Solano County Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * (PERB 0219E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION )
and its SOLANO COLLEGE CHAPTER #211,
Charging Party, 	Case No. SF-CE-337
v .
PERB Decision No. 219
SOLANO COUNTY COMMUNITY COLLEGE
DISTRICT,
June 30, 1982
Respondent.
Appearances: Madalyn J. Frazzini, Attorney, for California
School Employees Association and its Solano College
Chapter #211.
Before Gluck, Chairperson; Jaeger and Morgenstern, Members.
DECISION
This case is before the Public Employment Relations Board
(PERB) on exceptions filed by the California School Employees
Association and its Solano College Chapter No. 211
(Association) . The hearing officer found that the Solano
County Community College District (District) violated
subsections 3543.5 (b) and (c) of the Educational Employment
Relations Act (Act or EERA) 1 by unilaterally transferring
work from the classified negotiating unit to the certificated
unit. We affirm his decision in part and reverse it in part.
The Educational Employment Relations Act is codified at
Government Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise noted.
STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPW)YEES 	ASSOCIATIO
and 	its 	SOLANO 	COLLEGE 	CHAPTER 	#211,
Charging 	Party,
v.
SOLANO 	COUNTY 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
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Case 	No. 	SF-CE-337
PERB 	Decision 	No. 	219
June 	30, 	1982
Appearances: 	Madalyn 	J. 	Frazzini, 	Attorney, 	for 	California
School 	Employees 	Association 	and 	its 	Solano 	College
Chapter 	:fl:211.
Before 	Gluck, 	Chairperson; 	Jaeger 	and 	Morgenstern, 	Members.
DECISION
This 	case 	is 	before 	the 	Public 	Employment 	Relations 	Board
(PERB) 	on 	exceptions 	filed 	by 	the 	California 	School 	Employees
Association 	and 	its 	Solano 	College 	Chapter 	No. 	211
(Association). 	The 	hearing 	officer 	found 	that 	the 	Solano
County 	Community 	College 	District 	{District) 	violated
subsections 	3543.5{b) 	and 	(c) 	of 	the 	Educational 	Employment
Relations 	Act 	(Act 	or 	EERA)l 	by 	unilaterally 	transferring
work 	from 	the 	classified 	negotiating 	unit 	to 	the 	certificated
unit. 	We 	affirm 	his 	decision 	in 	part 	and 	reverse 	it 	in 	part.
1The 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
Government 	Code 	section 	3540 	et 	seq. 	All 	statutory 	references
are 	to 	the 	Government 	Code 	unless 	otherwise 	noted.
* * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * *

FACTS
The dispute between the parties arose in the weeks
following the passage of Proposition 13 in June of 1978. 	The
parties had negotiated a collective bargaining agreement that
covered, among others in classified service, the positions of
Off-Campus Representative and Student Services
Specialist/Tutoring Center. This agreement was in effect from
July 1, 1977 through June 30, 1980. In June 1978, the parties
agreed to a contract reopener and on July 15, 1978, they
reached certain additional agreements that resulted in
modifications to the layoff procedures.
Prior to the summer of 1978, the District employed two
individuals, Robert Harris and Tom Cirimele, as Off-Campus
Representatives at Travis Air Force Base and Mare Island.
Their primary job responsibilities were to assist in the
enrollment of students and to organize off-campus classroom
facilities. The District also employed Karen Rampone in the
classification of Student Services Specialist/Tutoring Center
at the main campus. Her primary job responsibility was to
administer the tutoring program. Rampone went on a maternity
leave in November 1977, followed by extended sick leave.
Joyce Laird assumed Rampone's duties during this period. 	All
three of these positions were included in the Association's
classified bargaining unit.
2
FACTS
The 	dispute 	between 	the 	parties 	arose 	in 	the 	weeks
following 	the 	passage 	of 	Proposition 	13 	in June 	of 	1978. 	The
parties 	had 	negotiated 	a 	collective 	bargaining 	agreement 	that
covered, 	among 	others 	in 	classified 	service, 	the 	positions 	of
Off-Campus 	Representative 	and 	Student 	Services
Specialist/Tutoring 	Center. 	This 	agreement 	was 	in 	effect 	from
July 	1, 	1977 	through 	June 	30, 	1980. 	In June 	1978, 	the 	parties
agreed 	to 	a 	contract 	reopener 	and 	on 	July 	15, 	1978, 	they
reached 	certain 	additional 	agreements 	that 	resulted 	in
modifications 	to 	the 	layoff 	procedures.
Prior 	to 	the 	summer 	of 	1978, 	the 	District 	employed 	two
individuals, 	Robert 	Harris 	and 	Tom 	Cirimele, 	as 	Off-Campus
Representatives 	at 	Travis 	Air 	Force 	Base 	and Mare 	Island.
Their 	primary 	job 	responsibilities 	were 	to 	assist 	in 	the
enrollment 	of 	students 	and 	to 	organize 	off-campus 	classroom
facilities. 	The 	District 	also 	employed 	Karen 	Rampone 	in 	the
classification 	of 	Student 	Services 	Specialist/Tutoring 	Center
at 	the 	main 	campus. 	Her 	primary 	job 	responsibility 	was 	to
administer 	the 	tutoring 	program. 	Rampone 	went 	on 	a 	maternity
leave 	in 	November 	1977, 	followed 	by 	extended 	sick 	leave.
Joyce 	Laird 	assumed 	Rampone's 	duties 	during 	this 	period. 	All
three 	of 	these 	positions 	were 	included 	in 	the 	Association's
classified 	bargaining 	unit.
2

On July 20, 1978, Harris, Cirimele and Rampone were laid
off effective August 4, 1978. This layoff was the result of
the District's post-Proposition 13 decision to eliminate these
services. The District received an immediate request from
community representatives to continue providing the terminated
services.
The Off-Campus Facilities
In early August, the District made a decision to
reinstitute the off-campus services and assigned
Carolyn Tilley, a certificated employee and the District's
Director of Counseling, to Travis Air Force Base in the morning
and to Mare Island in the afternoon. She was directed to
report to these facilities only on a temporary basis. Her job
duties2 were substantially the same as the previous
Off-Campus Representatives, Harris and Cirimele, and consisted
mainly of registering students.
2These duties included: assisting new and returning
students in class registration; publicizing the available
course offerings; providing a liaison between the college
faculty at the military base and the main campus; advising and
disseminating information to students and prospective students
about the college, including entrance requirements, graduation
requirements and transferability of courses; collecting
tuition; assisting students in applying for veterans benefits;
scheduling courses and arranging for classroom space;
transporting information and materials to and from the main
campus; and receiving input from students about course
offerings they wanted scheduled.
3
On July 	20, 	1978, 	Harris, 	Cirimele 	and 	Rampone 	were 	laid
off 	effective 	August 	4, 	1978. 	This 	layoff 	was 	the 	result 	of
the 	District's 	post-Proposition 	13 	decision 	to 	eliminate 	these
services. 	The 	District 	received 	an 	immediate 	request 	from
community 	representatives 	to 	continue 	providing 	the 	terminated
services.
The 	Off-Campus 	Facilities
In 	early August, 	the 	District 	made 	a 	decision 	to
reinstitute 	the 	off-campus 	services 	and 	assigned
Carolyn 	Tilley, 	a 	certificated 	employee 	and 	the 	District's
Director 	of 	Counseling, 	to 	Travis Air 	Force 	Base 	in 	the 	morning
and 	to 	Mare 	Island 	in 	the 	afternoon. 	She 	was 	directed 	to
report 	to 	these 	facilities 	only 	on 	a 	temporary 	basis. 	Her 	job
duties2 	were 	substantially 	the 	same 	as 	the 	previous
Off-Campus 	Representatives, 	Harris 	and 	Cirimele, 	and 	consisted
mainly 	of 	registering 	students.
2These 	duties 	included: 	assisting 	new 	and 	returning
students 	in 	class 	registration; 	publicizing 	the 	available
course 	offerings; 	providing 	a 	liaison 	between 	the 	college
faculty 	at 	the 	military 	base 	and 	the 	main 	campus; 	advising 	and
disseminating 	information 	to 	students 	and 	prospective 	students
about 	the 	college, 	including 	entrance 	requirements, 	graduation
requirements 	and 	transferability 	of 	courses; 	collecting
tuition; 	assisting 	students 	in 	applying 	for 	veterans 	benefits;
scheduling 	courses 	and 	arranging 	for 	classroom 	space~
transporting 	information 	and 	materials 	to 	and 	from 	the 	main
campus; 	and 	receiving 	input 	from 	students 	about 	course
offerings 	they 	wanted 	scheduled.
3

