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Court of Appeal, First District, Division 4, California.




Civ. 49913, Civ. 50191 and Civ. 50199.

Decided: December 22, 1981

William E. Brown, Nancy B. Ozsogomonyan, Brown & Conradi, San Mateo, for San Mateo City School District and amici curiae in support thereof. Barry Winograd, San Francisco, for Public Employment Relations Board in Civ. 49913. Jeffrey Sloan, Acting Gen. Counsel, Sacramento, for Public Employment Relations Board in Civ. 50191. Fred H. Altshuler, Marsha S. Berzon, Altshuler & Berzon, San Francisco, for Public Employment Relations Board in Civ. 50199. Kirsten L. Zerger, Salinas, Raymond L. Hansen, Los Angeles, Diane Ross, Burlingame, for San Mateo Elementary Teachers Association in Civ. 49913. Peter A. Janiak, San Francisco, Madalyn J. Frazzini, Steven T. Nutter, E. Luis Saenz, Maureen C. Whelan, Siona Windsor, San Jose, for California School Employers Association in Civ. 50191 and Civ. 50199. V. T. Hitchcock, Rene Auguste Chouteau, Santa Rosa, for Healdsburg Union High School District, etc. in Civ. 50191 and Civ. 50199.

This court has issued writs of review in the three captioned proceedings, which are related in that they all present issues of law with respect to the scope of bargaining under the Educational Employment Relations Act (Gov.Code, ss 3540-3549.3).1

The act establishes a system of collective bargaining for school district employees working in grades kindergarten through fourteen. It replaces an earlier statute which governed public school employer-employee relations from 1965 until its repeal in 1975. (Stats.1965, ch. 2041, s 2, p. 4660, repealed Stats.1975, ch. 961, s 1, p. 2247.)

Under the repealed statute, a public school employer was required to “meet and confer ” on specified issues with representatives of employee organizations, after which the employer was free to decide in accordance with its own judgment. Fact-finding would follow a “persistent disagreement” but no binding contract could follow agreement. (San Juan Teachers Assn. v. San Juan Unified Sch. Dist. (1974) 44 Cal.App.3d 232, 241-242, 118 Cal.Rptr. 662; Grasko v. Los Angeles City Board of Education (1973) 31 Cal.App.3d 290, 302, 107 Cal.Rptr. 334; emphasis added.) The present statute requires the public school employer to “meet and negotiate ” with employee organizations which have been selected as exclusive representatives of appropriate units of employees. (s 3543.3.) If agreement is reached, a binding contract can be entered into. (s 3540.1, subd. (h); emphasis added.)

Either the employer or the exclusive representative may declare that an impasse has been reached between the parties in negotiations and may request that the board appoint a mediator. (s 3548.) If the mediator is unable to effect an agreement, fact-finding by a panel ensues. (s 3548.1.) The panel may recommend a settlement, but its findings and recommendation are advisory only. (s 3548.3, subd. (a).) The statute does not recognize a right on the part of educational employees to strike, and subject to any binding contract that may have been entered into, a public school employer is not prohibited from making the final decision with respect to bargainable issues. (s 3549.)

The statute gave to the Education Employment Relations Board the duty of administering the act; the board was renamed the Public Employment Relations Board in 1977, when the Legislature enacted the State Employer-Employee Relations Act which subjected state civil service employment to the board's jurisdiction. (Stats.1977, ch. 1159, s 4, p. 3751; see Gov.Code, s 3513, subd. (g).) More recently, the board has been given jurisdiction over employment in state higher education. (Gov.Code, s 3526, as amended in Stats.1978, ch. 744, s 2, p. 2310.)

Judicial review of board actions is through petition to the Court of Appeal for a writ. The board's findings of fact are conclusive if supported by substantial evidence. (s 3542, subd. (c).) (Cf. Tex-Cal Land Management, Inc. v. Agriculture Labor Relations Bd. (1979) 24 Cal.3d 335, 156 Cal.Rptr. 1, 595 P.2d 579, in which the Supreme Court construed a similar grant of jurisdiction for review and enforcement of decisions of the Agricultural Labor Relations Board (Lab.Code, s 1160.8).)

Issues subject to bargaining are “limited to matters relating to wages, hours of employment, and other terms and conditions of employment. ‘Terms and conditions of employment’ mean health and welfare benefits ..., leave, transfer and reassignment policies, safety conditions ..., class size, procedures to be used for evaluation of employees, organizational security ..., procedures for processing grievances ..., and the layoff of probationary ... employees.... All matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating....” (Gov.Code, s 3543.2.)

