Decision 2558E – Children of Promise Preparatory Academy

LA-CE-5876-E & LA-CE-6013-E

Decision Date: March 27, 2018

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 42
Perc Index: 124

Decision Headnotes

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

Exclusive representative’s failure to cite specific legal authority in support of request for information did not excuse employer’s failure to provide the information. It is not incumbent on the exclusive representative to educate the employer on its legal obligations.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

A five-month delay in providing information is unreasonable and tantamount to a failure to provide information.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

Employer therefore had duty to bargain with the certified representative because the administrative determination ordering certification was not stayed by the filing of an appeal or of a request for stay of the administrative determination.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

An employee organization recognized or certified as the exclusive representative enjoys a conclusive presumption of majority support for a one-year period following recognition or certification, and an employer may not refuse to bargain with an exclusive representative during that period of time.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

Outright refusal to negotiate ground rules proposal found where employer did not state its objections to the proposal at the bargaining table; ALJ properly declined to consider objections raised only in employer’s post-hearing brief.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General

Per se bargaining violations (refusal to provide information, outright refusal to bargain) are also indicia of bad faith.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General

Even if some of employer’s conduct due to the inexperience of its negotiators and advisers, evidence showed a concerted effort to thwart and delay negotiations.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer

Proposing that exclusive representative contribute financially to improve employment conditions and hire staff was not a legitimate proposal and was evidence of bad faith.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer

Although a bargaining proposal is lawful, it may still be evidence of bad faith if it is predictably unacceptable.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.03000 – Predictably Unacceptable Offer

Proposal that sought to arrogate to the employer unlimited discretion on virtually all mandatory subjects: benefits, compensation, job responsibilities, “or any other terms and conditions of employment” was predictably unacceptable.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.09000 – Failure to Treat Bargaining Obligation Seriously

Proposing that exclusive representative contribute financially to improve employment conditions and hire staff was not a legitimate proposal and was evidence of bad faith.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

Per se bargaining violations (refusal to provide information, outright refusal to bargain) are also indicia of bad faith.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

An employee organization recognized or certified as the exclusive representative enjoys a conclusive presumption of majority support for a one-year period following recognition or certification, and an employer may not refuse to bargain with an exclusive representative during that period of time.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.14000 – Good Faith Doubt of Majority Status

Good faith doubt defense would not apply during the one-year period following recognition or certification, due to conclusive presumption of majority support.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.14000 – Good Faith Doubt of Majority Status

Good faith doubt is not a defense under the National Labor Relations Act; employer may withdraw recognition only where the union has actually lost majority support.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.09000 – Consolidation, Severance, or Bifurcation of Proceedings

The Board has discretion to consolidate charges as it deems appropriate. In determining whether to consolidate charges for disposition by a single decision, the Board considers both fairness and administrative economy, and whether the charges involve similar issues.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.05000 – Informal Settlement Conferences

Statements made in settlement conferences convened by PERB are inadmissible as evidence in an administrative hearing.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.07000 – Bias or Prejudice/Motion to Disqualify

Oral motion to disqualify ALJ not followed by written motion and not submitted under oath was procedurally invalid.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.07000 – Bias or Prejudice/Motion to Disqualify

Motion to disqualify ALJ was properly rejected because the ALJ had not served as an attorney for a party in that case, had not advised a party “upon any matter involved in the proceeding before the Board,” and had not been retained as counsel for a party “within one year prior to the commencement of the case at the Board level.”

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.07000 – Bias or Prejudice/Motion to Disqualify

ALJ’s prior employment representing unions was not grounds for disqualification.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.07000 – Administrative and Judicial Notice

PERB may take official notice of its own records.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.15000 – Privileged Communications

Statements made in settlement conferences convened by PERB are inadmissible as evidence in an administrative hearing.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Board consolidated two cases for decision after exceptions were filed, because they involved the same parties and similar issues.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Exceptions asserting that proposed decision’s findings do not “reflect the true facts,” without citing record evidence, are rejected for failure to comply with PERB Regulation 32300(a)(3).

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
1203.01000 – In General

Bargaining order is the appropriate remedy where employer has failed to bargain in good faith.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Under PERB Regulation 32612(d), Board will determine whether to consolidate charges based on fairness and administrative economy, and whether the charges involve similar issues.