Decision 1270E – San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652

LA-CE-3655; LA-CE-3682

Decision Date: June 22, 1998

Decision Type: PERB Decision

 * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652 * * *

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Perc Vol: 22
Perc Index: 29113

Decision Headnotes

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

* * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652, where the Board held there is no categorical rule barring a request for information related to a noncontractual forum; information relevant to challenging discipline of a bargaining unit member is presumptively relevant. * * *

Certain information is presumed to be relevant, but if the employer questions the relevance, the union must give the employer an explanation. Once relevant information is requested, the employer must provide it or adequately set forth the reasons why it is unable to comply. The employer may be excused if compliance would be burdensome, but the burden of proving this defense is on the employer; pp. 69-70, proposed dec. Information immediately pertaining to mandatory subjects of bargaining is presumptively relevant. Other information is not presumed relevant, and the requestor must show the information is relevant and necessary to its representational duties; p. 70; Information related to extra-contractual forum is not presumed relevant and burden is on requestor. The NLRB has held unit members' home addresses are presumptively requestor. The NLRB has held unit members' home addresses are presumptively information. The burden thus shifts to the District to justify its refusal to provide over 400 such addresses in April 1996, when CSEA requested them; p. 78, proposed decision. The employee addresses CSEA requested in April 1996 were relevant information and the District established no defense for its refusal to provide over 400 of the requested addresses; p. 79, proposed decision.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.03000 – Form of Information Provided; Costs

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Certain information is presumed to be relevant, but if the employer questions the relevance, the union must give the employer an explanation. Once relevant information is requested, the employer must provide it or adequately set forth the reasons why it is unable to comply. The employer may be excused if compliance would be burdensome, but the burden of proving this defense is on the employer; pp. 69-70, proposed decision.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.05000 – Dilatory or Evasive Tactics

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Walking out of negotiations is evidence of surface bargaining.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Conditioning agreement on economic matters upon agreement on noneconomic matters is evidence of surface bargaining.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Employer's failure to require sick leave verification consistently in the past does not preclude it from doing so in the future; p. 54, proposed decision.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Contract language that the District has the right to "maintain the efficiency of District operations" is generally-worded management rights clause, and thus will not be construed as a waiver; p. 57, proposed dec. Waiver may also be established by demonstrative behavior, waiving a reasonable opportunity to negotiate over a decision not already firmly made by the employer. Such a waiver must be an intentional relinquishment of statutory rights. An employee organization does not waive its rights to negotiate by failing to request negotiations after a firm decision has already been made by the employer; p. 58, proposed dec. Employer's failure to require sick leave verification consistently in the past does not preclude it from doing so in the future; p. 54, proposed dec. the past does not preclude it from doing so in the future; p. 54, proposed dec. Speculation will not support the finding of a waiver.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

With respect to the allegation that the District refused to negotiate with CSEA in May 1996, first, the grievance machinery of the Agreement covered the dispute raised by this allegation and culminated in binding arbitration. Second, the conduct complained of in this allegation was arguably prohibited by Article XXIV, Section 3, which required the parties to commence meeting and negotiating no later than June 1. This allegation, to the extent it alleges an independent EERA violation, must therefore be dismissed; p. 80, proposed decision.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.05000 – Grievances

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

A threat to retaliate against an employee organization for protected activity interferes with the organization's statutory rights. Filing an unfair practice charge or a grievance is protected activity. Employee organizations as well as employees have statutory rights to file unfair practice charges and grievances; p. 72, proposed decision.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.09000 – Participation in Board Process

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

A threat to retaliate against an employee organization for protected activity interferes with the organization's statutory rights. Filing an unfair practice charge or a grievance is protected activity. Employee organizations as well as employees have statutory rights to file unfair practice charges and grievances; p. 72, proposed decision.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

A threat to retaliate against an employee organization for protected activity interferes with the organization's statutory rights. Filing an unfair practice charge or a grievance is protected activity. Employees organizations as well as employees have statutory rights to file unfair practice charges and grievances; p. 72, proposed decision.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.01000 – In General; Prima Facie Case.

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

A threat to retaliate against an employee organization for protected activity interferes with the organization's statutory rights. Filing an unfair practice charge or a grievance is protected activity. Employee organizations as well as employees have statutory rights to file unfair practice charges and grievances; p. 72, proposed decision.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.02000 – Discrimination Favoring Organization Over Another

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

EERA section 3543.5(d) makes it unlawful for an employer to "in any way encourage employees to join any organization in preference to another." The test is "whether the employer's conduct tends to influence that choice (between employee organizations) or provide stimulus in one direction or the other"; No violation where the employer tells a union representative to "get the hell out" of a meeting; p. 63, proposed dec. Employer statement of support for a decertifying union not a violation if only made to nonemployee business agent for incumbent union.

