Chino Valley Unified School District (PERB 1326E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ASSOCIATED 	CHINO 	TEACHERS,
CTA/NEA,
Charging 	Party,
v.
CHINO VALLEY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-3922
PERB Decision No. 	1326
April 14, 	1999
Appearance; 	Schwartz, 	Steinsapir, 	Dohrmann & Sommers by Stuart
Libicki, 	Attorney, 	for Associated Chino Teachers, 	CTA/NEA.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment Relations 	Board 	(PERB or Board) 	on appeal 	by the
Associated Chino Teachers, 	CTA/NEA 	(ACT) 	of a Board agent's
partial 	dismissal 	of 	its unfair practice 	charge. 	ACT alleges
that 	the 	Chino Valley Unified School District 	(District) 	breached
its 	duty 	to bargain 	in good 	faith 	regarding 	the 	impact 	and
implementation 	of 	year-round 	school 	for 	the 	1998-1999 	school 	year
and unilaterally modified agreements 	in violation 	of
section 3543.5(c) 	of 	the Educational 	Employment Relations Act
(EERA).1
1EERA is 	codified at Government 	Code 	section 	3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(c) 	Refuse or fail 	to meet and negotiate 	in

good 	faith with an 	exclusive 	representative.
The 	Board has 	reviewed the 	entire 	record in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
Board agent's 	partial 	warning and dismissal 	letters 	and ACT's
appeal. 	Based on the following discussion, 	the Board reverses
the partial 	dismissal 	and 	finds 	that ACT has 	stated a prima 	facie
case 	that 	the District 	breached 	its 	duty 	to bargain 	in good 	faith
in violation of 	EERA.
BACKGROUND
A review of 	ACT's 	original 	and amended unfair practice
charge 	reveals 	the 	following.
On January 22, 	1998,2 the District's Board of Trustees
(trustees) 	voted to 	implement year-round school 	in 	four
additional 	District 	schools 	for the 	1998-1999 	school 	year. 	On
January 23 	and February 11, 	ACT made written requests 	to bargain
the 	impact 	of 	that 	implementation.
The 	first 	bargaining 	session 	originally 	scheduled 	for
February 	18 	was 	cancelled because 	the District's 	lead negotiator
informed ACT 	that 	he 	did not 	have 	the 	authority 	to negotiate 	for
the trustees.
On March 4, 	when the District's 	lead negotiator and ACT's
executive 	director met, 	the District's 	lead negotiator expressly
stated at 	the beginning 	of 	the 	session 	that 	he had 	received
direction 	from the District 	and 	the 	authority to 	sign off 	on
contractual 	language. 	Accepting his 	representation of 	authority,
2A11 	dates 	refer to 	1998 	unless 	indicated otherwise.
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ACT's 	executive 	director 	commenced negotiations 	with 	the
District. 	After five hours 	of negotiations, 	the parties 	reached
tentative agreement 	on sixteen of nineteen pending 	issues, 	and
the 	District's 	lead negotiator and ACT's 	executive 	director
initialed the agreements 	as 	approved at 	that 	time. 	A March 	12
bargaining 	session was 	cancelled by 	the District.
Between March 16 	and 18, 	the District's 	lead negotiator
informed ACT's 	executive 	director 	that 	he 	had direction 	from the
District 	to 	complete 	negotiations 	regarding 	the 	three 	remaining
issues, 	and they agreed to meet on March 19. 	There 	is no
indication 	that 	the District 	at 	that 	time 	expressed 	concerns 	or
proposed 	changes 	to 	the 	tentative agreements.
At 	the March 19 meeting, 	the District's 	lead negotiator
presented ACT's 	executive 	director with a 	unilaterally 	revised
list 	of 	the 	tentative 	agreements which had been reached at 	the
March 4 meeting, 	as well as 	the three 	issues that 	remained
unresolved. 	The 	changes 	had been made by 	the District's
assistant 	superintendent 	of human resources, 	who was asked to
join 	the 	negotiation session. 	The assistant 	superintendent 	of
human 	resources 	stated that 	the 	changes 	had been made because 	the
District's 	lead negotiator did not have 	the authority 	to make
agreements 	on behalf 	of 	the District.
On March 23, 	the president 	of ACT wrote to the District's
superintendent 	of 	schools 	requesting 	that 	he 	honor 	the 	agreements
reached on March 4 	or 	explain why 	the 	District would not 	do 	so.
ACT 	filed 	its 	original 	unfair practice 	charge 	on April 	3,
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alleging 	that 	the 	District 	violated 	the 	EERA and 	failed 	to
bargain 	in good 	faith by manipulation of 	the authority 	of 	its
lead 	negotiator and by memorializing 	certain aspects 	of 	the
issues 	negotiated 	in a manner 	inconsistent 	with 	the 	language
previously agreed upon by the parties. 	On October 	5, 	ACT amended
its 	charge 	to allege 	that 	the District violated the 	EERA when 	it
unilaterally 	changed 	the 	language 	that 	had been 	initialed and
agreed upon at 	the March 4 	bargaining 	session.
