PERB Decision No. 0834E•Chula Vista City School District (PERB 0834E)
Chula Vista City School District (PERB 0834E)
PERB Decision No. 0834ECalperb16.08.1990
Gesamter Gesetzestext
STATE
OF
CALIFORNIA
DECis:;:oN
OF THE
PUBiiIC
EMJ:'LOYMENT
RELATIONS
BOARD
CHULA
VISTA
ELEMENTARY
EDUCATION
ASSOCIATION, CTA/NEA,
Charging
Party,
v.
CHULA
VISTA CITY
SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ )
Case
No.
LA-CE-2038
PERB
Decision
No.
834
August
16,
1990
Appearances:
A.
Eugene
Huguenin,
Jr.,
Attorney,
for
Chula
Vista
Ele ucation
Association,
CTA/NEA;
Littler,
Mendelson,
Fastiff
&
Tichy
by
Richard
J. Currier,
Attorney,
for
Chula
Vista
City
School
District.
mentary Ed
Before
Hesse,
Chairperson; Craib,
Shank and
Camilli,
Members.
DECISION
SHANK,
Member:
This case
is
before the Public
Employment
Relations
Board
(PERB
or
Board) on
exceptions
filed
by
the
Chula
Vista
City
School
District (District) to
a
proposed
decision
issued
by
a PERB
administrative
law judge
(ALJ).
The
ALJ
found
that
the
District
violated section
3543.
5
(a),
{b),
(c),
and (e)
of the
Educational
Employment
Relations
Act
(EERA
or
Act)
1
when
it:
(1)
interfered
with the
rights
of
employ~es
to
participate in the
activities
of the
employee
organization of
its
own
choosing
for representation
purposes
by making improper
comments
about the
Chula
Vista
Elementary Education
Association's (Association)
representation of these
employees
in
its
negotiations
with the District;
(2)
interfered
with the Association's statutory
right to represent
its
members when
it
made
improper
comments
about the Association's representation of
employees
in
its
negotiations with the District;
1EERA
is codified at
Government Code
section
3540
et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code.(3) failed to meet and·negotiate in good faith by refusing to provide the Associat±on with information relevant to negotiating or grievance processing; (4) insisted to impasse on negotiating about subjects outside the scope of representation. We have carefully reviewed the entire record, including the proposed decision, transcript, exhibits, exceptions and responses, and, in accordance with the discussion below, affirm in part and reverse in part the ALJ's conclusion that the District violated EERA. INTRODUCTION The District's exceptions to the ALJ's findings of fact and conclusions of law fall into five major groups. The discussion pertaining to the exceptions will therefore consist of the five main parts, some of which will have subparts. The factual summary pertinent to each exception, or group of exceptions, will be integrated with, or precede, the analysis of each exception. 2 The five groups of exceptions are as follows: I. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE DISTRICT CEASE AND DESIST FROM "INTERFERING WITH THE RIGHT OF EMPLOYEES TO BE REPRESENTED IN THEIR EMPLOYMENT RELATIONS WITHTHE DISTRICT BY THE EMPLOYEE ORGANIZATION OF THEIR CHOICE BY MAKING IMPROPER STATEMENTS THAT TENDED TO UNDERMINE CONFIDENCE INTHE ASSOCIATION." II. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE DISTRICT CEASE AND DESIST FROM "INSISTING TO IMPASSE ON NEGOTIATING ABOUT SUBJECTS OUTSIDE THE SCOPE OF REPRESENTATION " 2 The factual summaries are based primarily on the findings of fact set forth in the ALJ's decision with clarification and elaboration where necessary. They do not include facts not pertinent to a resolution of the issues raised by the exceptions filed by the parties. Those factual findings and legalconclusions set forth in the ALJ's proposed decision that were not excepted to by the parties are binding upon the parties to this case, but have no precedential value except to the extentthey are referred to and incorporated in this decision. 2
III. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE DISTRICT CEASE AND DESIST FROM "REFUSING TO PROVIDE [THE ASSOCIATION] WITH INFORMATION RELEVANT TO CONTRACT ADMINISTRATION, GRIEVANCE PROCESSING AND NEGOTIATIONS. 11 IV. EXCEPTIONS TO THE ALJ'S CONCLUSION THAT THE DISTRICT "DID NOT ENTER INTO THE NEGOTIATIONS WITH A BONA FIDE INTENT TO REACH AGREEMENT. 11 V. EXCEPTIONS RELATED TO THE ALJ'S CONCLUSION THAT THE DISTRICT IS NOT ENTITLED TO AN AWARD OF ATTORNEY'S FEES. GENERAL BACKGROUND The District is a public school employer within the meaning of the EERA. The Association is an employee organization and the exclusive representative, within the meaning of EERA, of a certified unit of certificated employees of the District. The bargaining unit consists of approximately 665 employees in various certificated classifications. The parties had engaged in collective bargaining for a number of years prior to the negotiations at issue in this case. In the spring of 1984, the parties were operating under a collective bargaining agreement (Agreement or CBA) which, by its terms, expired on June 30, 1984. In accord with the provisions of the Agreement covering the reopening of negotiations, on January 31, 1984, the Association submitted to the District its initial proposal for a successor agreement. The Association proposed: (1) to maintain 22 articles from the 1981-84 CBA without change; (2) to delete two articles; (3) to change 27 articles and, (4) to add 4 new articles and an addendum. On March 6, 1984, the District submitted its first proposal to the Association for a new article in the successor agreement pertaining to a mentor teacher program. On March 21, 1984, the District submitted the rest of its initial proposals for a 3
successor agreement. This set of proposals contained suggested amendments to eight articles of the Agreement. The District further proposed that all other articles in the 1981-84 CBA remain "1,1nchanged 11 in the successor agreement. The chief negotiator for the Association was Frank Buress (Buress). Buress was the executive director of the California Teachers Association (CTA), UniServ, South County Teachers United, which provided representational services to the Association. Buress commenced his employment with CTA in December 1983. The District's chief negotiator was attorney Joseph Zampi (Zampi). Zampi was the coordinator of Communication and Staff Negotiations/Personnel Services for the District. He had been involved in District negotiations since 1973. On or about April 23, 1984, the parties met for the first negotiation session. The parties met for further negotiations on April 25, May 9, 11, 14, 16, 21, 25, 30 and June 1, 5, 6, 11, 13, 21, and 26, 1984. At the June 26 session, the parties reached impasse. Following the filings by both parties with PERB for a declaration of impasse, on or about July 2, 1984, PERB determined that impasse existed and appointed a State mediator. During July 1984, two mediation sessions were held, the last of which was on July 18, 1984. On or about July 26, 1984, the mediator certified the dispute to factfinding. Factfinding sessions were held on September 5 and 17-21, 1984. The factfinding report was issued on October 15, 1984. Subsequently, the parties reached agreement on a successor 4
contract, on or about December 14, 1984. The term of the new agreement was 1984-87. DISCUSSION OF EXCEPTIONS I. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE DISTRICT CEASE AND DESIST FROM "INTERFERING WITH THE RIGHT OF EMPLOYEES TO BE REPRESENTED IN THEIR EMPLOYMENT RELATIONS WITH THE DISTRICT BY THE EMPLOYEE ORGANIZATION OF THEIR CHOICE BY MAKING IMPROPER STATEMENTS THAT TENDED TO UNDERMINE CONFIDENCE IN THE ASSOCIATION." Factual Summary Prior to the summer of 1984, the District had not offered a summer school session through the regular school program since 1977. Summer school for 1984 was a three-week session held from late July to mid-August. At the time that negotiations between the Association and the District commenced, summer school teachers were expressly excluded from the bargaining unit represented by the Association. 3 Nonetheless, the parties agreed to negotiate over hours, wages, and other terms and conditions of employment for these employees. Written proposals covering these subjects were exchanged on May 9, 1984. A provision pertaining to summer school teachers was considered as a potential new article in the successor agreement. The alleged improper statements by District administrators were made at various meetings, and encounters between the 3PERB representation case file number LA-UM-332 shows that on May 24, 1984, the Association filed a petition for unit modification to add summer school teachers to the certificated bargaining unit. This petition was later withdrawn, on July 11, 1984. 5
teachers and administrators during the 1984 summer session and following fall. 1. June 21. 1984 Meeting With Summer School Teachers On June 21, 1984, District administrators Dick Slaker (Slaker) and Emerald.Randolf (Randolf) conducted an in-service meeting with the summer school teachers. Approximately 30 teachers attended the meeting. During the discussion, the question of salaries was raised by one of the teachers. In response, Slaker and Randolf stated that the District 11 was trying to get 85 percent of the regular teachers' per diem rate for summer school teachers, but that the salary matter was based on the outcome of negotiations with the Association." Slaker stated further that the 85 percent rate looked favorable. Randolf, who was a member of the District's negotiating team, stated that she was hopeful that the salary matter was going to be resolved, but that it was contingent upon the number of working hours per day finally agreed upon for summer school teachers. The 85 percent proposed salary rate was considerably higher than the daily rate paid to summer school teachers in 1977. As of June 21, 1984, the District and the Association had agreed to the 85 percent of per diem rate of pay for summer school teachers; however, their differences over hours and other terms and conditions of employment were still unresolved. 2. The August 7. 1984 Meeting On August 7, 1984, the Association's Chief Negotiator Buress and the Association President Carol Owen (Owen), met with District Superintendent Lewis Beall (Beall) concerning the status 6
of several pending grievances. These grievances were unrelated to summer school teachers. However, before the meeting ended, Beall brought up the subject of summer school teachers' salaries. Beall, who had begun his employment with the District approximately one month prior to August 7, stated that he was unfamiliar with the Association's position on this issue. He expressed concern that the summer school salaries had to be paid at the 1977 rate until final agreement was reached with the Association on the summer school negotiations. After further discussion of this topic, Beall left the room and shortly thereafter returned with a written proposal that he asked Buress and Owen to sign. The proposal contained language to the effect that by agreeing to an immediate increase in the summer school teacher salary rate, the Association would forgo further negotiations with the District on the salary issue. However, since Beall would not assure Buress and Owen that the percentage of increase would be,at 85 percent of the per diem rate, they refused to sign the statement. 4 Superintendent Beall thereafter expressed disappointment that the Association "was keeping money from unit members' that the District wanted to pay." Owen replied, that since the District had taken the position that summer school teachers were not in the certificated bargaining unit, the Association would 4 The District excepts to some of the ALJ's factual findings pertaining to an allegation in the charge that the District acted illegally in attempting to secure a waiver from the Association on the summer school salary issue. Since the ALJ did not find any violation with respect to this allegation in the charge, any factual errors were not prejudicial. 7
not file an unfair practice~charge if the District paid higher salaries to summer school teachers before the parties actually reached final agreement on this subject. Beall countered this remark by stating that he was uncertain about the District's right to act unilaterally in view of the ongoing negotiations. Later that day, Buress called Beall for clarification of the proposed waiver language. Beall said the language concerned salaries only and that even if the Association signed the agreement, it did not mean that the parties recognized summer school teachers as members of the bargaining unit. 5 There was an exchange of letters between Buress and Zampi on August 14 and August 16, 1984, about the District's proposed waiver. Zampi's August 16 letter indicated that the District's August 7 offer was still open to the Association. However, after August 16 there were no further discussions or meetings about the proposed waiver. 3. July/August Meetings With Summer School Teachers In late August 1984 Superintendent Beall met with a group of teachers in a meeting initiated by the teachers to acquaint the superintendent with the temporary teacher situation in the District. Employees classified by the District as temporary teachers are included in the bargaining unit represented by the 5PERB representation casefile number LA-UM-348 shows that on August 29, 1984, the Association filed a second unit modification petition proposing to add summer school teachers to the certificated bargaining unit. On September 19, 1984, the District indicated to PERB that it had no opposition to the petition provided that the requisite proof of support was met. On October 10, 1984, PERB issued a unit modification order adding summer school teachers to the unit. 8
Association. At the end of the meeting, Carol Clark, one of the teachers present, asked Beall if he was aware that the nine temporary teachers who taught summer school were paid at the substitute teacher rate of $31.20 per day. Beall replied, that he did not know about this, but would look into it. He also said something to the effect that "the whole (salary) thing could have been resolved if the union (Association) had agreed to the District's offer." Clark testified that she understood Beall's comment to mean that summer school teachers could have been paid considerably more than $31.20 per day if the Association had not rejected the District's offer. 6 4. Late August/Early Fall Meetings Sometime in late August or early September 1984, Superintendent Beall met with the regular school teachers at Mueller School during a faculty meeting. In response to a question from a teacher about salaries for summer school teachers, Beall stated, "We wanted to pay you more, but your Association would not let us." Following Beall's comment, no further remarks were made during the meeting about the salary issue. In the fall of 1984, during a chance meeting with Slaker at her school site, Carol-Clark mentioned the summer school pay issue to Slaker. Slaker replied that, "the Union's refusal of 6 We reject the District's exceptions to some of the ALJ's factual findings regarding what occurred at the meetings in July and August of 1984. In any event, since we find no violation based on statements made in these meetings, the factual errors, if any, are harmless error. 9
the District's offer is the reason that no settlement was reached on this issue." 7 Analysis In Carlsbad Unified School District (1979) PERB Decision No. 89, page 10, the Board set forth the test for determining when an employer's actions interfere with the rights of employees guaranteed by EERA. Under the Carlsbad test, a charging party establishes a prima facie case of interference under EERA section 3543.S(a) only "[w]here the charging party establishes that the employer's conduct tends to or does result in some harm to employee rights granted under the EERA. " As more fully explained below, employer speech causes no cognizable harm to employee rights granted under EERA unless it contains "threats of reprisal or force or promise of a benefit." Therefore, a prima facie case of interference cannot be based on speech that contains no "threats of reprisal or force or promise of a benefit." The District contends, in its exceptions, that the employer statements in qu~stion constitute protected employer free speech 7The District excepts to conclusions of law regarding statements made by Dick Slaker on the grounds that the charge did not contain allegations about Slaker's participation in the July/August 1984 meetings. In fact, the ALJ's factual findings regarding Slaker are based on a meeting that allegedly took place in the fall of 1984, a meeting which is not specifically referenced in the charge. The District asserts that pursuant to Tahoe-Truckee Unified School District (1988) PERB Decision No. 668, Slaker's statements may not be relied upon to support a finding of a violation. However, since we find no violation based upon Slaker's statements, as discussed below, we need not decide the Tahoe-Truckee issue raised by this exception. 10
and therefore caused no cognizable harm to the employees. We agree. In Rio Hondo Community College District (1980) PERB Decision No. 128, pages 18-20, this Board looked to the National Labor Relations Act (NLRA) for guidance in formulating a test for determining when employer communications will be considered violative of the provisions of EERA. Specifically, the Board examined section 8(c) of the NLRA which provides: The expressing of any views, argument, oropinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal orforce or promise of benefit. 8 Noting that EERA contains no provision parallel to section 8(c), the Board nevertheless found that "a public school employer is entitled to express its views on employment-related matters over which it has legitimate concerns in order to facilitate full and knowledgeable debate" and set forth the test to be applied as follows: 8 The Higher Education Employer-Employee Relations Act contains virtually identical language in Section 3571.3 which states: The expression of any views, arguments, oropinions, or the dissemination thereof,whether in written, printed, graphic, or visual form, shall not constitute, or be evidence of, an unfair labor practice underany provision of this chapter, unless such expression contains a threat of reprisal,force, or promise of benefit; provided,however, that the employer shall not express a preference for one employee organization over another employee organization. 11
[T]he
Board
finds
that
an
employer's
speech
which
contains
a
threat
of
reprisal
or
force
or
promise
of
benefit will
be
perceived
as
a
means
of
violating
the
Act
and
will,
therefore,
lose
its
protection
and
constitute
strong
evidence
of
conduct
which
is
prohibited
by
section
3543.5
of
the
EERA.
(Id.
at
p.
20.)
Whether
the
employer's
speech
is
protected or
constitutes
a
proscribed
threat
or
promise
is
determined
by
applying
an
objective rather
than-a subjective
standard.
(California
state
University {California
State
Employees'
Association.
SEIU
Local
1 0 OO ( 1 9 8 9 )
PE
RB
Dec
is
ion
No
. 7 7 7 - H , P . D . , p . 8 . )
Thus
,
11
the
charging
party
must
show
that
the
employer's
communications would
tend
to
coerce
or
interfere
with
a
reasonable
emplo~ee
in the
exercise
of
protected
rights."
The
fact,
"That
employees
may
interpret
statements,
which
are
otherwise
protected,
as
coercive
does
not
necessarily
render those statements unlawful."
(Regents
of
the
University of
California
(1983)
PERB
Decision
No.
366-H,
fn.
9,
pp. 15-16;
BMC
Manufacturing Corporation
(1955)
113
NLRB
8 2 3 , [ 3 6
LRRM
1 3 9 7 ] . )
The Board
has
also held
that
statements
made
by
an employer
are to
be viewed
in
their
overall context
(i.e.,
in
light
of
surrounding circumstances) to
determine
if
they
have
a
coercive
meaning.
(Los
Angeles
Unified School
District
(1988)
PERB
Decision
No.
659,
p. 9, and
cases
cited therein.)
Additionally, the
Board has placed considerable weight
on
the accuracy of the content of the speech
in determining whether
the
communication
constitutes
an
unfair labor practice.
(Alhambra City
and High School
Districts
(1986)
PERE
Decision
No.
560, p.
16; Muroc
Unified School
District
(1978) PERB
Decision
12No. 80, pp. 19-20.) Thus, where employer speech accurately describes an event, and does not on its face carry the threat of reprisal or force, or promise of benefit, the Board will not find the speech unlawful. On the other hand, the fact that employees do not actually feel threatened or intimidated by the employer's comments does not necessarily insulate those comments as protected. (See National Labor Relations Board v. Triangle Publications (3d Cir. 1974) 500 F.2d 597.) Neither are the facts that the challenged statements were brief or made to only one person determinative of their coercive nature. North American Aviation, Incorporated (1967) 163 NLRB 863 [65 LRRM 1017]. Applying the above principles to the facts of the instant case, we conclude that none of the statements in question contain a threat of reprisal or force or promise of a benefit. The content of the statements was not such that a reasonable employee would have felt intimidated or coerced. In fact, none of the teachers who heard the statements testified that they felt intimidated or threatened. Although one teacher, Carol Clark, testified she felt "pulled or torn" in her feelings about whom to believe concerning the real reason for the outcome of the salary negotiations, that fact is insufficient to transform mere statements of fact or opinion into the proscribed threats or promises. Furthermore, the statements cannot be fairly characterized as factually inaccurate. The statements merely attempted to 13
communicate the status of the negotiations and accurately portrayed the situation as one of give and take. Finally, the context in which the statements were made was not coercive. The statements were not, as the ALJ suggested, all made in formalized meetings. The statements made at the in service meeting (June 21, 1984) were made in response to a specific question from a teacher, as were the statements made at the faculty meeting that took place in early fall. One of the challenged statements was made in response to a question from a teacher at a meeting in August of 1984 called by temporary teachers to discuss issues pertaining to that group of employees. Some statements were made at a grievance meeting, August 7, 1984, called to discuss grievances having no connection to the summer school teacher salary issue. Finally, one of the statements was made at a chance meeting, in the fall of 1984, between a school principal and a teacher. We find the statements in question are not "threats of reprisal or force or promise of a benefit." They instead constitute protected employer free speech, and therefore do not result in, or tend to result in some harm to employee rights granted by EERA. Thus, the Association failed to establish a prima facie case of interference under Carlsbad. 9 9 Since we find no prima facie case of interference, we need not apply, as did the ALJ in this case, the remainder of theCarlsbad test which balances the extent of the harm to theemployees against the interests of the employer. 14
II. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE DISTRICT CEASE AND DESIST FROM "INSISTING TO IMPASSE ON NEGOTIATING ABOUT SUBJECTS OUTSIDE THE SCOPE OF REPRESENTATION The ALJ found that the District illegally insisted to impasse upon the following proposals which she concluded were outside the scope of bargaining: A. Three grievance proposals that limited the Association's right to: (1) Present grievances in its own name; (2) Be physically present at all grievance meetings, whether informal or formal, even if the employee involved does not seek representation by the Association; and (3) Take grievances to arbitration without the concurrence of the named grievant. B. A proposal to maintain prior contract language that provides that the parties waive their right to seek unit modification or clarification during the term of the contract; and C. A proposal that the summer school article in the contract apply only to employees who served the employer as permanent, probationary or temporary employees in the previous school year. Each proposal will be examined separately. A. THE GRIEVANCE PROPOSALS Article 7 of the 1981-84 CBA contained provisions pertaining to the grievance procedure. Initially, the Association proposed numerous substantive amendments to this article. The District's initial proposal suggested that the provisions of Article 7 remain unchanged in the successor agreement. (1) Proposal That Association Waive the Right to Present Grievances in its Own Name. 15
Factual Summary Section 7.1 of the existing Agreement contained the definitions of relevant terms of the grievance procedure. The Association proposed to amend section 7.1.1 which defines a "grievance." This section states: [A] "grievance" is a written claim by an employee, or group of employees, that there has been a violation, misinterpretation, or misapplication of the Agreement which adversely affects the employee or group of employees. (Underlining added.) The Association proposed to delete the underlined language above, which it says is, "unnecessary and open to varied interpretation." Section 7.1.2 defines a "grievant" as "an employee, or group of employees, making the claim." The Association also proposed to amend this section. The proposed changes in both of these sections were intended to permit the Association to be listed as a grievant in sections 7.1. 1 and 7.1.2. The Association believed that these additions would clarify its right to grieve as set forth in section 7.3.4.4., this latter section states: The Association, in behalf of the affected teachers, may initiate a grievance which affects more than one employee in a single building, or employees in more than one building, at Level II. The District at first proposed "no change" in Article 7. Later, in its June 21 settlement proposal, the District proposed several modifications to Article 7. In particular, it counterproposed the following language for section 7. 1.2: 16
A "grievant" is an employee, or group of employees, making the claim. The right of the Association to act in the capacity of "grievant" shall be in accordance with Article 7.3.4.4. In the Association's June 22 written response to the settlement proposal, the Association rejected this counterproposal as a "pure status quo position" which the Association asserted failed to address the Association's problem with the District's recent interpretation of section 7.3.4.4. The dispute over section 7.3.4.4 was based on differing interpretations about whether this language permitted the Association to grieve in its own name in any circumstance or whether the right was limited to the type of situation stated in section 7.3.4.4. The Association took the position that, as a party to the contract, it had a legal right to file grievances in its own name and that it was no longer willing to waive that right. The parties' positions regarding these proposals remained unchanged at the time that impasse was declared in June and throughout the entire impasse procedures. Analysis The District excepts to the ALJ's finding that by insisting to impasse on the grievance proposals which would limit the Association's right to file grievances in its own name, the District failed to negotiate in good faith in violation of section 3543.S(c). Specifically, the District argues that: (1) the Association has no EERA right to present grievances in its own name; (2) the Association breached its obligation to "take a 17
firm position" prior to reaching impasse that the proposals in question were outside the scope of representation; and (3) it was the Association, and not the District, that insisted to impasse on these grievance proposals. a. The grievance proposals are nonmandatory subjects of bargaining. In South Bay Union School District (1990) PERB Decision No. 791, a majority of this Board found, for different reasons, that a proposal for a contract provision providing that the Association had a right to file grievances in its own name was a nonmandatory subject of bargaining. Consequently, the Board held, the school district violated section 3543.5(c) by insisting to impasse on the maintenance of contract language denying that right. Although the Board members who wrote the lead and concurring opinions in South Bay both concluded that the proposal was a nonmandatory subject of bargaining, they reached that result through different analyses. Member Craib, noting that the Association's right to grieve in its own name does not fall within the subjects of bargaining enumerated in EERA section 3543.2, utilized a modified version of the test set out in Anaheim Union High School District (1981) PERB Decision No. 177 to resolve the question of whether the proposal in question is a man d a t ory sub Jee . t o f b argaining. ' ' 10 Having found the first two 10 The PERB will find a subject negotiable even though it is not specifically enumerated as such in section 3543.2 if: (1) it is logically and reasonably related to hours, wages or an enumerated subject under "terms and conditions of employment," (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory 18
prongs of the Anaheim test satisfied, Memb~r Craib modified 11 the third prong of the Anaheim test to address the situation where it is the employee organization, rather than the employer, that is refusing to bargain over a proposal allegedly outside the scope of bargaining. The modified third prong asks the question of whether compelling the exclusive representative to negotiate its right to present and process grievances in its own name would "significantly abridge the organization's freedom to exercise those representational prerogatives essential to the achievement of the organization's mission as exclusive representative." Finding the third prong of the test unsatisfied, Member Craib concluded that the proposal in question is nonmandatory. The ALJ, in the instant case, applied essentially the same analysis to reach her conclusion that all of the grievance proposals were nonmandatory. Member Camilli, who wrote the concurring opinion in South Bay, found the proposal in question to be a nonmandatory subject of bargaining based upon his conclusion that the association has a statutory right, pursuant to EERA section 3543.l(a), to file influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer's obligation to negotiate would not significantly abridge the employer's freedom to exercise those managerial prerogatives (including matters of fundamental policies) essential to the achievement of the employer's mission. (Anaheim Union High School District (1981) PERB Decision No. 177; test approved in San Mateo City School District v. PERB (1983) 33 Cal.3d 850 [191 Cal.Rptr. 800] .) 11 The modification of the Anaheim test was originally suggested in a proposed decision in the case of San Diego Unified School District (1987) PERB Hearing Officer Decision No. HO-U-314. 19
grievances in its own name. He found it unnecessary to apply the Anaheim test to reach this result. 12 In this case, based on the analysis below, we adopt the rationale set forth in Member Camilli's concurrence in South Bay, but only insofar as it concludes that the exclusive representative's right to file grievances in its own name is a statutory right, and that a proposal that the exclusive representative waive that right is a nonmandatory subject of bargaining. In Marine Shipbuilding Workers v. NLRB (3rd Cir. 1963) 320 F.2d 615, [53 LRRM 2878], a case cited and relied upon by the ALJ, the proposal in question required the signature of each employee involved before a grievance could be processed. In finding the employer's insistence on the proposal to impasse to be an unfair labor practice, the court observed: [T]he Supreme Court has defined mandatory subjects as those within the phrase "wages, hours, and other terms and conditions of employment [citati6ns]." It is clear to us that Bethlehem's proposal does not come within the scope of that phrase. Although at first glance it might appear to be a "condition of employment," actually the 12 Member Camilli also noted that he would find the exclusive representative's right to grieve in its own name to be not only a statutory right, but a statutory right that is nonwaivable by theunion. Here, the Association has not argued that the statutory rights in question are nonwaivable, but only that it was unwilling to waive them. Since this case involves the Association's unwillingness to waive its statutory right torepresent its members, we find it unnecessary to decide whether a waiver of such a right, if agreed to by the Association would be legal. Chairperson Hesse dissented in South Bay. finding the rightof a union to file grievances in its own name to be a mandatory subject of bargaining. 20
effect of the proposal is to limit the union's representation of the employees and not to condition the employees' employment. (Emphasis added.) Under EERA, the Association's statutory right to represent its members is found in Government Code section 3543.l(a) which provides, in part, that 11 employee organizations shall have the right to represent their members in their employment relations with public school employers .. II PERB has recognized the extent of that right in a number of cases. In Modesto City Schools (1983) PERB Decision No. 291, the Board recognized that, "[t]he grievance procedure is perhaps the most important point at which employee organizations represent their members in their day-to-day employment relations." (.liL.. at p. 28.) In Mt. Diablo Unified School District. et al. (1977) EERB Decision No. 44, the Board held that, "the grievance process is an 'employment relation' within the meaning of 3543.l(a) and therefore employee organizations have a statutory right to represent employees in the presentation of their grievances." In Rio Hondo Community College District (1982) PERB Decision No. 272, the Board found the District violated EERA by its refusal to permit the attendance of a union representative at an informal grievance discussion. The Board acknowledged the "right of employees to join together in an organization which may serve as the vehicle by which they assert their interests in their employment relationship. 11 The Board also noted: [I]t is the nature of grievance resolution that the manner in which a single employee's grievance is resolved may serve as a model to be followed should another employee raise the same issue in the future. Thus, while the 21
immediate impact of a grievance resolution may affect only the single employee directly involved, the resolution is nevertheless a matter of collective concern for the individual's fellow employees. (Id. at p. 10.) In Chaffey Joint Union High School District (1982) PERB Decision No. 202, the Board cited federal precedent in observing: [T]he processing of grievances is a form of continuing negotiations over the written agreement [citations] in which the adjustment of the grievance provides the meaning and content to the general and often deliberately ambiguous terms of the agreement [citations]. (Id. at p. 8.) Thus, we adopt that portion of the ALJ's analysis which states: The system of labor relations created by the EERA envisioned employees acting collectively through a chosen exclusive representative to bargain with their employer about matters within the scope of representation. The grievance procedure is a contractual tool for enforcing the results of a negotiated agreement. For contract violations to be grievable and arbitrable only by the initiation of an individual employee runs counter to the EERA's statutory system of collective action. In a system of collective bargaining, the ability to challenge contractual [sic] violations must lie with the party that negotiated the contract, i.e., the exclusive representative. Any other system makes the viability of the contract dependent upon the willingness of each unit member to stand individually. (Proposed decision at p. 131.) We therefore affirm the ALJ's conclusion that the District violated EERA by insisting to impasse that the Association waive its statutory right to file grievances in its own name, but reject the ALJ's reliance on a modified version of the Anaheim test to reach that result. Application of the Anaheim test to 22
determine the negotiability of the grievance proposals is unnecessary since the District is not actually insisting to impasse on a term or condition of employment, but rather is insisting that the Association waive a basic statutory right. (See discussion of Marine Shipbuilding Workers, supra.) b. The Association did not breach any legal obligation to take a firm position that the grievance proposals not be included in the contract. The District contends that the Association had an obligation to and failed to assert, prior to impasse, that the grievance proposals were outside the 13 scope of representation. In Poway Unified School District (1988) PERB Decision No. 680, PERB held that an employer may bargain over a permissive and nonmandatory subject of bargaining without waiving the right thereafter to take a position that it is a nonmandatory subject. Clearly, the District's freedom under Poway to bargain over its proposal that the Association waive its statutory rights did not impact the Association's freedom to bargain, or, having bargained, not to agree to the District's counterproposals. Furthermore, C while a prior agreement may be some evidence that an exclusive representative might again consent to a nonmandatory contract provision, a permissive subject does not become mandatory by 13 The District's reliance on the cases of Jefferson School District (1980) PERB Decision No. 133, and Healdsburg Union High School District and San Mateo City School District (1984) PERB Decision No. 375 for this proposition is misplaced. The essence of the holdings in both Jefferson and Healdsburg, is that where an ambiguous proposal is arguably negotiable, a party cannot refuse to bargain about that proposal based upon its own perception that the proposal is outside the scope of bargaining, but must seek clarification of the proposal. In this case, the proposals themselves were not ambiguous. 23
