Decision 2268E – Berkeley Unified School District

SF-CE-2732-E

Decision Date: May 29, 2012

Decision Type: PERB Decision

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Decision Headnotes

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

The recoupment provision in the District’s prior agreement with BCCE was a non-mandatory subject, and consequently neither party was obliged to negotiate nor renew it. As a non-mandatory subject, the recoupment provision in the District’s prior agreement with BCCE was not part of the status quo on mandatory subjects. Thus, the recoupment provision did not survive expiration of that agreement, since only mandatory subjects are governed by EERA duty to make no change while negotiating or participating in impasse resolution procedures.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.05000 – Post-Impasse

The recoupment provision in the District’s prior agreement with BCCE was a non-mandatory subject, and consequently neither party was obliged to negotiate nor renew it. As a non-mandatory subject, the recoupment provision in the District’s prior agreement with BCCE was not part of the status quo on mandatory subjects. Thus, the recoupment provision did not survive expiration of that agreement, since only mandatory subjects are governed by EERA duty to make no change while negotiating or participating in impasse resolution procedures.

1000.00000 – SCOPE OF REPRESENTATION
1000.02102 – Payroll Deductions

When external law establishes immutable provisions in an area otherwise within the scope of representation, matters are negotiable only to the extent of the employer’s discretion, that is, to the extent that the external law does not “set an inflexible standard or insure immutable provisions.” The District’s proposed recoupment procedure for wages allegedly overpaid to individual employees exceeds the ambit of negotiable exceptions to California’s policy protecting employee wages from prejudgment attachment, and that the District’s proposal is therefore a non-mandatory bargaining subject to which the parties had no right to agree in the first place as it was at variance from mandatory external law and thus nonnegotiable.