Delano Joint Union High School District (PERB 0307E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
DELANO 	HIGH 	SCHOOL 	TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
DELANO 	JOINT UNION 	HIGH
SCHOOL 	DISTRICT,
Respondent.
Case No. 	LA-CE-1139
PERB Decision No. 	307
May 5, 	1983
Appearances; 	Charles R. 	Gustafson, Attorney for 	Delano 	High
School Teachers Association, 	CTA/NEA; 	Carl B. A. 	Lange, III,
Representative 	(Schools 	Legal 	Service) 	for 	Delano Joint 	Union
High School District.
Before Gluck, 	Chairperson; 	Tovar and Jaeger, Members.
DECISION
JAEGER, Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(PERB 	or 	Board) 	on exceptions 	filed 	by 	the
Delano High 	School Teachers Association, 	CTA/NEA 	(Association)
to 	an 	administrative 	law judge's 	(ALJ) 	proposed 	decision
dismissing 	charges 	alleging 	that 	the 	District 	violated
subsections 3543.5 (a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA).1
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	All 	references 	are 	to 	the Government Code 	unless
otherwise 	indicated. 	In 	relevant part, 	section 3543.5 provides:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
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In 	i t s 	charge, 	the 	Association 	alleged 	that 	the 	D i s t r i c t
violated 	i t s 	duty 	to 	negotiate 	in 	good 	faith 	by 	refusing 	to
negotiate 	the 	effects 	of 	i t s 	decision 	to 	lay 	off 	certificated
employees. 	The 	ALJ 	found 	that 	the 	Association did 	not properly
communicate 	i t s 	desire 	to 	negotiate 	the 	effects 	of 	the 	intended
layoffs, 	thereby 	waiving 	i t s 	right 	to 	negotiate.
For 	the 	reasons 	set 	forth 	below, 	we 	affirm 	the ALJ's
proposed 	decision, 	and 	dismiss 	the 	Association's 	charges.
FACTS
The 	District 	and 	the 	Association 	entered 	into 	a 	collective
agreement on July 1, 	1977, which was 	to expire on June 30, 	1980.
On February 	19, 	1980, 	the Association presented 	its 	initial
comprehensive proposal 	for 	a 	successor 	contract 	to 	the 	school
board 	at 	the 	special public meeting.
On March 	3, 	1980, 	the school board 	adopted 	a resolution
directing 	the 	superintendent 	to 	reduce 	certain 	services 	and 	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.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
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• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
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determine 	which 	employees' 	services 	might 	not be 	required 	for
the 	198 0-81 	school year. 	The Association became 	aware 	of 	that
resolution 	soon 	thereafter.
On March 	10, 	the Association delivered 	to 	the
superintendent a 	list of 	10 	suggestions 	for 	the 	school board 	to
consider 	prior 	to 	acting 	on 	any 	proposed 	layoffs.
The Association's March 	10 	communication 	reads 	as 	follows:
TO: 	D.J.U.H.S.D. 	Board 	of Trustees
FROM: 	Teachers 	Association
DATE: 	3/10/80
As 	elected 	representatives 	of 	the community
and 	agents of 	the 	state 	it behooves you 	to
look 	at 	past 	mistakes 	honestly 	and 	fairly 	so
responsibility 	can be 	properly 	placed. 	The
Delano High School Teachers' 	Association
offers 	the 	following 	prioritized 	list 	of
events 	that 	should 	occur 	before 	dismissal of
any 	teaching 	personnel 	or 	disruption of 	any
program.
1. 	Terminate 	immediately, 	the 	employment
of Mr. 	David Gallego, 	business manager,
who 	according 	to 	the 	Kern County
Superintendent's 	Office 	mismanaged 	the
school's 	money. 	(Unanimous vote)
2. 	Terminate 	the 	employment of 	the
superintendent 	if 	he was 	responsible
for 	seeing 	to 	it 	that 	the 	asst.
superintendent 	followed 	proper
procedures.
3. 	Reduce the 	administrative 	staff by 	50%.
4. 	Sell all 	unnecessary equipment.
5. 	No 	conferences 	or 	trips 	should 	be paid
for 	out of 	the 	general 	fund.
6. 	Eliminate 	all 	food 	services.
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7. 	All 	categorical programs 	should 	be 	100%
self-supporting 	and 	no 	money 	from 	the
general 	fund 	should 	be 	used.