virtue of such an agreement. (Poway Unified School District, supra, PERB Decision No. 680.) On the other hand, while the parties may engage in negotiations over proposals dealing with permissive, nonmandatory subjects of bargaining, when one party subsequently decides to take the position that the nonmandatory proposal not be included in the contract, that party must express its opposition to further negotiation on the proposal as a prerequisite to charging the other party with bargaining to impasse on a nonmandatory subject of bargaining. (Lake Elsinore School District (1986) PERB Decision No. 603; Laredo Packing Company (1981) 254 NLRB 1 [106 LRRM 1350]; Union Carbide Corporation. Mining and Metals Division (1967) 165 NLRB 254, 255, enforced sub nom. Oil, Chemical and Atomic WorkerJs International Union, Local 3-89, AFL-CIO v. National Labor Relations Board (D.C. Cir. 1968) 405 F.2d 1111.) In Lake Elsinore, having concluded that a settlement proposal presented by the district to the association was a nonmandatory subject of bargaining, this Board noted that: ... the mere proposing of these terms for settlement ... was not per se unlawful or in violation of the District 1 s duty to bargain in good faith. [Citations.] But, on the same date that the District presented this initial settlement offer to [the Association], [the Association] clearly placed the District on notice that it would not bargain over the non-mandatory subjects, i.e., the withdrawal of the pending grievances and unfair practice charges. [The Association 1 s chief negotiator] even went further by stating to the District that if it persisted in its position regarding the non mandatory subjects, [the Association] 24
considered that the District was ttlaying the groundwork for an unfair practice charge." Hence, even though the District was entitled to propose terms for settlement, which it hoped would finally resolve the numerous disputed matters between the parties and included non-mandatory bargaining subjects, it could not legally insist upon [the Association's] acceptance of the "total package" in the face of a clear and express refusal by the [Association] to bargain over the non-mandatory aspects of the settlement proposal. (Id. at pp. 27-28.) Thus, the question under the Lake Elsinore test is whether, at any time, the Association put the District on notice that it would not bargain over the grievance proposals. After observing that Buress testified that the Association believed it had a legal right to be a named grievant, the District asserts that: "There is no credible evidence that the Association prior to impasse asserted that it had a legal right under the EERA to be a named grievant." (District's exceptions, pp. 22-23.) In fact, the Association did indicate to the District that it intended to stand on its legal right to represent its members by filing grievances in its own name. The District's attorney elicited the following testimony on cross-examination of Frank Buress, the Association's chief negotiator: Q: "Did the Association take this issue [the Association 1 s right to file grievances in its own name] to factfinding?" A: ~I believe so, yes." Q: "Prior to and incl this matter, did the Association or you ever indicate to the District that it was insisting on a matter outside the scope of representation?" uding factfinding in A: ttwe believed we had a legal right and that we weren 1 t prepared to agree to language 25
which the District asserted was a waiver of that right and that we notified them that we wished to withdraw any waiver implied by the current language." Q: "And what was that legal right that you discussed with the District, if you discussed it? What specifically was the legal right that we were discussing with the District?" A: "We believed that as a party to the contract we had in the absence of a restriction that says the Association may not grieve, a legal right to file grievances. 11 Q: "So if I may rephrase it and put it to you this way: you indicated to the District that the Association had a legal right to be a named grievant, is that correct?" A: "And that we were not going to agree to waive that through the District's interpretation of the current Contract language." (Transcript, Vol. IX, pp. 1020- 1021.) Obviously, this case is not as clear as that addressed by this Board in Lake Elsinore. Whereas in Lake Elsinore the association clearly stated that the district's persistence in bargaining over a nonmandatory subject of bargaining would result in the filing of an unfair practice charge, in this case we have no such unequivocal statements. Nevertheless, while the Association did not explicitly state that the proposals in question were "outside the scope of bargaining," the Association did make clear its contention that it was improper for the District to insist on language which it believed deprived the Association of its statutory rights. Notably, the District introduced no testimony from its own witness and chief negotiator to dispute the testimony set forth above. While this is a close case, we find the Association's statements sufficient to put the District on notice that the Association was unwilling to waive its statutory right to represent its members. 26
c. The District did insist to impasse on the grievance proposals. The District argues that it was the Association, and not the District, that insisted on taking the grievance proposals to impasse. At the time that impasse was declared, the Association was proposing that the grievance provisions in the prior contract be modified to reflect what the Association believed was its statutory right to represent its members in their employment relations with their employer. The District counterproposed, first by insisting on maintenance of the grievance provisions of the prior contract, and then by proposing some modifications, that the Association waive that statutory right. Contrary to the District 1 s assertion that the Association pushed the parties to impasse, it is apparent from the record that both parties realized, at essentially the same time, that they had reached an impasse in their negotiations. During the hearing, the District took pains to try to establish that it was the Association that first uttered the word "impasse." The Association countered that it was the District that filed the first declaration of impasse form. Neither of these facts is determinative. PERB must look to the history of the bargaining, the substance of the proposals, and the contents of the declarations of impasse to determine whether a party can be considered to have "insisted to impasse" on a particular proposal. In this case, a review of the bargaining history and the substance of the proposals and counterproposals supports the ALJ 1 s conclusion that the District insisted to impasse on its 27
counterproposals that the Association agree to contract language which constituted a waiver of the Association 1 s statutory right to file grievances in its own name. 14 Throughout the negotiations and impasse procedures, the District maintained its status quo position. By refusing to relinquish the nonmandatory subject once the Association communicated its refusal to include the nonmandatory subject in the collective bargaining agreement, the District violated section 3543.S(c). (2) Proposal That Association Waive Right to be Physically Present at Grievance Meetings Where Employee has not Requested Representation. Factual Summary The Association asserts that the District insisted to impasse on a provision giving the employer the right to resolve grievances with individual employees without the intervention of the Association. The disputed language is found in sections 7.2. 1 and 7.4.2 of the 1981-84 CBA. Section 7.2.1 states the purpose of the grievance procedure and reads as follows: 7.2.1. The purpose of this grievance procedure is to secure, at the administrative level closest to the grievant, solutions to problems which may arise from time to time. The parties agree that confidentiality at any level should be maintained. The grievance procedure shall not be construed as in any way hindering, discouraging, or denying the settlement of problems outside the structure of the grievance procedure. (Emphasis added.) The Association proposed to delete the language underlined above. 14 In contrast, the record shows the Association lawfully insisted on the elimination of a provision that was in the prior contract and that covered a nonmandatory subject. 28
Section 7.4, et. seq., pertains to the rights of unit members to repres~ntation. Section 7.4.2 stated the following: 7.4.2. An employee may be represented at all stages of the grievance procedure by himself/herself, or at his/her option, with a representative selected by the Association. If an employee is not represented by the Association or its representative, the Association shall have the opportunity to be present and to state its views at all formal stages of the grievance procedure. (Emphasis added.) The Association proposed to delete the word 11 formal 11 underlined above. The Association viewed the language of section 7.2.1 as allowing unit members to utilize a nonnegotiated procedure to resolve contract-related problems. The term "formal" in section 7.4.2 was regarded as permitting an employee to adjust grievances without the involvement of the Association at all levels of the grievance procedure. The District initially proposed no change in either of these sections of the Agreement. The parties had extensive negotiations over the grievance procedure at the May 21, June 21 and June 26 bargaining sessions. In its June 19 counterproposals, the Association took the position that its proposed modification of section 7.4.2 was not necessary if its suggested changes to sections 7.2.1 and 7.3.1 were accepted. 15 15 s ection 7. 3. 1 stated as follows: 7.3.1 Informal Level The grievance [sic] will first discuss the grievance with the appropriate principal or immediate supervisor with the objective of resolving the matter informally. 29
Analysis The District excepts to the ALJ's finding that "the term 'formal' in Section 7.4.2 was regarded as permitting an employee to adjust grievances without the involvement of the Association at all levels of the grievance procedure." The District contends that the language only states that the Association shall be present at all formal stages. On this point, the District is technically correct. The District is also correct in its observation that the contract language is actually silent as to whether the Association may be present at any informal level of the grievance procedure. The District admits, however, that the existing contract language could be fairly interpreted as excluding the Association from being present at informal grievance meetings where it is not representing the employee grievant. Citing EERA section 3543, the District argues that the Association has no right to be physically present at grievance meetings where employees do not seek representation by the Association. We agree. The Association's right to represent, found in section 3543. l(a), is limited by the rights granted to employees in section 3543, which provides, in pertinent part: . Any employee may at any time presentgrievances to his employer, and have such grievances adjusted, without the interventionof the exclusive representative, as long as the adjustment is reached prior to arbitration. and the adjustment is not inconsistent with the terms of a written agreement then in effect; provided that the public school employer shall not agree to a resolution of the grievance until the exclusive representative has received a copy of the grievance and the proposed resolution 30
and has been given the opportunity to file a response. (Emphasis added.) This section permits employees to participate in grievance processing with their employer without the intervention of the Association. The Association 1 s right to represent and enforce its collective bargaining agreement on behalf of all unit members is protected by the proviso in section 3543, which requires that the exclusive representative be notified of the grievance and proposed resolution, and be afforded an opportunity to respond. Since we find that the District's proposals in this regard do not infringe on the Association's statutory right to represent its members, and since individual employees have a statutory right to adjust their grievances without the intervention of the Association pursuant to section 3543, we find the District was within its right in insisting to impasse on its proposal restricting the Association from being physically present at informal grievance meetings. 16 (3) Proposal Limiting Association's Right to Arbitrate Grievances. Factual Summary The Association alleged that the District insisted to impasse on a provision that prohibits the Association from taking a grievance to arbitration without the consent of the individual 16 Since we find that the District did not violate the EERA in insisting to impasse on this proposal, we need not address the District 1 s arguments that the Association insisted to impasse on the proposal and that the Association failed to "take a firm position" prior to reaching impasse that the proposal was outside the scope of representation. 31
grievant. The dispute arose after the Association proposed to delete the language to which it objected from section 7.3.6 of the grievance procedure. Initially, neither party proposed a change in section 7.3.6. During the May 21 negotiations, however, the Association submitted a written proposal to the District to delete the following language which it considered "unnecessary." The disputed clause reads: [I]f the grievant is not satisfied with the disposition of the grievance at Level III, the grievant may, within ten (10) duty days, file a written request with the Association that the Association submit the grievance to arbitration. The Association will determinewhether the matter may go to Level IV. The Association contended that this language concerns a matter that should be determined solely between the Association and the affected member(s) of the bargaining unit. The District submitted a written counter to this proposal in the June 21 settlement proposal. It stated, in relevant part: [T]he Association will determine whether the matter (grievance) goes to Level IV providing the grievant wishes the grievance to be appealed to arbitration. In its June 25 analysis of the settlement proposal, the Association rejected this counter, stating that it had "absolutely no affect [sic] on status quo ... II (Underline in original.) The District offered no additional oral or written counterproposals at this time prior to the declaration of impasse. The arbitration issue remained in dispute through the factfinding process. In its factfinding submission, the District 32
stated that its June 21 proposal represented a "compromise" position, in that the individual grievant would no longer be required to file a written request with the Association in order for the matter to be submitted to arbitration. The Association took the position that the District's insistence on its proposal was improper. Analysis In its exceptions, the District argued that: ( 1) the Association has no EERA right to take a grievance to arbitration without the concurrence of the grievant; (2) the Association breached its obligation to "take a firm position" prior to reaching impasse that the proposal was outside the scope of representation; and (3) it was the Association, and not the District, that insisted to impasse on the grievance proposals. The District's argument that the Association has no EERA right to take a grievance to arbitration is rejected. As is the case with the grievance proposal prohibiting the Association from filing in its own name, the proposal limiting the Association's ability to take a grievance to arbitration without the grievant's approval impinges upon the Association's statutory right to represent its members and is therefore a nonmandatory subject of bargaining. Clearly, limiting an exclusive representative to arbitrating only those grievances an individual employee has requested or consented to arbitrate, has the same adverse impact upon the exclusive representative's ability to represent the "unit" in its employment relations, as 33
does requiring the individual employee's consent to initiating the grievance. Contrary to the District's assertion, we find that the Association did take a firm position, prior to impasse, that the proposal in question was outside the scope of representation. The following testimony was elicited by the District's attorney on his cross-examination of Buress. Q: 11 What was the specific thrust of the charge in Paragraph 12(E), and does it relate to specific language that was in the collective Bargaining Agreement which is Association Exhibit No. 3? 11 A: "The Association believed that it had the ability to determine whether or not a dispute should be interpreted through the arbitration provisions it had negotiated in the Agreement, and so informed Mr. Zampi. We believed it was improper, and so told him for the District to insist on language which allowed an individual employee to determine whether or not the organization could proceed to arbitration. 11 (Transcript, Vol. IX, p. 1026.) As was the case with the proposal prohibiting the Association from filing grievances in its own name, the Association never stated explicitly that the arbitration proposal was outside the scope of bargaining. The Association did inform the District, however, of its position that the District's insistence on the proposal was improper. Finally, we reject the District's argument that it was the Association, and not the District, that insisted to impasse on the arbitration proposal. As noted above, the issue remained, as did the other grievance issues, in dispute through the 34
factfinding process. The District's proposed language remained part and parcel of its proposal for settlement of the contract. By failing to relinquish the nonmandatory subject once the Association communicated its refusal to include the nonrnandatory subject in the collective bargaining agreement, the District violated section 3543.S(c). B. UNIT MODIFICATION/CLARIFICATION PROPOSAL Factual Summary Section 2.1 of the CBA names by title, those classifications expressly included and excluded from the bargaining unit. The major thrust of the proposed modification to section 2.1 was to update the titles of those classifications already in the unit and add to the unit summer school teachers and long-term substitutes who were expressly excluded. Section 2.2 read as follows: The Board and Association agree that the composition of the bargaining unit is appropriate and that they will not seek a clarification or amendment of the unit, either as to the specific exclusions or the specific inclusions except that both parties to this agreement shall attempt to agree on the status, for purposes of recognition, of any disputed newly created position in the unit as a result of a change in the job description. If the parties cannot agree, either or both parties may submit the dispute to PERB, which is the proper agency to determine said dispute. Thereafter, should there be a decision by PERB regarding classification additions or deletions specific to the above bargaining unit listings, this Section shall be amended to abide by that decision. (Emphasis added.) The Association proposed to delete all of the language of section 2.2 and replace it with new language pertaining to unit 35
clarification and/or modification. The language of the first sentence of section 2.2 was particularly objectionable to the Association. In its initial proposals, the District wanted no changes in Article 2. The parties discussed this article during several negotiating sessions prior to June 26, 1984. Negotiations occurred in connection with the Association's proposed new Article 55 covering summer school teachers and its proposal about long-term substitutes. Analysis The District excepts to the ALJ's finding that the District failed to bargain in good faith when it insisted to impasse that the Association waive its right to seek unit modification. The District's specific exceptions to this finding are not entirely clear. The District appears to be making two arguments, in the alternative. First, the District seems to be arguing that the subject of unit recognition/modification/clarification is a mandatory subject of bargaining. Alternatively, the District argues that the unit recognition/modification/clarification proposal is a nonmandatory, permissive subject, but the District did not commit an unfair labor practice in insisting to impasse because: (a) the Association failed to take a firm position that the proposal was outside the scope of bargaining, and therefore it cannot object that the District insisted to impasse on a nonmandatory subject; and, (b) it was the Association, not the District, that took negotiations to impasse. 36
The ALJ adequately addressed and properly rejected the District's argument that the unit modification/clarification was a mandatory subject of bargaining. Under federal law, the recognition clause is not a mandatory subject of bargaining. (See NLRB v. Wooster Division of Borg- Warner Corporation (1958) 356 U.S. 342 [42 LRRM 2034].) Likewise, the composition of the bargaining unit is not a mandatory subject of bargaining. It is therefore, an unfair labor practice for either party to insist to impasse and that employees be added to or excluded from a certified unit. The final determination of the appropriateness of the bargaining unit lies within the power of the NLRB. (See Douds v. Longshoremen's Association (2d Cir. 1957) 241 F.2d 278 [39 LRRM 2388].) The scope of the bargaining unit is not a specifically enumerated subject in section 3543.2. Nor has PERB specifically ruled on the matter as a scope of representation issue. 17 In El Monte Union High School District, supra, the Board addressed the waiver provision in the parties' collective bargaining agreement recognition article and determined that it 17 In Davis Joint Unified School District (1984) PERB Decision No. 474, PERB held that the district did not violatesection 3543.5(c) by refusing to bargain about teachers not in the bargaining unit represented by the exclusive representative. In Davis, a question existed about the appropriateness of the unit at the time that negotiations were demanded by the exclusive representative. However, the composition of the bargaining unit itself was not addressed in Davis as a scope of representation issue. Neither did PERB specifically address unit composition as a "scope of representation issue" in the case of El Monte Union High School District (1982) PERB Decision No. 220, discussed infra. Instead, the case was before the Board after the district engaged in a technical refusal to negotiate with the exclusive representative in order to test PERB's unit determination. 37
did not preclude the Board from exercising its statutory authority to determine the appropriate unit. In so concluding, the Board relied upon federal sector cases which rejected contractual provisions that waived the union's statutory rights. The Board noted that: [U]nder the NLRB, a waiver provision will not be upheld where the waiver is in derogation of the bargaining representative's rights under the Act, Bethlehem Steel Corp. (1950) 89 NLRB 341 [25 LRRM 1564], or where its enforcement might dilute employees' rights under the Act. NLRB v. Magayox Co. (1974) 415 U.S. 323 [85 LRRM 2475]. (Id. at p. 6.) Indeed, the NLRB has held that it is contrary to the basic philosophy of national labor law policy to permit a union or an individual employee to contract away the jurisdiction of that board as established by Congress. (Local 743, IAM v. United Aircraft Corporation (D.C. Conn. 1963) 220 F.2d 1953 [53 LRRM 2904]; enforced (2d Cir. 1964) 337 F.2d [57 LRRM 2245].) Given the similarity between the powers of the NLRB to approve and define an appropriate bargaining unit and the statutory authority of PERB to determine appropriate bargaining units or approve modifications to units, we find the federal sector precedent persuasive and hold that a proposal dealing with the composition of a negotiating unit is not a mandatory subject of bargaining under EERA. Here, the contested waiver clause was intended to preclude either the Association or the District from exercising unit modification rights provided by PERB regulations and, in effect, to contract away the jurisdiction of the PERB to approve unit 38
modifications. Applying the conclusions of the Board in El Monte Union High School District to this provision, it is concluded that the waiver clause covers a nonmandatory subject which contravenes the Association's unit modification rights under EERA. As such, the District could not lawfully insist to impasse upon maintaining this language in the agreement. (Lake Elsinore School District, supra, PERB Decision No. 603.) The District, in the first instance, had no lawful obligation to negotiate about the recognition of summer school teachers or long-term substitutes, since neither group of employees was in the bargaining unit at the time of the negotiations. Despite the parties 1 voluntary agreement to include this proposal in their negotiations, and even though the disputed provision was contained in the 1981-84 CBA, it still remained a nonmandatory subject of negotiations. Therefore, it is determined that by insisting on the inclusion of a waiver clause which covered a nonmandatory subject of negotiations, the District committed a per se violation of the duty to bargain in good faith imposed by section 3543.S(c). The record does not support the District 1 s argument that the Association failed to take a firm position that the proposal in question must not be included in the contract between the parties. The following exchanges took place between the District 1 s attorney on the cross-examination of Buress: Q: "Do you have any information that the Association, prior to the Unfair Practice Charge being filed in August of 1984, ever indicated to the District that the matter in Article 2.2 is outside the scope of representation?" 39
A: "We told the District we no longer wish to waive any rights to seek amendment. And if that answers your question in the affirmative, the answer would be yes." Q: "Well, it doesn't answer my question. Let me rephrase it. Did you ever tell the District prior to the filing of the unfair practice charge that the matter in Article 2.2 was outside the scope of representation?" _ A: "I don't know that I used those exact words, no. " Q: "Did you in any way object to the Public Employment Relations board in or about July or June of 1984 that this matter was outside of scope and should not go to impasse?" A: "No. . 11 Q: "Did you at any time to the factfinding panel indicate that the matter in Article 2.2 was outside the scope of representation?" A:1 11 I do not recall." Q: "Do you recall at any time any representative of the Association objecting to Article 2.2 in negotiations or impasse or factfinding, the matter in Article 2.2 was outside the scope of representation?" A: "When you say outside the scope of representation, we told him it was something that we didn't have to agree to, and we didn 1 t wish to waive it anymore, and to that extent I guess we did tell him that." Q: "And when did you say that?" A: "At the bargaining table." Q: "When?"A: "I don' t remember when. " (Transcript, Vol. VIII, pp. 1010-1011.) Notably, the District introduced no testimony by its own witness and chief negotiator, Zampi, to contradict the testimony set forth above. There is nothing in the law that says a party needs to chant the magic words that a specific subject is outside the scope of representation to preserve its right, after having bargained about a nonrnandatory subject, to take the position that the nonmandatory proposal shall not be included in the contract. In The Developing Labor Law (2d ed. 1983) author Morris states: 40
Either party may bargain about a permissive topic as if it were a mandatory subject without losing the right, at any time before agreement is reached, to take a firm position that the matter shall not be included in a contract between the parties. (At p. 847; emphasis added.) Although this ·is admittedly a close case, we find that in stating that the proposal in question was something that the Association "didn't have to agree to" and that the Association "didn't wish to waive [its rights] anymore, 11 the Association was taking 11 a firm position that the matter shall not be included in a contract between the parties" and met the test set forth in Lake Elsinore. (See discussion supra, at pp. 24-25.) We also reject the District 1 s argument that it did not insist to impasse on the unit modification/clarification proposal. As noted above, the District included its counterproposal on unit modification/clarification in its June 21 settlement proposal despite the fact that the Association had indicated that it was no longer willing to waive any rights to seek modification of the unit. Once the Association communicated its refusal to waive its right and refusal to include the nonmandatory subject of bargaining in the collective bargaining agreement, the District 1 s insistence that the proposal be included violated 3543.S(c). C. SUMMER SCHOOL PROPOSAL Factual Summary At the time that negotiations between the Association and the District commenced, summer school teachers were expressly excluded from the bargaining unit represented by the Association. 41
Nonetheless, the parties agreed to negotiate over hours, wages, and other terms and conditions of employment for these employees. Written proposals covering these subjects were exchanged on May 9, 1984. A provision pertaining to summer school teachers was considered as a potential new article in the successor agreement. The parties exchanged several written proposals about summer school teachers between May 9 and June 25, 1984. All of these were conceptual in form, i.e., written in general terms rather than specific contractual language. Throughout this time, the proposals of both sides regarding unit inclusion simply stated: [I]nclude summer school teachers in unitdescription in Article II [sic]. At the afternoon session of the June 13 negotiations, the District presented its unit inclusion proposal in contract language that read as follows: Teachers who teach in summer school and were classified as temporary, probationary, or permanent in the immediately preceding regular school year shall be considered unit members for purposes of employment in the summer school program. The Association immediately rejected this proposal, stating that it viewed this language as more restrictive than the concept proposal that the District made during the morning session of June 13. Nothing in the record shows that the District sought to withdraw this proposal from the negotiations, prior to or on June 26, 1984, the date that the parties declared impasse. Analysis The Association alleged that the District violated the duty to bargain in good faith by insisting to impasse on the inclusion 42
of the June 13 summer school proposal, a nonnegotiable or permissive provision, in the successor Agreement. The ALJ concluded that the summer school proposal was a nonmandatory subject of bargaining, citing Healdsburg Union High School District et al., supra, PERB Decision No. 375. In Healdsburg Union High School District, et al., supra, the Board considered the negotiability of a proposal by the exclusive representative of a classified unit regarding substitute employees who were not included in the classified unit. The Board concluded that the proposal was outside the scope of representation because it sought to negotiate for employees outside the classified unit. A similar determination was made concerning the union's proposal regarding short-term employees, even though that proposal related to wages and hours. The Board concluded that the employees for whom the union sought to negotiate were outside of the bargaining unit which it represented. Thus, the proposal was nonnegotiable. It is undisputed that summer school teachers were not in the bargaining unit represented by the Association when negotiations occurred in the spring and summer of 1984. In applying the Healdsburg holding to these facts, the ALJ determined that: (1) the District initially had no obligation to bargain with the Association about wages, hours and other terms and conditions of employment of these employees; (2) all proposals related to these employees were nonnegotiable; and (3) even though the parties voluntarily undertook to negotiate about various topics concerning these employees, some of which concerned matters 43
within the scope of representation, neither party had a right to insist to impasse on the inclusion of the provision in the new agreement because it was nonnegotiable. The District excepted to the above conclusions on the grounds that: (1) the Association never alleged in its charge that the District committed an unfair practice by insisting to impasse on this issue; therefore, the District had no notice that the unalleged conduct might constitute the basis for an independent violation; (2) the Association never took a firm position that the summer school article should not be included in the contract; and (3) the initial language was proposed by the Association and the District only made a counter-proposal. 18 There is no evidence in the record that the Association ever took a firm position that the District's summer school proposal not be included in the contract. This failure of proof mandates our reversal of the ALJ's finding that the District illegally insisted to impasse on this proposal. In summary, by insisting to impasse on nonmandatory subjects of bargaining, the District committed per se violations of its section 3543.S(c) duty to bargain in good faith. Additionally, the District's continued insistence, through the statutory impasse procedures, on including nonmandatory subjects in its proposals on unit recognition and the grievance procedure constituted an unlawful failure to participate in the impasse 18 rt is unnecessary to address the first and third of these exceptions since we find no violation based on the fact that the Association never communicated, after having bargained on this permissive subject, its insistence that this proposal not be included in the contract. 44
procedure in good faith in violation of section 3543.S(e). (See generally, Moreno Valley Unified School District v. PERB (1983) 142 Cal.App.3d 191 [191 Cal.Rptr. 60] .) III. FAILURE TO PROVIDE REQUESTED INFORMATION A. PERSONAL LEAVE Factual Summary In mid-February 1984, Buress and Zampi met informally to discuss various employment matters of concern to each of them. During the course of their discussion regarding the use of personal necessity and compelling personal importance leaves, Zampi was quoted by Buress as saying that the District was going to "tighten up'' on its reasons for approving both categories of leave because too many teachers were using personal necessity leave. Zampi further stated that the District had compiled a list that contained all the reasons for which the District would approve such leaves in the future. At the time of this conversation, Buress was unfamiliar with the policy and practice in the District regarding the approval or disapproval of such leave. The language of the Agreement did not contain any guidelines as to what constituted appropriate use of personal necessity leave. Subsequent to their meeting, Buress sent a letter to Zampi on February 29, 1984, requesting information about any District policy, other than the language in the Agreement, which described the difference between the two types of leaves and when each could or could not be used. Zampi did not respond to this letter. 45
Article 14 of the 1981-84 Agreement contained provisions pertaining to both types of leave. 19 In their initial proposals for a successor agreement, neither the Association nor the 19 Article 14, sections 14.1 to 14.2.3, state as follows: PERSONAL NECESSITY-COMPELLING PERSONAL IMPORTANCE LEAVE 14.1 Personal Necessity 14.1.1 Personal necessity leave shall be granted with pay. When possible, application shall be made prior to leave. Forms for such leave shall be mutually agreed upon and placed in the appendix for the duration of this Agreement. 14.1.2 Entitlement to three (3) days of personal necessity leave accrues to each employee annually. The unused portion shall accumulate to ten (10) days. Part-time employees shall be entitled to a prorated amount of such leave. 14.1.3 In any year, a maximum of ten (10) earned and unused days may be used forpersonal necessity. 14.2 Compelling Personal Importance 14.2.1 Each employee who has completed three (3) years of service with the District isentitled to use one (1) day leave forpersonal business if it is beyond the ability of the employee to schedule outside ofworking hours. 14.2.2 This leave may be accumulated to a limit of three (3) days. 14.2.3 This leave is deducted from personal necessity leave. Appendix D of the CBA contained a sample of the "Special Leave Form" to be used for certain leave requests. The form required the employee to state a reason for requesting personal necessity leave. No reason was required for requesting compelling personal importance leave. 46
