San Jacinto Unified School District (PERB 1078E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN JACINTO
CHAPTER 	#189,
Charging 	Party,
v.
SAN JACINTO UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case Nos. 	LA-CE-3256
LA-CE-3289
LA-CE-3295
PERB Decision No. 	1078
December 22, 	1994
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Appearances: 	California 	School 	Employees Association by Maureen
C. 	Whelan, 	Attorney, 	for California School Employees Association
and its San Jacinto Chapter #189; 	Wagner, 	Sisneros 	& Wagner by
John J. 	Wagner, 	Attorney, 	for San Jacinto Unified School
District.
Before Caffrey, 	Carlyle and Johnson, 	Members.
DECISION
CARLYLE, 	Member: 	These cases are before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the 	San Jacinto Unified School 	District 	(District) 	to a 	PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached
hereto). 	In the proposed decision the ALJ 	found that 	in each of
these cases, 	the District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational 	Employment 	Relations Act 	(EERA)1 when 	it made
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
e\

unilateral 	changes 	in the 	hours 	of various 	classified bargaining
unit 	employees 	without 	providing 	the 	California 	School 	Employees
Association and 	its 	San Jacinto Chapter #189 	(Association) 	an
opportunity 	to negotiate 	the 	changes 	in policy and/or 	the 	effects
of 	such changes.
The 	Board has 	reviewed 	the 	entire 	record 	in 	each of 	the
three cases, 	including the transcripts, 	exhibits, 	proposed
decision, 	the District's 	exceptions and the Association's
responses 	thereto. 	The Board finds 	the ALJ's 	findings 	of 	fact
and 	conclusions 	of 	law to be 	free 	of 	prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
Based upon the 	foregoing findings of 	facts, 	conclusions 	of
law, 	and the entire 	record in this 	case, 	it 	is 	found that 	the
San Jacinto Unified School 	District 	(District) 	violated 	the
Educational 	Employment Relations Act 	(EERA), 	Government 	Code
(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.
(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.
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section 3543.5(c) 	by: 	(1) 	unilaterally changing its established
policy 	regarding 	the work 	schedule 	of maintenance 	and grounds
employees 	assigned 	to work home 	football 	games 	in 	the 	fall 	of
1992; 	(2) 	unilaterally changing the hours allotted to the library
technician and health 	clerk positions 	at 	San Jacinto 	Elementary
School; 	and 	(3) 	unilaterally changing the workweek of bus 	drivers
assigned 	to weekend 	field 	trips 	in November 	1992. 	By 	the 	same
conduct, 	it has been found that 	the District also violated EERA
section 3543.5(b) 	and 	(a).
Pursuant 	to EERA section 3541.5(c) 	it 	is 	hereby ordered that
the District, 	its governing board and its representatives, 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with 	the 	California 	School 	Employees 	Association and 	its
San Jacinto Chapter #189 	(Association), 	as the exclusive
representative 	of 	the District's 	classified unit 	employees, 	by
making 	changes 	in the 	employees 	hours 	and other 	terms 	and
conditions 	of 	employment within the 	scope 	of 	representation;
2. 	Denying 	to 	the Association rights 	guaranteed by
EERA, 	including the right 	to represent 	its members; 	and
3. 	Interfering with employees 	in the exercise 	of
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA.
1. 	In the 	future, 	provide notice to the Association of
any proposed decision 	to 	change 	the 	hours 	or other 	terms 	and
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conditions of 	employment of unit members, 	including the hours 	of
existing unit positions and, 	upon request, 	meet and negotiate
over 	the 	decision and the 	effects 	thereof.
2. 	Pay to all maintenance and grounds 	employees who
worked home 	football games 	in the 	fall 	of 	1992, 	lost 	income
resulting 	from the 	change 	of 	their work schedule. 	The 	amount 	of
income due 	each employee 	shall 	be 	calculated as 	follows: 	The
District 	shall 	total 	the 	number 	of 	overtime 	hours 	worked by 	each
affected maintenance 	and grounds 	employee 	during 	home 	football
games 	in 	1989-90, 	1990-92 	and 	1991-92 	and then divide by three.
This 	calculation will 	produce 	the 	average 	number of 	extra hours
worked 	in this 	three year period. 	The District 	shall 	then divide
the average 	number of hours 	evenly among all maintenance and
grounds 	employees 	who worked home 	football 	games 	in 	the 	fall 	of
1992. 	These 	employees are to be paid the amounts 	of money they
would have 	received 	in 	the 	fall 	of 	1992 	had 	they worked 	the
calculated number of 	hours. 	The amount 	due 	each employee 	shall
be 	augmented by 	interest 	at 	the 	rate 	of 	seven 	(7) 	percent per
annum.
3. 	Pay to bus drivers Ethel Marshall 	(Marshall) 	and
Teresa Austin 	(Austin) 	the 	lost 	income 	resulting 	from the 	change,
to be 	calculated as 	follows: 	The District 	shall 	compensate 	them
for the day of 	regular wages 	lost on November 10, 	1992, 	offset by
the number of hours 	of regular pay received on November 14, 	1992.
The 	same 	formula 	described 	above 	for 	calculating backpay 	for 	the
overtime 	hours 	earned by 	the bus 	drivers 	during weekend 	field
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trips 	shall 	be 	used 	to 	calculate 	compensation 	for 	the 	elimination
of Marshall's and Austin's overtime hours 	on November 14, 	1992.
The amount 	due 	each 	employee 	shall 	be 	augmented by 	interest 	at
the rate of 	seven 	(7) 	percent per annum.
4. 	Upon the request of 	the Association, 	restore 	the
library 	technician 	and health 	clerk positions 	at 	San 	Jacinto
Elementary School 	to 	eight hours 	and 	five hours per day,
respectively.
5. 	Within thirty-five 	(35) 	days 	following the date
this Decision 	is no 	longer subject 	to reconsideration, 	post 	at
all 	work 	locations 	where 	notices 	to employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto. 	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
(3 0) 	consecutive workdays. 	Reasonable steps shall be taken to
ensure that 	this Notice 	is not 	reduced in size, 	altered, 	defaced
or 	covered by any 	other material.
6. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	Sacramento Regional 	Director 	of 	the
Public 	Employment 	Relations 	Board 	in accord with 	the 	director's
instructions.
Member Johnson joined 	in 	the Decision.
Member Caffrey's 	concurrence 	and dissent 	begins 	on page 	6.
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CAFFREY, 	Member, 	concurring and dissenting: 	I 	concur in the
finding 	that 	the 	San Jacinto Unified School 	District 	(District)
violated section 3543.5 (a) , 	(b) 	and 	(c) 	of the Educational
Employment 	Relations Act 	(EERA) 	when it 	changed the work 	schedule
of maintenance 	and grounds 	employees 	assigned 	to 	cover home
football 	games, 	and when it 	changed the workweek of bus drivers
assigned 	to weekend 	field trips, 	without providing 	the 	California
School 	Employees Association and 	its 	San Jacinto 	Chapter
#189 	(Association) 	with notice 	and an opportunity to negotiate
the changes.
I 	dissent 	from the 	finding 	that 	the 	District violated 	EERA
section 3543.5(a), 	(b) 	and 	(c) 	when it unilaterally changed the
hours 	of 	two vacant 	bargaining unit 	positions.
The 	Public 	Employment Relations 	Board 	(PERB 	or Board) 	has
never directly addressed 	the 	issue 	of 	whether a 	change 	in 	the
hours 	of 	a vacant bargaining unit 	position 	is 	a 	subject 	within
the 	scope 	of 	representation. 	The Board has 	adopted a 	test 	for
determining 	whether a 	subject 	not 	enumerated 	in 	EERA
section 3543.2(a)1 is within the scope of 	representation. 	A
EERA 	section 3543.2 (a) 	states:
(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
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subject 	will 	be 	found to be within 	the 	scope 	of 	representation
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 	employees 	that 	conflict 	is
likely to occur, 	and the mediatory 	influence 	of 	collective
negotiations 	is 	the 	appropriate means 	of 	resolving 	the 	conflict;
and 3) 	the 	employer's 	obligation 	to negotiate would not
significantly 	abridge 	its 	freedom to 	exercise 	those 	managerial
prerogatives 	essential 	to 	the 	achievement 	of 	its mission.
(Anaheim Union High School District 	(1981) 	PERB Decision No. 	177
(Anaheim) ..)
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the layoff 	of probationary
certificated school 	district 	employees,
pursuant 	to Section 44959.5 	of 	the Education
Code, 	and alternative 	compensation or
benefits 	for employees 	adversely affected by
pension limitations 	pursuant 	to 	Section 	22515
of 	the Education Code, 	to the extent deemed
reasonable 	and without 	violating 	the 	intent
and purposes 	of 	Section 415 	of 	the 	Internal
Revenue Code. 	In addition, 	the exclusive
representative 	of 	certificated personnel 	has
the 	right 	to 	consult 	on 	the definition of
educational 	objectives, 	the determination of
the 	content 	of 	courses and curriculum, 	and
the 	selection of 	textbooks 	to 	the extent 	such
matters 	are within the discretion of 	the
public 	school 	employer under 	the 	law. 	All
matters 	not 	specifically 	enumerated 	are
reserved 	to 	the public 	school 	employer and
may not be 	a 	subject 	of 	meeting and
negotiating, 	provided that 	nothing herein may
be 	construed to 	limit 	the 	right 	of 	the public
school 	employer 	to 	consult 	with any employees
or 	employee 	organization 	on any matter
outside 	the 	scope 	of 	representation.
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Applying this 	test, 	the Board has 	concluded that 	the
reduction 	in hours 	of 	an occupied bargaining unit 	position 	is 	a
matter within the 	scope 	of 	representation. 	(North Sacramento
School District 	(1981) 	PERB Decision No. 	193; 	Pittsburg Unified
School District 	(1983) 	PERB Decision No. 	318; 	Oakland Unified
School District 	(1983) 	PERB Decision No. 	367; 	Healdsburg Union
High School District, 	et al. 	(1984) 	PERB Decision No. 	375.)
However, 	the Board has 	consistently held 	that 	a decision
concerning the 	level 	of 	service 	to be provided 	is 	a 	fundamental
management prerogative which 	is 	not 	subject 	to negotiations.
(Mt. 	San Antonio Community College District 	(1983) 	PERB Decision
No. 	297 	(Mt. 	San Antonio); Mt. 	Diablo Unified School District
(1983) 	PERB Decision No. 	373; 	Davis Joint Unified School District
(1984) 	PERB Decision No. 	393.) 	An employer's decisions 	to
establish positions and services, 	eliminate 	services, 	abolish
filled or vacant bargaining unit positions, 	and layoff bargaining
unit members, 	are all matters 	of management prerogative not
within the scope of 	representation. 	(Mt. 	San Antonio; 	Alum Rock
Union Elementary School District 	(1983) 	PERB Decision No. 	322
(Alum Rock): 	Newman-Crows Landing Unified School District 	(1982)
PERB Decision No. 	223 	(Newman-Crows Landing).) 	However, 	the
effects 	of 	these decisions may be negotiable 	to 	the 	extent 	that
they 	impact 	terms 	and 	conditions 	of 	employment 	of 	bargaining unit
members. 	(Alum Rock.)
In the 	instant 	case, 	the District 	in the 	fall 	of 	1992
increased 	the 	hours 	of 	a vacant 	health 	clerk position at
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San Jacinto 	Elementary School 	from 	five 	hours 	per day 	to 	six
hours per day. 	The District 	also decreased the hours 	of 	a vacant
library 	technician position at 	San Jacinto 	Elementary 	School 	from
eight 	hours per day to 	six hours per day.
Applying the Board precedent 	to the 	facts 	of 	this 	case, 	the
administrative 	law judge 	(ALJ) 	states 	that 	the District's 	action
would not be 	subject 	to negotiations 	if 	it 	left 	the 	existing
positions vacant, 	created new health 	clerk and 	library 	technician
positions, 	and then allotted hours 	to 	the new positions which
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were 	different 	from the 	hours 	allotted to 	the vacant positions.
However, 	the ALJ rejects 	the District's 	contention that 	it
established 	new health 	clerk 	and 	library 	technician positions 	at
San Jacinto Elementary School. 	The ALJ then relies 	on the
Board's 	holding 	in Rialto Unified School 	District 	(1982) 	PERB
Decision No. 	209 	(Rialto) 	to conclude that a change 	in the hours
of 	a vacant 	bargaining unit 	position affects 	the 	collective
interest 	of bargaining unit members and is, 	therefore, 	within the
scope 	of 	representation.
I 	disagree with the ALJ's 	analysis.
To conclude, 	as 	the ALJ did, 	that 	the District would be
exercising 	its managerial prerogative 	if 	it was 	to 	fill 	the
vacant 	five-hour-per-day 	health 	clerk 	position 	and 	establish 	and
fill 	a new one-hour-per-day health 	clerk position at 	San Jacinto
Elementary School, 	but 	can not 	simply 	increase 	the vacant
position 	from five 	hours 	to 	six hours 	without 	first 	negotiating,
is 	to 	incorrectly elevate 	the 	form a 	level 	of 	service decision
99

