Beaumont Unified School District (PERB 0429E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
BEAUMONT TEACHERS ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
BEAUMONT UNIFIED 	SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-1751
PERB Decision No. 	429
November 	9, 	1984
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Appearances; 	Charles R. 	Gustafson, 	Attorney for Beaumont
Teachers Association, CTA/NEA; Atkinson, Andelson, 	Loya, Ruud
and 	Romo 	by 	Ronald 	C. 	Ruud 	for 	Beaumont Unified 	School District.
Before Hesse, 	Chairperson; Morgenstern and Burt, Members.
DECISION
BURT, 	Member: 	This case 	is before the 	Public Employment
Relations Board 	(PERB or Board) 	on 	two 	appeals 	filed 	by 	the
Beaumont Teachers Association, 	CTA/NEA 	(Association). 	One
appeal concerns 	the partial dismissal 	of 	charges 	by 	the
regional 	attorney. 	The 	other 	appeals 	the denial of 	a motion to
amend 	the complaint 	by 	the 	administrative 	law judge 	(ALJ).
After 	the 	initial filing 	of charges, 	the 	regional attorney
issued 	a complaint 	on the Association's charge 	that 	the
Beaumont Unified 	School District 	(District) 	violated 	sections
3543.5(b) 	and 	(c) 	of the Educational Employment
______ )

Relations Act 	(EERA)1 by dealing 	directly with 	bargaining
unit 	members 	and 	bypassing 	the 	exclusive 	representative. 2 He
dismissed 	accompanying 	charges 	alleging 	that 	the 	District
violated EERA sections 3543.5(a), 	(b), 	(c) 	and 	(e) 	by engaging
in 	a course 	of 	conduct 	amounting 	to 	bad-faith 	bargaining 	by
making 	regressive 	salary 	offers 	and 	statements 	of 	disdain 	for
the 	factfinding 	process, 	and 	by consistently 	arriving 	late 	for
bargaining 	sessions. 	The Association claims on 	appeal 	that 	the
alleged 	regressive 	bargaining 	constituted 	a 	violation 	in 	itself
and 	that, 	in any event, 	because 	the 	totality of 	the District's
conduct 	evidenced 	a 	lack 	of good 	faith 	in 	bargaining, 	the
dismissed 	charges 	should 	be 	reinstated.
After 	the 	original complaint 	was 	set 	for 	hearing, 	the
Association moved 	to 	amend 	the 	complaint 	to 	include 	the
dismissed charges, 	and 	to 	add 	another 	alleged 	violation of 	EERA
section 	3543.5(a) 	by 	the discriminatory 	termination 	of 	three
District 	employees. 	The motion 	to 	amend was denied 	by 	the ALJ
because 	the 	majority 	of 	the 	charges 	had 	already 	been 	dismissed
by 	the 	regional 	attorney 	and, 	with 	regard 	to 	the 	new charge,
the ALJ found 	that 	it failed to 	state a prima 	facie case. 	The
1 The 	EERA 	is codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government 	Code
unless 	otherwise 	noted.
2A 	hearing 	on 	the 	original 	complaint 	was 	held 	on
January 	3, 	1984. 	The decision has not yet 	issued.
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Association 	appeals 	the dismissal of 	the 	new charge, 	claiming 	a
prima 	facie 	case 	was 	established.
For 	the 	reasons 	set 	forth 	below, 	we 	affirm 	in part 	and
reverse 	in 	part 	the 	decisions 	of 	the 	regional 	attorney 	and 	the
ALJ.
FACTS
The 	facts 	as 	found 	by 	the 	regional 	attorney 	and 	the ALJ 	are
summarized 	below.3	w
The 	collective 	bargaining 	agreement 	between 	the 	District
and 	the Association 	expired 	on 	June 30, 1982, 	and 	negotiations
for 	a successor 	agreement began. 	On September 	1, 	1982, 	the
certificated 	employees 	represented 	by 	the 	Association 	returned
to work 	without 	a 	new agreement.
In October 	1982, 	the District 	offered 	a two-percent 	salary
increase 	to 	the Association 	for 	the 	1982-83 	school year. 	The
proposed 	increase 	was 	not 	to 	be 	retroactive 	and was 	to 	take
effect 	upon 	ratification 	of 	the 	entire 	agreement.
