Newark Unified School District (PERB 1895E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
NEWARK TEACHERS ASSOCIATION,
CTA/NEA,
Charging Party,
v.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
Case Nos. SF-CE-2377-E
SF-CE-2380-E
PERB Decision No. 	1895
March 	2 7 , 	2007
NEWARK UNIFIED SCHOOL DISTRICT,
Charging Party,
v.
NEWARK TEACHERS ASSOCIATION,
CTA/NEA,
Respondent.
Case No. SF-CO-640-E
Appearances: 	California Teachers Association by Ramon E. Romero, Staff Attorney, for
Newark Teachers Association, CTA/NEA; Miller, Brown & Dannis by John R. Yeh, Attorney,
for Newark Unified School District.
Before Duncan, Chairman; McKeag and Neuwald, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Newark Unified School District (District) to an
administrative law judge's (ALJ) proposed decision (attached). 	This decision involves
three consolidated cases. The unfair practice charge in Case No. SF-CE-2377-E alleged that
the District negotiated in bad faith when it would not bargain the selection of a health
insurance carrier with the Newark Teachers Association, CTA/NEA (Association). The second

charge on behalf of the Association, in Case No. SF-CE-2380-E alleged that the District
unilaterally established a pre-paid legal services program for bargaining unit employees. 	Case
No. SF-CO-640-E resulted from allegations by the District that the Association engaged in
surface bargaining and insisted to impasse on negotiating non-negotiable subjects. All three
cases include allegations that would violate the Educational Employment Relations Act
(EERA)1 section 3543.5(a), (b) and (c).
The Board has reviewed the entire record in each of these cases including, but not
limited to, the unfair practice charges, the complaints, correspondence from and between the
parties, the hearing transcript and exhibits, the briefs filed by the parties, the ALJ's proposed
decision, the exceptions filed by the District and the response filed by the Association. We
adopt the ALJ's proposed decision as the decision of the Board itself except as discussed
below.
BACKGROUND
The proposed decision has an extensive and thorough discussion of the facts relevant to
these cases. We find the factual discussion to be free of prejudicial error and adopt the findings
of fact, in their entirety, as the findings of the Board itself. The following is a summary of some
of the background facts relevant to the discussion in this decision.
The District's unfair practice charge against the Association alleged that the
Association bargained in bad faith using the totality of conduct standard. 	Specifically, the
District alleged that the Association unlawfully attempted to bargain to impasse the reporting
EERA is codified at Government Code section 3540, et seq. Unless otherwise indicated,
all statutory references herein are to the Government Code.
N
	2

of STAR2 test data (which the District believed to be outside the scope of representation) and
other items which the District asserts that the Association waived the right to negotiate (health
insurance carrier). 	The District alleged that the Association scheduled agenda items
(presentation of the California Public Employees Retirement System representative) without
notice to the District. Further, the District charged that the Association refused to submit
proposals, refused to discuss proposals, maintained a take it or leave it position, canceled
bargaining sessions without prior explanation and conditioned settlement of the 2003-2004
contract on negotiation of the 2004-2005 contract.
The Association alleged that the District unilaterally implemented a pre-paid legal
services program and that the District bargained in bad faith by refusing to bargain the health
care carrier offered to District employees. 	It was the Association's position that the health care
carrier was in scope and was re-opened under the re-opener clause on compensation in the
contract.
ALJ'S PROPOSED DECISION
On a motion by the Association, the ALJ consolidated the three cases over the objection
of the District.
In Case No. SF-CE-2377-E, the ALJ found that the District violated its obligation to
meet and confer in good faith by refusing to negotiate concerning the selection of a health
insurance carrier during the 2003-2004 re-opener negotiations. The ALJ concluded that
although the Association waived its right to negotiate the health insurance carrier under the
collective bargaining agreement, the District was obligated to bargain the Association's
-2 STAR refers to Standardized Testing and Reporting and is the student achievement
assessment device administered by the California Department of Education (CDE). 	(ALJ's
proposed dec. at p. 5, fn. 6, citing the CDE website.)
3

proposal when the parties re-opened the article in the agreement containing the health
insurance carrier waiver.
In Case No. SF-CE-2380-E, the complaint and underlying unfair practice charge
alleged that the District unilaterally implemented a pre-paid legal program.3 The ALJ
determined that the Association did not set forth a prima facie case because implementation of
the program did not have a generalized and continued impact on the bargaining unit. The ALJ
dismissed the complaint and unfair practice charge.
In Case No. SF-CO-640-E, the District alleged both bad faith bargaining and bad faith
participation in the impasse procedures. To support its allegations of bad faith bargaining, the
District cited the Association's insistence on negotiating the manner in which the District
received its STAR test results, canceling two bargaining sessions, failing to present written
proposals, attempting to bypass District negotiators and presenting a non-negotiable class size
proposal. 	Of those claims, the ALJ found only that the Association violated its obligation to
meet and negotiate in good faith when it insisted to impasse on its proposal related to the
STAR test results. He also found the Association violated its obligation to meet and negotiate
in good faith when it attempted to bypass the District's labor relations representatives and
proposed a preparation time schedule to elementary school principals in an attempt to resolve
pending grievances.
In determining whether a party has violated Section 3543.5(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. 	(Stockton Unified School District (1980)
3 While the District argued that the charge should have been dismissed based on
timeliness, the ALJ found the District did not show that the Association had knowledge of the
implementation of the pre-paid legal program in 2002 and therefore found it was not time-
barred. We agree with that finding.
4

PERB Decision No. 143 (Stockton).) Applying the totality of conduct test, the ALJ found that
notwithstanding these two instances of per se bad faith bargaining, "the Association's overall
conduct does not demonstrate a lack of subjective intent to reach an agreement" and dismissed
the allegation of bad faith bargaining.
The District also claimed that the Association engaged in bad faith conduct during the
impasse procedures by engaging in conditional bargaining (a per se violation when it has the
practical effect of preventing negotiations altogether according to Stockton). 	The District's
conditional bargaining allegation centered on the Association's expressed concerns about the
next year's negotiations, an argument rejected by the ALJ.
The ALJ also considered and rejected the District's argument that the Association
engaged in surface bargaining when it reneged on a tentative agreement. 	Surface bargaining is
found when a party goes through the motions of negotiations, but takes action to delay or prevent
agreement. (Muroc Unified School District (1978) PERB Decision No. 80.) Where there is an
accusation of surface bargaining, PERB will resolve the question of good faith by analyzing the
totality of the accused party's conduct. The Board weighs the facts to determine whether the
conduct at issue "indicates an intent to subvert the negotiating process or is merely a legitimate
position adamantly maintained." 	(Oakland Unified School District (1982) PERB Decision
No. 275.)
In this case the parties reached a tentative agreement, but the Association's
representative council did not ratify the tentative agreement. 	Even though the Association took
a neutral position when presenting the proposal to the representative council, the ALJ did not
find that this failure to endorse the agreement constituted reneging on the agreement.
According to the ALJ's analysis, the parties have no obligation to endorse a tentative
5

agreement absent agreement to do so. The District did not present and we have found no
authority to the contrary.
DISCUSSION
The following discussion includes the exceptions filed by the District,4 the
Association's response and the findings of the Board.
Case No. SF-CE-2377-E (alleges bad faith bargaining by the District)
The District excepted to the ALJ's conclusion that it bargained in bad faith over
selection of the health insurance carrier. The District also excepted to the ALJ's reliance on an
Association witness' testimony that the Association's proposal naming a carrier, was intended
to replace the consult language in the parties' collective bargaining agreement. Citing PERB
precedent, the District's exceptions state that "an exclusive representative can waive the right
to negotiate an otherwise negotiable subject by clear and unmistakable contract language."
(Amador Valley Joint Union High School District (1978) PERB Decision No. 74; Solano
County Community College District (1982) PERB Decision No. 219.) The District argues that
because the collective bargaining agreement included a waiver of the Association's right to
bargain the insurance carrier, the Association first had to present a proposal to abandon the
waiver language before the District would be required to negotiate a proposed health insurance
carrier. 	The Association's position is that the ALJ determined correctly that the District
engaged in bad faith bargaining by its flat refusal to negotiate the selection of a health
insurance carrier.
It is not disputed that the contract language (Section 13.14 of the collective bargaining
agreement) waives the right to negotiate the health carrier, with the parties agreeing instead to
The Association filed no exceptions to the proposed decision.
6

consult. However, it is also incontrovertible that the Compensation Article (Article 13) was
subject to negotiation during the 2003-2004 school year negotiations.5 Furthermore, the health
care carrier language in dispute is part of the Compensation Article that was re-opened. This
fact alone, that the health care carrier language was contained in the Compensation Article,
required the District to negotiate the Association's proposal related to that article. 	Therefore,
the District should have negotiated the proposal submitted by the Association, notwithstanding
the fact that the proposal did not include a proposed repudiation of the waiver.
We disagree with the portion of the ALJ's proposed decision that speculates about the
intent of the Association's proposal, however. The proposed decision at page 36 states that
"[t]he proposal identifying CalPERS as the health carrier was intended by the Association to
supplant the meet-and-consult language." While we find that the ALJ was correct in his
conclusion that the health carrier language was negotiable as part of the Compensation Article,
we need not speculate about the intent or nature of the Association's proposal in reaching that
conclusion. 	The ALJ's proposed decision should have concluded only that the subject of the
District's health care carrier was subject to negotiations by virtue of that topic's inclusion in
the Compensation Article of the collective bargaining agreement and we adopt the analysis in
the proposed decision to the extent that it makes that finding. 	We decline to adopt any
additional analysis of the ALJ on the subject of the negotiability of the health care carrier
language beyond that conclusion.
5The District and the Association were parties to a collective bargaining agreement for
the period of July 1, 2001 through June 30, 2004. Article 22 (Term and Renegotiation) at
section 22.1 of that agreement provides, in part, that for the 2003-2004 school year, "there
shall be re-openers in compensation and two other articles per party."
7