takes 	over the 	substance 	of 	that 	decision. 	Similarly, 	concluding
that 	the 	District 	could 	establish a 	six-hour-per-day 	library
technician position at 	San Jacinto 	Elementary 	School 	without
first negotiating, 	but 	only if 	it made 	changes 	in the duties
assigned 	to 	the vacant 	eight-hour position 	sufficient 	for 	it 	to
be 	considered a new position, 	creates 	an artificial 	standard
which 	invites 	manipulation 	and 	ignores 	the 	practical
considerations which dictate 	level 	of 	service decisions.
As 	noted above, 	the Board has 	consistently held that 	the
level 	of 	services 	that an employer decides 	to provide 	is 	not 	a
negotiable 	subject 	of bargaining. 	An employer may decide 	to
establish positions, 	abolish positions 	which are 	filled or
vacant, 	and decide 	to layoff 	employees 	occupying 	the positions
designated 	to be abolished, 	all 	consistent 	with 	its 	exercise 	of
managerial prerogative. 	In Newman-Crows Landing. 	the Board
explained 	its 	rationale 	for 	concluding 	that 	the 	decision 	to
layoff employees 	is 	a matter of managerial prerogative, 	even
though it 	impacts 	fundamental 	terms 	and conditions 	of 	employment
of 	bargaining unit members:
The 	layoff 	of 	employees unquestionably
impacts 	on their wages, 	hours and other
conditions 	of employment. 	It may
concurrently 	impact 	upon 	those 	employees 	who
remain. 	Nevertheless, 	the determination that
there 	is 	insufficient 	work 	to 	justify 	the
existing 	number of 	employees 	or 	sufficient
funds 	to support the work force, 	is a matter
of 	fundamental 	managerial 	concern which
requires 	that 	such decisions be 	left 	to 	the
employer's prerogative.
10

A decision by 	the 	employer 	to 	change 	the 	hours 	of 	a vacant
bargaining unit position 	is 	a decision to 	change 	the 	level 	of
service 	to be provided by 	that 	position. 	Clearly 	this 	decision
is 	akin 	to 	those 	level 	of 	service 	decisions 	the Board has
previously held 	to be 	outside 	of 	the 	scope 	of 	representation,
such as 	the decision to abolish a position altogether, 	regardless
of whether it 	is vacant. 	Accordingly, 	consistent with the
Board's 	prior application 	of 	the Anaheim test 	to 	an 	employer's
level 	of 	service decisions, 	I 	conclude that an employer's
decision 	to 	change 	the hours 	of 	a vacant bargaining unit position
is 	not 	a matter within the 	scope 	of 	representation as 	set 	forth
in EERA section 3543.2(a).2
While 	level 	of 	service 	decisions 	are 	fundamentally 	exercises
of management prerogative, 	those decisions may well 	impact
bargaining unit members. 	Therefore, 	the Board has held that 	the
effects 	of 	those decisions may be negotiable 	to 	the 	extent 	that
2The ALJ's 	reliance 	on Rialto 	to 	reach 	the 	opposite
conclusion is misplaced. 	In that 	case, 	the employer unilaterally
transferred work 	specifically 	described 	in 	the 	unit 	description
of 	the 	certificated unit 	from that 	unit 	to a 	classified unit.
The 	level 	of 	service 	to be provided was 	not 	the 	issue.
Furthermore, 	while 	in Rialto 	the Board addressed itself 	to 	the
"diminution 	of 	unit 	work" 	which 	resulted 	from the 	transfer
between bargaining units, 	Rialto 	should not be 	read to prohibit 	a
unilateral 	increase 	in bargaining unit work 	such as 	occurred 	in
this 	case 	through the 	increase 	in hours 	of 	the vacant health
clerk position.
I 	also note 	that 	Rialto predates 	the 	key Board 	cases 	holding
that 	level 	of 	service decisions 	are matters 	of 	fundamental
managerial prerogative. 	(Newman-Crows Landing; 	Mt. 	San Antonio:
Alum Rock.) 	To the extent, 	if any, 	that Rialto may conflict with
these 	subsequent 	decisions, 	it has 	been effectively overruled by
them.
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they 	impact 	terms 	and conditions 	of 	employment 	of 	bargaining unit
members. 	(Alum Rock.) 	Consistent with this Board precedent, 	I
conclude 	that 	the 	effects 	of 	an employer's 	decision to 	change 	the
hours 	of 	a vacant 	bargaining unit 	position are 	negotiable 	to 	the
extent 	that 	they 	impact 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members.
An 	employer's 	decision 	regarding 	the 	level 	of 	services 	to be
offered is outside the scope of 	representation and, 	therefore, 	a
nonmandatory subject 	of bargaining. 	However, 	EERA section 3543.2
expressly permits 	the parties 	to 	engage 	in negotiations 	over 	such
a subject. 	In this 	case, 	the 	collective bargaining agreement
(CBA) 	between the District and the Association specifically
includes 	in Article V 	(District 	Rights) 	the agreement 	that 	level
of 	service decisions are 	the 	exclusive province 	of 	the District.
Among 	those powers 	assigned 	to 	the District 	in Article V are 	"the
exclusive 	right" 	to 	"determine 	the 	kinds 	and levels 	of 	services
to be provided and the methods 	and means 	of providing 	them," 	to
"determine 	staffing patterns," 	and 	to 	"determine 	the number and
kinds 	of personnel 	required." 	The District's 	decision to
increase 	a vacant 	health 	clerk position 	from five 	to 	six hours,
and 	to 	decrease 	a vacant 	library technician position 	from eight
to 	six hours 	is 	a determination of 	the 	level 	of 	service 	to be
provided, 	and/or the 	staffing pattern to be utilized, 	and/or the
number of 	personnel 	required at 	San Jacinto 	Elementary School.
Therefore, 	by the express 	terms of the parties' 	CBA, 	the District
acted within 	its 	rights 	when 	it 	took 	this 	action.
12

Based on the 	foregoing, 	I 	conclude 	that 	the District did not
violate EERA section 3543.5(a), 	(b) 	and 	(c) 	when it changed the
hours 	of 	two vacant 	bargaining unit positions 	at 	San Jacinto
Elementary 	School 	without 	providing 	notice 	and 	an 	opportunity 	to
negotiate 	over 	the 	decision 	to 	the Association.
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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 Nos. 	LA-CE-3256,
LA-CE-3289, 	and LA-CE-3295, 	California School Employees
Association and 	its 	San Jacinto Chapter #189 	v. 	San Jacinto
Unified School District, 	in which all parties had the 	right 	to
participate, 	it 	has been found that 	the 	San Jacinto Unified
School 	District 	(District) 	violated the 	Educational 	Employment
Relations Act 	(EERA), 	Government Code section 3543.5(c). 	The
District violated EERA by: 	(1) 	unilaterally changing 	its
established policy 	regarding 	the 	work 	schedule 	of 	maintenance 	and
grounds 	employees 	assigned to work home 	football 	games 	in 	the
fall 	of 	1992; 	(2) 	unilaterally changing the hours allotted to the
library 	technician 	and health 	clerk positions 	at 	San Jacinto
Elementary School; 	and 	(3) 	unilaterally changing 	the workweek of
bus 	drivers 	assigned to weekend 	field trips 	in November 	1992. 	By
the 	same 	conduct, 	it has been found that 	the District also
violated EERA section 3543.5(b) 	and 	(a).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with 	the 	California 	School 	Employees Association and 	its
San Jacinto Chapter #189 	(Association), 	as 	the exclusive
representative of 	the District's 	classified unit 	employees, 	by
making 	changes 	in the 	employees 	hours 	and other 	terms 	and
conditions 	of 	employment within the 	scope 	of 	representation;
2. 	Denying 	to 	the Association rights 	guaranteed by
EERA, 	including the right 	to represent 	its members; 	and
3. 	Interfering with employees 	in the 	exercise 	of
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF EERA.
1. 	In the 	future, 	provide notice to the Association of
any proposed decision to 	change 	the 	hours 	or other 	terms 	and
conditions of 	employment 	of unit members, 	including the hours 	of
existing unit positions 	and, 	upon request, 	meet and negotiate
over 	the 	decision and 	the 	effects 	thereof.
I)

2. 	Pay to all maintenance and grounds 	employees 	who
worked home 	football games 	in the 	fall 	of 	1992, 	lost 	income
resulting 	from the 	change 	of 	their work schedule. 	The amount 	of
income due 	each employee 	shall 	be 	calculated as 	follows: 	The
District 	shall 	total 	the 	number of 	overtime 	hours 	worked by each
affected maintenance 	and 	grounds 	employee 	during 	home 	football
games 	in 1989-90, 	1990-92 	and 1991-92 	and then divide by three.
This 	calculation will 	produce 	the 	average 	number of 	extra hours
worked 	in 	this 	three year period. 	The 	District 	shall 	then divide
the 	average 	number 	of 	hours 	evenly among 	all maintenance 	and
grounds 	employees 	who worked home 	football 	games 	in 	the 	fall 	of
1992. 	These 	employees are 	to be paid the amounts 	of money they
would have 	received 	in 	the 	fall 	of 	1992 	had 	they worked 	the
calculated number of 	hours. 	The 	amount 	due 	each 	employee 	shall
be augmented by 	interest 	at 	the 	rate 	of 	seven 	(7) 	percent per
annum.
3. 	Pay to bus drivers 	Ethel Marshall 	(Marshall) 	and
Teresa Austin 	(Austin) 	the 	lost 	income 	resulting 	from the 	change,
to be 	calculated as 	follows: 	The District 	shall 	compensate 	them
for the day of 	regular wages 	lost 	on November 10, 	1992, 	offset by
the number of hours 	of 	regular pay received on November 14, 	1992.
The 	same 	formula 	described above 	for 	calculating 	backpay 	for 	the
overtime 	hours 	earned by 	the 	bus 	drivers 	during 	weekend 	field
trips 	shall 	be 	used 	to 	calculate 	compensation 	for 	the 	elimination
of Marshall's and Austin's 	overtime hours 	on November 14, 	1992.
The 	amount 	due 	each 	employee 	shall 	be 	augmented by 	interest 	at
the rate 	of 	seven 	(7) 	percent per annum.
4. 	Upon the request 	of 	the Association, 	restore 	the
library 	technician 	and health 	clerk positions 	at 	San 	Jacinto
Elementary School 	to 	eight 	hours 	and 	five 	hours 	per day,
respectively.
Dated: 	SAN 	JACINTO 	UNIFIED 	SCHOOL 	DISTRICT
By: Authorized 	Agent
.
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN 	POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	I T S 	CHAPTER 	# 1 8 9 ,
Charging 	Party,
v .
SAN JACINTO 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
Unfair 	Practice
Case Nos. 	LA-CE-3256
LA-CE-3289
LA-CE-3295
)
) 	PROPOSED DECISION
) 	(4/22/94)
Appearances: 	George Holihan, 	Field Representative, 	for
California 	School 	Employees Association and 	its 	Chapter #189;
Wagner, 	Sisneros 	& Wagner by John J. 	Wagner, 	Attorney, 	for San
Jacinto Unified School 	District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
An 	exclusive 	representative 	charges 	the 	employer with
making unilateral 	changes 	in the hours 	of various 	classified
bargaining unit 	employees 	without 	providing 	their 	representative
with notice 	or an 	opportunity 	to 	negotiate 	the 	changes 	in policy
and/or the effects 	of 	such changes.
The 	employer 	insists 	that 	its 	conduct 	is 	consistent 	with a
long-standing practice of 	rearranging employees' 	hours 	to meet
its 	operational 	needs and, 	further, 	that 	it has negotiated the
right 	with the 	exclusive 	representative 	to 	change 	the hours 	of
its 	classified 	staff 	to accommodate 	such needs.
PROCEDURAL 	HISTORY
This 	case 	involves 	three 	separate 	charges 	filed by 	the
California 	School 	Employees Association and 	its 	Chapter 	#189
(CSEA or Association) 	against 	the 	San Jacinto Unified School
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

