Decision 2819E – Cerritos Community College District

EERA requires a public school employer to meet and negotiate in good faith with an exclusive representative “with regard to matters within the scope of representation.” (§ 3543.3; see also §§ 3543.2, 3543.5, subd. (c).) EERA defines the “scope of representation” to include “matters relating to wages, hours of employment, and other terms and conditions of employment,” and lists certain enumerated subjects as “terms and conditions of employment.” (§ 3543.2, subd. (a)(1).) Subjects within the scope of representation are known as “mandatory subjects of bargaining” (Contra Costa Community College District (2019) PERB Decision No. 2652, p. 8, such that “parties to a collective bargaining relationship must meet and confer upon demand” over them. (Anaheim Union High School District (2016) PERB Decision No. 2504, p. 8.) The same obligation does not apply to subjects outside the scope of representation, which are called “non-mandatory” or “permissive” subjects. While parties may negotiate over such matters, neither party is required to do so. Although the District faults the ALJ for failing to distinguish between the scope of representation and the scope of bargaining, the ALJ did not err in using the exact term that EERA uses, “scope of representation,” to refer to mandatory subjects of bargaining, just as both parties did during their negotiations. (pp. 18-19.)

EERA provides that “matters not specifically enumerated are reserved to the public school employer.” (§ 3543.2, subd. (a)(4).) However, the Legislature balanced this restrictive language by expansively requiring negotiations over “matters relating to wages, hours of employment, and other terms and conditions of employment.” (§ 3543.2, subd. (a)(1).) The California Supreme Court, noting that these EERA provisions are in tension with one another and that the Legislature authorized PERB to apply its expertise to determine which matters “relate to” employment terms and conditions, has specifically endorsed PERB’s three-part test for distinguishing between mandatory and non-mandatory bargaining subjects. (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 857-860 (San Mateo).) Pursuant to that test, which the Board adopted in Anaheim Union High School District (1981) PERB Decision No. 177, an exclusive representative’s right to represent employees extends to a non-enumerated subject if: “(1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not significantly abridge his freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the [employer’s] mission.” (Id. at pp. 4-5; San Mateo, supra, 33 Cal.3d 850, 857-859.) (pp. 19-20.)

EERA requires an additional consideration unique to the statutes under PERB’s jurisdiction. Because EERA exists alongside the Education Code, the former must give way to the latter when there is a specific conflict between the statutes. However, the Education Code’s supersession over EERA is not absolute. EERA’s scope of representation is not strictly limited to its enumerated terms, and parties may bargain over matters that are regulated by the Education Code provided that its provisions would not be “replaced, set aside or annulled by the language of the proposed contract clause.” (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 864.) Indeed, parties can negotiate over subjects regulated by the Education Code provided a proposal “would not supersede the relevant part of the Education Code, but would strengthen it.” (Id. at p. 866.) Thus, “[u]nless the statutory language [of the Education Code] clearly evidences an intent to set an inflexible standard or insure immutable provisions, the negotiability of a proposal should not be precluded.” (Id. at pp. 864-865.) (pp. 20-21, 27.)

Under the Anaheim/San Mateo standard, a public school employer and exclusive representative have latitude to bargain over subjects expressly covered by the Education Code provided that contract terms do not replace, set aside, or annul Education Code provisions. For instance, parties may incorporate into a CBA mandatory Education Code provisions or additional employee protections beyond those afforded in the Education Code. (See San Francisco Unified School District (2009) PERB Decision No. 2040, p. 5, fn. 4.) Similarly, where the Education Code merely provides a governing board with discretion to determine employment terms or conditions, without specifying the terms that shall apply, the general grant of authority does not extinguish the employer’s bargaining duty. (Los Angeles Unified School District (2017) PERB Decision No. 2518, pp. 34-35 & adopting proposed decision at pp. 23-25.) (pp. 22-23.)

A proposal that is outside the scope of representation for some employees is not outside scope for all employees to whom the proposal may apply. (p. 23, fn. 9.)

The District’s failure to seek clarification from the Federation about its proposal or to analyze the proposal more broadly, instead rejecting it out of hand, evinced a failure on the District’s part to take its bargaining obligation seriously. (p. 23, fn. 9.)

