Ventura County Community College District (PERB 1264E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
VENTURA COUNTY 	FEDERATION OF
COLLEGE TEACHERS, 	AFT LOCAL 1828,
Charging 	Party,
v.
VENTURA COUNTY COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-3828
PERB Decision No. 	1264
May 	12, 	1998
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Appearances: 	Lawrence Rosenzweig, 	Attorney, 	for Ventura County
Federation of College Teachers, 	AFT Local 	1828; 	Currier & Hudson
by Richard J. 	Currier, 	Attorney, 	for Ventura County Community
College District.
Before Dyer, 	Amador and Jackson, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by 	the Ventura County
Federation of College Teachers, 	AFT Local 	1828 	(Federation) 	to a
Board agent's 	dismissal 	(attached) 	of 	the unfair practice 	charge.
The 	Federation alleges 	that 	the Ventura 	County Community College
District 	(District) 	violated section 3543.5(a), 	(b) 	and 	(c) 	of
the Educational 	Employment Relations Act 	(EERA)1 by engaging 	in
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights

bad 	faith bargaining 	and 	refusing 	to provide 	information.
The 	Board has 	reviewed the 	entire 	record in this 	case,
including 	the Board agent's 	warning and dismissal 	letters, 	the
original 	and amended unfair practice 	charge, 	the 	Federation's
appeal, 	and the District's 	response. 	The Board finds 	the warning
and dismissal 	letters 	to be 	free 	of 	prejudicial 	error and adopts
them as 	the decision of 	the 	Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3828 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Jackson 	joined 	in this 	Decision.
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed to 	them by 	this 	chapter.
(c) 	Refuse 	or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
March 6, 	1998
Lawrence 	Rosenzweig
Ventura 	County 	Federation 	of 	College
Teachers, 	AFT Local 	1828
1757 Mesa Verde Avenue, 	Suite 250
Ventura, 	CA 93 003
Re: 	Ventura County Federation of 	College Teachers, 	AFT Local
1828 	v. 	Ventur_-_--_--a 	County 	Community College District
Unfair Practice Charge No. 	LA-CE-3828, 	Second Amended Charge
DISMISSAL AND 	REFUSAL 	TO 	ISSUE 	A 	COMPLAINT
Dear Mr. 	Rosenzweig:
In 	the 	above-referenced 	charge 	the Ventura 	County 	Federation 	of
College Teachers, 	AFT Local 	1828 	(AFT) 	alleges 	the Ventura County
Community College 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA or Act) 	§ 3543.5(a), 	(b), 	and 	(c)
by 	engaging 	in bad 	faith bargaining, 	and 	refusing 	to provide
information.
I 	indicated 	to you, 	in my attached letter dated February 4, 	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
February 	11, 	1998, 	the charge would be dismissed. 	On February
11, 	199 8, 	I received the second amended charge.
The warning 	letter 	indicated 	the 	totality 	of 	conduct 	test 	is
generally applied 	to 	determine 	whether an 	employer 	is 	engaged 	in
bad 	faith bargaining. 	The warning 	letter 	then 	indicated 	that 	the
original 	and 	first 	amended 	charges 	provided 	little 	information
regarding 	the District's 	conduct prior 	to 	the 	implementation 	of
impasse, 	and that 	as 	such 	the 	charges 	did not present 	a prima
facie violation of 	EERA § 	3543.5(c). 	The 	second amended charge
alleges 	the District's 	Chief Negotiator, 	Richard Currier, 	was
unprepared for negotiations 	in March and April 	1997. 	The 	charge
alleges 	Currier 	told union negotiators 	that 	he was 	not 	involved
in drafting 	the District's 	initial proposals 	and that 	he 	did not
understand all 	of 	the 	Federation's proposals. 	The 	second amended
charge 	also 	alleges 	Currier would 	often 	say 	that 	he 	would have 	to
PERS

LA-CE-3828
Dismissal 	Letter
Page 	2
"get 	back" 	to 	the 	Federation on 	issues, 	and was unable 	to answer
questions 	throughout 	the 	negotiations.
