Fresno County Office of Education (PERB 0975E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
FRESNO COUNTY OFFICE OF EDUCATION,
Charging 	Party,
v.
FRESNO COUNTY SCHOOLS 	OFFICE
EDUCATORS ASSOCIATION, 	CTA/NEA,
Respondent.
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) 	Case No. 	S-CO-283
PERB Decision No. 	975
February 	22, 	1993
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Appearances: 	Stroup & de Goede by Daniel G. 	Stevenson, 	Attorney,
for Fresno County Office 	of 	Education; 	California Teachers
Association by Diane Ross, 	Attorney, 	for Fresno County Schools
Office Educators Association, 	CTA/NEA.
Before Blair, 	Chair; 	Hesse and Caffrey, 	Members.
DECISION
HESSE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	of 	a Board agent's
dismissal 	of 	an unfair practice 	charge 	filed by 	the 	Fresno 	County
Office of 	Education 	(FCOE). 	The Board agent 	found that 	the
charge, 	alleging 	that 	the 	Fresno County Schools 	Office 	Educators
Association, 	CTA/NEA 	(Association) 	failed to bargain in good
faith 	in violation of 	section 3543.6(c) 	of 	the Educational
Employment Relations Act 	(EERA or Act), 	did not 	state a prima
facie case.1
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.6 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for an employee
organization to:

FACTS
The 	FCOE 	filed an unfair practice 	charge on June 22, 	1992,
alleging 	that 	the Association violated 	EERA section 	3543.6(c) 	by
failing 	to negotiate 	in good 	faith. 	The Association 	is 	the
exclusive 	representative 	of 	certificated employees 	of 	the 	FCOE.
The unit includes teachers, 	nurses, 	therapists, 	resource
teachers, 	counselors, 	and instructors at the Regional
Occupational Center 	(ROC).
The 	charge alleges 	that 	in September 1991, 	the parties
agreed 	to 	negotiate 	the 	ROC 	collective 	bargaining 	agreement
separately. 	Negotiations were 	completed on November 26, 	1991,
and the agreement 	was 	initialed by 	the parties' 	representatives.
On May 14, 	1992, 	Association Chapter President Timothy J.
Nolt 	(Nolt) 	sent a memo to the ROC administrator James 	Steuart
(Steuart) 	advising him that 	he 	could not 	implement 	the ROC
agreement 	until 	it 	had been 	ratified by 	the Association
membership.2 On June 5, 	1992, 	Nolt 	sent a memo to FCOE
(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.
2The memo 	from Nolt 	to Steuart was 	attached to 	the 	charge as
Exhibit 	1. 	It 	states:
It 	has been reported that you would like 	to
implement 	the 	tentative 	agreement 	as 	it
relates 	to ROC. 	There has not been an
agreement 	to implement any part 	of 	the 	1991-
1992 	tentative agreement. 	Before
implementation 	can 	take place 	the 	entire
tentative 	agreement 	has 	to be 	ratified by 	the
membership. 	Therefore, 	we are still
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Administrator for Personnel, 	Lawrence Wilder 	(Wilder),
reiterating 	the Association's 	position 	that 	there 	could be 	no
implementation absent 	ratification by 	the 	entire Association
membership.3
operating under 	the 	current 	contract. 	You
must 	abide by the 	terms 	of 	that 	contract 	and
the 	terms 	of 	that 	contract will 	continue 	to
prevail. 	All 	182 	day contracts 	start at 	the
beginning 	of 	the 	established school 	year,
which begins 	in September and ends 	in June.
All 	supplemental 	contracts 	will 	be 	issued at
the end of 	the 	182 	day contract. 	Any other
starting 	or ending dates 	must 	be 	negotiated.
3The memo 	from Nolt 	to Wilder was 	attached 	to 	the 	charge 	as
Exhibit 2. 	It states:
The 	tentative ROC agreement 	is 	only a 	small
part 	of 	the whole 	1991-1992 	tentative
agreement. 	I 	informed you at 	the 	time of 	the
tentative 	ROC agreement 	and at 	subsequent
meetings 	that before any part 	of 	the 	1991-
1992 	tentative 	agreement 	could be
implemented, 	the entire 	1991-1992 	tentative
agreement 	has 	to be 	ratified by 	the 	entire
membership. 	No portion of 	the 	tentative
agreement 	can be 	implemented prior 	to
ratification. 	Therefore, 	we are still
operating under the 	current 	contract. 	You
must 	abide by 	the 	terms 	of 	that 	contract 	and
the 	terms 	of 	that 	contract will 	continue 	to
prevail. 	All 	182 	day contracts 	start at 	the
beginning 	of 	the 	established 	school 	year,
which begins 	in September and ends 	in June,
all 	supplemental 	contracts 	will 	be 	issued at
the end of 	the 	182 	day contract. 	(Emphasis
in 	original.)