Three passages in the statute appear to be aimed at narrowing the scope of bargaining:

1. The first seven words introduce the definition of scope in terms of limitation;

2. The definition of “terms and conditions of employment” is narrow and specific; and

3. The closing sentence excludes from scope of negotiation “all matters not specifically enumerated.” At the same time a broadened scope is suggested by extending negotiability to matters “relating to” the items that are enumerated.

The statute does not confer upon the board power to make rules construing or varying the scope of negotiation, but a reviewing court should defer to the board's expertise to the extent of giving great weight to its construction of the statute. (J. R. Norton Co. v. Agriculture Labor Relations Bd. (1979) 26 Cal.3d 1, 29, 160 Cal.Rptr. 710, 603 P.2d 1306; Agriculture Labor Relations Bd. v. Superior Court (1976) 16 Cal.3d 392, 411, 128 Cal.Rptr. 183, 546 P.2d 687.) With a view to providing expert guidance in the construction of the scope language, the board has attempted in these cases to harmonize the limiting language and structure of section 3543.2 with the broadening expression, “relating to” wages, hours, etc. The chairman expressed the view in the San Mateo case that to be negotiable a proposal “must logically and reasonably relate to a statutory subject” and suggested that if a proposal “arguably meets the threshold test” it is appropriate to determine negotiability by balancing two factors: “(a) whether the subject is of such concern to both management and employees that conflict is likely to occur and whether the mediatory influence of collective bargaining is the appropriate means of resolving the conflict, and (b) whether the employer's obligation to negotiate would significantly abridge his freedom to exercise those managerial prerogatives essential to achievement of the district's mission.” One member concurred in the decision but disagreed with much of the reasoning of the chairman, expressing the fear that the test proposed by the chairman “may mistakenly suggest that the scope of representation under (the Educational Employment Relations Act) is indistinguishable from negotiability under the National Labor Relations Act.” The third member dissented, arguing that if the phrase “matters relating to” is construed broadly “the Legislature's efforts to specifically limit negotiable terms and conditions of employment will be nullified; a ‘logical’ relationship can be found between almost any negotiations proposal and an enumerated term of employment.” This division of opinion among the members has prevented the board from developing an expert construction that can assist the courts in reviewing the challenged orders. Until the board2 develops an administrative construction in some future case, it will fall to the courts to act without the aid of an administrative construction in reviewing on a case by case basis the board's application of the statute, according full deference to any findings of fact made by the board on substantial evidence.

San Mateo City Schools Case

In December 1976, the San Mateo Elementary Teachers Association filed with the board an unfair practice charge against the San Mateo City School District. The association alleged that the district had violated Government Code section 3543.5, subdivision (c), in negotiations for the 1976-1977 contract year by refusing to discuss the length of the teacher instructional day. It charged that the district had lengthened the minimum school day for students, thus affecting the hours of employment of teachers by reducing the out-of-class time available to them for preparation. The association later alleged that the district had also refused to negotiate with respect to “teacher relief or rest periods.” The district disputed the negotiability of all these matters.

A hearing officer found, on substantial evidence, that the district had increased the instructional day by varying amounts in different grades and schools but had not increased the total workday for teachers which remained at 71/4 hours. The changes had, however, reduced teacher preparation time. The hearing officer concluded that the length of the instructional day was a subject on which the district was required to negotiate because it related to hours of employment, but held that there was no showing that rest time related to hours of employment. The board accepted the hearing officer's conclusion that the length of the teacher instructional day was within the scope of representation and held that rest time was also negotiable because of its relation to hours of employment. The board ordered the district to negotiate with the association on the subjects of teacher instructional day, preparation time, and rest time.

Challenging the board's order, the district argues that a change in the instructional day reducing preparation time is not related to hours of employment. The board reasoned that the change in the teacher's instructional day relates to hours of employment even though it does not change the time required to be spent at school because the effect of such a change could be an increase in hours spent on preparation outside the teachers' 71/4-hour school day. A teacher cannot perform effectively without out-of-class preparation time. If adequate time is not available for that purpose during the instructional day, the teacher must devote other time to the work. Such additional time, though uncompensated, is part of the obligation of a teacher's employment. Therefore, the board acted reasonably when it determined that the issue was negotiable as being related to hours of employment.

