Apple Valley Unified School District (PERB 1019E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
APPLE VALLEY CLASSIFIED 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
APPLE VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3274
PERB Decision No. 	1019
October 	21, 	1993
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Appearance: 	California Teachers Association, 	by Charles R.
Gustafson, 	Attorney, 	for Apple Valley Classified Employees
Association.
Before Blair, 	Chair; 	Carlyle and Garcia, 	Members.
DECISION AND 	ORDER
BLAIR, 	Chair: 	This 	case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the Apple Valley Classified
Employees Association of a Board agent's 	dismissal 	(attached) 	of
its unfair practice 	charge. 	The 	charge alleged that Apple Valley
Unified School District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the Educational 	Employment Relations Act 	(EERA)1 by
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
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
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.
(
e

implementing unilateral 	changes 	in policy and that 	these 	changes
were 	implemented 	in a 	discriminatory manner. 	The 	Board agent
dismissed 	the 	charge 	for 	failure 	to 	state a prima 	facie 	case.
(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.
The 	Board has 	reviewed the 	entire 	record in this 	case and
finds 	the Board agent's 	dismissal 	to be 	free 	of prejudicial 	error
and adopts 	it 	as 	the 	decision of 	the Board 	itself.
The unfair practice 	charge 	in Case No. 	LA-CE-3274 	is hereby
DISMISSED WITHOUT 	LEAVE 	TO AMEND.
Members 	Carlyle 	and Garcia 	joined 	in 	this 	Decision.
22

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 18, 	1993
Charles R. 	Gustafson, 	Esq.
California 	Teachers 	Association
Post 	Office 	Box 	92888
Los Angeles, 	California 90009-2888
Re: 	DISMISSAL AND REFUSAL TO 	ISSUE 	COMPLAINT, 	Unfair Practice
Charge No. 	LA-CE-3274, 	Appl-----e Valley Classified Employees
Association v. 	Apple Valley Unified School 	District
Dear Mr. 	Gustafson:
I 	indicated to you, 	in my attached letter dated June 	8, 	1993,
that 	the 	above-referenced 	charge 	did not 	state 	a prima 	facie
case. 	You were advised that, 	if there were any factual
inaccuracies 	or additional 	facts 	which would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case or withdrew it prior to June
16, 	1993, 	the charge would be dismissed.
On June 17, 	1993, 	you filed a First Amended Charge. 	With respect
to Article 8, 	paragraph F, 	of 	the collective bargaining
agreement, 	the amended charge alleges 	that 	the District's
interpretation of 	the 	contractual 	language 	"is 	not 	in accord with
the 	intention of 	the parties 	expressed at 	the bargaining 	table
that 	it apply only to 	full-time employees." 	With respect 	to the
alleged unilateral 	implementation of 	a 	requirement 	that 	bus
drivers 	commute 	to 	a 	distant 	location 	to 	obtain 	their assigned
vehicles, 	the amended charge 	further alleges as 	follows:
The District 	has 	taken 	this 	action as 	a
reprisal 	on Association 	leaders 	and
supporters and 	to discriminate 	against 	them
and to 	otherwise 	interfere with, 	restrain and
coerce 	them because 	of 	their 	exercise 	of 	the
right 	to 	form, 	join and participate 	in the
activities 	of 	the Association as 	is 	evidenced
by 	the 	District's 	allowing 	favored 	anti-union
employees 	to pickup busses 	[sic] 	at a closer
location.

