Temple City Unified School District (PERB 1972E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEMPLE CITY EDUCATORS ASSOCIATION,
CTNNEA,
Charging Party,
V.
TEMPLE CITY UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4527-E
PERB Decision No. 	1972
August 26, 2008
Appearances: 	California Teachers Association by Brenda E. Sutton-Wills, Staff Counsel, for
Temple City Educators Association, CTNNEA; Law Offices of Margaret A Chidester &
Associates by Cathie L. Fields, Attorney, for Temple City Unified School District.
Before Neuwald, Chair; McKeag, Wesley and Rystrom, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Temple City Unified School District (District) to
an administrative law judge's (ALJ) proposed decision. 	The ALJ held that the District violated
the Educational Employment Relations Act (EERA)1 by failing to negotiate in good faith with
the Temple City Educators Association, CTA/NEA (TCEA) when it unilaterally adopted a
modified version of the parties' tentative agreement in December 2002; refused to implement a
salary increase; and by reneging on an agreement for an off-schedule salary payment in
April 2003.
The Board reviewed the entire record in this case, including the complaint, proposed
decision, hearing transcript, exhibits, post-hearing briefs, the District's exceptions and TCEA' s
1EERA is codified at Government Code section 3540 et seq. 	Unless otherwise
indicated, all statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TEMPLE CITY EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party, 	Case No. LA-CE-4527-E
V . 	PERB Decision No. 1972
August 26, 2008	TEMPLE CITY UNIFIED SCHOOL DISTRICT,
Respondent.
Appearances: California Teachers Association by Brenda E. Sutton-Wills, Staff Counsel, for
Temple City Educators Association, CTA/NEA; Law Offices of Margaret A Chidester &
Associates by Cathie L. Fields, Attorney, for Temple City Unified School District.
Before Neuwald, Chair; McKeag, Wesley and Rystrom, Members.
DECISION
WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Temple City Unified School District (District) to
an administrative law judge's (ALJ) proposed decision. The ALJ held that the District violated
the Educational Employment Relations Act (EERA)' by failing to negotiate in good faith with
the Temple City Educators Association, CTA/NEA (TCEA) when it unilaterally adopted a
modified version of the parties' tentative agreement in December 2002; refused to implement a
salary increase; and by reneging on an agreement for an off-schedule salary payment in
April 2003.
The Board reviewed the entire record in this case, including the complaint, proposed
decision, hearing transcript, exhibits, post-hearing briefs, the District's exceptions and TCEA's
EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

response thereto.2 For the reasons set forth below, we reverse the ALJ's proposed decision and
dismiss the case.
PROCEDURAL HISTORY
TCEA filed an unfair practice charge on June 13, 2003. The General Counsel's office
issued a complaint on August 8, 2003, alleging the District breached its duty to participate in
impasse procedures in good faith when the District's negotiator failed to support the parties'
tentative agreement, failed to present the parties' tentative agreement to the District board for
ratification and when the District later reneged on an agreement to fund a salary increase in
violation ofEERA section 3543.5(a), (b) and (e). 3
A settlement conference was held on October 2, 2003, but the matter was not resolved.
The ALJ conducted a formal hearing on February 24, 25, June 17, 18 and 22, 2004. During the
"The District's request for oral argument is denied. The Board has historically denied
requests for oral argument when an adequate record has been prepared, the parties submitted
comprehensive briefs, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. 	(United Teachers of Los Angeles (Valadez, et al.) (2001) PERB
Decision No. 1453; Monterey County Office of Education (1991) PERB Decision No. 913.)
This criteria is met in this case.
3EERA section 3543.5 states, in relevant part, that it is unlawful for a public school
employer to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to
riminate 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. ...
disc
(b) Deny to employee organizations rights guaranteed to them by
this chapter.	this chapter.
( e)
2
response thereto." For the reasons set forth below, we reverse the ALJ's proposed decision and
dismiss the case.
PROCEDURAL HISTORY
TCEA filed an unfair practice charge on June 13, 2003. The General Counsel's office
issued a complaint on August 8, 2003, alleging the District breached its duty to participate in
impasse procedures in good faith when the District's negotiator failed to support the parties'
tentative agreement, failed to present the parties' tentative agreement to the District board for
ratification and when the District later reneged on an agreement to fund a salary increase in
violation of EERA section 3543.5(a), (b) and (e).'
A settlement conference was held on October 2, 2003, but the matter was not resolved.
The ALJ conducted a formal hearing on February 24, 25, June 17, 18 and 22, 2004. During the
The District's request for oral argument is denied. The Board has historically denied
requests for oral argument when an adequate record has been prepared, the parties submitted
comprehensive briefs, and the issues before the Board are sufficiently clear to make oral
argument unnecessary. (United Teachers of Los Angeles (Valadez, et al.) (2001) PERB
Decision No. 1453; Monterey County Office of Education (1991) PERB Decision No. 913.)
This criteria is met in this case.
'EERA section 3543.5 states, in relevant part, that it is 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. . . .
(b) Deny to employee organizations rights guaranteed to them by
(e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
2

