Stanislaus County Department of Education (PERB 0556E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS STANISLAUS
COUNTY CHAPTER NO. 668,

Charging Party, Case No. S-CE-742

ve PERB Decision No. 556

STANISLAUS COUNTY DEPARTMENT OF
* EDUCATION,

December 31, 1985

Respondent.

eet Sacer Stl Mel eet Ne i Senet St Niet et Sere

Appearances: Harry J. Gibbons, Jr., for California School
Employees Association and its Stanislaus County Chapter No. 668;
Finkle & Stroup by Mary Beth de Goede and Leith B. Hansen for
Stanislaus County Department of Education.

Before Jaeger, Morgenstern and Porter, Members.
DECISION

MORGENSTERN, Member: The California School Employees
Association and its Stanislaus County Chapter No. 668 (CSEA)
excepts to the decision, attached hereto, by a Public Employment
Relations Board (PERB or Board) administrative law judge (ALJ)
finding that the Stanislaus County Department of Education
(County) did not violate section 3543.5(a), (b) or (c) of the
‘Educational Employment Relations Act (EERA or Act).?

Specifically, CSEA's charge contends that the County failed to

LEERA is codified at Government Code section 3540 et
seq. Unless otherwise indicated, all statutory references
herein are to the Government Code.

In relevant part, section 3543.5 provides:

negotiate 	its 	decision 	to 	cease 	operation 	of 	three 	child
development 	centers 	for 	migrant 	children 	(centers) 	and 	to 	select
an 	outside 	nonprofit 	corporation 	to 	perform 	that 	function. 	CSEA
also 	claims 	that 	the 	County 	failed 	to 	negotiate 	the 	effects 	of
that 	decision.
FACTUAL 	SUMMARY
We 	hnve 	reviewed 	the 	decision 	of 	the 	ALJ 	and, 	finding 	his
factual 	findings 	free 	from 	prejudicial 	error, 	·adopt 	them 	as 	the
Board's 	factual 	summary.
DISCUSSION
We 	are 	in 	essential 	agreement 	with 	the 	conclusions 	of 	law
reached 	by 	the 	ALJ. 	First, 	we 	agree 	that 	CSEA 	raised 	the 	issue
of 	contracting 	out 	long 	before 	the 	District 	reached 	its 	final
decision 	to 	cease 	operation 	of 	the 	centers. 	The 	parties 	engaged
in 	various 	negotiating 	sessions, 	some 	of 	which 	involved 	the
discussion 	of 	CSEA's 	proposals 	designed 	to 	head 	off 	the 	County's
decision 	to 	end 	its 	direct 	involvement 	in 	the 	migrant 	child
development 	program 	(program).
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

The 	principle 	point 	of 	contention 	at 	issue 	in 	this 	case
concerns 	the 	most 	appropriate 	characterization 	to 	be 	given 	the
County's 	decision 	to 	cease 	direct 	operation 	of 	the 	centers.
CSEA 	relies 	on 	Fibreboard 	Paper 	Products 	Corp. 	v. 	NLRB 	(1964)
379 	U.S. 	203 	[57 	LRRM 	2609] 	and 	asserts 	that 	the 	employer 1 s
decision 	involved 	the 	subcontracting 	out 	of 	bargaining 	unit
work. 	The 	County, 	on 	the 	other 	hand, 	argues 	that 	the 	decision
falls 	within 	its
. managerial 	prerogative 	to 	change 	the 	nature 	and
direction 	of 	its 	business. 	Relying 	on 	Otis 	Elevator 	Co. 	(1984)
269 	NLRB 	891 	[116 	LRRM 	1984], 	the 	County 	asserts 	that 	its
decision 	was 	not 	undertaken 	merely 	to 	save 	labor 	costs 	but
because 	it 	wanted 	to 	cease 	direct 	operation 	of 	a 	program 	it
found 	exceedingly 	troublesome 	and 	uncertain.
Upon 	review, 	we 	affirm 	the 	ALJ's 	conclusion 	that 	the
County's 	decision 	was 	not 	one 	appropriately 	relegated 	to 	the
negotiating 	process. 	The 	decision 	to 	cease 	direct 	operation 	of
the 	centers 	invariably 	meant 	that 	County 	employees 	lost 	their
jobs. 	Clearly, 	it 	was 	a 	decision 	about 	which 	both 	management
and 	the 	employees 	were 	concerned. 	However, 	for 	the 	reasons
outlined 	by 	the 	ALJ, 	the 	duty 	to 	negotiate 	the 	decision 	would
have 	significantly abridged 	the 	employer's 	freedom 	to 	exercise
managerial 	prerogatives 	essential 	to 	its 	mission. 2
2under 	the 	Board's 	test 	enunciated 	in 	Anaheim 	Union 	High
School 	District 	(1981) 	PERB 	Decision 	No. 	177, 	a 	subject 	is
negotiable 	if 	(1) 	it 	is 	logically 	and 	reasonably 	related 	to
hours, 	wages 	or 	an 	enumerated 	term 	and 	condition 	of 	employment,
(2) 	the 	subject 	is 	of 	such 	concern 	to 	both 	management 	and
3

As 	the 	ALJ 	noted, 	the 	migrant 	child 	education 	program 	is 	not
mandated 	by 	the 	laws 	of 	this 	State 	but 	is, 	rather, 	a 	program
created 	by 	the 	Federal 	Government. 	The 	County 	initially 	opted
to 	provide 	direct 	educational 	services 	at 	the 	centers; 	however,
the 	program 	exists 	despite 	County 	involvement. 	Unlike 	a 	school
district 	that 	abandons 	its 	in-house 	transportation 	program 	and
hires 	a 	private 	bus 	company 	to 	carry 	the 	students 	to 	and 	from
its 	schools, 	here, 	the 	mig·rant 	child 	centers 	are 	not 	part 	of 	a
County program 	which 	survives 	as 	such 	after 	the 	County 	decided
it 	no 	longer 	wished 	to 	be 	in 	the 	business 	of 	directly providing
the 	educational 	services. 	As 	the 	ALJ 	noted:
••• 	The 	present 	case 	does 	not 	present 	the
situation 	where 	federal 	funds 	were 	used 	to
finance 	what 	is 	essentially 	a 	local 	program,
like 	the 	cleaning 	of 	classrooms. 	Here,
federal 	funds 	were 	provided 	to 	a 	local
employer 	to 	run 	a 	federal 	program. 	The
migrant 	education 	program 	was 	initiated 	by
the 	federal 	government 	and 	tightly
controlled 	by 	it. 	Unlike 	the 	cleaning 	of
classrooms, 	operation 	of 	the 	migrant 	program
is 	an 	activity 	which 	did 	not 	exist 	before
the 	arrival 	of 	tederal 	funds 	and 	might 	well
cease 	should 	those 	funds 	ever 	be 	withdrawn.
Thus, 	since 	the 	County's 	role 	in 	the 	migrant 	child 	program 	was
that 	of 	a 	conduit 	for 	federal 	funds, 	we 	agree 	that 	whether 	a
school 	employer 	continues 	to 	operate 	a 	program 	on 	behalf 	of 	the
employees 	that 	conflict 	is 	likely 	to 	occur 	and 	the 	mediatory
influence 	of 	collective 	bargaining 	is 	the 	appropriate 	means 	of
resolving 	the 	conflict, 	and 	(3) 	the 	employer's 	obligation 	to
negotiate 	would 	not 	significantly 	abridge 	the 	employer's
freedom 	to 	exercise 	those 	managerial 	prerogatives 	(including
matters 	of 	fundamental 	policy) 	essential 	to 	the 	achievement 	of
the 	employer's 	mission. 	Also 	see 	section 	3543.2.
4

Federal
	Government
	is
	a
	basic
	managerial
	prerogative
	about
which
	negotiation
	is
	not
	required.
ORDER
Based
	on
	the
	foregoing
	findings 	of
	fact,
	conclusions
	of
	law
and
	the
	entire
	record
	in
	this
	case, 	the 	attached 	decision 	of
the 	Public
	Employment
	Relations
	Board
	administrative
	law
	judge
is
	AFFIRMED
	and 	Case
	No.
	S-CE-742
	is
	hereby
	DISMISSED.
Member
	Porter 	joined
	in
	this
	Decision.
	Member
	Jaeger's
concurrence 	begins
	on
	page
	6.
5

