West Side Healthcare District (PERB 2144M)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD.

TURLOCK EMERGENCY MEDICAL SERVICES
ASSOCIATION,
Charging Party, Case No, SA-CE-624-M
Vv. PERB Decision No. 2144-M
WEST SIDE HEALTHCARE DISTRICT, November 30, 2010
Respondent.

Appearance: Weinberg, Roger & Rosenfeld by Bruce A. Harland, Attorney, for Turlock
Emergency Medical Services Association.

Before Dowdin Calvillo, Chair; McKeag and Wesley, Members.
| DECISION

WESLEY, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Turlock Emergency Medical Services Association
(TEMSA) of a Board agent’s dismissal (attached) of its unfair practice charge. As amended,
the charge alleged that the West Side Healthcare District (District) violated the Meyers-Milias-
Brown Act (MMBA)' by unilaterally changing policies without providing notice and an
opportunity to bargain, and by engaging in surface bargaining. The Board agent dismissed the
charge for failure to state a prima facie case.

The Board has reviewed the dismissal and the record in light of TEMSA’s appeal and
the relevant law. Based on this review, the Board finds the Board agent’s warning and
dismissal letters to be a correct statement of the law and well-reasoned, and therefore adopts

them as the decision of the Board itself, as supplemented by the discussion below.

' The MMBA is codified at Government Code section 3500 et seq.

DISCUSSION
The District provides ambulance service for residents in portions
of
Merced and
Stanislaus Counties, and employs EMTs and paramedics. TEMSA and the District are
engaged in negotiations for their first contract. TEMSA alleges that during the course
of
negotiations the District unilaterally changed health benefits, disciplinary procedures and the
merit pay policy. In addition, the charge alleges the District engaged in surface bargaining by
reneging on tentative agreements, refusing to consider TEMSA's package proposals, refusing
to discuss any wage proposal, and rejecting proposals without explanation.
TEMSA appeals only the dismissal
of
the unilateral change allegations. Regarding the
disciplinary policy allegation, the charge alleges that in September 2009, the District created a
"point" system where employees would be given a point for absences, late calls or tardiness.
The charge does not include copies
of
the original or the revised disciplinary policy. 	The
Board agent held that although the creation
of
a "point" system suggests a change to the
disciplinary policy, there were insufficient facts to state a prima facie case.
PERB Regulation 326f5(a)(5)2 requires, inter alia, that an unfair practice charge
include a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." The charging party's burden includes alleging the "who, what, when, where and
how"
of
an unfair practice. (State
of
California (Department
of
Food and Agriculture) (1994)
PERB Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB
Decision No. 944.) Mere legal conclusions are not sufficient to state a prima facie case.
(Ibid.; Charter Oak Unified School District (1991) PERB Decision No. 873.)
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
2

Unilateral changes are considered "per se" violations of the duty to bargain in good
faith if certain criteria are met. Those criteria are: (1) the employer breached or altered the
parties' written agreement or its own established past practice; (2) such action was taken
without giving the other party notice or an opportunity to bargain over the change; (3) the
change was not merely an isolated breach of the contract, but amounts to a change in policy
(i.e., it has a generalized effect or continuing impact upon bargaining unit members' terms and
conditions of employment); and (4) the change in policy concerns a matter within the scope of
representation. (Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802; Walnut
Valley Unified School District (1981) PERB Decision No. 160; San Joaquin County Employees
Assn. v. City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union High School District
(1982) PERB Decision No. 196.)
The charge alleges only that employees now receive a point for absences, late calls or
tardiness. 	It is impossible to determine from this statement if there has been an effective
change in the disciplinary policy. Presumably employees are currently disciplined for
excessive absences, late calls and tardiness. The mere allegation that employees now receive a
"point" for this conduct does not establish that the District changed the level of discipline
imposed or the procedure for when discipline is imposed. 	Without more information on the
current and revised policy, TEMSA does not satisfy its burden to allege sufficient facts to
demonstrate how being given points changes the disciplinary policy covering absences, late
calls or tardiness.
TEMSA also alleges that the District unilaterally changed the health benefits by
"reducing the level of benefits that employees would receive." The Board agent found that the
failure to describe the original policy precluded a determination that an unlawful unilateral
change had occurred.
3