The 	facts also 	indicate, 	however, 	that 	the parties met 	only 	four
times prior 	to declaring 	impasse, 	and that 	during 	these 	few
sessions, 	the parties 	reached 	tentative agreements 	on several
issues. 	In this 	case, 	the parties' 	ability to reach agreement 	on
five 	articles 	prior 	to 	the 	declaration 	of 	impasse 	undermines 	the
charge's 	allegations 	that 	the 	employer was 	trying 	to 	frustrate
the bargaining process. 	Although Currier did not 	respond
immediately to 	the 	Federation's 	questions, 	it 	does 	not appear
that 	Currier was unprepared, 	or without 	authority to negotiate.
Thus, 	the 	employer's 	totality of 	conduct prior to 	the declaration
of 	impasse does not demonstrate a violation of 	EERA § 	3543.5(c).
In analyzing 	the District's 	conduct 	following 	the 	declaration 	of
impasse, 	the warning 	letter also utilized 	the 	totality of 	conduct
test. 	The 	warning 	letter addressed the 	following allegations:
(1) 	the District 	improperly 	communicated with bargaining unit
employees 	regarding 	the 	issue 	of membership and agency fees; 	and
(2) 	the District's 	proposals 	demonstrate bad 	faith because 	they
were 	regressive 	and 	illegal. 	The warning 	letter 	concluded 	the
facts 	failed 	to demonstrate 	a prima 	facie violation of 	EERA §
3543.5 (e). 	The 	second amended charge does 	not 	include additional
information regarding these allegations. 	Thus, 	these allegations
do not demonstrate a prima 	facie violation of 	EERA § 	3543.5(e),
and are 	dismissed 	for 	the 	reasons 	stated 	in 	the warning 	letter.
On February 9, 	199 8, 	I 	received a letter from the 	Charging 	Party
which indicated that on September 23, 	1997, 	the District made a
regressive proposal 	regarding 	the 	issue 	of 	agency 	fees. 	The
letter indicated, 	that on April 	8, 	1997, 	the parties' 	agreed to
an agency fee policy 	(Article 18), 	but that 	on September 23,
1997, 	the District made 	a proposal 	requiring an agency 	fee
election to be held 	(Article 	19). 	The letter alleges 	the new
Article 	19 	is 	a 	clear 	indication of 	regressive bargaining 	that
the 	warning 	letter 	did not 	specifically address.
PERB Regulation 	§ 	32615(b) 	requires 	the Charging Party to serve
the Respondent with the 	charge, 	and provide proof 	of 	service 	to
PERB. 	The 	February 9, 	1998, 	letter from the Charging Party was
filed 	separately 	from the 	second amended 	charge, 	and did not
include 	the 	requisite proof 	of 	service. 	As 	such, 	the letter is
not 	considered 	a part 	of 	the 	second amended 	charge 	and need 	not
be addressed. 	However, 	even if properly alleged in the second
amended 	charge, 	the 	allegation does 	not 	present 	a prima 	facie
violation of 	the 	EERA.

LA-CE-3828
Dismissal 	Letter
Page 3
EERA § 	3546(a) 	states, 	in pertinent part:
At 	the 	time 	the 	issue 	is being negotiated,
the public 	school 	employer may 	require 	that
the 	organizational 	security provision be
severed 	from the 	remainder 	of 	the 	proposed
agreement 	and 	cause 	the 	organizational
security provision 	to 	be voted upon
separately by all 	members 	in 	the 	appropriate
negotiating unit, 	in accordance with 	rules
and 	regulations 	promulgated by 	the 	board.
Upon such a vote, 	the 	organizational 	security
provision will 	become 	effective 	only 	if 	a
majority 	of 	those members 	of 	the 	negotiating
unit voting approve 	the agreement. 	Such vote
shall 	not 	be 	deemed 	to 	either 	ratify 	or
defeat 	the 	remaining provisions 	of 	the
proposed 	agreement.
