ended at the close of business on
=PERB Regulations are codified at Code of Regulations, title VIII, section 31001 et
seq. The text of the PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1491-E
November 10, 2011
Page 6
December 20, 1984." (Ibid; see also California State University, Fullerton ( 1986)
PERB
Decision No. 605-H.)
Here, the charge was filed on September 28, 2011. Applying the principles above, PERB is
prohibited from issuing a complaint with respect to any unfair practice alleged in the charge
that occurred before March 28, 2011. 	The charge alleges that the District provided the Union
with the February
23
proposal on February 23, 2011.
	It
further alleges that it discussed
the
"strategy" in the February 28 proposal with the Union on February
16
and March 3, 2011 and
that Stromberg "was also present and addressed this item at the February 28, 2011 meeting
of
the District's Governing Board." The charge finally alleges that "[the Union] has failed
and
refused to bargain these proposals." This conclusory allegation, unsupported by any dates on
which the Union
is
alleged to have so failed and refused, cannot carry the burden
of
demonstrating that the charge is timely filed with respect to the February
23
and 28 Proposals,
i.e., that the Union first failed and refused to bargain about these proposals on or after March
28, 2011.
C. 	The District's Allegations Regarding the April 27 and August 5 Proposals Fail
to State a Prima Facie Case
of
Failure or Refusal to Bargain
A union's absolute refusal to bargain with the employer about a mandatory subject
of
bargaining is a per se violation
of
the union's duty
to
meet and confer in good faith with the
employer. 	(Gonzales Union High School District (1985) PERB Decision No. 480.) The
union's duty to bargain is triggered by the employer's valid demand to bargain. 	(State
of
California (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-S.) A "zipper"
clause in the parties' collective bargaining agreement can waive the right to bargain
if
the
waiver is "expressed in clear and unmistakable terms." (Rowland Unified School District
(1994) PERB Decision No. 1053.) In the present case, the charge fails to allege that the
District made a valid demand to bargain in light
of
the zipper clause in the parties' CBA and
the reopener clause in their TA.
As stated above, Article XVIII, Zipper, ·of the parties' CBA provides in full:
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life
of
this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
With this zipper clause, the parties waived "in clear and unmistakable terms" their right to
bargain about "all negotiable items." Article XXVI, as revised in the parties' TA, is a reopener
clause that establishes a narrow exception to this waiver:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 [Compensation] and Article
13 [Fringe Benefits].
LA-CO-1491-E
November 10, 2011
Page 6
December 20, 1984." (Ibid.; see also California State University, Fullerton (1986) PERB
Decision No. 605-H.)
Here, the charge was filed on September 28, 2011. Applying the principles above, PERB is
prohibited from issuing a complaint with respect to any unfair practice alleged in the charge
that occurred before March 28, 2011. The charge alleges that the District provided the Union
with the February 23 proposal on February 23, 2011. It further alleges that it discussed the
"strategy" in the February 28 proposal with the Union on February 16 and March 3, 201 1 and
that Stromberg "was also present and addressed this item at the February 28, 2011 meeting of
the District's Governing Board." The charge finally alleges that "[the Union] has failed and
refused to bargain these proposals." This conclusivetion, unsupported by any dates on
which the Union is alleged to have so failed and refused, cannot carry the burden of
demonstrating that the charge is timely filed with respect to the February 23 and 28 Proposals,
i.ii.e., that the Union first failed and refused to bargain about these proposals on or after Mar
28, 2011.
C. 	The District's Allegations Regarding the April 27 and August 5 Proposals Fail
to State a Prima Facie Case of Failure or Refusal to Bargain
A union's absolute refusal to bargain with the employer about a mandatory subject of
bargaining is a per se violation of the union's duty to meet and confer in good faith with the
employer. (Gonzales Union High School District (1985) PERB Decision No. 480.) The
union's duty to bargain is triggered by the employer's valid demand to bargain. (State of
California (Department of Veterans Affairs) (2010) PERB Decision No. 21 10-S.) A "zipper"
clause in the parties' collective bargaining agreement can waive the right to bargain if the
waiver is "expressed in clear and unmistakable terms." (Rowland Unified School District
(1994) PERB Decision No. 1053.) In the present case, the charge fails to allege that the
District made a valid demand to bargain in light of the zipper clause in the parties' CBA and
the reopener clause in their TA.
As stated above, Article XVIII, Zipper, of the parties' CBA provides in full:
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life of this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
With this zipper clause, the parties waived "in clear and unmistakable terms" their right to
bargain about "all negotiable items." Article XXVI, as revised in the parties' TA, is a reopener
clause that establishes a narrow exception to this waiver:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 [Compensation] and Article
13 [Fringe Benefits].

LA-CO-1491-E
November 10, 2011
Page 7
Having generally waived its right to bargain by agreeing to the zipper clause, the District had
only a limited right to bargain pursuant to the reopener clause. To trigger the Union's duty to
bargain pursuant to that clause, it had to make a valid demand to bargain pursuant to it.
Regardless of the timeliness issue addressed in the previous section of this Warning Letter, the
District's February 23 and 28 Proposals did not constitute proper demands to bargain pursuant
to the reopener clause. The February 23 Proposal, labeled "Proposal for a Side Letter
Agreement," arguably constituted a demand to bargain about this proposal. However, it did
not constitute a demand to bargain about it pursuant to the reopener clause. It did not correlate
any of the proposals in it to any of the Articles of the CBA, nor did it purport reopen any of the
Articles of the CBA or invoke the reopener provision of Article XXVI of the CBA. It
contained proposals relating to articles that could be reopened pursuant to the reopener clause,
including the proposal to increase student-teacher ratios, which are addressed in Article XI of
the CBA and are therefore a possible subject for reopener negotiations pursuant to the reopener
clause. But it also contained proposals relating to articles that could not be reopened pursuant
to the reopener clause, including the proposals to "Eliminate Standard Income Protection
Plan," for a "Three Tier Cap on Health and Welfare," and for a "l 0% Salary Rollback," issues
that are addressed in Articles XII and XIII of the CBA, respectively, and that are therefore not
possible subjects for reopener negotiations pursuant to the reopener clause. It also contained
one proposal, "Reinstate five furlough days for 2010-11," regarding an issue that does not
appear to be addressed anywhere in the CBA or the TA.
Because the February 23 Proposal did not purport to reopen any articles of the CBA, let alone
pursuant to the reopener clause, together with the fact that it contained proposals relating to
articles that could not be reopened pursuant to the reopener clause, it did not constitute a
demand to bargain pursuant to the reopener clause and it therefore al.so did not trigger the
Union's duty to bargain pursuant to that clause. The only reasonably interpretation of the
reopener clause places the burden on the District to inform the Union that it desires to reopen
two articles pursuant to that reopener clause and to identify which two articles it desires to so
reopen. Any other interpretation of the reopener clause would unreasonably shift the burden
onto the Union to guess at the District's intent. With its February 23 Proposal, the District did
not carry its burden to inform the Union that it desired to reopen two articles pursuant to the
reopener clause and to identify those two articles. Therefore, the February 23 Proposal did not
trigger the Union's duty to meet and confer and the Union did not violate that duty when it
refused to do so.
The February 28 Proposal, labeled "Proposed Staffing Formulas," did not constitute a demand
to bargain, let alone a demand to bargain pursuant to the reopener clause. By the clear and
unambiguous language of its cover page, the proposal was submitted to the Board of Education
for "approval," not to the Union for bargaining. That "[t]his strategy was discussed with [the
Union] ... on or about February 16 and March 3, 2011," as the charge alleges, does not mean
that it was submitted to the Union for bargaining on these or any other dates. That [Union]
President ... Somberg ,vas also present and addressed this item at the February 28, 2011
meeting of the District's Governing Board," as the charge further alleges, also does not mean
that that the proposal was submitted to him for bargaining on this or any other date. The
LA-CO-1491-E
November 10, 2011
Page 7
Having generally waived its right to bargain by agreeing to the zipper clause, the District had
only a limited right to bargain pursuant to the reopener clause. To trigger the Union's duty to
bargain pursuant to that clause, it had to make a valid demand to bargain pursuant to it.
Regardless of the timeliness issue addressed in the previous section of this Warning Letter, the
District's February 23 and 28 Proposals did not constitute proper demands to bargain pursuant
to the reopener clause. The February 23 Proposal, labeled "Proposal for a Side Letter
Agreement," arguably constituted a demand to bargain about this proposal. However, it did
not constitute a demand to bargain about it pursuant to the reopener clause. It did not correlate
any of the proposals in it to any of the Articles of the CBA, nor did it purport reopen any of the
Articles of the CBA or invoke the reopener provision of Article XXVI of the CBA. It
contained proposals relating to articles that could be reopened pursuant to the reopener clause,
including the proposal to increase student-teacher ratios, which are addressed in Article XI of
the CBA and are therefore a possible subject for reopener negotiations pursuant to the reopener
clause. But it also contained proposals relating to articles that could not be reopened pursuant
to the reopener clause, including the proposals to "Eliminate Standard Income Protection
Plan," for a "Three Tier Cap on Health and Welfare," and for a "10% Salary Rollback," issues
that are addressed in Articles XII and XIII of the CBA, respectively, and that are therefore not
possible subjects for reopener negotiations pursuant to the reopener clause. It also contained
one proposal, "Reinstate five furlough days for 2010-1 1," regarding an issue that does not
appear to be addressed anywhere in the CBA or the TA.
Because the February 23 Proposal did not purport to reopen any articles of the CBA, let alone
pursuant to the reopener clause, together with the fact that it contained proposals relating to
articles that could not be reopened pursuant to the reopener clause, it did not constitute a
demand to bargain pursuant to the reopener clause and it therefore also did not trigger the
Union's duty to bargain pursuant to that clause. The only reasonably interpretation of the
reopener clause places the burden on the District to inform the Union that it desires to reopen
two articles pursuant to that reopener clause and to identify which two articles it desires to so
reopen. Any other interpretation of the reopener clause would unreasonably shift the burden
onto the Union to guess at the District's intent. With its February 23 Proposal, the District did
not carry its burden to inform the Union that it desired to reopen two articles pursuant to the
reopener clause and to identify those two articles. Therefore, the February 23 Proposal did not
trigger the Union's duty to meet and confer and the Union did not violate that duty when it
refused to do so.
The February 28 Proposal, labeled "Proposed Staffing Formulas," did not constitute a demand
to bargain, let alone a demand to bargain pursuant to the reopener clause. By the clear and
unambiguous language of its cover page, the proposal was submitted to the Board of Education
for "approval," not to the Union for bargaining. That "[tJhis strategy was discussed with [the
Union] . . . on or about February 16 and March 3, 2011," as the charge alleges, does not mean
hat it was submitted to the Union for bargaining on these or any other dates. That [Union]
President . . . Somberg was also present and addressed this item at the February 28, 2011
meeting of the District's Governing Board," as the charge further alleges, also does not mean
that that the proposal was submitted to him for bargaining on this or any other date. The

