Southwestern Community College District (PERB 1282E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SOUTHWESTERN COMMUNITY 	COLLEGE
DISTRICT,
Charging 	Party,
v.
SOUTHWESTERN COLLEGE EDUCATION
ASSOCIATION, 	CTA,
Respondent.
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) 	Case No. 	LA-CO-762
PERB Decision No. 	1282
September 	3, 	1998
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Appearances; 	Barbosa Garcia by Bonifacio Bonny Garcia, 	Attorney,
for Southwestern Community College District; 	Reich, 	Adell, 	Crost
& Cvitan by Marianne Reinhold, 	Attorney, 	for Southwestern College
Education Association, 	CTA.
Before Caffrey, 	Chairman; 	Dyer and Jackson, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(Board) 	on appeal 	of a Board agent's dismissal
(attached) 	of 	the 	Southwestern Community College District's
(District) 	unfair practice charge. 	As amended, 	the District's
charge 	asserts 	that 	the 	Southwestern College 	Education
Association, 	CTA 	(Association) 	violated section 3543.6(c) 	of 	the
Educational 	Employment Relations Act 	(EERA) 	by engaging 	in bad
faith bargaining during negotiations over a successor bargaining agreement.1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.6 provides, 	in relevant 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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exclusive 	representative.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the unfair practice 	charge, 	the warning and dismissal
letters 	and 	the District's 	appeal.2 The Board 	finds 	the warning
and dismissal 	letters 	to be 	free 	from prejudicial 	error and
adopts 	them as 	the 	decision of 	the Board 	itself.
ORDER
The unfair practice 	charge 	in Case No. 	LA-CO-762 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairman Caffrey and Member Jackson 	joined 	in 	this 	Decision.
2Attachment A to 	the District's 	appeal 	is 	identified as 	"a
copy 	of 	the 	ground 	rules 	contained 	in 	the 	collective bargaining
agreement." 	On May 28, 	1998, 	during her investigation of 	the
charge, 	the Board agent 	telephoned the District 	and requested
that 	it provide 	a 	copy of 	the 	ground 	rules 	allegedly violated by
the Association. 	As of June 11, 	1998, 	the District had failed to
provide 	the 	ground 	rules 	and 	the 	Board agent 	dismissed 	the
charge.
PERB Regulation section 32635(b) 	provides 	that, 	"[u]nless
good cause 	is 	shown, 	a 	charging party may not present 	on appeal
new 	charge 	allegations 	or 	supporting 	evidence." 	The District
does not provide any reason, 	whatsoever, 	for its 	failure to
provide 	the 	ground 	rules 	during 	the 	Board agent's 	investigation.
Accordingly, 	the District 	has 	failed to demonstrate 	good cause
sufficient 	to 	justify the 	admission of 	that 	evidence at 	this
time. 	(Santa Clarita Community College District 	(1996) 	PERB
Decision No. 	1178, 	p. 	2, 	fn. 	2; 	Oakland Education Association
(Freeman) 	(1994) 	PERB Decision No. 	1057, 	p. 	3.)
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
June 11, 1998
Bonifacio Bonny Garcia, 	Esq.
500 Citadel Drive, 	Suite 390
Los Angeles, 	CA 	90040
Re: 	DISMISSAL OF CHARGE/REFUSAL TO ISSUE COMPLAINT
Southwestern Community College District v. 	Southwestern
College Education Association. 	CTA
Unfair Practice Charge No. 	LA-CO-762
Dear Mr. Garcia:
The above-referenced unfair practice charge, 	filed March 26,
1998, 	alleges the Southwestern College Education Association, 	CTA
(Association) 	engaged in bad faith bargaining. 	The Southwestern
Community College District 	(District) 	alleges this conduct
violates Government Code section 3543.6 (c) 	of the Educational
Employment Relations Act 	(EERA or Act).
I indicated to you, 	in my attached letter dated May 13, 	1998,
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, 	you should amend the
charge. 	You were further advised that, 	unless you amended the
charge to state a prima facie case or withdrew it prior to May
20, 	1998, 	the charge would be dismissed. 	This deadline was later
extended until May 26, 	1998.
On May 26, 199 8, I received an amended charge. The amended
charge alleges 	the totality of 	the circumstances demonstrates 	the
Association violated its duty to bargain in good faith. 	More
specifically, 	the amended charge alleges the Association violated
agreed upon ground rules 	for negotiations, 	thus providing an
additional 	indicia of bad faith. 	(Stockton Unified School
District 	(1980) 	PERB Decision No. 	143.) 	The charge does not,
however, 	provide any facts demonstrating what the agreed upon
ground rules were. 	On May 28, 	1998, 	I telephoned your office and
requested a copy of the agreed upon ground rules. 	To date, 	I
have not 	received this information.
Charging Party contends 	the Association's 	refusal 	to schedule
bargaining sessions 	during 	finals week and Winter break
demonstrates bad faith on the part of the Association. 	However,
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i
as noted in the May 13, 	1998, 	letter, 	such facts alone are
insufficient 	to demonstrate the Association violated its duty to
bargain in good faith. 	As 	the charge fails to provide any
additional 	facts demonstrating the Association acted in bad
faith, 	the charge is dismissed for the reasons stated in my May
13, 1998, letter.
Right to Appeal
Pursuant 	to Public Employment Relations Board regulations, 	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. 	(Cal. Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of such appeal must be actually received by the Board itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified or Express United States mail postmarked no later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil Procedure section 1013 shall apply.
The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
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. 	(Cal. 	Code of
Regs., tit. 8, sec. 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 Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly addressed.
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. 	(Cal. Code of Regs., tit. 8, sec. 32132.)

Dismissal 	Letter
LA-CO-762
Page 3
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
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Charles R. Gustafson, 	Esq.

