Decision 2934E – San Bernardino County Superintendent of Schools

“Because EERA exists alongside the Education Code, the former gives way to the latter when there is a specific conflict between the statutes.” (Cerritos Community College District (2022) PERB Decision No. 2819, p. 20 (Cerritos); Gov. Code, § 3540 [EERA “shall not supersede other provisions of the Education Code”].) However, “the Education Code’s supersession over EERA is not absolute.” (Cerritos, supra, p. 20.) Rather, as the California Supreme Court first explained in San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, parties may bargain over matters the Education Code regulates, provided that its provisions would not be “replaced, set aside or annulled by the language of the proposed contract clause.” (Id. at p. 864.) In other words, the Education Code does not “fully occupy the field” on any subject, and bargaining is permitted to the extent a proposal “would not supersede the relevant part of the Education Code” and instead “would strengthen it.” (Id. at p. 866.) Thus, the Education Code precludes bargaining only to the extent it “clearly evidences an intent to set an inflexible standard or insure immutable provisions.” (Id. at pp. 864-865.) Notably, the Supreme Court has repeatedly reaffirmed these principles since first announcing them. (See, e.g., United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 515-516; Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 286.) Accordingly, there is a duty to bargain whenever the Education Code leaves discretion as to terms or conditions of employment, and the parties may agree to “additional employee protections beyond those provided in the Education Code” if they do not circumvent or eviscerate mandatory statutory provisions. (Cerritos, supra, p. 22; San Francisco Unified School District (2009) PERB Decision No. 2040, p. 5, fn. 4.) (pp. 22-23.)

Bargaining parties can agree to more generous terms than those set out in the Education Code, if doing so strengthens the Education Code’s provisions rather than annulling them. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 21; Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15.) The Education Code sets a floor regarding entitlement to holiday pay, but bargaining over the timing of holiday accrual and payment can strengthen the statutory provisions. Indeed, the Education Code invites more generous accrual terms. (Ed. Code § 45203, 4th par. [clarifying that statutory language on holiday pay shall not be interpreted as barring employer “from providing holiday pay for employees who have not been in paid status on the days specified herein”].) Timing of accrual and/or payment is normally a mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when” employees are paid].) The Board harmonized that general principle with its finding that the Education Code includes a default provision for holiday accrual requirements allowing more generous provisions, to find that the employer did not violate EERA in proposing to continue the parties’ longstanding non-traditional practice regarding accrual and payment of holiday pay. Moreover, because the parties’ longstanding agreement was a beneficial pay practice and not a statutory waiver, its terms remained the status quo at the end of the parties’ CBA. (pp. 25-27.)

In determining whether a party has violated its duty to bargain in good faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the specific conduct involved. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) Unlike the totality of conduct analysis, a per se violation requires no inquiry into the respondent’s subjective intent or finding of bad faith. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 15.) (pp. 15-16.)

A principle of good faith bargaining allows a party to make proposals on permissive bargaining topics but prohibits such a party, at the time of impasse or thereafter, from conditioning its willingness to sign an overall agreement on its counterpart conceding to a permissive or illegal proposal. PERB refers to this as “insisting to impasse” on a permissive or illegal proposal. (p. 17.) “Permissive” describes subjects about which parties need not bargain, although they may choose to do so. (Oakland Unified School District (2024) PERB Decision No. 2875, p. 3, fn. 4.) PERB sometimes refers to such topics as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) In contrast, an illegal proposal is one that parties cannot lawfully agree upon. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 43-44 (San Jose).) (p. 17, fn. 6.)

If a party insists to impasse on an illegal proposal, that constitutes a bargaining violation irrespective of whether or how its counterpart responded to the proposal. (City of San Jose (2013) PERB Decision No. 2341-M, p. 44.) (p. 18.)

Where a bargaining proposal is permissive, if the party receiving such a proposal effectively indicates that it will not bargain over the proposal because it is permissive, the proposing party must either withdraw the proposal by the time the parties reach a bona fide impasse, or otherwise demonstrate its willingness to reach an overall agreement without any concession by its counterpart on the permissive topic. (See Anaheim Union High School District (2016) PERB Decision No. 2504, p. 9 [party that objects to bargaining need not use any “magic words,” but must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”]; State of California (Department of Personnel Administration) (2009) PERB Decision No. 2081-S, pp. 3-7 [context is critical in determining whether receiving party has unequivocally refused to bargain over permissive proposal and whether proposing party thereafter unlawfully insisted on the proposal to impasse]; Lake Elsinore School District (1986) PERB Decision No. 603, pp. 7-10 [same] (Lake Elsinore).) Thus, the proposing party may be able to lawfully maintain the proposal by specifying an alternate set of parameters—involving exclusively mandatory bargaining topics—on which it could reach agreement even in the absence of any concession on the permissive topic. (See Lake Elsinore, supra, p. 7 [although a party may not insist on permissive proposal as absolute requirement for agreement, permissive issue may have bearing on party’s position on economic matters or other mandatory proposals].) (pp. 18-19; see also p. 26, fn. 9 [a party that refuses to bargain over a permissive proposal must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”].)