District proposed a change in the language of either leave provision. Even so, during discussions about leaves in the early part of the negotiations, it became apparent to the parties that they had different interpretations about their original intent for the use of personal necessity leave. Thus, at the May 14, 1984 negotiating session, when the Association and the District agreed to "sign off'' on all articles in the 1981-84 CBA that would remain unchanged in the new agreement, they excluded Article 14 and one other article from the group because of their differences. During the negotiating session on June 1, 1984, the parties further discussed the intent of the contract language and the practice of the District in granting or denying use of both personal necessity and compelling personal importance leaves. Following that session, Buress sent Zampi a letter on June 4, 1984, again requesting information pertaining to any District policy on "acceptable/unacceptable" reasons for granting personal necessity or compelling personal importance leave. Buress also asked how long the District retained leave applications submitted by unit members. Zampi responded to both inquiries in a letter dated June 15, 1984. The letter stated that the Agreement governed the reasons for granting both types of leave. On June 19, 1984, Buress sent a third letter requesting a more detailed response from Zampi regarding the District 1 s leave approval practices. 47
The parties met for negotiations on June 21, 1984. At that time, the Association stated that if the District refused to provide more specific information than it had given in the June 15 letter, the Association wanted to review all personal necessity and compelling personal importance applications on file from the 1979-80 school year forward. Zampi responded that the documents were "privileged." Buress then asked to see the applications with the individual employee 1 s name deleted. Zampi said 11 no." Zampi refused the request, stating that the applications were personnel records and thus subject to restricted access. Following the June 21 session, Buress reiterated the Association 1 s oral request in a June 21 letter to Zampi. That letter stated that the Association needed access to the leave application files from 1979-80 to the present for bargaining purposes and for preparing grievances that were going to be filed soon. In late June and early July, 1984, grievances were filed by six individual employees and the Association regarding the denial of personal necessity leave. 20 On July 2, 1984, Zampi responded to the June 19 request with a letter that provided a point-by-point answer to each question. Nonetheless, the Association was not satisfied with the response. 20 Paragraph six of the original charge alleged that the District "unilaterally changed its past practice governing allowable uses of personal necessity leave." PERB dismissed and deferred this allegation to the contractual grievance machinery. The matter was proceeding through arbitration at the time of this unfair practice hearing. 48
Thus, on July 6, 1984, the Association sent another letter requesting clarification of the information contained in the July 2 letter. In particular, the July 6 letter requested that the District specify which provisions of the Agreement were actually relied upon to disapprove personal necessity and compelling personal importance leave requests. During this period the Association also attempted to obtain information about leave applications from individual unit members. Members were asked to submit copies of their approved/disapproved leave applications directly to the Association. The Association also asked members to give it written authorization to review their individual personnel files. Through these efforts, the Association obtained leave applications from approximately 20-30 people. On July 13, 1984, the District responded to the Association's July 6 letter. The District's letter cited 25 different contract articles relied upon by the District in the approval/disapproval of personal necessity leave requests. When the Association received the July 13 letter, it decided that the issue was not "going any place 11 and thus, would not be resolved. On August 9, 1984, the Association notified the District by letter that it was withdrawing its objections to the District's proposal to maintain the "status quo" language of Article 14 in the successor agreement. The District acknowledged the Association's withdrawal on August 10, 1984. Consequently, the personal leave issue was not taken to the factfinding process. 49
Analysis It is well settled under PERB and NLRB case law that an exclusive representative is entitled to information sufficient to enable it to understand and intelligently discharge its duty to represent bargaining unit members. Requested information must be furnished for purposes of representing employees in negotiations for a future contract and also for policing the administration of an existing agreement. (See Morris, The Developing Labor Law, supra, p. 610.) An employer's refusal to provide such information evidences bad faith bargaining unless the employer can demonstrate adequate reasons why it cannot supply the information. (Stockton Unified School District (1980) PERB Decision No. 143i Azusa Unified School District (1983) PERB Decision No. 374; Modesto City Schools and High School District (1985) PERB Decision No. 518.) The determination of whether requested information is relevant is made under "a liberal 'discovery-type standard.'" (Soule Glass and Glazing Company v. NLRB (1st Cir. 1981) 652 F.2d 1055 [107 LRRM 2781].) Where the requested information is related to negotiations, PERB has followed private sector precedent. Thus, the Board noted in Stockton Unified School District, supra, that: [I]n defining the parameters of "necessaryand relevant information" to which the representative is entitled, the Courts have concluded that information pertainingimmediately to mandatory subjects of bargaining is so intrinsic to the core of the employer-employee relationship that it isconsidered presumptively relevant and must be disclosed unless the employer can establish that the information is plainly irrelevant 50
and can provide adequate reasons why it cannot furnish the information. [Citation.] (liL_ at p.13.) The standard for judging how much information must be provided, incident to the processing of grievances, was discussed by the Supreme Court in~ v. Acme Industrial Company (1967) 385 U.S. 432 (64 LRRM 2069]. In that case the court concluded that an employer must provide the requested information: . if it likely would be relevant and useful to the union's determination of the merits of the grievance and to their fulfillment of the union's statutoryrepresentation duties. (.Id... at pp. 437-438.) Once a good faith demand is made for relevant information, it must be made available promptly and in a useful form. Unreasonable delay in providing requested information is tantamount to a failure to provide the information at all. Thus, a delay of six months in providing information has been held a failure to negotiate in good faith. (Azusa Unified School District, supra, PERB Decision No. 374; see also John S. Swift Company. Incorporated (1959) 124 NLRB 394 [44 LRRM 1388).) Even a delay as short as two months, without employer explanation, has been held to be a violation. (Colonial Press. Incorporated (1983) 204 NLRB 852 [83 LRRM 1648).) The fact that an employer ultimately furnishes the information does not excuse an unreasonable delay. (K & K Transportation corporation, Incorporated (1981) 254 NLRB 722 (106 LRRM 1138) .) Whether the particular information sought must be provided in the manner requested depends upon the facts of the case. (Detroit Edison Company v. National Labor Relations Board (1979) 51
440 U.S. 301 [100 LRRM 2728].) Once a demand for relevant information is made, the information must be made available in a manner not so burdensome or time-consuming as to impede the process of bargaining, although not necessarily in the form requested by the union. However, the employer may not simply present the information in any form which it considers adequate but which is nonetheless unsuitable for informed consideration by the union. (See Morris, The Developing Labor Law, supra, at pp. 615-616; General Electric Corporation (1970) 186 NLRB 14 [75 LRRM 1265]; Colonial Press. Incorporated, supra.) Employers are limited in the defenses that they may successfully invoke against a charge of refusal to bargain arising from a failure to provide relevant information. Once a request for relevant information is made, ". the employer must either supply the information or adequately set forth the reasons why it is unable to comply." (The Kroger Company (1976) 226 NLRB 512 (93 LRRM 1315].) In Detroit Edison Corporation v. NLRB, supra, the Supreme Court rejected the notion of an "absolute rule" that automatically requires the employer to disclose all relevant information. In Detroit Edison, the union sought information about a battery of aptitude tests and the answer sheets which linked the test scores with individual employees names. Test secrecy and confidentiality of scores wer critical factors in maintaining the validity of the testing program. In concluding that the union could not get the information in the form requested, the court pointed out that: e [A] union's bare assertion that it needs information to process a grievance does not 52
automatically oblige the employer to supply all the information in the manner requested. The duty to supply information ... turns upon "the circumstances of the particular case" [Citation.] ... and much the same can be said for the type of disclosure that will satisfy that duty. [Citation.] The District filed several exceptions to the ALJ's specific findings that it was non-responsive to requests for information regarding use of personal necessity and compelling personal importance leave. Each exception is discussed separately below. 1. The District argues that it did not respond to the Association's February 29, 1984 letter requesting its personal leave policy because there was no policy. It is undisputed that the District never responded to the Association's first request for information about the District's policy concerning to the use of the two types of personal leave. The ALJ noted that the District offered no explanation for its lack of response. The ALJ found that even if the District questioned the relevancy of the material sought, the District had the burden to make its challenge in a timely manner. This, it did not do. If it could not provide the requested p6licy, it was obligated to set forth adequate reasons for its inability to do so. (Stockton Unified School District (1980) PERB Decision No. 143.) Instead, the District totally ignored the request. We agree with the ALJ's conclusion that the District's lack of response amounted to a flat refusal to furnish the information. 2. The District argues that since there were no pending grievances as of February 29 and no changes were made to the leave article throughout negotiations, the ALJ incorrectly 53
concluded that the February 29 request was presumptively relevant because the "information was necessary and relevant to the Association's bargaining obligation in that the Employer's policies were and are the subject of pending grievances." The District implies that the information was not necessary and relevant based on Buress' testimony that there were no pending grievances when the February 29 letter was sent and that no changes were made to the leave article throughout negotiations. The ALJ's statement, however, pertained to the numerous requests for information made by the Association from February through June and not just the February 29 request. The Board has found that information pertaining to mandatory subjects of bargaining is presumptively relevant. (Stockton Unified School District, supra, PERB Decision No. 143.) Since "leave'' is a mandatory subject of bargaining pursuant to section 3543.2(a), the information was presumptively relevant and the District's argument is without merit. 3. The District argues that it fully responded to Buress' questions regarding acceptable reasons for leave at the June 1 bargaining session. The bargaining notes do not, as the District contends, support a finding that the District fully responded at the June 1 bargaining session to Buress' questions regarding acceptable reasons for leave. (See District Exh. 11, pp. 300-303.) In three subsequent written requests and one oral request, the Association sought clarification of the District's leave policy, which clarification was not forthcoming. The District's 54
responses to the Association's requests for information relating to personal leave were general, ambiguous, and from the Association 1 s standpoint, relatively useless. 4. The District argues that the collective bargaining agreement requires personnel files to be kept confidential and, therefore, it was not obligated to supply completed leave request forms to the union. By letter on June 19 and by oral request on June 21, the Association requested the opportunity to review all unit member leave applications maintained by the District for several years prior to 1984. Since the District had this material in its possession, it was obliged to grant the Association access to its records, or make the information available in a useable form. However, the District flatly refused to provide the information on the grounds that the records were "privileged" and not for revi~w by the Association. Contrary to the District's contentions, the leave requests in this case were not the type of confidential employee records that the court exempted from disclosure in the Detroit Edison, supra, 440 U.S. 301 [100 LRRM 2728] 21 case. The District could have accommodated the Association's need by deleting identifying information from the request forms before giving them to the Association or supplying the information in a form that would 21 This case is clearly distinguished from Detroit Edison, supra, in which the employee's right to privacy was held to outweigh the union's need for extremely sensitive and confidential test results. Additionally, it is noted that the Association's attempts to obtain written authorization from members of the bargaining unit, as suggested by the District, was an ineffective and unsuccessful means to obtain the data needed. 55
have made it equally useful to the Association. (See Los Rios Community College.District (1988) PERB Decision No. 670, pp. 10- 12. ) The fact that the information may not have been conveniently available in a form that would accommodate both the interests of the Association and the District does not automatically render the Association's request unduly burdensome nor relieve the District of its duty to provide it. (See Stockton Teachers Association (1980) PERB Decision No. 143, pp. 12-16.) 5. The District argues that it was not required to clarify the information provided to the Association absent a request to do so. This argument is without merit as the Association made numerous and repeated requests of the District to clarify the information provided. Furthermore, the ALJ correctly states, the employer may not simply present the information in any form which it considers adequate but which is, nonetheless, unsuitable for informed consideration by the union, citing, The Developing Labor Law, supra, pp. 615-616; General Electric Company (1970) 186 NLRB 14 [75 LRRM 1265]; Colonial Press, Incorporated (1973) 204 NLRB 852 [83 LRRM 1648]. 6. The District argues that the Association could have easily acquired the District policy from the "Board Policy Handbook." The record reflects, however, that the requested information was not readily available in the "Board Policy Handbook." The request was based upon information received by the Association 56
that the District was going to "tighten up" on its allowable justifications for the leaves. Whatever information may have been available in the past did not necessarily reflect a change in the District's practice. The District's conduct with respect to the Association's request for information regarding personal leave constitutes a per se violation of the duty to negotiate in good faith under 3543.S(c). This same conduct interferes with the employee organization's right to represent its members in their employment relations and thus violates section 3543.S(b). B. LONG-TERM SUBSTITUTES Factual Summary In its initial proposal for the 1984 negotiations, the Association proposed that teachers classified as long-term substitutes be included in the bargaining unit. In a letter to the District dated May 18, 1984, the Association requested that the District provide the names, addresses and current assignments of all teachers employed as long-term substitutes. 22 The letter did not state the Association's reason for requesting this information. At the time of the May 18 request, long-term substitutes were expressly excluded from the bargaining unit by the language of Article 2 of the 1981-84 CBA. 23 By a June 2 22 In its factfinding submission regarding long-term substitute teachers, the District defined a "long-term substitute" as a substitute who replaces an individual teacher for more than ten consecutive days. 23 PERB representation file for case number LA-UM-332 reveals that the Association filed a unit modification petition on May 25, 1984, to include long-term substitute teachers in the certificated unit. On June 20, 1984, the District responded by 57
letter, the District promised a future response to the May 18 request. At the June 11 bargaining session, the parties discussed the status of long-term substitutes in connection with the Association's proposal to add a new provision, Article 52, to the successor agreement. Article 52 was intended to spell out specific rights for "temporary/restricted teachers." As stated above, temporary teachers were already included in the certificated bargaining unit. During the discussion, the Association questioned the appropriateness of the District's classification of some substitute teachers as long-term substitutes rather than as temporary teachers. The information requested on May 18 was needed to address this concern. Some time in late August or early September 1984, the District provided the Association with the information requested on May 18. The information was provided as part of the District's submission for factfinding on the issues presented by Article 52. Analysis The District excepts to the ALJ's finding that it delayed its response to a request for information regarding names, addresses, and current assignments of nonunit members employed as long-term substitutes. Specifically, the District asserts that long-term substitutes were not members of the bargaining unit, and the Association was obligated to precisely demonstrate opposing the petition. The petition was thereafter withdrawn by the Association on July 11, 1984. 58
relevance. Since the Association did not demonstrate relevance in its request, ihe District argues that it did not have to provide the information. Questions concerning the relevance and necessity of requested information often arise when a union demands information concerning nonunit employees. In such cases, it has been held under federal law that the bargaining representatives must demonstrate the "probable or potential relevance" of the information sought to its representation of unit employees. (See San Diego Newspaper Guild v. National Labor Relations Board (9th cir. 1977) 548 F.2d 863 (94 LRRM 2923] .) Thus, on May 18, when the Association requested the names, addresses, and current assignments of all teachers employed by the District as long-term substitutes without stating the "probable or potential relevance" of the requested information to its representation of unit members, the District arguably had no obligation to provide the information. The District did not, however, initially challenge the relevance of the requested information. Instead, the District promised in writing to respond to the request at an unspecified future time. On June 11, 1984, the subject of long-term substitutes was discussed in negotiations, in connection with the Association's proposal for a new contract article to apply to employees designated by the District as "temporary/restricted" teachers. The latter group of employees were in the bargaining unit. At the June 11 session, the Association explained to the District why it needed the information about long-term substitutes. The 59
Association was concerned about the number of teachers that the District was classifying as long-term substitutes instead of "temporary/restricted" teachers and the effect of this decision on the employment rights of long-term substitutes. This employment information was necessary for negotiations as well as contract administration. When the Association explained its reasons for the information, the relevance of and necessity for this material clearly was established. Once the Association established the relevance and necessity for the long-term substitute data, the District was then required to disclose to the Association such information about the nonunit employees relevant to the Association's representation of unit employees in negotiations and in administering provisions of the CBA. (See Modesto City Schools and High School District, supra, PERB Decision No. 518.) Even though the District had promised prior to the June negotiations to respond to the Association, it never provided information about long-term substitutes during the time of the negotiations, when it was most needed by the Association. When it did finally make the information available, it was supplied to the Association only as a part of the District's factfinding submission on this issue. While the District never expressly refused to provide the information, it failed to make it available to the Association within a reasonably prompt time and at a time when it could have been more useful to the Association. The District's conduct may 60
therefore be considered a flat refusal. (See NLRB v. Johns. Swift Company, supra, 124 NLRB 394.) The District has offered no explanation for the delay from mid-June to early September 1984 in making the requested information available to the Association. By the time the Association obtained the data that it first sought on May 18, its opportunity to engage in meaningful negotiations about its "temporary/restricted'' teachers proposal had already passed. The District's unjustified delay in furnishing the information was inconsistent with the good faith bargaining obligation imposed by EERA. Its conduct, therefore, is found to have violated section 3543.S(c). This same conduct interferes with the employee organization 1 s right to represent its members in their employment relations and thus violates section 3543.S(b). C. HEALTH INSURANCE Factual Summary In 1983, the parties negotiated a change in one of the District 1 s group health insurance carriers. The change was from Sun Life Insurance of Canada to Travelers Indemnity Company (Travelers) and became effective October 1, 1983. During the 1983-84 school year, several Association concerns regarding the coverage under the Travelers 1 health plan surfaced. Consequently, on April 24, 1984, the Association and the District met to discuss its concerns. This meeting was not a part of the negotiations process. 61
The Association had two major concerns: (1) the coordination of benefits and coverages for a married couple where both spouses were District employees; and (2) the extent of coverage for surgery where the employee obtained a second opinion confirming the medical necessity for the surgery. During the April 24 meeting, the Association representatives requested a copy of the Travelers' master policy. They were informed that the District had not yet received it. On May 2, 1984, the Association wrote to the District to confirm its position on the matters discussed at the April 24 meeting and to reiterate its request for a copy of the Travelers' contract with the District. The Association also requested a copy of the District's contract with its insurance broker, Creaser-Price Insurance Company. Some time prior to May 2, the District received, and distributed to employees, group insurance benefit booklets provided by Travelers. In his May 2 letter, Buress stated that the Association did not believe that the summary in the benefit booklet was sufficient. On May 7, 1984, Zampi telephoned Buress in response to the May 2 letter. Zampi informed Buress that, among other things, the District disagreed with the Association's interpretation concerning the percentage of coverage provided by the contract for "second opinion surgery." The Association interpreted the language to mean that the contract provided 100 percent coverage for any surgery performed after a second opinion was obtained regarding the need for surgery. The District interpreted the language to mean that only the second opinion and not the surgery 62
itself was paid for at the 100 percent coverage level instead of the 80 percent coverage level. Zampi also stated that coordination of benefits was provided through the plan. He then asked the Association to supply the District with the names of any unit member who had been denied either of the above referenced benefits by Travelers. Zampi further informed Buress that the Travelers master contract had been received, but was returned to the District's insurance broker because c~rtain inaccuracies were discovered in the contract. He did not specify the exact nature of the inaccuracies. He did promise, however, to send a corrected copy of the contract as soon as it was received. By letter, dated June 6, 1984, Buress asked again if the District had received a copy of the master contract and once again requested a copy for the Association. On June 8, the District again responded that it did not have the final approved contract in its possession because the errors had not yet been corrected. Zampi renewed his promise to send a final copy to the Association as soon as it was received. The group health insurance plan was not discussed at the June 13, 1984 negotiating session. However, at the June 21 bargaining session, the Association again made an oral request for the Travelers contract. The District replied that it had a draft copy which contained errors, but it did not want to distribute it. The Association insisted on having a copy, even if it was inaccurate. The District said that it would think about the latter request even though it did not want inaccurate 63
material going out to anyone. Again, no specifics were given to the Association about what actual errors were found in the contract. On June 25, 1984, Zampi sent Buress a copy of the Travelers master contract. In his cover letter, he characterized it as "an unfinished, incomplete, inaccurate document from Travelers Insurance Company regarding medical coverage." The letter werit on to state that: [T]he District has refused to sign or acknowledge this document, however, we expect certain sections to be the basis of a final master contract. On July 20, 1984, the District notified the Association, in writing, that it still did not have an accurate copy of the master contract, that it had expressed its concern to Travelers about the continuing delay, and that it expected to have one in the near future and would provide a copy to the Association immediately upon receipt. On August 10, 1984, the Association responded to the July 20 letter, reminding the District that it had also requested copies of all correspondence between the District and either its insurance broker or Travelers regarding the health insurance contract. The District answered on August 16, 1984, by reiterating that it did not have a corrected copy of the Travelers contract. The letter further stated that the need for a corrected copy had been discussed in a recent meeting between the District and Robert Jelsvik (Jelsvik), the local Travelers agent. This response was followed by letters from Zampi on August 20 and September 13, 1984. Both of these letters included 64
copies of correspondence from the District to Travelers in July and August of 1984 stating its need for the master contract as soon as possible. Harry Martin (Martin), the District 1 s insurance consultant, received the initial draft of the master contract in the spring of 1984. Martin and Jelsvik delivered the contract and the employee benefit booklets to the District shortly thereafter. However, Martin did not examine the contract before he delivered it to the District. Shortly, thereafter, the District informed both Martin and Jelsvik that portions of the contract were not correct. 24 Additionally, the contract did not provide the depth and breadth of coverage that the District wanted. This information was conveyed to the Travelers corporate office in Hartford, Connecticut, where the desired corrections were to be made. During the time while the Travelers home office was amending the master contract, the District contacted Martin several times, asking him to urge Travelers to expedite the correction process. Martin knew that the District needed the corrected contract as soon as possible because of the ongoing negotiations with the Association and the Association 1 s request for a copy of its final contract. Martin also knew that the District had contacted Travelers directly to obtain the corrected contract. During July and August 1984 Martin contacted Jelsvik and urged him to do everything in his power to persuade the home 24 The errors pertained to the definitions of "employee eligibility" and "termination" of group insurance benefits upon employee separation from active employment with the District. 65
office to respond to the District's request. Martin finally received the final corrected master contract on November 8, 1984, and forwarded a copy to the District shortly thereafter. At that time the hearing in this case was still in progress. On August 10, 1984, the Association also requested a copy of the District's group dental insurance policy. The District responded on August 14, 1984, by sending a copy of the dental benefits booklet. The District also informed the Association that the master contract for this program had not yet been received from Travelers which was also the carrier for this program. The District later provided the Association with a copy of this master contract on September 12, 1984. On September 6, 1984, the Association requested a copy of the District's group life insurance policy. This program was also provided to the District by Travelers. The District sent a copy of the requested master contract to the Association on September 13, 1984. Analysis The District excepts to the ALJ's finding that it violated the Act by its delay in providing the Association with requested health care information. Specifically, the District asserts that it did not provide a copy of the health insurance contract to the Association because it did not have an accurate copy. The District also argues that there was no indication that the Association's questions· were not answered during the April 24, 1984 meeting. 66
The relevance of the Association's request for health insurance information is not in dispute. Health and welfare benefits are included among the "terms and conditions of employrnent 11 enumerated in section 3543. 2. (See Stockton Unified School District, supra, PERB Decision No. 143.) The Association needed to review the Travelers master contract to evaluate the provisions of two specific areas of coverage over which questions had arisen among unit members. The Association also wanted this information in order to prepare for successor contract negotiations regarding health benefits. The Association made its first request for the Travelers contract on April 24, 1984, during a meeting with the District to discuss its concerns about the health insurance coverage. When this request was made, the District did not possess a copy of the Travelers master contract. Some time between April 24 and May 7, the District did receive a draft copy of this document from its insurance broker. During this same period, District Administrator John Vugrin determined that the draft was inaccurate because it contained errors that were of consequence to the District. On May 2, the Association sent a letter to the District that reiterated its two major areas of concern about the Travelers coverage and renewed its demand for a copy of the master contract. This letter also requested that, in lieu of a copy of the contract, the District provide the Association with letters of interpretation from Travelers about the health insurance program. 67
The District first informed the Association that it had received the draft contract when Zampi telephoned Buress on May 7 about the Association's May 2 letter. Although Zampi told Buress that the contract contained errors, he did not specify the nature of the errors, nor did he offer to let the Association review a copy of the draft contract. The record shows that the contract errors did not pertain to either of the two areas of concern to the Association -- namely, co-insurance coverage for marrie~ employees and the percentage of coverage allowed for second opinion surgery. Approximately one month later, the District again promised, in a June 8 letter, to furnish the Association with a copy of the completed and final contract as soon as it was received. However, it was still unwilling to give the Association a copy of the draft contract to review those areas that were the subject of their ongoing discussion. The June 8 letter failed to explain the substance of the "errors" that had been discovered in the draft contract in May. With reasonable diligence, this information surely could have been ascertained by the District by June 8 and communicated to the Association. Even without a copy of the contract itself, a more detailed response from the District about the known inaccuracies would have enabled the Association to evaluate whether the information it wanted to review in the contract was available in a reliable form. It was only after the Association insisted, at the June 21 negotiation session, on being given a copy of the Travelers contract that the District finally sent a copy on June 25, 1984, 68
just a day before the parties declared impasse. Zampi's characterization of the insurance contract in his cover letter was not particularly helpful in assisting the Association in its review of the contract. 25 He called the master contract an "unfinished, incomplete, inaccurate document that the District has refused to sign or acknowledge." The District maintains that since it responded to the Association's questions about the extent of the coverage provided by the program on April 24 and May 7, 1984, it had no reason to believe that these matters were still of any great concern to the . Association after that time. However, the steady stream of correspondence and communications between the Association and the District from April 24 to June 25 belies the validity of this assertion. From early May, when the District first obtained a copy of the draft contract, it clearly stated to the Association what amounted to a disclaimer as far as the accuracy of this document was concerned. Even with this knowledge, the Association persisted in expressing its need for a complete copy of the draft contract. Having given this caveat, the District was thereafter obligated to furnish the Association, within a reasonable time, with the Travelers contract, irrespective of the inaccuracies contained therein. Additionally, where known, the District could have pointed out the errors that it had discovered. If this action had been taken, the Association could have determined for 25 rn July, August, and September of 1984, the District continued to correspond with the Association about the status of its efforts to obtain an amended version of the contract. 69
itself the usefulness of the information that it sought from the master contract. Instead, without excusable justification, the District delayed giving the Association the requested information for approximately six weeks. This period included a time of intensive negotiations between the parties. Arguably, the Association's access to this information during such time could have positively affected the outcome of the negotiations on this subject. It is therefore concluded that by its unjustified delay in providing the Association with requested health insurance information, the District violated its section 3543.S(c) duty to bargain in good faith. The same conduct constitutes a violation of 3543.S(b). IV. EXCEPTIONS TO ALJ FINDING THAT DISTRICT "DID NOT ENTER INTO THE NEGOTIATIONS WITH A BONA FIDE INTENT TO REACH AGREEMENT" In its exceptions, the District notes the inconsistency between the ALJ's conclusions in one portion of her decision that there was no surface bargaining, and her finding of bad faith bargaining under the totality of the circumstances test in another portion of her decision. The District contends that the ALJ erred in finding bad faith bargaining under the "totality of conduct" test based solely on the District 1 s failure to provide certain information and insistence to impasse on nonrnandatory subjects of negotiations. We agree. PERB uses both a "per se" and a "totality of conduct'' test in determining whether a party's negotiating conduct constitutes 70