Within two weeks, on about August 14, 1978,
Charles Mcdonald and Leslie Rota, two certificated employees,
relieved Tilley of her temporary duties and were assigned to
Mare Island and Travis respectively. They were the District's
only employees at these two locations. They performed
substantially the same job functions as the laid-off classified
Off-Campus Representatives.
The Tutoring Center
On July 19, 1978, the District closed the tutoring center
because of funding problems. This also resulted in classified
employee Karen Rampone being laid off from her position as
Student Services Specialist.
On September 6, 1978, again in response to community
requests, the District restored the tutoring center services.
The center reopened on October 8, 1978 with Leslie Rota, a
certificated employee assigned to work at the center. She
worked there in the afternoon and retained her Travis position
in the morning. She performed essentially the same job
functions as the laid-off classified employee, Karen Rampone.
3These duties included: recruiting tutors; accepting
applications; interviewing tutors; matching tutors with tutees;
assisting in the practicum; compiling reports regarding the
functions of the tutoring center; and keeping the tutors' hours.
Within 	two 	weeks, 	on 	about August 	14, 	1978,
Charles 	McDonald 	and 	Leslie 	Rota, 	two 	certificated 	employees,
relieved 	Tilley 	of 	her 	temporary 	duties 	and 	were 	assigned 	to
Mare 	Island 	and 	Travis 	respectively. 	They 	were 	the 	District's
only 	employees 	at 	these 	two 	locations. 	They 	performed
substantially 	the 	same 	job 	functions 	as 	the 	laid-off 	classified
Off-Campus 	Representatives.
The 	Tutoring 	Center
On July 	19, 	1978, 	the 	District 	closed 	the 	tutoring 	center
because 	of 	funding 	problems. 	This 	also 	resulted 	in 	classified
employee 	Karen 	Rampone 	being 	laid 	off 	from 	her 	position 	as
Student 	Services 	Specialist.
On 	September 	6, 	1978, 	again 	in 	response 	to 	community
requests, 	the 	District 	restored 	the 	tutoring 	center 	services.
The 	center 	reopened 	on 	October 	8, 	1978 	with 	Leslie 	Rota, 	a
certificated 	employee 	assigned 	to 	work 	at 	the 	center. 	She
worked 	there 	in 	the 	afternoon 	and 	retained 	her 	Travis 	position
in 	the 	morning. 	She 	performed 	essentially 	the 	same 	job
functions3 	as 	the 	laid-off 	classified 	employee, 	Karen 	Rampone.
3These 	duties 	included: 	recruiting 	tutors; 	acce~ting
applications; 	interviewing 	tutors; 	matching 	tutors 	with 	tutees;
assisting 	in 	the 	practicum; 	compiling 	reports 	regarding 	the
functions 	of 	the 	tutoring 	center; 	and 	keeping 	the 	tutors' 	hours.
4

During the months following the passage of Proposition 13,
the Association expressed serious concern over the layoffs that
were occurring. On August 1, 1978, after engaging in informal
discussions with the District, the Association wrote to the
District complaining about certificated employees performing
classified work as Off-Campus Representatives at Mare Island
and Travis. Informal meetings regarding the layoff were held
in conjunction with negotiating sessions over the contract
reopeners. The District maintained that the classified
positions were vacant and that the certificated employees were
actually performing different work than the laid off classified
employees .
On December 12, 1978, the District refused to engage in
further discussion concerning the Off-Campus Representatives or
the Student Services Specialist. The District informed the
Association that the Student Services Specialist was a
certificated position and asserted it had no obligation to
bargain with CSEA. 4 The District also refused to participate
4In support of its position, the District principally
relies on an August 29, 1978, Fiscal Management Audits
Management Letter CCCol-37, to Dr. William Craig, Chancellor,
Board of Governors of the California Community Colleges. 	The
subject of the communication is the State School Fund
Apportionment, Solano Community College District. That
document states, in relevant part:
Average daily attendance was reported for
hours not supervised by certificated
employees for Tutoring Practicum and Office
Machines Laboratory.
5
During 	the 	months 	following 	the 	passage 	of 	Proposition 	13,
the 	Association 	expressed 	serious 	concern 	over 	the 	layoffs 	that
were 	occurring. 	On August 	1, 	1978, 	after 	engaging 	in 	informal
discussions 	with 	the 	District, 	the 	Association 	wrote 	to 	the
District 	complaining 	about 	certificated 	employees 	performing
classified 	work 	as 	Off-Campus 	Representatives 	at 	Mare 	Island
and 	Travis. 	Informal 	meetings 	regarding 	the 	layoff 	were 	held
in 	conjunction 	with 	negotiating 	sessions 	over 	the 	contract
reopeners. 	The 	District 	maintained 	that 	the 	classified
positions 	were 	vacant 	and 	that 	the 	certificated 	employees 	were
actually 	performing 	different 	work 	than 	the 	laid 	off 	classified
employees.
On 	December 	12, 	1978, 	the 	District 	refused 	to 	engage 	in
further 	discussion 	concerning 	the 	Off-Campus 	Representatives 	or
the 	Student 	Services 	Specialist. 	The 	District 	informed 	the
Association 	that 	the 	Student 	Services 	Specialist 	was 	a
certificated 	position 	and 	asserted 	it 	had 	no 	obligation 	to
bargain 	with 	CSEA.4 	The 	District 	also 	refused 	to 	participate
4rn 	support 	of 	its 	position, 	the 	District 	principally
relies 	on 	an August 	29, 	1978, 	Fiscal 	Management Audits
Management 	Letter 	CCCol-37, 	to 	Dr. 	William Craig, 	Chancellor,
Board 	of 	Governors 	of 	the 	California Community 	Colleges. 	The
subject 	of 	the 	communication 	is 	the 	State 	School 	Fund
Apportionment, 	Solano Community 	College 	District. 	That
document 	states, 	in 	relevant 	part:
Average 	daily 	attendance 	was 	reported 	for
hours 	not 	supervised 	by 	certificated
employees 	for 	Tutoring 	Practicum 	and 	Office
Machines 	Laboratory.
5

in further discussion concerning the Off-Campus Representative
position . 5
On January 10, 1979, the Association filed this unfair
practice charge alleging that the District violated
subsections 3543.5 (b) and (c) by unilaterally removing
positions from the classified unit and thereby eliminating the
wages and hours of classified employees.
On October 23, 1979, the hearing officer issued his
proposed decision finding that the District violated
subsections 3543.5 (b) and (c) of the Act by unilaterally
transferring work from the classified to the certificated unit
without negotiating the effects thereof.
Exceptions
The Association excepts to: the conclusion of the hearing
officer that the decision to transfer work from the unit was a
managerial prerogative that can be unilaterally made; the
conclusion that the District's decision not to reemploy the
classified employees was lawful; the hearing officer's failure
to order reinstatement of the classified employees.
DISCUSS ION
The Association bases its exceptions on a contention that
the decision to lay off the classified employees in the
The record is unclear as to whether the District's
response was that no certificated employees were working in the
Off-Campus Representative positions, or whether certificated
employees were working in these positions but were not
performing the duties previously done by classified employees.
In any event, the District refused to negotiate.
6
in 	further 	discussion 	concerning 	the 	Off-Campus 	Representative
position.5
On January 	10, 	1979, 	the 	Association 	filed 	this 	unfair
practice 	charge 	alleging 	that 	the 	District 	violated
subsections 	3543.S(b) 	and 	(c) 	by 	unilaterally 	removing
positions 	from 	the 	classified 	unit 	and 	thereby 	eliminating 	the
wages 	and 	hours 	of 	classified 	employees.
On October 	23, 	1979, 	the 	hearing 	officer 	issued 	his
proposed 	decision 	finding 	that 	the 	District 	violated
subsections 	3543.S(b) 	and 	(c) 	of 	the 	Act 	by 	unilaterally
transferring 	work 	from 	the 	classified 	to 	the 	certificated 	unit
without 	negotiating 	the 	effects 	thereof.
Exceptions
The 	Association 	excepts 	to: 	the 	conclusion 	of 	the 	hearing
officer 	that 	the 	decision 	to 	transfer 	work 	from 	the 	unit 	was 	a
managerial 	prerogative 	that 	can 	be 	unilaterally 	made; 	the
conclusion 	that 	the 	District's 	dec!sion 	not 	to 	reemploy 	the
classified 	employees 	was 	lawful; 	the 	hearing 	officer's 	failure
to 	order 	reinstatement 	of 	the 	classified 	employees.
DISCUSSION
The 	Association 	bases 	its 	exceptions 	on 	a 	contention 	that
the 	decision 	to 	lay 	off 	the 	classified 	employees 	in 	the
5The 	record 	is 	unclear 	as 	to 	whether 	the 	District's
response 	was 	that 	no 	certificated 	employees 	were 	working 	in 	the
Off-Campus 	Representative 	positions, 	or 	whether 	certificated
employees 	were 	working 	in 	these 	positions 	but 	were 	not
performing 	the 	duties 	previously 	done 	by 	classified 	employees.
In 	any 	event, 	the 	District 	refused 	to 	negotiate.
6

