By Chris Casillas and Sarah Derry
In Warden School District, PERC Examiner Whitney considered two unrelated issues: First, the employer did not commit a ULP by not bargaining with the union over whether to adopt a perpetual calendar for the school year. Examiner Whitney found that: (1) the employer had been using the same calendar adoption process for nine years, so there was no change, and (2) although the union wanted to adopt a “perpetual calendar,” the Union never directly proposed it, so the school district did not refuse to bargain. Second, Examiner Whitney determined that the school district did not interfere with a teacher’s union rights by threatening to fire him if he did not take on another class, in part because another teacher testified that she did not think the complaining teacher had been threatened.
The first issue concerned the school’s calendar. For the last nine years, the school adopted academic calendars by proposing several options, collecting employee comments, and presenting a final version to the school board. In 2014, this process began in January. Meanwhile, in April, the school district and the union began to bargain a new Interest-Based collective bargaining agreement. As part of this process, the union gave the school district a list of issues it wanted to discuss, including adopting a new calendar creation method (called a “perpetual calendar”). During this process, the school district asked the union president for comments on the January draft calendar, but the union president stated that he would not talk about the calendar until after negotiations. However, the calendar issue was not discussed in negotiations, and the Union failed to discuss perpetual calendars in its proposals to the district. Although the union president emailed the school district to say the Union wanted to discuss perpetual calendars, the Examiner noted that the union president did not include a formal proposal or an example of a perpetual calendar. That same day, the school district presented the original draft calendar to the school board, who approved it.
The union brought an unfair labor practice complaint, alleging the school board unilaterally changed the calendar without bargaining and refused to bargain on the issue. PERC disagreed. Examiner Whitney acknowledged that the school calendar is a mandatory subject of bargaining, because the school district had created a new calendar in the same way it had done for years, the Examiner reasoned the district had not changed anything, and therefore had not refused to bargain a change.
[T]he employer established the existence of a past practice…. In order to find a violation, there must be a change to an existing past practice. No evidence was presented to indicate that a change to the calendar adoption process occurred.
Examiner Whitney also emphasized that even if there was a change, the district did not refuse to bargain because: (1) the union president did not discuss or review the proposed calendar between April and June, and (2) the Union neglected to present an example of a perpetual calendar or to include the calendar in its proposal packet. Unions going forward should be careful to avoid this potential pitfall:
[t]he union’s argument fails because, while the union told the employer it was interested in discussing a perpetual calendar, it never formally proposed a perpetual calendar to the employer.
The second issue in this case was whether the principal’s statements to a teacher rose to the level of interference with the teacher’s union rights. The principal met with two special education teachers about redistributing their student load. The principal suggested one teacher take on an additional class so in case of a future workforce reduction, the teacher could “continue working in areas he had an interest in.” The teacher thought this meant he would be fired unless he took the class. The union brought a pre-grievance alleging the principal had threatened to fire him. Later, the principal told the teacher: “if [the principal] looked into his crystal ball, he saw a ride out for” the teacher. The union then filed a ULP, arguing this “crystal ball comment” interfered with the teacher’s protected grievance right.
The Examiner determined that the principal’s “crystal ball comment” did not interfere with the teacher’s right to file a grievance. The Examiner emphasized that the teacher “testified that he interpreted the ‘crystal ball’ comment to relate back to the … meeting…. He clearly understood that [the] ‘crystal ball’ comment did not relate to the filing of the pre-grievance….” Because the teachers admitted that the comment did not relate to his grievance filing, the Examiner determined the teacher could not reasonably believe the comment was as a threat of punishment for filing the grievance.
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