Santa Monica Community College District (PERB 2243E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MONICA COLLEGE FACULTY
ASSOCIATION,
Charging Party,
V.
SANTA MONICA COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-5581-E
PERB Decision No. 2243
February 29, 2012
Appearances: Lawrence Rosenzweig, Attorney, for Santa Monica College Faculty
Association; Fagen, Friedman & Fulfrost by Anna J. Milller, Attorney, for Santa Monica
Community College District.
Before Martinez, Chair; McKeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Santa Monica College Faculty Association (Association)
of
the Office
of
the General Counsel's dismissal (attached)
of
its unfair practice charge. The
charge alleged that the Santa Monica Community College District (District) violated the
Educational Employment Relations Act (EERA)1 during contract negotiations for a successor
collective bargaining agreement (CBA) by violating the parties' ground rules and engaging in
surface bargaining. The charge alleged that this conduct constituted a violation
of
EERA
section 3543.5, subdivisions (a), (b) and (c).
The Office
of
the General Counsel dismissed the charge. The Board agent determined
that the allegation concerning violation of the parties' ground rules was untimely and that,
1EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.
Appearances: Lawrence Rosenzweig, Attorney, for Santa Monica College Faculty
Association; Fagen, Friedman & Fulfrost by Anna J. Milller, Attorney, for Santa Monica
Community College District.
The Office of the General Counsel dismissed the charge. The Board agent determined
that the allegation concerning violation of the parties' ground rules was untimely and that,
EERA is codified at Government Code section 3540 et seq. Unless otherwise indicated, all
statutory references herein are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA MONICA COLLEGE FACULTY
ASSOCIATION,
Charging Party,
V .
SANTA MONICA COMMUNITY COLLEGE
DISTRICT,
Respondent.
Case No. LA-CE-5581-E
PERB Decision No. 2243
February 29, 2012
Before Martinez, Chair; Mckeag and Dowdin Calvillo, Members.
DECISION
MARTINEZ, Chair: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Santa Monica College Faculty Association (Association) of
he Office of the General Counsel's dismissal (attached) of its unfair practice charge. The	t
charge alleged that the Santa Monica Community College District (District) violated the
Educational Employment Relations Act (EERA)' during contract negotiations for a successor
collective bargaining agreement (CBA) by violating the parties' ground rules and engaging i
surface bargaining. The charge alleged that this conduct constituted a violation of EERA
section 3543.5, subdivisions (a), (b) and (c).

notwithstanding the timeliness issue, the allegations taken together failed to state a prima facie
violation
of
the duty to bargain in good faith.
We have reviewed the entire record in this matter. Based on our review
of
the record
and application
of
the relevant law, the Board finds the Board agent's warning and dismissal
letters to be well-reasoned, adequately supported by the record and in accordance with the
applicable law. Accordingly, the Board adopts the warning and dismissal letters as the
decision
of
the Board itself, as supplemented by a brief discussion
of
the issues raised on
appeal.
DISCUSSION
The Board agent determined that the Association's allegation regarding the District's
violation
of
the parties' ground rules fell outside the six-month statutory limitations period.
The Association contends on appeal that the limitations period does not apply because the
District's alleged unlawful conduct is in the nature
of
a continuing violation.
The Association
is
the exclusive bargaining representative
of
a bargaining unit
composed
of
faculty members employed by the District. At the time the charge was filed, the
Association and the District were in negotiations for a successor CBA. On June 21, 2010, the
negotiators for each party executed a list
of
ground rules for the negotiations. The specific
ground rule alleged to have been violated by the District is: "9. Any tentative agreement shall
be reduced to writing and signed by a representative
of
each party."
The Association alleged that the parties reached agreement on several articles
of
the
CBA on July 14 and 	28, 2010. The Association also alleged that in negotiations for
previous CBAs, the parties had always signed off on "tentative agreements as they were
reached at the bargaining table." Further, the Association alleged that on January 25 and
March 30, 2011, the District distributed a document entitled "Status of Negotiations" stating
2
notwithstanding the timeliness issue, the allegations taken together failed to state a prima facie
violation of the duty to bargain in good faith.
We have reviewed the entire record in this matter. Based on our review of the record
and application of the relevant law, the Board finds the Board agent's warning and dismissal
letters to be well-reasoned, adequately supported by the record and in accordance with the
applicable law. Accordingly, the Board adopts the warning and dismissal letters as the
decision of the Board itself, as supplemented by a brief discussion of the issues raised on
appeal.
The Association is the exclusive bargaining representative of a bargaining unit
composed of faculty members employed by the District. At the time the charge was filed, the
Association and the District were in negotiations for a successor CBA. On June 21, 2010, the
negotiators for each party executed a list of ground rules for the negotiations. The specific
ground rule alleged to have been violated by the District is: "9. Any tentative agreement shall
be reduced to writing and signed by a representative of each party."
The Association alleged that the parties reached agreement on several articles of the
CBA on July 14 and July 28, 2010. The Association also alleged that in negotiations for
previous CBAs, the parties had always signed off on "tentative agreements as they were
reached at the bargaining table." Further, the Association alleged that on January 25 and
March 30, 2011, the District distributed a document entitled "Status of Negotiations" stating
DISCUSSION
The Board agent determined that the Association's allegation regarding the District's
violation of the parties' ground rules fell outside the six-month statutory limitations period.
The Association contends on appeal that the limitations period does not apply because the
District's alleged unlawful conduct is in the nature of a continuing violation.
