Sierra Sands Unified School District of Kern County (PERB 1425E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

SIERRA SANDS UNIFIED SCHOOL DISTRICT
OF KERN COUNTY,
Charging Party, Case No. LA-CO-841-E
v. PERB Decision No. 1425
DESERT AREA TEACHERS ASSOCIATION, March 16, 2001
Respondent.

Appearances: Miller, Brown & Dannis by David G. Miller, Attorney, for Sierra Sands Unified
School District of Kern County; California Teachers Association by Rosalind D. Wolf,
Attorney, for Desert Area Teachers Association.
Before Amador, Baker, Whitehead, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the Sierra Sands Unified School District of Kern County (District) of a Board
agent's dismissal (attached) of its unfair practice charge.

The charge alleged that the Desert Area Teachers Association (Association) violated

section 3543.6(c) of the Educational Employment Relations Act (EERA)' when it failed or

refused to bargain in good faith.

' EERA is codified at Government Code section 3540 et seq. Section 3543.6 provides,
in pertinent part:

It shall be unlawful for an employee organization to:

After reviewing the entire record in this case, including the charge, the dismissal and
warning letters, the District's appeal and the Association's response, the Board finds the
dismissal letter to be free from prejudicial error and adopts it as the decision of the Board
itself.
ORDER
The unfair practice charge in Case No. LA-CO-841-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Amador and Whitehead joined in this Decision.
(c) Refuse or fail to meet and negotiate in good faith with a
public school employer of any of the employees of which it is the
exclusive representative.
2

STATE OF CALIFORNIA 	GRAY
	Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l 03 l 18th Street
Sacramento, CA
95814-4174
Telephone: (916) 327-8385
Fax: (916) 327-6377
October 23, 2000
David G. Miller
MILLER BROWN & DANNIS
2550 Via Tejon, Suite 3A
Palos Verdes, CA 	90274
Re: 	Sierra Sands Unified School District
of
Kem County v. Desert Area Teachers
Association
Unfair Practice Charge No. LA-CO-841-E
DISMISSAL LETTER
Dear Mr. l\1iller:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 13, 2000. The Sierra Sands Unified School District
of
Kem
County alleges that the Desert Area Teachers Association violated the Educational
Employment Relations Act (EERA) when it failed or refused to bargain in good faith.
I indicated to you in the attached letter dated September 14, 2000, that the above-referenced
charge did not state a prima facie case. You were advised that
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
the charge should be amended. You were further advised that uniess the charge was
withdrawn or was amended to state a prima facie case prior to September 25, 2000, the charge
would be dismissed. Your request for an extension
of
time was granted. An amended unfair
practice charge was timely filed on October 2, 2000.
As amended, the charge alleges that the District and the Association initiated reopener
negotiations in June 1999. On March 21, 2000, the parties reached a tentative agreement. In a
written agreement, the parties resolved reopener issues such as salaries, health and welfare
benefits and other items. The charge alleges that the parties also verbally agreed to conduct
separate negotiations over a Peer Assistance and Review program (P AR).1 The parties
scheduled a meeting for April 14, 2000 to negotiate PAR.
On April 14, 2000, District and Association bargaining representatives met. The Association
presented a bargaining proposal, which sought to reopen the contract to negotiate 12 items, in
addition to PAR. Several of the proposed bargaining items had recently been settled during
1 In 1999, the Legislature adopted PAR, a program which provided funding to school
districts to develop peer training and assistance programs.

