Petaluma City Elementary School District/Joint Union High School District (PERB 2485E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PETALUMA FEDERATION OF TEACHERS,
LOCAL 1881,
Charging Party,
V.
PETALUMA CITY ELEMENTARY SCHOOL
DISTRICT/JOINT UNION HIGH SCHOOL
DISTRICT,
Respondent.
Case No. SF-CE-3091-E
PERB Decision No. 2485
June 30, 2016
Appearances: Weinberg, Roger & Rosenfeld by Stewart Weinberg, Attorney, for Petaluma
Federation
of
Teachers, Local 1881; School & College Legal Services
of
California by
Margaret M. Merchat, Senior Associate General Counsel, for Petaluma City Elementary
School District/Joint Union High School District.
Before Winslow, Banks and Gregersen, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the Petaluma Federation
of
Teachers, Local 1881 (Federation) from the
Office of the General Counsel's dismissal
of
an unfair practice charge. The charge, as
amended, alleged that the Petaluma City Elementary School District/foint Union High School
District (District) violated the Educational Employment Relations Act (BERA), 1 by:
(1) providing the Federation with inaccurate information about the District's financial
resources; (2) failing to provide the Federation with requested information that was necessary
and relevant for contract negotiations; (3) conditioning negotiations on the Federation's
agreement to prohibit bargaining unit employees from observing negotiations; (4) unilaterally
1 BERA is codified at Government Code section 3540, et seq. Unless otherwise noted,
all statutory references herein are to the Government Code.

changing a past practice
of
allowing bargaining unit employees to observe negotiations;
(5) unilaterally changing the Hours
of
Employment provisions
of
the parties' collective
bargaining agreement (CBA); (6) interfering with employee rights
by
prohibiting distribution
of
union leaflets during the 30 minutes before the start
of
the school day; and (7) engaging in
surface bargaining. 2 In addition to an order for the District to cease and desist from unlawful
conduct and to bargain
in
good faith with bargaining-unit employees present, the Federation
has requested that PERB order the District to
pay
the Federation's litigation costs.
The Office
of
the General Counsel dismissed the charge for failure to state a prima
facie case for any
of
the above allegations. We affirm in part and reverse in part.
PROCEDURAL HISTORY
On
August 1, 2014, the Federation filed
an
unfair practice charge alleging multiple
violations
ofEERA.
On September 3, 2014, the District filed a position statement in which it admitted some
of
the factual allegations
in
the Federation's charge, denied others and denied any wrongdoing.
On October 23, 2014, the Federation amended its charge to include additional
information and exhibits in support
of
the allegations in the original charge. The· first amended
charge also included information and exhibits in support
of
new allegations.
2 The first amended charge had also alleged that the District had bypassed the
Federation and interfered with employee and organizational rights, when one or more
of
the
District's governing board members allegedly solicited a third party to publicly criticize a
petition posted by the Federation on the website change.org. As noted in the dismissal letter,
this allegation was not included in the second amended charge. The Federation's appeal
concedes that this allegation was not included in the operative second amended charge, and we
therefore disregard the allegation as abandoned and warranting no further consideration by the
Board. (PERB Reg. 32635, subd. (a); Trustees o.f California State University (2014) PERB
Decision No. 2384-H (Trustees
of
CSU), pp. 45-46; Los Angeles Community College District
(2000) PERB Decision No. 1377, adopting dismissal letter at p. 2, fn. 3. PERB regulations are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.)
2

On November 10, 2014, the District submitted a second position statement, which
provided additional information in response to the new allegations in the Federation's first
amended charge and which again denied any wrongdoing.
On December 12, 2014, the Office
of
the General Counsel advised the Federation in a
warning letter that the charge, as amended, failed to state a prima facie case
of
any violation
of
EERA, and that, unless the charge was further amended or withdrawn, it would be dism.issed.
After obtaining an extension
of
time, on January 23, 2015, the Federation filed a second
amended charge. On March 6, 2015, the District submitted a th.ird position statement which
largely reiterated its previously-asserted allegations and defenses and admitted some additional
facts as alleged in the second amended charge, but otherwise denied any wrongdoing.
On April 7, 2015, the Office
of
the General Counsel dismissed the charge.
On April 29, 2015, the Federation filed the present appeal and on May 15, 2015, the
District filed its opposition to the appeal.
FACTUAL ALLEGATIONS
On review
of
a dismissal/refusal to issue a complaint, we assume the truth
of
the
charging party's factual allegations (San Juan Unified School District ( 1977) EERB3 Decision
No. 12, p. 5; Golden Plains Unified School District (2002) PERB Decision No. 1489, p. 6)
and accept that version
of
the facts most favorable to the charging party's case. (Calffornia
School Employees Association & its Chapter 244 (Gutierrez) (2004) PERB Decision No. 1606,
pp. 3-4.) We are not concerned with making findings
of
fact or weighing the parties'
conflicting allegations. When the investigation
of
a charge "results in receipt
of
conflicting
allegations
of
fact or contrary theories
of
law, fair proceedings,
if
not due process, demand that
3 Before January 1978, PERB was known as the Educational Employment Relations
Board or EERB.
3

a complaint be issued and the matter
be
sent to formal hearing." (Eastside Union School
District ( 1984) PERB Decision No. 466, p. 7.) In addition to the charging party's factual
allegations, we may also consider information provided
by
the respondent, when such
information is submitted under oath, complements without contradicting the facts alleged
in
the
charge, and is not disputed
by
the charging party, (PERB Reg. 32620(c); Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M; Lake Tahoe Unified
School District (1993) PERB Decision No. 994; Riverside Unified School District (1986) PERB
Decision No. 562a.)
The Parties' Agreement and Bargaining History
The Federation is the exclusive representative
of
the District's certificated employees.
At
all times relevant to this appeal, the Federation and the District were parties to a CBA which
expired
on
June 30, 2015.
Article IV, Employee Rights,
of
the CBA includes language substantially identical to that
found in EERA. That is, unit members "shall have the right to form, join and participate in the
activities
of
employee organizations
of
their ovlil choosing" as well as the right to refuse to join
or participate in such activities.
Article VI, Hours
of
Employment, defines the number
of
work days in a work year, the
weekly teaching load and number
of
preparation periods, and the expectations for attendance
of
certificated personnel at weekly staff meetings, parent conferences, staff development days, open
house and back to school events, and extra-curricular activities occurring outside regular
working hours, but includes no language identifying the start time
of
the work day or specifying
any duties or expectations
of
certificated personnel before the start
of
instmctional class time.
The CBA also included provisions for reopener negotiations, which were the context for
most of the allegations of the underlying unfair practice charge and the present appeal. The
4

parties' representatives also meet monthly for an Employer/Employee Relations Committee
(EERC), a body established by the CBA for issues that are not subject to negotiation. When they
are
in
negotiations, the parties conduct EERC meetings immediately before negotiations.
The parties have no ground rules or other written agreement governing the attendance
of
bargaining unit employees, who are not part
of
the Federation's bargaining team, at negotiations.
The District has
no
objection to making EERC meetings "open to the public," including to
District employees who are not part
of
the Federation's bargaining team. The parties disagree,
however, over whether there exists an established practice
of
permitting or prohibiting employee
observers at their negotiations. The Federation alleges that such observers have "often" attended
previous negotiations without objection
by
the District. The Federation alleges,
by
way
of
example, that on July 12, 2013, approximately 30 bargaining unit employee observers attended a
mediated bargaining session without comment or objection by the District. The Federation's
charge also includes what purports to be the District's minutes
of
a bargaining meeting on
June 21, 2013, at which two Federation members were "sitting in" for regular negotiating team
members. According to the minutes, "Steve," i.e., the District's Superintendent and Chief
Negotiator Steve Bolman (Bolman), "noted that the visitors here today are for observation
purposes only." (Unfair Practice Charge (UPC), Attachment R.)
The District generally admits, as alleged
by
the Federation, that on July 12, 2013,
"multiple individuals," who were not part
of
the Federation's negotiating team, attended the first
bargaining session after the Federation's membership had rejected a tentative agreement.
However, according to Bolman, the District had no notice that employee observers would attend
this meeting and, while the District agreed to meet with the employee observers present on this
one occasion, it has otherwise never agreed or acquiesced to anyone other than bargaining team
5

members attending negotiations. (District Third Position Statement, Declaration of Steve
Bolman,
,r
6.)
The District also admits that, because
of
turnover among the Federation's negotiators,
Suzanne Garcia (Garcia), a bargaining-unit employee, was permitted
to
attend negotiations
on
February
14
and March 7, 2014 "as an observer," because she
was
considering joining and did in
fact join the Federation's negotiating team. (District Third Position Statement, Declaration
of
Steve Bolman,
,r,r
5,
7
.)
Reopener Negotiations
On February 14, 2014, the parties' representatives met
for
their monthly EERC meeting
and to begin reopener negotiations. Representing the District were Bolman and five other
officials or employees
of
the District. The Federation's representatives consisted of Chief
Negotiator Sandra Larsen (Larsen), Local President Kim Sharp (Sharp), six employee
representatives and two staff persons provided by the California Federation of Teachers. In
addition, Sharp introduced Garcia
as
"an observer" from one of the schools in the District.
(Second Amended UPC, Attachment B.) The charge and supporting materials allege that after
· concluding their EERC meeting, the parties exchanged reopener proposals and discussed
reopener subjects, including early retirement and a reduced workload program. 	(Ibid.; see also
District Position Statement, Ex. 2.)
The Federation alleges that the District raised no objection to Garcia's attendance
as an
employee observer at the February 14, 2014 meeting. Various exhibits to the charge, including
the Federation's bargaining notes and the District's minutes of bargaining meetings, indicate that
Garcia also attended subsequent bargaining sessions. At some point, Garcia became a member
of the Federation's bargaining team, though neither the charge and supporting materials, nor the
6

District's various position statements indicate how many bargaining sessions Garcia attended as
an observer before joining the Federation's bargaining team.
On March 7, 2014, the parties met again for EERC discussions and reopener negotiations.
The Federation presented amended proposals, including a proposal for a 7 percent wage increase.
The parties had a detailed discussion regarding the District's budget projections.
On April 10, 2014, the parties met again for EERC discussions and reopener negotiations.
They again discussed the District's budget, and the cost
of
the District's proposals for a 2 percent
wage increase and for hiring additional teachers to reduce class sizes.
On
April 25, 2014, the parties met again for EERC discussions and reopener negotiations.
The Federation stated that it was not against class size reductions, but that its membership would
not accept the District's proposal for a 2 percent wage increase.
On May 9, 2014, the parties met again. The District now proposed a 2.5 percent wage
increase, but reduced the amount it proposed to spend on class size reductions. Bolman stated
that the District "we are going to impasse way before 4.5 [percent] is considered." He also
suggested that "we may need help to settle this contract" through the impasse process.
On May 27, 2014, the parties met again. The Federation requested information regarding
what it viewed as the District's regressive economic proposal. The District acknowledged that
its second proposal would cost the District approximately $366,000 less than its previous
proposal. Bolman allegedly stated that, "until [the Federation] makes more movement, it's in
reserve. ,.But it's not all available." The District's position statement alleges, and the Federation
does not dispute, that Bolman explained at this meeting, that the funds intended for class size
reductions were "restricted," meaning they could not be used for salaries. However, Bolman
also explained that, in response to the Federation's previously expressed preference for a larger
salary increase, the District had shifted restricted funds from class size reductions to other
7

permissible purposes in order to make other, unrestricted funds available for salaries. Although
the District's second economic proposal would provide for a 2.5 percent salary increase, which
was 0.5 percent more than the amount included in the District's initial proposal, because
of
the
shift in funds for class size reductions, the overall cost to the District
of
its second proposal was
approximately $366,00 less than its initial proposal.
Also during the May 27, 2014 meeting, Bolman allegedly suggested that, from the
District's standpoint, two successive annual salary increases of2.5 percent were preferable over
one 5 percent increase because there would be no additional money for a wage increase in
successive years and employees would not remember an increase from the previous year. Later,
during the same meeting, the District responded to a Federation demand by proposing an
additional one-time payment
of
$500 to each employee. The District also presented three
versions
of
its cost projections, which the Federation's bargaining team characterized as
"confusing" and "difficult ... to understand or accept."
On June 9, 2014, the parties met and reached a tentative agreement on stipends.
Information Request
On July 2, 2014, Larsen requested information regarding the cost
of
step and column
increases for the 2014-2015 school year, new hires, retirees, and the District's beginning balance
for the 2014-2015 fiscal year. 4 She also requested a list
of
certificated employees who had
retired in the 2013-2014 school year. Her letter requested responses at the parties' next
4 The Federation initially alleged that the District had also failed to respond to a
June 24, 2014 request for information pertaining to management compensation. The Office
of
the General Counsel's December 12, 2014 warning letter advised the Federation that this
allegation was contradicted by correspondence attached to the charge, and, after the Federation
provided no additional infonnation, the Office of the General Counsel dismissed this
allegation. Because the Federation's appeal appears to concern only its subsequent July 2,
2014 request, we regard the allegation regarding the June 24, 2014 request for information as
abandoned and warranting no further consideration. (Trustees
of
CSU, supra, PERB Decision
No. 2384-H, pp. 45-46.)
8