Jaeger,
	Member,
	concurring:
	I
	join
	my
	colleagues
	in
finding
	that
	the
	County
	Department
	of
	Education
	(County)
	was
not
	obligated 	to 	negotiate
	its
	decision 	to
	discontinue
	its
migrant,
education
	activities.
	However,
	I
	do
	not
	share 	with
them,
	or
	with
	the
	administrative
	law
	judge,
	some
	of 	the
	views
they
	express.
Charging
	Party's 	characterization
	of
	the
	County's
	decision
as
	"contracting
	out
11
or 	"subcontracting"
	is
	inapropos.
	As 	I
understand 	the
	evidence, 	the
	County
	acted
	as
	a
11
broker"
	or
agent
	of
	the 	Federal
	Government
	in
	finding,
	and
	overseeing,
organizations
	that
	provided
	a
	migrant-education
	service
	to
	the
Federal
	Government.
	The
	County
	itself
	was
	not
	responsible 	for
providing 	the
	service,
	except
	in
	the
	single
	instance
	subject 	to
the
	dispute
	here;
	and
	did 	not 	subcontract
	when
	it
	selected 	the
six 	other
	agencies
	which
	provided 	migrant 	education.
When
	the
	County
	discontinued
	its
	own
	involvement 	as
	a
direct
	supplier,
	it
	"brokered"
	a
	contract
	with
	a
	private,
non-profit 	organization 	to 	furnish 	the 	educational 	service 	to
the 	Federal
	Goverment, 	assuming
	the 	role
	it
	filled
	elsewhere 	as
general 	administrator
	and
	funnel 	of 	federal
	funds.
In
	sum,
	the
	County,
	for 	reasons
	which
	are 	not 	unlawful
under
	EERA,. 1
changed
	the 	nature
	and
	direction 	of
	its
operations
	by 	"dropping 	out
11
of 	the 	business 	of 	being
	a
	direct
lFor
	example, 	discontinuing 	operations 	in 	order 	to
destroy 	majority 	support 	for
	a
	union 	would 	presumably be
unlawful.
6

supplier
	of
	migrant
	education. 	In
	the
	private 	sector,
	such
entrepreneurial
	decisions
	have 	been
	held
	to
	be
	outside 	the
scope
	of
	mandatory
	negotiations.
	See
	Otis 	Elevator
	Co
	(1984)
269
	NLRB
	891
	[116
	LRRM
	1984].
In
	its
	precedential 	decision,
	Anaheim 	Union 	High
	School
District
	(1981)
	PERE
	Decision
	No.
	177,
	given 	approval
	by
	the
California
	Supreme
	Court
	in
	San 	Mateo
	City
	School
	District, 	et
al.
	v·. 	PERE
	(1983)
	33
	Cal.3d
	850
	[191
	Cal.Rptr.
	800],
	the
	Board
established
	the
	test
	of
	negotiability.
	In
	part, 	that
	test
provides
	that
	a
	subject
	is
	negotiable
	if:
The
	employer's
	obligation 	to 	negotiate
	would
not
	significantly
	abridge 	the 	employer's
freedom
	to 	exercise
	those 	managerial
prerogatives 	(including 	matters 	of
fundamental
	policy)
	essential 	to
	the
achievement
	of 	the 	employer's 	mission.
(Emphasis
	added:)
It
	is 	clear 	that 	sheltering
	an
	employer's
	right 	to
	make
basic 	educational 	policy
	determinations
	was
	within 	the 	Board's
contemplation
	when
	it
	included 	the 	underlined 	language. 	Here,
as
	I
	see
	it,
	the
	District's
	decision
	was
	to
	discontinue 	the
migrant
	program
	rather
	than
	to
	continue
	its
	operations 	through
.a 	subcontractor.
For 	these 	reasons,
	I
	join 	in 	dismissing 	the 	complaint.
However,
	I
	cannot 	subscribe 	to 	the 	theory
	that 	the 	issue 	is
not 	subject 	to 	negotiation 	because 	the
	program
	was
	federally
ordained, 	not 	an
	"integral 	part 	of
	a
	County program," 	and
	not
dependent 	on
	the 	County's 	voluntary 	involvement.
	I
	find
	no
authority 	for 	the 	proposition 	that 	the 	identity 	of 	the 	customer
or 	the 	nature 	of 	the
	work 	performed 	by 	bargaining 	unit
7

employees
	determine
	whether
	those
	employees
	may
	excerise
	their
statutory 	right 	to
	negotiate
	their
	wages,
	hours
	or
	working
conditions. 	Certainly,
	an
	employer's
	decision
	to
	take
	on
	work
that
	is
	not
	typical,
	or
	that
	it
	is
	not
	legally
	required 	to
perform,
	does
	not
	vest 	in
	him
	the
	privilege
	of
	avoiding
	his
obligations
	under
	the
	Act.
Nor
	can
	I
	agree
	that
	the 	federal
	origin
	of
	program
	funding
bears·
	on
	the 	question 	of
	negotiability.
	Although
	the
	Board
	has
not 	addressed
	this 	specific
	question,
	it
	has
	considered
	funding
sources
	in 	unit
	determination 	cases
	in
	a
	manner
	demonstrating
that
	employees
	performing
	work
	funded 	by
	external 	sources,
including
	the 	Federal
	Government,
	are
	not 	to	
be
	deprived
	of
their 	right 	to
	bargain
	with
	their
	employers.
2
In
	short,
where
	the
	employer
	gets
	its
	money
	from
	does
	not
	exempt
	it
	from
the
	obligation 	to 	negotiate
	how
	at 	least
	some
	of
	that
	money
shall
	be
	distributed
	among
	the
	employees.
2see 	Oakland 	Unified 	School
	District
	(1977)
	EERB
	Decision
No.
	15; 	Peralta
	Community
	College
	District
	(1978)
	PERB
	Decision
No.
	77; 	Redondo 	Beach
	City 	Unified 	School
	District
	(1980)
	PERB
Decision
	No.
	114.
8

STATE
	OF
	CALIFORNIA
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD 	0
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION
	and
	its
	STANISLAUS
CHAPTER 	No.
	668,
Charging
	Party,
v.
STANISLAUS
	COUNTY
	DEPARTMENT
	OF
EDUCATION,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
)
Unfair
	Practice
Case
	No.
	S-CE-742
PROPOSED 	DECISION
(10/23/84)
_____________________
)
Appearances:	
Harry
	J.
	Gibbons,
	Attorney
	for
	the
	California
School
	Employees
	Association
	and
	its
	Stanislaus
	Chapter
No.
	668;
	Mary
	Beth 	de
	Goede
	and
	Leith
	B.
	Hansen,
	Attorneys
{Finkle
	&
Stroup)
	for 	the
	Stanislaus
	County
	Department
	of
Education.
Before
	Ronald
	E.
	Blubaugh, 	Hearing
	Officer.
PROCEDURAL
	HISTORY
It
	is
	contended 	here
	that
	a
	county
	superintendent 	of
schools 	subcontracted
	unit
	work
	when
	he
	turned
	over
	to
	a
non-profit 	corporation 	the 	operation
	of
	a
	federally
	funded
migrant 	education
	program.
	The
	county 	advances
	several
defenses 	including
	a
	contention 	that
	its
	decision 	to 	cease
operation 	of 	the 	federal
	program
	was
	outside 	the
	scope
	of
representation
	and
	therefore 	non-negotiable.
The
	California
	School 	Employees
	Association
	and
	its
Stanislaus
	Chapter
	No. 	668
	(hereafter
	CSEA)
	filed 	the 	charge
	at
issue
	on 	March
	19, 	1984. 	The
	charge 	alleges 	that 	the
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.

Stanislaus 	County 	Department 	of 	Education 	(hereafter 	County) 1
unilaterally 	subcontract~d 	bargaining 	unit 	work 	by 	laying 	off
certain 	employees 	and 	transferring 	operation 	of 	three 	migrant
child 	development 	centers 	to 	a 	nonprofit 	corporation. 	On
May 	18, 	1984, 	the 	Sacramento 	Regional 	Attorney 	of 	the 	Public
Employment 	Relations 	Board 	(hereafter 	PERB) 	issued 	a 	complaint
alleging 	that 	by 	the 	transfer 	the 	County 	had 	violated
Educational 	Employment 	Relations 	Act 	subsection 	3543.5(c) 	and
derivatively 	(a) 	and 	(b). 2 Specifically, 	it 	is 	alleged 	that
the 	County 	failed 	to 	negotiate 	about 	the 	decision 	to 	cease
1Even 	though 	the 	charge 	and 	complaint 	list 	the 	respondeqt
as 	the 	Stanislaus 	County 	Department 	of 	Education, 	the 	parties
stipulated 	that 	actual 	employer 	and 	respondent 	in 	this 	action
is 	the 	Stanislaus 	County 	Superintendent 	of 	Schools. 	See
reporter's 	transcript 	at 	p. 	3.
2unless 	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

