Decision 2385E – Bellflower Unified School District

LA-CE-5508-E

Decision Date: June 30, 2014

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 17

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

The decision to close a facility or to lay off employees is not subject to bargaining, but the effects of that decision on matters within the scope of representation are negotiable. Before an employer may refuse to negotiate after receiving an effects bargaining demand, it must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation. Once the District made a firm decision to close the school site and, subsequently, received a valid effects bargaining demand, the duty to bargain in good faith over the effects of that decision arose.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Once an employer makes a firm decision to act on a matter within its managerial prerogative, a duty arises to provide the exclusive representative with notice and an opportunity to negotiate the effects of that decision. An exclusive representative need not recite a formulaic phrase, but may express its request in any form that conveys its desire to meet and confer or negotiate about a matter within the scope of representation. Before an employer may refuse to negotiate after receiving an effects bargaining demand, it must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation. Once the District made a firm decision to close the school site and, subsequently, received a valid effects bargaining demand, the duty to bargain in good faith over the effects of that decision arose. Even if the classified positions to be abolished by the action taken at the school board meeting did not result in layoffs, reductions in work hours, reductions in pay, or the closing of the school site, the District was still required to meet with the union to seek clarification.

1000.00000 – SCOPE OF REPRESENTATION
1000.02040 – Elimination of Positions

The decision to close a facility or to lay off employees is not subject to bargaining, but the effects of that decision on matters within the scope of representation are negotiable. Even if the classified positions to be abolished by the action taken at the school board meeting did not result in layoffs, reductions in work hours, reductions in pay, or the closing of the school site, the District was still required to meet with the union to seek clarification.

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

The decision to close a facility or to lay off employees is not subject to bargaining, but the effects of that decision on matters within the scope of representation are negotiable. Even if the classified positions to be abolished by the action taken at the school board meeting did not result in layoffs, reductions in work hours, reductions in pay, or the closing of the school site, the District was still required to meet with the union to seek clarification.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

The ALJ properly admitted into evidence the School Board Action Item which described the bargaining unit positions at the school site to be eliminated due to “Lack of Work/Funds School Closure.” Under the official record exception, three conditions must be met: (1) the writing was made by and within the scope of duty of a public employee; (2) the writing was made at or near the time of the act, condition, or event; and (3) the sources of information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code, § 1280.) The District raised no objection to the authenticity of the document or to foundation. We conclude that the School Board Action Item was made by and within the scope of duty of a District employee; was made on or about May 6, 2010; and is a source of information which can be relied on to demonstrate the action taken by the School Board regarding the classified positions at the school site described therein. Thus, the School Board Action Item was admissible for all purposes under the official records exception to the hearsay rule. Under the party admission exception to the hearsay rule, evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party in either his individual or representative capacity, regardless of whether the statement was made in his individual or representative capacity. (Evid. Code, § 1220.) The District was provided the opportunity but did not present its own witnesses. The District therefore never availed itself of the opportunity to contradict or explain the information contained in the School Board Action Item. We conclude that the ALJ properly admitted the School Board Action Item for all purposes under the party admission exception to the hearsay rule. We are reticent to conclude that the official record exception can be applied in the absence of a writing. In the absence of a writing the record was not sufficient to support a finding that the layoff notices seen by union officials qualify as official records of the District. In the absence of the actual document, the ALJ could consider evidence of layoff notices seen by union officials as a party admission over objection by the District that it was hearsay. The District had the opportunity to present testimony or documentary evidence to explain or contradict union’s evidence of the layoff notices, because the person alleged to have authored the notices was the District’s representative in attendance at the hearing.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.01000 – In General

The union failed to establish a unilateral reduction of work hours and therefore a traditional make-whole remedy—including reinstatement and back-pay for the classified employees who suffered loss of work—is inappropriate in this matter.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

The union failed to establish a unilateral reduction of work hours and therefore a traditional make-whole remedy—including reinstatement and back-pay for the classified employees who suffered loss of work—is inappropriate in this matter. Reinstatement of laid-off employees would accomplish more than the District was ever required to do because reinstatement would rescind a decision the District was entitled to make.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

The union failed to establish a unilateral reduction of work hours and therefore a traditional make-whole remedy—including reinstatement and back-pay for the classified employees who suffered loss of work—is inappropriate in this matter. While the ALJ properly rejected the union’s request for a make-whole remedy based on the union’s failure to prove that an unlawful layoff occurred, the ALJ’s bargaining order is insufficient to remedy the District’s unlawful conduct. In Oakland Unified School District (1983) PERB Decision No. 326, the Board imposed a limited back-pay remedy to run if and while the parties bargained over the effects of a non-negotiable decision. In order to assure meaningful bargaining and effectuate the purposes of EERA, we shall accompany our order to bargain over the effects of the District’s decision to close the school site and eliminate classified positions with a limited backpay requirement designed both to make-whole employees for losses suffered as a result of the violation and recreate in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences. (Transmarine Navigation Corporation (1968) 170 NLRB 389.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.08000 – Other

While the ALJ properly rejected the union’s request for a make-whole remedy based on the union’s failure to prove that an unlawful layoff occurred, the ALJ’s bargaining order is insufficient to remedy the District’s unlawful conduct.) (In Oakland Unified School District (1983) PERB Decision No. 326, the Board imposed a limited back-pay remedy to run if and while the parties bargained over the effects of a non-negotiable decision.) (In order to assure meaningful bargaining and effectuate the purposes of EERA, we shall accompany our order to bargain over the effects of the District’s decision to close the school site and eliminate classified positions with a limited backpay requirement designed both to make-whole employees for losses suffered as a result of the violation and recreate in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences. (Transmarine Navigation Corporation (1968) 170 NLRB 389.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

While the ALJ properly rejected the union’s request for a make-whole remedy based on the union’s failure to prove that an unlawful layoff occurred, the ALJ’s bargaining order is insufficient to remedy the District’s unlawful conduct. In Oakland Unified School District (1983) PERB Decision No. 326, the Board imposed a limited back-pay remedy to run if and while the parties bargained over the effects of a non-negotiable decision. In order to assure meaningful bargaining and effectuate the purposes of EERA, we shall accompany our order to bargain over the effects of the District’s decision to close the school site and eliminate classified positions with a limited backpay requirement designed both to make-whole employees for losses suffered as a result of the violation and recreate in some practicable manner a situation in which the parties’ bargaining position is not entirely devoid of economic consequences. (Transmarine Navigation Corporation (1968) 170 NLRB 389.)