408.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS
408.03000 – Investigatory Interviews

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

An employee has a right to union representation at an investigatory interview the employee reasonably believes may result in disciplinary action. In Redwoods Community College Dist. v. Public Employment Relations Bd. (1984) 159 Cal.App.3d 617 [205 Cal.Rptr. 523], the court extended the Weingarten right of representation under EERA to an interview with "highly unusual circumstances" even if the element of discipline is absent; p. 62, proposed dec. Faced with an assertion of the Weingarten right, the employer may (as one option) dispense with or discontinue the interview. The Weingarten rule requiring representation is in applicable if no meeting or interview takes place; p. 63, proposed decsion.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Without prior notice and opportunity to negotiate, a change in policy tips the balance of negotiations, undermining the exclusive representative and forcing it to try to talk the employer back into the previously established policy; p. 53, proposed decision.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Change In Policy

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Employer's failure to require sick leave verification consistently in the past does not preclude it from doing so in the future; p. 54, proposed decision.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

* * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652, where the Board held there is no categorical rule barring a request for information related to a noncontractual forum; information relevant to challenging discipline of a bargaining unit member is presumptively relevant. * * *

Information immediately pertaining to mandatory subjects of bargaining is presumptively relevant. Other information is not presumed relevant, and the requestor must show the information is relevant and necessary to its representational duties; p. 70; Information related to extra-contractual forum is not presumed relevant and burden is on requestor.

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

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

EERA section 3543.5(c) makes it unlawful for a public school employer to refuse or fail to meet and negotiate “in good faith” with an exclusive representative. An employer must negotiate with a good faith intent to reach agreement. Negotiating without such an intent is called “surface bargaining” because of its superficiality. A surface bargaining violation is determined by a “totality of conduct” test that “looks to the entire course of negotiations to determine whether the employer has negotiated with the requisite intention of reaching agreement”; p. 81, proposed decision. Surface bargaining is indicated by a course of conduct that delays or thwarts the bargaining process and for which there is no reasonable explanation or rationale. The duty to negotiate in good faith does not, however, require parties to reach agreement, make concessions on every proposal, or yield positions fairly maintained; p. 81, proposed predictably unacceptable proposals; proposing to eliminate an organizational security clause with which the District had not problems was predictably unacceptable. Proposing to delete 2 sections from the Hours article over which there had been disagreements was predictably unacceptable; p. 83, proposed decision. Another indication of surface bargaining is taking an inflexible position. Walking out is itself evidence of surface bargaining. The essence of lawful hard bargaining is insistence on positions fairly maintained; p. 85, proposed decision.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.02000 – Inflexible Position

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Another indication of surface bargaining is taking an inflexible position. Walking out is itself evidence of surface bargaining. The essence of lawful hard bargaining is insistence on positions fairly maintained; p. 85, proposed decision.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

One indication of surface bargaining is the making of predictably unacceptable proposals; proposing to eliminate an organizational security clause with which the District had not had problems was predictably unacceptable. Proposing to delete 2 sections from the Hours article over which there had been disagreements was predictably unacceptable; p. 83, proposed decision.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.01000 – In General

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

EERA section 3543.5(d) makes it unlawful for an employer to "in any way encourage employees to join any organization in preference to another." The test is "whether the employer's conduct tends to influence that choice (between employee organizations) or provide stimulus in one direction or the other"; No violation where the employer tells a union representative to "get the hell out" of a meeting; p. 63, proposed dec. Employer statement of support for decertifying union not a violation if only made to nonemployee business agent for incumbent union.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.04000 – Management Aid or Instigation in Forming Unions Committees, Etc.; Statements in General; Free Speech

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Employer statement of support for a decertifying union not a violation if only made to nonemployee business agent for incumbent union.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

EERA section 3543.5(d) makes it unlawful for an employer to "in any way encourage employees to join any organization in preference to another." The test is "whether the employer's conduct tends to influence that choice (between employee organizations) or provide stimulus in one direction or the other"; No violation where the employer tells a union representative to "get the hell out" of a meeting; p. 63, proposed decision

800.00000 – UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION
800.02000 – Grievance Handling/Contract Administration

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

The duty of fair representation under EERA extends to grievance handling, and information relating to grievance processing is deemed to be relevant. The duty of fair representation does not extend, however, to an extracontractual forum; p. 70, proposed decision.

1000.00000 – SCOPE OF REPRESENTATION
1000.02029 – Disciplinary Action

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

PERB has held "rules of conduct which subject employees to disciplinary action are subject to negotiation (that is, are within scope) both as to criteria for discipline and as to procedure to be followed"; p. 52, proposed decision.

1000.00000 – SCOPE OF REPRESENTATION
1000.02132 – Sick Leave

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Sick leave review policies concerned matters within the scope of representation, under EERA section 3543.2(a), which specifically lists both "leave" and "procedures to be used for the evaluation of employees" as terms and conditions of employment within scope. Furthermore, PERB has held "rules of conduct which subject employees to disciplinary action are subject to negotiation (that is, are within scope) both as to criteria for discipline and as to procedure to be followed"; p. 52, proposed decision.

1000.00000 – SCOPE OF REPRESENTATION
1000.02163 – Work Rules

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

PERB has held "rules of conduct which subject employees to disciplinary action are subject to negotiation (that is, are within scope) both as to criteria for discipline and as to procedure to be followed"; p. 52, proposed decision.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.04000 – By Acquiescence/Conduct

* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *

Contract language that the District has the right to "maintain the efficiency of District operations" is generally-worded management rights clause, and thus will not be construed as a waiver; p. 57, proposed decision. Employer's failure to require sick leave verification consistently in the past does not preclude it from doing so in the future; p. 54, proposed decision. Union does not waive its right to negotiate by failing to request negotiations after the employer's firm decision. Speculation will not support the finding of a waiver.