Decision 2518E – Los Angeles Unified School District

LA-CE-5824-E

Decision Date: March 6, 2017

Decision Type: PERB Decision

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Perc Vol: 41
Perc Index: 146

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

The requirements of the Stull Act (Education Code section 44660 et seq.) do not set an inflexible standard or insure immutable provisions so as to remove evaluation criteria from the scope of representation.

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

Whether employer’s policy represented a change from an identifiable past practice or was an implementation of new policy is not important because in either event, the Board analyzes liability under the unilateral change doctrine.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

Whether employer’s policy represented a change from an identifiable past practice or was an implementation of new policy is not important because in either event, the Board analyzes liability under the unilateral change doctrine.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

Neither school district’s size nor the low graduation rate of its students excused it from bargaining over the negotiable subject of teacher evaluation criteria. School district did not demonstrate that any failures of its existing observation and evaluation system ever reached emergency proportions.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

Evaluation system implemented by employer was not consistent with a regular and consistent past practice. Evidence of past practice showed a variety of evaluation rubrics that differed from the system that was implemented.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

Evaluation system implemented by employer was not consistent with a dynamic status quo. A practice can be demonstrated by a regular and consistent pattern of past changes in employment conditions, but not by an employer that exercises unfettered discretion.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Any waiver of bargaining rights must be clear and unmistakable, demonstrating an intentional relinquishment of the right to bargain. A generally-worded management rights clause will not be construed as a waiver of statutory bargaining rights.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Contract provision governing certain procedural matters in the evaluation process is not a clear and unmistakable waiver of right to bargain changes to other matters related to evaluations.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

In the face of employer’s repeated assurances that it would bargain over negotiable changes, exclusive representative’s participation in ad hoc committees and other process was not a waiver by inaction.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

Evaluation system, including evaluation criteria, is negotiable under the Anaheim test. The requirements of the Stull Act (Education Code section 44660 et seq.) do not remove evaluation criteria from the scope of representation.

1000.00000 – SCOPE OF REPRESENTATION
1000.02045 – Evaluations

The Board’s precedents have broadly and liberally construed the duty to bargain over evaluation procedures, and have explicitly held that “procedures” under EERA section 3543.2(a) encompass evaluation criteria. The requirements of the Stull Act (Education Code section 44660 et seq.) do not remove evaluation criteria from the scope of representation.

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

A request for a monetary remedy need not be pleaded in the complaint.

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

Evidence of financial losses need not be introduced at hearing. Issues of financial harm may be raised in compliance proceedings before the Office of the General Counsel.

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

A request for a monetary remedy need not be pleaded in the complaint.

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

Evidence of financial losses need not be introduced at hearing. Issues of financial harm may be raised in compliance proceedings before the Office of the General Counsel.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

The Legislature’s specific exclusion of criteria and standards for evaluation in HEERA’s scope of representation suggests that it did not intend to exclude those matters from the scope of representation under EERA.