Thus, 	it 	appears 	the District 	has a statutory right 	to require
the 	organizational 	security provision 	to be 	voted upon by 	the
unit.
Since 	the District 	failed 	to make 	its 	proposal 	to 	require 	a vote
until 	after 	the parties 	already had a 	tentative 	agreement 	on 	the
Organizational 	Security article, 	Article 	18, 	the District's
proposal when viewed separately is 	regressive. 	However, 	as
stated 	in 	the 	warning 	letter, 	individually 	regressive proposals
must be viewed 	in the 	context 	of 	the 	entire package 	of proposals.
The 	warning 	letter noted, 	and 	the 	second amended 	charge 	did not
dispute, that the District's September 23, 199 7, proposals also
included concessions. 	Thus, 	even accepting the Article 	19
proposal 	as 	regressive, 	a review of 	the 	entire package 	of
proposals presented on September 23, 	1997, 	did not 	indicate 	the
package as 	a whole was 	regressive.
Even 	if 	the 	charge 	demonstrated 	that 	the 	District 	engaged 	in
regressive bargaining, 	the 	test 	for 	surface bargaining 	requires
an examination of 	the 	totality of 	the 	employer's 	conduct. 	One
indicia 	of bad faith bargaining 	is 	not 	enough to 	demonstrate 	a
prima 	facie violation. 	(Pajaro Valley Unified School 	District
(1978) 	PERB Decision No. 	51.) 	The totality of 	the District's
conduct 	following 	the 	declaration of 	impasse 	in April 	does 	not
demonstrate 	a prima 	facie violation. 	The 	charge 	did not
demonstrate 	the 	District 	made 	any 	individually 	regressive
proposals 	other 	than 	the 	proposal 	regarding 	the 	organizational
security vote. 	Nor was 	the District's 	communication with 	the
employees 	regarding membership 	and agency 	fees 	in violation 	of
EERA. 	Thus, 	an examination of 	the 	totality of 	the District's

LA-CE-3828
Dismissal 	Letter
Page 	4
conduct 	after 	the 	declaration 	of 	impasse 	does 	not 	demonstrate 	the
District 	engaged 	in 	surface bargaining 	in violation of 	EERA 	§
3543.5(e). 	Thus, 	the charge must be dismissed.
The warning 	letter also 	indicated 	the 	original 	and 	first 	amended
charge's 	allegations 	that 	the 	District 	refused 	to provide
information 	did not 	state 	a prima 	facie violation 	of 	EERA 	§
3543.5(c). 	The 	second amended charge does 	not 	include additional
information regarding these allegations. 	Thus, 	these allegations
do not 	demonstrate a prima 	facie violation of 	the 	EERA 	§
3543.5(c), 	and are dismissed for the 	reasons 	stated in the
warning 	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.

LA-CE-3828
Dismissal 	Letter
Page 5
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.)

LA-CE-3828
Dismissal 	Letter
Page 6
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
Tammy L. 	Samsel
Regional Director
Attachment
cc: 	Richard J. 	Currier

STATE OF CALIFORNIA 	' 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
PERD
February 4, 199 8
Lawrence Rosenzwieg, Attorney
2450 Broadway, 	Suite 550
Santa Monica, 	CA 904043003
Re: 	Ventura County Federation of College Teachers, 	AFT Local
1828 v. 	Ventur_-_----a County Community College District
Unfair Practice Charge No. 	LA-CE-3828
WARNING 	LETTER
Dear Mr. Rosenzwieg:
In the above-referenced charge 	the Ventura County Federation of
College Teachers, 	AFT Local 1828 	(AFT) 	alleges the Ventura County
Community College District 	(District) 	violated the Educational
Employment Relations Act 	(EERA or Act) 	§ 3543.5(a), 	(b), and (c)
by engaging in bad faith bargaining, 	and refusing to provide
information. 	My investigation revealed the 	following
information.
