Decision 1725E – Hilmar Unified School District

SA-CE-2140-E

Decision Date: December 15, 2004

Decision Type: PERB Decision

Description:  The Board dismissed the charge because the alleged past practice of benefit parity does not supersede the clear language of the MOU which provides a schedule of health care premiums for the duration of the MOU and a zipper clause that precludes bargaining on matters covered by the MOU absent mutual agreement of the parties.

Disposition:  The Board found that the district interfered with the association’s right to contact the health plan administrator to inform unit members about health plans under consideration in bargaining as part of its duty to fairly represent members.  However, the Board found that the association waived its right to hold the informational meeting when an association representative committed to the district not to hold the meeting at that time.

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Perc Vol: 29
Perc Index: 35

Decision Headnotes

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.01000 – In General

Non-disruptive informational picketing is protected under EERA.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.12000 – Good Faith; DeMinimus; Temporary Change

The District did not unilaterally change health benefits. The memo to employees asking the employees to select between two health plan options itself did not constitute a change. Also, once the District was told the tentative agreement had not been ratified, the District stopped implementation of the plan

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

Once the District reaches a preliminary agreement about the health benefit plans, it may take preliminary steps to implement the plans. Such conduct does not constitute a bypass of the Association by communication with individual unit members.

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

Once the District reaches a preliminary agreement about the health benefit plans, it may take preliminary steps to implement the plans. Such conduct does not constitute a bypass of the Association by communication with individual unit members

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

The District did not unilaterally change health benefits. The memo to employees asking the employees to select between two health plan options itself did not constitute a change. Also, once the District was told the tentative agreement had not been ratified, the District stopped implementation of the plan.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.05000 – Union Consent or Waiver

Statutorily protected rights, such as the right to engage in non-disruptive informational picketing, can be divested by employees or their exclusive representative by a clear and unmistakable waiver. The Association waived its right to hold an informational meeting after a scheduled mediation session when the Association’s representative committed to the District not to hold the meeting at that time. The District therefore did not interfere with the Association’s rights by threatening to cancel a scheduled mediation session if the Association proceeded with its informational meeting in front of District offices.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.01000 – Business Necessity

The District’s uncorroborated hearsay evidence about harm to the District from allowing the Association direct contact with the health plan administrator was not credited. The District consequently did not provide evidence of operational necessity as balance to the harm to employees from precluding the Association from direct contact with the health plan administrator.

406.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS
406.01000 – In General

Statutorily protected rights, such as the right to engage in non-disruptive informational picketing, can be divested by employees or their exclusive representative by a clear and unmistakable waiver. The Association waived its right to hold an informational meeting after a scheduled mediation session when the Association’s representative committed to the District not to hold the meeting at that time. The District therefore did not interfere with the Association’s rights by threatening to cancel a scheduled mediation session if the Association proceeded with its informational meeting in front of District offices. The District interfered with the Association president’s rights by attempting to bar the Association from directly contacting its health plan administrator. The Association has a duty to ensure that unit members were informed of the changes in the new health plans under consideration because it is entitled to information sufficient to enable it to understand and intelligently discharge its duty to represent bargaining unit members.

302.00000 – UNFAIR PRACTICE ISSUES; PICKETING
302.01000 – In General

Non-disruptive informational picketing is protected under EERA.

300.00000 – UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES
300.04000 – Individual/Concerted/Activities/Self-Representation

Non-disruptive informational picketing is protected under EERA.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

The District’s uncorroborated hearsay evidence about harm to the District from allowing the Association direct contact with the health plan administrator was not credited. The District consequently did not provide evidence of operational necessity as balance to the harm to employees from precluding the Association from direct contact with the health plan administrator.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

Statutorily protected rights, such as the right to engage in non-disruptive informational picketing, can be divested by employees or their exclusive representative by a clear and unmistakable waiver. The Association waived its right to hold an informational meeting after a scheduled mediation session when the Association’s representative committed to the District not to hold the meeting at that time. The District therefore did not interfere with the Association’s rights by threatening to cancel a scheduled mediation session if the Association proceeded with its informational meeting in front of District offices.