negotiating session, which was scheduled for July 7, 2014. 5 The District raised no objection to
the substance or scope of the request, nor advised the Federation that any of the requested
information was unavailable or that providing it at the July 7, 2014 meeting would be unduly
burdensome, costly or time-consuming.
On August 13, 2014, the District provided information responsive to the Federation's
July 2 request. Other than their abortive July 7 meeting, the parties had not met since Larsen had
requested infonnation on July 2, though they exchanged correspondence on several occasions in
an attempt to resolve the dispute over employee observers at negotiations.
Employee Observers at Negotiations
On July 7, 2014, the parties met, as previously scheduled, for EERC discussions and
reopener negotiations. About 65 bargaining unit members were present to observe the
negotiations. (Second Amended UPC, Attachment T.) The Federation circulated a document
called "Ground Rules for Observing Negotiations" to the employees present. The document,
which was included with the charge, directs the employees to remain silent, to be mindful of
what messages might be conveyed by their body language, and to reserve any questions or
concerns they may have for the Federation's private caucus. (Id., Attachments V and W.)
The District's negotiators refused to meet for either the EERC meeting or contract
negotiations with observers in the room. The District's negotiators suggested that the observers
move to another room where the Federation could report to them periodically on the progress of
negotiations, or that the parties schedule another meeting when the observers would not be
present. Bolman asserted that, by law, negotiations are closed to "the public," unless the parties
agree otherwise. According to the Federation's bargaining notes, Bolman defined the "the
5 As described more fully below, the parties met as scheduled on July 7, 2014, but
engaged in no substantive discussions because of their dispute over the attendance of employee
observers at negotiations.
9

public" as anyone who was not a designated member
of
one
of
the bargaining teams. (Second
Amended UPC, Attachment V, pp. 3-4.) Bolman allegedly also said he "would be ok with one
or two" observers present, but not "where 40-plus people are observing." (Ibid.)
The Federation's negotiators argued that having unit members present did not make the
negotiations "public," as the Federation has never invited the general public to attend
negotiations. (Second Amended UPC, Attachment V, p. 4.) The Federation refused to continue
negotiations without the observers present. The meeting ended with the District's negotiators
declaring impasse and leaving. (Id. at pp. 4-5.) .
On July 21, 2014, Bolman sent a memo to Larsen and Sharp in which Bolman reiterated
the District's positon that it would only meet with the Federation's representative and without
employee observers present. In this memo and in subsequent communications, Bolman
expressed the District's willingness to permit employee observers at EERC meetings, but not
negotiations.
In the following months, the parties exchanged written communications regarding the
status
of
negotiations and to reiterate or clarify their respective positions regarding the presence
of
employee observers at negotiations. (UPC, Attachments X, Y, A. 1, B.
l,
C.
1.) On August 13,
2014, Bolman announced that the District would await PERB's decision on the Federation's
unfair practice charge allegations before it returned to the table. (Attachment C.1.) However, on
August 25, and again on September 26, 2014, the District proposed to hold EERC meetings open
to all unit employees and/or to allow as many as five unit employees to observe negotiations.
On October 13, 2014, the District's Board sent a memo to unit employees which stated,
"The District desires to get back to the negotiation table, but [the Federation] continues to insist
on a change in conditions ... to the process," by allowing any interested unit employees to attend
10

negotiations. The District alleges, and the Federation does not deny, that the Federation has not
responded to District's compromise proposals
of
August 25 and September 26.
On October 20, 2014, Bolman invited Sharp and Larsen to reconvene negotiations on a
non-precedent setting basis to allow the two teams to negotiate "how we are going to negotiate
going forward." The Federation has not responded to these proposals, pending resolution
of
its
charge and the present appeal.
The District's Prohibitions on Union Solicitation
On September 5, 2014, Christy Defanti (Defanti), who is Bolman's executive assistant
and a member
of
the District's bargaining team, sent an e-mail message to teachers throughout
the District. The e-mail was also distributed to teachers at their site mailboxes. The message
indicated that Bolman had asked Defanti to send the message to "defin[ e] the rules for staff
handing out flyers." (Secon.d Amended UPC, Attachment D.l.) According to the message,
teachers are not allowed to pass out flyers before school starts, "as they are to be in their
classroom[s] 30 minutes prior to school starting." Teachers may hand out flyers after school,
"when they finish their work obligations," but they "must be off school property when they hand
out flyers," i.e., "not in a driveway or walkway on school campus." 	According to Defanti's e-
mail, because the sidewalk in front
of
a school is public property, teachers may hand out flyers
there. However, teachers "cannot hand out flyers
of
a political or union nature." (Second
Amended UPC, Attachments
D.l,
	1.)
On September 8, 2014, the Federation initiated a grievance, alleging that Defanti's
directive violated Article IV 	Employee Rights and Article VI 	Hours
of
Work
of
the CBA.
On September 13, 2014, Bolman sent an e-mail message to Federation representative
Terry Elverum in which Bolman explained that the September 5, 2014 e-mail message from his
11

assistant was not intended
to
be distributed to employees. The District has denied the
Federation's grievance on procedural grounds. (Second Amended UPC, Attachments H.1.) 6
On October 10, 2014, unit employees distributed union. information to parents as they
dropped
off
students before school. Catina Haugen (Haugen), the principal
of
the District's
Grant Elementary School, sent an e-mail message advising teachers that "handing out
pamphlets can only happen outside
of
your work day." Haugen's message acknowledged that
teachers work long hours and "that an official 'work day' is not defined," but suggested that,
"[s]ince an official teacher duty begins at 7:55 [a.m.], we can safely call that the start
of
your
work day," while "the final teacher duty ends around 2:45 [p.m.,] so that can be considered the
end
of
your work day." Haugen's message ended by reiterating her request that teachers
"[p]lease hand out pamphlets outside
of
your work day." (Second Amended UPC,
Attachment I.I.)
Surface Bargaining Allegation
The Federation's surface bargaining allegation relied primarily on the District's
"difficult to comprehend" or unconvincing explanation that class size is a "supplemental issue"
while salary is a "base issue," and on the fact that the District's second economic proposal was
regressive, in that it had a total cost
of
$366,400.00 less than the District's initial proposal.
The Federation also alleged that the cumulative effect
of
the District's other unlawful conduct
further supported an inference
of
the District's bad faith in negotiations.
THE DISMISSAL/REFUSAL TO ISSUE A COMPLAINT
The Office
of
the General Counsel dismissed the allegation that the District provided
the Federation with inaccurate financial information because, while the information about the
6 The Federation has not alleged or included information in the charge to support an
allegation that, by refusing to process the grievance, the District unilaterally departed from the
parties' collectively-bargained grievance procedures or otherwise violated its duty to bargain.
12

District's finances may have been confusing or difficult
to
understand, the charge had not
specifically alleged how it was inaccurate. The Office
of
the General Counsel likewise
dismissed the Federation's failure/refusal to provide information allegation because, according
to the dismissal letter, the Federation had not demonstrated that a six-week delay in providing
infonnation was unreasonable under the circumstances or that the Federation had been
prejudiced by this delay, since the parties were not meeting in any case until they resolved their
dispute over the status
of
employee .observers at negotiations.
The Office
of
the General Counsel rejected each
of
the Federation's legal theories
concerning employee observers at negotiations. According to the warning letter, the charge
did not allege that the District unlawfully conditioned negotiations on a waiver
of
statutory
rights because, other than the right
of
employee organizations to reasonable released time for
their employee representatives, EERA provides no independent right to employees, as
employees, to attend or observe negotiations. Absent a statutory right, the Office
of
the
General Counsel reasoned that the presence
of
employees at negotiations falls within the ambit
of
ground rules for negotiations, a mandatory subject
of
bargaining. Because parties are not
required to make concessions on mandatory subjects, the warning letter explained that the
District was legally privileged to refuse to agree to the Federation's demand to permit
employees to attend negotiations. The Office
of
the General Counsel also detennined that the
Federation had not alleged sufficient facts to show a change to an established practice
of
allowing employee observers at negotiations because, according to the dismissal letter, "a
single instance in which bargaining unit members were present for negotiations does not
establish a binding past practice."
The Office of the General Counsel dismissed the Federation's allegations that the
District had 1milaterally changed the Hours of Employment provisions of the parties' CBA or
13

interfered with employee rights to distribute union literature during non-work time because the
second amended charge did not sufficiently allege the existence
of
a negotiated policy or
established practice regarding the start time
of
the workday. The Office
of
the General
Counsel also determined that the charge failed to allege that the 30 minutes before the start
of
the workday was non-working time during which employees may solicit support for the
Federation or engage in other concerted activities.
With respect to the surface bargaining allegation, the dismissal letter noted that the
information in the second amended charge did not conflict with the District's explanation that
it had shifted restricted funds from class size reductions to other pennissible purposes in order
to make available unrestricted funds for salary increases. Although the District's second
proposal was regressive in that it would cost the District less than its previous proposal,
according to the dismissal letter, this shift in funds did not demonstrate bad faith because it
corresponded to the Federation's own demand to prioritize salary increases over class size
reductions. Having rejected each
of
the above allegations, the Office
of
the General Counsel
concluded that the second amended charge included insufficient information to infer that the
District negotiated in bad faith or that its conduct was aimed at frustrating negotiations.
Accordingly, the surface bargaining allegation was also dismissed.
THE PARTIES' CONENTIONS IN THE PRESENT APPEAL
The Federation argues that its factual allegations were sufficient to state a prima facie
case for each
of
the alleged violations included in the second amended charge. The issues on
appeal are:
(1) 	Whether the Federation stated a prima facie case that the District knowingly
provided inaccurate financial information in derogation
of
its duty to bargain;
(2) 	Whether the Office of the General Counsel improperly required the Federation to
demonstrate prejudice or that six weeks was an 1mreasonable delay for the District
to provide certain infonnation;
14

(3) 	Whether the Federation stated a prima facie case that the District unlawfully
conditioned negotiations on the exclusion
of
employee observers from in person
meetings;
(4) 	Whether the Federation stated a prima facie case that the District unilaterally
altered a policy or established practice
by
refusing to meet for contract negotiations
in
the presence
of
employee observers;
(5) 	Whether the Federation stated a prima facie case that the District tmilaterally
altered a policy
or
established practice by prohibiting employees from distributing
union literature during the 30 minutes immediately before the start
of
the school
day, where the Federation alleged that the established practice was that the school
day did not begin 30 minutes before the start
of
instructional time;
(6) 	Whether the Federation stated a prima facie case that the District interfered with
protected rights
by
prohibiting employees from distributing union literature during
the 30 minutes immediately before the start
of
the school day; and
(7) 	Whether the Federation stated a prima facie case that the District bargained in bad
faith
by the above allegations and by
making a regressive economic proposal
regarding class size reductions and teachers' salaries.
The District's opposition argues that the appeal fails to comply with the requirements
of
PERB regulations and/or to address any
of
the deficiencies identified in the warning and
dismissal letters and urges the Board to aftlrm the dismissal and refusal to issue a complaint.
DISCUSSION
1.	
Knowing Provision
of
Inaccurate Financial Information
To obtain Board review
of
a dismissal/refusal to issue a complaint, the charging party's
appeal must: (1) state the specific issues
of
procedure, fact, law or rationale to which the
appeal is talcen; (2) identify the page or part
of
the dismissal to which each appeal is taken; and
(3) state the grounds for each issue stated. (PERB Reg. 32635; United Teachers 	Los Angeles
(1989) PERB Decision No. 738, p. 2.) To satisfy the requirements
of
the regt1lation, the appeal
must sufficiently place the Board and the respondent "on notice
of
the issues raised on appeal."
(State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H
(SETC United (Ventura)), p. 6; City & County
of
San Francisco (2009) PERB Decision
15

