Decision 0206E – Moreno Valley Unified School District

District's implementation of last best offer following mutual declaration of impasse, but before exhaustion of impasse procedures is, absent affirmative defense, a per se unfair practice. EERA impasse procedures comtemplate a continuation of the bilateral negotiations process. Mediation is fundamentally a bargaining process; p. 5.

Elimination of 5 minutes from the preparation period was unlawful despite no specific evidence of impact. Impact on hours is apparent since teachers must accomplish the remainder of preparation outside regular hours. That the change was a small one may be a sensible position to take at negotiations table, but is no basis for exempting employer from obligation to bargain; pp. 9-10. (Overruled - see Imperial - PERB #825.) A single administrative error, immediately retracted by the District upon discovery, but which resulted in some teachers working noon-time duty on one day, does not demonstrate a breach of bargaining obliga- tion. Hearing officer's characterization of conduct as de minimus, inappropriate; p. 11.

Elimination of flexible scheduling was a matter within scope of representation where it was shown to have increased class size (an enumerated subject) for an 85 minute portion of the teaching day; pp. 7-8.

Change in District's mileage reimbursement procedure not shown to have affected a subject within scope; p. 11.

Unilateral elimination of stipends is violation; p. 11-12.

Unilateral elimination of extra-duty stipends is a violation of Act; p. 12.

Unilateral increase in class size is a violation of Act; p. 12.

Unilateral reduction in preparation time for grades 4-6 constitutes a violation; p. 12.

Failure to bargain over effects of decision to eliminate Miller-Unruh Act teaching positions and positions of assistant football coach, violation; p. 12.

Assigning teachers to supervise the playground prior to start of student day is not an unfair practice since it did not affect the hours worked nor any other enumerated subject within scope; p. 23, proposed dec.

Unlawful unilateral actions during impasse procedures [3543.5(e)] are also violations of duty to negotiate in good faith [3543.5(c)] because violations during impasse frustrate purposes of subsection (c). Mediation remains fundamentally a continuation of the negotiations process; p. 12.

District's implementation of last best offer following mutual declaration of impasse, but before exhaustion of impasse procedures is, absent affirmative defense, a per se unfair practice. EERA impasse procedures comtemplate a continuation of the bilateral negotiations process. Mediation is fundamentally a bargaining process; p. 5.

Employer's failure or refusal to bargain in good faith concurrently violates the rights of both the exclusive representative and the employees it represents; pp. 12-13. Unlawful unilateral actions during impasse procedures [3543.5(e)] are also violations of duty to negotiate in good faith [3543.5(c)] because violations during impasse frustrate purposes of subsection (c). Mediation remains fundamentally a continuation of the negotiations process; p. 12.

Proposed order requiring District to restore positions and programs which it has eliminated, is inappropriate. The decision to eliminate is managerial prerogative. Only effects of such decisions, which have impact on matters within scope, are subject to remedial order; p. 13.

Hearing officer finding of violation for unilateral increase in preparation time for certain grades improper because charging party did not allege it or raise isssue at any time; p. 10.

Financial uncertainty, resulting from passage of Proposition 13, does not enable an employer to take unilateral action on matters within scope. The employer must fulfill negotiating responsibility; pp. 17-18, proposed dec.

District's changing of proposals, resulting in deletion or reduction of proposals, during negotiations is not "per se" violation of duty to bargain in good faith; p. 25, proposed dec.

District's refusal to engage in advisory arbitration after expiration of contract not unlawful. The right to compel arbitration is creature of contract. PERB has no authority to enforce agreements; pp. 26-27, proposed dec.