The 	District 	reiterated 	its proposal 	of 	a 	two-percent pay
increase 	in December, 	still 	to take 	effect 	upon 	ratification of
the 	total agreement. 	On December 16, 	1982, 	the District
3 TO 	decide 	whether 	a 	charge 	which 	was 	dismissed 	contained
facts 	sufficient 	to establish 	a prima 	facie case, 	the 	facts
alleged 	are 	deemed 	to 	be 	true. 	San Juan Unified 	School
District 	(3/10/77) 	EERB Decision No. 	12. 	(Prior to
January 	1, 	1978, 	PERB was 	known as 	the Educational Employment
Relations 	Board.)
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declared 	impasse 	and, 	on March 	4, 	1983, 	the Association moved
the 	dispute 	to 	factfinding 	with 	proper 	certification 	from 	the
mediator 	and 	notice 	to 	the District 	and 	to 	PERB.
On March 	14, 	1983, 	the District 	revised 	its wage offer to
four percent, 	to be retroactive to February 1, 	1983, 	provided
the 	Association 	would 	accept 	the 	District's position 	on 	all
outstanding 	issues 	and 	ratify 	the 	total 	agreement 	by March 	28,
1983.
On March 	15, 	1983, 	the District 	sent each member 	of the
bargaining 	unit 	an 	offer 	of 	employment 	for 	the 	1983-84 	school
year 	which 	included 	a 	salary 	figure, 	presumably 	representing 	a
four-percent 	increase. 	These 	contracts 	stated 	that 	they would
serve 	as 	notification of 	employment 	in compliance 	with
Education 	Code 	section 	13261 	(now 	section 	44843)4 and 	the
District 	asked 	that 	they 	be 	signed 	and 	returned 	to 	signify
acceptance.
4Education 	Code 	section 	44843 	and 	others 	deal 	with 	offers
of 	employment 	by 	school districts. 	Section 	44841 gives
non-tenured 	certificated 	employees 	45 	days 	in which 	to 	accept
district 	offers 	of 	employment 	or 	be 	deemed 	to 	have declined 	the
offer. 	Section 	44842 says that, 	if permanent or probationary
employees do 	not 	notify 	their 	districts 	by 	July 	1 	of 	any year
of 	their 	intention 	to 	return 	to 	work 	for 	the 	upcoming 	school
year 	when 	the District has 	sent 	a 	request 	for 	such 	an
indication 	by 	the preceding May 	30, 	the district may 	terminate
the 	employee. 	Section 	44843 	requires 	that 	school district
governing 	boards 	give 	notice 	of 	their 	employment 	of
certificated 	employees 	to county 	superintendents 	of 	schools.
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On March 18, 	1983, 	three days after 	the District 	sent 	its
offers 	of 	employment 	to 	individual bargaining 	unit members, 	the
Association wrote 	to 	each member 	telling 	him or 	her 	not 	to 	sign
the 	contracts 	sent 	out 	by 	the District 	because 	they were
improper 	offers 	which 	bypassed 	the 	exclusive 	representative.
The Association's 	letter 	advised 	that 	each 	bargaining 	unit
member 	should 	sign 	and 	return 	to 	the 	District 	an 	attached
Association 	form 	indicating 	an 	intention 	to 	return 	to 	work 	for
the 	1983-84 	school year 	in order 	to 	comply 	with Education Code
sections 	44841 	and 	44842.
Three 	employees 	failed 	to 	return 	either 	the 	District's
contract or 	the Association's 	form to 	the District. 	On
July 	6, 	1983, 	the District 	informed 	these 	employees 	that 	they
were 	deemed 	to 	have 	declined 	employment 	for 	the 	following year,
but 	that 	they could 	appear 	at 	a July 	12, 	1983 governing 	board
meeting 	to give 	reasons 	why 	they 	should 	be 	reinstated. 	Two 	of
the 	employees met with 	the 	board 	in executive 	session and were
reinstated. 	The 	third, 	allegedly 	acting 	on the Association's
advice, 	refused 	to meet 	in executive 	session and 	requested 	to
meet 	in public. 	That 	request was denied, 	and 	the employee was
not 	reinstated 	at that 	time. 	However, 	she was 	later 	reinstated
prior 	to 	the 	start of 	the 	1983-84 	school year.