No. 2075-M, p. 4.) An appeal that simply repeats the allegations
of
the charge, does not
reference the substance
of
the dismissal, the page or part
of
the dismissal to which the appeal is
taken, or the grounds for each issue, or otherwise fails
to
identify the specific issues
of
procedure, fact, law or rationale to which the appeal
is
taken is subject to dismissal on that
basis alone. (PERB Reg. 32635, subd. (a); Beaumont Teachers Association/CTA (Grace)
(2012) PERB Decision No. 2260, pp. 2-3; State
of
California (Department
of
Mental Health,
Department
of
Developmental Services) (2012) PERB Decision No. 2305-S, p. 4.)
The District correctly points out that the appeal's discussion
of
this allegation does little
more than reiterate the factual allegations
of
the charge and that the appeal advances no new
argument or authority that was not already considered and addressed by the Office
of
the
General Counsel's investigation
of
the charge. However, in arguing that the Office
of
the
General Counsel reached the :wrong conclusion based on the factual allegations, i.e.,
incorrectly applied the law to the factual allegations included in the charge, the appeal does
substantially comply with the requirement that the appeal place the Board and the respondent
on notice
of
the issues, by identifying the substance
of
the dismissal and the specific issue(s)
of
fact, law, or application
of
law to fact, from which appeal is taken. (SETC United (Ventura),
supra, PERB Decision No. 2069-H, p. 6.) A contrary rule would preclude the Board from
reviewing a dismissal, even when the decision was manifestly incorrect.
Although we conclude that this portion
of
the appeal complies with the procedural
requirements
of
PERB regulations, the Board affirms the dismissal
of
this allegation for the
reasons explained in the warning and dismissal letters. EERA makes it unlawful for a public
school employer to "[k]nowingly provid[e] an exclusive representative with inaccurate
information, whether or not in response to a request for information, regarding the financial
resources of the public school employer." (EERA, § 3543.5, subd. (c).) The charge allegations
16

and the undisputed information in the District's position statements indicate that the District
provided three different financial scenarios based on different budgetary assumptions. The
information provided
by
the District may have been confusing or unpersuasive, but the charge
does not allege specific facts to show either that any difficulty or confusion was deliberate (
as
alleged in the charge), or that the information was necessarily inaccurate. We therefore.affirm
dismissal
of
this allegation.
2. 	Whether the Office
of
the General Counsel improperly required the Federation to
demonstrate prejudice or that six weeks was an unreasonable delay for the District
to provide presumptively relevant information requested by the Federation
The exclusive representative is entitled to all information that is necessary and relevant to
discharge its representational duty. (Stockton Unified School District (1980) PERB Decision
No. 143 (Stockton), p. 13; NLRB
v.
Truitt Mfg.
Co.
(1956) 351 U.S. 149, 152-153.) PERB uses a
liberal, discovery-type standard, similar to that used by the courts, to determine the relevance
of
an information request. (Regents
of
the University ofCal(fomia (Davis) (2010) PERB Decision
No. 2101-H (Regents
of
UC (Davis)), p. 32; Trustees
of
the California State University (1987)
PERB Decision No. 613-H (Trustees), adopting proposed decision, p. 13; NLRB
v.
Acme
Industrial
Co.
(1967) 385 U.S. 432, 438, fn. 6.) The requested information need not itself be
admissible or dispositive
of
the issues in dispute. Rather, it is considered relevant if reasonably·
calculated to lead to the discovery
of
such infonnation. (Trustees, supra, PERB Decision
No. 613-H, adopting proposed dee. at p. 13; see also Code Civ. Proc.,§ 2017.010; Volkswagen
of
America, Inc.
v.
Superior Court (2006) 139 Cal.App.4th 1481, 1490-1491; 2 Witkin, Cal. Evid.
5th (2012) Discovery, § 9, p. 979.)
Information pertaining to unit employees' wages, hours, or working conditions is "so
intrinsic to the core
of
the employer-employee relationship that it is considered presumptively
relevant and must be disclosed unless the employer can establish that the information is plainly
17

irrelevant or can provide adequate reasons why it cannot furnish the information." (Stockton,
supra, PERB Decision No. 143,
p. 13;
Chula Vista City School District (1990)PERB Decision
No. 834 (Chula Vista), p. 53; Teleprompter Corp.
v.
NLRB (1st Cir. 1977) 570 F.2d 4,
8;
State
of
California (Departments
of
Personnel Administration and Transportation) (1997) PERB
Decision No. 1227-S.) Thus, the representative need not justify its request for such information,
unless the employer first rebuts the presumption
of
relevance. (Regents
of
the University
of
California (2010) PERB Decision No. 2094-H, pp. 25-26; City ofBurbank(2008) PERB
Decision
No.
1988-M,
p. 15,
citing In Re Ralphs Grocery
Co.
(2008) 352 NLRB No.
18,
p.
*31.)
Presumptively relevant information need not relate to any particular or existing
controversy (NLRB
v.
Item Company (5th Cir. 1955) 220 F.2d 956,958) and the representative
is not required to show the precise relevance of the information or how it will
be
used, unless
the employer has rebutted the presumption of relevance. (Trustees, supra, PERB Decision
No. 613-H, adopting proposed dee. at p.
13;
The Trustees
of
the Masonic Hall (1982)
261
NLRB 436,437; Postal Serv. (1985) 276 NLRB 1282, 1286.) Requiring a union to detail
the nature of a complaint in its request for infonnation, would place it in the impossible position
of committing
to
a particular theory before it has the information necessary to support or rule out
any theory. (NLRB
v.
Acme Industrial Co., supra, 385 U.S. 432, 438,
fn. 6;
Hawkins Constr. Co.
(1987) 285 NLRB 1313, 1315; Chula Vista, supra, PERB Decision No. 834, p. 50.)
Similarly, the fact that a particular form of compensation or benefit is not currently in
dispute does not make information about it irrelevant or relieve the employer from supplying
information on the subject. (Chula Vista, supra, PERB Decision No. 834, pp. 46-47, 54.)
Because economic items are generally fungible, all wages and benefits are potentially in play
during negotiations on economic matters. Because the representative may wish to evaluate the
cost of a particular economic item to prioritize its bargaining demands (Stockton, supra, PERB
18

Decision No. 143, p. 15; NLRB
v.
John
S.
Swift Company (7th Cir. 1960) 277 F.2d 641,645),
infonnation related to unit employees' compensation should be made available "without
regard
to
its immediate relationship to the negotiation or administration
of
the agreement"
(Whitin Mach. Works (1954) 108 NLRB 1537, enforced (4th Cir. 1954) 217 F.2d 593),
orto
its
precise relevance to particular bargaining issues. (Town
of
Paradise (2007) PERB Decision
No. 1906-M, adopting proposed dee. at pp. 5-6; Dyncorp/Dynair Services, Inc. (1996)
322 NLRB 602.) A more stringent standard would impede negotiations because, in most
circumstances,
"it
is virtually impossible to tell in advance whether the requested data will be
relevant." (NLRB
v.
Yawman & Erbe Mfg.
Co.
(2d Cir. 1951) 187 F.2d 947, 949.)
The duty to supply information thus turns upon the circumstances
of
the particular case,
though generally it requires the same diligence and thoroughness as is exercised in other
business affairs
of
importance. (Compton Community College District (1990) PERB Decision
No. 790 (Compton), adopting proposed dee. at p. 29; NLRB
v.
Truitt Mfg. Co., supra,
351 U.S. 149, 153-154.) Once relevant information has been requested, the employer must
either supply the information or timely and adequately explain its reasons for not complying with
the request. (Chula Vista, supra, PERB Decision No. 834, p. 52, citing The Kroger Co. (1976)
226 NLRB 512, 513-514.) Even where a request is arguably ambiguous or overly broad, the
employer
may
not simply ignore it. It must seek clarification and/or comply to the extent the
request seeks relevant infonnation. (Keauhou Beach Hotel (1990) 298 NLRB 702; Postal Serv.,
supra, 276 NLRB 1282, 1287; Regents
of
UC (Davis), supra, PERB Decision No. 2101:-H,
pp. 35-36.)
Failure to provide such information is a per se violation
of
the duty to negotiate in good
faith and may support an independent allegation
of
surface bargaining.	
~os
Angeles Superior
Court (2010) PERB Decision No. 2112-I, adopting dismissal letter at p. 6; The Regents
of
the
19

University
of
California (1998) PERB Decision No. 1255-H, proposed dee. at p. 43.) An
unreasonable delay in providing necessary and relevant information is as much a per se violation
of
the duty to bargain as is an outright refusal to provide the information. (Regents
of
UC,
supra,
PERB Decision No. 1255-H, proposed dee. at p. 44.) The fact that an employer ultimately
furnishes the requested information will not excuse an unreasonable delay. (Compton, supra,
PERB Decision No. 790, p. 5; Chula Vista, supra, PERB Decision No. 834, p. 51, citing K & K
Transp. Corp. Inc. (1981) 254 NLRB 722.)
According to the charge allegations, on July 2, 2014, the Federation requested
information pertaining to the cost
of
step and column increases for certificated employees.
Shortly thereafter, the parties suspended all meetings because
of
their dispute over employee
observers at negotiations and, without explanation, the District did not provide the information
until approximately six weeks later on August 13, 2014. The Office
of
the General Counsel
reasoned that the Federation had failed to demonstrate that it was prejudiced by this delay,
because no meetings occurred during the six weeks it took for the District to respond. The
Federation contends that requiring it to demonstrate how it was prejudiced by the District's six-
week response time improperly shifts the burden
of
proof established by PERB and private-
sector decisional law and effectively disregards the exclusive representative's presumptive right
to necessary and relevant information pertaining to bargaining unit employees. On this point, we
agree with the Federation.
The Federation alleges that on or about July 2, 2014, its chief negotiator requested
information about the wages and benefits
of
bargaining unit members and historical data about
the bargaining unit, including the identity and circumstances
of
bargaining unit members who
had left the unit. Each
of
the requested categories
of
information pertains immediately to
20

mandatory subjects
of
bargaining and is therefore presumptively relevant. (Regents
of
UC
(Davis), supra, PERB Decision No. 2101-H, p. 32.)
Although our cases generally state that the exclusive representative is entitled to
information that is necessary and relevant (see. e.g., Stockton, supra, PERB Decision No. 143,
p.13), PERB has repeatedly held that the exclusive representative is entitled to information it
needs "to tmderstand and intelligently discuss the issues raised in bargaining." (Town
of
Paradise (2007) PERB Decision No. 1906-M, adopting proposed dee. at p. 5, citing Trustees,
supra, PERB Decision No. 613-H.) The Board has never articulated a separate test for showing
how,
in
addition to its relevance, requested information is also necessary to fulfilling the union's
representative functions. (See, e.g., Regents
of
UC,
supra, PERB Decision No. 1255-H,
proposed dee. at pp. 43-44 [using the terms "necessary" and "relevant" interchangeably]; see
also Trustees, supra, PERB Decision No. 613-H, adopting proposed dee. at p. 14.) Nor is it
necessary to do so here, as the requested information was not only presumptively relevant, but
presumptively necessary for the Federation to evaluate the District's position, prepare counter-
proposals and intelligently discuss the issues in dispute in the parties' reopener negotiations.
(Town
of
Paradise, supra, PERB Decision No. 1906-M, proposed dee. at p. 5; ADT, LLC
(Nov. 5, 2015) 363 NLRB No. 36, slip op. at pp. 3-4.)
Although the parties exchanged correspondence several times in the weeks after the
Federation made its request, the District asserted no objection or privilege to the subject or scope
of
the request nor advised the Federation that the requested information was unavailable or that
its production would be unduly burdensome, costly or time-consuming. In its September 3, 2014
position statement to PERB, the District
asserted-
apparently for the first time - 	that some
of
the requested information was not immediately available at the time of the Federation's request,
though the District has not identified what infonnation was unavailable nor when it became
21

available. The District asserts that it intended to discuss the Federation's requests and the
unavailability
of
some
of
the requested information at the parties' next bargaining meeting,
which was scheduled for July
7,
2014, but that, because
of
their dispute over the presence
of
employee observers at negotiations, that meeting was cancelled. Approximately 6 weeks after
the July 2 request, the District provided the requested information.
As noted above, the right to information is not absolute and will
tum
on the
circumstances
of
the particular case, including the kinds and amounts
of
information requested,
the purpose for which it is requested and the timing
of
the request. (Regents
of
UC (Davis),
supra, PERB Decision No. 2101-H, p. 33; Trustees, supra, PERB Decision No. 613-H,
p.
2.)
Just as a union's mere "suspicion or surmise" that it needs information does not, by itself,
oblige the employer to supply all
of
the information in the particular manner requested (Detroit
Edison Co.
v.
NLRB (1979) 440 U.S. 301, 314-315; San Diego Newspaper Guild, Local No. 95
of
Newspaper Guild, AFL-CIO, CLCv. NLRB
(9 th
Cir. 1977) 548 F.2d 863,868), neither will an
employer's bare assertion that a request is unduly burdensome or otherwise not subject to
disclosure automatically relieve it
of
any responsibility to furnish the information or some
portion
of
it. (Regents
of
UC (Davis), supra, at pp. 33-34.) Even where an employer is not
required to provide information because it is equally available to the requesting party, it must,
at minimum advise the union
of
its reasons for non-disclosure and,
if
known, the location or
source
of
the equally available information. (Id. at pp. 35-36.)
Although an employer need not comply with an information request
if
the requested
information does not exist or is otherwise unavailable, our cases are clear that it must nonetheless
affirmatively and diligently communicate the reason(s) for its refusal or delay in providing such
infonnation. (Chula Vista, supra, PERB Decision No. 834, p. 53; Stockton, supra, PERB
Decision No. 143, p. 15; Los Angeles Superior Court, supra, PERB Decision No. 2112-I,
22