In February 1997, 	the District and AFT began negotiating a
successor agreement. 	AFT alleges 	the District failed to
negotiate in good faith during bargaining sessions held in March
and April 	1997. 	AFT alleges questions 	from AFT were met with
stalling tactics, 	such as 	"I'll have to get back to you on that."
The parties met four times to negotiate prior to declaring
impasse. 	During the second session the parties 	reached tentative
agreement on four articles. 	During the third session, 	the
parties 	reached tentative agreement on another article. 	During
the fourth session AFT refused to discuss any proposals, 	and
decided to only answer questions proffered by the District.
The District 	filed for impasse with PERB on April 23, 	1997.1 On
April 28, 	1997, 	PERB found the parties to be at impasse.
On May 20, 	1997, 	AFT requested information regarding a new
management position, 	Interim Dean. 	On June 24, 	1997, AFT sent a
second letter requesting the 	information to the President of
Oxnard College, 	Tomas Sanchez. 	On June 30, 	1997, 	Sanchez
instructed that 	requests 	for information regarding 	the Interim
Dean position be directed to Deputy Chancellor Mike Gregoryk.
1See Petition for Declaration of Impasse No. 	LA-IM-2675-E.
e

LA-CE-3828
Warning 	Letter
February 4, 	199 8
Page 2
On May 22, 	1997, 	AFT requested copies 	of documents 	regarding the
investigation 	of 	the District's 	Men's 	Basketball 	program. 	On or
about June 9, 	1997, 	AFT filed Unfair Practice Charge No. 	LA-CE-
3 802 	regarding 	this 	issue. 	A complaint 	issued on 	that 	charge 	on
October 8, 	1997.
On June 	10, 	199 7, 	AFT requested copies 	of 	the contracts between
the District and two law firms. 	On June 11, 	1997, 	Chancellor
Phillip Westin 	responded 	to 	by 	requesting 	that 	all 	requests 	by
AFT 	for 	information be 	directed 	to 	the District's 	Chief
Negotiator, 	Richard J. 	Currier. 	On June 30, 	1997, 	Currier
provided a 	copy 	of 	one 	of 	the 	requested 	contracts.
In or about June 	16, 	1997, 	the District attempted to delay a
grievance 	mediation by 	citing 	the 	need 	for 	their 	insurance
company 	representative's 	presence 	at 	the mediation. 	On June 	16,
1997, 	AFT requested 	information about 	the District's 	liability
insurance coverage. 	On August 	11, 	1997, 	the District provided a
51-page document, 	entitled, 	"1996-1997 	Property and Liability
Program." 	AFT alleges 	it 	has 	yet 	to determine whether 	the
document 	contains 	the 	information that 	it 	sought.
On June 	18, 	1997, 	AFT requested copies of 	employment 	contracts
between 	the 	District 	and 	two 	college 	presidents 	who are 	not
members of the bargaining unit. 	On June 30, 	1997, 	Currier told
AFT the 	contracts were not yet 	finalized. 	On August 	18, 	1997,
the District 	provided the 	contracts 	to AFT.
On June 30, 	1997, 	Deputy Chancellor, 	Mike Gregoryk, 	sent a
memorandum to 	the 	faculty which 	stated:
As 	you are aware, 	negotiators 	for the
District 	and AFT have 	been negotiating 	for 	a
new Agreement. 	The 	1994-1997 Agreement 	will
no 	longer be in effect after June 30, 	1997,
therefore, 	faculty members who wish to
withdraw 	their membership 	from the AFT may 	do
so at any time after June 30, 	1997.