We therefore uphold the ALJ's conclusion that the District did not act in good faith in
advancing its positions related to the negotiability of the health care carrier and waiver
language.
Case No. SF-CE-2380-E (alleges unilateral implementation of a pre-paid legal services
program)
The District excepted to the ALJ's conclusion that pre-paid legal services are a form of
insurance providing future economic security that benefits the employee directly and is within
the scope of representation. 	The District's position is that the program is not insurance, offers
no future economic benefit, and does not relate to wages or another enumerated subject and is
a de minimus amount and therefore is not negotiable.
The ALJ determined that "the benefit is not actually the [pre-paid legal] plan itself, but
the payroll deduction" which the District allowed for employees to participate in the voluntary
plan. 	(ALJ's proposed dec, p. 38). The Association did not except to the ALJ's
determination. However, in its response to the District's exceptions, the Association argued
that the pre-paid legal service itself was a legal expense benefit and therefore a "term and
condition of employment" under EERA. 	EERA section 3543.2(a) defines "terms and
conditions of employment" as health and welfare benefits within the meaning of Government
Code Section 53200. 	Section 53200(d) includes within its definition of "health and welfare"
benefits "legal expense or related benefits . . . whether provided on an insurance or a service
basis."
We agree with the ALJ's determination that the District "provided nothing other than
the service of its payroll department in processing deductions to pay for the employees'
participation in the plan." As such, the issue is whether or not the payroll deduction is
negotiable based on the facts before us. As cited by the ALJ's proposed decision, the Board
8

has determined that not all payroll deductions are negotiable. 	(Jefferson School District (1980)
PERB Decision No. 133.) Rather, "the relationship of the deduction to an enumerated subject
in section 3543.2 must be demonstrated." (Ibid.) In this case, that relationship has been
demonstrated, because the payroll deduction is for a legal expense program which falls
squarely within the definition set forth in EERA.6
The ALJ found that the pre-paid legal services plan was akin to insurance and afforded
unit employees a future economic benefit and was therefore negotiable. 	Because we find that
the plan relates to an enumerated subject under Section 3543.2, we see no need to analyze
whether pre-paid legal services are akin to insurance.
To prevail on a complaint of unilateral change, the exclusive representative must
establish by a preponderance of the evidence that (1) the employer breached or altered the
parties' written agreement or own established past practice; (2) such action was taken without
giving the exclusive representative notice or an opportunity to bargain over the change; (3) the
change was not merely an isolated breach of the contract, but amounts to a change of policy (i.e.,
has a generalized effect or continuing impact upon the terms and conditions of employment of
bargaining unit members); and (4) the change in policy concerns a matter within the scope of
representation. (Grant Joint Union High School District (1982) PERB Decision No. 196.)
Although finding that the pre-paid service was negotiable, the ALJ concluded that the
District did not unilaterally implement the program, because the program did not have a
generalized and continued impact on the bargaining unit. 	The ALJ analyzed the District's
decision to disallow further enrollments pending the outcome of this case, the de minimus
involvement of the District in continuing the program and the small number of employees
6 As discussed above, Section 53200(d) includes within its definition of "health and
welfare" benefits "legal expense or related benefits . . . whether provided on an insurance or a
service basis."
9

involved in reaching that conclusion. We agree. Therefore, the Board upholds the ALJ's
ultimate conclusion in this case, with the clarification that the Board does not affirm the ALJ's
reasoning that pre-paid legal services are a form of insurance providing future economic
security.
Case No. SF-CO-640-E (alleges bad faith bargaining by the Association)
The bad faith bargaining allegation filed by the District charged the following: 	(1) the
Association insisted to impasse on negotiating non-negotiable subjects (the selection of health
insurance provider and the format of STAR results); (2) the Association cancelled bargaining
sessions; (3) the Association failed to present written proposals; (4) the Association attempted
to bypass District negotiators and presented a non-negotiable class size proposal. The
complaint also alleged that the District engaged in bad faith conduct during the mediation
phase of the impasse procedures.
The District excepted to the ALJ's rejection of the testimony of District witness Bill
Stephens (Stephens), the District's assistant superintendent of business, that he informed the
Association that funds were available to go to the unit. The exception is based on the District's
position that the ALJ misconstrued the testimony of Stephens and then based the conclusion on
something other than what Stephens actually said. 	If accepted, Stephens' testimony may have
supported the District's argument that the Association refused to discuss proposals and
maintained a "take it or leave it" position during negotiations. The Association asserts that the
ALJ's proposed decision was based on more than Stephens' testimony.
We find that the ALJ's determination was based largely on the credibility of Stephens
and other witnesses. The Board accords great deference to the ALJ's credibility findings
because the ALJ is in a better position to make those findings. (Long Beach Community College
District (1998) PERB Decision No. 1278, p. 10, citing Duarte Unified Education Association
10

(Fox) (1997) PERB Decision No. 1220 and Los Rios College Federation of Teachers (Deglow)
(1996) PERB Decision No. 1133.) We do not find evidence in the record to support the District's
credibility exceptions here. We also do not find grounds to change the ALJ's conclusion that
the Association did not engage in surface bargaining.
The District also excepted to the ALJ's finding that STAR test results are in any way
within the scope of bargaining. 	The District takes the position that the Association never
articulated that their proposal was intended to fall under the Evaluation Article of the collective
bargaining agreement that the District had re-opened.
The Association argues that the ALJ properly determined that the STAR test results
could be a negotiable subject of bargaining, conceding that the specific issue that the
Association proposed (the manner in which the results would be received and the proposal that
school principals not have access to them) impinged upon managerial rights.
A subject is negotiable, even though not enumerated in EERA, (1) if it is logically and
reasonably related to hours, wages, or an enumerated term and condition of employment;
(2) the subject 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 his freedom to exercise those managerial prerogatives, including matters of
fundamental policy, essential to the achievement of the school district's mission. 	(Anaheim
Union High School District (1981) PERB Decision No. 177.)
The Board need only determine the negotiability of the specific proposals in the case at
hand and the ALJ's proposed decision goes further. 	Therefore, the Board upholds the ALJ's
conclusion that the Association's proposal regarding the make up and dissemination of the
11

STAR results was not negotiable and impinged upon managerial rights, without further
analysis. 	There was no basis for speculation about how the subject of STAR test results
"could" fall within the evaluation article.
ORDER
Case No. SF-CE-2377-E
Based upon the foregoing discussion and the entire record in this matter, the Public
Employment Relations Board (PERB or Board) finds that the Newark Unified School District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.5(a), (b) and (c), when it failed to meet and negotiate in good faith by refusing,
during the 2003-2004 re-opener negotiations, to negotiate concerning the selection of a health
insurance carrier.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the District and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the Newark
Teachers Association, CTA/NEA (Association) as the exclusive representative of its
certificated employees by refusing during the 2003-2004 reopener negotiations to negotiate
concerning the selection of a health insurance carrier.
2. 	By the same conduct, interfering with bargaining unit employees' right
to participate in the activities of an employee organization of their choosing.
3. 	By the same conduct, denying to the Association rights guaranteed by
EERA, including the right to represent its members.
12

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION ACTIONS DESIGNED
TO EFFECTUATE THE POLICIES OF EERA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations in the District where notices to employees
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, indicating that the District will comply with
the terms of this Order. 	Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
2. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The District
shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on the Association.
Case No. SF-CE-2380-E
The Board finds that the District did not fail to meet and negotiate in good faith with
regard to the pre-paid legal services plan. 	Therefore, the complaint and underlying unfair
practice charge in Case No. SF-CE-2380-E are hereby DISMISSED.
Case No. SF-CO-640-E
Based upon the foregoing discussion and the entire record in this matter, the Board
finds that the Association violated EERA, Government Code section 3543.6(c), when it failed
to meet and negotiate in good faith by (1) insisting to impasse on a proposal to have the
District elect to receive the Standardized Testing and Reporting (STAR) test results without the
data being disaggregated by teacher, and (2) by attempting to bypass the District's labor
13

relations representatives when proposing a preparation time schedule to the District's
elementary school principals for the purpose of resolving pending grievances.
Pursuant to EERA section 3541.5(c), it is hereby ORDERED that the Association and
its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Insisting to impasse on bargaining a proposal to have the District elect to
receive the STAR test results without the data disaggregated by teacher.
2. 	Bypassing or attempting to bypass District bargaining representatives by
directly communicating with District management staff for the purpose of settling grievances
or disputes over negotiable matters.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Within ten (10) workdays following the date this Decision is no longer
subject to appeal, post at all work locations in the District where notices to employees
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the Association, indicating that the Association will
comply with the terms of this Order. 	Such posting shall be maintained for a period of thirty
(30) consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not
reduced in size, altered, defaced, or covered with any other material.
2. Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The Association
14
.

shall provide reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on the District.
All other allegations in Case No. SF-CO-640-E are hereby dismissed.
Members McKeag and Neuwald joined in this Decision.
15

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-2377-E, Newark Teachers
Association. CTA/NEA v. Newark Unified School District, in which all parties had the right to
participate, it has been found that the Newark Unified School District violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and (c), when it
failed to meet and negotiate in good faith by refusing, during the 2003-2004 re-opener
negotiations, to negotiate concerning the selection of a health insurance carrier.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the Newark
Teachers Association, CTA/NEA (Association), as the exclusive representative of its
certificated employees by refusing during the 2003-2004 reopener negotiations to negotiate
concerning the selection of a health insurance carrier.
2. 	By the same conduct, interfering with bargaining unit employees' right to
participate in the activities of an employee organization of their choosing.
3. 	By the same conduct, denying to the Association rights guaranteed by EERA,
including the right to represent its members.
Dated: 	NEWARK UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CO-640-E, Newark Unified School
District v. Newark Teachers Association. CTA/NEA, in which all parties had the right to
participate, it has been found that the Newark Teachers Association, CTA/NEA, violated the
Educational Employment Relations Act, Government Code section 3543.6(c), when it failed to
meet and negotiate in good faith by (1) insisting to impasse on a proposal to have the Newark
Unified School District (District) elect to receive the Standardized Testing and Reporting
(STAR) test results without the data being disaggregated by teacher, and (2) by attempting to
bypass the District's labor relations representatives when proposing a preparation time
schedule to the District's elementary school principals for the purpose of resolving pending
grievances.
As a result of this conduct, we have been ordered to post this Notice and we will:
CEASE AND DESIST FROM:
1. 	Insisting to impasse on bargaining a proposal to have the District elect to receive
the STAR test results without the data disaggregated by teacher.
2. 	Bypassing or attempting to bypass District bargaining representatives by
directly communicating with District management staff for the purpose of settling grievances
or disputes over negotiable matters.
Dated: 	NEWARK TEACHERS ASSOCIATION,
CTA/NEA
By:
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
NEWARK TEACHERS ASSOCIATION,
Charging Party,
v.
NEWARK UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NOS. SF-CE-2377-E
SF-CE-2380-E
NEWARK UNIFIED SCHOOL DISTRICT,
Charging Party,
v.
NEWARK TEACHERS ASSOCIATION,
Respondent.
UNFAIR PRACTICE
CASE NO. SF-CO-640-E
PROPOSED DECISION
(4/18/05)
Appearances: 	California Teachers Association, by Ramon E. Romero, Staff Attorney, for
Newark Teachers Association; Miller, Brown & Dannis, by John R. Yeh and Lori K. Schnall,
Attorneys, for Newark Unified School District.
Before Donn Ginoza, Administrative Law Judge.
PROCEDURAL HISTORY
In three unfair practice charge matters consolidated for hearing and decision, a teachers
union and a public school employer charge each other with bad faith bargaining during
reopener negotiations for the 2003-2004 school year.
On January 29, 2004, the Newark Teachers Association (Association) filed its first
unfair practice charge (case no. SF-CE-2377-E) alleging that the Newark Unified School
District (District), during the negotiations, maintained that the selection of a health insurance
provider was a non-negotiable subject. 	On February 13, 2004, the Association filed its second
unfair practice charge (case no. SF-CE-2380-E) alleging that the District implemented a

unilateral change by establishing a pre-paid legal services program for bargaining unit
employees.
On February 20, 2004, the District filed its unfair practice charge (case no.
SF-CO-640-E) 	alleging that the Association engaged in surface bargaining and insisted to
impasse on negotiating non-negotiable subjects (selection of a health insurance provider and
format of state-reported student test results).
On March 8, 2004, the General Counsel of the Public Employment Relations Board
(PERB or Board) issued a complaint in case number SF-CE-2377-E alleging that the District
unilaterally repudiated its policy of consulting on the selection of health insurance providers.
On April 1, 2004, a complaint issued in case number SF-CE-2380-E alleging that the District
unilaterally implemented a pre-paid legal services plan for the benefit of bargaining unit
members. The conduct specified in each of these complaints is alleged to violate Educational
Employment Relations Act (EERA or Act) section 3543.5(a), (b) and (c).1
1 Unless otherwise indicated all statutory references are to the Government Code. The
EERA is codified at section 3540 et seq. In relevant part, section 3543.5 provides as follows:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. 	For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative. Knowingly providing an exclusive
representative within accurate information, whether or not in
response to a request for information, regarding the financial
22

