IN A MATTER BEFORE THE RIO RANCHO PUBLIC SCHOOL DISTRICT

LABOR MANAGEMENT RELATIONS BOARD

RIO RANCHO SCHOOL EMPLOYEES UNIONComplainant/ Respondent

Case 08-02

RIO RANCHO PUBLIC SCHOOL DISTRICTCounter-complainant /Respondent

HEARING OFFICER’S REPORT AND RECOMMENDATIONS

On February 11, 12, 13, 16, 17, 18, and 20 , 2009, pursuant to an order of the Rio Rancho Public School District Labor Management Relations Board (herein called the Board), the undersigned hearing officer conducted a hearing on allegations contained in Prohibited Practice Complaints (PPC’s) filed by the Employer against the Union on June 2, 20081, and December 19, 2008, and a PPC filed by the Union against the Employer as a “Supplemental Pleading” on December 21, 2008. The Supplemental Pleading superseded several PPC’s the Union had filed against the Employer earlier in 2008. Because each of the parties is both a complainant and a respondent, I shall simply refer to them herein as the Union, or the RRSEU, and the Employer. All parties at the hearing were afforded the opportunity to be heard, to present oral and written evidence, and to examine and cross-examine witnesses. I have based my determination of the facts upon a composite of testimony of witnesses from both parties and an examination of the documentary evidence. Where necessary, I have indicated my resolutions of credibility issues.

The jurisdiction of the Board is admitted by both parties.Some of the pleadings are, essentially, an offer of proof as to the evidence,

and do not set forth the issues to be decided in the case. My decision is based upon the evidence actually submitted at the hearing, and upon my analysis of the legal issues presented by the evidence and argument. I have framed the issues a little differently from the parties. The Employer requested that all items where no evidence was presented be specifically dismissed, and enumerated these alleged items in its brief. Particularly because I have analyzed the issues differently in some respects from the parties, I recommend to the Board that any allegations of any of the PPCs in this case which allege violations not specifically found herein should be dismissed.

Summary of recommendations 1 This was a counterclaim to a PPC filed by the Union on May 16, 2008. In a decision dated July 11, 2008, the Board dismissed the Union’s May 16 PPC without prejudice, and held in abeyance a motion to dismiss the Employer’s counterclaim.

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As detailed below, I recommend that the Board find that both parties have failed to bargain in good faith, the Union by insisting for a period of time that the Employer provide its next contract proposal in advance before the Union would agree to schedule another negotiating meeting, and the Employer by engaging in surface bargaining without an intent to reach agreement, by refusing to schedule a negotiating meeting while a PPC was pending, by failing to provide certain information requested by the Union, by discriminatorily suspending the e-mail accounts of employees who are Union officers and building representatives, by unilaterally ceasing to pay high school teachers who occasionally gave up their preparation period to work as substitutes, by communicating directly with employees about mandatory subjects of bargaining, and by accessing a Union internet site the general public was not invited to access.

Threshold legal issuesThere are three legal issues which must be considered at the outset. First, the parties disagree about the appropriate legal and regulatory

authority. The Union alleges that the Employer has violated both the Rio Rancho Public School District Labor Management Relations Policy, called Policy 201, and the New Mexico Public Employees Bargaining Act (10-7E-1 to 10-7E-26 NMSA 1978 ), called PEBA herein. The Employer, on the other hand, contends that because the Rio Rancho School Board has chosen to issue its own Labor Management Relations policy and create its own Labor Management Relations Board, the parties are no longer subject to PEBA. Rather, according to the Employer, the only governing regulation is Policy 201. As discussed more fully below, Policy 201 and PEBA are parallel with respect to each of the provisions the Union claims were violated, so the resolution of this issue is not important to my decision herein. However, I note the holding in McKinley County Federation of United School Employees, AFT Local 3313 v. Gallup-McKinley County School District and Gallup-McKinley County School District Labor Management Relations Board, 03 PELRB 2007, that local labor management relations boards which were created pursuant to PEBA may not create policies which conflict with PEBA unless they receive special permission from the Public Employee Labor Relations Board (PELRB), which enforces PEBA. There is no evidence in the record that the Board or the School District have received any such special permission. I further note that Policy 201 itself provides, in Section 3, that Policy 201 “shall not supersede state or federal laws.” Thus, it appears that the Union and Employer are subject to both Policy 201 and PEBA.

It is well established in proceedings under PEBA that great weight is given to interpretations of the National Labor Relations Act where the relevant provisions are “the same or closely similar” to PEBA or to the applicable local ordinance or labor relations policy. Las Cruces Professional Fire Fighters v. City of Las Cruces, 1997 NMCA 31, 123 NM 239; Regents of UNM v. NM Federation of Teachers, 1998 NMSC 20, 125 NM 401. I shall, therefore, follow the same practice in this decision of looking to case law under the National Labor Relations Act to interpret and flesh out the requirements of Policy 201 and PEBA.

Next, the Union contends that the Rio Rancho Public School Board, not the School District administrators, must file any PPC, alleging that under state law, only a local school board has the capacity to sue or be sued, and that PEBA and Policy 201 both define the employer as the Board of Education. However, I note that Policy 201, Section 4.J, defines the “employer” as the “Rio Rancho Public

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School District,” not specifically the School Board. Moreover, it is usual for a school board to employ administrators to run the day to day business of the school district, including, among other things, negotiating with the Union and administering the collective-bargaining agreement, while the board decides matters of overall policy. Additionally, the Union has not identified any provision in Policy 210, PEBA, or the procedural rules of the Board or the PELRB which would prohibit the school administrators from filing a PPC, nor have I found any such limitation in these documents. There is also no evidence in the record that the School Board has disavowed the filing of the PPCs. Accordingly, I shall assume that the administrators were authorized to file the PPCs on behalf of the School District.

Finally, the Union also argues that business representative Andrew Lotrich should not have been named individually as a respondent in the Employer’s December 19, 2008, PPC. The Union contends that pursuant to the Board’s procedural rule 3.6.A, providing that a PPC is initiated by filing a complaint on a form provided by the Board, a PPC may be filed against only the employer, a labor organization, or an employee of the Rio Rancho Public School District. Lotrich is not an employee of the Employer, and the Union argues that he should, therefore, be removed as a respondent. The Union has not contested the Employer’s additionally naming AFT-NM2, and the NEA-NM3 as Respondents in its December 19, 2008, PPC. However, the status of all three as respondents should be considered for the purpose of any remedy the Board may order.

The agency status of the actors herein was neither pled nor litigated in the hearing, but the record clearly establishes Lotrich’s extensive role in the contract negotiations herein as an agent of the Rio Rancho School Employees’ Union (RRSEU), although he is employed by AFT, not the RRSEU. He was presumably providing assistance to the RRSEU pursuant to its affiliation with AFT-NM.4 Policy 201, tracking the language of PEBA5, defines prohibited practices by both the employer and “its representative,” in Section 16, and “an employee, labor organization, or its representative” in Section 17. However, although I find based upon the record herein that Lotrich was acting as an agent of the RRSEU, and that the RRSEU is responsible for his conduct, I will not recommend to the Board that any remedy be imposed upon Lotrich, individually. He was involved as the agent of RRSEU, and it is RRSEU which will bear the responsibility for his actions.

The Union has not raised any issue regarding the Employer also naming AFT-NM and NEA-NM as Respondents in this matter, although the RRSEU is the recognized representative of the bargaining unit and the only labor organization which is a party to the collective-bargaining agreement. The record indicates that both AFT and NEA provide assistance to RRSEU. Lotrich and Douglas Gibson, who both appeared for the Union during the hearing, are each employed by AFT, according to testimony at the hearing. Nancy Sheehan, a witness for the Union, testified that she is an NEA Uniserve director and that she handled grievances and arbitrations and “any basic matters relating to collective bargaining or any other issue that may arise” for RRSEU. Sheehan was apparently not involved in the

2 American Federation of Teachers New Mexico3 National Education Association New Mexico4 The record does not specify the relationship between the Rio Rancho School Employees Union (RRSEU) and the AFT-NM or the NEA-NM, but documents on the Union’s letterhead, which indicates it is affiliated with both the AFT and the NEA, were received in evidence at the hearing. 5 Respectively, Sections 19 and 20.

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contract negotiations, however. In addition, RRSEU treasurer Jewel Pierce sought assistance from both AFT and NEA when an employee complained to her about an issue involving repayment of ERB contributions the Employer had failed to withhold from the employee’s check. Nevertheless, the record herein establishes that Lotrich, Gibson, and Sheehan were each acting on behalf of RRSEU in the incidents relevant to these cases, not AFT or NEA. Accordingly, any remedy I recommend to the Board will run only to the RRSEU.

BackgroundThe parties have a long standing bargaining relationship, and the issues

herein arose in the context of negotiations for a successor collective bargaining agreement. The bargaining unit is described more specifically in the collective bargaining agreement, but in general it includes all regular, full and part-time licensed instructional, support, and ancillary personnel and educational assistants, and non-licensed secretarial personnel, facilities personnel, and other non-licensed employees. There are approximately 1300 to 1400 unit employees. The current agreement, dated July 1, 2007 to June 30, 2008, expired while negotiations for a new contract were still continuing, but pursuant to PEBA,6 Policy 201,7 and the agreement itself,8 it has remained in effect and will remain in effect until it is superseded by a new agreement. The 2008-2009 school year started during the second week of August, and most of the school year has been completed without a new contract. Following PEBA, Policy 201 in Section 15.C.2 sets forth an interest arbitration process to be followed if the parties reach impasse in contract negotiations, requiring that the arbitrator must choose one or the other of the parties’ complete, last, best offers. The parties have initiated, but not completed, the interest arbitration process.

ISSUES RAISED BY PPCSThe Union contends that the Employer has failed to bargain in good faith by

engaging in a course and conduct of surface bargaining, by unilaterally changing terms and conditions of employment and refusing to bargain over the changes or the effects of the changes, by failing and refusing to provide information requested by the Union which the Union needs for contract administration and collective bargaining, and by failing to process grievances in good faith. The Union withdrew allegations that the Employer violated employees’ Weingarten rights and failed to pay custodians time and a half for overtime during the hearing. Other issues raised by the Union’s PPC and the record herein include alleged retaliation against employees who are also Union officials by suspending their access to the Employer’s internal e-mail system, and alleged statements by agents of the Employer which would tend to interfere with, restrain, or coerce employees in their exercise of the rights set forth in Policy 201, Section 5, and PEBA Section 5.

The Employer, on the other hand, contends that the Union has failed to comply with Orders of the Board; violated the collective bargaining agreement by filing multiple baseless grievances and failing to observe contractual conditions for its use of the Employer’s e-mail system; failed to bargain in good faith by failing to negotiate over ground rules in violation of an order of the Board dated July 15, harassing the Employer with requests for information, insisting that the Employer 6 Section 18. D.7 Section 15.C.3.8 Article 40.

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submit its contract proposals electronically and in advance of face to face bargaining meetings, attempting to incite argument with the Employer’s negotiating team and verbally attacking the Employer’s team during negotiating meetings, providing only electronic versions of its proposals, making false and negative allegations about the Employer, discussing issues that were the subject of negotiations with principals, the School Board, and the media, and insisting to impasse upon illegal subjects of bargaining.

The central issue running through all of the PPC allegations is whether either party has failed to bargain in good faith in these contract negotiations. In determining whether a party engaged in bad faith bargaining, it is necessary to consider the totality of its conduct both at the negotiating table and away from it. Public Service Company of Oklahoma (PSO), 334 NLRB 487 (2001), enfd. 318 F.3d 1173 (10th Cir., 2003). Accordingly, I will review each party’s overall conduct. In order to make some sense of the legal issues, I will discuss events several times, looking at them through several different filters. First, I will examine what happened at the negotiating table, looking at the parties’ written proposals and then each of the negotiating meetings and the written communications regarding negotiations; next issues relating to information requests; then alleged unilateral changes; then alleged discrimination regarding use of the Employer’s e-mail system, and finally alleged statements by the Employer which would tend to coerce employees in their exercise of their rights to bargain collectively through a representative. I will then review all alleged violations by the Union which were not covered in the preceding discussion. I. Overview of negotiations

The Union contends, inter alia, that the employer engaged in a course of conduct amounting to surface bargaining with an intention to avoid reaching agreement by piecemealing its contract proposals; using dilatory tactics by refusing to schedule negotiating meetings, insisting on having short negotiating meetings, taking lengthy caucuses during negotiating meetings, and ending meetings without agreeing upon the next meeting date; failing to provide information requested by the Union; ceasing to accept communications from the Union’s chief spokesperson; and failing to make a wage proposal until after impasse had been declared. The Employer does not accuse the Union of surface bargaining, but does allege that it bargained in bad faith.

Witnesses for both parties testified that although there were 12 negotiating meetings before the session with the mediator present, there was little actual dialogue which could have led to reaching common ground. Each party’s witnesses placed the blame for this upon members of the other party’s bargaining team, while exhibiting selective memory regarding what was said and done by members of their own team. Although each party’s successive written proposals were placed into evidence, there was little testimony about the content of the proposals, which tends to substantiate the testimony that neither side carefully considered the other side’s proposals. The written proposals, however, should show what these negotiations were ostensibly about, without all the verbal posturing. I will therefore discuss the written proposals before going to the evidence about everyone’s conduct during and outside the meetings.

II. Written proposalsA quick way of reviewing the parties’ written contract proposals is to look at

their first proposals compared to their final proposals, showing what, if any,

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changes they each made during the course of negotiations to attempt to narrow differences and reach agreement.

A. Union’s proposalsIn general, the Union’s written proposals show its wish to, from its point of

view, strengthen the contract in many ways. The Union’s more important proposals are described below. Each initial proposal presented in July is in regular type, and any change made as of the Union proposal dated November 14 is listed in italics.1) Article 8.B, Section 6, regarding the Employer’s providing information to the Union, delete limitations in the current agreement, briefly restate the Employer’s obligation under the case law, and eliminate the current requirement that the Union pay for copies. No change.2) Double the unpaid release time from 15 days to 30 days which could be used in the aggregate by employee Union officials to conduct Union business. Returned to current contract language allowing just 15 days of unpaid release time for employees to conduct Union business.3) Article 9, add a requirement that employees be disciplined only for just cause. No change.4) Replace the existing management rights cause with the less extensive list of management rights guaranteed to employers in PEBA. No change.5) Article 12, remove language from the grievance procedure which limits the right of the Union or bargaining unit employees to pursue the issue of violations of the collective-bargaining agreement in other forums, add as a grievable matter, alleged violations of Employer policy, and extend the deadline for filing a grievance from 5 days after the alleged violation to 10 days. Returned to current contract language from the grievance procedure which limits the right of the Union or bargaining unit employees to pursue the issue of violations of the collective-bargaining agreement in other forums, and return to current contract language giving 5-day time limit for initial filing of grievance.6) Remove language in Article 13 which attempts to make the contractual grievance procedure the only forum in which employees may protest alleged discrimination. No change.7) Add language to Article 14 to create a deadline by which employees must be notified whether they will or will not be reemployed for the following school year. No change.8) Add language to Article 17 specifying that Educational Assistants shall have a lunch break of not less than 30 minutes a day, and making monetary payment at time and a half the preferred compensation for work in excess of 40 hours a week for hourly employees, making the choice of compensatory time instead of money up to the employee. No change.9) Specify in Article 18 the required payment to teachers who are assigned to substitute during their preparation time and specify additional compensation for educational assistants who are assigned to substitute. No change.10) End the practice of early dismissal on Wednesday for elementary schools. No change. By Nov. 14, added proposal that early dismissal at high school be discontinued.11) Limit class size for secondary-level science labs. No change.12) Replace sick leave with general leave and allow employees to sell back their unused general leave semi-annually. Modify to allow employees annually to sell

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back their general leave, and jointly review use of general leave, returning it to sick leave in 2010 if change to general leave has increased use of leave.13) Increase pay for all employees, including, inter alia, increases of ten percent for clerical/secretarial and maintenance/custodial employees. Implement state-mandated pay increases. Added a provision regarding stipends, but it was incomplete as of November 14, pending the Union’s receipt of requested information. Union did specifically propose that stipend amount continue unchanged from the 2007-2008 school year. Added a proposal that any cash reserve in excess of that existing on July 1, 2008, be divided equally among the bargaining unit employees in a one-time, non-recurring stipend.14) Eliminate the zipper clause. No change.

B. Employer’s proposalsThe Employer’s proposals are more difficult to sort out. While the Union

presented at least one complete contract proposal at each meeting, the Employer piecemealed its proposals, and it was not until approximately the July 28 meeting that the Employer had, at one time or another, given the Union all of its initial proposal. The following summary is based upon my analysis of the exhibits. The record is clear that the Employer did not present its final proposal until the December 2 negotiating meeting with the federal mediator present. In agreement with the Employer, I did not allow the parties to present evidence about their discussions on December 2, because the parties should be free during mediation to take positions and discuss issues without these later becoming evidence in a PPC proceeding. Therefore, this summary of the Employer’s position is based upon the Employer’s offer on the table as of the November 14 meeting. As with the Union, the Employer’s initial proposal is in regular type, and its proposal as of Nov. 14 is italicized.

On July 15, the Employer proposed, inter alia, the following changes:1) Article 6, delete requirement that RRSEU building representatives shall have access to a printable version of the collective-bargaining agreement. Reinstate this requirement, i.e., return to current contract language.2) Article 8, delete language from the current agreement regarding duration of dues deduction authorizations and language allowing a RRSEU representative a reasonable opportunity to present a statement and/or answer questions at staff meetings; delete Union’s rights to use the Employer’s employee communication boxes, public address systems, and e-mail to communicate with bargaining unit employees; delete language allowing a site administrator to allow RRSEU representatives to conduct Union business on working time; delete language allowing Union meetings on working time if agreed to by the Employer; delete language requiring the School Board Meeting agenda, minutes, and press packet to be e-mailed to the Union president when the material is available for distribution to the press; delete language requiring that School District policies and amendments thereto be e-mailed to the Union president as soon as copies are available for distribution; delete language requiring the Employer, upon request, to furnish the Union with the date of hire of each employee into their current job classification. No change.4) Article 14, specify that part time employees are not entitled to benefits. No change.5) Article 29, define seniority credit as beginning with employee’s most recent date of continuous service in the current job classification. No change.

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On July 18, the Employer added the following changes, while apparently maintaining all of its earlier proposals:1) Article 12, grievances shall be filed on a jointly developed form and include certain information; delete language giving only the Union the right to submit a grievance to arbitration. No change.2) Article 36, the state-mandated pay increases will be granted as well as an additional 1% increase to specified job classifications. Delete language giving additional raises based upon a teacher’s educational level, requiring raises to the state minimum salary rate for Level III teachers, delete language placing employees on compensation schedules according to their experience and training. No change. Added proposals on stipends and stipend amounts, but withdrew these and all the rest of Article 36 on November 12. No pay proposal included in “package” as of November 14.

On July 22, the Employer agreed to Union proposals in Article 17, to specify that EA’s lunch periods would not be less than 30 minutes long. No change.Agreed with Union proposal that hourly employees working more than 40 hours in a work week would receive pay at time and a half, unless the employee chose to receive compensatory time instead. (This was never tentatively agreed between the parties, however.) This agreement was rescinded in the November 12/14 package proposal, which returned to current contract language which makes compensatory time the compensation unless the school superintendent authorized pay at time and a half.

In its July 28 proposal, the Employer added the following change, while apparently maintaining all of its earlier proposals:Article 25, delete language giving the Union the opportunity to conduct a procedure review of an employee’s evaluation process upon request of the employee and add language which would make evaluations not subject to the contractual grievance procedure. No change.

On September 29, the Employer agreed to Union proposal in Article 9 to add “just cause” language to disciplinary procedures. (This was never tentatively agreed between the parties, however.) Rescinded in November 12 package proposal, returned to current contract language.

November 4, the Employer included stipend language and amounts in its proposal for Article 36, Salaries. Rescinded entire Article 36 in November 12 package proposal.

November 12, the Employer presented a “package proposal,” including the above-described proposals and changes. The package proposal contained a proposal on Article 36, salaries, but the Employer withdrew that article from its package at the negotiating table, stating that it contained a mistake. The Employer did not put any other proposal on the table for Article 36 until the parties met with a federal mediator on December 2.

The last meeting before the meeting with the mediator was November 14. At this time the Employer offered another “package proposal,” which appears to be essentially unchanged from its November 12 proposal, and which also did not contain any proposal regarding employee pay.

C. Evaluation of evidence regarding proposalsIt appears from this quick review that economics was not a real issue.

Contrary to the Union’s assertion that the Employer never made a pay proposal until the meeting with the mediator, the evidence is clear that the Employer had made a pay proposal on July 18 which it maintained essentially unchanged except

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for adding stipend language in the last meeting or two. During negotiations, the Union reduced its pay increase demands to match the Employer’s offer, and proposed that stipend amounts continue unchanged from the prior school year. More importantly, in its proposals, the Union sought to strengthen its role in representing the employees, and the Employer, on the other hand, sought to chip away at the Union’s status in its proposals. Although neither party made big changes in its proposals during negotiations, the Union showed movement toward common ground by reducing its pay demands. In contrast, by November 12 and 14, the Employer reneged on arguably the most important Union proposals it had accepted, regarding “just cause” for discipline and providing overtime pay instead of compensatory time for hourly employees. At the same time, the Employer maintained unchanged its regressive proposals to make part-time employees ineligible for benefits and to eliminate the Union’s use of e-mail, communication boxes and the public address system to communicate with bargaining unit employees.

E. Union’s cash reserve proposalThe Employer contends that the Union insisted to impasse upon an illegal

subject of bargaining by proposing that if the Employer had a cash reserve in excess of that existing on July 1, 2008, the excess be divided equally among the bargaining unit employees in a one-time, non-recurring stipend. The evidence does establish that the Employer could not make a retroactive bonus payment to employees under New Mexico law. The Union contends that its proposal was for a lawful, prospective payment. The actual language of the proposal is ambiguous in that regard. A party may not lawfully insist to impasse on an illegal subject of bargaining. However, there is no evidence this proposal was ever even mentioned during any negotiating meeting, and, as described above, there were many other, important unresolved issues. In these circumstances the evidence is insufficient to establish that the Union’s inclusion of this proposal had anything to do with the parties’ failure to date to agree upon a new contract. “All items on which the parties have not agreed are not necessarily items causing an impasse….Mere discussion of unresolved items falls far short of unlawful, persistent demands to the point of impasse.” Seattle-First National Bank, 241 NLRB 753 (1979); see also Sheet Metal Workers Local 91 (Schebler Co.), 294 NLRB 766, 773 (1989) (mere proposing or bargaining about an illegal clause, without insisting to impasse, not found to be a violation). Accordingly, I do not find the inclusion of this proposal in the Union’s overall contract proposal to be a violation.