Off-Campus Representative and Student Services Specialist
positions was one and the same with the District's decision to
transfer the work from the unit. The hearing officer
concluded, and we find ample factual support in the record to
agree, that the layoff decision was made on or about
July 19, 1978, prior to the District's decision to transfer the
work . 	The layoff was carried out in accord with the relevant
provisions of the collective bargaining agreement which the
parties had negotiated and was therefore lawful under the Act.
The Board determined in Healdsburg Union High School District
(6/19/80) PERB Decision No. 132, that the decision to initiate
a layoff is within the managerial prerogative of a District and
that bilateral negotiations are required as to the effects and
implementation of the District's operational decision.
The evidence discloses that the District and the
Association did meet and negotiate concerning the effects and
implementation of the layoff decision. They did reach
agreement through bilateral negotiations concerning the
procedure for layoffs. In fact, on June 15, 1978, they
modified Article XIX of their agreement to reflect the results
of their contract reopener discussion concerning these
additional layoff procedures. The decision to institute layoff
was within the District's managerial rights. Their legal
obligation to discuss the effects and implementation of that
decision was the subject of these reopener discussions
7
Off-Campus 	Representative 	and 	Student 	Services 	Specialist
positions 	was 	one 	and 	the 	same 	with 	the 	District's 	decision 	to
transfer 	the 	work 	from 	the 	unit. 	The 	hearing 	officer
concluded, 	and 	we 	find 	ample 	factual 	support 	in 	the 	record 	to
agree, 	that 	the 	layoff 	decision 	was 	made 	on 	or 	about
July 	19, 	1978, 	prior 	to 	the 	District's 	decision 	to 	transfer 	the
work. 	The 	layoff 	was 	carried 	out 	in 	accord 	with 	the 	relevant
provisions 	of 	the 	collective 	bargaining 	agreement 	which 	the
parties 	had 	negotiated 	and 	was 	therefore 	lawful 	under 	the 	Act.
The 	Board 	determined 	in Healdsburg 	Union 	High 	School 	District
(6/19/80} 	PERB 	Decision No. 	132, 	that 	the 	decision 	to 	initiate
a 	layoff 	is 	within 	the 	managerial 	prerogative 	of 	a 	District 	and
that 	bilateral 	negotiations 	are 	required 	as 	to 	the 	effects 	and
implementation 	of 	the 	District's 	operational 	decision.
The 	evidence 	discloses 	that 	the 	District 	and 	the
Association 	did 	meet 	and 	negotiate 	concerning 	the 	effects 	and
implementation 	of 	the 	layoff 	decision. 	They 	did 	reach
agreement 	through 	bilateral 	negotiations 	concerning 	the
procedure 	for 	layoffs. 	In 	fact, 	on June 	15, 	1978, 	they
modified 	Article 	XIX 	of 	their 	agreement 	to 	reflect 	the 	results
of 	their 	contract 	reopener 	discussion 	concerning 	these
additional 	layoff 	procedures. 	The 	decision 	to 	institute 	layoff
was 	within 	the 	District's 	managerial 	rights. 	Their 	legal
obligation 	to 	discuss 	the 	effects 	and 	implementation 	of 	that
decision 	was 	the 	subject 	of 	these 	reopener 	discussions
7

between the parties. We find no error in the conclusion of the
hearing officer and we affirm his findings of fact and
conclusions of law that the layoff decision was lawful under
the Act.
The Association contends that the District's decision to
transfer work out of its bargaining unit to the certificated
unit, is a mandatory subject of negotiations under the Act.
The hearing officer concluded, without benefit of our decisions
in Healdsburg Union High School District (6/19/80) PERB
Decision No. 132 and Rialto Unified School District (4/30/82)
PERB Decision No. 209, that only the effects of a decision to
transfer work from one bargaining unit to another was
negotiable. In Healdsburg, supra, we found that a District's
decision to subcontract work out of a bargaining unit is
negotiable so long as the subcontracting impacts upon a subject
within scope. In Rialto, supra, we held that a decision to
transfer work from one bargaining unit to another was
negotiable so long as it impacts upon a subject within the
scope of representation.
In the instant case, the District has removed positions
from the unit and terminated any possible recall from layoff
for these classified employees. In so doing it has denied
these employees actual or potential work opportunities. The
possibility of wages and hours associated with the
transferred-out work are similarly withdrawn. 	In addition to
Co
between 	the 	parties. 	We 	find 	no 	error 	in 	the 	conclusion 	of 	the
hearing 	officer 	and 	we 	affirm 	his 	findings 	of 	fact 	and
conclusions 	of 	law 	that 	the 	layoff 	decision 	was 	lawful 	under
the 	Act.
The 	Association 	contends 	that 	the 	District's 	decision 	to
transfer 	work 	out 	of 	its 	bargaining 	unit 	to 	the 	certificated
unit, 	is 	a 	mandatory 	subject 	of 	negotiations 	under 	the 	Act.
The 	hearing 	officer 	concluded, 	without 	benefit 	of 	our 	decisions
in Healdsburg 	Union 	High 	School 	District 	(6/19/80) 	PERB
Decision No. 	132 	and 	Rialto 	Unified 	School 	District 	(4/30/82)
PERB 	Decision 	No. 	20;19, 	that 	only 	the 	effects 	of 	a 	decision 	to
transfer 	work 	from 	one 	bargaining 	unit 	to 	another 	was
negotiable. 	In Healdsburg, 	supra, 	we 	found 	that 	a 	District's
decision 	to 	subcontract 	work 	out 	of 	a 	bargaining 	unit 	is
negotiable 	so 	long 	as 	the 	subcontracting 	impacts 	upon 	a 	subject
within 	scope. 	In 	Rialto, 	supra, 	we 	held 	that 	a 	decision 	to
transfer 	work 	from 	one 	bargaining 	unit 	to 	another 	was
negotiable 	so 	long 	as 	it 	impacts 	upon 	a 	subject 	within 	the
scope 	of 	representation.
In 	the 	instant 	case, 	the 	District 	has 	removed 	positions
from 	the 	unit 	and 	terminated 	any 	possible 	recall 	from 	layoff
for 	these 	classified 	employees. 	In 	so 	doing 	it 	has 	denied
these 	employees 	actual 	or 	potential 	work 	opportunities. 	The
possibility 	of 	wages 	and 	hours 	associated 	with 	the
transferred-out 	work 	are 	similarly 	withdrawn. 	In 	addition 	to
8

these effects, the diminution of unit work by transferring
functions weakens the collective strength of employees in the
unit. We therefore conclude that the District violated
subsections 3543.5 (b) and (c) when it unilaterally transferred
the unit work of classified employees who occupied the
positions of Off-Campus Representatives and Student Services
Specialist/Tutoring Center to the certificated unit employees.
The same conduct that denied to the employee organization
rights provided in the EERA also constituted a concurrent
deprivation of the right to representation, concerning matters
within the scope of representation, thereby violating
subsection 3543.5(a) . San Francisco Community College District
(10/12/79) PERB Decision No. 105; Oakland Unified School
District (4/23/80) PERB Decision No. 126.
The District asserted two additional defenses for its
unilateral action. Since we have concluded that the District
has a statutory obligation to meet and negotiate over the
decision to transfer unit work, we therefore find it
appropriate to address the defenses invoked by the District.
First, the District offers that the "management rights"
clause of the contract reserved the decision to the District. 6
6Article XXIV, Management Rights, states:
24.1 The District, on its own behalf and on
behalf of the residents thereof, hereby
retains and reserves unto itself, without
9
these 	effects, 	the 	diminution 	of 	unit 	work 	by 	transferring
functions 	weakens 	the 	collective 	strength 	of 	employees 	in 	the
unit. 	We 	therefore 	conclude 	that 	the 	District 	violated
subsections 	3543.5(b) 	and 	(c) 	when 	it 	unilaterally 	transferred
the 	unit 	work 	of 	classified 	employees 	who 	occupied 	the
positions 	of 	Off-Campus 	Representatives 	and 	Student 	Services
Specialist/Tutoring 	Center 	to 	the 	certificated 	unit 	employees.
The 	same 	conduct 	that 	denied 	to 	the 	employee 	organization
rights 	provided 	in 	the 	EERA 	also 	constituted 	a 	concurrent
deprivation 	of 	the 	right 	to 	representation, 	concerning 	matters
within 	the 	scope 	of 	representation, thereby 	violating
subsection 	3543.S(a). 	San 	Francisco Community College 	District
(10/12/79) 	PERB 	Decision No. 	105; 	Oakland 	Unified 	School
District 	(4/23/80) 	PERB 	Decision 	No. 	126.
The 	District 	asserted 	two 	additional 	defenses 	for 	its
unilateral 	action. 	Since 	we 	have 	concluded 	that 	the 	District
has 	a 	statutory 	obligation 	to 	meet 	and 	negotiate 	over 	the
decision 	to 	transfer 	unit 	work, 	we 	therefore 	find 	it
appropriate 	to 	address 	the 	defenses 	invoked 	by 	the 	District.
First, 	the 	District 	offers 	that 	the 	"management 	rights"
clause 	of 	the 	contract 	reserved 	the 	decision 	to 	the 	District.6
6Article 	XXIV, 	Management 	Rights, 	states:
24.1 	The 	District, 	on 	its 	own 	behalf 	and 	on
behalf 	of 	the 	residents 	thereof, 	hereby
retains 	and 	reserves 	unto 	itself, 	without
9

