"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.