On July 1, 	1997, 	the District 	sent a memorandum to 	employees
paying 	agency 	fees 	which 	stated:
The 	purpose 	of 	this memo 	is 	notify you 	that
effective on July 1, 	1997, 	the District will
no 	longer 	involuntarily 	deduct 	from your
paychecks 	the mandatory 	agency 	service 	fee
imposed by 	the AFT. 	Upon advice 	from legal
counsel, 	the District will 	not 	require you 	to

LA-CE-3828
Warning Letter
February 4, 199 8
Page 3
pay an agency service 	fee to the AFT absent a
collective bargaining agreement with such a
requirement.
Since the 1994-199 7 Agreement between the
District and the AFT will no longer be 	in
effect on July 1, 	1997, 	the mandatory agency
service fee in Article 18.2 will not be
implemented commencing July 1, 199 7.
On August 13, 	1997, 	AFT asked the District to continue to collect
the service 	fees and place the money in escrow until 	the parties
sign a successor agreement. 	The District denied AFT's 	request,
explaining that although the parties 	signed a tentative agreement
on the parties' 	agency fee provision, Article 18, 	there was not a
current 	ratified agreement.
AFT alleges 	the District 	continued to bargain in bad faith when
mediation began between the parties on June 20, 	1997. 	AFT
alleges the District's September 23, 	1997, 	proposal included
proposals which were: new, 	regressive, 	and/or illegal. 	AFT
alleges 	the District made for the first 	time proposals on these
provisions: Article 3 Salary; Article 4 Health and Welfare;
Article 17; Article 19 Effect of the Agreement; 	and Appendix E
and H.
The District alleges its September 23, 	1997, proposal was
comprehensive and also included items more advantageous to AFT.
For example, 	the proposal 	included a 1.5% 	increase in the salary
schedule. 	The District also offered to drop: 	(a) 	its request to
extend the workday to 10 p.m.; 	(b) 	its request to make part-time
faculty at-will employees; 	and 	(c) 	all but four of its proposed
changes to Article 3 Salary.
The above-stated information fails 	to demonstrate a prima facie
violation of 	the EERA for the reasons 	that 	follow.
Bad 	Faith Bargaining
The charge alleges the District violated EERA § 3543.5(a), 	(b),
and 	(c) 	by engaging in surface bargaining. 	The totality of
conduct 	test 	is 	generally applied to determine whether an
employer is engaged in bad faith bargaining. 	Although the
totality of conduct test is generally applied, 	some conduct is
considered to be a 	"per se" 	violation without a determination of
the employer's 	subjective intent. 	In establishing bad faith,
PERB examines 	the 	"totality of 	the bargaining conduct" 	to
determine whether there are sufficient objective 	indicia of a
subjective intent to participate in good faith, 	or conversely, 	of

LA-CE-3828
Warning 	Letter
February 4, 199 8
Page 4
an 	intent 	to 	frustrate 	the bargaining process. 	(Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51; 	see also
Regents 	of 	the University of 	California 	(1996) 	PERB Decision No.
1157-H.) 	Conduct 	that moves 	the parties 	away 	from agreement,
rather than 	toward agreement, 	is 	considered evidence 	of 	bad
faith. 	(Pajaro, 	supra.) 	However, 	one indicia of bad faith
bargaining does 	not meet 	the 	totality 	of 	circumstances 	test.
(Pajaro, 	supra.) 	The 	charge as 	presently written does 	not meet
the 	above-stated 	test.
Factors 	which may be 	indicative 	of 	bad 	faith bargaining 	include
frequent 	turnover 	in negotiators 	(Muroc 	Unified 	School 	District
(1978) 	PERB Decision No. 	80.); 	negotiators' 	lack of authority
which 	delays 	the 	bargaining process 	(Oakland Unified 	School
District 	(1983) 	PERB Decision No. 	326); missing, 	delaying, 	or
cancelling bargaining 	sessions 	(Oakland Unified 	School 	District
(1983) 	PERB Decision No. 	326.); 	taking an inflexible position or
making 	regressive bargaining proposals. 	(San Ysidro 	School
District 	(1980) 	PERB Decision No. 	134; 	Oakland Unified School
District 	(1982) 	PERB Decision No. 	2 75.)
