Lincoln Unified School District (PERB 0465E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS LINCOLN
CHAPTER #282,

Charging Party, Case No. S-CE-610
V. PERB Decision No. 465
LINCOLN UNIFIED SCHOOL DISTRICT, December 18, 1984

Respondent.

Appearances: Sally Talbot for Lincoln Unified School District;
Burton E. Gray for California School Employees Association and
its Lincoln Chapter #282.

Before Hesse, Chairperson; Tovar and Morgenstern, Members.
DECISION
HESSE, Chairperson: This case is before the Public

Employment Relations Board (PERB or Board) on exceptions filed
by the Lincoln Unified School District (District) to the
proposed decision, attached hereto, of a PERB hearing officer.
The hearing officer found that the District had violated
section 3543.5(c) and, derivatively, section 3543.5(a) and (b)

of the Educational Employment Relations Act (EERA) 1 by

1EERA is codified at Government Code section 3540 et
seq. All statutory references herein are to the Government
Code.

Section 3543.5 reads, in pertinent part, as follows:

It shall be unlawful for a public school
employer to:

(a) Impose or threaten to impose reprisals on

unilaterally transferring bargaining unit work outside the
unit. Specifically, bus drivers lost the opportunity to earn
overtime by driving school band members on weekend trips when
volunteer drivers, drawn from the ranks of the Band Boosters
club, were substituted for District drivers.
The Board has reviewed the hearing officer's proposed
decision in light of the District's exceptions and the entire
record in this matter. Finding it free from prejudicial error,
we adopt the hearing officer's findings of fact and conclusion
of law in toto, consistent with the discussion below.
DISCUSSION
The District would have the Board overturn the hearing
officer's decision primarily on the grounds that the weekend
band trips were not a "District-supported" program but rather
were financed by the Band Boosters, a group of parents,
relatives, and friends of band members.
We do not believe that the source of funds for these field
trips is relevant to the hearing officer's conclusions. Since
employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of rights
guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
N

the funds were paid not to the drivers but to the District for
reimbursement, the funding was analagous to state tax revenues
allocated to the District. Such state funding does not make
the state the employer. The District paid the drivers
time-and-a-half and made the schedules for overtime. Since the
drivers were without question employees of the District, the
program was a District-supported one, regardless of the source
of funds that paid the bus drivers.
We recognize that the District might well have discontinued
the field trips entirely because of the costs, and the Band
Boosters might have independently arranged for volunteer
drivers without violating the law. But here, the District
decided to continue to provide bus service, and merely
transferred the work from paid workers to volunteers.
The exceptions filed by the District concerning the
proposed remedy present no grounds for reversal, but rather are
matters for a compliance hearing.
ORDER
The Board hereby AFFIRMS the proposed decision in Case No.
S-CE-610 and ADOPTS its remedy and order as that of the Board
itself.
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, it is found that the Lincoln
Unified School District violated section 3543.5 (a) , (b) and (c)
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of the Educational Employment Relations Act. Pursuant to
section 3541.5 (d) of the Government Code, it is hereby ORDERED
that the District, its governing board and its representatives
shall:
1 . 	CEASE AND DESIST FROM:
(a) Failing and refusing to meet and negotiate in good
faith with the California School Employees Association and its
Lincoln Chapter No. 282 as the exclusive representative of its
employees by unilaterally transferring bus driver work out of
the unit and thereby reducing the opportunity for overtime pay,
a matter within the scope of representation.
(b) By the same conduct, denying to the California School
Employees Association and its Lincoln Chapter No. 282 rights
guaranteed by the Educational Employment Relations Act,
including the right to represent its members.
(c) By the same conduct, interfering with employees in the
exercise of rights guaranteed by the Educational Employment
Relations Act, including the right to be represented by their
chosen representative.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT:
(a) Upon request of CSEA, meet and negotiate with CSEA over
the decision and the effects thereof of transferring bus driver
work out of the classified employee unit.