an unfair practice, depending on the specific conduct involved and its effect on the negotiating process. (Regents of the University of California (SUPA) (1985) PERB Decision No. 520-H; Pajaro Valley Unified School District (1980) PERB Decision No. 143.) The duty to bargain in good faith requires the parties to negotiate with genuine intent to reach agreement and a 11 totality of conduct 11 test is generally applied to determine if the parties have bargained in good faith. This test looks to the entire course of negotiations to see whether the parties have negotiated with the required subjective intention of reaching an agreement. Certain acts have such potential to frustrate negotiations and undermine the exclusivity of the bargaining agent that they are held to be unlawful without any finding of subjective bad faith. These are considered "per se 11 violations. (Pajaro Valley Unified School District, supra.) The Association alleged specific conduct of the District in support of its allegation of surface bargaining: (1) taking a "regressive" position regarding the summer school teachers proposal; (2) ignoring the Association's priority issues; (3) failing or refusing to submit counterproposals; (4) failing or refusing to explain its interpretation of proposals in which the employer's position was to maintain existing contract language; (5) failing or refusing to explain opposition to union proposals; and (6) failing or refusing to provide information. The ALJ rejected these allegations of surface bargaining concluding: These factors lead to the conclusion that what occurred was hard bargaining, rather than bad faith bargaining. Each party was desirous of improving its position vis-a-vis 71
the other, as measured by the terms of the 1981-84 CBA. Thus, the bargaining strategies of the District, which are charged here as surface bargaining, do not justify an inference of bad faith. For the reasons discussed above, it is therefore concluded that the District's negotiating conduct, complained of in this allegation, did not amount to surfacebargaining and, thus, was not a violation of section 3543.S(c). This allegation of the charge/complaint will therefore be dismissed. (P.D. at p. 118.) Later in the proposed decision, the ALJ discussed the "totality of conduct" test and examined the per se violations under this test: In this case a number of allegations of bad faith conduct on the part of the District have been examined. As a result, it has beenfound that the District committed per se violations of the Act by (1) failing to provide information needed by the Association to perform its statutory negotiating and representational functions; (2) insisting to impasse on nonmandatory subjects and on provisions which involve the relinquishment of CVEEA's statutory representational rights. It was not found, however, that the District engaged in unlawful surface bargaining. The unlawful conduct, when considered in its totality, leads to the inescapable conclusion that the District did not enter into the negotiations with a bona fide intent to reachagreement. It is thus concluded that the District's negotiating conduct during the spring and summer of 1984 did not comport with the statutory duty imposed by section 3543.S(c) to met and negotiate in good faith. Thus, the District violated section3543.S(c). ( P • D • at pp . 14 5 - 14 6 . ) Although failure to provide information and insistence to impasse on nonmandatory subjects of bargaining are "per se" violations of section 3543.S(c), we do not agree with the ALJ's 72
conclusion, based on this same conduct, that the District did not enter into the negotiations with a bona fide intent to reach agreement. 26 Unlike the "totality of conduct" test, the "per se" test does not involve any determination of intent. I~ this case, the finding of per se violations (failure to provide information and insistence to impasse on a nonmandatory subject) does not justify a finding that the District did not have the required subjective intent to reach agreement. V. REQUEST FOR ATTORNEY 1 S FEES The District excepts to the ALJ 1 s conclusion that it should not receive reasonable attorney 1 s fees. Specifically, the District asserts that the Association negligently and intentionally misled it into preparing a defense to frivolous charges, only to withdraw or amend the charges at the formal hearing. The District further asserts that many allegations had no factual basis, the Association did not utilize the requested information it received, and the Association sought at least 100 changes to the previous agreement with little rationale for the proposed changes. Applying a standard utilized by the NLRB and the federal courts, the Board has concluded that PERB's remedial authority is strictly limited. (Modesto City Schools and High School District (1985) PERB Decision No. 518.) Attorney 1 s fees and related litigation costs are awarded only if a party's case is without any arguable merit, frivolous, dilatory, or pursued in bad faith. 26 we note the Association did not except to the ALJ 1 s finding that the District did not engage in surface bargaining. 73
(King City High School District Association, et al. (1982) PERB Decision No. 197; Chula Vista City School District (1982) PERB Decision No. 256.) Attorney fees will be denied if the "issues are debatable and brought in good faith." (Chula Vista City School District, supra.) The Board in Modesto, supra, affirmed the ALJ's denial of the union's request for attorney's fees despite the fact that the ALJ found that the district "tried to make a mockery of the contract grievance machinery as well as PERB's unfair practice procedures." While the Association may have belatedly withdrawn or amended its charges, given the absence of additional Board precedent establishing standards imposing such a limitation prior to the hearing, it would be difficult to conclude that the Association's case was frivolous, or that dilatory litigation was pursued in bad faith. Furthermore, despite the District's assertions regarding the merits of the Association's case, some of the allegations have been found meritorious. Thus, it cannot be said that this case is without any arguable merit. Although we reverse the ALJ on some of her legal conclusions, we do not find sufficient justification for an award of attorney's fees. REMEDY We find that by the conduct discussed above, the District interfered with the employee organization's right to represent its members in violation of section 3543.S(b), failed to negotiate in good faith in violation of section 3543.S(c) and failed to participate in good faith in the impasse procedures in violation of section 3543.S(e). The ALJ also determined that the 74
insistence to impasse on nonmandatory subjects of bargaining constituted a derivative violation of section 3543.S(a). We find that there was no evidence presented demonstrating an independent violation of section 3543.S(a), and accordingly, dismiss the alleged violation of that section. The Association sought an order requiring the District to cease and desist from its unlawful conduct and such other affirmative relief as is appropriate to remedy the violations. In section 3541.S(c) the PERB is given: the power to issue a decision and order directing an offending party to cease and desist from the unfair practice and to take such affirmative action, including but not limited to the reinstatement of employees with or without back pay, as will effectuatethe policies of this chapter. An order is appropriate to direct the District to cease and desist from failing to meet and negotiate in good faith by: (1) refusing to provide the Association with information relevant to negotiating or grievance processing; and (2) by insisting to impasse on nonmandatory subjects. With regard to the District's duty to furnish information to the Association, if information heretofore requested has not been provided, and the Association is still interested in receiving the information, the District is ordered to inform the Association about the nature and format of the information that it has available, or which it has compiled, so that the Association may, if necessary, modify its request for information with the knowledge of the types of information available. Thereafter, the District shall provide the information requested 75
in a reasonably clear and understandable form. It shall be the responsibility of the parties themselves to determine how to satisfy this requirement. If there are substantial costs involved in compiling the information in the form requested by the Association, the parties must bargain in good faith as to whom shall bear the cost. If no agreement can be reached, the Association is entitled to access to records from which it can reasonably compile the information. (See Johns-Manville Products Corporation (1968) 171 NLRB 451 (69 LRRM 1068] .) Similarly, if the current Agreement contains the same provisions that were found to be unlawful restrictions on the Association's right to file grievances, arbitrate grievances, and petition PERB for unit modifications, it is appropriate to order the District to: (1) accept grievances filed by the Association in its own name on behalf of individual unit members, as well as grievances filed to protect the Association's rights; (2) process grievances to arbitration, whether or not the grievant has made a written request; and (3) recognize the Association's right to seek unit modification pursuant to PERB regulations. These remedies will achieve the results sought by the Association without an additional order that specific clauses be stricken from the Agreement between the parties. 27 The purpose of these remedies is to ensure that such provisions are no longer enforced. 27 These contested provisions were carried forward from the 1981-84 CBA to the 1984-87 CBA. 76
Finally, it is appropriate to order the District to cease and desist from failing and refusing to participate in good faith in the impasse procedures by maintaining its unlawful insistence on nonmandatory subjects through the statutory impasse procedures. It also is appropriate that the District be directed to post a notice incorporating the terms of the order. Posting of such a notice, signed by an authorized representative of the District, will provide employees with notice that the District has acted in an unlawful manner, is being required to cease and desist from this activity, and will comply with the order. It effectuates the purposes of the EERA that employees be informed of the resolution of the controversy and the District's readiness to comply with the ordered remedy. (Davis Unified School District, et al. (1980) PERB Decision No. 116. See also Placerville Union School District (1978) PERB Decision No. 69.) ORDER Upon the foregoing findings of fact and conclusions of law, and the entire record in this case, it is found that th~ Chula Vista City School District violated Government Code section 3543.S(b), (c), and (e) of the Educational Employment Relations Act. Pursuant to Government Code section 3541.S(c), it is hereby ORDERED that the Chula Vista City School District, its officers and representatives shall: A. CEASE AND DESIST FROM: 77
1. Refusing to provide the Chula Vista Elementary Education Association, CTA/NEA, with information relevant to contract administration, grievances processing and negotiations. 2. Insisting to impasse on negotiating about subjects outside the scope of representation, including contractual language which has the effect of restricting (1) the Association's right to file grievances in its own name on behalf of individual unit members; (2) its decision to submit grievances to arbitration without the approval of the grievant; and (3) the Association's right to petition PERB for unit modification. 3. Enforcing and giving effect to those portions of the 1984-87 Agreement (or any subsequent Agreement), which contain provisions that (a) limit the Association's right to initiate grievances only at Level II when a grievance "affects more than one employee in a single building, or employees in more than one building ... ," or (b) allow the Association to submit a grievance to arbitration only after the "grievant ... file[s] a written request with the Association .... ," or (c) limit the Association's right to seek unit modification pursuant to PERB regulations. 4. Denying to the Association rights guaranteed by the Educational Employment Relations Act, including the right to represent its members in their employment relations with the District. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: (1) Upon request, provide the Association with any information requested, and not previously provided, as noted in 78
the decision above, following the guidelines set forth in the Remedy section herein. (2) Accept and process grievances filed by the Association in its own name on behalf of individual unit members, as appropriate under the time limits and subject matter requirements of the Agreement between the parties. (3) Accept and process requests for arbitration filed by the Association, as appropriate under the time limits and subject matter requirements of the Agreement, without requiring that a written request be made by the grievant(s) to the Association. (4) Recognize the Association 1 s right to seek unit modification pursuant to PERB regulations. (5) Within thirty-five (35) days following the date the Decision is no longer subject to reconsideration, post at all work locations where notices to employees customarily are placed, copies of the Notice attached as an Appendix hereto, signed by an authorized agent of the employer. Such posting shall be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that the Notice is not reduced in size, altered, defaced or covered by any other material. (6) Make written notification of the actions taken to comply with the Order to the Los Angeles Regional Director of the Public Employment Relations Board in accordance with his/her instructions. 79
All other allegations raised in the unfair practice charge/complaint are hereby DISMISSED. Member Camilli joined in this Decision. Member Craib's concurrence begins at page 81. Chairperson Hesse's concurrence begins at page 82. 80
Craib, Member, concurring: I am in full agreement with the results reached in the majority opinion. I also concur with the analysis applied therein, with one exception. Consistent with my opinion in South Bay Union School District (1990) PERB Decision No. 791, I believe it is necessary and appropriate to employ a modified version of the test established in Anaheim Union High School District (1981) PERB Decision No. 177 to determine that the proposals limiting the Association's right to file grievances and to submit them to arbitration are nonmandatory subjects of bargaining. My view stems primarily from the following: (1) the rights of an exclusive representative to file grievances in its own name and to submit grievances to arbitration without the consent of a named grievant are not expressly set out in the statute, and (2) such matters are reasonably related to grievance procedures, which are included among those mandatory subjects that are specifically enumerated under section 3543.2, subdivision (a) of the Educational Employment Relations Act. 81
Hesse, Chairperson, concurring: As the majority noted in its decision, my dissent in South Bay Union School District (1990) PERB Decision No. 791 found the exclusive representative's right to file a grievance in its own name is a mandatory subject of bargaining. Based on the absence of an Educational Employment Relations Act (EERA) provision that specifically makes the filing and prosecution of grievances in its own name an exclusive representative's independent statutory right, I concluded that there is no such statutory right under EERA. While I still believe EERA does not contain explicit statutory language providing that the exclusive representative has the right to be a named grievant, I am persuaded by the analysis in a recent court decision that the exclusive representative's right to be a named grievant is a statutory right._ Subsequent to the majority's decision in South Bay Union School District, supra, the Court of Appeal issued its decision in Lillebo v. Davis (1990) 218 Cal.App.3d 1588. 1 Although 1 On June 29, 1990, the California Supreme Court granted appellants' petition for review. Subsequently, the matter was transferred to the Court of Appeal with direction to vacate its opinion and to reconsider the case in light of the United States Supreme Court's opinion in Keller v. State Bar of California (1990) _ u.s. _ [110 s.ct. 2228]. In Keller v. State Bar of California, supra, the court determined the scope of permissible expenditures for activities financed by the compulsory dues collected by the State Bar of California. The Supreme Court held that the use of the compulsory dues to finance political and ideological activities with which the members disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services. 82
Lillebo v. Davis is an agency/fair share fee case, the court addressed the right of individual employees to represent themselves in their employment relations with the state. (Id. at pp. 1608-1611.) Specifically, the plaintiffs, who are individual employees, claimed that, since they desired to represent themselves individually in their employment relations without the exclusive representative, they could not constitutionally be assessed fair share fees because the exclusive representative would be providing them with no service in return. In determining the plaintiffs may be assessed a fair share fee, the court discussed the provisions of the Ralph C. Dills Act (Dills Act). While recognizing sections 3515 and 3515.5 of the Dills Act provide that the individual employee has the right to self representation,2 the court found the Dills Act focuses on the establishment of relations between the state employer and exclusive representative and, in fact, is clear regarding the As the Keller opinion involves the determination of permissible and impermissible expenditures of the dues, the opinion does not appear to address the plaintiffs' argument that employees who represent themselves individually in their employment relations cannot constitutionally be assessed a fair share or agency fee. Accordingly, I, nonetheless, find the Court of Appeal's analysis on the right of individual employees to represent themselves in their employment relations is persuasive. 2Section 3515 of the Dills Act and section 3543 of EERA contain identical language regarding the right to self representation. However, EERA does not contain a provision similar to section 3515.5 of the Dills Act. 83
role of an individual employee when part of an appropriate bargaining unit represented by an exclusive representative. After a review of the statutory provisions, the court determined that, despite their right of self-representation, state employees have no mechanism for the enforcement of this statutory right absent the exclusive representative. There is no statutory right for the individual employ~e to present grievances regarding terms and conditions of employment. Rather, the individual employee has the right to the grievance procedure only to the extent it is created by the collective bargaining agreement negotiated and administered by the exclusive representative. Although I still believe EERA does not contain explicit statutory language providing that a exclusive representative has the right to be a named grievant, I find the court's discussion in Lillebo v. Davis persuasive. In the present case, as the enforcement of the individual employee's rights is dependent upon the exclusive representative's representation, I find the Chula Vista Elementary Education Association, CTA/NEA has the statutory right to be a named grievant. 84
APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE PUBLIC EMPLOYMENT RELATIONS BOARD An Agency of the State of California After a hearing in Unfair Practice Case No. LA-CE-2038, Chula Vista Elementary Education Association, CTA/NEA v. Chula Vista City School District. in which all parties had the right to participate, it has been found that the Chula Vista City School District violated section 3543.S(b), (c), and (e) of the Educational Employment Relations Act (Act). The District violated the Act when it failed to meet and negotiate in good faith by refusing to provide the Association with information relevant to contract administration, grievance processing, and negotiations. The District also violated the Act by insisting to impasse on negotiating about subjects outside the scope of representation within the meaning of the Educational Employment Relations Act. This same conduct also constituted a violation of the District's duty to participate in good faith in the statutory impasse procedures. As a result of this conduct, we have been ordered to post this Notice and will abide by the following. We will: A. CEASE AND DESIST FROM: 1. Refusing to provide the Chula Vista Elementary Education Association; CTA/NEA, with information relevant to contract administration, grievance processing and negotiations. 2. Insisting to impasse on negotiating about subjects outside the scope of representation, including contractual language which has the effect of restricting (1) the Association's right to file grievances on behalf of individual unit members; (2) the Association's decision to submit grievances to arbitration without the approval of the grievant; and (3) the Association's right to petition PERB for unit modification. 3. Enforcing and giving effect to those portions of the 1984-87 Agreement (or any subsequent Agreement), which contain provisions that (a) limit the Association's right to initiate grievances only at Level II when a grievance "affects more than one employee in a single building, or employees in more than one building ... ," or (b) allow the Association to submit a grievance to arbitration only after the "grievant ... file[s] a written request with the Association .... ," or (c) limit the Association's right to seek unit modification pursuant to PERB regulations. 4. Denying to the Association rights guaranteed by the Educational Employment Relations Act, including the right to represent its members in their employment relations with the District.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS ACT: 1. Upon request, provide the Association with any information requested, and not previously provided, as noted in the decision above, following the guidelines set forth in the Remedy section herein. 2. Accept and process grievances filed by the Association on behalf of individual unit members, as appropriate under the time limits and subject matter requirements of the Agreement between the parties. 3. Accept and process requests for arbitration filed by the Association, as appropriate under the time limits and subject matter requirements of the Agreement, without requiring that a written request be made by the grievant(s) to the Association. 4. Recognize the Association 1 s right to seek unit modification pursuant to PERB regulations. Dated: ____________ _ CHULA VISTA CITY SCHOOL DISTRICT By Authorized Representative THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL. 2
PROOF OF SERVICE BY MAIL C.C.P, 1013a I declare that I am a resident of or employed in the County of Sacramento, California. I am over the age of 18 years and not a party to the within entitled cause. The name and address of my residence or business is Public Employment Relations Board, 1031 18th Street, Sacramento, California, 95814-4174. I am readily familiar with the ordinary practice of the business in collecting, processing and depositing correspondence in the United States Postal Service and that the correspondence will be deposited the same day with postage thereon fully prepaid. On August 16, 1990, I served the attached PERB Decision No. 834, Chula Vista City School District, Case No. LA-CE-2038 on the parties listed below by placing a true copy thereof enclosed in a sealed envelope for collection and mailing in the United StatesPostal Service following ordinary business practices at Sacramento, California, addressed as follows: Chula Vista City School District Attn: Lewis L. Beall, Supt. 84 East J Street Chula Vista, CA 92010-6199 Chula Vista Elementary Education Association, CTA/NEA Attn: Frank Buress, Exec. Dir. 196 Landis Avenue Chula Vista, CA 92010 Richard J. Currier, Attorney Littler, Mendelson, Fastiff & Tichy 701 B Street, Suite 300 San Diego, CA 92101-8101 A. Eugene Huguenin, Jr., Attorney California Teachers Association 1705 Murchison DriveP.O. Box 921 Burlingame, CA 94011-0921 I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on August 16, 1990, at Sacramento, California. Teresa Stewart(Type or print name) (Signature)
3 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
DECISZON OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CHULA VISTA ELEMENTARY EDUCATION )
ASSOCIATION, CTA/NEA, )
Charging Party, Case No. LA-CE-2038
Vv. PERB Decision No. 834
CHULA VISTA CITY SCHOOL DISTRICT, August 16, 1990
Respondent. )
Appearances: A. Eugene Huguenin, Jr., Attorney, for Chula Vista
Elementary Education Association, CTA/NEA; Littler, Mendelson,
Fastiff & Tichy by Richard J. Currier, Attorney, for Chula Vista
City School District.
Before Hesse, Chairperson; Craib, Shank and Camilli, Members.
DECISION
SHANK, Member: This case is before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the Chula
Vista City School District (District) to a proposed decision
issued by a PERB administrative law judge (ALJ). The ALJ found
that the District violated section 3543.5(a), (b), (c), and (e)
of the Educational Employment Relations Act (EERA or Act)! when
it:
(1) interfered with the rights of employees to
participate in the activities of the employee
organization of its own choosing for representation
purposes by making improper comments about the Chula
Vista Elementary Education Association's (Association)
representation of these employees in its negotiations
with the District;
(2) interfered with the Association’s statutory
right to represent its members when it made improper
comments about the Association’s representation of
employees in its negotiations with the District;
‘FERA is codified at Government Code section 3540 et seq.
Unless otherwise indicated, all statutory references herein are
to the Government Code.
(3)
failed
to
meet
and·negotiate
in
good
faith
by
refusing to
provide
the
Associat±on with
information
relevant to negotiating or
grievance processing;
(4)
insisted
to
impasse
on
negotiating
about
subjects outside the
scope
of
representation.
We
have
carefully
reviewed
the
entire
record, including the
proposed
decision,
transcript,
exhibits,
exceptions
and
responses,
and,
in
accordance
with
the discussion
below,
affirm
in
part
and
reverse
in part
the
ALJ's
conclusion
that
the
District
violated
EERA.
INTRODUCTION
The
District's
exceptions
to the
ALJ's
findings of
fact
and
conclusions of
law
fall
into five
major
groups.
The
discussion
pertaining to
the exceptions
will
therefore consist
of
the five
main
parts,
some
of
which
will
have
subparts.
The
factual
summary
pertinent to
each
exception,
or
group
of exceptions,
will
be
integrated
with, or
precede, the analysis of
each
exception.
2
The
five
groups
of exceptions
are
as follows:
I.
EXCEPTIONS RELATED
TO
THE
PROPOSED
ORDER THAT THE
DISTRICT
CEASE
AND
DESIST
FROM
"INTERFERING
WITH THE
RIGHT OF
EMPLOYEES
TO BE
REPRESENTED IN THEIR
EMPLOYMENT
RELATIONS WITHTHE
DISTRICT
BY
THE EMPLOYEE
ORGANIZATION
OF
THEIR CHOICE
BY
MAKING
IMPROPER STATEMENTS
THAT TENDED
TO
UNDERMINE
CONFIDENCE INTHE
ASSOCIATION."
II.
EXCEPTIONS RELATED
TO THE
PROPOSED
ORDER THAT THE
DISTRICT
CEASE
AND
DESIST
FROM
"INSISTING
TO
IMPASSE
ON
NEGOTIATING
ABOUT
SUBJECTS OUTSIDE
THE
SCOPE
OF
REPRESENTATION
"
2
The
factual
summaries
are
based
primarily
on
the findings
of fact set forth in the ALJ's
decision with
clarification
and
elaboration
where
necessary.
They do
not include facts not
pertinent to
a
resolution of the issues raised
by
the exceptions
filed
by
the parties.
Those
factual findings
and
legalconclusions set forth in the ALJ's proposed decision that
were
not excepted to
by
the parties are binding upon
the parties to
this case, but have no
precedential value except to the extentthey are referred to
and incorporated in this decision.
2
III.
EXCEPTIONS
RELATED
TO
THE
PROPOSED
ORDER THAT
THE
DISTRICT
CEASE
AND
DESIST
FROM
"REFUSING
TO
PROVIDE [THE
ASSOCIATION]
WITH
INFORMATION
RELEVANT
TO
CONTRACT
ADMINISTRATION, GRIEVANCE PROCESSING
AND
NEGOTIATIONS.
11
IV.
EXCEPTIONS
TO
THE
ALJ'S
CONCLUSION
THAT THE
DISTRICT
"DID
NOT
ENTER INTO
THE
NEGOTIATIONS
WITH
A
BONA
FIDE
INTENT
TO
REACH
AGREEMENT.
11
V.
EXCEPTIONS RELATED
TO
THE
ALJ'S
CONCLUSION
THAT
THE
DISTRICT
IS
NOT
ENTITLED
TO
AN
AWARD
OF
ATTORNEY'S FEES.
GENERAL
BACKGROUND
The
District is
a
public
school
employer
within the
meaning
of
the
EERA.
The
Association
is
an
employee
organization
and
the
exclusive representative,
within the
meaning
of
EERA,
of
a
certified
unit
of
certificated
employees
of
the
District.
The
bargaining
unit consists
of approximately
665
employees
in
various
certificated classifications.
The
parties
had
engaged
in
collective
bargaining for
a
number
of years
prior
to the
negotiations
at
issue in
this
case.
In the spring of
1984,
the
parties
were
operating under
a
collective
bargaining
agreement
(Agreement
or
CBA)
which,
by
its
terms, expired
on
June 30,
1984.
In accord with the provisions
of
the
Agreement
covering the reopening of
negotiations,
on
January
31,
1984,
the Association submitted
to the
District
its
initial
proposal for
a
successor
agreement.
The
Association
proposed:
(1)
to maintain
22
articles
from
the
1981-84
CBA
without
change; (2)
to delete
two
articles;
(3)
to
change
27
articles
and,
(4)
to
add
4 new
articles
and an
addendum.
On
March 6, 1984,
the
District
submitted
its first
proposal
to the Association for
a new
article in the successor agreement
pertaining to
a
mentor
teacher
program.
On March 21, 1984,
the
District
submitted the rest of
its initial
proposals for
a
3
successor
agreement. This
set
of proposals contained suggested
amendments
to eight
articles
of
the
Agreement.
The
District
further
proposed
that
all
other
articles
in
the
1981-84
CBA
remain
"1,1nchanged
11
in
the successor
agreement.
The
chief negotiator
for the
Association
was
Frank
Buress
(Buress).
Buress
was
the executive
director
of
the
California
Teachers
Association
(CTA),
UniServ, South
County
Teachers
United,
which
provided
representational services to the
Association.
Buress
commenced
his
employment
with
CTA
in
December 1983.
The
District's
chief negotiator
was
attorney
Joseph
Zampi
(Zampi).
Zampi was
the coordinator of
Communication and
Staff
Negotiations/Personnel Services
for
the
District.
He
had
been
involved
in
District
negotiations since
1973.
On
or
about
April
23, 1984,
the
parties
met
for the
first
negotiation session.
The
parties
met
for
further negotiations
on
April
25,
May
9,
11, 14, 16, 21, 25,
30
and
June
1, 5, 6, 11, 13,
21, and 26,
1984. At
the
June
26
session, the
parties
reached
impasse. Following
the
filings
by
both
parties
with
PERB
for
a
declaration
of impasse,
on
or
about
July
2, 1984,
PERB
determined
that
impasse
existed
and
appointed
a
State
mediator.
During
July
1984, two
mediation sessions
were
held, the
last
of which
was
on
July
18, 1984.
On
or
about
July
26, 1984,
the
mediator
certified
the dispute to factfinding.
Factfinding sessions
were
held
on September
5
and
17-21,
1984. The
factfinding report
was
issued
on
October 15, 1984.
Subsequently, the parties
reached agreement on
a
successor
4
contract, on or about December 14, 1984. The term of the new
agreement was 1984-87.
DISCUSSION OF EXCEPTIONS
I. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE
DISTRICT CEASE AND DESIST FROM "INTERFERING WITH THE RIGHT OF
EMPLOYEES TO BE REPRESENTED IN THEIR EMPLOYMENT RELATIONS WITH
THE DISTRICT BY THE EMPLOYEE ORGANIZATION OF THEIR CHOICE BY
MAKING IMPROPER STATEMENTS THAT TENDED TO UNDERMINE CONFIDENCE IN
THE ASSOCIATION."
Factual Summary
Prior to the summer of 1984, the District had not offered a
summer school session through the regular school program since
1977. Summer school for 1984 was a three-week session held from
late July to mid-August.
At the time that negotiations between the Association and
the District commenced, summer school teachers were expressly
excluded from the bargaining unit represented by the
Association. 3 Nonetheless, the parties agreed to negotiate over
hours, wages, and other terms and conditions of employment for
these employees. Written proposals covering these subjects were
exchanged on May 9, 1984. A provision pertaining to summer
school teachers was considered as a potential new article in the
successor agreement.
The alleged improper statements by District administrators
were made at various meetings, and encounters between the
3PERB representation case file number LA-UM-332 shows that
on May 24, 1984, the Association filed a petition for unit
modification to add summer school teachers to the certificated
bargaining unit. This petition was later withdrawn, on July 11,
1984.
5
teachers and administrators during the 1984 summer session and
following fall.
1. June 21. 1984 Meeting With Summer School Teachers
On June 21, 1984, District administrators Dick Slaker
(Slaker) and Emerald.Randolf (Randolf) conducted an in-service
meeting with the summer school teachers. Approximately 30
teachers attended the meeting. During the discussion, the
question of salaries was raised by one of the teachers. In
response, Slaker and Randolf stated that the District 11 was trying
to get 85 percent of the regular teachers' per diem rate for
summer school teachers, but that the salary matter was based on
the outcome of negotiations with the Association." Slaker stated
further that the 85 percent rate looked favorable. Randolf, who
was a member of the District's negotiating team, stated that she
was hopeful that the salary matter was going to be resolved, but
that it was contingent upon the number of working hours per day
finally agreed upon for summer school teachers. The 85 percent
proposed salary rate was considerably higher than the daily rate
paid to summer school teachers in 1977.
As of June 21, 1984, the District and the Association had
agreed to the 85 percent of per diem rate of pay for summer
school teachers; however, their differences over hours and other
terms and conditions of employment were still unresolved.
2. The August 7. 1984 Meeting
On August 7, 1984, the Association's Chief Negotiator Buress
and the Association President Carol Owen (Owen), met with
District Superintendent Lewis Beall (Beall) concerning the status
6
of
several
pending
grievances.
These
grievances
were
unrelated
to
summer
school
teachers.
However,
before
the
meeting
ended,
Beall
brought
up
the subject
of
summer
school
teachers'
salaries.
Beall,
who
had begun
his
employment
with
the
District
approximately
one
month
prior
to
August 7,
stated that
he
was
unfamiliar
with
the
Association's position
on
this
issue.
He
expressed
concern
that
the
summer
school
salaries
had
to
be
paid
at
the
1977
rate until final
agreement
was
reached
with
the
Association
on
the
summer
school
negotiations.
After further
discussion of
this
topic,
Beall
left
the
room
and
shortly thereafter
returned
with
a
written
proposal
that
he
asked
Buress and
Owen
to sign.
The
proposal contained language
to the effect that
by
agreeing
to
an immediate
increase
in
the
summer
school
teacher salary
rate,
the Association
would
forgo
further
negotiations
with
the
District
on
the salary issue.
However,
since Beall
would
not assure
Buress
and
Owen
that
the
percentage
of
increase
would
be,at
85
percent of the per
diem
rate,
they refused to sign the statement.
4
Superintendent Beall
thereafter
expressed disappointment
that
the Association
"was
keeping
money
from
unit
members'
that
the
District
wanted
to
pay."
Owen
replied, that
since the
District
had
taken the position that
summer
school
teachers
were
not
in
the
certificated
bargaining
unit, the Association
would
4
The
District
excepts to
some
of the ALJ's
factual findings
pertaining to
an
allegation in the charge
that the District acted
illegally in attempting to secure
a
waiver from
the Association
on
the
summer
school salary issue. Since the
ALJ
did not find
any
violation with respect to this allegation in the charge, any
factual errors were not prejudicial.
7
not file an unfair practice~charge if the District paid higher
salaries to summer school teachers before the parties actually
reached final agreement on this subject. Beall countered this
remark by stating that he was uncertain about the District's
right to act unilaterally in view of the ongoing negotiations.
Later that day, Buress called Beall for clarification of the
proposed waiver language. Beall said the language concerned
salaries only and that even if the Association signed the
agreement, it did not mean that the parties recognized summer
school teachers as members of the bargaining unit. 5
There was an exchange of letters between Buress and Zampi on
August 14 and August 16, 1984, about the District's proposed
waiver. Zampi's August 16 letter indicated that the District's
August 7 offer was still open to the Association. However, after
August 16 there were no further discussions or meetings about the
proposed waiver.
3. July/August Meetings With Summer School Teachers
In late August 1984 Superintendent Beall met with a group of
teachers in a meeting initiated by the teachers to acquaint the
superintendent with the temporary teacher situation in the
District. Employees classified by the District as temporary
teachers are included in the bargaining unit represented by the
5PERB representation casefile number LA-UM-348 shows that on
August 29, 1984, the Association filed a second unit modification
petition proposing to add summer school teachers to the
certificated bargaining unit. On September 19, 1984, the
District indicated to PERB that it had no opposition to the
petition provided that the requisite proof of support was met.
On October 10, 1984, PERB issued a unit modification order adding
summer school teachers to the unit.
8
Association.
At
the
end
of
the
meeting, Carol
Clark,
one
of the
teachers present,
asked
Beall
if
he
was
aware
that
the nine
temporary
teachers
who
taught
summer
school
were
paid
at
the
substitute
teacher
rate
of
$31.20
per
day.