Neither Administration nor 	the 	Association
can unilaterally pick and 	choose 	to 	implement
sections 	of a tentative agreement when it 	is
convenient 	for them. 	Doing 	this would defeat
the 	purpose 	of 	good 	faith 	collective
bargaining. 	Once 	the 	tentative agreement 	is
ratified by the membership, 	accepted by 	the
superintendent, 	and approved by the board of
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education, 	and only then, 	can be 	(sic) 	the
agreement 	be 	implemented.
On June 	12, 	1992, 	the parties met at a negotiation session
at 	which 	time 	California Teachers Association 	Professional
Services 	Consultant 	Enoch Bennett verbalized the Association's
position 	- - 	that 	there would be no implementation of 	the separate
provisions 	affecting ROC 	instructors 	absent 	ratification of 	the
entire agreement. 	In the 	charge, 	the FCOE asserts 	that 	the
Association's 	"posture," 	six months 	after agreement 	had been
reached on 	the ROC agreement, 	amounts 	to bad 	faith bargaining.
On August 	13, 	1992, 	the Board agent 	issued a warning letter
advising 	the 	FCOE 	that, 	based on the allegations 	set 	forth 	in the
charge and 	the 	facts 	revealed 	to him during his 	investigation,
the 	charge 	failed 	to 	state 	a prima 	facie violation of 	section
3543.6(c) 	of the EERA.
Relying on Stockton Unified School 	District 	(1980) 	PERB
Decision No. 	143 	and Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51, 	the Board agent stated that, 	in determining
whether a party has 	failed to bargain 	in good 	faith, 	the Board
utilizes 	either the 	"per se" 	or 	"totality of 	conduct" 	test,
depending 	on 	the 	conduct 	involved and 	the 	effect 	such 	conduct 	has
on the negotiating process.
Certain 	conduct 	has 	such an adverse 	impact 	on 	the
negotiation process 	that 	it 	is viewed, 	without more, 	as a 	"per
se" 	indicator of bad faith bargaining. 	In general, 	however, 	the
Board 	looks 	to 	the 	"totality of 	conduct" 	during 	the 	entire 	course
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of 	negotiations 	to 	determine whether 	the parties 	have 	negotiated
with 	the 	intent 	to 	reach agreement.
The 	Board agent 	concluded 	that 	informing 	the 	ROC
administrator 	that 	he 	could not 	implement 	the 	ROC agreement
absent 	ratification by 	the 	entire Association membership was 	not
a 	"per se" 	indicator that 	the Association 	failed to bargain 	in
good faith. 	Under the 	"totality of 	circumstances" 	test, 	the
Board agent 	found that 	the Association's 	conduct 	did not, 	by
itself, 	manifest 	a 	lack of 	good faith and did not 	establish a
prima 	facie violation of EERA section 3543.6(c).4
On August 24, 	1992, 	the FCOE 	filed a first amended charge.
In addition to 	the allegations 	contained 	in 	the 	initial 	charge,
the 	amended 	charge 	refers 	to 	the 	tentative 	agreement 	between 	the
parties 	regarding the ROC. 	That agreement 	states, 	in part: 	"The
established work year 	for ROC 	instructors 	shall 	fall 	within 	the
period of 	July 	1 	through June 	30th."5 According 	to 	the
allegations, 	ROC administrator Steuart 	developed the 	1992-93 	ROC
class 	schedule based 	on 	the 	good 	faith assurances 	of 	the
Association 	that 	the 	ROC 	agreement 	would be 	ratified and
4The 	Board agent's 	warning 	letter 	erroneously 	states 	that
the 	charge 	failed 	to 	establish a prima 	facie violation of 	EERA
section 3543.6(b).
5Exhibit 	3 	attached to 	the amended charge 	is 	a 	five-page
document 	entitled 	"Fresno 	County Office 	of 	Education and 	Fresno
County Schools Office Education 	(sic) 	Association, 	ROC
Negotiations/1991-92; 	it is dated November 26, 	1991. 	Article X
addresses 	the 	subject 	of 	hours 	and work year. 	Article X.4.d
contains 	the 	language 	quoted above.
unT	
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implemented 	shortly 	after 	the 	parties 	reached 	tentative 	agreement
on November 26, 	1991. 	Individual 	teachers assigned to teach ROC
classes 	beginning 	in July 	refused 	to 	return 	to 	teach until
September 1992, 	based on the Association's 	refusal 	to ratify the
ROC agreement. 	The amended charge 	asserts 	that 	this 	seriously
disrupted 	the 	ROC program during 	the months 	of 	July and August
1992.
