Decision 2558E – Children of Promise Preparatory Academy

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.

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

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.

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.

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.

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

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.

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

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

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.

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

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

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.

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

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.

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.

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

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

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.”

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

PERB may take official notice of its own records.

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

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

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).

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

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.