Decision 0373E – Mt. Diablo Unified School District  * * * REVERSED IN PART BY Mt. Diablo Unified School District (1984) PERB Decision No. 373b

SF-CE-452, 455

Decision Date: December 30, 1983

Decision Type: PERB Decision

 * * * REVERSED IN PART BY Mt. Diablo Unified School District (1984) PERB Decision No. 373b * * *

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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

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

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

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.

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

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)
602.05000 – Impact and Extent

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.

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

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

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.

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

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.

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

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

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

Counselor workloads negotiable; p. 47. (See also Dec. 373b, p. 19) School nurse caseload nonnegotiable because no evidence nurses had previously worked on caseload system. Therefore 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
1000.02130 – Severance Pay

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

1000.00000 – SCOPE OF REPRESENTATION
1000.02040 – Elimination of Positions

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

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

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 decision to layoff; p. 24.

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

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 decision to layoff; p. 24.

No items found

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 attemps 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. discussion of supersession generally.); pp. 27-36.

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

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.

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

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

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

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

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

Since decision to layoff 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

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 occurence 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

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

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

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

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