Oakland Unified School District * * * OVERRULED IN PART by City of San Jose (2013) PERB Decision No. 2341-M (PERB 1156E)

OVERRULED 	IN 	PART 	by 	City 	of 	San 	Jose
(2013) 	PERB 	Decision 	No. 	2341-M
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
UNITED ADMINISTRATORS 	OF 	OAKLAND
SCHOOLS,
Charging 	Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
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)
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) 	Case No. 	SF-CE-1847
PERB Decision No. 	1156
June 	12 	1996
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)
)
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Appearance; 	Berger, 	Nadel 	& Vannelli by Robert D. 	Links,
Attorney, 	for United Administrators 	of Oakland Schools.
Before Garcia, 	Johnson and Dyer, 	Members.
DECISION
GARCIA, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the United
Administrators 	of Oakland Schools 	(UAOS) 	to a Board agent's
dismissal 	and refusal 	to 	issue 	complaint 	(attached) 	of 	an unfair
practice 	charge. 	The unfair practice 	charge alleged that 	the
Oakland Unified School 	District 	(District) 	violated 	the
Educational Employment Relations Act 	(EERA) 	section 3543.5(a),
(b) 	and 	(c) 	by reneging on a tentative agreement.1
EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
EERA section 3543.5 provides, 	in 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.

After reviewing 	the 	record, 	including 	the 	original 	and amended
unfair practice 	charge, 	the warning and dismissal 	letters, 	and
UAOS's 	appeal, 	the 	Board hereby affirms 	the dismissal 	and refusal
to 	issue 	complaint 	consistent 	with 	the 	following discussion.
DISCUSSION
On appeal, 	UAOS asserts 	that 	its allegation in the unfair
practice 	charge 	that 	the District 	acted with an 	improper motive
is 	sufficient 	to establish a prima 	facie 	case. 	The Board
disagrees. 	We 	find 	that 	the 	Board agent 	correctly applied 	the
totality of 	conduct 	test, 	absent an allegation of 	a per se
violation. 	We 	also 	affirm the 	Board agent's 	conclusion and hold
that 	the 	allegation 	of 	a 	single 	indicia 	of bad 	faith bargaining
(in this 	case, 	the allegation of 	reneging on a tentative
agreement) 	did not 	establish a prima 	facie 	case 	of 	bad 	faith
bargaining.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-1847 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
(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
PERO
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
February 22, 	1996
Robert D. Links, Esq.
Berger, Nadel & Vannelli
One California Street, 	Suite 2750
San Francisco, 	California 94111
Re: 	Unfair Practice Charge No. 	SF-CE-1847, 	United Administrators
of Oakland Schools v. 	Oakland Unified School District
DISMISSAL AND REFUSAL TO ISSUE COMPLAINT
Dear Mr. Links:
The above-referenced charge alleges 	the Oakland Unified School
District 	(District) 	violated Educational 	Employment Relations Act
(EERA or Act) 	section 3543.5(a), 	(b) 	and 	(c) by reneging on a
tentative agreement.
I 	indicated to you, 	in my attached letter dated February 13,
1996, 	that the above-referenced charge did not state a prima
facie case.1 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 23, 199 6, the charge would be dismissed.
The 	first amended charge provides additional 	information
regarding the timing of 	the District's 	repudiation of 	the
tentative agreement. 	On October 9, 	1995, 	the Association's
executive council 	ratified the tentative agreement. 	On October
11, 	1995, 	the Association's members ratified the tentative
agreement. 	The amended charge alleges Gates, 	the District's
representative, 	called to renege on the tentative agreement after
the Association ratified the tentative agreement, 	approximately
October 13, 1995.
1Although listed correctly in the heading, 	a footnote 	in the
February 13, 	1996 	letter incorrectly indicated the District's
charge against 	the Association as Unfair Practice Charge No.
SF-CE-1847. • The District's charge against the Association should
have been listed as SF-CO-500.

SF-CE-1847
February 22, 	1996
Page 2
As noted in the February 13, 	1995, 	letter, 	reneging on a
tentative agreement is one indicia of bad faith bargaining.
However, 	that letter also indicated one indicia alone is
insufficient 	to establish bad faith under the totality of 	conduct
test. 	In a letter accompanying the amended charge, 	you described
the amended charge as follows:
The basic facts are the same, 	but the
amendment focuses on the District's motive,
which the Union contends was to discredit 	the
Union for the purpose of enabling the
District 	to escape liability on a contractual
commitment and reopen negotiation that had
already 	concluded.
As this description suggests, 	the amended charge does not provide
any new factual allegations regarding the District's 	conduct.
For this reason, 	in addition to the reasons provided in the
February 13, 	1996, 	letter, 	the charge is 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:
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).)