(b) Pay to all bus drivers in the unit lost income plus
interest caused by the transfer of bus driver work to
volunteers. The amount of income due each driver shall be
calculated as follows:
The District shall total the number of hours worked by all
bus drivers for band trips in 1979-80, 1980-81 and 1981-82 and
then divide by three. This calculation will produce the
average number of extra hours worked in the three years. 	The
District then shall divide the average number of hours evenly
among all unit members employed as bus drivers in 1982-83. The
drivers are to be paid whatever amount of money they would have
received in 1982-83 had they driven the calculated number of
hours. Insofar as the 1982-83 band trips were taken during
hours for which unit drivers receive overtime, the amount of
money paid to each driver should be computed at the overtime
rate. 	The amount due to each driver shall be augmented by
interest at the rate of 7 percent with the interest due only
from the period between the last bus driver workday of the
1982-83 school year to the date paid. Back wages for 1983-84
and any subsequent years which may elapse until the date this
proposed decision becomes final shall be calculated in the same
manner as for 1982-83.
(c) Within 35 days following the date the Decision is no
longer subject to reconsideration, post at all school sites and
all other work locations where notices to employees are
5

customarily placed, copies of the Notice attached hereto as an
Appendix. 	The Notice must be signed by an authorized agent of
the District, indicating that the District will comply with the
terms of this order. Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to insure that the Notice is not reduced in
size, altered, defaced or covered by any other material.
(d) Written notification of the actions taken to comply
with this Order shall be made to the Sacramento Regional
Director of the Public Employment Relations Board, in
accordance with her instructions.
Members Tovar and Morgenstern joined in this Decision.
6

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. S-CE-610
California School Employees Association and its Lincoln Chapter
No. 282 v. Lincoln Unified School District in which all parties
had the right to participate, it has been found that the
Lincoln Unified School District violated subsecton 3543.5 (c) of
the Educational Employment Relations Act by failing and
refusing to meet and negotiate in good faith with the
California School Employees Association and its Chapter No. 282
with respect to the transfer of work outside the negotiating
unit. The transfer of work affected both wages and hours,
matters within the scope of representation. It was further
found that this same conduct violated subsection 3543.5 (b)
since it denied CSEA the right to represent its members, and
interfered with employees' rights to be represented by their
chosen representative in violation of subsection 3543.5 (a) of
the Educational Employment Relations Act.
As a result of this conduct, we have been ordered to post
this Notice, and will abide by the following. 	We will:
1. CEASE AND DESIST FROM:
(a) Failing and refusing to meet and negotiate in good
faith with the California School Employees Association and its
Lincoln Chapter No. 282 as the exclusive representative of its
employees by unilaterally transferring bus driver work out of
the unit and thereby reducing the opportunity for overtime pay,
a matter within the scope of representation.
(b) By the same conduct, denying to the California
School Employees Association and its Lincoln Chapter No. 282
rights guaranteed by the Educational Employment Relations Act,
including the right to represent its members.
(c) By the same conduct, interfering with employees in
the exercise of rights guaranteed by the Educational Employment
Relations Act, including the right to be represented by their
chosen representative.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT :

