Decision 1092E – Marin Community College District

SF-CE-1524

Decision Date: March 21, 1995

Decision Type: PERB Decision

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Perc Vol: 19
Perc Index: 26070

Decision Headnotes

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

Petition to file informational brief denied and briefs not considered where no newly discovered law or other matter that would affect the outcome of this decision was raised.

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

The Board affirmed ALJ's conclusion that repayment of salaries earned by managers or reduction in salaries would not effectuate the purposes of EERA; p. 10.

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

Although it is well established that while a zipper clause may relieve the employer from entertaining union proposals during the life of the contract, it does not cede to the employer the right to make unilateral changes in negotiable matters not covered by the contract (cases omitted); p. 83, proposed dec.

102.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION
102.01000 – In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts

Conduct complained of by the Union was not arguably prohibited by the language of the agreement between the parties and therefore deferral was not proper; p. 5.

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

Although it is well established that while a zipper clause may relieve the employer from entertaining union proposals during the life of the contract, it does not cede to the employer the right to make unilateral changes in negotiable matters not covered by the contract (cases omitted); p. 83, proposed dec. No genuine impasse where negotiations have stalled as a result of bad faith negotiations; p. 85, proposed dec.

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

Changes in practice of placing former managers on the certificated salary schedule triggers obligation to bargain when the change became apparent to the exclusive representative; p. 84, proposed dec. An increase of 2-3 courses taught does not constitute sufficient change in the status quo to require negotiations; p. 92, proposed dec.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.01000 – In General

Evidence surrounding the step placement of the former managers at issue here supports the District's argument that no unlawful bypass of the Union occurred; p. 88, proposed dec.

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

Although former managers have retreat rights under the Education Code and were assigned when they were in a management status, and factors arguably implicate the District's managerial prerogatives and Education Code suppression issues, neither factor relieves the District of its obligation to negotiate; p. 54, proposed dec.

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

Although creation of a practice under which the step placements were made breached the obligation to negotiate under EERA, it does not follow automatically that the step placements of the former managers constituted independent violations of the Act; p. 88, proposed dec.

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

Actual notice to the union was not given by delivery of Board agendas listing salary schedule to the union; pp. 73-75, proposed dec. Proper notice requires an affirmative obligation on the part of the employer to tell the union of proposed changes in negotiable subjects; p. 78, proposed dec. Although it is well established that while a zipper clause may relieve the employer from entertaining union proposals during the life of the contract, it does not cede to the employer the right to make unilateral changes in negotiable matters not covered by the contract (cases omitted); p. 83, proposed dec.

806.00000 – UNION UNFAIR PRACTICES; DEFENSES
806.06000 – Impasse Broken-Duty to Bargain

No genuine impasse where negotiations have stalled as a result of bad faith negotiations; p. 85, proposed dec.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.01000 – In General

No genuine impasse where negotiations have stalled as a result of bad faith negotiations; p. 85, proposed dec.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

Negotiating about salary step placement of former managers was found not to impact the District's ability to run its school and thus did not violate the third prong of the Anaheim test; p. 8.

1000.00000 – SCOPE OF REPRESENTATION
1000.02126 – Salary Placement

Placement of managers on the salary schedule is a subject that was within the scope of representation; p. 8. Negotiating about salary step placement of former managers was found not to impact the District's ability to run its school and thus did not violate the third prong of the Anaheim test; p. 8.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

Actual notice of the union was not given by delivery of Board agendas listing salary schedule to the union; pp. 73-75, proposed dec. Proper notice requires an affirmative obligation on the part of the employer to tell the union of proposed changes in negotiable subjects; p. 78, proposed dec.

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.01000 – Pre-Arbitration

Conduct complained of by the union was not arguably prohibited by the language of the agreement between the parties and therefore deferral was not proper; p. 5.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

Deference given to the ALJ determining the determination of a witness due credibility determinations being based on first hand observation of the witness; p. 9.