Inclusion in the board's order of a reference to rest time was improper. The unfair practice charge pertaining to the 1976-1977 negotiations contains no reference to a refusal to bargain concerning rest periods. The amended charge referring to 1977-1978 negotiations does not clearly bring rest periods in as an issue. The hearing officer made no finding on rest time since he considered the issue not negotiable; the board recited that “The record discloses no evidence that the District subsequently resumed the 1976-1977 posture that it was not obligated to negotiate about rest time.” Nevertheless, the board included in its order a provision for negotiation of rest time. That direction would be justifiable only if there had been a refusal to bargain on the matter. A finding of an unfair labor practice is improper when the allegedly unfair conduct was not incorporated in the unfair practice charged or raised and fully litigated at the hearing. (Sunnyside Nurseries, Inc. v. Agriculture Labor Relations Bd. (1979) 93 Cal.App.3d 922, 933-934, 156 Cal.Rptr. 152.) The order must be modified accordingly.

Healdsburg Cases

On these cross-petitions this court issued writs to review a decision by the board determining whether many clauses in a contract presented to the school districts were within the scope of bargaining under the Educational Employment Relations Act (s 3543.2). The disputed contract is a 107-page form developed by lawyers of the California School Employees Association, the exclusive negotiating agent for classified employees of the districts. Board determinations with respect to scope of bargaining are challenged by the employers or by the association as to 12 separate “Articles” of the form. We proceed to review each challenged determination for reasonable conformity with the statutory definition of scope.

Art. II-No Discrimination

Section 2.1 would broadly prohibit discrimination against an employee because of “political opinions ... race ... religion ... marital status (and other factors irrelevant to performance).” The employers challenge a determination by the board that this subject is within the scope of representation. The aims sought to be promoted by section 2.1 are fully in accord with enlightened opinion of the present day; but the proposal does not relate to wages, hours of employment, or “terms and conditions of employment” as the latter expression is defined in section 3543.2. The board's reliance on private sector authority arising out of the National Labor Relations Act is misplaced; its decision must be annulled for the reason that it is not in reasonable conformity with the governing statute.

The employers also challenge a determination that section 2.2, “No Discrimination on Account of CSEA Activity,” is within scope. This ruling by the board is similarly out of conformity with the statutory definition of scope of representation. We note in passing that the statute itself comprehensively prohibits employer coercion interfering with organizational rights of employees. (s 3543.5.)3 That statutory protection may explain why the scope provision omits reference to employer coercion or discrimination.

Art. V-Organizational Rights

The board found to be negotiable sections of this article having to do with right of access to work areas, use of employer media for transmitting information concerning association matters, use of facilities at reasonable times, review of personnel files of employees, release time for employees who are state officers of the association to conduct association business, and orientation of employees concerning the agreement during regular working hours. None of these topics is related in any substantial way to a matter “specifically enumerated” in section 3543.2. Therefore, in the words of the statute, they are “reserved to the public school employer and may not be a subject of meeting and negotiating....” Again it is noted that several of the challenged items substantially duplicate organizational rights that are explicitly recognized by statute. (See s 3543.1.)4 That statutory protection of rights perhaps serves to explain why organizational protections which are commonplace in labor law generally were not included in the statutory definition of scope.

The association argues that the board erred when it held to be outside scope contract section 5.4, which would require the employer to duplicate and distribute the contract to each employee in the bargaining unit. We find no subject enumerated in section 3543.2 to which this item is reasonably related. The holding of the board is correct.

Art. VI-Job Representatives

Article VI would regulate the designation, the duties and the compensation of association members who are to act as representatives at the work location. The board found this article negotiable in its entirety because “job representatives or union stewards, as they are frequently called, perform functions critical to the entire grievance procedure.” “Procedures for processing grievances” are a negotiable item enumerated in section 3543.2. The job representatives article is substantially related to grievance procedure. Therefore, the holding of the board that this article is within scope is to be upheld. The employers contend that some aspects of the article are beyond scope (manner of appointment of job representatives, participation in OSHA inspections, and the right to seek assistance from the association). But these are subsidiary matters unlikely to obstruct overall agreement even if on close investigation they prove to have no place on the bargaining table. The board's determination as to article VI is to be upheld.