III. Negotiating meetings, communications, and other conductI will next summarize the evidence chronologically regarding each party’s

conduct at and away from the negotiating table. The summary is based upon a composite of the testimony of witnesses and an examination of bargaining notes received into evidence as to some of the meetings, as well as the documentary evidence regarding communications by the Employer to employees, between the Union and Employer regarding negotiations and information requests, and between the Union and bargaining unit employees. For all of the negotiating meetings through November 4, the Employer’s chief spokespersons were labor consultant Gary Wall and Human Resources Director Sue Passell, but from November 12 forward, consultant Bob Brown was the Employer’s chief spokesperson. Throughout negotiations the Union’s chief spokesperson was AFT representative Andy Lotrich.

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A. incident preceding negotiationsUnion president Peggy Stielow testified that in April, 2008, she and Union

vice president Bernadette Hudson met with Human Resources Director Passell, to complete discussions regarding a grievance over whether certain Educational Assistants (EA’s) had received the percentage pay increase they were due under the collective bargaining agreement. The Employer settled the grievance and agreed to increase the employees’ pay. However, according to Stielow, during the meeting Passell commented to her and Hudson that she, Passell, would never go to bat for the EA’s again, and that this would not make negotiations go smoothly. Passell testified at the hearing, but she was not asked about this meeting, and she, therefore, did not deny making the alleged comment. Accordingly, since this evidence is unrebutted, I conclude that the comment was made essentially as Stielow reported. This indicates hostility towards the Union by the Employer, and an intention not to bargain in good faith.

B. May 15 meetingThe first negotiating meeting was May 15. Before the meeting Passell, by e-

mail, suggested to Stielow that the parties agree on an ending time for the meeting. Stielow suggested 10 p.m., but Passell replied that the Employer wanted to get an agreement on the ground rules that evening and would be willing to stay until 7 p.m. This differing approach about how long to meet was repeated in many of the subsequent meetings, when the Union would request to stay and negotiate longer, but the Employer ended a meeting. Shirley Ogle, the Employer’s Director of Secondary Personnel in the Human Resources office, who was a member of the Employer’s negotiating team, said that the Employer would end meetings when it felt that the meeting was no longer being productive. She said when Lotrich would refuse to agree with them that a meeting should end, it felt to her like he was trying to control when the Employer’s negotiators could and couldn’t leave.

The May 15 meeting quickly became acrimonious. The Employer had only a proposal regarding ground rules, and wanted to talk only about the ground rules. The Union, on the other hand, did not want to negotiate any ground rules and, as Passell observed, treated the proposal as a “humongous insult to the Union.” The Employer witnesses allege that, in response to one of their proposed rules regarding polite speech, Lotrich commented at length that there was case law permitting him to drop his pants if he wanted to do so to make a point. The Employer team caucused, and one of the witnesses said one reason for the caucus was Lotrich’s behavior. The Union did make a written counter proposal for a much shorter list of ground rules before trying to get the Employer to discuss Article 9 of the collective-bargaining agreement, where the Union was proposing a significant change in language. The Union witnesses disagreed about whether the Union had a full contract proposal at that meeting, but it is clear that the Union did not present any written proposal when it asked for a discussion of Article 9. The Employer insisted upon discussing only ground rules, and Lotrich informed the Employer team that based upon the Employer’s actions at this meeting he would be filing both a PPC against the Employer and ethics charges against each of the members of the Employer’s bargaining team.

Hostility between the negotiators flared again after the meeting. The Union had given the Employer a written information request before the meeting, and at the meeting Passell had provided some, but not all, of the requested information. This information request and response is discussed more fully in another section of this report. Passell had already requested clarification by letter of what records

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regarding sick leave usage the Union wanted, but, she said, the Union had not responded, so after the meeting Passell talked to Stielow to get the clarification and to resolve issues with Stielow about the information Passell had just provided. According to the Union witnesses, Stielow turned to Union Treasurer Jewel Pierce for the answer to Passell’s question, but Passell told Pierce to butt out. Passell, on the other hand, said that Pierce interjected herself into the conversation, but Passell needed to talk to Stielow. Apparently, Passell never received the clarification she was seeking.

The Employer contends that its proposed ground rules were similar to those agreed upon by both parties in previous contract negotiations, while the Union witnesses said they did not want to accept limitations that would be imposed by the ground rules. One of the proposed rules, for example, was that the parties would negotiate and agree upon noneconomic items before the economic items. This had been part of the agreed-upon ground rules in 2007 and 2005. Union witnesses testified that they wanted to be free to look at the contract as a whole in negotiating over both economic and noneconomic issues, so they did not want such a ground rule this time.

C. First PPCOn May 16 the Union, as promised, filed a PPC over the Employer’s

insistence upon negotiating only ground rules at the May 15 meeting. Apparently no ethics complaints were ever filed. The Board heard the PPC on July 11, ruled that it was premature, and ordered the parties back to the bargaining table to bargain over “not only ground rules, but also other mandatory and permissive subjects of bargaining. “

There is no evidence that either party requested that the other meet and bargain between the filing of the PPC in May and the Board hearing in July, although this amounted to a substantial hiatus in bargaining, and the collective bargaining agreement meanwhile expired by its terms on June 30. (As noted above, in spite of its expiration, the agreement has remained in effect pursuant to its own terms, Policy 201 and PEBA.)

D. July 15 meetingUpon receiving the decision of the Board on the PPC, the parties promptly

scheduled another negotiating meeting, for July 15. The Union provided a complete contract proposal at this meeting, but the Employer presented only some of the changes it intended to seek in the collective bargaining agreement. The Union complained that the meeting was too short. It began shortly after 5 p.m., and during the meeting the Employer took a caucus which lasted more than an hour and ten minutes. The Employer ended the meeting over the Union’s objection at 7:25 p.m.

The Employer modified its ground rules proposal for the meeting, and tried to get the Union to discuss ground rules, but the Union did not respond. As of this meeting and continuing for the rest of negotiations, the Union moved its previous counterproposal regarding ground rules into its proposal for Article 4 of the collective bargaining agreement, which covered negotiation procedures. However, as the Employer points out, any change to the collective bargaining agreement’s article on negotiation procedures would not apply to the current contract negotiations but, rather, to subsequent negotiations. The Union never agreed to discuss ground rules separately from the overall contract, and after the July 15 meeting the Employer dropped any proposal for ground rules for these negotiations.

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E. Did the Union violate a Board Order?The Employer contends the Union violated the Board’s July 11 Order by

refusing to discuss separate ground rules during the negotiations. In ruling that the PPC was premature and sending the parties back to the bargaining table, the Board did specifically mention ground rules as a subject to be negotiated, but did so in the context of sending the parties back to talk, essentially, about any and all mandatory and permissive subjects of bargaining. Ground rules and arrangements for negotiations are a permissive subject, Bartlett-Collins Company, 237 NLRB 770 (1978), and either party may lawfully refuse to discuss a permissive subject. NLRB v. Wooster Division of Borg-Warner Corp., 356 U.S. 342 (1958). I don’t believe the Board intended in this order to elevate ground rules to a status above any other permissive subject of bargaining. Rather, they were merely telling the parties in summary terms to go back to the table and talk about everything. In these circumstances, I do not find the Union’s failure to discuss the ground rules during the remainder of negotiations to violate the Board’s order.

The Employer argued in its brief that by negotiating briefly over ground rules at the May 15 meeting, the Union waived its right to refuse negotiations on that issue. However, it is settled law that a party may commence negotiating over a permissive subject and may then decline to negotiate further over it. Kit Mfg. Co., 150 NLRB 662 (1964), enfd. 365 F.2d 829 (9th Cir., 1966).

F. July 18 meetingThis meeting had apparently been scheduled before the end of the July 15

meeting. At this time the parties marked as tentative agreements all contract articles where neither was seeking to change the existing language. This left 21 contract articles where one or the other party was seeking a change. The Employer presented a written proposal regarding five of these open articles, including, inter alia, Article 36, Salaries, proposing to give the state-mandated raises. The Union has contended that the Employer never made a proposal on wages or salaries until the meeting with the federal mediator, but I find that the Employer did have a pay proposal on the table as of the July 18 meeting. The meeting started shortly after 12:30 p.m., and the Employer caucused after the meeting had been going on for five minutes, remaining in caucus for about 35 minutes. The meeting ended at 1:54 p.m. The record does not reflect whether the Union agreed to the termination of the meeting.

G. July 22 meetingThis meeting started a few minutes after 1 p.m. After some discussion of

other items, the parties noted a tentative agreement on Article 30, retaining the current contract language. The Employer presented a proposal on five of the remaining 20 open articles. The Union presented a complete contract proposal. During the meeting the Employer spent a total of about 45 minutes in caucus, and the Employer ended the meeting over the Union’s objection at 3:54 p.m. The date of the next meeting had apparently been agreed to before this meeting ended.

H. July 28 meetingThe meeting started shortly after 1 p.m. The Union had apparently sent the

Employer a new proposal electronically before the meeting, but the Employer didn’t bring the Union’s proposal to the meeting. The Employer had proposals on 7 of the 20 open articles. Both parties took brief caucuses during the meeting. The parties agreed on the date for the next meeting, and the Employer ended the meeting a few minutes after 3 p.m.

I. August 4 meeting

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This was the last negotiating meeting held before school started for the 2008-2009 term. The meeting started a few minutes before 1 p.m. The Union again had a proposal on all open articles, and the Employer again had proposals on only 4 of these articles. This meeting apparently became heated. During the meeting at one point Lotrich declined to go over changes in the Union’s proposal and told the Employer the Union would not negotiate piecemeal. The Employer took several caucuses, and the Union also took a brief caucus. The Employer decided to end the meeting, but solicited the Union’s proposals for the next meeting date. The Union requested August 5 or 7, but the Employer offered only the 14th and the 26, so they agreed on the 14th. The meeting ended at 4:30 over the Union’s objection.

J. August 14 meetingBy this time school had started for the fall semester. At this meeting the

Union again presented a complete proposal, while the Employer had proposals only on six articles, including, inter alia, Article 36, salary, still proposing to pay the state-mandated increases.

K. August 18 meetingThis meeting lasted approximately three hours, during which time the

Employer caucused for fifty minutes, and the Union for twenty-five. During the meeting the parties reached tentative agreement on Article 1, in which the definition of “emergency” had been in dispute. The Employer had proposals on three articles, and the Union again objected to the Employer piecemealing their proposals. The Employer ended the meeting, saying they would look at the Union’s proposal, and they wanted to meet again on the 26th. The Union objected, saying they wanted to continue negotiating that evening, but the Employer left the meeting.

L. Second PPC and hiatus in negotiationsOn August 19 the Union filed another PPC against the Employer. In spite of

the fact that school had started and it would seem that completing negotiations would be urgent, the parties did not meet again until September 29. However, during this hiatus in meetings, there was plenty of action relating to labor relations. Lotrich and Passell sparred by e-mail about scheduling the next negotiating meeting, the parties filed various pleadings with the Board which are not germane to this hearing, Passell notified the bargaining unit employees directly without notice to the Union that stipend payments would be delayed, Superintendent Cleveland informed the bargaining unit employees directly without notice to the Union that the Employer had to cut its operational budget immediately, and “some, but not all,” stipends would be reduced and the Employer would consider reductions in force (RIFs) as a last resort, and the Union filed several information requests. I will describe each of these things in more detail next.

On August 19 by e-mail Passell again offered to meet on August 26, and asked when the Union wanted to meet if that was unacceptable. Lotrich replied by asking when the Employer could give the Union an electronic copy of its complete proposal. Two days later Passell asked whether the Union had misplaced the copies of proposals the Employer had given them, and Lotrich replied that the Union wanted the Employer’s proposal in advance of the next meeting so the Union would be prepared with its comments, and the process could move along, and that the Union wanted the Employer’s proposal in its entirety for convenience

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so the Union didn’t have to flip through numerous bargaining sessions’ worth of notes and documentation.

On August 22 Passell replied by giving Lotrich a log of the Employer’s proposals, stating that cumulatively, this represented the Employer’s most recent proposal, and that the Employer did not believe it was required to have bargained the entire contract at each meeting. The same day Lotrich told her the Union was not trying to get the Employer’s old proposals, but wanted the proposal the Employer would submit at the next negotiating session, and asked if the Employer would make any changes to its proposal at the next meeting. On August 26 Passell replied that the Employer was continuing to review the Union’s most recent proposal, and “may have” counters to propose at the next bargaining session. Lotrich asked the same day when Passell thought the Employer would have completed its review of the Union proposal. Passell replied three days later that the original question was when the Union wanted to get back to the table, and that she was awaiting the Union’s reply. Lotrich answered the same day that the Union had asked how much time the Employer needed to complete its review of the Union’s proposal in order to submit a counteroffer, and that the Union wanted to review Employer’s offer in advance of the next meeting “so valuable bargaining time wouldn’t be wasted in caucuses.” He said that if the Employer objected to submitting the proposal electronically, then the Union would come to the School District office to get a paper copy. He asked again when the Employer would complete its review of the Union’s proposal and submit an offer to the Union so the parties could schedule another meeting date. Passell apparently did not respond immediately.

Taking a new approach, on September 8 Passell issued an e-mail to the staff, without giving the Union any advance notice, stating that because of the Employer’s financial difficulties, the payment of stipends would be delayed for the first payroll. On September 10 the Employer notified the bargaining unit employees, again without notice to the Union, that the Employer’s insurance providers had increased premiums for medical and dental insurance by about 7%, and therefore, payroll deductions for these items would also increase by that amount. These communications are discussed more fully in another section of this report.

By e-mail on September 17 Lotrich told Passell that since it had been over a month that the Employer had the Union’s most recent offer, did they need more time to consider it, or did they have a counter proposal? He again requested to receive the offer electronically, in advance of scheduling a meeting, and asked that if the Employer had no counteroffer at that time, then he wanted a date by which Passell anticipated they would have an offer. Passell replied the same day that this was her third request of a proposed meeting date, and she wanted the Union to propose a meeting date and the Employer would provide its counter at that mutually agreed time.

On September 18 Lotrich e-mailed Passell stating that the Union had learned on the evening of September 17 that the Employer was changing the doctor’s note requirement for absence, and the policy on leave without pay. He requested that the Employer cease and desist from implementing these changes, and that it notify the Union of any proposed changes. He also proposed that the parties meet to negotiate again no later than 3 business days after the Union received the Employer’s latest complete offer, adding if they did not want to submit it electronically, they could fax or mail it to his office.

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Before Passell responded to this, on September 22 Superintendent Cleveland issued a letter to all bargaining unit employees, without notice to the Union, stating that the Employer had to cut its operational budget by about $4 million immediately, that they would be asking schools and departments to, inter alia, “reduce some, not all,” stipends, and stating the Employer would consider RIF’s as a last resort. This letter is discussed more fully in another section of this report.

Based upon Cleveland’s September 22 letter, on September 23 the Union made a lengthy information request to the Employer. This request and issues related to it are discussed more fully in another section of this report.

Passell and Lotrich exchanged several e-mails on September 23. First, Passell told Lotrich by e-mail that in response to the Union’s request for additional copies of the Employer’s bargaining proposals to date, a packet had been compiled and was available for pickup at the School District office, and that the Union owed $17.25 for these copies. She also addressed the alleged change in the doctor’s note requirement for absences, explaining the facts as she understood them, and offering to fully track the language in the collective-bargaining agreement in the document in question. This alleged unilateral change and the Employer’s reply are discussed more fully in another section of this report.

Lotrich answered by e-mail less than a hour later that since it was apparent the Employer had no new language to submit, the Union took the Employer’s proposal as its last, best and final, and that the Union would be asking FMCS to provide a federal mediator to meet with the parties, or if the Employer did not respond with possible dates to talk to the mediator, then the Union would pursue final offer arbitration [as set forth in Policy 201]. He also refused to pay for the copies, stating that the Employer had the information in electronic format, and he wanted to receive it electronically, or he would take his personal copier to the School District office to make the copies.

Passell replied a couple of hours later that this was not their last, best, final offer and the Employer was not declaring impasse. She reiterated that the Employer had been trying to get dates from the Union to continue negotiations, and she still wanted proposed dates. Lotrich replied a few minutes later that if the Employer was not declaring impasse, then the Union wanted the Employer’s latest offer, not its previous offers. He said if the Employer did not provide an electronic offer by the close of business on September 26, then the Union would interpret this as a declaration of impasse. He also asked, in the event the Employer did not intend to submit its proposal electronically, if the Union agreed to schedule a negotiating meeting that week, would the Employer have a written counter offer for each currently open article, or would it have only a limited number of articles to submit, and if that was the case which ones they would be. He closed by asking why the Employer refused to submit those articles electronically to the Union. Passell replied, still on September 23, that the Employer was not going to negotiate over the internet with the Union, that they would provide their counter at the next scheduled bargaining session, and asked Lotrich to propose dates. Lotrich responded by e-mail that the Union was willing to meet the Employer face to face that afternoon at 4:30 to receive the Employer’s, “latest, complete proposal.”

Lotrich did go to the Employer’s office that afternoon. Later the same day, in a lengthy e-mail to Passell, he memorialized what happened at the office. He said he was given a packet of the Employer’s previous contract proposals, with a

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paper indicating payment had to be made.. He tried, instead, to make copies of the documents with his personal copier. He said that Passell and HR employee Denise Potter prevented him from making copies, and that although Passell agreed she had the documents electronically on her computer, she refused to provide them to him electronically. Lotrich said he then offered to have the complete Union negotiating team at the Employer’s office that afternoon to receive a copy of the Employer’s latest proposal so they could then schedule another negotiating meeting within the next three business days. He said Passell replied that the Employer was not obligated to give the Union a counterproposal before an agreed upon date, and she terminated the conversation. In the same e-mail, Lotrich also addressed the alleged change in policy regarding doctors’ notes for absences. Finally, noting that the Union had just learned that evening that the Employer was attempting to either stop payment of certain stipends for bargaining unit members, or to reduce the amount of payment, he requested that the Employer continue paying stipends at the rate from the previous school year, and requested certain information regarding stipends. This alleged unilateral change and information request are discussed in more detail in other sections of this report.

By e-mail on September 24, Passell proposed September 30 for the next negotiating session, and said the Employer would provide its latest proposal then, but the stipend information Lotrich requested would not be completed by that time. She told him which parts of the information she could provide by October 7, but explained that position names could not be provided without generating new reports, which she felt they were not required to do pursuant to the collective bargaining agreement. She also memorialized her version of their discussion the afternoon of September 23, which was substantially the same as Lotrich’s version. Lotrich replied by e-mail that the Union committee could not meet on September 30, but they could meet on September 29, during the work day. He again requested the Employer’s proposal in advance. Passell replied that the Employer would meet with the Union on September 29, but at 4:30 p.m. The Union acquiesced to meeting with the Employer on this date without receiving the Employer’s proposal in advance.

From August 14 to September 24 the Union failed to propose dates for additional negotiations, insisting that the Employer provide its counteroffer before the Union would set an additional date for a face to face meeting. Although the Union expressed a strong preference for receiving the counteroffer electronically, nevertheless Lotrich did suggest other alternatives whereby the Employer could submit a hard copy instead of an electronic copy. Lotrich apparently felt that another meeting would be unproductive without the Union seeing the Employer’s offer in advance, but a party is entitled to insist upon bargaining and presenting its offers only at a face to face meeting. Fountain Lodge, Inc., 269 NLRB 674 (1984). This delay of about a month from the next date the Employer had proposed to meet, August 26, until the date the parties did meet on September 29, is attributable to the Union’s insistence upon receiving the Employer’s counterproposal before the meeting, and does not reflect any bad faith bargaining by the Employer. Lotrich may have been correct that another meeting would have been unproductive, but that will never be known, because by refusing to propose dates to meet, the Union failed to test the Employer’s willingness to meet and bargain in good faith.

The Employer argued that the Union’s conduct throughout negotiations of insisting that the Employer provide complete, electronic proposals in advance of a

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negotiating meeting amounted to bad faith bargaining, citing Vanguard Fire and Supply, 345 NLRB 1016, 1043 (2005); Twin City Concrete, Inc., 317 NLRB 1313 (1995); and Caribe Staple Co., Inc., 313 NLRB 877, 890 (1994), which hold, in substance, that it is an unfair labor practice for a party to insist as a condition of holding a bargaining meeting that the other party submit proposals or agendas in writing before the meeting. For most of the negotiations, although the Union strongly requested that the Employer provide advance proposals, it did not condition further meetings upon the Employer’s acquiescence to this demand, and it dropped this demand in order to hold the September 29 meeting. However, for the period from August 14 until September 29 the Union did condition its agreement to meet again upon the Employer’s providing an advance proposal, whether electronically or in hard copy. I find that for this six-week period the Union violated its duty under Policy 201, Section 17.A.4 and PEBA Section 20.C to bargain collectively in good faith with the Employer.

M. September 29 negotiating meetingBoth parties considered the September 29 meeting to be unproductive, but

for different reasons. The Employer had only Gary Wall and Sue Passell as its negotiators, while the Union had its usual committee. Employer negotiator Scott Affentranger testified that Passell told him and the other members of the Employer negotiating team not to attend that meeting. Passell said she did this because Lotrich had been acting so disrespectfully toward the Employer team at prior meetings, and she hoped having fewer people there would mitigate some of his contentiousness. However, according to Passell, Lotrich’s behavior didn’t change. At the beginning of the meeting Passell and Wall gave the Union a proposal on Articles 4, 6, 8, and 9. Passell said that Lotrich did not read the proposal, but instead threw it down on the table and said he was not going to read it because it was not a complete proposal, and it was an insult to the Union. She said that Lotrich told them the Union was going to impasse, but the only way he could do that was if he had a complete proposal, and that he cited some case law. So, Passell and Wall called a caucus and contacted the School District’s labor counsel. During the caucus they decided that if the Union wanted a complete proposal so badly, they would print out all of the Employer’s proposals and give it to the Union as a packet. They did so.

The Union witnesses complained that neither Wall nor Passell appeared to be ready to take notes or to intend serious discussion at the meeting. Eisenberg indicated in his notes that at the beginning of the meeting the Union presented its proposal and rejected the proposal the Employer had made, and that the Employer caucused three times during the meeting for a total of more than an hour and 15 minutes. After the Union received the Employer’s packet of proposals, according to Union negotiator Eisenberg, the Union caucused for ten minutes and then returned to the table with a complete counteroffer. After this, according to Eisenberg’ s notes, Wall said the Employer had nothing further to offer at this time, and over the Union’s objection the Employer left the meeting a few minutes after 7 p.m.

Looking at the evidence provided by both parties, it is apparent there was little or no actual consideration of either party’s proposals during the meeting.

N. Another hiatus in negotiations and Board decisionAnother significant hiatus in negotiations occurred from September 29 until

November 4. This time the delay was attributable to the Employer. On September 29 after the negotiating meeting ended, Lotrich e-mailed Passell

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complaining about the Employer’s actions at the meeting, and reiterating the Union’s need for the information requested in Stielow’s September 23 letter. The Employer didn’t reply, so on October 6 Lotrich e-mailed Passell, Wall, and Heatherington, the Employer’s labor counsel, stating it had been a week since the Employer had “ceased negotiations,” that the Union had yet to receive the information it had requested, or any proposed dates for further bargaining, or a response regarding the Union’s last contract proposal. He concluded by asking whether the Employer was declaring impasse.