(a) Upon request of CSEA, meet and negotiate with CSEA
over the decision and the effects thereof of transferring bus
driver work out of the classified employee unit.
(b) Pay to all bus drivers in the unit lost income
plus interest caused by the transfer of bus driver work to
volunteers. 	The amount of income due each driver shall be
calculated as follows:
The District shall total the number of hours worked by all
bus drivers for band trips in 1979-80, 1980-81 and 1981-82 and
then divide by three. This calculation will produce the
average number of extra hours worked in the three years. 	The
District then shall divide the average number of hours evenly
among all unit members employed as bus drivers in 1982-83. The
drivers are to be paid whatever amount of money they would have
received in 1982-83 had they driven the calculated number of
hours. Insofar as the 1982-83 band trips were taken during
hours for which unit drivers receive overtime, the amount of
money paid to each driver should be computed at the overtime
rate. The amount due to each driver shall be augmented by
interest at the rate of 7 percent with the interest due only
from the period between the last bus driver workday of the
1982-83 school year to the date paid. Back wages for 1983-84
and any subsequent years which may elapse until the date this
proposed decision becomes final shall be calculated in the same
manner as for 1982-83.
Dated: 	LINCOLN UNIFIED SCHOOL DISTRICT
Authorized Agent
THIS IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30 ) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED ALTERED OR COVERED WITH
ANY OTHER MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION and its LINCOLN
CHAPTER NO. 282,
Charging Party,
v .
LINCOLN UNIFIED SCHOOL DISTRICT,
Respondent.
Unfair Practice
Case No. S-CE-610
PROPOSED DECISION
(3/2/84)
Appearances: Burton E. Gray, Field Representative, for the
California School Employees Association and its Lincoln Chapter
No. 282; Sally Talbot, Director of Personnel, for the Lincoln
Unified School District.
Proposed Decision by Ronald E. Blubaugh, Hearing Officer.
PROCEDURAL HISTORY
An exclusive representative contends here that a public
school employer unilaterally secured volunteer bus drivers to
take students on field trips, thereby eliminating work for unit
members. 	The employer responds that the use of volunteer
drivers, most of them parents, is in accord with past practice.
The California School Employees Association and its Lincoln
Chapter No. 282 (hereafter CSEA) commenced this action on
April 21, 1983, by filing an unfair practice charge against the
Lincoln Unified School District (hereafter District) . The
charge accused the District of violating Educational Employment

Relations Act subsections 3543.5 (a) , (b) and (c)1 by
unilaterally instituting a parent volunteer bus driver program
to perform work which had normally been performed by bargaining
unit employees.
A complaint against the District was issued on
June 14, 1983, by the office of the General Counsel of the
Public Employment Relations Board (hereafter PERB) , alleging
that the employer had acted in violation of the EERA. 	The
District answered the complaint on July 1, 1983, admitting that
it had started a volunteer bus driver program in October of
1982, but asserting that the action was consistent with a
practice in operation since 1979.
Unless otherwise indicated, all references are to the
Government Code. The Educational Employment Relations Act
(hereafter EERA) is found at section 3540 et seq. 	In relevant
part, section 3543.5 provides as follows:
It shall be unlawful for a public school
employer to:
(a) Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter.
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2

A settlement conference was unsuccessful in resolving the
dispute. A hearing was conducted on January 4, 1984, by
Gary Gallery of the PERB staff. Prior to the submission of
briefs, the case was reassigned to the undersigned hearing
officer under California Administrative Code, title 8,
part III, section 32168 (b) . The final brief from the parties
was received on February 23, 1984, on which date the case was
submitted for decision.
FINDINGS OF FACT
The Lincoln District, an employer under BERA, is a suburban
Stockton school system with 11 schools. The District on
May 13, 1976, recognized CSEA as the exclusive representative
of a comprehensive unit of classified employees, including bus
drivers. 2 CSEA remained as exclusive representative at all
times relevant to this case.
The use of volunteer parents as bus drivers arose from a
suggestion by District band director Art Holton. 	In 1982,
sometime prior to the commencement of summer, Mr. Holton told
Allan Patterson, District director of maintenance and
operations, that he wanted to reduce the cost of band trips.
The band director proposed that parents assume some of the
responsibility for driving band members on trips.
2The unit description is contained in representation case
file S-R-127 which is maintained in the Sacramento Regional
Office of the PERB.
W