Art. X-Employee Expenses and Materials

The board held to be negotiable, as related to wages within the meaning of Government Code section 3543.2, provisions in the association's contract form which would place responsibility on the employer for the cost of any required uniforms, for provision or safekeeping of any necessary tools and equipment, for replacing or repairing employee property lost or damaged in the course of employment, for insuring employee vehicles used on employer business, for instituting a regular program of employee achievement awards, and for holding employees financially harmless from “any civil or criminal action ... brought against an employee for any action or omission (in the performance of duty).” The district argues in effect that all of these proposed fringe benefits are outside the scope of bargaining because they are not wages if that term is limited to “remuneration on an hourly, weekly or piecework basis,” and that the benefits are not related to health and welfare benefits as defined in Government Code section 53200.5 But section 3543.2 does not preclude negotiability of fringe benefits which do not come within the definition of health and welfare benefit; any subject is negotiable which is significantly related to an enumerated item. The clauses dealing with uniforms, tools, replacement of lost property, automobile insurance, and indemnity against personal liability all bear a significant relation to wages even if the employers' narrow definition of that term is accepted. The determination of the board as to all of those items must be upheld. The provision of “a regular program of monetary awards for valuable suggestions, services, or accomplishments ...” (s 10.7) bears no such relation to wages. Education Code section 44015 authorizes school districts to institute achievement awards. Nothing in the present record supports the idea that such awards, which may be granted occasionally for the purpose of promoting a spirit of emulation, have any significant relation to wages. Therefore, this clause is not negotiable.

Art. XVII-Hiring

Section 17.4 proposes to preclude the employment of “students under any ... work-study program ... in any position that would ... affect the rights of (the association) or of any employee....” The employers challenge a holding by the board that this clause is negotiable. The challenge must be sustained as the clause bears no significant relation to any enumerated subject.

Art. XIX-Promotion

This article proposes in effect to require the employers to fill any vacant position with an existing employee meeting “minimum qualifications.” Even among existing employees, consideration of merit would be excluded: Among existing employees possessing minimum qualifications, the employee with “the greatest bargaining unit seniority” would be entitled to promotion. The board held this article within scope in its entirety on theories that it bore a “logical and reasonable relationship” to the enumerated subjects of evaluation procedures and wages. The challenge to this determination must be upheld; the article does not deal with or relate to evaluation procedures even to the limited extent of specifying how the proposed “minimum qualifications” would be determined. Rather, it manifests the single purpose of conferring upon existing employees promotion advantages without respect to evaluation of qualifications. Although promotion of a particular employee may, of course, affect his wages, that circumstance does not create a substantial relationship with wages as an enumerated topic for bargaining. Stated another way, a promotion does not determine the wages to be paid for particular work but rather who will be placed in the vacant position.

Art. XX-Classification, Reclassification, and Abolition of Positions

This article proposes in seven sections a comprehensive scheme of employee classification and placement, with association involvement in the classification process and in any abolition of a position or class of positions. Section 20.1, “Every bargaining unit position shall be placed in a class,” is duplicative of Education Code section 45103, which requires every school district to create a classification system for positions not requiring certification. The employers do not challenge the board's determination that section 20.1 is negotiable. The board held section 20.2 (Classification and Reclassification Requirement) non-negotiable on the basis that “managerial concerns are sufficiently strong.” The association challenges that determination, contending that the contract language is related to wages and hours of employment. The board expressed willingness to reconsider the issue if the association presented a proposal that did not seek to impose “an absolute prohibition on management's decision to reclassify or create new classifications....” This treatment of the issue appears reasonable and should not be disturbed by the court.

The board's exclusion from negotiability of section 20.3 (New Positions or Classes of Positions) is to be sustained because the issue is not substantially related to an enumerated topic.

Section 20.4 would provide as follows: “When a position or class of positions is reclassified, the position or positions shall be placed on the salary schedule in a range which will result in at least one (1) range increase above the salary of the existing position or positions, but in no event will the reclassification result in an increase of less than five and one-half (51/2) percent.” The board held this position negotiable because it “bears a direct relationship to wages.” In light of Sonoma County Bd. of Education v. Public Employment Relations Bd. (1980) 102 Cal.App.3d 689, 163 Cal.Rptr. 464, the employers have withdrawn their challenge to this determination.