On appeal, TEMSA states:
What the original policy constituted is not material. 	The relevant
fact is that the employer changed the policy without bargaining
with TEMSA. The employer is not free to reduce the level
of
benefits, even
if
its policy said it was free to do so, otherwise
there would be no reason for the employer to meet and confer
with the Union over a matter within the scope
of
representation.
As stated above, a charging party bears the burden
of
alleging sufficient facts to
demonstrate a prima facie case. (State
of
California (Department
of
Food and Agriculture),
supra, PERB Decision No. 1071-S.) The Board agent noted that TEMSA failed to set forth the
existing policy. 	Without these essential facts, the Board cannot determine whether there has
been an actual change in policy. In fact, the appeal seems to suggest the policy allowed
the
District to make changes to the level
of
benefits. Accordingly, the dismissal for failure to state
a prima facie case is affirmed.
ORDER
The unfair practice charge in Case No. SA-CE-624-M is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Chair Dowdin Calvillo and Member McKeag joined in this Decision.
4

STATE OF CALIFORNIA 	ARi'\/OLD SCHWARZENEGGER, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
I 031 I 8th Street
Sacramento,
CA
95811-4124
Telephone: (916) 327-8384
Fax: (916) 327-6377
August 5, 2010
Bruce Harland, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
Re: 	Turlock Emergency Medical Services Association
v.
West Side Healthcare District
Unfair Practice Charge No. SA-CE-624-M
DISMISSAL LETTER
Dear Mr. Harland:
The Turlock Emergency Medical Services Association (Union) filed the above-referenced
unfair practice charge with the Public Employment Relations Board (PERB) on October 1,
2009. The original charge allege that the West Side Healthcare District (District)1 violated its
obligation to bargain under the Meyers-Milias-Brown Act (MMBA or Act).2 Specifically, the
original charge alleged the District committed "per se" violations
of
the duty to bargain
byunilaterally changing three policies. The charge also alleged the District engaged in "surface
bargaining" in order to avoid reaching a collective bargaining agreement with the Union.
PERB sent the Union a Warning Letter dated May 26, 2010 (Warning Letter), a copy
of
which
is enclosed. The Union filed an amended charge on June 16, 2010.
1. 	Health Insurance
In the Warning Letter, PERB stated that it is the charging party's responsibility to allege a
"clear and concise statement
of
the facts and conduct alleged to constitute an unfair practice."
(Cal. Code Regs., tit. 8, § 32615(a)(5) (emphasis added).) That means the charge must allege
the "who, what, when, where and how"
of
an unfair practice. (United Teachers-Los Angeles
(Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions are not sufficient to state
a prima facie case. (Ibid; Charter Oak Unified School District (1991) PERB Decision No.
873.)
The original charge alleged that prior to July 2009, the District provided the employees with
"health insurance benefits." On an unspecified date in "July 2009," the District "mailed" a
The District is a public agency as defined in Government Code section 3501(c).
2 The MMBA is codified at Government Code section 3500.et seq. The text of the
MMBA and PERB Regulations may be found at www.perb.ca.gov.

SA-CE-624-M
August
5,
2010
Page 2
letter "to all employees." The letter "attempted" to "change" the employees' health insurance
benefits.
In the Warning Letter, PERB advised the Union that, even
if
PERB ignored the allegation
about "attempted" change, the Union needed to allege "what" the original policy was,
"how"
the new policy differs from the original policy, and "when" and "how" the District changed the
original policy. (See Ragsdale, supra, PERB Decision No. 944 (who did what and when did
they do it).) In response, the amended charge alleges the following:
In July 2009, the employer unilaterally change[d] health insurance
benefits and mailed out to all employees that the change was being made
reducing the level
of
benefits that employees would receive.
This allegation fails to describe "what" the original policy was. 	Without knowing what that
policy was, it is impossible to know whether the policy prohibited the employer from reducing
the level
of
benefits under the circumstances. Accordingly, the amended charge fails to correct
the deficiency discussed in the Warning Letter.
(2) 	Disciplinary Procedures
The original charge alleged that prior to September 2009, the District had a policy regarding
"disciplinary procedures" and that on some unspecified date in September 2009, the District
"made unilateral changes" to the disciplinary procedures and "refused to discuss these changes
with the Union."
In the Warning Letter, PERB advised the Union that the original charge failed to allege facts to
show "what" the original "disciplinary procedures" were, "how" the new procedures differ
from the original procedures, or "when" the District changed the procedures. (See Ragsdale,
supra, PERB Decision No. 944 (who did what and when did they do it).) In response, the
amended charge repeats the unspecified date "[i]n September 2009," and adds the following
allegations:
The changes included a point system by which employees would be
given a point for late calls, absences or tardiness. Prior to the change,
there existed no "point" system.
These new allegations arguably describe "what" the preexisting policy was, i.e., the preexisting
policy did not include a point system. They also arguably describe "how" the policy has
changed, i.e., the new policy includes a "point" system. However, the new allegations do not
describe "who" at the District announced the change or "when" he or she did so. Accordingly,
the amended charge fails to correct the deficiency discussed in the Warning Letter.