Passell replied the next day that the Employer had no other proposal to make after reviewing the Union proposal, but “we are receptive to any suggestions you have that would move us further toward an agreement. We continue to evaluate your proposal and are very willing to meet again. Would you like to propose a date, time and location” for the next negotiating meeting? Passell also said the Employer had replied to Stielow regarding the information request, and they were awaiting her reply. Passell was apparently referring to a letter dated October 3 which had been sent to Stielow telling her the Union needed to pay $250 before the Employer would continue to process the information request, which is discussed in more detail in another section of this report.

Lotrich sent Passell a long e-mail the evening of October 7, telling her that to move toward an agreement, first, the Union needed all the information it had requested, including both Stielow’s request and all of the other outstanding requests. Second, he recommended the Employer come to the table prepared to deal with all outstanding issues. He said to help with this, he was attaching the offer the Union submitted on 9/29 with some minor clarification language. He said his third recommendation was for the Employer to come to the table prepared to answer whether it was willing or unwilling to do the following: 1) accept any other management rights language than their initial proposal? 2)accept a proposal that does not cap the size of bargaining teams, or that requires the parties to negotiate non-economic items before economic items and that does not have a defined date/time frame to commence future negotiations? 3)include District policies and procedures in the grievance procedure? 4) to have a 2-year probationary period? 5) pay Educational Assistants $1.50 per hour for substitute services? 6) include the already approved 08-09 school year calendar as an appendix to the contract? 7) include the already constructed salary schedules as an appendix to the contract? 8) include the District-constructed bell schedule as an appendix to the agreement? 9) do away with early dismissals and give elementary teachers daily planning and prep. time? 10) keep stipends at the 2007-08 amount? 11) leave Union rights as in current collective bargaining agreement? He then offered to meet again on 10/16 starting 7:30 a.m., going all day and evening to negotiate, stating the Union wanted to start in the morning because of the Employer’s practice of taking long caucuses.

Passell did not reply until October 10, when she e-mailed Lotrich that next week would not work for the Employer, and she would get back to him on future dates. The same day Lotrich replied by e-mail that the Union would see the Employer at 7:30 a.m. on the 16th, and asking when the Union could anticipate the electronic transfer of the previously requested information.

Passell did not answer this until October 14, when she e-mailed Lotrich that inasmuch as the Labor Board had set a hearing for October 31 on the Union’s August PPC and related motions by both parties, the Employer wanted to wait and look at negotiations in light of the Board’s decision. Lotrich replied by e-mail the

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same day that the Union did not agree to wait, that there were still approximately 16 days before the Labor Board hearing, pointing out that the Employer had not explained why it couldn’t meet that week or offered any dates to meet. He again asked whether the Employer had a counter to the Union’s complete offer and how much more time the Employer needed to consider the Union’s proposal.

Two days later, October 16, Passell e-mailed Lotrich that the Employer was not refusing to bargain, but was seeking the Union’s agreement for a delay. She said the earliest date the Employer could offer was November 7 at 4:30 p.m. Lotrich replied by e-mail the same day asking whether it was normal business practice for the Employer to delay “important/required meetings” for over a month, asking why the Employer was unavailable for such an extended period, and stating that the Union didn’t agree to the delay, but was always open to receiving the Employer’s complete offer electronically. He asked how long the Employer needed to finish considering the union’s latest offer, proposed they meet either before or after the next School Board meeting, and asked when the Union would receive the electronic information it had previously requested. He concluded by asking when the Union would receive information it had requested more recently regarding withholdings for the Educational Retirement Board to help process a current grievance for employee Lorena O’Brien.

The record does not reflect any additional communications by the parties regarding scheduling the next negotiating meeting. However, it appears that, while trying to present an amicable front at least part of the time, during this four and a half weeks from September 29 to the Board hearing on October 31, the Employer essentially unlawfully delayed in scheduling another bargaining session pending the outcome of the October 31 hearing. It is unlawful to refuse to meet and bargain during the pendency of a prohibited practice charge. Caribe Staple Co., Inc., 313 NLRB 877 (1994).

Other communications during the following two weeks concerned the information requests; a direct communication by the Employer to employees without notice to the Union, stating the Employer would not be providing stipends until bargaining was completed; the Union’s request that the Employer continue stipends at the same level as in the 2007-2008 school year; and the alleged unilateral change of policy regarding doctors’ notes for absences. These are discussed more fully in other sections of this report.

O. Passell ceases accepting e-mail from LotrichAlthough the evidence demonstrates that e-mail had been the parties’

primary means of communication regarding negotiations up to this point, Passell admittedly ceased accepting e-mail communications from Lotrich after about October 28 because of the Union’s use of an e-mail she had sent on October 27. On October 27, without any notice to the Union, Passell had e-mailed principals asking them to forward the following communication from her to the staff:

Stipends are a mandatory subject of bargaining. Therefore, until bargaining has been completed or we are informed otherwise, the District will not be providing stipends. Union negotiations are, by law, confidential therefore we cannot go into more detail on this issue. We apologize if this causes an inconvenience.

Passell testified she sent this e-mail because the Union had recently included in their proposal an item regarding stipends, which had not previously been included

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in the contract. She was aware that the Union proposal was that stipends continue to be paid at the 2007-2008 rates. She said the Employer was trying to look at what they could afford for stipends.

The employee Union officers received this communication with the other employees, and informed Lotrich. He responded by e-mail to Passell the morning of October 28, requesting that the Employer cease and desist from attempting to negotiate directly with the employees, that Passell rescind her statements and retract her e-mail, that the Employer not make any changes to the stipends during negotiations, and that the Employer negotiate stipends with the Union by making a counteroffer to the Union’s proposal to keep stipends at the 2007-2008 school year rate. In the e-mail Lotrich also asked Passell when the Employer would be providing the information the Union had requested regarding stipends, and asked whether the Employer had terminated all sporting events, since the athletic coaches were paid stipends, observing that the parents and athletes would be interested in that position. His last sentence summarized the e-mail by asking that Passell please immediately rescind her e-mail, submit the requested information to the Union, and continue the 2007-2008 stipends.

Also on October 28, after work from her home computer, Stielow forwarded Lotrich’s e-mail to the Union officers and building representatives at their respective home e-mail addresses, telling them to pass it out “to whomever questions this issue.” She also requested that the building representatives send out word for part-time employees to check to make sure retirement benefits were deducted from their pay last year and this year.

The record does not reflect whether any Union officers or building representatives forwarded Lotrich’s response to other bargaining unit employees, or how the Employer gained knowledge of Stielow’s forwarding the Lotrich e-mail to the other employee Union officials. However, Passell said this prompted her to block Lotrich’s e-mail from coming in to the Employer. She said she “had to make that decision because I was getting barraged with e-mails from him and I also would respond to him and had it copied throughout the school district.” She said on October 28 Lotrich took an e-mail she had written “to the staff in this District,” he responded to it basically calling her a liar, and sent out his response to every building representative and Stielow, and authorized his response to go to every staff member in the school district. She said she didn’t agree with information in his e-mail that referenced negotiations and he gave some specific details which she thought were confidential, and all of this was “going out.” She said she didn’t choose to have that kind of correspondence shared, she didn’t want her e-mail to be a conduit for this information to go out to the bargaining unit, but she had no control over it and the only way to control it was to stop the e-mail. She also complained that she had been “barraged” with e-mails from Lotrich before this, and she wanted to slow down the back and forth correspondence to have some time to think and “process” before responding. She said she would send Lotrich three sentences, like “please propose a date,” and she would get another page of e-mail from Lotrich. She gave this as another reason she blocked Lotrich’s e-mail, observing that they could communicate by fax and phone calls. The record does not reflect the specific date Lotrich’s e-mail was blocked, or whether e-mail from that address was ever unblocked.

According to Passell, after Lotrich’s e-mail was blocked, when he tried to e-mail her he would have received a message that his e-mail did not go through. The Employer did not specifically notify the Union in any other way that Lotrich’s e-

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mails were blocked, or offer another means of communication. Lotrich eventually created a new e-mail account in order to resume sending Passell e-mails, and succeeded in sending her an e-mail from that account on December 8 concerning the use of EA’s as substitute teachers, and requesting information about how often and where that had happened to date. The information request is discussed more fully below.

P. Other communications and Board hearing October 31On October 31 the Board heard the Union’s August PPC and related motions

by both parties. It dismissed “all claims as causes of action except for the refusal to bargain,” directed the parties “to return to bargaining immediately during the pendency of the current prohibitive [sic] practice claim,” and set a further meeting for December 19 “to determine the status of negotiations,” and provided that it would order a hearing on the PPC’s if no agreement or major progress had occurred in negotiations by that time. After the Board issued its October 31 decision, the parties scheduled a negotiating meeting for November 4.

The Union also made a written information request for information concerning bargaining unit employees’ employment status which was received by the Employer on or about October 31. As discussed more fully below, Passell denied the request in writing on November 11.

Q. November 4 negotiating meetingAs discussed more fully below, before this meeting, from November 1 to 3 by

e-mail Lotrich and Heatherington discussed the Union’s access to printed information the Employer had prepared in response to Stielow’s September 23 information request. The Employer was requesting payment of $365 for the copies, and the Union was refusing to pay on the grounds that it had requested the information be provided electronically at no cost to it. Heatherington offered to allow the Union to view the copies at the Employer’s office on November 3, but not to take possession of them. Lotrich said the Union could not do it November 3, and requested that instead the copies be brought to the November 4 negotiating meeting. He offered to sign a statement that the copies would not be taken from the negotiating site or copied by the Union, and that they would be returned in full to the Employer when the Union left the negotiating site. Lotrich also requested that previously requested stipend information which was maintained electronically be brought to the November 4 meeting on computer disks the Union had given the Employer. He also asked regarding information [that had been requested] that was not maintained electronically, how, where and under whose guidance it was maintained. Heatherington replied that the electronic stipend information had been placed on the disks and was available for Stielow to pick up, or the Employer would bring it to the November 4 meeting. She restated the conditions that Lotrich had suggested as follows:

1. The paper copies will be reviewed only at the Rio Rancho Inn [the meeting location] during the negotiations [emphasis supplied] on the 4th of November. 2. No copies will be made by any means or format. 3. The paper copies will be returned in their entirety at the end of the negotiating session [emphasis supplied] on the 4th. 4. These conditions do not apply to the disks prepared for Peggy Stielow.

The italicized language is a change from the specific conditions Lotrich had originally suggested, in that he proposed to look at the material at the negotiating

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site, but not necessarily during negotiations, and to return it to the Employer when the Union left the site, but not necessarily at the end of the negotiating session. In other words, the Union’s language allowed the possibility of reviewing the material after the end of the negotiating meeting, not during the meeting. Notwithstanding Heatherington’s changed language, Lotrich e-mailed her that the Union agreed to the listed conditions. However, this caused a problem during the meeting.

The November 4 meeting was unproductive. The meeting started shortly after 9 a.m., and lasted until almost 2 p.m. The meeting notes which were submitted into evidence show there was substantial discussion. As usual, the Union had a complete proposal, and this time the Employer had proposals on Articles 4, 6, 12, 14, 16, 29, 31, and 36.

The Employer complained about Lotrich’s conduct at the meeting. Principal Barbara Bruce, who was a member of the Employer’s negotiating team, said that Lotrich started “ranting” at the Employer that their proposal was not a complete package and that they never came with a complete package. She said Passell tried to explain that the Employer always came with a counter offer, that is, with changes, but that they weren’t going to waste a lot of trees just continually presenting things again and again. Union negotiator Biondo said that Passell told Lotrich the Union had a proposal from the Employer on every article since three meetings after the first PPC hearing, that the Union had had a complete proposal, that it wasn’t laid out the way the Union did it for the Employer, but the Union had every article. According to Bruce, Lotrich continued to “rant” about it, and Passell told him his behavior was borderline abusive and asked him to stop. He did not, so the Employer took a caucus to give Lotrich time to get himself together. Apparently the Employer caucused twice that day because of Lotrich’s behavior. Bruce explained that Lotrich is a pretty big man, and when he starts “escalating,” his voice is loud and booming, he becomes very ”interrogating” and she felt he was “very demeaning” for professionals to listen to.

At one point during the meeting, according to Union negotiators Eisenberg and Biondo, Passell said the State Public Education Department had instructed the Employer to come up with a RIF list, that the Employer needed to lose 50 positions that year, and they were at about 15. During the meeting they also discussed stipends, but did not reach any agreement. The Union had not yet received stipend information furnished on the computer disks, and the copies in the box of information had not been made available.

The parties went over each of the open articles, and the Union asked if the Employer had any changes, indicating that the Union had made all concessions it intended to make, but had trading options open. Gary Wall said the Employer had no changes, but would consider trades. However, when the Union then proposed some specific trades the Employer rejected each of them, and did not propose any other trades of its own.

During the meeting, the Employer produced the box of copies as discussed between Lotrich and Heatherington. However, as discussed more fully in another section of this report, the Union did not get to review the material because of a disagreement between Lotrich and Passell about the conditions under which the Union had agreed to view the copies. Stielow did get the disks with stipend information.

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When the Union inquired about a lunch break, Employer negotiator Affentranger requested that they negotiate through lunch, saying he had other things to do, and the Union agreed to this.

Apparently toward the end of the meeting, Passell gave Lotrich a letter dated November 4, replying to the Union’s information request concerning Educational Retirement Board contributions. This is discussed more fully in another section of this report. The letter went on to state that based upon an e-mail Lotrich had sent on October 28 to the Union’s bargaining team, building representatives, and bargaining unit employees, Passell was suspending the Union’s privilege to use the Employer’s e-mail system until the Union Management Committee could be convened to address the problem. This may have been the date upon which Lotrich’s e-mail address was blocked from sending e-mail into the system. The Employer did later suspend the e-mail accounts of the employee Union officials, but they were not suspended on this date. This is discussed more fully below.

The Employer ended the meeting a few minutes before 2 p.m. The Union requested to set another date before they left, and proposed Nov. 12, 13, and 14, but the Employer did not agree to any of these dates at that time.

R. November 12 meetingThe parties did negotiate again on November 12, from about 4:45 p.m. to

8:15 p.m.. At this time labor consultant Bob Brown replaced Gary Wall as the chief Employer spokesperson. In addition to each party’s usual negotiating committee, the meeting also was attended by Julianne Sider, who is employed with Brown at CNM, a local community college, and who was apparently there to observe negotiations as part of her professional development.

The Employer presented an offer that was headed “Package Proposal,” which contained the Employer’s current proposal on every contract article. However, during the meeting Brown withdrew the proposal on Article 36, Salaries, stating there was a mistake in it. It is undisputed that the Employer did not put another wage or salary proposal on the table until the meeting in December with the federal mediator. The Union had a proposal for the Employer, but offered it electronically on a thumb drive. Brown complained to the Union because the proposal was not printed and copied for the Employer’s negotiating team. (The Employer explained that receiving proposals on a thumb drive was not convenient, because they had been advised not to attach a thumb drive from an outside source to their computer system, because it could have a malware program on it which could adversely affect the Employer’s entire system. Therefore, when the Union gave them a thumb drive they had to caucus to find a laptop that was not attached to the main system, attach the drive to it, and either all try to read the proposal on the small screen, or print it for everyone on the committee.) During the meeting they discussed salaries and stipends, but the Employer’s stipend proposal only included how stipends could be categorized across the system, and did not include any proposal about amounts or cutting any stipends.

Again, the Employer contends that Lotrich’s behavior was disruptive. Barbara Bruce said that during the meeting Lotrich taunted Brown by calling him “Bobby,” which is not a name Brown uses, and that Lotrich continued to “escalate,” and to be demeaning to the Employer negotiators when they tried to talk about things. She said Brown told Lotrich his behavior was not acceptable, that he needed to treat the Employer’s staff with respect. During the meeting

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Lotrich tried to use the Employer’s audio/visual equipment to compare the parties’ proposals, but the Employer did not agree to do this.

At the end of the meeting, Brown told the Union team they had fifteen minutes to a half hour to gather their stuff, and then they needed to leave the Employer’s premises, and if they failed to do so the Employer would call security to remove all of them, or just Lotrich—the testimony was unclear. Bruce said that Lotrich “escalated” again upon hearing this, and shouted to go ahead and call the high school security team to come and throw out their lead negotiator. Brown said he told the Union they had to leave because the Employer bargaining team had complained to him that in the past the Union negotiators would not leave the building after the meeting ended, so the Employer representatives also had to remain, but it wasn’t productive and they wanted to go home.

S. November 14 meeting This was a short meeting. It was scheduled to start about 5:30 p.m., but

started about 5:45 because Brown got stuck in traffic on his way to the meeting. The Employer brought modified proposals on Articles 2, 4, and 8, and said the remainder of its proposal was the same as November 12. Barbara Bruce testified that Lotrich was confrontational and demeaning to Passell during the meeting, and, on the other hand, Brown admittedly made taunting statements to Lotrich during the meeting about Lotrich’s hands shaking. The Employer took a long caucus to prepare information about stipends in response to a Union request for stipend information, but both the caucus and the meeting ended before all the information was prepared. The Employer returned from its caucus, apparently thinking the Union was going to present another counteroffer, and instead Lotrich announced that the Union was declaring impasse, that the Employer could just change the date on the Union’s November 12 proposal, and that was the Union’s best and final offer. He requested the Employer’s final proposal, but Brown said the proposal on the table was not the Employer’s final proposal. The Employer ended the meeting a few minutes after 7 p.m.

The Employer later sent the Union the stipend information it was compiling by Federal Express, as discussed more fully in another section of this decision, and the Union put together a complete contract proposal, dated November 14, and sent it to the Employer as the Union’s last and final offer.

T. Communication is cut offAs a result of Lotrich’s e-mail being blocked, Passell said she did not receive

two letters e-mailed by Lotrich on November 24 and one e-mailed on December 2. Each of these letters contained information requests which are discussed more fully below. Throughout negotiations up to this point, when Lotrich had e-mailed Passell he had often copied Gary Wall and Charlotte Heatherington, the Employer’s attorney of record at the time, and he also copied them with these November 24 and December 2 letters. Wall was employed by Bob Brown, and although Brown had replaced Wall as the Employer’s chief spokesperson in negotiations as of November 12, Wall’s e-mail address was rbrowncons@aol.com, which appears on its face to be an address for Brown, and there is no evidence the Union had been informed of any other e-mail address for Brown. The Employer was also in the process of hiring a new labor attorney because of Heatherington’s lack of time to devote to the Employer’s issues, but the Union was not informed of this until December 19.

U. Final negotiating meeting with mediator and Board hearing

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The last negotiating meeting took place with a federal mediator present on December 2. The parties were not able to reach agreement. They stipulated that at that meeting the Employer presented a complete contract proposal, including a proposal on Article 36 regarding stipends and salaries.

Inasmuch as the parties did not reach agreement in their negotiations, on December 19 the Board ordered the instant hearing on the PPC’s.

V. Reflections on negotiations1. Parties’ arguments about negotiations

The Union placed the blame for the parties’ inability to reach agreement upon the Employer. The Union contends that the Employer spent a great deal of time during meetings in its caucuses instead of discussing the proposals, ended meetings early and delayed in scheduling meetings, and that the Employer would not agree to bring a complete proposal to the table so that the parties could work on the contract as a whole and see possible trades and compromises. Rather, the Employer only wanted to discuss certain articles at each meeting. However, I note that the evidence indicates that the Employer did not refuse to discuss other articles at meetings where they had only a few new proposals.

The Employer, on the other hand, blamed Lotrich for the lack of agreement. Affentranger said that Lotrich prevented meaningful discussion because when the Employer would bring back a proposal from its caucus, Lotrich would cast it aside because it was not a complete proposal. Ogle said Lotrich could be personable in casual conversation, but was “demanding and belligerent” in negotiations. Lotrich could have, but did not, testify at the hearing, so I conclude, in the absence of rebuttal, that the Employer’s witnesses accurately described his behavior.

Although the parties each accepted some of the other’s language on issues which, to this Hearing Officer, appear minor, the record does not reflect any instance where the parties formally tentatively agreed upon each other’s proposals. The only TA’s were on contract articles where neither party wanted to change the current language.

2. Employer desire to minimize time spent on negotiationsThe Employer’s Human Resources employees felt they should not have to

put in the amount of time for negotiations that has been required this year. Passell did not want to have an extended meeting on May 15, based upon her response to Stielow’s suggestion the parties meet until 10 p.m. The Employer apparently expected to get a quick agreement on ground rules and to go home. As discussed above, the Employer chose to end other meetings before the Union agreed to end them. Ogle said the School District has basically had the same negotiated agreement for 12 years, with very few grievances and no arbitrations. However, during 2008, she said, the Employer received 15 grievances in a short time, and they also received long e-mails from Lotrich. Ogle said these things caused the Employer to consider whether they could trust the Union. Ogle said that she and Passell spent so long analyzing long communications from the Union during negotiations that they didn’t have time to do the jobs they had been hired to do. She characterized Lotrich’s e-mails to the Employer as long, rambling, “badgering and harassing,” but did not point to any specific examples of this. Passell explained that she would receive long e-mails from Lotrich and then had to consult with the Employer’s labor counsel and consultant. She said the e-mails were hard to digest intellectually and emotionally and that they were usually accusatory, observing that it was very difficult to be accused of things constantly and be constantly trying not to engage. She said because of the time she spent answering

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information requests and preparing for negotiations, she had not been able to work on other important matters. She also testified that negotiations this year had cost the Employer a substantial amount of money as well as time. However, it is well established that a party has a duty to spend the time needed for negotiations. See, e.g., Caribe Staple, supra. I do not find that the Union’s communications were so long or rambling as to amount to a failure to bargain in good faith or to excuse the Employer’s later refusal to entertain communications from the Union.

W. Events taking place after negotiations endedEach of these will be discussed in more detail below. From on or about

November 18 to on or about December 17 the Employer suspended the employee Union officials’ access to the Employer’s e-mail system, and on or about December 17 the Employer unilaterally imposed an extra-contractual rule regarding e-mail access for the employee Union officials.

On November 23 an article appeared in the Rio Rancho Observer which the Employer contends amounted to a violation by the Union of the provision in Policy 201 that negotiations shall take place in closed session.

On or about December 1 the Employer unilaterally ceased to hire substitute teachers from outside the bargaining unit and reassigned the work of substituting to EA’s, other bargaining unit employees, and employees outside the bargaining unit.

On or about December 3 and 4 Union representative Doug Gibson attempted to distribute Union flyers announcing an informational picket in bargaining unit employees’ communication boxes. The Employer intercepted the distribution and contends that by attempting to distribute the flyers, the Union was harassing the Employer, and that Gibson lied about whether the distribution of the flyers had been authorized by the Employer.