2

that the articles on which the parties reached agreement were no longer open for discussion;
that at a negotiation session on April 18, 2011, the Association requested that the District sign
off
on the articles on which the parties reached agreement; and that to date, the District has
failed to do so.
PERB is prohibited from issuing a complaint
"in
respect
of
any charge based upon an
alleged unfair practice occurring more than six months prior to the filing
of
the charge."
(EERA § 3541.5, subd. (a)(l).) The limitations period begins to run once the charging
party
knows, or should have known,
of
the conduct underlying the charge. (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
(1993) PERB Decision No. 1024; State
of
California (Department
of
Insurance) (1997) PERB
Decision No. 1197-S.)
3
The unfair practice charge was filed on June 20, 2011. The limitations period therefore
extends back to December 20, 2010. Because it is the Association's position that the parties
were required to sign
off
on "tentative agreements as they were reached at the bargaining
table,"2 the Association knew or should have known that the District violated the ground rules
as to the agreed upon articles
of
the CBA when those agreements were reached at the
bargaining table on July 14 and July 28, 2010. As this allegation concerns conduct that
occurred outside the limitations period, it is time-barred. The Board agent further correctly
determined that the Association's April 18, 2011, request that the District sign off on the
The District argues that under the ground rule at issue it was only required to sign one
final tentative agreement at the conclusion
of
contract negotiations, emphasizing that the
ground rule refers to "tentative agreement" in the singular, not in the plural. Given the
conclusion reached in this decision that the Association's allegation concerning the District's
violation of the ground rules is time-barred, it is unnecessary to address the parties' conflicting
interpretations of the ground rule.
that the articles on which the parties reached agreement were no longer open for discussion;
that at a negotiation session on April 18, 2011, the Association requested that the District sign
off on the articles on which the parties reached agreement; and that to date, the District has
failed to do so.
PERB is prohibited from issuing a complaint "in respect of any charge based upon an
alleged unfair practice occurring more than six months prior to the filing of the charge."
(EERA $ 3541.5, subd. (a)(1).) The limitations period begins to run once the charging party
knows, or should have known, of the conduct underlying the charge. (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
(1993) PERB Decision No. 1024; State of California (Department of Insurance) (1997) PERB
Decision No. 1197-S.)
The unfair practice charge was filed on June 20, 2011. The limitations period therefore
extends back to December 20, 2010. Because it is the Association's position that the parties
were required to sign off on "tentative agreements as they were reached at the bargaining
table," the Association knew or should have known that the District violated the ground rules
as to the agreed upon articles of the CBA when those agreements were reached at the
bargaining table on July 14 and July 28, 2010. As this allegation concerns conduct that
occurred outside the limitations period, it is time-barred. The Board agent further correctly
determined that the Association's April 18, 2011, request that the District sign off on the
The District argues that under the ground rule at issue it was only required to sign one
final tentative agreement at the conclusion of contract negotiations, emphasizing that the
ground rule refers to "tentative agreement" in the singular, not in the plural. Given the
conclusion reached in this decision that the Association's allegation concerning the District's
violation of the ground rules is time-barred, it is unnecessary to address the parties' conflicting
interpretations of the ground rule.
3

tentative agreements reached on July
14
and July 28, 2010, did not restart the limitations
period. 	(See, e.g., Los Angeles City & County Employees Union, Local 99 (Grove) (2008)
PERB Decision No. 1973.)
The Association argues that the District's alleged refusal to sign off on the tentative
agreements reached concerning certain articles
of
the CBA on July
14
and July 28, 2010, in
violation
of
the parties' ground rules, is a continuing violation and therefore the statutory
limitations period does not apply. We disagree.
To establish a continuing violation, a charging party must show that there is some new
violation, sufficiently independent
of
the original act, occurring within the statutory limitations
period. (North Orange County Community College District (1999) PERB Decision No. 1342.)
A continuing violation is not found where an employer's conduct during the statutory
limitations period is simply maintaining the original position or action it took outside the
limitations period. (Compton Unified School District (2009) PERB Decision No. 2015
[employer's maintenance
of
position taken that employees were exempt until reclassified did
not constitute a continuing violation]; UCLA Labor Relations Division (1989) PERB Decision
No. 735-H [university's failure to change its position did not constitute a continuing
violation].) As the Board stated in Pasadena Unified School District (1977) EERB3 Decision
No. 16, "[a]ll alleged unlawful conduct
of
the respondent [respondent's failure to remove
letters from personnel files] occurred in 1974. A claim based thereon cannot continue without
end."
4
The Association alleges that the ground rule at issue required the District to sign off on
"tentative agreements as they were reached at the bargaining table." Those agreements were
Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).
tentative agreements reached on July 14 and July 28, 2010, did not restart the limitations
period. (See, e.g., Los Angeles City & County Employees Union, Local 99 (Grove) (2008)
PERB Decision No. 1973.)
The Association argues that the District's alleged refusal to sign off on the tentative
agreements reached concerning certain articles of the CBA on July 14 and July 28, 2010, in
violation of the parties' ground rules, is a continuing violation and therefore the statutory
limitations period does not apply. We disagree.
To establish a continuing violation, a charging party must show that there is some new
violation, sufficiently independent of the original act, occurring within the statutory limitations
period. (North Orange County Community College District (1999) PERB Decision No. 1342.)