District 	(District) 	alleging violations 	of 	the 	Educational
Employment Relations Act 	(EERA or Act).1
LA-CE-3256
Case No. 	LA-CE-3256, 	filed on November 20, 	1992,2 alleges
that 	on or about September 1, 	1992, 	the District 	changed the work
schedule 	for maintenance 	and 	grounds 	employees 	who work 	the 	home
football 	games 	held at 	the high 	school 	campus.
Prior to September 1, 	1992, 	the District 	allegedly assigned
bargaining unit 	employees 	to 	every home 	football 	game 	to handle
any operating problems 	that might 	arise. 	Unit members 	so
assigned worked 	their normal 	schedule 	and 	returned 	in 	the 	evening
for approximately 	four 	to 	five hours 	of 	overtime 	to work 	the
football 	games.
On September 1, 	1992, 	the District 	directed employees 	to
report 	at 	12 	noon on 	the days 	of 	the 	games 	and work until
9 	p.m., 	with a 	one-hour 	lunch break.
Based on these allegations, 	the Office 	of 	the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issued a complaint 	on January 29, 	1993, 	alleging that 	the
EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
2The charge was amended on April 	7, 	1993; 	however, 	the
amendment made 	no 	substantive 	changes 	in the 	original 	allegation.
22

District's 	conduct 	described above 	was 	in violation 	of 	section
3543.5 (a) , (b) , and (c) .3
An 	informal 	conference on February 9, 	1993, 	failed to
resolve 	the dispute.
The District 	answered the 	complaint 	on February 19, 	1993,
admitting 	certain 	facts 	but 	generally denying 	allegations 	of
unlawful 	conduct. 	The District 	also advanced a number of
affirmative 	defenses.
LA-CE-3289
Case No. 	LA-CE-3289, 	filed on March 10, 	1993, 	and amended
on April 	8, 	1993, 	alleges 	that 	the District 	changed the hours 	of
two bargaining unit 	positions 	at 	one 	school 	site.
Prior to October 21, 	1992, 	the library technician position
was 	assigned eight 	hours 	per day, 	ten months per year and 	the
health clerk position was 	five 	hours per day, 	ten months 	per
year.
3Section 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, 	or 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.
(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.
33

In a vacancy posting 	issued in late October 	1992, 	the
District 	changed 	the 	hours 	of 	both positions 	to 	six hours per
day.
PERB 	issued a complaint 	on April 	16, 	1993, 	alleging that 	the
conduct described above violated section 3543.5(a), 	(b) 	and 	(c).
The District answered the complaint 	on May 6, 	1993, 	denying
all 	material 	allegations 	of 	unlawful 	conduct 	and asserting
various 	affirmative 	defenses.
An informal 	conference held on May 13, 	1993, 	failed to
resolve 	the dispute.
LA-CE-3295
In this 	charge, 	filed on March 29, 	1993, 	and amended
April 	7, 	1993, 	CSEA alleges that on or about October 27, 	1992,
the 	District 	changed 	its 	policy 	concerning 	the 	work hours 	of 	bus
drivers 	by 	requiring 	the 	drivers 	assigned 	to weekend 	field 	trips
to 	take 	a 	day off 	during 	the 	preceding week 	so 	that 	compensation
for 	overtime 	would be 	avoided.
PERB issued a complaint on May 13, 	1993, 	alleging that 	the
conduct described above violated section 3543.5(a), 	(b), 	and 	(c).
An 	informal 	conference 	held 	that 	same 	day 	failed 	to 	resolve
the dispute.
The District answered the 	complaint 	on June 	1, 	1993, 	denying
all 	material 	allegations 	of 	unlawful 	conduct 	and asserting 	a
number of 	affirmative 	defenses.
The 	three 	cases 	were 	consolidated 	for a 	formal 	hearing 	held
by the undersigned on June 	8 	and 9, 	1993. 	Post hearing briefs
44

were 	filed on August 	16, 	1993, 	and the cases were thereafter
submitted.
FINDINGS 	OF 	FACT
The parties 	stipulated, 	and it 	is 	therefore 	found, 	that 	the
District 	is 	a public 	school 	employer and 	CSEA 	is 	an 	employee
organization as 	those 	terms 	are 	defined 	in EERA. 	CSEA is 	the
exclusive 	representative 	of 	a 	comprehensive unit 	of 	the
District's 	classified employees. 	There are approximately 22 0
employees 	in 	the bargaining unit. 	The District 	has 	eight 	school
sites.
CSEA and 	the 	District 	are parties 	to a 	collective bargaining
agreement 	(CBA) 	with a term from October 30, 	19 89 	to October 30,
1992. 	At 	the time of 	the hearing, 	the parties had not 	completed
negotiations 	for a 	successor agreement.4
Change 	of 	the Work Schedule 	for Home 	Football 	Games
The 	regular work hours 	for 	the 	District's 	maintenance
and grounds 	employees 	has 	been 	7 	a.m. 	to 	3:30 	p.m. 	During 	the
10-week summer recess when most 	schools 	are not 	in session, 	the
hours 	of 	these 	employees 	are 	changed to 	6 	a.m. 	to 2:30 p.m.
because 	of 	the 	extreme heat 	in the area.
Historically during 	the 	football 	season at 	San Jacinto 	High
School, 	two maintenance and grounds 	employees 	are 	assigned to
work during 	the 	school's 	home 	football 	games. 	There are 	normally
five 	home 	games 	and 	the 	employees 	have volunteered 	for 	these
4It 	is noted that Article XXIII 	(Duration) 	provides 	that 	the
CBA 	" . . . 	thereafter 	shall 	continue 	in 	effect 	year-by-year 	until
superseded by 	a 	subsequent 	agreement."
55

assignments 	as 	overtime 	work beyond 	their 	regular 	eight-hour day.
During 	the games, 	these employees are 	responsible 	for
handling 	any electrical 	or sprinkler problems 	that 	arise. 	After
the games, 	they are 	responsible 	for putting away the 	equipment
and securing 	the 	football 	field area. 	Employees 	working 	the 	home
football 	games 	average 	four to 	five hours 	of 	overtime, 	and are
compensated at 	time 	and 	one-half 	per hour 	of 	their 	regular 	rate
of pay.
On September 1, 	1992, 	Jim Bell 	(Bell), 	the coordinator of
maintenance, 	operations and transportation 	(MOT) 	services, 	issued
a memorandum 	to maintenance 	and 	grounds 	personnel 	informing 	them
of 	a 	change 	in the 	football work schedule. 	Bell 	is 	the 	immediate
supervisor of MOT personnel. 	The memo read, 	in relevant part, 	as
follows:
The 	following 	schedule will 	be 	used 	for
M.O.T. 	personnel 	to cover home 	football
games.
Maintenance 	and 	ground personnel 	assigned 	to
work games 	will 	report 	to work at 	12:00 	noon
on the day of 	the 	game and will 	work till
[sic] 	the 	completion of 	the game and all
areas 	are 	secured. 	They will 	take a 	one-hour
lunch break at 	4:00 	o'clock till 	[sic] 	5 	p.m.
The memo 	listed 	the 	five 	home 	games 	scheduled 	from September 	11
to November 6, 	1992, 	with the names of the two employees assigned
to 	each game. 	Seven different 	employees were assigned to work
the five games.
No notice 	of 	this 	change was 	given to 	either 	the MOT
employees 	or CSEA before 	Bell's 	memo was 	issued.
6
6

Gary Bossingham 	(Bossingham) 	is 	employed as 	a 	senior 	skilled
maintenance worker. 	Bossingham is 	also 	the 	CSEA job 	steward 	for
MOT employees. 	Bell's 	September 	1 memo 	indicated that 	Bossingham
and Art Avalos 	(Avalos), 	a grounds employee, 	were scheduled to
work the home 	football game on October 16, 	1992.
On September 11, 	1992 Raymond Spence 	(Spence), 	a skilled
maintenance worker, 	and Avalos 	worked the 	first 	home 	football
game as 	they were 	assigned. 	Spence worked 	two hours 	of 	overtime
for which he was 	compensated at 	the 	overtime 	rate 	of pay.
Shortly after September 	11, 	Spence approached Bossingham to
discuss 	filing a grievance about 	the 	change 	of 	his 	work schedule.
Spence was also scheduled to work the game 	on November 	6, 	1992.
Bossingham was unsure about whether the 	change was 	grievable, 	so
he 	took Spence's 	complaint 	to LaVern Laughlin 	(Laughlin), 	the
CSEA 	co-president.
Laughlin contacted Frederick Richardson 	(Richardson), 	the
District 	director of personnel 	services, 	to 	schedule a meeting
about the matter. 	Laughlin, 	Joe Lira 	(Lira), 	the other CSEA co-
president, 	and Richardson met 	sometime 	in late 	September 	to
discuss 	CSEA's 	complaint 	about 	the 	change 	of 	the work schedule
and 	the 	selection process 	used by Bell 	for assigning 	employees 	to
the games. 	The 	issue was not 	settled at 	that meeting.
A 	second meeting 	was 	held between 	CSEA and 	District
representatives 	in early October 1992, 	but 	the matter still 	was
not 	completely 	resolved.
77

Thereafter, 	District 	Superintendent 	Sandra Shackelford
(Shackelford), 	who had attended the 	second meeting, 	sent a letter
to Lira and Laughlin on or about October 15, 	1992. 	Shackelford's
letter acknowledged 	the 	legitimacy 	of 	the 	concerns 	expressed by
CSEA at 	the meeting. 	However, 	it 	indicated that 	the District,
because 	of budget 	reductions, 	would not 	reinstitute 	full 	funding
for 	overtime 	in 	the maintenance 	department 	for personnel 	assigned
to the home 	football 	games.
There was 	no 	further 	contact 	between 	the parties 	regarding
this 	issue after Shackelford's 	October 	15 	letter. 	Prior to his
October 	16 	assignment, 	Bossingham had not 	worked 	football 	games
for 	four 	to 	five years. 	And he did not work the 	game 	on
October 	16. 	The 	record does 	not 	show who worked 	in his 	stead.
Spence and Mike Leavitt, 	a groundskeeper, 	worked the
November 	16 	game as 	scheduled. 	Each employee 	received
approximately 	two 	hours 	of 	overtime 	for which 	they were
compensated at 	the 	overtime 	rate 	of pay. 	It 	is unknown which
maintenance 	and grounds 	employees 	worked 	the 	other games 	and how
much, 	if any, 	overtime they earned.
Change 	of 	Hours 	in 	the 	Librarian Technician and Health Clerk
Positions
Classified 	employees 	working 	for 	the 	District 	as 	library
technicians 	are 	responsible 	for 	overseeing 	and managing 	the
libraries 	at 	the 	elementary and middle 	schools. 	There are 	five
unit members 	in 	this 	classification. 	They work varying numbers
of 	hours per day, 	depending on their site assignment.
88