LA-CO-841-E
October 23, 2000
Page 2
reopener negotiations, such as salary and fringe benefits. 	Other items had no obvious
relationship to PAR, such as proposals concerning the strike prohibition, past practice, and
vacancies.
The charge alleges that the Association refused to negotiate PAR at the April 14 meeting
unless the District agreed to reopen the contract to negotiate the items proposed by the
Association. 	The District refused to reopen the contract.
On May 8, 2000, District representative David Miller wrote to Association Field
Representative Mike Ford. Mr. Miller reminded Mr. Ford that on March 21, 2000 the parties
had agreed to negotiate PAR, but that the agreement was not to be considered a reopening of
the contract. Mr. Miller asked Mr. Ford to provide further dates to schedule negotiating
sessions over PAR. 	In the absence of additional negotiating dates, Mr. Miller asked the
Association whether the parties were at impasse over the PAR issue.
Mr. Ford responded on May 9, 2000, denying that the Association had agreed to negotiate
PAR. Mr. Ford noted that the contract is closed under the zipper clause and that it was the
Association's position that the contract must be reopened before the Association wouldbe
willing to negotiate PAR. 	Consequently, Mr. Ford stated that the parties were not at impasse
over this issue.
On June 12, 2000, Mr. Miller wrote to Mr. Ford suggesting additional dates to bargain PAR.
The Association did not respond to the District's letter.
The charge alleges that the Association engaged in bad faith bargaining when it conditioned
bargaining PAR on the District's waiver of its contractual right not to bargain under the zipper
clause.
As discussed in the attached letter, the charge fails to demonstrate evidence of bad faith under
the totality of conduct test. The Board has concluded that where a party has the authority to
undertake the proposed condition, in this case to agree to reopen the contract, the condition
does not demonstrate evidence of bad faith. 	(State of California (Department of Personnel
Administration (1998) PERB Decision No. 1249-S.) Therefore, the charge fails to state a
prima facie case under this theory.
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conduct violates EERA. 	The charge alleges that the Association violated its duty to bargain in
good faith when it conditioned bargaining PAR on the District's waiver of its contractual right
not to bargain under the zipper clause. The District contends that the Association violated its
duty to bargain in good faith under a per se theory.
As previously discussed in the attached letter, the Board has determined that certain acts have
such potential to frustrate negotiations that they are held to be "per se" unlawful without any
finding of subjective bad faith. 	(Paiaro Valley Unified School District (1978) PERB Decision
No. 51.) In cases involving conditional bargaining, the Board has found per se violations in

LA-CO-841-E
October 23, 2000
Page 3
insisting to impasse on the withdrawal
of
grievances and unfair practice charges, and on a
union waiving its statutory right to represent unit members in the grievance process. 	(Lake
Elsinore School District (1986) PERB Decision No. 603; Modesto City Schools (1983) PERB
Decision No. 291.) For purposes
of
determining whether a party has unlawfully insisted to
impasse, PERB must first determine that the parties are at impasse pursuant to PERB
Regulation 32793. (State
of
California (Department
of
Personnel Administration (1999) PERB
Decision No. 1330-S.)
The present charge alleges that the District proposed and the Association agreed to negotiate a
PAR program. At the bargaining session, the Association submitted its proposal which
required the District to reopen the contract to bargain seemingly unrelated matters as a
condition
of
the Association's agreement that it negotiate PAR. The Association refused to
negotiate PAR unless the District agreed to waive its contractual right not to bargain under the
zipper clause.
Under the case law above, PERB has found per se violations where a party has insisted to
impasse that the other party waive its statutory or contractual rights. 	However, the present
charge fails to demonstrate that PERB has determined that the parties are at impasse over PAR.
Absent a showing
of
a PERB certified impasse, the charge fails to demonstrate that the
Association unlawfully conditioned bargaining PAR on the District's waiver
of
its contractual
right not to bargain under the zipper clause.
Finally, the charge alleges that the Association failed to bargain in good faith when it refused
to negotiate PAR.
An absolute refusal to bargain is a per se violation
of
the duty to bargain in good faith.
(Stockton Unified School District (1980) PERB Decision No. 143; Sierra Joint Community
College District (1981) PERB Decision No. 179.)
The charge alleges that on March 21, 2000, the Association agreed to negotiate PAR in a
session scheduled for April 14, 2000. At the April
14
bargaining session, the Association
refused to negotiate PAR unless the District agreed to reopen the contract. The District
insisted that the parties had agreed to limit negotiations to the subject
of
PAR.
Following the meeting, the District wrote to the Association seeking further dates to negotiate
PAR. In its May 9, 2000 letter, the Association again refused to negotiate PAR unless the
District agreed to reopen the contract. The Association did not respond to the District's
June 12, 2000 letter which provided further dates to negotiate PAR.
These facts fail to demonstrate an absolute refusal to bargain. As alleged, the parties agreed to
meet on April 14 to negotiate PAR. The Association attended the meeting and agreed to
negotiate PAR on the condition that the District reopen certain items in the contract. Although,
the Association's proposal to reopen the contract was unacceptable to the District, the facts do
not demonstrate that the Association absolutely refused to negotiate. 	Accordingly, the charge

LA-CO-841-E
October 23, 2000
Page 4
fails to demonstrate that the Association breached its duty to bargain in good faith and the
charge must be dismissed.
Right to Appeal
Pursuant to PERB Regulations2, you may obtain a review
of
this dismissal
of
the charge
by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file with the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contents and a
~
PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq. 	Copies of the Regulations may be purchased from PERB's Publications
Coordinator, 1031 18th Street, Sacramento, CA 95814-4174, and the text is available at
www.perb.ca.gov.