Mr. Patterson discouraged the plan but Mr. Holton took his idea
to the District superintendent, Tod Anton.
On June 11, 1982, the superintendent instructed
Helen Alston, the District's transportation dispatcher, to set
up a training program for parents and others who had
volunteered to become band bus drivers. In his memo to
Ms. Alston, the superintendent cited the District's "great
shortage of funds" as the reason for seeking volunteer
drivers. Under the volunteer program, the drivers were not to
be paid for their time, thus providing the District
considerable salary savings.
In fact, for some period prior, band field trips had been
financed by the band boosters club, a parent organization which
supports the band. The boosters paid for both the use of the
buses and the salaries of the drivers who received overtime
rates for trips in the evening and on weekends. During the
1981-82 school year, the boosters incurred a $3,000 debt to the
District for band trips. Although the boosters did not have
the funds to pay for the trips at the time they were taken, the
group conducted subsequent fund raisers and paid off the debt.
Reducing the costs to the boosters was one of the goals of the
volunteer driver program.
The use of volunteer bus drivers was not unprecedented in
the District. Will Pool, the principal of the District's

Colonial Heights Elementary School, commenced a volunteer
driver program during the 1978-79 school year. Mr. Pool
himself and at least one parent went through the District's bus
driver training program and qualified as drivers. The
parent (s) drove on some field trips during 1978-79. Mr. Pool
drove that year and has continued driving on student field
trips through the date of the hearing. Mr. Pool drives only
during school-hour field trips. He does not drive on
after-school or weekend trips. Prior to Mr. Pool's
qualification as a bus driver, regular District bus drivers had
taken students on field trips from his school only if they were
available. Mr. Pool's driving has not had a significant effect
on the regular drivers because they drive their assigned routes
during the school day and are not generally available for the
types of trips he makes. CSEA did not challenge Mr. Pool's
performance of unit work when it commenced in 1978-79, although
at least one driver individually complained about it.
In accord with the superintendent's instructions,
Ms. Alston set up a training program for the volunteer
drivers. The superintendent told her to disregard the
objections of Dennis Chuning, the assistant superintendent for
business, and Mr. Patterson, the director of maintenance and
operations. She conducted 20 hours of classroom instruction
for five volunteers, four parents and a brother of band
members. After the five completed their classroom instruction,
UT

they were given behind-the-wheel training by two of the
District's veteran drivers. The behind-the-wheel training was
given during the summer of 1982 and, once school resumed in the
fall, during the evenings and on Saturdays. The driving
instructors were paid overtime during the training period.
The first band bus trip with a volunteer driver was taken
on October 23, 1982. All told, the volunteer drivers took the
band on approximately 10 trips during the 1982-83 school year.
By comparison, the band took an average of five trips during
each of the three previous years when unit members drove the
buses. Unit members who drove the buses in previous years were
paid at the overtime rate because band trips are on weekends
and after school hours. During the 1982-83 school year,
regular drivers did not take the band on any trips.
Although the volunteer driver program started as a project
of the band boosters, it expanded beyond the confines of the
band during its first year of operation. During April of 1983,
students on a course trip were driven by a volunteer parent.
On June 4, a volunteer parent drove the bus to Yosemite for a
weekend trip by the German and Spanish Clubs. Previously, bus
drivers in the unit had taken the foreign language students on
field trips. Weekend trips had been assigned to unit members
on a rotating basis.
In 1983-84, District transportation employment dropped to
six full-time bus drivers and two part-time drivers from eight

full-time drivers in 1982-83. The record does not establish
the relationship, if any, between the volunteer driver program
and the decrease in the number of full-time drivers.
Jackie Marquez, CSEA job steward for the transportation
department, complained to Ms. Alston and Mr. Patterson about
the volunteer driver program as soon as she became aware of
it. Aloma Sorling, one of the unit members who trained the
volunteers, also complained to Ms. Alston. Ultimately,
Ms. Alston told Ms. Sorling to take her complaint to the
superintendent. Ms. Sorling and another driver did complain to
Superintendent Anton who rejected their complaint, advising
them that he was satisfied that he had made the correct
decision by starting the volunteer program.
Following the meeting between Ms. Sorling and the
superintendent, CSEA chapter President Diana Criddle joined
Ms. Sorling and another driver in a meeting with Assistant
Superintendent Chuning. At that meeting, Mr. Chuning
complained that the bus drivers had not progressed through the
chain of command before visiting the superintendent. o
February 28, 1982, shortly after the meeting with Mr. Chuning,
CSEA filed a formal grievance about the commencement of the
volunteer driver program. On March 3, 1983, CSEA asserted that
the use of the volunteer drivers constituted the contracting
out of duties normally performed by unit members and is in
J