operation 	of 	the 	centers 	and 	select 	another 	agency 	to 	perform
the 	function 	and 	about 	the 	effects 	of 	the 	decision. 	On
June 	11, 	1984, 	the 	County 	answered 	the 	complaint, 	denying 	any
violation 	of 	the 	EERA 	and 	asserting 	affirmatively 	that 	it 	had
satisfied 	all 	negotiating 	requirements.
On 	June 	11 	the 	County 	also 	filed 	a 	motion 	to 	dismiss 	that
portion 	of 	the 	complaint 	which 	alleges 	a 	failure 	to 	negotiate
about 	the 	effects 	of 	the 	decision. 	The 	County 	argued 	that 	an
allegation 	about 	failure 	to 	negotiate 	on 	the 	effects 	of 	the
change 	was 	not 	included 	in 	CSEA's 	original 	charge 	and 	thus
could 	not 	be 	the 	subject 	of 	a 	complaint. 	On 	July 	18, 	1984, 	the
hearing 	officer 	then 	processing 	the 	case 	denied 	the 	motion 	on
the 	ground 	that 	the 	charge 	included 	within 	it 	factual
allegations 	sufficient 	to 	support 	the 	complaint 	as 	issued.
A hearing 	on 	the 	complaint 	was 	conducted 	in 	Sacramento 	on
August 	16 	and 	17, 	1984. 	The 	last 	of 	the 	briefs 	from 	the
parties 	was 	received 	on 	October 	16, 	1984, 	and 	the 	case 	was
submitted 	for 	decision 	as 	of 	that 	date.
FINDINGS 	OF 	FACT
The 	Stanislaus 	County 	Department 	of 	Education, 	a 	public
school 	employer 	under 	the 	EERA, 	provides 	a 	variety 	of 	services
to 	small 	school 	districts 	within 	Stanislaus 	County. 	It 	takes
care 	of 	business 	operations 	for 	some 	districts, 	conducts
teacher 	training 	programs 	and 	operates 	an 	instructional
materials 	center. 	The 	County 	operates 	the 	John 	F. 	Kennedy
3

Center 	for 	Severely 	Handicapped 	Children 	and 	provides 	teachers
for ~andicapped 	students 	in 	various 	school 	districts.
For 	some 	years, 	the 	County 	also 	has 	served 	as 	the 	agent 	of
the 	federal 	government 	in 	the 	administration 	and 	operation 	of
Headstart 	and 	migrant 	child 	development 	programs. 	The 	programs
are 	funded 	primarily 	by 	the 	federal 	Administration 	for
Children, 	Youth 	and 	Families 	with 	the 	State 	Department 	of
Education 	providing 	local 	matching 	funds. 	The 	programs 	are
operated 	under 	strict 	federal 	guidelines. 	The 	County's 	role 	in
Headstart 	has 	been 	as 	the 	administrator 	of 	the 	program 	in
Stanislaus 	County 	and 	the 	direct 	operator 	of 	three 	Headstart
centers. 	The 	County's 	role 	in 	the 	migr~nt 	program 	has 	been 	as
the 	administrator 	in 	a 	seven-county 	region 	and 	the 	direct
operator 	of 	the 	migrant 	program 	within 	Stanislaus 	County. 	It
was 	the 	County's 	decision 	last 	year 	to 	step 	out 	of 	its 	role 	as
the 	operator 	of 	the 	migrant 	program 	at 	three 	locations 	in
Stanislaus 	County 	that 	led 	to 	the 	present 	case. 	The 	County 	has
retained 	its 	role 	as 	administrator 	of 	Headstart 	in 	Stanislaus
County 	and 	operator 	of 	three 	Headstart 	centers 	and 	its 	role 	as
seven-county 	administrator 	of 	the 	migrant 	program.
The 	County 	commenced 	its 	service 	as 	regional 	administrator
of 	the 	federal 	migrant 	education 	program 	sometime 	in 	the 	early
1970's. 	It 	was' 	solicited 	for 	this 	task 	by 	federal 	authorities
who 	found 	it 	too 	difficult 	to 	deal 	directly 	with 	individual
counties. 	The 	region 	administered 	by 	the 	County 	comprises
4

Stanislaus,
	Madera, 	Merced, 	Tuolumne,
	Santa
	Clara,
	Contra
	Costa
and
	Santa
	Cruz
	Counties. 	Federal
	funds
	to 	operate
	all
	migrant
child
	development 	programs
	in
	the
	seven
	counties
	pass 	through
the 	Stanislaus
	County
	Department
	of
	Education.
	In
	its
	role
	as
regional 	administrator,
	the
	County
	chooses
	the
	organizations
which
	will
	receive 	the
	federal
	migrant
	education 	funds,
	awards,
the
	contracts,
	monitors 	the
	operation
	of
	the
	program 	and
transmits
	the
	federal
	monies
	involved.
	In 	each
	county,
	one
delegate 	organization
	is
	chosen
	to 	operate 	the
	migrant
	program
throughout
	that
	county.
	During
	the
	time
	that
	the
	Stanislaus
County 	Department
	of 	Education 	has
	been
	the 	regional
administrator,
	the
	only 	migrant
	program
	operated
	by 	a
governmental
	entity	
in	
any
	of 	the
	seven
	counties
	was
	the
	one
which
	the 	Stanislaus
	County
	Department
	itself
	operated.
The 	County 	began
	the
	direct
	operation
	of 	the 	migrant
	child
development 	program
	within
	Stanislaus
	County 	sometime	
in 	the
1970's.
	In
	recent 	years, 	the 	Stanislaus
	migrant
	child
development 	program 	has 	been
	operated
	at
	farm
	labor
	camps
	in
Patterson,
	Westley
	and
	Ceres. 	This
	is
	a
	reduction
	from 	a
higher
	number
	of
	centers
	which
	the
	County
	operated 	in 	the 	early
days 	of
	its
	involvement.
	The
	Stanislaus
	County 	Housing
Authority
	owns 	and 	manages
	the 	three 	labor
	camps 	where
	the
child
	develpment 	program
	is 	offered.
5

The 	migrant 	child 	development 	program 	is 	in 	operation
during 	the 	agricultural 	harvest 	season, 	approximately 	May 	1
through 	November 	15. 	The 	number 	of 	children 	in 	the 	three
centers 	may 	vary 	widely 	according 	to 	crop 	conditions, 	the
weather 	and 	labor 	unrest. 	The 	peak 	enrollment 	is 	approximately
440 	children. 	The 	children 	range 	in 	age 	from 	6 weeks 	to
5 	years. 	The 	program 	is 	limited 	to 	children 	whose 	parents
receive 	at 	least 	50 	percent 	of 	their 	income 	from 	agriculture
and 	whose 	annual 	income 	is 	not 	greater 	than 	an 	amount 	set 	by
the 	federal 	government. 	The 	program 	involves 	both 	instruction
and 	child 	care.
For 	some 	years, 	top 	administrators 	within 	the 	County 	have
held 	an 	ongoing 	discussion 	about 	the 	proper 	role 	of 	a 	county
department 	of 	education. 	One 	focus 	of 	that 	discussion 	was 	the
operation 	of 	the 	migrant 	program. 	A number 	of 	factors 	made 	its
continued 	operation 	undesirable 	from 	the 	County's 	point 	of
view. 	One 	problem 	was 	a 	conflict 	between 	the 	calendar 	year
orientation 	of 	the 	migrant 	program 	and 	the 	academic 	year
orientation 	of 	all 	other 	County 	operations. 	This 	conflict
carried 	over 	into 	the 	funding 	cycle 	with 	income 	and
expenditures 	for 	the 	migrant 	program 	geared 	toward 	a 	calendar
year 	while 	the 	remainder 	of 	the 	County's 	operations 	were 	funded
on 	a 	fiscal 	year 	basis. 	In 	addition, 	federal 	rules 	for 	the
migrant 	program 	were 	designed 	for 	operation 	by 	a 	community
agency 	and 	the 	County 	found 	them 	cumbersome 	for 	a 	governmental
entity.
6

The
	County's
	general
	dissatisfaction
	with
	the 	migrant
program
	came
	into 	clear
	focus
	in 	the 	spring
	of
	1983 	when
	the
County
	discovered
	that
	it
	was
	losing
	money 	on
	the
	program.
After
	being
	self-supporting 	for
	years~
	the
	migrant
	program
	was
headed
	for
	a 	1983
	deficit
	of 	$139,166.
	The
	projection
	was
	that
the
	progr~m
	could
	lose
	as
	much
	as
	$250,000
	annually 	in
	1984
	and
later
	years.
	When
	they
	received 	those
	gloomy
	numbers, 	County
administrators
	began
	to 	think
	seriously
	about
	getting
	out
	of
the
	migrant
	program.
Shortly
	after
	the
	deficit
	was
	discovered 	in
	May
	of 	1983,
County
	personnel
	director
	Jack
	Francis 	contacted
	CSEA
	field
representative
	Nancee 	Maya 	and
	told
	her 	of
	the
	problem.
	Since
August
	of
	1979,
	CSEA
	has 	been
	exclusive
	representative
	of
	an
office-technical-business-services 	unit,
	a
	paraprofessional
unit
	and 	an
	operations
	and
	support
	unit
	of
	the 	County's
employees. 	Since
	August
	of
	1980,
	CSEA
	also
	has 	been
	exclusive
representative
	of
	a
	permit 	teacher 	unit
	of 	the 	County's
employees.
on
	July 	12,
	1983,
	Mr.
	Francis
	wrote
	to
	Ms. 	Maya
	advising
her
	that
	the
	County 	might 	have
	to 	lay 	off
	"a
	considerable
number
	of
	classified
	employees
	who
	are 	connected 	with 	our
migrant/child
	development 	programs."
	He
	urged 	an
	early
	meeting
between 	the
	parties
	to 	reach
	an
	understanding
	on
	the 	timing 	of
layoff 	notices.
	CSEA
	and
	the
	County
	agreed 	to 	hold 	a
	meeting
within 	three
	days 	of 	Mr.
	Francis'
	letter.
7