SF-CE-1847
February 22, 	1996
Page 3
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.)
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 Attorney
Attachment
cc: 	Walter L. Rowson, Executive Director
United Administrators 	of Oakland Schools

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
February 13, 	1996
Walter L. Rowson,
Executive Director
United Administrators
of Oakland Schools
Post Office Box 21275
Oakland, 	California 94620
Re: 	Unfair Practice Charge No. 	SF-CE-1847, 	United Administrators
of Oakland Schools v. 	Oakland Unified School District
WARNING LETTER
Dear Mr. Rowson:
The above-referenced charge alleges 	the Oakland Unified School
District 	(District) 	violated Educational Employment Relations Act
(EERA or Act) 	section 3543.5(a), 	(b) 	and 	(c) 	by reneging on a
tentative agreement. 	The District also filed an unfair practice
charge against 	the United Administrators 	of Oakland Schools
(Association) 	regarding the same facts.1
The Association and the District were negotiating for a three-
year contract. 	On October 6, 	1995, 	the parties reached a final
tentative agreement. 	The tentative agreement stated in pertinent
part,
Unit members 	shall be granted a salary
increase of 	3.5 percent effective January 1,
1996.
The Association alleges Clifford Gates, 	a District
representative, 	later called Walter Rowson, 	Executive Director of
the Association, 	and explained the District 	could not meet 	the
terms of the tentative agreement.
Essentially, 	the dispute concerns two varying interpretations of
the above-quoted language. 	The Association contends under the
terms of the tentative agreement the unit members should receive
a 3.5 percent 	increase 	in both the 1995-1996 	school year and the
1996-1997 school year. 	In a October 13, 	1995 letter from Gates
to Rowson, 	the District explained its position as follows,
1Both 	parties 	filed their respective charges on November 1,
1995. 	The District's 	charge against the Association is Unfair
Practice Charge No. SF-CE-1847.

SF-CE-1847
February 13, 	1996
Page 2
You will 	remember that when your counter
proposal 	of 	3.5 percent COLA effective
January 1, 	1996, 	was discussed across the
table, 	your explanation was that it
represented the 	identical 	offer of the
District 	- 	merely delayed for six months.
I explained that discussion to Mr. 	Hal
[Assistant Superintendent] 	and further
advised him that 	for fiscal year 1996 UAOS
wages 	(insofar as this portion of the T.A. 	is
concerned) 	would be identical 	to our 1.75
percent offer. 	Therefore, 	administratively
the District would adjust 	the COLA for fiscal
year 1995-96 	to conform with that
understanding 	(i.e., 	1995-96 COLA will result
in a 	1.75 percent annual 	COLA for the fiscal
year 1996-97): 	example: 3.5 percent for six
months 	equals 	1.75 percent 	for the entire
fiscal year 1996-97.
On October 10, 	1995, 	the parties met to discuss this issue, 	but
did not resolve their differences.
The totality of 	conduct 	test 	is generally applied to determine
whether an employer engaged in good faith bargaining. 	This 	test
examines 	the entire 	course of negotiations 	to determine whether
the employer had the 	requisite 	intention of 	reaching an
agreement. 	(Pajaro Unified School District 	(1978) 	PERB Decision
No. 	51.) 	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.2 As
conduct alleged in the charge does not 	fall 	into one of the per
se categories, 	the totality of conduct test will apply.
Under the totality of conduct test, 	the Board considers several
factors as indicative of bad faith bargaining, 	including: 	(1)
frequent turnover in negotiators, 	(2) 	negotiator's lack of
authority, 	(3) 	lack of preparation for bargaining sessions, 	(4)
2The per se categories include: 	(1) 	an outright refusal to
bargain; 	(2) 	refusal to provide information necessary and
relevant to the employee organization's 	duty to represent
bargaining unit employees; 	(3) 	insistence to impasse on non-
mandatory subject of bargaining; 	(4) 	bypassing the employee
organization's negotiators; and 	(5) 	implementation of a
unilateral 	change 	in working conditions without notice and an
opportunity to bargain. 	(South Bay Union School District 	(1990)
PERB Decision No. 	815.)

SF-CE-1847
February 13, 	1996
Page 3
missing, 	delaying of cancelling bargaining sessions, 	(5)
insistence on ground rules before negotiating substantive issues,
(6) 	taking an inflexible position, 	(7) 	regressive bargaining
proposals, 	(8) 	predictably unacceptable counterproposals, 	and 	(9)
repudiation of a tentative agreement. 	However, 	the presence of
one indicia alone is 	insufficient to establish bad faith.
Applying the totality of conduct test, 	the facts of this case
fail 	to demonstrate the District lacked the subjective intent to
reach an agreement. 	The charge's only allegation is that the
District reneged on the parties' 	tentative agreement. 	Reneging
on a tentative agreement 	is an indicia of bad faith. 	(Alhambra
City and High School Districts 	(1986) 	PERB Decision No. 	560.)
However, 	as noted above, 	the presence of one indicia alone is
insufficient to establish bad faith. 	Accordingly the charge
fails 	to present a prima facie violation.
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 23. 	1996. 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-7508.
Sincerely,
Tammy L. 	Samsel
Regional Attorney