Decision 1744E – Berkeley Unified School District
SF-CE-2401-E
Decision Date: January 26, 2005
Decision Type: PERB Decision
Description: Local 21 alleged that the district violated EERA when it refused to deduct dues from 6 formerly confidential employees now in the unit unless Local 21 agrees to negotiate for these employees different longevity and vacation schedules from other employees in the unit.
Disposition: The Board dismissed the charge. Although it is unlawful to negotiate a proposal to impasse that conditions a non-mandatory proposal (unit modification) on acceptance of mandatory subjects (vacation schedules), there was no evidence presented that the district bargained the proposal to impasse. In addition, the district withdrew the proposal after Local 21 filed the charge.
Perc Vol: 29
Perc Index: 66
Decision Headnotes
605.04000 – Conditional Bargaining; Piecemeal or Fragmented Bargaining
Unit modifications are non-mandatory subjects of bargaining whereas vacation schedules are mandatory subjects of bargaining. It is unlawful to negotiate to impasse a proposal that conditions agreement to a non-mandatory subject on acceptance of mandatory subjects. However, Local 21 has not stated facts demonstrating that the District bargained to impasse over this proposal. Under PERB Regulation 32615(a)(5), a charge must state a clear and concise statement of the facts. In addition, the District withdrew the proposal after Local 21 filed the charge, an action which was appropriate.
1100.08000 – Pleading Requirements
Unit modifications are non-mandatory subjects of bargaining whereas vacation schedules are mandatory subjects of bargaining. It is unlawful to negotiate to impasse a proposal that conditions agreement to a non-mandatory subject on acceptance of mandatory subjects. However, Local 21 has not stated facts demonstrating that the District bargained to impasse over this proposal. Under PERB Regulation 32615(a)(5), a charge must state a clear and concise statement of the facts. In addition, the District withdrew the proposal after Local 21 filed the charge, an action which was appropriate.
1310.01000 – In General
Although under EERA, units may be modified by agreement between the parties, the parties must use PERB procedures to obtain Board approval of changes to the unit and may not divest the Board of jurisdiction to make unit determinations.
1310.06000 – Unfair Practice and Unit Modification
The unit modification procedure, not the unfair practice charge procedure, is the appropriate forum to address disputes over the composition of bargaining units and to evaluate the duties of the employees at issue in order to determine whether their positions should be designated as confidential. The parties may not utilize the unfair practice procedure to circumvent the unit modification process.