hearing, TCEA moved to amend the complaint to allege that the District's refusal to grant the
salary increase was a continuing violation. The ALJ subsequently denied the motion.4
After the case was submitted for decision, the ALJ amended the complaint to eliminate	After the case was submitted for decision, the ALJ amended the complaint to eliminate
the impasse bargaining allegation. 	Instead, the ALJ ruled the District breached its duty to
bargain in good faith under EERA section 3543.5(c).5
BACKGROUND
The District is a public school employer within the meaning
of
EERA section
3540. l(k). The TCEA
is
a recognized employee organization within the meaning
of
sectio
3540.1
(1),
representing a unit
of
approximately 270 certificated employees.
n
In February 2002,6 the parties initiated negotiations for a successor collective
bargaining agreement for the 2002-2003 school year. 	TCEA declared impasse in October and
PERB certified the parties were at impasse on October 23. With the help
of
a mediator, the
parties reached a tentative agreement (TAI) on December
2.
	Among other terms, TAl
provided for an increase in the District's contributions for health and welfare benefits and a
1.759 percent salary increase. 	Absent the District's agreement to fund a larger portion
of
employee health benefits, effective January
1,
2003, unit employees would be faced with up to
$500 per month in out-of-pocket premium costs.
TCEA members quickly ratified the agreement. The District Board
of
Education was
scheduled to ratify TA 1 at its next meeting on December 18. Before this occurred however,
the Governor's office announced on December 6, that the state was facing a $25 billion deficit
and proposed unprecedented and severe mid-year cuts in education funding.
4TCEA did not appeal this determination. Thus, this issue is not addressed.
5EERA section 3 543 .5( c) states, in part, that it is unlawful for a public school employer
to, "Refuse or fail to meet and negotiate in good faith with an exclusive representative.''
6Dates hereafter refer to 2002, unless otherwise specified.
3
hearing, TCEA moved to amend the complaint to allege that the District's refusal to grant the
salary increase was a continuing violation. The ALJ subsequently denied the motion.*
the impasse bargaining allegation. Instead, the ALJ ruled the District breached its duty to
bargain in good faith under EERA section 3543.5(c).
BACKGROUND
The District is a public school employer within the meaning of EERA section
3540.1(k). The TCEA is a recognized employee organization within the meaning of section
3540.1(1), representing a unit of approximately 270 certificated employees.
In February 2002," the parties initiated negotiations for a successor collective
bargaining agreement for the 2002-2003 school year. TCEA declared impasse in October and
PERB certified the parties were at impasse on October 23. With the help of a mediator, the
parties reached a tentative agreement (TAl ) on December 2. Among other terms, TAI
provided for an increase in the District's contributions for health and welfare benefits and a
1.759 percent salary increase. Absent the District's agreement to fund a larger portion of
employee health benefits, effective January 1, 2003, unit employees would be faced with up to
$500 per month in out-of-pocket premium costs.
TCEA members quickly ratified the agreement. The District Board of Education was
scheduled to ratify TAI at its next meeting on December 18. Before this occurred however,
the Governor's office announced on December 6, that the state was facing a $25 billion deficit
and proposed unprecedented and severe mid-year cuts in education funding.
TCEA did not appeal this determination. Thus, this issue is not addressed.
'EERA section 3543.5(c) states, in part, that it is unlawful for a public school employer
to, "Refuse or fail to meet and negotiate in good faith with an exclusive representative."
'Dates hereafter refer to 2002, unless otherwise specified.

On December 13, District negotiators Beverly Jones (Jones), assistant superintendent
personnel services, and David Jaynes (Jaynes),
chief
business official, met with TCEA
bargaining team members Valerie Jahan (Jahan), chapter president, and Dick Cheney
(Cheney), negotiating chair. 	The District informed TCEA that because
of
the Governor's
proposed education funding cuts there was some indication the District board did not intend to
ratify TA
1.
	Jaynes described the impact
of
the proposed reductions on the District's budget.
The Governor proposed a mid-year cut
of
$1.9 billion in education funding, which for the
District equated to a reduction
of
approximately $834,000 for the 2002-2003 fiscal year.
Assuming approval
of
TA
1,
District representatives indicated the need to cut $784,854
by
the
end
of
the fiscal year to maintain the mandatory three percent reserve. By December 18, the
date
of
the school board meeting, the Governor's office announced the State budget deficit had
risen to $35 billion.
At the December
13
meeting, the parties discussed alternatives to TA
1.
Jahan testified
that during the meeting the District handed them a written proposal to amend TA
1.
Jones and
Jaynes stated that TCEA asked them to provide a written proposal reflecting the District's
discussions. A proposal was faxed to Jahan at approximately 7:00 p.m. on December 13.
Jones delivered a copy to Cheney at his home on Saturday, December 14.
The proposed amended tentative agreement (TA2) preserved all terms
ofTAl,
4
On December 13, District negotiators Beverly Jones (Jones), assistant superintendent
personnel services, and David Jaynes (Jaynes), chief business official, met with TCEA
bargaining team members Valerie Jahan (Jahan), chapter president, and Dick Cheney
(Cheney), negotiating chair. The District informed TCEA that because of the Governor's
proposed education funding cuts there was some indication the District board did not intend to
ratify TA1. Jaynes described the impact of the proposed reductions on the District's budget.
The Governor proposed a mid-year cut of $1.9 billion in education funding, which for the
District equated to a reduction of approximately $834,000 for the 2002-2003 fiscal year.
Assuming approval of TA1, District representatives indicated the need to cut $784,854 by the
end of the fiscal year to maintain the mandatory three percent reserve. By December 18, the
date of the school board meeting, the Governor's office announced the State budget deficit had
risen to $35 billion.
At the December 13 meeting, the parties discussed alternatives to TAI. Jahan testified
that during the meeting the District handed them a written proposal to amend TAI. Jones and
Jaynes stated that TCEA asked them to provide a written proposal reflecting the District's
discussions. A proposal was faxed to Jahan at approximately 7:00 p.m. on December 13.
Jones delivered a copy to Cheney at his home on Saturday, December 14.
The proposed amended tentative agreement (TA2) preserved all terms of TAI,
including the health benefit plan increases, modifying only the salary increase language as
follows:
including the health benefit plan increases, modifying only the salary increase language as
follows:
The District and TCEA agree to defer any salary schedule
increase until mid-year 2002-2003 State budget reductions are
determined, hopefully, in mid- or late January, 2003, at which
time the District and TCEA will collaboratively work together to
identify District budget cuts for recommendation to the Board of
Education. It is the intent of both negotiation teams and the
Board to fund the originally negotiated salary schedule increase,
The District and TCEA agree to defer any salary schedule
increase until mid-year 2002-2003 State budget reductions are
determined, hopefully, in mid- or late January, 2003, at which
time the District and TCEA will collaboratively work together to
identify District budget cuts for recommendation to the Board
of
Education. 	It is the intent of both negotiation teams and the
Board to fund the originally negotiated salary schedule increase,

