Best Practices in
Contract Negotiations
Publication 407
RESEARCH & NEGOTIATIONS TRAINING PROJECT
AFL-CIO
California School
Employees Association
Our mission: To improve the lives of our
members, students and community.
Revised May 2011
Best Practices in
Contract Negotiations
Module 407
T a b l e
o f
C ontents
Section 1 – Developing Contract Proposals
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
PREPARATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-1
Record Keeping. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
Contract Review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-2
Membership Input. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-3
The Survey1-3
Job Stewards and Site Representatives . . . . . . . . . . . . . 1-4
Chapter Committees. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
Chapter Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
Class, Site, Department and Unit Meetings. . . . . . . . . . 1-5
CSEA Field Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-5
Analyze and Prioritize . . . . . . . . . . . . . . . . . . . . . . . . 1-6
Writing Contract Language. . . . . . . . . . . . . . . . . 1-7
CSEA Staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1-7
“Drafting Contract Language”—A CSEA Resource Guide.1-7
Reviewing Employer Policies, Rules and Regulations. 1-8
Reviewing the California Education Code . . . . . . . . . . 1-8
Approval of Initial Proposals. . . . . . . . . . . . . . . . 1-8
The Formal Proposal. . . . . . . . . . . . . . . . . . . . . . . . 1-17
The Traditional Approach . . . . . . . . . . . . . . . . . . . . . . 1-17
An Alternative to the Traditional Approach. . . . . . . . . 1-18
Checklist for Contract Review. . . . . . . . . . . . . 1-20
Section 2 – Ratification Procedures
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
At the Table. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Away from the Table. . . . . . . . . . . . . . . . . . . . . . . . . .
EMPLOYER’S LAST OFFER. . . . . . . . . . . . . . . . . . . . . . . .
THE RATIFICATION MEETING. . . . . . . . . . . . . . . . . . . . .
PLANNING THE MEETING . . . . . . . . . . . . . . . . . . . . . . . .
THE MEETING ITSELF. . . . . . . . . . . . . . . . . . . . . . . . . . . .
OTHER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2-1
2-2
2-2
2-3
2-3
2-4
2-5
2-6
i
Ta b l e
o f
C o n t e n ts
(continued)
(Section 2 continued)
SUMMARY OF RATIFICATION AND
BALLOTING PROCEDURES. . . . . . . . . . . . . . . . . . . . . . . . 2-7
Yes and No Vote. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-7
Alternatives After a No Vote. . . . . . . . . . . . . . . . . . . . . 2-7
Section 3 – CSEA Policies for Collective Bargaining
POLICY 610 — COLLECTIVE BARGAINING . . . . . . . . . 3-1
Section 4 – California Educational Employment
Relations Act
CHAPTER 10.7–MEETING AND NEGOTIATING IN PUBLIC
EDUCATIONAL EMPLOYMENT. . . . . . . . . . . . . . 4-1
Article 1. General Provisions. . . . . . . . . . . . . . . . . . . 4-1
Article 2. Administration . . . . . . . . . . . . . . . . . . . . . . 4-4
Article 3. Judicial Review. . . . . . . . . . . . . . . . . . . . . 4-9
Article 4. Rights, Obligations, Prohibitions, and
Unfair Practices. . . . . . . . . . . . . . . . . . . . . 4-10
Article 5. Employee Organizations:
Representation, Recognition, Certification,
and Decertification. . . . . . . . . . . . . . . . . . . . . 4-14
Article 6. Unit Determinations. . . . . . . . . . . . . . . . . 4-18
Article 7. Organizational Security . . . . . . . . . . . . . . 4-19
Article 8. Public Notice . . . . . . . . . . . . . . . . . . . . . . 4-21
Article 9. Impasse Procedures . . . . . . . . . . . . . . . . . 4-22
Article 10. Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 4-26
ii
SECTION 1
Developing Contract Proposals
Introduction
Preparation
Membership Input
Analyze and Prioritize
Writing Contract Language
Approval of Initial Proposals
The Formal Proposal
Checklist for Contract Review
Developing Contract Proposals
INTRODUCTION
It is important for local CSEA chapters to develop contract proposals in
an orderly and systematic manner—a manner which serves the interests of
the bargaining unit members they represent. This may best be accomplished in
the following sequence.
1. Engaging in a continuous period of preparation,
2. Receiving input from bargaining unit members and groups
of members,
3. Analyzing and prioritizing proposals,
4. Writing contract language or formal summaries for submission
to the employer,
5. Having chapter members formally ratify the proposal,
6. Submitting the formal chapter proposal to the employer.
PREPARATION
CSEA Policy 610
Ensuring Member Democracy and Transparency in Negotiations
“…The purpose of this policy is to ensure that negotiated collective bargaining agreements and subsequent modifications, as described in Sections .8
and .9 of this policy, are properly approved by the chapter’s membership and
the Association….” (See, Policy 610.1.)
Upon election or appointment as negotiators, and/or before taking any
steps towards the bargaining process, the bargaining team members must thoroughly review CSEA Policy 610. Policy 610 applies to every CSEA chapter
regardless of whether it follows traditional bargaining methods, or interest
based bargaining. Failure to adhere to the requirements of Policy 610 can
result in the State Association voiding any agreements that might be reached
with the local education agency (See, Clovis Unified School District (2002)
PERB Decision No. 1504), lead to redoing ratification votes, and could subject individual officers to CSEA discipline - up to and including expulsion
from membership or removal from office. (Policy 610.2) Pursuant to CSEA
Policy 610, no individual officer or member has the right under CSEA Policy
to enter into an agreement or MOU without the membership’s approval; this
assures member democracy and transparency in negotiations.
Negotiators should also review Module 410, Organizing for More Power
in Negotiations, and adopt a written contract campaign plan which at a minimum outlines the strategy and basic tactics that the Chapter will pursue to
secure its contract. This comprehensive plan should link the requirements
of bargaining for the negotiators with developing the strength and power of
1
rank and file membership support away from the table. It should be tied to the
calendar so that the campaign rolls out strategically, i.e., rank and file mobilization should begin during budget adoption for the year in which the contract
will be negotiated and continue prior to coming to the table and escalate during negotiations. In other words, organizing and mobilizing efforts should
precede negotiations and not become a last resort which is used only when
negotiations are not going well. Such rank and file support is vital to maximizing the results of bargaining.
Record Keeping
Best Practice Suggestion re files: Keep dual files on all grievance records:
1) filed by name of grievant to assist job stewards in representing the named
member; 2) filed by contract article(s) to assist negotiators evaluate the collective bargaining agreement and to assist stewards in representing other bargaining unit members besides the initial grievant. If records are only filed by
grievant’s name, they will become effectively “lost” and are not useful as soon
as the grievant’s name is forgotten.
Immediately after a new CSEA contract is in place, there begins a testing
period that lasts for the life of the contract. The contract is meant to govern
the day-to-day relationships between union/employer and between member/
employer. Continuously during this one to three year period between nego­
tiations the weaknesses and strengths of the contract become evident.
As problems arise (either as grievances or complaints) chapter officers
and members will become aware of the need to add, modify or delete contract
language. In many cases this cannot formally take place until the next set of
negotiations, a few years hence. Taking into account the fallibility of memory
and possible changes in leadership, both in the chapter and at the district, it
should be apparent that a written record of grievances, complaints, and even
questions will be helpful to future negotiating committees.
This written record should be a major source from which to draw ideas
for proposals to be made when the contract is next open for negotiations.
If the method of record keeping is simple, orderly, systematic and easily
referred to, it can serve as a blueprint for developing much of the next
CSEA proposal.
Good record keeping has the additional benefit of providing a system of
discipline for the chapter officer or job steward handling grievances. It will
help ensure that a full recording is made of settlements and decisions. These
will be helpful in addressing similar issues which may arise during the term of
the contract.
A simple record keeping method is suggested in training module 105 —
Chapter Executive Board.
Contract Review
2
Prior to soliciting input from members of the bargaining unit, the negotiating committee should review the current contract for possible deficiencies.
Even if no problems have arisen in the past, the committee should look for
potential problems and anticipate negative actions by the employer in the
future.
One way to approach contract review is by applying a “What if?” test
to each section of the agreement. For example:
What if the district decides to contract out transportation or maintenance
work?
What if the district does not accept an advisory arbitration award?
What if the district will not accept a grievance filed by the union on its
own behalf or on behalf of a bargaining unit member?
What if the district refuses to release a job steward to investigate or process a grievance?
What if the district uses “volunteer help” or “convict labor” to replace
or do the work of bargaining unit employees?
Can they do it? Will we have to rely solely on past practice to claim that
they can’t? Is the past practice firmly established? Do we have records to prove
it? Will we have to file an "unfair practice charge" or go to court to get a remedy? Did we unthinkingly waive our right to bargain regarding the issue? Can
we win an unfair labor practice charge over the issue?
It’s obviously best to cover the issue in the collective bargaining agreement.
And don’t just look for deficiencies in the current contract language —
look for subjects that are left out. Use the “Check List” following this section
of the module to ascertain if the contract covers all the desired subjects.
If in doubt about any issue, the committee should list it as a potential
contract proposal. The committee should not limit the length of the list at this
point. There will be plenty of time for setting priorities and screening out the
less important proposals.
MEMBERSHIP INPUT
Considering the democratic foundation of CSEA, it is important for the
chapter to solicit contract proposals from the membership — and even from
service fee payers. The more we involve members in the process, the more
they will be there to support CSEA and the chapter when their active support
is needed. Connecting with service fee payers by asking for their input may
help convince these non-joiners to convert to full membership.
There are numerous methods for gaining membership input, and the relative success of each method will vary from chapter to chapter, and the input
phase of developing contract proposals should begin several months prior to
any deadline for submitting proposals to the employer.
3
The Survey
This is the most traditional method of asking for contract proposal
suggestions. It is required by Policy 610 for all initial proposals. (Policy
610.3.01. The “Survey Form” usually contains either blank spaces for suggestions or a check box list of certain alternatives. For examples
1. Additional Holidays: ______________________________________
__________________________________________________________
2. Additional Holidays: ____________________ Employee’s Birthday
____________________ Floating Holiday
The survey should be viewed as a tool to:
1) Get information about the members’ view of their contract;
2) serve as an early organizing tool to begin involving all rank and file members in the negotiations process; and
3) securing feedback from bargaining unit members about their view of the chapter, which information helps in planning the
contract campaign. A sample survey is attached as Appendix ___.
The usefulness of the survey will depend on the return of a sufficient
number of responses to be representative of the Chapter membership. Every
effort should be made to encourage bargaining unit members to complete and
return the survey. Tracking and follow-up with those who do not complete
and return surveys are essential to secure the high level of participation which
is desired. For instance the surveys can be addressed to individual bargaining
unit members, have a numeric code and/or a bar code where such technology
is available to the Chapter: Using all three methods on a survey may prove
beneficial since some members will remove their name which makes tracking
based on names only impossible. You should let members know in advance
that the survey will be coming out, and that the Chapter’s goal is 100% participation in the survey; let them know that tracking is taking place to ensure
everyone’s voice is heard and that no one submits more than one survey.
Follow-up calls and/or one-on-one visits should be made to those who do not
respond. Keep working the membership list using the tracking results until at
least a majority have responded.
Job Stewards and Site Representatives
These chapter officials should be considered a ready source of information regarding the problems at individual worksites, and should be familiar
with the views of the unit members with whom they are in daily contact.
The negotiating committee should either contact each steward and site
representative individually or ask them to attend a meeting to discuss contract
proposals. Before the meeting, stewards and site representatives should contact every classified employee at their site to get their suggestions for contract
proposals.
4
Chapter Committees
The negotiating committee should also meet with other active chapter
committees to obtain their ideas.
Members of chapter committees may have a special knowledge of contract deficiencies which fall within the scope of their committee’s responsibilities. The legislative committee may be aware of pending or recent legislation
that relates to subjects of bargaining. The membership committee may have
ideas for contract provisions that will increase their effectiveness in converting service fee payers to full membership.
Chapter Meetings
Depending on the size of the chapter and the degree of attendance at chap­
ter meetings, this forum may be an effective means of soliciting member input.
The chapter executive board should place the subject of “contract proposals”
on the published agenda which is distributed prior to the meeting. The negotiating committee chairperson should report on the progress of contract proposal
development and ask for suggestions from the floor. If this is impractical, contract proposal survey forms should be distributed, to be completed and turned
in prior to adjourning the meeting.
Class, Site, Department and Unit Meetings
If the members don’t come to us with their contract proposal suggestions,
perhaps we should go to them.
Ask the chapter official responsible to call contract proposal meetings for
unit members working in the same department, in the same classification or
job family, and/or at individual work sites. The meetings should be scheduled
at times convenient to the particular group of employees.
Through these meetings the negotiating committee should be able to
identify the concerns of these legitimate special interest groups. Bus driver
may have bidding problems. The employees in the accounting department
may have concerns about vacation scheduling. Custodians at one elementary
school may have complaints about increased workloads. The problems should
full discussed in an attempt to formulate possible solutions within the context
of potential contract proposals.
In situations where a chapter represents two or more units and negotiates
a common contract, separate unit meetings should be held so that specific unit
concerns are addressed in the final contract proposal.
CSEA Field Staff
Don’t forget input from the assigned CSEA labor relations representative.
He/she is familiar with the chapter’s current contract and has probably been
involved in it enforcement. The labor relations representative also has a special knowledge of the “state of the art” in negotiations, and is aware of recent
PERB and court decisions that may impact employee rights and the bargaining process.
5
In addition, the negotiating committee should review informational bulletins prepared and distributed by CSEA field office, headquarters and governmental relation staff. Chapter presidents should route pertinent bulletins
to the committee members, so they can be kept up to date on changes in the
Education Code and other matters related to contract negotiations.
ANALYZE AND PRIORITIZE
At this point the negotiating committee should have a long list of potential contract proposals. Of course, the committee can not simply include all the
suggestions in the final proposal. The committee will find that some suggestions are contradictory, others will already be adequately covered by the current contract, and still others will be unimportant, outlandish or beyond
the scope of bargaining.
The negotiating committee must meet to analyze and prioritize the suggestions with a view toward developing a realistic list of ideas to be converted
into formal proposals with a chance of being negotiated into the contract. The
assigned CSEA labor relations representative should be invited to attend this
meeting as an expert consultant to the committee.
All of the suggestions generated should be analyzed by the applying the
following test:
1. Is the suggested proposal withing the scope of bargaining? (If not, can
the basic problem behind the suggestion be addressed in a way that
brings it within scope?)
2. Is the suggestions important to the unit members individually?
3. Is the suggestion important to CSEA and the chapter? ) That is, important to the members collectively?)
A “yes” answer to the these questions indicates that the suggestion should
be given some priority.
Setting priorities is accomplished by applying what the committee has
found out during the preparation and membership input stages of the process.
If the negotiating committee has reviewed the contract and the record of grievances and problems, and has listened to the input of chapter members, the
committee should be able to objectively answer the following questions:
1. How important is the suggested proposal to the unit members individually and/or collectively?
2. How important is the suggested proposal to the Association for all
the people it represents?
This process of analyzing and prioritizing is not complicated, and does
not have to be as formal as the above outline may indicate. It is important,
however, that all suggestions be considered objectively and that any decision
to reject or accept a suggestion be based on defensible reasons. The committee
should be prepared to explain the reasons for their decisions to the members.
6
Writing Contract Language
Based upon all the preparation, input, analysis and prioritization, the
negotiating committee should now write specific language for their contract
proposals. A number of resources are available to the committee to assist in
converting mere “ideas” to effective contract language.