For the 	five years prior to October of 	1992, 	there was 	an
eight-hour per 	day 	library 	technician position 	at 	San 	Jacinto
Elementary School. 	In the 	fall 	of 	1992, 	the position became
vacant.
Health 	clerks 	are 	responsible 	for maintaining 	the 	site
health services 	office, 	administering basic 	first 	aid and
conducting health-related tests 	to 	students. 	The number of 	hours
per day allotted 	to 	the 	six health 	clerks 	employed by 	the
District varies 	according 	to 	the needs 	of 	a particular school
site.
In the 	fall 	of 	1992, 	the health clerk positions at San
Jacinto 	Elementary and San Jacinto High Schools 	became vacant.
For the previous 	five years, 	the position at 	the 	elementary
school 	was assigned 	five hours per day. 	The high school position
was 	four hours 	per day.
On or about October 21, 	1992, 	the District posted vacancy
notices 	listing both 	the 	library 	technician 	and health 	clerk
positions 	at 	San Jacinto 	Elementary School 	at 	six hours 	per day.
The hours 	listed 	for 	the 	health 	clerk position at 	San Jacinto
High School 	were 	not 	changed.
Shortly after 	seeing 	the vacancy notices, 	Laughlin
telephoned 	Richardson 	inquiring 	about 	the 	reason 	for 	the 	change
of 	hours 	for 	the 	two positions 	at 	San Jacinto Elementary.
Subsequently, 	during a meeting sometime 	in November 1992, 	the
parties 	discussed CSEA's 	opposition to 	the 	change of 	hours. 	CSEA
took the position 	that 	the 	change 	in hours 	of any unit position
9
9

was negotiable and 	the District 	disagreed. 	The parties'
differences 	remained unresolved. 	There was 	no 	further
communication about 	this 	issue 	following 	the November meeting.
Both positions 	were 	later 	filled at 	six hours 	per day.
Richardson 	testified 	that 	the 	District 	did 	not 	abolish 	nor
change 	the hours 	of 	either vacant position. 	Instead, 	new
positions 	were 	created at 	the hours 	listed 	in 	the 	October 	1992
vacancy postings. 	Richardson, 	however, 	did acknowledge that
neither the duties, 	nor the 	salaries 	of 	the new hirees 	have
changed 	from those 	of 	the prior 	incumbents.
From time 	to 	time 	the District 	does 	not 	fill vacated unit
positions. 	However, 	Richardson could recall 	only one prior
instance 	during 	the 	1988-89 	school 	year when a vacated 	eight-hour
projects 	clerk 	typist 	position was 	not 	filled and 	the District
created a new seven-hour position at 	the 	same 	site.
Change 	in The Bus Drivers' 	Workweek
The 	normal 	workweek 	for 	full-time bus 	drivers 	is Monday
through Friday. 	In the fall 	of 	1992, 	the bus drivers' 	regular
hours varied 	from six and three-quarters 	to 	seven hours 	per day.
Occasionally, 	bus drivers 	are assigned to do 	student 	field
trips 	on Saturdays. 	Saturday 	field trips 	usually 	involve 	some
overtime hours at 	time and one-half 	the 	regular rate 	of pay.
In the 	fall 	of 	1992, 	the District 	employed four bus drivers,
including Teresa Austin 	(Austin), 	who also performs 	supervisory
duties. 	On October 27, 	1992, 	Austin told the other drivers 	that,
effective 	immediately, 	if 	they were assigned to work a weekend
10

field trip, 	they would have 	to 	take 	a day off 	during 	the week
preceding 	the weekend assignment. 	Austin's 	oral 	notice was 	never
reduced 	to writing.
Ethel Marshall 	(Marshall) 	has worked for the District as a
bus driver approximately nine and one-half years. 	Prior to
October 27, 	1992, 	Marshall worked an average of 	six and three-
quarters 	hours per day, 	five days a week.
In November 1992, 	Marshall was 	assigned to do a 	field trip
on Saturday, 	November 14. 	Marshall was 	required to 	take Tuesday,
November 	10, 	as 	a day off without 	compensation. 	A substitute bus
driver drove her route on November 	10. 	On November 	14, 	Marshall
worked 	four 	and 	three-quarters 	hours 	and 	received 	straight 	time
compensation. 	Austin worked 	the 	same 	schedule 	that 	week as 	did
Marshall.
When Marshall 	discussed the 	change 	of 	her workweek with
CSEA, 	it 	considered a grievance, 	but no grievance was ever filed.
Austin apparently rescinded 	the 	October 2 7 	policy 	sometime
after November 14, 	1992, 	because thereafter none of 	the other bus
drivers 	assigned 	to 	work a 	weekend 	field 	trip 	were 	required 	to
take 	a day off 	during 	the preceding week.
Neither 	the bus 	drivers 	nor CSEA were given notice 	of 	this
change 	of policy prior to October 27. 	Nor did CSEA and the
District 	have 	any 	communications 	or meetings 	about 	this 	policy
change prior 	to 	the 	filing of 	the 	instant unfair practice 	charge.
11

Relevant 	Provisions 	of 	the 	CBA
The 	CBA contains 	two articles 	that 	are 	relevant 	to 	these
cases.
Article V 	is 	entitled 	"District 	Rights" 	and 	reads 	as
follows:
5.1 	It 	is 	understood and agreed 	that 	the
District 	retains 	all 	its 	powers 	and authority
to direct, 	manage and control 	to the 	full
extent of 	the law. 	Included in, 	but limited
to, 	those duties 	and powers 	are 	the 	exclusive
right to: 	determine its organization; 	direct
the work of 	its 	employees; 	determine the
times 	and hours 	of 	operation; 	determine 	the
kinds 	and 	levels 	of 	services 	to be provided,
and 	the methods 	and means 	of providing 	them;
establish 	its 	education opportunities 	of
students; 	determine staffing patterns;
determine 	the 	number and kinds 	of 	personnel
required; 	maintain 	the 	efficiency of District
operations; 	determine the curriculum; 	build,
move 	or modify 	facilities; 	establish budget
procedures 	and 	determine 	budgetary
allocation; 	determine the methods 	of 	raising
revenue; 	contract 	out work 	(except as
forbidden by law), 	and take action on any
matter 	in the 	event 	of 	an emergency. 	In
addition, 	the District 	retains 	the right 	to
hire, 	classify, assign, evaluate, promote,
terminate, 	and discipline employees unless 	it
is 	contrary to 	the provisions 	of 	this
Agreement.
The exercise of the 	foregoing powers, 	rights,
authority, 	duties 	and 	responsibilities by 	the
District, 	the adoption of policies, 	rules,
regulations 	and practices 	in 	furtherance
thereof, 	and use 	of 	judgment and discretion
in connection therewith, 	shall be limited
only 	to 	the 	extent 	such 	specific 	and 	express
terms 	are 	in conformance with 	law.
The District 	retains 	the 	right 	to amend,
modify, 	or 	rescind policies 	and practices
referred 	to 	in this Agreement 	in cases 	of
emergency. 	An emergency is a sudden, 	urgent,
unforeseen 	occurrence 	or 	occasion 	requiring
immediate 	action.
12

Article XVIII 	contains 	provisions 	covering unit members'
hours, 	overtime and allowances. 	It reads, 	in relevant part, 	as
follows:
18.1 Work 	Schedule
The 	workweek begins 	at 	6:00 	a.m. 	on
Monday and 	ends 	at 	6:00 	a.m. 	the 	following
Monday. 	An employee's 	normal 	work 	schedule
shall not 	exceed five 	(5) 	consecutive days,
eight 	(8) 	hours per day, 	nor forty 	(40) 	hours
per week. 	Each unit member shall 	be assigned
a 	fixed 	regular 	and 	ascertainable 	minimum
number of 	hours per day as 	near as
practicable.
This 	does 	not preclude 	the 	extension of
the 	workweek or 	the 	workday 	on an 	overtime
basis 	as 	authorized by 	the 	Superintendent 	or
his/her designee.
18.2 	Uncompensated Time
Any break 	in 	time worked which 	is 	the
result 	of 	a 	regular schedule will 	be
considered uncompensated 	time. 	The District
will 	include 	notice 	of 	such uncompensated
time 	in job postings 	and schedule 	changes 	to
ensure 	that 	applicants 	are 	advised of 	this
condition of 	employment.
18.3 	Lunch 	Periods
All 	unit members 	covered by 	this
Agreement 	shall 	be 	entitled 	to 	an
uninterrupted 	lunch period 	without 	pay 	after
the unit member has 	been on duty 	for 	five 	(5)
hours. 	The 	length of 	time 	for such lunch
period 	shall 	be 	for a minimum of 	one-half
(1/2) 	hour and shall be scheduled for full-
time 	employees 	at 	or about 	the midpoint 	of
each work 	shift. 	Exceptions may be granted
by mutual 	agreement 	between 	the unit member
and his/her 	supervisor.
18.5 	Overtime
Except as 	otherwise provided herein, 	all
overtime hours 	as 	defined 	in this 	Section
13

shall 	be 	compensated at 	a 	rate 	of 	pay equal
to 	time 	and one-half 	the 	regular rate 	of 	pay
of 	the member 	for all 	work authorized.
Overtime 	is 	defined 	to 	include 	any time
worked in excess 	of 	eight 	(8) 	hours 	in any
one 	day or on any one 	shift 	or 	in excess 	of
forty 	(40) 	hours 	in any calendar week,
starting 	time 	or 	subsequent 	to 	the 	assigned
quitting time. 	All 	hours worked beyond 	the
workweek of 	five 	(5) 	days 	shall be
compensated at 	the 	overtime 	rate 	commencing
on 	the 	sixth day of 	work.
Bargaining 	History 	and 	Past 	Practice
Over the past 	several 	years, 	the provisions 	of Article V
have been 	the 	subject 	of 	negotiations 	between CSEA and 	the
District, 	but 	the 	language has 	remained unchanged 	from that 	found
in predecessor CBAs.
In November 1987, 	the parties met 	concerning the hours 	of a
unit 	employee with a 	split 	assignment. 	CSEA felt 	that 	the
employee had excessive 	"lag-time," 	in other words, 	"time 	off 	the
clock" 	during her workday. 	Following 	this meeting, 	CSEA agreed
with 	the 	District's 	rationale 	for maintaining 	the 	existing 	"lag
time" 	providing 	that 	the 	employee 	received the proper amount 	of
assigned hours 	per day.
There 	is 	considerable 	evidence 	in the 	record of 	a past
practice 	in 	the District 	of 	temporarily modifying 	the 	work
schedules 	of maintenance, 	grounds and custodial 	employees during
the 	summer recess and holiday breaks. 	During 	these periods, 	the
employees 	have 	typically worked 	from 6 	a.m. 	to 	2:30 	p.m. 	The
schedule 	during 	the 	regular 	school 	year and at 	the year-round
school 	is 	typically 7 	a.m. 	to 	3:30 p.m, 	except 	for custodial
employees 	assigned to an afternoon shift. 	However, 	Richardson
14

was 	unaware 	of 	a work schedule 	change 	for maintenance 	and grounds
employees 	assigned 	to home 	football 	games 	as was 	done 	in
September 1992.
On one 	occasion within the past 	two years, 	the hours 	of 	two
maintenance 	employees 	were 	adjusted 	so 	that 	they 	started work
very 	early 	in 	the morning 	to make 	necessary 	repairs 	to 	a
malfunctioning 	air 	conditioning 	system.
In March 	1991, 	the 	starting and ending times 	for most
custodial 	employees 	on the afternoon 	shift 	were modified during
the 	Christmas 	break 	to standardize 	their hours. 	During 	summer
recess, 	occasionally 	custodians 	who normally work 	the 	afternoon
shift 	move 	to 	the 	day 	shift 	temporarily and 	then 	return 	to 	their
regular 	shift 	during 	the 	school 	year.
One school, 	Hyatt Elementary 	(Hyatt), 	has a year-round
program. 	The program is 	divided 	into 	four 	separate 	tracks 	with
one 	track 	"off 	schedule" 	at 	designated periods 	during 	the year.
The 	schedules 	at 	Hyatt 	for 	instructional 	aide 	during 	school
years 	1990-91 	through 	1992-93 	show that 	changes were made 	in 	the
starting and ending 	times 	for some 	employees, 	depending upon 	the
instructional 	needs 	of 	the 	track to which 	the 	aide was 	assigned.
The 	starting 	and ending 	times 	for bus 	drivers 	are 	frequently
adjusted, 	especially at 	the beginning of 	the 	school 	year when 	the
bus 	routes 	and 	schedules 	are being worked out. 	In 	school 	year
1991-92, 	approximately 100 	such changes were made to accommodate
the busing schedules. 	With the 	exception of 	the 	case at 	issue,
15

none of 	these changes, 	however, 	involved a change of 	the drivers'
basic 	workweek 	of 	Monday 	through 	Friday.
ISSUES
Whether the District violated section 3543.5(a), 	(b) 	and 	(c)
when 	it 	changed:
1. 	The work schedule 	of maintenance 	and grounds 	employees
assigned 	to 	cover home 	football 	games;
2. 	The hours 	of 	two bargaining unit positions; 	and
3. 	The workweek of bus 	drivers 	assigned to weekend 	field
trips?
DISCUSSION
I. 	Legal 	Principles 	Relevant 	to Unilateral Actions
To 	establish a prima 	facie 	case 	of 	a unilateral 	change, 	the
charging party must 	demonstrate 	facts 	sufficient 	to 	establish:
(1) 	the employer breached or altered the parties' 	written
agreement 	or previous 	understanding, 	whether that 	understanding
is 	embodied 	in a 	contract 	or evidenced 	from the parties' 	past
practice; 	(2) 	such action was 	taken without giving the exclusive
representative 	notice 	or an 	opportunity 	to bargain 	over 	the
change; 	(3) 	the 	change is not merely an isolated breach of 	the
contract, 	but amounts 	to a change of policy 	(i.e., 	has a
generalized 	effect 	or 	continuing 	impact 	upon bargaining 	unit
member's 	terms and conditions of employment); 	and 	(4) 	the change
in policy 	concerns 	a matter within the 	scope 	of 	representation.
(Grant Joint Union High School 	District 	(1982) 	PERB Decision No.
19 6 	(Grant); 	Pajaro Valley Unified School District 	(19 78) 	PERB
16