The fundamental task in interpreting statutory language is ascertaining the Legislature’s intent so as to effectuate the purpose of the law. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 20.) When PERB interprets a statute, usually “we begin with its plain language, affording the words their ordinary and usual meaning.” (Santa Clara Valley Water District (2013) PERB Decision No. 2349-M, p. 16, citing Shady Tree Farms, LLC v. Omni Financial, LLC (2012) 206 Cal.App.4th 131, 137.) But when the statute itself gives the words a special meaning different from their ordinary and usual meaning, we must follow that special meaning. (Irvine Valley College Academic Senate v. South Orange County Community College Dist. (2005) 129 Cal.App.4th 1482, 1489.) If the terms of the statute are unambiguous, we assume the Legislature meant what it said; the plain meaning controls and there is nothing to interpret or construe. (State of California (Office of the Inspector General) (2019) PERB Decision No. 2660-S, p. 15.) Only when the statutory terms are ambiguous may we resort to extrinsic sources such as maxims of construction and legislative history to discern legislative intent. (Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 33.) (pp. 24-25.)

Dissenting opinions are not considered precedential Board decisions. (See PERB Regs. 32320, subd. (c) [“all decisions and orders issued by the Board itself are precedential”] & 32030 [“‘Board itself’ means only the five-member Public Employment Relations Board, or members thereof authorized by law to act on behalf of the Board”]; People v. Lopez (2012) 55 Cal.4th 569, 585 [dissenting opinions are not binding precedent].) (p. 26, fn. 10.)

There are several means of establishing that an employer must bargain regarding changes to represented employees’ job duties, absent a waiver. Pertinent here, an employer must normally bargain a change to represented employees’ job duties if it is a material change, meaning that the employer is assigning work that was not “reasonably comprehended within the employee’s existing job duties.” (Oakland Unified School District (2003) PERB Decision No. 1544, pp. 5-8 & adopting warning letter at p. 2.) The material change standard also covers decisions to transfer a job duty between employees within the same bargaining unit. (Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4.) Furthermore, an employer also must bargain over a material change in represented employees’ workload or performance standards. (County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) To the extent the ALJ asserted that Davis Joint Unified School District (1983) PERB Decision No. 393, held that an employer need not bargain over work assignments, the ALJ failed to acknowledge that employers must bargain over duties or assignments impacting workload, performance standards, or preservation of bargaining unit work, as well as over revised duties or assignments that are not “reasonably understood” to be among the employees’ existing duties or assignments. Davis’ thrust was thus more muted than the ALJ’s characterization suggested, and we disavow any categorical rule that work assignments are outside the scope of representation.
(pp. 29-31.)

There are several means of establishing that an employer must bargain regarding changes to represented employees’ job duties, absent a waiver. Pertinent here, an employer must normally bargain a change to represented employees’ job duties if it is a material change, meaning that the employer is assigning work that was not “reasonably comprehended within the employee’s existing job duties.” (Oakland Unified School District (2003) PERB Decision No. 1544, pp. 5-8 & adopting warning letter at p. 2.) The material change standard also covers decisions to transfer a job duty between employees within the same bargaining unit. (Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4.) Furthermore, an employer also must bargain over a material change in represented employees’ workload or performance standards. (County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) To the extent the ALJ asserted that Davis Joint Unified School District (1983) PERB Decision No. 393, held that an employer need not bargain over work assignments, the ALJ failed to acknowledge that employers must bargain over duties or assignments impacting workload, performance standards, or preservation of bargaining unit work, as well as over revised duties or assignments that are not “reasonably understood” to be among the employees’ existing duties or assignments. Davis’ thrust was thus more muted than the ALJ’s characterization suggested, and we disavow any categorical rule that work assignments are outside the scope of representation. (pp. 29-31.)

