Oak Park Unified School District (PERB 1286E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
OAK PARK CLASSIFIED ASSOCIATION,
Charging 	Party,
v.
OAK PARK UNIFIED SCHOOL DISTRICT,
Respondent.
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Case No. 	LA-CE-3936
PERB Decision No. 	1286
September 24, 	1998
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Appearances: 	California Teachers Association by Charles R.
Gustafson, 	Attorney, 	for Oak Park Classified Association; 	Miller,
Brown & Dannis by David G. 	Miller, 	Attorney, 	for Oak Park Unified
School District.
Before Caffrey, 	Chairman; 	Johnson and Amador, 	Members.
DECISION AND 	ORDER
AMADOR, 	Member: 	This 	case 	is before the Public Employment
Relations Board 	(Board) 	on appeal by the Oak Park Classified
Association 	(Association) 	to a Board agent's dismissal 	(attached)
of 	the unfair practice 	charge. 	The Association alleges 	that
the 	Oak 	Park Unified School District 	(District) 	violated
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA)1 by engaging in bad faith bargaining.
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.5 provides, 	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
guaranteed by 	this 	chapter.

(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.
The Board has 	reviewed the 	entire 	record, 	including
the unfair practice 	charge, 	the warning and dismissal 	letters,
the Association's 	appeal 	and the District's 	response. 	The Board
finds 	the 	Board agent's 	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-3936 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Chairman 	Caffrey and Member Johnson 	joined 	in 	this 	Decision.
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
July 8, 	1998
Charles R. Gustafson, Esq.
California Teachers Association
P.O. 	Box 2153
Santa Fe Springs, 	California 	90670
Re: 	Oak Park Classified Association v. 	Oak Park Unified School
District
Unfair Practice Charge No. 	LA-CE-3936
DISMISSAL LETTER
Dear Mr. Gustafson:
In the above-referenced charge 	the Oak Park Classified
Association 	(Association) 	alleges 	the Oak Park Unified School
District 	(District) 	violated the Educational Employment Relations
Act 	(EERA or Act) 	§ 3543.5(a), 	(b), and (c) by engaging in bad
faith bargaining.
I indicated to you, 	in my attached letter dated June 22, 	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 June
29, 	1998, 	the charge would be dismissed. 	On June 29, 	1998, you
filed a first amended charge.
The first amended charge includes the following allegations: 	(a)
the District unilaterally changed the parties' 	policy by
contracting out for mowing services; 	and 	(b) 	the District engaged
in bad faith bargaining by sending two letters 	to bargaining unit
members.
Unilateral 	Change
With regard to the unilateral 	change violation, 	the warning
letter indicated the Association waived its 	right 	to bargain the
decision to 	contract out bargaining unit work. 	The 	first amended
charge indicates that the parties' 	well-established past practice
is 	to contract out work only when employees 	cannot perform
certain services, 	when specialized services are needed, 	and for
special 	short-term projects. 	The Association alleges 	the
District has 	never contracted-out work normally and regularly
performed by unit members. 	The Association also contends that
the District's unsuccessful attempts to modify the parties'
===--- 	--

contracting out 	language during negotiations 	supports 	the
Association's position.
LA-CE-3936
Dismissal 	Letter
Page 2
Although the District may not 	have 	contracted out work normally
and regularly performed by bargaining unit members 	in the past,
the parties' 	CBA clearly indicates 	the District has 	the right to
contract out bargaining unit work. 	As stated in the warning
letter, 	Article 7.1 of the parties' 	CBA grants the District the
right to contract out work. 	The District does not lose that
right, 	merely because it failed to previously exercise it. 	(See
Marysville Joint Unified School District 	(1983) 	PERB Decision No.
314.) 	Nor does the fact that the District made proposals to
modify the parties' 	contract language on this issue undermine the
District's right 	to contract out as 	it is currently written in
the parties' 	collective bargaining agreement. 	Thus, 	this
allegation is 	dismissed for the reasons 	stated above and in the
warning letter.
Bypassing
The 	first amended charge alleges 	the District violated the EERA
with written communications 	to bargaining unit employees 	on
April 27, 1998, and May 7, 1998.
The Association alleges 	the District attempted 	"to take credit
for the style of bargaining knowing full well 	that bargaining is
a two-party mutual process." 	The Association also alleges 	the
District 	"created the illusion that 	it was cooperating with the
Association" 	when it had in fact sabotaged the negotiations
process by bringing in persons hostile to the Association's
interests during the parties' 	meeting on benefits.
These two allegations refer to the following sections of 	the
Superintendent Marilyn Lippiatt's April 27, 	1998, 	memorandum to
the employees:
I 	started this process based upon the
principles of 	Interest Based Bargaining 	- 	a
collaborative and cooperative approach to
negotiations where all 	information is shared
and, 	then, 	options are explored in an effort
to find mutually "acceptable solutions. 	For
example, 	we recently held an informational
meeting for OPCA on Health and Welfare,
bringing in three representatives of the
insurance and health care 	industries. 	We
discussed only such options as 	IRC 125 	Plans,
childcare, . . .
r