Beall
replied,
that
he
did
not
know
about
this,
but
would
look
into
it.
He
also said
something
to the
effect that
"the
whole
(salary) thing
could
have
been
resolved
if
the
union
(Association)
had
agreed
to the
District's
offer."
Clark
testified
that
she
understood
Beall's
comment
to
mean
that
summer
school
teachers
could
have
been
paid
considerably
more
than
$31.20
per
day
if
the Association
had
not
rejected
the
District's
offer.
6
4.
Late August/Early
Fall
Meetings
Sometime
in
late
August
or early
September 1984,
Superintendent Beall
met
with the regular
school
teachers
at
Mueller
School
during
a
faculty
meeting. In response
to
a
question
from
a
teacher
about
salaries
for
summer
school
teachers,
Beall
stated,
"We
wanted
to
pay
you more,
but your
Association
would
not
let
us."
Following
Beall's
comment, no
further
remarks were
made
during the
meeting about the
salary
issue.
In the
fall
of
1984,
during
a
chance meeting with
Slaker
at
her school
site,
Carol-Clark mentioned
the
summer
school pay
issue to Slaker. Slaker replied that,
"the Union's
refusal of
6
We
reject the
District's
exceptions to
some
of the ALJ's
factual findings regarding what occurred at the meetings
in July
and August of
1984.
In any event, since
we
find
no
violation
based on statements
made
in these meetings, the factual errors,
if
any, are harmless error.
9
the District's offer is the reason that no settlement was reached
on this issue." 7
Analysis
In Carlsbad Unified School District (1979) PERB Decision
No. 89, page 10, the Board set forth the test for determining
when an employer's actions interfere with the rights of employees
guaranteed by EERA. Under the Carlsbad test, a charging party
establishes a prima facie case of interference under EERA section
3543.S(a) only "[w]here the charging party establishes that the
employer's conduct tends to or does result in some harm to
employee rights granted under the EERA. " As more fully
explained below, employer speech causes no cognizable harm to
employee rights granted under EERA unless it contains "threats of
reprisal or force or promise of a benefit." Therefore, a prima
facie case of interference cannot be based on speech that
contains no "threats of reprisal or force or promise of a
benefit."
The District contends, in its exceptions, that the employer
statements in qu~stion constitute protected employer free speech
7The District excepts to conclusions of law regarding
statements made by Dick Slaker on the grounds that the charge did
not contain allegations about Slaker's participation in the
July/August 1984 meetings. In fact, the ALJ's factual findings
regarding Slaker are based on a meeting that allegedly took place
in the fall of 1984, a meeting which is not specifically
referenced in the charge. The District asserts that pursuant to
Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668, Slaker's statements may not be relied upon to support a
finding of a violation. However, since we find no violation
based upon Slaker's statements, as discussed below, we need not
decide the Tahoe-Truckee issue raised by this exception.
10
and
therefore
caused
no
cognizable
harm
to
the
employees.
We
agree.
In
Rio
Hondo
Community
College
District
(1980)
PERB
Decision
No.
128,
pages 18-20,
this
Board
looked
to
the National
Labor
Relations
Act
(NLRA)
for
guidance
in
formulating
a
test
for
determining
when
employer communications
will
be
considered
violative
of
the provisions
of
EERA.
Specifically,
the
Board
examined
section
8(c)
of the
NLRA
which
provides:
The
expressing of
any
views, argument,
oropinion, or the dissemination
thereof,
whether
in written, printed,
graphic, or
visual
form,
shall
not
constitute
or
be
evidence of
an
unfair
labor
practice
under
any
of the provisions of
this
Act,
if
such
expression contains
no
threat
of
reprisal
orforce or
promise
of
benefit.
8
Noting
that
EERA
contains
no
provision
parallel
to section 8(c),
the
Board
nevertheless
found
that
"a
public
school
employer
is
entitled
to
express
its
views on
employment-related
matters over
which
it
has
legitimate
concerns
in
order to
facilitate full
and
knowledgeable debate"
and
set forth
the
test
to
be
applied as
follows:
8
The
Higher Education
Employer-Employee
Relations
Act
contains
virtually identical
language
in Section
3571.3 which
states:
The
expression of
any
views, arguments,
oropinions, or the dissemination thereof,whether
in written, printed, graphic, or
visual
form,
shall not constitute, or
be
evidence of,
an
unfair labor practice
underany
provision of
this chapter, unless such
expression contains
a
threat of
reprisal,force, or promise of benefit; provided,however,
that the employer
shall not express
a
preference for one employee organization
over another employee organization.
11
[T]he
Board
finds
that
an
employer's
speech
which
contains
a
threat
of
reprisal
or
force
or
promise
of
benefit will
be
perceived
as
a
means
of
violating
the
Act
and
will,
therefore,
lose
its
protection
and
constitute
strong
evidence
of
conduct
which
is
prohibited
by
section
3543.5
of
the
EERA.
(Id.
at
p.
20.)
Whether
the
employer's
speech
is
protected or
constitutes
a
proscribed
threat
or
promise
is
determined
by
applying
an
objective rather
than-a subjective
standard.
(California
state
University {California
State
Employees'
Association.
SEIU
Local
1 0 OO ( 1 9 8 9 )
PE
RB
Dec
is
ion
No
. 7 7 7 - H , P . D . , p . 8 . )
Thus
,
11
the
charging
party
must
show
that
the
employer's
communications would
tend
to
coerce
or
interfere
with
a
reasonable
emplo~ee
in the
exercise
of
protected
rights."
The
fact,
"That
employees
may
interpret
statements,
which
are
otherwise
protected,
as
coercive
does
not
necessarily
render those statements unlawful."
(Regents
of
the
University of
California
(1983)
PERB
Decision
No.
366-H,
fn.
9,
pp. 15-16;
BMC
Manufacturing Corporation
(1955)
113
NLRB
8 2 3 , [ 3 6
LRRM
1 3 9 7 ] . )
The Board
has
also held
that
statements
made
by
an employer
are to
be viewed
in
their
overall context
(i.e.,
in
light
of
surrounding circumstances) to
determine
if
they
have
a
coercive
meaning.
(Los
Angeles
Unified School
District
(1988)
PERB
Decision
No.
659,
p. 9, and
cases
cited therein.)
Additionally, the
Board has placed considerable weight
on
the accuracy of the content of the speech
in determining whether
the
communication
constitutes
an
unfair labor practice.
(Alhambra City
and High School
Districts
(1986)
PERE
Decision
No.
560, p.
16; Muroc
Unified School
District
(1978) PERB
Decision
12
No.
80, pp.
19-20.)
Thus, where
employer
speech
accurately
describes
an
event,
and
does
not
on
its
face
carry the
threat
of
reprisal
or force, or
promise
of
benefit,
the
Board
will
not
find
the
speech unlawful.
On
the other
hand,
the
fact
that
employees
do
not
actually
feel
threatened or intimidated
by
the
employer's
comments
does
not
necessarily insulate
those
comments
as
protected.
(See
National
Labor
Relations
Board
v.
Triangle Publications
(3d
Cir.
1974)
500
F.2d 597.)
Neither
are the facts
that
the challenged
statements
were
brief
or
made
to
only
one
person
determinative of
their
coercive nature.
North American
Aviation, Incorporated
(1967)
163
NLRB
863
[65
LRRM
1017].
Applying
the
above
principles to
the
facts
of the
instant
case,
we
conclude
that
none
of the statements
in question contain
a
threat
of
reprisal
or force or
promise of
a
benefit.
The
content of the statements
was
not
such
that
a
reasonable
employee
would have
felt
intimidated or
coerced. In
fact,
none
of
the
teachers
who
heard the statements
testified that
they
felt
intimidated or threatened.
Although one
teacher,
Carol
Clark,
testified
she
felt
"pulled or torn" in her feelings
about
whom
to
believe
concerning the real
reason for the
outcome
of the salary
negotiations, that fact is insufficient to transform
mere
statements of fact or opinion into the proscribed threats or
promises.
Furthermore, the statements cannot be
fairly characterized
as
factually inaccurate.
The
statements merely attempted to
13
communicate
the
status
of the
negotiations
and
accurately
portrayed the
situation
as
one
of give
and
take.
Finally,
the context
in
which
the
statements
were
made
was
not
coercive.
The
statements
were
not,
as
the
ALJ
suggested,
all
made
in
formalized meetings.
The
statements
made
at
the
in
service
meeting (June
21,
1984)
were
made
in
response
to
a
specific
question
from
a
teacher,
as
were
the statements
made
at
the
faculty
meeting
that
took
place in early
fall.
One
of the
challenged statements
was
made
in
response
to
a
question
from
a
teacher
at
a
meeting
in
August
of
1984
called
by
temporary
teachers to discuss issues pertaining to
that
group
of
employees.
Some
statements
were
made
at
a
grievance
meeting,
August
7,
1984,
called to
discuss grievances
having
no
connection
to the
summer
school teacher salary issue. Finally,
one
of the statements
was
made
at
a
chance
meeting,
in the
fall
of
1984,
between
a
school
principal
and
a
teacher.
We
find the statements
in question are
not
"threats of
reprisal
or force or
promise
of
a
benefit."
They
instead
constitute
protected
employer
free
speech,
and
therefore
do
not
result
in, or tend to
result in
some
harm
to
employee
rights
granted
by
EERA.
Thus,
the Association
failed to establish
a
prima
facie
case of interference
under Carlsbad.
9
9
Since
we
find
no prima
facie case of interference,
we
need
not apply, as did the
ALJ
in this case, the remainder of theCarlsbad
test
which balances the extent of the
harm
to theemployees against the interests of the employer.
14
II. EXCEPTIONS RELATED TO THE PROPOSED ORDER THAT THE
DISTRICT CEASE AND DESIST FROM "INSISTING TO IMPASSE ON
NEGOTIATING ABOUT SUBJECTS OUTSIDE THE SCOPE OF REPRESENTATION
The ALJ found that the District illegally insisted to
impasse upon the following proposals which she concluded were
outside the scope of bargaining:
A. Three grievance proposals that limited the
Association's right to:
(1) Present grievances in its own name;
(2) Be physically present at all grievance meetings,
whether informal or formal, even if the employee
involved does not seek representation by the
Association; and
(3) Take grievances to arbitration without the
concurrence of the named grievant.
B. A proposal to maintain prior contract language that
provides that the parties waive their right to seek
unit modification or clarification during the term of
the contract; and
C. A proposal that the summer school article in the
contract apply only to employees who served the
employer as permanent, probationary or temporary
employees in the previous school year.
Each proposal will be examined separately.
A. THE GRIEVANCE PROPOSALS
Article 7 of the 1981-84 CBA contained provisions pertaining
to the grievance procedure. Initially, the Association proposed
numerous substantive amendments to this article. The District's
initial proposal suggested that the provisions of Article 7
remain unchanged in the successor agreement.
(1) Proposal That Association Waive the Right to Present
Grievances in its Own Name.
15
Factual Summary
Section 7.1 of the existing Agreement contained the
definitions of relevant terms of the grievance procedure. The
Association proposed to amend section 7.1.1 which defines a
"grievance." This section states:
[A] "grievance" is a written claim by an
employee, or group of employees, that there
has been a violation, misinterpretation, or
misapplication of the Agreement which
adversely affects the employee or group of
employees. (Underlining added.)
The Association proposed to delete the underlined language
above, which it says is, "unnecessary and open to varied
interpretation."
Section 7.1.2 defines a "grievant" as "an employee, or group
of employees, making the claim." The Association also proposed
to amend this section.
The proposed changes in both of these sections were intended
to permit the Association to be listed as a grievant in sections
7.1. 1 and 7.1.2. The Association believed that these additions
would clarify its right to grieve as set forth in section
7.3.4.4., this latter section states:
The Association, in behalf of the affected
teachers, may initiate a grievance which
affects more than one employee in a single
building, or employees in more than one
building, at Level II.
The District at first proposed "no change" in Article 7.
Later, in its June 21 settlement proposal, the District proposed
several modifications to Article 7. In particular, it
counterproposed the following language for section 7. 1.2:
16
A "grievant" is an employee, or group of
employees, making the claim. The right of
the Association to act in the capacity of
"grievant" shall be in accordance with
Article 7.3.4.4.
In the Association's June 22 written response to the
settlement proposal, the Association rejected this
counterproposal as a "pure status quo position" which the
Association asserted failed to address the Association's problem
with the District's recent interpretation of section 7.3.4.4.
The dispute over section 7.3.4.4 was based on differing
interpretations about whether this language permitted the
Association to grieve in its own name in any circumstance or
whether the right was limited to the type of situation stated in
section 7.3.4.4. The Association took the position that, as a
party to the contract, it had a legal right to file grievances in
its own name and that it was no longer willing to waive that
right.
The parties' positions regarding these proposals remained
unchanged at the time that impasse was declared in June and
throughout the entire impasse procedures.
Analysis
The District excepts to the ALJ's finding that by insisting
to impasse on the grievance proposals which would limit the
Association's right to file grievances in its own name, the
District failed to negotiate in good faith in violation of
section 3543.S(c). Specifically, the District argues that: (1)
the Association has no EERA right to present grievances in its
own name; (2) the Association breached its obligation to "take a
17
firm position" prior to reaching impasse that the proposals in
question were outside the scope of representation; and (3) it was
the Association, and not the District, that insisted to impasse
on these grievance proposals.
a. The grievance proposals are nonmandatory subjects of
bargaining.
In South Bay Union School District (1990) PERB Decision No.
791, a majority of this Board found, for different reasons, that
a proposal for a contract provision providing that the
Association had a right to file grievances in its own name was a
nonmandatory subject of bargaining. Consequently, the Board
held, the school district violated section 3543.5(c) by insisting
to impasse on the maintenance of contract language denying that
right.
Although the Board members who wrote the lead and concurring
opinions in South Bay both concluded that the proposal was a
nonmandatory subject of bargaining, they reached that result
through different analyses. Member Craib, noting that the
Association's right to grieve in its own name does not fall
within the subjects of bargaining enumerated in EERA section
3543.2, utilized a modified version of the test set out in
Anaheim Union High School District (1981) PERB Decision No. 177
to resolve the question of whether the proposal in question is a
man d a t ory sub Jee . t o f b argaining. ' ' 10 Having found the first two
10 The PERB will find a subject negotiable even though it is
not specifically enumerated as such in section 3543.2 if: (1) it
is logically and reasonably related to hours, wages or an
enumerated subject under "terms and conditions of employment,"
(2) the subject is of such concern to both management and
employees that conflict is likely to occur and the mediatory
18
prongs of
the
Anaheim
test
satisfied,
Memb~r
Craib modified
11
the
third
prong
of
the
Anaheim
test
to
address
the
situation
where
it
is
the
employee
organization,
rather
than
the
employer,
that is
refusing to
bargain
over
a
proposal
allegedly outside the
scope
of bargaining.
The
modified
third
prong
asks
the question
of
whether
compelling
the exclusive
representative to
negotiate
its
right
to present
and
process grievances
in
its
own
name
would
"significantly
abridge the
organization's
freedom
to exercise
those representational prerogatives
essential
to
the
achievement
of
the organization's
mission as
exclusive
representative."
Finding
the
third
prong
of
the
test
unsatisfied,
Member
Craib
concluded
that
the
proposal
in
question
is
nonmandatory.
The
ALJ,
in
the
instant
case, applied
essentially
the
same
analysis
to
reach her conclusion
that
all
of the grievance proposals
were
nonmandatory.
Member
Camilli,
who
wrote
the
concurring opinion
in
South
Bay, found
the proposal
in question to
be
a
nonmandatory
subject
of bargaining
based
upon
his
conclusion
that
the
association
has
a
statutory right,
pursuant
to
EERA
section 3543.l(a), to
file
influence
of
collective negotiations
is
the appropriate
means
of
resolving the
conflict,
and (3)
the employer's
obligation to
negotiate
would
not
significantly
abridge the employer's freedom
to exercise those managerial
prerogatives (including matters of
fundamental
policies) essential to the
achievement of the
employer's mission.
(Anaheim Union High School
District
(1981)
PERB
Decision
No.
177;
test
approved
in
San Mateo
City School
District
v.
PERB
(1983)
33
Cal.3d
850 [191
Cal.Rptr.
800]
.)
11
The
modification of the
Anaheim
test
was
originally
suggested in
a
proposed decision in the case of
San Diego Unified
School
District
(1987)
PERB
Hearing Officer Decision
No.
HO-U-314.
19
grievances
in
its
own
name.
He
found
it
unnecessary
to
apply
the
Anaheim
test
to
reach
this result.
12
In
this
case,
based
on
the
analysis
below,
we
adopt
the
rationale set
forth in
Member
Camilli's
concurrence
in
South
Bay,
but only
insofar
as
it
concludes
that
the exclusive
representative's right
to
file
grievances
in
its
own
name
is
a
statutory right,
and
that
a
proposal
that
the exclusive
representative
waive
that right
is
a
nonmandatory
subject of
bargaining.
In
Marine
Shipbuilding
Workers
v.
NLRB
(3rd
Cir.
1963)
320
F.2d
615,
[53
LRRM
2878],
a
case
cited
and
relied
upon by
the
ALJ,
the
proposal
in
question required the signature
of each
employee
involved before
a
grievance could
be
processed.
In
finding the
employer's
insistence
on
the proposal
to
impasse
to
be
an
unfair labor
practice,
the court
observed:
[T]he
Supreme
Court has
defined
mandatory
subjects
as
those within the phrase
"wages,
hours,
and
other
terms
and
conditions of
employment
[citati6ns]."
It
is
clear to
us
that
Bethlehem's proposal
does
not
come
within the
scope
of
that
phrase.
Although
at
first
glance
it
might
appear
to
be
a
"condition of
employment,"
actually the
12 Member
Camilli also
noted
that
he would
find the exclusive
representative's right to grieve in
its
own name
to
be
not only
a
statutory right,
but
a
statutory right that is
nonwaivable by
theunion. Here,
the Association
has not argued
that the
statutory
rights in question are
nonwaivable,
but only
that
it
was
unwilling to
waive them.
Since
this
case involves the
Association's unwillingness to
waive
its
statutory right torepresent
its
members,
we
find
it
unnecessary to decide whether
a
waiver of such
a
right,
if
agreed to
by
the Association would be
legal.
Chairperson Hesse dissented in South Bay.
finding the rightof
a
union to file grievances in its
own name
to be
a
mandatory
subject of bargaining.
20
effect of the proposal is to limit the
union's representation of the employees and
not to condition the employees' employment.
(Emphasis added.)
Under EERA, the Association's statutory right to represent
its members is found in Government Code section 3543.l(a) which
provides, in part, that 11 employee organizations shall have the
right to represent their members in their employment relations
with public school employers .. II PERB has recognized the
extent of that right in a number of cases. In Modesto City
Schools (1983) PERB Decision No. 291, the Board recognized that,
"[t]he grievance procedure is perhaps the most important point at
which employee organizations represent their members in their
day-to-day employment relations." (.liL.. at p. 28.) In Mt. Diablo
Unified School District. et al. (1977) EERB Decision No. 44, the
Board held that, "the grievance process is an 'employment
relation' within the meaning of 3543.l(a) and therefore employee
organizations have a statutory right to represent employees in
the presentation of their grievances."
In Rio Hondo Community College District (1982) PERB Decision
No. 272, the Board found the District violated EERA by its
refusal to permit the attendance of a union representative at an
informal grievance discussion. The Board acknowledged the "right
of employees to join together in an organization which may serve
as the vehicle by which they assert their interests in their
employment relationship. 11 The Board also noted:
[I]t is the nature of grievance resolution
that the manner in which a single employee's
grievance is resolved may serve as a model to
be followed should another employee raise the
same issue in the future. Thus, while the
21
immediate impact of a grievance resolution
may affect only the single employee directly
involved, the resolution is nevertheless a
matter of collective concern for the
individual's fellow employees.
(Id. at p. 10.)
In Chaffey Joint Union High School District (1982) PERB
Decision No. 202, the Board cited federal precedent in observing:
[T]he processing of grievances is a form of
continuing negotiations over the written
agreement [citations] in which the adjustment
of the grievance provides the meaning and
content to the general and often deliberately
ambiguous terms of the agreement [citations].
(Id. at p. 8.)
Thus, we adopt that portion of the ALJ's analysis which
states:
The system of labor relations created by the
EERA envisioned employees acting collectively
through a chosen exclusive representative to
bargain with their employer about matters
within the scope of representation. The
grievance procedure is a contractual tool for
enforcing the results of a negotiated
agreement. For contract violations to be
grievable and arbitrable only by the
initiation of an individual employee runs
counter to the EERA's statutory system of
collective action. In a system of collective
bargaining, the ability to challenge
contractual [sic] violations must lie with
the party that negotiated the contract, i.e.,
the exclusive representative. Any other
system makes the viability of the contract
dependent upon the willingness of each unit
member to stand individually.
(Proposed decision at p. 131.)
We therefore affirm the ALJ's conclusion that the District
violated EERA by insisting to impasse that the Association waive
its statutory right to file grievances in its own name, but
reject the ALJ's reliance on a modified version of the Anaheim
test to reach that result. Application of the Anaheim test to
22
determine the
negotiability
of
the grievance proposals
is
unnecessary since the
District is
not
actually
insisting to
impasse
on
a
term
or condition of
employment,
but
rather
is
insisting
that
the Association
waive
a
basic
statutory
right.
(See
discussion
of
Marine
Shipbuilding
Workers,
supra.)
b.
The
Association did not breach
any
legal obligation to
take
a
firm
position
that
the grievance proposals not
be
included
in the contract.
The
District
contends
that
the Association
had
an
obligation
to
and
failed
to
assert, prior
to
impasse,
that
the grievance
proposals
were
outside the
13
scope
of
representation.
In
Poway
Unified
School
District
(1988)
PERB
Decision
No.
680,
PERB
held
that
an employer
may
bargain over
a
permissive
and
nonmandatory
subject
of bargaining without
waiving
the
right thereafter to
take
a
position that
it
is
a
nonmandatory
subject. Clearly, the
District's
freedom
under
Poway
to
bargain
over
its
proposal
that
the Association
waive
its
statutory rights
did not
impact
the
Association's
freedom
to bargain, or,
having
bargained, not to
agree to the
District's
counterproposals.
Furthermore,
C
while
a
prior
agreement
may
be
some
evidence
that
an
exclusive
representative
might
again consent to
a
nonmandatory
contract
provision,
a
permissive subject
does not
become
mandatory by
13
The
District's reliance
on
the cases of Jefferson
School
District
(1980)
PERB
Decision
No.
133, and Healdsburg Union High
School
District
and San Mateo
City School
District
(1984)
PERB
Decision
No. 375
for this proposition is
misplaced.
The
essence
of the holdings in both Jefferson
and Healdsburg,
is that
where
an ambiguous proposal
is
arguably negotiable,
a
party cannot
refuse to bargain about
that proposal based upon
its
own
perception that the proposal is outside the scope of bargaining,
but must seek clarification of the proposal. In this case, the
proposals themselves were not ambiguous.
23
virtue of such an agreement. (Poway Unified School District,
supra, PERB Decision No. 680.)
On the other hand, while the parties may engage in
negotiations over proposals dealing with permissive, nonmandatory
subjects of bargaining, when one party subsequently decides to
take the position that the nonmandatory proposal not be included
in the contract, that party must express its opposition to
further negotiation on the proposal as a prerequisite to charging
the other party with bargaining to impasse on a nonmandatory
subject of bargaining. (Lake Elsinore School District (1986)
PERB Decision No. 603; Laredo Packing Company (1981) 254 NLRB 1
[106 LRRM 1350]; Union Carbide Corporation. Mining and Metals
Division (1967) 165 NLRB 254, 255, enforced sub nom. Oil,
Chemical and Atomic WorkerJs International Union, Local 3-89,
AFL-CIO v. National Labor Relations Board (D.C. Cir. 1968) 405
F.2d 1111.)
In Lake Elsinore, having concluded that a settlement
proposal presented by the district to the association was a
nonmandatory subject of bargaining, this Board noted that:
... the mere proposing of these terms for
settlement ... was not per se unlawful or
in violation of the District 1 s duty to
bargain in good faith. [Citations.]
But, on the same date that the District
presented this initial settlement offer to
[the Association], [the Association] clearly
placed the District on notice that it would
not bargain over the non-mandatory subjects,
i.e., the withdrawal of the pending
grievances and unfair practice charges. [The
Association 1 s chief negotiator] even went
further by stating to the District that if it
persisted in its position regarding the non
mandatory subjects, [the Association]
24
considered
that
the
District
was
ttlaying
the
groundwork
for
an
unfair practice
charge."
Hence,
even though
the
District
was
entitled
to
propose terms
for settlement,
which
it
hoped would
finally
resolve the
numerous
disputed matters
between
the
parties
and
included
non-mandatory
bargaining
subjects,
it
could
not
legally
insist
upon
[the
Association's]
acceptance
of
the
"total
package"
in
the
face of
a
clear
and
express
refusal
by
the
[Association]
to
bargain
over
the
non-mandatory
aspects
of
the settlement
proposal.
(Id.
at
pp.
27-28.)
Thus,
the question
under
the
Lake
Elsinore
test is
whether,
at
any time,
the Association put the
District
on
notice
that
it
would
not bargain
over
the
grievance proposals. After observing
that
Buress
testified
that
the Association believed
it
had
a
legal right to
be
a
named
grievant,
the
District asserts that:
"There
is
no
credible
evidence
that
the Association
prior to
impasse
asserted
that
it
had
a
legal
right
under
the
EERA
to
be
a
named
grievant."
(District's
exceptions,
pp.
22-23.) In
fact,
the Association did
indicate to the
District that
it
intended
to
stand
on
its
legal right
to represent
its
members
by
filing
grievances in
its
own
name.
The
District's
attorney
elicited
the following testimony
on
cross-examination of
Frank Buress,
the Association's chief
negotiator:
Q:
"Did
the Association take
this issue [the
Association
1 s
right to
file
grievances in
its
own name]
to factfinding?"
A: ~I
believe so, yes."
Q:
"Prior to
and
incl
this
matter, did the Association or
you
ever
indicate to the District that
it
was
insisting
on
a
matter outside the scope of
representation?"
uding factfinding in
A: ttwe
believed
we
had
a
legal right
and
that
we
weren
1 t
prepared to agree to language
25
which
the
District
asserted
was
a
waiver
of
that right
and
that
we
notified
them
that
we
wished
to
withdraw
any
waiver implied
by
the
current
language."
Q:
"And
what
was
that
legal
right that
you
discussed
with
the
District,
if
you
discussed
it?
What
specifically
was
the
legal
right
that
we
were
discussing
with
the
District?"
A:
"We
believed
that
as
a
party to
the
contract
we
had
in
the
absence
of
a
restriction
that
says
the Association
may
not
grieve,
a
legal
right
to
file
grievances.
11
Q:
"So
if
I may
rephrase
it
and
put
it
to
you
this
way:
you
indicated to
the
District
that
the Association
had
a
legal right
to
be
a
named
grievant,
is
that
correct?"
A:
"And
that
we
were
not
going
to
agree
to
waive
that
through
the
District's
interpretation
of the
current
Contract
language."
(Transcript,
Vol.
IX,
pp.
1020-
1021.)
Obviously,
this
case
is
not as
clear
as
that
addressed
by
this
Board
in
Lake
Elsinore.
Whereas
in
Lake
Elsinore the
association clearly stated that
the
district's
persistence
in
bargaining
over
a
nonmandatory
subject
of bargaining
would
result
in the filing
of
an
unfair practice
charge,
in
this
case
we
have
no
such unequivocal
statements. Nevertheless, while the
Association did not
explicitly state that
the proposals
in
question
were
"outside the
scope
of bargaining," the Association
did
make
clear
its
contention
that
it
was
improper
for the
District
to
insist
on
language which
it
believed deprived
the
Association of
its
statutory rights.
Notably,
the
District
introduced
no
testimony
from
its
own
witness
and
chief negotiator
to dispute the testimony
set forth
above. While
this is
a
close
case,
we
find the Association's statements sufficient to put the
District
on
notice that the Association
was
unwilling to
waive
its statutory right to represent its
members.
26
c.
The
District
did
insist
to
impasse
on
the grievance
proposals.
The
District
argues
that
it
was
the Association,
and
not
the
District,
that insisted
on
taking the
grievance proposals
to
impasse.
At
the
time
that
impasse
was
declared, the Association
was
proposing
that
the
grievance
provisions
in
the
prior contract
be
modified
to
reflect
what
the Association believed
was
its
statutory right
to represent
its
members
in
their
employment
relations
with
their
employer.
The
District
counterproposed,
first
by
insisting
on
maintenance
of
the
grievance
provisions of
the
prior
contract,
and
then
by
proposing
some
modifications,
that
the
Association
waive
that statutory right.
Contrary
to the
District
1 s
assertion that
the Association
pushed
the
parties
to
impasse,
it
is
apparent
from
the record
that
both
parties realized,
at essentially
the
same
time,
that
they
had reached
an impasse
in
their
negotiations.
During
the
hearing, the
District
took pains to
try
to
establish that
it
was
the Association
that
first
uttered the
word
"impasse."
The
Association
countered
that
it
was
the
District that filed the
first
declaration
of
impasse form.
Neither of these facts
is
determinative.
PERB
must
look
to the history
of the bargaining,
the substance of the proposals,
and
the contents of the
declarations
of impasse
to
determine whether
a
party
can be
considered to
have
"insisted to
impasse" on
a
particular
proposal.
In this case,
a
review of the bargaining history
and
the
substance of the proposals and counterproposals supports the
ALJ 1 s
conclusion that the District insisted to impasse on
its
27
counterproposals
that
the Association
agree
to contract
language
which
constituted
a
waiver of
the Association
1 s
statutory
right
to
file
grievances
in
its
own
name.
