Decision 1259E – Fall River Joint Unified School District
SA-CE-1712
Decision Date: April 8, 1998
Decision Type: PERB Decision
Description: Union and District appealed proposed decision finding that District retaliated against an employee, unilaterally changed transfer policy and teacher swap policy without affording Union notice and opportunity to bargain.
Disposition: Violation found. District ordered to cease and desist and restore status quo concerning teacher swap program. Union failed to show retaliation and unilateral change regarding transfer policy, so those charges were dismissed.
Perc Vol: 22
Perc Index: 29082
Decision Headnotes
504.07000 – No reason or Inconsistent Reasons Given; Shifting Justifications
Inconsistent justification found where initial reason for transfer was problems at school, then it resulted from a pilot program, which was never discussed with staff.
505.11000 – Legitimate Business Purpose/Business Necessity
In case where the record is clear that the relationship between the employee and his supervisor has deteriorated significantly, the Board accepts the District's conclusion that transfer of said employee was in the best interest of the District's educational program; said transfer would have occurred regardless of the teacher's EERA protected activity and was not motivated by the District's desire to retaliate against the teacher for that activity; pp. 23-24.
503.05000 – Transfer, Promotion, or Demotion; Work Assignments and Opportunities
To determine if action is adverse for retaliation allegaion purposes, in case of transfer of teacher from high school to elementary school at same rate of pay and benefits Board applies objective test to determine whether reasonable person would consider the action to have an adverse impact on the employee's employment; p. 18, citing Palo Verde Unified School District (1988) PERB Decision No. 689. Board has found retaliatory, involuntary transfers to be unlawful even when they were not accompanied by any loss of pay or benefits; pp. 18-19.
504.04000 – Timing of Action
Temporal proximity is found in case where involuntary transfer occurred at the end of a school year in which employee had filed six separate grievances and had been involved in numerous meetings in pursuit of those grievances; p. 19.
602.02000 – Prior Notice and Opportunity to Bargain
Adequate notice of a new teacher swap program is not clearly established by letters to teachers implementing in the program; p. 28.
602.03000 – Change In Policy
Where letter to employee references appropriate section of CBA and states that "transfer will not be effective until you have had an opportunity, if you wish, to meet with me to discuss the District's reasons for your transfer" and employee does not pursue meeting to discuss transfer, it was not established that District had breached CBA provision by failing to provide employee an opportunity to meet and discuss reasons for the transfer; p. 25. Where District acknowledges policy in CBA but through error or disagreement fails to meet its contractual obligation by incorrectly stating that employee is only qualified for one vacancy, the dispute is over the application of the CBA provision and not the underlying policy embodied in the contract, the action stating that employee only qualifies for one position is not enough to constitute a unilateral change in violation of EERA; p. 26. qualifies for one position is not enough to constitute a unilateral change in violation of EERA; p. 26.
602.05000 – Impact and Extent
Where District acknowledges policy in CBA but through error or disagreement fails to meet its contratual obligation by incorrectly stating that employee is only qualified for one vacancy, the dispute is over the application of the CBA provision and not the underlying policy embodied in the contract, the action stating that employee only qualifies for one position is not enough to constitute a unilateral change in violation of EERA; p. 26. A mandatory transfer policy affecting multiple teachers clearly has a generalized effect or continuing impact on the terms and conditions of employment of those bargaining unit members requires the District to provide the union with notice and an opportunity to bargain over that policy; p. 29.
602.06000 – Change in Past Practice
Where there is no established past practice of a policy or a similar policy, a policy which potentially affects all special education teachers with a specific mandatory transfer plan is found to be an unlawful unilateral change; p. 28.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Where District has made firm decision to implement teacher swap program, the failure of the union to request bargaining of such decision for over one year will not be considered a waiver of the right to bargain, because the request under these circumstances would be futile; p. 28, citing Archoe Union School District (1983) PERB Decision No. 360. Where there is no established past practice of a policy or a similar policy, a policy which potentially affects all special education teachers with a specific mandatory transfer plan is found to be an unlawful unilateral change; p. 28. A mandatory transfer policy affecting multiple teachers clearly has a generalized effect or continuing impact on the terms and conditions of employment of those bargaining unit members requires the District to provide the union with notice and an opportunity to bargain over that employment of those bargaining unit members requires the District to provide the union with notice and an opportunity to bargain over that
608.12000 – Good Faith; DeMinimus; Temporary Change
Where District acknowledges policy in CBA but through error or disagreement fails to meet its contractual obligation by incorrectly stating that employee is only qualified for one vacancy, the dispute is over the application of the CBA provision and not the underlying policy embodied in the contract, the action stating that employee only qualifies for one position is not enough to constitute a unilateral change in violation of EERA; p. 26.
1000.02112 – Reassignments
Transfer and reassignment policies are subjects within the scope of representation enumerated in EERA section 3543.2; p. 29.
1000.02146 – Transfer of Employee(s)
Transfer and reassignment policies are subjects within the scope of representation enumerated in EERA section 3543.2; p. 29.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Filing party gets 5 extra days under Reg. 32130(c).
1107.03000 – Remand for Further Hearing; Remand to General Counsel
In taking judicial notice, the Board, in its discretion, may exclude evidence which adds nothing of probative value to the record. Where probative value not explained by requesting party, Board declines to take judicial notice.
1201.04000 – Restoration of Benefits
To avoid disruption, the status quo is not restored (teachers transferred back to old spots) until beginning of new school year.
1202.01000 – In General
To avoid disruption, the status quo is not restored (teachers transferred back to old spots) until beginning of new school year.
1402.04000 – By Acquiescence/Conduct
Where District has made firm decision to implement teacher swap program, the failure of the union to request bargaining of such decision for over one year will not be considered a waiver of the right to bargain, because the request under these circumstances would be futile; p. 28, citing Archoe Union School District (1983) PERB Decision No. 360.