On December 19 Passell issued a letter to all the bargaining unit employees announcing that the Employer had implemented the state-mandated pay increase and was paying stipend payments, and blaming the Union for the delay in the pay increases.

IV. Information requestsThe Union did not list what it believes to be all of its requests for

information which have not been satisfied by the Employer, either in its pleadings or in its brief. Therefore, I have reviewed the evidence to identify information requests and the responses. I will first consider the requests for information relating to contract negotiations, then the information requests relating to grievance processing.

The Employer contends that the Union acted in bad faith by making information requests to harass the Employer, and that the Union often “hid” requests for information within lengthy, “badgering” e-mails. I do not find that the requests were made in bad faith or to harass the Employer. The requests, which are discussed below, are all related to issues for negotiations or to the Union’s representation of the bargaining unit employees regarding their wages, hours, or other terms and conditions of employment. The Employer cited Wachter Construction, Inc., 311 NLRB 215 (1993), enf. denied 23 F.3d 1378 (8th Cir., 1994), where the appeals court disagreed with NLRB and found that a union had filed an extremely lengthy information request to pressure an employer to cease subcontracting work to nonunion firms. The court particularly relied upon evidence that a union agent had stated that he was going to create paperwork and

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financial obligations to discourage union contractors from subcontracting to nonunion firms, and concluded that the employer was not obligated to provide the information. There is no such evidence here.

I agree that some of the information requests were contained in the middle of letters and e-mails which did not highlight the fact that an information request was included. Nevertheless, they are clear enough that the Employer had an obligation to respond to them. On the other hand, where the evidence presented at the hearing was insufficient to establish the nature of an alleged information request, I have not found any violation in the Employer’s failure to respond. There was testimony from Union witnesses concerning verbal information requests made at the November 4 negotiating meeting, but the testimony was too vague and conflicting to establish what was requested, so I have not included that request or requests. There was also testimony that at one of the meetings—the record is unclear as to which one—Employer negotiator Affentranger commented that while doing research for his doctoral dissertation, he had come across articles that asserted that “general leave” was not as desirable as sick leave. The Union requested copies of those articles, but Affentranger testified that he never said he possessed copies. He admitted refusing to provide the articles to the Union. I do not find that this comment by Affentranger creates any duty by the Employer to locate and provide copies of the articles. It was an off the cuff remark, and I agree that the Union will have to do its own research.

The Employer also contends that the Union filed requests for information through Inspection of Public Records (IPRA) requests. There was brief, hearsay evidence presented about IPRA requests, but this was not further developed at the hearing. This evidence falls far short of establishing any bad faith by the Union in making IPRA requests.

A) May 1, 2008 written request by Gibson before first negotiating meeting

Before negotiations started Union representative Gibson made a written request for the following information for use in negotiations:

1) The 2007-2008 budgeta) approvedb) amendedc) final

i) all supporting documents such as executive summaries, tables, charts, as well as all Budget Amendment Requests

ii) the official enrollment report for the 40th, 80th and 120th dayiii) the unit value to start the year and any and all increases to

the unit valueiv) official audit

2) the approved 2008-2009 budget3) all information used to track usage of sick leave by bargaining unit

employees4) job descriptions for all positions in the bargaining unit5) Information as described in the collective bargaining agreement Article 8,

subsection B.6.c: “a list or variety of lists as may be available in various formats, the following employee information: name, work location address, work location

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telephone number, salary, degree status, licensure information, assignment and/or job title, total years experience, initial date of hire with the District, and date of hire into current job classification,” for all bargaining unit employees.

On May 2, Passell responded to Gibson by e-mail stating that she was unsure what the Union wanted regarding the tracking of sick leave, noting there was nothing of an individual nature in the sick leave information the Employer had, and asking that Gibson let her know what the Union needed. There is no evidence the Union replied to this.

On May 15, during the first negotiating meeting, Passell provided some, but not all of the information requested. Disagreement immediately arose regarding what was provided. Union president Stielow provided Passell a written statement that day regarding which was still needed from the Union’s point of view. Stielow stated that the Union still needed the amended and final budget for 2007-2008, the approved 2008-2009 budget, and the official audit. Stielow also asserted that the information for tracking usage of sick leave was deficient because it did not include individual employee information or a definition of “licensed,” “other licensed” and “classified.” Instead, it was just a monthly report by school site. Finally, Stielow stated the Union had not received the work location telephone numbers, salary, licensure information, years of experience, or date of hire into current bargaining unit position, for the unit employees.

It is undisputed that Passell attempted to obtain verbal clarification from Stielow after the May 15 negotiating meeting about what sick leave information the Union was seeking, but this conversation devolved into an altercation, and Passell never obtained the clarification. Passell testified without contradiction that on May 15 she gave the Union the information the Employer had regarding sick leave usage. Passell responded to the Union the next day in writing that the 2007-2008 budget was never amended, so the approved budget was the final one; that the official audit had not yet been completed, and would not be released to the “public” until after the state auditor approved it; that the 2008-2009 budget would not be done until June 20, 2008; that the sick leave request was unclear; that the employees’ work locations and work telephone numbers were available in the phone book and on school websites; that the salary and licensure levels had been provided on both the 07/08 worksheets and 08/09 worksheets, and that the years of experience had been provided the day before, and the date of hire in the current job description was not included in the database.

The Union did not immediately reply to Passell’s May 16 letter. After May 15 there was a hiatus in negotiations until the Board met on July 11 to consider the PPC filed by the Union on May 16. However, there is no evidence in the record that the audit or the 2008-2009 budget have ever been provided to the Union. This information is relevant to the Union’s assessment of what financial demands could be met by the Employer, as well as to the Union’s request discussed below that it have the opportunity to negotiate over any cost cutting measures that might be implemented. I therefore recommend to the Board that the Employer be required to provide this information. Additionally, as to the work locations and work telephone numbers, salary and licensure levels, the Union is not required to use burdensome methods of compiling information if the Employer has it available in a more convenient form. Kroger Co., 226 NLRB 512, 513 (1976). Accordingly, I recommend to the Board that the Employer be required to provide the audit of the

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2007-2008 budget; the 2008-2009 budget; the employees’ work locations and work telephone numbers, salary and licensure levels. If the date of hire in current job classification is not contained in the database, and compiling the information is therefore burdensome, the Employer has a duty to discuss this with the Union and give the Union a chance to modify its request if necessary to conform to the available information. Westinghouse Electric Company, 239 NLRB 106, 113 (1978), enfd. 648 F.2d 18 (D.C. Cir., 1980).

B) July 18, 2008On July 18, the Union had apparently not raised any issue about the

information still missing from its May 1, pre-negotiation request, but during a negotiating meeting that date it gave the Employer a second written information request. This request related entirely to payment vouchers and payments for school sponsored trips during the 2007-2008 school year where the school bus contractor, Durham School Services, had provided transportation, and communications between the Employer and Durham School Services regarding the 2008-2009 school year for the scheduling of bus routes, individual school site start and end times, proposed early release days, and additional length of school day for elementary students. Notably, the information requested included solely the Employer’s communications with Durham about these matters. Since this is not directly related to the bargaining unit, the Union must show why it needed the information, but it has not done so. In the context of the bargaining it appears that this request is related to the Union’s demand in July that the Employer bargain over the decision to change the schedule at the high school from a block schedule to a seven period schedule. The Union may have felt this would shed light on the date the Employer decided to change the schedule for the high school. However, as discussed more fully below, the Employer had notified the Union of the potential change before the end of the 2007-2008 school year, and between February and April, 2008, the parties had had four negotiating sessions over the effects of this schedule change before the contract negotiations began.

The Employer did not have this information available at the next negotiating meeting, July 22, and apparently essentially said they did not intend to provide it for various reasons. The Union verbally protested this at the meeting. At the July 22 meeting the Employer did give the Union a copy of a press release announcing the new daily starting and ending times for each school. After the meeting, on or about August 6, 2008, the Employer apparently provided the information which the Union had requested on July 18, and waived any charge for the copies which it may have been able to impose pursuant to the collective-bargaining agreement, Article 8.B.6.d.

I would not find this to be an unlawful delay in the circumstances. The school bus employees were employees of Durham, not the Employer, and the Union has never explained the relevance to its contract negotiations of these expenditures for school trips during the previous school year or the Employer’s communications with Durham about scheduling for the 2008-2009 school year. It is undisputed, as discussed elsewhere in this report, that for the 2008-2009 school year the Employer changed the schedules for high school students and, therefore, for the high school employees, and that this was discussed with the Union in four meetings from February, 2008, through April, 2008. The requested information does not appear to be of even potential relevance to these issues or to any other issues raised by negotiations. I therefore find that the Employer’s delay in providing this information did not violate its duty to bargain.

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C. August 4, 2008During the August 4 negotiating meeting, Andy Lotrich, the Union’s chief

spokesman, verbally requested information about any employees abusing their sick leave. The record is unclear about his specific words or the context of this request. One of the Union’s proposals throughout negotiations was to change the sick leave that was provided in the collective-bargaining agreement to general leave. This verbal information request may be a follow up to the written request before negotiations about information the Employer used to track sick leave, which Passell attempted unsuccessfully to clarify. Other testimony about this August 4 request, from a member of the Employer’s negotiating team, Shirley Ogle, is that on August 4 the Union wanted information about individual employee absences so it could talk to those employees. According to Ogle, the Employer could not provide the information because the information as to individual employees was confidential, and because the Employer could not allow the Union to be talking to the employees like that. Although Ogle’s testimony raises the possibility the Employer failed to provide the information for unlawful reasons, nevertheless in the absence of more specific evidence from the Union about what was requested and why the information was relevant, I will not find that the Employer unlawfully failed to satisfy this request.

D. Passell provides unrequested informationOn September 23 Passell e-mailed Lotrich that in response to the Union’s

request for additional copies of the Employer’s bargaining proposals to date, a packet had been compiled and was available for pickup at the school district office, and that the Union owed $17.25 for these copies. She testified that she did this because the Employer had given the Union proposals on every contract article by July 18, and whatever was the last proposal cumulatively on each article represented the Employer’s offer. However, she said, when Lotrich kept saying the Union didn’t have a complete offer from the Employer, she assumed he needed additional copies and that this was a request for information. Therefore, she had the copies made. However, a month earlier, on August 21 and 22, when Passell had given Lotrich a log of the Employer’s proposals in response to his request for “a complete proposal,” he had explained that he didn’t want the Employer’s old offers, that he wanted their new offer, in its entirety so that the Union didn’t have to flip through numerous bargaining sessions’ worth of notes and documentation. There is no evidence in the record of the Union saying or doing anything from August 22 to September 23 that would give the Employer any reason to believe the Union had changed its mind and was now simply requesting additional copies of the Employer’s various partial proposals. The Union refused to pick up the copies or pay for them, although on September 23 Lotrich went to the Employer’s office and requested to make his own copies at the Union’s expense on his personal copier. Passell denied this request. The Employer points to this incident as an example of the Union harassing the Employer with information requests, but Passell chose to do this herself, when she had been told this was not what the Union wanted. The Union was not acting in bad faith when it failed to pick up or pay for these copies.

E. September 23, 2008 request and “the box”On or about September 23, 2008, in response to the September 22, 2008,

letter to employees from Superintendent Cleveland regarding financial problems and the possibility of, inter alia, reductions in force as a last resort, which is discussed more fully below, Union president Stielow by letter to Superintendent

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Cleveland requested that the Union Management Committee meet to make joint recommendations for cost cutting measures, and also requested the following information so that the Union could prepare for this meeting:

1. Any/all written communication between the Rio Rancho School District and the New Mexico Public Education Department (to include, but not limited to: e-mails, mail, letters, mass publications, phone logs) pertaining and/or relating to the 2008-2009 SY budget.2. Any/all written communication between Rio Rancho School District representatives/employees (to include, but not limited to: e-mails, mail, internal mail, letters, memorandum [sic], mass publications, phone logs) pertaining and/or relating to the 2008-2009 SY budget.3. In paragraph 1 of your letter, you state, ‘The number one goal is to cut ‘things’ rather than ‘people.’ ‘ What did you mean when you referred to ‘things’?4. What line item/items and object code/codes do you currently plan and/or anticipate to cut to reduce $4 million?5. Any/all written communication between the Rio Rancho School District and the New Mexico Public Education Department (to include, but not limited to: e-mails, mail, letters, mass publications, phone logs) pertaining and/or relating to the determination that $4 million needed to be reduced from the current operational budget.6. Any/all written communication (to include, but not limited to: e-mails, mail, internal mail, letters, memorandum [sic], mass publications, phone logs) relating and/or pertaining to how the $4 million figure was calculated and where this money would be spent.7. Any/all BAR requested by the District for the 2008-2009 SY. 8. Any/all line item/items and budget code/codes transfers that have happened during the 2008-2009 SY that did not necessitate the submission of a BAR.[An apparent typographic error repeating item 8 is omitted.]9. The 2007-2008 SY final budget (including any/all worksheets) and audit.10. The 2008-2009 SY adopted budget (including any/all worksheets).11. The 2008-2009 SY operating budget (as it appears today, including any/all worksheets—if different than [sic] item 10 above.12. The 2008-2009 SY requests for supplies and materials.13. The 2008-2009 SY approved requests for supplies and materials.14. The 2008-2009 SY travel requests.15. The 2008-2009 SY approved travel requests.16. The 2008-2009 SY stipend requests.17. The 2008-2009 SY approved stipends.18. The 2008-2009 SY approved utility bills.19. The 2008-2009 SY out-of-state student travel requests.20. The 2008-2009 SY approved out-of-state student travel requests.

The Employer, by records custodian Ema Archibeque-Dreher, replied by letter transmitted by e-mail on Friday, October 3, 2008, at 3:20 p.m. to Stielow, that the number of pages the Union was requesting was “approximately” 2000 pages which would be charged at 25 cents per page, and that “Before we proceed

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in further processing your request we will need $250 with the balance due upon receipt of the requested information.”

The collective-bargaining agreement provides regarding copies in Article 8.B.6.d that

For any non-electronic information requested by the Union, under either this subsection or under the New Mexico Public Records Inspection Act, the Union will pay fifteen cents ($.15) per page copy fee (for requests of less than 30 pages) or twenty-five cents ($.25) per page copy fee (for requests of 30 or more pages) in advance of their receipt of the material.

Stielow replied to Archibeque-Dreher by e-mail on Monday, October 6, the next working day, but at 7:52 p.m., on Stielow’s non-working time, that the Union assumed the information was in electronic format, they wanted the copies electronically, and that Stielow would bring in either a disk or a thumb drive, whichever the Employer preferred, to transfer the information. The Employer never replied to this, so on October 9, Stielow again e-mailed Archibeque-Dreher stating that she, Stielow, would be available to come to the district office on October 10, but that she would also be at the office the following Monday for a union/management meeting, and that she would bring a thumb drive with her. The Employer still did not reply, so on October 16 Stielow again e-mailed Archibeque-Dreher and offered to bring either a disk or thumb drive as soon as she heard from Archibeque-Dreher which method the Employer preferred to use to transfer the information. Stielow testified that in sending these e-mails she was relying upon the letter she received from Archibeque-Dreher and that she believed the Employer would not begin to make paper copies until it received the $250 initial payment. Apparently the practice of the parties had been that the Union would not be charged for copies if they were provided electronically.

By letter dated on or about October 20, which was apparently received by Stielow on October 24, Archibeque-Dreher replied that the Union’s original information request did not specify that it was requesting the information in an electronic format, that the copies were prepared and made available to the Union as of October 3, 2008, and that the Union did not state its request for electronic copies until October 6, three days after the copies had been made. Archibeque-Dreher goes on to note that although she notified Stielow on October 3 that there would be approximately 2000 pages, the actual number of pages was 1460, and that at 25 cents per page, the Union owed $365 in copying costs.

The record does not reflect any other communication about this request until October 31, 2008, when the Board heard a PPC filed by the Union in August. After the hearing the parties met briefly, and the Union complained that it had still not received the information in Stielow’s September 23 request. The Employer replied that the Union had to pay for the paper copies, and that the copies were in a box waiting for the Union to pick them up. However, the Union refused to pay, since they had requested electronic copies. The box was apparently on the premises, and Union representatives were allowed to look inside it “momentarily,” but not to carefully examine the contents. The parties apparently also discussed the providing of stipend information electronically on two new computer disks provided by the Union to the Employer.

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Subsequently, by e-mail on November 1, the Employer’s then attorney, Charlotte Hetherington, informed Lotrich that the copies which had been made had to stay in the Employer’s custody until the cost issue had been resolved, but that the copies would be available for the Union’s review on Monday, November 3, in the school district administrative office. Lotrich replied by e-mail to Hetherington that the Union officials were not available on November 3 to review the documents because of work-related meetings. He therefore requested that all the previously-requested information be brought to the negotiation session scheduled for November 4, including the electronic information. He offered to sign a statement that the copies would not be taken from the negotiating site or copied by the Union, and that they would be returned in full to the Employer when the Union left the negotiating site. Lotrich also requested that previously requested stipend information which was maintained electronically be brought to the November 4 meeting on computer disks the Union had given the Employer. He also asked regarding information [that had been requested] that was not maintained electronically, how, where and under whose guidance it was maintained. Heatherington replied by e-mail that the electronic stipend information had been placed on the disks and was available for Stielow to pick up, or the Employer would bring it to the November 4 meeting. She said the 1460 paper copies “that were made prior to the change in request to electronic copies” would be made available, but restated the conditions that Lotrich had suggested as follows:

1. The paper copies will be reviewed only at the Rio Rancho Inn [the meeting location] during the negotiations [emphasis supplied] on the 4th of November. 2. No copies will be made by any means or format. 3. The paper copies will be returned in their entirety at the end of the negotiating session [emphasis supplied] on the 4th. 4. These conditions do not apply to the disks prepared for Peggy Stielow.

The italicized language is a change from the specific conditions Lotrich had originally suggested, in that he proposed to look at the material at the negotiating site, but not necessarily during negotiations, and to return it to the Employer when the Union left the site, but not necessarily at the end of the negotiating session. In other words, the Union’s language allowed the possibility of reviewing the material after the end of the negotiating meeting, not during the meeting. Notwithstanding Heatherington’s changed language, Lotrich e-mailed her that the Union agreed to the listed conditions. However, this caused a problem during the November 4 meeting.

The Employer brought a box of records to the meeting, and provided the Union with a written document to sign stating that the Union had requested certain records from the Employer which had been copied, but that the Union had not paid for the copies; that the Employer would allow the Union to review the documents on November 4 subject to the conditions that the copies would be reviewed only at the Rio Rancho Inn during the negotiations on the 4th of November, that no copies would be made by any means or format, that the paper copies would be returned in their entirety at the end of the negotiating session on the 4th, and that the conditions did not apply to the disks prepared for Stielow. Lotrich crossed out and initialed the notation that the Union had not paid for the copies. He also crossed out the statement that the copies would be reviewed

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during the negotiations and would be returned at the end of the negotiating session, adding in their place a statement that the copies would be returned when the Union left the premises, and no later than 4 p.m. This was consistent with Lotrich’s original offer of conditions to Heatherington. The Employer, however, was unwilling to allow the Union to review the material since the Union changed their lawyer’s document stating the conditions, and refused to allow the Union to look at it. To date the Union has not paid for the copies, and it has not been allowed to review the material. According to the Employer, the copies in “the box” are responsive to Stielow’s September information request.

I find that by failing and refusing to provide the information to the Union, in these circumstances, the Employer has failed to comply with its duty to provide information. Given the language in Archibeque-Dreher’s October 3 letter to the Union, that the request amounted to “approximately” 2000 copies, and that “before we proceed in further processing your request” the Employer wanted partial payment, I am not persuaded that the copies had, in fact, been made before Stielow sent her e-mail the evening of the next business day, October 6, requesting electronic copies. If Archibeque-Dreher knew on October 3 that the actual number of copies was 1460, I see no reason why she would not state this, instead of the “approximate” figure of 2000 copies. Nothing in Archibeque-Dreher’s letter would clearly inform the Union that the copies had been made. Rather, the implication of the letter is that the Employer has taken a look at the information, estimates it will be 2000 copies, and wants to be sure the Union will pay before the Employer expends its resources to make the copies. The Union promptly responded, apparently with due regard to the contractual requirement that Union business be conducted during non-working time, and clearly requested that information instead be supplied electronically at no cost to it. Thus, by the beginning of the work day October 7 the Employer knew that the Union wanted electronic copies. The 13-day delay between when the Employer was notified that the Union wanted electronic copies and the October 20 letter stating the copies had already been made also contributes to my skepticism that the copies had been made on October 3. If so, why not tell Stielow this on October 7 instead of waiting almost two weeks to tell her.

The evidence indicates that many of the requested items are available electronically. The Employer’s Director of Accounting John Baber and Director of Finance Randy Evans testified that certain items of the requested information, e.g. the budget and related documents, were transmitted electronically to the State Public Education Department, and that, for example, principals requested payment of employees’ stipends on electronic spreadsheets. Evans also stated that the Employer had spent about $1500 for computer programming to allow it to extract some of the requested information from its records. It appears that the largest part of the information, then, could be provided electronically.

The Union made the September 23 information request immediately after Superintendent Cleveland’s September 22 letter to all bargaining unit employees explaining the Employer’s serious financial problems and its need to cut costs, including some stipends, and possibly including RIFS as a last resort. The information requested was of a nature that would assist the Union in responding to any proposal of the Employer to lay off bargaining unit employees or change their compensation or terms and conditions of employment in order to cut costs, and in the circumstances this information was and is clearly relevant to the negotiations. The Employer itself created the confusion about the copies by first telling the

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Union it would not take further action before receiving partial payment, and then, contrary to this, going ahead without the Union’s authorization to make paper copies of many items which exist electronically. If the Employer had given the Union the requested information that was available electronically, and had also told the Union what was not available in that format, then the Union could have modified its request, offered to provide labor to make the copies, or taken other action if it felt the cost was too great. The Employer also has never replied to the request in Lotrich’s e-mail to Hetherington regarding any information that was not maintained electronically, asking where, how, and under whose guidance it was maintained.

Information should be made available in a format which takes advantage of the current technology available for convenience of use. Previously, this was found to be photocopying. American Telephone and Telegraph Company—Long Lines Department, 250 NLRB 47 (1980), enfd. sub nom. CWA Local 1051 v. NLRB, 644 F.2d 923 (1st Cir., 1981). Now, the most convenient technology is usually an electronic format. I therefore recommend to the Board that the Employer be required to provide all of the information requested in Stielow’s September 23 letter. Any of the requested information which exists electronically is to be provided in that format. If there is any which does not exist electronically, the Employer must inform the Union of where, how, and under whose guidance this information is maintained, and, upon request by the Union, bargain in good faith over alternative means of providing the information which is not available electronically. Or, alternatively, since the paper copies exist, although the Union did not request them, the Employer can give the Union the copies in the box, without charging the Union for them, provide additional information electronically to the extent it exists in that format, inform the Union of where, how, and by whom the remaining information is maintained, and then, if requested by the Union, bargain over the method of providing any of the remaining information.