LA-CE-3936
Dismissal Letter
Page 3
I 	truly believe that 	style of 	information
gathering and sharing better fit 	the Oak Park
Unified culture and atmosphere than the old
style adversarial bargaining. 	OPCA seems
intent on proving me wrong. 	Thank you for
your response to my first letter. 	. 	.
The first amended charge also alleges the District's May 7, 	1998,
letter violates 	the EERA. 	The Association alleges 	the District
"knowingly and or with reckless abandon totally misstated the
Association position in order to gain an advantage 	in bargaining
and make it appear the Association was 	the party unwilling to
negotiate." 	The document states, 	in pertinent part:
What happened? 	The mediator first met with
OPCA; 	he then came to the district team room
after about 	1/2 	hour and informed us 	that
OPCA was unwilling to proceed unless 	the
District 	immediately agreed to the Union's
demand to cease 	contracting 	for services and
that 	there was no point 	in negotiating any
other 	issues. 	[emphasis 	in original]
The 	first amended charge makes 	the 	following assertion regarding
the above-quoted statement:
This gives the false impression that the
Association actually said that according 	to
the personal knowledge of the District when
in fact 	the Association did not say that and
the District has no way of knowing exactly
what 	the Association did say.
The District's May 7, 	1998, 	communication does not make a false
impression regarding the District's personal knowledge but
identifies the source of the information as the mediator.
The 	first amended charge also makes 	the following assertion
regarding the warning letter's analysis.
Your warning letter relies on Rio Hondo
Community College District (1980) 	PERB
Decision No. 	128 for the proposition that
employer misstatements of facts about the
bargaining process do not 	constitute an
unfair practice absent a threat of reprisal
or promise of benefit. 	I do not believe that
issue is that cut and dried. 	I believe the
holding in Muroc Unified School District
(1978) 	PERB Decision No. 	80 is still good

law. 	The Rio Hondo case did not overrule the
decision in Muroc, 	and in fact, 	it quoted it
approvingly.
LA-CE-3936
Dismissal 	Letter
Page 4
The warning 	letter stated:
The EERA prohibits 	an employer from using
direct 	communications with employees to
bypass 	the exclusive 	representative and
undermine 	the representative's exclusive
authority to represent unit members, 	and
negotiate with the employer. 	(See Muroc
Unified School District 	(1978) 	PERB Decision
No. 	80.) 	However, 	not all communication with
employees violates the Act. 	(See, Marin
Community College District 	(1995) 	PERB
Decision No. 	1092.) 	PERB has adopted the
NLRB standard for employer free speech, 	and
generally does not 	find speech an unfair
practice 	if the communication contains
neither threat of reprisal or force, 	nor
promise of benefit. 	(Rio Hondo Community
College District 	(1980) 	PERB Decision No.
128.) 	During negotiations, 	an employer is
obligated to present 	factually accurate
information and may not engage 	in conduct 	to
derogate 	the exclusive 	representative's
authority. 	(Temple City Unified School
District 	(1990) 	PERB Decision No. 	841.)
The above-stated information fails 	to state a prima 	facie
violation for the reasons that 	follow.
Despite 	the 	first amended charge's 	suggestion to the contrary,
the warning letter did not 	indicate Muroc Unified School District
(1978) 	PERB Decision No. 	80 had been overruled by Rio Hondo
Community College District 	(1980) 	PERB Decision No. 	128. 	The
warning letter cited both cases, 	and additionally relied on an
even more recent Board decision, 	Temple City Unified School
District 	(1990) 	PERB Decision No. 	841. 	Thus, 	as the first
amended charge 	fails to present 	facts 	indicating the District's
communications with the employees 	contained threats of reprisal,
promises of benefits, 	or language undermining the authority of
the exclusive 	representative 	this allegation must be dismissed.
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:
LA-CE-3936
Dismissal 	Letter
Page 5
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.)

