Decision 1744E – Berkeley Unified School District

SF-CE-2401-E

Decision Date: January 26, 2005

Decision Type: PERB Decision

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Perc Vol: 29
Perc Index: 66

Decision Headnotes

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
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.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
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.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
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.