The hearing officer concluded that the District did not meet
its burden of proving a waiver of the right to negotiate as a
limitation, all powers, rights, authority,
duties, and responsibilities conferred upon
and vested in it by the laws and the
Constitution of the State of California, and
of the United States, including, but without
limiting the generality of the foregoing,
the right:
To the District management, administrative
control of the District and its properties
and facilities, and to direct the work of
its employees; except as otherwise modified
by the agreement.
To hire all employees, and, subject to the
provisions of the law, to determine their
qualifications and the conditions for their
continued employment, discipline, dismissal,
or demotion; and to promote, assign, and
transfer all such employees: 	except as
otherwise modified by this agreement. 	To
establish educational policies, goals, and
objectives; to insure rights and educational
opportunities of students; to determine
staffing patterns; to determine the number
and kinds of personnel required in order to
maintain the efficiency of District
operation, except as modified by this
agreement; and
To build, move, or modify facilities;
establish budget procedures and determine
budgetary allocation; determine the methods
of raising revenue.
24.2 The exercise of the foregoing powers,
rights, authority, duties, and
responsibilities of the District, the
adoption of policies, rules, regulations and
practices in furtherance thereof, and the
use of judgement and discretion in
connection therewith shall be limited only
by the specific and express terms of this
10
The 	hearing 	officer 	concluded 	that 	the 	District 	did 	not 	meet
its 	burden 	of 	proving 	a 	waiver 	of 	the 	right 	to 	negotiate 	as 	a
limitation, 	all 	powers, 	rights, 	authority,
duties, 	and 	responsibilities 	conferred 	upon
and 	vested 	in 	it 	by 	the 	laws 	and 	the
Constitution of 	the 	State 	of 	California, 	and
of 	the 	United 	States, 	including, 	but 	without
limiting 	the 	generality 	of 	the 	foregoing,
the 	right:
To 	the 	District 	management, 	administrative
control 	of 	the 	District 	and 	its 	properties
and 	facilities, 	and 	to 	direct 	the 	work 	of
its 	employees; 	except 	as 	otherwise 	modified
by 	the 	agreement.
To 	hire 	all 	employees, 	and, 	subject 	to 	the
provisions 	of 	the 	law, 	to 	determine 	their
qualifications 	and 	the 	conditions 	for 	their
continued 	employment, 	discipline, 	dismissal,
or 	demotion; 	and 	to 	promote, 	assign, 	and
transfer 	all 	such 	employees: 	except 	as
otherwise 	modified 	by 	this 	agreement. 	To
establish 	educational 	policies, 	goals, 	and
objectives; 	to 	insure 	rights 	and 	educational
opportunities 	of 	students; 	to 	determine
staffing 	patterns; 	to 	determine 	the 	number
and 	kinds 	of 	personnel 	required 	in 	order 	to
maintain 	the 	efficiency 	of 	District
operation, 	except 	as 	modified 	by 	this
agreement; 	and
To 	build, 	move, 	or 	modify 	facilities;
establish 	budget 	procedures 	and 	determine
budgetary 	allocation: 	determine 	the 	methods
of 	raising 	revenue.
24.2 	The 	exercise 	of 	the 	foregoing 	powers,
rights, 	authority, 	duties, 	and
responsibilities 	of 	the 	District, 	the
adoption 	of 	policies, 	rules, 	regulations 	and
practices 	in 	furtherance 	thereof, 	and 	the
use 	of 	judgement 	and 	discretion 	in
connection 	therewith 	shall 	be 	limited 	only
by 	the 	specific 	and 	express 	terms 	of 	this
10

result of this provision. In order for a waiver of a statutory
right to be found, the District must prove the waiver by either
clear and unmistakable language or demonstrable behavior
amounting to a waiver of the right to meet and negotiate.
Sutter Union High School District (10/7/81) PERB Decision
No. 175; Amador Valley Joint Union High School District
(10/2/78) PERB Decision No. 74; San Mateo County Community
College District (6/8/79) PERB Decision No. 94. Even though
the Association has conceded certain rights to the District by
way of this provision, we find no specific language covering
the transfer of work from the unit, nor do we find evidence to
indicate any demonstrable behavior by the Association evincing
a waiver . 	We affirm the findings and conclusion of the hearing
officer that there was no waiver.
The second defense offered is an amalgam of component
arguments that have at their core an assertion by the District
that it was under a statutory compulsion to transfer this
work. 	This argument includes allegations that the Education
Code compelled the District to take this action, because of a
provision that arguably requires certificated employees to
perform some professional type duties associated with these
agreement and then only to the extent such
specific and express terms hereof are in
conformance with the Constitution and laws
of the State of California and the laws of
the United States.
11
result 	of 	this 	provisio~. 	In 	order 	for 	a 	waiver 	of 	a 	statutory
right 	to 	be 	found, 	the 	District 	must 	prove 	the 	waiver 	by 	either
clear 	and 	unmistakable 	language 	or 	demonstrable 	behavior
amounting 	to 	a 	waiver 	of 	the 	right 	to 	meet 	and 	negotiate.
Sutter 	Union High 	School 	District 	(10/7/81) 	PERB 	Decision
No. 	175; 	Amador 	Valley 	Joint 	Union 	High 	School 	District
(10/2/78) 	PERB 	Decision No. 	74; 	San Mateo 	County 	Community
College 	District 	(6/8/79) 	PERB 	Decision 	No. 	94. 	Even 	though
the 	Association 	has 	conceded 	certain 	rights 	to 	the 	District 	by
way 	of 	this 	provision, 	we 	find 	no 	specific 	language 	covering
the 	transfer 	of 	work 	from 	the 	unit, 	nor 	do 	we 	find 	evidence 	to
indicate 	any 	demonstrable 	behavior 	by 	the 	Association 	evincing
a 	waiver. 	We 	affirm 	the 	findings 	and 	conclusion 	of 	the 	hearing
officer 	that 	there 	was 	no 	waiver.
agreement 	and 	then 	only 	to 	the 	extent 	such
specific 	and 	express 	terms 	hereof 	are 	in
conformance 	with 	the 	Constitution 	and 	laws
of 	the 	State 	of 	California 	and 	the 	laws 	of
the 	United 	States.
The 	second 	defense 	offered 	is 	an 	amalgam of 	component
arguments 	that 	have 	at 	their 	core 	an 	assertion 	by 	the 	District
that 	it 	was 	under 	a 	statutory 	compulsion 	to 	transfer 	this
work. 	This 	argument 	includes 	allegations 	that 	the 	Education
Code 	compelled 	the 	District 	to 	take 	this 	action, 	because 	of 	a
provision 	that 	arguably 	requires 	certificated 	employees 	to
perform 	some 	professional 	type 	duties 	associated 	with 	these
11