LA-CO-841-E
October 23, 2000
Page 5
sample form.) 	The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. 	The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied
by proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy General Counsel
obm W. Wesley
Regional Attorney
Attachment
cc: Rosalind D.
Wolf

STATE OF CALIFORNIA	
GRAY
DA VIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031
18th Street
Sacramento,
CA
95814-4174
Telephone: (916) 327-8385
Fax:
(916)327-6377
September 14, 2000
David
G.
Miller
MILLER BROWN & DANNIS
2550 Via Tejon, Suite 3A
Palos Verdes, CA 	90274
Re: 	Sierra Sands Unified School District
of
Kern County
v.
Desert Area Teachers
Association
Unfair Practice Charge No. LA-CO-841-E
WARNING LETTER
Dear Mr. Miller:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 13, 2000. The Sierra Sands Unified School District
of
KemCounty alleges that the Desert Area Teachers Association violated the Educational
Employment Relations Act (EERA) 1 when it failed or refused to bargain in good faith.
The charge makes the following factual allegations. The District and the Association are
parties to a collective bargaining agreement (CBA) which expires on June 30, 2001. Article
XIX
of
the parties' CBA includes a zipper clause. Article XXI provides for reopener
negotiations during the term
of
the agreement. Article XXI states, in pertinent part:
B. During negotiations for the 1999-2000 and 2000-2001 school
years, each party shall be entitled to reopen the following
Articles: HI (Salary), IV (Differentiated Pay), V (Health and
Welfare, pursuant to the terms therein), VI (Work Hours), VII
(Class Size), and VIII (Leave Provisions).
C. 	The Association shall be entitled to reopen two (2) Articles in
addition to those provided in Section B, above, each reopener
year.
D. 	The District's exercise
of
reopeners,
if
any, pursuant to this
Article, shall be 1:)ased on the interest of preservation
of
the fiscal
health of the District.
1 EERA is codified at Government Code section 3540 et seq. 	The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CO-841-E
September 14, 2000
Page 2
In 1999, legislation enacting a Peer Assistance and Review program (PAR) was adopted during
a special session
of
the State Legislature. 	Thereafter, in 1999, the parties initiated reopener
negotiations. 	On June 15, 1999, the District submitted its reopener proposal. The District
made numerous statements and proposals, including the following:
New Legislation in the area
of
Peer Assistance and Review. We
recognize this subject is not technically within the scope
of
reopener negotiations but would hope the Association will
join
us
in discussing this subject, since it is designed to improve teacher
performance and, therefore, student learning.
On June 17, 1999, the Association submitted its reopener proposal. 	The Association addressed
each
of
the articles listed in Article XXI(B). In addition, the Association chose to reopen
Article XI (Transfers) and Article XIX (Miscellaneous Provisions). 	Under "Miscellaneous
Provisions," the Association stated:
Provide opportunities for the parties to negotiate changes in the
law that might not have been contemplated by the parties when
this agreement was reached, and to discuss changes made
by
the
legislature and items related thereto, made by special session.
The parties commenced reopener negotiations on October 4, 1999. On January 25, 2000, PAR
was first discussed at the bargaining table. The Association expressed concerns about the
interest
of
its members in the PAR program. The District ultimately proposed that the parties
meet in a subcommittee
of
the bargaining teams to negotiate the matter.
The charge alleges that during the March 21, 2000 negotiating session, the parties agreed to
meet on April 14, 2000 for the purpose
of
negotiating PAR. On March 21, the parties reached
tentative agreement on the remaining reopened contract provisions. On March 24, the
Association ratified the tentative agreement and, on April 12, the District School Board
approved the tentative agreement.
On April 14, 2000, Association and District bargaining representatives met. 	The charge
alleges that the Association bargained in bad faith based on the following conduct:
1.	
Association representative Mike Ford asserted that the contract had not been opened for the
purpose
of
negotiating PAR.
2. The Association presented a bargaining proposal which included 13 items, including PAR.
Several
of
the proposed bargaining items had recently been settled during reopener
negotiations, such as salary and fringe benefits. 	Other items had no obvious relationship to
PAR, such as the strike prohibition provision. 	The Association indicated to the District that it
was unwilling to negotiate PAR unless the other items were also opened for negotiations.

