Temple City Unified School District * * * OVERRULED IN PART by Charter Oak Unified School District (1991) PERB Order No. 873-E (PERB 0843E)

OVERRULED 	IN 	PART 	by 	Charter 	Oak 	Unified
School 	District 	(1991) 	PERB 	Order 	No. 	873-E
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
TEMPLE CITY EDUCATION ASSOCIATION,
CTA/NEA,
Charging 	Party,
v.
TEMPLE CITY UNIFIED SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2876
PERB 	Decision No. 	843
September 	28, 	1990
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Appearances: 	Charles R. 	Gustafson, 	Attorney, 	for Temple City
Education Association, 	CTA/NEA; 	Wagner, 	Sisneros & Wagner by
John J. 	Wagner, 	Attorney, 	for Temple City Unified School
District.
Before Craib, 	Camilli and Cunningham, 	Members.
DECISION
CUNNINGHAM, 	Member: 	This case, 	before the Public Employment
Relations Board 	(PERB or Board), 	is an appeal of a Board agent's
partial 	dismissal 	and refusal 	to 	issue 	complaint. 	The 	charge
filed by the 	Temple City Education Association, 	CTA/NEA
(Association) 	alleges, 	in part, 	that the Temple City School
District 	(District) 	violated section 3543.5(b), 	(c) 	and 	(e) 	of
the 	Educational Employment Relations Act 	(EERA or Act)1 by
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in relevant part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
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unilaterally changing policies 	on 	salary 	increase, 	semester units
for advancement on 	salary 	schedule, 	fringe benefits 	and personal
necessity 	leave. 	The Board 	agent 	concluded that these
allegations 	did not 	state 	a prima 	facie violation of 	EERA,
because he 	found that, 	inter alia, 	the allegations were
conclusory, 	the parties were at 	impasse 	and the policy 	changes
were 	identical to the District's 	last, 	best offer. 	The
Association, 	in its appeal, 	contends that the regional attorney
exceeded 	his 	authority 	by making 	determinations 	regarding
disputed 	factual 	matters, 	and that he 	improperly analyzed
the 	legal 	issues presented by this 	case.
We have 	examined the 	entire 	record 	in this 	matter, 	and 	for
the 	reasons 	stated below, 	we 	reverse 	the Board agent's 	partial
dismissal 	and order 	that a 	complaint 	issue.
FACTUAL 	SUMMARY
The parties' 	collective bargaining agreement, 	effective
November 	1, 	1986 through June 30, 	1989, 	contained a reopener
provision which 	allowed 	either party 	to 	make 	proposals 	regarding
salary, 	fringe benefits 	and any two other contract 	items 	at or
after March 	1988. 	Accordingly, 	in April 	1988, 	the Association
presented reopeners on salary 	(Art. 	XIV), 	fringe benefits 	(Art.
X V ) , 	transfers 	(Art. VI) and leaves 	(Art. VIII). 	The District
presented 	its proposals 	on these 	four 	items 	in May, 	and the
good 	faith with 	an 	exclusive 	representative.
(e) 	Refuse to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).
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parties 	began negotiations 	on the reopeners 	on June 	27. 	Impasse
was 	declared on August 	31, 	and a mediator was 	appointed. 	The
matter was 	certified 	for 	factfinding by the 	mediator on
November 22, 	and the 	factfinding report 	issued on February 	21,
1989.
On March 22, 	1989, 	the parties met to discuss the report.
The Association alleges that, 	at this 	session, 	the District
presented a 	"take-it-or-leave-it" 	bargaining position. 	It 	is
alleged 	that 	no 	negotiations 	took place 	on this 	date because 	the
District was 	unwilling to 	negotiate. 	The 	District's position was
significantly different 	from 	its 	previous 	offers 	calling 	for 	the
retention of 	existing contract 	language. 	The parties 	met 	again
on April 	20, 	at which time the District presented 	"the Board's
last, 	best, 	and final offer." 	The District allegedly did not
consider or discuss 	proposals 	made 	by 	the Association at 	this
session.
On April 	25, 	the District unilaterally adopted the terms
and 	conditions 	of 	employment 	contained 	in 	"the Board's 	last,
best, 	and final offer."
