Decision 0337E – Kern Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

LA-CE-1300

Decision Date: August 19, 1983

Decision Type: PERB Decision

* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

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Perc Vol: 7
Perc Index: 14229

Decision Headnotes

1406.00000 – GENERAL LEGAL PRINCIPLES; MOOTNESS
1406.00000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Refusal to bargain effects of layoff not rendered moot by parties' negotiations on reopener provisions.

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

Board's adoption of resolution eliminating services not unlawful per se. Nor is decision to lay off eight persons. Method of layoff identification and notice given is non-negotiable; p. 12. Distribution of layoff notices is not refusal to negotiate; p. 12.

1000.00000 – SCOPE OF REPRESENTATION
1000.02128 – Seniority

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Seniority governed by Education Code 87743. Absent additional evidence, employer's distribution of mandated layoff notice does not constitute refusal to negotiate.

1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.02000 – Cessation of Unfair Practices; Mootness; Isolated Practices

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Refusal to bargain effects of layoff not rendered moot by parties negotiations on reopener provisions.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855, where the Board clarified the shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. * * *

Full restoration of the status quo inappropriate where unilateral act was layoff and employer has right to make decision to layoff but failed to negotiate effects of such decision.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.02000 – Agreement Between. the Parties

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Subsequent signing of an agreement does not moot a subsection 3542.5(c) charge; p. 3.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855, where the Board clarified the shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. * * *

Full restoration of the status quo inappropriate where unilateral act was lay off and employer has right to make decision to lay off but failed to negotiate effects of such decision.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Contract language examined and found not to absolve obligation to negotiate effects of lay off.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Contract language examined and found not to absolve obligation to negotiate effects of layoff.

1000.00000 – SCOPE OF REPRESENTATION
1000.02040 – Elimination of Positions

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Board's adoption of resolution eliminating services not unlawful per se. Nor is decision to lay off eight persons.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

No evidence of past practice to justify employer's refusal to bargain effects of layoff; p. 13.

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.02000 – Education Code Sections Considered by PERB (By Number)

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Education Code 87743 covers seniority and layoff notice. Absent additional evidence, Board will not find that employer's distribution of mandated layoff notices constitutes a refusal to negotiate.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *
Employer's refusal to negotiate the effects of layoff constitutes a violation of Act; p. 13.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *
Nature of specific demand to negotiate discussed. (Does not require specific proposal from exclusive representative.)

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Seniority governed by Education Code 87743.

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.03000 – Education Code Sections Considered by PERB (By Subject)

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Reduction of services or positions. Absent additional evidence, Board will not find that employer's distribution of mandate layoff notices pursuant to Ed. Code 87743 constitutes a refusal to negotiate.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Nature of specific demand to negotiate discussed. (Does not require specific proposal from exclusive representative.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Decision to lay off employees is outside of scope of representation.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

* * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Employer must give notice and opportunity to bargain effects of lay off; p. 13.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.01000 – In General

* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855, where the Board clarified the shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. * * *

Full restoration of the status quo inappropriate where unilateral act was lay off and employer has right to make decision to lay off but failed to negotiate effects of such decision.