CSEA Staff
Once again, the assigned CSEA labor relations representative should be
consulted. He/she is proficient in how collective bargaining agreements are
constructed and should be able to help the committee avoid contract language
that may be subject to misinterpretation and contract provisions that may be
in violation of CSEA policy or the law. Even if successfully negotiated with
the employer, ineffective or unenforceable contract provisions are not only
a waste of time and effort, they may also result in members losing faith in
CSEA and its chapter leaders.
“Drafting Contract Language”—A CSEA Resource Guide
This resource guide, available from CSEA field offices, explains a comprehensive system for developing and writing effective and enforceable contract language, using an “outcome based” methodology. The publication also
provides a base of knowledge for drafting contract provisions that meet the
needs of bargaining unit employees — without running afoul of any law,
regulation, legal decision, or CSEA policy.
The “outcome based” method avoids some pitfalls of borrowing contract
language from other CSEA contracts. For example, a comprehensive and
complicated “school bus run” bidding procedure might be necessary in a large
school district with a large number of drivers and bus runs, and it may be
attainable because the district shares the chapter’s feeling that there is a problem and an available solution. In a smaller district, however, the “borrowed”
language may not be attainable because:
1. It may be a solution without a problem
2. District negotiators will never agree to an irrelevant solution.
The outcome based method described in the resource guide uses a three
step process:
1. You decide what you need, what you want—and why
2. Using the material presented in the resource guide, you decide
whether what you need or want is advisable and/or legal
3. Applying the advice provided, you write a proposal for contract
language that meets these requirements.
The resource guide does not provide “sample” or “model” contract
language. Instead, it provides a framework for developing effective and
enforceable contract language, and provides references to legislation, PERB
decisions and court opinions relevant to the bargaining subjects covered.
This system can work in any negotiating environment – whether “traditional”
or “interest-based.”
7
Reviewing Employer Policies, Rules and Regulations
As the saying goes, “If it isn’t broken, don’t fix it.” In many cases the
chapter’s proposal is no more than an attempt to include current rules into the
contract so they will be subject to the contractual grievance procedure. If so,
and if the policy or rule is clear and covers what the member want, there may
be no reason to tamper with its wording when it is moved to the contract.
Minor changes to gain improvement can usually be made, while still leaving most of the familiar language intact. This method of developing contract
language makes it clear to the employer that the union is simply building upon
rights the employees already enjoy.
Reviewing the California Education Code
Much of what CSEA chapters propose in school district collective bargaining agreement grows out of Education Code protections for which CSEA
successfully lobbied in the past. There may be nothing wrong with, once
again, “borrowing” the language with which both CSEA and the employer
have become familiar. There may be a need to change an occasional “may” to
“shall” or to clarify certain provisions, but generally the words can be transferred from the law to the CSEA contract.
Chapters should be aware that in some instances (i.e., layoffs and reductions in hours), incorporation of Education Code language may create a
waiver of Government Code (EERA) bargaining rights, unless those two distinct bodies of law are properly reconciled. Chapters should consult with their
assigned LRR before proposing Education Code language as new contract
language.
APPROVAL OF INITIAL PROPOSALS
Article XII, Section I of the State Association’s Bylaws require that contract proposals “shall be determined by a vote of the chapter” prior to submitting the proposals to the employer.
Proposals should be presented to the members at a chapter or unit meeting, as appropriate, in accordance with CSEA Policy 610 which reads in relevant part as follows:
610 COLLECTIVE BARGAINING
B-XII.
Revised November 2009
.1
8
Purpose. Every chapter of this Association shall, when
designated the exclusive representative of a bargaining
unit, negotiate a contract covering wages, hours and other
terms and conditions of employment with the employer.
The purpose of this policy is to ensure that negotiated collective bargaining agreements and subsequent modifications, as described in Sections .8 and .9 of this policy, are
properly approved by the chapter’s membership and the
Association.
.01 Petitions for Recognition. Any petition submitted
by a chapter of this Association seeking exclusive
recognition (including a petition seeking decertification of another organization) under the laws
of this state and rules of the Public Employment
Relations Board (PERB) shall seek recognition for
“The California School Employees Association and
its (name) Chapter (number).”
.2
Failure to Adhere to Policy. Should chapter officers fail to
adhere to this policy, it shall be grounds for their expulsion
from membership or removal from office under Article II,
Section 7 of the Association Constitution upon charges
being brought and sustained by the Board of Directors that
they have intentionally and knowingly violated the provisions of Policy 610.
.3
Initial Proposals
.01 E
ach chapter, when negotiating a full contract, shall
survey its membership for recommendations of its
initial bargaining proposal.
.02 Each chapter shall ensure that initial bargaining
proposals are determined by a vote of the membership.
Initial proposals shall meet the requirements of
the Public Employment Relations Board and shall
include sufficient information concerning subjects to
be discussed during negotiations.
If there is more than one bargaining unit in a chapter, the chapter leadership shall ensure that the initial
bargaining proposals are determined by a vote of the
membership of each appropriate unit.
.03 Each chapter will forward a copy of its initial bargaining proposal to the Field Director and Labor
Relations Representative before it is presented to
the membership for approval. When it is available, a
copy of the employer’s initial proposal will also be
provided to the Field Director and Labor Relations
Representative. As soon as it is practical, the Field
Director shall review the initial proposals and advise
the chapter of any concerns as well as identify
resources that may be helpful to the chapter in negotiations.
.4 Prior to a chapter beginning the negotiations process, the
Labor Relations Representative will review the procedures for ratification, as described in this Policy, with the
Chapter leadership.
.5
The employer shall be notified of CSEA’s negotiations and
ratification process and procedures at the outset of negotiations.
9
.6
Merged Bargaining. Merged bargaining with pooled
voting is an alternative form of negotiation and ratification for chapters with more than one bargaining unit. The
provisions for merged bargaining and pooled voting are
detailed in Section .11 of this policy.
.7
Bargaining
If the Association becomes aware of a bargaining issue
during the chapter’s negotiations process that could be
detrimental to the chapter and/or its members, the Field
Director may call a meeting with the chapter’s Executive
Board and negotiating team/committee to discuss the
issue and possible solutions.
.8
Collective Bargaining Agreements
.01 Every collective bargaining agreement and subsequent modifications (including memorandums of
understanding, side letters, etc.) shall be executed by
both the Association and its chapter, except as herein
provided.
.02 No chapter shall enter into a collective bargaining
agreement, approve any subsequent modification
thereof (including memorandums of understanding,
side letters, etc.), or take a formal ratification vote,
until it has been reviewed by the Labor Relations
Representative and the Field Director (via Policy
610 Contract Review Form No. 3036).
(a) For purposes of this Policy, the following
shall not be considered collective bargaining
agreements or subsequent modifications
subject to a ratification vote:
(1) Settlements resulting from unfair
practice charges, grievance procedures,
PERB proceedings or Administrative
determination unless they would have
a generalized effect on the bargaining
unit(s) as determined by the Field
Director.
(2) Individual reclassifications or creation
of new positions, unless: (1) they
would have a generalized effect on the
bargaining unit(s) as determined by the
Field Director; or (2) they are submitted
as part of an initial bargaining proposal
or a contract re-opener proposal.
(b) An “Appalachian-Shale” agreement with the
district, setting the new term of the agreement,
can be signed by the Chapter President with
the approval of the chapter’s Executive Board.
10
Any re-opener modification to the agreement
shall follow the regular ratification
procedures, as described herein.
.9
Ratification Procedures
.01 When the chapter, any chapter officer or chapter negotiating committee (by whatever name) has
negotiated a collective bargaining agreement or
modifications (including memorandums of understanding, side letters, etc.) to an existing contract,
it shall, prior to submitting the tentative agreement
to the bargaining unit members for ratification or
rejection, submit one copy to the Labor Relations
Representative assigned to the chapter.
.02 Upon receipt of the Tentative Agreement, the Labor
Relations Representative shall provide a copy of the
Agreement to the Field Director.
(a) Collective bargaining agreements and
s u b s e q u e n t m o d i fi c a t i o n s ( i n c l u d i n g
memorandums of understanding, side letters,
etc.) must be reviewed by the Labor Relations
Representative and the Field Director (via
Policy 610 Contract Review Form No. 3036)
before a chapter takes a formal ratification
vote.
.03 The Field Director shall forward to the Chapter
President, without delay, a review that determines
whether the Agreement is in compliance with applicable laws, CSEA’s Constitution and Bylaws, and/
or policies of the Association. If the review recommends disapproval, the Field Director shall include
the specific reasons as to why such a recommendation is being made. In cases where a verbal review is
necessary, the Field Director shall immediately follow up such verbal review in writing to the Chapter
President. The review letter shall be provided in
writing to the Chapter President prior to the ratification meeting.
.04 After receipt of the aforementioned written review
from the Field Director, the Chapter President,
in accordance with Article XII, Section 3 of the
Association Bylaws, shall call a meeting of all members of the bargaining unit(s) at which the leadership shall outline all the provisions of the Tentative
Agreement and provide an opportunity for discussion, debate, answering of questions, and voting.
(a) Such meetings shall be open to attendance by
all members of the bargaining unit(s), whether
or not they are CSEA members. Non-members
in attendance shall be granted the right to
participate in the discussions and debate. They
shall not, however, have the right to make
motions or vote.
11
(b) If the Association is recommending rejection
of the proposed contract or amendments
thereto, an Association representative shall be
in attendance at the ratification meeting and
shall be provided ample opportunity to outline
the rejection and reasons therefore.
.05 The meeting notice shall be issued to all bargaining
unit members no later than five (5) working days
before the scheduled meeting.* The chapter executive board shall determine the most efficient means
of distributing the notice, which may be to individual bargaining unit members utilizing the district
mail system, distribution by site representatives or
others, or by posting in prominent location(s) at
each work site.
* The Executive Director, or designee, may approve
a notice period of less than five (5) working days,
upon request of the chapter executive board.
.06 In addition to the meeting notice, the chapter
shall provide each CSEA member of the bargaining unit(s): (1) a copy of the Tentative Agreement,
or a summary of the Tentative Agreement; and (2)
a statement as to whether or not the Negotiating
Committee recommends ratification or rejection of
the Agreement, and the Association’s recommendation if for rejection.
(a) The Negotiating Committee shall not
recommend rejection of a Tentative
Agreement reached under good faith
bargaining, unless appropriate in reference to
an employer’s last, best, final offer.
.10 Ratification Vote
The ratification vote shall be by secret ballot conducted in
accordance with procedures as specified in the chapter’s
Constitution as approved by the Association:
.01 Voting by CSEA members in good standing of
the appropriate bargaining unit(s) present at a
ratification meeting conducted in accordance
with Section .9, above.
(a) The meeting notice shall include appropriate
information and notification that the secret
ballot vote on ratification will be conducted
at the meeting, and shall contain the times
allotted for discussion/debate, and the times
during which voting will take place.
(b) Polls for voting shall not be opened until the
period for discussion/debate has begun.
12
(c) At least two Tellers shall be appointed to
conduct the balloting. Tellers shall verify
CSEA membership in good standing and
members shall sign or initial for receipt of the
ballot next to their name on the membership
list. Ballots shall be deposited in a closed
ballot box.
Bargaining unit members who are not
members of CSEA shall not be permitted to
vote.
(d) Absentee or proxy votes shall not be
permitted.
(e) Ballots shall be tallied and results announced
prior to close of the meeting.
.02 Voting by mail ballot.
(a) Ballots and return addressed envelopes,
together with instructions for completion and
return to a designated chapter officer (election
official), shall be distributed to all CSEA
members in good standing of the appropriate
bargaining unit(s).
(b) Ballots shall be mailed via First Class, U.S.
Postal Service, to the member’s home address,
at least ten (10) days in advance of the date
set for receipt of the completed ballot by the
designated official.
(c) A double envelope system for return shall be
used, providing a space for signature, CSEA
member number, and other identification of
the voter on the outside of the return addressed
envelope to verify voter eligibility.
(d) At least two Tellers shall be appointed to
oversee the election process and conduct the
vote tally.
(e) Any and all costs of mail balloting shall be the
sole responsibility of the chapter.
.03 Voting by site ballot.
(a) The location(s) and number of voting sites and
the date and times for conducting the balloting
shall be determined by the executive board.
(b) At least two Tellers shall be appointed to
conduct the balloting at each voting site.
Listings of members in good standing eligible
to vote at each of the designated voting sites
shall be provided to the Tellers.
13
(c) Members shall be notified at least five (5)
working days in advance of the date, time(s)
and location where the balloting will be
conducted for their designated site. Notice
may be by any of the means listed in Section
.9.05 of this policy.
The Executive Director, or designee, may
approve a notice period of less than five (5)
workings days upon request of the executive
board.
(d) Tellers shall verify CSEA membership in
good standing and the members shall sign
for receipt of the ballot next to their name on
the voter list. Ballots shall be deposited in a
closed ballot box.
(e) Members shall be required to cast their ballots
at their designated voting site only.
Voters whose names are not on the site list
shall be permitted to cast a challenged ballot,
which shall be placed in an appropriately
identified envelope, sealed and set aside
until all other votes have been tallied. If the
number of challenged ballots could affect the
outcome of the vote, voter eligibility shall be
determined and valid ballots then counted.
(f)
Ballots shall be counted and verified
separately for each voting site, prior to
combining the count for the final tally.
.11 Chapters With More Than One Bargaining Unit.
.01 Merged Bargaining. Merged bargaining with pooled
voting is an alternative form of negotiation and ratification for chapters with more than one bargaining
unit.
(a) Prior to submission of the initial proposals
to the employer, each bargaining unit shall
separately determine whether negotiations
for the units should be merged, including
a pooled ratification vote, or whether
negotiations will be considered separate for
each unit and thereby subject to separate,
independent ratification votes by each unit.
(b) The employer shall be notified of the agreedupon ground rules for ratification at the outset
of negotiations.
14
(c) No bargaining unit can be included in
merged negotiations without its consent.
Once consent is given, no unit can withdraw
from merged negotiations for that contract
without the consent of all parties including,
if initial proposals have been submitted to the
employer, the consent of the employer.
.02 Collective Bargaining Agreement. Each unit shall
vote separately on ratification of the collective bargaining agreement and subsequent modifications,
unless merged bargaining with pooled voting has
been agreed to in accordance with Section .2.05 of
this policy.
.03 Ratification Vote. Separate colored ballots shall be
used for each unit and each unit’s vote tallied separately UNLESS the members of each unit agreed to
pooled voting.
.12 Violations of Ratification Policies and Procedures
.01 If the Field Director determines that a ratification
procedure violated policies and procedures of the
Association assuring fair representation, s/he may
order that the results of the ratification vote be set
aside and a new ratification vote be conducted.
.02 A chapter may appeal the Field Director’s decision to set the results of the ratification vote aside.
Such appeal shall be in writing, addressed to the
Association President with a copy to the Executive
Director, postmarked within ten (10) days of the
date of the notice from the Field Director, and shall
stipulate the reasons why the chapter believes the
results of the original ratification vote should stand.
Within five (5) working days, the appeal will be
considered by the Association President or his/
her designee, the concerned Area Director, and the
Executive Director or his/her designee, with the
decision referred to the CSEA Board of Directors
for ratification at its next meeting. (If the Area
Director is a member of the appealing chapter, the
Association President may appoint another Board
member to consider the appeal.)
Immediately following action on the appeal, the
Executive Director shall cause the Field Director,
Labor Relations Representative, Regional
Representative and Chapter President to be orally
notified of the approval or denial of the appeal, and
shall issue a follow-up written notification to all
concerned.
