Moreno Valley Unified School Dist. v. Public Employment Relations Bd.
| Decision Date | 21 April 1983 |
| Citation | 142 Cal.App.3d 191,191 Cal.Rptr. 60 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 10 Ed. Law Rep. 654 MORENO VALLEY UNIFIED SCHOOL DISTRICT, Petitioner, v. PUBLIC EMPLOYMENT RELATIONS BOARD, Respondent, MORENO VALLEY EDUCATORS ASSOCIATION, Real Party in Interest. Civ. 27992. |
This case presents an important issue concerning the authority of California's Public Employment Relations Board (referred to as PERB, or the Board). Specifically, whether the Board's determination that a public employer's unilateral implementation of changes in employment conditions during the pendency of the statutory impasse procedure constitutes a per se unfair labor practice is a reasonable interpretation of the Educational Employment Relations Act (EERA). A second issue is whether the Board exceeded its jurisdiction in finding that the public employer's failure to participate in good faith in the statutory impasse procedure with regard to the effects of certain employment decisions violated the EERA.
The first collective bargaining agreement between the Moreno Valley Unified School District (District) and the Moreno Valley Educators Association (Association), representing about 320 certificated employees, was due to expire on August 31, 1978. Negotiations for a new agreement began on March 23, 1978. The parties met on sixteen separate occasions through September 15 but were unable to reach agreement on most issues. The school year began on September 11. Four days later the parties mutually agreed they were at an impasse, and requested that the Board appoint a mediator pursuant to the statutory impasse procedure. (Gov.Code, § 3548 et seq.) The Board appointed a mediator on September 20.
Nevertheless, on or shortly after September 15, 1 the District unilaterally implemented the terms of its "last best offer."
Mediation proceeded in accordance with the statutory impasse procedure. On October 2, 1978, the Association filed an unfair labor practice charge against the District, alleging violations of Government Code section 3543.5, subdivisions (a), (b), (c) and (e).
A formal hearing was held on February 28, 1979. The PERB hearing officer issued his proposed decision, concluding, inter alia, that it was a per se unfair practice for a public employer to implement unilateral changes in terms and conditions of employment subject to the scope of representation prior to the exhaustion of the statutory impasse procedures; this practice was held to violate section 3543.5, subdivisions (a), (b), (c) and (e). 2
The District filed exceptions to the hearing officer's proposed decision and the matter came before the Board. From a de novo review of the record, the Board adopted the hearing officer's statement of facts, and partially adopted his reasoning and conclusions of law. "[F]ollowing a declaration of impasse, a unilateral change regarding a subject within the scope of negotiations prior to exhaustion of the impasse procedure is, absent a valid affirmative defense, per se an unfair practice," the Board stated. (Moreno Valley Unified School Dist. (1982) PERB Dec. No. 206, p. 5.) The Board concluded that some changes made during the pendency of the impasse procedure concerned subjects within the scope of representation, while others did not. The Board affirmed the hearing officer's conclusion that it was an unfair practice for the District to fail to bargain regarding the effects on employees of the elimination of certain positions, although the decisions to eliminate those positions were exclusively a management prerogative. The Board issued an order, the major features of which required the District to cease and desist from the practices adjudicated unfair, and to "make whole" employees denied remuneration they would have received absent the District's unilateral actions. (Id., at pp. 5-16.)
The District filed a petition for a writ of extraordinary relief from the Board's decision pursuant to Government Code section 3542. This court stayed enforcement of the Board's order pending determination of the matter on its merits.
Appellate review of PERB orders has two aspects. First, findings of the Board on questions of fact, including ultimate facts, are treated as conclusive if supported by substantial evidence. (Gov.Code, § 3542, subd. (c); San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12, 154 Cal.Rptr. 893, 593 P.2d 838.) Here, the record consists entirely of a joint stipulation and exhibits.
As the above passage reflects, to the extent the language and provisions of the National Labor Relations Act--and those of California's Agricultural Labor Relations Act--parallel those of the Educational Employment Relations Act, cases construing the former are persuasive in interpreting the latter. (Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 895-896, 186 Cal.Rptr. 634.)
The District makes several arguments in support of its contention that the Board erred in adopting a per se rule regarding unilateral changes in employment conditions by employers during statutory impasse.
First, the District argues that the Board acted in an "arbitrary and capricious" fashion in that it specifically rejected the hearing officer's rationale for applying a per se test to the employer's conduct, yet "[i]ncredibly, ... did not offer any alternative rationale." (District's emphasis.)
This contention is simply mistaken. The Board's rationale for its decision is set forth at pages 4 and 5 of its decision in this case. Briefly stated, it is that an employer's implementation of unilateral changes in employment conditions prior to completion of impasse procedures frustrates the EERA's purpose of achieving mutual agreement through mediation.
Next, it is argued that "since a strike or work stoppage after impasse but before completing post-impasse procedures does not constitute a per se unfair practice, it therefore follows that implementation of a last best offer after impasse does not constitute a per se unfair practice." The thrust of this argument is that it is unfair to treat "employee self help" (in the form of strikes) by a totality-of-conduct test 3 while condemning "employer self-help" (in the form of unilateral changes in employment conditions) as per se unlawful. This argument inverts the reasoning of the hearing officer in this case, who found that because employee organizations could not use "self-help" during impasse, neither should employers be allowed to do so.
Both the District's argument and, as PERB recognized, the hearing officer's rationale, are premised on a flawed equation of employee strikes with unilateral changes in employment conditions made by employers. It is manifest that a unilateral change in employment conditions is not the same thing as a strike, at any stage of an employment dispute. The management equivalent of a strike is a lockout. (Wasco County v. Am. Fed. of S., Cty. & Mun. Emp. (1977) 30 Or.App. 863, 569 P.2d 15, 19; see American Ship Bldg. Co. v. NLRB (1965) 380 U.S. 300, 314-315, 85 S.Ct. 955, 965, 13 L.Ed.2d 855.)
Strikes and unilateral changes in employment conditions have very different consequences for the labor dispute resolution process. A strike, like a lockout, has the necessary result that neither labor or management achieves its goals. A lockout or strike is designed to exert economic pressure on the other party to resolve disputed issues. In sharp contrast, a unilateral imposition of terms by an employer signals an end to the mutual dispute resolution process regarding those terms. The employer loses incentive to participate in the dispute resolution process, because it has imposed terms it has deemed satisfactory. 4
The District's third argument is that the Board "failed to distinguish between pre-impasse bargaining and statutory impasse procedures." Under the National Labor Relations Act, the District stresses, unilateral employer action on subjects of negotiations taken before impasse is reached is per se unfair, while unilateral action after impasse is not. (See NLRB v. Katz (1962) 369 U.S. 736, 82 S.Ct. 1107, 8 L.Ed.2d 230.)
However, this argument assumes a correspondence between federal law and the EERA which does not exist. Unlike the EERA, the NLRA has no statutory impasse procedure, failure to participate in which is explicitly made an unlawful labor practice.
EERA's impasse procedure is set...
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