LA-C0-1491-E
November 10, 2011
Page 8
charge thus fails to allege that the District ever made a demand.to bargain about the February
28 Proposal, be it pursuant to the reopener clause or otherwise. Therefore, the February 28
Proposal did not trigger the Union's duty to meet and confer and the Union did not violate that
duty when it refused to
do
so.
The April 27 Proposal, labeled "Inglewood USD - District Initial Proposal for
2011-2012
[R]eopener [N]egotiations" and also labeled "Proposals for a Reopener Agreement," arguably
constituted a demand to bargain pursuant to the reopener clause. 	This is
so
because it
purported to reopen specific articles
ofthe
CBA and because it mentions "[R]eopener
[N]egotitions" and a "Reopener Agreement," despite the fact that it attempted to reopen
not
only articles that could be reopened pursuant to the reopener
clause-specifically,
Articles VIII
and
XI-but
also articles that could not be reopened pursuant to that
clause-specifically,
Articles XII and XIII. 	The Union could have remedied the latter deficiency by refusing to
bargain about Articles XII and XIII, leaving two bargainable articles.
Nevertheless, the April 27 Proposal did not constitute a valid demand to bargain pursuant to
the reopener clause because it was not made "[n]o later than April 1," as the reopener clause
clearly and unambiguously requires. The District claims, in the letter from Morrison to Good
dated August 5, 2011, that "there is no clear .and unmistakable language barring the parties
from reopening negotiations in July 2011 with respect to the 2011-12 school year" ( emphasis
supplied). 	The District further claims, in the same letter, that the reopener clause language
allowing the parties to reopen two articles per party " [n
Jo
later than April 1
of
each year
of
this
agreement" means that "either party may reopening [sic] bargaining in each
of
the three years
of
the agreement, so long as it does so on or before April I." Even under
this-i.e.,
the
District's
own-interpretation,
the District could not reopen bargaining in the 20 l 0-11 year
of
the agreement by doing so after April
1,
2011. The charge thus fails to allege that the District
ever made a valid demand to bargain about the April 27 Proposal pursuant to the reopener
clause. 	Therefore, the April 27 Proposal did not trigger the Union's duty to meet and confer
and the Union did not violate that duty when it refused to do so.
The August 5 Proposal, labeled "Amended Initial Proposal for 2011-2012 Reopener
Negotiations" and also labeled "Proposal for Reopeners," constituted a demand to bargain
pursuant to tbe reopener clause. This is so because it purported to reopen specific articles
of
the CBA, because it mentions "[R]eopener [N]egotitions" and "Reopeners," and because it
invokes the reopener clause, despite the fact that it purported to reopen not only one article that
could be reopened pursuant to the reopener clause-specifically, Article
XI-but
also one
article that, as discussed below, could not be reopened pursuant to that clause-specifically,
Article XXVI. 	The Union could again have remedied the latter deficiency
by
refusing to
bargain about Article XXVI.
The August 5 Proposal regarding Article XI read as follows:
Article XI 	CLASS SIZE (THIS ARTICLE \VAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
LA-CO-1491-E
November 10, 2011
Page 8
charge thus fails to allege that the District ever made a demand to bargain about the February
28 Proposal, be it pursuant to the reopener clause or otherwise. Therefore, the February 28
Proposal did not trigger the Union's duty to meet and confer and the Union did not violate that
duty when it refused to do so.
The April 27 Proposal, labeled "Inglewood USD - District Initial Proposal for 2011-2012
[Rjeopener [Njegotiations" and also labeled "Proposals for a Reopener Agreement," arguably
constituted a demand to bargain pursuant to the reopener clause. This is so because it
purported to reopen specific articles of the CBA and because it mentions "[RJeopener
[Njegotitions" and a "Reopener Agreement," despite the fact that it attempted to reopen not
only articles that could be reopened pursuant to the reopener clause-specifically, Articles VIII
and XI-but also articles that could not be reopened pursuant to that clause-specifically,
Articles XII and XIII. The Union could have remedied the latter deficiency by refusing to
bargain about Articles XII and XIII, leaving two bargainable articles.
Nevertheless, the April 27 Proposal did not constitute a valid demand to bargain pursuant to
the reopener clause because it was not made "[njo later than April 1," as the reopener clause
clearly and unambiguously requires. The District claims, in the letter from Morrison to Good
dated August 5, 2011, that "there is no clear and unmistakable language barring the parties
from reopening negotiations in July 2011 with respect to the 2011-12 school year" (emphasis
supplied). The District further claims, in the same letter, that the reopener clause language
allowing the parties to reopen two articles per party "[njo later than April 1 of each year of this
agreement" means that "either party may reopening [sic] bargaining in each of the three years
of the agreement, so long as it does so on or before April 1." Even under this i.e., the
District's own-interpretation, the District could not reopen bargaining in the 2010-1 1 year of
the agreement by doing so after April 1, 2011. The charge thus fails to allege that the District
ever made a valid demand to bargain about the April 27 Proposal pursuant to the reopener
clause. Therefore, the April 27 Proposal did not trigger the Union's duty to meet and confer
and the Union did not violate that duty when it refused to do so.
The August 5 Proposal, labeled "Amended Initial Proposal for 2011-2012 Reopener
Negotiations" and also labeled "Proposal for Reopeners," constituted a demand to bargain
pursuant to the reopener clause. This is so because it purported to reopen specific articles of
the CBA, because it mentions "[Rjeopener [Njegotitions" and "Reopeners," and because it
invokes the reopener clause, despite the fact that it purported to reopen not only one article that
could be reopened pursuant to the reopener clause-specifically, Article XI-but also one
article that, as discussed below, could not be reopened pursuant to that clause-specifically,
Article XXVI. The Union could again have remedied the latter deficiency by refusing to
bargain about Article XXVI.
The August 5 Proposal regarding Article XI read as follows:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)

LA-C0-1491-E
November 10, 2011
Page 9
(Emphasis in original.) The April 27 Proposal regarding Article XI in turn specified that the
District demanded that this article "be bargained for the 2011-12 year" (emphasis supplied).
Thus, the August 5 Proposal regarding Article XI also specified, by referring to the April
27
Proposal, that the District demanded that this article be bargained for the 2011-12 year.
	The
issue
is
whether on July 27 or August 5, 2011, the District could demand, pursuant to the
reopen er clause, that Article XI be bargained for the 2011-12 year.
As stated above, the District argues, in the letter from Morrison to Good dated August 5, 201
1,
that "there
is
no clear and unmistakable language barring the parties from reopening
negotiations in July 2011 with respect to the 2011-12 school year" ( emphasis supplied). The
District further argues,
in
the same Jetter, that the reopener clause language allowing the parties
to reopen two articles per party "[n]o later than April 1
of
each year
of
this agreement" means
that "either party may reopening [sic] bargaining in each
of
the three years
of
the agreement, so
long as it does so on or before April l ." Thus, according to the District, it could reopen Article
XI for the 2011-12 year
of
the agreement at any time during that year, including July
27 or
August 5, 2011, as long as it did so on or before April
1,
2012. The District concedes that,
"[a]s a practical matter, it may well be that bargaining which commenced on April
1,
201 [2]
will not be complete by the end
of
the 201
[1
]-1 [2] school year." The District counters that
"[t]here is, however, no requirement that the parties wait until April 1 to commence
bargaining" and that "[t]o the contrary, either party may commence reopener negotiations on
any date on or before April 1 during each year
of
this agreement," as the District tried to do
here.
While the District is correct that a party could commence reopener negotiations well before
April 1 and the parties could then complete these negotiations in time for any resulting
agreement to take effect for the current school year, a party could by the same token
commence reopener negotiations on April I and the parties might then not be able to complete
these negotiations in time for any resulting agreement to have an effect for the current school
year. More generally, the District offers no explanation why the parties would have chosen
April 1 as the cut-off date for commencing negotiations for the current school year, as opposed
to
an earlier cut-off date that would have given them by
necessity-rather
than by one
party's
unilateral choice
of
picking an earlier date in that year on which to reopen two
articles-more
time to complete negotiations in time for any resulting agreement to take effect in that school
year. 	The only reasonable interpretation
of
the reopener clause is that the parties chose April 1
as the cut-off date not for the current school year, but for the next school year. 	Under this
interpretation, the parties' choice
of
this cut-off date is easily explained as their reasonable
attempt to give themselves enough time to complete negotiations in time for any resulting
agreement to take effect for the next school year.
As a result, on July 27 or August 5, 2011, the District could no longer demand, pursuant to the
reopener clause, that Article XI be bargained for the 2011-12 year. 	With respect to Article XI,
the charge thus fails to allege that the District ever made a valid demand to bargain about the
August 5 Proposal pursuant to the reopener clause. 	Therefore, and again with respect to
Article XI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.
LA-CO-1491-E
November 10, 201 1
Page 9
(Emphasis in original.) The April 27 Proposal regarding Article XI in turn specified that the
District demanded that this article "be bargained for the 2011-12 year" (emphasis supplied).
Thus, the August 5 Proposal regarding Article XI also specified, by referring to the April 27
Proposal, that the District demanded that this article be bargained for the 201 1-12 year. The
issue is whether on July 27 or August 5, 2011, the District could demand, pursuant to the
reopener clause, that Article XI be bargained for the 201 1-12 year.
As stated above, the District argues, in the letter from Morrison to Good dated August 5, 201 1,
that "there is no clear and unmistakable language barring the parties from reopening
negotiations in July 2011 with respect to the 2011-12 school year" (emphasis supplied). The
District further argues, in the same letter, that the reopener clause language allowing the parties
to reopen two articles per party "[njo later than April 1 of each year of this agreement" means
that "either party may reopening [sic] bargaining in each of the three years of the agreement, so
long as it does so on or before April 1." Thus, according to the District, it could reopen Article
XI for the 2011-12 year of the agreement at any time during that year, including July 27 or
August 5, 2011, as long as it did so on or before April 1, 2012. The District concedes that,
"[a]s a practical matter, it may well be that bargaining which commenced on April 1, 201[2]
will not be complete by the end of the 201 [1]-1[2] school year." The District counters that
"[t ]here is, however, no requirement that the parties wait until April 1 to commence
bargaining" and that "[tjo the contrary, either party may commence reopener negotiations on
any date on or before April 1 during each year of this agreement," as the District tried to do
here.
While the District is correct that a party could commence reopener negotiations well before
April 1 and the parties could then complete these negotiations in time for any resulting
agreement to take effect for the current school year, a party could by the same token
commence reopener negotiations on April 1 and the parties might then not be able to complete
these negotiations in time for any resulting agreement to have an effect for the current school
year. More generally, the District offers no explanation why the parties would have chosen
April 1 as the cut-off date for commencing negotiations for the current school year, as opposed
to an earlier cut-off date that would have given them by necessity-rather than by one party's
unilateral choice of picking an earlier date in that year on which to reopen two articles-more
time to complete negotiations in time for any resulting agreement to take effect in that school
year. The only reasonable interpretation of the reopener clause is that the parties chose April 1
as the cut-off date not for the current school year, but for the next school year. Under this
interpretation, the parties' choice of this cut-off date is easily explained as their reasonable
attempt to give themselves enough time to complete negotiations in time for any resulting
agreement to take effect for the next school year.
As a result, on July 27 or August 5, 2011, the District could no longer demand, pursuant to the
reopener clause, that Article XI be bargained for the 2011-12 year. With respect to Article XI,
the charge thus fails to allege that the District ever made a valid demand to bargain about the
August 5 Proposal pursuant to the reopener clause. Therefore, and again with respect to
Article XI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.