On April 22, 2004, a complaint issued in case number SF-CO-640-E alleging that the
Association engaged in surface bargaining, insisted to impasse on non-negotiable subjects, and
attempted to bypass the District's negotiators. This conduct is alleged to violate section
3543.6(c).2
On March 29, and April 21, 2004, the District answered the complaints in case numbers
SF-CE-2377-E and SF-CE-2380-E, respectively, denying all material allegations and asserting
a number of affirmative defenses.
On May 3, 2004, the Association answered the complaint in case number
SF-CO-640-E, denying all material allegations and asserting a number of affirmative defenses.
On May 25, 2004, the District moved to amend its complaint, seeking to add allegations
that (1) the Association's insistence on bargaining over the format in which the state-reported
student test results were received constituted indicia of bad faith (as well as the already alleged
per se bad faith bargaining violation), and (2) the Association participated in the impasse
procedures in bad faith by reneging on a tentative agreement brokered by the mediator and
engaging in conditional bargaining.
On August 27, 2004, the undersigned granted a motion by the Association to
consolidate the three cases for formal hearing.
On October 18, 2004, the Association moved to amend the complaint in case number
resources of the public school employer constitutes a refusal or
failure to meet and negotiate in good faith.
2 Section 3543.6(c) provides that it shall be unlawful for an employee organization to:
Refuse or fail to meet and negotiate in good faith with a public
school employer of any of the employees of which it is the
exclusive representative.
w
	3

SF-CE-2377-E to allege that the District engaged in bad faith bargaining by refusing to
negotiate concerning health insurance provider options (rather than by unilaterally repudiating
the policy of consulting as to that subject).
The undersigned conducted a formal hearing in Oakland on October 20, 21, and
November 8, 2004. At the outset of the hearing, the undersigned granted the District's motion
to amend its complaint. The undersigned reserved ruling on the Association's motion to
amend its complaint, and later in the course of the hearing granted that motion as well.
With the receipt of post-hearing briefs on January 31, 2005, the matter was submitted
for decision.
FINDINGS OF FACT
The District is a public school employer within the meaning of section 3540.l(k) of the
Act. 	The Association is an employee organization within the meaning of section 3540.l(d) and
an exclusive representative within the meaning of section 3540.l(e). PERB has jurisdiction in
this matter.
Commencement of the Negotiations
The District and the Association were parties to a collective agreement for the period of
July 1, 2001, through June 30, 2004. Article 22 ("Term and Renegotiation"), section 22.1, of
that agreement provides, in pertinent part, that "[f]or the 2003-2004 school year, there shall be
re-openers in compensation and two other articles per party."
Pursuant to this provision, the parties reopened the agreement in the spring of 2003.
The Association chose to reopen the contract's articles on class size and workday. The District
chose to reopen only the article on evaluations. By the terms of the agreement, the
compensation article was opened without need for election by either party. 	The parties
sunshined their proposals, but, at least as to the Association's February 27, 2003, proposal (the
44

only one entered into evidence), the proposals state nothing more than the intention to reopen
the cited contract articles.
Around this time, the District also announced plans to lay off 120 bargaining unit
members. 	The Association responded with a proposal to bargain the effects of the layoffs. 	By
mutual consent the parties agreed to combine the effects-bargaining and the reopener
negotiations. 	In the initial sessions the parties prioritized the bargaining subjects and agreed to
deal with the layoff effects first. 	Several sessions were devoted to this subject until two side
letters were executed in June 2003.
On June 4, 2003, Association President Phyllis Grenier submitted a demand to bargain
the effects of a change in the reporting procedure for STAR/CAT6 student test results. 	In the
past, STAR3 results had been released to the school districts listing scores of students, for each
grade level of testing. 	Grenier learned from the California Teachers Association (CTA) during
the summer of 2003 that the Department of Education would for the first time be releasing test
scores disaggregated by teacher. Thus, a list of test scores for students in each grade level
class would be grouped and reported according to teacher. 	The reports were presumably
intended for use by the teachers themselves, because teachers were the ones to receive the
results.4
3 STAR (Standardized Testing and Reporting) is the student achievement assessment
device administered by the California Department of Education in cooperation with school
districts. The department's website states that the "[t]est results are used for student and
school accountability purposes." 	(California Department of Education Web site
<http://www.cde.ca.gov/ta/tg/sr>.)
4 While previously the information in this form could have been obtained manually by
pulling the test scores for each student and then grouping them by teacher, this report
constituted a new state format.
55

Resumption of Negotiations in the Fall of 2003
It was known in the spring of 2003 that District Superintendent Ken Sherer would be
retiring at the end of that school year. The District chose John Bernard to succeed him.
Bernard commenced his new position effective July 1, 2003. 	The departure of Sherer also
marked a wholesale change in the District's top administrative positions, including the
positions of director of personnel and chief business officer.
Going into the new school year, the District also chose a new bargaining team, headed
by Sandra Woliver, a labor relations attorney. 	Woliver was the team's chief spokesperson.
Also on the District's team were Interim Director of Personnel John Casey and Chief Business
Officer William Stephens. 	The Association's team was newly constituted as well, headed by
Diane Lisi, a California Teachers Association staffperson. 	Also included were Jacob
Goldsmith, a high school mathematics teacher, and two others.
The first reopener negotiation session for the new teams took place on
September 22, 2003. This one was followed by sessions on October 7, October 23, November
6, and December 15, 2003. Both parties acknowledge that neither party came to the
negotiations with written proposals. For at least three of the sessions (October 7, October 23,
and November 6), it was the Association presenting an agenda for the meetings.
At the September 22, October 7, and October 23 sessions, the Association raised
concerns about the distribution of the STAR test reports with listings by teacher because of its
potential for use by administrators in evaluations, as well for establishing individual
reputations of teachers that might generate unwanted scrutiny by parents and the community.
At the time, Woliver was aware that some discussions concerning the STAR test results were
taking place away from the table. Woliver resisted the subject, claiming it was a non-
negotiable matter. 	Woliver interpreted the Association's position on each occasion as seeking
66

a change in the manner in which the District "received" the reports from the state and "how
they were or were not disseminated." Bernard testified that the state had reported that the
teacher reports (which followed the student reported results by several months) would be sent
to the District separated by school, but that all the teachers' results would be in one envelope
for each school.
At the October 7 session, Woliver probed the negotiability of the subject but found the
Association's explanation to be unpersuasive and "circular." Woliver asserted that at the
October 23 session the Association again demanded that the results not be disaggregated by
teacher and that she responded that there would be no change in the manner in which the
results were received from the state. 	Woliver asserted that "confidentiality" was not an issue
raised initially by the Association, but acknowledged that the Association eventually
communicated that concern. 	Stephens and Casey, at least over time, had no difficulty
appreciating the core concern of the Association, namely, the need for confidentiality of the
results.5 Nevertheless, Woliver believed the Association never presented a proposal on this
matter that was within scope.
While acknowledging that the District had reopened the evaluation article (art. 9),
Woliver denied that the Association's proposal fell within the subject matter of that article.
The contract's evaluation article does not specifically address use of STAR test results in
evaluations. However, section 9.7 ("Assessment Methods"), subsection 9.7.1, provides:
Methods to be utilized in the assessment of student progress shall
be consistent with stated objectives. 	Such methods of assessment
may include use of state, District, and/or department test norms
[but not publishers' norms established by standardized tests (See
Ed. Code section 44662)] utilizing pre- and post-testing methods;
Lisi also testified that despite Sherer having some difficulty initially understanding the
Association's proposal in June 2003 to negotiate the effects of the new STAR results format,
he never asserted that the subject was not negotiable.
77

product output measuring quality and/or quantity; performing
output; observation and records; and other techniques.
In addition, the bracketed language in the quote above is essentially restated in subsection
9.2.8. Nowhere does the article specifically define "student progress." Subsection 9.5.3, under
the section entitled "Proposed Objectives," states that the teacher's individually selected
objectives for the evaluation process must be consistent with "educational goals, objectives and
standards of student progress established by the state, the District, the School and/or the
department program." The District has never had a policy of allowing STAR results to be a
factor in teacher evaluations, and its bargaining team tried to assure the Association that that
would not occur going forward.6
Woliver referred the Association to the evaluation article and invited the Association to
present a proposal that was related to evaluations and within scope. Ultimately, at the
November 6 session, the Association presented a written proposal on dissemination of the
STAR results, which is discussed below.
At the October 7 session, the parties also discussed the subject of class size. The
Association presented its concern with "special day class" students being mainstreamed into
classes without an aide for each student. The Association also expressed a concern about
unusually large high school classes. The existing contract language only contained a limit of
150 student contacts for each teacher in grades 7 through 12 for specified subjects, with a $30-
per-student stipend to be paid after November 1 for each student exceeding the cap. The
6 The District's original idea in reopening the evaluation article was to standardize the
evaluation form to more closely parallel the teaching standards identified by the Department of
Education. 	Specifically, the District wanted to ensure that the instrument contained all of the
state teaching standards. The District made an oral proposal on this, but after the Association
explained that the current instrument covered all the standards, the District abandoned it.
8

Association verbally proposed a cap of 30 students per class. The parties ended the October 7
session without movement.
Article 13 of the contract addresses compensation. The contract does not specify what
health and welfare benefits are provided. 	Instead, the amount that might typically be allocated
to various benefits is simply added on top of the salary assigned to each employee by the salary
schedule. The contract only requires the District to maintain an Internal Revenue Code
section 125 plan so as to ensure that the portion that the employee allocates to such premiums
is treated as pre-tax income. Section 13.14 of the article stipulates:
As long as the District maintains an Internal Revenue Code
section 125 plan, subject to the terms of the plan and applicable
law, the Association and the District shall consult concerning the
health carrier options, which will be selected by the Association,
subject to administrative feasibility and Board approval.
Under the current contractual language the District payroll deducts from employee paychecks
and allocates those monies to a health carrier it has chosen, in consultation with the
Association. As noted below, this language is also a waiver of the Association's right to
negotiate the choice of the health carrier. 	The District made no initial proposal regarding
compensation.
At the October 23 session, the Association proposed a change to designate the
California Public Employees Retirement System (CalPERS) as the health carrier for the unit.
According to the testimony of Woliver, the District understood that the Association was
seeking to identify a specific health carrier. 	The District responded that the contract's
language constituted a waiver of the right to negotiate over this subject (i.e., the subject was
limited to a meet-and-consult item). 	Woliver testified that because the Association also failed
to make a written proposal that first eliminated the waiver language, the District had no
obligation to entertain the proposal, other than as a meet-and-consult item.
9
9