The 	charge 	provides 	little 	information 	regarding 	the 	District's
actions prior 	to 	the 	declaration of 	impasse. 	AFT alleges 	the
District 	did not 	explain 	the meaning 	and 	intent 	of 	its 	proposals,
and 	engaged 	in 	stalling 	tactics 	during bargaining 	sessions 	in
March and April 	1997. 	However, 	the 	charge does not 	provide
specific 	facts 	to 	establish 	the 	District's 	behavior 	in March and
April 	1997 	was 	indicative 	of 	an 	intent 	to 	frustrate 	the
bargaining process. 	In 	fact, 	the parties 	reached tentative
agreements 	on 	several 	issues 	in 	the 	few bargaining 	sessions 	held
before the declaration of 	impasse. 	Thus, 	the charge does not
establish a prima 	facie violation of 	EERA § 	3543.5(c).
The 	charge 	also 	includes 	facts 	regarding 	events 	which 	occurred
after the District 	filed for impasse on April 	23, 	1997. 	For
conduct 	occurring 	during and prior 	to 	the 	exhaustion 	of 	the
statutory impasse procedure, 	EERA § 	3543.5 (e) 	is at 	issue.2
Conduct within 	that 	time-frame 	cannot 	also be 	the basis 	for a
violation of 	EERA § 	3543.5 (c). 	(Moreno Valley Unified School
District v. 	Public 	Employment 	Relations 	Board 	(1983) 	142
Cal.App.3d 	191; 	Regents 	of 	the University of 	California 	(1996)
2EERA § 	3543.5(e) 	states 	it 	shall be unlawful 	for a public
school 	employer 	to do 	any of 	the 	following:
(e) 	Refuse 	to participate 	in good faith 	in
the 	impasse procedure 	set 	forth 	in Article 	9
(commencing with Section 3548).

LA-CE-3828
Warning 	Letter
February 4, 	199 8
Page 	5
PERB Decision No 	1157-H.) 	However, 	even assuming 	the 	charge
properly alleged 	the District violated EERA § 	3543.5(e), 	the
allegations 	addressed 	in 	this 	letter 	fail 	to 	state 	a 	prima 	facie
violation 	of 	that 	section.
The 	totality 	of 	conduct 	test 	will 	apply 	to AFT's 	allegation 	that
the 	District's 	conduct 	following 	the 	declaration 	of 	impasse
violated 	the 	EERA. 	That 	allegation 	rests 	on 	the 	following
claims: 	(1) 	the District 	improperly 	communicated with bargaining
unit 	employees 	regarding 	the 	issue 	of 	membership 	and 	agency 	fees;
and 	(2) 	the 	District's proposals 	demonstrate bad 	faith because
they were 	regressive 	and 	illegal. 	Allegations 	that 	the 	District
refused 	to 	provide 	information 	will 	be 	addressed 	as 	a 	per 	se
violation.
Once 	an 	exclusive 	representative 	is 	selected, 	the 	employer must
refrain 	from bargaining 	directly with 	bargaining 	unit 	employees.
However 	the 	employer 	does 	have 	a 	free 	speech 	right. 	An
employer's 	speech does 	not 	generally violate 	the 	EERA, 	unless 	the
speech 	contains 	a 	threat 	of 	reprisal 	or promise 	of 	benefit. 	(See
Rio Hondo 	Community 	College District 	(1980) 	PERB Decision No.
128.)
EERA 	§3540.1(i) 	states 	that 	the 	term 	"Organizational 	Security"
means 	either 	of 	the 	following:
(1) 	An 	arrangement 	pursuant 	to which a
public 	school 	employee 	may 	decide 	whether 	or
not 	to 	join an 	employee 	organization, 	but
which 	requires 	him or her, 	as 	a 	condition 	of
continued employment, 	if 	he 	or 	she does 	join,
to 	maintain his 	or her membership 	in 	good
standing 	for 	the 	duration 	of 	the 	written
agreement. 	However, 	no 	such arrangement
shall 	deprive 	the 	employee 	of 	the 	right 	to
terminate 	his 	or her 	obligation 	to 	the
employee 	organization within a period 	of 	3 0
days 	following 	the 	expiration 	of 	a written
agreement.