A continuing violation is not found where an employer's conduct during the statutory
limitations period is simply maintaining the original position or action it took outside the
limitations period. (Compton Unified School District (2009) PERB Decision No. 2015
[employer's maintenance of position taken that employees were exempt until reclassified did
not constitute a continuing violation]; UCLA Labor Relations Division (1989) PERB Decision
No. 735-H [university's failure to change its position did not constitute a continuing
violation].) As the Board stated in Pasadena Unified School District (1977) EERB' Decision
No. 16, "[alll alleged unlawful conduct of the respondent [respondent's failure to remove
letters from personnel files] occurred in 1974. A claim based thereon cannot continue without
end."
The Association alleges that the ground rule at issue required the District to sign off on
"tentative agreements as they were reached at the bargaining table." Those agreements were
"Prior to January 1, 1978, PERB was known as the Educational Employment Relations
Board (EERB).

reached on July 14 and July 28, 2010. If violations of the ground rule occurred, they occurred
when the District did not sign off on those tentative agreements at or about the time those
agreements were reached at the bargaining table. It is recognized that the District's duty to
negotiate with the Association continues throughout their negotiating relationship. That does
not mean, however, that an alleged violation of that duty retains its unlawful character on a
continuing basis for that length of time. A claim based on the District's failure to sign
tentative agreements reached on July 14 and July 28, 2010, should have been brought within
six months of that time. 	Such a claim cannot continue without end.
Moreover, the Board agent correctly determined that neither of the allegations in the
amended charge established any indicia of bad faith bargaining. Nothing raised on appeal
alters that determination. Therefore even assuming the allegation in the original charge
concerning a violation of the ground rules is timely, under the totality of the circumstances
test, a single indicia of bad faith bargaining is insufficient to establish a prima facie violation.
(State of California (Department of Personnel Administration) (2003) PERB Decision
No. 1516-S [single allegation of the employer reneging on the ground rules insufficient to
demonstrate bad faith bargaining].)
ORDER
The unfair practice charge in Case No. LA-CE-5581-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members McKeag and Dowdin Calvillo joined in this Decision.
5
reached on July 14 and July 28, 2010. If violations of the ground rule occurred, they occurred
when the District did not sign off on those tentative agreements at or about the time those
agreements were reached at the bargaining table. It is recognized that the District's duty to
negotiate with the Association continues throughout their negotiating relationship. That does
not mean, however, that an alleged violation of that duty retains its unlawful character on a
continuing basis for that length of time. A claim based on the District's failure to sign
tentative agreements reached on July 14 and July 28, 2010, should have been brought within
six months of that time. Such a claim cannot continue without end.
Moreover, the Board agent correctly determined that neither of the allegations in the
amended charge established any indicia of bad faith bargaining. Nothing raised on appeal
alters that determination. Therefore even assuming the allegation in the original charge
concerning a violation of the ground rules is timely, under the totality of the circumstances
test, a single indicia of bad faith bargaining is insufficient to establish a prima facie violation.
(State of California (Department of Personnel Administration) (2003) PERB Decision
No. 1516-S [single allegation of the employer reneging on the ground rules insufficient to
demonstrate bad faith bargaining].)
ORDER
The unfair practice charge in Case No. LA-CE-5581-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Mckeag and Dowdin Calvillo joined in this Decision.
5

STATE OF CALIFORNIA 	EDMUND G. BROWN JR., Governor
PUBLI_C EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (8 l 8) 551-2808
Fax: (8 l 8) 551-2820
November I 0, 2011
Lawrence Rosenzweig, Attorney
Law Offices of Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	Santa Monica College Faculty Association v. Santa Monica Community College
District
Unfair Practice Charge No. LA-CE-5581-E
DISMISSAL LETTER
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2011. The Santa Monica College Faculty Association
(Association or Charging Party) alleges that the Santa Monica Community College District
(District or Respondent) violated section 3543.5, subdivisions (a), (b), and (c) of the
Educational Employment Relations Act (EERA or Act) 1 by engaging in surface bargaining.
-·	Charging Party was informed in the attached Warning Letter dated October 14, 2011, that the
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, Charging Party should amend the charge. 	Charging Party was further
advised that, unless Charging Party amended the charge to state a prima facie case or withdrew
it prior to October 21, 2011, the charge would be dismissed. Charging Party filed a First
Amended Charge on October 19, 2011. 	·
In the Warning Letter, Charging Party \Vas advised that the cbarge's allegation that the District
violated the parties' ground rules on July 14, 2010 and July 28,2010 was outside the six-
month statutory period. 	Charging Party was further advised that even if this allegation is
timely, the mere presence of one indicia of surface bargaining alone is insufficient to establish
bad faith. 	(Regents of the University of California (1985) PERB Decision No. 520-H.)
The First Amended Charge provides the following additional facts, in verbatim:
On June 29, 2011, July 12, 2011, September 19, 2011 and
September 26, 2011, the District came to bargaining sessions
without any written proposals or counter-proposals. The lack of
1 EERP-~ is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2011. The Santa Monica College Faculty Association
(Association or Charging Party) alleges that the Santa Monica Community College District
(District or Respondent) violated section 3543.5, subdivisions (a), (b), and (c) of the
Educational Employment Relations Act (EERA or Act)'	ucational Employment Relations 	by
ett
Ed
Ch	Charging Party was informed in the attached Warning L	arging Party was informed in the a
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
EDMUND G. BROWN JR., Governor	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2808
Fax: (818) 551-2820
November 10, 2011
Lawrence Rosenzweig, Attorney
Law Offices of Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	Santa Monica College Faculty Association v. Santa Monica Community College
District
Unfair Practice Charge No. LA-CE-5581-E
DISMISSAL LETTER
above-referenced charge did not state a prima facie case. Charging Party was advised that, if
there were any factual inaccuracies or additional facts that would correct the deficiencies
explained in that letter, Charging Party should amend the charge. Charging Party was further
advised that, unless Charging Party amended the charge to state a prima facie case or withdrew
it prior to October 21, 2011, the charge would be dismissed. Charging Party filed a First
Amended Charge on October 19, 2011.