At
	the
	time
	the
	parties
	met 	on
	July
	15
	they
	were,
	to
	some
degree, 	dealing
	with
	a
	hypothetical
	change.
	Although
	leaning
toward
	removing
	itself
	from
	the 	migrant
	program,
	the
	County
	was
still
	considering
	the 	idea
	and
	did
	not
	plan
	to
	make 	a
	final
decision
	before
	September.
	Despite 	the
	uncertainty, 	the
parties
	negotiated
	on
	July
	15 	and
	reached
	what
	they
	described
as
	an
	"agreement 	in	
relation 	to	
the
	effect
	of
	layoff
	of
classified
	and
	certificated
	employees
	in
	relation
	to 	the
possible
	termination
	of
	the
	Child
	Development 	Program
	operated
by
	the
	Department."
	The
	agreement
	set
	out
	eligibility
	for
unemployment
	insurance
	benefits
	and
	provided 	for
	continuation
pf
	health
	insurance 	coverage.
Mr.
	Francis
	again
	met
	with
	Ms. 	Maya 	on
	August
	5,
	19B3,
	at
	a
meeting 	she
	described 	as
	dealing
	with
	the 	design
	and
	content
	of
the 	layoff 	notices.
	Mr.
	Francis
	testified
	that 	at
	the
	meeting
the
	parties
	had
	discussed
	whether
	the 	County's 	proposed
	action
was
	similar 	to 	the 	contracting
	out 	of
	bus
	services
	which
previously
	had
	been
	undertaken 	in
	a
	nearby 	Oakdale
	school
district.
	He
	testified
	that
	Ms. 	Maya 	had
	stated 	that
	she
believed 	the 	County's
	impending
	action
	was
	not
	like
	the
	Oakdale
situation.
	Ms. 	Maya
	testified 	that
	she 	did 	not
	recall
	making
such
	a
	statement.
On
	August
	17, 	the
	County 	commenced
	sending 	layoff 	notices
to
	employees
	in 	the 	migrant 	program. 	The
	notices
	were
	sent
	on
a
	rolling 	basis 	with 	the 	date
	an
	individual
	employee
	received
	a
8

notice
	determined
	by when
	that
	employee
	finished 	his
	or 	her
pre-determined 	period
	of
	employment.
	Ultimately,
	107
	employees
received
	layoff 	notices.
Not
	long
	after
	the
	first
	layoff 	notices
	were
	sent 	to
employees,
	newspaper
	articles
	were
	published
	about
	the
	layoff.
The
	articles
	led 	to
	consternation
	among
	parents
	and
	others
about
	whether
	the
	migrant
	education
	centers
	would
	be
	closed.
To 	ward
	off
	those
	fears, 	representatives
	of
	the
	County
	office
met
	with
	interested 	parties
	to 	assure
	them
	that
	the
	centers
would
	not
	be
	closed 	but
	that
	some
	other 	organization
	might
	take
over
	their
	operation.
Despite 	the 	apparent
	finality
	of
	wording
	in 	the
	layoff
notices,
	the
	County 	was
	still
	undecided
	in 	early
	fall
	about
whether
	it
	would
	continue 	to 	operate 	the
	migrant
	program
	in
1984.
	A
negotiations
	ses5ion
	was
	held
	on
	September
	14,
	1983,
to
	permit
	further 	discussions
	between
	the
	parties
	about
	the
financial
	problem,
	estimated 	during 	the
	meeting
	to
	be 	a
	deficit
of 	about
	30
	percent.
	At
	the 	meeting,
	Mr.
	Francis
	set
	out
	a
timetable 	for
	a
	final
	decision
	about
	the 	County's
	role 	in 	the
migrant
	program.
	Under
	the 	timetable,
	a
	final
	decision
	had
	to
be
	made 	by
	October
	14
	in 	order 	to 	permit 	time
	for 	the
	selection
of
	a
	replacement 	agency.
The
	parties
	next
	met 	on
	October 	26, 	1983. 	Although
	the
meeting
	was
	held
	after 	the 	deadline,
	Mr.
	Francis
	earlier
	had
advanced, 	the
	County
	still
	had 	not 	reached 	a
	final 	decision
	on
9

the
	migrant
	program.
	Negotiations
	once
	more
	centered
	upon
	the
question
	of
	whether
	or 	not
	the
	County
	should 	cease
	its
	direct
involvement
	in 	the 	operation
	of
	the
	migrant
	program.
	In
	an
effort
	to
	avoid
	the
	threatened
	layoff,
	CSEA
	offered 	to
	accept
	a
pay
	reduction
	of
	5
	percent 	for
	all
	employees 	working
	in
	the
migrant
	program.
	The 	County
	responded
	by
	giving
	CSEA
	a
financial
	analysis
	the
	union
	earlier
	had
	requested.
	The
analysis
	showed
	various
	ways
	that
	cuts
	of
	up
	to
	30
	percent
would 	have
	to
	be
	taken
	from
	the
	program
	if
	it
	were
	to
	become
self-sufficient.
	The 	County
	rejected
	the
	proposed
	5
percent
cut
	as 	completely
	inadequate.
	During
	the
	meeting,
	the
	County
sought
	to
	allay
	Ms.
	Maya's
	earlier
	voiced 	concerns
	that
transfer
	of
	the
	program
	to
	a
	delegate
	agency
	would
	constitute
contracting
	out 	of
	unit
	work.
	The 	County
	reported 	to 	her
information
	it
	had
	received
	from
	federal
	authorities 	that
employees 	of
	organizations 	operating 	federal
	programs 	under
County
	supervision
	could 	not
	be
	considered
	County
	employees.
The
	parties
	met
	again,
	on 	November
	1,
	1983.
	The
	County
still
	had
	not
	made 	a
	final
	decision
	about 	whether 	or 	not 	to
terminate
	its
	direct
	involvement
	in 	the 	operation 	of
	the
migrant
	program. 	Once 	more,
	the 	focus 	of 	the 	negotiations
	was
on
	whether 	or 	not 	the
	County
	should 	take 	that 	step.
	CSEA
proposed
	that 	the
	salaries
	of 	migrant 	child
	development
	center
employees 	nbe 	reduced 	to 	the 	extent 	necessary 	for 	the 	program
to 	remain 	within 	the 	limits
	of
	its
	funding."
	The 	County
10

rejected 	the 	proposal. 	Mr. 	Francis 	told 	the 	union 	that 	such
pay 	reductions 	would 	create 	an 	impossible 	morale 	problem 	with
employees 	in 	the 	migrant 	program 	receiving 	30 	percent 	less 	than
other 	County 	workers 	performing 	comparable 	duties. 	He 	said 	the
unequal 	pay 	also 	would 	have 	divided 	employees 	along 	racial
lines 	because 	the 	majority 	of 	those 	affected 	would 	have 	been
Hispanic.
On 	November 	7, 	1983, 	the 	County 	reached 	a 	final 	decision 	to
remove 	itself 	from 	direct 	operation 	of 	the 	migrant 	program.
The 	decision 	was 	reached 	by 	consensus 	after 	a 	lengthy
discussion 	between 	John 	Allard, 	the 	County 	superintendent,
John 	Hendrickson, 	the 	assistant 	superintendent, 	and
Mr. 	Francis. 	The 	three 	administrators 	reviewed 	the 	problems
which 	the 	County 	had 	encountered 	with 	the 	migrant 	program.
They 	concluded 	that 	while 	the 	CSEA 	proposal 	to 	accept 	a 	wage
reduction 	would 	solve 	the 	immediate 	financial 	problem 	it 	would
not 	solve 	the 	problem 	in 	future 	years.
On 	the 	same 	day 	as 	it 	reached 	its 	final 	decision, 	the
County 	sent 	a 	letter 	to 	all 	affected 	employees 	advising 	them
that 	the.County 	would 	seek 	a 	private, 	non-profit 	organization
to 	take 	over 	the 	migrant 	program. 	On 	November 	16, 	the 	County
notified 	employees 	that 	the 	effective 	date 	of 	their 	layoff
would 	be 	changed 	to 	December 	31, 	1983. 	This 	action 	had 	the
effect 	of 	extending 	the 	health 	benefits 	of 	all 	migrant 	center
employees 	to 	January 	31, 	1984. 	Although 	CSEA 	apparently 	was
11