8. 	Reduction of maintenance 	and 	grounds
crews, 	and warehouse staffs by 50%.
9. 	Reduction of business 	office staff 	by
50%.
10. 	Reduction of custodial staff by 10%.
(Emphasis 	in 	the 	original.)
On March 	11, 	1980, 	the Association's contract proposal was
formally 	sunshined. 	The 	Association did 	not 	request
negotiations 	concerning 	the 	proposed 	layoffs 	at 	that 	time.
On March 	12, 	1980, 	the superintendent gave 	notice 	to 25
certificated 	employees 	of 	his 	recommendation 	to 	the 	school
board 	that 	they 	not be 	reemployed 	for 	the 	next 	school year.
On March 	17, 	198 0, 	the Association bargaining 	team gathered
in 	the 	teachers' 	lounge. 	In 	an 	impromptu conversation with 	the
superintendent, 	the Association president 	requested 	that
negotiations 	begin 	immediately. 	The 	superintendent 	responded
that 	they 	would 	not 	be 	starting 	that 	day. 	The Association
president 	then 	told 	the 	superintendent 	that 	he 	thought 	that 	the
current 	contract 	required 	negotiations 	to 	begin by 	that 	date.
The 	superintendent 	responded 	by 	stating 	that 	if 	the 	Association
felt 	that 	the 	District 	had 	violated 	the contract 	it 	should 	file
a 	grievance.
At 	a special meeting of 	the 	school board 	on March 	18, 	1980,
the Association's proposal 	was 	again put 	on 	the 	agenda 	for
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receipt of 	public 	comment. 	The Association did 	not 	request
negotiations 	on 	the 	effects 	of 	layoff 	at 	that 	time.
The 	District presented 	its 	initial proposal 	for 	a 	successor
contract 	at 	the 	regular public meeting 	of 	the 	school board 	on
April 	8 f 	1980.
On April 	28, 	negotiations 	began on 	the Association's
successor 	proposal.
On May 	12, 	198 0, 	the 	school board met and 	took action
directing 	the 	superintendent 	to give 	notice of 	its 	decision 	to
lay 	off 	20 	of 	the 	25 	employees 	originally 	noticed 	on March 	12,
1980.
On May 13, 	198 0, 	the superintendent gave 	the affected
employees 	the 	official 	notice 	that 	their 	services 	would 	not be
required 	commencing 	with 	the 	1980-81 	school year.
The president of 	the Association, 	Dwaine Rose, 	testified
that 	the Association's 	comprehensive proposal, 	which was
originally presented 	to 	the 	District 	in February 	1980, 	did 	not
refer 	to 	layoffs 	and 	that, 	between March 	3 and 	the beginning of
negotiations 	on April 	28, 	the Association did 	not modify 	the
proposal 	to 	request 	negotiations 	concerning 	the 	effects 	of 	the
layoffs. 	He 	further 	testified that, 	after April 	28, 	the
Association did 	not 	request 	negotiations 	concerning 	the 	layoffs
because, 	in his opinion, 	"it was all over" 	and negotiations
would 	be 	futile.
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It 	was 	stipulated 	that 	the 	layoff of 	20 	teachers 	would 	have
the 	following 	effects 	on 	the 	teachers who 	remained 	for 	the
following 	year:
1. 	The 	class 	size 	for 	the 	next 	school year would 	be
increased 	by 	32 percent.
2. 	Counseling 	duties 	would 	be 	increased 	or 	counselor
workload 	would 	be 	increased.
DISCUSSION
The 	only 	issue 	in 	this case 	is 	whether 	the Association's
communications 	with 	the 	District 	constituted 	a 	proper 	request
to 	negotiate 	the 	impact of 	the District's 	decision 	to 	lay off
certificated 	employees.2
In 	Newman-Crows 	Landing 	Unified 	School 	District 	(6/30/82)
PERB Decision No. 	223, 	the Board 	held 	that 	"although 	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
have 	signified 	some desire 	to 	negotiate. 	. . . " 	Al 	Landers
Dump Truck, 	Inc. 	(1971) 	192 NLRB 	207 	[77 LRRM 1729]; 	Schreiber
Freight Lines 	(1973) 	204 NLRB 1162 	[83 LRRM 1612]; 	NLRB v.