15
.13 Contract Execution.
If ratification is properly approved over the objection
of the Association representative, the Association shall
execute the contract or amendments thereto together with
authorized chapter personnel, unless one or both of the
following exist:
.01 The contract or proposed amendments contain provisions which are unlawful.
.02 The contract or proposed amendments are in violation of CSEA’s Constitution & Bylaws, Policies, or
procedures of the Association assuring fair representation.
(a) If the Field Director determines that a
collective bargaining agreement or a
subsequent modification violates law and/
or CSEA’s Constitution & Bylaws, Policies,
or procedures of the Association assuring
fair representation, s/he may prohibit
the collective bargaining agreement or the
subsequent modification from taking effect
and/or considered for ratification, including
informing the employer that the specific
collective bargaining agreement or subsequent
modification is not legal and/or violates
CSEA’s Constitution & Bylaws, Policies, or
procedures of the Association assuring fair
representation.
(b) A chapter may appeal the Field Director’s
decision to prohibit the collective bargaining
agreement or the subsequent modification
from taking effect and/or considered for
ratification. Such appeal shall be in writing,
addressed to the Association President with
a copy to the Executive Director, postmarked
within ten (10) days of the date of the notice
from the Field Director, and shall stipulate
the reasons why the chapter believes the
results of the original ratification vote should
stand.
16
Within five (5) working days, the appeal will
be considered by the Association President
or his/her designee, the concerned Area
Director, and the Executive Director or his/
her designee, with the decision referred to
the CSEA Board of Directors for ratification
at its next meeting. (If the Area Director
is a member of the appealing chapter, the
Association President may appoint another
Board member to consider the appeal.)
Immediately following action on the appeal,
the Executive Director shall cause the Field
Director, Labor Relations Representative,
Regional Representative and Chapter
President to be orally notified of the approval
or denial of the appeal, and shall issue a
follow-up written notification to all concerned.
.03 The chapter shall, immediately upon the contract or amendments thereto ratified by both itself
and the Employer, provide the Labor Relations
Representative assigned to service the chapter with
three (3) signed copies of the Agreement.
The negotiating committee should first explain the changes proposed
and the reasons for the changes as developed by the committee. Next, open
the meeting for questions. The committee must be prepared to explain why
certain suggestions were not included in the proposals that are now before the
membership.
It should be established whether the vote is to be for acceptance of the
entire proposed package, or if the members will vote article by article. Members
may wish to amend language or submit new proposals, and it is their right to
do so subject only to a majority vote of those in attendance.
After the vote to adopt the proposals, they are no longer proposals of
the negotiating committee. They now belong to the chapter and it is the
“chapter’s proposal” that is submitted to the employer.
It is the duty of the negotiating committee to make clear to the membership that these are “proposals” and, as such, they are not set in concrete. They
must be negotiated in “good faith bargaining” at the bargaining table. The
committee should emphasize that the bargaining unit members will be kept
up to date regarding the progress of negotiations and of any tentative agreements reached, and that they will be asked for further direction as necessary.
THE FORMAL PROPOSAL
The Traditional Approach
Traditionally, the formal proposal submitted to the employer presents a
total, comprehensive picture of what the contract would look like if adopted
by both sides, including schedules and appendices, and any agreements modifying or adding to the contract, whether called “sideletters,” “MOU’s”, etc.
Agreements modifying or adding to the contract should be integrated into
either the language of the contract or attached as appendices. The language
should be placed in the form of articles, sections and sub-sections. It should
not be necessary to retype the entire contract with the proposed language
included. The proposal can contain only the new and changed language,
unless the old language is needed for clarity.
17
Many articles and sections will be repeated without change in the new
contract, and should be so noted in your proposal. For example, failure to
note “Article III—No Change” may be interpreted by the employer to mean
that the proposal is to delete “Article III.”
Care should be taken to include the proposed effective dates of the contract and to make changes on all schedules and appendices that are part of
the proposal. If new appendices are added, reference should be made to them
in the appropriate article in the body of the contract. Letters of agreement
and letters of interpretation executed during the term of the present contract
should be included in the proposal if appropriate.
An Alternative to the Traditional Approach
Many chapters are now submitting contract proposals couched in more
general terms than the traditional article by article, and line by line format
described above. This approach is perfectly acceptable and may even be preferable from both a labor relations and public relations standpoint. It must satisfy the minimum public notice requirements established by PERB, by giving
the public a clear idea of what the union is seeking in negotiations.
A few examples are:
1. Instead of submitting a proposal that calls for a “16% increase to all
steps and ranges of the salary schedule,” and including the proposed
schedule as modified, the proposal could read, “provide salary increases
consistent with increases in the cost of living, productivity, labor market standards, and with the district’s ability to pay.”
2. As an alternative to providing all the details of a complicated “bus run
bidding procedure” for school bus drivers, the proposal could simply
be to “establish a comprehensive bidding process for bus runs, taking
into account bus driver seniority and qualifications, as well as equipment availability.”
3. Rather than proposing that “each bargaining unit employee will be
granted his/her birthday as a paid holiday,” the chapter could propose
“add one paid holiday to the schedule, placement of which being subject to the negotiating process.”
In each of these cases the chapter is clearly stating what they want and
need, but is clearly avoiding detailed positions that may prove to be operationally unworkable or financially impossible.
The salary proposal avoids the “split the difference” and/or “asking
for twice as much as expected” analysis sure to be made by administrators,
school boards, the public, and even CSEA members. It also prevents the
media from exploiting the “inflated and unreasonable demands of the union”
in editorials and commentary on the progress of negotiations.
18
The proposals regarding the bidding of bus runs and an additional holiday also leave more room for negotiating workable contract language to meet
real problems and legitimate needs of the bargaining unit employees represented by the union. The general proposals clearly state the interests of the
chapter and its members in gaining additional benefits, but they are not presented as firm positions the union may choose to defend at all costs.
Writing proposals in this manner invites the district to address the problem rather than the demand, and avoids the dynamic of creating unrealistic
expectations among some members. (“You said we were going to get 16%,
but you settled for 10%. So we lost 6%!”)
The negotiating committee should still develop detailed contract language addressing the subjects proposed. During negotiations, after fully
discussing the initial proposals and the problems from which they evolved,
a proposal with specific contract language can be submitted. It may be what
you already developed, or it may have to be modified to address concerns
raised by the employer at the bargaining table.
19
CHECK LIST FOR CONTRACT REVIEW
A “No” answer to any of the following questions indicates the chapter should consider addressing the
subject in the next proposal submitted to the employer. Even though some of these items cover rights guaranteed under law, it is best to include the protections in the collective bargaining agreement. This list describes
some basic provisions that should probably be included in all CSEA contracts, but it is not meant as a substitute for contract proposals generated at the local chapter level.
Does the contract:
Yes
No
❒
❒
2. Provide for dues checkoff (dues deduction)? (EC 45168)
❒
❒
3. Allow employee access to personnel files? (EC 44031)
❒
❒
4.Limit the use of items placed in personnel files? (EC 44031)
❒
❒
5. Allow rebuttal to material place in personnel files? (EC 44031)
❒
❒
6. Ensure the grievability of non-factual material place in employee’s
personnel files?
❒
❒
7. Permit CSEA access to personnel files with employee’s consent?
❒
❒
8. Allow CSEA use of bulletin boards, district facilities (without charge)?
❒
❒
9.Grant CSEA access to work sites?
❒
❒
❒
❒
11. Ensure that CSEA can receive district material relevant to contract
negotiations or contract administration?
❒
❒
12. Provide for the periodic update and distribution (or posting) of seniority
lists and provide copies to CSEA?
❒
❒
13. Provide for paid release time for chapter officers, delegates, job stewards,
site representatives, State Association officers and Trainer’s Bureau members
on official CSEA business?
❒
❒
14. Prohibit negotiations with advisory councils, district committees and organi­
zations other than CSEA?
❒
❒
15. Provide for the printing and distribution of the contract at district expense?
❒
❒
1. Acknowledge CSEA and its chapter as the exclusive bargaining representative
of the employees in all employment relations matters?
10. Require that the CSEA chapter and Labor Relations Representative be
notified in writing of any district action affecting the wages, hours and
working conditions of bargaining unit employees?
20
Checklist (con’t)
Yes
No
16. Provide paid release time for CSEA selected job stewards when involved in
activities related to the administration of the agreement?
❒
❒
❒
❒
18. Provide appeal rights, with CSEA representation, for sub-standard performance evaluations?
❒
❒
19. Limit the use of performance evaluations to non-disciplinary corrective
action?
❒
❒
20. Provide for a standard workweek and workday? (EC 45127, 45128, 45132)
❒
❒
21. Prohibit the employer from reducing employee hours of work (including
work year) for the term of the contract?
❒
❒
22. Prohibit the district’s ability to adjust hours of work without agreement
with CSEA?
❒
❒
23. Limit the district’s ability to “temporarily” increase hours without opening
the increased hour position for transfer and/or promotion?
❒
❒
24. Provide for duty-free lunch periods and rest breaks?
❒
❒
25. Provide time off for voting?
❒
❒
❒
❒
27. Ensure overtime payment and compensatory time off is consistent with the
provisions of the Fair Labor Standards Act (FLSA) and the Education Code?
❒
❒
28. Provide overtime payment for all overtime “suffered or permitted by
the employer?”
❒
❒
29. Provide for the computation of regular and overtime hourly rates of pay
on the basis of 173.33 regular hours of work per month (or less)?
❒
❒
30. Provide that volunteer work by bargaining unit employees shall be considered
paid time at the appropriate rate (either straight time or overtime)? (FLSA)
❒
❒
31. Provide overtime pay for work over 8 hours in a day or 40 hours in a week
and on the 6th & 7th day following commencement of the workweek, and
on holidays?
❒
❒
32. Provide for shift differential and split shift differential? (EC 45182)
❒
❒
17. Grant a reasonable period of time for employees to respond to formal
performance evaluations?
26. Provide procedures for the equitable assignment of overtime or “extra
time” work?
21
Checklist (con’t)
Yes
No
33. Provide that differential are included in base pay before computing any overtime?
❒
❒
34. Provide for minimum call-in, call-back and standby pay?
❒
❒
35. Provide for seniority bidding of summer assignments of employees normally
working less than a calendar year? (EC 45102)
❒
❒
36. Include a pay schedule for each bargaining unit classification?
❒
❒
37. Indicate the time and method for receiving pay?
❒
❒
38. Provide for out-of-class pay? (EC 45110)
❒
❒
39. Indicate salary schedule placement upon promotion, reclassification and
demotion?
❒
❒
40. Provide pay for training, mileage, meals lodging and longevity?
(EC 44032, 44033)
❒
❒
41. Provide pay for uniforms required? (EC45138)
❒
❒
42. Provide for tool allowance and/or replacement/reimbursement for lost,
stolen or damaged tools? (EC 35213, 32350)
❒
❒
43. Provide for district-paid auto insurance for use of personal cars on district
business? (EC 35213, 32350)
❒
❒
44. Provide that required medical examinations are at district expense? (EC 45122)
❒
❒
45. Provide full-family medical insurance?
❒
❒
46. Provide dental insurance?
❒
❒
47. Provide vision insurance?
❒
❒
48. Provide life insurance?
❒
❒
49. Provide full fringe benefits for less than full-time employees?
❒
❒
50. Provide for sufficient holidays?
❒
❒
51. Ensure that employees who do not normally work during recess periods are
granted pay for holidays which occur during recess periods?
❒
❒
52. Cover the celebration of holidays falling on a Saturday or Sunday? (EC 45203)
❒
❒
53. Spell out holiday eligibility? (EC 45203)
❒
❒
22
Checklist (con’t)
Yes
No
54. Prohibit or limit the ability of the district to grant “substitute” holidays?
❒
❒
55. Provide that employees are entitled to work or that employees are entitled to holidays on so-called teacher training, inservice, or student non-attendance days?
❒
❒
56. Have an adequate vacation schedule?
❒
❒
57.Set forth a method for accumulating vacation, liquidating vacation and carrying over accumulated vacation to subsequent years?
❒
❒
58. Provide a fair method for scheduling vacation?
❒
❒
59. Cover all of the following types of “paid” leave: Bereavement? Jury duty?
Military? Illness? Extended illness? Industrial accident? Personal necessity?
Personal business? Maternity (as illness)? Child rearing? Adoption?
❒
❒
60. Protect bargaining unit work by restricting the use of substitutes, short term
employees, unpaid volunteers, non-bargaining unit employees, student help,
independent contractors? (EC 45103, 45286, 45287, 45169, 35021)
❒
❒
61. Contain a transfer procedure which give preference to senior employees?
❒
❒
62. Restrict or prohibit involuntary transfers?
❒
❒
63. Provide for posting of vacant positions?
❒
❒
64. Give first consideration to current employees before hiring from the outside?
❒
❒
65. Provide that the most senior qualified employee will be given the promotional
vacancy?
❒
❒
66. Have a procedure for negotiating “reclassification” or handling reclassifications through the grievance procedure?
❒
❒
67. Provide for incumbent rights to a reclassified position?
❒
❒
68. Prohibit “downward” reclassifications?
❒
❒
69. Prohibit the abolishment of positions or classifications?
❒
❒
70. Contain a layoff procedure which protects the rights of senior employees
qualified to perform other work whether or not the work is in the same or
previously held classification?
❒
❒
71. Provide for notice of layoff, order of layoff, bumping rights, reemployment
rights, an accurate seniority list, notice of vacancies, notification to CSEA,
seniority during layoff, and extended reemployment time limits if employees
move to lower classifications?
❒
❒
23
Checklist (con’t)
Yes
No
72. Include a discipline procedure providing a “just cause” standard?
❒
❒
73. Make a proposed disciplinary action subject to binding arbitration?
❒
❒
74. Provide a grievance procedure with binding impartial arbitration as the
final step?
❒
❒
75. Allow any employee and/or CSEA to file a grievance?
❒
❒
76. Permit grievances on policy, rules, and the law even though they may not be
specifically addressed in the contract?
❒
❒
77. Provide paid release time for grievants, witnesses and job stewards involved
in the grievance procedure?
❒
❒
78. Provide for a grievance file separate from an employee’s personnel file?
❒
❒
79. Include a “past practice” of “maintenance of standards” clause?
❒
❒
80. Provide that the district shall maintain safe and healthful working conditions?
❒
❒
81. Establish a joint safety committee with jurisdiction solely over employee
safety issues?
❒
❒
82. Guarantee no discrimination for reporting unsafe/unhealthful conditions?
❒
❒
83. Contain a “savings” or “separability clause” which guarantees the right to
negotiate a replacement for the severed provision?
❒
❒
84. Contain a “no lock out” clause?
❒
❒
85. Include sufficient restrictions on the district’s exercising of any so-called
“management right” which is within the scope of representation?
❒
❒
86. Leave open the time for submitting proposals for a successor contract so that
it will not be inadvertently subject to automatic renewal?
❒
❒
❒
❒
❒
❒
87. Provide for CSEA participation in the implementation and operation of any
Employee Assistance Program provided by the employer to address the personal problems of employees?
88. Provide adequate employee protection in the administration of any mandatory
drug testing or drug treatment program?
24
SECTION 2
Ratification Procedures
Introduction
At the Table
Away from the Table
Employer’s Last Offer
The Ratification Meeting
Planning the Meeting
The Meeting Itself
Other
Summary of Ratification and Balloting Procedures
Ratification Procedures
Introduction
There comes a time when bargaining must end and decisions must
be made by the bargaining unit concerning the tentative agreement, or the
employer’s last offer that has been submitted for acceptance or rejection.