LA-CO-1491-E
November 10, 2011
Page 10
The August 5 Proposal regarding Article XXVI reads as follows:
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 2011-12 and 2012-13 school years at any time.
For the reasons stated above, on July 27 or August 5, 2011, the District could no longer
demand, pursuant to the reopener clause, that Article XXVI be bargained "for the 2011-12 ...
school year[]," and the August 5 Proposal therefore did not trigger the Union's duty to meet
and confer, nor did the Union violate that duty when it refused to meet and confer, about
Article XXVI for the 2011-12 school year. However, the District's interpretation of the
reopener clause is reasonable insofar as it maintains that it could reopen Article XXVI for the
2012-13 school year at any time during 2011-12, including July 27 or August 5, 2011, as long
. as it did so by April 1, 2012, and as long as it could reopen the reopener clause itself clause.
The issue is whether the District could reopen the reopener clause itself.
To answer that question in the affirmative would be to allow the exception to swallow the rule.
In Article XXVIII of their CBA, the parties agreed to a broad zipper clause in which they
agreed that "all negotiable items have been discussed during negotiations leading to this
Agreement" and that "negotiations will not be reopened on any item during the life of the
Agreement except by mutual agreement or as provided elsewhere in this Agreement" In
Article XXVI of their CBA, as revised in their TA, the parties agreed to a narrow exception to
this rule, specifically, that in "each year of this agreement," each party would be allowed to
"reopen negotiations on two (2) articles ... , exclusive Article 12 & Article 13." They further
agreed that otherwise, "[t]his Agreement shall ... remain in full force and effect unless
modified in accordance with the other provisions contained herein through June 30, 2013." As
the District would have it, by reopening the reopener clause itself, it could insist until impasse
that more than the two articles allowed by that reopener clause-including Articles XXII and
XIII, which are expressly prohibited by the reopener clause-could be reopened for the
remainder of the CBA, or that the expiration date of the CBA could be reopened. In other
words, as the District would have, by reopening the reopener clause, it could effectively
reopen-and ultimately cancel-the entire agreement.
Nothing in the language of Article XXVI or its bargaining history supports giving the reopener
clause such sweeping effect. To the contrary: While Article XXVI as originally written in the
CBA gave the parties the right "to reopen negotiations on Article 12, Compensation, and Article
13, Fringe Benefits, and one additional article per party," the parties subsequently bargained
away their right to reopen Articles XXII and XIII m their TA in exchange for the right to "reopen
negotiations on two (2) articles per party, exclusive of Article 12 & Article 13" (emphasis
supplied). To interpret this revision to allow the District to propose and insist until impasse
during the life of these agreements that it should be allowed to reopen any number of articles,
inclusive of Articles XXIl and XIII, would fail to give effect to this language. PERB, however,
has recognized that "[ u]ndcr California lavv, a contract must be interpreted to give effect to the
expressed intent of the parties as of the time of agreement ... , with effect being given to every
portion of the agreement." (Eureka City School District (1988) PERB Decision No. 702, fn. 22;
LA-CO-1491-E
November 10, 201 1
Page 10
The August 5 Proposal regarding Article XXVI reads as follows:
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 2011-12 and 2012-13 school years at any time.
For the reasons stated above, on July 27 or August 5, 2011, the District could no longer
demand, pursuant to the reopener clause, that Article XXVI be bargained "for the 2011-12 . . .
school year[]," and the August 5 Proposal therefore did not trigger the Union's duty to meet
and confer, nor did the Union violate that duty when it refused to meet and confer, about
Article XXVI for the 2011-12 school year. However, the District's interpretation of the
reopener clause is reasonable insofar as it maintains that it could reopen Article XXVI for the
2012-13 school year at any time during 2011-12, including July 27 or August 5, 2011, as long
as it did so by April 1, 2012, and as long as it could reopen the reopener clause itself clause.
The issue is whether the District could reopen the reopener clause itself.
To answer that question in the affirmative would be to allow the exception to swallow the rule.
In Article XXVIII of their CBA, the parties agreed to a broad zipper clause in which they
agreed that "all negotiable items have been discussed during negotiations leading to this
Agreement" and that "negotiations will not be reopened on any item during the life of the
Agreement except by mutual agreement or as provided elsewhere in this Agreement." In
Article XXVI of their CBA, as revised in their TA, the parties agreed to a narrow exception to
this rule, specifically, that in "each year of this agreement," each party would be allowed to
'reopen negotiations on two (2) articles . . ., exclusive Article 12 & Article 13." They further
agreed that otherwise, "[this Agreement shall . . . remain in full force and effect unless
modified in accordance with the other provisions contained herein through June 30, 2013." As
the District would have it, by reopening the reopener clause itself, it could insist until impasse
that more than the two articles allowed by that reopener clause-including Articles XXII and
XIII, which are expressly prohibited by the reopener clause-could be reopened for the
remainder of the CBA, or that the expiration date of the CBA could be reopened. In other
words, as the District would have, by reopening the reopener clause, it could effectively
reopen-and ultimately cancel-the entire agreement.
Nothing in the language of Article XXVI or its bargaining history supports giving the reopener
clause such sweeping effect. To the contrary: While Article XXVI as originally written in the
CBA gave the parties the right "to reopen negotiations on Article 12, Compensation, and Article
13, Fringe Benefits, and one additional article per party," the parties subsequently bargained
away their right to reopen Articles XXII and XIII in their TA in exchange for the right to "reopen
negotiations on two (2) articles per party, exclusive of Article 12 & Article 13" (emphasis
supplied). To interpret this revision to allow the District to propose and insist until impasse
during the life of these agreements that it should be allowed to reopen any number of articles,
inclusive of Articles XXII and XIII, would fail to give effect to this language. PERB, however,
has recognized that "[under California law, a contract must be interpreted to give effect to the
expressed intent of the parties as of the time of agreement . . ., with effect being given to every
portion of the agreement." (Eureka City School District (1988) PERB Decision No. 702, fn. 22;

LA-CO-1491-E
November 10, 2011
Page 11
see also Civ. Code, § 1641 stating that "[t]he whole of a contract is to be taken together, so as to
give effect to every part, if reasonably practicable, each clause helping to interpret the other.")
In Trustees of the California State University (2004) PERB Decision No. 1591-H, PERB
rejected a similarly overbroad interpretation of another reopener clause. In that case, Article
31, Salaries, of a collective bargaining agreement provided in subsection 31.53 that "[tJhe
parties will reopen negotiations on Article 31, Salaries ... for fiscal year 2000/01." The same
article also provided in subsection 31.54 that "[a]dditional conditions regarding compensation
for fiscal year 2000/01 shall be as provided in the Memorandum of Understanding dated June
4, 1999." The union argued that pursuant to subsection 31.53, it could reopen the
memorandum of understanding referenced in subsection 31.54. PERB rejected this argument,
holding that it "would render the MOU essentially ineffective." Just as in that case, the
reopener clause did not reach "[a]dditional conditions" specified in the next subsection, so in
the present case, the reopener clause does not reach conditions specified in the reopener clause
itself, as these otherwise would be rendered ineffective. Therefore, with respect to Article
XXVI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.
III. Conclusion
For these reasons the charge, as presently written, does not state a prima facie case.3 If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before Friday, November 18,
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)
LA-CO-1491-E
November 10, 2011
Page 11
see also Civ. Code, $ 1641 stating that "[the whole of a contract is to be taken together, so as to
give effect to every part, if reasonably practicable, each clause helping to interpret the other.")
In Trustees of the California State University (2004) PERB Decision No. 1591-H, PERB
rejected a similarly overbroad interpretation of another reopener clause. In that case, Article
31, Salaries, of a collective bargaining agreement provided in subsection 31.53 that "[the
parties will reopen negotiations on Article 31, Salaries . . . for fiscal year 2000/01." The same
article also provided in subsection 31.54 that "[additional conditions regarding compensation
for fiscal year 2000/01 shall be as provided in the Memorandum of Understanding dated June
4, 1999." The union argued that pursuant to subsection 31.53, it could reopen the
memorandum of understanding referenced in subsection 31.54. PERB rejected this argument,
holding that it "would render the MOU essentially ineffective." Just as in that case, the
reopener clause did not reach "[additional conditions" specified in the next subsection, so in
the present case, the reopener clause does not reach conditions specified in the reopener clause
itself, as these otherwise would be rendered ineffective. Therefore, with respect to Article
XXVI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.
III. Conclusion
For these reasons the charge, as presently written, does not state a prima facie case.
= If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, Charging Party may amend the charge. The amended charge should be
prepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty of
perjury by an authorized agent of Charging Party. The amended charge must have the case
number written on the top right hand corner of the charge form. The amended charge must be
served on the Respondent's representative and the original proof of service must be filed with
PERB. If an amended charge or withdrawal is not filed on or before Friday, November 18,
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make "a
determination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support of the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Ibid.)

LA-CO-1491-E
November 10, 2011
Page 12
2011, 4 PERB will dismiss your charge. 	If you have any questions, please call me at the above
telephone number.
Sincerely,
Bernhard Rohrbacher
Supervising Regional Attorney
BR
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
LA-CO-1491-E
November 10, 2011
Page 12
2011, PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Bernhard Rohrbacher
Supervising Regional Attorney
BR
" A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)

2 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

INGLEWOOD UNIFIED SCHOOL DISTRICT,
Charging Party, Case No. LA-CO-1491-E
v. PERB Decision No. 2290
INGLEWOOD TEACHERS ASSOCIATION, | October 29, 2012
Respondent.

Appearances: Atkinson, Andelson, Loya, Ruud & Romo by Joshua E. Morrison, Attorney, for
Inglewood Unified School District; California Teachers Association by Robert E. Lindquist,
Attorney, for Inglewood Teachers Association.
Before Martinez, Chair; Dowdin Calvillo and Huguenin, Members.
DECISION

MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Inglewood Unified School District (District) of the Office
of the General Counsel’s dismissal (attached) of its unfair practice charge. The charge, as
amended, alleged that the Inglewood Teachers Association (Association) violated the
Educational Employment Relations Act (EERA)’ by failing or refusing to meet and confer
with the District. The charge alleged that this conduct constituted a violation of EERA
section 3543.6, subdivision (c).

The Board has reviewed the entire record in this matter and given full consideration to
the appeal and the response thereto. Based on this review, the Board finds the warning and
dismissal letters to be well-reasoned, adequately supported by the record and in accordance

with the applicable law. Accordingly, the Board hereby adopts the warning and dismissal

letters as the decision of the Board itself, as supplemented by the discussion below.

' EERA is codified at Government Code section 3540 et seq.

BACKGROUND
The Association is an affiliate
of
the California Teachers Association (CTA) and the
National Education Association. The Association is the exclusive representative
of
certificated
employees who are employed mainly as contract classroom teachers in kindergarten through
grade level 12. The Association and the District board entered into a collective bargaining
agreement (CBA) effective July 1, 2006 through June 30, 2009.
The CBA includes the following articles: Article VIII (8) governing Work Days and
Hours; Article XI (11) governing Class Size; Article XII (12) governing Compensation;
Article XIII (13) governing Fringe Benefits; Article XXVI (26) containing the Reopener
Clause; and Article XXVIII (28) containing the Zipper Clause.
The Zipper Clause states as follows:
The parties agree that all negotiable items have been discussed
during negotiations leading to this Agreement, including salaries
and benefits, leaves and transfers and therefore further agree that
negotiations will not be reopened on any item during the life
of
this Agreement except by mutual agreement or as provided
elsewhere in this Agreement.
The Reopener Clause states as follows:
No later than April 1
of
each year
of
this agreement the parties
agree to reopen negotiations on Article 12, Compensation, and
Article 13, Fringe Benefits, and one additional article per party.
2
On September 3, 2010, the parties entered into a tentative agreement (TA), amending
certain terms and rolling over the others extending the force and
of
the CBA through
30, 2013.2 The amended the Reopener Clause to state:
No later than April 1
of
each year
of
this agreement the parties
agree to reopen negotiations on two (2) articles per party,
exclusive of Article 12 & Article 13.
(Strike-outs and underlining omitted.)
Also on September 3, 2010, the parties entered into a memorandum of understanding
to reduce the school year.

state receivership. The format
of
the Proposal is similar in content and format to financial
information disclosures provided by the District to the Association in the course
of
these
meetings showing how much had been reduced as
of
February 23, 2011, March 9, 2011, and
March 23, 2011. (Response, Exhibit 5.) Also according to declarations provided by the
Association, no member
of
the bargaining team attended these meetings, the parties agreed as a
ground rule that they were not engaged in "meeting and negotiating" at these meetings, and at
every such meeting the parties acknowledged the existence and operation
of
this ground rule.
On February 28, 2011, the District board met and adopted the District's Certificated
Staffing Formula for bargaining unit and non-bargaining unit positions. The Certificated
Staffing Formula carried over classroom teaching staffing ratios contained in the Proposal.4
As alleged by the District, the president
of
the Association, Peter Somberg (Som berg), was
present and addressed this item at the meeting. The special agenda states that the District "is
implementing a fiscal recovery plan" and "[b ]y approving the staffing formulas, the District
will have a standardized basis in which to make staffing decisions."
The charge does not allege that the District ever provided the Association with the
Certificated Staffing Formula. Nor does the charge allege that either the Proposal or the
Certificated Staffing Formula was sunshined for purposes
of
initiating negotiations.
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson
(Hasson) informed Somberg that the District "will be submitting its initial proposal to a
reopener Agreement for 2011-12 to the Governing Board for public hearing [on April 2 7,
2011] pursuant to Government Code 3547" and that
he should "consider this a formal demand
to bargain." Hasson's letter does not refer back to the February 23, 2011, Proposal.
For example, the Proposal proposed increased class size ratios for kindergarten
through third grade from 30: 1 to 32: 1, and increases in class size ratios for other grade levels
as well, in order to allow the District "to reduce certificated personnel expenditures and avoid
insolvency." The Certificated Staffing Formula shows the same increased class size ratios for
kindergarten through third grade from 30: 1 to 32: 1.
4