SA-CE-624-M
August
5,
2010
Page 3
(3) 	Merit Pay
The original charge alleged that in December 2008, the District had a "merit pay" policy and
that on January 28, 2009, the District ''notified" the Union that it would not grant any more
merit pay raises. It also alleged that the District had denied merit raises to "three individuals."
Among other things, the \Yarning Letter advised the Union
that-to
the extent the Union was
attempting to allege a unilateral change in
policy-the
allegation appeared to be barred
by
the
six-moth statute
of
limitations. (Coachella Valley Mosquito
and
Vector Control District v.
Public Employment Relations Board (2005)
35
Cal.4th 1072, 1077.)
The amended charge drops the reference to "January 28, 2009," and re-alleges the merit pay
dispute as follows:
There are three individuals that were entitled to their merit raises back in
December 2008, they received their raises around July 2009. 	On
September 12, 2009, these employees were notified that they would not
be receiving their merit increases. See September 12, 2009 letter
attached to this charge.
The attached letter is from the District to the employees. The letter states that the District's
research showed that on April 12, 2009, the District's accountant had "erroneously" granted
the three employees a pay increase and that the District was going to immediately correct that
error.
In order to establish an unlawful unilateral change in policy, the charging party needs to show
that the respondent changed a policy concerning a matter within the scope
of
representation
without giving the charging party notice and an opportunity to bargain. (State
of
California
(Departments
of
Veterans Affairs & Personnel Administration) (2008) PERB Decision
No. 1997-S, p. 8 (Veterans Affairs); Grant Joint Union High School District (1982) PERB
Decision No. 196, pp. 8-9.) To constitute a "change in policy," a party's action must have a
"generalized effect or continuing impact upon the terms and conditions
of
employment."
(Veterans Affairs, supra, PERB Decision No. 1997-S, pp. 9, 14; Grant, supra, PERB Decision
No. 196, p. 9.) The action must be more than an isolated breach. Rather, it must be generally
applicable to all future situations. (Veterans Affairs, supra, PERB Decision No. 1997-S, p.
18.)
In this case, the amended charge alleges that the three employees were "entitled" to merit
raises under the existing policy. Even though the amended charge does not include any factual
allegations to support the conclusion that the employees were "entitled" to merit raises, it is
assumed for the sake of discussion that they were. 	That assumption does not, however,
establish an across-the-board change in policy. Rather, it shows only an isolated, one-time
breach with no generalized or continuing effect. '(Veterans Affairs, supra, PERB Decision
No. 1997-S, p. 18.). Accordingly, this part of the amended charge fails to allege a unilateral
change in policy. 	·

SA-CE-624-M
August 5, 2010
Page 4
4 	Surface Bargaining
The amended charge fails to allege any new facts that would alter the surface bargaining
analysis contained in the Warning Letter.
CONCLUSION
The amended charge fails to a allege a prima facie case of bad faith bargaining. Accordingly,
PERB hereby dismisses the amended charge and the original charge based on the facts and
reasons discussed above and in the Warning Letter.
Right to Appeal
Pursuant to PERB Regulations,3 Charging Party may obtain a review of this dismissal of the
charge by filing an appeal to the Board itself within twenty (20) calendar days after service of
this dismissal. (Cal. Code Regs, tit. 8, § 32635, subd. (a).) Any document filed with the Board
must contain the case name and number, and the original and five (5) copies of all documents
must be provided to the Board.
A document is considered "filed" when actually received during a regular PERB business day.
(Cal. Code Regs, tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code,§ 11020, subd. (a).)
A document is also considered "filed" when received by facsimile transmission before the
close of business together with a Facsimile Transmission Cover Sheet which meets the
requirements of PERB Regulation 32135(d), provided the filing party also places the original,
together with the required number of copies and proof of service, in the U.S. mail. (Cal. Code
Regs, tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and
32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
103 1 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the
Board an original and five copies of a statement in opposition within twenty (20) calendar days
following the date of service of the appeal. (Cal. Code Regs, 	8, § 32635, subd. (b).)
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
3 1001 et seq.