In section 20.5 (Incumbent Rights) the association proposes, among other advantages to incumbents, that “When an entire class of positions is reclassified, the incumbents in the positions shall be entitled to serve in the new positions.” It is proposed in section 20.6 (Downward Adjustments) that any downward adjustment of a position is a demotion subject to layoff or disciplinary procedures. Section 20.7 (Abolition of Position or Class of Position) proposes to preclude abolition of a position or class of positions in the absence of agreement by the association. The board held these provisions to be negotiable because of relationship to an employee's wages, hours, transfer, health and safety, and evaluation procedures. The board's determination appears to be inconsistent in principle with its treatment of other classification issues. Incumbent rights with respect to reclassification are not substantially related to any of the enumerated topics. The fact that in individual cases an employee's earnings may be affected does not create a substantial relationship with wages within the meaning of the statute. Reduction in status of a position or class of positions affects the ranking of a position; but it does not affect the wages of an employee, unless the position has an incumbent. So far as employee rights are concerned demotion, disciplinary action and layoffs are comprehensively treated in Education Code section 45100 et seq. Again, that statutory coverage may account for omission of the subject from the enumerated negotiable items.

Art. XXI-Layoff and Reemployment

The association challenges a determination by the board that section 21.2 (Notice of Layoff) is non-negotiable as being partially in conflict with Education Code section 45308. This contention is preempted by the more fundamental contention of the employers that the entire subject of layoffs dealt with in article XXI was intended by the Legislature to be excluded from the scope of representation. Although the protection of fair and orderly layoff procedures is of high importance to employees, layoff is not an enumerated topic except for “probationary certificated school district employees, pursuant to Section 44959.5 of the Education Code.” (Gov.Code, s 3543.2.) Therefore, the board's determination cannot be sustained, that sections 21.3 to 21.6 are negotiable.

Art. XXII-Disciplinary Action

This article sets out an elaborate procedure regulating and restricting the powers of the employers with respect to employee discipline. The board acknowledged that the association's proposal “is not compatible with the plain dictates of the Education Code ...”6 but nevertheless took the view that certain portions of the article were negotiable as related to wages, hours and grievance procedure. In our treatment of article XI, Job Representatives, we upheld the board's determination of negotiability against an employer contention that some subsidiary aspects of the article were beyond scope. We did so because it was inappropriate to disturb the board's judgment where the disputed matters appeared “unlikely to obstruct overall agreement.” The position is different with respect to the article on discipline. Conflicts with Education Code section 45113 are fundamental and pervasive, and to place on the bargaining table an elaborate article which is negotiable only as to minor aspects would be likely to disrupt negotiations and obstruct the efforts of the parties to achieve overall agreement. Thus, the whole article must be held non-negotiable in its present form.

Art. XXIV-Working Conditions

Three sections of this article, held by the board to be negotiable, are conceded by the employers to relate to wages and hours of bus drivers. However, the employers challenge a holding of negotiability as to section 24.4: “Special trip assignments shall be distributed and rotated as equally as possible among bus drivers in the bargaining unit.” Although the section does, as the employers argue, relate to their rights to make work assignments, exercise of those rights is substantially related to the enumerated subjects of wages and hours. Therefore, the board's determination of negotiability is to be upheld.

Art. XXVI-Training

The article would require the district to provide a program of in service training (s 26.1), put the programs under the control of an employee-dominated committee (s 26.2), require that training take place during working hours at no loss of pay (s 26.3), and require the employer “to reimburse employees for the tuition costs of any and all training programs approved by the training advisory committee” (s 26.4). The board held all sections of the article to be negotiable as relating to the enumerated subjects of safety, evaluative procedures and wages and hours. No reasons are given for these conclusions. There is no reference in the contractual language to safety and evaluative procedures, and the connection between wages and hours appears to be merely incidental. The article has no substantial relation to any enumerated topic; it is not negotiable.

Art. XXVII-Contracting and Bargaining Unit Work

In three sections, entitled “Restricting on Contracting Out,” “Notice to CSEA,” and “Bargaining Unit Work,” the association's contract proposes to bind the employers not to “contract out work which has been customarily and routinely performed or is performable by employees in the bargaining unit ... unless (the association) specifically agrees to same or contracting is specifically required by the Education Code.” Notice of proposed contracting out is to be required, and supervisory employees are to be precluded from performing “any work within the job description of a bargaining unit employee.”

