Decision 0373E – Mt. Diablo Unified School District  * * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

SF-CE-452, 455

Decision Date: December 30, 1983

Decision Type: PERB Decision

* * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

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Perc Vol: 8
Perc Index: 15017

Decision Headnotes

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 Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

The decision to lay off certificated employees is a managerial prerogative, but management is obligated to negotiate the effects of its decision; p. 20.

1000.00000 – SCOPE OF REPRESENTATION
1000.02130 – Severance Pay

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Severance pay negotiable as it logically and reasonably relates to wages and hours; p. 41.

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Counselor workloads negotiable; p. 47. (See also Decision No. 373b, p. 19) School nurse caseload nonnegotiable because no evidence nurses had previously worked on caseload system. Therefore, it could not be concluded that unilateral change in caseload of nurses would be reasonably foreseeable result of decision to reduce nursing staff; p. 50.

1000.00000 – SCOPE OF REPRESENTATION
1000.02146 – Transfer of Employee(s)

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Transfer proposal found nonnegotiable because existing contract already contained transfer language; p. 45.

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Decision to lay off certificated employees is a managerial prerogative but management is obligated to negotiate the effects of its decision; p. 20. As association proposal concerning same-date-of-hire criteria found outside scope of representation, district’s refusal to negotiate that portion of layoff proposal was not a violation of EERA; p. 45.

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 Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Nothing in the Education Code sections 44949 and 44955 creates an inflexible standard precluding all negotiations concerning the effects of layoffs; p. 33. These provisions create minimal statutory guarantees which do not conflict with attempts by an employee organization to gain additional rights through negotiations process; p. 33. Board found that comprehensive layoff notice and time provisions of Education Code superseded right to negotiate effects of layoff; pp. 33-36. District’s failure to negotiate issues related to implementation of layoff was not excused by operational necessity; p. 36. Section 44955 does create inflexible standard which supersedes the right of employees to negotiate the criteria for determining order of layoff of employees with same date of hire; p. 44 Good discussion of supersession generally; p. 27-36. Good discussion of supersession generally; p. 27-36.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

* * * REVERSED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b. * * *
As association proposal concerning same-date-of-hire criteria found outside scope of representation, district’s refusal to negotiate that portion of layoff proposal was not a violation of EERA; p. 45.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

* * * REVERSED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b. * * *
Test for determining negotiability of proposals regarding impact of layoff is whether, at the time the request to negotiate is made, the decision to lay off would have a reasonably foreseeable adverse impact on employees’ working conditions and whether the proposal is intended to address employee concerns generated by that anticipated impact; p. 51.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855* * *

While District was permitted to request that Association develop detailed proposals, by the time that District responded to initial request to negotiate it had already taken unilateral action to implement the layoff, thus rendering any development of detailed proposals on issues related to the implementation of layoff futile. Unilateral conduct in the face of demand to negotiate was refusal to bargain, absent valid defense; pp. 22-23.

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 Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

An employer is obligated to provide the exclusive representative with notice and a reasonable opportunity to bargain the effects of the layoff once the employer reaches a firm decision to lay off; pp. 20, 25-27.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Emergency Exception

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Fact that Education Code contains certain deadlines regarding layoff notices did not constitute “business necessity” justifying a failure to negotiate implementation of layoff; p. 36.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b. * * *
* * * 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. * * *

Since layoff decision was nonnegotiable, reinstatement of laid off employees found inappropriate; p. 70.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b. * * *
* * * 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. * * *

District ordered to pay employee laid off sum equal to wages at time laid off from first day Association requests to bargain following issuance of this decision until occurrence of earliest of four events specified; p. 71

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

The Association’s general request to negotiate the “implementation and effects” of the District’s layoff decision was a legally sufficient initial request to negotiate; pp. 21-22.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.11000 – Request for Oral Argument

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Board denied request for oral argument given the voluminous record and ample briefs of the parties; p. 67.

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 Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Although Board will not readily infer waiver of right to negotiate, merely because events arise which were not in the contemplation of the parties during prior negotiations does not mean every contract term can be renegotiated; p. 47.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

* * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB Decision No. 373b, where the Board held that it can address unalleged violations of unilateral changes to counselors’ and librarians’ workloads. * * ** * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

No backpay ordered for unalleged violation; p. 68-69. (Note: Board’s discussion of this issue is superseded by Decision No. 373b.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Although Board will ordinarily not review portions of decision not specifically excepted to, where issues raised are of important legal significance and the record is complete, Board may review them sua sponte to avoid serious errors of law; p. 39-40.

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Nothing in the Education Code sections 44949 and 44955 creates an inflexible standard precluding all negotiations concerning the effects of layoffs; p. 33. These provisions create minimal statutory guarantees which do not conflict with attempts by an employee organization to gain additional rights through negotiations process; p. 33. Board found that comprehensive layoff notice and timing provisions of Education Code superseded right to negotiate effects of layoff; pp. 33-36. District’s failure to negotiate issues related to implementation of layoff was not excused by operational necessity; p. 36. Section 44955 does create inflexible standard which supersedes the right of employees to negotiate the criteria for determining order of layoff of employees with same date of hire; p. 44. (Good discussion of supersession generally.); pp. 27-36.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.09000 – Failure to Treat Bargaining Obligation Seriously

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Violation found where meetings were little more than a forum for communicating an outright refusal to negotiate. Based on the totality of the circumstances, District did not, by meeting with the Association, discharge its duty to negotiate in good faith with the Association concerning effects of its layoff decision; p. 24.

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 Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Violation found where meetings were little more than a forum for communicating an outright refusal to negotiate. Based on the totality of the circumstances, District did not, by meeting with the Association, discharge its duty to negotiate in good faith with the Association concerning effects of its layoff decision; p. 24.

1000.00000 – SCOPE OF REPRESENTATION
1000.02040 – Elimination of Positions

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Proposal to maintain resource teacher staffing level found nonnegotiable; p. 49.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

* * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

Per PERB Regulation 32315, Board denied request for oral argument given the voluminous record and ample briefs of the parties; p. 67.