LA-CE-3274
June 18, 	1993
Page 2
Based on 	the 	facts 	stated above, 	the 	amended 	charge 	still 	does
not 	state a prima 	facie violation of 	the 	EERA, 	for the 	reasons
that 	follow.
Regulation 32615(a)(5) 	requires 	that 	a 	charge 	contain a 	"clear
and 	concise 	statement 	of 	the 	facts 	and 	conduct 	alleged 	to
constitute an unfair practice." 	The 	amended 	charge 	contains 	no
clear statement 	of 	adequate 	facts but 	rather a vague 	statement 	of
unsupported 	conclusions.
With respect 	to Article 	8, 	Paragraph F, 	there is 	still no
apparent 	ambiguity 	in the 	contractual 	language. 	The 	language
unambiguously refers 	to 	"unit members" 	and not 	just 	to 	"full-time
employees." 	In 	the very next 	two paragraphs 	of 	the agreement,
the 	term 	"unit member" 	clearly appears 	to 	include part-time
employees.1 In the 	face 	of 	the unambiguous 	contractual 	language,
the 	amended 	charge's 	vague 	and 	conclusory allegation about 	the
"intention of 	the parties," 	unsupported by 	clear 	factual
allegations about how, 	when, 	by whom and to whom the alleged
intention was 	expressed, 	is 	inadequate 	to state a prima facie
case. 	Cf., 	Victor Valley Community College District 	(1986) 	PERB
Decision No. 	570.
With respect 	to 	the alleged change 	in commuting requirements, 	the
newly alleged 	reprisal 	theory does 	nothing 	to 	correct 	the
deficiencies 	in 	the previously alleged unilateral 	change 	theory,
as discussed in my June 	8 	letter. 	Furthermore, 	the vague and
conclusory reprisal 	allegation 	is 	inadequate 	to 	state a prima
facie 	case 	in itself, 	since 	it 	is unsupported by clear factual
allegations about 	the 	identity of 	the affected employees, 	the
date and nature 	of 	their protected activities, 	the District's
knowledge 	of 	those activities, 	the date and nature of 	the alleged
reprisals, 	and any 	facts 	that demonstrate 	the nexus between the
alleged reprisals and the protected activities. 	See, 	e.g.,
Novato Unified School District 	(1982) 	PERB Decision No. 	210.
I am therefore 	dismissing 	the 	charge, 	based on 	the 	facts 	and
reasons 	contained 	in 	this 	letter and my June 	8 	letter.
1Paragraph G refers 	in part to 	"unit members 	. 	. 	. 	called
back 	to work after 	completion 	of 	their 	regular 	assignment,"
presumably 	including a part-time 	assignment. 	Paragraph H 	even
more clearly refers 	to a 	"unit member 	. 	. 	. 	who desires 	the
increased hours" 	of a vacant position, 	presumably 	including a
part-time 	employee 	who desires 	a 	full-time 	position.
'

LA-CE-3274
June 18, 	1993
Page 3
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge by 	filing
an appeal 	to 	the Board itself 	within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32635(a).) 	To be timely filed, 	the original and five copies
of 	such appeal 	must 	be 	actually 	received by 	the 	Board 	itself
before the close of business 	(5 p.m.) 	or sent by telegraph,
certified 	or 	Express 	United States 	mail 	postmarked no 	later
than the last date set for filing. 	(Cal. 	Code of Regs., 	tit. 	8,
sec. 	32135.) 	Code of Civil 	Procedure section 1013 	shall 	apply.
The Board's address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you 	file a 	timely appeal 	of 	the 	refusal 	to issue a 	complaint,
any 	other party may 	file 	with 	the 	Board an 	original 	and 	five
copies 	of 	a statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of service of 	the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy 	of 	a 	document 	served upon a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed.
Extension 	of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a document
with the Board itself, 	must 	be 	in writing and 	filed with 	the
Board at 	the previously noted address. 	A request 	for an
extension must be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration of 	the 	time 	required 	for 	filing 	the 	document.
The 	request must 	indicate good cause 	for and, 	if 	known, 	the
position of 	each other party regarding- the 	extension, 	and shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code of Regs., 	tit. 	8, 	sec. 	32132.)

LA-CE-3274
June 18, 	1993
Page 4
Final 	Date
If no appeal 	is 	filed within the specified time limits, 	the
dismissal 	will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By
Thomas 	J. Allen
Regional 	Attorney
Attachment
cc: 	Steven J. Andelson

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
Los Angeles Regional Office
3530 Wilshire Blvd., Suite 650
Los Angeles, CA 90010-2334
(213) 736-3127
June 8, 	1993
Charles R. 	Gustafson, 	Esq.
California 	Teachers 	Association
Post 	Office 	Box 	92888
Los Angeles, 	California 90009-2888
Re: 	WARNING LETTER, 	Unfair Practice Charge No. 	LA-CE-3274, 	Apple
Valley 	Classified Employees Association v. 	Apple Valley
Unified 	School 	District
Dear Mr. 	Gustafson:
In the above-referenced charge, 	filed February 4, 	1993, 	the
Apple 	Valley 	Classified 	Employees 	Association 	(Association)
alleges 	that 	the Apple Valley Unified School 	District 	(District)
made unilateral 	changes 	in policy- 	This 	conduct 	is alleged to
violate Government Code section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA).
My 	investigation of 	this 	charge 	reveals 	the 	following
relevant 	facts.
The 	charge alleges as 	follows, 	in paragraphs 3 	and 4:
3. 	The District unilaterally changed
the hours 	of bus drivers, 	who work less 	than
full-time 	or split 	shifts by 	"scheduling"
unpaid lunch periods. 	In some 	instances
lunch periods 	are 	"scheduled" 	when the bus
drivers 	are 	rendering normal 	paid 	service 	to
the District. 	This practice began within the
past 	six months 	when the District 	scheduled
bus 	routes 	for the 	1992-93 	school year.
4. 	At 	the beginning of 	the 	1992-93
chool 	[sic], 	and within the past 	six months,
the 	District 	unilaterally 	changed 	the 	hours
and 	compensation 	of 	bus 	drivers 	by 	requiring
the 	drivers 	to 	commute 	to a distant 	location
to 	obtain their assigned vehicles. 	The
district 	has 	refused 	to 	reimburse 	them 	for
the 	increased mileage 	or 	to 	compensate 	them
for 	the 	time 	involved 	in 	the 	commuting.
s