The board determined that the basic restriction on contracting out and the notice requirement are negotiable as being related to wages but held the restriction on use of supervisory employees out of scope as “an incursion into management rights.” The employers and the association challenge the portions of the board's determinations respectively adverse to them. The board's decision is based on several public employee relations decisions from other states which, the employers correctly point out, implement statutes based on the broad “wages, hours, and terms and conditions of employment” language of the National Labor Relations Act. The California statute prescribes a narrower scope of representation and bargaining in that the language “terms and conditions of employment” is restricted by Government Code section 3543.2 to specified topics. The contract article under review is not related in any way to “terms and conditions of employment” as so defined. Its lack of substantial relationship to wages and hours of employment is demonstrated by two factors. Contracting out of “work which has been customarily and routinely performed” by existing employees can impact on employees in that layoffs may result. But as the board properly recognized in its treatment of article XXI, layoffs are not a negotiable topic. The language in article XXVII, which would preclude the employers from contracting out work which “is performable by employees in the bargaining unit,” is even more remote from negotiability: it has no substantial relation to the interests of existing employees but would give the association the power to prevent the employers from continuing existing arrangements for contracting out even when that option is specifically recognized by statute, e.g., bus transportation (Educ.Code, s 39800). Article XXVII is outside the scope of representation.


San Mateo City Schools Case

In 1/Civil 49913, the order of the board is set aside insofar as it directs negotiation concerning rest time. In all other respects the order is enforced.

Healdsburg Cases

In 1/Civil 50191 and 1/Civil 50199, the order of the board is set aside insofar as it determines that the following portions of the California School Employees Association contract are within the scope of representation:

In all other respects, the order of the board is enforced.

I respectfully dissent.

We are concerned with a matter of first impression which goes to the very heart of the Educational Employment Relations Act of 1975 (“EERA”)1 : what contract proposals must be negotiated. The Legislature did not make the answers very clear but made unmistakable that the task of determining the answers is placed in the Public Employees Relations Board (board), not in this, or any other, court. (s 3541.3, subd. (b).)

In these three cases, a majority of the board explained in detail the test it uses to decide which contract proposals must be negotiated “in a good faith effort” to reach binding agreement. (s 3540.1, subd. (h).)

Just how difficult that task is can only be imagined. What is known is that the EERA was passed as a compromise measure, with both labor organizations and public school employers contributing to its development. Thus, like many other labor legislation, both state and federal, the EERA is: “to a marked degree, the result of conflict and compromise between strong contending forces and deeply held views on the role of organized labor ... and the appropriate balance to be struck between the uncontrolled power of management and labor to further their respective interests.” (Carpenters' Union v. Labor Board (Sand Door and Plywood Company) (1957) 357 U.S. 93, 99-100, 78 S.Ct. 1011, 1016-1017, 2 L.Ed.2d 1186.) Statutes of this kind are often characterized by “discordant (provisions) ... creating difficult problems of statutory interpretation.” (Sears Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 323, 158 Cal.Rptr. 370, 599 P.2d 676; cert. den. (1980) 447 U.S. 935, 100 S.Ct. 3038, 65 L.Ed.2d 1130.) Precisely because labor statutes often “have the earmarks of verbal compromises between contending special interests (in order to) allow a legislative escape from controversy and send the contending interests out into the administrative arena ... (c)onventional tenets of statutory interpretation (often) fall flat in the face of such draftsmanship.” (San Juan Teachers Assn. v. San Juan Unified School Dist. (1974) 44 Cal.App.3d 232, 261, 118 Cal.Rptr. 662; conc. and dis. opn. of Friedman, J.)

In determining what is negotiable the board was required to give meaning to section 3543.2 reading in it the context of the entire act.2

Section 3543.2 has several notable features. First, it creates three categories of proposals: certain matters must be negotiated with the exclusive representative of the unit's employees; others are subject only to a mandatory right of consultation; and still a third group “may not be a subject of meeting and negotiating” and may, but need not, be a subject of consultation “with any employees or employee organization.” (Ibid.; emphasis added.) Under any sensible statutory interpretation, one would expect the types of proposals which are placed in each of these categories to fall into a logical continuum. That is, the issues most central to the employee's traditional job-related concerns would fall in the negotiable group; questions more peripheral to the employment relationship would fall within the mandatory consultation group; and matters as to which the need for untrammeled managerial decisionmaking may be crucial would fall outside the scope of negotiation.