(2) 	An arrangement 	that 	requires 	an
employee, 	as 	a 	condition of 	continued
employment, 	either 	to 	join 	the 	recognized 	or
certified 	employee 	organization, 	or 	to pay
the 	organization 	a 	service 	fee 	in 	an 	amount
not 	to 	exceed 	the 	standard 	initiation 	fee,
periodic 	dues, 	and general 	assessments 	of 	the

LA-CE-3828
Warning 	Letter
February 4, 	1998
Page 6
organization 	for 	the 	duration 	of 	the
agreement, 	or a period of 	three years 	from
the 	effective 	date 	of 	the 	agreement,
whichever 	comes 	first.
The parties' 	1994-1997 CBA does 	not 	include a maintenance 	of
membership provision as 	described in EERA § 	3540.1(i)(1).
Therefore 	this 	charge will be analyzed under EERA § 	3540.l(i) (2).
EERA § 3540.l(i)(2), 	cited above, 	states, 	organizational security
endures 	for the duration of 	the agreement. 	As 	the parties 	do not
have an effective 	agreement, 	the 	employees may resign 	their
membership 	in AFT. 	The 	employer's 	act 	of 	notifying 	employees 	of
this 	fact 	does 	not violate 	the 	EERA, 	nor does 	it 	support 	a
surface 	bargaining 	violation.
The 	District's 	correspondence 	with 	the 	employees 	regarding 	the
collection of 	service 	fees 	similarly does 	not 	contain a 	threat 	or
promise of benefit, 	but merely 	informs 	the employees 	of 	their
rights pursuant 	to EERA. 	Again, 	as 	the parties 	do not 	have an
effective 	agreement, 	the 	employees may resign 	their membership 	in
AFT, 	and the District 	need not 	collect 	service 	fees. 	(See 	State
of California 	(1996) 	PERB Decision No. 	1179-S.) 	Thus, 	the
charge's 	allegation 	that 	the 	District 	illegally 	communicated with
bargaining unit 	employees 	is 	not a violation of 	the 	EERA, 	nor
does 	it 	support 	a 	surface bargaining violation.
Although 	regressive 	bargaining 	is 	considered a 	factor 	indicative
of 	bad 	faith bargaining 	it 	is 	not 	clear 	that 	the District 	engaged
in 	regressive bargaining. 	Individually 	regressive 	proposals 	must
be 	reviewed 	in 	the 	context 	of 	the 	entire package 	of proposals.
(See Regents 	of 	the University 	of 	California 	(1996) 	PERB Decision
No. 	1157-H.) 	In the 	instant 	charge the employer's 	September 23,
1997, 	proposal 	included concessions 	on salary, 	workday, 	and the
status 	of 	the part-time 	faculty. 	Moreover, 	even if 	the District
engaged in regressive bargaining, 	one 	indicia alone does 	not
demonstrate bad faith. 	(Pajaro, 	supra.) 	Even if 	the District
- -
engaged 	in regressive bargaining, 	there 	are not 	additional
factors 	indicative 	of 	bad 	faith.
Thus, 	the 	charge does 	not provide 	facts 	demonstrating 	the
District's 	totality 	of 	the 	bargaining 	conduct 	was 	indicative 	of
intent 	to 	frustrate 	the 	impasse procedure.