If a bargaining proposal includes a mix of permissive and mandatory topics, or if it is unclear whether the proposal is partially or wholly permissive, the receiving party cannot flatly refuse to bargain. Instead, it must seek in good faith to clarify the proposal and clearly state its willingness to bargain over any aspects of the proposal involving a mandatory bargaining topic. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 23-24, fn. 9; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 33; Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375, pp. 9-10.) Thus, a party must bargain over mandatory subjects even though in doing so it must address proposals that also touch on permissive subjects. (Anaheim Union High School District (2016) PERB Decision No. 2504, p. 11 [finding such a circumstance “neither unprecedented nor particularly troubling”].) (p. 19.)

While an employer can never unilaterally impose a statutory rights waiver, PERB decisions classify certain proposed statutory rights waivers as mandatory topics, others as permissive, and still others as illegal. These designations control whether an employer can insist to impasse on such waivers. The quintessential example of a statutory rights waiver that involves a mandatory bargaining topic is a no-strike clause. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, pp. 35-37.) Other statutory rights waivers, in contrast, are permissive, including a proposal for a union to contractually waive its right to file a grievance in its own name, or to waive its right to arbitrate without a grievant’s consent. (Mt. Diablo Unified School District (1990) PERB Decision No. 844, p. 2; Chula Vista City School District (1990) PERB Decision No. 834, pp. 18-23 & 31-35.) The same is true of proposals that a union waive statutory rights by withdrawing or settling a pending grievance, unfair practice charge, or lawsuit. (See, e.g., Lake Elsinore School District (1986) PERB Decision No. 603, pp. 6-9.) Still other statutory rights waivers are illegal, typically because external law sets an immutable and therefore non-waivable standard. (Berkeley Unified School District (2012) PERB Decision No. 2268, p. 9.) This category includes, for example, proposals to allow an employer to garnish employee wages without employee consent, thereby violating the California Labor Code. (Id. at pp. 9-11.) However, given that wages are a mandatory subject of bargaining, garnishment proposals are mandatory provided they do not conflict with external law. (Id. at p. 9; see Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15 [parties cannot negotiate away or waive rights guaranteed by statute, but “may agree to incorporate an external law-derived right into the collective bargaining agreement,” and/or negotiate “more generous terms” or other agreements “in areas left unaddressed by the external law”].) (pp. 21-22.)

“Because EERA exists alongside the Education Code, the former gives way to the latter when there is a specific conflict between the statutes.” (Cerritos Community College District (2022) PERB Decision No. 2819, p. 20 (Cerritos); Gov. Code, § 3540 [EERA “shall not supersede other provisions of the Education Code”].) However, “the Education Code’s supersession over EERA is not absolute.” (Cerritos, supra, p. 20.) Rather, as the California Supreme Court first explained in San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, parties may bargain over matters the Education Code regulates, provided that its provisions would not be “replaced, set aside or annulled by the language of the proposed contract clause.” (Id. at p. 864.) In other words, the Education Code does not “fully occupy the field” on any subject, and bargaining is permitted to the extent a proposal “would not supersede the relevant part of the Education Code” and instead “would strengthen it.” (Id. at p. 866.) Thus, the Education Code precludes bargaining only to the extent it “clearly evidences an intent to set an inflexible standard or insure immutable provisions.” (Id. at pp. 864-865.) Notably, the Supreme Court has repeatedly reaffirmed these principles since first announcing them. (See, e.g., United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 515-516; Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 286.) Accordingly, there is a duty to bargain whenever the Education Code leaves discretion as to terms or conditions of employment, and the parties may agree to “additional employee protections beyond those provided in the Education Code” if they do not circumvent or eviscerate mandatory statutory provisions. (Cerritos, supra, p. 22; San Francisco Unified School District (2009) PERB Decision No. 2040, p. 5, fn. 4.) (pp. 22-23.)