14
Throughout
the
negotiations
and
impasse
procedures, the
District
maintained
its
status
quo
position.
By
refusing
to relinquish
the
nonmandatory
subject
once
the Association
communicated
its
refusal to include
the
nonmandatory
subject in
the
collective
bargaining
agreement,
the
District
violated section
3543.S(c).
(2)
Proposal
That
Association
Waive
Right
to
be
Physically
Present
at
Grievance Meetings
Where
Employee
has not Requested
Representation.
Factual
Summary
The
Association
asserts that
the
District insisted to
impasse
on
a
provision giving
the
employer
the
right
to resolve
grievances with
individual
employees
without the
intervention
of
the Association.
The
disputed
language
is
found
in sections
7.2.
1
and
7.4.2
of the
1981-84
CBA.
Section 7.2.1
states
the
purpose of the grievance procedure
and
reads as follows:
7.2.1.
The
purpose of
this
grievance
procedure
is
to secure,
at
the administrative
level closest to the grievant, solutions to
problems which
may
arise
from
time
to
time.
The
parties
agree
that confidentiality at
any
level
should
be
maintained.
The
grievance
procedure
shall
not
be
construed as
in
any
way
hindering, discouraging, or
denying
the
settlement of
problems
outside the structure
of the grievance procedure.
(Emphasis
added.)
The
Association proposed to delete the language underlined above.
14
In contrast, the record
shows
the Association lawfully
insisted
on the elimination of
a
provision that
was
in the prior
contract
and
that covered
a nonmandatory subject.
28
Section 7.4,
et.
seq., pertains
to
the
rights
of
unit
members
to repres~ntation.
Section 7.4.2
stated
the
following:
7.4.2.
An
employee
may
be
represented
at
all
stages
of the
grievance procedure
by
himself/herself,
or
at
his/her
option,
with
a
representative selected
by
the
Association.
If
an
employee
is
not
represented
by
the
Association or
its
representative,
the
Association
shall
have
the opportunity
to
be
present
and
to
state
its
views
at
all
formal
stages
of
the
grievance procedure.
(Emphasis
added.)
The
Association
proposed
to delete the
word
11
formal
11
underlined
above.
The
Association
viewed
the
language
of
section 7.2.1 as
allowing
unit
members
to
utilize
a
nonnegotiated procedure
to
resolve contract-related
problems.
The
term "formal"
in section
7.4.2
was
regarded as
permitting
an
employee
to adjust grievances
without the
involvement
of the Association
at
all
levels of the
grievance procedure.
The
District
initially
proposed
no
change
in either
of these sections
of the
Agreement.
The
parties
had
extensive negotiations
over
the grievance
procedure
at
the
May
21, June
21
and June
26
bargaining
sessions.
In
its
June
19
counterproposals, the Association took
the
position that
its
proposed
modification of section 7.4.2
was
not
necessary
if its
suggested
changes
to sections 7.2.1
and
7.3.1
were
accepted.
15
15
s
ection
7. 3.
1
stated
as follows:
7.3.1 Informal Level
The
grievance [sic] will first
discuss the
grievance with the appropriate principal or
immediate supervisor with the objective of
resolving the matter informally.
29
Analysis
The
District
excepts
to
the
ALJ's
finding
that
"the
term
'formal' in
Section 7.4.2
was
regarded as
permitting
an employee
to
adjust
grievances without
the
involvement
of the Association
at
all
levels
of
the
grievance procedure."
The
District
contends
that
the
language
only
states that
the Association
shall
be
present
at
all
formal
stages.
On
this
point,
the
District
is
technically correct.
The
District
is
also correct in
its
observation
that
the contract
language
is
actually
silent
as
to
whether
the Association
may
be
present
at
any
informal
level
of
the grievance procedure.
The
District
admits,
however,
that
the
existing contract
language could
be
fairly
interpreted
as
excluding
the Association
from
being
present
at
informal grievance
meetings
where
it
is
not
representing the
employee
grievant. Citing
EERA
section
3543,
the
District
argues
that
the Association
has
no
right to
be
physically present
at
grievance
meetings
where employees do
not
seek
representation
by
the Association.
We
agree.
The
Association's right to represent,
found
in section
3543.
l(a), is
limited
by
the
rights
granted
to
employees
in
section
3543, which
provides, in pertinent part:
. Any
employee
may
at
any time
presentgrievances to his
employer, and have such
grievances adjusted, without the interventionof the exclusive representative,
as long as
the adjustment
is
reached
prior to
arbitration.
and
the adjustment
is
not
inconsistent with the terms of
a
written
agreement then in effect;
provided
that the
public school employer
shall not agree to
a
resolution of the grievance until the
exclusive representative has received
a copy
of the grievance and the proposed resolution
30
and
has been
given
the opportunity
to
file
a
response.
(Emphasis
added.)
This
section
permits
employees
to
participate
in
grievance
processing
with
their
employer
without
the
intervention of the
Association.
The
Association
1 s
right
to represent
and
enforce
its
collective
bargaining
agreement
on
behalf
of
all
unit
members
is
protected
by
the proviso
in
section
3543,
which
requires
that
the exclusive representative
be
notified
of the grievance
and
proposed
resolution,
and be
afforded
an
opportunity
to
respond.
Since
we
find
that
the
District's
proposals
in
this
regard
do
not infringe
on
the
Association's statutory right
to represent
its
members, and
since individual
employees have
a
statutory
right
to adjust
their
grievances without the
intervention of the
Association pursuant to section
3543,
we
find the
District
was
within
its
right in insisting
to
impasse
on
its
proposal
restricting
the Association
from
being
physically present
at
informal grievance meetings.
16
(3)
Proposal Limiting
Association's
Right
to Arbitrate
Grievances.
Factual
Summary
The
Association alleged
that
the
District insisted to
impasse
on
a
provision that prohibits the Association
from
taking
a
grievance to arbitration
without the consent of the individual
16
Since
we
find that the District
did not violate the
EERA
in insisting to
impasse on
this proposal,
we
need not address the
District
1 s
arguments
that the Association insisted to impasse on
the proposal and
that the Association failed to "take
a
firm
position" prior to reaching impasse
that the proposal
was
outside
the scope of representation.
31
grievant.
The
dispute
arose
after
the Association
proposed
to
delete
the
language
to
which
it
objected
from
section 7.3.6
of
the
grievance procedure.
Initially,
neither
party
proposed
a
change
in section 7.3.6.
During
the
May 21
negotiations,
however,
the Association
submitted
a
written
proposal
to the
District
to delete the
following
language
which
it
considered "unnecessary."
The
disputed clause reads:
[I]f
the grievant
is
not
satisfied
with
the
disposition
of the grievance
at
Level
III,
the grievant
may,
within ten
(10)
duty days,
file
a
written
request
with
the Association
that
the Association
submit
the
grievance
to
arbitration.
The
Association
will
determinewhether
the matter
may
go
to
Level
IV.
The
Association
contended
that this
language concerns
a
matter
that
should
be
determined
solely
between
the Association
and
the
affected
member(s)
of
the bargaining
unit.
The
District
submitted
a
written
counter
to
this
proposal
in
the
June
21
settlement proposal.
It
stated, in relevant
part:
[T]he
Association
will
determine whether
the
matter (grievance)
goes
to
Level
IV
providing
the grievant
wishes
the grievance
to
be
appealed
to arbitration.
In
its
June
25
analysis of the settlement proposal, the
Association rejected this
counter,
stating that
it
had
"absolutely
no
affect [sic]
on
status
quo
...
II
(Underline
in
original.)
The
District offered
no
additional oral or written
counterproposals at this
time
prior to the declaration of
impasse.
The
arbitration issue remained in dispute through the
factfinding process. In its factfinding submission, the District
32
stated that
its
June
21
proposal represented
a
"compromise"
position, in
that
the individual grievant
would
no
longer
be
required to
file
a
written
request
with
the Association
in
order
for the
matter
to
be
submitted
to
arbitration.
The
Association
took
the position
that
the
District's
insistence
on
its
proposal
was
improper.
Analysis
In
its
exceptions, the
District
argued
that:
( 1)
the
Association
has
no
EERA
right
to
take
a
grievance
to
arbitration
without the
concurrence
of the grievant;
(2)
the Association
breached
its
obligation to
"take
a
firm
position"
prior to
reaching
impasse
that
the proposal
was
outside the
scope
of
representation;
and (3)
it
was
the Association,
and
not
the
District,
that insisted
to
impasse
on
the grievance
proposals.
The
District's
argument
that
the Association
has
no
EERA
right
to take
a
grievance
to
arbitration is
rejected.
As
is
the
case with
the grievance proposal
prohibiting the
Association
from
filing in
its
own
name,
the proposal
limiting
the Association's
ability
to
take
a
grievance
to
arbitration
without the
grievant's
approval impinges
upon
the Association's
statutory right to represent
its
members
and
is therefore
a
nonmandatory
subject of bargaining. Clearly, limiting
an
exclusive representative to arbitrating
only those grievances
an
individual
employee has requested or consented
to arbitrate,
has
the
same
adverse impact upon
the exclusive representative's
ability to represent the "unit" in
its
employment
relations, as
33
does requiring the individual employee's consent to initiating
the grievance.
Contrary to the District's assertion, we find that the
Association did take a firm position, prior to impasse, that the
proposal in question was outside the scope of representation.
The following testimony was elicited by the District's attorney
on his cross-examination of Buress.
Q: 11 What was the specific thrust of the
charge in Paragraph 12(E), and does it relate
to specific language that was in the
collective Bargaining Agreement which is
Association Exhibit No. 3? 11
A: "The Association believed that it had the
ability to determine whether or not a dispute
should be interpreted through the arbitration
provisions it had negotiated in the
Agreement, and so informed Mr. Zampi. We
believed it was improper, and so told him for
the District to insist on language which
allowed an individual employee to determine
whether or not the organization could proceed
to arbitration. 11
(Transcript, Vol. IX, p. 1026.)
As was the case with the proposal prohibiting the Association
from filing grievances in its own name, the Association never
stated explicitly that the arbitration proposal was outside the
scope of bargaining. The Association did inform the District,
however, of its position that the District's insistence on the
proposal was improper.
Finally, we reject the District's argument that it was the
Association, and not the District, that insisted to impasse on
the arbitration proposal. As noted above, the issue remained, as
did the other grievance issues, in dispute through the
34
factfinding process. The District's proposed language remained
part and parcel of its proposal for settlement of the contract.
By failing to relinquish the nonmandatory subject once the
Association communicated its refusal to include the nonrnandatory
subject in the collective bargaining agreement, the District
violated section 3543.S(c).
B. UNIT MODIFICATION/CLARIFICATION PROPOSAL
Factual Summary
Section 2.1 of the CBA names by title, those classifications
expressly included and excluded from the bargaining unit. The
major thrust of the proposed modification to section 2.1 was to
update the titles of those classifications already in the unit
and add to the unit summer school teachers and long-term
substitutes who were expressly excluded. Section 2.2 read as
follows:
The Board and Association agree that the
composition of the bargaining unit is
appropriate and that they will not seek a
clarification or amendment of the unit,
either as to the specific exclusions or the
specific inclusions except that both parties
to this agreement shall attempt to agree on
the status, for purposes of recognition, of
any disputed newly created position in the
unit as a result of a change in the job
description. If the parties cannot agree,
either or both parties may submit the dispute
to PERB, which is the proper agency to
determine said dispute. Thereafter, should
there be a decision by PERB regarding
classification additions or deletions
specific to the above bargaining unit
listings, this Section shall be amended to
abide by that decision.
(Emphasis added.)
The Association proposed to delete all of the language of
section 2.2 and replace it with new language pertaining to unit
35
clarification
and/or modification.
The
language
of
the
first
sentence
of
section
2.2
was
particularly
objectionable to the
Association.
In
its initial
proposals, the
District
wanted
no
changes
in Article
2.
The
parties
discussed
this
article
during
several
negotiating
sessions
prior
to
June
26,
1984.
Negotiations
occurred
in
connection with
the Association's
proposed
new
Article
55
covering
summer
school
teachers
and
its
proposal
about
long-term
substitutes.
Analysis
The
District
excepts
to the
ALJ's
finding
that
the
District
failed
to
bargain
in
good
faith
when
it
insisted
to
impasse
that
the Association
waive
its
right
to
seek
unit
modification.
The
District's
specific
exceptions
to
this
finding are
not
entirely
clear.
The
District
appears
to
be
making two
arguments,
in
the
alternative. First,
the
District
seems
to
be
arguing
that
the
subject
of
unit recognition/modification/clarification
is
a
mandatory
subject
of bargaining.
Alternatively, the
District
argues
that
the unit recognition/modification/clarification
proposal
is
a
nonmandatory,
permissive subject, but the
District
did not
commit
an
unfair labor practice in insisting to
impasse
because:
(a)
the Association
failed to take
a
firm
position that
the proposal
was
outside the
scope
of bargaining,
and
therefore
it
cannot object that the District insisted to
impasse on
a
nonmandatory
subject;
and, (b)
it
was
the Association, not the
District, that
took negotiations to impasse.
36
The
ALJ
adequately addressed
and
properly
rejected the
District's
argument
that
the
unit modification/clarification
was
a
mandatory
subject
of bargaining.
Under
federal
law,
the recognition clause
is
not
a
mandatory
subject
of
bargaining.
(See
NLRB
v.
Wooster
Division of
Borg-
Warner
Corporation
(1958)
356
U.S.
342
[42
LRRM
2034].)
Likewise,
the
composition
of
the bargaining
unit
is
not
a
mandatory
subject of bargaining.
It
is
therefore,
an
unfair
labor practice for
either
party to
insist
to
impasse
and
that
employees
be added
to
or
excluded
from
a
certified
unit.
The
final
determination of the appropriateness of the bargaining
unit
lies
within the
power
of
the
NLRB.
(See
Douds
v. Longshoremen's
Association
(2d
Cir.
1957)
241
F.2d
278
[39
LRRM
2388].)
The
scope
of
the bargaining
unit
is
not
a
specifically
enumerated
subject in section
3543.2.
Nor
has
PERB
specifically
ruled
on
the matter
as
a
scope
of
representation issue.
17
In
El
Monte
Union High
School
District,
supra, the
Board
addressed the
waiver
provision in the
parties' collective
bargaining
agreement
recognition
article
and
determined
that
it
17
In
Davis
Joint
Unified
School
District
(1984)
PERB
Decision
No.
474,
PERB
held
that
the
district
did not
violatesection
3543.5(c)
by
refusing to bargain about
teachers not in
the bargaining unit represented
by
the exclusive representative.
In Davis,
a
question existed
about the appropriateness of the
unit at
the time
that negotiations
were demanded by
the exclusive
representative.
However,
the composition of the bargaining unit
itself
was
not addressed in
Davis as
a
scope of representation
issue. Neither did
PERB
specifically address unit composition as
a
"scope of representation issue" in the case of El Monte Union
High School
District
(1982)
PERB
Decision
No.
220,
discussed
infra. Instead, the case
was
before the Board
after the
district
engaged in
a
technical refusal to negotiate with the exclusive
representative in order to test
PERB's
unit determination.
37
did
not
preclude
the
Board from
exercising
its
statutory
authority
to
determine
the appropriate
unit.
In
so
concluding,
the
Board
relied
upon
federal sector
cases
which
rejected
contractual
provisions
that
waived
the union's
statutory
rights.
The
Board
noted
that:
[U]nder
the
NLRB, a
waiver
provision
will
not
be
upheld
where
the
waiver
is
in
derogation
of
the
bargaining
representative's rights
under
the
Act,
Bethlehem
Steel
Corp.
(1950)
89
NLRB
341
[25
LRRM
1564],
or
where
its
enforcement might
dilute
employees'
rights
under
the
Act.
NLRB
v.
Magayox Co.
(1974)
415
U.S.
323
[85
LRRM
2475].
(Id.
at
p. 6.)
Indeed,
the
NLRB
has
held
that
it
is
contrary
to
the basic
philosophy of
national labor
law
policy to
permit
a
union
or
an
individual
employee
to contract
away
the
jurisdiction
of
that
board as
established
by
Congress. (Local
743,
IAM
v.
United
Aircraft
Corporation
(D.C. Conn. 1963)
220
F.2d
1953
[53
LRRM
2904]; enforced
(2d
Cir.
1964)
337
F.2d
[57
LRRM
2245].)
Given
the
similarity
between
the
powers
of the
NLRB
to
approve
and
define
an
appropriate bargaining
unit
and
the
statutory authority of
PERB
to
determine
appropriate bargaining
units or
approve
modifications to units,
we
find the federal
sector
precedent persuasive
and
hold
that
a
proposal dealing with
the composition of
a
negotiating unit is
not
a
mandatory
subject
of bargaining
under
EERA.
Here, the contested waiver clause
was
intended to preclude
either the Association or the District
from
exercising unit
modification rights provided by
PERB
regulations and, in effect,
to contract
away
the jurisdiction of the
PERB
to approve
unit
38
modifications.
Applying
the
conclusions of
the
Board
in
El
Monte
Union
High
School
District
to
this
provision,
it
is
concluded
that
the
waiver
clause
covers
a
nonmandatory
subject
which
contravenes the Association's
unit
modification
rights
under
EERA. As
such,
the
District
could
not
lawfully
insist
to
impasse
upon
maintaining
this
language
in
the
agreement.
(Lake
Elsinore
School
District,
supra,
PERB
Decision
No.
603.)
The
District,
in
the
first
instance,
had
no
lawful
obligation
to negotiate
about
the recognition
of
summer
school
teachers or
long-term
substitutes,
since
neither
group
of
employees
was
in the bargaining
unit
at
the
time
of the
negotiations.
Despite
the
parties
1
voluntary
agreement
to
include
this
proposal
in
their
negotiations,
and even
though
the
disputed provision
was
contained
in
the
1981-84
CBA,
it still
remained
a
nonmandatory
subject
of
negotiations. Therefore,
it
is
determined
that
by
insisting
on
the inclusion
of
a
waiver
clause
which
covered
a
nonmandatory
subject of
negotiations, the
District
committed
a
per
se
violation
of the
duty
to bargain
in
good
faith
imposed by
section
3543.S(c).
The
record
does
not support the
District
1 s
argument
that
the
Association failed to take
a
firm
position that
the proposal in
question
must
not
be
included
in the contract
between
the
parties.
The
following exchanges took place
between
the
District
1 s
attorney
on
the cross-examination of Buress:
Q:
"Do
you have any
information
that the
Association, prior to the Unfair Practice
Charge being
filed in
August of
1984,
ever
indicated to the District that the matter in
Article 2.2
is outside the scope of
representation?"
39
A: "We
told
the
District
we
no
longer
wish
to
waive
any
rights
to
seek
amendment.
And
if
that
answers your
question
in
the
affirmative,
the
answer
would
be
yes."
Q:
"Well,
it
doesn't
answer
my
question.
Let
me
rephrase
it.
Did you
ever
tell
the
District prior
to
the
filing
of
the
unfair
practice
charge
that
the matter
in Article
2.2
was
outside
the
scope
of representation?"
_
A:
"I
don't
know
that
I
used
those exact
words, no.
"
Q:
"Did you
in
any
way
object to the
Public
Employment
Relations
board
in or
about
July
or
June
of
1984
that this
matter
was
outside
of
scope
and
should
not
go
to
impasse?"
A:
"No.
.
11
Q:
"Did you
at
any
time
to
the
factfinding
panel
indicate
that
the matter
in Article
2.2
was
outside the
scope
of
representation?"
A:1
11
I
do
not
recall."
Q: "Do
you
recall at
any
time
any
representative
of
the Association objecting
to
Article
2.2
in negotiations or
impasse
or
factfinding,
the matter
in Article
2.2
was
outside the
scope
of
representation?"
A: "When
you
say
outside the
scope
of
representation,
we
told
him
it
was
something
that
we
didn't
have
to
agree
to,
and
we
didn
1 t
wish
to
waive
it
anymore, and
to
that
extent
I
guess
we
did
tell
him
that."
Q:
"And
when
did
you
say
that?"
A:
"At
the bargaining
table."
Q: "When?"A:
"I
don'
t
remember when.
"
(Transcript,
Vol.
VIII,
pp. 1010-1011.)
Notably, the
District
introduced
no
testimony
by
its
own
witness
and
chief negotiator,
Zampi,
to contradict the testimony
set
forth
above.
There
is
nothing
in the
law
that
says
a
party
needs
to
chant
the
magic words
that
a
specific subject is
outside the scope of
representation to preserve
its
right, after
having bargained
about
a
nonrnandatory
subject, to take the position that the
nonmandatory proposal shall not be included in the contract. In
The Developing Labor
Law
(2d ed. 1983)
author Morris
states:
40
Either party may bargain about a permissive
topic as if it were a mandatory subject
without losing the right, at any time before
agreement is reached, to take a firm position
that the matter shall not be included in a
contract between the parties.
(At p. 847; emphasis added.)
Although this ·is admittedly a close case, we find that in
stating that the proposal in question was something that the
Association "didn't have to agree to" and that the Association
"didn't wish to waive [its rights] anymore, 11 the Association was
taking 11 a firm position that the matter shall not be included in
a contract between the parties" and met the test set forth in
Lake Elsinore. (See discussion supra, at pp. 24-25.)
We also reject the District 1 s argument that it did not
insist to impasse on the unit modification/clarification
proposal. As noted above, the District included its
counterproposal on unit modification/clarification in its June 21
settlement proposal despite the fact that the Association had
indicated that it was no longer willing to waive any rights to
seek modification of the unit. Once the Association communicated
its refusal to waive its right and refusal to include the
nonmandatory subject of bargaining in the collective bargaining
agreement, the District 1 s insistence that the proposal be
included violated 3543.S(c).
C. SUMMER SCHOOL PROPOSAL
Factual Summary
At the time that negotiations between the Association and
the District commenced, summer school teachers were expressly
excluded from the bargaining unit represented by the Association.
41
Nonetheless, the
parties
agreed
to negotiate
over
hours,
wages,
and
other
terms
and
conditions
of
employment
for these
employees.
Written
proposals covering
these subjects
were
exchanged on
May
9, 1984.
A
provision
pertaining to
summer
school
teachers
was
considered
as
a
potential
new
article
in
the successor
agreement.
The
parties
exchanged
several
written
proposals
about
summer
school teachers
between
May 9
and
June
25,
1984.
All of
these
were
conceptual
in
form,
i.e.,
written in
general
terms
rather
than
specific contractual
language.
Throughout
this
time,
the
proposals
of both
sides regarding
unit
inclusion
simply
stated:
[I]nclude
summer
school
teachers in unitdescription in Article
II [sic].
At
the afternoon session
of the
June
13
negotiations, the
District
presented
its
unit inclusion
proposal
in contract
language
that
read
as
follows:
Teachers
who
teach
in
summer
school
and were
classified
as temporary,
probationary, or
permanent
in
the
immediately
preceding
regular
school year
shall
be
considered
unit
members
for
purposes of
employment
in
the
summer
school
program.
The
Association
immediately
rejected
this
proposal,
stating
that
it
viewed
this
language as
more
restrictive
than the concept
proposal
that
the
District
made
during the
morning
session of
June 13. Nothing
in the record
shows
that
the
District
sought to
withdraw
this
proposal
from
the negotiations, prior to or
on
June 26, 1984,
the date that the parties declared impasse.
Analysis
The
Association alleged that the District violated the duty
to bargain in
good
faith
by
insisting to impasse on
the inclusion
42
of
the
June
13
summer
school
proposal,
a
nonnegotiable
or
permissive provision,
in
the
successor
Agreement.
The
ALJ
concluded
that
the
summer
school
proposal
was
a
nonmandatory
subject
of
bargaining,
citing
Healdsburg
Union High
School
District et
al.,
supra,
PERB
Decision
No.
375.
In
Healdsburg
Union High
School
District, et
al.,
supra, the
Board
considered
the
negotiability
of
a
proposal
by
the exclusive
representative
of
a
classified unit
regarding
substitute
employees
who
were
not included
in
the
classified
unit.
The
Board
concluded
that
the proposal
was
outside the
scope
of
representation
because
it
sought
to negotiate for
employees
outside
the
classified
unit.
A
similar
determination
was made
concerning
the union's
proposal regarding short-term
employees,
even though
that
proposal
related
to
wages and
hours.
The
Board
concluded
that
the
employees
for
whom
the
union sought
to
negotiate
were
outside
of the bargaining
unit
which
it
represented.
Thus,
the proposal
was
nonnegotiable.
It
is
undisputed
that
summer
school
teachers
were
not
in
the
bargaining unit
represented
by
the Association
when
negotiations
occurred in the spring
and
summer
of
1984.
In applying the
Healdsburg holding
to these
facts,
the
ALJ
determined
that:
(1)
the
District initially
had
no
obligation to bargain with
the
Association
about wages, hours
and
other
terms and
conditions of
employment
of these
employees; (2)
all
proposals
related to these
employees were nonnegotiable; and (3) even though
the parties
voluntarily undertook to negotiate about various topics
concerning these employees,
some
of which concerned matters
43
within
the
scope
of
representation, neither party
had
a
right
to
insist
to
impasse
on
the
inclusion
of
the provision
in the
new
agreement because
it
was
nonnegotiable.
The
District
excepted
to the
above
conclusions
on
the
grounds
that:
(1)
the Association
never
alleged
in
its
charge
that
the
District
committed an
unfair practice
by
insisting
to
impasse
on
this
issue;
therefore,
the
District
had
no
notice
that
the
unalleged
conduct
might
constitute
the basis for
an
independent
violation;
(2)
the Association
never took
a
firm
position that
the
summer
school
article
should
not
be
included
in
the
contract;
and
(3) the
initial
language
was
proposed
by
the
Association
and
the
District
only
made a
counter-proposal.
18
There
is
no
evidence
in
the record
that
the Association ever
took
a
firm
position
that
the
District's
summer
school
proposal
not
be
included
in
the
contract.
This
failure
of proof
mandates
our
reversal
of the
ALJ's
finding
that
the
District
illegally
insisted
to
impasse
on
this
proposal.
In
summary, by
insisting
to
impasse
on
nonmandatory
subjects
of bargaining, the
District
committed
per
se
violations of
its
section
3543.S(c) duty
to bargain
in
good
faith. Additionally,
the
District's
continued
insistence,
through
the
statutory
impasse procedures,
on
including
nonmandatory
subjects in
its
proposals
on
unit recognition
and
the grievance procedure
constituted
an unlawful
failure to participate in the impasse
18
rt is
unnecessary to address the
first
and
third of these
exceptions since
we
find
no
violation
based on
the fact that the
Association never communicated,
after
having bargained on
this
permissive subject, its insistence that this proposal not be
included in the contract.
44
procedure
in
good
faith
in
violation
of
section
3543.S(e).
(See
generally,
Moreno
Valley Unified
School
District
v.
PERB
(1983)
142
Cal.App.3d
191
[191
Cal.Rptr.
60]
.)
III.
FAILURE
TO
PROVIDE REQUESTED INFORMATION
A.
PERSONAL
LEAVE
Factual
Summary
In
mid-February
1984,
Buress
and
Zampi
met
informally
to
discuss
various
employment
matters of
concern
to
each
of
them.
During
the
course of
their
discussion
regarding the
use
of
personal necessity
and
compelling
personal
importance
leaves,
Zampi was
quoted
by
Buress as
saying
that
the
District
was
going
to "tighten
up'' on
its
reasons
for
approving both
categories
of
leave
because too
many
teachers
were
using personal
necessity
leave.
Zampi
further stated that
the
District
had
compiled
a
list
that
contained
all
the reasons for
which
the
District
would
approve
such
leaves
in
the future.
At
the
time
of
this
conversation,
Buress
was
unfamiliar
with
the policy
and
practice in the
District
regarding the approval or
disapproval of
such
leave.
The
language
of the
Agreement
did
not
contain
any
guidelines
as
to
what
constituted appropriate use of
personal necessity leave.
Subsequent
to
their
meeting, Buress
sent
a
letter
to
Zampi
on
February 29, 1984,
requesting
information about any
District policy, other than the language in
the
Agreement, which
described the difference
between
the
two
types of leaves and when
each could or could not be used.
Zampi
did not respond to this letter.
45
Article
14
of the
1981-84 Agreement
contained
provisions
pertaining
to
both
types of
leave.
19
In
their
initial
proposals
for
a
successor
agreement,
neither
the Association
nor
the
19
Article
14,
sections
14.1
to
14.2.3,
state
as
follows:
PERSONAL NECESSITY-COMPELLING PERSONAL
IMPORTANCE
LEAVE
14.1
Personal Necessity
14.1.1 Personal
necessity
leave
shall
be
granted with
pay.
When
possible, application
shall
be
made
prior to
leave.
Forms
for
such
leave
shall
be
mutually agreed
upon and
placed
in the
appendix
for the duration of
this
Agreement.
14.1.2 Entitlement
to three
(3)
days
of
personal necessity
leave accrues
to
each
employee
annually.
The
unused
portion
shall
accumulate
to ten
(10)
days.
Part-time
employees
shall
be
entitled
to
a
prorated
amount
of
such
leave.
14.1.3 In
any
year,
a maximum
of
ten
(10)
earned
and unused days
may
be used
forpersonal necessity.
14.2 Compelling
Personal
Importance
14.2.1
Each employee
who
has completed
three
(3)
years of service
with the
District isentitled
to
use
one (1) day
leave forpersonal business
if
it
is
beyond
the
ability
of the
employee
to
schedule outside ofworking hours.