violation of past practice. CSEA also raised concerns about
the safety implications of the practice.
The grievance reached the superintendent's office on
March 14, 1983. He delegated the matter to John Mccandless,
assistant superintendent of personnel. Mr. Mccandless met with
CSEA representatives on March 22, 1983. On March 29, 1983,
Mr. Mccandless rejected the grievance, asserting that the
District had the authority to initiate the volunteer program
under the management rights clause of the contract between the
parties. 3
At no time prior to institution of the volunteer driver
program did the District ever advise CSEA of its plans or offer
to negotiate about the matter. At some point during the
grievance discussions, CSEA requested to negotiate about the
3In relevant part, the management rights article in the
contract between the parties reads as follows:
It is understood and agreed that the
District retains all of its rights, powers,
privileges, functions and authority to
discharge its obligations to the full extent
provided by law. Any of the rights, powers,
privileges, functions or authority which the
District had prior to the execution of this
Agreement are retained except as those
rights, powers, privileges, functions or
authority are limited only by the specific
and express terms of this Agreement, and
then only to the extent such specific and
express terms are in conformance with law.
The District retains all of its rights,
powers, privileges, functions and authority
to take action on any matter in the event of
an emergency.
8

volunteer driver program but the District declined. 	CSEA
President Criddle testified without contradiction that
"Dr. Anton felt that it wasn't a negotiable item." The parties
were in negotiations during the fall of 1982 but the subject of
volunteer drivers was not raised at the table. They reached
agreement in January of 1983 on a new contract extending into
1985.
LEGAL ISSUE
Did the District unilaterally transfer bus driver work out
of the unit and thereby violate EERA subsection 3543.5 (c)
and/or (a) and (b) ?
CONCLUSIONS OF LAW
CSEA argues that commencement of the volunteer bus driver
program for band trips was a unilateral transfer of work out of
the bargaining unit. Citing various PERB decisions, CSEA
argues that the transfer of unit work is a negotiable subject
under EERA and the unilateral transfer of work was per se a
failure to negotiate in good faith.
The District contends that the use of volunteer drivers for
band trips was not the implementation of a new program but the
continuation of a practice that commenced in 1978. 	The
District argues, moreover, that the band trips affected only
overtime which was irregular and was never promised to unit
members. The drivers suffered no loss of regular, full-time
9

work. Finally, the District concludes, it has been willing to
negotiate the subject and has, in fact, done so.
It is well established that the decision to transfer work
out of the bargaining unit is negotiable if it impacts upon a
subject within the scope of representation. 4 Solano County
Community College District (6/30/82) PERB Decision No. 219.
See also, Rialto Unified School District (4/30/82) PERB
Decision No. 209 and Mt. San Antonio Community College District
(3/24/83) PERB Decision No. 297. It is undisputed that the use
of volunteer drivers for band trips reduced the amount of
overtime pay for which unit members were eligible. The
opportunity for overtime pay relates directly to wages and
hours and is a subject expressly held negotiable by the PERB.
State of California (Department of Transportation) (8/18/83)
4The scope of representation under the EERA is set forth
at section 3543.2 which, in relevant part, provides as follows:
(a) The scope of representation shall be
limited to matters relating to wages, hours
of employment, and other terms and
conditions of employment. 	"Terms and
conditions of employment" mean health and
welfare benefits as defined by Section
53200, leave, transfer and reassignment
policies, safety conditions of employment,
class size, procedures to be used for the
evaluation of employees, organizational
security pursuant to Section 3546,
procedures for processing grievances
pursuant to Sections 3548.5, 3548.6, 3548.7,
and 3548.8, and the layoff of probationary
certificated school district employees,
pursuant to Section 44959.5 of the Education
Code. .
10