DISCUSSION
On appeal 	of the partial dismissal, 	the Association asserts
*
two arguments. 	First, 	it argues that the regional attorney
exceeded his 	authority by deciding a 	factual dispute. 	Second,
the Association contends 	that 	the 	regional 	attorney disregarded
well-established 	precedent 	and 	misinterpreted 	the 	Board's
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decision in Modesto City Schools 	(1983) 	PERB Decision No. 	291
(Modesto). 	Each of these arguments 	is addressed below.
The Association relies 	on Eastside 	Union 	School 	District
(1984) 	PERB Decision No. 	466 	(Eastside) 	for the proposition that
Board agents 	are not 	empowered 	"to 	rule on the ultimate merits 	of
a 	charge" 	in accordance with Regulations 	32620 	and 	32640.2 Where
the 	investigation reveals 	that 	there 	are 	disputed material 	facts
or contrary theories 	of 	law, 	principles 	of due process 	require
issuance of a complaint and a 	formal hearing. 	(Id. 	at p. 	7.)
In determining whether 	a prima 	facie 	case has 	been 	stated by
the charging party, 	the Board agent 	is 	to take the 	factual
allegations 	as 	true. 	(See Riverside Unified School 	District
(1986) 	PERB Decision No. 	562a; 	San Juan Unified School District
(1977) 	EERB Decision No. 	12.3)
In this 	instance, 	the Association points 	to 	specific 	factual
allegations which 	support 	its 	theory 	in this 	case or, 	at the very
2Regulation 32620(b)(4) provides, 	in relevant part:
(b) 	The powers 	and duties of 	such Board
agent 	shall be to:
(4) 	Make 	inquiries 	and review the charge
and 	any 	accompanying 	materials 	to 	determine
whether an unfair practice has been, 	or is
being, 	committed 	. . . .
Regulation 32640(a) 	states, 	in pertinent part:
The Board agent 	shall 	issue a 	complaint 	if
the charge or the 	evidence 	is 	sufficient to
establish a prima 	facie 	case.
3Prior to January 	1, 	1978, 	PERB was known as the Educational
Employment 	Relations 	Board.
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least, 	provide the basis 	for a 	finding that a prima 	facie 	case
has been stated. 	Specifically, 	it points 	to allegations 	in the
charge that, 	although the parties met on March 22 	and April 	20,
1989, 	and the District presented a written bargaining position,
"no 	negotiations 	took place" 	at these post-factfinding 	sessions.
Moreover, 	"offers 	made by the 	District 	after factfinding were
presented as ultimatums, 	were offered on a 	'take-it-or-leave-it'
basis with 	a refusal 	and 	failure 	on the part of 	the 	District
to 	consider or discuss 	proposals 	made by the Association."
Likewise, 	the Association asserts 	that the 	cover memo to
the District's 	"last, 	best, 	and final offer" 	of April 20,
demonstrates 	the 	District's 	"take-it-or-leave-it" 	stance by
stating up 	front 	that 	it 	is 	the District's position that 	the
negotiating process has been exhausted. 	Thus, 	the District's
last, 	best offer was, 	in fact, 	merely an offer of the option to
consent to a unilateral 	fait accompli, 	argues 	the Association.
Despite 	the 	allegations 	discussed 	in the previous 	paragraph,
the Association 	claims 	that 	the 	regional 	attorney made 	the
following contrary factual 	findings: 	(1) 	the parties 	entered
into negotiations after factfinding; 	(2) 	the District's post-
factfinding 	"offers" 	were 	introduced 	into the bargaining arena;
(3) 	there were bilateral discussions with regard to the 	"offers";
and 	(4) 	the Association was 	given the 	opportunity 	to 	consider
and act upon these 	"offers." 	By deciding these 	contested 	factual
issues 	during the 	course of his 	investigation of this 	charge, 	the
Association 	claims 	that 	the 	regional 	attorney 	exceeded his
un
	5

authority, 	and his 	partial dismissal 	should therefore be 	reversed
by 	the 	Board.
In its 	response to the appeal, 	the District appears 	to
implicitly 	admit 	that 	the 	regional 	attorney 	indeed 	resolved
disputed 	facts. 	The 	sole argument made by the District 	is 	that
the 	Board's 	Eastside decision 	should be 	overturned, 	because 	it
establishes 	a policy which prolongs 	controversy 	and 	is 	therefore
detrimental 	to 	employer-employee 	relations. 	The District 	also
claims 	that 	the prohibition against determination of 	disputed
factual 	matters 	by 	regional 	attorneys 	results 	in wasted 	resources
as well 	as 	time. 	Nowhere 	in its 	response to the Association's
appeal 	does 	the District address 	or refute 	the Association's
claim that 	the 	regional 	attorney made 	certain 	factual
determinations 	in arriving at 	the ultimate disposition of
this 	case.