The 	charge's 	allegation 	that 	the District's 	proposal 	on 	the
instructional 	calendar was 	illegal 	also 	fails 	to 	state 	a prima
facie 	case. 	The parties 	1994-1997 	contract 	indicated, 	"the
parties 	shall 	meet 	on or before December 	1 	of 	each year 	to
establish 	the 	instructional 	calendar 	for 	the 	following 	academic

LA-CE-3828
Warning 	Letter
February 4, 199 8
Page 7
year." 	The District proposed that 	the 	language be 	changed to
indicate 	the 	calendar 	"shall be established by the District after
considering input 	from the Federation." 	AFT alleges 	this
proposal 	requires AFT to waiver its 	right 	to bargaining on a
matter within the scope of bargaining, 	and is therefore an
illegal proposal.
The EERA does not prohibit proposals 	during impasse on subjects
within the scope of bargaining. 	The District's 	calendar proposal
is on a subject within the scope of bargaining. 	(See Los Rios
Community College District 	(1988) 	PERB Decision No. 	684.) 	The
proposal does not waive any statutory right. 	Therefore, 	this
allegation does not present a prima facie violation of 	the EERA.
Requests 	For Information
The 	charge alleges 	the District 	refused to provide the 	following
information: 	(a) 	employment contracts of the District's College
Presidents; 	(b) 	information regarding the Men's Basketball
program; 	(c) 	contracts between the District and two of its law
firms; 	(d) 	information regarding the District's liability
insurance; 	and 	(e) 	information regarding the Interim Dean
position. 	For the reasons stated below, 	the charge does not
factually demonstrate a prima 	facie 	refusal 	to provide
information violation.
The exclusive representative is entitled to all 	information that
is 	"necessary and relevant" 	to the discharge of 	its duty of
representation. 	(Stockton 	Unified 	School 	District 	(19 	80) 	PERB
Dec. 	No. 	143). 	Failure to provide such information is a per se
violation of the duty to bargain in good faith. 	The charge,
however, 	fails to demonstrate that the District refused to
provide 	the above-listed information.
On June 30, 	1997, 	the District indicated the employment contracts
of the college presidents were not finalized, 	and on August 	18,
199 7, the District provided the contracts. As AFT does not
demonstrate the contracts existed on June 18, 	1997, 	when AFT
requested the contracts, 	the charge does not demonstrate a prima
facie violation.
On August 28, 	1997, 	the District provided a report on the Men's
Basketball program to AFT. 	Thus it appears the District
responded the AFT's 	requests 	for information regarding the
program and the allegation does not 	state a prima 	facie
violation. 	Even if the allegation states a prima facie
violation, 	requests 	for information regarding the Men's

LA-CE-3828
Warning 	Letter
February 4, 199 8
Page 8
Basketball program were addressed in Unfair Practice Charge 	LA-
CE-3802. 	Since a complaint already issued in LA-CE-3802, 	a
second complaint would create duplicative proceedings.
With regard to the law firm contracts, 	the charge does not
include 	facts 	indicating how the contracts between the District
and the 	law firms are necessary and relevant 	to AFT's 	duty to
represent bargaining unit employees. Moreover, on June 30, 199 7,
the District provided one of the two requested contracts. 	Thus,
this allegation must also be dismissed.
On, 	August 11, 	1997, 	the District provided the 1996-1997 Property
and Liability Program to AFT. 	By AFT's 	own account 	it 	is unsure
whether the document contains the information it sought. 	Since
the 	requested information may be 	included in the document
provided, 	this allegation must be dismissed.
AFT asked Tomas 	Sanchez 	on two occasions 	for information
regarding a new non-bargaining unit position, 	Interim Dean. 	On
June 30, 199 7, Sanchez responded and instructed AFT to contact
Deputy Chancellor Mike Gregoryk. 	The charge does not allege
facts 	indicating the District 	refused to provide the 	information,
but 	only that AFT direct 	its 	inquiry to another District
official. 	As the charge does not indicate that AFT contacted
Gregoryk, 	and that Gregoryck refused to provide the information,
this must be dismissed.
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 be served on the respondent and the 	original
proof of service must be filed with PERB. 	If I do not receive an
amended charge or withdrawal from you before February 11, 	1998. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director