There are several means of establishing that an employer must bargain regarding changes to represented employees’ job duties, absent a waiver. Pertinent here, an employer must normally bargain a change to represented employees’ job duties if it is a material change, meaning that the employer is assigning work that was not “reasonably comprehended within the employee’s existing job duties.” (Oakland Unified School District (2003) PERB Decision No. 1544, pp. 5-8 & adopting warning letter at p. 2.) The material change standard also covers decisions to transfer a job duty between employees within the same bargaining unit. (Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4.) Furthermore, an employer also must bargain over a material change in represented employees’ workload or performance standards. (County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) To the extent the ALJ asserted that Davis Joint Unified School District (1983) PERB Decision No. 393, held that an employer need not bargain over work assignments, the ALJ failed to acknowledge that employers must bargain over duties or assignments impacting workload, performance standards, or preservation of bargaining unit work, as well as over revised duties or assignments that are not “reasonably understood” to be among the employees’ existing duties or assignments. Davis’ thrust was thus more muted than the ALJ’s characterization suggested, and we disavow any categorical rule that work assignments are outside the scope of representation. (pp. 29-31.)

There are several means of establishing that an employer must bargain regarding changes to represented employees’ job duties, absent a waiver. Pertinent here, an employer must normally bargain a change to represented employees’ job duties if it is a material change, meaning that the employer is assigning work that was not “reasonably comprehended within the employee’s existing job duties.” (Oakland Unified School District (2003) PERB Decision No. 1544, pp. 5-8 & adopting warning letter at p. 2.) The material change standard also covers decisions to transfer a job duty between employees within the same bargaining unit. (Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4.) Furthermore, an employer also must bargain over a material change in represented employees’ workload or performance standards. (County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) To the extent the ALJ asserted that Davis Joint Unified School District (1983) PERB Decision No. 393, held that an employer need not bargain over work assignments, the ALJ failed to acknowledge that employers must bargain over duties or assignments impacting workload, performance standards, or preservation of bargaining unit work, as well as over revised duties or assignments that are not “reasonably understood” to be among the employees’ existing duties or assignments. Davis’ thrust was thus more muted than the ALJ’s characterization suggested, and we disavow any categorical rule that work assignments are outside the scope of representation. (pp. 29-31.)

Reassignment, assignment loss, and mandatory training are bargainable when employed as a form of discipline. (pp. 29-30.)

Misconduct investigations and information to be disclosed to the exclusive representative and accused employee during such investigations are within the scope of representation as they are subjects reasonably related to disciplinary procedures. (p. 33.)

Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (City of Arcadia (2019) PERB Decision No. 2648-M, pp. 34-35.) Unlike the totality of conduct analysis, a per se violation requires no inquiry into the respondent’s subjective intent or finding of bad faith. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 15 (Fresno).) The District’s outright refusal to negotiate over lesser discipline of full-time faculty and paid administrative leave constituted a per se violation of its duty to bargain. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 67-70; Fresno, supra, PERB Decision No. 2418-M, p. 15.) (p. 36.)

A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a party has failed to bargain in good faith. However, here the District’s conduct demonstrates multiple bad faith indicia, including: failing to respond to proposals in a timely manner (State of California (Department of Personnel Administration) (1989) PERB Decision No. 739-S, pp. 4-5); failing to prepare adequately for negotiations and failing to take one’s bargaining obligation seriously (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26; Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34 (Oakland)); failing to explain a bargaining position in sufficient detail or to provide requested information supporting a bargaining position, without an adequate reason for such failure (City of Davis (2018) PERB Decision No. 2582-M, pp. 19-20; City of San Jose (2013) PERB Decision No. 2341-M, p. 42); incorrectly labeling the other party’s proposal as non-mandatory or failing to seek clarification of a proposal to determine if it relates to a mandatory subject (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 33; City of Selma (2014) PERB Decision No. 2380-M, p. 16); and making predictably unacceptable proposals (Oakland, supra, PERB Decision No. 326, p. 38). Taken in their totality, these indicia demonstrate the District’s lack of intent to come to an agreement about any of the Federation’s just cause proposals. (pp 37-38.)

Under the totality of conduct test, a party is permitted to maintain a “hard bargaining” position on one or more issues, if the entire course of its bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 7-8.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 7.) What the District did here was beyond the bounds of permissible hard bargaining, given its rigid stance on negotiability that effectively led to an early impasse on the Article 13 proposal, as well as its lack of substantive counterproposals and engagement at the bargaining table. (p. 40.)