- -
Decision No. 	51 	(Pajaro); 	Davis Unified School District, 	et al.
(1980) 	PERB Decision No. 	116.)
An employer makes no unilateral 	change, 	however, 	where 	the
action taken does not alter the status quo. 	"[T]he 	'status quo'
against 	which an employer's 	conduct 	is 	evaluated must 	take 	into
account 	the 	regular and 	consistent 	past 	pattern 	of 	changes 	in
employment." 	(Pajaro.) 	In determining whether an employer's
action constituted a unilateral 	change, 	the 	trier of 	fact may
interpret 	terms 	of 	a 	collective 	agreement 	or examine 	the
established practice. 	(Pajaro; 	Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	279.)
Absent 	a valid defense, 	unilateral 	actions 	taken by an
employer without 	providing 	the 	exclusive 	representative 	with
notice and an 	opportunity 	to 	negotiate 	on proposed 	changes 	of
matters 	within 	the 	scope 	of 	representation 	constitutes 	a 	refusal
to negotiate 	in good faith in violation of 	section 3543.5(c).
(San Mateo County Community College District 	(1979) 	PERB Decision
No. 94.)
It 	is undisputed that 	the 	subject 	of 	"hours 	of 	employment"
is 	a negotiable 	topic under EERA.5 However, 	"hours 	of
employment" 	is 	not 	limited to 	the 	total 	number of working hours
required of 	employees. 	It 	includes what days 	of 	the week and
5Section 3543.2 provides, 	in relevant part:
(a) 	The 	scope 	of 	representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms and condition
of 	e m p l o y m e n t . . . .
17

hours 	of 	the 	day are 	to be worked. 	(Saddleback Community College
District 	(1984) 	PERB Decision No. 	433.) 	Thus, 	a decision to
change work schedules, 	workweek, 	or the number of hours per day
assigned to employees, 	and the effects 	thereof, 	are negotiable
subjects 	of bargaining. 	(Pittsburg Unified School 	District 	(19 82)
PERB Decision No. 	199; 	North Sacramento School District 	(1981)
PERB Decision No. 	193.)
Here, 	the District defends 	its unilateral 	actions by
maintaining 	that 	the 	changes 	of 	hours 	challenged by CSEA were
consistent 	with a 	long-standing practice 	of 	rearranging
employee's hours 	to meet 	its operational needs. 	Additionally, 	it
asserts 	a 	contractual 	right, 	based on the management 	rights
language 	of Article V, 	to make 	such changes without 	further
negotiations 	with 	CSEA.
PERB 	has 	adopted 	the 	standard 	for waiver used by 	the
National 	Labor Relations Board 	(NLRB), 	which requires 	that a
waiver of 	statutory 	rights 	be 	"clear and unmistakable." 	A waiver
will 	not 	be 	lightly 	inferred. 	(Amador Valley Joint 	Union High
School District 	(1978) 	PERB Decision No. 	74; 	Placentia Unified
School District 	(1986) 	PERB Decision No. 	595.)
In 	resolving whether a waiver of 	a 	course 	of 	action or
bargaining 	rights 	was 	"clear and unmistakable," 	express
contractual 	terms 	as 	well 	as 	evidence 	of 	negotiating history
reflecting a 	conscious 	abandonment 	of 	the 	right 	to bargain 	over a
particular 	subject 	can be 	examined. 	(Palo Verde Unified 	School
District 	(1983) 	PERB Decision No. 	321.)
18

The 	legal 	principles 	discussed above will 	be 	applied 	in
analyzing 	the 	facts 	of 	each case.
II. 	A. 	Unilateral 	Change of 	the Work Schedule 	for Football
Games 	(LA-CE-3256)
Although 	the 	parties 	have 	contractual 	provisions 	pertaining
to 	the work schedule of unit employees, 	the language of Article
XVIII 	does 	not 	specify a particular 	shift 	or work 	schedule 	for
maintenance and grounds 	employees. 	However, 	there was an
established policy 	for 	these 	employees.
Prior to September 1, 	1992, 	the regular work hours 	for
maintenance 	and grounds 	employees 	were 	either 	7 	a.m. 	to
3:30 p.m. 	or 	6 	a.m. 	to 2:30 p.m, 	including a one-half hour
uncompensated lunch break. 	Also historically, 	during 	the
football 	season at 	San Jacinto High School, 	maintenance and
grounds 	employees 	volunteered 	to work 	the 	home 	football 	games 	as
overtime 	assignments 	beyond 	their 	regular 	eight 	hour workday.
Bell's September 1, 	1992, 	memo changed this practice in
several 	respects. 	First, 	the 	change 	substantially altered the
starting 	and ending 	times 	for 	the 	employees 	on the 	days 	that 	they
were assigned to work the games. 	Their hours 	on game 	days 	were
12 	noon to 9 	p.m. 	Next, 	this 	change 	lengthened the usual 	lunch
period 	for 	the 	employees 	from thirty minutes 	to 	one hour. 	Since
lunch breaks 	are uncompensated time, 	the additional 	thirty
minutes 	represented an extension of 	the 	affected employees'
regular workday on an uncompensated basis. 	Finally, 	it 	removed
the voluntary nature 	of 	assignments 	to home 	football 	games 	by
specifically designating 	the 	employees 	who were 	to work 	each
19

game. 	Thus, 	the District's 	September 1 action represented a
substantial 	departure 	from 	the 	established practice 	relative 	to
the work 	schedules 	of maintenance 	and grounds 	employees 	assigned
to work home 	football 	games.
The District 	does not 	deny that 	it 	took the 	September 	1
action without 	giving prior notice 	to 	CSEA. 	The parties 	engaged
in after-the-fact discussions, 	during which CSEA raised, 	among
other things, 	the negotiability of 	the hours issue. 	However, 	the
District 	refused 	to 	rescind 	the policy or 	return 	to 	the
established practice 	with 	respect 	to 	the 	overtime 	issue.
The District argues 	that 	the 	since 	the September 1, 	1992,
change 	in the 	employees' 	work schedule was a temporary
arrangement, 	it did not 	represent a change of policy. 	It 	is 	the
"effect" 	of an employer's unilateral action, 	not necessarily its
period of 	duration, 	that 	determines whether it 	constitutes 	a
change 	of policy.
During 	the 	two-month period 	that 	the 	football 	game 	work
schedule policy existed, 	it 	clearly had a generalized effect 	or
continuing 	impact upon bargaining unit members' 	terms 	and
conditions 	of 	employment. 	For example, 	skilled maintenance
worker Spence, 	who had regularly worked home 	football 	games 	on an
overtime basis 	for 	several 	years prior to 	September 	1992,
averaged 	five hours 	of 	overtime per game before 	September 	1992.
He 	and 	two 	other unit members 	worked 	the 	games 	as 	scheduled 	on
September 16 	and November 	6, 	1992. 	Each employee 	received one 	to
two hours 	of 	overtime 	compensation per day. 	Other than Spence,
20

Avalos and Leavitt, 	the 	record does not 	reveal 	the 	exact 	number
of 	additional 	maintenance 	and grounds 	employees 	impacted by 	the
District's September 1, 	1992, 	action. 	However, 	the Board has
determined that a unilateral 	change, 	to be 	found unlawful, 	need
not 	affect 	every member of 	the unit. 	(See Jamestown Elementary
School District 	(1990) 	PERB Decision No. 	795.) 	In this case, 	the
District's 	action 	impacted unit members' 	hours and wages. 	The
change 	of 	work 	schedule 	for 	those 	employees 	assigned 	to work 	the
football 	games 	resulted 	in a 	change 	of hours; 	and 	for those
employees who did work the different 	schedule, 	a loss 	of 	income
in 	the 	form of 	overtime 	compensation. 	(See 	Lincoln Unified
School District 	(1984) 	PERB Decision No. 	465.)
Upon these 	facts, 	it 	is 	concluded that 	the District's 	change
of 	the work 	schedule 	of maintenance and grounds 	employees 	was 	a
unilateral 	action affecting wages 	and hours, 	matters 	within the
scope 	of 	representation. 	Absent 	a valid defense, 	the 	change was
a 	failure per se 	to negotiate 	in good 	faith and a violation of
section 3543.5(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 	as 	set 	forth 	in 	sections
3543.5 (b) and (a) .
B. 	District Defenses
The 	District's 	primary defense 	to 	this 	unilateral 	change
allegation 	is 	that 	it's 	action was 	consistent with a 	long-
standing practice 	of 	rearranging 	the 	hours 	of 	maintenance 	and
21

operations 	employees 	to meet 	its 	operational 	needs 	without
negotiating with CSEA prior to 	such 	changes 	in hours.
The 	evidence 	shows 	that 	the District 	has 	had a historic 	and
accepted practice 	of 	modifying 	the 	starting and 	ending 	times 	for
maintenance 	and 	operation 	employees 	during 	recess 	periods 	such as
summer recess 	or holiday breaks. 	There 	is 	also evidence 	that 	the
work 	schedules 	of 	some maintenance 	and grounds 	employees 	have
been modified 	on a 	short-term basis 	to 	accommodate 	a 	situation
requiring 	immediate 	or urgent 	action 	such as 	air 	conditioner
repair. 	Some of 	these schedule modifications were made at 	the
request 	of 	the 	employees 	themselves.
However, 	there 	is no evidence 	of an 	instance prior to
September 1, 	1992, 	where the District altered these employees'
work schedule 	to accommodate 	scheduled athletic 	events. 	Nor 	is
there 	any 	indication 	of 	a prior 	instance 	where 	employees 	were
assigned 	to work home 	football 	games, 	other 	than on a voluntary
basis. 	This 	conclusion 	is 	supported by Richardson's
acknowledgement 	that 	during his 	22 	years 	of 	employment 	with 	the
District, 	he has 	no knowledge 	of 	the District's 	ever altering the
employees' 	starting and ending 	times 	in conjunction with 	their
assignments 	to work school 	athletic 	events.
The District 	has 	thus 	failed 	to 	establish 	that 	its 	action
regarding 	the 	football 	schedule was 	the 	same 	type 	of 	schedule
modifications 	it had made 	in the past. 	It does not meet 	the
"regular and 	consistent" 	past 	pattern 	test 	required by 	Pajaro
-----.
The past 	practice 	defense 	is 	therefore 	rejected.
22