By letter dated April 26, 2011, Somberg informed Hasson that "the District's demand
to bargain is untimely because Article XXVI requires the parties to reopen negotiations no
later than April 1" and that the Association "declines to engage in negotiations pursuant to
your request." The letter also states, "[a]s you explicitly know - because you were a party to
the negotiations - the District is precluded from reopening Articles XII and XIII by operation
of
Article XXVI."
On April 27, 2011, the Initial Proposal for 2011-2012 Reopener Negotiations
(Reopener Proposal) was sunshined. The agenda states that the Reopener Proposal was
required to be sunshined "prior to the initiation
of
negotiations." It goes on to state, "the initial
proposal submitted by the Inglewood Unified School District for reopener negotiations is
recommended for adoption." The agenda further states that "[b]y approving this request, the
District will be able to begin negotiations for a reopener agreement." Under fiscal impact, the
agenda states that it is "subject to negotiations. "5
Attached to the agenda is a document entitled "Proposals for a Reopener Agreement."
It
describes the District's implementation
of
a fiscal recovery plan, but states that it did not go
far enough in reducing the deficit and therefore "the District will propose changes to
workyear/workhours, compensation, benefits, and class-size."
It
concludes that "in accordance
with the current bargained Agreement, the District proposes that the following contract articles
be bargained for the 2011-12 year," specifically listing Articles VIII,
XI, XII
and XIII.
By letter dated August 5, 2011, counsel for the District informed CTA Regional
Uniserve Director Jeff Good that "the District demands immediate bargaining on the collective
bargaining proposals recently sunshined by the District." Attached to the letter is an amended
initial proposal dated July 27, 2011. The amended proposal deletes references to Articles XII
5 This is in contrast to the special agenda for the District board meeting of February 28,
2011, which describes the fiscal impact for the Certificated Staffing Formula as "none."
5

"reopener proposal," the document was still effective for purposes
of
reopening the CBA under
the Reopener Clause, citing Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223. To find otherwise, alleges the District, is to elevate form over substance.
The amended charge also alleged that "[w]ith respect to the topic
of
class size, the April 27
document relates back to the February 23, document" and that the Association "did not
communicate its refusal to negotiate class size prior to March 28, 2011" and therefore "the
instant Charge is timely." The Board agent dismissed the charge on December 22, 2011,
addressing each
of
the District's newly alleged contentions, concluding that the Association
was under no duty to bargain. The District filed a timely appeal from the dismissal on
January 17, 2012. The Association filed a timely response on February
7,
2012.
DISCUSSION
The District's appeal raises no new issues that were not previously raised, considered
and addressed with one exception. The District contends that the existence
of
any actual
confusion7 as to whether the Proposal created a bargaining obligation on the part
of
the
Association under the Reopener Clause "involves factual considerations not appropriate for
resolution prior to hearing."
Based on our review
of
the record, we do not agree that the District has made sufficient
allegations upon which to conclude that there is a factual dispute concerning the parties' intent
or actions in this matter. The Office
of
the General Counsel properly concluded that,
notwithstanding the statute of limitations issues raised by the allegations of the charge, the
District failed to allege sufficient facts to demonstrate that the Association was under any duty
7 Though not cited in the District's appeal, the District may be relying on a principle
discussed in Kern Community College District (1983) PERB Decision No. 337. In that case,
the college district claimed that it was confused as to the object of the union's various requests
for negotiations. The Board held that if the college district were confused, "the duty to bargain
in good faith behooved it as a minimum to seek clarification of the [union's] position."
7

to bargain. Establishing a duty to bargain is a necessary precondition to establishing a prima
facie violation
of
that duty. 8
The most obvious deficiency with the charge is that it fails to allege that the parties
were indeed confused about their bargaining obligations. There are no factual allegations upon
which to even infer that the parties were confused. The factual context in which the Proposal
was prepared was that the parties were engaged in ongoing meetings over the fiscal crisis
during which the District was in the practice
of
providing the Association with financial
disclosures in chart form showing the cost savings from certain approved reductions. The
District does not dispute this fact. Nor does the District dispute the existence
of
a ground rule
agreed to by the parties that they were not engaged in a meet and negotiate process during
these meetings.
Moreover, the District did not allege that the Proposal was sunshined at a public
meeting
of
the District board, nor is there any factual support suggesting that it was. That
would have at least demonstrated that the District considered the Proposal to be a bargaining
proposal requiring public input prior to the initiation
of
negotiations (even
if
the Association
did not), as was the case with the Reopener Proposal. Further, only five days after the date
of
the Proposal, the board met and adopted the District's Certificated Staffing Formula, the
purpose
of
which was to give the District "a standardized basis in which to make staffing
decisions." Given the short time frame between the date
of
the Proposal and the adoption by
the District board
of
the Certificated Staffing Formula with its stated purpose to allow the
District to make decisions (rather than initiate negotiations) and the undisputed context in
which the Proposal arose, we reject the District's contention that they have succeeded in
"[I]t is axiomatic that a refusal to bargain is not an unfair practice if the refusing party
had no duty to bargain." (Metropolitan Water District of Southern California (2009) PERB
Decision No. 2055-M.)
8

reject it as an effort to recast its failure to invoke the Reopener Clause by April 1 as a factual
dispute or contrary legal theory as urged by the dissent. We conclude that the absence of any
factual support for the District's "relates back" argument alone is fatal to its case. At best, the
District's Proposal may be construed as an offer for a mutual agreement to reopen the CBA
under the first exception to the Zipper Clause. To invoke this exception, however, would have
required an acceptance of the offer by the Association.
We agree with the dissent that at this stage of the proceedings it is not the function of
the Board to determine whether the District's factual allegations are credible. We accept as
true for purposes of determining the sufficiency of the charge the District's factual allegations.
The District's central contentions --- the Proposal "had the effect ofreopening the CBA" and
Hasson's April 20, 2011, letter "relates back" to the Proposal --- are not factual. They are
conclusory characterizations of the facts girded to no viable theory of law, and we are not
bound by any precedential authority to accept them as true.
Moreover, to accept them as true would require us to ignore undisputed facts and
documentary evidence filed in connection with the charge, i.e., that during the time the
February 23, 2011, Proposal was developed the parties were meeting to discuss the District's
fiscal crisis for informational purposes only and not as part of a negotiation process; that the
parties were operating under a ground rule that specifically characterized the meetings in that
way; that neither the Proposal nor the Certificated Staffing Formula was sunshined for the
purpose of initiating negotiations; that the District knew how to invoke the Reopener Clause as
evidenced by Hasson' s April 20, 2011, letter; that the Association knew how to refuse a
negotiation demand as evidenced by Somberg' s April 26, 2011, letter; that neither Hasson' s
11

ORDER
14
The unfair practice charge in Case No. LA-CO-1491-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Member Huguenin joined in this Decision.
Member Dowdin Calvillo' s dissent begins on page 15.

DOWDIN CALVILLO, Member, dissenting: I respectfully dissent. For the reasons set
forth herein, I find that the charge alleges sufficient facts to state a prima facie case and would
remand this matter to the Office of the General Counsel for issuance of a complaint.
DISCUSSION
The only issue before us is whether the charge alleges sufficient facts to state a prima
facie case of refusal to bargain. Public Employment Relations Board (PERB or Board)
Regulation 32615(a)(5) requires a charging party to provide a "clear and concise statementof
the facts and conduct alleged to constitute an unfair practice." In determining whetheran
unfair practice charge alleges a prima facie case, the Board applies the following standard:
To determine whether a charge alleges a prima facie case, the
Board must assume that the essential facts alleged in the charge
are true. (San Juan Unified School District (1977) EERB
Decision No. 12. 1) It is not the function of the Board agent to
judge the merits of the charging party's dispute. (Saddle back
Community College District (1984) PERB Decision No. 433;
Lake Tahoe Unified School District (1993) PERB Decision
No. 994.) Disputed facts or conflicting theories of law should be
resolved in other proceedings after a complaint has been issued.
(Eastside Union School District (1984) PERB Decision No. 466,
pp. 6-7.)
(Golden Plains Unified School District (2002) PERB Decision No. 1489 (Golden Plains).)
Statute of Limitations
EERA section 3541.S(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months priorto the
filing of the charge." limitations period begins to run once the charging party knows, or
should have known, of conduct underlying charge. (Gavilan Joint Community College
1 Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board or EERB.
15

the ultimate determination of whether or not the Proposal gave rise to a bargaining obligation, I
believe it inappropriate to resolve this issue at this stage of the proceedings. Therefore, I find
that the charge alleges sufficient facts to establish the timeliness of the charge for purposes of
stating a prima facie case.
Refusal to Bargain Allegations
PERB has long held that the absolute refusal to meet and confer over a matterwithin
the scope of representation is a per se violation of the duty to bargain in good faith. (Stockton
Unified School District (1980) PERB Decision No. 143; Sierra Joint Community College
District (1981) PERB Decision No. 179 (Sierra).)2 A refusal to discuss a proposal based upon
a party's belief or perception that the proposal concerns a subject outside the scope of
representation is a per se violation of the duty to bargain. (Regents of the University of
California (2010) PERB Decision No. 2094-H; Sierra.) Class size is expressly enumerated
among the matters specified as within the scope of representation under EERA. (EERA
§ 3543.2; Sonoma County Office of Education (1997) PERB Decision No. 1225.)
The duty to bargain is triggered by a valid request to bargain over a subject within the
scope of representation. (Newman-Crows Landing Unified School District (1982) PERB
Decision No. 223 (Newman-Crows Landing); State of California (Department of Veterans
Affairs) (2010) Decision No. 2110-S.) "While it is not essential that a request to
negotiate be specific or made in a particular form ... it is important for the charging party to
2 In other cases involving alleged bad faith conduct during bargaining, the Board applies
a "totality of the circumstances" test. (See, e.g., Pajaro Valley Unified School District (1978)
PERB Decision No. 51.)
17

At this stage of the proceedings, it is not the function of the Board to determine whether
the facts alleged as by the District are credible, nor to ascertain the parties' interpretation of the
February 23 Proposal. Unlike the majority, I find a factual dispute exists as to whether or not
the February 23, 2011 Proposal constituted a valid demand for bargaining. The February 23,
2011 Proposal is entitled "PROPOSAL FOR A SIDE LETTER AGREEMENT" between the
District and the Association and states that it is "respectfully submitted to the Association."
The Proposal sets forth specific bargaining proposals within the scope of representation,
including increases in class size ratios and class size maximums. The Proposal further
concludes, "The District is hopeful that the parties can reach an Agreement that will allow the
District to emerge from this crisis fiscally solvent." For purposes of establishing a prima facie
case, and accepting the allegations of the charge as true, I view this language as sufficient to
signify a desire to negotiate over the proposals contained therein, including the proposed
increase in class size ratios and class size maximum. Because the Board has no authority to
resolve the factual dispute between the parties as to whether the Proposal was intended as a
request to negotiate, I would find that the charge states a prima facie case of refusal to bargain
and remand the matter for issuance of a complaint to develop a full evidentiary record.
(Golden Plains, supra, PERB Decision No. 1489.)
The majority further accepts the Association's position that that the February 23, 2011
Proposal did not constitute a valid demand to reopen the collective bargaining agreement
(CBA) light of the zipper clause contained in XXVIII and reopener provisions of
Article XXVI. Additionally, the Association argues that the April 27, 2011 and August 5,
2011 proposals did not constitute valid demands to negotiate because they were not made
within the time frame specified in the CBA for making reopener proposals.
19

