Decision 1504E – Clovis Unified School District

SA-CE-2000-E

Decision Date: December 18, 2002

Decision Type: PERB Decision

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Perc Vol: 27
Perc Index: 15

Decision Headnotes

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.01000 – In General

Although originally at issue, it is undisputed, that as of the dates of the charge and hearing before the ALJ, the District, not the JPA was the employer of the unit employees and so it is not necessary to address whether the unit employees would become employees of the JPA once the District sponsored them into the JPA.

201.00000 – PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?
201.05000 – Joint Powers Agreements

Although originally at issue, it is undisputed, that as of the dates of the charge and hearing before the ALJ, the District, not the JPA was the employer of the unit employees and so it is not necessary to address whether the unit employees would become employees of the JPA once the District sponsored them into the JPA.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.02000 – Exclusive Representatives

Where CSEA and its local chapter are the exclusive representative, notice to the local does not constitute notice to CSEA.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.04000 – Agents (See also 1400)

Where CSEA and its local chapter are the exclusive representative, notice to the local does not constitute notice to CSEA.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.13000 – Rights Pertaining to Exclusivity (See also 603)

Contrary to the District’s assertion, the test for whether a respondent has interfered with the rights of employees under EERA does not require that unlawful motive be established, only that at least slight harm to employee rights results from the conduct. In this matter, the District’s failure to notify CSEA of the October 9 election, plan to implement the election results, and failure to provide CSEA with the ability to negotiate interfered with unit members’ rights to representation under EERA section 3543.5(a).

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

The Board concludes that the District did not provide prior notice to CSEA before the District conducted the election and announced its intent to implement the election results. This conclusion results from CSEA’s role in CBA ratification process as set forth in CSEA Policy 610 and Chapter 250’s constitution, known to both the District and Chapter 250, and the certification of the exclusive representative as CSEA and its Chapter 250, as listed in the CBA. CSEA immediately objected to the election and demanded the right to negotiate upon learning of its happening, contrary to the District’s assertions.

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

The District argues that since it has taken no action, the issue of unilateral change is not ripe for Board resolution. However, when the District conducted the election, published its intent to send the results to the JPA board of directors and to PERS without negotiating first with CSEA, and sponsored non-unit employees into the JPA, CSEA had actual notice of the District’s intent to make the change.

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

Under PERB precedent, the Board must interpret collective bargaining agreements according to their plain meaning if the language is clear. In this case, the settlement agreement and parallel CBA provisions clearly require the parties to negotiate wages, hours and working conditions. Although neither the JPA bylaws nor the CBA mention Social Security and PERB, the unit employees’ participation in those retirement benefits is the undisputed status quo. The District argues that since it has taken no action, the issue of unilateral change is not ripe for Board resolution. However, when the District conducted the election, published its intent to send the results to the JPA board of directors and to PERS without negotiating first with CSEA, and sponsored non-unit employees into the JPA, CSEA had actual notice of the District’s intent to make the change.

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

An employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. Similarly, the employer violated the duty to bargain when it bypasses the exclusive representative to negotiate directly with employees over matters within the scope of representation. In the face of CSEA’s expressed opposition to the elimination of Social Security benefits, the District’s failure to notify CSEA of the election and the decision to implement the results constitute interference with CSEA’s right to represent unit employees in violation of EERA section 3543.5(b).

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.02000 – Polling

An employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. Similarly, the employer violated the duty to bargain when it bypasses the exclusive representative to negotiate directly with employees over matters within the scope of representation. In the face of CSEA’s expressed opposition to the elimination of Social Security benefits, the District’s failure to notify CSEA of the election and the decision to implement the results constitute interference with CSEA’s right to represent unit employees in violation of EERA section 3543.5(b).

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.04000 – Circumvention of Union; Direct Dealing With Employees

An employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. Similarly, the employer violated the duty to bargain when it bypasses the exclusive representative to negotiate directly with employees over matters within the scope of representation. In the face of CSEA’s expressed opposition to the elimination of Social Security benefits, the District’s failure to notify CSEA of the election and the decision to implement the results constitute interference with CSEA’s right to represent unit employees in violation of EERA section 3543.5(b).

1000.00000 – SCOPE OF REPRESENTATION
1000.02102 – Payroll Deductions

Under well-established precedent, Social Security and PERS benefits are “wages” because they require employer and employee contributions to the applicable funds and so embody both deferred wages and a reduction in employees’ wages. Therefore, the election for retention of Social Security and change in status of PERS benefits is a mandatory subject of bargaining. This conclusion is consistent with Board’s decisions regarding the mandatory status of retirement benefits in general.

1000.00000 – SCOPE OF REPRESENTATION
1000.02121 – Retirement

Under well-established precedent, Social Security and PERS benefits are “wages” because they require employer and employee contributions to the applicable funds and so embody both deferred wages and a reduction in employees’ wages. Therefore, the election for retention of Social Security and change in status of PERS benefits is a mandatory subject of bargaining. This conclusion is consistent with Board’s decisions regarding the mandatory status of retirement benefits in general.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.02000 – Employer Responsibility

Where CSEA and its local chapter are the exclusive representative, notice to the local does not constitute notice to CSEA.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

Where CSEA and its local chapter are the exclusive representative, notice to the local does not constitute notice to CSEA.