Decision 2881E – West Contra Costa Unified School District

After District contravened earlier promises regarding scheduling of English as Second Language teachers, it was too late for good faith negotiations over the scheduling process to occur, as demand to bargain would be futile. (Oakland Unified School District (2023) PERB Decision No. 2875, p. 9, fn. 6; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24 [“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].) (p. 7, fn. 7.)

To establish a prima facie case that a respondent employer violated its decision bargaining obligation, an exclusive representative must prove: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.) (p. 9.)

EERA’s requirement of good faith negotiations is a critical means of maintaining or restoring stable labor relations in a wide variety of circumstances. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 57.) District could have clarified how survey responses would be used to assign courses and avoided the overwhelming sense that the District had blindsided teachers by misusing their survey responses. (p. 11, fn. 9.)

Board of Education meetings and associated public documents generally do not afford a union sufficient notice of a potential change, unless the employer 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. (Oakland Unified School District (2023) PERB Decision No. 2875, p. 21; 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. 16.)

Notice is inadequate when a union first learns of a decision or change as a fait accompli. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (p. 17.)

Even assuming for the sake of argument that the new assignment procedures were no more than effects of a decision involving a non-mandatory topic of bargaining, there is no tenable argument that the District 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.) Indeed, even if the first element were satisfied, the District did not show that it provided advance notice, much less with sufficient time to allow meaningful pre-implementation negotiations. The District therefore cannot establish the second and third Compton elements. (p. 17, fn. 12.)

There are three primary means of showing that a party changed or deviated from the status quo. (Oxnard Union High School District (2022) PERB Decision No. 2803 PERB Decision No. 2803, p. 31.) Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written 10 agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (Ibid.) (pp. 9-10.)

Given that the District unilaterally created a brand-new policy, union’s unilateral change claim does not necessarily turn on establishing a firm prior policy. (See, e.g., Regents of the University of California (2004) PERB Decision No. 1700-H, adopting proposed decision at pp. 61-62 [letter prohibiting demonstrations inside university’s central administration building constituted unilateral change, where previously employer had no such policy].) (p. 14.)

New procedures for assigning classes impacted work opportunities for at least the fall 2021 semester and possibly later semesters or years as well, which is sufficient to satisfy generalized effect or continuing impact element. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 30-31; San Bernardino Community College District (2018) PERB Decision No. 2599, p. 8.) Moreover, the District further demonstrated a generalized effect or continuing impact by asserting a non-existent management right. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8 [continuing impact shown if change either alters a term or condition of employment or involves employer assertion of non-existent right that could be relevant to future disputes].) (pp. 15-16.)

There are three primary means of showing that a party changed or deviated from the status quo. (Oxnard Union High School District (2022) PERB Decision No. 2803 PERB Decision No. 2803, p. 31.) Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written 10 agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (Ibid.) (pp. 9-10.)

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.) The Board found that principle especially significant where the District first deviated from its past practice in Spring 2020, when the pandemic privileged it to do so without reaching an impasse or agreement, provided that the District bargained in good faith as practicable. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 32-34.) Because an emergency is not a static event, changes taken during an emergency must be limited to the timeframe that the emergency requires. (Id. at p. 35.) Thus, as the pandemic began to ease and the District moved back toward in-person instruction, the District could have lawfully returned to its established, pre-COVID procedures for assigning and scheduling ESL courses, or it could have bargained with ASTU if it wished to change to a new system. (pp. 12-13.)

The record did not support the District’s claim it had a practice of assigning work opportunities at its discretion. But even if it did, such a history would not privilege the District to continue making such discretionary decisions without bargaining. (County of Kern (2018) PERB Decision No. 2615-M, pp. 6-9 [employer’s changes are consistent with a dynamic status quo only if the changes follow a nondiscretionary pattern of change].) (p. 12.)

Absent a specific agreement to the contrary, an unratified tentative agreement generally has no effect. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) The Board rejected the union’s argument that the District changed or deviated from the status quo by not following the seniority criteria for temporary employees set out in the parties’ tentative agreement because the record contained no evidence that the parties agreed to apply certain tentative agreements prior to overall ratification. (p. 10.)

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.) (p. 12.)

To establish waiver of the right to bargain based on conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) Moreover, unratified CBA language cannot form the basis for asserting a management right, absent explicit agreement of the parties. (pp. 17-18.)

Establishing a bona fide emergency/necessity at most alters the nature of an employer’s bargaining obligation and does not change the scope of representation. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 28-29 & 32-34 [pandemic did not alter scope of bargaining; rather, it permitted employer to make life-saving decisions without reaching an impasse or agreement, while providing notice and an opportunity to bargain as practicable].) (p. 15.)

Procedures for assigning courses to adult education teachers fall within the scope of representation. (Pittsburg Unified School District (2022) PERB Decision No. 2833, p. 9.) Precedent is clear that employee schedules and assignments are fully bargainable, even though there is no duty to bargain over student schedules. (Id. at p. 10.) (pp. 14-15.)

The six-month limitations period for an unfair practice charge begins once the charging party knows, or should know, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) For OGC to issue a complaint, the charging party must allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3 & 30.) After OGC issues a complaint, the respondent bears the burden to plead untimeliness as an affirmative defense and to prove that the statute of limitations bars the charge. (Id. at p. 30.) (p. 8.)

Employer did not argue that alleged unilateral change falls outside the complaint, and in any event such an argument would be untenable given that PERB follows notice pleading principles. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, p. 15; accord Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [because administrative proceedings are not bound by strict rules of pleading, a party cannot complain that proof varied from allegations, absent a due process violation].) (p. 13.)

Unilateral change bargaining violation derivatively interfered with protected union and employee rights. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 2 & 54.)

Even if alleged change fell outside the complaint, the record satisfied each element of the unalleged violation doctrine given that: (1) the District had adequate notice and opportunity to defend given the content of union’s charge and opening statement [unilateral change in scheduling/assignment of ESL teachers in summer 2021]; (2) the acts or omissions at issue were intimately related to the subject matter of the complaint and were part of the same course of conduct; (3) the parties fully litigated the allegations; and (4) the parties had the opportunity to examine and cross-examine witnesses regarding the acts or omissions at issue. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, p. 14.) (pp. 13-14, fn. 10.)

The six-month limitations period for an unfair practice charge begins once the charging party knows, or should know, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) For OGC to issue a complaint, the charging party must allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3 & 30.) After OGC issues a complaint, the respondent bears the burden to plead untimeliness as an affirmative defense and to prove that the statute of limitations bars the charge. (Id. at p. 30.) District failed to establish statute of limitations defense, as union filed charge within six months of learning that the District was using responses to its non0binding survey to assign work opportunities. (pp. 8-9.)

The appropriate remedy for an employer’s unlawful unilateral change normally includes at least an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 37-38; Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 64.) (p. 18.)

Absent a specific agreement to the contrary, an unratified tentative agreement generally has no effect. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) The Board rejected the union’s argument that the District changed or deviated from the status quo by not following the seniority criteria for temporary employees set out in the parties’ tentative agreement because the record contained no evidence that the parties agreed to apply certain tentative agreements prior to overall ratification. (p. 10.)

To establish waiver of the right to bargain based on conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) (pp. 17-18.)