Decision 2809E – Alliance Judy Ivie Burton Technology Academy High School et al.

LA-CE-6600-E

Decision Date: February 28, 2022

Decision Type: PERB Decision

Description:  Charging Party United Teachers Los Angeles (UTLA) alleged that Respondents, three Alliance Charter Schools, refused to recognize and bargain with UTLA in violation of EERA. Respondents alleged that they were committing a technical refusal to bargain in order to obtain appellate court review of Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, which certified UTLA as the exclusive representative of the certificated bargaining units at each school. Respondents also alleged that a recent reorganization constituted changed circumstances that warranted reversing the finding that the individual school units were appropriate. Based on the reorganization, UTLA requested an amendment of certification to change Respondents’ names to the name adopted during the reorganization.

Disposition:  The Board issued its decision based on a stipulated record pursuant to PERB Regulations 32215 and 32320, subdivision (a)(1), finding that Respondents’ conduct violated EERA. The Board concluded that the reorganization did not render the bargaining units inappropriate or excuse the Respondents from recognizing or negotiating with UTLA; and therefore, the Charter Schools’ refusal to bargain with UTLA violated EERA. The Board further found that the purported changed circumstances do not warrant modification of the units, and amended UTLA’s certifications to reflect the employers’ new name.

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Perc Vol: 46
Perc Index: 131

Decision Headnotes

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

While EERA section 3542, subdivision (a)(2) permits a party to obtain appellate review of a unit determination by engaging in a technical refusal to bargain, a party’s right to do so is limited in several respects. A party engaged in a technical refusal to bargain must rely on evidence already in the administrative record of the unit determination, because the prior representation decision is treated as binding with respect to all issues that were, or could have been litigated in the representation proceeding. A party may not collaterally attack PERB’s determination using evidence that it could have raised in the unit determination proceeding, nor may it use the technical refusal as an attempt to modify a unit while circumventing PERB’s mandatory unit modification procedure.

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

Because a respondent in a technical refusal to bargain case should admit it is refusing to comply with the underlying representation order, PERB normally should expedite judicial review by granting judgment on the pleadings at all levels of PERB, treating the prior representation decision as binding with respect to all issues that were, or could have been litigated in the representation proceeding.

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

Employers cannot assert changed circumstances as a defense to a refusal to bargain. To the extent an employer alleges that changed circumstances render a unit inappropriate, they cannot simply refuse to bargain – they must instead file a unit modification petition. PERB regulations and long-established precedent provide that a unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances. (pp. 17-18.)

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.01000 – In General

PERB regulations and long-established precedent provide that a unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.06000 – Unfair Practice and Unit Modification

A unit modification can only be effectuated by either the mutual agreement of the parties or through the filing of a petition and showing changed circumstances.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.02000 – Change in Circumstances

A unit modification may be appropriate upon a party’s demonstration that it is warranted by changed circumstances. (p. 24.)

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.03000 – Amended Certification, Petition for

PERB Regulation 32761, subdivision (a) provides that “[a]n employee organization may file . . . a request to amend its certification or recognition in the event of a reorganization, amalgamation, affiliation or transfer of jurisdiction, or in the event of a change in the name or jurisdiction of the employer.” Such a request is generally made by the requesting party sending PERB a letter that affords the employer the opportunity to respond or object.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.03000 – Amended Certification, Petition for

Based upon evidence contained in the parties’ stipulated record, the union requested an amendment of certification in its post-hearing brief. , Respondents had the opportunity to respond or object to the request, and did so in a post-hearing reply brief, meeting the procedural requirements to amend certification.

1300.00000 – REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION
1300.03000 – Amended Certification, Petition for

An amendment in certification changes only the name of the employer or union—it does not change the contours of the bargaining units.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.03000 – NLRA/LMRDA Precedent

PERB is not bound by NLRB precedent. EERA generally provides greater protection to representational rights than the NLRA. PERB may refer to NLRB precedent interpreting the NLRA to the extent we find it persuasive and consistent with the language and purposes of EERA. (Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 28-29.) Moreover, when PERB does find federal authority persuasive on a particular issue, PERB is not automatically bound by subsequent developments in federal law on that point because the determinative issue is whether the cases are consistent with the language and purposes of EERA. (Ibid.)

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

Following a technical refusal to bargain, an appropriate remedial order includes ordering the employer to meet and confer with the exclusive representative upon request.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.05000 – Extension of Certification

Following a technical refusal to bargain during the initial 12-month certification period, the Board extended the certification bar to at least 12 months from commencement of good faith bargaining, subject to extension if the employer is found to have engaged in additional unfair labor practices. (p. 30)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

In a technical refusal to bargain case, attorneys fees were not awarded because the employer engaged in the technical refusal to bargain to obtain judicial review of PERB’s unit determination and argued in favor of changing existing law in a manner that did not violate PERB’s litigation sanctions standard. (p. 31.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

In a technical refusal to bargain case, even when there is no cause for litigation sanctions, if an employer pursues an unsuccessful technical refusal over a unit determination, the charging party union may be entitled to reimbursement of its increased costs outside of litigating the technical refusal charge, which may include increased costs for organizing, bargaining, lost dues, or legal costs beyond litigating the charge itself. A charging party is more likely to obtain such relief when a technical refusal to bargain is based on a unit determination issue rather than an election integrity issue. Even when the underlying issue involves a unit determination, PERB has no blanket rule requiring make whole relief in a technical-refusal-to-bargain case. Rather, we consider whether the totality of the respondent’s conduct has disadvantaged the charging party to such a degree that make-whole relief is necessary to effectuate the governing statute’s purposes, such as allowing fair representation and balanced collective bargaining. (See J.R. Norton v. Agricultural Labor Relations Bd., 26 Cal.3d at pp. 39-40 [because remedies must “effectuate the policies of the Act,” make-whole relief in a technical-refusal-to-bargain case turns, most fundamentally, on “factors peculiar to labor relations”].)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

Respondent employer committed a technical refusal to bargain in order to achieve a unit modification, in addition to obtaining appellate review of underlying unit determination. PERB found that the Respondents’ shifting positions and tactics, combined with Respondents’ failure to file a unit modification petition as required by PERB precedent, merit make-whole relief outside of the charging party union’s costs of litigating this case.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

In a technical refusal to bargain case, PERB can issue litigation sanctions if any party takes a frivolous position in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11; see also Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4.)