The Board agent 	considered FCOE's 	amended charge and, 	on
August 27, 	1992, 	again determined that 	it 	failed to state a prima
facie 	case 	that 	the Association was 	in violation of 	EERA section
3543.6(c). 	The Board agent determined that 	the additional
allegations 	in 	the 	amended 	charge 	still 	did not 	constitute 	a 	"per
se" 	violation and that 	the 	"totality of 	circumstances" 	test was
the appropriate 	test. 	Concluding 	that 	the new allegations
contained 	in 	the amended 	charge 	failed to meet 	the 	"totality of
circumstances" 	test, 	the Board agent dismissed the charge.
FCOE 	filed an appeal 	of 	the Board agent's 	dismissal 	on
September 14, 	1992. 	In the appeal, 	FCOE argues that the Board
agent 	erroneously 	concluded 	that 	the 	Association's 	conduct 	was
not a per se violation of 	the Act. 	It 	charges 	that 	the Board
agent 	misapplied 	the 	Board's 	ruling 	in Stockton Unified 	School
District, 	supra, 	PERB Decision No. 	143 	(and cases 	cited therein)
that 	repudiation of 	an agreement 	on a 	single 	issue 	is
insufficient, 	by itself, 	to manifest a lack of good faith. 	In
this 	case, 	FCOE argues 	that 	the parties 	reached agreement 	on the
written contract 	in November 	1991, 	and the Association's 	"blatant
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refusal 	to 	implement" 	the whole agreement 	frustrated 	collective
bargaining 	and was 	a per 	se 	indicator 	of 	bad 	faith bargaining.
In 	its 	response 	to 	the appeal 	submitted on September 28,
1992, 	the Association asserts 	that 	the 	charge alleges nothing
more 	than 	reneging 	on a 	ground 	rule 	agreement 	to allow
implementation of 	a 	single 	article 	dealing with 	one 	category 	of
bargaining unit 	employees.6 It 	contends 	that, 	standing alone,
the 	allegation does 	not 	establish bad 	faith bargaining.
Moreover, 	the Association argues, 	the case is not analogous
to an 	employer's 	refusal 	to 	sign a 	completed and ratified
collective 	bargaining agreement 	because 	negotiations 	are 	still
continuing and 	the parties 	remain 	in mediation.7 Absent
agreement 	on a 	successor 	contract 	covering 	the 	entire bargaining
unit, 	the Association claims 	there 	is nothing to ratify, 	much
less execute.
6In support 	of 	its position that 	the 	charge does 	not 	amount
to 	the 	refusal 	to 	sign an entire 	completed and 	ratified
agreement, 	the Association points 	to Exhibit 3, 	attached to the
amended 	charge. 	That 	document 	shows 	that 	only part 	of 	the
collective 	bargaining 	agreement 	dealing with ROC 	instructors 	was
negotiated; 	specifically, 	recognition 	(art. 	I ) , 	and hours/work
year 	(art. 	X ) . 	Nothing in this tentative agreement covers such
issues as salary, 	fringe benefits, 	evaluation, 	or class size, 	the
Association asserts, 	and the 	FCOE has not alleged that 	there has
been 	tentative 	agreement 	on any of 	those 	issues 	with 	regard 	to
ROC teachers.
7PERB records 	indicate 	that on October 31, 	1991, 	CTA asked
the 	Board 	to 	render a determination 	that 	the parties 	had 	reached
impasse. 	The Board did so on November 1, 	1991, 	and appointed a
mediator. 	PERB records 	do not 	indicate whether the parties
subsequently 	reached agreement 	on a 	successor 	contract 	or were
directed by 	the mediator 	to proceed 	to 	factfinding.
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The Association urges 	the 	Board 	to 	rely on 	the 	general 	rule
that no 	changes 	in working conditions may be made, 	despite
individual 	tentative agreements 	on 	individual 	issues, 	until 	the
final 	collective 	bargaining agreement 	has 	been 	completed and
ratified or until 	exhaustion of 	the bargaining process. 	Thus,
the Association's position 	is 	that 	no 	individual 	tentative
agreement 	regarding 	hours/work year 	for ROC 	teachers 	can be
implemented until 	the 	entire 	collective bargaining agreement 	is
completed 	and 	ratified.