PERB Decision No. 333-S and State of California (Department of
Transportation) (11/28/83) PERB Decision No. 361-S. See also,
Willamette Industries, Inc. (1975) 220 NLRB 707 [90 LRRM 1478]
and Dublin Professional Fire Fighters, Local 1885 v. Valley
Community Services District (1975) 45 Cal. App. 3d 116 [119
Cal. Rptr. 182]. The argument made by the District here that
employees were not promised overtime and thus cannot complain
about its loss was considered and rejected in Department of
Transportation, supra, PERB Decision No. 361-S.
An employer that makes a pre-impasse unilateral change
about a matter within the scope of representation violates its
duty to meet and negotiate in good faith. NLRB v. Katz (1962)
369 U.S. 736 [50 LRRM 2177]. Such unilateral changes are
inherently destructive of employee rights and are a failure per
se of the duty to negotiate in good faith. See generally,
Davis Unified School District (2/22/80) PERB Decision No. 116,
San Francisco Community College District (10/12/79) PERB
Decision No. 105 and San Mateo Community College District
(6/8/79) PERB Decision No. 94.
Nevertheless, the District argues that the use of
volunteers to drive on band trips was consistent with a
continuous practice since 1978. An employer's acts that are
consistent with established practices cannot be considered
unlawful unilateral changes. Placer Hills Union School
District (11/30/83) PERB Decision No. 262. But where the
11

employer changes "the quantity and kind" of its past practice
without negotiation, it will be found guilty of failing to
negotiate in good faith. Oakland Unified School District
(12/16/83) PERB Decision No. 367. See also, Clevenger Logging,
Inc. (1975) 220 NLRB 768 [90 LRRM 1726] and Shell Oil Co.
(1967) 166 NLRB 1064 [65 LRRM 1713] .
The practice in effect since 1978 was for an elementary
school prinicipal to drive his students on field trips during
the regular school hours. At first, he was assisted by a
parent but later only the principal himself drove. The driving
by the principal did not affect unit members because they are
assigned regular routes during school hours and are seldom
available for additional field trips. In the past, substitute
drivers have been employed to drive on field trips if unit
members were occupied. Band trips, by contrast, are taken
after school and on weekends when regular drivers are
available. In the past, regular drivers took the band on all
of its trips. 	The use of volunteers for band trips thus
encroached directly upon work which formerly had been performed
exclusively by members of the unit. The use of volunteers to
drive buses substantially expanded and changed the very nature
of the prior practice.
In its answer, the District in effect argues that even if
the subject of volunteer drivers is negotiable CSEA waived its
right to negotiate by agreeing to the contractual management
12

rights and zipper clauses. 	The argument is unpersuasive. 	The
management rights clause is a general retention of powers and
contains no reservation of a right to transfer work outside the
bargaining unit. In order to show that a union waived its
right to negotiate, the employer must demonstrate either "clear
and unmistakable language or demonstrative behavior waiving a
reasonable opportunity to bargain over a decision not already
firmly made. " See, Los Angeles Community College District
(10/18/82) PERB Decision No. 252 and cases cited therein. 	No
language in the management rights clause constitutes a "clear
and unmistakable" waiver of CSEA's right to negotiate about the
transfer of unit work. Likewise, no waiver can be found in the
zipper clause. A zipper clause does not "cede to the employer
the power to make unilateral changes in the status quo."
Los Angeles Community College District, Supra.
Before an employer can make a lawful unilateral change
affecting a matter within scope, the employer must give notice
of the change and an opportunity to negotiate to the exclusive
representative. See, Delano Union Elementary School District
(4/30/82) PERB Decision No. 213 and cases cited therein. Here,
the District decided upon a course of action and took it.
There was no prior notice to the exclusive representative and
no offer to negotiate. When CSEA first contested the action in
a grievance meeting, the District initially took the position
that the subject of volunteer bus drivers was not even
13