or whatever portion
of
that increase can be supported through
such cuts.
The TCEA bargaining team caucused on December 16. According to TCEA's witness,
the bargaining team was discouraged and felt their backs were against the wall because unless
a health benefit increase was put in place before January
1,
2003, some unit employees would
be faced with premium costs
of
several hundred dollars each month. TCEA drafted a counter
proposal (TA3), which also maintained all the terms
of
TAI,
with the following modification
to the salary increase language:
The District and TCEA agree to defer Article XV, Section 1.3
until February
1,
2003, retroactive to December
1,
2002. 	When
the state budget reductions are determined in January 2003, the
District and TCEA will collaboratively work together to identify
District budget cuts for recommendation to the Board
of
Education. It is the intent
of
both negotiating 	and the
Board
of
Education to fund the originally negotiated schedule
mcrease.
teams
District negotiators stopped by TCEA' s meeting and the parties discussed both T A2
and TA3. The District negotiators explained that T A2 provided more flexibility as there was
no date certain or a guarantee the
1.
759 percent salary increase would be implemented. 	TCEA
negotiators thought that cuts could be identified and the salary increase funded by February.
Jaynes stated the District would not have sufficient information on budget reductions by
February 2003 and was concerned with putting any dates in the amended tentative agreement.
TCEA then suggested April and Jones commented that the Board might be able to work with
April. 	There is no evidence, however, the bargaining teams had reached a consensus at the
conclusion
of
the meeting that a particular amended tentative agreement would be submitted to
the District board.
Thereafter, TCEA directed a letter to Superintendent Joan Hillard (Hillard) on
December 16 asking the Board to ratify TAI at the December 18 school board meeting. 	In the
5
or whatever portion of that increase can be supported through
such cuts.
The TCEA bargaining team caucused on December 16. According to TCEA's witness,
the bargaining team was discouraged and felt their backs were against the wall because unless
a health benefit increase was put in place before January 1, 2003, some unit employees would
be faced with premium costs of several hundred dollars each month. TCEA drafted a counter
proposal (TA3), which also maintained all the terms of TAI, with the following modification
to the salary increase language:
The District and TCEA agree to defer Article XV, Section 1.3
until February 1, 2003, retroactive to December 1, 2002. When
the state budget reductions are determined in January 2003, the
District and TCEA will collaboratively work together to identify
District budget cuts for recommendation to the Board of
Education. It is the intent of both negotiating teams and the
Board of Education to fund the originally negotiated schedule
increase.
District negotiators stopped by TCEA's meeting and the parties discussed both TA2
and TA3. The District negotiators explained that TA2 provided more flexibility as there was
no date certain or a guarantee the 1.759 percent salary increase would be implemented. TCEA
negotiators thought that cuts could be identified and the salary increase funded by February.
Jaynes stated the District would not have sufficient information on budget reductions by
February 2003 and was concerned with putting any dates in the amended tentative agreement.
TCEA then suggested April and Jones commented that the Board might be able to work with
April. There is no evidence, however, the bargaining teams had reached a consensus at the
conclusion of the meeting that a particular amended tentative agreement would be submitted to
the District board.
Thereafter, TCEA directed a letter to Superintendent Joan Hillard (Hillard) on
December 16 asking the Board to ratify TAI at the December 18 school board meeting. In the
5

alternative, TCEA asked the Board to adopt T A3 if it was not going to ratify the original
tentative agreement. TCEA attached a copy of its proposed salary increase language with
April 2003 as the implementation date for the 1.759 percent salary increase.
Jahan called Jones several times before the December 18 board meeting to inquire
about whether the District board had any problems with the proposed TA3. Jones responded
that she had not heard anything from the board.
On December 18, during the closed session portion of the school board meeting Hillard
reviewed the proposals with the District board. The District negotiating team testified that
they presented both TA2 and T A3 to the District board, but the board preferred TA2. 7 During
the public meeting, TCEA addressed the District board urging it to ratify TAI or, if not, to
approve TA3. The District board then voted to adopt T A2. Immediately following the vote,
the District board announced that it understood that TCEA would have to ratify the proposal
before it could be implemented.
In a letter to TCEA dated December 19, the District's legal counsel, Margaret Chidester
(Chidester), described the District board's approval of TA2 as a proposal and reiterated that the
tentative agreement would not be implemented absent ratification by the TCEA. If TCEA did
not agree to TA2, Chidester stated the District was willing to resume negotiations with a
mediator. 	She acknowledged the approaching deadline for health benefit cost increases and
expressed the District's desire to reach agreement with TCEA before January 1, 2003, to avoid
the imposition of increased health benefit costs on employees. The letter stated, in relevant
part:
7The proposed decision states that the District negotiating team presented neither TA 1
nor TA3 to the District's board but instead presented only TA2 for consideration. However,
the record supports a different finding. 	Two District witnesses testified that TA3 was also
discussed with the District board. Further, District witnesses testified that the board was
aware of TA 1 and would not adopt it after the Governor's budget proposal was released.
6
alternative, TCEA asked the Board to adopt TA3 if it was not going to ratify the original
tentative agreement. TCEA attached a copy of its proposed salary increase language with
April 2003 as the implementation date for the 1.759 percent salary increase.
Jahan called Jones several times before the December 18 board meeting to inquire
about whether the District board had any problems with the proposed TA3. Jones responded
that she had not heard anything from the board.
On December 18, during the closed session portion of the school board meeting Hillard
reviewed the proposals with the District board. The District negotiating team testified that
they presented both TA2 and TA3 to the District board, but the board preferred TA2.' During
the public meeting, TCEA addressed the District board urging it to ratify TAI or, if not, to
approve TA3. The District board then voted to adopt TA2. Immediately following the vote,
the District board announced that it understood that TCEA would have to ratify the proposal
before it could be implemented.
In a letter to TCEA dated December 19, the District's legal counsel, Margaret Chidester
(Chidester), described the District board's approval of TA2 as a proposal and reiterated that the
tentative agreement would not be implemented absent ratification by the TCEA. If TCEA did
not agree to TA2, Chidester stated the District was willing to resume negotiations with a
mediator. She acknowledged the approaching deadline for health benefit cost increases and
expressed the District's desire to reach agreement with TCEA before January 1, 2003, to avoid
the imposition of increased health benefit costs on employees. The letter stated, in relevant
part:
The proposed decision states that the District negotiating team presented neither TAI
nor TA3 to the District's board but instead presented only TA2 for consideration. However,
the record supports a different finding. Two District witnesses testified that TA3 was also
discussed with the District board. Further, District witnesses testified that the board was
aware of TA1 and would not adopt it after the Governor's budget proposal was released.