LA-CO-841-E
September
14,
2000
Page 3
3.	
The Association's proposal included the foiiowing, ;;Fringe Benefits - SISC rebates to be
returned to members
of
the bargaining unit in a form or for a use determined by the
Association.
11
The District contends that this proposal is illegal because Government Code
section 53205 provides that any dividends or premium rebates derived from health insurance
premiums paid by the District "are the employer's property.
11
Based on the facts stated above, the charge fails to state a prima facie case.
To establish a prima facie case
of
a failure to bargain in good faith PERB considers the totality
of
the bargaining conduct to determine whether the parties have negotiated in good faith with
the requisite subjective intention
of
reaching an agreement. (Pajaro Valley Unified School
District (1978) PERB Decision No. 51.) The presence
of
one indicia alone, however, is
insufficient to demonstrate bad faith bargaining under the totality
of
conduct standard.
The Board has also concluded that certain acts have such potential to frustrate negotiations that
they are held to be "per se" unlawful without any finding
of
subjective bad faith. 	(Ibid.) In
cases involving conditional bargaining, the Board has found per se violations in insisting to
impasse on the withdrawal
of
grievances and unfair practice charges, and on a union waiving
its statutory right to represent unit members in the grievance process. 	(Lake Elsinore School
District (1986) PERB Decision No. 603; Modesto City Schools (1983) PERB Decision No.
291.)
Applying the totality
of
conduct test to other cases, PERB has concluded that conditional
bargaining may demonstrate evidence
of
bad faith. 	In State
of
California (Department
of
Personnel Administration) (1998) PERB Decision No. 1249-S (DP A), the employer linked pay
raises with the union's agreement to support civil service reform legislation and the approval
of
an income tax cut. 	The Board found evidence
of
bad faith in the DPA case because the
employer's pay raise proposal was conditioned on a matter over which the union had no
control, approval
of
an income tax cut. However, the Board concluded that linking the pay
raise to the support
of
the civil service reform legislation did not demonstrate bad faith because
the union could decide whether to support the legislation. (See also State
of
California
(Department
of
Personnel Administration (1999) PERB Decision No. 1330-S.)
The present charge alleges that the Association conditioned bargaining PAR on reopening the
contract to negotiate 12 additional items, including subjects that had been settled less than a
month before. Because the parties' contract contained a zipper clause, the District had no
obligation to bargain the additional items proposed by the Association. 	However, the District
had the discretion to agree to negotiate all or some of these items.
The parties are not at impasse and the alleged facts do not demonstrate that the conditional
bargaining was per se unlawful under the Lake Elsinore and Modesto standard. The charge
also fails to demonstrate evidence of bad faith under the totality of conduct test because the
District had the discretion to determine whether to bargain over the additional subjects
proposed by the Association. 	Accordingly, this allegation fails to state a prima facie violation.

LA-CO-841-E
September 14, 2000
Page 4
The charge also aiieges that the Association bargained in bad faith when Association
representative Mike Ford asserted that the contract had not been opened to negotiate PAR.
	It
is
unclear under what theory such a statement represents evidence
of
bad faith bargaining. Thus,
this allegation fails to state a prima facie case.
Finally, the charge alleges that the Association offered an illegal proposal. 	The Association
proposed that any health insurance premium rebates be returned to the Association or its
members. 	Government Code section 53205 provides that these rebates are the property
of
the
employer. 	There is nothing in the language
of
the statute which precludes the District from
negotiating the allocation
of
any rebates it receives. 	Therefore, this allegation fails to
demonstrate evidence
of
bad faith bargaining.
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts which would correct the
deficiencies explained above, please amend the charge. 	The amended charge should
beprepared on a standard PERB unfair practice charge form, clearly labeled First Amended
Charge, contain all the facts and allegations you wish to make, and be signed under penalty
of
perjury by the charging party. 	The amended charge must have the case number written
on the
top right hand comer
of
the charge form. 	The amended charge must be served on the
respondent's representative and the original
proof
of
service must be filed with PERB.
If
I do
not receive an amended charge or withdrawal from you before September 25, 2000, I shall
dismiss your charge.
If
you have any questions, please call me at the above telephone number.
Sincerely,
.	
;;;,_
	/ 	'
l{;g__t/~f;bin
W. Wesley ~
1
Regional Attorney/