not 	consulted 	about 	the 	change 	in 	the 	effective 	date 	of 	the
layoff, 	it 	raised 	no 	objection 	after 	it 	learned 	of 	the 	action.
Ultimately, 	94 	unit 	members 	were 	laid 	off 	from 	their 	jobs
in 	the 	migrant 	program. 	Of 	those, 	eight 	had 	been 	reemployed 	in
other 	County 	programs 	as 	of 	the 	date 	of 	the 	hearing.
The 	parties 	held 	no 	meetings-about 	the 	layoff 	during 	the
remainder 	of 	1983. 	On 	January 	16, 	1984, 	Ms. 	Maya 	wrote 	to
Mr. 	Francis 	declaring 	that 	CSEA 	had 	reached 	the 	conclusion 	that
the 	County's 	plan 	to 	get 	out 	of 	the 	migrant 	program 	actually
was 	the 	subcontracting 	of 	bargaining 	unit 	work. 	In 	her 	letter,
Ms. 	Maya 	asserted 	that 	the 	County's 	action 	was 	negotiable 	and
she 	demanded 	that 	the 	County 	meet 	and 	negotiate 	on 	the
subj~ct. 	She 	also 	demanded 	that 	the 	County 	rehire 	the 	affected
employees 	and 	restore 	the 	status 	quo 	prior 	to 	the 	commencement
of 	negotiations.
In 	response 	to 	the 	CSEA 	demand, 	the 	parties 	met 	on
February 	10, 	1984. 	CSEA 	offered 	two 	alternatives. 	The 	County
should 	either 	rehire 	all 	of 	the 	laid 	off 	employees 	and 	continue
its 	operation 	of 	the 	migrant 	program 	or 	it 	should. require 	the
new 	operator 	to 	adhere 	to 	the 	terms 	of 	the 	contract 	between 	the
County 	and 	CSEA. 	The 	County 	rejected 	the 	alternatives.
Mr. 	Francis 	responded 	that 	th_e 	Cou-nty 	had 	not 	gone 	through 	all
the 	difficulty 	of 	the 	layoff 	in 	order 	to 	simply 	rescind 	it.
Regarding 	the 	proposed 	transfer 	of 	the 	contract 	to 	the 	new
12

operator, 	Mr. 	Francis 	took 	the 	position 	that 	the 	County 	had 	no
legal 	authority 	to 	make 	such 	a 	requirement.
On 	March 	2, 	1984, 	the 	County 	made 	a 	written 	proposal 	in 	a
letter-from 	Mr. 	Francis 	to 	Ms. 	Maya. 	Under 	the 	proposal, 	the
laid 	off 	County 	employees 	would 	have 	preferential 	hiring 	rights
at 	the 	new 	delegate 	agency. 	The 	County 	would 	provide 	training
to 	laid 	off 	employees 	to 	make 	them 	eligible 	for 	vacancies
within 	remaining 	unit 	jobs 	as 	vacancies 	developed.
Re-employment 	rights 	for 	laid 	off 	migrant 	program 	employees
would 	be 	extended 	from 	39 	months 	to 	45 	months. 	The 	County
would 	pay 	each 	laid 	off 	employee 	$100 	as 	compensation 	for 	lost
health 	benefits 	and 	CSEA 	would 	be 	given 	an 	opportunity 	to
review 	and 	offer 	comments 	regarding 	the 	organi~ations 	under
consideration 	to 	take 	over 	the 	program.
CSEA 	did 	not 	respond 	to 	the 	proposal, 	prompting 	a 	follow-up
letter 	from 	Mr. 	Francis 	to 	Ms. 	Maya. 	In 	that 	letter 	he 	accused
CSEA 	of 	a 	lack 	of 	cooperation 	in 	trying 	to 	reach 	an 	agreement
and 	said 	that 	Ms. 	Maya 	did 	not 	return 	his 	calls 	or 	make 	herself
available 	for 	a 	meeting. 	Ms. 	Maya 	responded 	in 	writing 	on
April 	2 	saying 	that 	she 	did 	not 	understand 	how 	further 	meetings
would 	be 	useful 	because 	of 	the 	County's 	refusal 	to 	discuss 	the
CSEA 	proposals 	of 	February 	10.
Despite 	their 	differences 	the 	parties 	did 	meet 	twice 	more.
At 	a 	meeting 	on 	April 	13, 	the 	County 	offered 	to 	pay 	some
college 	costs 	for 	laid 	off 	employees 	and 	proposed 	to 	increase
13

compensation
	for
	lost
	health
	benefits
	from
	$100
	to
	$150.
	The
parties
	met
	again
	on
	April
	18
	and
	the
	County
	increased 	to
	$200
the
	amount
	it
	was
	willing
	to
	pay 	employees
	for
	lost
	health
benefits.
	At
	both
	meetings,
	CSEA
	maintained
	its
	insistence
that
	the
	County
	either 	rehire
	all
	of
	the
	laid
	off
	migrant
employees 	or
	ensure
	that
	the
	new
	operator
	of
	the
	program
	adhere
to 	the
	terms 	of
	the
	County-CSEA
	contract.
	No
	agreement
	was
reached.
The
	parties
	are 	in
	disagreement 	about
	when
	during
	these
negotiations
	CSEA
	first
	demanded
	to
	bargain
	about
	the
contracting
	out 	of
	unit
	work.
	The
	County
	asserts 	that
	the
issue
	was
	not
	raised
	until
	Ms.
	Maya's
	January
	16
	letter.
	CSEA
contends
	that
	the
	issue
	was
	raised 	considerably
	earlier.
Regarding
	the
	August 	5, 	1983,
	negotiation 	session,
	Mr.
	Francis
testified
	that
	the
	parties
	discussed 	the 	busing
	situation
	in
nearby
	Oakdale
	"because
	Nancee 	had
	raised 	the 	issue
	of 	whether
or 	not
	what
	we
	were
	doing
	was
	contracting
	out 	of
	services."
3
Because
	of
	CSEA's
	continued
	inquiries
	about
	the 	question
	of
contracting 	out, 	the
	County 	on
	October 	11, 	1983, 	wrote
	to
federal 	authorities
	requesting
	clarification
	about 	the
	status
of 	persons
	employed 	by 	an
	organization
	which
	operates
	a
	migrant
program.
	On
	November
	14, 	1983, 	the
	County
	sent 	to
	Ms. 	Maya
	the
response
	it
	received
	from
	administrators 	in 	the 	Department 	of
3see
	reporter's 	transcript 	at
	pp. 	120-121.
14

Health 	and 	Human 	Services. 	Ms. 	Maya 	believed 	that 	the 	response
actually 	strengthened 	her 	position 	that 	the 	County's 	action 	was
contracting 	out 	unit 	work 	and 	advised 	Mr. 	Francis 	of 	her
belief. 	Mr. 	Francis 	acknowledged 	on 	cross-examination 	that
prior 	to 	the 	County's 	November 	7 	decision 	to 	cease 	its
participation 	in 	the 	migrant 	program 	he 	clearly 	knew 	of 	CSEA's
opposition.
In 	early 	1984 	the 	County 	placed 	a 	newspaper 	advertisement
soliciting 	proposals 	from 	organizations 	seeking 	to 	administer
the 	migrant 	child 	development 	program. 	The 	application
deadline 	was 	set 	for 	March 	7. 	The 	County's 	request 	for
proposals 	offered 	an 	award 	of 	$1,070,000 	to 	an 	agency 	or
contractor 	which 	would 	provide 	services 	to 	some 	440 	children
aged 	6 	weeks 	to 	S years 	from 	May 	1, 	1984, 	through 	November 	15.
Shortly 	after 	the 	application 	deadline 	the 	County 	awarded 	a
contract ·to 	Stanislaus 	County 	Child 	and 	Infant 	Care, 	Inc., 	a
private, 	nonprofit 	corporation.
The 	migrant 	program 	opened 	on 	or 	about 	May 	1, 	1984, 	in 	the
same 	three 	farm 	labor 	camps 	where 	the 	County 	formerly 	had
operated 	it. 	However, 	in 	1984 	the 	County's 	relationship 	with
the 	operator 	was 	the 	same 	as 	its 	relationship 	with 	the
operators 	of 	migrant 	child 	development 	programs 	in 	the 	other
six 	counties 	for 	which 	the 	Stanislaus 	County 	office 	is 	the
regional 	administrator. 	The 	County 	awarded 	the 	contract,
monitored 	the 	operation 	and 	funneled 	the 	monies 	to 	the
15