DISCUSSION
The 	duty 	to 	negotiate 	in 	good 	faith 	imposed by EERA requires
the parties 	to demonstrate by their 	conduct 	a genuine 	desire 	to
reach agreement. 	In general, 	the Board looks 	to the totality of
the circumstances, 	or the totality of bargaining conduct, 	to
determine whether 	there 	is 	sufficient 	indicia 	of 	good 	faith. 	In
Stockton Unified School District, 	supra. 	PERB Decision No. 	143,
for example, 	where 	the Board 	found the District's 	entire 	course
of 	conduct 	was 	an unfair practice under the 	totality of
circumstances 	test, 	it 	relied on the 	fact 	that 	the District
negotiator had reneged on the parties' 	ground rules 	agreement,
had missed or cancelled several meetings, 	was 	recalcitrant 	in
scheduling new meetings, 	and had unilaterally 	ended 	some
meetings. 	Under some circumstances, 	where a party's 	conduct 	is
so egregious and has 	such potential 	to 	frustrate negotiations, 	it
is 	considered a 	"per se" 	violation of 	the duty to bargain 	in good
faith. 	The 	"per se" 	analysis 	is most 	often applied to situations
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in which one 	of 	the parties 	refuses 	to negotiate altogether or an
employer unilaterally changes 	conditions 	of 	employment. 	As
succinctly put 	in The Developing Labor Law, 	"it 	is 	the 	failure 	to
negotiate, 	rather than the absence of good faith, 	which lies at
the heart 	of any violation involving 	[per se] 	conduct."8
In this 	case, 	the 	FCOE 	charges 	that 	the Association refused to
implement 	the parties' 	agreement on the ROC instructors' 	work
year prior 	to 	ratification of 	the 	full 	agreement 	by Association
membership. 	We agree with the 	Board agent 	that 	this 	conduct 	is
insufficient 	to 	establish a prima 	facie 	case 	of 	bad 	faith
bargaining, 	either as a 	"per se" 	violation or under the 	totality
of 	circumstances 	test.
FCOE asserts 	that 	this 	case 	is 	analogous 	to the 	situation
involving 	repudiation of 	an entire agreement and, 	therefore,
constitutes a 	"per se" 	violation. 	We disagree. 	As noted above,
the parties' 	agreement 	covered only ROC 	instructors 	and did not
apply to 	other members 	of 	the bargaining unit. 	Moreover, 	the
agreement 	involving ROC 	instructors 	was 	limited 	to 	certain 	terms
and 	conditions 	only. 	Based on the 	factual 	allegations 	contained
in the charge, 	the Association, 	at most, 	repudiated a single
issue. 	By that 	conduct alone, 	it 	did not manifest a lack of good
faith or 	frustrate 	the parties' 	bargaining relationship. 	This
conclusion 	conforms 	to 	the Board's 	ruling 	in Stockton Unified
8 See Morris, 	The Developing Labor Law 	(2d ed. 	1983) 	p. 	562,
et 	seq. 	for a discussion of 	the duty to bargain and 	"per se"
violations.
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School District, 	supra, 	PERB Decision No. 	143 and to the court's
decision 	in National 	Labor Relations 	Board v. 	Advanced Business
Forms Corp. 	(2d Cir. 	1973) 	474 F.2d 457 	[82 LRRM 2161], 	cited by
the 	FCOE 	in its appeal, 	that 	repudiation of an agreement 	on a
single issue, 	without more, 	does not manifest a lack of good
faith. 	Having 	concluded 	that 	the Association's 	conduct 	did not
constitute a per se violation, 	it 	follows 	that 	the alleged
repudiation of a single 	issue, 	standing alone, 	is 	insufficient to
establish bad 	faith bargaining under 	the 	totality 	of
circumstances 	test. 	The 	charge does 	not 	describe any other
conduct 	to 	suggest 	that 	the Association 	lacked a genuine 	desire
to 	reach agreement 	on a 	successor pact with the 	FCOE.
ORDER
The 	charge 	does 	not 	contain 	sufficient 	allegations 	to
demonstrate 	that 	the Association 	failed 	to bargain 	in good 	faith.
The unfair practice charge in Case No. 	S-CO-283 is hereby DISMISSED
WITHOUT 	LEAVE 	TO AMEND.
Chair 	Blair and Member Caffrey 	joined 	in 	this 	Decision.
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