Decision 2939E – Rocklin 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.)

Generally, a public meeting agenda for the employer’s governing body does not provide sufficient notice unless the employer provides such documentation to a union official in a manner reasonably calculated to draw attention to a specific item and with adequate time for good faith negotiations. (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 (Victor Valley).)

Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to bargain in good faith over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) A failure or refusal to bargain over the effects of a non-negotiable change is equally as harmful as a failure to bargain over a negotiable change, as it disrupts and destabilizes employer-employee relations by creating an imbalance in the power between management and employee organizations. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 22-24.) In other words, the effects bargaining obligation is not an inferior duty. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 11.)

A unilateral change to a matter within the scope of representation is a per se violation of the respondent’s duty to bargain in good faith. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) Because a unilateral change has an inherently destabilizing and detrimental effect upon the parties’ bargaining relationship, it is unlawful irrespective of intent. (City of Montebello (2016) PERB Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M, p. 18.) To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit 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 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.)

There are three primary means of establishing that an employer changed or deviated from the status quo: (1) a deviation from a written 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. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) An employer’s duty to bargain over change in policy does not turn on whether policy was contained in a collective bargaining agreement. (See, e.g., Oakland Unified School District (2023) PERB Decision No. 2875, p. 13 (Oakland); citing Alameda County Management Employees Assn. v. Superior Court (2011) 195 Cal.App.4th 325, 345.)

Typically, PERB remedies include directing the respondent to begin or resume bargaining in good faith and to
return to a prior bargaining position. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 71-78; City of Palo Alto (2019) PERB Decision No. 2664, pp. 5-10 & fn. 6; City of San Ramon (2018) PERB Decision No. 2571 M, pp. 17-18.) Here, the District Board’s September 6, 2023 decision to adopt the amendments to AR 5020 and 5145.3 is non-negotiable because those amendments are unlawful under state law. The District’s demand that RTPA bargain over the effects of a non-negotiable decision is similarly unlawful, and we will not order the parties to bargain over the effects of the unlawful decision. Accordingly, the District must rescind its parental notification policy and comply with the additional requirements in PERB’s remedial order.

The District Board’s September 6, 2023 decision to adopt the amendments to AR 5020 and 5145.3 is non-negotiable because those amendments are unlawful under state law. The District’s demand that RTPA bargain over the effects of a non-negotiable decision is similarly unlawful, and we will not order the parties to bargain over the effects of the unlawful decision. Accordingly, the District must rescind its parental notification policy and comply with the additional requirements in PERB’s remedial order.

The District’s parental notification policy violates the California Constitution and multiple state laws, including the SAFETY Act, by singling out transgender and gender nonconforming students for different, adverse treatment that puts them at risk of harm. Thus, compliance with the parental notification policy would require certificated employees to engage in conduct that the State of California has said violates state law. Because “illegal subjects involve matters prohibited by external law or public policy,” they “may not be negotiated or included in a collective bargaining agreement, even if the parties were to agree to do so.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 44.) Given that the parental notification policy is illegal, any proposals the District could make regarding implementation would be illegal. Taking such an illegal position is a per se violation of the duty to bargain in good faith. (City of San Jose, supra, PERB Decision No. 2341-M, pp. 43-44; Berkeley Unified School District (2012) PERB Decision No. 2268, pp. 9-15.) In these unusual circumstances, therefore, even though the District was willing to bargain effects, it premised its offer to bargain on an illegal position that constituted bad faith bargaining. By the same token, RTPA lawfully refused to bargain unless the District first rescinded its illegal policy. In other words, it is impossible to bargain in good faith over the effects of an unlawful policy. For these reasons, we find in the alternative that the District violated its obligation to bargain in good faith over negotiable effects.