Goldsmith, testifying for the Association, acknowledged that no such proposal to first
eliminate the waiver language was proposed, but countered that because the Association's
proposal was mutually exclusive with the language of section 13.14, such a proposal was, at
the very least, clearly implied. Moreover, Goldsmith testified that he explained this exclusivity
to the District. Further, although conceding there initially might have been a lack of clarity
regarding this point, Goldsmith recalled that he eventually advised the District that the intent
of the proposal was to supplant the meet-and-consult language of the article.
Q: 	And was the Association also proposing to change the
language in Section 13.14 to eliminate just the right to consult
about health carriers?
A: 	Yes. And at the time there seemed to be a little
miscommunication here. The District seemed to have the point of
view that we were working within that contract language trying to
change the healthcare provider. And that was mistaken. I clearly
explained, and I spoke to this personally, I clearly explained that
what we were seeking was to replace, we were actually
negotiating that language itself and what we were seeking to
replace that consult language with the proposal in [the written
proposal7], CalPERS shall be the health insurance provider to
Newark Teachers Association members.
The District provided no direct rebuttal to this testimony and I credit Goldsmith's testimony in
this regard. 	Woliver testified that at some point - probably at this juncture - she complained
about the Association raising "extraneous issues" and asked that the parties "get down to
business."
The November 6 session was scheduled to be an all-day meeting. The Association
spent most of the first hour caucusing.8 Then, without having provided prior notice to the
District or obtained its consent, the Association introduced a representative from CalPERS to
7 The written proposal was provided at the November 6 session, discussed below.
10
Woliver cited the fact that around this time the Association's caucusing began to be a
problem by slowing the pace of negotiations.

provide an explanation of the CalPERS medical benefit plan. 	The District team allowed the
representative to speak to avoid any awkwardness and as a courtesy to her. The presentation
took up the entire morning session. 	The Association team announced that following lunch, it
would present written proposals.
After the break, the Association presented a package of three proposals, its first
proposals that were in writing. The Association's health care proposal states:
Health Care and Compensation
Proposal: 	CalPERS shall be the health insurance provider to
Newark Teachers Association members.
Proposal: 	The $6324 that has been placed on the salary schedule
to cover health care costs shall be increased to the actual annual
cost of family health care coverage under the current plan. 	In the
future, this portion of the salary schedule shall automatically
increase to match any increase in the annual cost of family health
care coverage under the current plan but shall not be affected by
negotiated changes to the salary schedule.
Proposal: 	The district contribution to health care for employees
and retirees shall be the minimum amount required by law.
The Association's class size proposal included changes to various sections of article 8. 	One of
the language changes would have required that the instructional aide obligation to special-day-
class students attach to each student individually rather than the class as a whole, thus
increasing the number of aides required. 	Another proposed a 31-student cap for high school
and junior high school classes. 	Various other proposals addressed the ramifications of
changing to a fixed class-size cap as it related to the stipend for overages.
The Association submitted a proposal entitled "Test Results Reporting." The proposal
read as follows:
The State of California will be sending confidential test data to
each school district. The test data shall be handled in the
following manner:
11

1. 	The district shall distribute the sealed data to each school
site.
2. 	Envelopes shall remain sealed until the teacher unseals
them.
3. 	No one but the teacher should see the sealed test data.
4. 	The teacher is under no obligation to share this
information, nor should administrators request this
information from teachers.
5. Envelopes shall be distributed at staff meetings, not
individually.
6. 	Administrators shall not tamper with the envelopes.
7. 	The district will elect to receive from the state only grade
level information (not teacher specific information).
The District responded to these proposals. The District rejected the STAR testing
proposal as being outside of scope.9 It rejected the health care proposal's escalator clause as
being too costly, stating the District had no money, and the CalPERS proposal on grounds that
selection of the health carrier was only a meet-and-consult item. Woliver stated the District
would certainly agree to consult on the matter. The District also rejected the class size
proposals as too costly.
9 	Incoming Superintendent Bernard testified that Grenier contacted him in October
2003 concerning the dissemination of the test scores by teacher. 	An away-from-the-table
exchange then ensued. Beginning with an October 20, 2003, memorandum, Grenier and
Bernard exchanged correspondence, in which Grenier conveyed her concern about the test
scores being delivered in sealed envelopes which would not be opened by the principals.
Bernard agreed to address this concern. 	He ultimately proposed that a joint communique issue
from the two of them containing instructions for distribution of the results which memorialized
their agreement. 	Grenier was provided a draft of this communique but she never responded to
it, until Bernard was compelled by time factors to act. 	With no contact from Grenier, Bernard
informed Grenier he could delay the distribution no longer and would send out the cover
memorandum with his signature alone and a notation that Grenier was a copy recipient. 	A few
hours later the same day, Grenier responded to Bernard, conveying her understanding that the
District was insisting at the bargaining table that the subject of dissemination of the STAR
results was outside the scope of representation. Her e-mail ended with an objection to the
District bargaining team's position at the table.
12

Casey testified that the District never had any interest in making movement on the high
school cap proposal. 	Goldsmith testified that each of the class size proposals involved cost and
that the Association stated it was not interested in any counterproposal that did not add money.
The Association viewed the District's response as rejecting any proposal that involved
additional costs to the District. 	The District team did not disabuse the Association of that
notion, in response to which the Association indicated there was really nothing further to
discuss. 	The District then asked if that statement was intended to mean that the Association's
proposal was a "take-it-or-leave-it" proposal, to which the Association responded
affirmatively.
Stephens had concluded, based on a review of District finances, that there were funds in
reserve which could be moved to the general fund and be made available for bargaining with
the Association. He testified that he informed both bargaining teams of this. However, he also
testified that Woliver never stated there was money available. 	Casey appeared to contradict
Stephen's point as well, testifying that Woliver never informed the Association, if, or how
much, money was available for bargaining. 	Woliver testified:
We were offering no money. There was discussion in terms of
class size, but we were not offering or making a proposal or
counterproposal that would have had attendant costs.
Goldsmith also recalled the District refusing to consider any proposal that would be a cost
item, and Stephens stating that "there is no money." Lisi testified that she counted three
occasions on which the District stated that it was not offering any money. 	I reject Stephens's
testimony that he informed the Association that there were funds available to go to the unit.10
To Stephens was shown a local editorial article that noted the District had reserves
remaining from a capital projects local tax measure. 	He did not dispute its claim that the
District had approximately $6.1 million in reserves. The District does not currently have a
parcel tax revenue stream. 	Lisi acknowledged there were "leaks" about the financial reserves,
but the District never came forward with an offer.
13

The next two scheduled sessions were cancelled at the request of the Association. Lisi
had temporarily removed herself from the reopener negotiations in the fall of 2003 to head up
bargaining in another district. A CTA intern took her place. 	Lisi returned to these negotiations
on November 6, 2003. She was the one who requested the cancellations because the sessions
scheduled in advance were not on her calendar. The District never complained to the
Association about the cancellations.
The final negotiating session occurred on December 15. The District indicated its
willingness to discuss class size, workday, and compensation. It remained unwilling to
negotiate the CalPERS proposal. According to Goldsmith, the District stated that it was
proposing a zero-percent change to the salary schedule; it would only entertain class changes
that did not involve added cost; and there would be no movement on its part. 	The Association
then declared that the parties were at impasse. The District responded that the Association was
bargaining in bad faith. 	The Association leveled the same charge at the District's bargaining
team. 	The Association left the session at noon.
The District's witnesses testified that they opposed the impasse because negotiations on
compensation had not been exhausted and the parties had not reached the point where the
District could make a financial offer.11 Goldsmith testified that the Association believed the
parties had reached impasse, notwithstanding the District's apparent willingness to continue
discussing cost-neutral proposals on class size:
Possibly we would have considered such proposals as part of an
entire package. But with the tone of the [negotiations] when the
District had said that no money was available for anything, we
understood that we wouldn't be able to make any significant
progress toward a settlement just moving in the field of cost
neutral class size adjustments.
TI 	Woliver asserted that the District never offered "$0" and that it was denied an
opportunity to counter-propose some financial movement.
14

As to the subject of the workday, though the matter appeared on the agenda twice,
neither side made a proposal. 	The Association initially expressed interest in limiting the
adjunct duties of high school teachers, but eventually abandoned that issue. The Association
also declined to discuss the matter because it had several pending grievances on the subject
which were proceeding to arbitration. 	Casey suggested that the District was interested in
negotiating this subject. However, the District never offered a proposal on the subject.
Casey noted there had been "side discussion" about the reinstatement of preparation
periods at the elementary schools. On December 19, the last day before the winter break, Lisi
sent a proposed daily schedule for elementary schools to the elementary school principals
designed to show how the preparation period could be restored at each school. The District
had no advance notice of this direct communication. Casey instructed the principals to ignore
it.
Lisi had been informed by an Association member that meetings were being held by the
principals to obtain teachers' input regarding the reconfiguration of the preparation time
schedule. 	The input of the science teachers whose scheduling tied in directly to the preparation
time schedule was allegedly being ignored. 	Lisi solicited the input of the science teachers.12
Lisi testified that she wanted to present a proposal that included the input of the science
teachers. Subsequently, on the day of the arbitration scheduled as to the pending grievances,
the parties agreed to a settlement that included the reinstatement of the preparation time.
In February 2004, a flyer was posted at Graham Elementary School announcing there
would be a presentation by a pre-paid legal services vendor at a staff meeting. Grenier was a
part-time teacher at Graham. 	She did not attend the meeting, but saw the flyer. Unbeknownst
12 Moving the preparation period to the beginning of the school satisfied the regular
teachers, but the science teachers were inconvenienced.
15

to the Association, Sherer had arranged or contracted with the vendor in February 2002 to
allow employees to participate in the plan through District payroll deductions. The District
made no monetary contribution of its own on behalf of the participating employees.
Approximately 15 to 20 employees signed up for the plan. Approximately five to six of these
were bargaining unit members.
When Grenier protested this ostensible unilateral change to Casey, Casey investigated.
Being new to the District, Casey had no prior knowledge of the plan and discovered the facts
described above. He learned that Sherer had a written agreement with the agency to allow
solicitation of employees. 	After his investigation Casey ordered the presentations to cease. He
did allow the existing enrolled employees to maintain their payroll deductions. Despite
Casey's assertion that he ordered the solicitations to cease, Goldsmith discovered a flyer from
the vendor in the high school faculty lounge in October 2004.
Bernard's principal concern was that the presentations had occurred on staff time.
Although he acknowledged Sherer's prior agreement allowing access to the company, he told
the representatives that it was not an agreement he signed and
therefore this was something that was not going to continue. As
was it to the point of saying that they were no[] longer allowed to
do business, I don't remember saying those words but I think the
impact of that is probably pretty true.
Bernard did not believe that even voluntary meetings occurred after the directives. 	Appearing
to contradict Casey, Bernard testified that if an employee did want to join, he or she could
authorize District payroll deductions.
Impasse Procedures
Following an Association request to PERB, a determination issued that the parties were
at impasse. PERB appointed a mediator. Two mediation sessions were held. No progress was
made at the first. 	At the second, the mediator brokered a proposal for a settlement that
16