The governing board is fully aware that TCEA may elect not to
accept the District's proposal. As stated in the board action,
implementation of the agreement, side letter, and amendment is
entirely dependent upon whether TCEA is in agreement. The
District does not intend to unilaterally implement the amended
agreement. 	Should TCEA elect not to accept this proposal, the
District recognizes the mutual obligation of both parties to return
to the bargaining table or to a mediation session to continue our
efforts to reach agreement.
Chidester's letter was attached to a "Bargaining Update" that was distributed to
bargaining unit employees on December 19. The Bargaining Update stated, "This agreement,
as amended, can not be implemented until ratified by TCEA."
The TCEA bargaining team met on December 19 and decided to recommend that its
members ratify the modified agreement adopted by the District board. 	TCEA negotiators
believed they had no choice as they wanted to have the benefits package in place by January 1,
2003. 	TCEA believed the District had committed itself to implementing a salary increase if
and when funds became available. TA2 was ratified by TCEA members on December 20.
Thereafter, the District initiated efforts to make reductions in the current year budget.
In February 2003, 8 the District approved budget reductions of $250,000 in non-negotiable
items for the 2002-2003 fiscal year.
The Governor's mid-year budget proposals were revised by the Legislature and
approved in early March. Immediate drastic cuts in education were averted when the
Legislature decided to defer a large portion of the cuts in education funding to the 2003-2004
fiscal year, resulting in reduced funding cuts for 2002-2003. In early March, the District
learned that instead of a $834,000 mid-year cut, the District would actually lose about
$200,000 for 2002-2003. Additionally, it appeared the State would not provide a cost-of-living
increase for 2003-2004. On April 2, the District filed a report with the County Superintendent
Dates hereafter refer to 2003, unless otherwise specified.
7
The governing board is fully aware that TCEA may elect not to
accept the District's proposal. As stated in the board action,
implementation of the agreement, side letter, and amendment is
entirely dependent upon whether TCEA is in agreement. The
District does not intend to unilaterally implement the amended
agreement. Should TCEA elect not to accept this proposal, the
District recognizes the mutual obligation of both parties to return
to the bargaining table or to a mediation session to continue our
efforts to reach agreement.
Chidester's letter was attached to a "Bargaining Update" that was distributed to
bargaining unit employees on December 19. The Bargaining Update stated, "This agreement,
as amended, can not be implemented until ratified by TCEA."
The TCEA bargaining team met on December 19 and decided to recommend that its
members ratify the modified agreement adopted by the District board. TCEA negotiators
believed they had no choice as they wanted to have the benefits package in place by January 1,
2003. TCEA believed the District had committed itself to implementing a salary increase if
and when funds became available. TA2 was ratified by TCEA members on December 20.
Thereafter, the District initiated efforts to make reductions in the current year budget.
In February 2003," the District approved budget reductions of $250,000 in non-negotiable
items for the 2002-2003 fiscal year.
The Governor's mid-year budget proposals were revised by the Legislature and
approved in early March. Immediate drastic cuts in education were averted when the
Legislature decided to defer a large portion of the cuts in education funding to the 2003-2004
fiscal year, resulting in reduced funding cuts for 2002-2003. In early March, the District
learned that instead of a $834,000 mid-year cut, the District would actually lose about
$200,000 for 2002-2003. Additionally, it appeared the State would not provide a cost-of-living
increase for 2003-2004. On April 2, the District filed a report with the County Superintendent
'Dates hereafter refer to 2003, unless otherwise specified.
7

of Schools certifying the District's financial condition as "qualified," meaning that "this district
may not meet its financial obligations for the current fiscal year or two subsequent fiscal
years." 	The "Governor's May Revise" for the 2003-2004 fiscal year indicated the District
would be six percent to seven percent below the 2002-2003 funding level, thus placing the
District in a deficit. The District also projected deficit spending for 2004-2005 and 2005-2006.
TCEA and the District met on March 28, to discuss mid-year cuts in District
expenditures for the 2002-2003 school year and whether the District could afford a salary
increase. 	District representatives outlined the budget cuts already approved by the District
board. During the meeting, TCEA consistently said it wanted the District to fund the salary
increase before it would discuss any cuts in negotiable items.
TCEA asked if a raise would be implemented. Jaynes stated that even though a raise
could be funded for the current year, uncertainty in future state budgets and the likelihood of
further cuts in education funding would not allow the District to implement a raise and still
maintain the mandatory three percent reserve over the following two years. 9 This was the first
time the District had mentioned the need to make a three-year budget projection. The meeting
ended without agreement.
Prior to the parties' next meeting on April 22, the District board provided direction to
its negotiating team to determine whether TCEA would agree to an off-schedule salary
payment. 10 The District board indicated that it probably could not afford a one-time payment
of as much as 1.759 percent but would consider something less.
TThe cost of the salary increase was calculated by the District at approximately
$235,000 for 2002-2003, $300,000 for the second year, and $335,000 annually thereafter.
TCEA estimated the cost was somewhat lower.
10Off-schedule means the increase would not be continued into successive years, i.e., it
would operate as a one-time "bonus."	would operate as a one-time "bonus."
8
of Schools certifying the District's financial condition as "qualified," meaning that "this district
may not meet its financial obligations for the current fiscal year or two subsequent fiscal
years." The "Governor's May Revise" for the 2003-2004 fiscal year indicated the District
would be six percent to seven percent below the 2002-2003 funding level, thus placing the
District in a deficit. The District also projected deficit spending for 2004-2005 and 2005-2006.
TCEA and the District met on March 28, to discuss mid-year cuts in District
expenditures for the 2002-2003 school year and whether the District could afford a salary
increase. District representatives outlined the budget cuts already approved by the District
board. During the meeting, TCEA consistently said it wanted the District to fund the salary
increase before it would discuss any cuts in negotiable items.
TCEA asked if a raise would be implemented. Jaynes stated that even though a raise
could be funded for the current year, uncertainty in future state budgets and the likelihood of
further cuts in education funding would not allow the District to implement a raise and still
maintain the mandatory three percent reserve over the following two years." This was the first
time the District had mentioned the need to make a three-year budget projection. The meeting
ended without agreement.
Prior to the parties' next meeting on April 22, the District board provided direction to
its negotiating team to determine whether TCEA would agree to an off-schedule salary
payment. " The District board indicated that it probably could not afford a one-time payment
of as much as 1.759 percent but would consider something less.
he cost of the salary increase was calculated by the District at approximately
$235,000 for 2002-2003, $300,000 for the second year, and $335,000 annually thereafter.
TCEA estimated the cost was somewhat lower.
"Off-schedule means the increase would not be continued into successive years, i.e., it
8