Columbian Enameling and Shaping Co. 	(1939) 	206 U.S. 	292 	[4 LRRM
2In 	Newark Unified 	School District 	(6/30/82) 	PERB
Decision No. 	225, 	the Board 	found 	that 	the decision 	to 	lay off
certificated 	employees 	is 	outside 	of 	the 	scope of
representation. 	Nevertheless, 	the Board held, 	and we
reiterate, 	that 	an employer 	has 	a duty 	to 	negotiate 	the 	impact
of 	layoffs 	on bargaining 	unit members.
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524]. 	Thus, 	the determination as 	to whether a particular
communication 	constitutes 	a proper 	request 	to 	negotiate 	is 	a
question of 	fact 	to be 	determined 	on 	a 	case-by-case 	basis.
Newman-Crows Landing Unified 	School District, 	supra.
The Association argues 	that 	the 	letter 	of March 	10, 	the
request 	to 	address 	the 	school board 	on March 	12, 	the discussion
with 	the 	superintendent on March 	17, 	and 	the 	charge 	itself
filed 	on April 	11, 	1980, 	constituted 	sufficient notice of 	the
Association's 	desire 	to 	negotiate 	the 	effects 	of 	the 	District's
decision 	to 	lay off.
March 	10 	Communication
The March 	10 communication contains, 	in 	its own words, 	a
"prioritized 	list of 	events 	that 	should 	occur 	before 	dismissal
of 	any 	teaching 	personnel or 	disruption 	of 	any 	program." 	The
ALJ 	characterized 	the 	demands 	contained 	therein 	as 	essentially
"political" 	in nature 	and 	outside 	of 	the 	scope of
representation. 3
We 	agree 	with 	the ALJ 	that 	the 	communication 	of March 	10
does 	not constitute 	a proper 	request 	to negotiate. 	Nowhere 	in
the March 	10 	communication 	does 	the Association 	give 	the
3We 	need 	not 	consider 	the 	question 	of 	whether 	the
specific 	demands 	set 	forth 	in 	the 	March 	10 	communication 	are
within 	the 	scope of 	representation, 	since we conclude, 	infra,
that 	the Association made 	no 	request 	to 	negotiate 	on March 	10.
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slightest 	indication 	that 	it wishes 	to meet 	and discuss 	the
District's contemplated 	layoffs. 	Rather, 	the demands 	specified
in 	the 	document 	are 	phrased 	essentially as 	a protest of 	the
District's 	actions. 	As 	such, 	the March 	10 	communication cannot
be 	fairly 	construed 	as 	having 	put 	the 	District 	on 	notice 	that
the Association desired 	to 	negotiate 	the 	effects 	of 	the
layoffs. 	Newman-Crows 	Landing Unified School District, 	supra.
Our 	finding 	is 	consistent with 	the 	position of 	the National
Labor 	Relations Board, 	which 	has 	long 	held 	that 	a 	union 	waives
its 	right 	to bargain where 	it merely 	"protests" 	an employer's
contemplated 	unilateral 	actions, 	but makes 	no meaningful
attempt to 	request negotiations. 	American Buslines, 	Inc.
(1967) 	164 NLRB 1055 	[65 LRRM 1547]; 	Medicenter, Mid-South
Hospital 	(1975) 	221 NLRB 670 	[90 LRRM 1576]; 	Clarkwood Corp.
(1977) 	233 NLRB 1172 	[97 LRRM 1034]; 	Citizens National Bank of
Willmar 	(1979) 	245 NLRB 389 	[102 LRRM 4067]; 	Ciba-Geigy
Pharmaceuticals Division 	(1982) 	264 NLRB No. 	134 	[111 LRRM
1460].4 As 	the NLRB stated 	in Clarkwood 	Corp., 	supra, 	233
NLRB at 	1172:
[A] 	union which 	receives 	timely notice of a
change 	in 	conditions of 	employment must 	take
advantage of 	that notice 	if 	it 	is 	to
preserve 	its 	bargaining 	rights 	and 	not be
4It 	is 	appropriate 	for 	the Board 	to 	take 	guidance 	from
federal 	labor 	law precedent 	when 	applicable 	to public 	sector
labor relations 	issues. 	Firefighters 	v. 	City of Vallejo 	(1974)
12 Cal.3d 608 	[116 Cal.Rptr. 	507].
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content 	in merely protesting 	an 	employer's
contemplated 	action. 	Such 	lack 	of diligence
by a 	union amounts 	to a 	waiver 	of 	its 	right
to bargain. . 	. 	.