positions. The District also asserts that the Association is
attempting to usurp, in a surreptitious manner, a management
right and attempt to negotiate job descriptions. Finally, the
District contends the Association was also trying to negotiate
for certificated positions that were not in its unit instead of
following the available procedure to petition for unit
modification. The District, however, did not meet its burden
of proving any of these defenses.
The District first asserts that it was under a statutory
compulsion to fill these positions with certificated
employees. It bases this argument on certain Education Code
provisions that the District interprets as compelling it to use
certificated personnel in the disputed job classifications. 7
In Jefferson School District (6/19/80) PERB Decision
No. 133, the District claimed that, pursuant to the
7In support of this defense the District cites Education
Code sections 87002, 87400, 88004 and the Average Daily
Attendance letter referred to in footnote 2. None of these
provisions expressly mandate that the District take this
action. Education Code section 72620 does require that
individuals who perform, as part of a counseling program,
counseling services must be assigned specific times to perform
those services and must possess a valid credential with
specialization in student personnel services. Nothing in the
record demonstrates that these positions are within the
parameters of this Education Code provision and are part of a
counseling program. We therefore must conclude that the
District failed to meet its burden of proof.
12
positions. 	The 	District 	also 	asserts 	that 	the 	Association 	is
attempting 	to 	usurp, 	in 	a 	surreptitious 	manner, 	a 	management
right 	and 	attempt 	to 	negotiate 	job 	descriptions. 	Finally, 	the
District 	contends 	the 	Association 	was 	also 	trying 	to 	negotiate
for 	certificated 	positions 	that 	were 	not 	in 	its 	unit 	instead 	of
following 	the 	available 	procedure 	to 	petition 	for 	unit
modification. 	The 	District, 	however, 	did 	not 	meet 	its 	burden
of 	proving 	any 	of 	these 	defenses.
The 	District 	first 	asserts 	that 	it 	was 	under 	a 	statutory
compulsion 	to 	fill 	these 	positions 	with 	certificated
employees. 	It 	bases 	this 	argument 	on 	certain 	Education 	Code
provisions 	that 	the 	District 	interprets 	as 	compelling 	it 	to 	use
certificated 	personnel 	in 	the 	disputed 	job classifications.7
In 	Jefferson 	School 	District 	(6/19/80) 	PERB 	Decision
No. 	133, 	the 	District 	claimed 	that, 	pursuant 	to 	the
7rn 	support 	of 	this 	defense 	the 	District 	cites 	Education
Code 	sections 	87002, 	87400, 	88004 	and 	the 	Average 	Daily
Attendance 	letter 	referred 	to 	in 	footnote 	2. 	None 	of 	these
provisions 	expressly 	mandate 	that 	the 	District 	take 	this
action. 	Education 	Code 	section 	72620 	does 	require 	that
individuals 	who 	perform, 	as 	part 	of 	a 	counseling 	program,
counseling 	services 	must 	be 	assigned 	specific 	times 	to 	perform
those 	services 	and 	must 	possess 	a 	valid 	credential 	with
specialization 	in 	student 	personnel 	services. 	Nothing 	in 	the
record 	demonstrates 	that 	these 	positions 	are 	within 	the
parameters 	of 	this 	Education 	Code 	provision 	and 	are 	part 	of 	a
counseling 	program. 	We 	therefore 	must 	conclude 	that 	the
District 	failed 	to 	meet 	its 	burden 	of 	proof.
12

"supersession" provision of section 3540 of the Act, 8 a
proposal otherwise within the scope of representation is not
negotiable where the subject matter is also covered by an
Education Code provision.
Section 3540 is derived from and is substantially identical
to the supersession clause in the Winton Act, former Education
Code section 13080.9 This provision has received clear
judicial interpretation. In Certificated Employees Council v.
Monterey Peninsula Unified School District (1974) 42 Cal. App. 3d
328, the court rejected the District's position that the
supersession clause precluded consultations regarding subjects
that were also covered by the provisions of the Education
8Section 3540 of the EERA provides in relevant part:
Nothing contained herein shall be deemed to
supersede other provisions of the Education
Code and the rules and regulations of public
school employers which establish and
regulate tenure or a merit or civil service
system or which provide for other methods of
administering employer-employee
relations, . 	. or other methods of the
public school employer do not conflict with
lawful collective agreements.
9The Winton Act provided:
Nothing contained herein shall be deemed to
supersede other provisions of this code and
the rules and regulation of public school
employers which establish a regular tenure
or a merit or civil service system, or which
provide for other methods of administering
employer-employee relations.
13
"supersession" 	provision 	of 	section 	3540 	of 	the 	Act,8 	a
proposal 	otherwise 	within 	the 	scope 	of 	representation 	is 	not
negotiable 	where 	the 	subject 	matter 	is 	also 	covered 	by 	an
Education 	Code 	provision.
Section 	3540 	is 	derived 	from 	and 	is 	substantially 	identical
to 	the 	supersession 	clause 	in 	the 	Winton Act, 	former 	Education
Code 	section 	13080.9 	This 	provision 	has 	received 	clear
judicial 	interpretation. 	In 	Certificated Employees 	Council 	v.
Monterey 	Peninsula Unified 	School 	District 	(1974) 	42 	Cal.App.3d
328, 	the 	court 	rejected 	the 	District's 	position 	that 	the
supersession 	clause 	precluded 	consultations 	regarding 	subjects
that 	were 	also 	covered 	by 	the 	provisions 	of 	the 	Education
Bsection 	3540 	of 	the 	EERA 	provides 	in 	relevant 	part:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	the 	Education
Code 	and 	the 	rules 	and 	regulations 	of 	public
school 	employers 	which 	establish 	and
regulate 	tenure 	or 	a 	merit 	or 	civil 	service
system 	or 	which 	provide 	for 	other 	methods 	of
administering 	employer-employee
relations, 	•.• 	or 	other 	methods 	of 	the
public 	school 	employer 	do 	not 	conflict 	with
lawful 	collective 	agreements.
9The 	Winton 	Act 	provided:
Nothing 	contained 	herein 	shall 	be 	deemed 	to
supersede 	other 	provisions 	of 	this 	code 	and
the 	rules 	and 	regulation 	of 	public 	school
employers 	which 	establish 	a 	regular 	tenure
or 	a 	merit 	or 	civil 	service 	system, 	or 	which
provide 	for 	other 	methods 	of 	administering
employer-employee 	relations.
13

Code. 	The Monterey School District argued that its unilateral
promulgateon of tenure guidelines was exempt from the meet and
confer requirements of the Winton Act because the subject of
tenure guidelines was addressed in other portions of the
Education Code. The court held that other Education Code
provisions were to be "harmonized" whenever possible with the
Winton Act's meet and confer requirement. The court stated
that it treated the Education Code provisions regarding tenure
as "a mandatory minimum" that could exist not in exclusion of
but in addition to the meet and confer process. The court
concluded that the meet and confer provision would not be set
aside unless "the language of the two statutory enactments
cannot be harmonized." 42 Cal. App. 3d, at 333.
Accordingly, the Legislature, in readopting the
supersession clause of the Winton Act as section 3540 of the
EERA, is presumed to have knowledge of and acquiesced in the
judicial construction given to the provision. Kaplan's Fruit
and Produce Co. v. Superior Court (1979) 26 Cal. 3d 60, 75.
Here the District urges us to find that negotiations
concerning the transfer of these classified positions are not
required. It argues that, because provisions of the Education
Code require personnel who perform counseling as part of a
counseling program to possess a credential, they are precluded
from negotiating over their decision to transfer the Off-Campus
Representative and Student Services Specialist work.
14
Code. 	The Monterey 	School 	District 	argued 	that 	its 	unilateral
promulgation 	of 	tenure 	guidelines 	was 	exempt 	from 	the 	meet 	and
confer 	requirements 	of 	the 	Winton Act 	because 	the 	subject 	of
tenure 	guidelines 	was 	addressed 	in 	other 	portions 	of 	the
Education Code. 	The 	court 	held 	that 	other 	Education Code
provisions 	were 	to 	be 	"harmonized" 	whenever 	possible 	with 	the
Winton Act's 	meet 	and 	confer 	requirement. 	The 	court 	stated
that 	it 	treated 	the 	Education 	Code 	provisions 	regarding 	tenure
as 	"a 	mandatory 	minimum" 	that 	could 	exist 	not 	in 	exclusion 	of
but 	in 	addition 	to 	the 	meet 	and 	confer 	process. 	The 	court
concluded 	that 	the 	meet 	and 	confer 	provision 	would 	not 	be 	set
aside 	unless 	"the 	language 	of 	the 	two 	statutory 	enactments
cannot 	be 	harmonized." 	42 	Cal.App.3d, 	at 	333.
Accordingly, 	the 	Legislature, 	in 	readopting 	the
supersession 	clause 	of 	the 	Winton Act 	as 	section 	3540 	of 	the
EERA, 	is 	presumed 	to 	have 	knowledge 	of 	and 	acquiesced 	in 	the
judicial 	construction 	given 	to 	the 	provision. 	Kaplan's 	Fruit
and 	Produce 	Co. 	v. 	Superior 	Court 	(1979) 	26 	Cal.3d 	60, 	75.
Here 	the 	District 	urges 	us 	to 	find 	that 	negotiations
concerning 	the 	transfer 	of 	these 	classified 	positions 	are 	not
required. 	It 	argues 	that, 	because 	of 	the 	Education
Code 	require 	personnel 	who 	perform 	counseling 	as 	part 	of 	a
counseling 	program 	to 	possess 	a 	credential, 	they 	are 	precluded
from 	negotiating 	over 	their 	decision 	to 	transfer 	the 	Off-Campus
Representative 	and 	Student 	Services 	Specialist 	work.
14