The Association contends that 	on May 	3, 	1983,
Ms. 	Megan Cassette, 	chairperson of 	the Association's bargaining
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team, 	was 	approached 	by District Superintendent Dr. 	Edward
Ikard 	and 	told:
You 	know you're 	not 	going 	to get 	anything
out 	of 	factfinding. 	If we gave you any more
than our 	last 	offer 	then 	it 	would 	only
encourage you 	to 	hold 	out 	for 	factfinding
every year.
The Association also contends 	that on April 	26, 	1983,
Superintendent 	Ikard 	made 	a 	similar 	statement 	to
Mr. 	Marshall Waller, 	president of 	the Association. 	Similarly
on May 12, 	1982, Mr. 	Ronald Ruud, 	the District's legal counsel
and 	bargaining 	representative, 	allegedly 	said 	he 	believed 	that
if 	school 	boards 	ever changed 	their 	bargaining positions
because of 	a factfinder's 	recommendation, 	it would only
encourage 	employees 	to 	hold 	out 	for 	factfinding 	in 	the 	future.
The 	Association 	also 	alleges 	that 	the 	District's
negotiators 	were consistently 	15 minutes 	to one-half 	hour 	late
for 	each 	scheduled 	bargaining 	session 	held 	from August 	19, 	1982
to October 	19, 	1982 	(the 	record does 	not 	indicate how many
sessions were 	held). 	The Association alleges 	that 	after
October 	19, 	1982, 	when the Association 	reported the District's
tardiness 	to 	its members, 	the District negotiators 	then showed
up 	for 	sessions 	on 	time 	but went 	immediately 	into caucuses
lasting 	approximately the 	same 	length 	of 	time 	as 	the 	original
periods of 	tardiness.
The original charges were filed on March 22, 	1983, 	and the
motion to amend was made on December 15, 	1983, 	approximately
two 	weeks 	before 	the 	hearing 	began.
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DISCUSSION
I. 	The 	Partial Dismissal of 	Charges 	by 	the 	Regional Attorney
PERB, 	following 	the National Labor Relations Board, 	has
previously 	determined 	that 	certain conduct 	by 	the 	employer,
such 	as 	unilateral changes 	in matters within the 	scope 	of
representation 	and 	bypassing 	the 	exclusive 	representative, 	may
be a per 	se violation of EERA section 	3543.5(c). 	San Mateo
County 	Community 	College 	District 	(6/8/79) 	PERB Decision
No. 	94; Davis Unified School District, 	et al. 	(2/22/80) 	PERB
Decision No. 	116; 	North Sacramento School District 	(12/31/81)
PERB Decision No. 	193; 	Modesto City Schools 	(3/8/83) 	PERB
Decision No. 	291; 	and Oakland Unified 	School District
(12/16/83) 	PERB Decision No. 	367. 	However, 	in Pajaro Valley
Unified School District 	(5/22/78) 	PERB Decision No. 	51, 	PERB
adopted 	a 	"totality 	of conduct" 	test 	for 	determining 	whether 	a
party's 	entire course 	of conduct 	evidences 	a failure 	to bargain
with 	the 	requisite good 	faith 	or 	subjective 	intent 	to 	reach
agreement. 	The Board's 	"totality" 	test was 	further 	refined 	in
Muroc Unified School District 	(12/15/78) 	PERB Decision No. 	80,
p. 13:
It 	is 	the 	essence of 	surface 	bargaining 	that
a party goes 	through 	the motions 	of
negotiations, 	but 	in fact 	is weaving
otherwise 	unobjectionable 	conduct 	into 	an
entangling 	fabric 	to 	delay 	or 	prevent
agreement. 	[Citations omitted.] 	Specific
conduct 	of 	the charged party, 	which when
viewed 	in 	isolation may 	be 	wholly proper,
may, 	when placed 	in the 	narrative 	history 	of
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the 	negotiations, 	support 	a conclusion that
the 	charged 	party 	was 	not 	negotiating 	with
the 	requisite 	subjective 	intent 	to 	reach
agreement. 	[Citations 	omitted.]
