Antioch Unified School District (PERB 0581E)

STATE 	OP CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
ANTIOCH 	UNIFIED 	SCHOOL DISTRICT,
Charging 	Party,
v.
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION
AND 	ITS 	ANTIOCH 	CHAPTER 	#85,
Respondent.
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) 	Case 	No. 	SF-CO-203
PERB 	Decision 	No. 	581
June 	30, 	1986
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Appearance; 	Atkinson, 	Andelson, 	Loya, 	Ruud & Romo by Janae H.
Novotny 	for 	Antioch 	Unified 	School 	District.
Before Morgenstern, 	Burt and Porter, 	Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on appeal by the
Antioch 	Unified 	School 	District 	(District) 	of 	a 	dismissal 	by 	the
Board's 	regional 	attorney of 	its 	allegation 	that 	the 	California
School 	Employees Association and 	its 	Antioch 	Chapter 	#85 	(CSEA
or Association) 	violated section 3543.6(c) 	of the 	Educational
Employment 	Relations 	Act 	(EERA or Act) 1 by 	refusing 	to meet
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references herein 	are
to the 	Government 	Code.
Section 3543.6 provides, 	in pertinent part:
It 	shall be 	unlawful 	for 	an employee
organization 	to:
_________________ )
. . . . . . . 	. . . . 	. . . . . . . . . 	.

and 	negotiate 	in good 	faith when 	it 	announced 	it 	would 	not
discuss 	either 	the 	District's 	or 	its 	own 	impact-of-layoff
proposals 	until 	the 	District 	complied 	with 	the 	public 	notice
provisions 	set 	forth 	in EERA, section 3547.
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(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
exclusive 	representative.
2Section 	3547 	provides:
(a) 	All 	initial proposals 	of 	exclusive
representatives 	and 	of public 	school
employers, 	which relate 	to matters within
the 	scope 	of representation, 	shall be
presented 	at 	a public 	meeting 	of 	the public
school 	employer 	and 	thereafter 	shall 	be
public 	records.
(b) 	Meeting 	and negotiating 	shall 	not 	take
place 	on any proposal 	until 	a 	reasonable
time 	has 	elapsed 	after 	the 	submission of 	the
proposal 	to 	enable 	the public 	to become
informed 	and 	the 	public has 	the 	opportunity
to 	express 	itself 	regarding 	the proposal 	at
a meeting 	of 	the 	public 	school 	employer.
(c) 	After 	the public has had 	the 	opportunity
to express 	itself, 	the public 	school 	employer
shall, 	at a meeting which 	is open to the
public, 	adopt 	its 	initial proposal.
(d) 	New 	subjects 	of 	meeting 	and 	negotiating
arising 	after 	the presentation of 	initial
proposals 	shall 	be 	made 	public 	within 	24
hours. 	If 	a vote 	is 	taken on such 	subject
by the public 	school 	employer, 	the 	vote
thereon by each member 	voting 	shall 	also be
made public within 	24 hours.
(e) 	The board may adopt 	regulations 	for 	the
purpose of 	implementing 	this 	section, 	which
are 	consistent 	with 	the 	intent 	of 	the
section; 	namely that 	the public be 	informed
of 	the 	issues 	that 	are being 	negotiated upon
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and have 	full 	opportunity 	to 	express 	their
views 	on 	the 	issues 	to the public 	school
employer, 	and to know of 	the positions 	of
their 	elected 	representatives.
SUMMARY 	OF 	FACTUAL ALLEGATIONS
According 	to 	the 	statement 	of 	facts 	submitted by 	the 	District
in 	support 	of 	its 	unfair practice 	charge 	and 	the 	investigation
conducted by the 	regional 	attorney, 	the parties 	commenced
negotiations 	for 	a 	successor 	agreement 	to 	their 	contract 	in
September 	1982. 	Initial proposals 	submitted by the Association
were 	presented 	to 	the 	public 	in accordance 	with 	the 	"sunshine"
requirements of EERA on September 	22, 	1982. 	Thereafter, 	on
October 27, 	1982, 	the District's counterproposals were made
public. 	In 	essence, 	CSEA proposed 	that 	the 	existing contract
language 	regarding 	layoffs be 	retained. 	The 	District proposed
that 	the 	layoff provisions 	be deleted 	from the parties' 	contract.
