Decision 0834E – Chula Vista City School District

LA-CE-2038

Decision Date: August 16, 1990

Decision Type: PERB Decision

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Perc Vol: 14
Perc Index: 21162

Decision Headnotes

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech

Statements by school administrators regarding the progress of negotiations, including some statements which could be construed as putting the blame for salary situation on the association, were not threats of force or promise of benefit and therefore constituted protected free speech. Case contains thorough analysis of employer free speech defense; pp. 5-14.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.01000 – In General

Statements by school administrators regarding the progress of negotiations, including some statements which could be construed as putting the blame for salary situation on the association, constituted protected free speech. Case contains thorough analysis of employer free speech defense; pp. 5-14.

404.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; STATEMENTS, MEETINGS, NOTICES, AND LEAFLETS
404.02000 – Statements

Statements by school administrators regarding the progress of negotiations, including some statements which could be construed as putting the blame for salary situation on the association, constituted protected free speech. Case contains thorough analysis of employer free speech defense; pp. 5-14.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.13000 – Rights Pertaining to Exclusivity (See also 603)

Exclusive representative has right to grieve in its own name, take a grievance to arbitration without the involved employee's permission and file unit modification petitions but no right to be physically present at all grievance stages.

1000.00000 – SCOPE OF REPRESENTATION
1000.02169 – Unit Configuration

A proposal dealing with the composition of the bargaining unit is a nonmandatory subject of bargaining; pp. 38, 41.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

Attorneys' and related cost are awarded only if party's case is without any arguable merit, frivolous, dilatory or pursued in bad faith. Mere fact that association belatedly withdrew or amended charges is insufficient to meet the standard; pp. 73-74.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.16000 – Failure to Seek Clarification of Proposal

Jefferson No. 133 and Healdsburg No. 375 hold that where an ambiguous proposal is arguably negotiable, a party must seek clarification of the proposals negotiability.

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

Party may bargain over a permissive and nonmandatory subject of bargaining without waiving the right thereafter to take the position the subject is nonmandatory.

1000.00000 – SCOPE OF REPRESENTATION
1000.02057 – Grievance Procedure

Exclusive representative's right to file grievances in its own name is nonmandatory subject of bargaining; exclusive representative's right to take grievance to arbitration without consent of individual grievant is nonmandatory subject of bargaining; pp. 28, 35.

1000.00000 – SCOPE OF REPRESENTATION
1000.02167 – Exclusive Representative’s Right to File Grievances

Exclusive representative's right to file grievances in its own name is nonmandatory subject of bargaining; p. 28.

1000.00000 – SCOPE OF REPRESENTATION
1000.02165 – Statutory Rights

Exclusive representative does not have right to be present at grievance meetings where employees do not seek representation by the representative - thus it is not nonmandatory subject of bargaining. Exclusive representative's right to file grievances in its own name is a statutory right and therefore nonmandatory subject of bargaining; pp. 23, 28. Exclusive representative's right to take a grievance to arbitration without the consent of the individual grievant is a statutory right and is therefore a nonmandatory subject of bargaining; pp. 33, 35.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

District ordered to inform association about information available and provide information requested and bargain in good faith over costs if necessary. District ordered to accept and process grievances from Association and recognize association's right to seek unit modifications.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

Issue of whether association can waive a statutory right is specifically not decided.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.04000 – By Acquiescence/Conduct

Party may bargain over a permissive and nonmandatory subject of bargaining without waiving the right thereafter to take the position the subject is nonmandatory.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

General summary of the law regarding refusal to provide information; pp. 50-53. District's failure to respond to request is equivalent to a flat refusal. Unjustifiable delay equals flat refusal. Determination of whether information is relevant is made under "a liberal 'discovery-type standard'."

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.03000 – Form of Information Provided; Costs

Fact that information may not have been conveniently available in a form that would accommodate both the interest of the association and the district does not automatically render association's request unduly burdensome nor relieve district of duty to provide it; p. 56. Employer may not simply present information in any form which it considers adequate but which is, nonetheless, unsuitable for informed consideration by the union; p. 56. Leave requests were not type of confidential employee records that would be exempt from disclosure. District could have accommodated association's need by deleting identifying information from request forms before giving it to association or by supplying information in form that would have made it equally useful to association; p. 55. Fact that district had only an inaccurate copy of contract requested by association did not excuse district's refusal to provide the Fact that district had only an inaccurate copy of contract requested by association did not excuse district's refusal to provide the information it sought; p. 69.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.04000 – Confidentiality; Privacy

Leave requests were not type of confidential employee records that would be exempt from disclosure. District could have accommodated association's need by deleting identifying information from request forms before giving to association or supplying information in form that would have made it equally useful to association; p. 55.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

Information pertaining to mandatory subjects of bargaining is presumptively relevant. Here, subject of "leave" is a mandatory subject of bargaining and association was therefore entitled to information sought; p. 54. Where association demands information concerning nonunit employees, bargaining representatives must demonstrate the "probable or potential relevance" of the information sought to its representation of unit employees. Here, association sought and was entitled to information regarding long-term substitutes; pp. 59-60. Association held entitled to information regarding health insurance; p. 67.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

Insistence to impasse that employee organization waive right to grieve in own name held per se violation; p. 28. Objection to a nonmandatory proposal does not need to include any specific magic words. PERB must look to the history of bargaining, substance of the proposals, and the contents of the declarations of impasse to determine whether a party can be considered to have "insisted to impasse" on a particular proposal. Application of Anaheim test to grievance proposal unnecessary because district is not insisting to impasse on a term or condition of employment but rather that association waive a statutory right; pp. 22-23. Insistence to impasse that employee organization waive right to take grievances to arbitration without concurrence of named grievant held Insistence to impasse that employee organization waive right to take grievances to arbitration without concurrence of named grievant held language that provides that parties waive right to seek unit modification or clarification during the term of the contract held per se violation; p. 41. No per se violation found where parties bargain over nonmandatory subject of bargaining and party charging insistence to impasse fails to take firm position that proposal being bargained not be included in the contract; p. 44. While parties may engage in negotiations over nonmandatory subjects of bargaining, when one party subsequently decides to take position that nonmandatory proposal not be included in contract, that party must express opposition to further negotiation on proposal as prerequisite to charging other party with bargaining to impasse on nonmandatory subject. Here, association did put district on notice regarding its opposition to further neogitation on nonmandatory subjects of subject. Here, association did put district on notice regarding its opposition to further neogitation on nonmandatory subjects of

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General

Where failure to provide information and insistence to impasse on nonmandatory subjects of bargaining are per se violations of 3543.5(c), same conduct does not justify conclusion that the district did not enter into negotiations with bona fide intent to reach agreement; p. 73.