In the Warning Letter, Charging Party was advised that the charge's allegation that the District
violated the parties' ground rules on July 14, 2010 and July 28, 2010 was outside the six-
month statutory period. Charging Party was further advised that even if this allegation is
timely, the mere presence of one indicia of surface bargaining alone is insufficient to establish
bad faith. (Regents of the University of California (1985) PERB Decision No. 520-H.)
The First Amended Charge provides the following additional facts, in verbatim:
On June 29, 2011, July 12, 2011, September 19, 2011 and
September 26, 2011, the District came to bargaining sessions
without any written proposals or counter-proposals. The lack of

LA-CE-5581-E
November 10, 2011
Page 2
written proposals from the District made it impossible to make
any progress towards agreement and demonstrates the District's
"take it or leave it" attitude.
This inflexible attitude
is
also reflected in negotiations regarding
Article 1.4
of
the collective bargaining agreement. 	On October
17,
2011, the District proposed modifications to Article 1.4 and
refused to entertain any counterproposals from the Association.
The District stated it would not allow any modifications
whatsoever by the Association.
The District provided the following undisputed facts.2 During the parties June 29, 2011
negotiations session, the Association presented the District with several proposals, which the
District reviewed and stated that it would respond to at the next session. At the July 12, 2011
session, the District accepted several of the Association's proposals. Furthermore, during the
parties' July 26, 2011 session, the District presented a revised proposal to the Association as
well as worked with the Association to revise a Memorandum
of
Understanding (MOU)
regarding flex day obligations. During the September 19, 2011 session, the District accepted
several
of
the Association's proposals and rejected one proposal. On September 26, 2011, the
parties signed an MOU regarding flex time and agreed on revised language for another
proposal.
As an initial matter, because the First Amended Charge alleges additional factors that are
within the six-month statutory period, the untimely allegation regarding the District's violation
of
the parties' ground rules may be considered for purposes
of
analyzing the totality
of
the
District's course
of
conduct in bargaining. 	(Gavilan Joint Community College District (1996)
PERB Decision No. 1177.) As explained below, the charge still fails to state a prima facie
violation
of
bad faith bargaining.
PERB Regulation 32615(a)(5)3 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.) Here, Charging Party merely
2 The District provided a response to the First Amended Charge on November 2, 2011.
Nothing in 	case law requires a Board agent to ignore undisputed facts provided by the
Respondent and consider only the facts provided by the Charging Party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)
3 PERB Regulations. are codified at California Code of Regulations, title 8, section
31001 et seq.
The District provided the following undisputed facts." During the parties June 29, 201 1
negotiations session, the Association presented the District with several proposals, which the
District reviewed and stated that it would respond to at the next session. At the July 12, 201 1
session, the District accepted several of the Association's proposals. Furthermore, during the
parties' July 26, 201 1 session, the District presented a revised proposal to the Association as
well as worked with the Association to revise a Memorandum of Understanding (MOU)
egarding flex day obligations. During the September 19, 2011 session, the District accepted	r
several of the Association's proposals and rejected one proposal. On September 26, 2011, the
parties signed an MOU regarding flex time and agreed on revised language for another
proposal.
As an initial matter, because the First Amended Charge alleges additional factors that are
within the six-month statutory period, the untimely allegation regarding the District's violation
of the parties' ground rules may be considered for purposes of analyzing the totality of the
District's course of conduct in bargaining. (Gavilan Joint Community College District (1996)
PERB Decision No. 1177.) As explained below, the charge still fails to state a prima facie
violation of bad faith bargaining.
The District provided a response to the First Amended Charge on November 2, 2011.
Nothing in PERB case law requires a Board agent to ignore undisputed facts provided by the
Respondent and consider only the facts provided by the Charging Party. (Service Employees
International Union #790 (Adza) (2004) PERB Decision No. 1632-M.)
ERB Regulations are codified at California Code of Regulations, title 8, section	P
31001 et seq.
LA-CE-5581-E
November 10, 2011
Page 2
written proposals from the District made it impossible to make
any progress towards agreement and demonstrates the District's
"take it or leave it" attitude.
This inflexible attitude is also reflected in negotiations regarding
Article 1.4 of the collective bargaining agreement. On October
17, 2011, the District proposed modifications to Article 1.4 and
refused to entertain any counterproposals from the Association.
The District stated it would not allow any modifications
whatsoever by the Association.
PERB Regulation 32615(a)(5)' 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.) Here, Charging Party merely

LA-CE-5581-E
November 10, 2011
Page 3
concludes that because the District came to several bargaining sessions without any proposals
or counterproposals, the District exhibited a "take-it-or-leave-it" attitude. The charge fails to
satisfy its burden of alleging clear and concise facts regarding what proposals the District
failed to make or respond to, and how the District's failure to make proposals or
counterproposals demonstrated a "take-it-or-leave-it" attitude. 	(PERB Regulation 32615(a)(5);
State of California (Department of Food and Agriculture), supra, PERB Decision No. 1071-S.)