The Association's arguments are based upon the Association's contention that
Article XXVI provided a limited contractual right to reopen the contract subject to two
conditions precedent that the District failed to meet: (1) a timely demand to bargain "[njo later
than April 1 of each year of this agreement"; and (2) express notice of which two articles of the
agreement the District demanded to reopen. The District, in turn, argues that, pursuant to the
terms of the CBA, it was entitled to reopen the contract, that its February 23, 2011 Proposal
constituted a valid demand to negotiate under the provisions of the CBA, and that its April 27,
2011 Proposal "related back" its prior February 23, 2011 Proposal.
Both parties' arguments are based upon their conflicting interpretations of the CBA
between the parties, as well as their conflicting interpretations as to whether or not the
February 23 Proposal constituted a valid request to bargain. Resolution of this dispute will
require an interpretation of the agreement to determine the parties' intent surrounding both the
reopener language in Article XXVI and the zipper clause in Article XVIII and the proper
interpretation of those provisions. In addition, resolution of this dispute will require an
interpretation of the parties' intent and actions surrounding the February 23 Proposal. In
processing an unfair practice charge, the role of a Board agent is to investigate the charge to
determine if an unfair practice has been committed, but the Board's regulations do not
"empower agents to rule on the ultimate merits of a charge." (Eastside Union School District
(1984) PERB Decision No. 466 (Eastside); PERB Regs. 32620 and 32640.) Thus, the Board
has stated, "where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings, if not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (Eastside.)
20
The Association's arguments are based upon the Association's contention that
Article XXVI provided a limited contractual right to reopen the contract subject to two
conditions precedent that the District failed to meet: (1) a timely demand to bargain "[n]o later
than April 1
of
each year
of
this agreement"; and (2) express notice
of
which two articles
of
the
agreement the District demanded to reopen. The District, in turn, argues that, pursuant to the
terms
of
the CBA, it was entitled to reopen the contract, that its February 23, 2011 Proposal
constituted a valid demand to negotiate under the provisions
of
the CBA, and that its April 27,
2011 Proposal "related back" its prior February 23, 2011 Proposal.
Both parties' arguments are based upon their conflicting interpretations
of
the
CBA
between the parties, as well as their conflicting interpretations as to whether or not the
February 23 Proposal constituted a valid request to bargain. Resolution
of
this dispute will
require an interpretation
of
the agreement to determine the parties' intent surrounding both the
reopener language in Article XXVI and the zipper clause in Article XVIII and the proper
interpretation
of
those provisions. In addition, resolution
of
this dispute will require an
interpretation
of
the parties' intent and actions surrounding the February 23 Proposal. In
processing an unfair practice charge, the role
of
a Board agent is to investigate the charge to
determine an unfair practice has been committed, but the Board's regulations do not
"empower agents to rule on the ultimate merits
of
a charge." (Eastside Union School District
(1984) PERB Decision No. 466 (Eastside); Regs. 32620 and 32640.) Thus, the Board
has stated, "where the investigation results in receipt
of
conflicting allegations
of
fact or
contrary proceedings,
if
not due process, demand that a
issued and the matter be sent to formal hearing." (Eastside.)
20

Because of the significant factual and legal disputes concerning the parties' intent and
interpretation of these provisions, it is inappropriate for the Board to resolve these disputes at
this juncture. (Golden Plains, supra, PERB Decision No. 1489.) Accordingly, I would
remand this matter to the Office of the General Counsel for issuance of a complaint so that the
contract interpretation issues may be resolved following a full evidentiary hearing.
21
Because
of
the significant factual and legal disputes concerning the parties' intent and
interpretation
of
these provisions, it
is
inappropriate for the Board to resolve these disputes at
this juncture. (Golden Plains, supra, PERB Decision No. 1489.) Accordingly, I would
remand this matter to the Office
of
the General Counsel for issuance
of
a complaint so that the
contract interpretation issues may be resolved following a full evidentiary hearing.
21

LA-CO-1491-E
December 22, 2011
Page 2
Although the February 23 [Proposal] was not entitled "reopener proposal," nor
did that document bear other magic words
...
to that effect, PERB has held that
"it is not essential that a request to negotiate be specific or made in a particular
form." Newman-Crows Landing Unified School District (1982) PERB Dec. No.
223 [(Newman-Crows Landing)]. To the contrary, PERB observed:
"[A] valid request to bargain need not be made in a particular
form; or in haec verba, so long as the request clearly indicated a
desire to negotiate and bargain on behalf
of
the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions
of
employment. In other words, a valid request will be
found, regardless
of
the form or the words used,
if
it adequately
signifies a desire to negotiate on a subject within the scope
of
bargaining."
Ibid. (quoting
Al
Landers Dump Truck, Inc. (1971) 192 NLRB 207 [(Al Landers
Dump Truck)]).
Here, the subject
of
class size was clearly within scope, and not barred by the
applicable zipper clause or reopener provisions
of
the CBA. The District,
moreover, clearly ( and timely) signified its desire to negotiate on that subject,
insofar as its bargaining demand was presented on February 23, 2011. That the
District did so without specifically invoking the term "reopener" is a matter
of
form rather than substance.
The original charge also alleged that on or about April 27, 2011, the District sunshined
pursuant to Government Code section 3547, and gave the Union notice of, an "Inglewood USD
- District Initial Proposal for 2011-2012 [R]eopener [N]egotiations" (April 27 Proposal). The
First Amended Charge alleges that, "[ w ]ith respect to the topic
of
class size, the April 27
[Proposal] relates back to the February 23 [Proposal]."
Finally, the First Amended Charge alleges that "[the Union] did not communicate its refusal to
negotiate class size prior to March 28, 2011," and that, "[a]s such, the instant Charge is
timely."
Discussion
Regarding the February 23, Proposal, the Charge merely restates facts
previously alleged and otherwise consists conclusions of law and legal argument, but does
not include any new factual allegations in support the charge. Moreover, the reliance on
Newman-Crows Landing and Al Landers Dump Truck in the block-quote above is misplaced.
At issue in Newman-Crows Landing was whether a statement by a union representative "that
the subject of layoffs was negotiable and that the District had the responsibility to meet and
negotiate with [the union]" constituted a valid demand to negotiate the effects of a layoff.
LA-CO-1491-E
December 22, 2011
Page 2
Although the February 23 [Proposal] was not entitled "reopener proposal," nor
did that document bear other magic words . . . to that effect, PERB has held that
"it is not essential that a request to negotiate be specific or made in a particular
form." Newman-Crows Landing Unified School District (1982) PERB Dec. No.
223 [(Newman-Crows Landing)]. To the contrary, PERB observed:
"[A] valid request to bargain need not be made in a particular
form, or in haec verba, so long as the request clearly indicated a
desire to negotiate and bargain on behalf of the employees in the
appropriate unit concerning wages, hours, and other terms and
conditions of employment. In other words, a valid request will be
found, regardless of the form or the words used, if it adequately
signifies a desire to negotiate on a subject within the scope of
bargaining."
Ibid. (quoting Al Landers Dump Truck, Inc. (1971) 192 NLRB 207 [(Al Landers
Dump Truck)]).
Here, the subject of class size was clearly within scope, and not barred by the
applicable zipper clause or reopener provisions of the CBA. The District,
moreover, clearly (and timely) signified its desire to negotiate on that subject,
insofar as its bargaining demand was presented on February 23, 2011. That the
District did so without specifically invoking the term "reopener" is a matter of
form rather than substance.
The original charge also alleged that on or about April 27, 2011, the District sunshined
pursuant to Government Code section 3547, and gave the Union notice of, an "Inglewood USD
- District Initial Proposal for 2011-2012 [Rjeopener [Njegotiations" (April 27 Proposal). The
First Amended Charge alleges that, "[ with respect to the topic of class size, the April 27
[Proposal] relates back to the February 23 [Proposal]."
Finally, the First Amended Charge alleges that "[the Union] did not communicate its refusal to
negotiate class size prior to March 28, 201 1," and that, "[als such, the instant Charge is
timely."
Discussion
Regarding the February 23, Proposal, the First Amended Charge merely restates facts
previously alleged and otherwise consists of conclusions of law and legal argument, but does
not include any new factual allegations in support the charge. Moreover, the reliance on
Newman-Crows Landing and Al Landers Dump Truck in the block-quote above is misplaced.
At issue in Newman-Crows Landing was whether a statement by a union representative "that
the subject of layoffs was negotiable and that the District had the responsibility to meet and
negotiate with [ the union]" constituted a valid demand to negotiate the effects of a layoff.

LA-CO-1491-E
December 22, 2011
Page 3
(Newman-Crows Landing Unified School District, supra, PERB Decision No. 223, emphasis
supplied.) PERB concluded that it did not. (Ibid.) Just as the statement at issue in
Newman-
Crows Landing did not constitute a valid demand to negotiate the effects
of
the layoff, so in the
present case, the February
23
Proposal also does not constitute a valid demand to negotiate
pursuant to the parties' reopener clause based on the following circumstances: The February
23
Proposal (
1)
was labeled "Proposal for a Side Letter Agreement"; (2) did not correlate any
of
the proposals in it to any
of
the Articles
of
the collective bargaining agreement (CBA); (3)
did not purport to reopen any
of
the Articles
of
the CBA or invoke the reopener provision
of
Article XXVI
of
the CBA; and (4) not only contained proposals relating to articles that could
be reopened pursuant to the reopener clause, but also contained proposals relating to articles
that could not be reopened pursuant to the reopener clause.
At issue in the case
of Al
Landers Dump Truck, was whether a union's request, shortly after its
certification as the exclusive bargaining representative, "to set a date 'to continue in good faith
our Collective Bargaining Agreement Negotiation as stipulated by the National Labor
Relations
Act"'
constituted a valid demand to bargain. (Al Landers Dump Truck, supra, 192
NLRB 207.) The National Labor Relations Board found that this "was a sufficiently clear and
proper request." (Ibid.) Not only is the February
23
Proposal not nearly as clear a request to
bargain as the request at issue in
Al
Landers Dump Truck,
but-unlike
the employer in
Al
Landers Dump
Truck-the
Union here was also under no obligation to honor this request
unless it was a proper request pursuant to the reopener clause contained in the parties' CBA.
The only reasonable interpretation
of
the reopener clause places the burden on the District to
inform the Union that it desires to reopen two articles pursuant to that reopener clause and to
identify which two articles it desires to so reopen. Any other interpretation
of
the reopener
clause would unreasonably shift the burden onto the Union to guess at the District's intent.
This in turn would undermine the "zipper" clause in the parties' CBA, the purpose
of
which is
to relieve the parties
of
the obligation to meet and confer for the life
of
that CBA, with the
narrow exception
of
reopener negotiations pursuant to the reopener clause in that CBA.
Charging Party does not explain the intent behind the statement in the First Amended Charge
that "[w]ith respect to the topic
of
class size, the April 27 [Proposal] relates back to the
February 23 [Proposal]." Insofar as the intent is to show that the April 27 Proposal thereby
became a timely proposal pursuant to the reopener clause in the parties' CBA, this appears to
be a novel theory that has not been discussed, let alone approved, in any prior Board decision.
"The 'relation back' doctrine allows for exception to the limitations period
if
the amended
eharge is sufficiently connected to the original charge." (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959
.)
That is not the issue here.2 Moreover,
2 The phrase ''relates back" is also used in Board decisions to describe circumstances in
which conduct that allegedly occurred within the six months limitations period "relates back"
to conduct that occurred outside that period, making the former allegation untimely. (See, e.g.,
.State
of
California (Department
of
Corrections) (2003) PERB Decision No. 1559-S, stating
that "[aJ violation is not timely where the State's conduct during the iimitations period relates
back to the original offense" outside that period.) That is also not the issue here.
LA-CO-1491-E
December 22, 2011
Page 3
(Newman-Crows Landing Unified School District, supra, PERB Decision No. 223, emphasis
supplied.) PERB concluded that it did not. (Ibid.) Just as the statement at issue in Newman-
Crows Landing did not constitute a valid demand to negotiate the effects of the layoff, so in the
present case, the February 23 Proposal also does not constitute a valid demand to negotiate
pursuant to the parties' reopener clause based on the following circumstances: The February
23 Proposal (1) was labeled "Proposal for a Side Letter Agreement"; (2) did not correlate any
of the proposals in it to any of the Articles of the collective bargaining agreement (CBA); (3)
did not purport to reopen any of the Articles of the CBA or invoke the reopener provision of
Article XXVI of the CBA; and (4) not only contained proposals relating to articles that could
be reopened pursuant to the reopener clause, but also contained proposals relating to articles
that could not be reopened pursuant to the reopener clause.
At issue in the case of Al Landers Dump Truck, was whether a union's request, shortly after its
certification as the exclusive bargaining representative, "to set a date "to continue in good faith
our Collective Bargaining Agreement Negotiation as stipulated by the National Labor
Relations Act'" constituted a valid demand to bargain. (Al Landers Dump Truck, supra, 192
NLRB 207.) The National Labor Relations Board found that this "was a sufficiently clear and
proper request." (Ibid.) Not only is the February 23 Proposal not nearly as clear a request to
bargain as the request at issue in Al Landers Dump Truck, but-unlike the employer in Al
Landers Dump Truck-the Union here was also under no obligation to honor this request
unless it was a proper request pursuant to the reopener clause contained in the parties' CBA.
The only reasonable interpretation of the reopener clause places the burden on the District to
inform the Union that it desires to reopen two articles pursuant to that reopener clause and to
identify which two articles it desires to so reopen. Any other interpretation of the reopener
clause would unreasonably shift the burden onto the Union to guess at the District's intent.
This in turn would undermine the "zipper" clause in the parties' CBA, the purpose of which is
to relieve the parties of the obligation to meet and confer for the life of that CBA, with the
narrow exception of reopener negotiations pursuant to the reopener clause in that CBA.
Charging Party does not explain the intent behind the statement in the First Amended Charge
that "[ with respect to the topic of class size, the April 27 [Proposal] relates back to the
February 23 [Proposal]." Insofar as the intent is to show that the April 27 Proposal thereby
became a timely proposal pursuant to the reopener clause in the parties' CBA, this appears to
be a novel theory that has not been discussed, let alone approved, in any prior Board decision.
"The relation back' doctrine allows for exception to the limitations period if the amended
charge is sufficiently connected to the original charge." (Sacramento City Teachers
Association (Franz) (2008) PERB Decision No. 1959.) That is not the issue here. Moreover,
The phrase "relates back" is also used in Board decisions to describe circumstances in
which conduct that allegedly occurred within the six months limitations period "relates back"
to conduct that occurred outside that period, making the former allegation untimely. (See, e.g.,
State of California (Department of Corrections) (2003) PERB Decision No. 1559-S, stating
that "[a] violation is not timely where the State's conduct during the limitations period relates
back to the original offense" outside that period.) That is also not the issue here.