organization
	which
	actually
	provided
	the
	services, 	Stanislaus
County
	Child
	and
	Infant
	Care,
	Inc.
	The
	County
	did
	not
	hire
	the
employees,
	set 	their 	salaries
	or 	provide
	care 	to 	the
	children.
The
	only
	County
	role
	was
	that
	of
	an
	agent
	for
	the
	federal
government.
LEGAL
	ISSUES
1.	
Did
	CSEA
	waive 	any
	rights
	it
	may
	have 	had
	to
	negotiate
about 	the
	County's
	decision 	to
	cease
	its
	direct
	operation
	of
the
	migrant
	child
	development
	program?
2.	
Was
	the 	County's
	decision 	to
	cease
	direct
.operation
	of
the
	migrant
	program
	a
	matter 	within 	the
	scope 	of
	representation
and
	if
	so, 	did 	the
	County
	act 	unilaterally?
3.	
Did
	the
	County
	refuse 	to 	negotiate
	about
	the
	effects
of
	its
	decision 	to
	cease
	direct
	operation
	of 	the 	migrant
program?
CONCLUSIONS
	OF
	LAW
Waiver.
The 	County
	argues
	that
	CSEA
	waived 	any
	right
	it
	may
	have
had
	to 	negotiate
	about
	the 	decision 	to 	cease 	operation 	of 	the
migrant
	program 	by
	failing
	to
	make 	a
	timely
	demand
	to
negotiate.
	The 	County
	contends
	that
	while
	CSEA
	knew
	of 	the
possibility
	of 	the
	change 	as
	early
	as
	May
	of 	1983,
	it
	was
	not
until
	January 	16, 	1984,
	that 	the
	CSEA
	field 	representative
	made
a
	request 	to 	negotiate. 	Prior 	to 	that 	time, 	the
	County
	argues,
the
	CSEA
	representative
	had
	questioned 	whether 	the 	County's
16

proposed
	decision
	was
	contracting
	out 	but
	had
	never
	made 	a
demand
	to
	bargain
	about
	that
	subject.
CSEA
	rejects
	the
	claim 	of 	waiver, 	noting
	that
	under
	PERB
precedent
	a
	waiver
	will
	not
	be
	lightly
	inferred.
	CSEA
	argues
that
	in 	order 	to
	show
	waiver
	the
	County 	must
	produce
	evidence
of
	clear
	and
	unmistakable 	language 	or 	behavior
	indicating
	an
intent
	to
	waive
	bargaining
	rights.
	No
	such
	language
	or
demonstrative 	behavior
	has
	been
	shown,
	CSEA
	contends.
	To
	the
contrary,
	CSEA
	asserts,
	the
	evidence
	shows
	that
	the
	CSEA
	field
representative 	raised
	the
	issue
	of
	contracting
	out
	on 	numerous
occasions.
	More
	significantly,
	the
	union
	argues, 	the
	parties
actually
	negotiated 	the
	issue,
	although 	they 	did 	not
	reach
agreement
	on
	it.
The
	PERB
	has
	consistently
	held
	that
	the
	waiver 	of
bargaining
	rights
	by 	a
	union
	will
	not
	be
	lightly 	inferred.
Oakland
	Unified
	School
	District
	(8/31/82)
	PERB
	Decision
No. 	236. 	For 	an 	employer
	to
	show
	that
	a
	union
	waived
	its
	right
to 	negotiate,
	the
	employer 	must
	produce 	evidence
	of:
•••
	either 	clear
	and
	unmistakable
language,
	Amador
	Valley
	Joint
	Union 	High
School
	District
	(10/2/78)
	PERB
	Decision
No.
	74, 	or 	demonstrative 	behavior 	waiving
	a
reasonable 	opportunity 	to 	bargain 	over
	a
decision 	not 	already 	firmly
	made 	by
	theemployer.
	San 	Mateo 	County 	Community
College
	District
	(6/8/79)
	PERB
	Decision
No. 	94;
	Sutter
	Union 	High
	School
	District
(10/7/81)
	PERB
	Decision
	No.
	175.
17

Demonstrative 	behavior 	sufficient 	to 	waive 	the 	right 	to
bargain 	has 	been 	found 	where 	a 	union 	failed 	to 	demand
negotiations 	in 	a 	manner 	that 	adequately 	signified 	its 	desire
to 	negotiate. 	Newman-Crows 	Landing 	Unified 	School 	District
(6/30/82) 	PERB 	Decision 	No. 	223. 	However, 	the 	determination
about 	whether 	a 	particular 	communication 	constitutes 	a 	proper
request 	to 	bargain 	"is 	a 	question 	of 	fact 	to 	be 	determined 	on 	a
case-by-case 	basis." 	Delano 	Joint 	Union 	High 	School 	District
(5/5/83) 	PERB 	Decision 	No. 	307. 	To 	be 	effective,·"a 	request 	to
negotiate 	need 	not 	be 	specific 	or 	made 	in 	a 	particular 	form."
Gonzales 	Union 	High 	School 	District 	(9/28/84) 	PERB 	Decision
No. 	410. 	The 	significant 	determination 	is 	whether 	the 	union's
request 	was 	sufficient 	to 	make 	its 	desire 	known.
It 	is 	abundantly 	clear 	that 	CSEA 	raised 	the 	issue 	of
contracting 	out 	long 	before 	the 	District's 	final 	decision 	to
cease 	operation 	of 	the 	migrant 	child 	centers. 	The 	County's
chief 	negotiator 	acknowledged 	that 	his 	CSEA 	counterpart 	had
raised 	the 	issue 	of 	subcontracting 	as 	early 	as 	the
August 	5, 	1983, 	negotiating 	session. 	In 	an 	attempt 	to 	dissuade
the 	CSEA 	negotiator 	from 	her 	contention 	that 	the 	County 	was
contracting 	out, 	the 	County 	wrote 	to 	federal 	authorities 	on
October 	11 	to 	secure 	an 	opinion 	about 	the 	issue. 	At 	the
negotiating 	session 	of 	October 	26, 	the 	County 	again 	sought 	to
convince 	Ms. 	Maya 	that 	it 	was 	not 	contracting 	out 	union 	work.
County 	negotiator 	Francis 	testified 	that 	as 	of 	November 	7, 	the
18

date
	the
	County
	reached
	its
	final
	decision,
	he 	knew
	of
	CSEA
opposi~ion
	to 	the
	action.
Moreover, 	as
	CSEA
	argues
	in
	its
	brief,
	there
	is
uncontroverted
	evidence
	that
	the
	parties
	in
	fact 	negotiated
about 	the 	County's
	decision 	to
	cease
	operation
	of
	the
	migrant
child 	centers.
	The
	negotiating 	sessions
	of
	October
	26
	and
November 	1
	involved
	CSEA
	proposals
	designed
	to
	head
	off
	a
County
	decision 	to
	get 	out 	of
	the
	program.
	These
	are
	precisely
the
	type 	of
	proposals
	which 	one
	might
	expect 	following
	a 	demand
to
	bargain
	about
	a
	proposal 	to 	contract
	out
	unit
	work.
	It
seems
	inconceivable
	that
	the
	County 	would 	have
	negotiated
	about
the 	decision 	to
	cease
	operation
	of 	the
	migrant
	centers
	if
	CSEA
had 	waived
	its
	claim
	to 	bargain
	by
	failing
	to
	make 	a
comprehensible
	demand.
	It
	is
	true 	that
	CSEA
	made 	no
	written
request 	to 	negotiate
	about
	contracting
	out
	until
January 	16,
	1984.
	But
	the 	organization
	earlier
	had 	made
	oral
demands
	to 	bargain
	and 	by
	January 	16,
	the 	issue
	had
	been 	long
raised
	and 	much
	discussed.
	To
	read 	the
	fall
	1983
	negotiations
any
	other
	way 	would
	be, 	as
	CSEA
	argues, 	the
	exaltation 	of
	form
over 	substance.
For
	these 	reasons, 	the 	County's
	assertion 	that
	CSEA
	waived
any
	rights
	it
	may
	have 	had
	to 	negotiate
	about
	contracting 	out
is 	rejected.
Scope 	of 	Representation.
CSEA
	recites 	the 	familiar 	rule 	that 	absent
	a
	valid 	defense,
it 	is
	a 	per 	se 	violation 	of 	the
	EERA
	for
	an 	employer 	to
	make 	a
19