In fact, PERB has held that.an employer is not obligated to make a counterproposal to a
union's proposal that is predictably unacceptable. (Regents of the University of California
(2010) PERB Decision No. 2094-H.) The charge does not allege any facts regarding what
proposals were made by the Association, therefore making it is impossible to determine
whether the District had any obligation to respond to them. Moreover, despite the non-
presentation of District proposals during these negotiating sessions, the District accepted
several of the Association's proposals and revised others. Further, on July 26, 2011, the
District presented a revised proposal to the Association. Accordingly, the charge fails to
demonstrate that the District exhibited a "take-it-or-leave-it" attitude during negotiations.
(General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d 736; Charter Oak Unified
School District, supra, PERB Decision No. 873.)
The charge also alleges that the District refused to entertain the Association's proposed
modifications to Article 1.4. PERB has made clear 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 refusal to bargain in good faith. 	( Oakland
Unified School District (1982) PERB Decision No. 275.) "The obligation of the employer to
bargain in good faith does not require the yielding of positions fairly maintained." (NLRB v.
Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229.) Accordingly, the District's adamant
position on refusing to modify Article 1.4 is not necessarily bad faith bargaining. Moreover,
the charge fails to allege any facts suggesting that the District's position on Article 1 .4 was not
fairly maintained. (NLRB v. Herman Sausage Co., supra, 275 F.2d 229.)
As the First Amended Charge fails to establish an additional indicia of surface bargaining, the
single allegation that the District reneged on the ground rules by refusing to sign the tentative
agreements when they were reached is insufficient to establish bad faith bargaining. (State of
California (Department of Personnel Administration) (2003) PERB Decision No. 1516-S;
Regents of the University of California, supra, PERB Decision No. 520-H.) Therefore, the
charge is hereby dismissed based on the facts and reasons set forth above and in the October
14, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 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.
Page 3
concludes that because the District came to several bargaining sessions without any proposals
or counterproposals, the District exhibited a "take-it-or-leave-it" attitude. The charge fails to
satisfy its burden of alleging clear and concise facts regarding what proposals the District
failed to make or respond to, and how the District's failure to make proposals or
counterproposals demonstrated a "take-it-or-leave-it" attitude. (PERB Regulation 32615(a)(5);
State of California (Department of Food and Agriculture), supra, PERB Decision No. 1071-S.)
In fact, PERB has held that an employer is not obligated to make a counterproposal to a
union's proposal that is predictably unacceptable. (Regents of the University of California
(2010) PERB Decision No. 2094-H.) The charge does not allege any facts regarding what
proposals were made by the Association, therefore making it is impossible to determine
whether the District had any obligation to respond to them. Moreover, despite the non-
presentation of District proposals during these negotiating sessions, the District accepted
several of the Association's proposals and revised others. Further, on July 26, 2011, the
District presented a revised proposal to the Association. Accordingly, the charge fails to
demonstrate that the District exhibited a "take-it-or-leave-it" attitude during negotiations.
(General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d 736; Charter Oak Unified
School District, supra, PERB Decision No. 873.)
The charge also alleges that the District refused to entertain the Association's proposed
modifications to Article 1.4. PERB has made clear 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 refusal to bargain in good faith. (Oakland
Unified School District (1982) PERB Decision No. 275.) "The obligation of the employer to
bargain in good faith does not require the yielding of positions fairly maintained." (NLRB v.
Herman Sausage Co. (5th Cir. 1960) 275 F.2d 229.) Accordingly, the District's adamant
position on refusing to modify Article 1.4 is not necessarily bad faith bargaining. Moreover,
the charge fails to allege any facts suggesting that the District's position on Article 1.4 was not
fairly maintained. (NLRB v. Herman Sausage Co., supra, 275 F.2d 229.)
As the First Amended Charge fails to establish an additional indicia of surface bargaining, the
single allegation that the District reneged on the ground rules by refusing to sign the tentative
agreements when they were reached is insufficient to establish bad faith bargaining. (State of
California (Department of Personnel Administration) (2003) PERB Decision No. 1516-S;
Regents of the University of California, supra, PERB Decision No. 520-H.) Therefore, the
charge is hereby dismissed based on the facts and reasons set forth above and in the October
14, 2011 Warning Letter.
Right to Appeal
Pursuant to PERB Regulations, 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.
LA-CE-5581-E
November 10, 2011

LA-CE-5581-E
November 10, 2011
Page 4
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
1031 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, tit. 8, § 32635, subd. (b).)
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. Adocument
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.)
A document is considered "filed" when actually received during a regular PERB business day.
Cal. Code Regs, tit. 8, $5 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
1031 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, tit. 8, $ 32635, subd. (b).)
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.)
LA-CE-5581-E
November 10, 2011
Page 4

LA-CE-5581-E
November 10, 2011
Page 5
By--=-Vk
	__
	v).J_:)
__
_
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
By
Ellen Wu
Regional Attorney
Attachment
cc: 	Howard Friedman, Attorney
LA-CE-5581-E
November 10, 2011
Page 5
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
M. SUZANNE MURPHY
General Counsel
Ellen Wu
Regional Attorney
Attachment
cc: Howard Friedman, Attorney

STATE
OF
CALIFORNIA	
EDMUND
G.
BROWN JR.,
Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
PER.B
Los Angeles Regional Office
700
N.
Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2808
Fax: (818) 551-2820
October 14, 2011
Lawrence Rosenzweig, Attorney
Law Offices
of
Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	Santa Monica College Faculty Association
v.