The 	regional 	attorney 	found 	that 	the 	District's 	wage
proposal 	here was not 	regressive, 	and 	that 	the alleged
consistent 	tardiness 	to meetings 	and 	statements 	of 	disdain 	for
factfinding 	were 	only minimal 	circumstantial 	evidence 	of 	bad
faith. 	He 	therefore 	found 	that 	the 	totality of 	conduct on the
part 	of 	the District was 	insufficient 	to 	support 	a charge 	of
bad-faith 	bargaining.
In 	so concluding, 	the 	regional 	attorney did 	not consider
the 	allegation 	of 	bypassing 	the 	representative 	as 	part 	of 	the
totality 	of conduct, 	but 	treated 	that 	issue 	as a 	separate
charge 	and 	issued 	a complaint 	as 	to 	that conduct.
We 	agree 	with 	the 	regional 	attorney 	that 	the 	evidence
offered 	by 	the Association 	is 	insufficient 	to 	establish 	a prima
facie 	case 	of 	regressive 	bargaining. 	The Association 	argues
that 	the 	District's 	nonretroactive 	two-percent wage 	hike 	offer
was 	regressive 	because 	as 	time passed 	without 	an 	agreement
being 	reached, 	the 	total monetary 	benefit 	to 	the 	employees over
the 	term of 	the 	contract would decrease. 	To 	suggest 	that
merely 	holding 	firm to 	a 	two-percent 	wage 	hike proposal 	is
regressive, 	however, 	would be 	to conclude that any economic
proposal made 	during 	negotiations must 	be 	adjusted 	on 	a daily
basis. 	Such 	a 	holding would 	defy 	logic. 	We 	therefore 	find
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that 	these 	allegations 	are 	insufficient 	to 	state 	a prima 	facie
violation of 	EERA.
Regarding 	the 	District's 	alleged 	tardiness 	for 	bargaining
sessions 	and 	statements 	of disdain 	for 	factfinding, 	the
situation 	is 	somewhat different. 	Here 	the Association did
allege 	facts 	sufficient 	to conclude 	that 	the conduct did 	occur;
the 	question 	is whether 	that conduct 	is 	sufficiently 	serious 	to
warrant 	a 	finding 	of 	a 	violation of 	the District's 	duty 	to
negotiate 	or participate 	in 	the 	factfinding process 	in good
faith.
It may 	be 	that 	each 	alleged 	incident 	is 	unobjectionable
viewed 	in 	isolation. 	Certainly, 	being 	slightly 	late 	for
bargaining 	sessions, 	for example, 	may be merely 	inadvertence or
a 	legitimate 	element 	of 	bargaining 	strategy. 	However, 	the
essence 	of 	an 	evaluation of 	the 	totality 	of 	circumstances 	is
that 	incidents 	are not viewed 	in 	isolation, 	and 	that conduct
which may 	be 	"de minimus" 	standing 	alone may be part 	of 	a
pattern 	of 	conduct which 	indicates 	a 	lack 	of good 	faith.
Therefore, 	we 	remand 	the charges of 	tardiness and
statements 	of 	disdain 	for 	factfinding 	to 	the 	administrative 	law
judge 	for 	consolidation with 	the 	complaint 	previously 	issued 	on
the 	bypassing 	charge.
II. 	The 	Denial 	by 	the ALJ of 	the Motion 	to Amend 	the Complaint
After 	the 	complaint was 	issued 	on 	the 	bypassing 	charge, 	the
Association made 	a pre-hearing motion 	to 	amend 	the 	complaint 	in
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compliance with 	PERB 	regulation, 	section 	32647.5 The
amendment, 	in pertinent part, 	would have added a violation of
EERA section 	3543.5(a), 	alleging 	reprisals 	against three
bargaining 	unit members.
The Association 	alleged 	that 	the 	District 	acted 	in 	reprisal
by 	terminating 	three 	bargaining 	unit 	members who 	failed 	to
return to the District by July 1, 	1983, 	either 	its contract
proposal 	or 	the 	form provided 	by 	the Association 	indicating 	an
intention 	to 	return to employment 	for 	the 	1983-84 	school year.
