EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS – Other

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The District’s parental notification policy violates the California Constitution and multiple state laws, including the SAFETY Act, by singling out transgender and gender nonconforming students for different, adverse treatment that puts them at risk of harm. Thus, compliance with the parental notification policy would require certificated employees to engage in conduct that the State of California has said violates state law. Because “illegal subjects involve matters prohibited by external law or public policy,” they “may not be negotiated or included in a collective bargaining agreement, even if the parties were to agree to do so.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 44.) Given that the parental notification policy is illegal, any proposals the District could make regarding implementation would be illegal. Taking such an illegal position is a per se violation of the duty to bargain in good faith. (City of San Jose, supra, PERB Decision No. 2341-M, pp. 43-44; Berkeley Unified School District (2012) PERB Decision No. 2268, pp. 9-15.) In these unusual circumstances, therefore, even though the District was willing to bargain effects, it premised its offer to bargain on an illegal position that constituted bad faith bargaining. By the same token, RTPA lawfully refused to bargain unless the District first rescinded its illegal policy. In other words, it is impossible to bargain in good faith over the effects of an unlawful policy. For these reasons, we find in the alternative that the District violated its obligation to bargain in good faith over negotiable effects.