SA-CE-624-M
August
5,
2010
Page 5
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Cal. Code Regs., tit. 8, § 32140 for the required
contents.) The document will be considered properly "served" when personally delivered or
deposited in the mail or deposited with a delivery service and properly addressed. A document
may also be concurrently served via facsimile transmission on all parties to the proceeding.
(Cal. Code Regs, tit. 8, § 32135, subd. (c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied by proof
of
service
of
the
request upon each party. (Cal. Code Regs, tit. 8,
§ 32132.)
J:,__,inal
Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
TAMI R. BOGERT
General Counsel
By 	- 	.
~J.
Gibbon~
	/'	
t>
Senior Regional Attorney
Attachment
cc: Art Tharpe
(

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95811-4124
Telephone: (916) 327-8384
Fax: (916) 327-6377
May 26, 2010
Bruce Harland, Attorney
Weinberg, Roger & Rosenfeld
1001 Marina Village Parkway, Suite 200
Alameda, CA 94501
ARNOLD
Re: 	Turlock Emergency Medical Services Association
v.
West Side Healthcare District
Unfair Practice Charge No. SA-CE-624-M
WARNING LETTER
Dear Mr. Harland:
The Turlock Emergency Medical Services Association (Union) filed the above-referenced
unfair practice charge with the Public Employment Relations Board (PERB) on October 1,
2009. 	The charge alleges the West Side Healthcare District(District)1 violated its obligation to
bargain under the Meyers-Milias-Brown Act (MMBA or Act).2 Specifically, the charge,
alleges the District committed "per se" violations
of
the duty to bargain by unilaterally
changing three policies. The charge also alleges the District engaged in "surface bargaining"
in order to avoid reaching a collective bargaining agreement with the Union.
BACKGROUND
The Union represents a bargaining unit
of
District employees. The Union's lead negotiator is
Robert Easter. The charge mentions, but does not name, the District's "lead negotiator." In
October 2008, the Union began attempting to bargain its "first contract" with the District. The
parties met approximately six times between November 7, 2008 and March 20, 2009.3
The
charge shows that the parties met an additional 12 times between April 27, 2009 and August
28, 2009.
The District is a public agency as defined in Government Code section 350l(c).
2 The MMBA is codified at Government Code section 3500 et seq. The text
of
the
MMBA and PERB Regulations may be found at www.perb.ca.gov.
3 The facts in this sentence are taken from the District's response to the charge.
Because the Union is alleging surface bargaining, it does not appear that the Union disputes the
fact that the parties met six time between November 2008 and March 2009. (See Service
Employees International Union #790 (Adza) (2004) PERB Decision No. 1632-M (Board agent
may rely on undisputed information not in the charge).)
Governor

SA-CE-624-M
May 26, 2010
Page 2
A. 	The Unilateral Change Allegations
( 1) 	Health Insurance
Prior to July 2009, the District provided the employees with "health insurance benefits." On
an unspecified date in "July 2009," the District "mailed" a letter "to all employees." The letter
"attempted" to "change" the employees' health insurance benefits. No other facts are alleged
in the charge regarding this incident.
(2) 	Disciplinary Procedures
Prior to September 2009, the District had a policy regarding "disciplinary procedures." On
some unspecified date in September 2009, the District "made unilateral changes" to the
disciplinary procedures and "refused to discuss these changes with the Union." No other facts
are alleged in the charge regarding this incident.
(3) 	Merit Pay
Prior to December 2008, the District had a "merit pay" policy. The charge does not describe or
include a copy of the policy. 	There "were three individuals" who were "entitled" to merit pay
raises in December 2008. The District gave those three individuals merit pay raises, although
they did not receive the raises until "around July 2009." On January 28, 2009, the District
"notified" the Union that it would not grant any other employees "merit" pay raises until the
Union "signed" a "contract" with the District.
B. 	The Surface Bargaining Allegations
(1) 	The Package Proposals
On June 15, 2009, the Union gave the District a "package proposal." The District "rejected"
the package and "insisted the parties go item by item."
On July 21, 2009, Easter told the District's lead negotiator that the Union wanted to present a
second package proposal. The District's lead negotiator told Easter to present the package "as
soon as possible." It is unclear whether Easter presented a second package proposal.
However, it is clear that on August 8, 2009, the District's lead negotiator said the District
would not "accept" a packages proposal, "but will only bargain item by item."
(2) 	Tentative Agreements
On some unspecified dates, the parities reached tentative agreements on "various provisions,"
including, but apparently not limited to, the following three "provisions": (1) "the recognition
of bargaining unit," (2) "Union membership," and (3) "hold over pay (sic)." According to the
charge, the District has since "withdrawn from those [tentative] agreements." It is not clear
from the charge whether the District has "withdrawn" from all of the "various" tentative