negotiable. That the District eventually agreed to negotiate
did not cure the inherently destructive impact of its
unilateral change.
Upon these facts and based on the record as a whole, it is
held that the District unilaterally transferred work out of the
unit, an action affecting wages and hours, matters within the
scope of representation. The change was a failure per se to
negotiate in good faith and a violation of subsection
3643.5 (c). An employer's failure to meet and negotiate in good
faith with an exclusive representative, when obligated to do
so, violates the rights of both the exclusive representative
and the employees it represents. 	The District's action
therefore concurrently violates subsections 3543.5 (a) and (b) .
North Sacramento School District (12/31/81) PERB Decision
No. 193.
REMEDY
CSEA seeks an order that the District be required to return
to the status quo ante and that the affected unit members be
made whole for any loss of wages and benefits with interest.
The PERB in subsection 3541.5(c) is given:
the power to issue a decision and
order directing an offending party to cease
and desist from the unfair practice and to
take such affirmative action, including but
not limited to the reinstatement of
employees with or without back pay, as will
effectuate the policies of this chapter.
The ordinary remedy in unilateral change cases is to
14

restore the status quo ante. In this case, that means that
unit members would be given the opportunity to serve as drivers
for such band and other trips as the District may choose to
provide. Where work has been tranferred out of the unit, it is
appropriate that the employer be required to compensate
employees for work they lost because of the unilateral change.
Solano County Community College District, supra, PERB Decision
No. 219 and Rialto Unified School District, supra, PERB
Decision No. 209.
In the calculation of the amount of back pay, the District
should not be obligated to pay employees more than they would
have received had the District not unilaterally transferred
work out of the unit. It is apparent from the record that the
institution of the volunteer driver program brought about more
trips in 1982-83 than in previous school years. In the three
years prior to the institution of the volunteer program, the
band members went on an average of 5 trips per year compared to
the 10 trips they took in 1982-83. The reason for the doubling
of trips after the start of the volunteer program is that with
free drivers the available funds went further. It requires no
speculation to observe that had there been no volunteer driver
program the number of trips in 1982-83 would have been similar
to the previous years.
Therefore, the amount of back pay due affected employees
shall be based on the number of hours employees would have
15