LA-CO-1491-E
November
10, 2011
Page 2
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life
of
this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
Among the other provisions
of
the
CBA
is Article XI, Class Size.
2.
The Tentative Agreement
The
District and the Union are also parties to a Tentative Agreement (TA) that revises
certain
provisions
of
the CBA and otherwise keeps it
"in
full force and effect unless modified in
accordance with the other provisions contained herein through June 30, 2013." The
TA revises
Article XXVI, Negotiations Procedures, to read in relevant part as follows:
No later than April 1
of
each year
of
this agreement the parties agree to reopen
two (2) articles per party, exclusive
of
Article 12 and Article 13.
The TA also revises portions
of
Articles XI, Class Size, and XII, Compensation.
It
does
not
revise Articles XIII, Fringe Benefits, or XVIII, Zipper.
B. The District's Bargaining Proposals
1.
February 23, 2011
On or about February 23, 2011, the District provided the Union with a "Proposal for a Side
Letter Agreement" (February 23 Proposal). The February 23 Proposal states that "[t]he
District has an interest in remaining fiscally solvent" .and lists, over three pages,
"reductions"
that "have been approved."
It
then states that "[a]lthough these reductions are significant, a
large gap exists between the approved reductions and the deficit." It further states that " [a] s a
result, on February 23, 2011, the District will submit a resolution for reduction or elimination
of
particular kinds
of
services, which includes a total
of
338 full time equivalents, for the
Governing Board's approval." It finally states that "[t]he following proposal is respectfully
submitted to the Association as an option to reduce the number
of
full time equivalents that
must be reduced in order to meet the requirements for fiscal recovery." This statement is
followed by a list
of
seven (7) proposals to or for "Reinstate five furlough days for 2010-11,"
"Eliminate Standard Income Protection Plan," "Three Tier Cap on Health and Welfare,"
"10%
Salary Rollback," "Freeze on Step in Column," "Increase class ratios size
maximums," and "Additional Cuts"
of
several bargaining unit positions. Specifically, the
February 23 Proposal proposes to increase the student-teacher ratio for grades K-3 from 30: 1
to 32:1, for grades 4-6 from 30:1 to 34:1, and for grades 7-12 from 26:5 to 34:1.
The February 23 Proposal does not correlate any
of
these proposals to any of the Articles
of
the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopen er
provision of Article XXVI of the CBA.
LA-CO-1491-E
November 10, 201 1
Page 2
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life of this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
Among the other provisions of the CBA is Article XI, Class Size.
2. The Tentative Agreement
The District and the Union are also parties to a Tentative Agreement (TA) that revises certain
provisions of the CBA and otherwise keeps it "in full force and effect unless modified in
accordance with the other provisions contained herein through June 30, 2013." The TA revises
Article XXVI, Negotiations Procedures, to read in relevant part as follows:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 and Article 13.
The TA also revises portions of Articles XI, Class Size, and XII, Compensation. It does not
revise Articles XIII, Fringe Benefits, or XVIII, Zipper.
B. The District's Bargaining Proposals
1 . February 23, 2011
On or about February 23, 2011, the District provided the Union with a "Proposal for a Side
Letter Agreement" (February 23 Proposal). The February 23 Proposal states that "[the
District has an interest in remaining fiscally solvent" and lists, over three pages, "reductions"
that "have been approved." It then states that "[allthough these reductions are significant, a
large gap exists between the approved reductions and the deficit." It further states that "[als a
result, on February 23, 2011, the District will submit a resolution for reduction or elimination
of particular kinds of services, which includes a total of 338 full time equivalents, for the
Governing Board's approval." It finally states that "[the following proposal is respectfully
submitted to the Association as an option to reduce the number of full time equivalents that
must be reduced in order to meet the requirements for fiscal recovery." This statement is
followed by a list of seven (7) proposals to or for "Reinstate five furlough days for 2010-1 1,"
"Eliminate Standard Income Protection Plan," "Three Tier Cap on Health and Welfare," "10%
Salary Rollback," "Freeze on Step in Column," "Increase in class Salary Rollback," "Freeze o
maximums," and "Additional Cuts" of several bargaining unit positions. Specifically, the
February 23 Proposal proposes to increase the student-teacher ratio for grades K-3 from 30:1
to 32:1, for grades 4-6 from 30:1 to 34:1, and for grades 7-12 from 26:5 to 34:1.
The February 23 Proposal does not correlate any of these proposals to any of the Articles of the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopener
provision of Article XXVI of the CBA.

LA-CO-1491-E
November 10, 2011
Page 3
The charge alleges that the Union "has failed and refused to bargain these proposals."
2.
February 28, 2011
On or about February 28, 2011, the District's Governing Board adopted a "Certificated
Staffing Formula" (February 28 Proposal) for bargaining unit and non-bargaining unit
positions. According to the charge, "[t]his strategy was discussed with
[the
Union]
...
on
or
about February
16
and March 3, 2011, and [Union] President Peter Somberg was also
present
and addressed this item at the February 28, 2011 meeting
of
the District's Governing
Board."
The February 28 Proposal proposes to increase the student-teacher ratio for grades K-3
from
the "Contractual [Staffing Ratio]"
of
3
0:
1 to a "Recommended Staffing Ratio"
of
3 2:
1,
for
grades 4-6 from 30:1 to 34:1, for grades 7-8 from 26.5:1 to 36:1, for Comprehensive HS
City
Honors grades 9-12 from 26.5: 1 to 40:
1,
and to keep the student-teacher ratio for Continuation
School grades 9-12 unchanged at 26.5:
1.
The February 28 Proposal also does not correlate this proposal to any
of
the Articles
of
the
CBA, nor does it purport to reopen any
of
the Articles
of
the CBA or invoke the reopener
provision
of
Article XXVI
of
the CBA.
The charge alleges that the Union "has failed and refused to bargain these proposals."
3. April 27, 2011
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson (Hasson)
informed Union President Peter Samberg (Somberg) that "[t]he District will be submitting its
initial proposal to a reopen er Agreement for 2011-12 to the Governing Board for public
hearing pursuant to Government Code 3547" and that "[t]he public hearing will be held on
April 27, 2011."
By letter dated April 26, 2011, Som berg informed Hasson that "the District's demand to
bargain is untimely because Article XXVI requires the parties to reopen negotiations no later
than April
l"
and "[y ]our notice dated April 20, 2011 fails to meet th[is] contractual condition
to require [the Union] to engage in bargaining." Somberg further informed lfasson that
the
Union "declines to engage in negotiations pursuant to your request" (emphasis in original).
On or about April 2011, the District sunshined pursuant to Government Code 3 54 7, and
gave the Union notice of, an "Inglewood USD - District Initial Proposal for 2011-2012
[R]eopener [N]egotiations" and also labeled "Proposals for a Reopener
Proposal). The April Proposal states in relevant part:
[T]he District proposes that the following contract articles be bargained for the
2011-12 year:
Article VIII - Workdays & Hours of Employment
LA-CO-1491-E
November 10, 201 1
Page 3
The charge alleges that the Union "has failed and refused to bargain these proposals."
2. February 28. 2011
On or about February 28, 2011, the District's Governing Board adopted a "Certificated
Staffing Formula" (February 28 Proposal) for bargaining unit and non-bargaining unit
positions. According to the charge, "[t]his strategy was discussed with [the Union] . . . on or
about February 16 and March 3, 2011, and [Union] President Peter Somberg was also present
and addressed this item at the February 28, 201 1 meeting of the District's Governing Board."
The February 28 Proposal proposes to increase the student-teacher ratio for grades K-3 from
the "Contractual [Staffing Ratio]" of 30:1 to a "Recommended Staffing Ratio" of 32:1, for
grades 4-6 from 30:1 to 34:1, for grades 7-8 from 26.5:1 to 36:1, for Comprehensive HS City
Honors grades 9-12 from 26.5:1 to 40:1, and to keep the student-teacher ratio for Continuation
School grades 9-12 unchanged at 26.5:1.
The February 28 Proposal also does not correlate this proposal to any of the Articles of the
CBA, nor does it purport to reopen any of the Articles of the CBA or invoke the reopener
provision of Article XXVI of the CBA.
The charge alleges that the Union "has failed and refused to bargain these proposals."
3. April 27, 2011
By letter dated April 20, 2011, District Assistant Superintendent Monalisa Hasson (Hasson)
informed Union President Peter Somberg (Somberg) that "[the District will be submitting its
initial proposal to a reopener Agreement for 2011-12 to the Governing Board for public
hearing pursuant to Government Code 3547" and that "[the public hearing will be held on
April 27, 2011."
By letter dated April 26, 2011, Somberg informed Hasson that "the District's demand to
bargain is untimely because Article XXVI requires the parties to reopen negotiations no later
than April 1" and "[your notice dated April 20, 2011 fails to meet this] contractual condition
to require [ the Union] to engage in bargaining." Somberg further informed Hasson that the
Union "declines to engage in negotiations pursuant to your request" (emphasis in original).
On or about April 27, 2011, the District sunshined pursuant to Government Code 3547, and
gave the Union notice of, an "Inglewood USD - District Initial Proposal for 2011-2012
[[Rjeopener [Njegotiations" and also labeled "Proposals for a Reopener Agreement" (April Rje
Proposal). The April 27 Proposal states in relevant part:
[Th [The District proposes that the following contract articles be bargained for t
2011-12 year:
Article VIII - Workdays & Hours of Employment