Tentative agreements are made by the respective bargaining teams at the
table. Generally they are reached article by article, section by section and
subsection by subsection until an entire tentative agreement is reached on the
contract (or upon any modification to an existing contract as the results of
reopeners, the effects of layoffs or any other items bargained at the table).
Tentative agreements are just that, tentative. Neither side should rely
upon these agreements nor put any of their provisions into effect until both
sides have formally ratified those agreements reached by their negotiating
teams.
Tentative agreements that have been reached must be ratified or rejected
in total. The parties are not free at their ratification meetings to pick and
choose as they would from a menu.
Within the tentative agreement there may be one or more items that would
cause either party or both parties to reject the agreement. If it is rejected
by the employer or by the CSEA members in the unit, there is the obligation to instruct their negotiating team as to what article(s), section(s) and/or
subsection(s) are to be changed and what type of changes will make it acceptable for ratification by their members. Your bargaining instructions are to
come from the members by the making, seconding and passing of motions at
the meeting or through procedures established by the chapter’s constitution
and bylaws.
The process of ratification or rejection of a tentative agreement (or the
employer’s last offer) is a critical time for both the chapter and the employer.
The process should not be rushed into at the demands of the employer nor to
the detriment of the chapter and its unit members. Too often members of both
sides can “smell the money” or other items in the tentative agreement and
they want them, NOW!!! Some are unable to restrain their desires and will
issue veiled or open threats as to what they will do if you don't have the ratification meeting immediately.
Employers’ negotiators have an easy job of ratification. They generally
have three to seven board members and a chief executive officer or a super­­
intendent to whom they supply information and materials. Your negotiating
team may have from five to 5,000 or more CSEA members who have to
review, debate and vote on the agreement.
CSEA Policy, in concert with the state and local chapter constitution
and bylaws, mandates procedures to insure the rights of every chapter
member in the unit. Be aware of the relevant requirements of CSEA’s
Constitution and Bylaws and CSEA Policy. CSEA Policy 610, relating to
collective bargaining is reproduced for your instruction and information
in the next section of this training module.
1
AT THE TABLE
If you have reached tentative agreement, the negotiating teams should to
through all tentative agreements reached word by word so no disputes will
later arise. All schedules and appendices are to be included and are to reflect
the agreements reached. For example, part of the agreement may be for “6.2%
increase applied to the salary schedule of the current contract and a two (2)
range upward movement for all paraeducator and gardening classes.” This
language and intent may be clear to those at the table, but not to anyone else.
The “new” calculated salary schedule reflecting the 6.2% increase agreed to
is to be included in the contract along with a “new” schedule showing all
positions with their allocation to the steps and ranges, including the “new”
positioning of “the paraeducator and gardening classes.”
Leave nothing to chance, guesswork or imagination. Both sides are to
be in agreement as to what is to be presented to the employer’s board members and to the unit’s membership as “the contract” for ratification. There
must be a “meeting of the minds” by negotiators. These tentative agreements,
if ratified by both sides, will become a legal, enforceable agreement subject
to interpretation by those who were not at the table. Don’t leave them in the
dark as to your agreement.
AWAY FROM THE TABLE
Once there has been a meeting of the minds and there is agreement, the
teams prepare for their ratification process. Do not permit the employer’s representatives to pressure you into making commitments as to your timing or
process. Tell them your process will take approximately two weeks and you
will let them know the outcome. Their process is their business and our process is our business.
Immediately inform the chapter president that tentative agreement has
been reached. The president is to prepare to meet the requirements to CSEA’s
Bylaws and Policy 610, as well as the requirements of the chapter’s constitution and bylaws. A place for the ratification meeting should be selected and
a tentative date set. Arrangements for the printing of the tentative agreement,
summary and meeting notice should be immediately made.
The field director and the assigned labor relations representative will
immediately review the tentative agreement as required by Policy 610. The
field director needs to know the tentative dates of the ratification meetings
set by the chapter and the employer to insure a timely review will take place.
The review by field director and field representative will be for completeness, legality of provisions and compliance with CSEA’s Constitution and
Bylaws, CSEA policies or procedures of the Association—processes designed
to ensure fair representation and union democracy. The field director shall
write the required letter to the chapter president with recommendation for
approval or disapproval. The field director will not make recommendations
based upon the ‘worth’ of the contract; this is for the CSEA members in the
unit to decide.
2
If rejection is being recommended, the field director shall include the spe-
cific reasons and a labor relations representative, field director or other staff
member will be directed to be at the ratification meeting and shall be provided
“ample opportunity” to present reasons for rejection.
The chapter president, upon receipt of the field director’s letter, shall call
a meeting of all bargaining unit members. Only bargaining unit employees
who are CSEA chapter members in good standing are permitted to vote, but
all employees of the bargaining unit must have an opportunity to voice their
opinion. The meeting notice shall be issued no later than five (5) working
days prior to the meeting and shall include a copy of the tentative agreement
or a summary of it and the negotiating team’s recommendation for ratifica­tion or rejection. (Upon request of the chapter executive board, the executive
director may approve a notice period of less that five (5) working days.)
The negotiating team is cautioned, if you have reached tentative agreement on the entire package, you must recommend ratification (no matter how
you as individuals may feel), or you may be found guilty of an unfair labor
practice for having bargained in “bad faith.” The tentative agreement must be
supported by both the employer’s and the unit’s bargaining team.
EMPLOYER’S LAST OFFER
Negotiating teams may be faced with taking the employer’s “last offer”
to the bargaining unit for ratification or rejection. The same basic procedures
are to be used to insure the parties have a meeting of the minds as to what
exactly is being taken to the bargaining unit for ratification or rejection. It is
to be the exact same language, schedules and appendices that are going to the
employer’s board.
The same standards will apply for review by the field director, as ratification will also produce a legal, enforceable agreement.
As this is the employer’s “last offer” and not a tentative agreement, a
demand should be made on the employer to provide the printing of the “last
offer,” CSEA’s summary and meeting notice. They may not do it, but it’s
worth the time spent to get them to bear the cost of the printing.
Since there has not been agreement between the negotiating teams and
it is the employer’s “last offer” that is being presented, the negotiating team
is therefore free to make a recommendation for or against ratification, even
if there have been tentative agreements reached that are included in their
“last offer.”
THE RATIFICATION MEETING
This certainly can be a most critical time for any chapter and unit.
Emotions can run high and things can get out of hand if not well planned.
Both the meeting place and the conduct of the meeting should be well
planned to insure free and open discussion and an orderly secret ballot. The
chapter must insure that every unit member has been informed of the time,
date and place and has been furnished the required materials.
3
PLANNING THE MEETING
This is CSEA’s meeting for the unit members and is held to decide a
vitally important issue. You can exclude all others who have no right to be
there and probably should do so unless there is good reason to invite someone. (Be aware, if you meet in a public building you are governed by the
“Civic Center Act” that forbids a meeting to be closed to the public. You may
wish to arrange to meet in a private place where people can be excluded from
attendance.)
You may wish to invite the mediator or fact finder who was involved.
You may wish to invite your area director, other members of the board of
directors and your regional representative. You certainly do not want the
employer’s board members, management, confidential and supervisory
employees, members of units represented by other organizations and members of the general public present.
The meeting place should be able to hold all the unit members with a
place to sit, good lighting, a sound system (if needed), entrances that can be
controlled, rest room facilities and adequate parking.
The chapter’s treasurer should have an up-to-date listing of all CSEA
members in good standing in the unit entitled to vote. If more than one unit is
to vote on the agreement, there is to be a separate listing for each unit. Every
chapter should know exactly what positions and persons are in each unit. It is
not enough just to know what CSEA members are in each unit.
Ballots are to be prepared for the voting by units. Separate colored ballots
must be provided for each unit, and each unit’s vote tallied separately unless
pooled voting has been agreed to. Controls should be established to insure
accuracy and privacy. Ballots are to be issued only to the unit’s CSEA members in good standing, noting a ballot was issued next to the member’s name.
Duplicate ballots should be issued only if the original ballot is returned fully
intact. The ballot boxes are to be controlled by the tellers (including the control of the issue and return of mail ballots if the balloting is to be by mail).
Tellers should be appointed by the president at the start of the meeting.
They should assist the chapter’s treasurer in issuance of ballots and assume
responsibility for ballot control when all ballots have been issued.
If the chapter has no sergeant-at-arms, one should be appointed prior to
the meeting, along with as many assistants as may be needed for control of
the access and crowd. They should be informed as to their duties.
If the chapter has no parliamentarian, one should be appointed prior to
the start of the meeting. (Your regional representative, area director or an
experienced chapter member may be likely candidates.) The parliamentarian must maintain neutrality and know at least the basics of Robert’s Rules
of Order. The parliamentarian should review all the written materials and the
agenda so accurate, knowledgeable rulings can be made. A meeting of the
chairperson and the parliamentarian should be held and all aspects and expectations should be discussed.
4
The agenda should be simple, but well planned. The president or that
person appointed to chair the meeting should review the materials and
Robert’s Rules of Order to insure a fair and efficiently run meeting.
THE MEETING ITSELF
The following is a suggested plan and agenda for the meeting:
1. Call meeting to order.
2. Flag salute (if normally done and a flag is present).
3. Introduction of non-unit members present, such as area director,
regional representative, field director, parliamentarian; introduction
of sergeant-at-arms and assistants, etc.
The chair may wish to explain who they are, why they are attending (and answer any questions concerning the right to be present).
If there are challenges to their being present, the matter should be
taken care of immediately, by ruling of the chair or by vote of the
CSEA members in the unit.
4. Chair appoints the tellers and chief teller and instructs them as to
their duties.
5. Chair states the reason for the meeting; requests (or if in a private
meeting place, demands) all those not in the unit or not there by right
or invitation to leave and instructs the sergeant-at-arms to assist them
out of the meeting room and then to control the doors. The chair
then explains, or calls upon the parliamentarian to explain, the order
of business and the “ground rules” based on Robert’s Rules
of Order, the chapter’s constitution and standing rules.
6. The negotiating team is called upon to present the tentative agreement or employer’s “last offer” (a full reading may be dispensed
with upon motion, second and motion being carried). The chair
should then call for the negotiating team?s recommendation.
7. Once the motion is on the floor, questions may be asked of the
negotiating team concerning any part of the agreement (or the
“last offer”), statements can be made and debate entered into.
Anything not on point should be ruled out-of-order by the chair.
8. When a motion to end debate is seconded and passed, the chair
shall, for clarifications, restate the motion and the negotiating
team’s recommendation.
9. The chair should announce how the ballots are to be distributed
and returned. (See CSEA Policy 610.5.)
5
10. If the vote is taken at the meeting, the chair should announce if the
vote is affirmative for ratification, the meeting will continue (or
adjourn) as appropriate to the agenda. The chair should announce
if the vote is against ratification; the meeting will continue for
instructions to the negotiating team concerning future negotiations
and for any other action deemed appropriate by members, a pos­
sible strike vote or other action.
11. Ballots are to be retained until all challenges are settled.
12. Any strike or concerted activities ballot should also be handled in
the same manner. No such action shall be taken unless there is a
favorable vote of 65% or more by the dues-paying members present
and entitled to vote. (See CSEA Bylaws, Article XII, Section 2.)
OTHER
All motions should be made in positive terms, such as, “I move the ratification of the tentative agreement (or last offer),” or “I move we give authority
to the executive committee to call a strike at the time they deem appropriate.”
By making a motion in the positive, understanding of the motion is improved,
ballots can be made: FOR (and) AGAINST
If through Policy 610 review, rejection is being recommended, this item
should be placed on the agenda immediately after the negotiating team’s recommendation and ample time provided to outline the reasons for rejection.
Staff can be called upon to answer questions of a technical nature by
the chair. It is to be made clear that this is the unit members’ meeting and
the unit’s CSEA members’ decision-making time, not staff’s.
Upon ratification of an agreement by the employer and the unit, the agree­
ment is to be signed and dated by both parties. All pertinent dates are
to be completed. Each party should have an exact copy as ratified and signed
and it should be put away for safekeeping. In addition, the chapter shall
immediately provide the labor relations representative with three (3) copies
of the contract and/or amendments. The labor relations representative will
retain one copy for his/her chapter file and forward two (2) copies to the field
office. The field office shall update their records and maintain one copy in the
field office chapter file and forward the second copy to the Organizing and
Research Department.
The process of contract review and ratification takes time. Together we
can shorten the time it takes to review, make recommendations, write the letter and have it in the chapter president's hands. The field office and staff will,
within their capabilities, do all they can to assist chapters in this process.
If two or more units are voting to ratify or reject the same agreement, you
could have one unit accepting while the other unit(s) reject. Barring any other
mutual agreement, if the employer and a unit ratify, their agreement is in place.
Any rejecting unit is then to follow the procedure outlined in item 10 to instruct
their negotiators and take appropriate actions.
6
SUMMARY OF RATIFICATION AND
BALLOTING PROCEDURES
Depending on the makeup of the bargaining unit(s) in the chapter, or
depending on the geographic makeup of the district, many times a significant portion of the membership is denied the opportunity to vote on contract
ratification if voting rights are limited to those members in attendance at the
ratification meeting. For example, members working a swing or night-shift
may not have release time to attend a night meeting; or in districts (especially
some rural districts, or even a large urban district such as Los Angeles) where
the work sites may be spread out over a large area, time and distance for
travel may be prohibitive. And, while the option of a mail ballot has always
been available, this process can be costly. Providing the additional option of
site balloting will allow chapters where these type of problems exist a better
opportunity to ensure a more democratic ratification process.
To summarize, there are three permissible methods by which chapters
may conduct contract ratifications:
A. By balloting at the ratification meeting.
B. By site ballot.
C. By mail ballot.
However, chapters must make a choice as to which voting method they
will use. While all three procedures are permissible under both the revised
Bylaws Article XII, and Policy 610, each chapter must decide on the one,
single method of conducting the ratification vote that will best suit the needs
of is membership, and then place the applicable provisions within its consti­
tution. (See CSEA Publication 119 “Chapter Constitution Guideline” for
sample constitution language and procedures.)
Yes and No Vote
If the majority of the eligible voters vote yes on ratification, you have an
agreement—provided, of course, that the majority of the district’s governing
board take similar action. The law intends that agreements reached must be
approved by the employee organization and the governing board.
If a majority of the eligible voters vote no on ratification, you do not have
an agreement.
Alternatives After a No Vote
If the vote is no on the ratification of the agreement, three legal alternatives are available to the negotiating team.
1.Continue negotiations
Return to the bargaining table, and attempt to continue negotiations in a
good faith effort to reach agreement. However, keep in mind that when you
return to the table the management team may legally declare that an impasse
has been reached and request mediation.
7
2.Declare impasse
Return to the table and declare an impasse has been reached and request
mediation.
In either event, the negotiating team should return to the table and inform
the management team that the bargaining unit refused to ratify management’s
last offer. The negotiating team must then state its intention to continue negotiations or declare that an impasse exists and commence impasse proceedings
by calling for mediation.
3.Concerted activities
Once impasse proceedings have been exhausted to the point of completion of fact-finding, the chapter may call for concerted activities including
a strike in accordance with CSEA’s Constitution and Bylaws, Article XII,
Section 2.
8
SECTION 3
CSEA Policies for Collective Bargaining
Policy 610—Collective Bargaining
Policy 610–Collective Bargaining
(Caveat: Always check the CSEA web site for the current version of
Policy 610; Policy is subject to change and you should always work from the
current Policy which is in effect.)
610 COLLECTIVE BARGAINING
B-XII.