14.2.2 This leave
may
be accumulated
to
a
limit
of three
(3)
days.
14.2.3 This leave
is
deducted
from
personal
necessity leave.
Appendix
D
of the
CBA
contained
a
sample of the "Special
Leave Form"
to
be used for certain leave requests.
The form
required the
employee
to state
a
reason for requesting personal
necessity leave.
No
reason
was
required for requesting
compelling personal importance leave.
46
District
proposed
a
change
in the
language
of
either
leave
provision.
Even
so, during
discussions
about
leaves
in
the
early
part
of
the
negotiations,
it
became
apparent
to
the
parties
that
they
had
different
interpretations
about
their
original intent
for
the
use
of
personal
necessity
leave.
Thus,
at
the
May
14,
1984
negotiating
session,
when
the Association
and
the
District
agreed
to "sign off''
on
all
articles
in
the
1981-84
CBA
that
would
remain
unchanged
in
the
new
agreement,
they
excluded
Article
14
and
one
other
article
from
the
group
because
of
their
differences.
During
the negotiating session
on
June 1,
1984,
the
parties
further
discussed the
intent
of the contract
language
and
the
practice
of the
District
in granting or
denying use
of both
personal necessity
and
compelling
personal
importance
leaves.
Following
that
session,
Buress
sent
Zampi
a
letter
on
June 4,
1984,
again requesting information
pertaining to
any
District
policy
on
"acceptable/unacceptable" reasons
for granting personal
necessity or
compelling
personal
importance
leave.
Buress
also
asked
how
long
the
District
retained
leave
applications submitted
by
unit
members.
Zampi
responded
to
both
inquiries in
a
letter
dated June
15,
1984.
The
letter
stated that the
Agreement governed
the reasons
for granting both types of leave.
On
June 19, 1984, Buress sent
a
third letter
requesting
a
more
detailed response
from Zampi
regarding the District
1 s
leave
approval practices.
47
The parties met for negotiations on June 21, 1984. At that
time, the Association stated that if the District refused to
provide more specific information than it had given in the
June 15 letter, the Association wanted to review all personal
necessity and compelling personal importance applications on file
from the 1979-80 school year forward. Zampi responded that the
documents were "privileged." Buress then asked to see the
applications with the individual employee 1 s name deleted. Zampi
said 11 no." Zampi refused the request, stating that the
applications were personnel records and thus subject to
restricted access.
Following the June 21 session, Buress reiterated the
Association 1 s oral request in a June 21 letter to Zampi. That
letter stated that the Association needed access to the leave
application files from 1979-80 to the present for bargaining
purposes and for preparing grievances that were going to be filed
soon. In late June and early July, 1984, grievances were filed
by six individual employees and the Association regarding the
denial of personal necessity leave. 20
On July 2, 1984, Zampi responded to the June 19 request with
a letter that provided a point-by-point answer to each question.
Nonetheless, the Association was not satisfied with the response.
20 Paragraph six of the original charge alleged that the
District "unilaterally changed its past practice governing
allowable uses of personal necessity leave." PERB dismissed and
deferred this allegation to the contractual grievance machinery.
The matter was proceeding through arbitration at the time of this
unfair practice hearing.
48
Thus,
on
July
6,
1984,
the Association
sent
another
letter
requesting
clarification
of
the
information contained
in the
July
2
letter.
In
particular,
the July
6
letter
requested
that
the
District
specify
which
provisions
of the
Agreement
were
actually relied
upon
to
disapprove
personal
necessity
and
compelling
personal
importance
leave
requests.
During
this
period the Association
also
attempted
to obtain
information
about
leave
applications
from
individual
unit
members.
Members
were
asked
to
submit
copies of
their
approved/disapproved leave
applications
directly
to the
Association.
The
Association
also
asked
members
to
give
it
written
authorization to
review
their
individual
personnel
files.
Through
these
efforts,
the Association obtained leave
applications
from
approximately
20-30
people.
On
July
13, 1984,
the
District
responded
to the
Association's
July
6
letter.
The
District's letter
cited
25
different
contract
articles relied
upon by
the
District in
the
approval/disapproval
of personal necessity leave
requests.
When
the Association received the July
13
letter,
it
decided
that
the
issue
was
not
"going any
place
11
and
thus,
would
not
be
resolved.
On
August 9, 1984,
the Association
notified
the
District
by
letter
that
it
was
withdrawing
its
objections to the
District's
proposal to maintain the "status
quo"
language of Article
14
in
the successor agreement.
The
District
acknowledged
the
Association's
withdrawal on August 10, 1984.
Consequently, the
personal leave issue
was
not taken to the factfinding process.
49
Analysis
It
is
well
settled
under
PERB
and
NLRB
case
law
that
an
exclusive representative
is
entitled
to
information
sufficient
to
enable
it
to
understand
and
intelligently
discharge
its
duty
to
represent
bargaining
unit
members.
Requested
information
must be
furnished for
purposes
of representing
employees
in negotiations
for
a
future contract
and
also for
policing the administration
of
an
existing
agreement.
(See
Morris,
The
Developing Labor
Law,
supra,
p.
610.)
An
employer's
refusal to
provide
such
information evidences
bad
faith
bargaining unless the
employer can
demonstrate adequate
reasons
why
it
cannot supply
the information. (Stockton
Unified
School
District
(1980)
PERB
Decision
No.
143i Azusa
Unified
School
District
(1983)
PERB
Decision
No.
374; Modesto
City
Schools
and
High
School
District
(1985)
PERB
Decision
No.
518.)
The
determination of
whether
requested information
is
relevant
is
made
under "a
liberal
'discovery-type
standard.'"
(Soule Glass
and
Glazing
Company
v.
NLRB
(1st Cir.
1981) 652
F.2d
1055
[107
LRRM
2781].)
Where
the requested information
is related to negotiations,
PERB
has followed
private sector precedent.
Thus,
the
Board
noted
in
Stockton Unified
School
District,
supra,
that:
[I]n defining the parameters of "necessaryand
relevant information" to
which
the
representative is entitled, the Courts have
concluded
that
information pertainingimmediately
to
mandatory
subjects of
bargaining
is
so
intrinsic to the core of the
employer-employee
relationship that
it
isconsidered presumptively relevant
and must be
disclosed unless the employer can establish
that the information is plainly irrelevant
50
and
can
provide
adequate
reasons
why
it
cannot
furnish the
information.
[Citation.]
(liL_
at
p.13.)
The
standard
for
judging
how much
information
must
be
provided,
incident to
the processing of grievances,
was
discussed
by
the
Supreme
Court
in~
v.
Acme
Industrial
Company
(1967)
385
U.S.
432
(64
LRRM
2069].
In
that
case the court
concluded
that
an employer
must
provide
the requested information:
.
if
it
likely
would
be
relevant
and
useful
to
the union's determination of
the
merits of
the
grievance
and
to
their
fulfillment
of
the union's
statutoryrepresentation duties.
(.Id...
at
pp.
437-438.)
Once
a
good
faith
demand
is
made
for relevant information,
it
must be
made
available
promptly
and
in
a
useful
form.
Unreasonable
delay
in providing requested information
is
tantamount
to
a
failure
to
provide
the information
at
all.
Thus,
a
delay of
six
months
in
providing information
has been
held
a
failure
to negotiate in
good
faith.
(Azusa
Unified School
District,
supra,
PERB
Decision
No.
374;
see
also
John S.
Swift
Company.
Incorporated
(1959)
124
NLRB
394
[44
LRRM
1388).)
Even
a
delay
as
short
as
two
months,
without
employer
explanation,
has
been
held to
be
a
violation.
(Colonial Press. Incorporated
(1983)
204
NLRB
852 [83
LRRM
1648).)
The
fact that
an employer
ultimately furnishes the information
does
not excuse an
unreasonable delay.
(K & K
Transportation corporation,
Incorporated
(1981) 254
NLRB
722 (106
LRRM
1138)
.)
Whether
the particular information sought must be
provided
in the
manner
requested depends upon
the facts of the case.
(Detroit Edison
Company
v. National Labor Relations Board (1979)
51
440
U.S.
301
[100
LRRM
2728].)
Once
a
demand
for relevant
information
is
made,
the information
must be
made
available in
a
manner
not
so burdensome
or
time-consuming
as
to
impede
the
process
of bargaining,
although not
necessarily in
the
form
requested
by
the
union.
However,
the
employer
may
not simply
present
the
information
in
any
form
which
it
considers adequate
but
which
is
nonetheless
unsuitable for
informed
consideration
by
the
union.
(See
Morris,
The
Developing Labor
Law,
supra,
at
pp.
615-616; General
Electric
Corporation
(1970)
186
NLRB
14
[75
LRRM
1265];
Colonial Press. Incorporated, supra.)
Employers
are limited in the
defenses
that
they
may
successfully
invoke
against
a
charge of
refusal to
bargain
arising
from
a
failure
to
provide
relevant
information.
Once
a
request for relevant
information
is
made,
".
the
employer
must
either
supply
the information or adequately
set forth the
reasons
why
it
is
unable
to
comply."
(The
Kroger
Company
(1976)
226
NLRB
512 (93
LRRM
1315].) In
Detroit
Edison
Corporation v.
NLRB,
supra, the
Supreme
Court
rejected the notion of
an
"absolute rule"
that
automatically requires the
employer
to
disclose
all
relevant information. In
Detroit
Edison,
the
union
sought information about
a
battery
of aptitude
tests
and
the
answer sheets
which
linked the
test
scores with individual
employees names.
Test secrecy
and
confidentiality of scores
wer
critical
factors in maintaining the validity
of the
testing
program. In concluding
that the union could not get the
information in the
form
requested, the court pointed out that:
e
[A]
union's bare assertion that
it
needs
information to process
a
grievance does not
52
automatically oblige the
employer
to
supply
all
the information
in
the
manner
requested.
The
duty
to
supply
information
...
turns
upon
"the circumstances of the
particular
case"
[Citation.]
...
and
much
the
same
can
be
said for the
type of
disclosure
that will
satisfy that
duty.
[Citation.]
The
District filed
several
exceptions
to
the
ALJ's
specific
findings
that
it
was
non-responsive
to requests for information
regarding
use
of personal
necessity
and
compelling
personal
importance
leave.
Each
exception
is
discussed
separately
below.
1.
The
District
argues
that
it
did not
respond
to the
Association's
February
29,
1984
letter
requesting
its
personal
leave policy
because
there
was no
policy.
It
is
undisputed
that
the
District
never
responded
to
the
Association's
first
request for
information
about
the
District's
policy
concerning
to the
use
of
the
two
types
of personal leave.
The
ALJ
noted
that
the
District
offered
no
explanation
for
its
lack of
response.
The
ALJ
found
that
even
if
the
District
questioned the relevancy of the material
sought,
the
District
had
the
burden
to
make
its
challenge
in
a
timely
manner.
This,
it
did not
do.
If
it
could not provide the requested
p6licy,
it
was
obligated to set forth
adequate reasons
for
its
inability to
do
so. (Stockton Unified
School
District
(1980)
PERB
Decision
No.
143.)
Instead, the
District totally
ignored the request.
We
agree with the
ALJ's conclusion
that
the
District's
lack of
response
amounted
to
a
flat refusal to furnish the information.
2.
The
District
argues
that
since there
were no
pending
grievances as of February
29
and no changes were
made
to the
leave article
throughout negotiations, the
ALJ
incorrectly
53
concluded
that
the
February
29
request
was
presumptively
relevant
because
the
"information
was
necessary
and
relevant to the
Association's
bargaining
obligation
in that
the
Employer's
policies
were and
are the subject
of
pending
grievances."
The
District
implies
that
the
information
was
not
necessary
and
relevant
based
on
Buress' testimony
that
there
were
no
pending grievances
when
the
February
29
letter
was
sent
and
that
no
changes
were
made
to the
leave
article
throughout
negotiations.
The
ALJ's
statement,
however,
pertained to the
numerous
requests for
information
made
by
the Association
from
February through
June
and
not
just
the
February
29
request.
The
Board
has
found
that
information
pertaining to
mandatory
subjects
of bargaining
is
presumptively
relevant.
(Stockton
Unified
School
District,
supra,
PERB
Decision
No.
143.) Since
"leave''
is
a
mandatory
subject
of bargaining pursuant to section 3543.2(a),
the information
was
presumptively
relevant
and
the
District's
argument
is
without merit.
3.
The
District
argues
that
it
fully
responded
to Buress'
questions regarding acceptable reasons
for
leave
at
the June
1
bargaining session.
The
bargaining notes
do
not, as
the
District
contends,
support
a
finding that the
District fully
responded
at
the
June
1
bargaining session to
Buress' questions regarding acceptable
reasons for leave.
(See
District
Exh. 11, pp. 300-303.)
In
three subsequent written requests
and one
oral request, the
Association sought
clarification of the District's
leave policy,
which
clarification
was
not forthcoming. The
District's
54
responses
to
the
Association's
requests for
information
relating
to personal
leave
were
general,
ambiguous,
and
from
the
Association
1 s
standpoint,
relatively
useless.
4.
The
District
argues
that
the
collective
bargaining
agreement
requires
personnel
files
to
be
kept
confidential
and,
therefore,
it
was
not
obligated to
supply
completed
leave
request
forms
to
the
union.
By
letter
on
June
19
and by
oral
request
on
June 21,
the
Association requested the opportunity
to
review
all
unit
member
leave applications
maintained
by
the
District
for several years
prior
to
1984.
Since
the
District
had
this
material
in
its
possession,
it
was
obliged
to grant
the Association access
to
its
records,
or
make
the information
available in
a
useable
form.
However,
the
District flatly
refused
to
provide the information
on
the
grounds
that
the records
were
"privileged"
and
not
for
revi~w
by
the Association.
Contrary
to the
District's
contentions, the leave
requests
in
this
case
were
not
the
type of
confidential
employee
records
that
the court
exempted from
disclosure in
the Detroit
Edison,
supra,
440
U.S.
301
[100
LRRM
2728]
21
case.
The
District
could
have
accommodated
the Association's
need by
deleting identifying
information
from
the request
forms
before giving
them
to the
Association or supplying the information in
a
form
that
would
21
This case
is clearly distinguished
from
Detroit Edison,
supra, in
which
the employee's
right to privacy
was
held to
outweigh the union's
need
for extremely sensitive
and
confidential test results. Additionally,
it
is
noted
that the
Association's attempts to obtain written authorization
from
members
of the bargaining unit, as suggested by
the District,
was
an ineffective
and unsuccessful
means
to obtain the data needed.
55
have
made
it
equally useful to
the Association.
(See
Los
Rios
Community
College.District
(1988)
PERB
Decision
No.
670,
pp.
10-
12.
)
The
fact
that
the information
may
not
have been
conveniently
available in
a
form
that
would
accommodate
both
the
interests
of
the Association
and
the
District
does
not
automatically render
the Association's
request
unduly
burdensome
nor
relieve the
District
of
its
duty
to
provide
it.
(See
Stockton Teachers
Association
(1980)
PERB
Decision
No.
143,
pp.
12-16.)
5.
The
District
argues
that
it
was
not
required to
clarify
the
information
provided
to the Association absent
a
request
to
do
so.
This
argument
is
without merit
as
the Association
made
numerous and
repeated requests of the
District
to
clarify
the
information
provided. Furthermore,
the
ALJ
correctly
states,
the
employer
may
not
simply
present the information
in
any form which
it
considers
adequate but
which
is,
nonetheless, unsuitable for
informed
consideration
by
the union,
citing,
The
Developing Labor
Law,
supra,
pp. 615-616; General
Electric
Company
(1970) 186
NLRB
14
[75
LRRM
1265];
Colonial Press, Incorporated
(1973)
204
NLRB
852
[83
LRRM
1648].
6.
The
District
argues
that
the Association could have
easily
acquired the
District policy
from
the
"Board
Policy
Handbook."
The
record
reflects,
however,
that the requested information
was
not readily available in the
"Board
Policy
Handbook." The
request
was based upon information received
by
the Association
56
that the District was going to "tighten up" on its allowable
justifications for the leaves. Whatever information may have
been available in the past did not necessarily reflect a change
in the District's practice.
The District's conduct with respect to the Association's
request for information regarding personal leave constitutes a
per se violation of the duty to negotiate in good faith under
3543.S(c). This same conduct interferes with the employee
organization's right to represent its members in their employment
relations and thus violates section 3543.S(b).
B. LONG-TERM SUBSTITUTES
Factual Summary
In its initial proposal for the 1984 negotiations, the
Association proposed that teachers classified as long-term
substitutes be included in the bargaining unit. In a letter to
the District dated May 18, 1984, the Association requested that
the District provide the names, addresses and current assignments
of all teachers employed as long-term substitutes. 22 The letter
did not state the Association's reason for requesting this
information. At the time of the May 18 request, long-term
substitutes were expressly excluded from the bargaining unit by
the language of Article 2 of the 1981-84 CBA. 23 By a June 2
22 In its factfinding submission regarding long-term
substitute teachers, the District defined a "long-term
substitute" as a substitute who replaces an individual teacher
for more than ten consecutive days.
23 PERB representation file for case number LA-UM-332 reveals
that the Association filed a unit modification petition on
May 25, 1984, to include long-term substitute teachers in the
certificated unit. On June 20, 1984, the District responded by
57
letter,
the
District
promised
a
future
response
to
the
May 18
request.
At
the
June
11
bargaining
session,
the
parties
discussed the
status
of long-term
substitutes in
connection with
the
Association's
proposal
to
add
a new
provision,
Article
52,
to the
successor
agreement.
Article
52
was
intended
to
spell
out
specific rights
for "temporary/restricted teachers."
As
stated
above, temporary
teachers
were
already
included
in
the
certificated
bargaining
unit.
During
the discussion, the
Association
questioned the appropriateness of
the
District's
classification
of
some
substitute
teachers
as
long-term
substitutes rather
than as
temporary
teachers.
The
information
requested
on
May 18
was
needed
to
address
this
concern.
Some
time
in
late
August
or early
September
1984,
the
District
provided
the Association with
the
information requested
on
May
18. The
information
was
provided as
part
of
the
District's
submission
for factfinding
on
the issues presented
by
Article
52.
Analysis
The
District
excepts
to the
ALJ's
finding
that
it
delayed
its
response
to
a
request for information regarding
names,
addresses,
and
current
assignments of nonunit
members
employed as
long-term
substitutes. Specifically, the
District asserts that
long-term substitutes
were
not
members
of the bargaining
unit,
and
the Association
was
obligated to precisely demonstrate
opposing the petition.
The
petition
was
thereafter withdrawn by
the Association
on
July
11, 1984.
58
relevance. Since the Association did not demonstrate relevance
in its request, ihe District argues that it did not have to
provide the information.
Questions concerning the relevance and necessity of
requested information often arise when a union demands
information concerning nonunit employees. In such cases, it has
been held under federal law that the bargaining representatives
must demonstrate the "probable or potential relevance" of the
information sought to its representation of unit employees. (See
San Diego Newspaper Guild v. National Labor Relations Board (9th
cir. 1977) 548 F.2d 863 (94 LRRM 2923] .)
Thus, on May 18, when the Association requested the names,
addresses, and current assignments of all teachers employed by
the District as long-term substitutes without stating the
"probable or potential relevance" of the requested information to
its representation of unit members, the District arguably had no
obligation to provide the information. The District did not,
however, initially challenge the relevance of the requested
information. Instead, the District promised in writing to
respond to the request at an unspecified future time.
On June 11, 1984, the subject of long-term substitutes was
discussed in negotiations, in connection with the Association's
proposal for a new contract article to apply to employees
designated by the District as "temporary/restricted" teachers.
The latter group of employees were in the bargaining unit. At
the June 11 session, the Association explained to the District
why it needed the information about long-term substitutes. The
59
Association
was
concerned
about
the
number
of
teachers
that
the
District
was
classifying
as
long-term
substitutes
instead of
"temporary/restricted"
teachers
and
the
effect
of
this
decision
on
the
employment
rights
of long-term
substitutes.
This
employment
information
was
necessary
for negotiations
as
well
as
contract
administration.
When
the Association explained
its
reasons for the information,
the
relevance of
and
necessity for
this
material
clearly
was
established.
Once
the Association
established
the relevance
and
necessity
for the
long-term
substitute
data, the
District
was
then
required
to disclose to
the Association
such
information about
the nonunit
employees
relevant to the Association's representation
of
unit
employees
in negotiations
and
in
administering provisions of the
CBA.
(See Modesto
City
Schools
and
High
School
District,
supra,
PERB
Decision
No.
518.)
Even
though
the
District
had promised
prior
to the
June
negotiations to
respond
to the Association,
it
never provided
information
about long-term
substitutes
during
the
time
of the
negotiations,
when
it
was
most needed
by
the Association.
When
it
did finally
make
the information available,
it
was
supplied to
the Association only as
a
part
of the
District's
factfinding
submission
on
this issue.
While
the
District
never expressly refused to provide the
information,
it
failed to
make
it
available to the Association
within
a
reasonably prompt time and
at
a
time
when
it
could have
been more
useful to the Association.
The
District's
conduct
may
60
therefore be considered a flat refusal. (See NLRB v. Johns.
Swift Company, supra, 124 NLRB 394.)
The District has offered no explanation for the delay from
mid-June to early September 1984 in making the requested
information available to the Association. By the time the
Association obtained the data that it first sought on May 18, its
opportunity to engage in meaningful negotiations about its
"temporary/restricted'' teachers proposal had already passed.
The District's unjustified delay in furnishing the
information was inconsistent with the good faith bargaining
obligation imposed by EERA. Its conduct, therefore, is found to
have violated section 3543.S(c). This same conduct interferes
with the employee organization 1 s right to represent its members
in their employment relations and thus violates section
3543.S(b).
C. HEALTH INSURANCE
Factual Summary
In 1983, the parties negotiated a change in one of the
District 1 s group health insurance carriers. The change was from
Sun Life Insurance of Canada to Travelers Indemnity Company
(Travelers) and became effective October 1, 1983. During the
1983-84 school year, several Association concerns regarding the
coverage under the Travelers 1 health plan surfaced.
Consequently, on April 24, 1984, the Association and the District
met to discuss its concerns. This meeting was not a part of the
negotiations process.
61
The
Association
had
two
major
concerns:
(1)
the
coordination
of
benefits
and
coverages
for
a
married couple
where
both
spouses
were
District
employees;
and (2)
the extent
of
coverage
for
surgery
where
the
employee
obtained
a
second
opinion
confirming the
medical
necessity for
the surgery.
During
the
April
24
meeting,
the Association
representatives
requested
a
copy
of the Travelers'
master
policy.
They
were
informed
that
the
District
had
not
yet received
it.
On May
2,
1984,
the Association
wrote
to
the
District
to
confirm
its
position
on
the matters discussed
at
the April
24
meeting
and
to
reiterate
its
request for
a
copy
of the
Travelers'
contract
with the
District.
The
Association
also
requested
a
copy
of the
District's
contract
with
its
insurance broker,
Creaser-Price
Insurance
Company.
Some
time
prior
to
May
2,
the
District
received,
and
distributed to
employees, group
insurance
benefit
booklets provided
by
Travelers.
In
his
May 2
letter,
Buress
stated that
the Association did not
believe
that the
summary
in
the benefit
booklet
was
sufficient.
On May
7, 1984,
Zampi
telephoned
Buress
in
response
to
the
May 2
letter.
Zampi
informed Buress
that,
among
other things,
the
District
disagreed with the Association's interpretation
concerning the percentage of coverage provided
by
the contract
for
"second opinion surgery."
The
Association interpreted the
language to
mean
that
the contract provided
100
percent coverage
for
any surgery performed
after
a
second opinion
was
obtained
regarding the
need
for surgery.
The
District interpreted the
language to
mean
that only the second opinion and not the surgery
62
itself was paid for at the 100 percent coverage level instead of
the 80 percent coverage level. Zampi also stated that
coordination of benefits was provided through the plan. He then
asked the Association to supply the District with the names of
any unit member who had been denied either of the above
referenced benefits by Travelers.
Zampi further informed Buress that the Travelers master
contract had been received, but was returned to the District's
insurance broker because c~rtain inaccuracies were discovered in
the contract. He did not specify the exact nature of the
inaccuracies. He did promise, however, to send a corrected copy
of the contract as soon as it was received.
By letter, dated June 6, 1984, Buress asked again if the
District had received a copy of the master contract and once
again requested a copy for the Association. On June 8, the
District again responded that it did not have the final approved
contract in its possession because the errors had not yet been
corrected. Zampi renewed his promise to send a final copy to the
Association as soon as it was received.
The group health insurance plan was not discussed at the
June 13, 1984 negotiating session. However, at the June 21
bargaining session, the Association again made an oral request
for the Travelers contract. The District replied that it had a
draft copy which contained errors, but it did not want to
distribute it. The Association insisted on having a copy, even
if it was inaccurate. The District said that it would think
about the latter request even though it did not want inaccurate
63
material
going
out
to
anyone. Again,
no
specifics
were
given
to
the Association
about
what
actual errors
were found
in
the
contract.
On
June
25, 1984,
Zampi
sent
Buress
a
copy
of
the Travelers
master
contract.
In
his
cover
letter,
he
characterized
it
as
"an
unfinished,
incomplete,
inaccurate
document from
Travelers
Insurance
Company
regarding
medical
coverage."
The
letter
werit
on
to state
that:
[T]he
District
has
refused
to
sign or
acknowledge
this
document, however,
we
expect
certain
sections to
be
the
basis
of
a
final
master
contract.
On
July
20, 1984,
the
District
notified
the Association,
in
writing, that
it
still
did not
have an
accurate
copy
of
the
master
contract,
that
it
had
expressed
its
concern
to Travelers
about
the continuing delay,
and
that
it
expected
to
have one
in
the near future
and would
provide
a
copy
to the Association
immediately
upon
receipt.
On
August 10, 1984,
the Association
responded
to the July
20
letter,
reminding
the
District that
it
had
also requested copies
of
all
correspondence between
the
District
and
either
its
insurance broker or Travelers regarding the health insurance
contract.
The
District
answered on August 16, 1984, by
reiterating that
it
did not have
a
corrected
copy
of the
Travelers contract.
The
letter
further stated that the
need
for
a
corrected
copy had been discussed in
a
recent meeting between
the District
and Robert
Jelsvik (Jelsvik), the local Travelers
agent. This response
was
followed by
letters
from Zampi on
August
20 and September 13, 1984. Both of these letters included
64
copies
of
correspondence
from
the
District
to
Travelers
in
July
and
August
of
1984
stating
its
need
for the
master
contract
as
soon
as
possible.
Harry Martin
(Martin),
the
District
1 s
insurance
consultant,
received
the
initial
draft
of
the
master
contract in
the
spring
of
1984.
Martin
and
Jelsvik
delivered the
contract
and
the
employee
benefit
booklets
to
the
District
shortly
thereafter.
However,
Martin
did
not
examine
the
contract
before
he
delivered
it
to
the
District.
Shortly,
thereafter,
the
District
informed
both Martin
and
Jelsvik
that
portions
of the
contract
were
not
correct.
24
Additionally, the contract did
not provide
the
depth
and
breadth
of coverage
that
the
District
wanted. This
information
was
conveyed
to
the Travelers corporate
office in
Hartford,
Connecticut,
where
the desired corrections
were
to
be
made.
During
the
time while
the Travelers
home
office
was
amending
the master
contract,
the
District
contacted
Martin
several times,
asking
him
to
urge
Travelers
to
expedite the correction process.
Martin
knew
that
the
District
needed
the corrected contract
as
soon
as possible
because of the
ongoing
negotiations with
the
Association
and
the Association
1 s
request for
a
copy
of
its
final
contract.
Martin
also
knew
that
the
District
had
contacted
Travelers directly to obtain the corrected contract.
During
July
and August
1984
Martin contacted Jelsvik
and
urged
him
to
do
everything in his
power
to persuade the
home
24
The
errors pertained to the definitions of "employee
eligibility"
and "termination" of group insurance benefits
upon
employee separation
from
active
employment with the District.
65
office
to
respond
to
the
District's
request.
Martin
finally
received the
final
corrected
master
contract
on
November
8,
1984,
and
forwarded
a
copy
to
the
District
shortly
thereafter.
At
that
time
the
hearing
in
this
case
was
still
in
progress.
On
August 10, 1984,
the Association
also
requested
a
copy
of
the
District's
group
dental
insurance
policy.
The
District
responded
on
August 14,
1984, by
sending
a
copy
of
the
dental
benefits
booklet.
The
District
also
informed
the Association
that
the
master
contract for
this
program had
not
yet
been
received
from
Travelers
which
was
also the
carrier
for
this
program.
The
District
later
provided
the Association with
a
copy
of
this
master
contract
on September 12,
1984.
On
September 6, 1984,
the Association requested
a
copy
of
the
District's
group
life
insurance
policy.
This
program
was
also
provided
to
the
District
by
Travelers.
The
District sent
a
copy
of the requested master
contract to
the Association
on
September 13,
1984.
Analysis
The
District
excepts
to the
ALJ's
finding
that
it
violated
the
Act
by
its
delay
in
providing the Association with requested
health care information.
Specifically, the
District asserts that
it
did
not provide
a
copy
of the health insurance contract to the
Association
because
it
did not
have an
accurate
copy.
The
District
also argues
that there
was no
indication that the
Association's
questions· were not answered during the April 24,
1984
meeting.
66
The
relevance
of
the
Association's
request for
health
insurance
information
is
not
in
dispute.
Health
and
welfare
benefits
are included
among
the
"terms
and
conditions
of
employrnent
11
enumerated
in
section
3543. 2. (See
Stockton
Unified
School
District,
supra,
PERB
Decision
No.
143.)