LA-CE-3936
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: 	David G. 	Miller

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
June 22, 199 8
Charles R. Gustafson, Esq.
California Teachers Association
P.O. 	Box 2153
Santa Fe Springs, 	California 	90670
Re: 	Oak Park Classified Association v. 	Oak Park Unified School
District
Unfair Practice Charge No. 	LA-CE-3936
WARNING 	LETTER
Dear Mr. Gustafson:
In the above-referenced charge 	the Oak Park Classified
Association 	(Association) 	alleges 	the Oak Park Unified School
District 	(District) 	violated the Educational Employment Relations
Act 	(EERA or Act) 	§ 3543.5(a), 	(b), and 	(c) by engaging in bad
faith bargaining.
The parties' 	last collective bargaining agreement expired on June
30, 	1997, 	and they are currently at impasse over a successor
agreement.1
On May 5, 	1998, 	the District notified the Association of its
intent to contract-out mowing services on or about June 1, 	1998,
due to a lack of available personnel and the immediacy of the
job. 	Mowing services have been provided by bargaining unit
members. 	On May 7, 	1998, 	the Association demanded to bargain the
District's decision to contract out mowing services. 	The
District refused to negotiate the decision, 	but agreed to
negotiate the effects.
Article 7.1 of the parties' 	last CBA states:
In order to insure that the District is able
flexibly and efficiently to carry out 	its
functions and responsibilities as 	imposed by
law, 	it is understood and agreed that the
District retains all of its power and
authority to direct, 	manage and control the
1Although not alleged as a violation of EERA § 3543.5(e),
since the charge alleges the unlawful conduct took place during
impasse, 	it is properly considered as a violation of EERA §
3543.5(e). 	(See Moreno Valley Unified School Dist. v. 	Public
Employment Relations Bd. 	(1983) 	142 Cal.App.3d 191.)
I
==--- 	--

performance 	of 	District 	services 	and 	the work
force performing 	such services. 	The District
retains 	therefore, 	the exclusive rights,
duties 	and powers which include, 	but are not
limited to, 	the following: 	. 	. 	. 	lawfully to
contract out work 	. 	. 	. 	(emphasis added.)
LA-CE-3936
Warning 	Letter
Page 	2
Article 23.2 	of 	the parties' 	last CBA states:
23.2 	Except 	as 	specifically provided herein,
during 	the 	term of 	this Agreement 	neither
party 	shall 	be 	required 	to negotiate with
respect 	to 	any matter whether 	or 	not 	covered
by 	this Agreement, 	and whether or not within
the 	knowledge 	or 	contemplation 	of 	either or
both of 	the parties 	at 	the 	time 	they
negotiated, 	ratified and/or signed 	this
Agreement. 	This 	constitutes 	a knowing and
specific 	waiver of 	rights 	in 	connection with
each 	and 	every 	subject 	matter 	specifically,
expressly 	or 	implicitly 	classified as 	a
matter within 	the 	scope 	of 	representation as
defined by 	the 	Educational 	Employment
Relations 	Act 	and/or 	any precedential
decision 	of 	the 	Public 	Employment 	Relations
Board.
The 	Association also 	alleges 	the 	District 	misrepresented 	the
positions 	of 	the parties 	in two 	flyers 	it 	distributed to
bargaining unit 	employees. 	The 	charge alleges:
6.a 	On April 	27, 	1998, 	the District
distributed a 	flyer, 	a 	true and 	correct 	copy
of 	which 	is 	attached hereto marked B. 	In the
flyer the District 	includes 	a 	"personal 	note"
which 	states 	the District 	"started this
process 	based upon 	the principles 	of 	Interest
Based Bargaining" 	attempting 	to 	take 	credit
for 	the 	style 	of 	bargaining knowing 	full 	well
that 	bargaining 	is 	a 	two-party mutual
process. 	It 	then says 	it 	"held an
informational -meeting 	for OPCA" 	which
misrepresents 	the 	actual meeting 	and 	its
purpose, 	knowingly full well 	that 	the
Association 	agreed 	to 	the meeting 	on 	the
premise 	the 	District 	would bring 	in 	outside
consultants 	to provide 	information on benefit
caps 	and rate 	increase 	forecasts. 	The
22