included a one-time, off-the-salary-schedule payment of $1620 per employee. 	The agreement
contained other less significant provisions, such as the Association's withdrawal of pending
unfair practice charges. 	Goldsmith believed the mediator suggested or intimated to both
parties that the proposal was generated by the other party. He denied that it was an
Association proposal.
During the time that mediation was occurring, the Association had constituted a
separate bargaining team to commence negotiations for a successor agreement to the 2001-
2004 agreement (also referred to as the 2004-2005 negotiations). Members of both teams were
present at a meeting in early May 2004, when the 2003-2004 bargaining team presented the
proposed tentative agreement to the Association's leadership group, known as the Rep Council,
comprising approximately 20 individuals. 	Goldsmith testified that he laid out the terms of the
proposal:
I felt it appropriate to present the information, to present the
settlement and then to some degree stand back from deliberations.
The bargaining team took a neutral position on the proposal; it did not argue that the Rep
Council should either accept or reject the proposal. There followed a discussion of the pros
and cons of the settlement. A vote was taken and the settlement was rejected. Although
Goldsmith took no poll of individual members as to why they voted to reject, he concluded that
the chief reason stemmed from the District's refusal to increase the salary schedule
and approve its selection of CalPERS. 	Goldsmith denied that the 2004-2005 bargaining team
specifically expressed "anger" toward the District for the 2003-2004 settlement proposal. 	At
the same time, he acknowledged the interrelatedness of the bargaining strategies of the
separate teams due to the cause-and-effect relationship of any settlement in the 2003-2004
negotiations.
17

The District's governing board voted to accept the settlement proposal. New Director
of Personnel Keith Rogenski had occasion to discuss the Association's rejection of the
settlement on May 10 with Lisi prior to a 2004-2005 bargaining session. Both expressed
disappointment at the Association's rejection. Lisi, who was not present at the Rep Council
meeting, speculated that the rejection might have been related to the successor agreement
bargaining based on her knowledge that that topic was also an agenda item at the same
meeting. 	Woliver learned from someone that the Association had presented the 2004-2005
proposals at the same meeting as the tentative agreement, that this angered the membership,
and led to rejection of the tentative agreement. She could not pinpoint who the source of the
information was, but she suggested it might have been Rogenski. Rogenski could not recall
providing such information to Woliver. 	Woliver testified that the District was "astonished"
that the Association had rejected the tentative agreement because it was "their proposal."
In the successor agreement bargaining, the Association proposed both the elimination
of the waiver language and the selection of CalPERS. 	The District maintained that these
subjects were not negotiable. According to Rogenski, the District maintained that position to
the point of impasse.
In October 2004, Rogenski notified the Association that it was adopting CalPERS as
the health insurance carrier for unit members under the meet-and-consult provisions of the
contract.
ISSUES
1. 	Did the Association bargain in bad faith by insisting on negotiating, to the point
of impasse, the subjects of STAR testing results and the health insurance carrier?
2. 	Did the Association bargain in bad faith by bypassing or attempting to bypass
District negotiators as to restoration of elementary school preparation time?
18

3. 	Did the Association engage in bad faith, surface bargaining under the "totality
of the conduct" test?
4. 	Did the Association participate in the impasse proceedings in bad faith by
reneging on a tentative agreement, by conditioning agreement on matters in the 2004-2005
negotiations, or by the totality of its conduct?
5. 	Did the District bargain in bad faith by refusing to negotiate elimination of the
waiver language limiting the selection of a health insurance provider to a meet-and-consult
item?
6. 	Did the District unilaterally implement a pre-paid legal services plan for the
benefit of unit members without providing the Association an opportunity to bargain over the
new policy?
CONCLUSIONS OF LAW
Association Bad Faith Bargaining
The complaint issued against the Association alleges that it violated the EERA by
engaging in bad faith conduct during the 2003-2004 negotiations, and (by way of the pre-
hearing amendment to the complaint) bad faith conduct during the mediation phase of the
impasse procedures as well. As to the bargaining phase, the underlying conduct specifically
alleged in the complaint consists of the Association's insisting on negotiating the manner in
which the District received its STAR results, canceling two bargaining sessions, failing to
present written proposals, attempting to bypass District negotiators, and presenting a non-
negotiable class size proposal.
In determining whether a party has violated section 3543.5(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. 	(Stockton Unified School District (1980)
19

PERB Decision No. 143.) The complaint, by alleging that the bad faith conduct "includ[es],
but [is] not limited to," the specific acts alleged, sets out a theory of "surface bargaining" as to
the negotiations and the impasse procedures. In such cases, the ultimate issue is whether the
respondent lacked a "genuine desire to reach agreement" based on the totality of its conduct.
(Pajaro Valley Unified School District (1978) PERB Decision No. 51; Oakland Unified School
District (1982) PERB Decision No. 275.) In Muroc Unified School District (1978) PERB
Decision No. 80, PERB stated:
Specific conduct of the charged party, which when viewed in
isolation may be wholly proper, may, when placed in the
narrative history of the negotiations, support a conclusion that the
charged party was not negotiating with the requisite subjective
intent to reach agreement.
The case law has identified a number of indicia which may serve to demonstrate bad
faith: (1) entering into negotiations with a "take-it-or-leave-it" attitude (General Electric Co.
(1964) 150 NLRB 192, 194 [57 LRRM 1491]); (2) recalcitrance in the scheduling of meetings
(Oakland Unified School District (1983) PERB Decision No. 326); dilatory and evasive tactics,
such as canceling meetings or coming unprepared (id); conditioning agreement as to
mandatory subjects of bargaining on agreement as to non-mandatory subjects (State of
California (Department of Personnel Administration ) (1998) PERB Decision No. 1249-S);
employing negotiators lacking in adequate authority (Stockton Unified School District, supra,
PERB Decision No. 143); refusing to provide information (id); reneging on tentative
agreements (Charter Oak Unified School District (1991) PERB Decision No. 873); failure to
act on the other side's proposals or to offer counterproposals (Jefferson School District (1980)
PERB Decision No. 133). Other conduct which constitute per se violations of the duty to
bargain in good faith, such as unilateral changes, are also considered within the totality of the
conduct. 	(See Stationary Engineers v. San Juan Suburban Water Dist. (1979) 90 Cal.App.3d
20

796, 802 	[153 Cal.Rptr. 666].) The complaint further alleges that the Association's attempted
bypassing constitutes an independent per se violation of the duty to bargain in good faith.
Although not so alleged specifically as to the impasse procedures, I will analyze whether the
Association engaged in conditional bargaining so as to constitute a per se violation and
whether the Association failed to participate in the impasse procedures in good faith under the
totality of the conduct test. (Stockton Unified School District supra, PERB Decision No. 143
[conditional bargaining])
The cases recognize that in surface bargaining cases the conduct alleged to constitute
the surface bargaining may nevertheless be lawful "hard bargaining" (i.e., standing firm on a
position that the party reasonably believes is fair and proper or that it has sufficient bargaining
strength through which to force agreement by the other party). 	(See Atlanta Hilton & Tower
(1984) 271 NLRB 1600, 1603 [117 LRRM 1224]; Oakland Unified School District, supra,
PERB Decision No. 275.) Analysis of surface bargaining typically requires a determination of
whether the bargaining conduct is lawful or unlawful in these terms.
A. 	Insisting to Impasse on Non-negotiable Subjects
1. 	STAR Test Results Proposal
The District contends the Association insisted to impasse on negotiating about how the
District "receives" its STAR test results. It also contends that as to the entire subject of STAR
results the matter relates to the District's establishment of educational objectives, a managerial
prerogative. And the District disputes that the Association was ever able to make proposal that
was within scope legally, or within the scope of the evaluation article reopener.
The Association contends that its proposals were negotiable because they dealt with
how confidentiality of the results would be maintained at school sites, so as to prevent anyone
21

but teachers from seeing their own classroom results. 	The Association also asserts that the
matter fell within the scope of the evaluation article.
Section 3543.2 enumerates "procedures to be used for the evaluation of employees" as
a subject within the scope of representation. 	To the extent that the distribution of STAR test
score results falls outside the meaning of this phrase, I must apply PERB's test for the
negotiability of subjects not specifically enumerated in the statute. 	That test requires that (1)
the subject be logically and reasonably related to wages, hours, or an enumerated term or
condition of employment, (2) the subject be of such concern to management and employees
that conflict is likely to occur and the mediatory influence of the negotiations is appropriate for
resolving such conflict, and (3) obligating the employer 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. 	(Anaheim Union High School
District (1981) PERB Decision No. 177.)
First, I reject Woliver's claim that the Association was unable to articulate any proposal
that was within scope. 	I find that the proposals for procedures to ensure the confidentiality of
the results disaggregated by teachers, such as having the teacher results be transmitted under
seal and that the envelopes be distributed at staff meetings, comprise negotiable matters, under
the Association's rationale that the results could affect performance evaluations. 	(Jefferson
School District, supra, PERB Decision No. 133 [limiting contents of personnel files to only
those evaluations done in accordance with the contractual procedures]; Walnut Valley Unified
School District (1983) PERB Decision No 289 [procedures and criteria, including teacher's
effectiveness as a teacher, classroom management and control, and planning and preparation,
negotiable under the Anaheim test].) These proposals relate to the teachers' concerns about
unnecessary and potentially harmful dissemination of the information and their potential
22

impact on evaluations, and do not abridge the District's freedom to exercise managerial
prerogatives essential to the achievement of its mission.13 District witnesses Stephens and
Casey did not have difficulty appreciating the Association's core concern around
confidentiality. Nor did Bernard, who responded to Grenier's concerns. 	Submitting such
proposals to collective bargaining is the appropriate means of resolving conflicts over the
subject.
In its zeal to ensure that the results not be used by administrators for evaluation
purposes, however, I believe the Association did make a proposal that intruded on the
District's managerial prerogatives: by demanding that administrators not view the results.
Therefore, I agree with the District that some portions of the proposal were outside the scope
of representation. 	Student test results are the product of a number of circumstances beyond the
teacher's control. But teacher methods, skills, and effort are not unrelated to aggregate student
performance as measured by standards-based testing. 	There is nothing that per se disqualifies
such results from being used in evaluations; it is a proper negotiating goal for both sides as to
which opposite views may be maintained. 	That said, a school district should not be precluded
from allowing principals and other administrators to view such test results for educational
13 Although not specifically argued by the District, I note that use of test results in
teacher evaluations presents an arguable issue as to an overriding managerial prerogative,
particularly in light of legislative action not extant at the time of the cited precedent. 	This is
evident in the recent state and federal mandates for year-to-year improvement by school
districts in standards-based test scores, with severe sanctions for non-performance. 	(See Public
School Performance Accountability Program, Ed. Code, sec. 52051 et seq.; No Child Left
Behind Act, 20 U.S.C, sec. 6301 et seq.) However, I do not believe such an argument
provides a clear ground for departing from the current PERB precedent. I would add that there
is also a textual argument surrounding the statute's definition of "procedures to be used for the
evaluation of employees." This can be cited as grounds for distinguishing the subject from
evaluation "criteria," but also as evidence of intent that the Legislature knew how to exclude
evaluation "criteria" when it so desired and failed to do so in this instance. (See sec.
3562(r)(l)(D) [Higher Education Employee-Employer Relations Act specifically exempts
criteria for evaluation of academic employees from the scope of representation].)
23