LA-CO-1491-E
November 10, 2011
Page 4
Article XI - Class Size
Article XII - Compensation
Article XIII - Fringe Benefits
(Emphasis in Original.) The April 27 Proposal does not invoke the reopener provision
of
Article XXXVI
of
the CBA.
The charge alleges that the Union "has failed and refused to bargain this proposal."
4.
August 5, 2011
By letter dated August
5,
2011, District Counsel Joshua
E.
Morrison (Morrison) informed
CT
A
Regional Uni Serve Director Jeff Good (Good) that "the District demands immediate
bargaining on the collective bargaining proposals recently sunshined by the District."
Attached to this letter was an "Amended Initial Proposal for 2011-2012 Reopener
Negotiations," dated July 27, 2011 and also labeled "Proposals for Reopeners" (August 5
Proposal), which states in relevant part:
On April 27, 2011, the District presented a proposal for 2011-2012 re-opener
negotiations to the public. The District hereby amends the proposal presented
on April 27, 2011 to delete references to Article VIII, Article XII and Article
XIII and to identify in their place Article XXVI, specifically paragraph A which
applies to re-opener negotiations. This proposal is authorized by Article XXVI
paragraph A
....
Accordingly, re-opener negotiations pursuant to Article XXVI, paragraph A
will now address the following contract articles during the 2011-12 year:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 2011-12 and 201
13
school years at any time.
(Emphasis in original.)
The letter to which the August 5 Proposal was attached stated that "there is no language, let
alone clear and unmistakable language, barring the parties from reopening the terms
of Article
XXVI itself' and that "[s]irnilarly, there is no clear and unmistakable language barring the
parties from reopening negotiations in July, 2011 with respect to the 2011-12 school year."
LA-CO-1491-E
November 10, 201 1
Page 4
Article XI - Class Size
Article XII - Compensation
Article XIII - Fringe Benefits
(Emphasis in Original.) The April 27 Proposal does not invoke the reopener provision of
Article XXXVI of the CBA.
The charge alleges that the Union "has failed and refused to bargain this proposal."
4. August 5. 2011
By letter dated August 5, 2011, District Counsel Joshua E. Morrison (Morrison) informed CTA
Regional UniServe Director Jeff Good (Good) that "the District demands immediate
bargaining on the collective bargaining proposals recently sunshined by the District."
Attached to this letter was an "Amended Initial Proposal for 2011-2012 Reopener
Negotiations," dated July 27, 201 1 and also labeled "Proposals for Reopeners" (August 5
Proposal), which states in relevant part:
On April 27, 2011, the District presented a proposal for 2011-2012 re-opener
negotiations to the public. The District hereby amends the proposal presented
on April 27, 2011 to delete references to Article VIII, Article XII and Article
XIII and to identify in their place Article XXVI, specifically paragraph A which
applies to re-opener negotiations. This proposal is authorized by Article XXVI
paragraph A . . . .
Accordingly, re-opener negotiations pursuant to Article XXVI, paragraph A
will now address the following contract articles during the 201 1-12 year:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
Article XXVI - NEGOTIATIONS PROCEDURES
Amend Article XXVI to allow either party to present unlimited reopener
proposals for the 201 1-12 and 2012-13 school years at any time.
(Emphasis in original.)
The letter to which the August 5 Proposal was attached stated that "there is no language, let
alone clear and unmistakable language, barring the parties from reopening the terms of Article
XXVI itself" and that "[similarly, there is no clear and unmistakable language barring the
parties from reopening negotiations in July, 2011 with respect to the 201 1-12 school year."

LA-CO-1491-E
November 10, 2011
Page 5
The charge alleges that the Union "has failed and refused to bargain this proposal."
C. Impasse Proceedings
By letter dated August 18, 2011, Good informed Morrison that "[Union] tolerance
of
the
District's repeated demands to reopen the Agreement has reached an end" and that "[t]he
parties are now at impasse over the District's proposal to reopen the Agreement."
On August 3
0,
2011, the District filed a Request for Impasse Determination/Appointment
of
Mediator (PERB Case No. LA-IM-3664-E). By letter dated September 7, 2011, the District
withdrew said request without prejudice.
II. Discussion
A. The District's Burden to Allege a Prima Facie Case
PERB Regulation 32615(a)(5)2 requires, inter alia, that an unfair practice charge include a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair
practice."
The charging party's burden includes alleging the "who, what, when, where and how"
of
an
unfair practice. (State
of
California (Department
of
Food and
Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Untfied School District (1991) PERB Decision No. 873.)
B. The District's Allegations Regarding the February 23 and 28 Proposals Are
Untimely
EERA section 3 541.S(a)(
l)
prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of
the charge." The limitations period begins to run once the charging party knows, or should
have known,
of
the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden
of
demonstrating that the
charge is timely filed. (Tehachapi Un{fied School District (1993) PERB Decision No. 1024;
State
of
California (Department
of
Insurance) (1997) PERB Decision No. 1197-S.)
In Saddleback Valley Un(fied School District (1985) PERB Decision No. 558, the Board held
that "the six month period is to be computed by excluding the day the alleged misconduct took
place and including the last day." In Saddleback the school employer adopted a proposal on
June 20, 1984. The Board thus calculated that "the six-month period started on June 21, 1984,
the day after the school board adopted the proposal, and ended at the close of business on
2 PERB Regulations are codified at Code of Regulations, title VIII, section 3100 l et
seq. The text of the PERB Regulations may be found at www.perb.ca.gov.
LA-CO-1491-E
November 10, 2011
Page 5
The charge alleges that the Union "has failed and refused to bargain this proposal."
C C Impasse Proceedings
By letter dated August 18, 2011, Good informed Morrison that "[Union] tolerance of the
District's repeated demands to reopen the Agreement has reached an end" and that "[the
parties are now at impasse over the District's proposal to reopen the Agreement."
On August 30, 2011, the District filed a Request for Impasse Determination/Appointment of
Mediator (PERB Case No. LA-IM-3664-E). By letter dated September 7, 2011, the District
withdrew said request without prejudice.
II. Discussion
A. The District's Burden to Allege a Prima Facie Case
PERB Regulation 32615(a)(5)" requires, inter alia, that an unfair practice charge include a
"clear and concise statement of the facts and conduct alleged to constitute an unfair practice."
The charging party's burden includes alleging the "who, what, when, where and how" of an
unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB
Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision
No. 944.) Mere legal conclusions are not sufficient to state a prima facie case. (Ibid.; Charter
Oak Unified School District (1991) PERB Decision No. 873.)
B. The District's Allegations Regarding the February 23 and 28 Proposals Are
Untimely
EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to "any
charge based upon an alleged unfair practice occurring more than six months prior to the filing
of the charge." The limitations period begins to run once the charging party knows, or should
have known, of the conduct underlying the charge. (Gavilan Joint Community College District
(1996) PERB Decision No. 1177.) A charging party bears the burden of demonstrating that the
charge is timely filed. (Tehachapi Unified School District (1993) PERB Decision No. 1024;
State of California (Department of Insurance) (1997) PERB Decision No. 1197-S.)
In Saddleback Valley Unified School District (1985) PERB Decision No. 558, the Board held
that "the six month period is to be computed by excluding the day the alleged misconduct took
place and including the last day." In Saddleback the school employer adopted a proposal on
June 20, 1984. The Board thus calculated that "the six-month period started on June 21, 1984,
the day after the school board adopted the proposal, and ended at the close of business on
=PERB Regulations are codified at Code of Regulations, title VIII, section 31001 et
seq. The text of the PERB Regulations may be found at www.perb.ca.gov.

LA-CO-1491-E
November 10, 2011
Page 6
December 20, 1984." (Ibid; see also California State University, Fullerton ( 1986)
PERB
Decision No. 605-H.)
Here, the charge was filed on September 28, 2011. Applying the principles above, PERB is
prohibited from issuing a complaint with respect to any unfair practice alleged in the charge
that occurred before March 28, 2011. The charge alleges that the District provided the Union
with the February
23
proposal on February 23, 2011.
It
further alleges that it discussed
the
"strategy" in the February 28 proposal with the Union on February
16
and March 3, 2011 and
that Stromberg "was also present and addressed this item at the February 28, 2011 meeting
of
the District's Governing Board." The charge finally alleges that "[the Union] has failed
and
refused to bargain these proposals." This conclusory allegation, unsupported by any dates on
which the Union
is
alleged to have so failed and refused, cannot carry the burden
of
demonstrating that the charge is timely filed with respect to the February
23
and 28 Proposals,
i.e., that the Union first failed and refused to bargain about these proposals on or after March
28, 2011.
C. The District's Allegations Regarding the April 27 and August 5 Proposals Fail
to State a Prima Facie Case
of
Failure or Refusal to Bargain
A union's absolute refusal to bargain with the employer about a mandatory subject
of
bargaining is a per se violation
of
the union's duty
to
meet and confer in good faith with the
employer. (Gonzales Union High School District (1985) PERB Decision No. 480.) The
union's duty to bargain is triggered by the employer's valid demand to bargain. (State
of
California (Department
of
Veterans Affairs) (2010) PERB Decision No. 2110-S.) A "zipper"
clause in the parties' collective bargaining agreement can waive the right to bargain
if
the
waiver is "expressed in clear and unmistakable terms." (Rowland Unified School District
(1994) PERB Decision No. 1053.) In the present case, the charge fails to allege that the
District made a valid demand to bargain in light
of
the zipper clause in the parties' CBA and
the reopener clause in their TA.
As stated above, Article XVIII, Zipper, ·of the parties' CBA provides in full:
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life
of
this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
With this zipper clause, the parties waived "in clear and unmistakable terms" their right to
bargain about "all negotiable items." Article XXVI, as revised in the parties' TA, is a reopener
clause that establishes a narrow exception to this waiver:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 [Compensation] and Article
13 [Fringe Benefits].
LA-CO-1491-E
November 10, 2011
Page 6
December 20, 1984." (Ibid.; see also California State University, Fullerton (1986) PERB
Decision No. 605-H.)
Here, the charge was filed on September 28, 2011. Applying the principles above, PERB is
prohibited from issuing a complaint with respect to any unfair practice alleged in the charge
that occurred before March 28, 2011. The charge alleges that the District provided the Union
with the February 23 proposal on February 23, 2011. It further alleges that it discussed the
"strategy" in the February 28 proposal with the Union on February 16 and March 3, 201 1 and
that Stromberg "was also present and addressed this item at the February 28, 2011 meeting of
the District's Governing Board." The charge finally alleges that "[the Union] has failed and
refused to bargain these proposals." This conclusivetion, unsupported by any dates on
which the Union is alleged to have so failed and refused, cannot carry the burden of
demonstrating that the charge is timely filed with respect to the February 23 and 28 Proposals,
i.ii.e., that the Union first failed and refused to bargain about these proposals on or after Mar
28, 2011.
C. The District's Allegations Regarding the April 27 and August 5 Proposals Fail
to State a Prima Facie Case of Failure or Refusal to Bargain
A union's absolute refusal to bargain with the employer about a mandatory subject of
bargaining is a per se violation of the union's duty to meet and confer in good faith with the
employer. (Gonzales Union High School District (1985) PERB Decision No. 480.) The
union's duty to bargain is triggered by the employer's valid demand to bargain. (State of
California (Department of Veterans Affairs) (2010) PERB Decision No. 21 10-S.) A "zipper"
clause in the parties' collective bargaining agreement can waive the right to bargain if the
waiver is "expressed in clear and unmistakable terms." (Rowland Unified School District
(1994) PERB Decision No. 1053.) In the present case, the charge fails to allege that the
District made a valid demand to bargain in light of the zipper clause in the parties' CBA and
the reopener clause in their TA.
As stated above, Article XVIII, Zipper, of the parties' CBA provides in full:
The parties agree that all negotiable items have been discussed during
negotiations leading to this Agreement, including salaries and benefits, leaves
and transfers and therefore further agree that negotiations will not be reopened
on any item during the life of this Agreement except by mutual agreement or as
otherwise provided elsewhere in this Agreement.
With this zipper clause, the parties waived "in clear and unmistakable terms" their right to
bargain about "all negotiable items." Article XXVI, as revised in the parties' TA, is a reopener
clause that establishes a narrow exception to this waiver:
No later than April 1 of each year of this agreement the parties agree to reopen
two (2) articles per party, exclusive of Article 12 [Compensation] and Article
13 [Fringe Benefits].