District brought in persons hostile to the
Association, 	none of whom could provide the
requested 	information.
LA-CE-3936
Warning Letter
Page 3
6.b 	On May 7, 	1998, 	the District distributed
a flyer, 	a true and correct copy of which is
attached hereto marked C. 	The flyer purports
to be 	"the most accurate characterization of
OPCA's actions" but fails to state that
because of the nature of the process it
relied upon the mediator's 	characterization
of the 	Association's 	actions. 	The 	flyer
follows this under 	"What Happened?" with a
purported report 	from the mediator that 	the
Association said 	"there was no point in
negotiating any other issues." 	This gives
the 	false 	impression that the Association
actually said that according to the personal
knowledge of the District when in fact the
Association did not 	say that and the District
has no way of knowing exactly what 	the
Association did say.
Additionally, 	the flyer states under
"District Response" 	that 	"We responded that
we would be derelict 	in our duty to give up
the 	flexibility to contract 	for needed work."
This gives the false impression that the
Association attempted to get 	the District 	to
give up such flexibility in the areas
outlined in the preceding paragraph when the
District knows 	full well 	that the Association
was not 	concerned with those areas but only
with the mowing services.
Based on the above-stated information, 	the charge fails to state
a prima facie violation for the reasons that follow.
Unilateral 	Change
In determining whether a party has violated EERA section
3543.5 (e), 	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.)
Unilateral changes are considered 	"per se" violations if certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented a 	change 	in policy concerning a matter within the
33

scope of 	representation, 	and 	(2) 	the change was 	implemented
before 	the 	employer 	notified 	the 	exclusive 	representative 	and
gave 	it 	an opportunity 	to 	request 	negotiations. 	(Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant Joint
Unified High School District 	(1982) 	PERB Decision No. 	196.)
LA-CE-3936
Warning 	Letter
Page 	4
While 	in San Jacinto Unified School 	District 	(1994) 	PERB Decision
No. 	1078, 	PERB held that 	a broadly based management-rights 	clause
would 	not 	be 	construed as 	a waiver 	of 	statutory bargaining
language, 	such is not 	the 	case herein. 	The Association's
arguments 	that 	the District 	violated past 	practice 	and 	the
agreement 	are unpersuasive. 	Article 	7.1 	of 	the Agreement 	states
the District's 	right 	to lawfully contract 	out work. 	Indeed, 	the
parties 	seem to have 	a past 	practice 	of 	allowing 	contracting 	out
that 	is 	consistent with this provision of 	the 	contract. 	Thus,
the 	charge 	does 	not 	provide 	facts 	supporting 	the Association's
contention 	that 	the District's 	contracting 	out 	of 	mowing 	services
violates 	the 	EERA.
Bypassing
The 	EERA prohibits 	an 	employer 	from using 	direct 	communications
with employees 	to bypass 	the 	exclusive 	representative 	and
undermine 	the 	representative's 	exclusive 	authority 	to 	represent
unit members, 	and negotiate with the 	employer. 	(See Muroc
Unified School District 	(1978) 	PERB Decision No. 	80.) 	However,
not all 	communication with employees violates 	the Act. 	(See,
Marin Community College District 	(1995) 	PERB Decision No. 	1092.)
PERB has 	adopted the NLRB 	standard 	for employer 	free 	speech, 	and
generally does 	not 	find 	speech an unfair practice 	if 	the
communication 	contains 	neither 	threat 	of 	reprisal 	or 	force, 	nor
promise 	of benefit. 	(Rio Hondo Community College District 	(1980)
PERB Decision No. 	128.) 	During negotiations, 	an employer is
obligated 	to 	present 	factually 	accurate 	information 	and may 	not
engage 	in 	conduct 	to 	derogate 	the 	exclusive 	representative's
authority. 	(Temple 	City Unified School District 	(1990) 	PERB
Decision No. 	841.)
The 	charge 	fails 	to 	demonstrate 	the District's 	communications
included 	threats 	of 	reprisals 	or promises 	of benefits. 	Moreover,
the 	charge 	fails 	to provide 	any 	facts 	indicating 	the District
bargained directly with 	the 	employees. 	(See Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160.) 	The
communications 	complained 	of 	here 	do not 	demonstrate 	the District
acted to undermine 	the Association. 	Thus, 	this 	allegation does
not 	present 	a prima 	facie violation.
4
I
4

LA-CE-3936
Warning Letter
Page 5
If there are any factual inaccuracies in this letter or any-
additional 	facts which would require a different 	conclusion than
the one 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 filed with PERB. 	If 	I do not receive an amended charge
or withdrawal from you before June 29. 	1998. 	I shall dismiss your
charge without leave to amend. 	If you have any questions, 	please
call me at 	(213) 	736-3008.
Sincerely,
Tammy L. 	Samsel
Regional Director