Mark West Union School District (PERB 1011E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION and 	its 	MARK WEST
CHAPTER 	#570,
Charging 	Party,
v.
MARK WEST UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1614
PERB Decision No. 	1011
September 	2, 	1993
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Appearance: 	William C. 	Heath, 	Attorney, 	for California School
Employees 	Association and 	its Mark West 	Chapter #570.
Before Blair, 	Chair; 	Caffrey and Garcia, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on an appeal 	by the 	California
School 	Employees Association and 	its Mark West 	Chapter #570
(CSEA) 	of a Board agent's dismissal 	of 	its unfair practice 	charge
for 	failure 	to 	state 	a prima 	facie 	case. 	The 	charge alleged 	that
the Mark West Union School 	District 	(District) 	violated section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA)1 by refusing to bargain with CSEA concerning 	the
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise

unilateral 	subcontracting 	of 	bargaining unit 	work.
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
DISCUSSION
A brief 	summary of 	the 	facts 	in this 	case 	is 	as 	follows:
The District 	laid off 	Life 	Lab 	Coordinators 	from two 	schools
in the summer of 	1992. 	In October 1992, 	CSEA became aware that
volunteers 	were being used 	to perform the 	duties 	previously
performed by bargaining 	unit 	members 	designated 	as 	Life 	Lab
Coordinators 	at 	the District's 	new school 	and at 	one 	other 	school
from which layoffs 	had been made. 	CSEA objected to 	the use 	of
volunteers 	and 	requested 	that 	the District 	negotiate 	the 	issue,
but 	was 	told 	that 	the District 	did not 	intend to 	stop using 	the
volunteers.
The 	Board agent 	dismissed 	the 	charge 	on the 	ground 	that
no 	facts 	were 	alleged 	to 	show a 	connection between 	the 	decision
to 	layoff 	the 	Life 	Lab Coordinators 	and the 	subsequent use 	of
volunteers. 	In 	support 	of 	that position he 	cites 	San Diego Adult
Educators v. 	Public Employment Relations Bd. 	(1990)
223 	Cal.App.3d 1124 	(San Diego). 	In that case, 	the college
canceled 	certain 	foreign 	language 	classes 	due 	to 	insufficient
funds. 	In response, 	there was 	significant public pressure to
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continue 	offering 	the 	classes. 	In an attempt 	to accommodate 	the
desires 	of 	the public, 	the 	college decided to contract with a
nonprofit 	corporation 	to 	offer 	the 	classes 	that 	had been
eliminated. 	The 	court held that 	this was 	not a violation because
there 	was 	no 	showing 	that 	the union members 	were 	terminated
because of the decision to contract out; 	thus, 	it was not a
subject 	of mandatory negotiation. 	The 	court 	explained that 	the
college's 	decision 	to discontinue 	the 	language 	courses was 	a
managerial 	decision based on a 	lack 	of 	funds 	and 	that 	the
subsequent 	arrangement 	with 	the 	foundation 	resulted 	from a
separate 	decision and did not 	constitute 	unilateral 	contracting
out. 	The 	court 	found that 	there was 	no 	connection between the
termination 	of 	the program and 	its 	later emergence by use 	of 	an
independent 	agency. 	The amount 	of 	time between 	the 	two decisions
was 	found not 	to be 	consequential 	to 	the analysis.
In the 	case presently before 	the Board, 	CSEA's 	amended
charge 	alleged:
During 	the 	course 	of 	the 	1991/92 	school 	year
one 	of 	the 	cost 	reduction decisions made by
the District budget 	committee was 	to layoff
the 	Life 	Lab Coordinators 	and 	replace 	them
with volunteers.
We 	find 	that 	this 	allegation 	indicates 	a 	sufficient
connection between 	the decision 	to 	layoff 	the 	Life 	Lab
Coordinators 	and the 	subsequent use 	of volunteers.
In determining whether to 	issue a 	complaint, 	the Board agent
is 	to assume 	that 	the 	essential 	facts 	alleged in the 	charge 	are
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true. 	(San Juan Unified School District 	(1977) 	EERB Decision
No. 12.2)
If 	taken as 	true, 	the amended charge 	suggests 	that 	the
District's 	decisions 	to 	lay off 	the 	Life 	Lab Coordinators 	and to
use volunteers 	were 	connected. 	By making 	this 	allegation CSEA
has stated a prima facie violation of 3543.5(a), 	(b) 	and 	(c).
ORDER
The 	Board hereby REMANDS 	this 	case 	to 	the 	PERB General
Counsel 	to 	issue 	a 	complaint.
Members 	Caffrey and Garcia 	joined 	in 	this 	Decision.
2Prior to January 1, 	1978, 	PERB was known as 	the Educational
Employment 	Relations 	Board.
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