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
May 13, 199 8
Bonifacio Bonny Garcia, 	Esq.
500 Citadel Drive, 	Suite 390
Los Angeles, 	CA 	90040
Re: 	WARNING LETTER
Southwestern Community College District v. 	Southwestern
College Education Association. 	CTA
Unfair Practice Charge No. 	LA-CO-762
Dear Mr. Garcia:
The above-referenced unfair practice charge, 	filed March 26,
1998, 	alleges the Southwestern College Education Association, 	CTA
(Association) 	engaged in bad faith bargaining. 	The Southwestern
Community College District 	(District) 	alleges this conduct
violates Government Code section 3543.6 (c) 	of the Educational
Employment Relations Act 	(EERA or Act).
Investigation of the charge revealed the following. 	The
Association is 	the exclusive representative of the District's
certificated bargaining unit. 	The District and the Association
are parties 	to a collective bargaining agreement 	(Agreement)
which expired on December 31, 	1997. 	The parties are currently
negotiating for a successor agreement.
The parties negotiated during the Fall of 1997. 	Bargaining unit
members 	serving on the Association's bargaining team are granted
20% release time for one semester in order to participate in
negotiations. 	Prior to the commencement of negotiations, 	the
District proposed negotiating sessions be held on consecutive,
full days. 	The Association requested a variety of half-day
sessions 	to accommodate those teachers who did not wish to be out
of the classroom for full days. 	The parties agreed to use these
half-day sessions.
On December 4, 	1997, 	prior to the end of the first term, 	the
parties met for a negotiating session. 	During this meeting, 	the
Association stated that 	it would not be able to meet again until
February 1998, 	after January intercession. 	The Association took
this position notwithstanding the 	fact 	that some Association
members had not used their entire 20% release time, 	and that the
release time did not 	carry over into the next semester. 	The
District 	then stated its willingness 	to bargain during the

January intercession, 	and to pay bargaining team members 	for
their attendance. 	The Association rejected this proposal, 	as
employees did not want to work during the intercession.
Warning 	Letter
LA-CO-762
Page 2
On January 15, 	1998, 	the District offered to pay a stipend to
bargaining team members 	so that negotiations 	could be 	conducted
in February on consecutive days. 	Specifically, 	the District
proposed that bargaining take place on five consecutive working
days in February. 	If the parties failed to reach an agreement,
bargaining would continue each 	consecutive Saturday until 	the
parties 	reached agreement or impasse. 	Bargaining unit members
would be compensated on working days, 	but not on Saturdays.
On February 10, 	1998, 	the Association rejected this proposal. 	In
doing so, 	Association President Cornia Soto cited teachers desire
to work in the 	classroom during the week as 	the primary reason
for this rejection. 	The Association proposed, 	instead, 	that the
parties negotiate on Saturdays, 	and that the District compensate
bargaining unit members 	for those Saturday sessions.
On February 19, 	1998, District Chief Negotiator, 	Bonafacio
Garcia, 	responded to the Association's proposal. 	Mr. 	Garcia
stated in pertinent part 	that the District had provided release
time to employees in the Fall of 1997, 	and had offered a stipend
for negotiations in the Spring, 	during working hours. 	The
District, 	rejected however, 	the Association's proposal and
offered instead to bargain on consecutive Saturdays without
providing a stipend to unit members or administrators.
Although the specific date is not provided, 	the District agreed
to meet on Saturdays to conduct negotiations. 	It is also
presumed that bargaining members were not paid for their
attendance at these sessions. 	The 	first Saturday bargaining
session was then scheduled for March 14, 	1998.
On March 13, 	1998, 	the Association cancelled the negotiating
session for the following day, 	stating that their CTA
representative was unavailable. 	On this same date, 	Mr. Garcia
wrote a letter to Ms. 	Soto expressing the District's extreme
concern over the cancellation and the progress of bargaining.
On March 18, 	1998, 	the District provided the Association with its
last, best and final offer. 	On March 23, 	1998, 	the Association's
Executive Board wrote Mr. 	Garcia stating its desire to continue
negotiations, 	despite the District's offer.
Based on the above stated facts, 	the charge as presently written,
fails to demonstrate a prima facie violation of the EERA, 	for the
reasons 	stated below.

Warning Letter
LA-CO-762
Page 3
In determining whether a party has violated EERA section
3543.6(c) ; 	PERB utilizes either the 	"per se" or "totality of
the conduct" 	test, 	depending on the specific conduct involved
and the effect of 	such conduct on the negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Allegations such as 	the ones provided by District above, 	are
considered under the 	"totality of the conduct" 	test, 	as 	they do
not constitute per se violations of the Act. 	Under the totality
of the conduct test, 	PERB will look at the entire course of
negotiations 	to determine whether the conduct 	indicates a serious
attempt to resolve differences or whether the parties 	intent 	is
to frustrate or avoid the bargaining process. 	(Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51.)
The ground rules for negotiation, 	including the time and place of
negotiations, 	are subjects within the scope of bargaining.
(Compton Unified School District 	(1989) 	PERB Decision No. 	728.)
Bargaining over ground rules 	is done 	in the same manner as 	for
substantive terms and conditions for employment. 	(Id.) 	In the
instant charge, 	facts provided by the Charging Party demonstrate
the Association and District 	exchanged numerous proposals
regarding the time and place of negotiations. 	The mere fact that
the parties disagreed and negotiated over the ground rules does
not demonstrate the Association's bad faith. 	Moreover, 	the
Association's 	single 	cancellation of a bargaining session,
without more, 	does not demonstrate they were attempting to avoid
bargaining. 	As such, 	the charge fails to state a prima facie
case.
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 be prepared 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 corner 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 May 20. 	1998, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6940.
Sincerely,
Kristin L. Rosi
Regional Attorney