Santa Monica Community College
District
Unfair Practice Charge No. LA-CE-5581-E
WARNING LETTER
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20,201
l.
	The Santa Monica College Faculty Association
(Association or Charging Party) alleges that the Santa Monica Community College District
(District or Respondent) violated section 3543.5, subdivisions (a), (b), and (c)
of
the
Educational Employment Relations Act (EERA or Act)1 by violating the parties' ground rules
during contract negotiations.
Facts as Alleged2
The Association is the exclusive representative
of
a bargaining unit comprised
of
faculty
employees at the District. In or about June 2010, the parties began negotiations for a successor
collective bargaining agreement (CBA).
On June 21, 2010, the parties executed a list
of
ground rules for their negotiations. Item 9
of
the ground rules provides:
Any tentative agreement shall be reduced to writing and signed
by a representative of each party.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
2 The District provided a response to the charge on July 15, 2011. Some of the facts
recited herein are provided by the District. Nothing in PERB case law requires a Board agent
to ignore undisputed facts provided by the Respondent and consider only the facts provided by
the Charging Party. (Service Employees International Union #790 (Adza) (2004) PERB
Decision No. 1632-M.)
Facts as Alleged
On June 21, 2010, the parties executed a list of ground rules for their negotiations. Item 9 of
the ground rules provides:
Any tentative agreement shall be reduced to writing and signed
by a representative of each party.
EERA is codified at Government Code section 3540 et seq. The text of the EERA and
PERB Regulations may be found at www.perb.ca.gov.
The District provided a response to the charge on July 15, 2011. Some of the facts
recited herein are provided by the District. Nothing in PERB case law requires a Board agen
to ignore undisputed facts provided by the Respondent and consider only the facts provided by
the Charging Party. (Service Employees International Union #790 (Adza) (2004) PERB
Decision No. 1632-M.)
EDMUND G. BROWN JR., Governor
	STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
700 N. Central Ave., Suite 200
Glendale, CA 91203-3219
Telephone: (818) 551-2808
Fax: (818) 551-2820
October 14, 2011
Lawrence Rosenzweig, Attorney
Law Offices of Lawrence Rosenzweig
2730 Wilshire Blvd., Suite 425
Santa Monica, CA 90403
Re: 	anta Monica College Faculty Association v. Santa Monica Community College	S
District
Unfair Practice Charge No. LA-CE-5581-E
WARNING LETTER
Dear Mr. Rosenzweig:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on June 20, 2011. The Santa Monica College Faculty Association
(Association or Charging Party) alleges that the Santa Monica Community College District
(District or Respondent) violated section 3543.5, subdivisions (a), (b), and (c) of the
Educational Employment Relations Act (EERA or Act)' by violating the parties' ground rules
during contract negotiations.
The Association is the exclusive representative of a bargaining unit comprised of faculty
employees at the District. In or about June 2010, the parties began negotiations for a successor
collective bargaining agreement (CBA).

LA-CE-5581-E
October 14, 2011
Page 2
The charge asserts that during negotiations for prior collective bargaining agreements, the
parties have always memorialized and signed tentative agreements "as they were reached at
· the bargaining table."
During the course
of
the parties' current negotiations for a successor CBA, they reached
tentative agreements on the following:
1.	
Article 24.5
-Team
Teaching. Tentative agreement reached on July 14, 2010.
2.	
Article 30.1, 30.2 - Employee Rights; A1iicle 6.4, 6.5.1 - Faculty Assignment and
Load; Article 9.5.3, 9.5.4 	Intersession Assignments; and Article 18.5 	Safety,
Health and Welfare. Tentative agreements reached on July 28, 2010.
The charge provides that the above tentative agreements were reduced to writing, and the
Association requested that the District sign the same at a negotiation session on April 18,
2011. Additionally, on January 25, 2011 and March 30, 2011, the District distributed
documents entitled "Status
of
Negotiations," which stated that the above agreed-upon articles
were no longer open for discussion.
The District, nevertheless, has refused to sign the written tentative agreements.
Discussion
1.
	Statute
of
Limitations
The charging party's burden includes alleging facts showing that the unfair practice charge was
timely filed; i.e., that the alleged unfair practice occurred no more than six months prior to the
filing
of
the charge. (LosAngeles Unified School District (2007) PERB Decision No. 1929;
City
of
Santa Barbara (2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing
a complaint with respect to any charge based upon an alleged unfair practice occurring more
than six months prior to the filing
of
the charge. (Coachella Valley Mosquito and Vector
Control District
v.
Public Employment Relations Board (2005) 35 Cal.4th 1072.) The
limitations period begins to run once the charging party knows, or should have known,
of
the
conduct underlying the charge. ( Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
In this case, the charge was filed on June 20, 2011. This means that the six-month statutory
period extends back until December 20, 2010. Accordingly, any allegations
of
wrongdoing by
the District occurring prior to December 20, 2010 are untimely unless an exception applies.
The charge alleges that the parties' ground rules and past practice require the parties to sign off
on tentative agreements "as they are reached at the bargaining table." Here, since the parties
reached tentative agreements regarding several articles on July 14, 2010 and July 28, 2010,
they should have signed off on these agreements on or about those same dates. However, to
date, the District has refused to do so. As provided above, the statutory period begins to run
The charge asserts that during negotiations for prior collective bargaining agreements, the
parties have always memorialized and signed tentative agreements "as they were reached at
tthe bargaining table."