Heeding the Court's admonition to harmonize wherever
possible, we find that the District was not compelled to
transfer this work nor was it relieved by the Education Code
from the obligation to negotiate over the decision to transfer
work out of the bargaining unit. The District failed to meet
its burden of establishing that these positions had to be
occupied by certificated personnel because the services were in
fact part of a counseling program within the meaning of the
Education Code. We additionally note that, because the
Association and District could have harmonized any Education
Code concerns with the statutory duty to negotiate, they may
well have developed some alternative for the performance of the
duties associated with these jobs. We do not specify these
alternatives; rather, we leave resolution to the parties by
requiring them only to meet and negotiate over a possible
solution to the transfer of the classified unit work to the
certificated unit.
The last defense offered is the District's assertion that
the Association is seeking to negotiate over three certificated
counselor positions when another employee organization is the
exclusive representative. The District argues that the
Association does not represent employees in these certificated
positions and, if the Association wants representation rights,
it should file a unit certification/modification petition. 	We
15
Heeding 	the 	Court's 	admonition 	to 	harmonize 	wherever
possible, 	we 	find 	that 	the 	District 	was 	not 	compelled 	to
transfer 	this 	work 	nor 	was 	it 	relieved 	by 	the 	Education 	Code
from 	the 	obligation 	to 	negotiate 	over 	the 	decision 	to 	transfer
work 	out 	of 	the 	bargaining 	unit. 	The 	District 	failed 	to 	meet
its 	burden 	of 	establishing 	that 	these 	positions 	had 	to 	be
occupied 	by 	certificated 	personnel 	because 	the 	services 	were 	in
fact 	part 	of 	a 	counseling 	program 	within 	the 	meaning 	of 	the
Education Code. 	We 	additionally 	note 	that, 	because 	the
Association 	and 	District 	could 	have 	harmonized 	any 	Education
Code 	concerns 	with 	the 	statutory 	duty 	to 	negotiate, 	they 	may
well 	have 	developed 	some 	alternative 	for 	the 	performance 	of 	the
duties 	associated 	with 	these 	jobs. 	We 	do 	not 	specify 	these
alternatives; 	rather, 	we 	leave 	resolution 	to 	the 	parties 	by
requiring 	them 	only 	to 	meet 	and 	negotiate 	over 	a 	possible
solution 	to 	the 	transfer 	of 	the 	classified 	unit 	work 	to 	the
certificated 	unit.
The 	last 	defense 	offered 	is 	the 	District's 	assertion 	that
the 	Association 	is 	seeking 	to 	negotiate 	over 	three 	certificated
counselor 	positions 	when 	another 	employee 	organization 	is 	the
exclusive 	representative. 	The 	District 	argues 	that 	the
Association 	does 	not 	represent 	employees 	in 	these 	certificated
positions 	and, 	if 	the 	Association 	wants 	representation 	rights,
it 	should 	file 	a 	unit 	certification/modification 	petition. 	We
15

affirm the hearing officer's conclusions and holding rejecting
this defense.
THE REMEDY
The Association excepts to the failure of the hearing
officer to order the reinstatement of the three classified
employees to their former positions with full back pay. They
argue that the status quo ante requires reinstatement of
bargaining unit employees to the work they had been performing
and an award of back pay.
The hearing officer concluded that: the original decision
to lay off these employees, as well as the procedure the
District followed, was not improper. He found that there was
no basis to recommend their reinstatement. While we agree that
these employees were on a lawful layoff status at the time of
the District's illegal act, which was its failure to negotiate
the transfer of the unit work, they still possessed certain
legal rights which provide for their possible recall from the
layoff. We will therefore order that those recall rights be
reinstated.
We conclude that the District transferred the work of the
two Off-Campus Representatives and the one Student Services
Specialist/Tutoring Center out of the classified unit without
first meeting its duty to negotiate with the Association. 	We
find this is an infringement of employee rights, as it denies
the exclusive representative the opportunity to present and
16
affirm 	the 	hearing 	officer's 	conclusions 	and 	holding 	rejecting
this 	defense.
THE 	REMEDY
The 	Association 	excepts 	to 	the 	failure 	of 	the 	hearing
officer 	to 	order 	the 	reinstatement 	of 	the 	three 	classified
employees 	to 	their 	former 	positions 	with 	full 	back 	pay. 	They
argue 	that 	the 	status 	quo 	ante 	requires 	reinstatement 	of
bargaining 	unit 	employees 	to 	the 	work 	they 	had 	been 	performing
and 	an 	award 	of 	back 	pay.
The 	hearing 	officer 	concluded 	that: 	the 	original 	decision
to 	lay 	off 	these 	employees, 	as 	well 	as 	the 	procedure 	the
District 	followed, 	was 	not 	improper. 	He 	found 	that 	there 	was
no 	basis 	to 	recommend 	their 	reinstatement. 	While 	we 	agree 	that
these 	employees 	were 	on 	a 	lawful 	layoff 	status 	at 	the 	time 	of
the 	District's 	illegal 	act, 	which 	was 	its 	failure 	to 	negotiate
the 	transfer 	of 	the 	unit 	work, 	they 	still 	possessed 	certain
legal 	rights 	which 	provide 	for 	their 	possible 	recall 	from 	the
layoff. 	We 	will 	therefore 	order 	that 	those 	recall 	rights 	be
reinstated.
We 	conclude 	that 	the 	District 	transferred 	the 	work 	of 	the
two Off-Campus 	Representatives 	and 	the 	one 	Student 	Services
Specialist/Tutoring 	Center 	out 	of 	the 	classified 	unit 	without
first 	meeting 	its 	duty 	to 	negotiate 	with 	the Association. 	We
find 	this 	is 	an 	infringement 	of 	employee 	rights, 	as 	it 	denies
the 	exclusive 	representative 	the 	opportunity 	to 	present 	and
16

negotiate possible alternatives to the District's action, and
to negotiate the effect of the transfer of work.
We note that new employees have been working in these
positions since 1978. If the District were required to
transfer work back to the classified unit, it might be required
to lay off these employees in midterm, causing considerable
disruption of the services rendered.
Under the circumstances of this case, including the lapse
of time and the placement of new employees in these positions,
it is impossible to reestablish a situation equivalent to that
which would have prevailed had the District more timely
fulfilled its statutory bargaining obligation. We deem it
necessary, in order to effectuate the purposes of the Act, to
require the District to bargain with the Association concerning
the decision to transfer this work to the certificated unit.
Under the present circumstances, however, a bargaining order
alone cannot serve as an adequate remedy . 10
Therefore, in order to assure meaningful bargaining and to
effectuate the purposes of the Act, we shall accompany our
order to bargain with a limited back pay requirement designed
to both make whole the employees for losses suffered by this
10See Transmarine Navigation Corporation (1968)
17 NLRB 389; Royal Plating and Polishing Co. (1967)
160 NLRB 990.
17
negotiate 	possible 	alternatives 	to 	the 	District's 	action, 	and
to 	negotiate 	the 	effect 	of 	the 	transfer 	of 	work.
We 	note 	that 	new 	employees 	have 	been 	working 	in 	these
positions 	since 	1978. 	If 	the 	District 	were 	required 	to
transfer 	work 	back 	to 	the 	classified 	unit, 	it 	might 	be 	required
to 	lay 	off 	these 	employees 	in 	midterm, 	causing 	considerable
disruption 	of 	the 	services 	rendered.
Under 	the 	circumstances 	of 	this 	case, 	including 	the 	lapse
of 	time 	and 	the 	placement 	of 	new 	employees 	in 	these 	positions,
it 	is 	impossible 	to 	reestablish 	a 	situation 	equivalent 	to 	that
which 	would 	have 	prevailed 	had 	the 	District 	more 	timely
fulfilled 	its 	statutory 	bargaining 	obligation. 	We 	deem 	it
necessary, 	in 	order 	to 	effectuate 	the 	purposes 	of 	the 	Act, 	to
require 	the 	District 	to 	bargain 	with 	the 	Association 	concerning
the 	decision 	to 	transfer 	this 	work 	to 	the 	certificated 	unit.
Under 	the 	present 	circumstances, 	however, 	a 	bargaining 	order
alone 	cannot 	serve 	as 	an 	adequate 	remedy.10
Therefore, 	in 	order 	to 	assure 	meaningful 	bargaining 	and 	to
effectuate 	the 	purposes 	of 	the 	Act, 	we 	shall 	accompany 	our
order 	to 	bargain 	with 	a 	limited 	back 	pay 	requirement 	designed
to 	both 	make 	whole 	the 	employees 	for 	losses 	suffered 	by 	this
lOsee 	Transmarine 	Navigation 	Cor~oration 	(1968)
17 	NLRB 	389; 	Royal 	Plating 	and 	Polis 	Irig'co: 	{1967)
160 	NLRB 	990.
17