March 	11 	School Board Meeting
Association 	President 	Rose 	testified 	that 	on March 	11,
prior 	to 	the 	school board meeting, 	he 	handed 	the 	superintendent
the Association's 	comprehensive proposal 	and 	asked 	"to meet
with 	the Board." 	He made 	no mention of 	the 	intended 	layoffs,
and 	no 	one 	representing 	the Association 	spoke 	at 	the 	school
board 	meeting 	that 	night.
This 	evidence 	suggests 	no 	attempt on 	the part 	of 	the
Association 	to 	request 	negotiations 	concerning 	the effects of
the layoffs.
March 	17 	Conversation
On March 	17, 	members of 	the Association's 	bargaining 	team
gathered 	in 	the 	teachers' 	lounge 	to 	request 	that 	negotiations
begin 	that 	day. 	Association President Rose 	testified 	that 	the
following 	conversation 	occurred 	between 	him 	and 	the
superintendent:
Q. 	All 	right. 	And 	what occurred when 	the
teachers 	were 	waiting 	there 	ready 	to begin
negotiations 	on 	March 	17th?
A. 	I 	happened 	to be 	walking 	through 	the
district office, 	and 	the 	superintendent
asked me 	if he 	could 	see me 	for 	a moment.
And 	so 	I went 	into his 	office, 	and 	I don't
remember 	what 	we 	were 	talking 	about, 	but,
mentioning 	the 	negotiations 	starting 	that
day came 	up, 	and 	he 	said 	that 	negotiations
would 	not 	be 	starting 	that 	day.
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Q. 	Did he 	give 	a 	reason 	why?
A. 	No.
Q. 	Did 	you 	indicate 	to 	him at 	that 	time
whether 	or 	not 	the 	association 	was 	ready 	to
begin 	negotiations?
A. 	Yes, 	and 	indicated 	it 	was part of 	the
contract 	that 	we 	do 	that.
Q. 	And 	was 	there 	any discussion with 	the
district 	as 	to 	when 	negotiations 	would 	begin?
A. 	No. 	He 	said 	that 	if 	we 	felt 	like 	that
was 	a violation of 	the contract 	to 	file 	a
grievance.
Q. 	And 	did 	the 	association 	file 	a grievance?
A. 	No. 	It 	would 	take much 	too 	long 	to do
that.
Thus, 	there 	is 	no evidence 	in the 	record 	as 	to whether 	the
Association 	was 	requesting 	to 	negotiate 	about 	the 	successor
contract proposal or 	about 	the 	effects 	of 	the 	contemplated
layoffs 	on March 	17. 	In 	the 	absence of 	even 	the 	slightest
testimony 	indicating 	that 	layoffs 	were 	mentioned 	in 	the March
17 	conversation, 	we cannot 	conclude 	that 	it constituted a
proper 	request 	to 	bargain.
Filing 	of 	the 	Charge
Finally, 	the Association asserts, 	without any legal
justification, 	that 	the 	filing of 	this 	charge 	constituted 	a
valid 	request 	to 	negotiate.
This 	assertion 	is 	without merit. 	The 	filing 	of 	an 	unfair
practice 	charge 	alleging 	a 	refusal 	to 	negotiate 	in good 	faith
is 	not a request 	to bargain but, 	rather, 	an assertion that an
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employer 	has 	failed 	to 	negotiate 	in good 	faith 	in 	the past.
The 	filing 	of 	the 	charge 	cannot 	itself 	trigger 	a 	duty 	to
negotiate 	if 	the 	employer 	had 	no preexisting 	obligation 	to
bargain. 	Whether 	a 	bargaining 	obligation 	existed 	prior 	to 	the
filing of 	the 	charge 	is 	a matter 	to be 	determined 	at 	a hearing
on 	the merits 	and 	is, 	in no way, 	established 	by 	the charge
itself. 	See American Buslines, 	Inc., supra.
ORDER
Upon 	the 	foregoing 	facts, 	conclusions of 	law, 	and 	the
entire 	record 	in 	this 	matter, 	the 	Public 	Employment Relations
Board ORDERS 	that 	the 	unfair practice 	charge 	in Case
No. 	LA-CE-1139 	is DISMISSED.
Chairperson 	Gluck 	and 	Member 	Tovar 	joined 	in 	this 	Decision.
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