East Whittier City Elementary School District (PERB Dec. No. 1887E) (Issued 2/27/07)
District initially filed exceptions to board agent’s unit determination decision. Subsequently, based on a vote of the affected units, the union withdrew its representation petition. Parties then settled and requested that the Board vacate its decision, which the Board agreed to do.
Wednesday, February 28, 2007
DFR Charge Dismissed
United Teachers of Los Angeles (PERB Dec. No. 1888E) (Issued 2/27/07)
Employee alleged that union violated its duty of fair representation. Applying established law, board agent dismissed complaint. Board summarily affirmed.
Employee alleged that union violated its duty of fair representation. Applying established law, board agent dismissed complaint. Board summarily affirmed.
Monday, February 26, 2007
Special Appeal Denied
State of California (Department of Personnel Administration (PERB Dec. No. A359S) (Issued 2/22/07)
Board summarily denied employer’s request for special permission to appeal ALJ’s refusal to disqualify himself from case.
Board summarily denied employer’s request for special permission to appeal ALJ’s refusal to disqualify himself from case.
Wednesday, February 21, 2007
No Past Practice Found
Trustees of the California State University (PERB Dec. No. 1886H) (Issued 02/20/07)
Union alleged that employer unilaterally repudiated a policy of granting release time to employees for the purpose of attending PERB proceedings. Board adopted ALJ decision which found that union “failed to demonstrate by a preponderance of the evidence that the University had a binding past practice of granting released time for PERB informal conferences not contemplated within the MOU.” Charge and complaint dismissed.
Analysis: Standard application of well-settled law on unilateral changes to the specific facts in this case.
Union alleged that employer unilaterally repudiated a policy of granting release time to employees for the purpose of attending PERB proceedings. Board adopted ALJ decision which found that union “failed to demonstrate by a preponderance of the evidence that the University had a binding past practice of granting released time for PERB informal conferences not contemplated within the MOU.” Charge and complaint dismissed.
Analysis: Standard application of well-settled law on unilateral changes to the specific facts in this case.
Reconsideration Granted
King City Joint Union High School District (PERB Dec. No. 1777Ea) (Issued 2/16/07)
Another interesting situation. In King City Joint Union High School District (PERB Decision No. 1777), the Board held that the district improperly calculated a negotiated salary formula and ordered make-whole relief. During the enforcement stage, the parties discovered that make-whole relief would cost the district $5.2 million out of a $17-$18 million dollar budget. According to the parties, the effect of forcing the district to pay the $5.2 million at once would mean bankruptcy for the district - an option that neither party wanted.
Based on the dire financial consequences of the ordered relief, the parties jointly submitted a request for reconsideration of the Board’s decision. The parties requested that the Board modify its order as to the amount to be paid employees and to allow installment payments. Finding that the financial consequences of the Board’s order constituted ‘new evidence,’ the Board granted the motion for reconsideration under regulation 32410(a).
Analysis: The Board has generally strictly interpreted regulation 32410(a) which governs requests for reconsideration. Interpreting that regulation strictly, it is not at all clear how the high cost of complying with the Board’s order constitutes “new evidence” within the meaning of 32410(a). Presumably, someone could have done the math before the PERB hearing as well as after. The decision is best explained by the fact that the Board wanted to help the parties given that this was a joint request and the consequences of not acting would be severe. But query, what if all the facts were the same except that it was not a joint request, but a request solely by the district . . . would the decision have been the same?
Another interesting situation. In King City Joint Union High School District (PERB Decision No. 1777), the Board held that the district improperly calculated a negotiated salary formula and ordered make-whole relief. During the enforcement stage, the parties discovered that make-whole relief would cost the district $5.2 million out of a $17-$18 million dollar budget. According to the parties, the effect of forcing the district to pay the $5.2 million at once would mean bankruptcy for the district - an option that neither party wanted.
Based on the dire financial consequences of the ordered relief, the parties jointly submitted a request for reconsideration of the Board’s decision. The parties requested that the Board modify its order as to the amount to be paid employees and to allow installment payments. Finding that the financial consequences of the Board’s order constituted ‘new evidence,’ the Board granted the motion for reconsideration under regulation 32410(a).