The
Association
needed
to
review
the Travelers
master
contract to evaluate the
provisions
of
two
specific
areas
of
coverage over
which
questions
had
arisen
among
unit
members. The
Association
also
wanted
this
information
in
order to prepare for
successor
contract
negotiations
regarding
health
benefits.
The
Association
made
its first
request for
the
Travelers
contract
on
April
24, 1984,
during
a
meeting
with
the
District
to
discuss
its
concerns about
the health
insurance
coverage.
When
this
request
was made,
the
District
did not possess
a
copy
of the
Travelers
master
contract.
Some
time
between
April
24
and
May
7,
the
District
did receive
a
draft
copy
of
this
document from
its
insurance broker.
During
this
same
period,
District
Administrator
John Vugrin determined
that
the
draft
was
inaccurate
because
it
contained
errors that
were
of consequence
to the District.
On May
2,
the Association sent
a
letter
to the
District that
reiterated
its
two
major
areas of concern about the Travelers
coverage
and renewed
its
demand
for
a
copy
of the master
contract.
This
letter
also requested
that, in lieu
of
a
copy
of
the contract, the
District
provide the Association with
letters
of interpretation
from
Travelers about the health insurance
program.
67
The District first informed the Association that it had
received the draft contract when Zampi telephoned Buress on May 7
about the Association's May 2 letter. Although Zampi told Buress
that the contract contained errors, he did not specify the nature
of the errors, nor did he offer to let the Association review a
copy of the draft contract.
The record shows that the contract errors did not pertain to
either of the two areas of concern to the Association -- namely,
co-insurance coverage for marrie~ employees and the percentage of
coverage allowed for second opinion surgery.
Approximately one month later, the District again promised,
in a June 8 letter, to furnish the Association with a copy of the
completed and final contract as soon as it was received.
However, it was still unwilling to give the Association a copy of
the draft contract to review those areas that were the subject of
their ongoing discussion. The June 8 letter failed to explain
the substance of the "errors" that had been discovered in the
draft contract in May. With reasonable diligence, this
information surely could have been ascertained by the District by
June 8 and communicated to the Association. Even without a copy
of the contract itself, a more detailed response from the
District about the known inaccuracies would have enabled the
Association to evaluate whether the information it wanted to
review in the contract was available in a reliable form.
It was only after the Association insisted, at the June 21
negotiation session, on being given a copy of the Travelers
contract that the District finally sent a copy on June 25, 1984,
68
just a day before the parties declared impasse. Zampi's
characterization of the insurance contract in his cover letter
was not particularly helpful in assisting the Association in its
review of the contract. 25 He called the master contract an
"unfinished, incomplete, inaccurate document that the District
has refused to sign or acknowledge."
The District maintains that since it responded to the
Association's questions about the extent of the coverage provided
by the program on April 24 and May 7, 1984, it had no reason to
believe that these matters were still of any great concern to the
.
Association after that time. However, the steady stream of
correspondence and communications between the Association and the
District from April 24 to June 25 belies the validity of this
assertion.
From early May, when the District first obtained a copy of
the draft contract, it clearly stated to the Association what
amounted to a disclaimer as far as the accuracy of this document
was concerned. Even with this knowledge, the Association
persisted in expressing its need for a complete copy of the draft
contract. Having given this caveat, the District was thereafter
obligated to furnish the Association, within a reasonable time,
with the Travelers contract, irrespective of the inaccuracies
contained therein. Additionally, where known, the District could
have pointed out the errors that it had discovered. If this
action had been taken, the Association could have determined for
25 rn July, August, and September of 1984, the District
continued to correspond with the Association about the status of
its efforts to obtain an amended version of the contract.
69
itself
the usefulness
of
the
information
that
it
sought
from
the
master
contract.
Instead,
without excusable
justification,
the
District
delayed giving the Association the requested information
for
approximately
six
weeks.
This
period
included
a
time
of
intensive
negotiations
between
the
parties.
Arguably,
the
Association's
access
to
this
information during
such
time
could
have
positively
affected the
outcome
of
the negotiations
on
this
subject.
It
is
therefore
concluded
that
by
its
unjustified
delay
in
providing the Association with requested
health
insurance
information, the
District
violated
its
section
3543.S(c)
duty
to
bargain in
good
faith.
The same
conduct
constitutes
a
violation
of 3543.S(b).
IV.
EXCEPTIONS
TO
ALJ FINDING
THAT
DISTRICT "DID
NOT
ENTER
INTO
THE
NEGOTIATIONS
WITH
A
BONA
FIDE INTENT
TO REACH
AGREEMENT"
In
its
exceptions, the
District
notes the inconsistency
between
the
ALJ's
conclusions
in
one
portion of her
decision
that
there
was no
surface bargaining,
and
her finding of
bad
faith
bargaining
under
the
totality
of the circumstances
test
in
another portion of her decision.
The
District
contends
that
the
ALJ
erred in finding
bad
faith
bargaining
under
the
"totality
of conduct"
test
based
solely
on
the
District
1 s
failure to provide
certain information
and
insistence to
impasse on nonrnandatory
subjects of
negotiations.
We
agree.
PERB
uses both
a
"per se" and
a
"totality of conduct''
test
in determining whether
a
party's negotiating conduct constitutes
70
an unfair practice, depending on the specific conduct involved
and its effect on the negotiating process. (Regents of the
University of California (SUPA) (1985) PERB Decision No. 520-H;
Pajaro Valley Unified School District (1980) PERB Decision No.
143.) The duty to bargain in good faith requires the parties to
negotiate with genuine intent to reach agreement and a 11 totality
of conduct 11 test is generally applied to determine if the parties
have bargained in good faith. This test looks to the entire
course of negotiations to see whether the parties have negotiated
with the required subjective intention of reaching an agreement.
Certain acts have such potential to frustrate negotiations and
undermine the exclusivity of the bargaining agent that they are
held to be unlawful without any finding of subjective bad faith.
These are considered "per se 11 violations. (Pajaro Valley Unified
School District, supra.)
The Association alleged specific conduct of the District in
support of its allegation of surface bargaining: (1) taking a
"regressive" position regarding the summer school teachers
proposal; (2) ignoring the Association's priority issues; (3)
failing or refusing to submit counterproposals; (4) failing or
refusing to explain its interpretation of proposals in which the
employer's position was to maintain existing contract language;
(5) failing or refusing to explain opposition to union proposals;
and (6) failing or refusing to provide information. The ALJ
rejected these allegations of surface bargaining concluding:
These factors lead to the conclusion that
what occurred was hard bargaining, rather
than bad faith bargaining. Each party was
desirous of improving its position vis-a-vis
71
the other,
as
measured
by
the
terms
of the
1981-84
CBA.
Thus,
the
bargaining
strategies
of the
District,
which
are
charged
here
as
surface bargaining,
do
not
justify
an
inference of
bad
faith.
For
the
reasons
discussed
above,
it
is
therefore
concluded
that
the
District's
negotiating
conduct,
complained
of
in
this
allegation,
did
not
amount
to
surfacebargaining
and,
thus,
was
not
a
violation
of
section
3543.S(c).
This
allegation
of the
charge/complaint
will
therefore
be
dismissed.
(P.D.
at
p.
118.)
Later in
the
proposed
decision, the
ALJ
discussed the
"totality
of
conduct"
test
and examined
the per
se
violations
under
this test:
In
this
case
a number
of
allegations
of
bad
faith
conduct
on
the
part
of the
District
have been examined.
As a
result,
it
has beenfound
that
the
District
committed
per
se
violations
of the
Act
by (1)
failing
to
provide information
needed
by
the Association
to
perform
its
statutory
negotiating
and
representational
functions;
(2)
insisting
to
impasse
on
nonmandatory
subjects
and on
provisions
which
involve the relinquishment
of
CVEEA's
statutory representational rights.
It
was
not
found, however,
that
the
District
engaged
in
unlawful
surface bargaining.
The
unlawful conduct,
when
considered
in
its
totality,
leads to the inescapable conclusion
that
the
District
did not
enter into the
negotiations
with
a
bona
fide intent to
reachagreement.
It
is
thus
concluded
that
the
District's
negotiating
conduct during the
spring
and
summer
of
1984
did not
comport
with the statutory
duty
imposed by
section
3543.S(c)
to
met and
negotiate in
good
faith.
Thus,
the
District violated section3543.S(c).
( P • D •
at
pp . 14 5 - 14 6 . )
Although
failure to provide information
and
insistence to
impasse on nonmandatory
subjects of bargaining are "per se"
violations of section 3543.S(c),
we do
not agree with the ALJ's
72
conclusion,
based
on
this
same
conduct,
that
the
District
did not
enter
into
the
negotiations
with
a
bona
fide
intent
to
reach
agreement.
26
Unlike
the
"totality
of
conduct"
test,
the
"per
se"
test
does
not involve
any
determination of
intent.
I~
this
case,
the finding
of
per
se
violations
(failure
to
provide
information
and
insistence
to
impasse
on
a
nonmandatory
subject)
does
not
justify
a
finding
that
the
District
did not
have
the required
subjective intent
to
reach
agreement.
V.
REQUEST FOR ATTORNEY
1 S FEES
The
District
excepts
to
the
ALJ 1 s
conclusion
that
it
should
not
receive
reasonable
attorney
1 s
fees.
Specifically,
the
District
asserts that
the Association negligently
and
intentionally
misled
it
into
preparing
a
defense
to frivolous
charges,
only
to
withdraw
or
amend
the
charges
at
the
formal
hearing.
The
District further asserts that
many
allegations
had
no
factual basis,
the Association did not
utilize
the requested
information
it
received,
and
the Association
sought
at least
100
changes
to the previous
agreement
with
little
rationale for the
proposed changes.
Applying
a
standard
utilized
by
the
NLRB
and
the federal
courts, the
Board has concluded
that
PERB's
remedial
authority
is
strictly
limited.
(Modesto City Schools and High School
District
(1985)
PERB
Decision
No.
518.) Attorney
1 s
fees
and
related
litigation
costs are
awarded
only
if
a
party's
case
is
without
any arguable merit, frivolous, dilatory, or pursued
in
bad
faith.
26
we
note the Association did not except to the
ALJ 1 s
finding that the District did not engage in surface bargaining.
73
(King City High School District Association, et al. (1982) PERB
Decision No. 197; Chula Vista City School District (1982) PERB
Decision No. 256.) Attorney fees will be denied if the "issues
are debatable and brought in good faith." (Chula Vista City
School District, supra.) The Board in Modesto, supra, affirmed
the ALJ's denial of the union's request for attorney's fees
despite the fact that the ALJ found that the district "tried to
make a mockery of the contract grievance machinery as well as
PERB's unfair practice procedures."
While the Association may have belatedly withdrawn or
amended its charges, given the absence of additional Board
precedent establishing standards imposing such a limitation prior
to the hearing, it would be difficult to conclude that the
Association's case was frivolous, or that dilatory litigation was
pursued in bad faith. Furthermore, despite the District's
assertions regarding the merits of the Association's case, some
of the allegations have been found meritorious. Thus, it cannot
be said that this case is without any arguable merit. Although
we reverse the ALJ on some of her legal conclusions, we do not
find sufficient justification for an award of attorney's fees.
REMEDY
We find that by the conduct discussed above, the District
interfered with the employee organization's right to represent
its members in violation of section 3543.S(b), failed to
negotiate in good faith in violation of section 3543.S(c) and
failed to participate in good faith in the impasse procedures in
violation of section 3543.S(e). The ALJ also determined that the
74
insistence
to
impasse
on
nonmandatory
subjects
of
bargaining
constituted
a
derivative
violation
of
section
3543.S(a).
We
find
that
there
was
no
evidence
presented
demonstrating
an
independent
violation
of
section
3543.S(a),
and
accordingly, dismiss
the
alleged violation
of
that
section.
The
Association
sought
an
order
requiring the
District
to
cease
and
desist
from
its
unlawful conduct
and
such
other
affirmative
relief
as
is
appropriate to
remedy
the
violations.
In section
3541.S(c)
the
PERB
is
given:
the
power
to issue
a
decision
and
order
directing
an
offending
party to
cease
and
desist
from
the
unfair practice
and
to
take
such
affirmative action,
including but not
limited to
the reinstatement of
employees
with or without
back pay, as
will effectuatethe
policies
of
this
chapter.
An
order
is
appropriate
to
direct
the
District
to cease
and
desist
from
failing
to
meet and
negotiate in
good
faith
by:
(1)
refusing to
provide the Association with information
relevant to
negotiating or
grievance processing;
and (2) by
insisting to
impasse
on nonmandatory
subjects.
With
regard
to the
District's
duty
to furnish information
to
the Association,
if
information heretofore requested
has
not
been
provided,
and
the Association
is
still
interested in receiving
the information, the
District is
ordered
to
inform
the
Association about the nature
and format of the information
that
it
has
available, or
which
it
has compiled, so
that the
Association
may,
if
necessary,
modify
its
request for information
with the
knowledge of the types of information available.
Thereafter, the District shall provide the information requested
75
in
a
reasonably
clear
and
understandable
form.
It
shall
be
the
responsibility
of
the
parties
themselves
to
determine
how
to
satisfy
this
requirement.
If
there
are
substantial
costs
involved
in
compiling
the
information
in
the
form
requested
by
the Association, the
parties
must
bargain
in
good
faith
as
to
whom
shall
bear the
cost.
If
no
agreement can be
reached,
the
Association
is entitled
to
access
to
records
from
which
it
can
reasonably
compile
the information.
(See
Johns-Manville
Products
Corporation
(1968)
171
NLRB
451
(69
LRRM
1068]
.)
Similarly,
if
the
current
Agreement
contains the
same
provisions
that
were found
to
be
unlawful
restrictions
on
the
Association's right
to
file
grievances,
arbitrate
grievances,
and
petition
PERB
for
unit
modifications,
it
is
appropriate
to
order
the
District
to:
(1)
accept grievances
filed
by
the Association
in
its
own name
on
behalf of
individual
unit
members,
as
well
as
grievances
filed
to protect
the Association's rights;
(2)
process
grievances to
arbitration,
whether
or
not
the grievant
has
made
a
written
request;
and (3)
recognize the Association's
right to
seek
unit
modification pursuant to
PERB
regulations.
These remedies
will
achieve the
results
sought
by
the
Association without
an
additional order
that specific clauses
be
stricken
from
the
Agreement between
the
parties.
27
The
purpose
of these
remedies
is
to ensure
that
such
provisions are
no
longer
enforced.
27
These contested provisions
were
carried forward from
the
1981-84
CBA
to the 1984-87 CBA.
76
Finally,
it
is
appropriate
to
order the
District
to
cease
and
desist
from
failing
and
refusing to
participate
in
good
faith
in
the
impasse
procedures
by
maintaining
its
unlawful
insistence
on
nonmandatory
subjects
through
the
statutory
impasse
procedures.
It
also
is
appropriate
that
the
District
be
directed to
post
a
notice
incorporating the
terms
of the order. Posting
of
such
a
notice,
signed
by
an
authorized
representative
of the
District,
will
provide
employees
with
notice
that
the
District
has
acted in
an
unlawful
manner,
is
being
required to
cease
and
desist
from
this activity,
and
will
comply
with the order.
It
effectuates
the
purposes of the
EERA
that
employees be
informed
of
the
resolution
of the controversy
and
the
District's
readiness
to
comply
with the
ordered
remedy.
(Davis
Unified
School
District,
et al.
(1980)
PERB
Decision
No.
116. See
also
Placerville
Union
School
District
(1978)
PERB
Decision
No.
69.)
ORDER
Upon
the
foregoing findings of
fact
and
conclusions
of
law,
and
the entire
record
in this
case,
it
is
found
that
th~ Chula
Vista City
School
District violated
Government
Code
section
3543.S(b), (c),
and (e)
of the Educational
Employment
Relations
Act. Pursuant
to
Government
Code
section 3541.S(c),
it
is
hereby
ORDERED
that
the
Chula
Vista City
School
District,
its
officers
and
representatives shall:
A. CEASE
AND
DESIST FROM:
77
1. Refusing to provide the Chula Vista Elementary
Education Association, CTA/NEA, with information relevant to
contract administration, grievances processing and negotiations.
2. Insisting to impasse on negotiating about subjects
outside the scope of representation, including contractual
language which has the effect of restricting (1) the
Association's right to file grievances in its own name on behalf
of individual unit members; (2) its decision to submit grievances
to arbitration without the approval of the grievant; and (3) the
Association's right to petition PERB for unit modification.
3. Enforcing and giving effect to those portions of
the 1984-87 Agreement (or any subsequent Agreement), which
contain provisions that (a) limit the Association's right to
initiate grievances only at Level II when a grievance "affects
more than one employee in a single building, or employees in more
than one building ... ," or (b) allow the Association to submit
a grievance to arbitration only after the "grievant ... file[s]
a written request with the Association .... ," or (c) limit the
Association's right to seek unit modification pursuant to PERB
regulations.
4. Denying to the Association rights guaranteed by the
Educational Employment Relations Act, including the right to
represent its members in their employment relations with the
District.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
(1) Upon request, provide the Association with any
information requested, and not previously provided, as noted in
78
the decision
above,
following
the guidelines
set
forth
in
the
Remedy
section
herein.
(2)
Accept
and
process grievances
filed
by
the
Association in
its
own name
on
behalf
of
individual
unit
members,
as
appropriate
under
the
time
limits
and
subject
matter
requirements of
the
Agreement
between
the
parties.
(3)
Accept
and
process
requests for
arbitration filed
by
the
Association,
as
appropriate
under
the
time
limits
and
subject
matter
requirements of the
Agreement,
without
requiring
that
a
written
request
be
made
by
the grievant(s) to the
Association.
(4)
Recognize
the Association
1 s
right
to
seek
unit
modification pursuant
to
PERB
regulations.
(5)
Within
thirty-five
(35)
days
following
the date
the
Decision
is
no
longer
subject to reconsideration, post
at all
work
locations
where
notices to
employees
customarily
are placed,
copies
of
the
Notice
attached
as
an Appendix
hereto,
signed
by an
authorized
agent of the
employer.
Such
posting
shall
be
maintained
for
a
period of
thirty
(30)
consecutive
workdays.
Reasonable
steps shall
be
taken to insure
that
the
Notice
is
not
reduced
in size, altered,
defaced or
covered
by any
other
material.
(6)
Make
written notification
of the actions taken to
comply
with the
Order
to the
Los
Angeles Regional
Director of the
Public
Employment
Relations
Board
in
accordance with
his/her
instructions.
79
All other allegations raised in
the
unfair practice
charge/complaint are
hereby
DISMISSED.
Member
Camilli joined
in
this
Decision.
Member
Craib's
concurrence begins
at
page
81.
Chairperson Hesse's concurrence begins
at
page
82.
80
Craib,
Member,
concurring:
I
am
in
full
agreement
with the
results
reached
in
the majority
opinion.
I
also
concur
with the
analysis
applied
therein,
with
one
exception.
Consistent with
my
opinion
in
South
Bay
Union
School
District
(1990)
PERB
Decision
No.
791,
I
believe
it
is
necessary
and
appropriate to
employ
a
modified
version of the
test
established in
Anaheim
Union
High
School
District
(1981)
PERB
Decision
No. 177
to
determine
that
the proposals
limiting the Association's
right
to
file
grievances
and
to
submit
them
to
arbitration
are
nonmandatory
subjects
of
bargaining.
My
view stems
primarily
from
the
following:
(1)
the
rights
of
an
exclusive
representative to
file
grievances
in
its
own
name
and
to
submit
grievances
to
arbitration
without
the
consent of
a
named
grievant are
not
expressly
set
out
in the
statute,
and (2)
such
matters are
reasonably
related to
grievance
procedures,
which
are included
among
those
mandatory
subjects
that
are
specifically
enumerated under
section
3543.2,
subdivision
(a)
of the Educational
Employment
Relations Act.
81
Hesse,
Chairperson, concurring:
As
the majority noted
in
its
decision,
my
dissent
in
South
Bay
Union
School
District
(1990)
PERB
Decision
No.
791
found
the exclusive
representative's
right
to
file
a
grievance
in
its
own name
is
a
mandatory
subject
of
bargaining.
Based on
the
absence
of
an
Educational
Employment
Relations
Act
(EERA)
provision
that specifically
makes
the
filing
and
prosecution
of grievances
in
its
own name
an
exclusive
representative's
independent
statutory
right,
I
concluded
that
there
is
no
such
statutory right
under
EERA.
While
I
still
believe
EERA
does
not
contain
explicit
statutory
language
providing
that
the exclusive
representative
has
the
right to
be
a
named
grievant,
I
am
persuaded
by
the analysis in
a
recent court
decision
that
the exclusive
representative's right
to
be
a
named
grievant
is
a
statutory
right._
Subsequent
to
the
majority's decision in
South
Bay
Union
School
District,
supra, the
Court of
Appeal
issued
its
decision
in Lillebo
v. Davis (1990)
218
Cal.App.3d
1588.
1
Although
1 On
June 29, 1990,
the California
Supreme
Court
granted
appellants' petition
for
review. Subsequently, the matter
was
transferred
to the
Court
of
Appeal
with
direction
to vacate
its
opinion
and
to reconsider the case
in light
of the
United
States
Supreme
Court's opinion
in Keller
v.
State
Bar
of
California
(1990)
_ u.s. _
[110 s.ct. 2228].
In Keller
v.
State
Bar
of
California,
supra, the court
determined the
scope
of permissible expenditures for
activities
financed
by
the
compulsory dues
collected
by
the State
Bar
of
California.
The Supreme
Court held
that the
use of the
compulsory dues
to finance
political
and
ideological
activities
with
which the
members
disagree violates their First
Amendment
right
of free
speech
when
such expenditures are not
necessarily
or reasonably incurred for the purpose of regulating the legal
profession or improving the quality of legal services.
82
Lillebo v. Davis is an agency/fair share fee case, the court
addressed the right of individual employees to represent
themselves in their employment relations with the state. (Id. at
pp. 1608-1611.) Specifically, the plaintiffs, who are individual
employees, claimed that, since they desired to represent
themselves individually in their employment relations without the
exclusive representative, they could not constitutionally be
assessed fair share fees because the exclusive representative
would be providing them with no service in return. In
determining the plaintiffs may be assessed a fair share fee, the
court discussed the provisions of the Ralph C. Dills Act (Dills
Act).
While recognizing sections 3515 and 3515.5 of the Dills Act
provide that the individual employee has the right to self
representation,2 the court found the Dills Act focuses on the
establishment of relations between the state employer and
exclusive representative and, in fact, is clear regarding the
As the Keller opinion involves the determination of
permissible and impermissible expenditures of the dues, the
opinion does not appear to address the plaintiffs' argument that
employees who represent themselves individually in their
employment relations cannot constitutionally be assessed a fair
share or agency fee. Accordingly, I, nonetheless, find the Court
of Appeal's analysis on the right of individual employees to
represent themselves in their employment relations is persuasive.
2Section 3515 of the Dills Act and section 3543 of EERA
contain identical language regarding the right to self
representation. However, EERA does not contain a provision
similar to section 3515.5 of the Dills Act.
83
role of an individual employee when part of an appropriate
bargaining unit represented by an exclusive representative.
After a review of the statutory provisions, the court
determined that, despite their right of self-representation,
state employees have no mechanism for the enforcement of this
statutory right absent the exclusive representative. There is no
statutory right for the individual employ~e to present grievances
regarding terms and conditions of employment. Rather, the
individual employee has the right to the grievance procedure only
to the extent it is created by the collective bargaining
agreement negotiated and administered by the exclusive
representative.
Although I still believe EERA does not contain explicit
statutory language providing that a exclusive representative has
the right to be a named grievant, I find the court's discussion
in Lillebo v. Davis persuasive. In the present case, as the
enforcement of the individual employee's rights is dependent upon
the exclusive representative's representation, I find the Chula
Vista Elementary Education Association, CTA/NEA has the statutory
right to be a named grievant.
84
APPENDIX
NOTICE
TO
EMPLOYEES
POSTED
BY
ORDER OF THE
PUBLIC
EMPLOYMENT
RELATIONS
BOARD
An
Agency
of
the
State
of
California
After
a
hearing
in
Unfair
Practice
Case
No.
LA-CE-2038,
Chula
Vista
Elementary Education
Association,
CTA/NEA
v. Chula
Vista
City
School
District.
in
which
all
parties
had
the
right
to
participate,
it
has been
found
that
the
Chula
Vista City
School
District
violated section
3543.S(b),
(c),
and
(e)
of
the
Educational
Employment
Relations
Act
(Act).
The
District
violated
the
Act
when
it
failed
to
meet and
negotiate
in
good
faith
by
refusing to
provide
the Association
with
information
relevant to contract administration,
grievance
processing,
and
negotiations.
The
District
also violated
the
Act
by
insisting
to
impasse
on
negotiating
about
subjects outside the
scope
of
representation
within the
meaning
of the
Educational
Employment
Relations
Act. This
same
conduct
also constituted
a
violation
of
the
District's
duty
to
participate in
good
faith in the
statutory
impasse procedures.
As
a
result
of
this
conduct,
we
have been
ordered
to post
this
Notice
and
will
abide
by
the
following.
We
will:
A.
CEASE
AND
DESIST
FROM:
1.
Refusing
to
provide the
Chula
Vista
Elementary
Education Association;
CTA/NEA,
with information
relevant
to
contract
administration,
grievance processing
and
negotiations.
2.
Insisting to
impasse
on
negotiating
about
subjects
outside the
scope
of
representation, including contractual
language
which
has
the
effect
of
restricting
(1)
the
Association's right
to
file
grievances
on
behalf of
individual
unit
members; (2)
the Association's decision to
submit
grievances
to
arbitration
without the approval of the grievant;
and (3)
the
Association's right to petition
PERB
for unit
modification.
3.
Enforcing
and
giving
effect to those portions of
the
1984-87 Agreement
(or
any
subsequent Agreement), which
contain provisions
that
(a)
limit
the Association's right to
initiate
grievances only
at
Level
II
when a
grievance
"affects
more
than
one employee
in
a
single building, or
employees
in
more
than
one
building
...
," or
(b)
allow the Association to
submit
a
grievance to arbitration
only
after
the "grievant
...
file[s]
a
written request with the Association
....
," or
(c)
limit the
Association's right to
seek
unit modification pursuant to
PERB
regulations.
4. Denying
to the Association rights guaranteed by the
Educational
Employment
Relations Act, including the right to
represent its
members
in their
employment
relations with the
District.
B.
TAKE THE
FOLLOWING
AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
EDUCATIONAL
EMPLOYMENT
RELATIONS ACT:
1.
Upon
request,
provide
the Association
with
any
information requested,
and
not
previously
provided,
as noted
in
the
decision
above,
following
the
guidelines
set
forth in the
Remedy
section
herein.
2.
Accept
and
process grievances
filed
by
the
Association
on
behalf
of
individual
unit
members,
as
appropriate
under
the
time
limits
and
subject
matter
requirements of
the
Agreement between
the
parties.
3.
Accept
and
process
requests for
arbitration
filed
by
the
Association,
as
appropriate
under
the
time
limits
and
subject
matter requirements
of the
Agreement,
without
requiring
that
a
written
request
be
made
by
the grievant(s) to the
Association.
4. Recognize
the Association
1 s
right
to
seek
unit
modification
pursuant
to
PERB
regulations.
Dated:
____________
_
CHULA
VISTA CITY
SCHOOL
DISTRICT
By
Authorized
Representative
THIS
IS
AN
OFFICIAL NOTICE.
IT
MUST REMAIN POSTED FOR AT LEAST
THIRTY
(30)
CONSECUTIVE
WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE,
DEFACED, ALTERED
OR COVERED BY ANY
MATERIAL.
2
1
PROOF
OF
SERVICE
BY
MAIL
C.C.P,
1013a
I
declare
that
I
am
a
resident
of
or
employed
in
the
County
of
Sacramento,
California.
I am
over
the
age
of
18
years
and
not
a
party
to
the within
entitled
cause.
The
name
and
address of
my
residence or
business
is
Public
Employment
Relations
Board,
1031
18th
Street,
Sacramento,
California,
95814-4174.
I am
readily
familiar
with
the ordinary
practice
of
the business
in
collecting,
processing
and
depositing
correspondence
in the
United
States Postal
Service
and
that
the
correspondence
will
be
deposited the
same
day
with postage thereon
fully
prepaid.
On
August
16, 1990,
I
served
the attached
PERB
Decision
No.
834, Chula
Vista City
School
District,
Case
No.
LA-CE-2038
on
the
parties listed
below
by
placing
a
true
copy
thereof
enclosed
in
a
sealed
envelope
for
collection
and
mailing
in
the
United
StatesPostal
Service following
ordinary business
practices
at
Sacramento,
California,
addressed as follows:
Chula
Vista City
School
District
Attn:
Lewis
L.
Beall,
Supt.
84
East
J
Street
Chula
Vista,
CA
92010-6199
Chula
Vista
Elementary Education
Association,
CTA/NEA
Attn:
Frank
Buress,
Exec.
Dir.
196
Landis
Avenue
Chula
Vista,
CA
92010
Richard
J. Currier,
Attorney
Littler,
Mendelson,
Fastiff
&
Tichy
701 B
Street,
Suite
300
San
Diego,
CA
92101-8101
A.
Eugene Huguenin,
Jr.,
Attorney
California
Teachers
Association
1705
Murchison DriveP.O.
Box 921
Burlingame,
CA
94011-0921
I
declare
under
penalty of perjury that the foregoing
is
true
and
correct
and
that this declaration
was
executed
on
August 16, 1990,
at
Sacramento,
California.
Teresa Stewart(Type
or print
name)
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