adopting dismissal letter at p. 6.) 	The party asserting a defense, limitation or condition to
disclosure
of
presumptively relevant information bears the burden
of
proof
as to that question
(Regents
of
UC (Davis), supra, PERB Decision No. 2101-H, pp. 32-33~ Washington Gas Light
Co.
(1984) 273 NLRB 116, 117; Boise Cascade
Co.
(1986) 279 NLRB 422,431; McDonnell
Douglas Corp. (1976) 224 NLRB 881, 890) and the failure to assert a timely argument against
disclosure waives that issue on appeal. ( Cardinal Distributing
Co.
v.
Agricultural Labor
Relations Bd. (1984) 159 Cal.App.3d 758, 767-768 (Cardinal
v.
ALRB).)
Contrary to the implication
of
the warning and dismissal letter, we do not read Regents
of
the University
of
California (1999) PERB Decision No. 1314-H as requiring a charging party to
show harm or prejudice as an element
of
its prima facie case when it has already alleged
sufficient facts to show that the employer, without justification or excuse, has denied or
unreasonably delayed providing presumptively necessary and relevant information. As
discussed in Regents, the representative failed to demonstrate that ten days was an unreasonable
delay for providing a laid-off employee's personnel file. Because the employer rescinded the
layoff after receiving the union's request, the failure to demonstrate harm or prejudice was a
factor to consider in whether the employer's 10-day response time was unreasonable under the
circumstances, not an additional element
of
the prima facie case for failure and refusal or
unreasonable delay in providing information. It would make little sense to say, as many cases
do, that information pertaining to mandatory subjects
of
bargaining is presumptively relevant,
if
the representative is then required to make an additional showing
of
prejudice, even in the
absence
of
any assertion by the employer that the requested information was unavailable or not
subject to disclosure.
If
the District could not provide the requested information, it was obligated
to advise the Federation
of
the reason(s) for its inability to do so. 	In the absence
of
any
contemporaneous explanation by the District for its delay in providing presumptively relevant
23

and necessary information, the only issue is whether the Federation has alleged sufficient facts to
indicate that six weeks constituted unreasonable delay under the circumstances. (The Colonial
Press, Inc. (1973) 204 NLRB 852, 861.) We conclude that it has. In Bundy Corp. (1989) 292
NLRB 671, the parties were in the midst
of
negotiations, when the union requested information
pertaining to employee classifications, pay rates, seniority, retirement, and fringe benefits.
Because the requested information was presumptively relevant and necessary to the union's
ongoing bargaining obligation and because the employer failed to rebut the presumption
of
relevance, the National Labor Relations Board (NLRB) concluded that a six-week delay in
providing the information was unreasonable. (Ibid.) 7
As in Bundy, here, negotiations have neither resulted in agreement nor impasse. While
in-person meetings were suspended because
of
a dispute over who may attend negotiations, the
parties have not reached a settlement and, in the absence
of
information to the contrary, we
presume that the underlying issues motivating the Federation's request for information remain in
dispute. During the hiatus, the Federation could have evaluated the District's positon and been
preparing cotmterproposals in the event the "observer" issue was resolved and the parties
resumed meeting. Even when they were not meeting in person, the parties continued to
exchange correspondence on other matters, yet the District never asserted that the requested
information was unavailable or particularly voluminous or difficult to identify and produce.
By alleging that the District failed to say anything on the subject for six weeks, the
Federation has stated a prima facie case that the District has not exercised the same diligence
and thoroughness as would in other business affairs
of
importance. (Compton, supra,
PERB Decision No. 790, adopting proposed dee. at p. 29; NLRB
v.
Truitt Mfg. Co., supra,
7 See also Gonzales Union High School District (1985) PERB Decision No. 480
(Gonzales), adopting proposed dee. at pp. 38-40, where PERB determined that six weeks was
an unreasonable period to delay meeting for negotiations.
24

351 U.S. 149, 153-154.) The Office
of
the General Counsel erred
by
requiring the Federation to
show prejudice for information whose relevance and necessity to ongoing negotiations had never
been challenged. We reverse the dismissal
of
this allegation.
. 3. 	Whether the Federation has stated a prima facie case that the District unilaterally
altered a policy or established practice
of
permitting employees to attend
negotiations or that it otherwise failed or refused to bargain by conditioning
negotiations on the exclusion
of
employee observers
The Federation alleges that, by refusing
to
negotiate
in
the presence
of
employee
observers, the District has unilaterally altered an established practice, conditioned negotiations
on a waiver ofstatutory rights and/or otherwise refused to bargain over negotiable subjects.
On appeal, the Federation reiterates these contentions and further argues that the Office
of
the
General Counsel has not explained why the District could refuse to negotiate with 65 employee
observers present when it had previously acquiesced to negotiations with 30 employee
observers present. For the reasons set forth below, we conclude that the Federation has not
alleged sufficient facts to state a prima case either that the District unilaterally altered an
established practice or that its insistence on excluding employee observers imposed an
unlawful condition on negotiations.
We consider first the Federation's unilateral change theory.
A. 	Unilateral Change Theories
To prove up a unilateral change, the charging party must establish that:
(1) the employer took action to change policy; (2) the change in
policy concerns a matter within the scope
of
representation;
(3) the action was taken without giving the exclusive
representative notice or opportunity to bargain over the change;
(4) the action had a generalized effect or continuing impact on
terms and conditions of employment.
(County
of
Santa Clara (2013) PERB Decision No. 2321-M, pp. 12-13, citing Fairfield-Suisun
Unified School District (2012) PERB Decision No. 2262.) An established.policy may be
25

embodied in the tenns
of
a collective bargaining agreement (Grant Joint Union High School
District (1982) PERB Decision No. 196 (Grant), pp.7-8) or, where a contract is silent or
ambiguous, it may be determined from past practice or bargaining history. ( County
of
Riverside (2013) PERB Decision No. 2307;.M, p. 20.) The change in policy may entail altering
or eliminating an existing policy or creating an entirely new policy where previously none
existed. (Ibid.; Regents
of
the University
of
California (2012) PERB Decision No. 2300-H
(UC Regents), pp. 20-22, 25; Pasadena Area Community College District (2015) PERB
Decision No. 2444, p. 12, fn. 6 (Pasadena Area CCD).)
A.l. 	Change in Past Practice.or Creation
of
a New Policy
Here, the parties have no agreement concerning ground rules. Thus, to state a prima
facie case
of
a unilateral change, the Federation may allege that the District has unilaterally
altered or abrogated an established practice
of pe~itting
employee observers to attend
negotiations, or that the District has established a new policy
of
prohibiting employee
observers at negotiations, where previously there was no clearly established practice. ( County
of
Riverside, supra, PERB Decision No. 2307-M, p. 20; Grant, supra, PERB Decision
No. 196, pp. 7-8; UC Regents, supra, PERB Decision No. 2300-H, pp. 20-22, 25.) We
consider each
of
these theories.
The Federation generally alleges that employee observers have "often" attended previous
negotiations without objection by the District. By way
of
example, it alleges that on July 12,
2013, approximately 30 bargaining unit employees attended a mediated bargaining session as
observers with no objection by the District's negotiators. (Second Amended UPC,~ 17, and
Attachment B; see also District Third Position Statement, Declaration of Steve Bolman,
,I
6.)
Additionally, the Federation alleges that Garcia, an employee who was not initially a member of
the Federation's bargaining team, was permitted to attend negotiations on February 14 and
26

March 7, 2014. According to the District, Garcia was allowed to attend negotiations because
there had been considerable turnover among the Federation's negotiators and because she had
expressed interest in joining the Federation's team, which she eventually did. (District Third
Position Statement, Declaration
of
Steve
Bolman,,,
5, 7.)
The Federation thus alleges that, on at least three occasions before July 2014, the
District had permitted employees, who were not part
of
the Federation's bargaining team, to
attend negotiations as observers. Despite this relatively small sample size, the Federation
contends that, at least until July 2, 2014, the District had acquiesced to the attendance
of
employee observers in 100 percent
of
the instances in which the issue arose. However, the
facts, as alleged
by
the Federation, indicate that these three prior instances involved at least
two different sets
of
circumstances, only one
of
which is arguably applicable to the factual
allegations in the charge and the issues on appeal. Garcia was not a member
of
the
Federation's bargaining team and attended the February 14 and March 7, 2014 meetings not as
an independent employee observer but at the request
of
the Federation. Thus, there
is
only one
instance, the mediated bargaining session occurring a year earlier, in which employees
attended negotiations, as employees, and not at the Federation's request as current or
prospective Federation representatives. Because a "one-time occurrence is not enough to show
an established practice" (Victor Valley Union High School District (1985) PERB Decision
No. 487, adopting proposed dee. at p. 32), we conclude that the Federation's allegations are
insufficient to demonstrate the existence of an established practice and thus, do not state a
prima facie case that the District altered an existing practice.
A.2. 	Whether the District's Alleged Conduct Departed from the Status Quo
Although the Federation has not sufficiently alleged the existence of regular and
consistent practice, its charge may still state a prima facie case of a unilateral change by
27

alleging that the District has created a new policy
of
prohibiting employee observers, where no
policy or practice previously existed. ( UC Regents, supra, PERB Decision No. 2300-H,
pp.
20-22, 25; Pasadena Area CCD, supra, PERB Decision No. 2444, p. 12, fn. 6.) Whether
an employer must continue a given term
of
employment depends on whether discontinuing the
practice would disturb the status quo during negotiations. (C,alifornia State Employees' Assn.
v.
Public Employment Relations Bd. (1996)
51
Cal.App.4th 923, 937.) However, we conclude that
the Federation has not sufficiently alleged that the District has made a firm decision or taken
concrete steps to change policy here because it appears that the Legislature intended that
negotiations under BERA would be attended only by the parties' representatives, absent an
agreement or established practice to the contrary. To the extent the District sought to enforce a
policy
of
excluding employee observers from negotiations, it was simply following the default
rule for negotiations, as expressed in the language
of
BERA as detennined by judicial and
administrative precedent. We explain.
BERA section 3549.1 provides in relevant part that negotiations between a public
school employer and the exclusive representative
of
its employees are not subject to
California's open meetings laws, "unless the parties mutually agree otherwise." Although this
language suggests that the presence
of
observers at negotiations is negotiable, it also indicates
a legislative preference or default rule that, in the absence
of
agreement to the contrary,
negotiations will occur solely between the parties' representatives.
Citing Ross School District Board
of
Trustees (1978) PERB Decision No. 48 (Ross) and
San Mateo City School Dist.
v.
Public Employment Relations Bd. (1983) 33 Cal.3d 850, the
District argues that PERB has followed the same default rule by treating negotiations as "non-
public," unless otherwise agreed by the parties. Thus, according to the District, "neither party
can insist on negotiations that are open beyond attendance by the specified negotiation teams."
28

Appellate authority and opinions
of
the California Attorney General are in accord.
(Californians Aware
v.
Joint Labor/Management Bene.fits Com. (2011) 200 Cal.App.4th 972,
980, as modified on denial
of
rehearing (Nov. 28, 2011), citing 92 Ops.Cal.Atty.Gen. 102 (2009)
and
61
Ops.Cal.Atty.Gen. 1 (1978).) When examining the similar language and statutory
scheme for collective bargaining established
by
the Meyer-Milias-Brown Act (MMBA), 8 the
Attorney General concluded that, because
of
the need to caucus and bargain in private, the
Legislature did not intend to require "local agencies to do their labor bargaining in a fish bowl."
(61 Ops.Cal.Atty.Gen. 1, 5-6.) The Attorney General and the Court
of
Appeals relied on the
same reasoning and reached the same result when considering negotiations under EERA between
a community college district and the representatives
of
its employees. (92 Ops.Cal.Atty.Gen.
102, at pp. 3-4; Californians Aware
v.
JLMBC, supra, 200 Cal.App.4th at p. 980.)
The Federation argues that, inasmuch as bargaining unit employees are directly affected
by
such negotiations, they are not simply part
of
the "public," and that the statutory right
of
employees to "form, join, and participate in the activities
of
employee organizations" includes
an independent right
of
employees to attend and observe begotiations affecting their
employment. (EERA, § 3543, subd. (a).)9 	While we acknowledge that the statutory language,
when read in isolation, is susceptible to this interpretation, we must nonetheless reject
recognition
of
an independent right
of
employees to attend negotiations as inconsistent with the
policies and purposes
of
EERA and with long-standing Board precedent.
8 The MMBA is codified at section 3500 et seq.
9 EERA section 3543, subdivision (a), provides in part: "Public school employees shall
have the right to form, join, and participate in the activities
of
employee organizations
of
their
own choosing for the purpose
of
representation on all matters
of
employer-employee
relations.''
29