DISCUSSION
In 	cases 	of an alleged 	failure 	or refusal 	to bargain 	in good
faith, 	PERB typically looks 	to the entire 	course of negotiations,
examining a party's 	outward 	conduct 	to determine whether 	its
subjective 	intent 	was 	to attempt 	to 	resolve 	differences 	and 	reach
a 	common ground. 	(Charter Oak Unified School 	District 	(1991)
PERB Decision No. 	873 at p. 	7 	(Charter Oak), 	citing Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51 	(Pajaro
Valley).) 	A few actions 	are 	so egregious 	as 	to be per se
violations 	of 	the duty to bargain 	in good 	faith. 	Some unilateral
changes 	and an outright 	refusal 	to bargain 	constitute 	examples 	of
per se violations of 	this duty. 	In most 	cases, 	the Board
examines 	the 	totality of 	the 	circumstances 	to determine whether a
party demonstrated 	the 	subjective 	intent 	to bargain 	in good
faith.
Under the 	totality of 	the 	circumstances analysis, 	some
indicators 	of bad 	faith bargaining 	include: 	surface bargaining
in which a party 	"goes 	through the motions" 	without 	a genuine
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attempt 	to 	reconcile 	differences 	(Muroc Unified School 	District
(1978) 	PERB Decision No. 	80); 	evasive tactics and delay including
cancelling 	sessions 	or not 	meeting 	and 	conferring promptly
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143);
utilizing a negotiator who does 	not 	possess 	sufficient 	bargaining
authority, 	which delays 	or thwarts 	the bargaining process
(Oakland Unified School 	District 	(1983) 	PERB Decision
No. 	326 	(Oakland)); 	and, 	regressive bargaining techniques which
move 	the parties 	away from agreement, 	such as 	reneging on
previously 	reached agreements 	and withdrawal 	of 	previous
proposals 	(Charter Oak). 	In general, 	The Board has held that one
indicator of 	bad 	faith bargaining 	is 	insufficient 	to demonstrate
a prima 	facie 	case of unlawful 	conduct. 	(Regents 	of 	the
University of 	California 	(1985) 	PERB Decision No. 	520-H.)
Based on a 	review of 	the 	original 	and amended 	charges, 	the
Board 	concludes 	that ACT has 	demonstrated multiple 	indicators 	of
bad 	faith conduct by 	the District 	sufficient 	to 	state 	a prima
facie 	case 	of 	an EERA violation.
On March 19, 	the District presented to ACT changes 	it had
made 	to 	the 	tentative 	agreements 	reached by 	the parties 	on
March 4. 	By reneging on these 	tentative agreements, 	the District
demonstrated regressive bargaining 	techniques, 	an 	indicator of
bad 	faith bargaining. 	(Charter Oak.) 	When asked 	to explain 	its
action, 	the District 	indicated that 	its 	lead negotiator did not
have 	the 	authority to 	reach those 	tentative agreements. 	In this
case, 	the parties 	on two occasions 	specifically discussed the
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authority of 	the District's 	lead negotiator. 	These 	discussions
culminated 	in 	the District's 	endorsement 	of 	its 	negotiator's
authority. 	Under these 	circumstances, 	the District's 	subsequent
revelation 	that 	it 	had assigned a negotiator who did not 	possess
sufficient 	bargaining 	authority 	constitutes 	a 	separate 	indicator
of bad faith bargaining. 	By that 	conduct, 	the District
significantly 	delayed 	and 	thwarted 	the 	bargaining 	process.
(Oakland.)
ACT also alleges 	that 	the District's 	action 	in altering 	the
tentative 	agreements 	reached 	on March 	4 	constituted an unlawful
unilateral 	change 	in violation of 	EERA. 	To prevail 	in a
unilateral 	change 	case, 	the 	charging party must 	establish that
the 	employer, 	without providing 	the 	exclusive 	representative with
notice 	or the 	opportunity to bargain, 	breached or altered the
parties' 	written agreement 	or established past practice
concerning a matter within the 	scope 	of 	representation, 	and that
the 	change 	had a generalized effect 	or 	continuing 	impact 	on 	the
terms 	and conditions 	of 	employment 	of bargaining unit members.
(Pajaro Valley at pp. 	5-6; 	Grant Joint Union High School District
(1982) 	PERB Decision No. 	196 at p. 	10 	(Grant).) 	However, 	since
the 	agreements 	which 	the District 	changed were 	tentative 	and had
not been ratified by 	the 	trustees, 	they had not been 	implemented
with regard 	to 	the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members. 	Therefore, 	a change 	in those 	tentative
agreements 	prior 	to 	their 	implementation does 	not meet 	the 	test
described by the Board in Grant. 	and does not 	constitute a
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separate unilateral 	change violation. 	Accordingly, 	that
allegation by ACT 	is 	dismissed.
In summary, 	ACT has presented 	indicators 	of bad faith
bargaining 	sufficient 	to demonstrate 	a prima 	facie 	case 	that 	the
District's 	conduct 	breached 	the 	duty 	to bargain 	in good 	faith 	in
violation of EERA section 3543.5(c).
ORDER
Based on the 	foregoing, 	the Board 	finds 	that 	the Associated
Chino Teachers, 	CTA/NEA has 	stated a prima 	face 	case of a
violation of EERA section 3543.5(c) 	in Case No. 	LA-CE-3922 	and
hereby orders 	this 	case REMANDED 	to 	the General 	Counsel 	for
issuance 	of 	a 	complaint 	as 	discussed herein.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
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