unilateral 	change 	in 	a 	matter 	within 	the 	scope 	of
representation. 	It 	is 	equally 	well 	settled, 	CSEA 	continues,
that 	a 	decision 	to 	subcontract 	bargaining 	unit 	work 	is 	within
the 	scope 	of 	representation 	and 	thus 	negotiable 	when 	that
decision 	changes 	an_existing 	employment 	policy. 	Analogizing 	to
Fibreboard 	Paper 	Products 	Corp. 	v. 	NLRB 	(1964) 	379 	U.S. 	203 	[57
LRRM 	2609], 	CSEA 	argues 	that 	the 	"existing" 	policy 	of 	the
County 	was 	to 	use 	its 	own 	workers 	to 	operate 	the 	migrant
centers. 	Like 	the 	employer 	in 	Fibreboard, 	CSEA 	continues, 	the
County 	then. unilaterally 	laid 	off 	its 	workers 	and 	subcontracted
the 	work 	to 	an 	outside 	organization. 	CSEA 	argues 	that 	the
action 	did 	not 	alter 	the 	b~$iC 	operation 	of 	the 	migrant
program. 	CSEA 	contends 	that 	the 	County 	retains 	the 	ultimate
responsibility 	for 	the 	migrant 	program 	and 	that 	it 	has 	merely
replaced 	its 	own 	employees 	with 	those 	of 	another 	agency 	to 	do
the 	same 	work 	under 	similar 	conditions.
The 	County 	argues 	that 	its 	decision 	was 	a 	basic 	managerial
prerogative 	not 	subject 	to 	bargaining. 	Citing 	Otis 	Elevator
Co. 	(1984) 	269 	NLRB 	No. 	162 	[115 	LRRM 	1281, 	corr. 	at 	116 	LRRM
1075], 	the 	County 	contends 	that 	an 	employer 	may 	unilaterally
elect 	to 	change 	the 	nature 	and 	direction 	of 	its 	business.
Where 	the 	purpose 	of 	the 	action 	is 	to 	change 	the 	nature 	of 	the
business 	and 	not 	merely 	to 	save 	labor 	costs, 	the 	County 	argues,
there 	is 	no 	obligation 	to 	bargain 	about 	the 	decision 	itself.
Here, 	the 	County 	continues, 	its 	decision 	to 	cease 	operation 	of
20

the 	migrant 	centers 	was 	predicated 	upon 	a 	fundamental 	change 	in
its 	direction. 	It 	wanted 	to 	cease 	direct 	operation 	of 	a
program 	it 	found 	"exceedingly 	troublesome 	ana 	uncertain."
Thus, 	the 	County 	argues, 	federal 	precedent 	supports 	the
unilateral 	nature 	of 	its 	decision 	to 	cease 	direct 	operation 	of
the 	migrant 	centers. 	The 	County 	finds 	PERB 	precedent 	for
deciding 	scope 	questions 	to 	be 	consistent 	with 	the 	federal
rules 	and 	under 	either 	standard 	the 	County's 	action 	was 	lawful.
Although 	CSEA 	portrays 	this 	case 	as 	a 	straight-forward
matter 	of 	contracting 	out, 	the 	issue 	actually 	is 	somewhat 	more
complicated. 	This 	case 	does 	not 	involve 	a 	school 	district
which 	abandons 	its 	transportation 	program 	and 	hires 	a 	private
bus 	company 	or 	lays 	off 	its 	custodians 	and 	employs 	a 	janitorial
service. 	The 	program 	which 	the 	County 	has 	given 	up 	is 	not 	a
regular 	function 	of 	a 	county 	superintendent 	of 	schools. 	The
operation 	of 	the 	migrant 	education 	centers 	is 	a 	federal
activity 	which 	the 	County 	had 	undertaken 	on 	behalf 	of 	the
United 	States 	Government. 	Thus 	the 	question 	presented 	here 	is
whether 	the 	decision 	of 	a 	public 	school 	employer 	to 	drop 	its
operation 	of 	a 	federal 	program 	is 	a 	matter 	within 	scope 	of
representation 	under 	the 	EERA. 4
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
21

Under
	the
	EERA,
	a
	public
	school
	employer
	is
	obligated 	to
negotiate
	about
	matters
	relating
	to
	wages,
	hours
	of
	employment
and
	nine
	specifically
	enumerated
	terms
	and
	conditions 	of
employment.
	The
	PERB
	will
	find
	a
	subject 	negotiable
	even
though
	not
	specifically
	enumerated 	in	
section
	3543.2
	if:
(1)
	it
	is
	logically
	and
	reasonably
	related
	to
	hours,
	wages
	or
an
	enumerated 	term
	and
	condition
	of
	employment, 	(2)
	the
	subject
is
	of
	such ~oncern
	to
	both
	management 	and
	employees
	that
conflict 	is 	likely
	to
	occur
	and
	the
	mediatory
	influence
	of
collective
	negotiation
	is
	the 	appropriate
	means
	of
	resolving
the
	conflict,
	and 	(3)
	the 	employer's
	obligation 	to
	negotiate
would
	not
	significantly
	abridge 	the 	employer's
	freedom
	to
exercise
	those 	managerial
	prerogatives 	(including 	matters
	of
fundamental
	policy)
	essential
	to 	the
	achievement 	of
	the
employer's 	mission.
	Anaheim 	Union 	High
	School
	District
(10/28/81)
	PERB
	Decision
	No.
	177;
	test
	approved
	in
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 	EducationCode
	••• 
22

San
	Mateo
	City
	School
	District
	v.
	PERB
	(1983)
	33
	Cal.3d
	850
[191
	Cal.Rptr.
	800].
The
	decision
	on
	whether
	the
	County
	should
	have
	ceased
	its
direct
	operation
	of
	the
	migrant 	education
	centers
unquestionably
	involved
	the
	employment
	relationship.
	It
	was 	a
decision
	of
	such
	concern
	to
	both
	management 	and
	employees
	that
conflict
	was
	likely
	to
	occur.
	Because
	of
	the 	nature
	of
	the
decision,
	however,
	it
	is
	doubtful
	that
	the 	negotia~ions 	process
was
	the 	appropriate 	vehicle 	for 	reaching
	a
	decision.
The
	program
	in 	question
	is
	not
	a 	County
	program
	prescribed
by
	the
	Education
·code
	as
	the
	responsibility
	of
	a
	county
superintendent
	of
	schools.
	It
	is
	a
	program
	of
	the
	federal
government
	created 	to
	meet 	a
	need
	discerned
	by
	federal
authorities.
	The
	program
	operates
	under
	strict
	federal
guidelines 	(see,
	Title.
	45,
	Chapter
	XIII,
	of
	the
	Code
	of
Federal 	Regulations)
	and
	its
	ultimate
	continuance 	or
discontinuance
	has
	little
	to
	do
	with 	whether
	the
	County
	stayed
in 	or 	stepped
	out.
	Even
	if
	the
	County
	ceased
	entirely 	to
participate
	in 	the
	program 	and 	dropped
	its
	role
	as
	regional
administrator, 	the
	program 	would
	continue
	if
	federal
authorities 	elected 	to 	continue
	it.
	The
	federal
	government
could
	select
	a 	new
	regional 	administrator 	to 	either 	operate 	the
program 	or 	find
	an
	organization 	that
	would. 	That 	the
	County
elected 	to 	continue
	its
	role 	as 	regional 	administrator 	of 	the
migrant 	program 	does 	not 	change 	the 	essential 	nature 	of 	the
23

operation. 	In 	this 	role 	the 	county, 	as 	described 	in 	its 	brief,
is 	merely 	a 	"pipeline" 	through 	which 	the 	funding 	flows. 	When
it 	acts 	as 	administrator, 	the 	County 	is 	the 	agent 	of 	federal
authorities. 	The 	County's 	role 	as 	agent 	does 	not 	somehow
transform 	what 	is 	fundamentally 	a 	federal 	program.into 	a 	local
one.
The 	question 	before 	the 	County 	was 	whether 	it 	should
continue 	to 	operate 	a 	federal 	program 	that 	presented 	it 	with
both 	administrative 	and 	financial ·difficulties. 	The 	County 	wa~
uncomfortable 	with 	the 	operational 	calendar 	of 	the 	migrant
program 	and 	with 	the 	regulations 	governing 	it, 	both 	of 	which 	in
the 	County's 	view 	were 	geared 	more 	toward 	a 	nonprofit 	community
.
organization 	than 	a 	governmental 	agency. 	Moreover, 	the 	County
was 	faced 	with 	a 	loss 	of 	$139,166 	from 	operation 	of 	the 	program
in 	1984 	and 	projected 	losses 	of 	nearly 	twice 	as 	much 	in
subsequent 	years. 	The 	question 	before 	the 	County 	was 	a
fundamental 	one. 	Whether 	a 	school 	employer 	continues 	to
operate 	a 	program 	on 	behalf 	of 	the 	federal 	government 	is 	a
basic 	managerial 	prerogative. 	Negotiation 	was 	not 	required. 5
5 The 	County's 	action 	is 	distinguishable 	from 	that 	of 	the
school 	board 	in 	Arcohe 	Union 	School 	District 	(5/16/84) 	PERB
Decision 	No. 	360. 	In 	Arcohe, 	a 	school 	employer 	lost 	the
federal 	CETA 	funding 	that 	it 	had 	used 	to 	pay 	its 	custodians.
After 	the 	cut-off 	of 	federal 	funds, 	the 	district 	elected 	to
maintain 	the 	same 	level 	of 	custodial 	services 	through
subcontracting 	the 	unit 	work 	to 	a 	janitorial 	service. 	The 	PERB
found 	the 	decision 	to 	contract 	out 	work 	to 	be 	negotiable 	and,
because 	it 	was 	taken 	unilaterally, 	a 	violation 	of 	the 	EERA.
The 	present 	case 	does 	not 	present 	the 	situation 	where 	federal
funds 	were 	used 	to 	finance 	what 	is 	essentially 	a 	local 	program,
24