violation, and to recreate in some practicable manner a
situation in which the parties' bargaining position is closely
akin to what it would have been absent this violation.
Accordingly, we order the District to bargain with the
Association, upon request, over the decision to transfer this
work as well as the effects thereof and to pay to the three
affected classified employees an amount, at the rate of their
normal wages when last in the respondent's employ, which equals
pay from 5 days of service of this Decision until the
occurrence of the earliest of the following conditions: (1) the
date the District bargains to agreement with the Association
over the decision to transfer the unit's work; (2) a bona fide
impasse is declared; (3) the failure of the Association to
request bargaining within 5 days of service of this Decision or
to commence negotiations within 4 days of the District's notice
of its desire to negotiate with the Association; or (4) the
subsequent failure of the Association to negotiate in good
faith; but in no event shall the sum paid to any of these
employees exceed the amount they would have earned as wages
from August 4, 1978, the date on which the District terminated
these positions, to the time they secured or refused equivalent
employment elsewhere, provided, however, that in no event shall
this sum be less than these employees would have earned for a
two-week period at the rate of their normal wages when last in
respondent's employ.
18
violation, 	and 	to 	recreate 	in 	some 	practicable 	manner 	a
situation 	in 	which 	the 	parties' 	bargaining 	position 	is 	closely
akin 	to 	what 	it 	would 	have 	been 	absent 	this 	violation.
Accordingly, 	we 	order 	the 	District 	to 	bargain 	with 	the
Association, 	upon 	request, 	over 	the 	decision 	to 	transfer 	this
work 	as 	well 	as 	the 	effects 	thereof 	and 	to 	pay 	to 	the 	three
affected 	classified 	employees 	an 	amount, 	at 	the 	rate 	of 	their
normal 	wages 	when 	last 	in 	the 	respondent's 	employ, 	which 	equals
pay 	from 	5 days 	of 	service 	of 	this 	Decision 	until 	the
occurrence 	of 	the 	earliest 	of 	the 	following 	conditions: 	(1) 	the
date 	the 	District 	bargains 	to 	agreement 	with 	the 	Association
over 	the 	decision 	to 	transfer 	the 	unit's 	work; 	(2) 	a 	bona 	fide
impasse 	is 	declared; 	(3) 	the 	failure 	of 	the 	Association 	to
request 	bargaining 	within 	5 days 	of 	service 	of 	this 	Decision 	or
to 	commence 	negotiations 	within 	4 	days 	of 	the 	District's 	notice
of 	its 	desire 	to 	negotiate 	with 	the 	Association; 	or 	(4) 	the
subsequent 	failure 	of 	the 	Association 	to 	negotiate 	in 	good
faith; 	but 	in 	no 	event 	shall 	the 	sum 	paid 	to 	any 	of 	these
employees 	exceed 	the 	amount 	they 	would 	have 	earned 	as 	wages
from 	August 	4, 	1978, 	the 	date 	on 	which 	the 	District 	terminated
these 	positions, 	to 	the 	time 	they 	secured 	or 	refused 	equivdle11t
employment 	elsewhere, 	provided, 	however, 	that 	in 	no 	event 	shall
this 	sum 	be 	less 	than 	these 	employees 	would 	have 	earned 	for 	a
two-week 	period 	at 	the 	rate 	of 	their 	normal 	wages 	when 	last 	in
respondent's 	employ.
18

ORDER
Pursuant to subsections 3541.5 (a) , (b) , and (c) , and based
upon the foregoing findings of fact, conclusions of law, and
the entire record in the case, the Public Employment Relations
Board hereby ORDERS that the Solano County Community College
District shall:
A. 	CEASE AND DESIST FROM VIOLATING SUBSECTIONS 3543. 5 (a) , (b) ,
AND (C) BY:
1 . 	Making unilateral changes in the terms and conditions
of employment in the classified unit without prior notice to
the Association and without providing an opportunity to
negotiate, with particular reference to transferring unit work.
2. 	Failing and refusing to meet and negotiate regarding
the transfer of Association work, thus denying the Association
its right to represent unit members.
3 . 	Interfering with employees because of their exercise
of their right to select an exclusive representative to meet
and negotiate with the employer concerning the unilateral
transfer of unit work, when such action affects matters within
the scope of representation, without offering to the exclusive
representative the opportunity for meeting and negotiating.
B. 	THE BOARD FURTHER ORDERS THE DISTRICT TO TAKE THE FOLLOWING
AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF
THE EDUCATIONAL EMPLOYMENT RELATIONS ACT:
1 . 	Upon request of the Association, meet and negotiate
with the Association over the decision and effects thereof of
19
ORDER
Pursuant 	to 	subsections 	3541.S(a), 	(b), 	and 	(c), 	and 	based
upon 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law, 	and
the 	entire 	record 	in 	the 	case, 	the 	Public Employment 	Relations
Board 	hereby 	ORDERS 	that 	the 	Solano County Community College
District 	shall:
A. 	CEASE 	AND 	DESIST 	FROM VIOLATING SUBSECTIONS 	3543.S(a), 	(b),
AND 	(C) 	BY:
1. 	Making 	unilateral 	changes 	in 	the 	terms 	and 	conditions
of 	employment 	in 	the 	classified 	unit 	without 	prior 	notice 	to
the 	Association 	and 	without 	providing 	an 	opportunity 	to
negotiate, 	with 	particular 	reference 	to 	transferring 	unit 	work.
2. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	regarding
the 	transfer 	of 	Association 	work, 	thus 	denying 	the 	Association
its 	right 	to 	represent 	unit 	members.
3. 	Interfering 	with 	employees 	because 	of 	their 	exercise
of 	their 	right 	to 	select 	an 	exclusive 	representative 	to 	meet
and 	negotiate 	with 	the 	employer 	concerning 	the 	unilateral
transfer 	of 	unit 	work, 	when 	such 	action 	affects 	matters 	within
the 	scope 	of 	representation, 	without 	offering 	to 	the 	exclusive
representative 	the 	opportunity 	for 	meeting 	and 	negotiating.
B. 	THE 	BOARD 	FURTHER ORDERS 	THE 	DISTRICT 	TO 	TAKE 	THE 	FOLLOWING
AFFIRMATIVE 	ACTIONS 	DESIGNED TO EFFECTUATE 	THE 	POLICIES 	OF
THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS 	ACT:
1. 	Upon 	request 	of 	the 	Association, 	meet 	and 	negotiate
with 	the 	Association 	over 	the 	decision 	and 	effects 	thereof 	of
19

transferring the Off-Campus Representative and Student Services
Specialist/Tutoring Center from the classified unit.
2. Pay the affected classified employees their normal
wages for the period set forth in this Decision.
3. Within five days of service of this Decision post at
all school sites, and all other work locations where notices to
employees customarily are placed, immediately upon receipt
thereof, copies of the Notice attached as an appendix hereto.
Such posting shall be maintained for a period of 30 consecutive
workdays. 	Reasonable steps shall be taken to ensure that said
notices are not reduced in size, altered, defaced or covered by
any other material.
4. Notify the San Francisco regional director of the
Public Employment Relations Board, in writing, within 20
calendar days of service of this decision, of the steps the
District has taken to comply herewith.
This ORDER shall become effective immediately upon service
of a true copy thereof on the Solano County Community College
District.
By: Mohn Jaeger ,/ Member
Marty Morgenstern, Member
Chairperson Gluck's dissent begins on page 21.
20
I
transferring 	the 	Off-Campus 	Representative 	and 	Student 	Services
Specialist/Tutoring 	Center 	from 	the 	classified 	unit.
2. 	Pay 	the 	affected 	classified 	employees 	their 	normal
wages 	for 	the 	period 	set 	forth 	in 	this 	Decision.
3. 	Within 	five 	days 	of 	service 	of 	this 	Decision 	post 	at
all 	school 	sites, 	and 	all 	other 	work 	locations 	where 	notices 	to
employees 	customarily 	are 	placed, 	immediately 	upon 	receipt
thereof, 	copies 	of 	the 	Notice 	attached 	as 	an 	appendix 	hereto.
Such 	posting 	shall 	be 	maintained 	for 	a 	period 	of 	30 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken 	to 	ensure 	that 	said
notices 	are 	not 	reduced 	in 	size, 	altered, 	defaced 	or 	covered 	by
any 	other 	material.
4. 	Notify 	the 	San 	Francisco 	regional 	director 	of 	the
Public 	Employment 	Relations 	Board, 	in 	writing, 	within 	20
calendar 	days 	of 	service 	of 	this 	decision, 	of 	the 	steps 	the
District 	has 	taken 	to 	comply 	herewith.
This 	ORDER 	shall 	become 	effective 	immediately 	upon 	service
of 	a 	true 	copy 	thereof 	on 	the 	Solano County 	Community 	College
District.
Bv~hn 	Jaeger,/ M~mber
Marty 	Morgenste4n 	Member	1
Chairperson 	Gluck's 	dissent 	begins 	on 	page 	21.
20

