Decision 3054E – Alliance College-Ready Public Schools

While one set of UTLA’s bargaining notes fell under the business records exception to the hearsay rule (Evid. Code, § 1271; PERB Reg. 32176 [PERB Regulations are codified at Cal. Code Regs., tit. 8, § 31001 et seq.]; Regents of the University of California (2021) PERB Decision No. 2783-H, p. 16, fn. 5; Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 7, fn. 7), no recognized exception applied to another set of bargaining notes, as neither the note-taker nor any other qualified witness testified as to how the notes were prepared (Evid. Code, § 1271(c)). However, since a witness testified that the notes were accurate, that corroboration was sufficient for a factual finding. (PERB Reg. 32176.) (p. 19, fn. 9)

The Board expressly rejected Alliance’s assertion that UTLA waived any claim that Alliance committed a per se bargaining violation. UTLA argued both bad faith bargaining theories in its post-hearing brief. Although UTLA did not use the term “per se” violation, its supporting points centered on the per se violations and its requested remedy was consistent with a per se theory. (City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10.) (p. 24, fn. 10)

A refusal to offer some explanation or substantiation for one’s position, where such information exists and has been requested, constitutes both an outright refusal to bargain and an indicator of bad faith under the totality of conduct test. (See County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29 [noting that such conduct can amount to outright refusal to bargain]; see also City of Davis (2018) PERB Decision No. 2582-M, p. 19 [if “an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy,” internal quotation marks and citation omitted]; County of Tulare (2015) PERB Decision No. 2461-M, adopting proposed decision at p. 9 [“The obligation to bargain in good faith requires the parties to explain the reasons for a particular bargaining position with sufficient detail to permit the negotiating process to proceed on the basis of mutual understanding” (internal quotation marks and citation omitted)]; City of San Jose (2013) PERB Decision No. 2341-M, p. 42 [allegation that employer refused to use substantive monetary figures when discussing its need for concessions indicated bad faith].) Board found that Alliance committed a per se violation of the duty to bargain in good faith when it repeatedly refused to provide an explanation for its governing board’s two-time rejection of tentative agreements, despite UTLA’s continued efforts to understand Alliance’s negotiation position. (pp. 24-26, 39)

A party’s steadfast refusal to meet and negotiate is a per se failure to bargain in good faith. (City and County of San Francisco (2023) PERB Decision No. 2858-M, p. 12; City of Glendale (2020) PERB Decision No. 2694-M, pp. 64-65 [finding that city’s attempt to “keep stalling” negotiations was an outright refusal to bargain]; Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26 [initial refusal to bargain was a per se violation of the duty to bargain].) Board found that Alliance engaged in per se bad faith bargaining when it disavowed bargaining dates to which it agreed in interim MOUs and failed to respond to UTLA’s multiple requests for bargaining dates. (pp. 27-28)

Supposals—typically “what-if” ideas that a negotiator puts forward to test the waters, while acknowledging that the negotiator does not currently have authority and would need to obtain authority from the principal—are not inherently lawful or unlawful; their legality depends on whether they are part of a tactic that constitutes either per se bad faith bargaining or constitutes an indicator of bad faith under the totality test. The facts here presented the most extreme possible use of supposals: Alliance chose to bargain using supposals only, with no proposals. That was very different from the more typical approach in which a party has already made actual proposals but, seeing no agreement, uses a supposal discussion to learn what types of solutions are worth considering and what issues to raise with the party’s principal. Alliance’s non-standard use of supposals amounted to a refusal to make proposals, which was a fully independent, alternative ground for finding that its conduct constituted a per se violation. (pp. 17, 28-29)

For PERB to consider conduct as a per se violation, the conduct must either appear in the complaint or satisfy the unalleged violation doctrine; in contrast, these principles do not apply to a claim of bad faith under the totality of the conduct, as the complaint need not allege all bad faith indicia the evidence may support (and the answer need not allege all countervailing factors). (City of Davis (2018) PERB Decision No. 2582-M, pp. 10-17.) (p. 31, fn. 13)

Under the totality of circumstances, multiple indicators established that Alliance bargained in bad faith, including misrepresenting facts, employing evasive and dilatory tactics, canceling bargaining dates, failing to prepare adequately for negotiations, failing to take one’s bargaining obligation seriously, engaging in regressive bargaining. Alliance’s per se violations served as additional indicators of bad faith bargaining. The Board also considered essential the context in which the bad faith bargaining occurred, i.e., first-contract bargaining. In that context, PERB closely scrutinizes bargaining behavior because bad faith bargaining conduct during negotiations for an initial contract typically has a more deleterious effect on employee support for a nascent union than it would in a well-established collective bargaining relationship. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, pp. 5-8.) Alliance’s multiple bad faith acts were amplified in these circumstances. (pp. 31-36)

Board rejected Alliance’s false dichotomy between a party’s conduct during bargaining and a party’s conduct during the TA ratification process. Good faith bargaining demands that the entire course of parties’ 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; City of San Jose (2013) PERB Decision No. 2341-M, pp. 22-23; cf. San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16 [in evaluating a claimed failure to participate in good faith in impasse resolution procedures, PERB applies the same per se and totality of conduct tests that govern bad faith bargaining claims] and Regents of the University of California (2026) PERB Decision No. 3010-H, pp. 5-8 [same].) Alliance could not separate its bargaining for a first contract from ratification of that contract. (pp. 41-42)

Board rejected Alliance’s argument that UTLA’s execution of the Interim MOUs estopped UTLA from alleging that Alliance failed to bargain in good faith. Alliance argued that since UTLA received the benefit of the Interim MOUs, it could not dispute Alliance’s good faith in bargaining up to and including July 31, 2025, the date the parties executed the Interim MOUs. The gravamen of UTLA’s bad faith bargaining allegations concerned Alliance’s refusal to ratify the TAs, first on July 10, 2025, and next on September 10, 2025, and its subsequent conduct. Even if the recitals in the Interim MOUs could have bound UTLA as to conduct through July 31, 2025, nothing in the recitals came close to approaching a waiver of UTLA’s right to challenge Alliance’s conduct after that date. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11 [“waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right”].) There was ample evidence of Alliance’s bad faith post-dating the Interim MOUs to find that it violated its statutory obligations under EERA. (p. 42)

Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)

Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48)

Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)

Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48)

Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)

Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48)