Kern High School District (PERB 1265E)

STATE 	OP 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
KERN HIGH 	SCHOOL DISTRICT,
Charging 	Party,
v.
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	CHAPTER #747,
Respondent.
Case No. 	LA-CO-759
PERB Decision No. 	1265
May 27, 	1998
Appearances: 	Schools Legal 	Service by Carl B.A. 	Lange 	III,
Director of 	Labor Relations, 	for Kern High School District;
California School 	Employees Association by Karen L. 	Hartmann,
Attorney, 	for California School 	Employees Association, 	Chapter
#747.
Before Caffrey, 	Chairman; 	Amador and Jackson, 	Members.
DECISION
JACKSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Kern High School
District 	(District) 	of a Board agent's dismissal 	of 	the unfair
practice 	charge and refusal 	to 	issue a 	complaint.
The 	District 	alleged 	that 	the 	California 	School 	Employees
Association, 	Chapter #747 	(Association) 	breached its duty to
bargain 	in good 	faith 	in violation of 	section 	3543.6(c) 	of 	the
Educational 	Employment Relations Act 	(EERA)1 when, 	after reaching
1EERA 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:
(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
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a 	tentative agreement 	on a 	collective bargaining agreement, 	two
members 	of 	the Association's 	four 	or 	five member bargaining 	team
actively 	campaigned against 	the Association's 	ratification 	of 	the
agreement.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the Board agent's warning and dismissal 	letters, 	the
unfair practice charge, 	the District's appeal, 	and the
Association's 	response. 	Based upon the 	following discussion, 	the
Board 	finds 	that 	the District 	stated a prima 	facie 	case 	that 	the
Association breached 	its 	duty 	to bargain 	in 	good 	faith and 	orders
that 	a 	complaint 	be 	issued.
DISCUSSION
The 	District 	has 	alleged 	that 	two Association negotiators,
after 	reaching 	tentative 	agreement 	on a 	collective 	bargaining
agreement 	covering 	the 	1997-98 	and 	1998-99 	school 	years,
"actively 	campaigned against 	ratification 	of 	the 	tentative
agreement." 	One member of 	the Association bargaining 	team is
alleged to have worn a 	"VOTE NO" 	button 	in the workplace.
PERB 	has 	previously 	considered 	charges 	involving 	the 	conduct
of negotiators who have 	reached a tentative agreement. 	In
Placerville Union School District 	(1978) 	PERB Decision No. 	69
(Placerville), 	after reaching a tentative agreement with the
union, 	the district's 	negotiator recommended deletion of 	a
significant 	provision which 	the 	school 	board unilaterally
deleted. 	The 	district 	negotiator had pledged 	to 	the union 	that
exclusive 	representative.
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he would support 	the 	entire 	tentative agreement. 	The Board 	found
the 	negotiator's 	conduct 	in 	recommending against 	the portion 	of
the agreement 	to 	constitute an unfair practice. 	(Placerville.)
It 	is 	clear that 	the principle 	set 	forth 	in Placerville
applies 	equally to both employer and union negotiators. 	In
Alhambra City and High School 	Districts 	(1986) 	PERB Decision
No. 	560, 	p. 	14, 	(Alhambra), 	the Board addressed the obligation of
negotiators 	who 	have 	reached a 	tentative 	agreement:
Absent good cause, 	once a tentative agreement
is 	reached, 	there 	is an implication that both
parties' 	negotiators will 	take the agreement
to 	their 	respective principals 	in a good
faith effort 	to secure 	ratification. 	(NLRB
v. 	Electra-Food Machinery 	(9th Cir. 	1980) 	621
F.2d 956 	[104 LRRM 2806]; 	H. 	J. 	Heinz Company
v. 	NLRB 	(1941) 	311 U.S. 	514 	[7 LRRM 291].)
While 	a 	tentative 	agreement 	does 	not 	bind
either side, 	it does 	imply that 	the
negotiators will not 	'torpedo' 	the proposed
collective 	bargaining 	agreement 	or undermine
the process 	that has 	occurred. 	(Alhambra,
p. 	14.)
We 	find 	that 	the District 	has 	sufficiently alleged 	that 	the
actions 	of 	these 	two negotiating 	team members 	have undermined
their obligation to: 	"take 	the agreement 	to their 	respective
principals 	in a 	good 	faith effort 	to 	secure 	ratification."
(Alhambra.) 	The negotiators' 	alleged active 	campaigning against
ratification 	of 	the 	contract may have 	"torpedoed" 	the 	tentative
collective 	bargaining 	agreement 	and undermined 	the 	process
sufficient 	to 	call 	into question the Association's 	good 	faith.
In other words, 	the complaint 	of 	the District 	is 	sufficient as 	it
alleges 	that 	the Association negotiators 	did not make 	a good
faith attempt 	to 	secure 	ratification of 	the 	tentative 	agreement
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since 	nearly half 	of 	the Association's 	bargaining 	team was
campaigning against 	it.
ORDER
Based upon the 	forgoing, 	the Board finds 	that 	the District
stated a prima 	facie 	case 	for a violation of 	EERA section
3543.6(c) 	as 	required by Alhambra2 and hereby orders 	this 	case
REMANDED 	to 	the General 	Counsel 	for 	issuance of 	a 	complaint 	as
discussed 	herein.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
2The 	Board 	found 	in Oakland Unified 	School 	District 	(1996)
PERB Decision No. 	1156, 	that the presence of one of 	the 	indicia
of bad 	faith alone 	is 	insufficient 	to warrant 	an overall 	finding
of bad faith. 	However, 	under Alhambra when a negotiator's action
is 	destructive 	to the bargaining process 	or 	"torpedoes" 	a
proposed agreement, 	this 	alone may be 	sufficient 	indication of
bad 	faith 	to warrant 	the 	issuance 	of 	a 	complaint 	or otherwise
constitute 	an unfair practice.
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