F. Sept. 23 Lotrich e-mail request for stipend informationIn a long e-mail on September 23 to Passell, Lotrich wrote that the Union

had just learned earlier that evening that the Employer was attempting to either stop payment for certain stipends to bargaining unit employees, or was attempting to reduce the amount of payment for stipends. He stated that the Union did not agree to any changes to the current stipend rates, and so that the Union could evaluate the current situation pertaining to stipends, he wanted the following:

1. The positions that received stipends for the 2007-2008 SY.2. The rate/amount of the stipends for the 2007-2008 SY. 3. The number of positions that received stipends for the 2007-2008 SY. 4. The positions that are currently scheduled to receive a stipend for the

2008-2009 SY.5. The rate/amount of the stipends for the 2008-2009 SY. 6. The number of positions that are scheduled to receive stipends for the

2008-2009 SY. 7. The name of the employee that received each stipend for the 2007-2008

SY.8. The name of the employee that is scheduled to receive a stipend for the

2008-2009 SY.

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Passell replied the following day by e-mail that she could provide numbers 2, 3, 5, 6, 7, and 8 by October 7, but that “position names [sic] could not be provided without developing new reports or analyses of the greater that 3000 stipends paid out annually.”

The record reflects that stipend information was provided on computer disks to the Union on November 4, and that additional information was provided in hard copy on November 17 by Federal Express, as described above. However, the Union has not provided evidence regarding whether there are any deficiencies in the information they were provided, and there is no evidence the Union followed up with Passell regarding those items of this request which she said she could not supply because the Employer did not have a report or analysis that captured that information. At that point, the ball was in the Union’s court to request further discussion of those items so it could determine whether to drop its request, change it, or propose some other way of getting the information. Without further specific evidence from the Union about whether requested stipend information still has not been provided, I will not recommend to the Board that the Employer be found to have failed to provide stipend information.

G. Oct. 31 Stielow request for employee informationBy undated letter which was received by the Employer on or about October

31, 2008, the Union by Stielow requested “a complete list of employee information as stated in Article 8” including name, work location address, work location telephone number, salary, degree status, licensure information, assignment and/or job title, total years experience, initial date of hire with the District, and date of hire into the current job classification,” noting that the Union had previously received this as to the Union members, but requesting it for all employees. The letter does not specify that this is limited to all bargaining unit employees. In the letter Stielow requests that the information either be e-mailed to Union Treasurer Pierce, or that it be transferred to CD’s supplied by the Union. This is the same information the Union had requested in May and received in part at the beginning of negotiations, as discussed above. The record does not reflect the Union’s specific reason for making the request at this time. It could be inferred that the Employer had not provided the information for all bargaining unit employees, just the members.

Passell replied in writing by letter dated November 11, 2008. She refused in the letter to provide the information on the ground that the information was previously provided for negotiations and the second request was not received by the Employer until October 31. In her testimony at the hearing, Passell further explained that pursuant to the contract the request had to be made by October 30, and since the request was received on October 31 it was untimely.

The collective-bargaining agreement, Article 8.B.6.c, provides that

Subject to the availability of information and the District’s capability without having to expend significant time or resources to develop new programs or software to generate specific reports, the RRSEU shall be provided, upon request, a list or a variety of lists as may be available in various formats, the following employee information: name, work location address, work location telephone number, salary, degree status, licensure information, assignment and/or job title, total years experience, initial date of hire with the District, and date of hire into the current job classification. This list/s will be provided, upon

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request, no later than October 30 of each school year, and updated lists shall be provided, upon request, prior to the commencement of negotiations. The RRSEU president will be provided with information on a regular basis (i.e., employment reports to the board) to assist the union in keeping its list of employees up to date.

Contrary to the Employer, I do not read this contract language as establishing a deadline by which the Union must request the information. Rather, it establishes a deadline by which, upon the Union’s prior request, the information must be provided. The Union failed to make the request before October 30, so the Employer obviously would not be held to that deadline, but the Union is still entitled to the information. The Union is, generally, entitled to information relating to bargaining unit employees. Laurel Baye Health Care, 346 NLRB 159, 161 (2005), and cases cited therein. Contract clauses like the one in this agreement establish that the specified information must be provided, but they do not amount to a waiver of the Union’s right to other information. Bozzuto’s, Inc., 275 NLRB 353 (1985). The duty to furnish information exists independently of any agreement between the parties. NLRB v. Acme Industrial, 385 U.S. 432 (1967). Moreover, the Employer may not restrict the information just to Union members, since the Union is the representative of all employees in the bargaining unit. Accordingly, I find that the Union is entitled, for all bargaining unit employees, to the information requested, and the Employer’s failure to provide it violates its duty to bargain with the Union. I recommend to the Board that the Employer be required to provide it within a reasonable period of time. Additionally, the Employer’s answer to the Union’s request in May for the same information fails to comply with its duty to provide information to the extent that it refers the Union to the telephone directory, the school websites, or the budget worksheets. The Union is not required to utilize a burdensome alternative method to compile information if the Employer has it in a more convenient form. River Oak Center for Children, 345 NLRB 1335 (2005). The information must be provided in a list or lists.

H. November 14, 2008The Union requested, by letter dated November 14, the following

information regarding stipends:

1. Stipends/non-salary paid to non-bargaining unit members, to include the District’s administrative team (to include but not limited to principals and vice-principals) for the 2008-2009 SY;2. Stipends/non-salary, to include but not limited to “college”, paid to District employees for the 2008-2009 SY (amount per employee, total cost to District and line item);3. Date(s) and amount of paid stipends/non-salary to principals and vice-principals for the 2008-2009 SY.

The Union gave the following explanation in the letter for its need for this information about employees not included in the bargaining unit:

According to Superintendent Cleveland’s letter to the staff, the District is supposedly facing difficult financial times. As such, Dr.

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Cleveland has reported to staff that the District is considering cutting or eliminating previously paid stipends. At the bargaining table, the District has asserted the need to cut expenditures. However, the infusion of additional dollars to pay for administrative stipends that didn’t exist during the 2007-2008 SY would be contrary to the District’s previous financial assertions. Therefore, the above requested information directly relates to the District’s claims of inability to pay the current 2007-2008 SY stipends for bargaining unit employees.

The Employer sent the Union by Fed Ex on or about November 17, 2008, a multiple-page, double-sided print out which, the Employer stated, now included administrative stipends. Also enclosed was a cover letter stating that other stipend information was in the box of material discussed above regarding the Union’s September 23 information request, and that stipend information had also been provided on November 12 to the Union on a CD. A copy of the material enclosed in the November 17 shipment was received in evidence, but not verified by the Union as to content.

Notwithstanding that the Union had received the November 17 shipment, by letter dated November 24, the Union repeated the same request for stipend information, with the same explanation of its need for the information, contending that the material in the November 17 shipment was not responsive to the Union’s information request. Neither in the November 24 letter nor at the hearing or in its brief did the Union explain how the November 17 shipment was unresponsive to its information request. The exhibit on its face appears to list stipends paid to teachers, administrators, and other school personnel In these circumstances, and in the absence of specific evidence that the material was not, in fact, responsive, I find that the evidence is insufficient to establish that the Employer failed to provide stipend information. Passell admittedly failed to accept this November 24 letter because she had blocked Lotrich’s e-mail account from coming in to the Employer’s system, but inasmuch as I have not found an unlawful failure to provide the information, this does not make any difference in the decision.

I. Nov. 24, 2008As discussed more fully below, on or about November 17 the Employer

suspended the work e-mail accounts of all employees who were Union building representatives or officers of the Union, stating that these officials had used the e-mail to circulate inaccurate, misleading, and/or confidential information related to negotiations, and that these communications were inflammatory. In response, by another letter dated November 24, 2008, the Union, by Lotrich, requested that the Employer reinstate the e-mail accounts of the Union’s officials who were employees of the Employer. Because these Union officials could no longer communicate with bargaining unit employees through the Employer’s e-mail system, in the letter the Union also requested for all bargaining unit employees, the employee’s name, home address, and home telephone number. The parties were also scheduled to discuss the e-mail issue at a December 1, 2008 Union Management Committee meeting, and in this letter the Union requested the following information to prepare for that meeting:

1. The statement(s) the District argues are inaccurate;

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2. How the District would word the statement(s) in item 1 above to be accurate;3. The statement(s) the District argues are misleading;4. How the District would word the statement(s) in item 3 above to not be misleading;5. The statement(s) the District argues are confidential; and 6. How the Union’s statements should be judged in comparison to e-mail communications from Sue Passell to bargaining unit members.

***1. The District’s definition of inflammatory;2. The process/procedure (grading rubric) for determining whether a communication is inflammatory;3. Examples of inflammatory comments;4. Other times when the District has prohibited or restricted other non-Union activity and/or communication as being inflammatory.

The Employer never provided any of the requested information. The letter containing these information requests is one of the letters Passell said she never received because she had blocked Lotrich’s e-mail from coming in to her. However, as discussed above, there is no evidence the Union was notified of the blockage, except by receiving notification its e-mail had not gone through, or given any other means of contacting the Employer about bargaining matters. Moreover, Lotrich also copied two other Employer agents, Bob Brown and Charlotte Heatherington, at the best addresses he had for them. The Employer may not escape its bargaining duties by closing its eyes and stopping its ears. I will, therefore, analyze whether the information had to be provided.

As discussed elsewhere in this Decision, the Employer has now reinstated the e-mail accounts of the employees in question, but the Employer has also unilaterally imposed additional conditions upon the Union’s use of the e-mail which are not contained in the collective bargaining agreement. The name, home address and home telephone number of the bargaining unit employees is information which the Employer is required to provide in any event, and its failure to do so violates its duty to bargain. Beverly Health & Rehabilitation Services, Inc., 346 NLRB 1319, 1326 (2006); River Oak Center for Children, Inc., 345 NLRB 1335 (2005), enfd. in unpublished order, 273 Fed. Appx. 677 (9th Cir., 2008). The Union is entitled to relevant and necessary information even though it is not enumerated in Article 8 of the collective bargaining agreement. West Penn Power Company, 339 NLRB 585, 586 (2003). Additionally, with the new conditions that have been unilaterally imposed upon the Union’s use of the Employer’s e-mail system, the Union still particularly needs this information in order to communicate with the employees it represents. However, in its brief the Union rescinded its request for this information, so I will not recommend to the Board that the Employer be required to provide it.

The remainder of the information requested in the letter was needed for the Union’s carrying out of its representational responsibilities, including contract administration, at the Union Management Committee meetings. Some of the request borders on argument and not an information request, but it would advance the Union’s ability to deal with the issue in the UMC meeting to specifically know what language the Employer found objectionable, what the Employer considered to be inflammatory, and so on. The Employer’s failure to provide it in response to the

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letter violated its duty to bargain. The record does not reflect whether the information was provided during discussion at the UMC meetings, but inasmuch as the matter was concluded with the Employer imposing an extra-contractual condition, the requested information is still of potential relevance in the administration of the contract. I therefore recommend to the Board that that the Employer be required to provide the information to the extent not already provided.

J. December 2, 2008By letter dated December 2, 2008, the Union, by Lotrich, in response to the

Employer’s December 1 announcement that it would cease hiring outside substitute teachers, as discussed elsewhere in this decision, requested that the Employer cease and desist from changing the substitute arrangements and bargain over the decision. The Union also requested “any/all information utilized to make this egregious and unnecessary change to the current sub plan so the District and the Union can formally commence negotiations prior to the implementation of any change.” In the letter the Union also stated,

As it appears the District is intent on making cuts to existing programs and services, the Union, as the exclusive representative for the bargaining unit, hereby requests the following information:

1. All non-bargaining unit positions;A. Title;B. Job Description;C. Number of employees in each title;D. Current salary for each employee (including benefits

such as retirement, health, etc.);E. Date of hire for each employee into current job title

(or if not available, date of hire for employee);F. Date job title was created and/or last filled.

2. Any/all written correspondence (to include but not limited to, e-mails, memorandums, letters, etc.) between the District and the Public Education Department relating and/or pertaining to Reduction in Force.

There is no evidence the Employer ever provided any of this information. This was the other information request which Passell didn’t receive because she blocked Lotrich’s e-mail. As discussed above regarding the November 24 information request, the Employer is still responsible for responding to information requests even if it chooses not to receive the Union’s messages.

However, as discussed below, the decision to cease hiring outside substitutes and, instead, assign this work to members of the bargaining unit and other non-unit employees of the Employer is privileged by the collective-bargaining agreement. Therefore, the Employer would not be required to bargain over the decision. In addition, the Union requested information in numbered item 1 about non-unit employees. Information about non-unit employees is not presumptively appropriate, and the Union must demonstrate a need for that information. Tri-State Generation and Transmission Association, 332 NLRB 910 (2000). They have failed to do so here. There is no evidence whatsoever in the record to establish the relevance of this information. Accordingly, the Employer’s failure to provide this information did not violate its duty to bargain.

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The numbered item 2, however, is information which is relevant to any reduction in force which may be initiated by the Employer as a last resort in its current difficult financial situation. As discussed more fully below, the record shows that the Employer has a history of discussing these matters with the Public Education Department and even the bargaining unit employees, while failing to communicate in any way with the Union about these subjects. I therefore find that the Employer’s failure to provide the information requested in numbered item 2 violated its duty to bargain with the Union, and I recommend to the Board that the Employer be required to provide it. The information request does not contain any limitation as to time, but in the context of the letter and the negotiations it is clear that the Union seeks recent communications. I shall, therefore, limit the information which must be provided to those written communications which took place from July 1, 2008, to the date of the letter.

K. December 8Lotrich eventually created a new e-mail account in order to resume sending

Passell e-mails, and succeeded in sending her an e-mail from that account on December 8 concerning the use of EA’s as substitute teachers, and requesting information about how often and where that had happened to date. This was one week after the announcement directly to employees about this change. Passell admitted that she failed to respond. Lotrich’s letter consists primarily of a lecture to Passell and Cleveland about the bad effects upon student learning of reassigning Educational Assistants to work as substitute teachers. Lotrich includes many questions in the e-mail which amount to argument about the merits of changing the EA’s duties. I do not consider these to be information requests which fall within the Employer’s bargaining duty. However, in the next to last paragraph of the letter, Lotrich also requests, “[S]ince the inception of the District’s new sub plan, would you please provide the school and classroom number and date of any/all educational assistants removed from an elementary classroom or a special educational environment/classroom to act as a substitute.” The time encompassed by this request at the time it was made was approximately one week.

Although, as discussed below, the decision itself to cease hiring outside substitutes and reassign the work to EA’s and other employees of the Employer is privileged by the collective bargaining agreement, the effect of the change upon the EA’s and other bargaining unit employees is a mandatory subject of bargaining. Allison Corporation, 330 NLRB 1363 (2000). The requested information would assist the Union to understand how extensive the changes were. In addition, the Union had proposed throughout negotiations to increase the EAs’ compensation for substituting, and the information would be relevant to this subject of negotiations.

Passell testified that the requested information was only available at each school site. The Employer did not keep it centrally. This falls short of establishing that the information would be unreasonably burdensome to compile, particularly because at the time the information was requested, the request covered only about one week. And, in any case, if an Employer feels that compiling requested information is burdensome, the Employer has an obligation to tell the Union and, upon request, negotiate over what to provide and how to provide it. The Employer can not simply fail to reply. Westinghouse, supra. The Employer’s failure to reply violated its duty to bargain, and I recommend to the Board that it be required to provide the information.

L. Grievance information re Pacini and Fox

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The Union requested information to process nonrenewal grievances for employees Pacini and Fox on various dates in 2008, and the Employer failed to provide it. However, the Union’s Supplemental Pleading did not allude to any failure to provide information regarding these grievances. Rather, the only paragraph which appears to refer to this situation is paragraph 316, “On or about September 2008 the District has not processed grievances in good faith and based upon the merit of the grievances.” The pleading says nothing about an alleged refusal to provide information. Both grievances were initially processed before September 2008. The record indicates that one grievance was dropped because the grievant obtained another job, and the second grievance was settled in the grievant’s favor. Although the Employer’s duty to provide information for use in grievance processing is an important element of the contract administration process, nevertheless I find that the issue is not encompassed by the pleadings. Additionally, the Union’s evidence shows that many of the operative facts took place outside the 6-month period preceding the filing of the Supplemental Pleading. The Board’s procedural rule 3.7 requires that a PPC be filed within six months of the alleged prohibited practice. Accordingly, I shall not consider the Employer’s alleged failure to provide this information.

M. ERB informationThe Union received an employee complaint which led to the Union making

two information requests concerning employees’ payroll deductions for the Educational Retirement Fund. Union witness Jewel Pierce, who is both the Union’s Treasurer and the Union Building Representative for the school where she works, explained that during the 2008-2009 school year, one of the bargaining unit employees approached her about a situation where the Employer had failed to withhold the individual’s required employee contribution to the Educational Retirement Fund during the 2007-2008 school year. To cure the problem the Employer had then presented the employee with a repayment plan for the 2008-2009 school year which took so much money out of the employee’s paycheck that the employee felt it would devastate her financially. Pierce had two conversations about the situation with the Employer’s Director of Finance, Randy Evans, and she also spoke to representatives of the Educational Retirement Board (ERB). As a result of the Union’s raising the issue, the Employer also spoke to Educational Retirement Fund administrators, and based upon what it learned, the Employer agreed to extend the period of time for the employee to repay the fund from one year to two. After that, another employee at the school told Pierce she was in the same situation, and Pierce then learned of a third employee at another school who had the same situation. The Union also brought these employees’ requests for a longer payment plan to Evans, and the Employer agreed to change them to a two-year plan in the same manner as the first employee.

Because of this situation, the Union made its first information request, by e-mail from Lotrich on October 14, 2008. This stated:

It has just come to my attention that the Rio Rancho Public School District failed to deduct the required ERB contributions for Lorena O’Brien for the 2007-2008 SY. Based upon this information, the Union would like to conduct a thorough audit/evaluation of the District’s 2007-2008 SY ERB contributions. For each bargaining unit

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member for the 2007-2008 SY, please provide the following electronic information:

1. Name of the employee;2. Salary of the employee;3. FTE of the employee;4. Calculated ERB contribution of the employee; 5. Proof of ERB payment by the District.

In addition, please provide the same electronic information listed above for all bargaining unit personnel for the 2008-2009 SY.

HR Director Passell replied in writing on October 17 that the information request was denied, first, because ERB contributions were not bargainable, since the amount of contribution was set by statute under the New Mexico Educational Retirement Act; the incident Lotrich described involved only one employee, and the Employer was resolving that issue; each employee could verify for themselves whether contributions were being made because they were reflected on the employee’s pay stub; and any discrepancies that might exist would be handled on a case-by-case basis with the individual employee. Second, Passell said the request was overly burdensome given its breadth and the fact that not all of the requested information existed in electronic form.

Lotrich replied on October 20 by e-mail that the duty to provide information was not limited to negotiations, that the Union believed there may be other affected employees, and that as the employees’ representative, the Union had the right to verify that contributions were being made. He stated that since the pay stubs, which were generated electronically, did show the ERB deduction, if it showed the employee’s FTE then the pay stub would include all the information needed, and the request could be abbreviated to read “the employees’ electronic pay stubs.” He also asked if the pay stubs did not reflect FTE, then when and how was that information stored? He also asserted that the Employer’s public statements that they had “economic difficulty” amounted to a declaration of “inability to pay,” which would open the Employer’s financial information to disclosure, and that the Union was trying to determine the potential financial impact on this year’s budget. He concluded by asking what part of the information was not maintained electronically. The record does not contain any reply by Passell to this clarification by Lotrich.

The Union made a second information request concerning ERB contributions by e-mail on October 27. That request is not in evidence. Passell responded to it item by item by letter dated November 4, to Lotrich. Passell also discussed other subjects in this letter which are not germane to the information issue. In this letter, Passell provided most of the information requested in the October 27 e-mail, and also gave Lotrich information about alternatives for providing other information he requested. However, she refused to provide one requested item, the names of bargaining unit members potentially impacted, on the basis that the information is confidential and can only be provided if each employee signs a release, citing “information from the Educational Retirement Board,” which is not in evidence. She also asserts in the November 4 letter that all problems with affected employees “have been rectified in accordance with agreements with the individual employees.” Of course, this is precisely the Union’s concern, that the employees all had repayment agreements, but the agreements may have been

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burdensome, and the employees individually didn’t realize that other repayment plans could be negotiated.

The first issue raised by these information requests and the Employer’s response is whether the Union is entitled to the information it requested to audit contributions for the 2007-2008 school year, the year when the problem arose, and for the current school year. Employees’ participation in the ERB retirement plan and contribution amounts are set by law and are not negotiated by the Union and Employer. Nor is any issue related to the retirement plan grievable, because the collective bargaining agreement defines a grievance as an alleged violation of the agreement. Nevertheless, the Union here was attempting to assist employees with regard to a situation which adversely affected the employees’ take home pay. Of course, pay is a mandatory subject of bargaining. I note that the Employer did act appropriately and in good faith by discussing the issue with the Union and finding a solution for the three employees whose situation the Union brought up to the Employer. However, the Union also seeks to make sure there are not other employees who are adversely affected and who might also prefer a longer repayment period. The standard for whether information must be provided is a “liberal, discovery type standard,” Acme Industrial, supra. It is sufficient if the information has potential relevance to the Union’s representational function. Westinghouse, supra.

The Employer argues that educational retirement is not a mandatory subject of bargaining, because the employees’ participation in the state retirement plan and the rates are set by law, and that it is not required to release employee names in connection with an issue which is not a mandatory subject of bargaining. In support of this argument the Employer cites Pieper Electric, Inc., 339 NLRB 1232, 1235 (2003). Pieper involved a union’s request for the names of employees who were participating in or had been solicited to participate in the employer’s employee stock purchase plan, which the Board found, based on the facts of the case, not to be a mandatory subject of bargaining. Pieper is distinguishable from this situation. Here, it is clear that the Union sought the information not to assist the employees in getting their proper retirement contributions made, but, rather, to make sure that employees for whom contributions had not been made and who, therefore, had to enter into a repayment plan, were not unnecessarily burdened by the terms of the repayment plan. The terms of the repayment plan directly affected the amount of the employees’ take home pay, and because this affected the employees’ pay, it is a mandatory subject of bargaining.

I conclude that the Union is entitled to the information it requested on October 14, which would allow it to determine which employees did not have retirement contributions withheld from their pay, because it is potentially relevant to the Union’s representation of employees with regard to pay issues. Obviously, the information will be meaningless if it does not include the names of employees. The NLRB has held that a party which asserts the confidentiality of requested information has a duty to bargain in good faith over how to provide the information while still accommodating any legitimate confidentiality interest. United States Testing Co., 324 NLRB 854 (1997), enfd. 160 F.3d 14 (D.C. Cir., 1998).