Bargaining parties can agree to more generous terms than those set out in the Education Code, if doing so strengthens the Education Code’s provisions rather than annulling them. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 21; Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15.) The Education Code sets a floor regarding entitlement to holiday pay, but bargaining over the timing of holiday accrual and payment can strengthen the statutory provisions. Indeed, the Education Code invites more generous accrual terms. (Ed. Code § 45203, 4th par. [clarifying that statutory language on holiday pay shall not be interpreted as barring employer “from providing holiday pay for employees who have not been in paid status on the days specified herein”].) Timing of accrual and/or payment is normally a mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when” employees are paid].) The Board harmonized that general principle with its finding that the Education Code includes a default provision for holiday accrual requirements allowing more generous provisions, to find that the employer did not violate EERA in proposing to continue the parties’ longstanding non-traditional practice regarding accrual and payment of holiday pay. Moreover, because the parties’ longstanding agreement was a beneficial pay practice and not a statutory waiver, its terms remained the status quo at the end of the parties’ CBA. (pp. 25-27.)

An impasse resolution procedure continues the bargaining process. (Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 199 (Moreno Valley).) Where a labor relations statute requires one or more impasse dispute resolution procedures, or where the parties voluntarily agree to such a procedure, both parties must participate in good faith. (Id. at p. 198; County of Santa Clara (2020) PERB Order No. Ad-483-M, pp. 5-6; City of Davis (2012) PERB Decision No. 2271-M, p. 6.) In evaluating a claimed failure or refusal to participate in good faith in impasse resolution procedures, PERB applies the same per se and totality of conduct tests that govern bad faith bargaining claims. (Moreno Valley, supra, 142 Cal.App.3d at pp. 199-200, 206; Temple City Unified School District (2008) PERB Decision No. 1972, p. 12, fn. 12.) (p. 16.)

A principle of good faith bargaining is that if an employer unilaterally imposes new employment terms and conditions after impasse, it cannot impose terms that require mutual consent. Precedent establishes a non-exhaustive list of terms requiring mutual consent, including: an arbitration clause, durational language akin to that in a contract, a management rights clause or other waiver of the right to bargain, a no-strike clause, or another statutory rights waiver. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 12-14 (San Ramon); Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, pp. 21-24 & 35-37 (Fresno).) Notably, certain terms requiring mutual consent involve mandatory bargaining subjects, which means a party is free to demand concessions on such topics as a condition for reaching an overall agreement, but reaching impasse does not privilege the employer to unilaterally impose terms involving these topics. (See, e.g., San Ramon, supra, pp. 13-14 [contract duration is a mandatory subject, but after impasse employer may not impose duration for new employment terms]; Fresno, supra, pp. 35-37 [although no-strike clause is a mandatory subject, after impasse employer may not impose a no-strike clause or other waiver of statutory rights].) In contrast, a proposal to modify a bargaining unit is both permissive (meaning it cannot be a condition for reaching an overall agreement) as well as one requiring mutual consent, absent a PERB unit modification order. (County of Orange (2018) PERB Decision No. 2594-M, pp. 11-12; Chula Vista City School District (1990) PERB Decision No. 834, pp. 37-39.) (pp. 17, 20-21.)

If negotiations reach a bona fide impasse and the parties complete any required or agreed-upon post-impasse procedures without the employer committing any unremedied unfair practice during the negotiations or impasse procedures, then the employer can lawfully impose new employment terms or conditions. (City of Glendale (2020) PERB Decision No. 2694-M, p. 60.) But if the employer chooses to avail itself of this right, it must respect certain limits. First, the terms imposed must be reasonably comprehended within the employer’s LBFO, meaning they are not regressive compared to the LBFO and the employer afforded the union a full opportunity to bargain over such terms. (Id. at pp. 59, 62-63.) Moreover, the employer cannot impose terms giving it unfettered discretion over a mandatory topic. (Los Angeles Unified School District (2013) PERB Decision No. 2326, p. 2.) Finally, the terms cannot be ones for which mutual consent is necessary. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 13.)

Ground rules are a mandatory subject of bargaining, meaning neither party can refuse to bargain over them. (County of Orange (2018) PERB Decision No. 2594-M, pp. 12-14.) However, bargaining over ground rules is analytically distinct from bargaining over substantive terms, meaning that neither party can lawfully refuse to bargain over substantive terms merely because of a dispute over ground rules, and as a result PERB precedent establishes certain default ground rules that apply absent an agreement to the contrary. (Ibid.) (p. 19, fn. 7.) (pp. 19-20.)

Timing of accrual and/or payment is normally a mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when” employees are paid].) Proposal regarding holiday accrual and pay requirements involved a mandatory bargaining topic. (pp. 25-26.)