purposes unrelated to teacher evaluations, such as whether the school's curriculum and
teachers' varied strategies for implementing that curriculum are successful in improving test
scores.14
Furthermore, Woliver testified without contradiction that as late as October 23, the
Association was demanding that the test scores not be disaggregated by teacher. 	This is
confirmed by the fact that when the Association presented its November 7 written proposal on
STAR results the last item of its seven-point proposal demanded that the District "elect to
receive[] from the state only grade level information (not teacher specific information)." I find
this proposal to be outside the scope of representation as well. There is no evidence that the
District has discretion as to how it receives the test results reported by the Department of
Education, since there is no evidence that this is a matter within its control. (See Ed. Code,
sec. 52052.) Moreover, the Association's proposal would have deprived the District of
information that it was entitled to receive and consider for purposes unrelated to teacher
evaluations, for the reasons explained above.
Woliver also claimed that the Association failed to make a proposal that was properly
within the scope of the evaluation article. 	It should be noted that a refusal to bargain charge
arises in a somewhat different context in reopener negotiations, where the duty to bargain is in
part a creature of the contract. A "reopening clause" has been defined as:
A provision in a collective bargaining agreement which permits
either side to reopen the contract during its term, generally under
specified circumstances or at specified periods of time prior to
the actual expiration of the agreement. . . . (Harold S. Roberts,
Roberts' Dictionary of Industrial Relations (3d ed. 1986) p. 616.)
14 At the same time, there are staff members, such as other teachers, classroom aides
and secretarial staff, for whom the managerial prerogative does not apply. 	Confidentiality as
to these individuals was a concern implicated by the Association's proposal. Obviously, the
Association could have, but apparently chose not to simply propose language barring use of the
test results in evaluations in favor of a broader type of protection.
24

Thus, negotiability depends in part upon the "specified circumstances" prescribed by the
contract. 	Although a number of concerns were articulated by the Association, one of its main
ones was that the test results not be seen by administrators due to its potential for use in a
teacher's performance evaluation. 	The evaluation article currently makes reference to "test
norms" and assessment of student progress. 	I find no other article of the contract that would
constitute a more appropriate place for the Association's proposal to be placed. 	Since the
Association's proposal was logically and reasonably related to evaluations, I further find that it
was properly within the scope of the reopener on that article.
Despite the fact that I deem substantial portions of the Association's written proposal to
be outside the scope of representation, I do not find the Association's conduct in presenting the
proposal to be unlawful as to all aspects that were non-negotiable. PERB has held that when
presented with a non-mandatory subject of bargaining, the party resisting the proposal must
articulate its objection to negotiability. 	(San Mateo County Community College District
(1993) PERB Decision No. 1030, pp. 19-20 [objecting party must inform the other of its
refusal to entertain the proposal and its grounds therefor].) The rule makes logical sense
because, as illustrated here, a proposal containing both negotiable and non-negotiable subjects,
often presents close questions of law. 	A party making such a proposal may present such a
proposal with a good faith belief in its negotiability. 	The negotiations process, rather than
PERB, should be the first place where differing views as to negotiability are debated and non-
negotiable subjects removed at the insistence of the resisting party. 	(See State of California
(Department of Consumer Affairs') (2004) PERB Decision No. 1711-S, pp. 24-25 [no violation
for refusing to provide information, where the information does not appear to concern
mandatory subjects of bargaining and the union fails to renew its request with an explanation
of the relevance].) There is, after all, nothing illegal per se about a party making a proposal as
25

to a non-negotiable subject and the responding party agreeing to such a proposal. 	(See Lake
Elsinore School District (1986) PERB Decision No. 603.) Here the District failed to articulate
a justification as to those aspects of the proposal that prevented administrators from viewing
the results by teacher. 	Woliver admitted she could not recall there being any specific
discussion about access by administrators to the results, despite that point being included in the
written proposal. 	The District only specifically objected to the manner in which the District
received the results.
Because the Association, over the articulated objection of the District, insisted to
impasse on negotiating the proposal regarding how the District received the STAR results, I
find that the Association committed a per se violation of its duty to meet and negotiate in good
faith, in violation of section 3543.6(c).
2. 	Health Insurance Carrier Proposal
The District contends that it was never obligated to bargain over the proposal to allow
the Association to select the health insurance carrier for unit members because the language of
section 13.14 constituted a waiver of the right to bargain. 	The Association counters that
because the compensation article was reopened, any language in the article was fair game,
including the waiver language. 	I agree with the Association.
The non-negotiability of the health carrier selection is not a claim based on a statutory
or case law prohibition. 	(Sec. 3543.2(a) ["health and welfare benefits as defined by Section
53200"]; Palo Verde Unified School District (1983) PERB Decision No. 321 [health carrier
change from Blue Cross to Blue Shield negotiable; not de minimus in impact]15; Oakland
15 In Palo Verde Unified School District, the bargaining history shows the parties
changing from a fixed dollar contribution with the district retaining the right to select the
carrier to a dollar level contribution with a specific carrier identified. PERB explained that as
a result "the District no longer retained the right to unilaterally select the health insurance
carrier." (Id. at p. 3.)
26

Unified School District (1980) PERB Decision No. 126, affd. Oakland Unified School District
v. Public Employment Relations Bd. (1981) 120 Cal.App.3d 1007 [175 Cal.Rptr. 105] [change
in health plan carriers which affects level of benefits is negotiable].) Here the only
impediment to negotiability was the contractual waiver conceded by the Association in its
earlier negotiations with the District.
Yet the waiver was not insulated from attack through the reopener negotiation process.
Again, as noted above, the scope of a reopening clause is defined by the language of the
contract. Article 22, section 22.1, provides that "there shall be re-openers in compensation and
two other articles per party." And article 21 ("Completion of Meet and Negotiation"), section
21.3, provides:
The parties may by mutual agreement reopen this agreement for
the purpose of modifying any Article or portion thereof.
Since the scope of the right to reopen is defined and limited only by the parties' contractual
language, the language employed here clearly contemplates that what is reopened are articles,
or portions thereof, by the parties. 	Since the compensation article was reopened and there is no
language limiting the negotiations to only specific portions thereof, the entire article was
subject to new proposals.
The District presents a fallback position in terms of the argument that the Association
failed to make any explicit proposal to remove the waiver language. 	The Association contends
that the proposal of a specific health insurance carrier was mutually exclusive with the waiver
language and that this explanation of its proposal was expressly noted by Goldsmith. I do
recognize that bargaining is often about technicalities; that making a proposal to eliminate the
waiver language and making one to identify a particular health insurance carrier are two
separate matters, which should logically extract more in return than simply for one of the
proposals alone. On this basis the District's argument is not mere semantics. Nevertheless,
27

allowing the District to maintain its position on negotiability under these circumstances exalts
form over substance.
The District contends that because the Association made a separate proposal in the
subsequent successor agreement negotiations, it knew the difference. 	Yet when the
Association conceded the District's dichotomy and specifically made the proposal to eliminate
the waiver language in the subsequent successor negotiations, the District responded by again
refusing to accept the negotiability of the health carrier proposal and maintaining that position
to impasse. 	This shows that the District's position was not advanced in good faith from the
outset.
Thus, I find that the allegation of a per se violation based on this matter must be
dismissed.
B. 	Attempted Bypassing with Respect to Restoration of Preparation Time
An exclusive representative must deal with the employer's chosen representative for
negotiations on matters within scope and must refrain from direct negotiations with the
employer entity. 	(California State University (1987) PERB Decision No. 621-H [union
president communicating an offer to the employer's governing board that had not been offered
to the employer's negotiators].)
Lisi communicated with the elementary school principals on a matter that was the
subject of settlement negotiations during grievance processing. 	The principals were individual
decisionmakers at the District's various school sites, and part of the management team. The
appropriate person to have received a settlement proposal was Woliver, the attorney handling
the grievance arbitration, or her designee. Lisi gave no prior notice to the District of her
intentions, nor did she receive authorization or a waiver from the District for her endeavor.
This constituted an attempt to obtain support for the Association's position through a direct
28

appeal to the principals. That Lisi may have believed her conduct was innocent or excused
because she was simply responding to what she perceived as improper direct dealing between
the principals and the elementary school teachers does not constitute a defense. 	Therefore, the
Association bypassed or attempted to bypass the District's authorized representative, in
violation of section 3543.6(c).
C. 	Totality 	of 	the 	Conduct
Analysis of the totality of the conduct requires an assessment of any independent per se
violations of the duty to bargain in good faith, as well as other indicia of bad faith. I have
found two per se violations, one based on the STAR test results proposal and one based on the
attempted bypassing.
The District contends there are a number of other indicia of bad faith arising from the
Association's refusal to submit proposals, refusal to discuss proposals, scheduling of an agenda
item without notice to the District (i.e., the CalPERS representative), cancellation of two
bargaining sessions, maintaining a "take-it-or-leave-it" position, and conditioning settlement of
the 2003-2004 contract on negotiations over the 2004-2005 contract.
I find the record generally lacking in circumstantial evidence of the Association's intent
to simply "go through the motions" in the negotiations. The Association's proposal on STAR
results was advanced in good faith, in response to a legitimately perceived concern about the
confidentiality of the test results. Thus, the proposal to have the District change the way it
received its results must be viewed in context. It was the last point in the seven-point proposal,
and, as more encompassing in scope, was logically an alternative to the detailed prescription.
The attempted bypassing violation was conduct that was "away from the table." It related to
separate grievances then pending. Although the workday article had been reopened by the
Association and the grievances related to that matter, the Association had effectively
29

abandoned the subject in the negotiations. I see little impact that such conduct would have had
in terms of frustrating progress at the table.16
The other alleged indicia of bad faith are not substantiated. 	As soon as the layoff-
effects portion of the negotiations had been completed, the Association came to the table
prepared to offer ideas, explore those ideas, and formulate proposals out of those discussions.
It submitted the agendas. 	After exploring ideas through the initial three bargaining sessions -
while the District simultaneously parried with its overbroad protestations of non-negotiability -
the Association formulated a set of written proposals. The District never presented a formal
written proposal on the evaluation article and ultimately wished for no change in that article.17
The District maintained a closed stance throughout the negotiations, particularly as it related to
any proposals that would impose additional costs, 	hi short, after a thorough explanation of the
parties' positions, the District demanded maintenance of the status quo.
The District now claims that because the Association, after presenting its proposals but
hearing from the District that it had no financial leverage for settlement, should have been
willing to continue negotiating solutions that did not involve additional cost, and that the
impasse declaration was premature because the District had some reserves that could have
been the source of a financial offer. 	Little or no purpose would have been served by such
continued effort. 	The District asserted on three occasions that it had no money to put on the
16 The NLRB is "reluctant to find bad-faith bargaining exclusively on the basis of a
party's misconduct away from the bargaining table. (Litton Systems (1990) 300 NLRB 324,
330 [136 LRRM 1163], enfd. Litton Systems v. NLRB (8 th Cir. 1991) 949 F.2d 249 [138
LRRM 2761].)
17 Lisi prepared a summary of the negotiations, in which she acknowledged that the
District requested written proposals before discussing them. 	Her notes indicate that the
Association wanted to discuss the issues before "putting anything in writing."
30

