Decision 2518E – Los Angeles Unified School District
LA-CE-5824-E
Decision Date: March 6, 2017
Decision Type: PERB Decision
Description: The ALJ concluded that the District violated EERA by unilaterally implementing a new teacher evaluation policy. The District filed exceptions.
Description: The Board affirmed the ALJ. The primary issue in dispute was whether the policy was within the scope of representation under EERA. The Board agreed with the ALJ that it was, either because it was a specifically enumerated subject of bargaining as a procedures for the evaluation of employees (Gov. Code, § 3543.2, subd. (a)(1)), or because it was reasonably and logically related to that subject and negotiable under Anaheim Union High School District (1981) PERB Decision No. 177. The Board also rejected the District’s arguments that UTLA waived its right to bargain and that the new policy was consistent with its past practice.
Perc Vol: 41
Perc Index: 146
Decision Headnotes
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.
602.01000 – 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.
602.06000 – 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.
608.03000 – Business Necessity; Emergency Exception
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.
608.05000 – 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.
608.05000 – 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.
608.07000 – 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.
608.07000 – 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.
608.07000 – 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.
1000.01000 – 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.
1000.02045 – 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.
1201.01000 – In General
A request for a monetary remedy need not be pleaded in the complaint.
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.
1201.03000 – Back Pay; Interest
A request for a monetary remedy need not be pleaded in the complaint.
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.
1407.01000 – 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.