Decision 1259E – Fall River Joint Unified School District

SA-CE-1712

Decision Date: April 8, 1998

Decision Type: PERB Decision

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Perc Vol: 22
Perc Index: 29082

Decision Headnotes

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

503.00000 – EMPLOYER DISCRIMINATION; ADVERSE ACTIONS
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1000.00000 – SCOPE OF REPRESENTATION
1000.02112 – Reassignments

Transfer and reassignment policies are subjects within the scope of representation enumerated in EERA section 3543.2; p. 29.

1000.00000 – SCOPE OF REPRESENTATION
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Filing party gets 5 extra days under Reg. 32130(c).

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
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.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.