During the April 22 meeting, TCEA suggested cuts in certain non-negotiable items, but
cuts in negotiable subjects were not proposed or discussed. 	The parties did discuss an off
schedule payment. Ultimately, TCEA proposed a 1.759 percent off-schedule payment or,
alternatively, a 1.2 percent on-schedule salary increase. District negotiators were not
optimistic but agreed to discuss TCEA's counterproposal with the District board. Jahan
testified the parties talked about an off-schedule payment, "but it never got past that stage."
She stated TCEA "never agreed because we never got to the point of agreeing, but we had
offered that."
On April 23, District negotiators communicated to TCEA that the District board had
rejected TCEA's proposal. 	The parties did not meet again nor did TCEA request further
bargaining or declare impasse before filing its charge with PERB on June 13.
The parties dispute whether the District could have afforded to fund the 1. 7 59 percent
salary increase. Jaynes testified that if a salary increase had or would become possible, he
would recommend it to the District board and it would be up to the board to decide whether to
implement it. 	Jaynes admitted that the District's 2002-2003 budget could have supported a
salary increase because the Governor's mid-term budget had "righted itself," but he claimed
that there was an "enormous amount of uncertainty" as to possible education funding cuts over
the next two years. Thus, while a one-time off-schedule payment might have been feasible for
2002-2003, Jaynes contended that he could not have recommended an on-schedule raise at any
time without wiping out the three percent reserve, unless substantial additional cuts could be
made in the District's projected three-year budget.
Lee Lipps, a staff representative and financial consultant to the California Teachers
Association, TCEA's parent organization, testified that of the 55 school districts on the
9
During the April 22 meeting, TCEA suggested cuts in certain non-negotiable items, but
cuts in negotiable subjects were not proposed or discussed. The parties did discuss an off-
schedule payment. Ultimately, TCEA proposed a 1.759 percent off-schedule payment or,
alternatively, a 1.2 percent on-schedule salary increase. District negotiators were not
optimistic but agreed to discuss TCEA's counterproposal with the District board. Jahan
testified the parties talked about an off-schedule payment, "but it never got past that stage."
She stated TCEA "never agreed because we never got to the point of agreeing, but we had
offered that."
On April 23, District negotiators communicated to TCEA that the District board had
rejected TCEA's proposal. The parties did not meet again nor did TCEA request further
bargaining or declare impasse before filing its charge with PERB on June 13.
The parties dispute whether the District could have afforded to fund the 1.759 percent
salary increase. Jaynes testified that if a salary increase had or would become possible, he
would recommend it to the District board and it would be up to the board to decide whether to
implement it. Jaynes admitted that the District's 2002-2003 budget could have supported a
salary increase because the Governor's mid-term budget had "righted itself," but he claimed
that there was an "enormous amount of uncertainty" as to possible education funding cuts over
the next two years. Thus, while a one-time off-schedule payment might have been feasible for
2002-2003, Jaynes contended that he could not have recommended an on-schedule raise at any
time without wiping out the three percent reserve, unless substantial additional cuts could be
made in the District's projected three-year budget.
Lee Lipps, a staff representative and financial consultant to the California Teachers
Association, TCEA's parent organization, testified that of the 55 school districts on the
9

Los Angeles County Office of Education's (LAC OE) qualified certification 11 list in April/May
2003, 22 gave on-schedule teacher raises for the 2002-2003 school year. 	TCEA contends that
the District's Interim Reports, financial reports required to be filed with the LACOE, contained
inaccuracies in its financial position, several of them so unreasonable as to reveal the District's
bad faith in claiming its inability to pay the salary increase.
In general, TCEA contends that, as the Governor's proposed 2002-2003 mid-year
budget ultimately "righted itself," the District was in no worse position than it was when it
submitted the first Interim Report for 2002-2003 in December 2002, which included the
1.759	1.759 percent teacher salary increases. TCEA argues that the District has always been able to
implement the increase but has manipulated its budget and its Interim Reports to reflect
otherwise. The District contends that it was never able to implement a salary increase.
ALJ'S PROPOSED DECISION
The proposed decision sets forth the ALJ' s determination that the District failed to
negotiate in good faith with TCEA when it unilaterally adopted TA2. 	The ALJ concluded T A2
was adopted without TCEA's agreement, without TCEA's knowledge that TA2 would be
presented to the District board, and without an opportunity to comment on the District's action
or negotiate for another position. The ALJ viewed the District's ratification of TA2 as "a fait
accompli, a 'take-it-or-leave-it' proposition."
The ALJ also found the District breached its duty to bargain in good faith in April 2003
by refusing to implement a salary increase when funds were available and by withdrawing an
agreement to grant a one-time off-schedule payment.
11 Qualified certification indicates that a school district "may not meet its financial
obligations for the current fiscal year or two subsequent fiscal years."
Los Angeles County Office of Education's (LACOE) qualified certification" list in April/May
2003, 22 gave on-schedule teacher raises for the 2002-2003 school year. TCEA contends that
the District's Interim Reports, financial reports required to be filed with the LACOE, contained
inaccuracies in its financial position, several of them so unreasonable as to reveal the District's
bad faith in claiming its inability to pay the salary increase.
In general, TCEA contends that, as the Governor's proposed 2002-2003 mid-year
budget ultimately "righted itself," the District was in no worse position than it was when it
submitted the first Interim Report for 2002-2003 in December 2002, which included the
percent teacher salary increases. TCEA argues that the District has always been able to
implement the increase but has manipulated its budget and its Interim Reports to reflect
otherwise. The District contends that it was never able to implement a salary increase.
ALJ'S PROPOSED DECISION
The proposed decision sets forth the ALJ's determination that the District failed to
negotiate in good faith with TCEA when it unilaterally adopted TA2. The ALJ concluded TA2
was adopted without TCEA's agreement, without TCEA's knowledge that TA2 would be
presented to the District board, and without an opportunity to comment on the District's action
or negotiate for another position. The ALJ viewed the District's ratification of TA2 as "a fait
accompli, a 'take-it-or-leave-it' proposition."
The ALJ also found the District breached its duty to bargain in good faith in April 2003
by refusing to implement a salary increase when funds were available and by withdrawing an
agreement to grant a one-time off-schedule payment.
"Qualified certification indicates that a school district "may not meet its financial
obligations for the current fiscal year or two subsequent fiscal years."
10

