Oakland Unified School District (PERB 0989E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

Liars
Asse tos
epee:

BUILDING AND CONSTRUCTION TRADES
COUNCIL OF ALAMEDA COUNTY,

Charging Party, Case No. SF-CE-1558
OAKLAND UNIFIED SCHOOL DISTRICT, April 13, 1993

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Vv. ) PERB Decision No. 989
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Respondent . )

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Appearance: Van Bourg, Weinberg, Roger and Rosenfeld by Stewart
Weinberg, Attorney, for Building and Construction Trades Council
of Alameda County.

Before Blair, Chair; Hesse and Caffrey, Members.

DECISION AND ORDER

BLAIR, Chair: This case is before the Public Employment
Relations Board (Board) on an appeal by the Building and
Construction Trades Council of Alameda County to the Board
agent’s partial dismissal (attached hereto) of its unfair
practice charge. The charge alleged that the Oakland Unified
School District violated section 3543.5(a), (b) and (c) of the

Educational Employment Relations Act (EERA)! by failing to meet

IBERA 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
guaranteed by this chapter. For purposes of
this subdivision, "employee" includes an

and confer in good faith on the issue of an annuity program.
The Board has reviewed the Board agent's warning and
dismissal letters and, finding them to be free of prejudicial
error, adopts them as the decision of the Board itself.
The Board hereby AFFIRMS the Board agent's partial dismissal
in Case No. SF-CE - 1558.
Member Caffrey joined in this Decision.
Member Hesse's dissent begins on page 3.
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.
2

Hesse, Member, dissenting: I find a prima facie case has
been stated with respect to the alleged charge that the Oakland
Unified School District violated section 3543.5 (a) , (b) and (c)
of the Educational Employment Relations Act by failing to meet
and confer in good faith on the issue of an annuity program.
I would reverse the Board agent's partial dismissal and
remand the charge to the General Counsel for the issuance of a
complaint .
W

PETE WILSON. Governor	Govtunor
STATE OF CALIFORNIA	STATE
PUBLIC EMPLOYMENT RELATIONS BOARD
PERD
Office	San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
December 30, 1992
Stewart Weinberg
Van Bourg, Weinberg, Roger and Rosenfeld
875 Battery Street, 3rd Floor
San Francisco, California 94111
Re : 	PARTIAL DISMISSAL OF UNFAIR PRACTICE CHARGE/REFUSAL TO ISSUE
COMPLAINT
Building and Trades Construction Trades Council of Alameda
County v. Oakland Unified School District
Unfair Practice Charge No. SF-CE- 1558
Dear Mr. Weinberg:
The above-referenced unfair practice charge, filed on April 27,
1992 and amended on June 3, 1992, alleges that the Oakland
Unified School District (District) 0 unilaterally eliminated a
medical plan for employees, refused to provide information and
refused to bargain over an annuity program. This conduct is
alleged to violate Government Code sections 3543.5 (a) , (b) and
(c) of the Educational Employment Relations Act (EERA) .
I indicated to you, in my attached letter dated December 18,
1992, that certain allegations contained in the 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 these
allegations to state a prima facie case or withdrew them prior to
December 29, 1992, the allegations would be dismissed.
I have not received either an amended charge or a request for
withdrawal. Therefore, I am dismissing those allegations which
fail to state a prima facie case based on the facts and reasons
contained in my December 18, 1992 letter.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, you
may obtain a review of this dismissal of certain allegations
contained in the charge by filing an appeal to the Board itself

Partial Dismissal, etc.
SF- CE - 1558
December 30, 1992
Page 2
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.)
"servedw

Partial Dismissal, etc.
SF- CE- 1558
December 30, 1992
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
Regional Attorney
Attachment
cc: Julian Cane
Regional Attorney