table. The District makes a claim that its hard bargaining position was needed to protect its
fiscal health, but this is beside the point. The District rejected all proposals that added costs.
I reject the suggestion that the Association adopted a "take-it-or-leave-it" posture in
these negotiations. Typically, such conduct is probative when it occurs at the outset of
negotiations arid is maintained throughout. (Cf. General Electric Co., supra, 150 NLRB 192
[employer's strategy of researching the basis for a "fair, firm" initial offer prior to bargaining
followed by resistance to consider any offer unless it refutes the parameters of the research].)
The parties here took several sessions to explore each other's concerns. 	Once the Association
felt comfortable advancing a package written proposal and presented it, it was fairly clear that
with the reduced number of subjects available for consideration, the options for compromise
were limited as well. As to those limited subjects still on the table, neither side ever indicated
a willingness to propose solutions that deviated from their positions on economics. I find
unconvincing the District's protest that if negotiations had continued progress could have been
made and that it was prevented from advancing a financial offer. 	The District had several
opportunities to demonstrate financial movement but declined to counterpropose anything that
involved money, one-time or otherwise. It certainly had that opportunity once the Association
declared impasse. 	I reject the District's implied suggestion that in order to bargain in good
faith the Association had to capitulate to its zero-percent financial proposal and continue
bargaining in the field of cost neutral class size adjustments before a legitimate impasse could
be reached.
As to the scheduling issues, I find that the two cancellations were inconsequential in
context of what was happening, or not happening, at the bargaining table, and that the
Association has presented a plausible explanation for why the requests were based on Lisi's
calendaring issues. (County of Riverside (2004) PERB Decision No. 1715-M.) The District
31

contends that the Association wasted valuable bargaining time by presenting the CalPERS
representative during the morning of the November 6 session. 	The sequence of events
indicates the purpose of the presentation was to lay the foundation for the presentation of the
written CalPERS proposal later that afternoon. 	There is no basis for finding employment of
dilatory or evasive tactics.
Thus, I find the record contains insufficient evidence to demonstrate that the
Association lacked a genuine desire to reach agreement. 	(See Muroc Unified School District,
supra, PERB Decision No. 80.) Accordingly, the two instances of per se bad faith bargaining
- -
notwithstanding, I conclude that the Association's overall conduct does not demonstrate a lack
of subjective intent to reach an agreement. Therefore this allegation of bad faith bargaining
must be dismissed.
Association Bad Faith Participation in the Impasse Procedures
A. 	Conditional Bargaining
PERB has held that conditioning an agreement on agreement as to non-mandatory
subjects, insisting on identifying who may be on the opposing negotiating team, and
conditioning agreement on the waiver of statutory rights or withdrawal of grievances and
unfair practice charges are examples of unlawful conditional bargaining. 	(Fremont Unified
School District (1980) PERB Decision No. 136; Gilroy Unified School District (1984) PERB
Decision No. 471; Lake Elsinore School District, supra, PERB Decision No. 603.) Conditional
bargaining may amount to a per se violation when it has the practical effect of preventing
negotiations altogether. 	(Stockton Unified School District, supra, PERB Decision No. 143.)
The District's argument is that the Association's rejection of the 2003-2004 tentative
agreement based on concerns in the 2004-2005 negotiations amounts to conditional bargaining.
I reject this claim. 	The fact that the membership of the Association may have taken into
32

consideration what the District was offering in no way demonstrates that the reopener
bargaining team foisted on the District a condition that there would be no settlement unless
matters outside of those negotiations were also settled. Finding anything "coercive" about a
bargaining representative taking into consideration the effects of prior negotiations on
subsequent negotiations is contrary to the common sense reality of collective negotiations.
Even subsequent negotiations completely separated in time are premised on what the parties
accomplished or failed to accomplish in previous negotiations. I find the Association's
conduct to be neither a per se violation nor evidence of bad faith. 	This per se allegation must
be dismissed.
B. 	Reneging on a Tentative Agreement
Reneging on a tentative agreement is evidence of surface bargaining. 	(Charter Oak
Unified School District, supra, PERB Decision No. 873.) PERB has held that a single instance
of repudiation, or more precisely, a repudiation on a single subject, is insufficient to
demonstrate a prima facie case under a per se or totality of the conduct test. 	(Fresno County
Office of Education (1993) PERB Decision No. 975; cf. Charter Oak Unified School District.
supra, PERB Decision No. 873 [no prima facie violation where a package proposal contained
some provisions less beneficial than prior ones but some more beneficial].)
In this case I reject the claim that the Association reneged on a tentative agreement,
albeit one that was a package designed to settle the entire negotiations. The Association and
District teams met in mediation and, through the auspices of the mediator, arrived at a
proposed settlement of all the outstanding issues. 	It was of course contemplated by both
parties that the settlement would be taken to the respective principals for ratification. The
District's governing board agreed to adopt the settlement; the Association's Rep Council did
not. This does not constitute reneging.
33

PERB did hold, in somewhat unusual circumstances, that a public school employer was
guilty of bad faith bargaining when it ratified only a portion of a tentative settlement
agreement, severed a provision (organizational security) not to its liking, and ratified the
remainder of the agreement. 	(Placerville Union School District (1978) PERB Decision No.
69.) Pertinent here, PERB in finding bad faith in that case also relied on the fact that the
employer's negotiator breached a previously agreed-upon written ground rule that he would
"endorse and support" the total tentative agreement. In response to the employer's defense that
the ground rules also established that the principal retained ultimate authority to accept or
reject the settlement, PERB responded that such an argument avoided the "real issue
presented," namely whether it was proper for the employer to sever the objectionable provision
and ratify the remainder. (Id.) I do not believe this case should be interpreted, as the District
does, to mean that a negotiator necessarily has a duty in every negotiations to "endorse and
support" the tentative agreement when presenting it to his principal. On the other hand, it
would appear fairly indisputable that some bad faith would be evidenced by a negotiator
consciously sabotaging a package agreement he had negotiated when presenting it to his
principal.
Thus, I will examine the facts and circumstances of the Rep Council meeting to
determine whether the Association's bargaining team demonstrated bad faith in this regard.
The bargaining team explained the terms of the package settlement to the Rep Council and
then took a neutral position on the proposal. The Rep Council discussed the advantages and
disadvantages of the settlement. 	Goldsmith gathered from the discussion that the chief reason
for the vote was the District's refusal to increase the salary schedule and approve its selection
of CalPERS in the 2003-2004 reopener negotiations. Woliver testified on the basis of
uncorroborated hearsay that the Rep Council was angered by the District's 2004-2005 initial
34

offer. 	These are the only facts presented. 	On this scant evidence, I cannot conclude that the
Association team attempted to undermine the proposal, and therefore I do not find its conduct
evidence of bad faith.
C. 	Totality of the Conduct
The District cites no other conduct other than the alleged reneging and unlawful
conditioning in support of its claim of bad faith participation in the impasse procedures. Since
I have rejected these instances as evidencing bad faith, I have no basis to find bad faith
participation under the "totality of the conduct" test. 	Thus, this allegation must be dismissed
as well.
In sum, the Association is found to have violated section 3543.6(c) by (1) insisting to
impasse on a proposal to have the District elect to receive the STAR test results without the
data disaggregated by teacher and (2) attempting to bypass the District's labor relations
representatives as a result of proposing a preparation time schedule to the elementary school
principals for the purpose of resolving the pending grievances. All other allegations in case
number SF-CO-640-E must be dismissed.
District Bad Faith Bargaining
A. 	Refusal To Bargain Concerning the Selection of a Health Insurance Carrier
The complaint in case number SF-CE-2377-E alleges a flat refusal to negotiate with the
Association. Such conduct, if proven, would constitute a violation of the duty to bargain in
good faith. 	(Sierra Joint Community College District (1981) PERB Decision No. 179.) An
absolute refusal occurs when a bargaining representative denies, without reasonable attempts
to obtain clarification, that a given proposal is within the scope of representation. 	(Compton
Community College District (1990) PERB Decision No. 790.)
35

The Association contends that the District consistently maintained that selection of a
health insurance carrier was subject to meet-and-consult rights only by the waiver language in
section 13.14. 	The Association also acknowledges that the District agreed that if the
Association had first proposed to eliminate the waiver language the proposal to change health
carriers would have been appropriate. 	But the Association also contends that the District
understood the nature of its proposal and that elimination of the waiver language was clearly
contemplated. The District contends that it was constrained only to negotiate matters within
scope and that the Association never presented such a proposal.
For the reasons explained above, I find that the District's contention that the waiver
applies because the Association made no proposal to first eliminate the waiver language is
unpersuasive. 	The entire compensation article was automatically reopened by the terms of the
reopener language. 	The proposal identifying CalPERS as the health carrier was intended by
the Association to supplant the meet-and-consult language. 	The District offers no argument as
to why the waiver language itself was immutable.
Moreover, the District's argument that the Association failed to make a proposal within
the scope of representation is clearly erroneous. 	Choice of health carriers is within the express
language of section 3543.2 ("health and welfare benefits"). 	The Association's proposal was
only "outside the scope of representation" because of the purported contractual waiver. 	A
waiver of negotiating rights is itself a matter as to which the parties may mutually agree;
however, insistence on a waiver, or in this case, continued maintenance of a waiver as to an
otherwise negotiable matter is an infringement on the statutory right to bargain. 	(Travis
Unified School District (1992) PERB Decision No. 917 [employer's unlawful insistence on
status quo, where prior contract constituted a limitation on the union's statutory right to
36

represent employees].) 	On this basis, I find that the District flatly refused to negotiate a
negotiable subject.18
Accordingly, I find that the District violated section 3543.5(c) by refusing to negotiate
over the selection of a health carrier. 	This conduct also denied the Association its right to
represent bargaining unit members in violation of section 3543.5(b). 	It further interfered with
the right of the bargaining unit members to participate in the activities of an employee
organization of their own choosing, in violation of section 3543.5(a).
B. 	Unilateral Implementation of Pre-paid Legal Services Payroll Deductions
The complaint in case number SF-CE-2380-E alleges a unilateral change in health and
welfare benefits offered bargaining unit members. 	Unilateral changes are considered "per se"
violations if certain criteria are met. Those criteria are: 	(1) the employer implemented a
change in policy concerning a matter within the scope of representation, and (2) the change
was implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations. 	(Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
The Association contends that the District unilaterally implemented the pre-paid legal
services program. 	The District contends that because the plan was originally offered in 2002,
the claim is barred by the statute of limitations under the theory of constructive notice.
Alternatively, the District argues the allowance for payroll deductions to an outside
commercial entity not sponsored by the District is not a material change in terms and
conditions of employment, nor a change as to a matter within the scope of representation.
The District also contends that the claim is moot because the District adopted
CalPERS as the health carrier in October 2004, under the meet-and-consult provision of the
contract. 	The District's prior unlawful refusal to bargain is not rendered moot by such action,
particularly since it maintains that it has done so under privilege of the waiver provision being
challenged by the Association in these proceedings.
37