During the course of the parties' current negotiations for a successor CBA, th	D 	ey r	uring
tentative agreements on the following:
1. Article 24.5 - Team Teaching. Tentative agreement reached on July 14, 2010.
rticle 30.1, 30.2 - Employee Rights; Article 6.4, 6.5.1 - Faculty Assignment and
Load; Article 9.5.3, 9.5.4 - Intersession Assignments; and Article 18.5 - Safety,
Health and Welfare. Tentative agreements reached on July 28, 2010.
The charge provides that the above tentative agreements were reduced to writing, and the
Association requested that the District sign the same at a negotiation session on April 18,
2011. Additionally, on January 25, 201 1 and March 30, 2011, the District distributed
documents entitled "Status of Negotiations," which stated that the above agreed-upon articles
were no longer open for discussion.
tatute of Limitations
The charging party's burden includes alleging facts showing that the unfair practice charge was
timely filed; i.e., that the alleged unfair practice occurred no more than six months prior to the
filing of the charge. (Lo
City of Santa Barbara
s Angeles Unified School District (2007) PERB Decision No. 1929;
(2004) PERB Decision No. 1628-M.) PERB is prohibited from issuing
a complaint with respect to any charge based upon an alleged unfair practice occurring more
than six	than s 	months prior to the filing of the charge. (Coachella Valley Mosquito and
Control District v. Public Employment Relations Board (2005) 35 Cal.4th 1072.) The
limitations period begins to run once the charging party knows, or should have known, of the
conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB
Decision No. 1177.)
six-month statutory	he	In this case, the charge was filed on June 20, 2011. This means that t
period extends back until December 20, 2010. Accordingly, any allegations of wrongdoing by
the District occurring prior to December 20, 2010 are untimely unless an exception applies.
The charge alleges that the parties' ground rules and past practice require the parties to sign off
on tentative agreements "as they are reached at the bargaining table." Here, since the parties
reached tentative agreements regarding several articles on July 14, 2010 and July 28, 2010,
they should have signed off on these agreements on or about those same dates. However, to
date, the District has refused to do so. As provided above, the statutory period begins to run
LA-CE-5581-E
October 14, 2011
Page 2
2. A
The District, nevertheless, has refused to sign the written tentative agreements.
Discussion
1. S

LA-CE-5581-E
October 14, 2011
Page 3
once the charging party knows, or should have known,
of
the conduct underlying the charge.
(Gavilan Joint Community College District, supra, PERB Decision No. 1177.) Here, the
Association knew on July
14
and 28, 2010, or soon thereafter, that the District had failed to
sign
off
on the tentative agreements. Accordingly, these allegations occurred outside the
statutory period and therefore fail to state a prima facie case.
The charge also fails to establish that an exception applies. The charge alleges that the
Association asked the District to sign these tentative agreements on April 18, 2011, nearly nine
months after the agreements were reached at the bargaining table. 	Once the statutory period
begins to run, it does not begin anew by making the same request. (JFPTE, Local
21,
AFL-
CI0
(2011) PERB Decision No. 2i92-M; Los Angeles City & County Employees Union, Local
99 (Grove) (2008) PERB Decision No. 1973.) Accordingly, the Association's April 18, 2011
request that the District sign off on the tentative agreements does not restart the statutory
period.
2.
	Failure to Bargain in Good Faith
Even
if
the allegations are timely, the charge fails to state a prima facie violation
of
the duty to
bargain.
The charge alleges that the employer violated EERA section 3543.5(c) by engaging in bad
faith or "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.) Where there is an accusation
of
surface bargaining, PERB will resolve the
question
of
good faith by analyzing the totality
of
the accused party's conduct. The Board
weighs the facts to determine whether the conduct at issue "indicates an intent to subvert the
negotiating process or is merely a legitimate position adamantly maintained." (Oakland
Unified School District (1982) PERB Decision No. 275.)
The indicia
of
surface bargaining are many. Entering negotiations with a "take-it-or-leave-it"
attitude evidences a failure
of
the duty to bargain because it amounts to merely going through
the motions
of
negotiations. (General Electric
Co.
(1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in the scheduling of meetings is evidence
of
manipulation to delay and
obstruct a timely agreement. (Oakland Unified School District (1983) PERB Decision No.
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence of bad faith. 	(Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence
of
an unwillingness to engage in a give-
and-take. (State
of
California (Department
of
Personnel Administration) (1998) PERB
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
( 1980) PERB Decision No, 143 ); efforts to renege on previously agreed on ground rules
(Stockton Unified School District (1980) PERB Decision No. 143); and reneging on tentative
once the charging party knows, or should have known, of the conduct underlying the charge.
(Gavilan Joint Community College District, supra, PERB Decision No. 1177.) Here, the
Association knew on July 14 and 28, 2010, or soon thereafter, that the District had failed to
sign off on the 	r	sign off on the tentative agreements. Accordingly, these allegations occu
statutory period and therefore fail to state a prima facie case.
charge also fails to establish that an	The	The charge	Th 	also fails to establish that an e	e
Association asked the	Association asked the District to sign these tentative agreements on April 1
months after the agreements were reached at the bargaining table. Once the statutory period
begins to run, it does not begin anew by making the same request. (IFPTE, Local 21, AFL-
CIO (2011) PERB Decision No. 2192-M; Los Angeles City & County Employees Union, Local
99 (Grove)	99 (Grove) (2008) PERB Decision No. 1973.) Accordingly, the Association's April
equest that 	t	rrequest that the District sign off on the tentative agreements does not restart
period.