STATE OF CALIFORNIA
	STATE
PuBLIC	PUBLIC EMPLOYMENT RELATIONS BOARD
PERD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 557-1350
December 18, 1992
Stewart Weinberg
Van Bourg, Weinberg, Roger and Rosenfeld
Floor	875 Battery Street, 3rd Floor
San Francisco, California 94111
Re : 	WARNING LETTER
Building and Trades Construction Trades Council of Alameda
County v. Oakland Unified School District
Unfair Practice Charge No. SF-CE-1558
Dear Mr. Weinberg:
The above-referenced unfair practice charge, filed on April 27,
1992 and amended on June 3, 1992, alleges that the Oakland Unified
School District (District) unilaterally eliminated a medical plan
info:r:mation,
for employees, refused to provide information, and refused to
bargain over an annuity program. 	This conduct is alleged to
violate Government Code sections 3543.5 (a) , 	(b) and (c) of the
Educational Employment Relations Act (EERA) .
Investigation of the charge revealed the following facts. The
Building and Trades Construction Trades Council of Alameda County
(Council) is the exclusive representative of a bargaining unit of
classified employees in the District.
The original charge alleges that the District unilaterally
eliminated the 	"Oakland Public School medical plan" 	without
negotiating with the Council and refused to provide relevant and
necessary information. 	The first amended charge repeated these
allegations 	and added 	additional allegations concerning 	the
District's failure to bargain in good faith over an annuity plan.
At the present time, 	some members of the bargaining unit
participate in a District Annuity plan. According to contractual
language provided by the District, under the current agreement
the District contributes to the Annuity Program at the rate of 8:
of the employee's salary. New District employees from outside of
the District hired after November 1983 are not entitled to
participate in the program. The Council sought to reopen the
issue of the Annuity Program during negotiations in May 1992. It
proposed to allow everyone to participate in the Annuity Program
and to have the annuity placed on the salary schedule.
The amended charge alleges that the District has engaged in
surface bargaining as evidenced by the District's "casual
disregard of the separate character of the Building Trades unit. "
PETE	PETE WILSON, Governor	
Govt>rnor

Warning Letter
SF- CE-1558
December 18, 1992
Page 2
Specifically, the Council alleges the District submitted a
proposal to the Council which was not only identical to the
proposal given to Local 790/Oakland School Employees Association,
the exclusive representative of another unit of classified
employees, but was actually addressed to Local 790 rather than	
addressed
the Council. The Council further alleges that it has an
agreement with the District providing for the right to negotiate
an annuity which Local 790 does not have. No particulars are
given with respect to this allegation. The Council also alleges
that during the course of negotiations on May 13 and 28, 1992,
the District "failed and refused to permit the [Council] to
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failed
negotiate on the issue of an annuity notwithstanding the
[District's] previous agreement to do so .
11
Finally, the
charge alleges that the District failed to respond to the
Council's request for a list of the unit members participating in
the Annuity Program.
Based on the facts stated above the allegation that the District
failed to negotiate in good faith concerning the issue of the
Annuity Program fails to state a prima facie violation of the
EERA for the reasons that follow.
Under the EERA, PERB utilizes two tests for determining whether a
public school employer has violated section 3543.5 (a) by failing
to negotiate in good faith. 	Some types of conduct standing
alone, such as a unilateral change, violate section 3543.5 (c)
under the "pre se" test. Under the "totality of the conduct"
test, PERB seeks to determine whether all of the employer's
alleged conduct evidences the lack of subjective intent to reach
a negotiated agreement. 	(Stockton Unified School District (1980)
PERB Decision No. 143.) 	"Surface bargaining" is a term used to
describe a violation under the "totality of the conduct" test.
The Council alleges that the District has engaged in a course of
conduct which demonstrates surface bargaining. The Council
alleges that the District has casually disregarded the
independent status of the Council as an exclusive representative,
separate from Local 790, by making the same proposal concerning
the Annuity Program as it did to Local 790 and by addressing the
proposal to Local 790 rather than the Council. In addition the
District failed to provide information in response to a request
for the names of all employees in the unit not participating in
the Annuity Program. The charge further alleges that the
District refused to negotiate with the Council over the annuity
issue during the bargaining sessions on May 13 and 28, 1992.
The undersigned has concluded that this allegation by itself
states "per se" violation of section 3543.5 (c) .

Warning Letter
SF - CE - 1558
December 18, 1992
Page 3
However, this latter claim fails to contain any allegations of
specific conduct on the District's part to support it. 	There are
no other allegations of "surface bargaining" conduct. 	The
undersigned concludes that these allegations are insufficient to
establish that the District lacked the requisite subjective
intent to reach an agreement over the issue of annuities.
For these reasons, the allegation that the District failed to
negotiate in good faith concerning the issue of the Annuity
Program as presently written, do not state a prima facie case.
If there are any factual inaccuracies in this letter or any
additional facts that would correct the deficiencies explained
above, please amend the charge accordingly. The amended charge
should be prepared on a standard PERB unfair practice charge form
clearly labeled Second Amended Charge, contain all the facts and
allegations you wish to make, and must 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 December 29, 1992, I shall dismiss the above-
described allegations from your charge. If you have any
questions, please call me at (415) 557-1350.
Sincerely,
DONN GINOZA
Regional Attorney