The Board 	in Modesto 	stated that, 	subsequent to 	factfinding,
the parties 	are 	required 	to 	examine 	the 	factfinding 	report 	to
see 	if 	they 	can find a basis 	for 	settlement 	or 	for 	compromises
that might lead to settlement. 	(Id. 	at p. 	37.) 	This obligation
includes 	the 	requirement 	that 	the parties 	seriously discuss 	the
report 	and 	engage 	in a 	further 	exchange 	of 	information which 	may
determine whether movement 	toward 	settlement 	is 	a possibility.
(Id. 	at p. 	37, 	fn. 	18.) 	The Board in Modesto concluded that the
employer's post-factfinding 	conduct, 	which 	included a 	statement
to 	the union that there would be 	no 	negotiations 	and that 	the
union could accept 	the 	employer's position or have 	it 	imposed
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as 	a post-impasse unilateral 	change, 	constituted a refusal 	to
bargain 	in good faith in violation of 	section 3543.5(c).
Accepting the Association's allegations 	as 	true, 	in this
case, 	we 	find that a prima 	facie 	case of 	failure to bargain
within the 	scope 	of 	Modesto has 	been 	stated.4 The Association
claims that the District did not, 	in good faith, 	seriously
discuss 	the 	factfinding report 	at 	the March and April 	sessions,
nor did 	it 	consider all possible bases 	for 	settlement 	or
compromise. 	To the contrary, 	the District's post-factfinding
conduct 	allegedly 	consisted 	solely 	of presenting 	a 	"take-it-or-
leave-it" 	proposal, 	followed by a 	slightly changed position in
April labeled as 	its 	"last, 	best, 	and final offer," 	with a memo
stating 	that 	it believed the 	negotiating process 	to 	be 	completed.
The 	Eastside 	prohibition against 	resolution of 	disputed 	material
facts 	prior to 	formal hearing exists 	to 	ensure that 	charging
parties 	are accorded due process. 	Accordingly, 	due process,
in this 	instance, 	requires 	that 	the Association be 	given the
opportunity to prove, 	at a 	formal hearing, 	the truth of the
allegations 	contained in its 	charge.
The Association 	also 	takes 	issue with the 	regional
attorney's 	application of 	the rule that an employer may
unilaterally 	adopt 	only 	those 	changes 	reasonably 	comprehended
within preimpasse proposals. 	(Taft 	Broadcasting Company
4We 	note that bad faith 	"bargaining" 	conduct, 	which occurs
during the pendency of 	statutory 	impasse procedures, 	constitutes
a violation of 	section 3543.5(e), 	rather than 3543.5(c). 	(Moreno
Valley 	School 	District v. 	Public 	Employment 	Relations 	Board
(1983) 	142 Cal.App.3d 	191.)
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(1967) 	163 NLRB 475, 	enforced sub nom.; 	American Federation of
Television and Radio Artists 	v. 	National 	Labor Relations 	Board
(D.C. 	Cir. 	1968) 	395 F.2d 622; 	Modesto City Schools District
(1983) 	PERB Decision No. 	291, 	pp. 	46-47.) 	We decline to address
this 	issue at this 	time as 	it 	is unnecessary.5
ORDER
For the reasons 	set 	forth above, 	the Public 	Employment
Relations 	Board 	finds 	the 	Temple 	City 	Education Association's
Appeal 	of 	Partial 	Dismissal 	and Refusal 	to 	Issue Complaint 	to
have merit, 	and REMANDS 	this 	matter to the Office of 	the General
Counsel 	for 	issuance of a 	complaint.
Members 	Craib 	and Camilli 	joined 	in this 	Decision.
5Though not raised in the Association's 	appeal, 	the Board
agent 	rejected 	the Association's 	assertion that 	the 	District
had no right to 	implement changes 	in reopened 	subjects, 	even
if 	impasse procedures had been exhausted. 	This 	issue also 	need
not be addressed at this 	time.
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