Decision 2875E – Oakland Unified School District

If an employer wishes to change terms or conditions of employment for represented employees, it must provide the employees’ union with adequate notice and opportunity to bargain before making its decision, and the employer must then bargain in good faith upon request. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 13.) Even if the decision falls outside the scope of bargaining, the employer must provide adequate notice and opportunity to bargain in good faith over the implementation and effects of that decision, to the extent such implementation and effects are reasonably likely to impact represented employees. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265 & 276; County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (p. 10.)

While a non-mandatory topic does not become mandatory merely because a bilateral agreement has a provision on that topic (Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 15), a mutually ratified agreement is binding, and repudiating such an agreement during its term can establish a per se violation or bad faith under the totality of the circumstances (EERA, § 3540.1, subd. (h); Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 46-47; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 42; County of Tulare (2015) PERB Decision No. 2414-M, pp. 29-30; Standard School District (2005) PERB Decision No. 1775, adopting proposed decision at p. 16) Accordingly, if a CBA provision covers a non-mandatory bargaining subject, the employer typically can decide to repudiate the provision only when the contract expires, whereas an employer can generally make such a decision at any time if the provision merely appears in a policy. (pp. 13-14.)

The Board overruled El Centro Elementary School District (2006) PERB Decision No. 1863 to the extent it held that a party cannot violate its duty to bargain in good faith when it repudiates a collectively bargained provision on a non-mandatory subject during the term of the agreement.

A decision to close schools is a non-mandatory subject of bargaining. However, an employer must bargain over the amount of notice employees receive, either in effects and implementation bargaining over a particular school closure decision or as a mandatory subject if issue arises as a proposed new or changed policy of general application. (p. 3.)

The Board uses the word “effects” as shorthand for a broad category that comprises both the effects and implementation of a decision on a non-mandatory bargaining subject. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265, 276 (Richmond Fire Fighters); City of Glendale (2020) PERB Decision No. 2694-M, p. 54, fn. 12; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 40; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 25, fn. 16; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, pp. 6, 12, 14, 16-17, 20 & 22.) Negotiations over implementation typically include proposed alternatives. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 14, fn. 8 (Accelerated Schools); Oxnard Union High School District (2022) PERB Decision No. 2803, p. 52 (Oxnard).) For instance, even though an employer has no duty to bargain over a decision to lay off employees, the California Supreme Court has noted the scope of required effects bargaining includes “the timing of layoffs and the number and identity of the employees affected.” (Richmond Firefighters, supra, 51 Cal.4th at pp. 265, 276.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Accelerated Schools, supra, p. 14, fn. 8; Oxnard, supra, p. 52.) (pp. 10-11.)

Effects bargaining violations are equally harmful as decision bargaining violations, as each disrupts and destabilizes employer-employee relations by creating an imbalance in the power between management and employee organizations. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 17.) In other words, the effects bargaining obligation is not an inferior duty. (Ibid.) (p. 11.)

In an effects bargaining case, the threshold issue is whether the employer provided adequate advance notice to allow meaningful negotiations before implementation. Absent adequate notice, a union has a valid unfair practice charge irrespective of whether it requests to bargain effects. (County of Ventura (2021) PERB Decision No. 2758-M, p. 42.) To trigger a union’s obligation to request bargaining, the employer must provide notice that “clearly” informs the union of the nature and scope of the change. (Id. at p. 43.) (p. 18.)

The Board rejected the District’s argument that it complied with Compton Community College District (1989) PERB Decision No. 720 (Compton), which allows an employer to implement its decision before completing effects negotiations if it can establish each of three elements: (1) the implementation date was based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Id. at pp. 14-15.) Even assuming for the sake of argument that the District could satisfy the first element, the District did not show that it provided advance notice, much less with sufficient time to allow meaningful pre-implementation negotiations. The District therefore could not establish the second and third Compton elements. (pp. 20-21.)

“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 3, fn. 4.)

If an employer wishes to change terms or conditions of employment for represented employees, it must provide the employees’ union with adequate notice and opportunity to bargain before making its decision, and the employer must then bargain in good faith upon request. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 13.) Even if the decision falls outside the scope of bargaining, the employer must provide adequate notice and opportunity to bargain in good faith over the implementation and effects of that decision, to the extent such implementation and effects are reasonably likely to impact represented employees. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265 & 276 (Richmond Fire Fighters); County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (p. 10.)

A public meeting and its associated agenda or other documents generally do not provide sufficient notice to a union unless the public entity sends such a document to a union official, in a manner reasonably calculated to draw attention to a specific item and with adequate time for good faith negotiations to ensue. (Regents of the University of California (2004) PERB Decision No. 1689-H, adopting proposed decision at p. 45; Victor Valley Union High School District (1986) PERB Decision No. 565, pp. 5-6 & fn. 6.) (p. 21.)

