Decision 1187E – Hacienda La Puente Unified School District

An employer who makes a preimpasse unilateral change in an established, negotiable practice violates its duty to meet and negotiate in good faith (citation). Such unilateral changes are a failure per se of the duty to negotiate in good faith (citations). An established negotiable practice may be reflected in a collective bargaining agreement (citation) or where the agreement is vague or ambiguous, it may be determined by an examination of bargaining history (citation) or the past practice (citations); p. 12, proposed dec. In order to establish a prima facie case of unlawful unilateral change in or repudiation of, a contract or past practice, the charging party must show: (1) that the respondent has breached or otherwise altered the parties' written agreement or its own established past practice; and (2) that the breach constituted a change of policy having a the parties' written agreement or its own established past practice; and (2) that the breach constituted a change of policy having a proposed dec.

Past practice is established through a course of conduct or as a way of doing things over an extended period of time (citations); p. 13, proposed dec.

An unalleged violation can be considered only if it is intimately related to the subject matter of the complaint, is part of the same course of conduct, has been fully litigated, and the parties have had the opportunity to examine and be cross-examined on the issued (Santa Clara Unified School District (1979) PERB Decision No. 104) (Santa Clara USD); p. 3. The failure to meet any of these conditions prevents the Board from considering an unalleged violation (Tahoe-Truckee Unified School District (1988) PERB Decision No. 668; p. 3. The purpose of the Santa Clara USD standard is to insure that the Board decides a case based on an unalleged theory only when it is clear that the parties have been afforded their due process rights. The parties must have adequate notice and opportunity to litigate the issue, including the respondent's opportunity to defend against the The parties must have adequate notice and opportunity to litigate the issue, including the respondent's opportunity to defend against the result; pp. 3-4; where there is virtually no reference to the theory prior to the ALJ's proposed decision, the parties did not have an opportunity to fully litigate the theory.