Harry Gluck, Chairperson, dissenting:
The District contends that certain Education Code
provisions mandate that the contested work be performed by
certificated employees. The majority here finds that the
District has failed to offer proof that the work involves a
counseling program within the contemplation of the Code.
Indeed, the District's case in this regard lacks substance,
possibly because it expected this Board to make the
determination based on the evidence of the job content.
Nevertheless, it would be regrettable if the Board were to
require that the District choose between violating our Order or
the Education Code. I believe it is appropriate therefore that
this single issue be remanded to permit evidence and argument
on the applicability of the Education Code provisions in
question.
I am further influenced by the fallacy I perceive in the
majority's view that the Code and EERA can be "harmonized"
through the process of negotiations. If the transfer of this
work is mandated by an adamantine Code provision, then the
employer is under no obligation to negotiate.I ordering
1where the Education Code "mandates a specific and
unalterable policy," that policy is not subject to the
obligation of good-faith negotiations. Jefferson Unified
School District, supra, p. 8.
21
Harry Gluck, 	Chairperson, 	dissenting:
The 	District 	contends 	that 	certain 	Education 	Code
provisions 	mandate 	that 	the 	contested 	work 	be 	performed 	by
certificated 	employees. 	The 	majority 	here 	finds 	that 	the
District 	has 	failed 	to 	offer 	proof 	that 	the 	work 	involves 	a
counseling 	program 	within 	the 	contemplation 	of 	the 	Code.
Indeed, 	the 	District's 	case 	in 	this 	regard 	lacks 	substance,
possibly 	because 	it 	expected 	this 	Board 	to 	make 	the
determination 	based 	on 	the 	evidence 	of 	the 	job 	content.
Nevertheless, 	it 	would 	be 	regrettable 	if 	the 	Board 	were 	to
require 	that 	the 	District 	choose 	between 	violating 	our 	Order 	or
the 	Education Code. 	I 	believe 	it 	is 	appropriate 	therefore 	that
this 	single 	issue 	be 	remanded 	to 	permit 	evidence 	and 	argument
on 	the 	applicability 	of 	the 	Education Code 	provisions 	in
question.
I 	am 	ther 	influenced 	by 	the 	f 	acy 	I 	rceive 	in 	the
majority's 	view 	that 	the 	Code 	and 	EERA can 	be 	11 harmonized 11
through 	the 	process 	of 	negotiations. 	If 	the 	transfer 	of 	this
work 	is 	mandated 	by 	an 	adamantine 	Code 	provision, 	then 	the
employer 	is 	under 	no 	obligation 	to 	negotiate. 1 	Ordering
lwhere 	the 	Education 	Code 	"mandates 	a 	specific 	and
unalterable 	policy," 	policy 	is 	not 	subject 	to
igation 	good-fai 	iat 	Jefferson 	Unifi
School 	District, 	supra,
21

the employer to do something which EERA exempts him from doing
is not a harmonizing directive.
22
Harry Gluck, Chairperson
the 	employer 	to 	do 	something 	which EERA 	exempts 	him 	from 	doing
is 	not 	a 	harmonizing 	directive.
22

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD,
An Agency of the State of California
After a hearing in Case No. SF-CE-337 in which all parties
had the right to participate, it has been found that the Solano
County Community College District violated the Educational
Employment Relations Act (Government Code subsections
3543.5 (a) , (b) and (c) ) by taking unilateral action with
respect to the transfer of work of the classified unit to the
certificated unit without meeting and negotiating in good faith
on the issue with the exicusive representative, the California
School Employees Association and its Solano College Chapter
#211, and by denying the California School Employees
Association and its Solano College Chapter #211 the right to
represent unit employees by failing and refusing to meet and
negotiate about matters within the scope of representation. As
a result of this conduct, we have been ordered to post this
notice, and to abide by the following:
WE WILL CEASE AND DESIST FROM:
1 . 	Failing and refusing, upon request, to meet and
negotiate in good faith with the California School Employees
Association and its Solano College Chapter 211, with respect to
matters within the scope of representation as defined in
Government Code section 3543.2, and specifically with respect
to the transfer of work previously performed by members of the
bargaining unit represented on an exclusive basis by the CSEA
to employees in another bargaining unit.
APPENDIX
NOTICE 	TO EMPLOYEES
POSTED BY 	ORDER OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD,
An Agency 	of 	the 	State 	of 	California
After 	a 	hearing 	in 	Case 	No. 	SF-CE-337 	in 	which 	all 	parties
had 	the 	right 	to 	participate, 	it 	has 	been 	found 	that 	the 	Solano
County Community College 	District 	violated 	the 	Educational
Employment 	Relations 	Act 	(Government 	Code 	subsections
3543.S(a), 	(b) 	and 	(c)) 	by 	taking 	unilateral 	action 	with
respect 	to 	the 	transfer 	of 	work 	of 	the 	classified 	unit 	to 	the
certificated 	unit 	without 	meeting 	and 	negotiating 	in 	good 	faith
on 	the 	issue 	with 	the 	exlcusive 	representative, 	the 	California
School Employees 	Association 	and 	its 	Solano 	College 	Chapter
#211, 	and 	by 	denying 	the 	California 	School 	Employees
Association 	and 	its 	Solano 	College 	Chapter 	1211 	the 	right 	to
represent 	unit 	employees 	by 	failing 	and 	refusing 	to 	meet 	and
negotiate 	about 	matters 	within 	the 	scope 	of 	representation. 	As
a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post 	this
notice, 	and 	to 	abide 	by 	the 	following:
WE 	WILL 	CEASE 	AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing, 	upon 	request, 	to 	meet 	and
negotiate 	in 	good 	faith 	with 	the 	California 	School 	Employees
Association 	and 	its 	Solano 	College 	Chapter 	211, 	with 	respect 	to
matters 	within 	the 	scope 	of 	representation 	as 	defined 	in
Government 	Code 	section 	3543.2, 	and 	specifically 	with 	respect
to 	the 	transfer 	of 	work 	previously 	performed 	by 	members 	of 	the
bargaining 	unit 	represented 	on 	an 	exclusive 	basis 	by 	the 	CSEA
to 	employees 	in 	another 	bargaining 	unit.
1

2. 	Denying the California School Employees Association
and its Solano College Chapter 211 the right to represent unit
employees by failing and refusing to meet and negotiate about
matters within the scope of representation as defined in
Government Code section 3543.2; and, specifically, with respect
to the transfer of work performed by members of the bargaining
unit represented on an exclusive basis by the California School
Employees Association to employees in another bargaining unit,
in violation of Government Code subsection 3543.5 (b) .
3. 	Failing and refusing to pay any classified employee
for the loss of compensation they suffered as a result of the
District's transfer of work for the period required by the
Decision of the Public Employment Relations Board.
4. 	Interfering with employees because of their exercise
of their right to select an exclusive representative to meet
and negotiate; specifically, with respect to the transfer of
work performed by members of the bargaining unit represented by
the Association.
Dated:
SOLANO COUNTY COMMUNITY COLLEGE
DISTRICT
By :
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED BY ANY MATERIAL.
2
2. 	Denying 	the 	California 	School 	Employees Association
and 	its 	Solano 	College 	Chapter 	211 	the 	right 	to 	represent 	unit
employees 	by 	failing 	and 	refusing 	to 	meet 	and 	negotiate 	about
matters 	within 	the 	scope 	of 	representation 	as 	defined 	in
Government 	Code 	section 	3543.2; 	and, 	specifically, 	with 	respect
to 	the 	transfer 	of 	work 	performed 	by 	members 	of 	the 	bargaining
unit 	represented 	on 	an 	exclusive 	basis 	by 	the 	California 	School
Employees 	Association 	to 	employees 	in 	another 	bargaining 	unit,
in 	violation 	of 	Government 	Code 	subsection 	3543.S(b).
3. 	Failing 	and 	refusing 	to 	pay 	any 	classified 	employee
for 	the 	loss 	of 	compensation 	they 	suffered 	as 	a 	result 	of 	the
District's 	transfer 	of 	work 	for 	the 	period 	required 	by 	the
Decision 	of 	the 	Public 	Employment 	Relations 	Board.
4. 	Interfering 	with 	employees 	because 	of 	their 	exercise
of 	their 	right 	to 	select 	an 	exclusive 	representative 	to 	meet
and 	negotiate; 	specifically, 	with 	respect 	to 	the 	transfer 	of
work 	performed 	by 	members 	of 	the 	bargaining 	unit 	represented 	by
the 	Association.
Dated:
SOLANO 	COUNTY 	COMMUNITY 	COLLEGE
DISTRICT
By:
Authorized Representative	Authorized 	Representative
THIS 	IS 	AN 	OFFICIAL 	CE. 	IT 	MUST
(30) 	CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND 	MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED 	OR 	COVERED BY ANY MATERIAL.
REMAIN 	POSTED 	FOR THIRTY
2