The claim is not time-barred. The District asserts that the Association knew or should
have known of the alleged unilateral change in 2002, when payroll deductions were first
authorized. Knowledge of an unfair practice is only imputed to a party when persons with
authority to act on behalf of the charging with respect to the alleged violation have received
clear notice of a unilateral change. 	(Victor Valley Union High School District (1986) PERB
Decision No. 565; see also State of California (Board of Equalization) (1997) PERB Decision
No. 1235-S.) The District cites evidence from a District principal who testified that a
presentation was made in 2002 at an elementary school that included unit members, and that
"in all likelihood" one of the Association's site representatives at that school would have been
at that meeting, because "traditionally at least one of them attended every meeting." This
evidence fails to establish by a preponderance of the evidence that an official of the
Association with authority to deal with matters of collective negotiations had constructive
notice of the alleged unilateral change.19
As to the merits, a preliminary issue is how the benefit is defined, and whether, as so
defined, it is within the scope of representation. The evidence establishes that the District
provided nothing other than the services of its payroll department in processing deductions to
pay for the employees' participation in the plan. Therefore, the benefit is not actually the plan
itself, but the payroll deduction. In Jefferson School District, supra, PERB Decision No. 133,
PERB held that payroll deductions are a means by which employees enhance their present or
future economic status and such a benefit has a direct impact on negotiable matters, and thus
19 The Association cites the testimony of Grenier (who would have had authority to
demand bargaining of a proposed unilateral change) that she received an advertisement in her
paycheck envelope in the winter of the 2002-2003 year, contacted Sherer, and was told by the
District that the service would only be provide to management in light of the Association's
opposition to it. On these facts, Grenier was entitled to assume there was no problem as it
related to the Association's unit.
38

presents a matter within scope. 	In the Jefferson case, PERB distinguished between deductions
for annuities, credit unions, and savings bonds - finding those to be negotiable - and charitable
donations - finding those not to be negotiable. 	(Ibid.) 	I conclude the matter is within scope.
Pre-paid legal services are a form of insurance providing future economic security that benefits
the employee directly.
The evidence further establishes that the District's former superintendent entered into
some contractual agreement to allow a specific vendor to make presentations and solicit
members on staff time. 	This arrangement led to the subscription by bargaining unit members
and the attendant payroll deductions. 	The Association was never provided notice of this,
constructive or actual, or of the fact that bargaining unit members were signing up for the plan.
Thus, there was a change in policy without notice or opportunity to bargain.
The final question is whether the change in policy has a "generalized effect or
continuing impact" on the bargaining unit. 	(Grant Joint Union High School District, supra,
PERB Decision No. 196.) As to this issue, the evidence is weak. When Grenier saw the
announcement at her school and protested, Casey immediately investigated and ordered all
presentations to cease. There were a small number of employees who had already signed up
(five to six bargaining unit members), and Casey determined that these employees should be
allowed to continue their payroll deductions. 	Although Bernard testified he did not believe it
actually necessary to prevent new enrollees, there was no evidence establishing that new
enrollees followed the filing of the unfair practice charge. 	Bernard also testified that he told
the company that the prior arrangement with Sherer was rescinded.20
20 As noted in footnote 19 above, the Association cites Grenier's 2002-2003 complaint
to Sherer as evidence suggesting that the District cannot be trusted at its word. However, I
find that the District did take sufficient action to cease enrollment of new members.
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As to those five or six employees who were allowed to continue, it could be argued that
the policy has a continuing impact. However, I believe that would be stretching the Grant rule
to embrace a violation for which a bargaining remedy would do nothing to effectuate the
purposes of the EERA. Hence, I decline to find a violation under these limited circumstances.
The District has ceased sponsorship of the benefit plan and it continues to allow past enrollees
to maintain the payroll deduction solely out of convenience to the employees or to avoid
disruption and/or hardship to them. Thus, the District's continuing involvement in the plan is
de minimus. 	(Anaheim City School District (1983) PERB Decision No 364 [one-time mistake
made in good faith which employer attempted to rectify does not satisfy Grant test]; see also
Muroc School District, supra, PERB Decision No. 80 [technical violation without discernible
- -
impact and immediately retracted not violative of the duty to bargain].)21 PERB has also held
that when a unilateral change has been unlawfully implemented to the benefit of a few unit
employees it may be unnecessary and inappropriate to deprive those employees of the new
benefit as part of the restoration-of-the-status-quo remedy. 	(Nevada Joint Union High School
District (1985) PERB Decision No. 557; Marin Community College District (1995) PERB
Decision No. 1092.)
Accordingly, the District did not fail to meet and negotiate in good faith with regard to
the pre-paid legal services plan. The complaint and underlying charge in case number
SF-CE-2380-E must be dismissed.
REMEDY
Section 3541.5(c) grants PERB
21I acknowledge that a solicitation flyer appeared in the high school faculty lounge as
late as October 2003. However, it does not announce any meeting for solicitation on District
time or property. 	It appears that the flyer was produced by the broker and not the District. 	Its
mere posting does not establish knowledge or ratification by the District.
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the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter.
Case Number SF-CO-640-E
In case number SF-CO-640-E, it has been determined that the Association violated its
obligation to meet and negotiate in good faith by (1) insisting to impasse on a proposal to have
the District elect to receive the STAR test results without the data disaggregated by teacher and
(2) attempting to bypass the District's labor relations representatives as a result of proposing a
preparation time schedule to the elementary school principals for the purpose of resolving the
pending grievances. This conduct violates section 3543.6(c). The Association will be ordered
to cease and desist from such unlawful conduct. (Modesto City Schools (1983) PERB
Decision No. 291, p. 71; see also Rio Hondo Community College District (1983) PERB
Decision No. 279a, p. 6; San Mateo City School District (1984) PERB Decision No. 375a,
p. 4.)
The Association will also be ordered to post a notice incorporating the terms of this
order. 	(See Redwoods Community College District (1987) PERB Decision No. 650.) The
Notice should be signed by an authorized agent of the Association indicating that it will
comply with the terms thereof. 	The Notice shall not be reduced in size. Posting of such notice
will provide employees with notice that the District has acted in an unlawful manner and is
being required to cease and desist from this activity and will comply with the order. 	It
effectuates the purposes of the EERA that employees be informed of the resolution of the
controversy and the District's readiness to comply with the ordered remedy. 	(Davis Unified
School District (1980) PERB Decision No. 116; see also Placerville Union School District,
supra, PERB Decision No. 69.)
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Case Number SF-CE-2377-E
In case number SF-CE-2377-E, it has been determined that the District violated its
obligation to meet and negotiate in good faith by refusing during the 2003-2004 reopener
negotiations to negotiate concerning the selection of a health insurance carrier, in violation of
section 3543.5(c). 	The District will be ordered to cease and desist from such unlawful
conduct. (Modesto City Schools, supra, PERB Decision No. 291; see also Rio Hondo
Community College District, supra, PERB Decision No. 279a; San Mateo City School District,
supra, PERB Decision No. 375a.)
The District will also be ordered to post a notice incorporating the terms of this order.
The Notice should be signed by an authorized agent of the Association indicating that it will
comply with the terms thereof. 	The Notice shall not be reduced in size. Posting of such notice
will provide employees with notice that the District has acted in an unlawful manner and is
being required to cease and desist from this activity and will comply with the order. 	It
effectuates the purposes of the EERA that employees be informed of the resolution of the
controversy and the District's readiness to comply with the ordered remedy. 	(Davis Unified
School District, supra, PERB Decision No. 116; see also Placerville Union School District.
supra, PERB Decision No. 69.)
PROPOSED ORDER
Case Number SF-CO-640-E
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, and pursuant to section 3541.5(b), it is hereby ordered that the Newark Teachers
Association (Association) and its representatives shall:
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A. 	CEASE AND DESIST FROM:
1. 	Insisting to impasse on bargaining a proposal to have the Newark
Unified School District (District) elect to receive the STAR test results without the data
disaggregated by teacher.
2. 	Bypassing or attempting to bypass District bargaining representatives by
directly communicating with District management staff for the purpose of settling grievances
or disputes over negotiable matters.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1. 	Within seven (7) workdays of service of a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies of the Notice
attached hereto as an appendix. 	The Notice must be signed by an authorized agent for the
District, indicating that the District will comply with the terms of this Order. 	Such posting
shall be maintained for a period of thirty (30) consecutive calendar days. 	Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by
any other material.
2. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of the Public Employment Relations Board, or his designee, in
writing, of the steps the employer has taken to comply with the terms of this Order. 	Continue
to report in writing to the Regional Director periodically thereafter as directed. All reports to
the Regional Director shall be served concurrently on the Charging Party.
All other allegations are hereby dismissed.
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Case Number SF-CE-2377-E
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, and pursuant to section 3541.5(b), it is hereby ordered that the District and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with the
Association as the exclusive representative of its certificated employees by refusing during the
2003-2004 reopener negotiations to negotiate concerning the selection of a health insurance
carrier.
2. 	By the same conduct, interfering with bargaining unit employees' right
to participate in the activities of an employee organization of their choosing.
3. 	By the same conduct, denying to the Association rights guaranteed by
the Educational Employment Relations Act, including the right to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION:
1. 	Within seven (7) workdays of service of a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies of the Notice
attached hereto as an appendix. 	The Notice must be signed by an authorized agent for the
District, indicating that the District will comply with the terms of this Order. 	Such posting
shall be maintained for a period of thirty (30) consecutive calendar days. 	Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by
any other material.
2. 	Within thirty (30) workdays of service of a final decision in this matter,
notify the General Counsel of the Public Employment Relations Board, or his designee, in
writing, of the steps the employer has taken to comply with the terms of this Order. Continue
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to report in writing to the Regional Director periodically thereafter as directed. 	All reports to
the Regional Director shall be served concurrently on the Charging Party.
Case Number SF-CE-2380-E
The complaint and underlying unfair practice charge in case number SF-CE-2280-E are
hereby dismissed.
Pursuant to PERB Regulation 32305, this Proposed Decision and Order shall become
final unless a party files a statement of exceptions with the PERB itself within 20 days of
service of this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
In accordance with PERB regulations, the statement of exceptions should identify by
page citation or exhibit number the portions of the record, if any, relied upon for such
exceptions. (PERB Reg. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing or when mailed by certified or Express United States mail,
as shown on the postal receipt or postmark, or delivered to a common carrier promising
overnight delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(PERB Regs. 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before
the close of business on the last day for filing together with a Facsimile Transmission Cover
Sheet which meets the requirements of PERB Regulation 32135(d), provided the filing party
also places the original, together with the required number of copies and proof of service, in
the U.S. mail. (PERB Reg. 32135(b), (c) and (d); see also PERB Regs. 32090 and 32130.)
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Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See PERB Regs. 32300, 32305, 32140, and
32135(c).)
Donn Ginoza
Administrative Law Judge
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