Revised November 2009
.1
Purpose. Every chapter of this Association shall, when
designated the exclusive representative of a bargaining
unit, negotiate a contract covering wages, hours and other
terms and conditions of employment with the employer.
The purpose of this policy is to ensure that negotiated collective bargaining agreements and subsequent modifications, as described in Sections .8 and .9 of this policy, are
properly approved by the chapter’s membership and the
Association.
.01 Petitions for Recognition. Any petition submitted
by a chapter of this Association seeking exclusive
recognition (including a petition seeking decertification of another organization) under the laws
of this state and rules of the Public Employment
Relations Board (PERB) shall seek recognition for
“The California School Employees Association and
its (name) Chapter (number).”
.2
Failure to Adhere to Policy. Should chapter officers
fail to adhere to this policy, it shall be grounds for their
expulsion from membership or removal from office under
Article II, Section 7 of the Association Constitution upon
charges being brought and sustained by the Board of
Directors that they have intentionally and knowingly violated the provisions of Policy 610.
.3
Initial Proposals
.01
Each chapter, when negotiating a full contract, shall
survey its membership for recommendations of its
initial bargaining proposal.
.02 Each chapter shall ensure that initial bargaining
proposals are determined by a vote of the membership.
Initial proposals shall meet the requirements of
the Public Employment Relations Board and shall
include sufficient information concerning subjects
to be discussed during negotiations.
If there is more than one bargaining unit in a chapter, the chapter leadership shall ensure that the initial bargaining proposals are determined by a vote
of the membership of each appropriate unit.
1
.03 Each chapter will forward a copy of its initial bargaining proposal to the Field Director and Labor
Relations Representative before it is presented to
the membership for approval. When it is available, a
copy of the employer’s initial proposal will also be
provided to the Field Director and Labor Relations
Representative. As soon as it is practical, the Field
Director shall review the initial proposals and advise
the chapter of any concerns as well as identify
resources that may be helpful to the chapter in negotiations.
.4 Prior to a chapter beginning the negotiations process, the
Labor Relations Representative will review the procedures for ratification, as described in this Policy, with the
Chapter leadership.
.5
The employer shall be notified of CSEA’s negotiations and
ratification process and procedures at the outset of negotiations.
.6
Merged Bargaining. Merged bargaining with pooled voting is an alternative form of negotiation and ratification for
chapters with more than one bargaining unit. The provisions for merged bargaining and pooled voting are detailed
in Section .11 of this policy.
.7
Bargaining
I f the Association becomes aware of a bargaining issue
during the chapter’s negotiations process that could be
detrimental to the chapter and/or its members, the Field
Director may call a meeting with the chapter’s Executive
Board and negotiating team/committee to discuss the issue
and possible solutions.
.8
Collective Bargaining Agreements
.01 Every collective bargaining agreement and subsequent modifications (including memorandums of
understanding, side letters, etc.) shall be executed by
both the Association and its chapter, except as herein
provided.
.02 No chapter shall enter into a collective bargaining
agreement, approve any subsequent modification
thereof (including memorandums of understanding,
side letters, etc.), or take a formal ratification vote,
until it has been reviewed by the Labor Relations
Representative and the Field Director (via Policy
610 Contract Review Form No. 3036).
(a) For purposes of this Policy, the following shall
not be considered collective bargaining agreements or subsequent modifications subject to a
ratification vote:
2
(1) Settlements resulting from unfair practice charges,
grievance procedures, PERB proceedings or
Administrative determination unless they would have
a generalized effect on the bargaining unit(s) as determined by the Field Director.
(2) Individual reclassifications or creation of new positions, unless: (1) they would have a generalized effect
on the bargaining unit(s) as determined by the Field
Director; or (2) they are submitted as part of an initial
bargaining proposal or a contract re-opener proposal.
(b) An “Appalachian-Shale” agreement with the
district, setting the new term of the agreement,
can be signed by the Chapter President with
the approval of the chapter’s Executive Board.
.9
Any re-opener modification to the agreement
shall follow the regular ratification procedures,
as described herein.
Ratification Procedures
.01 When the chapter, any chapter officer or chapter negotiating committee (by whatever name) has
negotiated a collective bargaining agreement or
modifications (including memorandums of understanding, side letters, etc.) to an existing contract,
it shall, prior to submitting the tentative agreement
to the bargaining unit members for ratification or
rejection, submit one copy to the Labor Relations
Representative assigned to the chapter.
.02 Upon receipt of the Tentative Agreement, the Labor
Relations Representative shall provide a copy of the
Agreement to the Field Director.
(a) Collective bargaining agreements and subsequent modifications (including memorandums of understanding, side letters, etc.)
must be reviewed by the Labor Relations
Representative and the Field Director (via
Policy 610 Contract Review Form No. 3036)
before a chapter takes a formal ratification
vote.
.03 The Field Director shall forward to the Chapter
President, without delay, a review that determines
whether the Agreement is in compliance with applicable laws, CSEA’s Constitution and Bylaws, and/
or policies of the Association. If the review recommends disapproval, the Field Director shall include
the specific reasons as to why such a recommendation is being made. In cases where a verbal review is
necessary, the Field Director shall immediately follow up such verbal review in writing to the Chapter
President. The review letter shall be provided in
writing to the Chapter President prior to the ratification meeting.
.04 After receipt of the aforementioned written review
from the Field Director, the Chapter President,
in accordance with Article XII, Section 3 of the
Association Bylaws, shall call a meeting of all members of the bargaining unit(s) at which the leadership shall outline all the provisions of the Tentative
Agreement and provide an opportunity for discussion, debate, answering of questions, and voting.
3
(a) Such meetings shall be open to attendance by
all members of the bargaining unit(s), whether
or not they are CSEA members. Non-members
in attendance shall be granted the right to participate in the discussions and debate. They
shall not, however, have the right to make
motions or vote.
(b) If the Association is recommending rejection of the proposed contract or amendments
thereto, an Association representative shall be
in attendance at the ratification meeting and
shall be provided ample opportunity to outline
the rejection and reasons therefore.
.05 The meeting notice shall be issued to all bargaining
unit members no later than five (5) working days
before the scheduled meeting.* The chapter executive board shall determine the most efficient means
of distributing the notice, which may be to individual bargaining unit members utilizing the district
mail system, distribution by site representatives or
others, or by posting in prominent location(s) at each
work site.
* The Executive Director, or designee, may approve
a notice period of less than five (5) working days,
upon request of the chapter executive board.
.06 In addition to the meeting notice, the chapter shall
provide each CSEA member of the bargaining unit(s):
(1) a copy of the Tentative Agreement, or a summary
of the Tentative Agreement; and (2) a statement as
to whether or not the Negotiating Committee recommends ratification or rejection of the Agreement, and
the Association’s recommendation if for rejection.
(a) The Negotiating Committee shall not recommend rejection of a Tentative Agreement
reached under good faith bargaining, unless
appropriate in reference to an employer’s last,
best, final offer.
.10 Ratification Vote
The ratification vote shall be by secret ballot conducted in
accordance with procedures as specified in the chapter’s
Constitution as approved by the Association:
.01 Voting by CSEA members in good standing of the
appropriate bargaining unit(s) present at a ratification meeting conducted in accordance with
Section .9, above.
(a) The meeting notice shall include appropriate
information and notification that the secret
ballot vote on ratification will be conducted at
the meeting, and shall contain the times allotted for discussion/debate, and the times during
which voting will take place.
4
(b) Polls for voting shall not be opened until the
period for discussion/debate has begun.
(c) At least two Tellers shall be appointed to conduct the balloting. Tellers shall verify CSEA
membership in good standing and members
shall sign or initial for receipt of the ballot next
to their name on the membership list. Ballots
shall be deposited in a closed ballot box.
Bargaining unit members who are not members of CSEA shall not be permitted to vote.
(d) Absentee or proxy votes shall not be permitted.
(e) Ballots shall be tallied and results announced
prior to close of the meeting.
.02 Voting by mail ballot.
(a) Ballots and return addressed envelopes,
together with instructions for completion and
return to a designated chapter officer (election official), shall be distributed to all CSEA
members in good standing of the appropriate
bargaining unit(s).
(b) Ballots shall be mailed via First Class, U.S.
Postal Service, to the member’s home address,
at least ten (10) days in advance of the date set
for receipt of the completed ballot by the designated official.
(c) A double envelope system for return shall be
used, providing a space for signature, CSEA
member number, and other identification of
the voter on the outside of the return addressed
envelope to verify voter eligibility.
(d) At least two Tellers shall be appointed to oversee
the election process and conduct the vote tally.
(e) Any and all costs of mail balloting shall be the
sole responsibility of the chapter.
.03 Voting by site ballot.
(a) The location(s) and number of voting sites and
the date and times for conducting the balloting
shall be determined by the executive board.
(b) At least two Tellers shall be appointed to conduct the balloting at each voting site. Listings
of members in good standing eligible to vote
at each of the designated voting sites shall be
provided to the Tellers.
(c) Members shall be notified at least five (5)
working days in advance of the date, time(s)
and location where the balloting will be conducted for their designated site. Notice may be
by any of the means listed in Section .9.05 of
this policy.
5
The Executive Director, or designee, may
approve a notice period of less than five (5) workings days upon request of the executive board.
(d) Tellers shall verify CSEA membership in good
standing and the members shall sign for receipt
of the ballot next to their name on the voter list.
Ballots shall be deposited in a closed ballot box.
(e) Members shall be required to cast their ballots
at their designated voting site only.
Voters whose names are not on the site list
shall be permitted to cast a challenged ballot, which shall be placed in an appropriately
identified envelope, sealed and set aside until
all other votes have been tallied. If the number
of challenged ballots could affect the outcome
of the vote, voter eligibility shall be determined
and valid ballots then counted.
(f)
Ballots shall be counted and verified separately for each voting site, prior to combining
the count for the final tally.
.11 Chapters With More Than One Bargaining Unit.
.01 Merged Bargaining. Merged bargaining with
pooled voting is an alternative form of negotiation
and ratification for chapters with more than one bargaining unit.
(a) Prior to submission of the initial proposals to the
employer, each bargaining unit shall separately
determine whether negotiations for the units
should be merged, including a pooled ratification
vote, or whether negotiations will be considered
separate for each unit and thereby subject to separate, independent ratification votes by each unit.
(b) The employer shall be notified of the agreedupon ground rules for ratification at the outset
of negotiations.
(c) No bargaining unit can be included in merged
negotiations without its consent. Once consent
is given, no unit can withdraw from merged
negotiations for that contract without the consent of all parties including, if initial proposals
have been submitted to the employer, the consent of the employer.
.02 Collective Bargaining Agreement. Each unit shall
vote separately on ratification of the collective bargaining agreement and subsequent modifications, unless
merged bargaining with pooled voting has been agreed
to in accordance with Section .2.05 of this policy.
6
.03 Ratification Vote. Separate colored ballots shall be
used for each unit and each unit’s vote tallied separately UNLESS the members of each unit agreed to
pooled voting.
.12 Violations of Ratification Policies and Procedures
.01 If the Field Director determines that a ratification
procedure violated policies and procedures of the
Association assuring fair representation, s/he may
order that the results of the ratification vote be set
aside and a new ratification vote be conducted.
.02 A chapter may appeal the Field Director’s decision to set the results of the ratification vote aside.
Such appeal shall be in writing, addressed to the
Association President with a copy to the Executive
Director, postmarked within ten (10) days of the date
of the notice from the Field Director, and shall stipulate the reasons why the chapter believes the results
of the original ratification vote should stand.
Within five (5) working days, the appeal will be considered by the Association President or his/her designee, the concerned Area Director, and the Executive
Director or his/her designee, with the decision referred
to the CSEA Board of Directors for ratification at its
next meeting. (If the Area Director is a member of
the appealing chapter, the Association President may
appoint another Board member to consider the appeal.)
Immediately following action on the appeal, the
Executive Director shall cause the Field Director, Labor
Relations Representative, Regional Representative and
Chapter President to be orally notified of the approval or
denial of the appeal, and shall issue a follow-up written
notification to all concerned.
.13 Contract Execution.
If ratification is properly approved over the objection
of the Association representative, the Association shall
execute the contract or amendments thereto together with
authorized chapter personnel, unless one or both of the following exist:
.01 The contract or proposed amendments contain provisions which are unlawful.
.02 The contract or proposed amendments are in violation
of CSEA’s Constitution & Bylaws, Policies, or procedures of the Association assuring fair representation.
(a) If the Field Director determines that a collective bargaining agreement or a subsequent
modification violates law and/or CSEA’s
Constitution & Bylaws, Policies, or procedures
of the Association assuring fair representation,
s/he may prohibit the collective bargaining
agreement or the subsequent modification from
taking effect and/or considered for ratification,
including informing the employer that the specific collective bargaining agreement or subsequent modification is not legal and/or violates
CSEA’s Constitution & Bylaws, Policies, or
procedures of the Association assuring fair representation.
7
(b) A chapter may appeal the Field Director’s
decision to prohibit the collective bargaining agreement or the subsequent modification from taking effect and/or considered for
ratification. Such appeal shall be in writing,
addressed to the Association President with
a copy to the Executive Director, postmarked
within ten (10) days of the date of the notice
from the Field Director, and shall stipulate the
reasons why the chapter believes the results of
the original ratification vote should stand.
Within five (5) working days, the appeal will
be considered by the Association President or
his/her designee, the concerned Area Director,
and the Executive Director or his/her designee,
with the decision referred to the CSEA Board
of Directors for ratification at its next meeting. (If the Area Director is a member of the
appealing chapter, the Association President
may appoint another Board member to consider the appeal.)
Immediately following action on the appeal,
the Executive Director shall cause the Field
Director, Labor Relations Representative,
Regional Representative and Chapter
President to be orally notified of the approval
or denial of the appeal, and shall issue a follow-up written notification to all concerned.
.03 The chapter shall, immediately upon the contract or amendments thereto ratified by both itself
and the Employer, provide the Labor Relations
Representative assigned to service the chapter with
three (3) signed copies of the Agreement.
8
SECTION 4
California Educational
Employment Relations Act
Chapter 10.7—Meeting and Negotiating in Public
Educational Employment
California Educational
Employment Relations Act
(Caveat: Always check the updated version of the Government Code for
the current EERA.)
Chapter 10.7 Meeting and Negotiating
in Public Educational Employment
Article 1. General Provisions
3540. I3540. Purpose of chapter
It is the purpose of this chapter to promote the improvement of
personnel management and employer-employee relations within
the public school systems in the State of California by providing a
uniform basis for recognizing the right of public school employees
to join organizations of their own choice, to be represented by the
organizations in their professional and employment relationships
with public school employers, to select one employee organization as
the exclusive representative of the employees in an appropriate unit,
and to afford certificated employees a voice in the formulation of
educational policy. This chapter shall not supersede other provisions
of the Education Code and the rules and regulations of public school
employers which establish and regulate tenure or a merit or civil
service system or which provide for other methods of administering
employer-employee relations, so long as the rules and regulations or
other methods of the public school employer do not conflict with lawful collective agreements.
It is the further intention of the Legislature that this chapter shall not
restrict, limit, or prohibit the full exercise of the functions of any
academic senate or faculty council established by a school district in
a community college to represent the faculty in making recommendations to the administration and governing board of the school district
with respect to district policies on academic and professional matters,
so long as the exercise of the functions does not conflict with lawful
collective agreements.
It is the further intention of the Legislature that any legislation
enacted by the Legislature governing employer-employee relations
of other public employees shall be incorporated into this chapter to
the extent possible. The Legislature also finds and declares that it is
an advantageous and desirable state policy to expand the jurisdiction
of the board created pursuant to this chapter to cover other public
employers and their employees, in the event that this legislation is
enacted, and if this policy is carried out, the name of the Educational
Employment Relations Board shall be changed to the "Public
Employment Relations Board."