Even if the allegations are timely, the charge fails to state a prima facie violation of the duty to
bargain.
The charge alleges that the employer violated EERA section 3543.5(c) by engaging in bad
faith or "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.) 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.)
it-or-leave-it"	The indicia of surface bargaining are many. Entering negotiations with a "take-
attitude evidences a failure of the dut	attitude evidences a failure of the d	attitude evid 	uty t	e
the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194, enf. 418 F.2d
736.) Recalcitrance in the scheduling of meetings is evidence of manipulation to delay and
P	obstruct a timely	obstruct a timely agreement. (Oakland Unified School District (1983)
326.) Dilatory and evasive tactics including canceling meetings or failing to prepare for
meetings is evidence of bad faith. (Ibid.) Conditioning agreement on economic matters upon
prior agreement on non-economic subjects is evidence of an unwillingness to engage in a give-
and-take. (State of California (Department of P	and-take. (State of California (Depar
Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include: negotiator's lack
of authority which delays and thwarts the bargaining process (Stockton Unified School District
(1980) PERB Decision No. 143); efforts to renege on previously agreed on ground rules
(Stockton Unified School District (1980) PERB Decision No. 143); and reneging on tentative
LA-CE-5581-E
October 14, 2011
Page 3
2. Failure to Bargain in Good Faith

LA-CE-5581-E
October
14,
2011
Page 4
agreements the parties already have made (Charter Oak Unified School District ( 1991) PERB
Decision No. 873; Stockton Unified School District, supra; Placerville Union School District
(1978) PERB Decision No. 69).
In the instant charge, the single allegation that the District reneged on the ground rules
by
refusing to sign the tentative agreements when they were reached is insufficient to establish
bad faith bargaining. (State
of
California (Department
of
Personnel Administration) (2003)
PERB Decision No. 1516-S [single allegation
of
the employer reneging on the ground rules
was insufficient to demonstrate bad faith bargaining]; Regents
of
the University
of
California
(1985) PERB Decision No. 520-H [unless the conduct is egregious, the mere presence
of
one
of
these indicia alone
is
insufficient to establish bad faith].) Accordingly, the charge fails to
state a prima facie violation
of
bad faith bargaining.
3.
	Retaliation
The charge also alleges that by the above conduct, the District violated EERA section 3543.5,
subdivision (a).
To demonstrate that an employer discriminated or retaliated against an employee in violation
of
EERA section 3543.5(a); the charging party must show that: 	(1) the employee exercised
rights under EERA; (2) the employer had knowledge
of
the exercise
of
those rights; (3) the
employer took adverse action against the employee; and (4) the employer took the action
because
of
the exercise
of
those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato).)
The charge does not allege any facts to support any
of
the above elements for retaliation and
accordingly fails to state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case. 3
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
pe1jury by Charging Party or an authorized agent
of
Charging Party. The amended charge
must have the case number written on the top right hand corner 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
3 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 "a
determination 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.)
agreements the parties already have made (Charter Oak Unified School District (1991) PERB
Decision No. 873; Stockton Unified School District, supra; Placerville Union School District
(1978) PERB Decision No. 69).
The charge also alleges that by the above conduct, the District violated EERA section 3543.5,
subdivision (a).
The charge does not allege any facts to support any of the above elements for retaliation and
accordingly fails to state a prima facie case.
For these reasons the charge, as presently written, does not state a prima facie case.' 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 Charging Party or an authorized agent of Charging Party. The amended charge
must have the case number written on the top right hand corner of the charge form. The
mended charge must be served on the Respondent's representative and the original proof of	a
service must be filed with PERB. If an amended charge or withdrawal is not filed on or before
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 "a
determination 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." (Ibid.)
LA-CE-5581-E
October 14, 2011
Page 4
In the instant charge, the single allegation that the District reneged on the ground rules by
refusing to sign the tentative agreements when they were reached is insufficient to establish
bad faith bargaining. (State of California (Department of Personnel Administration) (2003)
PERB Decision No. 1516-S [single allegation of the employer reneging on the ground rules
was insufficient to demonstrate bad faith bargaining]; Regents of the University of California
(1985) PERB Decision No. 520-H [unless the conduct is egregious, the mere presence of one
of these indicia alone is insufficient to establish bad faith].) Accordingly, the charge fails to
state a prima facie violation of bad faith bargaining.
3. Retaliation
To demonstrate that an employer discriminated or retaliated against an employee in violation
of EERA section 3543.5(a); the charging party must show that: (1) the employee exercised
rights under EERA; (2) the employer had knowledge of the exercise of those rights; (3) the
employer took adverse action against the employee; and (4) the employer took the action
because of the exercise of those rights. (Novato Unified School District (1982) PERB Decision
No. 210 (Novato).)

LA-CE-5581-E
October 14, 2011
Page 5
October 21, 2011,4 PERB will dismiss your charge.
	If
you have any questions, please call me
atthe
above telephone number,
Sincerely,
Ellen Wu
Regional Attorney
EW
4 A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. 	(PERB Regulation 32135.)
October 21, 2011,* PERB will dismiss your charge. If you have any questions, please call me
at the above telephone number.
" A document is "filed" on the date the document is actually received by PERB,
including if transmitted via facsimile. (PERB Regulation 32135.)
LA-CE-5581-E
October 14, 2011
Page 5
Sincerely,
Ellen Wu
Regional Attorney
EW