LA-C0-1491-E
November 10, 2011
Page 8
charge thus fails to allege that the District ever made a demand.to bargain about the February
28 Proposal, be it pursuant to the reopener clause or otherwise. Therefore, the February 28
Proposal did not trigger the Union's duty to meet and confer and the Union did not violate that
duty when it refused to
do
so.
The April 27 Proposal, labeled "Inglewood USD - District Initial Proposal for
2011-2012
[R]eopener [N]egotiations" and also labeled "Proposals for a Reopener Agreement," arguably
constituted a demand to bargain pursuant to the reopener clause. This is
so
because it
purported to reopen specific articles
ofthe
CBA and because it mentions "[R]eopener
[N]egotitions" and a "Reopener Agreement," despite the fact that it attempted to reopen
not
only articles that could be reopened pursuant to the reopener
clause-specifically,
Articles VIII
and
XI-but
also articles that could not be reopened pursuant to that
clause-specifically,
Articles XII and XIII. The Union could have remedied the latter deficiency by refusing to
bargain about Articles XII and XIII, leaving two bargainable articles.
Nevertheless, the April 27 Proposal did not constitute a valid demand to bargain pursuant to
the reopener clause because it was not made "[n]o later than April 1," as the reopener clause
clearly and unambiguously requires. The District claims, in the letter from Morrison to Good
dated August 5, 2011, that "there is no clear .and unmistakable language barring the parties
from reopening negotiations in July 2011 with respect to the 2011-12 school year" ( emphasis
supplied). The District further claims, in the same letter, that the reopener clause language
allowing the parties to reopen two articles per party " [n
Jo
later than April 1
of
each year
of
this
agreement" means that "either party may reopening [sic] bargaining in each
of
the three years
of
the agreement, so long as it does so on or before April I." Even under
this-i.e.,
the
District's
own-interpretation,
the District could not reopen bargaining in the 20 l 0-11 year
of
the agreement by doing so after April
1,
2011. The charge thus fails to allege that the District
ever made a valid demand to bargain about the April 27 Proposal pursuant to the reopener
clause. Therefore, the April 27 Proposal did not trigger the Union's duty to meet and confer
and the Union did not violate that duty when it refused to do so.
The August 5 Proposal, labeled "Amended Initial Proposal for 2011-2012 Reopener
Negotiations" and also labeled "Proposal for Reopeners," constituted a demand to bargain
pursuant to tbe reopener clause. This is so because it purported to reopen specific articles
of
the CBA, because it mentions "[R]eopener [N]egotitions" and "Reopeners," and because it
invokes the reopener clause, despite the fact that it purported to reopen not only one article that
could be reopened pursuant to the reopener clause-specifically, Article
XI-but
also one
article that, as discussed below, could not be reopened pursuant to that clause-specifically,
Article XXVI. The Union could again have remedied the latter deficiency
by
refusing to
bargain about Article XXVI.
The August 5 Proposal regarding Article XI read as follows:
Article XI CLASS SIZE (THIS ARTICLE \VAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)
LA-CO-1491-E
November 10, 2011
Page 8
charge thus fails to allege that the District ever made a demand to bargain about the February
28 Proposal, be it pursuant to the reopener clause or otherwise. Therefore, the February 28
Proposal did not trigger the Union's duty to meet and confer and the Union did not violate that
duty when it refused to do so.
The April 27 Proposal, labeled "Inglewood USD - District Initial Proposal for 2011-2012
[Rjeopener [Njegotiations" and also labeled "Proposals for a Reopener Agreement," arguably
constituted a demand to bargain pursuant to the reopener clause. This is so because it
purported to reopen specific articles of the CBA and because it mentions "[RJeopener
[Njegotitions" and a "Reopener Agreement," despite the fact that it attempted to reopen not
only articles that could be reopened pursuant to the reopener clause-specifically, Articles VIII
and XI-but also articles that could not be reopened pursuant to that clause-specifically,
Articles XII and XIII. The Union could have remedied the latter deficiency by refusing to
bargain about Articles XII and XIII, leaving two bargainable articles.
Nevertheless, the April 27 Proposal did not constitute a valid demand to bargain pursuant to
the reopener clause because it was not made "[njo later than April 1," as the reopener clause
clearly and unambiguously requires. The District claims, in the letter from Morrison to Good
dated August 5, 2011, that "there is no clear and unmistakable language barring the parties
from reopening negotiations in July 2011 with respect to the 2011-12 school year" (emphasis
supplied). The District further claims, in the same letter, that the reopener clause language
allowing the parties to reopen two articles per party "[njo later than April 1 of each year of this
agreement" means that "either party may reopening [sic] bargaining in each of the three years
of the agreement, so long as it does so on or before April 1." Even under this i.e., the
District's own-interpretation, the District could not reopen bargaining in the 2010-1 1 year of
the agreement by doing so after April 1, 2011. The charge thus fails to allege that the District
ever made a valid demand to bargain about the April 27 Proposal pursuant to the reopener
clause. Therefore, the April 27 Proposal did not trigger the Union's duty to meet and confer
and the Union did not violate that duty when it refused to do so.
The August 5 Proposal, labeled "Amended Initial Proposal for 2011-2012 Reopener
Negotiations" and also labeled "Proposal for Reopeners," constituted a demand to bargain
pursuant to the reopener clause. This is so because it purported to reopen specific articles of
the CBA, because it mentions "[Rjeopener [Njegotitions" and "Reopeners," and because it
invokes the reopener clause, despite the fact that it purported to reopen not only one article that
could be reopened pursuant to the reopener clause-specifically, Article XI-but also one
article that, as discussed below, could not be reopened pursuant to that clause-specifically,
Article XXVI. The Union could again have remedied the latter deficiency by refusing to
bargain about Article XXVI.
The August 5 Proposal regarding Article XI read as follows:
Article XI - CLASS SIZE (THIS ARTICLE WAS PREVIOUSLY
PRESENTED TO THE PUBLIC ON APRIL 27, 2011)

LA-C0-1491-E
November 10, 2011
Page 9
(Emphasis in original.) The April 27 Proposal regarding Article XI in turn specified that the
District demanded that this article "be bargained for the 2011-12 year" (emphasis supplied).
Thus, the August 5 Proposal regarding Article XI also specified, by referring to the April
27
Proposal, that the District demanded that this article be bargained for the 2011-12 year.
The
issue
is
whether on July 27 or August 5, 2011, the District could demand, pursuant to the
reopen er clause, that Article XI be bargained for the 2011-12 year.
As stated above, the District argues, in the letter from Morrison to Good dated August 5, 201
1,
that "there
is
no clear and unmistakable language barring the parties from reopening
negotiations in July 2011 with respect to the 2011-12 school year" ( emphasis supplied). The
District further argues,
in
the same Jetter, that the reopener clause language allowing the parties
to reopen two articles per party "[n]o later than April 1
of
each year
of
this agreement" means
that "either party may reopening [sic] bargaining in each
of
the three years
of
the agreement, so
long as it does so on or before April l ." Thus, according to the District, it could reopen Article
XI for the 2011-12 year
of
the agreement at any time during that year, including July
27 or
August 5, 2011, as long as it did so on or before April
1,
2012. The District concedes that,
"[a]s a practical matter, it may well be that bargaining which commenced on April
1,
201 [2]
will not be complete by the end
of
the 201
[1
]-1 [2] school year." The District counters that
"[t]here is, however, no requirement that the parties wait until April 1 to commence
bargaining" and that "[t]o the contrary, either party may commence reopener negotiations on
any date on or before April 1 during each year
of
this agreement," as the District tried to do
here.
While the District is correct that a party could commence reopener negotiations well before
April 1 and the parties could then complete these negotiations in time for any resulting
agreement to take effect for the current school year, a party could by the same token
commence reopener negotiations on April I and the parties might then not be able to complete
these negotiations in time for any resulting agreement to have an effect for the current school
year. More generally, the District offers no explanation why the parties would have chosen
April 1 as the cut-off date for commencing negotiations for the current school year, as opposed
to
an earlier cut-off date that would have given them by
necessity-rather
than by one
party's
unilateral choice
of
picking an earlier date in that year on which to reopen two
articles-more
time to complete negotiations in time for any resulting agreement to take effect in that school
year. The only reasonable interpretation
of
the reopener clause is that the parties chose April 1
as the cut-off date not for the current school year, but for the next school year. Under this
interpretation, the parties' choice
of
this cut-off date is easily explained as their reasonable
attempt to give themselves enough time to complete negotiations in time for any resulting
agreement to take effect for the next school year.
As a result, on July 27 or August 5, 2011, the District could no longer demand, pursuant to the
reopener clause, that Article XI be bargained for the 2011-12 year. With respect to Article XI,
the charge thus fails to allege that the District ever made a valid demand to bargain about the
August 5 Proposal pursuant to the reopener clause. Therefore, and again with respect to
Article XI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.
LA-CO-1491-E
November 10, 201 1
Page 9
(Emphasis in original.) The April 27 Proposal regarding Article XI in turn specified that the
District demanded that this article "be bargained for the 2011-12 year" (emphasis supplied).
Thus, the August 5 Proposal regarding Article XI also specified, by referring to the April 27
Proposal, that the District demanded that this article be bargained for the 201 1-12 year. The
issue is whether on July 27 or August 5, 2011, the District could demand, pursuant to the
reopener clause, that Article XI be bargained for the 201 1-12 year.
As stated above, the District argues, in the letter from Morrison to Good dated August 5, 201 1,
that "there is no clear and unmistakable language barring the parties from reopening
negotiations in July 2011 with respect to the 2011-12 school year" (emphasis supplied). The
District further argues, in the same letter, that the reopener clause language allowing the parties
to reopen two articles per party "[njo later than April 1 of each year of this agreement" means
that "either party may reopening [sic] bargaining in each of the three years of the agreement, so
long as it does so on or before April 1." Thus, according to the District, it could reopen Article
XI for the 2011-12 year of the agreement at any time during that year, including July 27 or
August 5, 2011, as long as it did so on or before April 1, 2012. The District concedes that,
"[a]s a practical matter, it may well be that bargaining which commenced on April 1, 201[2]
will not be complete by the end of the 201 [1]-1[2] school year." The District counters that
"[t ]here is, however, no requirement that the parties wait until April 1 to commence
bargaining" and that "[tjo the contrary, either party may commence reopener negotiations on
any date on or before April 1 during each year of this agreement," as the District tried to do
here.
While the District is correct that a party could commence reopener negotiations well before
April 1 and the parties could then complete these negotiations in time for any resulting
agreement to take effect for the current school year, a party could by the same token
commence reopener negotiations on April 1 and the parties might then not be able to complete
these negotiations in time for any resulting agreement to have an effect for the current school
year. More generally, the District offers no explanation why the parties would have chosen
April 1 as the cut-off date for commencing negotiations for the current school year, as opposed
to an earlier cut-off date that would have given them by necessity-rather than by one party's
unilateral choice of picking an earlier date in that year on which to reopen two articles-more
time to complete negotiations in time for any resulting agreement to take effect in that school
year. The only reasonable interpretation of the reopener clause is that the parties chose April 1
as the cut-off date not for the current school year, but for the next school year. Under this
interpretation, the parties' choice of this cut-off date is easily explained as their reasonable
attempt to give themselves enough time to complete negotiations in time for any resulting
agreement to take effect for the next school year.
As a result, on July 27 or August 5, 2011, the District could no longer demand, pursuant to the
reopener clause, that Article XI be bargained for the 2011-12 year. With respect to Article XI,
the charge thus fails to allege that the District ever made a valid demand to bargain about the
August 5 Proposal pursuant to the reopener clause. Therefore, and again with respect to
Article XI, the August 5 Proposal did not trigger the Union's duty to meet and confer and the
Union did not violate that duty when it refused to do so.

LA-CO-1491-E
November 10, 2011
Page 12
2011, 4 PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Bernhard Rohrbacher
Supervising Regional Attorney
BR
A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
LA-CO-1491-E
November 10, 2011
Page 12
2011, PERB will dismiss your charge. If you have any questions, please call me at the above
telephone number.
Sincerely,
Bernhard Rohrbacher
Supervising Regional Attorney
BR
" A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)

Inglewood Unified School District (PERB 2290E)

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