SA-CE-624-M
May 26, 2010
Page 3
agreements, or
just
"those [three tentative] agreements" particularized in the charge. 	Also, the
charge does not say "when" the District withdrew from the tentative agreements or "what,"
if
anything, the District said when it withdrew from the tentative agreements.
(3) 	End-of-Session Proposal
One paragraph in the charge reads in its
entirety-and
without
alteration-as
follows:
The Union presented the employer with proposals at the end
of
a session
and the employer shows up at the next session meeting without looking
at the proposal. The employer has also rejected proposals on the basis
that they haven't had time to really look at the proposals. The employer
has rejected such proposals that incorporate or are there current practices
and/or policies.
(4) 	Wages
As
of
August 28, 2009, the District "has refused to discuss any wage proposal."
(5) 	The "Current Practices" Proposal
On some unspecified date, the Union proposed that the parties incorporate into the contract the
District's "current practices," such as the District's current "pay day." On some unspecified
date, the District rejected the "current practices" proposal "without explanation."
DISCUSSION
A. 	Unilateral Changes
Unilateral changes are considered "per se" violations
of
the duty to bargain when the following
conditions are met: (1) the employer changes a policy concerning a matter within the scope
of
representation, and (2) the employer changes the policy before it notifies the union and gives it
an opportunity to request negotiations. (Vernon Fire Fighters
v.
City
of
Vernon (1980) 107
Cal.App.3d 802, 823 (Vernon Fire Fighters); Walnut Valley Unified School District (1981)
PERB Decision No. 160, p. 5; San Joaquin County Employees Association
v.
City
of
Stockton
(1984) 161 Cal.App.3d 813, 818; Grant Joint Unified High School District (1982) PERB
Decision No. 196, p. 9.)
(1) 	Health Insurance
The charge alleges that the District "attempted" to change health insurance benefits. An
"attempted" change is insufficient to establish a "per se" violation of the duty to bargain.
Rather, the employer must actually change an exiting policy. 	(See Vernon Fire Fighters,
supra, 107 Cal.App.3d at 823.) Accordingly, this part of the charge fails to allege a "per se"
violation of the duty to bargain under the MMBA.