DISCUSSION
At issue is whether the District's actions demonstrate that it engaged in surface
bargaining in violation
of
its duty to bargain in good faith. 	It is the essence
of
surface
bargaining that a party goes through the motions
of
negotiations, but in fact is weaving
otherwise unobjectionable conduct into an entangling fabric 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.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or
leave-it" attitude evidences a failure
of
the duty to bargain because it amounts to merely going
through the motions
of
negotiations. 	(General Electric Co. (1964) 150 NLRB 192, 194, enf.
418 F.2d 736.) Recalcitrance in the scheduling
of
meetings is evidence
of
manipulation to
delay and obstruct a timely agreement. (Oakland Unified School District (1983) PERB
Decision No. 326 (Oakland USD).) Dilatory and evasive tactics including canceling meetings
or failing to prepare for meetings is evidence
of
bad faith. 	(Oakland USD, supra.)
Other factors that have been held to be indicia
of
surface bargaining include a
negotiator's lack
of
authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143 (Stockton USD)) and reneging on
tentative agreements the parties already have made (Charter Oak Unified School District
(1991) PERB Decision No. 873; Stockton USD, supra; Placerville Union School District
(1978) PERB Decision No. 69 (Placerville USD)).
11
DISCUSSION
At issue is whether the District's actions demonstrate that it engaged in surface
bargaining in violation of its duty to bargain in good faith. It is the essence of surface
bargaining that a party goes through the motions of negotiations, but in fact is weaving
otherwise unobjectionable conduct into an entangling fabric 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.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or
leave-it" attitude evidences a failure of the duty to bargain because it amounts to merely going
through the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf.
418 F.2d 736.) Recalcitrance in the scheduling of meetings is evidence of manipulation to
delay and obstruct a timely agreement. (Oakland Unified School District (1983) PERB
Decision No. 326 (Oakland USD).) Dilatory and evasive tactics including canceling meetings
or failing to prepare for meetings is evidence of bad faith. (Oakland USD, supra.)
Other factors that have been held to be indicia of surface bargaining include a
negotiator's lack of authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143 (Stockton USD)) and reneging on
tentative agreements the parties already have made (Charter Oak Unified School District
(1991) PERB Decision No. 873; Stockton USD, supra; Placerville Union School District
(1978) PERB Decision No. 69 (Placerville USD)).
11

District Adoption
of
T A2
The ALJ found the District engaged in surface bargaining at its December board
meeting when it adopted TA2 without notice to TCEA and without TCEA's prior agreement.
12
TCEA contends that after the District abandoned TA
1,
the District adopted TA2 even
though it knew the proposal was unacceptable to TCEA. 	TCEA asserts the District approved
TA2 without prior notice that the District found TA3 objectionable and would not take a vote
on T A3. In light
of
the time constraints facing the parties, TCEA contends this conduct
demonstrates bad faith bargaining.
The District contends it was faced with the prospect
of
unprecedented mid-year state
budget cuts that threatened to slash education funding. 	Given these changed circumstances,
the District declined to ratify TA 1 and resumed negotiations and exchanged proposals with
TCEA. 	The District asserts the District board did consider TCEA's salary modification
proposal prior to adopting TA2. Further, the District contends the ALJ misstated the evidence
in concluding that once the District board adopted TA2 it became "a fait accompli, a 'take-it
or-leave-it' proposition." Rather, the District offered to continue negotiations
if
TCEA
requested to resume bargaining.
In the days prior to the District board meeting to consider ratification
of
TA 1, the
Governor proposed significant mid-year cuts in education funding. 	At the time, the extent
of
the proposed cuts was uncertain. Based on this uncertainty, the District signaled that it would
1 After the hearing the ALJ amended the complaint on her own motion to replace the
impasse bargaining allegation (EERA sec. 3543.5(e)) with the allegation the District violated
the duty to bargain in good faith (EERA sec. 3543.5(c)). The ALJ held that impasse was
broken when the parties discussed alternatives to TA 1 in December 2002. The District asserts
the ALJ had no authority to amend the complaint at this stage. Neither party contends that
impasse procedures were concluded or that impasse was broken, and we do not so find.
However, the ALJ did correctly note that the Board applies the same legal standard to
determine whether a party has failed to negotiate in good faith prior to impasse and while
engaged in impasse procedures. (Ventura County Community College District (1998) PERB
Decision No. 1264.)
12
District Adoption of TA2
The ALJ found the District engaged in surface bargaining at its December board
meeting when it adopted TA2 without notice to TCEA and without TCEA's prior agreement."
TCEA contends that after the District abandoned TAI, the District adopted TA2 even
though it knew the proposal was unacceptable to TCEA. TCEA asserts the District approved
TA2 without prior notice that the District found TA3 objectionable and would not take a vote
on TA3. In light of the time constraints facing the parties, TCEA contends this conduct
demonstrates bad faith bargaining.
The District contends it was faced with the prospect of unprecedented mid-year state
budget cuts that threatened to slash education funding. Given these changed circumstances,
the District declined to ratify TAI and resumed negotiations and exchanged proposals with
TCEA. The District asserts the District board did consider TCEA's salary modification
proposal prior to adopting TA2. Further, the District contends the ALJ misstated the evidence
in concluding that once the District board adopted TA2 it became "a fait accompli, a 'take-it
or-leave-it' proposition." Rather, the District offered to continue negotiations if TCEA
requested to resume bargaining.
In the days prior to the District board meeting to consider ratification of TAI, the
Governor proposed significant mid-year cuts in education funding. At the time, the extent of
the proposed cuts was uncertain. Based on this uncertainty, the District signaled that it would
"After the hearing the ALJ amended the complaint on her own motion to replace the
impasse bargaining allegation (EERA sec. 3543.5(e)) with the allegation the District violated
the duty to bargain in good faith (EERA sec. 3543.5(c)). The ALJ held that impasse was
broken when the parties discussed alternatives to TAl in December 2002. The District asserts
the ALJ had no authority to amend the complaint at this stage. Neither party contends that
impasse procedures were concluded or that impasse was broken, and we do not so find.
However, the ALJ did correctly note that the Board applies the same legal standard to
determine whether a party has failed to negotiate in good faith prior to impasse and while
engaged in impasse procedures. (Ventura County Community College District (1998) PERB
Decision No. 1264.)
12

