Decision 0955E – Eureka City School District

The district is required to negotiate the effects of its smoking policy upon request of the union, including any disciplinary consequences resulting from enforcement of the policy; p. 17.

To establish a unilateral change, the charging party must show that (1) the employer breached or altered the parties' written agreement or own established past practice; (2) such action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the change is not merely an isolated breach of the contract, but amounts to a change of policy (i.e., has a generalized effect or continuing impact upon bargaining unit members' terms and conditions of employment; and (4) the change in policy concerns a matter within the scope of representation; p. 8.

Once agreement is reached concerning a permissive subject and it is embodied in the collective bargaining agreement, the parties are bound by its terms until its expiration or unless modified by the parties; p. 18.

While the Board has held that a unilateral change occurs when official action has been taken, not when it becomes effective, the Board has not previously ruled on when the unilateral change of a permissive subject of bargaining occurs; p. 18. The nature of a permissive subject of bargaining permits an employer or an employee organization, prior to the expiration of an agreement, to take action which indicates that it does not intend to bargain a nonmandatory subject; p. 18.

Establishment of a smoking policy is a management prerogative constituting a direct response to the Legislature's mandate; p. 13.

The district's smoking policy fails to satisfy the Anaheim test establishing that it is not a mandatory subject of bargaining within the scope of representation; p. 14.

The district's smoking policy fails to satisfy the Anaheim test, establishing that it is not a mantatory subject of bargaining within the scope of represenation; p. 14. Establishment of a smoking policy is a management prerogative constituting a direct response to the Legislature's mandate; p. 13.

48901. The district relied on the legislative mandate in Education Code section 48901 in establishing its smoking policy; p. 12.