1
3540.1. Definitions
As used in this chapter:
(a) "Board" means the Public Employment Relations Board created
pursuant to Section 3541.
(b) "Certified organization" or "certified employee organization"
means an organization which has been certified by the board as
the exclusive representative of the public school employees in an
appropriate unit after a proceeding under Article 5 (commencing
with Section 3544).
(c) "Confidential employee" means any employee who is required
to develop or present management positions with respect to
employer-employee relations or whose duties normally require
access to confidential information that is used to contribute significantly to the development of management positions.
(d) "Employee organization" means any organization which includes
employees of a public school employer and which has as one of
its primary purposes representing those employees in their relations with that public school employer. "Employee organization"
shall also include any person of the organization authorized to
act on its behalf.
(e) "Exclusive representative" means the employee organization recognized or certified as the exclusive negotiating representative
of certificated or classified employees in an appropriate unit of a
public school employer.
(f) "Impasse" means that the parties to a dispute over matters within
the scope of representation have reached a point in meeting and
negotiating at which their differences in positions are so substantial or prolonged that future meetings would be futile.
(g) "Management employee" means any employee in a position having significant responsibilities for formulating district policies or
administering district programs. Management positions shall be
designated by the public school employer subject to review by
the Public Employment Relations Board.
(h) "Meeting and negotiating" means meeting, conferring, negotiating, and discussing by the exclusive representative and the
public school employer in a good faith effort to reach agreement
on matters within the scope of representation and the execution,
if requested by either party, of a written document incorporating
any agreements reached, which document shall, when accepted
by the exclusive representative and the public school employer,
become binding upon both parties and, notwithstanding Section
3543.7, is not subject to subdivision 2 of Section 1667 of the
Civil Code. The agreement may be for a period of not to exceed
three years.
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(i) "Organizational security" is within the scope of representation,
and means either of the following:
(1) An arrangement pursuant to which a public school employee
may decide whether or not to join an employee organization,
but which requires him or her, as a condition of continued
employment, if he or she does join, to maintain his or her
membership in good standing for the duration of the written
agreement. However, an arrangement may not deprive the
employee of the right to terminate his or her obligation to the
employee organization within a period of 30 days following
the expiration of a written agreement.
(2) An arrangement that requires an employee, as a condition
of continued employment, either to join the recognized or
certified employee organization, or to pay the organization a
service fee in an amount not to exceed the standard initiation
fee, periodic dues, and general assessments of the organization for the duration of the agreement, or a period of three
years from the effective date of the agreement, whichever
comes first.
(j) "Public school employee" or "employee" means any person
employed by any public school employer except persons elected
by popular vote, persons appointed by the Governor of this state,
management employees, and confidential employees.
(k) "Public school employer" or "employer" means the governing board of a school district, a school district, a county board
of education, a county superintendent of schools, or a charter
school that has declared itself a public school employer pursuant
to subdivision (b) of Section 47611.5 of the Education Code.
(l) "Recognized organization" or "recognized employee organization" means an employee organization which has been recognized by an employer as the exclusive representative pursuant to
Article 5 (commencing with Section 3544).
(m) "Supervisory employee" means any employee, regardless of job
description, having authority in the interest of the employer to
hire, transfer, suspend, lay off, recall, promote, discharge, assign,
reward, or discipline other employees, or the responsibility to
assign work to and direct them, or to adjust their grievances, or
effectively recommend that action, if, in connection with the
foregoing functions, the exercise of that authority is not of a
merely routine or clerical nature, but requires the use of independent judgment.
3540.2. Qualified or negative certifications; proposed agreements; review process; financial impact; review and comment by
Superintendent of Public Instruction
(a) A school district that has a qualified or negative certification
pursuant to Section 42131 of the Education Code shall allow the
county office of education in which the school district is located
at least 10 working days to review and comment on any pro-
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posed agreement made between the exclusive representative and
the public school employer, or designated representatives of the
employer, pursuant to this chapter. The school district shall provide the county superintendent of schools with all information
relevant to yield an understanding of the financial impact of that
agreement.
(b) The Superintendent shall develop a format for use by the appropriate parties in generating the financial information required
pursuant to subdivision (a).
(c) The county superintendent of schools shall notify the school district, the county board of education, the district superintendent,
the governing board of the school district, and each parent and
teacher organization of the district within those 10 days if, in his
or her opinion, the agreement reviewed pursuant to subdivision
(a) would endanger the fiscal well-being of the school district.
(d) A school district shall provide the county superintendent of
schools, upon request, with all information relevant to provide
an understanding of the financial impact of any final collective
bargaining agreement reached pursuant to Section 3543.2.
(e) A county office of education, or a school district for which the
county board of education serves as the governing board, that
has a qualified or negative certification pursuant to Section 1240
of the Education Code shall allow the Superintendent at least 10
working days to review and comment on any proposed agreement or contract made between the exclusive representative and
the public school employer, or designated representatives of the
employer, pursuant to this chapter. The county superintendent
of schools shall provide the Superintendent with all information relevant to yield an understanding of the financial impact of
that agreement or contract. The Superintendent shall notify the
county superintendent of schools, and the county board of education within those 10 days if, in his or her opinion, the proposed
agreement or contract would endanger the fiscal well-being of
the county office.
ARTICLE 2
ADMINISTRATION
3541. Public employment relations board
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(a) There is in state government the Public Employment Relations
Board which shall be independent of any state agency and shall
consist of five members. The members of the board shall be
appointed by the Governor by and with the advice and consent
of the Senate. One of the original members shall be chosen for
a term of one year, one for a term of three years, and one for a
term of five years. The first term for the two new members of the
board resulting from the expansion of the board to five members
shall be reduced by the Governor as necessary so that the term
of only one member of the board shall expire in any given year.
Thereafter, terms shall be for a period of five years, except that
any person chosen to fill a vacancy shall be appointed only for
the unexpired term of the member whom he or she succeeds.
Members of the board shall be eligible for reappointment. The
Governor shall select one member to serve as chairperson. A
member of the board may be removed by the Governor upon
notice and hearing for neglect of duty or malfeasance in office,
but for no other cause.
(b) A vacancy in the board shall not impair the right of the remaining
members to exercise all the powers of the commission, and three
members of the board shall at all times constitute a quorum.
(c) The board may delegate its powers to any group of three or more
board members. Nothing shall preclude any board member from
participating in any case pending before the board.
(d) Members of the board shall hold no other public office in the
state, and shall not receive any other compensation for services
rendered.
(e) Each member of the board shall receive the salary provided for
by Chapter 6 (commencing with Section 11550) of Part 1 of
Division 3 of Title 2. In addition to his or her salary, each member of the board shall be reimbursed for all actual and necessary
expenses incurred by him or her in the performance of his or
her duties, subject to the rules of the Department of Personnel
Administration relative to the payment of such expenses to state
officers generally.
(f) The board shall appoint an executive director who shall be the
chief administrative officer. The executive director shall appoint
other persons that may, from time to time, be deemed necessary for the performance of the board's administrative functions,
prescribe their duties, fix their compensation, and provide for
reimbursement of their expenses in the amounts made available
therefor by appropriation. The executive director shall be a person familiar with employer-employee relations. The executive
director shall be subject to removal at the pleasure of the board.
The Governor shall appoint a general counsel, upon the recommendation of the board, to assist the board in the performance of
its functions under this chapter. The general counsel shall serve
at the pleasure of the board.
(g) The executive director and general counsel serving the board
on December 31, 1977, shall become employees of the Public
Employment Relations Board and shall continue to serve at the
discretion of the board. A person so employed may, independently of the Attorney General, represent the board in any litigation or other matter pending in a court of law to which the board
is a party or in which it is otherwise interested.
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(h) The Governor shall appoint one legal adviser for each member
of the board upon the recommendation of that board member.
Each appointee shall serve at the pleasure of the recommending board member and shall receive a salary as shall be fixed
by the board with the approval of the Department of Personnel
Administration.
(i) Attorneys serving the board on May 19, 1978, shall not be
appointed as legal advisers to board members pursuant to subdivision (h) until such time as they have attained permanent civil
service status.
(j) Notwithstanding subdivision (a), the member of the board
appointed by the Governor for the term beginning on January
1, 1991, shall not be subject to the advice and consent of the
Senate.
3541.3. Powers and Duties of the Board
The board shall have all of the following powers and duties:
(a) To determine in disputed cases, or otherwise approve, appropriate units.
(b) To determine in disputed cases whether a particular item is
within or without the scope of representation.
(c) To arrange for and supervise representation elections which shall
be conducted by means of secret ballot elections, and certify the
results of the elections.
(d) To establish lists of persons broadly representative of the public
and qualified by experience to be available to serve as mediators,
arbitrators, or factfinders. In no case shall these lists include persons who are on the staff of the board.
(e) To establish by regulation appropriate procedures for review of
proposals to change unit determinations.
(f) Within its discretion, to conduct studies relating to employeremployee relations, including the collection, analysis, and making available of data relating to wages, benefits, and employment
practices in public and private employment, and, when it appears
necessary in its judgment to the accomplishment of the purposes
of this chapter, recommend legislation. The board shall report to
the Legislature by October 15 of each year on its activities during the immediately preceding fiscal year. The board may enter
into contracts to develop and maintain research and training programs designed to assist public employers and employee organizations in the discharge of their mutual responsibilities under this
chapter.
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(g) To adopt, pursuant to Chapter 3.5 (commencing with Section
11340) of Part 1 of Division 3 of Title 2, rules and regulations to
carry out the provisions and effectuate the purposes and policies
of this chapter.
(h) To hold hearings, subpoena witnesses, administer oaths, take the
testimony or deposition of any person, and, in connection therewith, to issue subpoenas duces tecum to require the production
and examination of any employer's or employee organization's
records, books, or papers relating to any matter within its jurisdiction. Notwithstanding Section 11425.10, Chapter 4.5 (commencing with Section 11400) of Part 1 of Division 3 of Title
2 does not apply to a hearing by the board under this chapter,
except a hearing to determine an unfair practice charge.
(i) To investigate unfair practice charges or alleged violations of
this chapter, and take any action and make any determinations in
respect of these charges or alleged violations as the board deems
necessary to effectuate the policies of this chapter.
(j) To bring an action in a court of competent jurisdiction to enforce
any of its orders, decisions, or rulings, or to enforce the refusal
to obey a subpoena. Upon issuance of a complaint charging that
any person has engaged in or is engaging in an unfair practice,
the board may petition the court for appropriate temporary relief
or restraining order.
(k) To delegate its powers to any member of the board or to any
person appointed by the board for the performance of its functions, except that no fewer than two board members may participate in the determination of any ruling or decision on the merits
of any dispute coming before it, and except that a decision to
refuse to issue a complaint shall require the approval of two
board members.
(l) To decide contested matters involving recognition, certification,
or decertification of employee organizations.
(m) To consider and decide issues relating to rights, privileges, and
duties of an employee organization in the event of a merger,
amalgamation, or transfer of jurisdiction between two or more
employee organizations.
(n) To take any other action as the board deems necessary to discharge its powers and duties and otherwise to effectuate the purposes of this chapter.
3541.4. Interference with board in performance of duties; misdemeanor
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Any person who shall willfully resist, prevent, impede or interfere
with any member of the board, or any of its agents, in the performance of duties pursuant to this chapter, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be sentenced to pay a fine
of not more than one thousand dollars ($1,000).
3541.5. Unfair practice; jurisdiction; procedures for investigation,
hearing and decision
The initial determination as to whether the charges of unfair practices
are justified, and, if so, what remedy is necessary to effectuate the
purposes of this chapter, shall be a matter within the exclusive jurisdiction of the board. Procedures for investigating, hearing, and deciding these cases shall be devised and promulgated by the board and
shall include all of the following:
(a) Any employee, employee organization, or employer shall have
the right to file an unfair practice charge, except that the board
shall not do either of the following:
(1) Issue 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.
(2) Issue a complaint against conduct also prohibited by the provisions of the agreement between the parties until the grievance machinery of the agreement, if it exists and covers the
matter at issue, has been exhausted, either by settlement or
binding arbitration. However, when the charging party demonstrates that resort to contract grievance procedure would be
futile, exhaustion shall not be necessary. The board shall have
discretionary jurisdiction to review the settlement or arbitration award reached pursuant to the grievance machinery
solely for the purpose of determining whether it is repugnant
to the purposes of this chapter. If the board finds that the
settlement or arbitration award is repugnant to the purposes
of this chapter, it shall issue a complaint on the basis of a
timely filed charge, and hear and decide the case on the merits. Otherwise, it shall dismiss the charge. The board shall, in
determining whether the charge was timely filed, consider the
six-month limitation set forth in this subdivision to have been
tolled during the time it took the charging party to exhaust the
grievance machinery.
(b) The board shall not have the authority to enforce agreements
between the parties, and shall not issue a complaint on any
charge based on alleged violation of any agreement that would
not also constitute an unfair practice under this chapter.
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(c) The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
ARTICLE 3
JUDICIAL REVIEW
3542. Right to judicial review; petition for writ of extraordinary
relief; notice; jurisdiction; record; findings; enforcement of final decision or order
(a) No employer or employee organization shall have the right to
judicial review of a unit determination except: (1) when the
board in response to a petition from an employer or employee
organization, agrees that the case is one of special importance
and joins in the request for such review; or (2) when the issue
is raised as a defense to an unfair practice complaint. A board
order directing an election shall not be stayed pending judicial
review.
Upon receipt of a board order joining in the request for judicial
review, a party to the case may petition for a writ of extraordinary relief from the unit determination decision or order.
(b) Any charging party, respondent, or intervenor aggrieved by a
final decision or order of the board in an unfair practice case,
except a decision of the board not to issue a complaint in such
a case, may petition for a writ of extraordinary relief from such
decision or order.
(c)Such petition shall be filed in the district court of appeal in the
appellate district where the unit determination or unfair practice dispute occurred. The petition shall be filed within 30 days
after issuance of the board's final order, order denying reconsideration, or order joining in the request for judicial review, as
applicable. Upon the filing of such petition, the court shall cause
notice to be served upon the board and thereupon shall have
jurisdiction of the proceeding. The board shall file in the court
the record of the proceeding, certified by the board, within 10
days after the clerk's notice unless such time is extended by the
court for good cause shown. The court shall have jurisdiction
to grant to the board such temporary relief or restraining order
it deems just and proper and in like manner to make and enter
a decree enforcing, modifying, or setting aside the order of the
board. The findings of the board with respect to questions of
fact, including ultimate facts, if supported by substantial evidence on the record considered as a whole, are conclusive. The
provisions of Title 1 (commencing with Section 1067) of Part
3 of the Code of Civil Procedure relating to writs shall, except
where specifically superseded herein, apply to proceedings pursuant to this section.
(d) If the time to petition for extraordinary relief from a board decision has expired, the board may seek enforcement of any final
decision or order in a district court of appeal or a superior court
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in the district where the unit determination or unfair practice
case occurred. The board shall respond within 10 days to any
inquiry from a party to the action as to why the board has not
sought court enforcement of the final decision or order. If the
response does not indicate that there has been compliance with
the board's final decision or order, the board shall seek enforcement of the final decision or order upon the request of the party.
The board shall file in the court the record of the proceeding,
certified by the board, and appropriate evidence disclosing the
failure to comply with the decision or order. If, after hearing,
the court determines that the order was issued pursuant to procedures established by the board and that the person or entity
refuses to comply with the order, the court shall enforce such
order by writ of mandamus. The court shall not review the merits
of the order.