not ratify TA
1.
	While a tentative agreement reached by the respective bargaining teams does
not bind either side, the Board has held that, "where there has been a good faith rejection
of
the
tentative agreement by the principles, the duty to bargain is also revived." (Alhambra City and
High School Districts (1986) PERB Decision No. 560.)
The District board was not required to ratify the first tentative agreement. In this case
the record demonstrates, and TCEA does not dispute, that the District's failure to ratify
TAI
was excused by the proposed unprecedented and severe mid-year cuts in education funding.
Once the District notified TCEA
of
its likely rejection
of
TA
1,
the parties resumed
negotiations. Both parties were cognizant
of
the time constrains that could result in higher
employee health benefit premium costs absent an agreement by January
1,
2003. The parties
discussed modifications to the salary proposal. 	The evidence indicates the bargaining teams
were not in agreement on the salary provision modification prior to the District board meeting
on December 18.
However, as discussed previously, the record demonstrates that the District board did
consider TA3. District witnesses testified the proposal was discussed with the board in closed
session. In addition, prior to taking a vote, TCEA representatives addressed the District board
and urged approval
of
TA3
if
it would not ratify the salary increase in TAI. When the vote
was taken the District board approved TA2. Immediately after the vote, the board announced
that TA2 would not be implemented absent approval by TCEA. In a letter to TCEA the next
day, the District reiterated that TA2 was a proposal that needed to be ratified by union
members before it could be implemented. The District stated it would resume negotiations
if
the proposal was unacceptable.
The ALJ relied on Placerville USD to find that the District's approval of TA2
represented an unlawful modification of the parties' tentative agreement. 	In Placerville USD,
13
not ratify TA1. While a tentative agreement reached by the respective bargaining teams does
not bind either side, the Board has held that, "where there has been a good faith rejection of the
tentative agreement by the principles, the duty to bargain is also revived." (Alhambra City and
High School Districts (1986) PERB Decision No. 560.)
The District board was not required to ratify the first tentative agreement. In this case
the record demonstrates, and TCEA does not dispute, that the District's failure to ratify TAI
was excused by the proposed unprecedented and severe mid-year cuts in education funding.
Once the District notified TCEA of its likely rejection of TAI, the parties resumed
negotiations. Both parties were cognizant of the time constrains that could result in higher
employee health benefit premium costs absent an agreement by January 1, 2003. The parties
discussed modifications to the salary proposal. The evidence indicates the bargaining teams
were not in agreement on the salary provision modification prior to the District board meeting
on December 18.
However, as discussed previously, the record demonstrates that the District board did
consider TA3. District witnesses testified the proposal was discussed with the board in closed
session. In addition, prior to taking a vote, TCEA representatives addressed the District board
and urged approval of TA3 if it would not ratify the salary increase in TAI. When the vote
was taken the District board approved TA2. Immediately after the vote, the board announced
that TA2 would not be implemented absent approval by TCEA. In a letter to TCEA the next
day, the District reiterated that TA2 was a proposal that needed to be ratified by union
members before it could be implemented. The District stated it would resume negotiations if
the proposal was unacceptable.
The ALJ relied on Placerville USD to find that the District's approval of TA2
represented an unlawful modification of the parties' tentative agreement. In Placerville USD,
13

the school district's negotiator recommended that the school board delete the organizational
security provision before voting to ratify the parties' tentative agreement. After the school
board vote, the district informed the union by letter
of
its decision to modify the tentative
agreement without an offer to negotiate the change. PERB found the union did not have an
opportunity to comment on the district's actions or engage in further negotiations.
Placerville USD is clearly distinguishable from the present case. 	In view
of
the
n
Placerville USD is clearly distinguishable from the present case. In view of the
approaching deadline for increased health benefit costs, the District board approved TA2 rather
than merely giving guidance to its negotiators
of
its preferred proposals. Although the District
approved TA2 without first reaching a tentative agreement with TCEA's 	egotiators, it did so
with clear communication that TA2 would not be implemented unless TCEA agreed. 	The
District offered to resume negotiations at TCEA's request. The finality
of
the school board's
action in Placerville USD
is
not present in the instant case. The District's approval
of
T A2 was
nothing more than a counterproposal that TCEA was free to accept or reject. Therefore, we do
not find the District's adoption
of
TA2 amounted to a "take-it-or-leave-it proposition" that
demonstrates surface bargaining.
The Failure to Implement a Salary Increase
The ALJ held that the District's conduct during the March and April 2003 negotiations
evidenced a failure to bargain in good faith, citing the District's reliance on a three-year budget
projection to deny a salary increase and the withdrawal
of
an agreement to grant a one-time
off-schedule payment.
TCEA contends that because the proposed mid-year budget cuts were not as severe as
originally anticipated, the District was obligated under the terms of TA2 to implement the
originally negotiated salary increase.
14
the school district's negotiator recommended that the school board delete the organizational
security provision before voting to ratify the parties' tentative agreement. After the school
board vote, the district informed the union by letter of its decision to modify the tentative
agreement without an offer to negotiate the change. PERB found the union did not have an
opportunity to comment on the district's actions or engage in further negotiations.
approaching deadline for increased health benefit costs, the District board approved TA2 rather
than merely giving guidance to its negotiators of its preferred proposals. Although the District
approved TA2 without first reaching a tentative agreement with TCEA's negotiators, it did so
with clear communication that TA2 would not be implemented unless TCEA agreed. The
District offered to resume negotiations at TCEA's request. The finality of the school board's
action in Placerville USD is not present in the instant case. The District's approval of TA2 was
nothing more than a counterproposal that TCEA was free to accept or reject. Therefore, we do
not find the District's adoption of TA2 amounted to a "take-it-or-leave-it proposition" that
demonstrates surface bargaining.
The Failure to Implement a Salary Increase
The ALJ held that the District's conduct during the March and April 2003 negotiations
evidenced a failure to bargain in good faith, citing the District's reliance on a three-year budget
projection to deny a salary increase and the withdrawal of an agreement to grant a one-time
off-schedule payment.
TCEA contends that because the proposed mid-year budget cuts were not as severe as
originally anticipated, the District was obligated under the terms of TA2 to implement the
originally negotiated salary increase.
14

