Decision 2879E – * * * JUDICIAL APPEAL PENDING * * * Alliance College-Ready Public Charter Schools

An amendment in certification changes only the name of the employer or union; it does not change the contours of the bargaining units. (p. 2, fn. 2.)

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. As the Board stated in Alliance Judy Ivie Burton Technology High School (2022) PERB Decision No. 2809, 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. Because a respondent in a technical refusal case should admit it is refusing to comply with the underlying representation order, PERB can normally grant judgment on the pleadings to resolve a technical refusal to bargain. (pp. 16-17.)

A party engaging in a technical refusal to bargain takes on several risks aside from the risk of work stoppage or other consequences of labor strife. First, as in any case before it, PERB can issue litigation sanctions if any party takes a frivolous position in bad faith. Second, 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. (pp. 17-18.)

A party engaging in a technical refusal to bargain takes on several risks aside from the risk of work stoppage or other consequences of labor strife. First, as in any case before it, PERB can issue litigation sanctions if any party takes a frivolous position in bad faith. Second, 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. (pp. 17-18.)

Different considerations apply when an employer’s technical refusal is based on good faith allegations of conduct that prevented a fair election and was sufficiently serious to “have affected the outcome of the election.” (J.R. Norton Co. v. Agricultural Labor Relations Bd. (1979) 26 Cal.3d 1, 40.) Because we encourage judicial review of allegations concerning an election’s fairness, make-whole relief for a technical refusal to bargain raising such issues is appropriate only in the absence of any good faith allegation of conduct or circumstances impacting election integrity to a degree that could have been dispositive in the outcome. (Ibid.) These considerations do not apply where, as here, a respondent merely disputes PERB’s exercise of discretion in determining whether a union has petitioned for an allowable unit structure. (p. 18, fn. 12.)

The outcome of a single employer inquiry does not necessarily determine unit appropriateness, and the Board has never “looked beyond the plain language of the petition to decide whether two or more public school employers satisfy the single employer test and, if so, whether that relationship requires that we allow only a singular global bargaining unit despite the petitioning union’s request for localized bargaining units.” (Alliance Judy Ivie Burton Technology Academy High School (2020) PERB Decision No. 2719, pp. 22-23, 27.) (p. 19.)

The Board declined to revisit Respondent’s argument that it erred by applying judicial and equitable estoppel, and by finding sufficient evidence to justify single school bargaining units. As explained in Alliance Judy Ivie Burton Technology Academy High School (2020) PERB Decision No. 2719, the schools failed to prove that only a network-wide unit is appropriate since the evidence the schools presented “was directly contradicted by evidence in prior cases from Alliance personnel, including key executives and charter school administrators,” and “the Charter Schools have not given a reasonable or persuasive account of their shifting positions.” (Id. at pp. 35, 45.) (p. 19.)

Evidence that is not newly discovered or previously unavailable, i.e., evidence that could have been presented in the underlying unit determination proceeding, is not an appropriate defense to a technical refusal to bargain. To the extent an employer claims true changed circumstances consistent with PERB Regulation 32781, it cannot simply refuse to bargain; it is instead required to pursue a unit modification petition under PERB Regulation 32781. (pp. 20-21.)

Evidence that is not newly discovered or previously unavailable, i.e., evidence that could have been presented in the underlying unit determination proceeding, is not an appropriate defense to a technical refusal to bargain. To the extent an employer claims true changed circumstances consistent with PERB Regulation 32781, it cannot simply refuse to bargain; it is instead required to pursue a unit modification petition under PERB Regulation 32781. (pp. 20-21.)

A petition for unit modification is precluded “if, within the previous 12 months, the employer has lawfully recognized, or the Board has certified, the exclusive representative in the described unit or a subdivision thereof.” (PERB Reg. 32786, subd. (b)(4).) PERB considers this certification bar period to begin from the date the employer begins good faith negotiations with the union. In this respect, PERB Regulations do not condone an employer using a unit modification petition to decertify a union with which it has never agreed to bargain. Rather, if an employer claims that new, changed circumstances warrant a modification, it must continue to bargain in good faith even while it pursues its unit modification petition. (pp. 22-23.)

A petition for unit modification is precluded “if, within the previous 12 months, the employer has lawfully recognized, or the Board has certified, the exclusive representative in the described unit or a subdivision thereof.” (PERB Reg. 32786, subd. (b)(4).) PERB considers this certification bar period to begin from the date the employer begins good faith negotiations with the union. In this respect, PERB Regulations do not condone an employer using a unit modification petition to decertify a union with which it has never agreed to bargain. Rather, if an employer claims that new, changed circumstances warrant a modification, it must continue to bargain in good faith even while it pursues its unit modification petition. (pp. 22-23.)

A hearing is not required to determine whether petitioned-for units are appropriate. PERB Regulation 33237, subdivision (a) governs the investigation of representation petitions and provides: “Whenever a petition regarding a representation matter is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election or take such other action as deemed necessary to decide the questions raised by the petition.” Thus, there is “no guarantee or entitlement to an evidentiary hearing.” (Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 16 (Children of Promise); see PERB Reg. 33237, subd. (a).) Rather, after completing an investigation, the Board agent may either “determine that sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary hearing,” or “that no material issue of fact exists and thus that a hearing is unnecessary.” (Children of Promise, supra, PERB Order No. Ad-402, p. 17.) “In reviewing whether a Board agent has conducted a proper investigation, the Board generally has looked at whether or not the Board agent abused his or her discretion.” (Id. at p. 13.) Here, the Board agent determined that UTLA had provided sufficient proof of support and informed the charter schools that they needed to either recognize UTLA as the exclusive representative of certificated employees at the schools, or dispute the appropriateness of the bargaining units. Morgan McKinzie and Leichtman-Levine argued that the entire Alliance Network of charter schools constituted a single employer, and that the only appropriate bargaining unit consists of certificated employees at all Alliance Network schools, an argument the Board already considered and rejected in previous Alliance decisions. The charter schools raised no other issues challenging the appropriateness of the petitioned-for units. We therefore found that the Board agent had not abused her discretion by deciding the relevant issues without an evidentiary hearing. (pp. 24-25.)

The Board found that circumstances warranted extending the certification bar to at least 12 months from commencement of good faith bargaining, subject to extension if Respondent is found to have engaged in additional unfair labor practices. (pp. 27-28.)