“In the face of unilateral implementation, a demand to bargain is futile,” because at that point there is no “level playing field” for fair negotiations to occur. (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24.) Because District unilaterally implemented its decision to disregard nine-month notice of proposed school closures, teachers’ union was not required to pursue negotiations after the fact to perfect its charge. (Ibid.) (p. 22.)

A union can prove an employer changed or deviated from the status quo by showing: (1) deviation from a written agreement or written policy; (2) change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. The ALJ erred in evaluating whether teachers’ union established a change in the status quo by mistakenly relying on a standard for unwritten past practices, when the resolution requiring the District to provide nine-months’ notice of school closures reflected a written past practice. (pp. 12-13.) The “regular and consistent” or “historic and accepted” standards apply to unwritten past practices; they do not apply if there is a written document reflecting the past and/or new policy. (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-12 & fn. 6.) Thus, because the resolution establishing the nine-month notice period and the resolution changing it were written policies, the District changed a written policy, implemented a new written policy, and/or enforced an existing policy in a new way.) (pp. 12-13.)

District’s change to the nine-month notice requirement of school closure decisions amounted to a unilateral change in the ground rules of bargaining over implementation, because ground rules include the amount of time allocated to bargaining and any deadline for meaningful discussion of alternatives. (pp. 19-20.)

An unratified tentative agreement cannot waive the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) In other words, a party cannot delay ratifying a tentative agreement while seeking to benefit from any waivers contained therein; rather, part of the employer’s incentive to negotiate and finalize an agreement is to obtain the benefit of such waivers. (p. 23.)

To establish waiver of the right to bargain based on evidence other than an effective contract, it is necessary to demonstrate “conscious abandonment” of the right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 24 [internal quotation marks omitted; emphasis original].) However, a union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) (pp. 23-24.)

“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 3, fn. 4.)

Relying on analogous precedent holding that an employer must bargain over the amount of layoff notice employees receive, either in effects/implementation bargaining over a particular layoff decision or as a mandatory subject if the issue arises as a proposed new or changed policy of general application, the Board held that an employer must bargain over notice of a school closure, either in effects/implementation bargaining over a particular closure decision or as a mandatory subject if the issue arises as a proposed new or changed policy of general application. Thus, while an employer has no duty to adopt a prospective policy providing for minimum notice of closures, where it does so, that becomes the status quo, and a subsequent change normally requires decision bargaining, absent a valid business necessity defense. A policy on notice of closure is by no means permanent, however, as the employer need only bargain before changing it and retains “the ultimate power to refuse to agree on any particular issue.” (pp. 13-16.) As an alternate holding, the Board would reach the same conclusion (viz. that notice of closure is a mandatory bargaining subject, but notice is merely a bargainable implementation matter when it arises in the wake of a particular closure decision) under the general test set forth in Anaheim Union High School District (1981) PERB Decision No. 177, which states that a subject falls within the scope of representation if: (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) it 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 its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of its mission. (Id. at pp. 4-5; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 42.) (pp. 14-17.)

To establish laches, a respondent must show that: (1) the charging party unreasonably delayed in prosecuting its case, and (2) either the charging party acquiesced in the acts about which it complains, or the respondent suffered prejudice from the charging party’s unreasonable delay. (Santa Ana Unified School District (2017) PERB Decision No. 2514, p. 22.) (pp. 24-25.)

Because waiver is an affirmative defense, a party asserting waiver bears the burden of proof. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13.) A party seeking to establish waiver of the right to bargain may allege contractual waiver, waiver by inaction, or waiver by negotiations history, but any of the three types of waivers must be clear and unambiguous. (County of Merced (2020) PERB Decision No. 2740-M, pp. 10 & 19.) PERB therefore resolves any doubts against finding a waiver of the right to bargain. (Ibid.) (p. 22.)

A contractual waiver must appear within a bilateral agreement rather than in a unilaterally implemented policy. (City of Culver City (2020) PERB Decision No. 2731-M, pp. 18 & 20.) A contractual waiver remains in effect only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. (Id. at pp. 13, 18-19.) (p. 23.)

An unratified tentative agreement cannot waive the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) In other words, a party cannot delay ratifying a tentative agreement while seeking to benefit from any waivers contained therein; rather, part of the employer’s incentive to negotiate and finalize an agreement is to obtain the benefit of such waivers. (p. 23.)

To establish waiver of the right to bargain based on evidence other than an effective contract, it is necessary to demonstrate “conscious abandonment” of the right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 24 [internal quotation marks omitted; emphasis original].) However, a union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) (pp. 23-24.)