SA-CE-624-M
May 26, 2010
Page 4
Additionally, even if PERB ignores the charge's use of the word "attempted," this part of the
charge nevertheless fails to allege some basic facts. It is a charging party's responsibility to
allege a "clear and concise statement of the facts and conduct alleged to constitute an unfair
practice." (Cal. Code Regs., tit. 8, § 32615 (a)( 5) (emphasis added).) That means the charge
must allege the "who, what, when, where and how" of an unfair practice. (United Teachers-
Los Angeles (Ragsdale) (1992) PERB Decision No. 944.) Mere legal conclusions are not
sufficient to state a prima facie case. (Ibid.; Charter Oak Unified School District (1991) PERB
Decision No. 873.)
Thus, in a unilateral change case, the charge should state "what" the original policy was,
"how" the new policy differs from the original policy, and "when" and "how" the employer
changed the original policy. The charge in this case does not allege facts sufficient to show
"what" the original health insurance benefits were, "how" the new benefits differ from the
original benefits, or "when" the District changed the benefits. (See Ragsdale, supra, PERB
Decision No. 944.) Accordingly, this part of the charge fails to allege an unlawful unilateral
change in health insurance benefits under the MMBA.
(2) 	Disciplinary Procedures
As with the health insurance benefits, the charge fails to allege facts to show "what" the
original "disciplinary procedures" were, "how" the new procedures differ from the original
procedures, or "when" the District changed the procedures. (See Ragsdale, supra, PERB
Decision No. 944 (who did what and when did they do it).) Accordingly, this part of the
charge fails to allege an unlawful unilateral change in disciplinary procedures under the
MMBA.
(3) 	Merit Pay
In this case, the District had a "merit pay" policy. The charge does not describe or include a
copy of that policy. It is therefore unclear whether the policy required-or permitted-the
District to grant merit raises. Without knowing "what" the District was required to do under
the original policy, it is impossible to tell whether the District implemented a new merit pay
policy or simply exercised rights granted by the original policy. Accordingly, this part of the
charge fails to show "what" changes the District made to the merit pay policy. (See Ragsdale,
supra, PERB Decision No. 944.)
Also, if the Union corrects the deficiencies decided above by amending the charge, the Union
should consider the six-month statute of limitations. Specifically, PERB is prohibited from
issuing a complaint based on conduct that occurred more than six months before the charge
was filed. 	(Coachella Valley Mosquito and Vector Control District v. Public Employment
Relations Board (2005) 35 Cal.4th 1072, 1077.) The limitations period begins to run once the
charging party k_nows, or should have known, of the underlying conduct. (Gavilan Joint
Community College District (1996) PERB Decision No. 1177.) A charging party bears the
burden of demonstrating that the charge is timely filed. 	(Tehachapi Unified School District

SA-CE-624-M
May 26, 2010
Page 5
(1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB
Decision No. 1197-S.)
In this case, the_Union filed the charge on October
1,
2009. Thus, PERB cannot issue a
complaint based on a unilateral change that occurred before April
1,
2009.
If
the District
changed the merit pay policy on or about January 28, 2009,
then-to
the extent the Union is
attempting to allege the change as a separate, "per se" violation
of
the duty to
bargain-the
District's alleged action falls outside the six-month statute
of
limitations.
B. 	Surface Bargaining
Despite the absence
of
a "per se" violation, a party may nevertheless violate the Act by
engaging in "surface" bargaining. It is the essence
of
surface bargaining that a party goes
through the motions
of
negotiations, but in fact is weaving otherwise unobjectionable conduct
into an entangling fabric to delay or prevent agreement. (Muroc Unified School District (1978)
PERB Decision No. 80, p. 13.) Where there is an accusation
of
surface bargaining, PERB will
resolve the question
of
good faith by analyzing the totality
of
the accused party's conduct. The
Board weighs the facts to determine whether the conduct at issue "indicates an intent to subvert
the negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified School District (1982) PERB Decision No. 275, p. 15.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude indicates bad faith because it suggests the respondent is merely going through the
motions
of
negotiations. (General Electric
Co.
(1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in scheduling can suggest an attempt to delay a timely agreement.
(Oakland Unified School District (1983) PERB Decision No. 326, p. 34 (Oakland).) 	Dilatory
and evasive tactics, including canceling meetings or failing to prepare for meetings, can also be
evidence
of
bad faith. 	(Ibid.) Conditioning agreement on economic matters upon prior
agreement on non-economic subjects can suggest an unwillingness to engage in the genuine
give-and-take
of
bargaining. (State
of
California (Department
of
Personnel Administration)
(1998) PERB Decision No. 1249-S (DPA).)
Other factors that indicate surface bargaining include: a negotiator's lack
of
authority that
delays and thwarts the bargaining process (Stockton Unified School District (1980) PERB
Decision No. 143, p. 25 (Stockton)); insistence on ground rules before negotiating substantive
issues (San Ysidro School District (1980) PERB Decision No. 134, pp. 13-14 (San Ysidro));
and reneging on tentative agreements (Charter Oak Unified School District (1991) PERB
Decision No. 873, p. 14 (Charter Oak); Stockton, supra, PERB Decision No. 143, pp.24-26;
Placerville Union School District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may lawfully
maintain an adamant position on any issue. Adamant insistence on a bargaining position is not
necessarily a refusal to bargain in good faith. 	( Oakland Unified School District, supra, PERB
Decision No. 275.) The obligation of a party to bargain in good faith "does not require the