EERA's
legislatively-declared purpose is to improve employer-employee relations within
the public school systems by providing a uniform basis for recognizing the right
of
public school
employees to join organizations
of
their own choice, to
be
represented
by
the organizations in
their professional and employment relationships with public school employers, to select one
employee organization as the exclusive representative
of
the employees in an appropriate unit,
and to afford certificated employees a voice in the formulation
of
educational policy. Thus, as a
general proposition, we agree with the Federation that this purpose is not served
by
employer
policies that deter employees from participating in the collective bargaining process. ( County
of
Riverside, supra, PERB Dt;lcision No. 2307-M, p. 33.)
However, the statute also provides that "once the employees in an appropriate unit have
selected an exclusive representative" and it has been "recognized or certified
...
only that
employee organization may represent [employees of] that unit in their employment relations with
the public school employer." (EERA,
§§
3543, 3543.1, subd. (a), emphasis added.) Moreover,
"an employee
in
that unit shall not meet and negotiate with the public school employer."
· (EERA, § 3543.) As we recently observed in Hartnell Community College District (2015) PERB
Decision No. 2452 (Hartnell), employees necessarily surrender some
of
their statutory rights
when they accept the benefits
of
exclusive representation, which is "the cornerstone
of
the Act."
(Id. at p. 37, citing Lake Elsinore School District (1986) PERB Decision No. 563
(Lake Elsinore), p. 4; see also Clovis Unified School District (2002) PERB Decision No. 1504
(Clovis), pp. 22-25; J.I. Case Co.
v.
NLRB (1944) 321 U.S. 332, 338.) The statute's declared
purpose recognizes that some employee rights may not be exercised in a manner that tmdermines
the authority
of
the bargaining agent or abridges the principle
of
exclusivity. (Pleasant Valley
School District (1988) PERB Decision No. 708, p. 15, fn. 5; Santa Ana Unified School District
( 1978) PERB Decision No. 73 (Santa Ana), p. 2; .Mount Diablo Unified School District, et al.
30

(1977) EERB Decision No. 44, pp. 8-9; Chaffey Joint Union High School District (1982) PERB
Decision No. 202, pp. 6-7.) In particular, employee rights to self-representation and to select
representatives other than those designated by the majority organization may be curtailed to the
extent necessary to accornmodate the statutory scheme for collective bargaining through
exclusive representation. (Hartnell, supra, PERB Decision No. 2452, pp. 34-38; Santa Ana,
supra, PERB Decision No. 73, p.
2;
Modesto City Schools (1983) PERB Decision No. 291
(Modesto), pp. 28-29; Lillebo
v.
Davis (1990) 222 Cal.App.3d 1421, 1443-1446.)
Following federal authority, our cases have long recognized a bright line rule that
representatives may not bypass their counterparts by making proposals directly to the other
party's principals. (California State University (1987) PERB Decision No. 621-H, pp. 3-4,
vacated on other grounds by California State University (1987) PERB Decision No. 62la-H;
County
of
Inyo (2005) PERB Decision No. 1783-M, pp. 2-3; Westminster School District (1982)
PERB Decision No. 277 (Westminster), p. 7.) The duty to bargain encompasses a "concomitant
obligation to meet and confer with no others, including the employees themselves." (California
State University (1989) PERB Decision No. 777-H, p. 7, citing 1vfedo Photo Supply Corp.
v.
NLRB (1944) 321 U.S. 678, 684-687.) Depending upon the circumstances, employer actions that
bypass the representative or undermine its authority with employees may be analyzed either
as
evidence
of
bad faith in negotiations or as an outright or per se violation
of
the employer's
bargaining obligation. (Muroc Unified School District (1978) PERB Decision No. 80 (Muroc),
p. 19; State
of
California (Department
of
Personnel Administration) (2009) PERB Decision
No. 2078-S (State
of
CA (DPA)), pp. 10-11; General Electric Co. (1964) 150 NLRB 192, 195,
enforced (2d Cir. 1969) 418 F.2d 736, cert. denied (1970) 397 U.S. 965; Safeway Trails (1977)
233 NLRB 1078, 1079, 1081-1082.) The touchstone for determining the propriety of an
employer's direct commimication with employees is the effect on the authority of the exclusive
31

representative. (California State University, supra, PERB Decision No. 777-H, p. 9, citing
Muroc, supra, PERB Decision No. 80, pp. 19-20.)
Although an employer is free
to
communicate with exclusively-represented employees
about negotiations, it may not use direct communications to establish a new policy affecting
negotiable matters, to alter or waive existing rights, or to otherwise undermine the authority
of
the employees' representative. (Muroc, supra, PERB Decision No. 80, pp. 19-21;
Lake Elsinore, supra, PERB Decision No. 563, p. 4; Clovis Unified School District (2002)
PERB Decision No. 1504, pp. 22-23; Omnitrans (2010} PERB Decision No. 2143-M, p. 6;
City
of
San Diego (Office
of
the City Attorney) (2010) PERB Decision No. 2103-M, pp. 7-14,
disapproved on other grounds
by
City
of
Sacramento (2013) PERB Decision No. 2351-M,
p. 27.) Thus, an employer may, consistent with a good faith bargaining, inform employees
of
the status
of
negotiations, or
of
proposals previously made to the union, or
of
its version
of
a
breakdown in negotiations, as long as the employer's speech does not threaten reprisal or
promise benefit; does not seek to induce employees to withdraw their support from the union;
'.
does not offer to employees proposals not made at the bargaining table· or over which there has
been no meaningful negotiation; and does not seek to determine the degree
of
support for the
union's bargaining demands. (Westminster, supra, PERB Decision No. 277, pp. 9-10, fn. 6;
see also Firch Baking
Co.
(1972) 199 NLRB 414, 419, enforced (2d Cir. 1973) 479 F.2d 732.)
In the present case, the employee observers are not designated or even prospective
representatives or officers
of
the Federation and, consequently, the Federation exercises no
authority over them.
If
employees could assert an independent statutory right to attend
negotiations, even against the wishes
of
their bargaining representative, then much
of
the
decisional law prohibiting direct dealing and bad-faith bargaining would need to be rewritten.
Granting employees unfettered access to·negotiations would pennit the employer to comment
32

directly to the employees
on
the bargaining proposals and conduct
of
their representatives.
Indeed, employers would
be
required to present proposals simultaneously to employees and the
representative anytime employees were present. Even
if
employees remained silent observers,
their mere presence at negotiations could "substantially modif[y] the collective-bargaining
system
...
by
weakening the independence
of
the 'representative' chosen
by
the employees,"
because it would "enable[] the employer, in effect, to deal with its employees rather than with
their statutory representative." (NLRB
v.
Wooster Div.
of
Borg-Warner Corp. (1958)
356 U.S.
342,350;
see also Modesto, supra, PERB Decision No. 291, p. 50.)
As
explained in the private-sector authorities discussed
in
Ross, supra, PERB Decision
No. 48, an employer's insistence
on
conducting negotiations
in
the presence ofrank-and-file
employees is objectionable not only because it is "contrary to uniform industrial practice and
...
not conducive to the orderly, infonna:l, and frank discussion
of
the issues" confronting the
negotiators. It also interferes with the principles
of
exclusivity and employee choice, including
the rights
of
employees to designate and bargain through their chosen representative. ( Clovis,
supra, PERB Decision No. 1504, pp. 22-23; Everist, L. G., Inc. (1953) 103 NLRB 308,309; see
also J.I. Case
Co.
v.
NLRB, supra, 321 U.S. 332, 336; Medo Photo Supply Corp.
v.
NLRB, supra,
· 321 U.S. 678, 684-687.) The give-and-take
of
negotiations could easily be subsumed, or at least
overshadowed,
by
grandstanding or other kinds
of
direct communications between employers
and employees which well-settled law condemns as coercive and contrary to the purposes
of
the
statute. (City
of
San Diego (Office
of
the City Attorney), supra, PERB Decision No. 2103-M,
pp. 7-14; Omnitrans, supra, PERB Decision No. 2143-M, p. 6; Safeway Trails, supra, 233
NLRB 1078, 1079, 1081-1082; General Electric Co., supra, 150 NLRB 192, 195.) Given the
unknown and potentially far-reaching consequences for the collective bargaining process, and
the long-standing limitations on employers' direct communications with employees to subvert
33

good-faith bargaining, we agree with the Office
of
the General Counsel that an independent
statutory right
of
employees to attend negotiations was not contemplated by the Legislature.
Even assuming, without deciding, that the presence
of
employee observers is
negotiable, in the absence
of
an agreement to the contrary, the default rule established by EERA
section 3549.1 is that negotiations will occur only between the designated representatives
of
the
employer and the bargaining agent. This default rule serves not only as a baseline from which to
begin negotiations but also serves as a limitation on what tenns may be imposed by the employer
at impasse. If the Federation wishes to permit employee observers to attend negotiations, it must
bargain with the District for a contractual right
of
employees to do so.
B. 	Conditional Bargaining Allegations
The Federation has also alleged that the District's refusal to meet with employees
present placed an unlawful condition on negotiations. Historically, our cases have recognized
different theories
of
liability under the single heading conditional bargaining. Following
federal precedent, PERB has long held that conditioning agreement over one mandatory
subject
of
bargaining on prior agreement over others is not itself unlawful, but may indicate an
absence
of
good faith under the totality
of
circumstances analysis. (San Bernardino City
Unified School District (1998) PERB Decision No. 1270, proposed dee. at pp. 85-86; The
Adrian Daily Telegram (1974) 214 NLRB 1103, 1111; NLRB
v.
General Electric Co.
(2nd Cir. 1969) 418 F.2d 736, 756-757.) Because the ultimate question in a surface bargaining
case is whether the respondent's conduct, when viewed in its totality, was sufficiently
egregious to frustrate negotiations, bargaining proposals which linlc agreement over mandatory
subjects are generally analyzed, along with any other evidence of bad faith, for their
cumulative effect on negotiations or the representative's authority. (Adrian Daily Telegram,
supra, 214 NLRB 1103, 1111; Fresno County In-Home Supportive Services Public Authority
34