Therefore, I find that the Union is entitled to the information it requested on October 14 and that the Employer must respond to Lotrich’s letter of October 20, in which he amended the Union’s October 14 request in light of what Passell had told him about the availability of information. The Employer also must bargain in good faith with the Union over the confidentiality issue regarding the employee

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names. This could include, for example, telling the Union by whom at the ERB the Employer was told the information was confidential, so that the Union can investigate this itself, or simply providing check stub information and an FTE list from the Employer’s own records, as the Union suggests. I recommend to the Board that the Employer be required to do this.

V. Unilateral changesThe Union contends the Employer made a number of unlawful unilateral

changes in terms and conditions of employment. A. bell schedulesIn the hearing and in its brief the Union referred to a change in the “bell

schedule,” and in early dismissal. However, it appears that the underlying change implemented by the Employer was a change in the high school students’ class schedules, which led to, among other things, changes in the times school began and ended, and early dismissal one day a week for the high school students. During the 2007-2008 school year the high school students had a block schedule, under which the students had only 4 classes per day. They took those classes for an entire semester, and at the beginning of the second semester changed to a different set of 4 classes per day. However, for the 2008-2009 school year, the Employer changed to a 7-period schedule, in which the students each had seven classes each day, and there was early dismissal Wednesday afternoon. It is undisputed that this made a substantial change in working conditions for the high school teachers, including, among other things, having the first period beginning almost immediately at the start of their duty day, having to prepare for more classes with shorter planning periods, and teaching a substantially larger number of students each day. The “bell schedule,” that is, the times classes would begin and be dismissed, is a minor part of the overall change.

The Union apparently does not dispute, and I find, that the decision to change the schedule was not a mandatory subject of bargaining. Rather, it was privileged by the collective bargaining agreement in Article 10, Management Rights. Article 10, Section A gives the Employer the rights to, “2.…determine the processes, methods, and manner of performing the work; …4. Establish and revise schedules of work; …6. Assign shifts, work days, hours of work, and work locations; and 7. Designate, assign, and reassign work duties.” Article 10, Section E gives the Employer the right to “Determine what, by whom, and when educational services will be provided to the school community.” This language would allow the Employer to unilaterally make the decision to change schedules. However, it is clear pursuant to Policy 2019 and PEBA10 in addition to the collective-bargaining agreement,11that the Employer has an obligation to negotiate with the Union, upon its request, over the impact of the decision upon the bargaining unit employees. The Union contends that the Employer failed to carry out this obligation, and the Employer asserts that it did bargain over the impact.

I find that the preponderance of the evidence does establish that the Employer met its obligation to bargain over the impact of the changes upon the employees. It is undisputed that

9 Section 14. G, “The scope of bargaining…shall include, as a mandatory subject of bargaining, the impact of professional and instructional decisions made by the employer.”10 Section 17. D “The scope of bargaining for representatives of public schools…shall include, as a mandatory subject of bargaining, the impact of professional and instructional decisions made by the employer.”11 Article 3.E, “The parties will negotiate the impact of professional or instructional decisions, as required by law.”

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the Employer notified the Union in early 2008 of the potential change, and four or five meetings were held from February through April, 2008, at which the then Union president, Carl Brady, and other bargaining unit employees representing the Union, and various administrators and the high school principal for the Employer, discussed the effects of the proposed changes. The Union chose not to present Brady as a witness at the hearing, but did present high school teacher Mullican, who attended some of the meetings and said Brady was the primary negotiator. The Union through Brady apparently allowed discussion to end without a written agreement, and without requesting additional meetings after the last meeting in April.

The Union did not raise the issue again until the July 22 negotiating meeting, after the Union learned that the Employer was discussing the new bell schedule with its school bus contractor. At this meeting the Union requested that the Employer cease and desist from implementing changes to “the bell schedule,” and the Union has included in each of its contract proposals since July 22 that the Employer cease and desist from using the early dismissal on Wednesday in the high school and mid-high school.12 The Employer has never agreed to any of these proposals, and did implement the changes when school began in August.

From the Union’s perspective, the issues about the impact of the schedule change may have “fallen through the cracks” in April and May. At that time Brady left his position as President, and Peggy Stielow, the current president, assumed those duties, and the Union was also preparing for these contract negotiations. However, I find that it was not unreasonable for the Employer to conclude based upon the Union’s silence that the Union was satisfied with the discussions that had taken place, and for the Employer to proceed with implementing the change. The Union’s requests on July 22 and later that the Employer cease and desist from implementing the changes were too late. The effects bargaining had already taken place, and the Employer had no obligation to bargain over the decision itself.

B. stipendsBargaining unit employees had received payments over and above their

regular wages and salaries for performing many different types of additional work for the Employer, e.g., coaching a sports team, serving as grade level chair, and so on. These payments were generally characterized as “stipends” during the hearing. The subject of stipends was not addressed in the current collective-bargaining agreement. Apparently because of its financial problems, the Employer, without giving the Union any advance notice, informed school principals by e-mail from HR Director Passell on September 8, that the payment of most stipends would be delayed for the first payroll pending an analysis of the budget, and that funding would then be released to pay them. Although the e-mail was sent to principals, and not to all employees, it is addressed to “Dear RRPS Staff,” and at least one principal, at MLK Elementary, forwarded it to bargaining unit employees at that school. There is no evidence in the record that it was forwarded to all bargaining unit employees at all schools, but that appears to be the intent of the communication, and I shall assume that was what happened.

Dr. Passell’s e-mail was followed by a letter dated September 22, 2008, from Superintendent Cleveland, which was distributed to all bargaining unit employees. This letter discusses financial concerns in detail, informing the employees, among other things, that the Employer must immediately reduce its operating budget, and the Employer would be asking schools and departments to, inter alia, “Reduce 12 The Union included from the outset a proposal to cease having an early dismissal day for elementary schools.

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some, not all, stipends.” The letter goes on to explain that if the school district is unable to reduce expenses, it would have to consider RIFs as a last resort. The letter also asks for employees’ assistance in working through the shortfall, and concludes, “We will be sharing ideas with you on how you can help, and we are open to your suggestions.” However, the Union, the employees’ representative, was not given advance notice of this letter, and the record is devoid of evidence that the Employer ever sought the Union’s suggestions on how to cut the budget.

The Union then sought to negotiate over stipends as part of these contract negotiations. As discussed above, by letter dated September 23, Lotrich requested information about the stipends, and in its September 29 contract proposal, the Union for the first time included a proposal regarding stipends, that they continue to be paid the same as in the 2007-2008 school year.

Several weeks later, on October 27, without notice to the Union Passell sent an e-mail to principals with the instruction “Please forward to staff,” stating that inasmuch as stipends are a mandatory subject of bargaining, until bargaining was completed or the Employer was informed otherwise, the Employer would not be providing stipends. Inasmuch as the record contains no evidence to the contrary, I will assume the principals followed instructions and forwarded the e-mail to all of the bargaining unit employees.

Notwithstanding these communications by the Employer to the bargaining unit, nevertheless both parties agree that all stipends have actually been paid at the same rate as for the 2007-2008 school year. Thus, if there was any delay in payment in September, apparently the payments were made retroactively and no employee lost money, and other payments have been made pursuant to the past practice. Thus, no unilateral change has actually been made to stipends by the Employer which needs to be remedied. The Employer’s direct communication to the employees will be discussed below.

C. substitute proceduresThe Employer made two changes regarding substitute teachers. First,

apparently from the beginning of the 2008-2009 school year, it ceased paying the high school teachers for each planning period they occasionally gave up in order to substitute in the class room.13 The Union’s witnesses disagreed about the amount employees formerly received, whether it was $15 or $25 per planning period they gave up. In addition, effective on or about December 8, 2008, in order to save money, the Employer ceased hiring licensed substitutes, and, instead, used bargaining unit employees, including Educational Assistants (EA’s), and other bargaining unit employees as well as non-bargaining unit employees of the Employer to cover classes that previously would have been covered by substitutes.

The Employer contends in its brief that changes in the substitute policy were not included in the Union’s pleadings, and therefore it had no notice of the claims. However, paragraphs 338 and 339 of the Union’s December 21, 2008, supplemental pleading raise the issue of the Employer’s unilateral changes regarding substitutes. Accordingly, I find that the issue was raised by the pleadings. Moreover, the changes were litigated at the hearing, and the Employer had the chance to provide its evidence and argument on this issue.

I find that different issues are raised by the first change, the cessation of occasional payment to the high school teachers than are raised by the second 13 This occasional work as a substitute during a planning period is apparently different from the situation where a teacher “sold” his or her planning period for an entire semester or school year and received additional, regular compensation for that time.

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change, the later cessation of hiring outside substitutes and reassigning EA’s and other bargaining unit employees to perform work previously done by outside substitutes. I will turn first to the cessation of payment to the high school teachers.

The Employer relies upon its contention that inasmuch as the collective bargaining agreement has a provision with regard to substituting and preparation times, the Union’s sole recourse is to file a grievance over these issues. In support of this the Employer cites Article 12.A of the contractual grievance procedure, which states, in pertinent part:

This is the only grievance procedure for the employees in the bargaining unit. To the extent allowed by law, this provision shall be considered a clear and unmistakable waiver of any right the Union and the employees in the bargaining unit may have to initiate alternative remedies other than those contained in this Article for issues covered by this Agreement.

I asked the Employer’s attorney on the record whether the Employer would waive time limits contained in the contractual grievance procedure and process grievances on those issues the Employer contends could only be raised by the Union under the grievance procedure, and she said they would not waive time limits. Inasmuch as the contractual grievance procedure, Article 12.c.6, requires that grievances be initiated no later than 5 days after the grievant knew or reasonably should have known of the action which precipitated the grievance, the Employer’s position essentially is that the Union has no means of raising this issue now. The other result of the Employer’s position is that the Board will not be able to defer these issues to the parties’ grievance procedure to require the Union to process grievances over them.

However, it is unnecessary to resolve whether the above language from the grievance procedure constitutes a waiver of the Union or employees’ rights to raise issues as PPC’s before the Board when those issues might also be covered by the collective-bargaining agreement. I believe the issue raised by the Union in this PPC regarding compensation for the high school teachers for any preparation periods given up to work as a substitute is different from any issue it could raise under the collective-bargaining agreement about the changes in substitution practice. Accordingly, I find that this issue is cognizable in this PPC proceeding.

The contractual provisions regarding substitution are:

Article 18.A. “The District agrees that a formalized process for acquiring substitute teachers will be in place for the Rio Rancho School District….

***C. A teacher may be assigned to substitute during his/her preparation time when no substitute is available.D. Reasonable efforts will be made to provide substitutes for physical education teachers, music teachers, and art teachers at the elementary levels.

In addition, Article 20 of the collective bargaining agreement provides differing amounts of time for “collaboration and planning” for teachers at different school levels. The agreement does not specify that high school teachers would be

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paid for giving up their planning period to act as substitutes. The collective bargaining agreement in Article 12.B.1 defines a grievance as “an allegation of a violation of this agreement.” Therefore, it does not appear that the failure to pay the high school teachers could be grieved.

However, payment to teachers for occasionally giving up their preparation period to substitute is part of their compensation, and is clearly part of their wages, salaries or other terms of employment. It is, therefore, a mandatory subject of bargaining, and the Employer may not act unilaterally in changing employees’ compensation. Rather, it has a duty to notify the Union in advance of the proposed change, sufficiently in advance of the implementation that the Union has an opportunity to request bargaining over the change. It did not do this.

The contract’s “zipper clause” also does not shield the Employer from bargaining over this change. The clause, Article 41, states:

The parties agree that this is the complete and only agreement between the parties. Each party has negotiated on all issues identified for negotiations, and such negotiations have led to this agreement. No additional negotiations will be conducted on any item, whether contained herein or not, except by mutual agreement of the parties after referral to the Union/Management process as detailed in Article 11 [sic] to reopen negotiations in an attempt to reach a successor agreement.

This Agreement replaces any and all previous agreements between the parties.

Taken literally in combination with the requirements in Policy 201 and PEBA that a collective-bargaining agreement remain in effect until it is replaced by a successor agreement, this would mean that no issue that had not previously been in the contract could ever be raised for negotiation unless it was mutually agreed upon. However, the parties have treated this as allowing either side to raise new issues during contract negotiations, and that would seem to be the appropriate interpretation. A party must be able to bring new issues to the table at some time. The Union sought throughout these negotiations to add to Article 18.C a specific amount of pay for teachers who were assigned to substitute during their preparation period, and although the Employer has not agreed to this proposal, it has not argued that it does not have to consider the proposal.

I find that by failing to notify the Union of a contemplated change, so that it could request bargaining, and unilaterally ceasing to pay high school teachers for any preparation periods they occasionally gave up to work as substitutes, the Employer has violated its duty to bargain with the Union. I recommend to the Board that the Employer be required to pay backpay to all high school teachers who were not compensated at the usual rate for occasionally giving up their preparation period to work as substitutes from the beginning of the 2008-2009 school year.

A different issue is raised by the cessation of using outside substitutes and, instead, assigning this work to EA’s, other bargaining unit employees, and non-bargaining unit RRPS employees, including administrators. Outside substitutes appear to be outside the bargaining unit. Appendix A of the collective bargaining agreement provides that the unit includes all regular, full-time and part-time

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employees. This would not appear to include substitutes hired on a casual, occasional basis because they are not regular part-time employees. Therefore, the work of the outside substitutes is not bargaining unit work, and the change to cease hiring outside substitutes and to keep this work in house does not take work away from any bargaining unit employees.

The change to cease hiring outside substitutes wasn’t announced until after the last negotiating meeting, but before the meeting with the mediator. This apparently caused a change in duties for many EA’s, who were assigned to substitute instead of doing their usual duties. The Union protested by letter dated December 2, 2008, from Andy Lotrich to Sue Passell, claiming this was a violation of the substitute provisions in the contract, quoted above. Inasmuch as the outside substitutes were not in the bargaining unit, and the management rights clause of the collective bargaining agreement, Article 10.A.7 gives the Employer the right to “Designate, assign, and reassign work duties,” I find that the cessation of hiring outside substitutes and the assignment of this additional work to EA’s and other bargaining unit and non-bargaining unit RRPS employees was privileged by the contract. The Employer’s unilateral action in this regard did not violate their duty to bargain.

D. sick leave proceduresThe Union also contends that the Employer unilaterally changed sick leave

procedures. The alleged change was contained in a brochure distributed to annually to new employees, which had first been used in the spring of the 2007-2008 school year. The Union learned that it inaccurately stated that the Employer would require a doctor’s note for absences of three or more consecutive days of sick leave, not that the Employer could require a doctor’s note in these circumstances, as provided in Article 32.G.6 of the collective-bargaining agreement. Additionally, the Employer had apparently been using a new leave request form which also stated that a note would be required in these circumstances. The Union, by Lotrich, brought this to the Employer’s attention in an e-mail on September 18. Passell replied by e-mail on September 23, explaining the facts as she understood them. Her version of the language in the brochure is consistent with the contract language. The brochure was not made an exhibit, so the record does not reflect its specific language. A few weeks later, on October 27 Passell issued an e-mail to the principals, which they were asked to forward to all staff, stating that there was an error in the leave request form, that the Employer’s policy was that a doctor’s note may be required for absences of three or more consecutive days of sick leave, although the form said it would be required. The record does not indicate whether the Employer replaced the incorrect sick leave forms.

This appears to be at most an inadvertent error by the Employer, not an actual change in sick leave requirements, and the Employer corrected it when the Union pointed this out. In the circumstances, I do not find this to be an unlawful unilateral change.

VI. Discrimination in use of e-mail From on or about November 17 until on or about December 18, the

employee Union officials all had their access to the Employer’s internal e-mail system suspended. No other employees’ e-mail privileges were suspended at this time. The Employer said it did this because the employee Union officials were not complying with the contractual limitations on their use of the e-mail system. I note

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that Lotrich’s e-mail address was also blocked from sending mail into the Employer’s system for part or all of this time. The employee Union officials’ e-mail access was reinstated based upon conditions unilaterally imposed by Passell after three Union Management Committee meetings failed to resolve the issue to the Employer’s satisfaction. I will first describe what led up to the suspension, then I will describe the suspension and UMC meetings and Passell’s letter, and finally I will discuss the case law.

The Employer maintains an internal e-mail system which it uses, inter alia, for communicating with bargaining unit employees. The employees who are also RRSEU officers and Building Representatives, or site representatives, have a contractual right to use the e-mail system and other Employer-provided internal communications systems for Union business. Article 8.B.2 of the collective bargaining agreement provides:

The RRSEU-identified site representative or alternate shall be permitted to use accepted avenues of internal communication for communicating with members of the bargaining unit, provided communications are professional in nature. This shall include (1) communication boxes; (2) public address systems; (3) bulletin boards; and (4) e-mail. See below for specific guidelines.

a. RRSEU communications shall be made during non-duty hours and shall not include libelous, slanderous, or inflammatory materials;

b. Information regarding the Union’s support of, or opposition to, candidates for elective public office shall not be allowed in any format of communication as named above.

c. The RRSEU-identified site representative or alternate shall be permitted to use the public address system at District worksites at the beginning or end of the duty day for brief announcements, with prior notice to the principal or designee.

d. The District shall make available space at each worksite for a bulletin board for RRSEU’s use.

e. If either side raises concerns about the use of any of the above-named avenues of communication, a temporary suspension of privileges may be invoked until the Union Management Committee can be convened to address the concern.

The record establishes that employees who are not Union officials also use the Employer’s internal e-mail system on occasion for non-work related purposes, but the contract is silent about these practices.

The Employer’s monitoring of e-mail has changed over the years. According to Ogle, from about ten years ago until about two years ago, the Employer’s network administrator regularly monitored all e-mail in the Employer’s system. Beginning about two years ago, the network administrator job evolved in other ways, and the e-mail ceased to be monitored. The record does not indicate how closely the network administrator could or did monitor the e-mails of approximately 1400 employees. Union witnesses stated that at the present time employees frequently use the e-mail system for non-work related purposes other than Union business. Eisenberg testified that during the time period involved in

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these PPCs, typically once or twice a day he received e-mails at work from other employees about fund raisers, birthday greetings, notification of employee get-togethers after work, and so on. The Employer admits that employees used the e-mail system for non-work related purposes, but said while the e-mail was monitored, the network administrator notified principals, directors, and other supervisors if e-mail was being used for non-work purposes by their subordinates. The supervisor would then tell the employee involved that he or she could not use the e-mail in this way. Both Ogle and Scott Affentranger, who has served as a principal and assistant principal, said in their experience after employees were talked to about this the employees always ceased their inappropriate use of the e-mail and the problem ended.

The Employer stated that it had started monitoring the e-mails of the employee Union officials during the fall of 2008 after principals began reporting to the Human Resources office that some e-mail being sent by Union representatives and officers was violating the collective-bargaining agreement. There is no evidence that the Employer also monitored the e-mails of bargaining unit employees who were not Union officials at this time.

The Employer contends the Union violated the contractual rules about the use of e-mail by using inflammatory language, making untrue statements, and using the e-mail for union business during the duty day. The Employer introduced an exhibit into evidence which was based upon its monitoring the Union officials’ e-mail, summarizing examples it felt showed abuse of the e-mail system from August 13, 2008, through December 11, 2008. The specific e-mails were not included in the exhibit, but the exhibit contained the Employer’s characterization of the content of each e-mail.

The most commonly cited abuse in the Employer’s exhibit was mostly using the e-mail for union communications during the duty day. However, it appears that in constructing the exhibit the Employer used an overly broad definition of the duty day. Ogle testified that the Employer believed the duty day includes the employees’ duty-free lunch period, and that the only time Union activity could be carried on would be before and after school. However, it is well settled that duty-free lunch periods are not working time, and employees must be allowed to engage in Union activities during lunch, even if they are on the Employer’s premises. Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Our Way, Inc., 268 NLRB 394 (1983). The Union demonstrated through witness testimony that a number of these e-mails probably were read or sent during the employee’s lunch or break. In addition, several of them involved Union president Stielow simply forwarding union-related communications she had received at work to her home e-mail instead of reviewing them during the duty day. I would not consider the minimal amount of time needed merely to forward an e-mail to a home address to be a material violation of the contractual requirement not to use the e-mail system during work time.

The Employer also listed the following e-mails as including inflammatory language in violation of the contractual conditions: a flier regarding an October 4 picket which is not in evidence; an e-mail by Lotrich to Sue Passell which was forwarded to staff members on October 28, discussed in more detail elsewhere in this report; a union questionnaire which was circulated to employees in early November which is not in evidence; and a November 16 e-mail from Lotrich which was possibly forwarded to bargaining unit employees giving the Union’s view of the status of negotiations, which is also discussed in more detail elsewhere in this

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report. The Employer also identified a posting on the Union’s Google group site which contained virtually the same language as the November 16 e-mail as a dissemination of inflammatory and untrue statements. The October 28 e-mail and the November 16 e-mail and Google group posting are discussed below. However, without a copy of the October 4 flier and the November questionnaire in evidence, the record is insufficient to establish that the Union violated the agreement regarding its e-mailing of those documents.

The record shows the Employer treated other employees’ use of e-mail during the duty day and use of strong language differently from the way it treated the employee Union officials’ use of the e-mail. The Employer introduced as an exhibit an e-mail chain from September 10 and 11, 2008, which was originated after the duty day on September 10 by a teacher who was upset about receiving an e-mail from the Employer stating that premiums for medical and dental insurance had increased about 7%, and that payroll deductions would go up accordingly. He sent an e-mail to all the employees at the Rio Rancho high school complaining, inter alia, that this was “an outrage,” and the teachers should not have their take home pay lowered for any reason. Three other teachers replied on September 11, apparently during their duty days, agreeing with him and calling the situation “intolerable,” stating that Albuquerque Public Schools had reduced their insurance premiums, and asking why the Union wasn’t placing insurance on the bargaining table. This was answered the same day by Union Secretary Mullican, who also teaches at the high school, also apparently during the duty day, explaining that insurance was on the bargaining table, that bargaining wasn’t finished yet, the Employer was more strapped for cash than Albuquerque Public Schools, the Union was trying very hard to get the employees their raises and as soon as they got a contract, the employees would get their raises. She added that the Union needed their support. The Employer cited this as an example of the Union discussing issues that were on the bargaining table outside the “closed session” negotiating meetings, and of the Union sending Union-related e-mail during the duty day. However, there is no evidence that any member of management talked to the other four teachers about any “inflammatory” communication, or about using the e-mail system for non-work related purposes during their duty day.

As the Employer was monitoring employee Union officials’ e-mails, what seems to have brought things to a head was the October 28 e-mail from Lotrich which was possibly forwarded to bargaining unit employees, as discussed above in the section on negotiations. As described above, this prompted Passell to block Lotrich’s e-mail from coming into the Employer’s system, and during the November 4 negotiating meeting she gave the Union a letter about Lotrich’s October 28 e-mail, stating that it violated the contract for these reasons: he intended the employees to open it on working time; it contains opinions that were not factually correct and were intended to inflame the persons who read it; it mischaracterized an October 28 e-mail from Passell; and it was argumentative and disclosed the subjects of current bargaining in violation of the Union’s obligation to maintain confidentiality of negotiations in closed sessions.