Analysis: The Board has generally strictly interpreted regulation 32410(a) which governs requests for reconsideration. Interpreting that regulation strictly, it is not at all clear how the high cost of complying with the Board’s order constitutes “new evidence” within the meaning of 32410(a). Presumably, someone could have done the math before the PERB hearing as well as after. The decision is best explained by the fact that the Board wanted to help the parties given that this was a joint request and the consequences of not acting would be severe. But query, what if all the facts were the same except that it was not a joint request, but a request solely by the district . . . would the decision have been the same?
Friday, February 16, 2007
PERB Stays Out of Internal Union Matters
Kern High Faculty Association CTA/NEA (Maaskant) (PERB Dec. No. 1885-E) (Issued February 14, 2007)
Employee brought unfair practice charge against union for declaring him ineligible to serve on union’s Representative Council because he was an agency fee payer. Board precedent provides that "matters concerning internal union affairs are generally immune from review, unless they have a substantial impact on the relationships of unit members to their employers so as to give rise to a duty of fair representation, or involve retaliations for protected activity.” Applying this doctrine to the facts, the Board affirmed the dismissal of the charge.
Employee brought unfair practice charge against union for declaring him ineligible to serve on union’s Representative Council because he was an agency fee payer. Board precedent provides that "matters concerning internal union affairs are generally immune from review, unless they have a substantial impact on the relationships of unit members to their employers so as to give rise to a duty of fair representation, or involve retaliations for protected activity.” Applying this doctrine to the facts, the Board affirmed the dismissal of the charge.
Reconsideration Denied
Burlingame Elementary School District (PERB Dec. No. J024-E) (Issued February 14, 2007)
District sought reconsideration and/or judicial review of a PERB decision finding that an employee did not occupy a “confidential position” within the meaning of EERA. Applying established law to the facts, the Board denied both requests.
District sought reconsideration and/or judicial review of a PERB decision finding that an employee did not occupy a “confidential position” within the meaning of EERA. Applying established law to the facts, the Board denied both requests.
"Technical Refusal to Bargain" Not an Avenue to Review of PERB Decision
Los Angeles Unified School District (PERB Dec. No. 1884-E) (Issued January 30, 2007)
In this case, a school district refused to bargain over the terms and conditions of employment of several employee classifications in its supervisory unit, which PERB had two years earlier found to be non-management. Los Angeles Unified School District (PERB Dec. No. 1664. The District’s only defense was that PERB’s prior decision was wrong, and that the disputed classifications were in fact managerial. The District characterized its action as a “technical refusal to bargain.”
Under NLRA, there is generally no direct judicial review from the Board’s decision as to unit appropriateness. Because no direct judicial review is available, employers under the NLRA have often engaged in a “technical refusal to bargain” in order to draw an unfair labor practice charge. Once a charge is filed and a complaint is issued, the employer can then raise as a defense to the unfair labor practice any objections to the unit, and eventually obtain judicial review. This is the defense the district attempted to raise here.
PERB rejected the District’s attempt to obtain review of its prior decision. PERB held that under EERA, the only way to obtain review was through a unit modification petition, an action that was already adjudicated in the prior decision.
Implicit in PERB’s holding is the idea that a party dissatisfied with a Board decision involving unit appropriateness should seek direct judicial review, which is available for Board’s decisions. It is not clear here whether the District sought judicial review of PERB’s earlier decision. In any event, this decision makes clear that PERB will not allow a collateral attack on a prior decision through the use of a “technical refusal to bargain.” Here, however, the District suffered little harm in its attempt to challenge the prior decision since the only remedy imposed on it was to begin bargaining with the union over the disputed classifications, something it would have had to do anyway.
In this case, a school district refused to bargain over the terms and conditions of employment of several employee classifications in its supervisory unit, which PERB had two years earlier found to be non-management. Los Angeles Unified School District (PERB Dec. No. 1664. The District’s only defense was that PERB’s prior decision was wrong, and that the disputed classifications were in fact managerial. The District characterized its action as a “technical refusal to bargain.”
Under NLRA, there is generally no direct judicial review from the Board’s decision as to unit appropriateness. Because no direct judicial review is available, employers under the NLRA have often engaged in a “technical refusal to bargain” in order to draw an unfair labor practice charge. Once a charge is filed and a complaint is issued, the employer can then raise as a defense to the unfair labor practice any objections to the unit, and eventually obtain judicial review. This is the defense the district attempted to raise here.