(2015) PERB Decision No. 2418-M (Fresno
Co.
IHSS Public Authority), p. 14; State
of
California (DPA), supra, PERB Decision No. 2078-S, pp. 10-11.)
By contrast, where agreement on mandatory subjects is conditioned on agreement over
non-mandatory subjects, such as a waiver
of
statutory rights, PERB analyzes the allegation as a
per se violation
of
the duty to bargain. (Modesto, supra, PERB Decision No. 291, pp. 27-30;
Fresno
Co.
IHSS Public Authority, supra, PERB Decision No. 2418-M, p. 18.)
10
Insistence to
impasse or post-impasse imposition
of
a proposal containing a waiver
of
statutory rights "is a.
violation
of
the duty to bargain as to that item" and may also constitute evidence
of
bad faith
in support
of
a separate surface bargaining allegation. (Modesto, supra, at p. 30, emphasis
added.) For this category
of
conditional bargaining allegations, the Board uses a per se
analysis because, unlike conditional bargaining affecting only mandatory subjects,
conditioning agreement on a waiver
of
statutory rights or on agreement over non-mandatory
subjects
of
bargaining is, in effect, a refusal to bargain over subjects that are within the scope
of
mandatory bargaining. (Fresno
Co.
IHSS Public Authority, supra, at p. 18, 63; San Mateo
County Community College District (1993) PERB Decision No. 1030 (San Mateo), p. 18,
fn. 11; NLRB
v.
Borg-Warner, supra, 356 U.S. 342, 349.)
In City
of
San Jose, supra, PERB Decision No. 2341-M, we recognized a third category
of
conditional bargaining allegations, one in which a party's willingness to discuss mandatory
subjects is conditioned on prior agreement over other mandatory subjects. While a party may
10 Examples have included conditioning agreement on a waiver
of
the representative's
right to prosecute grievances in its own name ( Chula Vista, supra, PERB Decision No. 834,
pp. 19-23); conditioning agreement on the withdrawal
of
grievances or unfair practice charges
(Lake Elsinore School District (1986) PERB Decision No. 603, pp. 2-3); imposing limits on
the number
of
subjects that may be negotiated
if
impasse is broken (Rowland Unified School
District (1994) PERB Decision No. 1053, p. 7, fn. 5); and conditioning agreement on a waiver
of
Labor Code paycheck protection provisions (Berkeley Unified School District (2012) PERB
Decision No. 2268, pp. 3-9, esp. fn. 3).
35

lawfully condition its agreement over a mandatory subject on agreement over others
(San Mateo, supra, PERB Decision No. 1030, pp. 18-19), it may not condition its willingness
even to discuss
or
consider a proposal concerning a mandatory subject on prior agreement over
others or insist on unilateral control over which mandatory subjects will be discussed or the
order in which they will be discussed. (City
of
San Jose, supra, at p. 31; City
of
Santa Rosa
(2013) PERB Decision No. 2308-M, p. 5.) 	Such conduct is a rejection
of
bilateral
negotiations because it allows one party to dictate what compromises the other side may
propose for consideration. (City
of
San Jose, supra, PERB Decision No. 2341-M, pp. 31-32.)
It may therefore be analyzed as a per se refusal to bargain and as evidence
of
bad faith in
negotiations. (San Ysidro School District (1980) PERB Decision No. 134, pp. 13-14; Eastern
Maine Medical Center
v.
NLRB (1st Cir. 1981) 658 F.2d
I,
11-12.)
Here, the District is alleged to have refused even to negotiate without prior agreement
over the presence
of
employees at negotiations. We need not decide whether the presence
of
employees is a mandatory or permissive subject
of
bargaining because, in either event, the
Federation did not simply seek to bargain around the default rule set forth in EERA
section 3549.1. Instead, it refused to conduct further negotiations unless the District
acquiesced to this demand.
	If
the subject w~re deemed permissive, the Federation could not
continue to insist on its proposal to alter the default ntle after the District clearly indicated
that it was not interested in further discussion
of
the issue. (Chula Vista, supra, PERB
Decision No. 834, pp. 19-23; City
of
San Jose, supra, PERB Decision No. 2341-M, pp. 43-44,
46, 49-50.) Alternatively, even assuming the presence
of
employee observers at negotiations is
within the scope
of
mandatory subjects for bargaining, EERA also establishes a default rule
which governs the parties' meetings until they have agreed otheiwise. Because the District is
alleged to have done no more than insist on the statutory default rule, the charge does not state
36

a prirna facie case that the District placed unlawful conditions on negotiations. We therefore
affirm the dismissal
of
the Federation's conditional bargaining allegation as well.
4. 	Whether the Federation sufficiently alle2ed that the District unilaterally altered its
policy and/or interfered with protected ril!hts by prohibiting employees from
distributing union literature during the 30 minutes before the start
of
the workday
According to the second amended charge and supporting materials, on or about
September 5, 2014, and on behalf
of
the District's superintendent and chief negotiator, his
executive assistant distributed to teachers at all sites within the District an e-mail "defining the
rules for staff handing out flyers." Among other things, the e-mail states that teachers may not
hand out flyers before school, "as they are to
be
in their classroom 30 minutes prior to school
starting." (Second Amended UPC, Attachments
D.l
and
E.l.)
The Federation also alleges that, on or about October 10, 2014, Haugen informed the
school's teachers that, pursuant to the District's September 5, 2014 e-mail, employees were not
allowed to distribute "union" information during the 30 minutes before the start
of
the regular
work day. (Second Amended UPC,
,27;
Attachment LL) 	Haugen's October 10, 2014 e-mail
acknowledges that "an official 'work day' is not defined," but suggests that, because "official
teacher duty begins at 7:55 [a.m.], we can safely call that the start
of
your work day." (Second
Amended UPC, Attachment
I.
1.)
The Federation alleges that the District's September 5, 2014 e-mail to teachers and
Haugen's October 10, 2014 enforcement
of
the prohibition against distributing "union
information" before the start
of
the school day unilaterally changed the Employee Rights and
Hours
of
Employment articles
of
the parties' CBA and/or the District's established practice.
According to the Federation, the District's policies did not previously prohibit distribution of
such materials before the start
of
the workday and "did not provide that the professional day
began 30 minutes prior to the start
of
the bell schedules for each school site" within the
37

District. (Second Amended UPC, 127.) The Federation also alleges that the District's
promulgation and/or enforcement
of
these restrictions on employee leafleting interfered with
employee and organizational rights guaranteed by EERA.
The Office
of
the General Counsel dismissed both the unilateral change and
interference allegations. Central to the Office
of
the General Counsel's analysis was language
in the California Code
of
Regulations, which states, in relevant part, that, "Unless otherwise
provided
by
rule
of
the governing board
of
the school district, teachers are required to be present
at their respective rooms, and to open them for admission
of
the pupils, not less than 30 minutes
before the time prescribed for commencing school." (Cal. Code Regs., tit. 5, § 5570.) PERB
recognizes that the start
of
the workday falls within the statutorily-enumerated subject "hours
of
employment." Consequently, while not specifically mentioned in the regulation, as noted in the
dismissal letter, both the 30-minute period before the start
of
school and the requirement that
teachers be present
in
their classrooms may be altered through collective bargaining.
(Healdsburg Union Elementary School District (1994) PERB Decision No. 1033, pp. 7-9.)
In this case, however, the Office
of
the General Counsel determined that the Federation
had not alleged sufficient facts to establish that the regulatory default mle had been altered either
by the parties' CBA or by established practice. As noted in the dismissal letter, no language in
the Hours
of
Employment article
of
the parties' CBA specifically identifies the start
of
the
workday and the Federation's bare allegation
of
an existing practice does not sufficiently allege
an unequivocal, clearly enunciated and acted upon, and readily ascertainable practice accepted
by both parties over a reasonable period
of
time. ( County
of
Riverside, supra, PERB Decision
No. 2307-M, p. 20; Riverside Sheriff's Assn.
v.
County
of
Riverside (2003) 106 Cal.App.4th
1285, 1291.) While we agree with the Office of the General Counsel's analysis insofar as it
goes, we do not consider it dispositive of the Federation's interference allegations.
38

A. 	Unilateral Change
As noted above, to state a prima facie case
of
a unilateral change, the charging party
must allege facts demonstrating that:
(1) the employer took action to change policy; (2) the change in
policy concerns a matter within the scope
of
representation; (3) the
action was taken without giving the exclusive representative notice
or
opportunity to bargain over the change; (4) the action
had
a
generalized effect or continuing impact on terms and conditions
of
employment.
(County
of
Santa Clara, supra, PERB Decision No. 2321-M, pp. 12-13.) The change in policy ·
may entail altering or eliminating an existing policy established
by
a collective bargaining
agreement
or
past practice, or creating an entirely new policy where previously none existed.
( County
of
Riverside, supra, PERB Decision No. 2307-M; Pasadena Area CCD, supra, PERB
Decision No. 2444, p. 12.)
The matters in dispute involve negotiable subjects. Hours
of
work are among the
statutorily-enumerated subjects for bargaining (EERA, § 3543.2, subd. (a)(l).) Under PERB
decisional law, that phrase has been interpreted broadly to include the start and end time
of
the
work day as well as the length and amount
of
employees' duty-free time at work. (Cloverdale
Unified School District (1991) PERB Decision No. 911, pp. 16-17; ImperialUnified School
District (1990) PERB Decision No. 825, p. 16; Sutter Union High School District (1981)
PERB Decision No. 175, pp. 5-6; Modesto City Schools and High School District (1984)
PERB Decision No. 414, pp. 10-1
L)
Similar to union access and released time for employee representatives, PERB regards
employee rights to communicate, solicit and distribute information at work as encompassing
both statuto1y rights and negotiable matters. (Long Beach Unified School District (1987) PERB
Decision No. 608, p. 18; San Mateo, supra, PERB Decision No. 1030, pp. 14-17.) A contract
provision may waive employee rights, provided it does so clearly and unmistakably and does not
39

violate public policy. (Fresno
Co.
lHSS Public Authority, supra, PERB Decision No. 2418-M,
p. 41; Metropolitan Edison
Co.
v.
NLRB (1983) 460 U.S. 693, 708.)
11
The dual statutory and contractual nature
of
th~se employee rights creates potential
difficulty for determining the status quo once the parties' agreement has expired. Does a
contractual waiver
of
employee rights continue as the status quo terms and conditions
of
employment after expiration
of
the agreement, similar to the negotiated standard for reasonable
released time, or does a partial waiver
of
employee solicitation and distribution rights expire
entirely with the contract along the lines
of
a
"t10
strikes" clause? However, we need not decide
this issue here, as the employee rights set forth in Article IV
of
the CBA are identical
to
those
found in EERA, including the rights to join, form and participate in the activities
of
employee
organizations as well as the right to refuse to join or participate in such activities. Thus, the
Federation has not waived the statutory rights
of
employees to solicit or distribute literature and
has therefore sufficiently alleged that the District's September 5, 2014 e-mail to teachers and
Haugen's alleged enforcement
of
the rule stated therein affect negotiable subjects, including
hours
of
work and employee solicitation and distribution rights.
Less certain is whether the Federation has alleged sufficient facts either to demonstrate
the existence
of
an established policy or practice regarding the 30 minutes 1?efore the start
of
class time or that the District has changed a policy or practice. The status quo against which an
employer's conduct is evaluated must take into account the regular and consistent .past patterns
of
changes in the conditions
of
employment. (Pajaro Valley Unified School District (1978)
11
Relying on NLRB v. United Technologies Corporation (2d Cir. 1983) 706 F.2d 1254,
in Long Beach, supra, PERB Decision No. 608, the Board concluded that an exclusive
representative and public school employer may agree to a limited waiver
of
employee rights to
solicit or distribute literature during non-work time and in non-work areas. (Long Beach, supra,
at pp. 15-17; cf. NLRB v. Magnavox Co.
of
Tennessee (1974) 415 U.S. 322 [representative
cannot waive substantially all employee rights to communicate with one another in the
workplace].)
40

PERB Decision No.
51
(Parajo Valley), p. 6.) The Hours
of
Employment article includes no
language identifying the start time
of
the work day or specifying any duties or expectations
of
certificated personnel before the start
of
instructional class time. However, where a contract
is
silent or ambiguous, an employer policy can take the form
of
an established practice. ( County
of
Riverside, supra, PERB Decision No. 2307-M, p. 20.)
Haugen's October 10, 2014 e-mail confirms that
"an
official 'work day' is not defined"
though she suggests 7:55 a.m. as the start
of
the work day. Elsewhere in the second amended
charge, the Federation alleges that principles at other District schools have identified 7:40 a.m. as
"when the day starts," which is apparently thirty minutes before the start
of
the instructional day
for at least some teachers. (Second Amended UPC,
~~
29-30; Attachment
L.
l .) Because there is
scant and conflicting information in the charge and supporting materials regarding the District's
policy before September 5, 2014, we conclude that the Federation has not alleged sufficient
facts to show that the District's September 5, 2014 e-mail either altered or eliminated an existing
policyor practice. (Pajaro Valley, supra, PERB Decision No. 51, pp. 6, 9-10.)
The Federation may also allege that the District sought to establish a new policy affecting
negotiable matters, where previously no clear policy or practice existed. Although the warning
and dismissal letters do not explicitly discuss this theory, they do note that the California Code
of
Regulations establishes a default rule that "teachers are required to be present at their respective
-rooms, and to open them for admission
of
the pupils, not less than 30 minutes before the time
prescribed for commencing school," unless otherwise authorized by the school district's
governing board and/or by a collective bargaining agreement. (Cal. Code Regs., tit. 5, § 5570.)
Thus, in this case, it is not sufficient to allege that the District established a new policy where
none previously existed without specifically alleging that the regulatory default rule has been
altered. Although the charge contains a bare allegation that the practice was otherwise, it has
41

provided no specific factual allegations to support this claim. We therefore affirm the dismissal
of
the Federation's allegation that the District's September 5 and October 10, 2014 e-mail
messages to employees and/or their enforcement changed existing policy or established a new
policy where none previously existed.
B. 	Interference with Protected Rights to Distribute Union Information
We next turn to the Federation's allegation that the District's promulgation or
enforcement
of
the September 5, 2014 e-mail interfered with employee rights. A prima facie
case
of
interference exists where an employer is alleged to have engaged in conduct that tends to
or does result in at least slight harm to rights guaranteed by EERA. (Carlsbad Unified School
District (1979)PERB Decision No.
89
(Carlsbad), pp. 10-11; County
of
Riverside (2010)
PERB Decision No. 2119-M, pp. 16-23; Jurupa Unified School District (2012) PERB Decision
No. 2283 (Jurnpa), p. 29.) Unlike PERB's test for discrimination, no showing
of
unlawful
motive, purpose or intent is required. (Sacramento City Unified School District (1982) PERB
Decision No. 214, p. 7, fn. 5; Simi Valley Unified School District (2004) PERB Decision
No. 1714 (Simi Valley), p. 17.) Moreover, a finding
of
unlawful employer interference,
coercion or restraint does not require evidence that any employee or union official subjectively
felt threatened or intimidated or was actually discouraged from participating in protected
activity; rather the inquiry is an objective one which asks whether, under the circumstances,
the employer's conduct would reasonably discourage protected activity. (Clovis Unified
School District (1984) PERB Decision No. 389, pp. 14-15; County
of
Riverside, supra, PERB
Decision No. 2119-M, pp. 17, 19-20; Coachella Valley Mosquito & Vector Control District
(2009) PERB Decision No. 2031-M, pp. 20-21; John Swett Unified School District (1981)
PERB Decision No. 188 Vohn Swett), pp. 5-8, adopting proposed dee. at pp. 27-28.)
42