Second, the language of section 3543.2 bears clear evidence of the struggle between management and labor interests. For example, the scope of representation provision first refers generally to “other terms and conditions of employment.” (Ibid.) That phrase is then said to “mean” certain terms and conditions, described by subject matter. (Ibid.) Further, the scope of representation covers not only “wages, hours of employment and other terms and conditions of employment” (as defined), but also extends to “matters relating to” them. (Ibid.) The term “matters relating to” is in no way modified to require any particular degree of relationship, “direct”, “significant”, “material” or otherwise as suggested by the majority opinion. Although the statement that “(a)ll matters not specifically enumerated (are) reserved to the public school employer” insures that there is a category of matters which may be determined without either negotiating or consulting with the exclusive representative, the statement is of little aid in determining which matters are so treated. The matters reserved to management are simply described as a residual category, whose content can be discovered only by first determining which matters are negotiable.

Third, the scope of representation is described in fairly general terms. The statute does not endeavor to provide an exhaustive list of negotiable items. Instead, it delineates negotiable items as a few subject areas and “matters relating” thereto.

Working with this complex, if not discordant, statutory background, a majority of the board articulated a two-pronged test for determining whether a particular proposal is subject to mandatory negotiations. The board first determines whether the subject matter of a contract proposal logically and reasonably relates to wages, hours, or one of the terms and conditions which section 3543.2 explicitly deems negotiable. If the proposal meets this threshold inquiry, the board subjects it to a further balancing test to determine whether policy considerations arising in the public school employment context require that its subject matter be reserved to management. Specifically, the board decides whether the subject is likely to be the source of conflict between the public school employer and its employees, and whether collective bargaining is the appropriate means of resolving that conflict. If these conditions are met, the board proceeds to decide whether the negotiation process would significantly abridge the school employer's freedom to take actions important to its basic role as a public agency devoted to education. If so, the proposal may be non-negotiable.

My colleagues do not deny that “... a reviewing court should defer to the board's expertise to the extent of giving great weight to its construction of the statute. (Citations omitted).” (Ante, majority opinion p. 651.) Instead they conclude that because there was a difference of opinion on the board no expert construction has been developed that is entitled to judicial deference. (Id., at p. 652.)

The board majority, Chairperson Gluck and Member Moore, differ somewhat in the precise language used to articulate the test. They disagree in some respects in the reasoning behind the chosen test. In the Chairperson's view, a proposal may be non-negotiable if it would significantly abridge the employer's freedom to exercise “those managerial prerogatives essential to achievement of the district's mission” as a public agency. In Member Moore's view, the balancing process should incorporate an express consideration of educational and public policy concerns.

Differing legal analysis between members of the board can no more impugn the validity of its result than would separate judicial concurrences giving independent reasons for reaching the same result. In this case, the minimal differences are of emphasis and expression rather than of substance. The members of the board majority essentially agree that bargaining proposals may be excluded from negotiation when, on balance, the impact upon the school districts' right to make policy determinations outweighs any impact upon the employees' interests. The few differences between the two regarding the negotiability of particular proposals result not from a disagreement on the appropriate test but from differences in construction of the proposal itself, the pertinent statutes, or in the balance of employee and employer interests in a particular matter. This is hardly a difference of opinion which can be characterized as preventing the board from developing an expert construction, as the majority of this court insists.

In my view the board has articulated an expert construction. The basic effect of the board's test is to require negotiation over many bread-and-butter issues central to traditional employer-employee relations. It removes from negotiation matters concerning managerial prerogatives or policy questions arising in the public school setting.

In addition to insuring a sensible allocation of issues, the board's test mirrors directly the balance between employer and employee interests recognized by section 3543.2. The test at once gives meaning to the expansive and unqualified statutory test “matters relating to wages, hours of employment, and other (defined) terms and conditions of employment” and recognizes that not all matters which literally come within that portion of the statutory language are negotiable. (Ibid.) This is accomplished by a multifaceted analysis which focuses directly upon the relative interests of the employer, the employees, and the exclusive employee representative. This approach exposes to public view, and to meaningful court review, the board's reasoning process.

That the board's test is a balanced one which results in exclusion as well as inclusion of matters of great employee concern can be seen by considering the results of applying the test in these cases. Several proposals were declared not within the scope of representation because not logically and rationally related to a listed item. The balancing portion of the test also eliminated from scope many issues with impact upon employees' concerns.

The test is also thoroughly consistent with the statute's basic language and structure because, as to matters not expressly listed, it permits particularized decisions about the scope of representation questions. For example, with respect to classification and reclassification questions, the board's test resulted in excluding from scope, (a) questions concerning whether to reclassify or create new classifications and, (b) questions relating to abolition of a classification.