The District argues that it did not repudiate any agreement during the March
and
April
2003 negotiations. The parties' agreement required them to "collaboratively work together," to
seek an agreement on a salary increase. However, no agreement was reached. The April 22
meeting resulted in a TCEA counterproposal for a one-time payment that the District
negotiators agreed to present to the District board. The District asserts its rejection
of
that
proposal was not unlawful.
The parties' agreement states that TCEA and the District "will collaboratively work
together to identify District budget cuts." Thereafter, it was the parties' intent 	to fund the
originally negotiated salary increase, or whatever portion
of
that increase can be supported
through such cuts."
"
Contrary to TCEA's position, the language
of
the agreement does not mandate that a
salary increase be implemented without further negotiations
if
sufficient funds were available.
Furthermore, the agreement does not specify the actual amount
of
a salary increase to be paid
once spending cuts were identified. This interpretation is buttressed by testimony that during
the parties' discussions on T A2 and TA3, District negotiators stated they preferred T A2
because it did not guarantee a salary increase would be implemented.
Even the ALJ concluded the parties had never reached agreement on a salary increase.
The ALJ stated:
As to an on-schedule increase, after the District's withdrawal
of
TA 1 in December 2002, which was not unlawful, the parties
never agreed to a permanent on-schedule increase. Rather, in
[T A2], they made an agreement-to-agree, i.e. to 'collaboratively
work together' to recommend budget cuts and to fund the	work together' to recommend budget cuts and to fund the
originally scheduled increase. Their collaborative work at the
March and April, 2003 negotiating sessions did not result in any
agreement to recommend budget cuts or to fund an increase.
15
The District argues that it did not repudiate any agreement during the March and April
2003 negotiations. The parties' agreement required them to "collaboratively work together," to
seek an agreement on a salary increase. However, no agreement was reached. The April 22
meeting resulted in a TCEA counterproposal for a one-time payment that the District
negotiators agreed to present to the District board. The District asserts its rejection of that
proposal was not unlawful.
The parties' agreement states that TCEA and the District "will collaboratively work
together to identify District budget cuts." Thereafter, it was the parties' intent "to fund the
originally negotiated salary increase, or whatever portion of that increase can be supported
through such cuts."
Contrary to TCEA's position, the language of the agreement does not mandate that a
salary increase be implemented without further negotiations if sufficient funds were available.
Furthermore, the agreement does not specify the actual amount of a salary increase to be paid
once spending cuts were identified. This interpretation is buttressed by testimony that during
the parties' discussions on TA2 and TA3, District negotiators stated they preferred TA2
because it did not guarantee a salary increase would be implemented.
Even the ALJ concluded the parties had never reached agreement on a salary increase.
The ALJ stated:
As to an on-schedule increase, after the District's withdrawal of
TA1 in December 2002, which was not unlawful, the parties
never agreed to a permanent on-schedule increase. Rather, in
[TA2], they made an agreement-to-agree, i.e. to 'collaboratively
originally scheduled increase. Their collaborative work at the
March and April, 2003 negotiating sessions did not result in any
agreement to recommend budget cuts or to fund an increase.
15

Thus, TCEA's claim that the District was obligated to fund the original salary increase
if
there were sufficient funds is without merit. In essence, the parties agreed to continue
negotiations over salary and no agreement was reached before TCEA filed its charge.
Furthermore, the ALJ found that the District reneged on a tentative agreement to grant a
one-time off-schedule salary payment. The record does not support a determination that the
parties reached a tentative agreement on an off-schedule bonus. District negotiators proposed
an off-schedule payment
of
less than 1.759 percent. TCEA countered with a one-time 1.759
percent payment or a 1.2 percent on-schedule salary increase. 	TCEA negotiators testified that
in discussing an off-schedule payment the bargaining team negotiators "never agreed because
we never got to the point
of
agreeing, but we had offered that." Instead, District negotiators
informed the TCEA bargaining team that was not optimistic but stated they would take TCEA's
counterproposal back to the District board for consideration. The District board rejected both
alternatives in TCEA's proposal. The District did not renege on its own one-time payment
proposal. Rather, the District rejected TCEA1s higher counterproposal. This conduct does not
demonstrate the District breached its duty to bargain in good faith.
ORDER
Upon the foregoing findings
of
fact and conclusions
of
law and the entire record in this
matter, the complaint and underlying unfair practice charge in Case No. LA-CE-4527-E is
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chair Neuwald and Members McKeag and Rystrom joined in this Decision.
16
Thus, TCEA's claim that the District was obligated to fund the original salary increase
if there were sufficient funds is without merit. In essence, the parties agreed to continue
negotiations over salary and no agreement was reached before TCEA filed its charge.
Furthermore, the ALJ found that the District reneged on a tentative agreement to grant a
one-time off-schedule salary payment. The record does not support a determination that the
parties reached a tentative agreement on an off-schedule bonus. District negotiators proposed
an off-schedule payment of less than 1.759 percent. TCEA countered with a one-time 1.759
percent payment or a 1.2 percent on-schedule salary increase. TCEA negotiators testified that
in discussing an off-schedule payment the bargaining team negotiators "never agreed because
we never got to the point of agreeing, but we had offered that." Instead, District negotiators
informed the TCEA bargaining team that was not optimistic but stated they would take TCEA's
counterproposal back to the District board for consideration. The District board rejected both
alternatives in TCEA's proposal. The District did not renege on its own one-time payment
proposal. Rather, the District rejected TCEA's higher counterproposal. This conduct does not
demonstrate the District breached its duty to bargain in good faith.
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
matter, the complaint and underlying unfair practice charge in Case No. LA-CE-4527-E is
hereby DISMISSED WITHOUT LEAVE TO AMEND.
Chair Neuwald and Members Mckeag and Rystrom joined in this Decision.
16