ARTICLE 4
RIGHTS, OBLIGATIONS, PROHIBITIONS AND UNFAIR
PRACTICES
3543. Rights of public school employees
(a) Public school employees shall have the right to form, join, and
participate in the activities of employee organizations of their
own choosing for the purpose of representation on all matters of employer-employee relations. Public school employees
shall have the right to represent themselves individually in their
employment relations with the public school employer, except
that once the employees in an appropriate unit have selected
an exclusive representative and it has been recognized pursuant to Section 3544.1 or certified pursuant to Section 3544.7,
an employee in that unit shall not meet and negotiate with the
public school employer. If the exclusive representative of a unit
provides notification, as specified by subdivision (a) of Section
3546, public school employees who are in a unit for which an
exclusive representative has been selected, shall be required,
as a condition of continued employment, to join the recognized
employee organization or to pay the organization a fair share
services fee, as required by Section 3546. If a majority of the
members of a bargaining unit rescind that arrangement, either of
the following options shall be applicable:
(1) The recognized employee organization may petition for the
reinstatement of the arrangement described in subdivision (a)
of Section 3546 pursuant to the procedures in paragraph (2)
of subdivision (d) of Section 3546.
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(2) The employees may negotiate either of the two forms of
organizational security described in subdivision (i) of Section
3540.1.
(b) An employee may at any time present grievances to his or
her employer, and have those grievances adjusted, without
the intervention of the exclusive representative, as long as the
adjustment is reached prior to arbitration pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8 and the adjustment is not
inconsistent with the terms of a written agreement then in effect,
provided that the public school employer shall not agree to a
resolution of the grievance until the exclusive representative has
received a copy of the grievance and the proposed resolution and
has been given the opportunity to file a response.
3543.1. Rights of employee organizations
(a) Employee organizations shall have the right to represent their
members in their employment relations with public school
employers, except that once an employee organization is recognized or certified as the exclusive representative of an appropriate unit pursuant to Section 3544.1 or 3544.7, respectively,
only that employee organization may represent that unit in
their employment relations with the public school employer.
Employee organizations may establish reasonable restrictions
regarding who may join and may make reasonable provisions for
the dismissal of individuals from membership.
(b) Employee organizations shall have the right of access at reasonable times to areas in which employees work, the right to use
institutional bulletin boards, mailboxes, and other means of communication, subject to reasonable regulation, and the right to
use institutional facilities at reasonable times for the purpose of
meetings concerned with the exercise of the rights guaranteed by
this chapter.
(c) A reasonable number of representatives of an exclusive representative shall have the right to receive reasonable periods of
released time without loss of compensation when meeting and
negotiating and for the processing of grievances.
(d) All employee organizations shall have the right to have membership dues deducted pursuant to Sections 45060 and 45168 of the
Education Code, until an employee organization is recognized
as the exclusive representative for any of the employees in an
appropriate unit, and then the deduction as to any employee in
the negotiating unit shall not be permissible except to the exclusive representative.
3543.2. Scope of representation
(a) The scope of representation shall be limited to matters relating
to wages, hours of employment, and other terms and conditions
of employment. "Terms and conditions of employment" mean
health and welfare benefits as defined by Section 53200, leave,
transfer and reassignment policies, safety conditions of employ11
ment, class size, procedures to be used for the evaluation of
employees, organizational security pursuant to Section 3546,
procedures for processing grievances pursuant to Sections
3548.5, 3548.6, 3548.7, and 3548.8, the layoff of probationary certificated school district employees, pursuant to Section
44959.5 of the Education Code, and alternative compensation
or benefits for employees adversely affected by pension limitations pursuant to Section 22316 of the Education Code, to the
extent deemed reasonable and without violating the intent and
purposes of Section 415 of the Internal Revenue Code. In addition, the exclusive representative of certificated personnel has
the right to consult on the definition of educational objectives,
the determination of the content of courses and curriculum, and
the selection of textbooks to the extent such matters are within
the discretion of the public school employer under the law. All
matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and
negotiating, provided that nothing herein may be construed to
limit the right of the public school employer to consult with any
employees or employee organization on any matter outside the
scope of representation.
(b) Notwithstanding Section 44944 of the Education Code, the public school employer and the exclusive representative shall, upon
request of either party, meet and negotiate regarding causes and
procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated
employees. If the public school employer and the exclusive representative do not reach mutual agreement, then the provisions
of Section 44944 of the Education Code shall apply.
(c) Notwithstanding Section 44955 of the Education Code, the public school employer and the exclusive representative shall, upon
request of either party, meet and negotiate regarding procedures
and criteria for the layoff of certificated employees for lack of
funds. If the public school employer and the exclusive representative do not reach mutual agreement, then the provisions of
Section 44955 of the Education Code shall apply.
(d) Notwithstanding Section 45028 of the Education Code, the
public school employer and the exclusive representative shall,
upon request of either party, meet and negotiate regarding the
payment of additional compensation based upon criteria other
than years of training and years of experience. If the public
school employer and the exclusive representative do not reach
mutual agreement, then the provisions of Section 45028 of the
Education Code shall apply.
(e) Pursuant to Section 45028 of the Education Code, the public
school employer and the exclusive representative shall, upon
the request of either party, meet and negotiate a salary schedule
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based on criteria other than a uniform allowance for years of
training and years of experience. If the public school employer
and the exclusive representative do not reach mutual agreement,
then the provisions of Section 45028 of the Education Code
requiring a salary schedule based upon a uniform allowance for
years of training and years of experience shall apply. A salary
schedule established pursuant to this subdivision shall not result
in the reduction of the salary of any teacher.
3543.3. Negotiations
A public school employer or such representatives as it may designate
who may, but need not be, subject to either certification requirements
or requirements for classified employees set forth in the Education
Code, shall meet and negotiate with and only with representatives
of employee organizations selected as exclusive representatives of
appropriate units upon request with regard to matters within the scope
of representation.
3543.4. Management position; confidential positions; representation
A person serving in a management position, senior management
position, or a confidential position may not be represented by an
exclusive representative. Any person serving in such a position may
represent himself or herself individually or by an employee organization whose membership is composed entirely of employees designated as holding those positions, in his or her employment relationship with the public school employer, but, in no case, shall such an
organization meet and negotiate with the public school employer. A
representative may not be permitted by a public school employer to
meet and negotiate on any benefit or compensation paid to persons
serving in a management position, senior management position or a
confidential position.
3543.5. Interference with employees' rights prohibited
It is unlawful for a public school employer to do any of the following:
(a) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For purposes of this subdivision, "employee" includes an applicant for
employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an exclusive representative. Knowingly providing an exclusive representative with inaccurate information, whether or not in response
to a request for information, regarding the financial resources
of the public school employer constitutes a refusal or failure to
meet and negotiate in good faith.
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(d) Dominate or interfere with the formation or administration of
any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another.
(e) Refuse to participate in good faith in the impasse procedure set
forth in Article 9 (commencing with Section 3548).
3543.6. Unlawful acts of employee organization
It shall be unlawful for an employee organization to:
(a) Cause or attempt to cause a public school employer to violate
Section 3543.5.
(b) Impose or threaten to impose reprisals on employees, to discriminate or threaten to discriminate against employees, or otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter.
(c) Refuse or fail to meet and negotiate in good faith with a public school employer of any of the employees of which it is the
exclusive representative.
(d) Refuse to participate in good faith in the impasse procedure set
forth in Article 9 (commencing with Section 3548).
3543.7. Duty to meet and negotiate in good faith; time
The duty to meet and negotiate in good faith requires the parties to
begin negotiations prior to the adoption of the final budget for the
ensuing year sufficiently in advance of such adoption date so that
there is adequate time for agreement to be reached, or for the resolution of an impasse.
3543.8. Actions and proceedings; standing; application of section
Any employee organization shall have standing to sue in any action
or proceeding heretofore or hereafter instituted by it as representative and on behalf of one or more of its members. The provisions of
this section are expressly intended to apply to actions or proceedings
commenced prior to, but concluded or pending as of, as well as on
and after, the effective date of this section.
ARTICLE 5
EMPLOYEE ORGANIZATIONS: REPRESENTATION,
RECOGNITION, CERTIFICATION, AND DECERTIFICATION
3544. Request for recognition; proof of majority support
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(a) An employee organization may become the exclusive representative for the employees of an appropriate unit for purposes of
meeting and negotiating by filing a request with a public school
employer alleging that a majority of the employees in an appropriate unit wish to be represented by such organization and ask-
ing the public school employer to recognize it as the exclusive
representative. The request shall describe the grouping of jobs
or positions which constitute the unit claimed to be appropriate
and shall be based upon majority support on the basis of current dues deduction authorizations or other evidence such as
notarized membership lists, or membership cards, or petitions
designating the organization as the exclusive representative of
the employees. Notice of any such request shall immediately be
posted conspicuously on all employee bulletin boards in each
facility of the public school employer in which members of the
unit claimed to be appropriate are employed.
(b) The employee organization shall submit proof of majority support to the board. The information submitted to the board shall
remain confidential and not be disclosed by the board. The
board shall obtain from the employer the information necessary for it to carry out its responsibilities pursuant to this section
and shall report to the employee organization and the public
school employer as to whether the proof of majority support is
adequate.
3544.1. Grant of request for recognition; representation election;
challenge or competing claim; existing agreement; recognition of
other organization
The public school employer shall grant a request for recognition filed
pursuant to Section 3544, unless any of the following apply:
(a) The public school employer doubts the appropriateness of a
unit.
(b) Another employee organization either files with the public
school employer a challenge to the appropriateness of the
unit or submits a competing claim of representation within 15
workdays of the posting of notice of the written request. The
claim shall be evidenced by current dues deductions authorizations or other evidence such as notarized membership lists, or
membership cards, or petitions signed by employees in the unit
indicating their desire to be represented by the organization. The
evidence shall be submitted to the board, and shall remain confidential and not be disclosed by the board. The board shall obtain
from the employer the information necessary for it to carry out
its responsibilities pursuant to this section and shall report to the
employee organizations seeking recognition and to the public
school employer as to the adequacy of the evidence. If the claim
is evidenced by the support of at least 30 percent of the members of an appropriate unit, a question of representation exists
and the board shall conduct a representation election pursuant
to Section 3544.7, unless subdivision (c) or (d) of this section
applies.
(c) There is currently in effect a lawful written agreement negotiated by the public school employer and another employee orga-
15
nization covering any employees included in the unit described
in the request for recognition, unless the request for recognition
is filed less than 120 days, but more than 90 days, prior to the
expiration date of the agreement.
(d) The public school employer has, within the previous 12 months,
lawfully recognized another employee organization as the
exclusive representative of any employees included in the unit
described in the request for recognition.
3544.3. Petition requesting representation election; posting of notice
of request; appearance on ballot; transmission of petition to board
If, by January 1 of any school year, no employee organization has
made a claim of majority support in an appropriate unit pursuant to
Section 3544, a majority of employees of an appropriate unit may
submit to a public school employer a petition signed by at least a
majority of the employees in the appropriate unit requesting a representation election. An employee may sign such a petition though not a
member of any employee organization.
Upon the filing of such a petition, the public school employer shall
immediately post a notice of such request upon all employee bulletin
boards at each school or other facility in which members of the unit
claimed to be appropriate are employed.
Any employee organization shall have the right to appear on the ballot
if, within 15 workdays after the posting of such notice, it makes the
showing of interest required by subdivision (b) of Section 3544.1.
Immediately upon expiration of the 15-workday period following the
posting of the notice, the public school employer shall transmit to the
board the petition and the names of all employee organizations that
have the right to appear on the ballot.
3544.5. Petition requesting investigation, decision on selection of
exclusive representative and to determine appropriateness of unit
A petition may be filed with the board, in accordance with its rules
and regulations, requesting it to investigate and decide the question of
whether employees have selected or wish to select an exclusive representative or to determine the appropriateness of a unit, by:
(a) A public school employer alleging that it doubts the appropriateness of the claimed unit; or
(b) An employee organization alleging that it has filed a request for
recognition as an exclusive representative with a public school
employer and that the request has been denied or has not been
acted upon within 30 days after the filing of the request; or
(c) An employee organization alleging that it has filed a competing
claim of representation pursuant to subdivision (b) of Section
3544.1; or
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(d) An employee organization alleging that the employees in an
appropriate unit no longer desire a particular employee organiza-
tion as their exclusive representative, provided that such petition
is supported by evidence of support such as notarized membership lists, cards, or petitions from 30 percent of the employees in
the negotiating unit indicating support for another organization
or lack of support for the incumbent exclusive representative.
Such evidence of support shall be submitted to the board, and
shall remain confidential and not be disclosed by the board. The
board shall obtain from the employer the information necessary
for it to carry out its responsibilities pursuant to this section and
shall report to the employee organizations seeking recognition
and to the public school employer as to the adequacy of the evidence of support.
3544.7. Inquiries, investigations or hearings; determination; election;
dismissal of petition
(a) Upon receipt of a petition filed pursuant to Section 3544.3 or
3544.5, the board shall conduct inquiries and investigations or
hold any hearings it deems necessary in order to decide the questions raised by the petition. The determination of the board may
be based upon the evidence adduced in the inquiries, investigations, or hearing. However, if the board finds on the basis of the
evidence that a question of representation exists, or a question
of representation exists pursuant to subdivision (b) of Section
3544.1, it shall order that an election be conducted by secret ballot and it shall certify the results of the election on the basis of
which ballot choice received a majority of the valid votes cast.
There shall be printed on each ballot the statement: "no representation." No voter shall record more than one choice on his or her
ballot. Any ballot upon which there is recorded more than one
choice shall be void and shall not be counted for any purpose. If
at any election no choice on the ballot receives a majority of the
votes cast, a runoff election shall be conducted. The ballot for
the runoff election shall provide for a selection between the two
choices receiving the largest and second largest number of valid
votes cast in the election.
(b) An election may not be held and the petition shall be dismissed
if either of the following exist:
(1) There is currently in effect a lawful written agreement negotiated by the public school employer and another employee
organization covering any employees included in the unit
described in the request for recognition, or unless the request
for recognition is filed less than 120 days, but more than 90
days, prior to the expiration date of the agreement.
(2) The public school employer has, within the previous 12
months, lawfully recognized an employee organization other
than the petitioner as the exclusive representative of any
employees included in the unit described in the petition.
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3544.9. Recognized or certified exclusive representative; duty
The employee organization recognized or certified as the exclusive
representative for the purpose of meeting and negotiating shall fairly
represent each and every employee in the appropriate unit.
ARTICLE 6
UNIT DETERMINATIONS
3545. Appropriateness of unit; basis
(a) In each case where the appropriateness of the unit is an issue, the
board shall decide the question on the basis of the community of
interest between and among the employees and their established
practices including, among other things, the extent to which
such employees belong to the same employee organization, and
the effect of the size of the unit on the efficient operation of the
school district.
(b) In all cases:
(1) A negotiating unit that includes classroom teachers shall not
be appropriate unless it at least includes all of the classroom
teachers employed by the public school employer, except
management employees, supervisory employees, and confidential employees.
(2) Except as provided in subdivision (c), a negotiating unit of
supervisory employees shall not be appropriate unless it
includes all supervisory employees employed by the district
and shall not be represented by the same employee organization as employees whom the supervisory employees supervise.
(3) Classified employees and certificated employees shall not be
included in the same negotiating unit.