The 	fact 	that 	the District 	has 	previously 	changed work
schedules 	of 	maintenance 	and operations 	employees 	without
bargaining 	does 	not 	preclude 	CSEA in 	this 	instance 	from
effectively 	demanding 	to 	bargain 	over 	the 	District's 	September
1992 	action. 	"[A] 	union's acquiescence 	in previous unilateral
changes 	does 	not 	operate 	as 	a waiver of 	the 	right 	to bargain 	for
all 	times." 	(See Johnson-Bateman Co. 	(1989) 	295 NLRB No. 	26 	[131
LRRM 	1393].)
C. 	Contractual Waiver
The 	District 	next 	asserts 	that 	it 	has 	the 	authority 	to
arrange 	the hours 	of 	its 	employees 	to meet 	its 	operational 	needs
on 	the basis 	of 	the 	authority reserved 	to 	it 	in 	the management
rights 	language 	clause 	found 	in Article V. 	Specifically, 	it
argues 	that 	the 	terms 	"to determine 	the 	times and hours 	of
operation 	. 	. 	. 	and to assign . 	. 	. 	employees 	. . . " gives it the
contractual 	right 	to unilaterally 	change 	employee's 	assigned
hours 	as 	it 	deems appropriate 	for operational 	needs. 	CSEA and
the 	District 	have 	continuously 	disputed 	the 	District's
interpretation of 	this 	language.
Even accepting 	the District's 	assertion of managerial
prerogative, 	the District's 	action 	cannot 	be excused 	on the basis
of 	contractual waiver. 	The 	terms 	"times 	and hours 	of 	operation"
are 	not 	necessarily 	synonymous with the 	employees' 	starting and
ending times, 	i.e., 	the work schedule of 	individual 	employees.
As 	noted by 	the 	Board 	in Davis 	Joint 	Unified School 	District
(1984) 	PERB Decision No. 	393,
23

[T]he subject of hours, 	even in its most
literal 	sense, 	refers 	to the question of
when 	employees 	will 	work and when 	they will
not 	. . . .
Here, 	the 	language 	relied on by the District does 	not 	expressly
address 	the 	hours 	that 	its 	employees 	will 	work or when they will
not.
A generally-worded management 	rights 	clause 	will 	not 	be
construed as 	a waiver of 	statutory bargaining 	rights. 	(See
Dubuque Packing Co. 	(1991) 	303 NLRB No. 	66 	[137 LRRM 1185].)
Since 	the 	language 	of 	the Article XVIII 	does not 	address 	specific
starting and ending 	times 	for unit members, 	it 	is 	found that
there 	is 	no 	"clear and unmistakable" 	contractual 	waiver by CSEA.
D. 	Bargaining History
In 	the 	absence 	of 	express 	contractual 	language 	evincing a
waiver of bargaining rights, 	the parties' 	history may also be
examined 	for evidence 	of 	a waiver of 	such right.
There 	is 	scant 	evidence 	of 	negotiations 	regarding Article V.
In 	light 	of 	a 	complete absence 	of 	any evidence 	that 	the
parties 	discussed 	or 	came 	to 	an understanding about 	the meaning
and potential 	implications 	of 	the management 	rights 	clause 	within
the 	context 	of 	the hours provision, 	in particular, 	during the
1986-87 	and 	1987-88 	negotiations, 	it 	cannot be 	inferred that 	CSEA
waived its 	right 	to bargain about 	the 	employer's 	change 	of 	unit
members' 	work schedule.
For all 	the 	reasons 	discussed above, 	it 	is 	concluded that
the District 	has 	failed 	to 	establish a defense 	that 	justifies 	or
excuses 	its unilateral action of September 1, 	1992.
24

III. Unilateral 	Change 	in Hours 	Assigned 	to 	the 	Library
Technician 	and 	Health 	Clerk 	Positions 	(LA-CE-3289)
A. 	Positions 	of 	the 	Parties
CSEA contends 	that 	the 	District 	implemented a 	unilateral
change 	in the 	number of 	hours 	assigned 	to 	two bargaining unit
positions, 	namely 	the 	library 	technician and the health 	clerk
positions 	at 	San Jacinto Elementary School, 	without 	a 	justifiable
defense 	to its actions.
The District maintains 	that 	it 	did not 	change 	the 	hours 	of
the 	existing vacant positions. 	Instead 	it 	exercised 	its
managerial 	prerogative 	to 	create 	new positions 	in an 	existing
classification, 	and 	to unilaterally determine 	the number of 	hours
assigned 	to 	each newly-created position.
The District 	also asserts 	that 	the management 	rights 	clause
of 	the 	CBA gives 	it 	the 	contractual 	right 	to make 	assignments 	and
to determine 	the 	hours 	and times 	of 	its 	classified workforce
within 	the parameters 	set 	by Article XVIII.
B. 	Scope 	of 	Representation
A threshold 	issue presented here 	concerns 	a 	determination 	of
the 	exact 	nature 	of 	the District's 	"classification." 	This
determination 	relates 	to whether or not 	the District's 	action
concerned a matter within the 	scope of 	representation. 	If, 	as
the District asserts, 	it merely created new positions 	in an
existing 	classification 	and 	allotted 	hours 	different 	from 	those
allotted to 	the 	existing positions, 	then the District's action
was within the 	scope 	of management prerogative and, 	therefore,
not negotiable. 	However, 	the effects of 	its action may have been
25

negotiable 	if 	it 	impacted matters 	within 	the 	scope 	of
representation. 	(Alum Rock Union 	Elementary School 	District
(1983) 	PERB Decision No. 	322.)
In a number of decisions, 	PERB has held that 	the level 	of
services 	that 	an employer decides 	to provide 	is 	not 	a negotiable
subject of bargaining. 	(See, 	e.g., 	Mt. 	San Antonio Community
College District 	(1983) 	PERB Decision No. 	297, 	at p. 	3; 	Davis
Joint Unified School District, 	supra. 	PERB Decision No. 	393, 	at
pp. 	26-27.) 	Thus, 	if the District 	(1) 	left the existing library
technician and health clerk positions vacant, 	(2) 	created new
positions bearing the 	same 	classification titles, 	and 	(3)
determined 	that 	the 	number 	of 	hours 	per day allotted 	to 	these
positions were 	to be different 	from the hours 	of 	the vacant
positions, 	its 	action would have been an exercise 	of managerial
prerogative.
The 	only evidence 	supporting 	the 	District's 	claim of 	newly-
created positions was 	the 	testimony of Richardson, 	the District
director of personnel 	services. 	However, 	on cross-examination,
Richardson admitted 	that 	both 	"new" 	positions 	are 	located at 	the
same school 	site as 	the vacant positions. 	In addition, 	he
admitted that 	the District made no change 	in title, 	duties, 	or
salaries 	of 	the employees hired to 	fill 	the 	"new" 	positions, 	nor
did 	the 	governing board 	or District 	administration 	take 	any 	other
action which would 	indicate 	the 	creation 	of 	new positions.
Although Richardson's 	testimony was 	unrebutted, 	it 	also was 	not
26

corroborated by more 	convincing 	evidence 	of 	the 	creation 	of 	new
positions.
For these 	reasons, 	it 	is 	concluded that 	the District 	has 	not
carried 	its 	burden 	of 	showing 	that 	it 	established 	either a new
librarian 	technician or a health 	clerk position 	in October 	1992
at San Jacinto Elementary School. 	Instead, 	it 	is 	found that 	the
District 	unilaterally 	changed 	the 	hours 	of 	the 	positions 	which
were 	temporarily vacant.
It 	is 	undisputed that 	the District 	took these actions
without prior notice of 	CSEA. 	Even 	in the 	face 	of 	CSEA's protest
about 	the negotiability of 	any 	change 	in hours 	of unit positions
prior 	to 	the positions being 	filled, 	the District 	refused 	to
negotiate 	the 	subject 	or 	to 	rescind 	its 	action.
PERB has 	never directly decided 	the 	issue 	of 	whether
modification of 	the hours 	of 	a vacant unit position 	is within 	the
scope 	of 	bargaining.6 Therefore, 	the 	relationship 	of 	this
subject 	to 	other 	PERB decisions 	concerning 	scope 	of
representation will 	be 	discussed.
6In Oakland Unified School 	District 	(1983) 	PERB Decision No.
367, 	the Board rejected the 	employer's 	contention that a
reduction 	in 	the 	hours 	of positions 	was 	distinguishable 	from the
effects 	on 	employees 	by 	finding 	that 	incumbent 	employees 	were
affected by 	the 	decision. 	In South San 	Francisco Unified 	School
District 	(1983) 	PERB Decision No. 	343, 	the Board found a
violation for 	the 	employer's 	unilateral 	change 	in hours 	of 	a
position based upon a 	contract 	prohibition against 	such 	change.
In Eureka City School District 	(1985) 	PERB Decision No. 	481, 	the
employer 	contended 	that 	because 	affected 	employees 	could 	transfer
to other positions, 	it had reduced the hours 	of 	"positions"
rather than 	the 	hours 	of 	"employees." 	The Board rejected 	this
argument 	and 	found 	a violation based 	on 	the 	unilateral 	reduction
of 	the hours 	of 	an 	incumbent 	employee.
27

PERB 	has 	held 	that 	an 	employer's 	decision 	to abolish a
position 	in order 	to discontinue 	a 	service 	is 	a management
prerogative 	not 	subject 	to bargaining. 	(Alum Rock Union
Elementary School District, 	supra. 	PERB Decision No. 	322.)
However, 	the 	effects 	of 	such decisions may be negotiable.
(Healdsburg Union High School District, 	et al. 	(1984) 	PERB
Decision No. 	375.)
However, 	in Rialto Unified School District 	(1982) 	PERB
Decision No. 	209, 	the Board indicated that 	the withdrawal 	of
"actual 	or potential 	work" 	from the unit 	is a withdrawal 	of wages
and hours 	associated with the work, 	affects 	the potential 	for
promotion 	for unit 	employees, 	and weakens 	the 	collective 	strength
of 	employees 	in dealing with the 	employer. 	In balancing
employees' 	interests against management prerogative, 	the Board
has 	found 	these 	types 	of 	decisions 	nonessential 	to 	the 	employer's
mission. 	They 	involve 	economic 	considerations 	without
significant 	change 	in the 	level 	or kinds 	of 	services 	to be
performed.
Relying upon the precedent 	cited above, 	it 	is 	concluded that
a 	reduction or 	other 	change 	in hours 	of 	a vacant 	position 	is 	a
matter within 	the 	scope 	of 	bargaining as 	set 	forth 	in section
3543.2(a) 	inasmuch as 	it affects 	the 	"collective 	interests" 	of
bargaining unit members. 	In this 	case, 	the net 	effect of 	the
District's 	changes 	was an actual 	diminution of 	unit 	work.
Absent a valid defense, 	the District's unilateral 	change 	in
a matter within 	the 	scope 	of 	representation without 	prior
28

notification 	to 	CSEA and an 	opportunity 	to bargain 	the 	proposed
change will 	amount 	to a violation of 	section 3543.5(c).
C. 	District 	Defenses
1. 	Past 	Practice.
The 	record does 	not 	factually 	support 	the District's 	claim
that 	it 	has 	an established practice 	of 	leaving unit 	positions
vacant 	and 	creating 	new positions 	in 	the 	same 	classifications 	at
different 	hours. 	Only one 	instance 	of 	this 	alleged practice was
documented. 	An 	eight-hour 	clerk-typist 	position at 	Hyatt
Elementary School 	was vacated 	in the 	1988-89 	school 	year. 	A new
seven-hour position was 	created at 	the 	same 	site 	and 	filled at
less 	hours 	and a different 	salary 	range. 	CSEA apparently did not
challenge 	this 	action.
A definitive 	past 	practice 	cannot 	be 	established where 	the
occurrences 	of 	the 	claimed practice 	are 	isolated and 	remote 	in
time. 	(Pittsburg Unified School District, 	supra, 	PERB Decision
No. 	199.) 	Thus, 	a one-time occurrence of a reduction in hours of
a vacant 	position does 	not 	establish 	that 	hours 	of vacant
positions 	have been 	changed unilaterally as 	a past 	practice.
This 	defense 	is 	therefore 	rejected.
2. 	Contractual Waiver.
Clearly 	the management 	rights 	clause 	in Article V gives 	the
District 	the 	right 	"to determine 	the kind and levels 	of 	services
to be provided." 	Nonetheless, 	for the 	same 	reasons 	discussed
above in Part II, 	section C, 	supra, 	it is concluded that the
generalized provision of 	this 	clause 	do not 	authorize 	the
29