Article 8, 	paragraph F, 	of the collective bargaining
agreement 	between 	the Association and 	the District 	states 	as
follows:
Lunch 	Period
The length of 	time 	for unit members' 	lunch
period shall be no longer than one hour, 	nor
less 	than one-half 	hour and shall 	be
determined 	and 	scheduled by 	the 	district.
[Emphasis 	added.]
District 	Personnel 	Commission 	Rule 	170.4.2 	("Mileage")
states as follows:
Employees 	who are 	required 	to use 	their own
automobiles 	in performance 	of 	their duties
and employees who are assigned to more 	than
one 	(1) 	site per day shall be 	reimbursed for
all 	such travel 	at 	the 	current 	rate of
reimbursement 	as 	determined by 	the 	district
for all 	driving done between arrival 	at 	the
first 	location at 	the beginning of 	their
workday, 	and the 	location at 	the 	completion
of 	their workday. 	[Emphasis added.]
There 	is no allegation or evidence 	that 	the District 	has 	ever
compensated employees 	for 	commuting 	to 	or 	from any 	location
before 	or after the workday.
Since 	1987, 	the District has 	contracted with the Lucerne
Valley Unified School District 	(LVUSD) 	to provide bus 	drivers 	for
the 	transportation of 	LVUSD students. 	The buses 	for the LVUSD
routes 	have been located 	in Lucerne Valley, 	and the drivers
assigned to those 	routes have had to commute, to Lucerne Valley to
pick up their buses. 	The only apparent 	change 	in 1992 	was 	that
drivers began to bid for routes, 	including LVUSD routes, 	rather
than be assigned routes. 	This 	change was pursuant 	to Article 	13,
paragraph B.2, 	of 	the collective bargaining agreement:
Bidding
Each year all 	route assignments 	shall 	be
identified by route number, 	Apple Valley or
Lucerne Valley route area, 	and number of
assigned hours/months. 	All bus 	drivers 	shall
select 	their 	choice 	of 	available 	route
assignments 	in 	seniority 	order based 	on hire
date within 	the bus 	driver's 	classification.
Based on the 	facts 	stated above, 	the 	charge does 	not 	state a
prima 	facie violation of 	the EERA, 	for the 	reasons 	that 	follow.

In 	determining whether a party has 	violated 	EERA section
3543.5(c), 	PERB utilizes either the 	"per se" 	or 	"totality of
the 	conduct" 	test, 	depending on the 	specific 	conduct 	involved
and the 	effect 	of 	such conduct 	on the 	negotiating process.
(Stockton Unified School District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes are considered 	"per se" 	violations 	if 	certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented a 	change 	in policy concerning 	a matter within the
scope of 	representation, 	and 	(2) 	the 	change was 	implemented
before 	the 	employer notified 	the 	exclusive 	representative 	and
gave 	it 	an opportunity to request 	negotiations. 	(Walnut Valley
Unified School District 	(1981) 	PERB Decision No. 	160; 	Grant Joint
Unified High School District 	(1982) 	PERB Decision No. 	196.)
In the present 	case, 	it does not appear that 	the District
implemented any unilateral 	change 	in policy. 	The policy already
established by Article 8, 	paragraph F, 	of 	the 	collective
bargaining agreement 	was 	that 	lunch periods 	"shall 	be 	. . .
scheduled by the District." 	The 	policy already 	established by
Personnel 	Commission Rule 	170.4.2 	was 	that 	employees 	would be
compensated for driving during the workday, 	not 	for commuting.
There was 	no change 	in the location of buses, 	and the 	change 	in
assignments was pursuant to Article 13, 	paragraph B.2, 	of the
collective bargaining agreement. 	There 	thus 	appears 	to have been
no 	change 	in policy about which 	the District 	had a 	further duty
to negotiate.
For these reasons the charge, 	as presently written, 	does not
state a prima 	facie 	case. 	If 	there are any 	factual 	inaccuracies
in 	this 	letter or additional 	facts which would 	correct 	the
deficiencies explained above, 	please amend the 	charge. 	The
amended 	charge 	should be 	prepared on a 	standard 	PERB unfair
practice 	charge 	form, 	clearly labeled First Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge must 	be 	served on 	the 	respondent 	and 	the 	original
proof 	of 	service must be 	filed with PERB. 	If 	I do not 	receive an
amended charge or withdrawal 	from you before June 	16, 	1993, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(213) 	736-3127.
Sincerely,
Thomas J. 	Allen
Regional 	Attorney