All 	three 	were 	notified 	on or 	about 	July 	6, 	1983 	that 	their
employment 	was 	viewed 	as 	having 	terminated, 	although 	all 	were
later 	reinstated.
5PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001 et seq.
Section 	32647 states:
(a) 	The charging party may move 	to 	amend
the complaint. 	Before hearing, 	the charging
party may move 	to 	amend 	the complaint 	by
filing 	an 	amended 	charge 	and 	request 	to
amend 	complaint 	with 	the 	Board 	agent 	in
compliance with Section 	32615. 	If the Board
agent 	determines 	that 	amendment 	of 	the
complaint 	is appropriate, 	the Board agent
shall 	issue 	an amended 	complaint 	in
accordance 	with 	Section 	32640.
(b) 	If 	the Board 	agent finds 	that the
pre-hearing 	amendment 	to 	the 	charge does 	not
result 	in 	the establishment 	of 	a prima 	facie
case, 	the Board 	agent 	shall 	refuse 	to amend
the 	complaint. 	The charging party may
appeal 	a 	refusal 	to 	amend 	the complaint 	in
accordance 	with Section 	32635.
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The ALJ dismissed 	this 	charge, 	finding 	that 	the Association
failed 	to 	establish 	a prima 	facie case 	because 	it did 	not
allege 	any protected 	activity 	in which 	the 	three 	bargaining
unit members 	had 	been engaged.
The Association 	argues 	that 	the 	three 	employees 	engaged 	in
protected 	activity 	in 	that 	they 	(a) 	followed 	the Association's
advice 	and 	(b) 	refused to participate 	in 	the direct dealing 	by
the District.
We note, 	however, 	that the Association's advice was that
bargaining 	unit members 	not 	return 	the 	individual contracts
sent 	out 	by the District, 	but 	rather 	return 	forms provided 	by
the Association 	indicating 	to 	the District 	an 	intention 	to work
the 	following year 	in compliance with 	the Education Code. 	The
three 	employees 	failed 	to 	return either 	the District's contract
--or 	the 	form provided 	by the Association. 	Thus, 	those 	three
individuals 	did 	not 	actually 	follow 	the Association's 	advice
and 	did 	not participate 	in 	a protected 	activity. 	The 	fact 	that
other 	employees 	refused 	to participate 	in 	the 	alleged direct
dealing 	and 	uneventfully 	returned 	the 	Association's 	form
indicating 	their 	desire 	to 	work 	further 	suggests 	that 	the
District's 	action was 	not 	taken 	in 	retaliation 	for 	failure 	to
return 	the contract.
We 	reach 	a 	similar 	conclusion with 	regard 	to 	the 	one
employee 	who 	refused 	to go 	into 	a closed meeting 	with 	the
school board. 	She, 	like the others, 	was terminated because
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she did 	not 	indicate 	that 	she 	wished 	to 	return 	the 	next year.
She 	was 	not 	reinstated 	because 	she 	failed 	to 	appear 	to 	explain
her 	failure 	to do 	so. 	She was 	reinstated 	before 	the
commencement of 	the 	next 	school year. 	We cannot 	find 	that
these 	facts describe 	retaliation 	for 	the 	exercise 	of 	protected
rights, 	and we 	uphold the ALJ's denial of 	the Association's
amendment 	to so allege.
ORDER
Upon 	the 	foregoing Decision and 	the 	record as 	a whole, 	the
Public 	Employment 	Relations 	Board 	ORDERS 	that 	the
administrative 	law 	judge's Denial 	of 	the Association's Motion
to Amend 	Complaint 	is 	upheld. 	The 	Board 	further 	ORDERS 	that
the 	regional 	attorney's 	Partial Refusal 	to 	Issue 	Complaint 	and
Dismissal 	of Unfair 	Practice 	Charge 	is 	reversed 	in part. 	The
case 	is 	therefore 	REMANDED 	to 	the 	administrative 	law judge 	in
order 	that 	the 	complaint may 	be 	amended 	and 	the 	record 	in 	this
case 	may 	be 	reopened 	for 	further proceedings consistent 	with
this Decision.
Chairperson 	Hesse 	and Member 	Morgenstern 	joined 	in 	this
Decision.
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