(c) In the case of a district which employs 20 or more supervisory peace officer employees, a negotiating unit of supervisory
employees shall be appropriate if it includes any of the following:
(1) All supervisory nonpeace officer employees employed by the
district and all supervisory peace officer employees employed
by the district.
(2) All supervisory nonpeace officer employees employed by the
district, exclusively.
(3) All supervisory peace officer employees employed by the district, exclusively.
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A negotiating unit of supervisory employees shall not be represented
by the same employee organization as employees whom the supervisory employees supervise.
ARTICLE 7
ORGANIZATIONAL SECURITY
3546. Member of recognized employee organization or payment of
fair share service fee; condition of employment.
(a) Notwithstanding any other provision of law, upon receiving
notice from the exclusive representative of a public school
employee who is in a unit for which an exclusive representative
has been selected pursuant to this chapter, the employer shall
deduct the amount of the fair share service fee authorized by this
section from the wages and salary of the employee and pay that
amount to the employee organization. Thereafter, the employee
shall, as a condition of continued employment, be required
either to join the recognized employee organization or pay the
fair share service fee. The amount of the fee shall not exceed the
dues that are payable by members of the employee organization,
and shall cover the cost of negotiation, contract administration,
and other activities of the employee organization that are germane to its functions as the exclusive bargaining representative.
Agency fee payers shall have the right, pursuant to regulations
adopted by the Public Employment Relations Board, to receive
a rebate or fee reduction upon request, of that portion of their fee
that is not devoted to the cost of negotiations, contract administration, and other activities of the employee organization that are
germane to its function as the exclusive bargaining representative.
(b) The costs covered by the fee under this section may include, but
shall not necessarily be limited to, the cost of lobbying activities
designed to foster collective bargaining negotiations and contract administration, or to secure for the represented employees
advantages in wages, hours, and other conditions of employment
in addition to those secured through meeting and negotiating
with the employer.
(c) The arrangement described in subdivision (a) shall remain in
effect unless it is rescinded pursuant to subdivision (d). The
employer shall remain neutral, and shall not participate in any
election conducted under this section unless required to do so by
the board.
(d) (1)The arrangement described in subdivision (a) may be rescinded by a majority vote of all the employees in the
negotiating unit subject to that arrangement, if a request for a vote is supported by a petition containing 30 percent of the employees in the negotiating unit, the signatures are obtained in one academic year. There shall not be more than one vote taken during the term of any collective bargaining agreement in effect on or after January 1, 2001.
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(2) If the arrangement described in subdivision (a) is rescinded
pursuant to paragraph (1), a majority of all employees in the
negotiating unit may request that the arrangement be reinstated. That request shall be submitted to the board along with
a petition containing the signatures of at least 30 percent of
the employees in the negotiating unit. The vote shall be conducted at the worksite by secret ballot, and shall be conducted
no sooner than one year after the rescission of the arrangement under this subdivision.
(3) If the board determines that the appropriate number of signatures have been collected, it shall conduct the vote to rescind
or reinstate in a manner that it shall prescribe in accordance
with this subdivision.
(4) The cost of conducting an election under this subdivision
to reinstate the organizational security arrangement shall be
borne by the petitioning party and the cost of conducting
an election to rescind the arrangement shall be borne by the
board.
(e) The recognized employee organization shall indemnify and hold
the public school employer harmless against any reasonable
legal fees, legal costs, and settlement or judgment liability arising from any court or administrative action relating to the school
district's compliance with this section. The recognized employee
organization shall have the exclusive right to determine whether
any such action or proceeding shall or shall not be compromised,
resisted, defended, tried, or appealed. This indemnification and
hold harmless duty shall not apply to actions related to compliance with this section brought by the exclusive representative of
district employees against the public school employer.
(f) The employer of a public school employee shall provide the
exclusive representative of a public employee with the home
address of each member of a bargaining unit, regardless of when
that employee commences employment, so that the exclusive
representative can comply with the notification requirements set
forth by the United States Supreme Court in Chicago Teachers
Union v. Hudson (1986) 89 L.Ed. 2d 232.
3546.3. Member of religious body whose teachings include objections
to joining or supporting employee organizations; exception
20
Notwithstanding subdivision (i) of Section 3540.1, Section 3546, or
any other provision of this chapter, any employee who is a member of
a religious body whose traditional tenets or teachings include objections to joining or financially supporting employee organizations shall
not be required to join, maintain membership in, or financially support
any employee organization as a condition of employment; except that
such employee may be required, in lieu of a service fee, to pay sums
equal to such service fee either to a nonreligious, nonlabor organization, charitable fund exempt from taxation under Section 501(c)(3)
of Title 26 of the Internal Revenue Code, chosen by such employee
from a list of at least three such funds, designated in the organizational security arrangement, or if the arrangement fails to designate
such funds, then to any such fund chosen by the employee. Either the
employee organization or the public school employer may require
that proof of such payments be made on an annual basis to the public school employer as a condition of continued exemption from the
requirement of financial support to the recognized employee organization. If such employee who holds conscientious objections pursuant
to this section requests the employee organization to use the grievance procedure or arbitration procedure on the employee's behalf, the
employee organization is authorized to charge the employee for the
reasonable cost of using such procedure.
3546.5. Record of financial transactions; financial report
Every recognized or certified employee organization shall keep an
adequate itemized record of its financial transactions and shall make
available annually, to the board and to the employees who are members of the organization, within 60 days after the end of its fiscal year,
a detailed written financial report thereof in the form of a balance
sheet and an operating statement, signed and certified as to accuracy
by its president and treasurer, or corresponding principal officers. In
the event of failure of compliance with this section, any employee
within the organization may petition the board for an order compelling such compliance, or the board may issue such compliance order
on its motion.
ARTICLE 8
PUBLIC NOTICE
3547. Proposals relating to representation; informing public; adoption
of proposal; new subjects; regulations
(a) All initial proposals of exclusive representatives and of public
school employers, which relate to matters within the scope of
representation, shall be presented at a public meeting of the public school employer and thereafter shall be public records.
(b) Meeting and negotiating shall not take place on any proposal
until a reasonable time has elapsed after the submission of the
proposal to enable the public to become informed and the public
has the opportunity to express itself regarding the proposal at a
meeting of the public school employer.
(c) After the public has had the opportunity to express itself, the
public school employer shall, at a meeting which is open to the
public, adopt its initial proposal.
(d) New subjects of meeting and negotiating arising after the presentation of initial proposals shall be made public within 24 hours.
If a vote is taken on such subject by the public school employer,
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the vote thereon by each member voting shall also be made public within 24 hours.
(e) The board may adopt regulations for the purpose of implementing this section, which are consistent with the intent of the section; namely that the public be informed of the issues that are
being negotiated upon and have full opportunity to express their
views on the issues to the public school employer, and to know
of the positions of their elected representatives.
3547.5. Major provisions of agreement with exclusive representative
(a) Before a public school employer enters into a written agreement
with an exclusive representative covering matters within the
scope of representation, the major provisions of the agreement,
including, but not limited to, the costs that would be incurred by
the public school employer under the agreement for the current
and subsequent fiscal years, shall be disclosed at a public meeting of the public school employer in a format established for this
purpose by the Superintendent of Public Instruction.
(b) The superintendent of the school district and chief business official shall certify in writing that the costs incurred by the school
district under the agreement can be met by the district during the
term of the agreement. This certification shall be prepared in a
format similar to that of the reports required pursuant to Sections
42130 and 42131 of the Education Code and shall itemize any
budget revision necessary to meet the costs of the agreement in
each year of its term.
(c) If a school district does not adopt all of the revisions to its budget needed in the current fiscal year to meet the costs of a collective bargaining agreement, the county superintendent of schools
shall issue a qualified or negative certification for the district
on the next interim report pursuant to Section 42131 of the
Education Code.
ARTICLE 9
IMPASSE PROCEDURES
3548. Mediator; mutual agreements
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Either a public school employer or the exclusive representative may
declare that an impasse has been reached between the parties in
negotiations over matters within the scope of representation and may
request the board to appoint a mediator for the purpose of assisting
them in reconciling their differences and resolving the controversy on
terms which are mutually acceptable. If the board determines that an
impasse exists, it shall, in no event later than five working days after
the receipt of a request, appoint a mediator in accordance with such
rules as it shall prescribe. The mediator shall meet forthwith with the
parties or their representatives, either jointly or separately, and shall
take such other steps as he may deem appropriate in order to persuade
the parties to resolve their differences and effect a mutually acceptable agreement. The services of the mediator, including any per diem
fees, and actual and necessary travel and subsistence expenses, shall
be provided by the board without cost to the parties. Nothing in this
section shall be construed to prevent the parties from mutually agreeing upon their own mediation procedure and in the event of such
agreement, the board shall not appoint its own mediator, unless failure
to do so would be inconsistent with the policies of this chapter. If
the parties agree upon their own mediation procedure, the cost of the
services of any appointed mediator, unless appointed by the board,
including any per diem fees, and actual and necessary travel and subsistence expenses, shall be borne equally by the parties.
3548.1. Fact finding panel; request; selection of panel; chairperson
(a) If the mediator is unable to effect settlement of the controversy
within 15 days after his appointment and the mediator declares
that factfinding is appropriate to the resolution of the impasse,
either party may, by written notification to the other, request that
their differences be submitted to a factfinding panel. Within five
days after receipt of the written request, each party shall select a
person to serve as its member of the factfinding panel. The board
shall, within five days after such selection, select a chairperson
of the factfinding panel. The chairperson designated by the board
shall not, without the consent of both parties, be the same person
who served as mediator pursuant to Section 3548.
(b) Within five days after the board selects a chairperson of the factfinding panel, the parties may mutually agree upon a person to
serve as chairperson in lieu of the person selected by the board.
3548.2. Fact finding panel; hearing, investigations and inquiries; subpoenas; records from various agencies; considerations in arriving at
findings
(a) The panel shall, within 10 days after its appointment, meet with
the parties or their representatives, either jointly or separately,
and may make inquiries and investigations, hold hearings, and
take any other steps as it may deem appropriate. For the purpose
of the hearings, investigations, and inquiries, the panel shall
have the power to issue subpoenas requiring the attendance and
testimony of witnesses and the production of evidence. The several departments, commissions, divisions, authorities, boards,
bureaus, agencies, and officers of the state, or any political subdivision or agency thereof, including any board of education,
shall furnish the panel, upon its request, with all records, papers
and information in their possession relating to any matter under
investigation by or in issue before the panel.
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(b) In arriving at their findings and recommendations, the factfinders
shall consider, weigh, and be guided by all the following criteria:
(1) State and federal laws that are applicable to the employer.
(2) Stipulations of the parties.
(3) The interests and welfare of the public and the financial ability of the public school employer.
(4) Comparison of the wages, hours, and conditions of employment of the employees involved in the factfinding proceeding with the wages, hours, and conditions of employment of
other employees performing similar services and with other
employees generally in public school employment in comparable communities.
(5) The consumer price index for goods and services, commonly
known as the cost of living.
(6) The overall compensation presently received by the employees, including direct wage compensation, vacations, holidays,
and other excused time, insurance and pensions, medical
and hospitalization benefits; the continuity and stability of
employment; and all other benefits received.
(7) Any other facts, not confined to those specified in paragraphs
(1) to (6), inclusive, which are normally or traditionally taken
into consideration in making the findings and recommendations.
3548.3. Findings of fact and recommendation of terms of settlement;
submission; costs
(a) If the dispute is not settled within 30 days after the appointment
of the panel, or, upon agreement by both parties, within a longer
period, the panel shall make findings of fact and recommend
terms of settlement, which recommendations shall be advisory
only. Any findings of fact and recommended terms of settlement
shall be submitted in writing to the parties privately before they
are made public. The public school employer shall make such
findings and recommendations public within 10 days after their
receipt.
(b) The costs for the services of the panel chairperson selected by
the board, including per diem fees, if any, and actual and necessary travel and subsistence expenses shall be borne by the board.
(c) The costs for the services of the panel chairperson agreed upon
by the parties shall be equally divided between the parties, and
shall include per diem fees and actual and necessary travel and
subsistence expenses. The per diem fees shall not exceed the
per diem fees stated on the chairperson's resume on file with the
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board. The chairperson's bill showing the amount payable by
the parties shall accompany his final report to the parties and the
board. The chairperson may submit interim bills to the parties in
the course of the proceedings, and copies of such interim bills
shall also be sent to the board. The parties shall make payment
directly to the chairperson.
(d) Any other mutually incurred costs shall be borne equally by the
public school employer and the exclusive representative. Any
separately incurred costs for the panel member selected by each
party, shall be borne by such party.
3548.4. Continuation of mediation efforts
Nothing in this article shall be construed to prohibit the mediator
appointed pursuant to Section 3548 from continuing mediation efforts
on the basis of the findings of fact and recommended terms of settlement made pursuant to Section 3548.3.
3548.5. Agreements; final and binding arbitration procedures
A public school employer and an exclusive representative who enter
into a written agreement covering matters within the scope of representation may include in the agreement procedures for final and binding arbitration of such disputes as may arise involving the interpretation, application, or violation of the agreement.
3548.6. Agreements; final and binding arbitration pursuant to board
rules
If the written agreement does not include procedures authorized by
Section 3548.5, both parties to the agreement may agree to submit
any disputes involving the interpretation, application, or violation of
the agreement to final and binding arbitration pursuant to the rules of
the board.
3548.7. Agreements; proceedings for failure to proceed to arbitration
Where a party to a written agreement is aggrieved by the failure,
neglect, or refusal of the other party to proceed to arbitration pursuant
to the procedures provided therefor in the agreement or pursuant to
an agreement made pursuant to Section 3548.6, the aggrieved party
may bring proceedings pursuant to Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil Procedure for a court order
directing that the arbitration proceed pursuant to the procedures provided therefor in such agreement or pursuant to Section 3548.6.
3548.8. Arbitration award to be final and binding; enforcement
An arbitration award made pursuant to Section 3548.5, 3548.6,
or 3548.7 shall be final and binding upon the parties and may be
enforced by a court pursuant to Title 9 (commencing with Section
1280) of Part 3 of the Code of Civil Procedure.
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ARTICLE 10
MISCELLANEOUS
3549. Construction
The enactment of this chapter shall not be construed as making the
provisions of Section 923 of the Labor Code applicable to public
school employees and shall not be construed as prohibiting a public
school employer from making the final decision with regard to all
matters specified in Section 3543.2.
Nothing in this section shall cause any court or the board to hold
invalid any negotiated agreement between public school employers
and the exclusive representative entered into in accordance with the
provisions of this chapter.
3549.1. Proceedings exempt from public meeting provisions
All the proceedings set forth in subdivisions (a) to (d), inclusive,
are exempt from the provisions of Sections 35144 and 35145 of the
Education Code, the Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Chapter 1 of Part 1 of Division
3 of Title 2), and the Ralph M. Brown Act (Chapter 9 (commencing
with Section 54950) of Part 1 of Division 2 of Title 5), unless the parties mutually agree otherwise:
(a) Any meeting and negotiating discussion between a public
school employer and a recognized or certified employee organization.
(b) Any meeting of a mediator with either party or both parties to
the meeting and negotiating process.
(c) Any hearing, meeting, or investigation conducted by a factfinder
or arbitrator.
(d) Any executive session of the public school employer or between
the public school employer and its designated representative
for the purpose of discussing its position regarding any matter
within the scope of representation and instructing its designated
representatives.
3549.3. Severability
If any provisions of this chapter or the application of such provision
to any person or circumstances, shall be held invalid, the remainder
of this chapter or the application of such provision to persons or circumstances other than those as to which it is held invalid, shall not be
affected thereby.
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