District 	to adjust hours 	of vacant unit positions 	to suit 	its
operational 	needs 	without 	first providing notice 	to 	CSEA and an
opportunity 	to negotiate 	over 	the proposed 	change. 	Nor does 	any
language 	in Article XVIII 	authorize 	the District 	to 	take 	such
action.
Therefore, 	it 	is 	concluded that 	the District violated
section 	3543.5(c) 	by 	failing and 	refusing 	to negotiate 	changes 	in
hours 	allotted 	to 	two bargaining unit positions. 	This 	conduct
concurrently violated the 	section 3543.5(b) 	rights 	of 	CSEA to
represent 	its members 	and 	interfered with the 	employees' 	exercise
of 	their right 	to representation proscribed by section 3543.5(a).
IV. 	Unilateral 	Change 	of 	the 	Bus 	Driver's Workweek 	(LA-CE-3295)
CSEA maintains 	that 	the District 	changed 	the 	workweek of 	the
bus 	drivers 	assigned 	to weekend 	field 	trips 	to 	eliminate 	overtime
hours 	earned by drivers 	during 	such 	field 	trip 	assignments. 	This
change of policy, 	it 	is argued, 	not 	only affected the hours 	of
unit employees, 	but also their wages.
The 	District 	argues 	that 	since 	the 	complained-of 	change was
implemented on only one 	occasion, 	its 	action did not 	amount 	to a
change of policy. 	If anything, 	it was nothing more 	than a breach
of 	contract, 	which could have been addressed through the
contractual 	grievance machinery.
Alternatively, 	the District argues 	that 	the 	change 	of
workdays 	for 	the bus 	drivers 	was 	consistent 	with 	its practice 	of
routinely adjusting bus 	driver's 	hours 	and days 	of 	work to
accommodate 	its 	operational 	need.
30

As 	noted above, 	to establish a prima 	facie 	case 	of 	an
impermissible unilateral 	change, 	a 	charging party 	is 	required 	to
present 	facts 	sufficient 	to 	establish that 	the 	change 	of 	a matter
within the 	scope 	of 	representation amounts 	to a 	change 	of policy,
having 	a 	generalized affect 	or 	continuing 	impact 	upon unit
members' 	terms and conditions of employment. 	(Grant.) 	The
employer's 	action will 	first 	be 	examined vis-a-vis 	CBA provisions
concerning the employees' 	hours and overtime.
Section 	18.1 provides 	that 	an employee's 	normal 	work
schedule 	"shall 	not 	exceed five 	consecutive days, 	eight 	hours per
day, 	nor 	forty hours per week." 	This provision also allows 	for
an extension of 	the workweek on an overtime basis. 	Section 	18.5
defines what 	constitutes 	overtime and its 	rate 	of pay. 	It also
requires 	that
all 	hours 	worked beyond 	the workweek 	of 	five
days 	shall 	be 	compensated at 	the 	overtime
rate 	commencing on the 	sixth day of work.
The 	normal 	workweek 	for bus 	drivers 	was 	the 	five 	consecutive
days 	from Monday 	through 	Friday. 	The past 	few years prior 	to
October 27, 	1992, 	most drivers worked an average of 	six and
three-quarters 	to 	seven hours 	per day. 	Bus 	drivers 	assigned 	to
work 	on 	field 	trips 	usually 	earned 	some 	overtime 	hours 	and were
paid at 	the 	rate 	of 	pay provided 	for 	in section 	18.5.
The 	directive 	from transportation 	supervisor Austin 	on
October 27, 	1992, 	indicated that drivers assigned to weekend
field 	trips 	would have 	to 	take 	a day off 	the preceding week. 	The
day worked during 	the weekend 	field 	trip 	assignment 	thus 	would
31

become a part 	of 	the employee's normal workweek, 	instead of 	an
overtime 	assignment. 	Nothing 	in section 	18.1 	or 	18.5 	authorizes
the District 	to extend the workweek on this basis. 	Thus, 	this
change 	in 	the 	employee's 	workweek appears 	to have been a
repudiation of 	the 	hours 	and overtime provisions 	of 	the 	CBA.
In Grant, 	and other cases, 	the Board has addressed the
question 	of 	when an 	employer's 	unilateral 	breach 	of 	a 	contract
amounts 	to a 	"change 	of policy." 	The 	PERB precedent 	discussed 	in
Trinidad 	Union 	Elementary 	School 	District/Peninsula 	Union 	School
District 	(1987) 	PERB Decision No. 	629 	(Trinidad) 	is 	instructive
in this 	area. 	In Trinidad, 	PERB decided that 	the determinative
factor 	is 	whether or not 	the 	change 	had a 	"material 	and
significant 	effect 	or 	impact upon 	the 	terms 	and 	conditions 	of
employment." 	(Trinidad, 	at p. 	9, 	citations.) 	The Board pointed
out, 	that 	in order for this 	standard to be met,
[T]here must be 	some 	cogent 	evidence 	that
changes hav
- e happened or will 	happen, 	which
have 	significantly 	changed 	or will
significantly 	change 	employee 	benefits.
(Trinidad, 	at p. 	15, 	fn. 	5; 	emphasis in
original.)
The 	directive 	issued by Austin was 	intended 	to 	institute 	a
new policy with 	respect 	to 	the 	workweek and 	opportunity 	for
overtime 	compensation 	for all 	bus 	drivers 	in the unit who were
assigned 	to weekend 	field 	trips. 	The 	change was 	also 	intended 	to
affect 	the 	employee's 	wages 	by 	requiring 	them to 	take 	an unpaid
day 	during 	their 	normal 	workweek and work a weekend 	assignment 	at
their regular hourly wage 	rate. 	Although 	this 	change was 	only 	in
effect 	for approximately 	three weeks, 	and affected just 	two unit
32

employees, 	those 	two employees 	(one 	of whom was Austin herself)
suffered a loss of hours and wages 	on November 10, 	1992, 	and a
loss 	of overtime compensation on November 14, 	1992, 	the day of
the field trip assignment. 	In light 	of 	this evidence, 	it must be
concluded 	that 	the 	District's 	action amounted 	to a 	change 	of
policy 	of 	material 	impact 	upon 	terms 	and 	conditions 	of 	employment
of unit 	employees.
The 	District 	instituted 	this 	change 	of 	policy without 	notice
to 	CSEA or an 	opportunity 	to negotiate 	over 	the 	subject 	prior 	to
the implementation of 	the 	change. 	Thus, 	absent a valid defense,
it 	is 	concluded that a violation of 	section 3543.5(c) 	occurred.
A. 	District 	Defenses
1. 	Deferral 	to Arbitration.
In its answer, 	the District asserted, 	as an affirmative
defense, 	that 	the 	subject matter of 	this 	charge 	is deferrable to
the 	contractual 	grievance machinery. 	Although the District 	did
not 	file 	a motion 	to dismiss 	either before 	or during 	the 	hearing
on the grounds 	of deferral, 	it argued in its post-hearing brief
that 	the matter 	is 	subject 	to 	the 	grievance machinery since
Marshall 	filed a grievance 	challenging 	the 	change 	of 	her
workdays.
Although Marshall 	testified 	that 	she 	thought 	a 	grievance was
going 	to be 	filed, 	there 	is 	no evidence 	that a grievance was
filed by, 	or on behalf of, 	Marshall 	during the 	time 	in question.
Article VII 	of 	the 	CBA contains 	the provisions 	of 	the
grievance procedure which 	culminates 	in 	final 	and binding
33

arbitration. 	Section 	7.1.1 	of 	the 	article defines 	a 	"grievance"
as
. 	. 	. 	a claim by one or more employees that
there 	exists 	a 	dispute 	regarding 	the
interpretation 	or application 	of 	a provision
of this Agreement.
Section 3541.5(a)(2) 	provides 	that 	PERB 	is precluded from
issuing 	a 	complaint
. 	. 	. 	against conduct also prohibited by the
provisions 	of 	the 	agreement between 	the
parties 	until 	the 	grievance machinery of 	the
agreement, 	if 	it exists and covers the matter
at 	issue, 	has been exhausted, 	either by
settlement or binding arbitration. 	. 	. 	.
In determining whether a 	charge 	or portion 	thereof 	must 	be
deferred 	to arbitration, 	it must be 	initially ascertained whether
the 	disputed 	issue 	is 	covered by the parties' 	contractual
grievance procedure, 	and whether those procedures 	culminate 	in
binding arbitration. 	(Lake Elsinore School District 	(19 87) 	PERB
Decision No. 	646 	(affd. 	nonpub. 	opn.) 	Elsinore Valley Education
Association, 	CTA/NEA v. 	PERB/Lake 	Elsinore 	School 	District
E005078, 	4th Dist. 	Court of Appeal; 	Los Angeles Unified School
District 	(1990) 	PERB Decision No. 	860.) 	Although PERB has no
authority to enforce a CBA, 	it does have 	the authority to
interpret 	a 	contract 	to determine 	if 	an unfair practice 	has 	been
committed. 	(Grant.)
It 	has 	already been determined 	that 	sections 	18.1 	and 	18.5
of 	the 	CBA cover 	the 	normal 	workweek and 	overtime 	provisions 	for
bus drivers. 	Therefore, 	to the extent 	that 	the District 	changed
two drivers' 	workweeks 	and denied them the 	opportunity to 	earn
34

overtime 	compensation during work at 	a weekend 	field 	trip, 	it
engaged 	in 	conduct violative 	of 	those provisions 	of 	the 	CBA.
However, 	PERB has 	refused to defer a 	charge 	to arbitration
where 	the 	subject 	matter 	is 	arguably 	covered by 	the 	grievance
machinery of 	the 	CBA, 	but 	the 	CBA does 	not 	grant 	authority to 	the
exclusive 	representative 	to 	file grievances 	in 	its 	own name.
(Inglewood Unified School 	District 	(1991) 	PERB Order No. 	Ad-222.)
Under the 	language 	of Article VII, 	CSEA apparently lacks 	the
right 	to 	file a grievance 	in its 	own name. 	Thus, 	CSEA lacks
standing 	to 	file a grievance 	in 	this matter. 	The precedent
established by 	Inglewood 	is 	applicable 	to 	this 	situation.
Therefore, 	it 	is 	concluded that 	the 	charge 	is not 	subject 	to pre-
arbitration 	deferral.
2. 	Past 	Practice.
Again 	the 	record shows 	that 	the District 	has 	had a 	long-
standing 	and accepted practice 	of modifying 	the 	hours 	per day 	for
bus 	drivers 	due 	to 	the 	fluctuations 	of 	student 	attendance 	and 	the
accompanying changes 	of bus 	routes. 	However, 	no evidence was
presented 	to 	show 	that 	the 	District 	had 	ever 	changed 	the workdays
of 	bus 	drivers 	in 	connection with weekend 	field 	trip 	assignments.
The 	record thus 	lends 	no 	support 	to 	the District's 	claim
that 	the 	changes 	at 	issue here were 	consistent 	with 	its 	long-
standing practice 	of 	changing 	the hours 	of bus 	drivers 	to 	comport
with the needs 	of 	its 	transportation services. 	This 	defense
lacks merit 	and 	it 	is 	rejected.
35