In November, 	negotiations began. 	According to the District, 	the
subject 	of 	layoffs 	was 	discussed.
In March 1983, 	during 	the 	course of 	a 	negotiating meeting,
the 	District 	negotiator 	informed 	the 	Association 	that 	it 	expected
to 	lay off 	74 	employees. 	The Association demanded 	to negotiate
the 	impact 	of 	the 	layoffs 	on the 	74 employees 	to be 	laid 	off 	and
the 	impact 	on 	the 	employees 	who would 	remain employed. 	In
response 	to Association 	requests, 	the 	District 	provided CSEA with
a 	list 	of 	positions 	targeted 	for 	the 	layoff, 	a 	seniority 	list
and 	a 	list 	of 	the 	specific 	employees 	to be 	laid off. 	In 	a 	letter
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to the 	District 	superintendent dated April 	13, 	1983, 	CSEA Field
Representative 	Michael 	Aidan 	submitted 	a written 	demand 	to
negotiate 	along with 	specific 	impact-of-layoff 	proposals. 	At
the 	next 	negotiating meeting, 	the 	District 	submitted 	its 	own
proposals 	concerning the 	impact of 	the 	layoffs.
At 	this 	juncture, 	the Association announced 	that 	it was
unwilling 	to 	negotiate 	the 	subject 	of 	the 	impact 	of 	the 	layoffs
until 	the 	District 	sunshined both parties' proposals. 	The
District 	believed 	that 	the 	impact-of-layoff 	proposals 	were
inextricably bound 	to 	the 	ongoing 	negotiations 	for 	the 	successor
agreement 	and 	declined 	to 	sunshine 	the 	impact proposals. 	At 	the
first 	regularly 	scheduled 	governing 	board 	meeting 	following
submission of 	the 	District's 	impact-of-layoff proposals, 	the
District 	announced 	that 	it had 	received 	a proposal 	from 	CSEA
concerning 	the 	impact 	of 	the 	layoffs 	and 	advised 	that 	the
proposal 	was 	available 	to the public.
In the ensuing months, 	the 	issue of 	layoffs 	was 	raised
several 	times. 	The 	District 	requested 	that 	the Association
negotiate 	the 	impact of 	the 	layoffs, 	but 	CSEA maintained 	that
the 	impact-of-layoff 	proposals 	required 	sunshining 	and 	to
negotiate 	the 	unsunshined 	proposals 	would 	violate 	the 	Act 	and
would 	preclude 	the parties 	from 	availing 	themselves 	of 	the
statutory 	impasse 	procedures.
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DISCUSSION
PERB 	Regulation 	32615 3 sets 	forth 	the 	required 	contents 	of
an 	unfair 	practice 	charge 	and obligates 	the 	charging party 	to,
inter 	alia, 	set 	forth 	in 	its 	charge 	"a clear and concise
statement 	of 	the 	facts 	and conduct 	alleged 	to constitute 	an
unfair practice." 	PERB 	Regulation 	32630 	authorizes 	dismissal
and 	refusal 	to 	issue 	a 	complaint 	"[i]f 	the 	Board 	agent 	concludes
that 	the 	charge 	or 	the 	evidence 	is 	insufficient 	to establish 	a
prima facie case . 	. 	. 	."
The 	question before 	the 	Board 	in the 	instant 	case 	is 	whether
the 	regional 	attorney 	correctly 	determined 	that 	the 	allegations
contained 	in 	the 	District's 	unfair practice 	charge 	are
insufficient 	to 	state 	a prima 	facie 	case 	of 	unlawful 	refusal 	to
bargain. 	In dismissing 	the 	charge, 	the 	regional 	attorney
concluded that, 	inter alia, 	the District 	failed to allege 	a
violation 	of 	the Act because 	it 	failed 	to 	allege 	that 	a duty 	to
bargain 	in good 	faith ever 	arose. 	This 	conclusion 	is premised
on his 	finding 	that 	the 	impact-of-layoff 	proposals 	were 	initial
proposals within the definition of section 3547(c), 	supra, 	at
footnote 	2. 	This 	conclusion was based 	on 	the 	finding 	that 	the
impact-of-layoff 	proposals 	initiated 	negotiation 	which 	occurred
independently of 	the 	negotiations 	for 	a 	successor 	agreement, 	and
that 	resolution of 	the 	separate 	issues 	was 	in no way 	linked 	and
3pERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
UT
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followed 	separate 	timetables. 	Consequently, 	he 	concluded, 	the
District's 	obligation 	to 	sunshine 	the 	impact-of-layoff 	proposals
was 	not 	met by 	sunshining 	the 	proposals 	for 	the 	successor
agreement 	six months 	earlier. 	We 	do not 	agree.