SA-CE-624-M
May 26, 2010
Page 6
yielding of positions fairly maintained." (NLRB v. Herman Sausage Co. (5th Cir. 1960) 275
F.2d 229, 232.)
The specified indicia of surface bargaining are lacking in this case. For instance, the charge
does not allege that the District adopted a "take it or leave it" attitude. (General Electric Co.,
supra, 150 NLRB 192, 194, enf. 418 F.2d 736.) Indeed, the charge shows the District took the
exact opposite approach by negotiating "item by item." Nor does the charge allege that the
District was recalcitrant in scheduling meetings (Oakland, supra, PERB Decision No. 326, p.
34), that it cancelled scheduled meetings (ibid.), that its negotiator lacked authority (Stockton,
supra, PERB Decision No. 143, p. 25), that it insisted on ground rules before addressing
substantive questions (San Ysidro, supra, PERB Decision No. 134, pp. 13-14), or that it
conditioned economic progress on non-economic agreements (DP A, supra, PERB Decision
No. 1249~S).
As to possible indicia of surface bargaining mentioned in the charge, the alleged facts are
neither clear nor concise. (See Cal. Code Regs., tit. 8, § 32615(a)(5).) For instance, the charge
alleges that the District has "withdrawn" from "various" tentative agreements. (See Charter
Oak, supra, PERB Decision No. 873, p. 14.) But the charge is unclear as to how many
tentative agreements existed, which of those agreements the District repudiated, when the
District repudiated the agreements, and "who" from the District said "what" when the District
withdrew.
Similarly, the charge alleges that on at least one occasion, and possibly more, the Union gave
the District a proposal at the end of bargaining session and the District appeared at "the next
session meeting (sic) without looking at the proposal." The charge does not say "when" this
occurred or how often it occurred. Nor does the charge say "who" from the District said
"what"-if anything-to indicate that the District had not "look[ed] at the proposal" between
meetings.
Likewise, the charge alleges that as of August 28, 2009, the District "has refused to discuss
any wage proposal." The charge, however, fails to allege that the Union made a wage
proposal, "when" the Union made the wage proposal, or "what"-if anything--the District
said in response to the wage proposal.
Finally, the charge alleges that on some unspecified date, the District rejected "without
explanation" the Union's "current practices" proposal. As with the other parts of the charge,
this allegations lacks a clear and concise factual context. Nevertheless, even if it is assumed
that the District acted in a matter indicative of bad faith when it rejected the proposal "without
explanation," then the charge contains but one indicia of bad faith. 	As a general rule, one
indicia of bad faith is insufficient to establish surface bargaining. (Fresno County Office of
Education (1993) PERB Decision No. 975, pp. 9-10; DPA, supra, PERB Decision No. 1249-
S, p. 2 (adopting Board Agent's Warning Letter, p. 4).)

SA-CE-624-M
May 26, 2010
Page 7
CONCLUSION
For these reasons discussed above, the charge, as presently written, does not state a prima facie
case.4
If
there are any factual inaccuracies in this letter or additional facts that would correct
the deficiencies explained above, Charging Party may amend the charge. The amended charge
should be prepared on a standard PERB unfair practice charge form, clearly labeled First
Amended Charge, contain all the facts and allegations you wish to make, and be signed under
penalty
of
perjury by an authorized agent
of
Charging Party. The amended charge must have
the case number written on the top right hand comer
of
the charge form. The amended charge
must be served on the Respondent's representative and the original proof
of
service must be
filed with PERB.	
If
an amended charge or withdrawal is not filed on or before June 10, 2010,5 ·
PERB will dismiss your charge.
If
you have any questions, please call me at the above
telephone number.
Sincerely,
/7
( 	li;itry
J.
v1bbons, 	{
··-~senior Regional Attorney
v
·
HG
In Eastside Union School District (1984) PERB Decision No. 466, the Board
explained that a prima facie case is established where the Board agent is able to make
"adetermination that the facts as alleged in the charge state a legal cause of action and that the
charging party is capable of providing admissible evidence in support
of
the allegations.
Consequently, where the investigation results in receipt of conflicting allegations of fact or
contrary theories of law, fair proceedings,
if
not due process, demand that a complaint be
issued and the matter be sent to formal hearing." (lb id)
5 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 3213 5.)