PERB rejected the District’s attempt to obtain review of its prior decision. PERB held that under EERA, the only way to obtain review was through a unit modification petition, an action that was already adjudicated in the prior decision.
Implicit in PERB’s holding is the idea that a party dissatisfied with a Board decision involving unit appropriateness should seek direct judicial review, which is available for Board’s decisions. It is not clear here whether the District sought judicial review of PERB’s earlier decision. In any event, this decision makes clear that PERB will not allow a collateral attack on a prior decision through the use of a “technical refusal to bargain.” Here, however, the District suffered little harm in its attempt to challenge the prior decision since the only remedy imposed on it was to begin bargaining with the union over the disputed classifications, something it would have had to do anyway.
Monday, February 12, 2007
Buyer's Remorse: "Contract Rescission"
San Diego Unified School District (PERB Dec. No. 1883-E) (Issued January 27, 2007)
Ever agree to something you wish you hadn't? In this case PERB addressed the concept of "contract rescission" in collective bargaining. Here, the employer agreed to a contract provision that resulted in far higher cost than the employer anticipated. The employer argued that it would be unconscionable to enforce the contract provision due to its cost. PERB held that a party seeking to rescind a contract must establish the following elements:
1) The party made a material mistake regarding a basic assumption of the contract;
2) The party seeking the rescission did not neglect a legal duty or otherwise fail to exercise ordinary diligence; and
3) The mistake was so significant that enforcement of the contract would be unconscionable.
Applying this test to the facts, PERB found that the employer established the first element, but failed in establishing the second. Namely, the employer failed to research the actual cost of the provision and relied solely on its own assumptions. In reaching its holding, PERB held:
"Clearly, the lack of preparation leads to needless mistakes. If we permitted rescission based on alleged lack of preparation, we would both open the door to contract challenges based on careless bargaining and undermine the need for adequate preparation."
Unaddressed in this decision is the issue of severability. Specifically, if a party meets the above requirements on a particular contract provision, is the entire contract rescinded or just that provision?
This leads to another interesting question. Unlike the construction industry where much of the contract rescission doctrine originates, collective bargaining by its nature involves various quid pro quos. As often happens, one party gives ground on a subject in exchange for gains elsewhere in the contact. What happens when one party tries to rescind a provision but has already gained the benefit of another? Would there be some estoppel or other equitable-type remedy for the party against whom rescission is being sought? Interesting questions, but in reality, the elements required for contract rescission are fairly strict so most employers probably will never face these questions.
Ever agree to something you wish you hadn't? In this case PERB addressed the concept of "contract rescission" in collective bargaining. Here, the employer agreed to a contract provision that resulted in far higher cost than the employer anticipated. The employer argued that it would be unconscionable to enforce the contract provision due to its cost. PERB held that a party seeking to rescind a contract must establish the following elements:
1) The party made a material mistake regarding a basic assumption of the contract;
2) The party seeking the rescission did not neglect a legal duty or otherwise fail to exercise ordinary diligence; and
3) The mistake was so significant that enforcement of the contract would be unconscionable.
Applying this test to the facts, PERB found that the employer established the first element, but failed in establishing the second. Namely, the employer failed to research the actual cost of the provision and relied solely on its own assumptions. In reaching its holding, PERB held:
"Clearly, the lack of preparation leads to needless mistakes. If we permitted rescission based on alleged lack of preparation, we would both open the door to contract challenges based on careless bargaining and undermine the need for adequate preparation."
Unaddressed in this decision is the issue of severability. Specifically, if a party meets the above requirements on a particular contract provision, is the entire contract rescinded or just that provision?
This leads to another interesting question. Unlike the construction industry where much of the contract rescission doctrine originates, collective bargaining by its nature involves various quid pro quos. As often happens, one party gives ground on a subject in exchange for gains elsewhere in the contact. What happens when one party tries to rescind a provision but has already gained the benefit of another? Would there be some estoppel or other equitable-type remedy for the party against whom rescission is being sought? Interesting questions, but in reality, the elements required for contract rescission are fairly strict so most employers probably will never face these questions.
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