If
the harm to protected rights is slight and the employer offers justification based on
operational necessity, the competing interests are balanced. (Carlsbad, supra, PERB Decision
No. 89, p. 10; John Swett, supra, PERB Decision No. 188, pp. 6-7; see also State o/California
(Department
of
Personnel Administration) (2011) PERB Decision No. 2106a-S.)
If
the
hann
to protected rights outweighs the asserted business justification, a violation will be found.
(Omnitrans (2009) PERB Decision No. 2030-M, pp. 22-24.) Where the employer's conduct
is inherently destructive
of
protected rights, it will be excused only on proof that it was caused
by
circumstances beyond the employer's control and that no alternative course
of
action
was available. (Santa Monica Community College District (1979) PERB Decision No. 103,
pp. 19-20, affirmed by (1980) 2 Cal.App.3d 684; Carlsbad, supra, PERB Decision No. 89,
pp. 10-11.) Irrespective
of
the foregoing, a charge will be sustained where it is shown that the
employer would not have engaged in the complained-of conduct but for an unlawful
motivation, purpose or intent. (Monterey Peninsula Unified School District (2014) PERB
Decision No. 2381, p. 42; Carlsbad, supra, PERB Decision No. 89, pp. 10-11.)
Under the above test, a violation may only be found
if
EERA provides the claimed
rights. (Simi Valley, supra, PERB Decision No. 1714, p. 17.) In this regard, PERB has
consistently held that peaceful picketing, including distribution
of
leaflets or other materials
to
advertise grievances or solicit support from employees and the public are among the statutorily-
guaranteed rights
of
employees and employee organizations. (EERA, §§ 3543, subd.(a), 3543.1,
subds. (a), (b ); UC Regents, suprp, PERB Decision No. 2300-H, p. 16; Modesto, supra, PERB
Decision No. 291, p. 62; San Marcos Unified School District (2003)PERB Decision No. 1508,
p. 18; Mt. San Antonio Community College District (1982) PERB Decision No. 224
(Mt. San Antonio), p. 3). Full freedom of employee and organizational speech and expressive
activity is particularly important in labor negotiations and grievance proceedings because the
43

Legislature has designated these procedures as the preferred alternatives to economic warfare
for resolving disputes over wages, hours and working conditions. (San Francisco Unified
School District (1979) PERB Order No. IR-10, p. 3; Anaheim Union High School District
(1981) PERB Decision No. 177, p. 7; Rancho Santiago Community College District (1986)
PERB Decision No. 602 (Rancho Santiago), pp. 12-14; Rio Hondo Community College
District (1982) PERB Decision No. 260, pp. 10-12;
Mt.
San Antonio, supra, PERB Decision
No. 224, pp. 5-7; San Diego Teachers Assn.
v.
Superior Court (1979) 24 Cal.3d 1, 8; see
also Milk Wagon Drivers Union
of
Chicago, Local 753
v.
Meadowmoor Dairies (1941)
312 U.S. 287, 293.)
Of
particular significance to the present charge and appeal are PERB and persuasive
private-sector precedent holding that a categorical prohibition against distributing literature or
other means
of
communication interferes with fundamental rights
of
employee organizations to
represent and communicate with employees and
of
employees to self-organize and
communicate with one another in the workplace. (Mt. San Antonio, supra, PERB Decision
· No. 224, p. 7; Los Angeles Community College Districl (2014) PERB Decision No. 2404
(Los Angeles CCD), p. 6; Sweetwater Union High School District (2014) PERB Order
No. IR-58 (Sweetwater), pp. 11-12; Republic Aviation Corp.
v.
NLRB (1945) 324 U.S. 793,
804-.805; Stoddard-Quirk lvffg. Co.
(1962) 138 NLRB 615,621; see also County
o_f
Sacramento
(2014) PERB Decision No. 2393-M, pp. 16-17, 19, 24; Regents
of
the University
of
California,
Lawrence Livermore National Laboratory (1982) PERB Decision No. 212-H (Regents
of
UC
(LLNL)).) Employee organizations have rights
of
reasonable access to areas where employees
work, to use institutional bulletin boards, mailboxes, and other means
of
communication,
subject to reasonable regulation, and to use institutional facilities at reasonable times for the
purpose of meeting with employees. (EERA, § 3543.1, subd. (b); San Ramon Valley Unified
44

School District (1982) PERB Decision No. 230, pp. 12-13.) Similarly, the statutory right
of
employees to be represented by employee organizations includes the right to communicate
with one another about working conditions, to show allegiance to the organizations
of
their
choice and to express solidarity with other employees for the purpose
of
representation or for
other mutual aid or protection. (State
of
California (Department
of
Parks and Recreation)
(1993) PERE Decision No. 1026-S, adopting proposed dee. at pp. 20-21; Modesto, supra,
PERB Decision No. 291, p. 62.) 	Unless employees and employee organizations can
effectively communicate with one another about these matters
in
the workplace, the statutorily-
guaranteed right to participate in employee organizational activities would be largely empty.
(Richmond Unified School District/Simi Valley Unified School District (1979) PERB Decision
No. 99 (Richmond/Simi Valley), pp. 10, 15; Sweetwater, supra, at pp. 12-13; see also Beth .
Israel Hosp.
v.
NLRB (1978) 437 U.S. 483, 491.)
Notwithstanding the Office
of
the General Counsel's analysis, the leafletting rules set
forth in Exhibit
D.l
to the second amended charge are problematic in several respects. First,
the District's directive appears to establish a blanket temporal restriction on distributing flyers
at any time during the workday.
It
states that teachers may hand out flyers "after school when
they finish their work obligations" (emphasis original), but they may not do so "before school
as they are to be in their classroom 30 minutes prior to school starting." The directive makes
no mention and presmnably does not permit distribution
of
flyers during off-duty time, such as
the 30-minute, duty-free lunch period guaranteed by Article VI of
the CBA.
However, our precedents are clear that a rule prohibiting distribution
of
literature
anywhere on the employer's premises is presumptively unlawful because it applies even when
employees are not on duty or are in non-working areas. (State
of
California (Employment
Development Department) (2001) PERB Decision No. 1365a-S, p. 2; Richmond/Simi Valley,
45

supra, PERB Decision No. 99, pp. 17-18; see also Delano Union Elementary School District
(2007) PERB Decision No. 1908, p. 17; Republic Aviation Corp.
v.
NLRB, supra, 324 U.S. 793,
801-03.) Although worktime is for work, "time outside working hours, whether before or after
work, or during luncheon or rest periods, is an employee's time to use as he [or she] wishes
without unreasonable restraint, although the employee is on company property." (Peyton
Packing Co., Inc. (1943) 49 NLRB 828,843, enforced (5th Cir. 1944) 142 F.2d 1009, cert.
denied (1944) 323 U.S. 730; Delano, supra, at p.
17
.)
Thus, restrictions on employee
solicitation, including the distribution
of
union literature, during non-work time and in non-
work areas are invalid, unless the employer shows that special circumstances make such rules
necessary to maintain production or discipline. (State
of
California (EDD), supra, at p. 2;
Long Beach Unified School District (1980) PERB Decision No. 130 (Long Beach), pp. 7-8;
Eastex, Inc.
v.
NLRB (1978) 437 U.S. 556,574; Beth Israel Hosp.
v.
NLRB (1978) 437 U.S. 483,
492-493; cf. Baylor University Medical Center
v.
NLRB (D.C. Cir. 1981) 662 F.2d 56, 65.)
The Federation's charge and supporting materials allege that the District has prohibited
employees from distributing flyers 30 minutes before work but that they may hand out flyers
"after school when they finish their work obligations." (Second Amended UPC,
Attachment D.
l,
original emphasis.) The District's directive makes no mention
of
other
permissible times when employees may distribute flyers, such as meal or rest periods, and a
reasonable interpretation is that there are none. (Los Angeles CCD, supra, PERB Decision
No. 2404, p. 12; Long Beach, supra, PERB Decision No. 130, p. 10.) Thus, even accepting the
District's contention that employees are on duty 30 minutes before the start
of
school and may
lawfully be prohibited from distributing flyers at that time, on its face, the District's blanket
restriction on union or other concerted activities at any time during the workday constitutes a
prima facie case
of
interference with protected employee rights. (Long Beach, supra, at p. 9.)
46

In addition, the District's September 5, 2014 e-mail advises teachers that they "must
be
off
school property when they hand out flyers," including "not in a driveway or walkway on
school campus." Because the District's e-mail does not qualify this geographic restriction by
distinguishing between off-duty and on-duty time, a reasonable interpretation is that employees
are not free to distribute flyers at any time or under any circumstances while anywhere on the
District's property, including non-working areas. This blanket geographic prohibition is also
overly broad in that, like the above temporal restriction, it fails to account for the fact that not
all time spent on the employer's premises is "on duty" or otherwise subject to employer
restrictions on union or other concerted employee activity. (UC Regents, supra, PERB
Decision No. 2300-H, pp. 16, citing Mt. San Antonio, supra, PERB Decision No. 224;
Long Beach, supra, at p. 13.) Legitimate employer concerns
of
ensuring order, production or
discipline in work areas are inapplicable in parking lots, breakrooms, staff lounges or other non-
work areas. (State
of
California (EDD), supra, PERB Decision No. 1365a-S, pp. 2, 10-11;
Long Beach, supra, PERB Decision No. 130, p. 22; Stoddard-Quirk Mfg. Co., supra, 138 NLRB
615, 618.)
Recognizing this distinction, PERB has repeatedly held that concerted employee
activities and union access rights are subject to reasonable time, place and manner standards,
but may not be banished altogether, even in the most sensitive work environments. (County
of
Riverside (2012) PERB Decision No. 2233-M, p. 7; Regents
of
UC (LLNL), supra, PERB
Decision No. 212-H, pp.12-13; see also The Regents
of
the University
of
Calffornia,
University
of
California at Los Angeles Medical Center (1983) PERB Decision No. 329-H,
pp. 4-6.) Consequently, even if employees are on duty 30 minutes before classes start, the
charge nonetheless states a prima facie case of interference by alleging that the District has
47

promulgated, maintained or enforced an unqualified role that employees "must
be
off
school
property when they hand out flyers."
In addition to temporal and geographic restrictions, the Federation's charge and
supporting materials also allege a content-based restriction. According to Attachment D.1,
staff "cannot hand out flyers
of
a political or union nature." (Second Amended UPC, Ex. D. l .)
Thus, the charge alleges that even after school when employees have :finished their duties and
are on the public sidewalk in front
of
the school, they may still not distribute flyers
of "a
political or union nature."
Our case law substantially limits an employer's ability to censor or impose prior
restraints on the content
of
union communications. (Desert Community College District
(2007) PERB Decision No. 1921 (Desert CCD), p. 10; County
of
Sacramento (2014) PERB
Decision No. 2393-M, pp. 16-17.)
12
Content-based restrictions are highly disfavored, in part,
because there are so few circumstances in which they are based on legitimate justification.
(Carey
v.
Brown (1980) 447 U.S. 455,455; Police Dept.
of
City o.f Chicago
v.
Mosley (1972)
408 U.S. 92, 92-93; cf. Ralphs Grocery
Co.
v.
United Food and Commercial Workers Union
Local 8 (2012) 55 Cal.4th 1083, 1102 [upholding content-based protection
of
speech occurring
in non-public fora ]. ) Because the degree
of
intrusion into an employer's property or managerial
interests does not vary with the content
of
the material distributed, an employer's only legitimate
interest in regulating such conduct is in preventing employees from bringing literature onto its
premises and distributing it there - 	not in choosing which messages to suppress.
12
Because the issues on appeal concern only the District's ban on distributing "union"
literature, we do not consider the extent to which a public school employer may regulate or
prohibit "political" speech or activities on its premises. (Educ. Code, § 7050 et seq.;
San Leandro Teachers Assn
v.
Governing Bd.
of
San Leandro Unified School Dist. (2009)
46 Cal.4th 822, 834-835; Desert CCD, supra, PERB Decision No. 1921, pp. 11, fn. 11, 12-14;
see also Wilmar Union Elementary School District (2000) PERB Decision No. 1371.)
48