Through the use of its test, the board can give specific proposals the type of detailed scrutiny that the Legislature refused to attempt to do in advance of any actual experience with public employee collective bargaining.

The board's test conforms to section 3543.2 by: (1) distributing in a logical way potential subjects among the three statutory categories, (2) sensitively assessing the legitimate interests of both labor and management thereby mirroring the Legislature's own balanced approach and, (3) allowing fairly discreet determinations within general categories of subject matter.

In contrast, the various tests applied by my colleagues amount to affixing a general label upon the degree of relationship to a listed topic (e.g., “related in any substantial way,” “reasonably related,” “substantially related,” “significantly related” and “appears reasonable”). Such tests do not comport with the legislative intent because virtually all matters subject to employer action may in some way “reasonably relate” to an enumerated subject.

In short, I dissent because in my view the majority of this court is gutting EERA by (1) usurping functions specifically delegated in section 3540.1, subdivision (h), to the board alone, (2) applying section 3543.2 in a way that provides little guidance and, (3) by guaranteeing that all matters left by the Legislature to the board by section 3540.1, subdivision (h), will henceforth be decided by the courts on an ad hoc “case-by-case” basis.

I would affirm the order of the board in the Healdsburg cases in all respects and would affirm the order in the San Mateo Schools case except insofar as it directs negotiation concerning rest time.


1.  See Public Employment Relations Symposium: Collective Bargaining in the California Public Schools (1978) 18 Santa Clara L.Rev. 845-970, for historical and textual commentaries on the statute.

2.  With effect after the decisions here under review the board has been increased to five members. (Gov.Code, s 3541 as amended Stats.1980, ch. 666, urgency eff. July 20, 1980; Stats.1980, ch. 1088, s 1.) This restructuring of the board may facilitate development of an expert construction of the statute.

3.  Government Code section 3543.5: “It shall be unlawful for a public school employer to: (a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because of their exercise of rights guaranteed by this chapter.“(b) Deny to employee organizations rights guaranteed to them by this chapter.....“(d) Dominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another.”

4.  Government Code section 3543.1: “(a) Employee organizations shall have the right to represent their members in their employment relations with public school employers, except that once an employee organization is recognized or certified as the exclusive representative of an appropriate unit pursuant to Section 3544.1 or 3544.7, respectively, only that employee organization may represent that unit in their employment relations with the public school employer. Employee organizations may establish reasonable restrictions regarding who may join and may make reasonable provisions for the dismissal of individuals from membership.“(b) Employee organizations shall have the right of access at reasonable times to areas in which employees work, the right to use institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation, and the right to use institutional facilities at reasonable times for the purpose of meetings concerned with the exercise of the rights guaranteed by this chapter.“(c) A reasonable number of representatives of an exclusive representative shall have the right to receive reasonable periods of released time without loss of compensation when meeting and negotiating and for the processing of grievances.“(d) All employee organizations shall have the right to have membership dues deducted pursuant to Sections 13532 and 13604.2 of the Education Code, until such time as an employee organization is recognized as the exclusive representative for any of the employees in an appropriate unit, and then such deduction as to any employee in the negotiating unit shall not be permissible except to the exclusive representative.”

5.  Government Code section 53200: “... (d) ‘Health and welfare benefit’ means any one or more of the following: hospital, medical, surgical, disability, legal expense or related benefits including, but not limited to, medical, dental, life, legal expense, and income protection insurance or benefits, whether provided on an insurance or a service basis, and includes group life insurance as defined in subdivision (b) of this section.”

6.  Education Code section 45113.

1.  Government Code section 3540 et seq. Unless otherwise indicated, all further statutory references are to the Government Code.

2.  For example: Section 3540, the “purpose” provision of the EERA, declares that the Act is intended to improve “employer-employee relations ... by providing (inter alia) ... for ... public school employees .... to be represented by (labor) organizations in their ... employment relationships ....” (Emphasis added.) Similarly, section 3543 gives public school employees the right to join “employee organizations ... for the purpose of representation on all matters of employer-employee relations,” and section 3543.1 grants employee organizations the concomitant right “to represent their members in their employment relations ....” (Emphasis added.) Section 3543.3, in turn, creates a duty to meet and negotiate “with regard to matters within the scope of representation.”

CHRISTIAN, Associate Justice.

CALDECOTT, P. J., concurs.