Specifically, the e-mail says, in pertinent part,

Sue, I have just been sent the attached e-mail communication you directed your administrative team in Rio Rancho to send directly to the bargaining unit while by-passing the Union. [Passell’s e-mail said that

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until negotiations were concluded, stipends would not be paid.] Please cease and desist from attempting to negotiate directly with the employees.Additionally, the Union hereby requests you immediately rescind your statements and retract your previous e-mail. As your e-mail indicates, the District has acknowledged that stipends are a mandatory subject of bargaining. As such, the District is strictly prohibited from making any unilateral changes to mandatory subjects of bargaining (including the stopping of payment or not providing stipends). According to PEBA, Section 18(D), “In the event that an impasse continues after the expiration of a contract, the existing contract will continue in full force and effect until it is replaced by a subsequent written agreement. However, this shall not require the public employer to increase any employees’ levels, steps or grades of compensation contained in the existing contract.”Therefore, although the District is not obligated to increase stipend rates (something the Union has not proposed—as you should recall, the Union’s proposal is to leave the stipends at the 2007-2008 SY rate), the District is strictly prohibited from making any changes to the stipends during negotiations. Also, the District has yet to negotiate stipends with the Union because the District has never tendered a proposal pertaining to stipends. Additionally, even if impasse has been declared, the District is strictly prohibited from piece-meal implementation of its last/best/final offer. Thus, if the District were to attempt to implement its last/best/final offer, the District would also have to implement the state-mandated minimum salary increase that is part of the District’s proposal. Additionally, the District has yet to provide the requested information pertaining and/or relating to stipends contained in my previous e-mail communications to the District. Since the District has yet to provide this pertinent/relevant information directly relating/pertaining to a mandatory subject of bargaining, when will the District be providing that information?Lastly, if the District is stating, “The District will not be providing stipends,” does this mean the District has terminated all sporting/athletic activities as the coaches are paid stipends and the elimination of all stipends would include coaching stipends? I am sure the parents and athletes of this District will be interested of [sic] the District’s position pertaining to the termination of all athletics as the fall season nears and in some instances like soccer, enter [sic] the play-off season. Therefore, please immediately rescind and retract your previous e-mail and submit the requested information to the Union and continue the 2007-2008 stipends.

The Employer has not identified the specific language in this e-mail which it considered to be untrue or inflammatory. Passell said in the November 4 letter that she considered forwarding this to bargaining unit employees to be an intentional act on Lotrich’s part to disrupt the work place, and that because of this communication she was suspending the Union’s privilege to use the Employer’s e-mail system until the Union Management Committee could be convened to address

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the problem. In spite of the language in Passell’s letter, the employee Union officials’ e-mail accounts were not suspended at that time. However, the parties did schedule a Union Management Committee meeting to discuss the e-mail issues.

The UMC meeting was held on November 14. At this meeting, the Union agreed that any Union-related e-mail sent out by the Union officials would have in its heading, “RRSEU Union business. Do not open during the duty day.” The Union felt this would resolve the issue.

Ogle said the Employer monitored the Union officials’ e-mail “more faithfully” after this November 14 meeting, and that the following work day, November 17, when the administrators arrived at work they were informed of a problematic Union e-mail which was then being sent out on the Employer’s system. Ogle said it was because of this November 17 e-mail that the Employer decided to suspend the Union officials’ access to the e-mail system.

The Union’s message in question was first sent on Sunday, November 16, a non-working day, to a number of employee Union officials at their respective home e-mail addresses. The message requested that they forward the e-mail to Union members and other employees before the duty day Monday, with the subject line, “Negotiating Update and Union Information Not to Be Opened During Business Hours.” The message included other instructions to the Union officials, including, inter alia, Lotrich’s assessment that the Employer would be circulating memos and e-mails on the 17th falsely blaming the Union for employees not receiving pay increases or stipends. The message told the Union officials to delete the instructions and Lotrich’s comments before they forwarded the rest of the message to unit employees. The remainder of the message, which was to go to the unit employees, was the Union’s assessment of negotiations to date, including its reasons for requesting that the parties meet with a federal mediator, its view that it had prevailed before the Board in PPC hearings on July 15 and October 31 concerning the negotiations, the allegations that the Employer was continuing to avoid providing budgetary information, that the Employer had failed to submit a salary or stipend proposal in the last two negotiating meetings, that the Employer was only available to negotiate for about 4 minutes at the last negotiating meeting, that the Union had requested information about stipends that had not been provided, and that in the event of a RIF, the language in the current collective bargaining agreement would be controlling. The Union also pointed out in the message that it had not objected to the Employer’s implementing the state-mandated pay increases. The Union posted a virtually identical message on a Google groups website which had no connection with the Employer’s e-mail system and where access was intended to be restricted to members of the group. Nevertheless, Denise Potter, the Employer’s Director of Elementary Personnel, viewed the Google group site, possibly using a link she found on the Union’s November 16-17 e-mail message.

Ogle said the Employer considered the content of both the e-mail and the Google group site to violate the collective bargaining agreement because it was inflammatory, according to the Employer’s definition that something is inflammatory if it is “derisive or spreading misinformation or designed to cause problems.” She did not identify the specific inflammatory language. The Employer also contends that the statement that the Union had prevailed in the two preceding PPCs before the Board to be untrue. The first PPC concerned the Employer’s insistence upon negotiating ground rules before anything else, and the Board ordered the parties to return to the table and, essentially, negotiate about

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everything. It is arguable whether that is a win for the Union, because the Employer was told to negotiate about everything, or for the Employer, because the Union was told to negotiate ground rules. In the second PPC, the Board simply ordered the parties back to the table, and said it would consider the alleged violations later, if the parties were unable to reach an agreement. This is neither a win nor a loss for either side, just a postponement of the day of reckoning. The Employer, however, considered this e-mail to be the last straw, and suspended the e-mail accounts of all of the employee Union officials.

Ogle testified that the Employer was only monitoring the e-mails of Union Building Representatives and officers at this time, not all e-mails in the system, and that in suspending their e-mail access the Employer treated the Union officials as a group, regardless of whether individual Union officials had or had not violated the contractual e-mail requirements in the Employer’s view. Ogle explained that the Employer believed the contractual language about Union officials’ access to the e-mail system set up a different expectation for them compared to other bargaining unit employees.

On or about November 18 Passell sent a letter to each employee Union official stating that their RRPS e-mail account was suspended until further notice. Passell explained in the letter that their “privilege” to use the e-mail had actually been suspended on November 4, but they had continued to use the system in violation of the suspension; that a questionnaire had also been sent to unit employees containing “inflammatory” questions regarding whether they felt threatened in certain circumstances;14 that after the November 14 UMC meeting e-mails were circulated by Union officials “containing inaccurate, misleading, and/or confidential information related to negotiations;” and that a Union website address was disseminated which also contained “inaccurate, misleading, and/or confidential information related to negotiations.”

All of the employees who were Union officials had their e-mail accounts suspended, and no other employees had their accounts suspended. The system continued to be accessible by other bargaining unit and non-unit employees, and by the Employer’s supervisors and administrators. In addition to using the Employer’s e-mail system for communications with other employees, supervisors and administrators, the Union officials who are teachers also normally used their e-mail accounts to communicate with the parents of their students. During the time their e-mail was suspended, these teachers were not able to communicate with parents by e-mail. The affected employees were also unable to receive e-mail instructions or communications from the Employer, and were instructed to check each day with their principal or assistant principal for information required for them to do their jobs.

A second UMC meeting was held to discuss the e-mail issues on December 1, 2008. At this time the parties discussed their respective definitions of “inflammatory,” but failed to reach agreement on a definition. They agreed that neither side had time to monitor all e-mail communications, and the Union agreed to begin developing criteria for appropriate communications.

A third UMC meeting was held on or about December 9, 2008. At this meeting the Union had not come up with criteria, and no resolution was reached. Accordingly, by letter dated December 12, 2008, Passell unilaterally informed the 14 This apparently refers to a questionnaire circulated after the duty day on or about November 6 where the Union was surveying bargaining unit employees in preparation for discussions with the Employer. The questionnaire included two questions asking if the employees felt threatened when their principal brought up certain issues.

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Union members of the UMC of the conditions upon which the Union could resume using both the e-mail and the employees’ communication boxes. These conditions included that before sending an e-mail, the Union would submit it to Passell, Ogle, or Potter in the Human Resources office during normal business hours for review. If the reviewer felt the material complied with the bargaining agreement, she would forward it to the Employer’s central office for distribution by the Employer, and if not, she would return it to the Union. Passell also stated “This procedure …will continue until the District is convinced that the union can be trusted to resume normal professional conduct.” Passell also threatened in the letter to impose the same requirements upon the Union’s use of the public address system and bulletin boards if they were “improperly used.” After this, on or about December 17 or 18 the Union officials’ access to the e-mail system was restored.

There is no evidence in the record concerning whether the process imposed in Passell’s December 12 letter has actually been followed, or whether the Union has been denied the opportunity to issue any communications based upon these conditions.

Notably, as discussed above, in its contract proposals the Employer consistently proposed to take away the Union’s rights to use the e-mail, internal communication boxes, and public address system to communicate with the bargaining unit employees. During negotiations, it modified its e-mail proposal to allow employee Union officials to use e-mail for Union business if the e-mail was sent directly to Employer representatives. Thus, the process Passell imposed unilaterally in her December 12 letter appears to be very similar to what the Employer had proposed in negotiations, but which had not been agreed upon by the Union.

The Employer argues that issues relating to the e-mail access cannot appropriately be considered in the context of this PPC proceeding, because it is a contractual right, and because the contractual grievance procedure is the only forum for consideration of potential contract violations. However, parties may not exercise contractual rights in a discriminatory manner. Reno Hilton Resorts, 326 NLRB 1421 (1998), enfd. 196 F.3d 1275 (D.C. Cir., 1999); Capitol Steel and Iron Company, 317 NLRB 809 (1995), enfd. 89 F.3d 692 (10th Cir., 1996). Whether there has been discrimination is appropriately addressed in this PPC hearing, because discrimination would violate Policy 201, Section 16.A.1 and 16.A.2, which state

A. No employer or its representative shall:1. discriminate against an employee with regard to terms and conditions of employment because of the employee’s membership in a labor organization;2. interfere with, restrain or coerce any employee in the exercise of any right guaranteed under the Labor Management Relations Policy [Policy 201]

and Section 19.A and B:

A public employer or his representative shall not:A. discriminate against a public employee with regard to terms and conditions of employment because of the employee’s membership in a labor organization;

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B. interfere with, restrain or coerce a public employee in the exercise of a right guaranteed pursuant to the Public Employee Bargaining Act.

In The Register-Guard, 351 NLRB 1110 (2007), the NLRB ruled that an employer “may lawfully bar employees’ non-work related use of its e-mail system, unless (the employer) acts in a manner that discriminates against Section 7 activity.” Section 7 is the equivalent in the National Labor Relations Act of Policy 201, Section 5, and PEBA, Section 5. Here, of course, the Union presently has a contractual right to use the system, and the Employer could not simply bar the Union’s use of it without following the contract.

The record here demonstrates that the Employer did exercise its contractual rights in a discriminatory manner. The Employer has shown much more concern over non-work related use of the e-mail during duty time by Union officials than by other bargaining unit employees who are not Union officials, and during the 2008-2009 school year monitored only the Union officials’ e-mail for compliance with the restriction to use it only in non-duty hours. The Employer admittedly has not monitored other employees every day to determine whether those employees are using the e-mail for non-work purposes during the duty day. In the one instance in the record where such use came to the Employer’s attention, when three high school teachers used the e-mail during the duty day to criticize the Union in striking terms, there is no evidence the Employer admonished any of those teachers about use of the e-mail during the duty day, or their use of arguably inflammatory language.

The Employer’s hostility toward the Union is also shown by its use of its own definition of inflammatory instead of some objective definition. Different authorities define the word a little differently, but all make it something more than “derisive or spreading misinformation or designed to cause problems.” (As discussed below, the Employer also considered the word “picket” to be inflammatory without regard to its context.) The definition of “inflammatory” found in dictionary.com is “tending to arouse anger, hostility, passion, etc.: inflammatory speeches.” The definition found in www.merriam-webster.com is “tending to excite anger, disorder, or tumult.” An older dictionary, Webster’s New World, copyright 1980, defines “inflammatory” as “rousing or likely to rouse excitement, anger, violence, rioting, etc.” The Employer’s definition is, essentially, that a statement which disagrees with the Employer’s position on issues or which the Employer believes to be inaccurate is inflammatory. While the Union’s view of the status of negotiations was different from the Employer’s view, and Lotrich did tell his fellow Union representatives that he felt the Employer would soon circulate inaccurate memos, the language of the e-mail is not inciting employees to do anything except to support the Union in the face of the Employer’s possibly contrary statements about negotiations. Moreover, the Union’s statement that it had won in the two PPC hearings, while it amounts to an exaggeration, is not the kind of language that would fall within the contractual prohibition of “libelous, slanderous, or inflammatory materials.”

Accordingly, I find that by suspending the employee Union officials’ e-mail accounts from on or about November 17 until on or about December 18, the Employer was not merely exercising its contractual rights. Rather, it was hostile toward the Union, and it discriminated against the employee Union officials with regard to their terms and conditions of employment by imposing more difficult

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working conditions on them than were experienced by employees who were not Union officials, by taking away their e-mail communication with management and requiring them to have a daily personal conference with their principal or assistant principal to receive instructions the Employer disseminated to other employees by e-mail; by taking away the teachers’ e-mail communication with the parents of their students; and by taking away their ability to use the e-mail on non-duty time for Union business and for other, non-work communications with coworkers. This would also tend to restrain and coerce these employees in their exercise of their rights to support the Union by demonstrating to them that the Employer would impose adverse conditions upon employees who held a Union office. The Employer has violated Policy 201 and PEBA by discriminatorily suspending the employee Union officials’ e-mail access from on or about November 17, 2008, to on or about December 18, 2008, and by unilaterally imposing extra-contractual requirements for the Union to use the e-mail system. I recommend to the Board that the Employer be required to rescind the additional requirements imposed in Passell’s December 12 letter.

VII. Interference, restraint, coercionThe record contains several statements by the Employer which would tend

to interfere with, restrain or coerce employees in their exercise of the rights set forth in Policy 201 and PEBA to form, join or assist a labor organization for the purpose of collective bargaining. In order to find that these statements violated Policy 201 or PEBA, it is not necessary to show that employees were actually restrained or coerced. Rather, it is sufficient to show that the statements would tend to restrain or coerce employees. Shearer’s Foods, Inc., 340 NLRB 1093 (2003). These statements were not specifically alleged as violations in the pleadings, but it is undisputed that they were made, and I find they were fully litigated.

A. Passell statement in April, 2008First, Passell’s statement described above which was made during the

processing of a grievance in April, 2008 to employee Union officers Stielow and Hudson to the effect that Passell would not go to bat for the EA’s again, and this would not make negotiations go smoothly, would tend to coerce and restrain employees in processing grievances and administering the collective bargaining agreement. However, it appears that this statement was made more than six months before the Supplemental Pleading was filed, and the record does not reflect the contents of earlier pleadings, so I will not recommend any action to the Board based upon the statement.

B. Bypassing and ignoring Union and communicating directly with employees

The record discloses several instances where the Employer, ignoring the Union, communicated directly with employees about potential changes in their remuneration and other terms and conditions of employment. From the circumstances surrounding each of these communications, the Employer was not attempting to negotiate directly with the employees, excluding the Union, because the Employer was not offering any terms to the employees. Permanente Medical Group, 332 NLRB 1143, 1144 (2000). However, the communications themselves, indicating the necessity to make changes in pay and other terms and conditions of employment, made directly to employees without giving the Union advance notice or acknowledging any duty to bargain about any changes, would tend to

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undermine employee support for the Union and to coerce and restrain employees in exercising their right to bargain collectively through their representative.

These instances include, first, that on or about September 8 Passell e-mailed employees that because of the Employer’s financial difficulties, the payment of stipends would be delayed for the first payroll. Next, on September 22 Superintendent Cleveland issued a two-page letter to employees discussing the Employer’s difficult financial situation, stating that the Employer would be asking schools and departments to reduce the following: supplies and materials, travel, some but not all stipends, utility bills and out of state student travel. She also observed that the Employer would have to consider RIFs as a last resort, summarizing, “In other words, the district must be successful in cutting expenses or our friends and colleagues will lose their jobs.” She concluded by saying the Employer would appreciate the employees’ assistance with this, and that the Employer was open to their suggestions. For the Employer to raise these serious issues directly with employees without informing the Union or offering to discuss the issues with the Union has led to several of the information requests discussed above and contributed to the apparent mutual mistrust between the parties. The Union has attempted to find out what stipends had been paid and whether there have been changes, and also requested information concerning the Employer’s budget and possible changes to it. As discussed above, the Employer either did not provide the financial information the Union has requested or has kept it sequestered in the paper copies in “the box.” Finally, although it asked the employees for suggestions, the Employer has never informed the Union directly of a need to reduce expenses or given the Union a chance to discuss the issue. Continuing in this vein, on October 27 Passell e-mailed the employees stating that until bargaining was completed, “or we are informed otherwise” the Employer would not provide stipends. The Union’s proposal in negotiations regarding stipends was to keep them the same as had been paid for the 2007-2008 school year, and at this time the Employer did not have a proposal regarding stipends on the table. Thus, this communication to the employees was not called for by any Union proposal, and the cessation of payment had never been proposed by the Employer to the Union.

Last, and perhaps most importantly, on December 19, 2008, Passell issued a letter to all employees regarding the raises which had been granted retroactively in their December 10 checks, and regarding the December 19 stipend payments to some of the employees. In the letter, Passell blames the Union’s actions in filing its first two PPCs over the negotiations as delaying the employees’ receipt of the pay increase and “applicable stipends.” After describing these PPC’s, she stated

The actions of the union created a legal situation diverting the attention and time of district resources. [sic] There has only recently been sufficient headway to allow the district to unilaterally provide your pay increase without reaching an agreement with the union. This situation is regrettable and, in addition to delaying your pay increase, has cost the district valuable monetary resources at a time that it can least be afforded.

However, contrary to the Employer’s blaming the Union for the delay in providing raises, in fact, beginning with its July 22 proposal, and continuing in every proposal afterwards, the Union indicated in writing regarding Article 36,

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concerning pay, that it had no objection to the Employer’s retroactively implementing the state-mandated raises before the negotiations were completed on the collective bargaining agreement. The Employer has never accepted this proposal by the Union. The money had apparently been available to the Employer beginning on or about July 1, according to Randy Evans, the Employer’s Director of Finance. Evans stated that the Employer receives one twelfth of its state equalization guarantee amount each month from July through the following June, and that each monthly installment presumably includes money for the state-mandated raises. Thus, it was the Employer which chose not to provide the raises until December. Blaming a delay in receiving raises on the Union in these circumstances would tend to coerce and restrain the employees in the exercise of their rights to bargain collectively through the Union.

Inasmuch as the employees have now received all of the payments due them as far as the record shows, I shall not recommend that any backpay is due. However, all of these communications concerned potential changes in employees’ pay or other terms of employment, all of which are mandatory subjects of bargaining. I recommend that the Board find that by each of the communications to employees described above, the Employer violated Policy 201, Section 16.A.2, and PEBA Section 19.B.

C. Employer’s accessing of Union’s Google groups siteFinally, the Employer’s admitted accessing of the Union’s Google groups site

amounts to surveillance of the employees’ Union activities. Unlike the Employer’s lawful monitoring of its own internal e-mail system, the Google group site had nothing to do with the Employer’s e-mail system and the Union did not invite the general public to access the site. The Employer was apparently able to go to the site by using a link in an e-mail originally sent by Union officials from their home computers to other employees’ home computers, in instructions which were intended to be deleted before the e-mail was forwarded on the Employer’s system to bargaining unit employees. There is nothing in the forwarded e-mail that indicates the link is intended as an invitation to anyone outside the bargaining unit to enter the Google group site. This is not the type of open Union activity carried on at the Employer’s premises which an Employer is allowed to watch. Rather, accessing the Google group site is no different from the Employer happening to find out the time and place of a Union meeting, and then listening in on the meeting through a window. This also tends to restrain and coerce employees in their exercise of their rights to support the Union and to be represented by it for the purpose of collective bargaining. I therefore recommend to the Board that this action by the Employer violated Policy 201, Section 16.A.2, and PEBA Section 19.B.

VIII. Other alleged violations by UnionThe Employer contends that the Union has failed to bargain in good faith,

violated the collective bargaining agreement, and violated Policy 201 in certain respects which have not already been discussed above.

A. Filing grievances to harass EmployerThe Employer contends the Union filed grievances in bad faith, just to

harass the Employer. Ogle stated that from March 19, 2008, to November 4, 2008, the Employer received 15 grievances. She said previously there had been only 2 or 3 grievances a year, they tended to be resolved at the lowest level of the grievance procedure, and no grievance had ever gone to arbitration. However, this year out

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of the 15 grievances filed, only two were resolved at the lowest level, 13 went through level 3, which is the top step of the grievance procedure short of arbitration, and the Union filed for arbitration on two grievances, although it apparently dropped the grievances without completing the process of selecting an arbitrator. Ogle complained that the grievances were difficult to process because the Union provided little information to the Employer, although the Union had gathered more information for its own use in processing the grievances. She also argued that many of the grievances appeared to the Employer to be baseless, including, for example, two discharge grievances for teachers who were still within their probationary periods, a grievance over alleged disparaging comments to an employee, and a grievance regarding the Union’s intention to represent employees who are placed on professional growth plans. The Employer introduced into evidence a packet of grievances filed by the Union during the March to November period.

I find nothing in the testimony or the documentary evidence which would establish that the Union was filing grievances just to harass the Employer. The Employer and Union obviously disagree about issues related to the grievances, but the subjects of the grievances, including discharges or nonrenewals; Union representation during a review of an employee’s progress on a professional growth plan; supervisors seeking information from coworkers about an employee without talking to the employee; possible denial of an employee’s Weingarten rights; documentation of supervisor’s concerns about employee’s work performance; employee transfer to another work location; and opportunity for employee to respond to parent complaints, are typical concerns that arise in the workplace. There is no evidence these were created from thin air just to harass the Employer. For there to be only 15 grievances filed in an eight month period in a bargaining unit of 1300 to 1400 employees is a situation that would be envied by many Human Resources managers. The evidence is insufficient to establish a violation by the Union.

B. Discussing negotiations outside “closed session”The Employer contends that the Union violated Policy 201 and the collective

bargaining agreement by discussing negotiations in various ways with the School Board, with students, with the media, and with bargaining unit employees.

1. School BoardPolicy 201 requires, in Sections 16 and 17, that during negotiations and the

impasse procedures, neither School Board members, management employees, exclusive representatives and their employees, nor [bargaining unit] employees may negotiate issues with anyone but the respective negotiating teams. The Policy goes on to state, “It is the intent of this language that the integrity of the negotiating process be maintained.”