(Richmond/Simi Valley, supra, PERB Decision No. 99, p. 19; Eastex, Inc.
v.
NLRB (1978)
437 U.S. 556,573; State
of
California, California Department
of
Transportation (1981) PERB
Decision No. 159b-S, pp. 16-17.) In addition to non-work areas, once the employer has opened
up other parts
of
the workplace as a forum for some forms
of
non-work related speech or
expressive conduct, it is not free to ban other non-disruptive speech or conduct based solely on
its content, unless otherwise authorized or required by law. (Ed. Code, § 7052; San Leandro,
supra, 46 Cal.4th 822; The Regents
of
the University
of
California (1985) PERB Decision
No. 504-H, p. 4, adopting proposed dee. at p. 24, overruled on other grounds sub nom. Regents
of
University
of
California
v.
Public Employment Relations
Bd.
(1986) 177 Cal.App.3d 648;
Desert CCD, supra, PERB Decision No. 1921, p. 10; Sierra Sands Unified School District
(1993) PERB Decision No. 977, adopting proposed dee. at p. 12; San Ramon Valley Unified
School District (1982) PERB Decision No. 254, p. 9.)
Most cases involving content-based restrictions concern facially neutral policies which
are alleged to have been promulgated in response to protected activity or enforced in an
arbitrary or discriminatory manner. (See, e.g., Long Beach, supra, PERB Decision No. 130,
pp. 8-9 and 16; Richmond/Simi Valley, supra, PERB Decision No. 99, pp. 15-26, and
administrative and judicial decisions cited therein.)
13
An employer policy which penuits some
outside individuals or organizations access to the employer's facilities to promote political
13
Though facially content neutral, laws are considered content-based regulations
of
speech
if
they cannot be justified without reference to the content
of
the regulated speech or
were adopted "because
of
disagreement with the message [the speech] conveys." 	(Reed
v.
Town
of
Gilbert, Ariz. (2015) 135 S.Ct. 2218, 2227, citing Wardv. Rock Against Racism (1989) 491 ·
U.S. 781, 791.) Similarly, under PERB and NLRB precedent, an employer rule that does not
explicitly restrict protected rights may nonetheless be unlawful,
if
the rule
was-
promulgated in
response to union activity or
if
it has been applied to restrict the exercise
of
protected rights.
(Marin Community College District (1980) PERB Decision No. 145 (Marin), p. 19; Martin
Luther Memorial Home, Inc. dlb/a/Lutheran Heritage Village-Livonia (2004) 343 NLRB 646,
647.)
49

causes or commercial interests but denies access to employee organizations or only grants
union access under more onerous conditions is unreasonable and violates the organization's
right
of
access. (Regents
of
the
UC,
supra, PERB Decision No. 504-H, p. 4, adopting proposed
dee.
at
pp. 11-12, 19-20; Long Beach, supra, PERB Decision No. 130, p. 16;
1\1arin,
supra,
PERB Decision No. 145, p. 19; see also
Wm.
H.
Block
Co.
(1964) 150 NLRB 341.)
. The non-discrimination principle governing
PERB's
access cases is equally applicable
to the exercise
of
employee rights. (Richmond/Simi Valley, supra, PERB Decision No. 99,
p. 16; Long Beach, supra, PERB Decision No. 130, pp. 6-7.) A public school employer may
not enforce a facially-neutral workplace policy in a manner that permits some forms
of
employee solicitation for (or against) employee organizations, while denying other, equally or
less intrusive forms. (EERA, § 3543, subd. (a); Modesto, supra, PERB Decision No. 291,
p. 62.) Thus, in addition to the distinction between on-duty and off-duty time discussed in the
warning and dismissal letters, our cases effectively recognize a third category
of
employee
"down time," in which management authorizes or condones some non-work-related solicitation
during work time. Examples may ·include selling candy bars to raise money for high school band
uniforms, establishing an office pool on the outcome
of
the Super Bowl, or selling raffle tickets
for social or a political cause. Whatever the occasion or cause,
if
the limited intrusion into
worktime and work areas is permitted, it cannot be denied for other, equally or less intrusive
solicitation or concerted employee activities. (Regents
of
the University
of
California, supra,
PERB Decision No. 504-H, p. 4, adopting proposed dee. at pp. 11-12, 19-20; Marin, supra,
PERBDecisionNo.145,pp. 7, 19.)
Given the vast differences between workplaces, employee duties and employer
expectations, it would be difficult,
if
not impossible, for the Board to advance a single, bright
line rule
as
to when such down time exists, and what sorts
of
union or other concerted employee
50

activity are permissible during such time. We therefore affinn our long-standing decisional law
concerning union access rights and hold that its non-discrimination principle is equally
applicable in cases involving the promulgation, maintenance or enforcement of rules affecting
employee speech and associational activity in the workplace.
What distinguishes the Federation's allegations from many of the content-based
restriction cases cited above is that, according to the charge and supporting materials, the
District has not simply promulgated a facially-neutral policy in response to protected conduct
or enforced a facially-neutral policy in a discriminatory fashion. Rather, it has allegedly
advised employees of a policy that singles out only "political or union" content for prohibition
anywhere in the workplace. Under the circumstances alleged by the Federation, the inherently
destntctive prong of Carlsbad is the appropriate standard. When an employer policy expressly
bans "union" activity, requiring it to show operational necessity or that no alternative was
available is consistent with well-settled constitutional and labor law principles governing
content-based restrictions. (Long Beach, supra, PERB Decision No. 130, p. 23; Lafayette Park
Hotel (1998) 326 NLRB 824, 825 and Lutheran Heritage Village, supra, 343 NLRB No. 75,
slip op. at p. 2 [employer rule that explicitly restricts protected activity is per se unlawful].)
While unlawful intent is not required for proving employer interference, the natural and
probable consequence of an employer rule that singles out for prohibition "union" materials is
the denial of employee rights attributable to an unlawful motivation, purpose or intent.
(Carlsbad, supra, PERB Decision No. 89, pp. 10-11.)
The District's position statements have pointed to no operational necessity or
circumstances beyond its control nor even articulated any compelling interest for imposing a
blanket ban on leafletting during non-work time in non-work areas or for banning leaflets of a
"union nature." Nor has the District offered any information to suggest that these prohibitions
51

are the least restrictive means available, as is required under the constitutional strict scrutiny
standard applied to content-based restriction. (International Society
for
Krishna Consciousness
of
California, Inc.
v.
City
of
Los Angeles (2010) 48 Cal.4th 446, 456-457.)
Although the charge indicates that the District's superintendent later "clarified" to a
Federation representative that the e-mail :·was sent to Principals to address their questions
regarding flyers that were being handed out to parents" and "was not intended to be shared
with staff," the District has never publicly and unequivocally disavowed either any
inadvertent distribution
of
the message to teachers (see Jurupa Unified School District (2015)
PERB Decision No. 2458, pp. 12-13, adopting NLRB standards in Passavant Memorial Area
Hospital (1978) 237 NLRB 138, 138-139) or its enforcement by Haugen. Moreover, because
this case comes before the Board on appeal from a dismissal, we are precluded from affirming
the dismissal on the basis
of
an affirmative defense not raised during the investigation
of
the
charge. (County
of
Santa Clara (2015) PERB Decision No. 2431-M, pp. 20-21.)
Accordingly, we reverse the dismissal
of
the Federation's interference allegation and
direct the.Office
of
the General Counsel to issue a complaint alleging that,
by
distributing its
September 5 and October 10, 2014 e-mail messages to employees, the District promulgated,
maintained and/or enforced a policy that interfered with employee and employee organization
rights in violation
of
BERA section 3543.5, subdivisions (a) and (b).
5. 	Whether the Federation has alleged a prima facie case of surface bargaining
The charge alleges that the District violated BERA section 3543.5, subdivision (c), by
engaging in bad faith or "surface" bargaining. Bargaining in good faith is a "subjective
attitude and requires a genuine desire to reach agreement." (Placentia Fire Fighters v. City
of
Placentia (1976) 57 Cal.App.3d 9, 25.) Surface bargaining has been described as "going
through the motions of negotiations," with no real intent to resolve differences or reach
52

agreement. (Muroc, supra, PERB Decision No. 80, p.
13;
Davis Unified School District, et al.
(1980) PERB Decision No. 116, pp. 17-19, 28.) The question
of
good or bad faith is a factual
determination based on the totality
of
the circumstances, including the parties' conduct at and
away from the table. (City
of
Placentia, supra, 57 Cal.App.3d 9, 25; City
of
San Jose, supra,
PERB Decision No. 2341-M, p. 22; University
of
California, Lawrence Livermore National
Laboratory (1995) PERB Decision No. 1119-H, p. 3; NLRB
v.
A-1 King Size Sandwiches, Inc.
(11th Cir. 1984) 732 F.2d 872, 873.) Although various kinds
of
conduct may be evidence
of
bad faith in negotiations, the ultimate question raised in a surface bargaining case is whether the
respondent's conduct, when viewed in its totality, was sufficiently egregious to frustrate
negotiations. (City
of
San Jose, supra, PERB Decision No. 2341-M, pp. 19, 41.)
As evidence
of
the District's bad faith in negotiations, the Federation alleges that the
District made regressive bargaining proposals
by
making a proposal concerning teachers'
salaries and class size reductions whose cost to the District was approximately $366,400 less
than the District's initial proposal on these subjects. The Federation also re-alleges its other
allegations
of
separate unfair practices, including its allegations that the District gave
confusing and incomprehensible explanations and financial data in support
of
its bargaining
proposals, that it unreasonably delayed the provision
of
financial information to the Federation,
that it conditioned further negotiations on the exclusion
of
employee observers when it had
previously pennitted employees to attend negotiations, and that it unlawfully prohibited
employees from distributing union literature to parents before the start
of
school.
Although the Federation has alleged several recognized "indicia"
of
bad faith, the
totality
of
circumstances in a surface bargaining case may include the extent to which the
charging party's own conduct frustrated or contributed to a breakdown in negotiations.
(Fresno Co. JHSS Public Authority, supra, PERB Decision No. 2418-M, p, 52; Gonzales,
53

supra, PERB Decision No. 480, proposed dee. at pp. 61-62; Romo Paper Products (1974)
208 NLRB 644, 650.) In Gonzales, supra, PERB Decision No. 480, the Board concluded that a
charging party's own conduct, including its "casual and even lethargic" approach to
negotiations, precluded a situation in which the respondent's good faith could be tested. (Id.,
proposed dee. at pp. 50-53, 61-62.) Similarly, because the allegations
in
the present case
indicate that the Federation's insistence on having employees attend bargaining meetings
caused the breakdown in negotiations, the Federation has not stated a prima facie case that the
District engaged in surface bargaining. We affirm the dismissal
of
this allegation.
ORDER
It is hereby ORDERED that the dismissal
of
the unfair practice charge, as amended, in
Case No. SF-CE-3091-E is REVERSED and REMANDED to the Office
of
the General
Counsel for issuance
of
a complaint alleging that the Petalmna City Elementary School
District/Joint Union High School District (District) violated the Educational Employment
Relations Act (EERA), Government Code section 3540 et seq., by:
(1) 	unreasonably delaying the provision
of
presmnptively necessary and relevant
information requested by the Petalmna Federation
of
Teachers, Local 1881 for contract
negotiations, in violation ofEERA section 3543.5, subdivisions (a), (b) and (c); and
(2) 	interfering with employee and organizational rights by promulgating, maintaining
and/or enforcing an overly broad and discriminatory rnle prohibiting the distribution
of
union
literature, in violation ofEERA section 3543.5, subdivisions (a) and (b).
All other allegations in Case No. SF-CE-3091-E are DISMISSED WITHOUT LEAVE
TO AMEND.
Members Winslow and Gregersen joined in this Decision.
54