The 	general 	subject 	matter of 	the Association's
impact-of-layoff 	proposals 	was 	encompassed by the parties'
initial 	contract proposals; 	thus, 	no 	further notice 	to the public
was 	necessary, 	as 	section 	3547 of 	the Act was 	satisfied by the
sunshining of 	the 	initial 	proposals. 	We 	find 	the Association's
alleged 	insistence 	upon 	further 	sunshining, 	when 	coupled with
the 	course 	of 	conduct 	outlined 	in 	the 	District's 	charge,
sufficient 	to 	support 	a prima 	facie 	case 	of 	a refusal 	to bargain
under 	a 	totality of 	the 	circumstances 	test.
Moreover, 	subsequent 	to 	the 	regional 	attorney's 	decision
outlined 	above, 	a 	full 	evidentiary hearing was 	conducted by a
PERB 	administrative 	law 	judge 	(ALJ) 	in conjunction with 	an unfair
practice 	charge 	filed by 	the Association 	in which 	it 	alleged,
inter 	alia, 	that 	the 	District 	failed 	to satisfy 	its bargaining
obligation by 	refusing 	to 	sunshine 	the 	identical 	impact-of-layoff
proposals 	at 	issue 	here. 	Antioch Unified 	School 	District 	(1985)
HO-U-244. 	In that 	case, 	the ALJ rendered a proposed decision
pertinent 	to 	the 	central 	issue here: 	whether 	the 	District had a
duty 	to 	sunshine 	the 	impact-of-layoff 	proposals 	and whether 	the
Association had 	a 	right 	to 	refuse 	to negotiate 	until 	the 	District
had 	done 	so. 	With 	the benefit 	of 	the 	testimonial 	and 	evidentiary
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record, 	the ALJ compared the parties' 	impact proposals 	to the
initial 	contract 	proposals 	and 	concluded:
Although 	the 	Charging 	Party 	can point 	to 	some
differences 	between 	the 	impact 	proposals 	and
the 	initial 	contract 	proposals 	within 	certain
items, 	it 	is clear 	that 	the 	subject matter
was 	identical.
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
Requiring 	the 	District 	to go 	through a 	second
series 	of public 	notice hearings 	would 	not
have 	afforded 	the 	public 	any 	greater 	notice
than 	it 	already had 	that 	the 	issues 	were
being 	negotiated.
CSEA's 	characterization 	of 	different
proposals 	on 	substantially 	the 	same 	subject
as 	different 	issues 	does 	not 	create 	an
obligation on the part of 	the 	District 	to
duplicate 	public 	notice 	efforts 	or 	to engage
in 	separate but 	simultaneous 	negotiations.
Neither 	party 	filed 	exceptions 	to 	that 	decision 	and,
consequently, 	the 	Board 	itself has 	not 	reviewed 	the 	factual 	and
legal 	conclusions 	reached by the ALJ below. 	Nonetheless, 	by
failing 	to 	take 	exception to 	that decision, 	the parties have
indicated 	their 	willingness 	to be bound by 	that 	resolution. 	The
ALJ's 	proposed decision 	involved 	the 	same parties 	as 	in the
instant 	dispute, 	involved 	the 	same 	critical 	issues 	of 	fact 	and
law, 	and 	is 	now final 	and binding as 	to 	these parties.
Accordingly, 	those 	issues 	may not be 	relitigated as 	this 	case
proceeds.
ORDER
In accordance 	with the 	foregoing, 	the 	Public 	Employment
Relations 	Board 	ORDERS 	that 	the 	general 	counsel 	issue 	a 	complaint
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against 	the 	California 	School 	Employees 	Association and 	its
Antioch 	Chapter 	#85 	and 	that 	the 	case 	thereafter be 	referred 	to
the 	chief 	administrative 	law 	judge 	for 	further proceedings 	if
necessary.
Members 	Burt 	and 	Porter 	joined 	in this 	Decision.
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