worked had there been no volunteer program. To determine the
proper number of hours, the District shall use the three years
prior to the institution of the volunteer program as a guide.
The District shall total the number of hours worked by all bus
drivers for band trips in 1979-80, 1980-81 and 1981-82 and then
divide by three. This calculation will produce the average
number of extra hours worked in the three years. The District
then shall divide the average number of hours evenly among all
unit members employed as bus drivers in 1982-83. The drivers
are to be paid whatever amount of money they would have
received in 1982-83 had they driven the calculated number of
hours. 	Insofar as the 1982-83 band trips were taken during
hours for which unit drivers receive overtime, the amount of
money paid to each driver should be computed at the overtime
rate. The amount due to each driver shall be augmented by
interest at the rate of 7 percent with the interest due only
from the period between the last bus driver workday of the
1982-83 school year to the date paid. Back wages for 1983-84
and any subsequent years which may elapse until the date this
proposed decision becomes final shall be calculated in the same
manner as for 1982-83.
It also is appropriate that the District be directed to
cease and desist from its unfair practices and to post a notice
incorporating the terms of the order. Posting of such a
notice, signed by an authorized agent of the District, will
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provide employees with notice that the District has acted in an
unlawful manner, is being required to cease and desist from
this activity, and will comply with the order. It effectuates
the purposes of the EERA that employees be informed of the
resolution of the controversy and the District's readiness to
comply with the ordered remedy. Davis Unified School District
et al. (2/22/80) PERB Decision No. 116; see also Placerville
Union School District (9/18/78) PERB Decision No. 69.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law,
and the entire record in the case, it is found that the Lincoln
Unified School District violated subsection 3543.5 (a) , (b) and
(c) of the Educational Employment Relations Act. Pursuant to
subsection 3541.5 (d) of the Government Code, it is hereby
ORDERED that the District, its governing board and its
representatives shall:
1. CEASE AND DESIST FROM:
(a) Failing and refusing to meet and negotiate in good
faith with the California School Employees Association and its
Lincoln Chapter No. 282 as the exclusive representative of its
employees by unilaterally transferring bus driver work out of
the unit and thereby reducing the opportunity for overtime pay,
a matter within the scope of representation.
(b) By the same conduct, denying to the California
School Employees Association and its Lincoln Chapter No. 282
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rights guaranteed by the Educational Employment Relations Act,
including the right to represent its members.
(c) By the same conduct, interfering with employees in
the exercise of rights guaranteed by the Educational Employment
Relations Act, including the right to be represented by their
chosen representative.
2 . 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EDUCATIONAL EMPLOYMENT RELATIONS
ACT :
(a) Upon request of CSEA, meet and negotiate with CSEA
over the decision and the effects thereof of transferring bus
driver work out of the classified employee unit.
(b) Pay to all bus drivers in the unit lost income plus
interest caused by the transfer of bus driver work to
volunteers. 	The amount of income due each driver shall be
calculated as follows:
The District shall total the number of hours worked by all
bus drivers for band trips in 1979-80, 1980-81 and 1981-82 and
then divide by three. This calculation will produce the
average number of extra hours worked in the three years. 	The
District then shall divide the average number of hours evenly
among all unit members employed as bus drivers in 1982-83. The
drivers are to be paid whatever amount of money they would have
received in 1982-83 had they driven the calculated number of
hours. Insofar as the 1982-83 band trips were taken during
hours for which unit drivers receive overtime, the amount of
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money paid to each driver should be computed at the overtime
rate. 	The amount due to each driver shall be augmented by
interest at the rate of 7 percent with the interest due only
from the period between the last bus driver workday of the
1982-83 school year to the date paid. Back wages for 1983-84
and any subsequent years which may elapse until the date this
proposed decision becomes final shall be calculated in the same
manner as for 1982-83.
(c) Within seven (7) workdays of service of a final
decision in this matter, post at all school sites and all other
work locations where notices to employees are customarily
placed, copies of the notice attached hereto as an appendix.
The notice must be signed by an authorized agent of the
District, indicating that the District will comply with the
terms of this order. Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps
shall be taken to insure that the notice is not reduced in
size, altered, defaced or covered by any other material.
(d) Within thirty (30) workdays from service of a final
decision in this matter, notify the Sacramento Regional
Director of the Public Employment Relations Board, in writing,
of the steps the employer has taken to comply with the terms of
this order. 	Continue to report in writing to the regional
director periodically thereafter as directed. All reports to
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the regional director shall be served concurrently on the
charging party herein.
Pursuant to California Administrative Code, title 8,
part III, section 32305, this Proposed Decision and Order shall
become final on March 22, 1984, unless a party files a timely
statement of exceptions. In accordance with the rules, the
statement of exceptions should identify by page citation or
exhibit number the portions of the record relied upon for such
exceptions. See California Administrative Code, title 8,
part III, section 32300. Such statement of exceptions and
supporting brief must be actually received by the Public
Employment Relations Board itself at the headquarters office in
Sacramento before the close of business (5:00 p.m. ) on
March 22, 1984, or sent by telegraph or certified United States
mail, postmarked not later than the last day for filing in
order to be timely filed. See California Administrative Code,
title 8, part III, section 32135. Any statement of exceptions
and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service
shall be filed with the Board itself. See California
Administrative Code, title 8, part III, section 32300 and 32305.
Dated: March 2, 1984 Ronald E. Blubaugh
Hearing Officer
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