The Employer presented brief testimony by Archibeque-Dreher that Stielow had appeared before the School Board on an unknown date, but apparently in late 2008, and that at that meeting Stielow had to be given the rules about what could be discussed, because the parties were in negotiations. There is no other evidence about what Stielow said on this occasion. While the Union would violate Policy 201 by attempting to bypass the Employer’s negotiating committee and negotiate issues with the School Board, this evidence is insufficient to establish that Stielow or any other Union representative was attempting to negotiate with the School Board.

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2. Students Ogle provided hearsay testimony that high school teachers had discussed

negotiations issues with students during class time. The Employer introduced into evidence a memo from the high school principal, Richard VonAncken, to the staff at the high school, dated December 10, 2008. In this, VonAncken said he had received a few complaints from parents that teachers were talking to classes about not getting their 2% raise, that “all union members” had their e-mail suspended, and general complaints about the lack of professionalism by the Employer and teachers griping about their jobs. There was no direct testimony from VonAncken about his contacts with parents or from anyone else about specifically what was said in the classroom, or about which teachers allegedly made the comments. This evidence is insufficient to establish that the employee Union officials improperly discussed issues relating to negotiations outside the “closed session” bargaining meetings.

3. The mediaThe evidence shows that Union representatives discussed negotiations with

the news media. Policy 201, Section 15.A.2 and PEBA Section 17.G (2) provide that collective bargaining sessions shall be closed meetings. Nevertheless, the Employer received an e-mail inquiry on November 13 from a staff writer for the Rio Rancho Observer, a local newspaper, asking for the Employer’s side of issues about negotiations which the Union had brought up to him. Currier attributed the Union comments to Stielow and to Kathryn Mondragon (whose surname was Mullican as of the hearing in this matter). The assertions about which Currier invited the Employer to comment included whether teachers were due a two percent raise from the state, but that they had not received it because a new contract hadn’t been approved; that negotiations had gone nowhere because the Employer would rather discuss ground rules than negotiate; and that stipends were being taken away. Other issues raised in Currier’s e-mail did not concern negotiations, including whether EA’s were required to work beyond the school day without pay, and a representative’s alleged comment that this was the only school district she had taught in where she felt like she was wearing a scarlet letter because she was a union representative. The Employer responded with a memo to the Observer stating, inter alia, that the Employer was not going to comment on items under negotiation that were being discussed in closed session and were supposed to be confidential. The memo also stated that the issues of salaries and stipends, including what stipends may be cut, were still under negotiation, but that all employees would be paid for authorized time worked, including stipends for extra work performed beyond the employee’s job duties.

An article appeared in the online edition of the Observer dated November 23, which was apparently based upon Currier’s discussions with Stielow, Bernadette Hudson, and Jewel Pierce, and upon the Employer’s memo described above. The article says, among other things, that the prior contract expired, and a new one was not yet approved; that teachers were due a two percent raise from the state, but hadn’t received it because there was no new contract; Stielow’s comment that negotiations had gone nowhere because the Employer would rather discuss ground rules than negotiate; and Mondragon’s statement that her stipend had been cut. The article also included comments from Stielow, Hudson, and Pierce that were not about negotiations, including that teachers’ rights had been ignored, that wage laws were not being honored, the Employer was not as

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cooperative as it used to be, and that Pierce felt there was a lack of respect for union members by the Employer, and she felt like she was wearing a “scarlet letter” because she was a union representative.

This evidence is hearsay as to any conversations Union officials may have had with Currier. However, the Board’s rules provide at Part 1, Section 1.15.A that the technical rules of evidence shall not apply, so I will consider the evidence. The quoted individuals are all officers of the Union, and there is no other evidence in the record which would suggest that Currier did not actually talk to them, or that they did not say what he reports they said. I consider it significant that the Union officials did not testify to deny talking to Currier. I will therefore draw an adverse inference from their failure to testify about this matter, and I conclude that they did talk to Currier about the subjects covered in the story. Champion Rivet Company, 314 NLRB 1097, 1098, fn. 1 (1994); Douglas Aircraft Company, 308 NLRB 1217, fn. 1 (1992).

There is no case law under this Board or under PEBA which clearly defines the meaning of a “closed meeting.” A hearing officer for the Public Employees Labor Relations Board (PELRB), which enforces PEBA, concluded in Santa Fe Public Schools v. NEA-Santa Fe, PELRB Case No. 122-06 (2006), that a union violated ground rules for negotiations and thereby violated PEBA by distributing the employer’s initial contract proposal, with the union’s negative commentary, as an attachment to a union newsletter, and additionally in employee mailboxes, including those of non-bargaining unit employees, and in a lounge area and workroom, respectively, at two high schools and one elementary school. The lounge area and workroom were both accessible to non-bargaining unit employees. The ground rules in that case provided that negotiations would be conducted “in closed sessions,” that the parties would not discuss issues that were a subject of negotiations with each other’s constituents or public officials “for the purpose of influencing negotiations,” and that the parties would not issue unilateral press releases until after a tentative contract had been reached. The hearing officer found that the dissemination of the employer’s initial proposal with negative comments amounted to the issuance of a unilateral press release, because the proposal and comments were disseminated to non-bargaining unit employees. The case was settled before the Board ruled on the Hearing Officer’s decision, however.

Policy 201 reflects a concern that the parties negotiate only with each other’s designated negotiating teams, and that the “integrity of the negotiating process” be maintained in that sense, but I do not agree with the Employer that the language means that negotiations must be confidential. The Union’s discussing negotiations with the news media is not the same thing as, for example, discussing issues with the School Board and trying to get the Board to overrule the designated Employer negotiators. A “closed meeting” of a governmental body usually means a meeting which the general public is not entitled to attend, contrary to the usual requirement for an open meeting. The subject of the meeting is publicly announced, but attendees at a closed meeting are not required to disclose the details of what was said at the meeting to the public, and usually choose not to discuss the details of the meeting. However, I am not aware of any ruling that prohibits attendees at a closed meeting from discussing the details of the meeting later with members of the press or other members of the general public. In the absence of case law interpreting this provision of PEBA to prohibit the disclosure to the news media or to others of what issues are being negotiated

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by the school district and the union, I am unwilling to find the Union’s talking to a reporter about the Union’s view of negotiations or about some of the topics discussed at the negotiations to violate either Policy 201 or PEBA.

4. Bargaining unit employeesEmployer witnesses contended in testimony and in exhibits received in

evidence that by discussing the status of negotiations with bargaining unit employees, the Union has violated the requirements of Policy 201, Section 15.A.2 and the collective bargaining agreement, Article 4.B., that negotiations will be conducted in closed session. As discussed above, I am not persuaded that Policy 201 or PEBA require that negotiations be confidential. However, the Employer did not raise this issue in its pleadings or in its brief. Accordingly, I make no finding about this issue.

C. Use of e-mail to communicate information re School Bd. electionArticle 8.B.2.b of the collective bargaining agreement provides that

Information regarding the Union’s support of, or opposition to, candidates for elective public office shall not be allowed in any format of communication as named above.

The communication formats “named above” include, inter alia, e-mail. The Employer presented evidence that on December 1, 2008, Union

Treasurer Pierce sent an e-mail from her home e-mail address after duty hours to employee Union officials, including at least one address in the Employer’s e-mail system, and to Union representatives who are not employed by the Employer. The exhibit does not indicate which e-mail address was used for several named employee Union officials who receive e-mail both at their home e-mail address and at their address in the Employer’s e-mail system. The e-mail was sent during the time that the employee Union officials’ access to the Employer’s e-mail system was suspended, so it seems likely that Pierce sent the message to other employees’ home e-mails, but the document does show that it was sent to one individual at an Employer e-mail address.

In the e-mail, Pierce attaches a link to a map of School Board precincts, explaining that three School Board seats are open in February, and describing how candidates must declare their candidacy. She concludes, “We must change the BOE [School Board] to a more employee friendly Board. She closes by asking, “Can we use COPE funds to help get new BOE members?”

This is obviously a statement that Pierce was dissatisfied with the incumbent School Board members and wanted to see a change. The record does not reflect whether the incumbent Board members were running for reelection, that is, whether they were “candidates for elective public office.” Assuming, for the sake of argument, that they were running at this time, then the e-mail could be a statement of support for or opposition to candidates for elective public office. It does not appear to be a statement of the Union’s position, but simply Pierce’s individual view, apparently wanting to assist potential, employee-friendly candidates in filing for office. There is no evidence it went to any more than one recipient on the Employer’s e-mail network. In these circumstances, to the extent that this violated the contractual prohibition, it was a de minimus violation, and I will not recommend to the Board that any remedy be required.

D. Union disseminated false information

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The Employer said that Union representative Gibson falsely told individuals at two schools on or about December 3 and 4, 2008, that a flyer he wanted to distribute in the employee communication boxes had been approved by the Employer. The Employer presented evidence that the flyers had not been approved, and that the Union was not allowed to distribute them at these schools. The record does not show whether the Union attempted to distribute them at all schools or whether it was able to distribute them at any school. Ogle also testified that the flyers were inflammatory.

It is undisputed that on or about December 3 and 4 Union representative Gibson attempted to distribute Union flyers through employee communication boxes at several, if not all, of the Employer’s schools. This was during the time when the employee Union officials’ e-mail accounts were suspended and the Employer had blocked Lotrich’s e-mail from coming into the system. The flyers were single-sided, with a heading that said “Rio Rancho School Employees Union Informational Picket”, a large graphic of stylized picket signs with exclamation points but no words on them, and the following language below the graphic:

When: Saturday, December 6th Where: Meeting at Haines Park at 10:30 to Gather, Then Going to 528 and Southern to BE SEEN!!Who: All Concerned Bargaining Unit Members and Community Members

Bring warm clothes. The weather should be mild, but don’t take any chances.

This is our opportunity to show the District that we are concerned about the current problems facing our schools.

According to Ogle, this was the first time the Union had ever tried to distribute anything but meeting announcements and a newsletter through the communication boxes. The Employer presented hearsay in the form of memos from staff at the schools about what happened at two different schools when Gibson arrived to distribute the flyers.

One exhibit was a memo from the principal’s secretary at Mountain View Middle School who stated that Gibson had telephoned in advance and said he was from the Union and had some flyers from the District Office and was coming to put them into teachers’ mailboxes. When he arrived, shortly after the teachers’ duty day ended, she asked him, “and these flyers are from district office, right?” and he said “Yes.” The memo stated that when the secretary learned that the flyers were not from the District Office and had not been approved, she came into work early the next day, before the duty day, and removed the flyers from the teachers’ boxes. Gibson denied that he had any such conversation at Mountain View Middle School.

The Employer also introduced into evidence a memo from the principal of Shining Stars Preschool, who said Gibson gave the principal his card and identified himself as a representative of RRSEU. At her request, he showed her the flyer, and she told him she would have to get permission to allow him to put them in the employees’ boxes. He reportedly said he already was given permission by other principals to put them in boxes at other schools. The principal asked which ones, and he told her the three middle schools and the high school. The principal said

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she needed to get approval, and Gibson replied the Union had the right to put things in boxes pursuant to the negotiated agreement. They read the agreement together, but the principal still refused to allow Gibson to distribute the flyers until she got permission. The principal then contacted the Human Resources office, but was unable to get a quick answer, so she told Gibson she would distribute the flyers herself if she received approval. He thanked her and left. The Employer contends Gibson’s alleged statement that he had permission from principals at three other schools to distribute the flyers was incorrect. He admitted making the statement, and the Union did not produce any evidence that, in fact, it had received permission at those schools.

Ogle said the Employer believed the flyer was inflammatory, and therefore it could not be distributed pursuant to the collective bargaining agreement because the word “picket” was intended to incite and to be derisive. The Employer also introduced as an exhibit the Employer’s policy on distribution of non-school printed materials, which requires, inter alia, that materials receive pre-approval from the assistant superintendent, but the Employer also conceded that, pursuant to the terms of the collective bargaining agreement, the Union’s rights under the agreement supersede this policy.

Based on this evidence, I conclude that Gibson did misrepresent whether the Union had permission from the Employer to distribute the flyer on at least one, and probably two occasions. This was an isolated incident and I find that it was too minor to rise to the level of a violation of the Union’s duty to bargain. I also conclude that the Employer failed to comply with its obligations under the collective bargaining agreement on these two occasions, and in any other school where it refused to allow the flyers to be distributed or removed them from employee mailboxes. As Ogle conceded in her testimony, the flyer was carefully worded. I find nothing in the fIyer that rises to the level of being “libelous, slanderous, or inflammatory.” Rather, the Employer was again exercising its contractual rights in a discriminatory manner prohibited by law. See the discussion above regarding the suspension of employee Union officials’ e-mail accounts. This is not alleged as a violation in the Union’s pleading, and the facts regarding the situation were not fully developed at the hearing, so I will not recommend to the Board that any remedy be required for this apparent prohibited practice. However, I will consider both parties’ conduct in my overall evaluation of whether either of them has failed to bargain in good faith.

IX. Summary of bargaining issuesBased upon all of the foregoing, I find that both parties have failed to

bargain in good faith. The Union insisted for approximately six weeks from August 14 to September 29 that the Employer provide its next contract proposal in advance before the Union would agree to schedule another negotiating meeting. This violated the Union’s duty to bargain in good faith. The Employer itself thereafter unlawfully refused to schedule meetings for about four and a half weeks, also in violation of its duty to bargain. Although the Union strongly requested that the Employer provide its proposals electronically, it did not insist upon this, however. The conduct of both parties at the table was not conducive to reaching agreement. Both felt the other side was being disrespectful, and the record shows that both failed to seriously discuss the other party’s proposals. However, I do not find that the conduct of either in that regard rose to the level of a violation of the duty to bargain. In looking at the written proposals, I note, however, that the

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Employer’s proposals, in all important respects, remained the same from beginning to end, including retreating at the last two meetings from language the Employer had advanced earlier that accepted some of the Union’s more important proposals. I also note that in the last few meetings the Union proposed possible trades of proposals in order to come to an agreement, but while professing to be open to the concept, the Employer refused each of the Union’s suggested trades, and failed to offer any of its own. Instead the Employer appeared to keep to an “all or nothing” strategy that would almost guarantee that no agreement would be reached. Viewing this conduct against the backdrop of the Employer’s direct communications to the employees to the exclusion of the Union about the Employer’s financial condition and the effect of that on employees’ pay and job security, the Employer’s failure and refusal to provide information the Union requested for use in negotiations, the Employer’s shutting off communications with the Union’s chief negotiator and discriminatorily suspending the e-mail accounts of the employees who are Union officers and building representatives, and unilaterally imposing extra contractual requirements for the employee Union officials to use the e-mail and failing to observe the Union’s contractual right to distribute flyers in the employee communication boxes, I conclude that the Employer was engaged in surface bargaining at the bargaining table.

Policy 201, Section 4.N, defines an “impasse” as “a failure of the employer and an exclusive representative, after good faith bargaining[emphasis supplied], to reach agreement in the course of negotiating a collective bargaining agreement.” Where there are important, unremedied prohibited practices, a genuine impasse does not exist. Accordingly, I recommend to the Board that the Employer be required to provide the information discussed above and that the parties then be required to return to the bargaining table. Further bargaining may quickly result in a genuine impasse, of course, but the Union should have the opportunity to review the requested information and both parties should have the opportunity to conduct themselves in light of the Board’s decision on these PPC’s.

REMEDY

I recommend that the Board order the Employer to cease and desist from:1) Failing and refusing to schedule bargaining meetings while a prohibited practice charge is pending.2) Failing and refusing to provide information requested by the Union which the Union needs for contract negotiations for its other functions as the representative of the bargaining unit.3) Unilaterally changing bargaining unit employees terms and conditions of employment by ceasing to pay high school teachers for occasionally giving up a preparation period to work as substitutes.4) Imposing requirements over and above those in the collective bargaining agreement for the Union’s use of the Employer’s e-mail system5) Communicating directly with bargaining unit employees about possible changes in their pay or terms and conditions of employment without giving the Union advance notice of possible changes and a chance to request bargaining about any changes.6) Engaging in surveillance of employees’ activities on behalf of the Union by visiting Google group or other internet sites created and maintained by the Union where the general public is not invited to visit.

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7) Engaging in surface bargaining with no intention of reaching agreement.I further recommend that the Board order the Employer to take the

following affirmative action:1) Provide the information requested by the Union on or about May 1, 2008, to the extent it has not already been provided, including the audit of the 2007-2008 budget; the 2008-2009 budget; the employees’ work locations and work telephone numbers, date of hire in current job classification, salary and licensure levels. If the date of hire in current job classification is not contained in the database, and compiling the information is therefore burdensome, negotiate in good faith with the Union over how the information will be provided. 2) Provide the information requested by the Union by letter from Peggy Stielow dated September 23, 2008. If any part of that information does not exist electronically, inform the Union of where, how, and by whom it is maintained, and upon request, bargain in good faith as to how this remaining information will be provided.3) Provide the information requested by the Union in writing by Andy Lotrich on October 14 and 20. Bargain in good faith with the Union about the resolution of any confidentiality issues.4) Provide the information requested by the Union in writing by Peggy Stielow which the Employer received on or about October 31, 2008.5) Provide the information requested by the Union in writing by Andy Lotrich on November 24, 2008 regarding the suspension of employee Union officials’ e-mail privileges, to the extent not already provided6) Provide the information requested by the Union in writing by Andy Lotrich on December 2, 2008, as to the Employer’s communications with the Public Education Department.7) Provide the information requested by the Union in writing by Andy Lotrich on December 8, 2008, regarding the use of Educational Assistants as substitutes.8) Pay backpay at the same rate as in the 2007-2008 school year to any high school teachers who were not paid for occasionally giving up their preparation period to work as substitutes.9) Rescind, in writing, the additional requirements over and above the contractual requirements which were imposed upon the Union’s use of the e-mail system on December 12, 2008.10) Preserve, and upon request of the Board, provide to the Board or its agent(s) any and all records including an electronic copy of such records if stored in an electronic form, needed to analyze the amount of backpay due under the terms of this order.

Finally, I recommend that the Board order the Employer to sign, date, and mail the following notice to all bargaining unit employees at its expense, because there is no longer time for a notice to be posted at the Employer’s premises for sixty days before school is out for the summer.

NOTICE TO EMPLOYEESPosted pursuant to an order of the Rio Rancho School District Labor Relations

Board.

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The Rio Rancho School District Labor Relations Board. has found that we violated the School District’s Policy 201 and the Public Employees Bargaining Act and has

ordered us to post and obey this notice.

Policy 201 and the Public Employees Bargaining Act give you the right to Form, join, or assist a unionChoose representatives to bargain with us on your behalfChoose not to engage in any of these protected activities.

WE WILL NOT refuse to bargain collectively and in good faith with Rio Rancho School Employees Union as the exclusive, collective-bargaining representative of our employees in the following appropriate unit, which is described more fully in the collective bargaining agreement:

All regular, full-time and part-time licensed instructional, support, and ancillary personnel and educational assistants, and all non-licensed secretarial, facilities, and other personnel.

WE WILL NOT refuse to meet and bargain with the Union while a prohibited practice charge is pending.

WE WILL NOT fail or refuse to provide information requested by the Union which the Union needs for contract negotiations or its other functions as the representative of the bargaining unit.

WE WILL NOT change pay or terms and conditions of employment of bargaining unit employees without notifying the Union in advance of changes we are considering and giving the Union a chance to request bargaining over the decision and its effects.

WE WILL NOT impose additional requirements over and above the requirements in the collective bargaining agreement for the Union’s use of our e-mail system.

WE WILL NOT communicate directly with bargaining unit employees about possible changes in their pay or terms and conditions of employment without giving the Union advance notice of possible changes and a chance to request bargaining about any changes.

WE WILL NOT engage in surveillance of our employees’ activities on behalf of the Union by visiting Google group or other internet sites created and maintained by the Union where the general public is not invited to visit.

WE WILL NOT fail or refuse to bargain in good faith with the Union by engaging in bargaining without the intention of reaching an agreement.

WE WILL make whole any high school teachers who were not compensated during the 2008-2009 school year for occasionally giving up their preparation period to work as substitutes.

WE WILL rescind the additional requirements over and above the requirements in the collective

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bargaining agreement which we imposed upon the Union’s use of our e-mail system.

WE WILL meet and bargain in good faith with the Union for a successor collective bargaining agreement.

____________________________________________________(name and title of Employer representative and date

signed)

I further recommend that the Board order the Union to cease and desist from refusing to meet and bargain with the Rio Rancho Public School District unless the District provides the Union with a copy of its contract proposal in advance of any face to face meeting.

I also recommend that the Board order the Union to sign, date, and mail the following notice to all bargaining unit employees at its expense, because there is no longer time for a notice to be posted at the Union’s office and the Employer’s premises for sixty days before school is out for the summer. If the Union does not have the bargaining unit employees’ names and home addresses, the Employer will need to furnish them to the Union.

NOTICE TO EMPLOYEES and MEMBERSPosted pursuant to an order of the Rio Rancho School District Labor Relations

Board.

The Rio Rancho School District Labor Relations Board has found that we violated the School District’s Policy 201 and the Public Employees Bargaining Act and has

ordered us to post and obey this notice.

Policy 201 and the Public Employees Bargaining Act give you the right to Form, join, or assist a unionChoose representatives to bargain with us on your behalfChoose not to engage in any of these protected activities.

WE WILL NOT refuse to meet and bargain with the Rio Rancho Public School District unless the District provides us with a copy of its contract proposal in advance of any face to face meeting.

____________________________________________________(name and title of Union representative and date signed)

REQUEST FOR REVIEWPursuant to the Rio Rancho Public Schools Labor Relations Board’s

procedural rules, within 10 business days following service of this Report, any party may obtain Board review by filing with the Board and serving on the other parties a notice of appeal. The notice of appeal shall specify the findings, conclusions, or recommendations to which exception is taken and shall identify the specific evidence presented or offered at the hearing that supports each exception.

Any other party may file a response to notice of appeal within 10 days of service of the notice of appeal.

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If notice of appeal is not filed within 10 business days, the Board may pro forma adopt the hearing officer’s report as its own or may modify the recommendation issuing its own findings.

Issued this 18th day of May, 2009.

/s/ Kathleen McCorkell Kathleen McCorkell, Hearing Officer

CERTIFICATE OF SERVICE

Served on the parties and Board members via e-mail at the following addresses on May 18:

Dina E. Holcomb, Esq.dholcomb@mgt-assoc.comAndrew Lotrichandydinger@yahoo.com

Douglas Gibsondgibsonaftnm@comcast.net

Eric Millerermsf@aol.com

Wayne Binghamwbingham@binghamhurst.com

Tom Griegotgriego@billgordon.com

A hard copy will be served on the Board by hand delivery.___/s/ Kathleen

McCorkell_____________________Kathleen McCorkell, Hearing Officer

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