·
	Accordingly,
	it
	is
	concluded
	that
	the 	County's
	decision
	to
cease 	operation
	of
	the
	migrant
	children 	centers
	was
	outside
	the
scope 	of
	representation
	under
	the
	EERA.
	Even
	though
	the
	county
did
	meet
	and
	discuss 	the 	decision
	with
	CSEA,
	it
	had 	no
obligation
	to 	secure
	an
	agreement.
	Because
	the 	matter
	was
outside
	the
	scope
	of
	representation,
	the
	County
	was
	enti~led
	to
act
	unilaterally.
Negotiations
	over
	Effects.
It
	is
	alleged 	in 	the
	complaint
	that
	the
	County
	failed
	to
negotiate
	about
	the
	effects
	of
	its
	decision 	to
	cease
	operation
of
	the 	three
	migrant 	education
	centers.
	In
	its
	bri~f,
	CSEA
does 	not
	specifically
	address 	the
	allegation 	that
	the
	County
failed
	to 	negotiate
	about
	the
	effects
	of
	its
	decision,
concentrating 	instead
	on
	the 	theory
	that
	the 	decision
	itself
was
	negotiable.
The
	County
	concedes
	the
	negotiability
	of 	the
	effects
	of
	its
decision
	but 	argues
	that
	CSEA
	never 	requested 	to 	negotiate
about
	that 	subject.
	The
	County
	notes
	that
	it
	negotiated 	the
effects
	of
	the 	layoff
	and
	reached 	agreement 	with
	CSEA
	on
like
	the 	cleaning 	of 	classrooms. 	Here,
	federal
	funds 	were
provided 	to
	a
	local
	employer
	to
	run
	a
	federal
	program.
	The
migrant 	education
	program 	was
	initiated
	by
	the 	federal
government 	and
	tightly 	controlled
	by
	it.
	Unlike 	the 	cleaningof 	classrooms, 	operation 	of 	the 	migrant 	program
	is
	an
	activity
which 	did 	not
	exist 	before 	the
	arrival
	of
	federal
	funds 	and
might 	well 	cease 	should 	those 	funds 	ever 	be 	withdrawn.
25

July
	15;
	The
	County
	argues
	that
	it
	was
	further 	willing 	to
negotiate
	about
	the
	effects
	of
	its
	decision 	to
	turn 	operation
of
	the
	migrant
	centers
	over
	to
	another
	organization.
	However,
the
	County
	argues,
	CSEA
	steadfastly
	refused
	to 	negotiate
	about
such
	effects
	despite 	specific·County 	proposals
	on
	that
subject.
	Accordingly, 	the
	County
	concludes,
	it
	met
	its
obligation
	to 	negotiate
	about
	the
	effects
	of
	its
	decision.
In 	accord 	with
	the
	County's
	argument,
	any
	contention
	that
the
	County
	refused 	to 	negotiate
	about
	the
	~ffects
	of
	its
decision
	is
	easily
	overcome 	by
	the
	record.
	The
	parties
negotiated
	on
	July
	15, 	1983,
	and
	entered
	into
	what
	they
described
	as
	an
	"agreement
	in
	relation 	to
	the
	effect
.
of
	layoff
of
	classified
	and
	certificated
	employees
	in
	relation
	to 	the
possible 	termination
	of 	the
	Child
	Development 	Program
	operated
by
	the
	Department."
	The
	agreement
	set
	out
	eligibility
	for
unemployment
	insurance
	benefits
	and
	provided
	for 	continuation
of 	heal th
	insura.nce 	coverage.
It
	seems
	probable
	that
	once
	the 	July
	15
	agreement
	was
reached, 	the
	County 	had 	met
	its
	obligation 	to 	negotiate
	about
the
	effects
	of
	its
	decision.
	Even
	if
	it
	be 	assumed, 	however,
that
	the 	July
	15
	agreement
	did 	not 	discharge 	the 	County's
obligation, 	the 	record 	also
	is 	clear 	that 	after
	July
	15 	CSEA
never 	requested 	to 	negotiate
	about 	the
	effects
	of 	the 	County's
decision.
	As
	in
	Newman-Crows
	Landing, 	supra,
	PERB
	Decision
No. 	223,
	CSEA
	demanded
	only 	to 	negotiate 	about 	the 	underlying
26

decision
	itself
	and
	not
	about
	its
	effects.
	A
succession
	of
County
	proposals 	dealing
	with
	the
	effects
	of
	the
	decision
	were
steadfastly
	ignored
	by
	CSEA.
	Each
	County
	proposal
	on
	effects
was 	met 	on
	by
	a
	counterproposal
	about
	the
	underlying
	decision.
CSEA's
	persistent 	failure 	after
	July
	15
	to 	request
	negotiation
about 	the
	effects
	of
	the 	decision
	td
	cease
	operation
	of
	the
federal
	program
	was
	sufficient
	to
	constitute
	a
	waiver
	of
	any
right
	to 	bargain
	about
	that 	subject.
For
	these 	reasons, 	the
	allegation
	in 	the
	complaint
	that
	the
County
	failed
	to 	negotiate
	about
	the
	effects
	of
	its
	decision 	to
cease 	operation
	of
	the
	migrant
	centers
	must 	be
	rejected.
PROPOSED
	ORDER
Based
	upon
	the
	foregoing
	findings
	of
	fact
	and
	conclusions
of
	law
	and
	the
	entire
	record 	in
	this
	matter, 	unfair
	practice
charge
	S-CE-742,
	California
	School
	Employees
	Association
	and
its
	Stanislaus
	Chapter
	No. 	668
	v.
	Stanislaus
	County
	Department
of
	Education,
	and
	the
	companion
	PERB
	complaint
	is
	hereby
DISMISSED.
Pursuant 	to 	California 	Administrative
	Code,
	title
	8,
part
	III,
	section
	32305,
	this
	Proposed 	Decision
	and
	Order
	shall
become
	final
	on 	November
	13, 	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,
27

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
November
	13,
	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: 	October
	23,
	1984 	l
Ronald
	E.
	Blubaugh
Hearing
	Officer
28

PROOF OF SERVICE BY MAIL
C.C.P. 1013a
I declare that I am employed in ttle County of ___S_a_c_r_a_rn_e_n_t_o__ , California.
I am over the age of 1 8 years and not a party to the within entitled cause: my business address is
1031 	18th 	Street, 	Suite 	200 	Sacramento, 	California 	95814
On 	December 	31, 	1985 	. I served the enclosed ___________ _
(Oatet
•
PERB 	Decision 	No. 	556
Stanislaus 	County 	Department 	of 	Education
Case 	No. 	S-CE-742 (Describe Document)
on the parties to this cas,e by placing a true copy thereof enclosed in a sealed envelope with
postage thereon fully prepaid, in the United States Mail, ____S.;;;a.;;:;c;.;;r_a;;.;;rn:;.;:e:;.;n..;.t;;:..o___ _
(City or Townt
California, addressed as follows:
Jack 	Francis, 	Admin. 	Assist.
Stanislaus 	County 	Dept. 	of
Education
801 	County 	Center 	Three 	Court
Modesto, 	CA 	95355
Nancee 	Maya
California 	School 	Employees 	Assoc.
701 Ward 	Avenue
Patterson, 	CA 	95363
California 	School 	Employees 	Assoc.
5301 	Madison 	Ave., 	Suite 	102
Sacramento, 	CA 	95841
Mary 	Beth 	deGoede, 	Attorney
Leith 	B. 	Hansen, 	Esq.
Finkle 	& 	Stroup
P.O. 	Box 	1752
Fresno, 	CA 	93717-1752
Harry 	J. 	Gibbons, 	Esq.
California 	School 	Employees
Association
P.O. 	Box 	640
San 	Jose, 	CA 	95106
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed on
___D_e_c__e__m_b;;;..,;.e__r__,.;;3....1____ . T9 .§2_ at ___S_a_c_r_a_m_e_n_t_o___ . California.
(Oatet 	(City or Townf
Teresa 	Stewart
(Type or print namet 	(Signaturet
---- 	.... t"'\ /,,..,.Jr'\r"'\