CONCLUSION
Based on the 	entire 	record in this 	case, 	it has been
concluded 	that 	the 	District 	breached 	its 	obligation under 	EERA to
negotiate when 	it 	unilaterally 	(1) 	changed 	its 	established policy
regarding 	the 	work 	schedule 	of maintenance 	and grounds 	employees
assigned to work home 	football games, 	(2) 	changed the hours
allotted 	to 	the 	library 	technician and health 	clerk positions 	at
San Jacinto Elementary School, 	and 	(3) 	changed the workweek of
bus 	drivers 	assigned 	to weekend 	field 	trips. 	Based upon this
conduct, 	it has been 	found that 	the District violated section
3543.5(c). 	This 	conduct also interfered with CSEA's 	right 	to
represent 	its members 	in 	their employment 	relations 	with 	the
District, 	in violation of 	section 3543.5(b). 	The same conduct
also 	interfered with 	individual 	unit members' 	rights 	to be
represented by 	their 	chosen 	representative 	in 	their 	employment
relations with the District, 	in violation of section 3543.5(a).
REMEDY
Section 3541.5(c) 	gives 	the Board the power to 	issue a
decision 	and 	order 	directing 	the 	offending 	party 	to 	cease 	and
desist 	from the unfair practice 	and 	to 	take 	such affirmative
action as 	will 	effectuate 	the policies 	of 	the 	EERA.
In this 	case 	it 	has 	been 	found that 	the District 	breached
its 	obligation 	to 	negotiate 	in good 	faith with 	CSEA when 	it
(1) 	unilaterally 	changed 	its 	established policy 	regarding 	the
work 	schedule 	of maintenance 	and grounds 	employees 	assigned 	to
work home 	football 	games; 	(2) 	unilaterally changed the hours
36

allotted 	to 	the 	library 	technician 	and health 	clerk positions 	at
San Jacinto Elementary School; 	and 	(3) 	unilaterally changed the
workweek of 	bus 	drivers 	assigned to weekend 	field trips. 	This
conduct violated section 3543.5(c), 	(b) 	and 	(a).
CSEA seeks 	an 	order 	that 	the District 	be 	required 	to 	cease
and 	desist 	from its 	unlawful 	conduct 	and 	that 	affected unit
members be made whole 	for any loss 	of wages and benefits, 	with
interest.
The 	ordinary remedy 	in unilateral 	change 	cases 	is 	to order
the 	employer 	to 	cease 	and desist 	from conduct 	found 	to be 	in
violation of 	the Act. 	PERB also normally orders 	the 	restoration
of 	the 	status 	quo ante 	in order to 	ensure 	that 	the 	employer does
not 	benefit 	from its 	wrongful 	act. 	Since 	the District 	has
already 	restored 	the 	work 	schedules 	for maintenance 	and 	grounds
employees 	and bus 	drivers 	that were 	in effect prior to 	the
unilateral 	changes, 	it 	is unnecessary to order a return to 	the
status quo ante 	for these 	employees. 	Restoration of 	the 	status
quo 	is 	appropriate 	for 	the 	library 	technician and health 	clerk
positions 	at 	San Jacinto 	Elementary School. 	This would require
that 	the 	library 	technician position be 	restored 	to 	its 	prior
allotment 	of 	eight 	hours 	per day and 	the 	health 	clerk position
restored 	to 	five hours per day. 	Since 	the 	change 	in hours 	of
these 	two positions 	was 	done prior to 	the positions being 	filled
in or about late October 1992, 	the current employees, 	if any, 	had
no 	"vested" 	interest 	in 	the previous 	staffing 	levels 	of 	these
positions. 	Therefore, 	restoration of the status quo is
37

conditioned upon 	the 	affirmative 	desire 	of 	the 	affected 	employees
for such, 	as 	expressed through CSEA, 	their exclusive
representative. 	(Unico Apparel, 	Inc. 	(1974) 	215 NLRB 89 	[88 LRRM
1238].) 	In addition, 	the District will be ordered, 	upon request,
to negotiate 	changes 	in 	the hours 	allocated 	to 	these positions
with CSEA, 	the 	exclusive bargaining 	representative 	of 	the
classified unit.
It 	is 	also appropriate 	to make 	employees whole 	for any
losses, 	economic or otherwise, 	suffered as a result 	of 	the
District's unilateral 	actions. 	Interest at 	the 	rate 	of 	7 percent
per annum shall 	be paid on economic 	losses. 	(See 	San Francisco
Unified School 	District 	v. 	San 	Francisco 	Classroom Teachers
Association, 	CTA/NEA 	(1990) 	222 Cal.App.3d 146- 	[272 	Cal.Rptr.
38] .)
In 	the 	calculation of 	the 	amount 	of 	backpay due affected
maintenance 	and grounds 	employees, 	the backpay should be based on
the 	difference between the 	number 	of 	overtime 	hours 	each 	employee
earned on the day(s) 	they worked home 	football 	games between
September 11 and November 6, 	1992, 	and the average amount 	of
overtime 	they 	earned 	for 	such work prior 	to 	the 	unilateral
change. 	To determine the proper number of hours, 	the District
shall 	use 	the 	three years 	prior 	to 	the 	change 	of 	the 	football
work schedule as 	a guide. 	The District 	shall 	total 	the number of
overtime 	hours 	worked by 	each 	affected maintenance 	and grounds
employee during home 	football 	games 	in 1989-90, 	1990-91 and 1991-
92 	and then divide by three. 	This 	calculation will 	produce 	the
38

average 	number of 	extra hours worked 	in 	this 	three year period.
The District 	shall 	then divide 	the average number of 	hours 	evenly
among 	all 	maintenance 	and grounds 	employees 	who worked home
football 	games 	in the 	fall 	of 	1992. 	These employees are 	to be
paid the 	amounts 	of money 	they would have 	received 	in 	the 	fall 	of
1992 	had 	they worked the 	calculated number of 	hours.
Inasmuch as 	the 	football 	game 	assignments 	were 	ordinarily
worked as 	overtime, 	the amount 	of money paid to 	each employee
should be 	computed at 	the 	overtime 	rate, 	offset 	by 	the 	number of
hours 	for which 	the 	employee 	received 	overtime 	compensation 	for
games worked between September 	11 	and November 	6, 	1992. 	The
amount 	due 	each 	employee 	shall 	be 	augmented by 	interest 	at 	the
rate of 	7 percent per annum.
With 	respect 	to 	the 	change 	in workweek of bus 	drivers
Marshall 	and Austin, 	the District 	shall 	compensate 	them for 	the
day of 	regular wages 	lost 	on November 10, 	1992, 	offset by the
number of hours 	of 	regular pay received on November 	14, 	1992.
The 	same 	formula 	described above 	for 	calculating 	backpay 	for 	the
overtime 	hours 	earned by 	the bus 	drivers 	during weekend 	field
trips 	shall 	be used 	to 	calculate 	compensation 	for 	the 	elimination
of Marshall's and Austin's overtime hours 	on November 14, 	1992.
However, 	it 	is 	inappropriate 	to order a make whole 	remedy
for the 	employees 	hired after October 	1992 	to 	the 	library
technician and health 	clerk positions 	at 	San Jacinto 	Elementary
School. 	Compensation normally awarded 	to affected 	employees
would 	constitute 	an unwarranted windfall 	for 	the 	person 	employed
39

in the 	library technician position. 	As 	noted above, 	these
employees 	voluntarily accepted 	the 	work 	and had 	no 	"vested"
interest 	in 	the previous 	staffing 	levels 	for these positions.
Both 	PERB 	and 	the NLRB 	have 	recognized 	that 	they are 	not
required 	to 	order backpay awards 	without 	considering 	the
circumstances 	of 	each 	case. 	(Solano 	Community 	college District
(1982) 	PERB Decision No. 	219; 	Shepard v. 	NLRB 	(1983) 	459 U.S. 	344
[112 	LRRM 2369].) 	Therefore no backpay 	is 	awarded.
Disputes 	regarding 	implementation 	of 	the 	foregoing 	remedy
will 	be 	resolved 	through 	the 	Board's 	compliance procedure.
It 	is 	appropriate 	that 	the District 	be 	ordered 	to post 	a
notice 	incorporating 	the 	terms 	of 	the 	order herein. 	Posting 	of
such a notice, 	signed by an authorized agent, 	will 	provide
employees 	that 	the District 	has acted 	in an unlawful manner, 	has
been ordered 	to 	cease and desist 	from this 	activity, 	and will
comply with the 	order. 	It 	effectuates 	the purposes 	of 	EERA that
employees 	be 	informed of 	the 	resolution of 	a 	controversy and 	the
District's 	readiness 	to 	comply with 	the 	ordered 	remedy.
(Placerville Union School District 	(19 78) 	PERB Decision No. 	69;
Davis Unified School District, 	et al. 	(1980) 	PERB Decision No.
116.)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	facts, 	conclusions 	of
law, 	and the 	entire record in this 	case, 	it 	is 	found that 	the San
Jacinto Unified 	School 	District 	(District) 	violated Government
Code 	section 	3543.5(c) 	of 	the 	Educational 	Employment 	Relations
40

Act 	(EERA) 	by: 	(1) 	unilaterally changing its 	established policy
regarding 	the 	work 	schedule 	of 	maintenance 	and grounds 	employees
assigned 	to work home 	football 	games 	in the 	fall 	of 	1992;
(2) 	unilaterally changing the hours 	allotted to 	the 	library
technician and 	health 	clerk positions 	at 	San Jacinto 	Elementary
School; 	and 	(3) 	unilaterally changing the workweek of bus drivers
assigned 	to weekend 	field trips 	in November 	1992. 	By the 	same
conduct, 	it 	has been found that 	the District also violated EERA
section 3543.5(b) 	and 	(a).
Pursuant 	to section 3541.5(b) 	it 	is 	hereby ordered that 	the
District, 	its governing board and its representatives, 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate 	in good
faith with 	the 	California 	School 	Employees Association and 	its
Chapter #189 	(CSEA), 	as 	the exclusive representative of 	the
District's 	classified unit 	employees, 	by making 	changes 	in the
employees 	hours 	and 	other 	terms 	and 	conditions 	of 	employment
within the 	scope 	of 	representation;
2. 	By the 	same 	conduct, 	denying 	to CSEA rights
guaranteed by EERA, 	including 	the 	right 	to 	represent 	its members;
and 	further
3. 	By the 	same 	conduct, 	interfering with employees 	in
the 	exercise 	of 	rights 	guaranteed by EERA, 	including 	the 	right 	to
be 	represented by 	their 	chosen 	representative.
41

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA.
1. 	In the 	future, 	provide notice to CSEA of any-
proposed 	decision 	to 	change 	the 	hours 	or 	other 	terms 	and
conditions 	of employment of unit members, 	including the hours 	of
existing unit positions and, 	upon request, 	meet 	and negotiate
over 	the 	decision and the 	effects 	thereof.
2. 	Pay 	to all maintenance and grounds 	employees 	who
worked home 	football games 	in the 	fall 	of 	1992, 	lost 	income
resulting 	from the 	change 	of 	their work 	schedule. 	The amount 	of
income due 	each employee 	shall 	be 	calculated as 	follows: 	The
District 	shall 	total 	the 	number of 	overtime hours 	worked by each
affected maintenance 	and 	grounds 	employee 	during 	home 	football
games 	in 19 89-90, 	1990-91 and 1991-92 	and then divide by three.
This 	calculation will 	produce 	the average number of 	extra hours
worked 	in 	this 	three year period. 	The District 	shall 	then divide
the 	average number of 	hours 	evenly among all maintenance 	and
grounds 	employees who worked home 	football 	games 	in the 	fall 	of
1992. 	These 	employees are 	to be paid the amounts 	of money they
would have 	received 	in the 	fall 	of 	1992 	had 	they worked 	the
calculated number of 	hours. 	The amount 	due 	each employee 	shall
be 	augmented by 	interest 	at 	the 	rate 	of 	7 percent per annum.
3. 	Pay to bus 	drivers 	Ethel Marshall 	and Teresa
Austin 	lost 	income 	resulting 	from the 	change 	of 	their workweek 	in
November 	1992. 	the amount 	of 	income due 	each of 	these drivers
shall 	be 	calculated as 	follows: 	The District 	shall 	compensate
them for 	the day of 	regular wages 	lost 	on November 	10, 	1992,
42

offset 	by 	the 	number 	of 	hours 	of 	regular pay 	received 	on
November 14, 	1992. 	The 	same 	formula described above 	for
calculating backpay 	for 	the 	overtime 	hours 	earned by 	the 	bus
drivers 	during weekend 	field 	trips 	shall 	be used 	to 	calculate
compensation 	for 	the 	elimination 	of Marshall's 	and Austin's
overtime hours on November 14, 	1992. 	The amount due each
employee 	shall 	be augmented by 	interest 	at 	the 	rate 	of 	7 	percent
per 	annum.
4. 	Upon the 	request 	of 	CSEA, 	restore 	the 	library
technician 	and health 	clerk positions 	at 	San Jacinto 	Elementary
School 	to eight 	hours 	and five hours per day, 	respectively.
5. 	Within ten 	(10) 	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.
Upon issuance 	of 	a 	final 	decision, 	make written notification
of 	the actions 	taken to 	comply with the 	Order 	to 	the 	Los Angeles
Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accord with 	the 	Regional 	Director's 	instructions.
43

Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
final 	unless 	a party 	files 	a statement 	of 	exceptions with the
Board 	itself 	at 	the 	headquarters 	office 	in Sacramento within
20 	days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" 	when
actually received before 	the 	close 	of business 	(5:00 p.m.) 	on the
last day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last 	day set 	for 	filing 	. . . " 	(See Cal. 	Code 	of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon each party 	to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany each 	copy served on a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
W. JEAN THOMAS
Administrative Law Judge
44
\