Barstow Unified School District (PERB 1138E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	BARSTOW
CHAPTER 	#306,
Charging 	Party,
v.
BARSTOW UNIFIED SCHOOL DISTRICT,.
Respondent.
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Case No. 	LA-CE-3396
PERB Decision No. 	1138
February 20, 	1996
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Appearances: 	California 	School 	Employees Association by
William C. 	Heath, 	Attorney, 	for California School Employees
Association and its Barstow Chapter #306; 	Atkinson, 	Andelson,
Loya, 	Ruud and Romo by Ronald C. 	Ruud, 	Attorney, 	for Barstow
Unified 	School 	District.
Before Caffrey, 	Chairman; 	Garcia and Johnson, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed by
the Barstow Unified School 	District 	(District) 	to a 	PERB
administrative 	law judge's 	(ALJ) 	proposed decision. 	The ALJ
found that 	the District violated section 3543.5(a), 	(b) 	and 	(c)
of 	the 	Educational 	Employment 	Relations Act 	(EERA)1 when 	it
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:
(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

refused 	to 	negotiate 	with 	the 	California 	School 	Employees
Association and 	its 	Barstow Chapter 	#306 	(CSEA), 	and unilaterally
contracted 	out 	pupil 	transportation 	and vehicle 	maintenance
services 	in June 	1993.
After 	review of 	the 	entire 	record, 	including 	the 	hearing
transcript, 	the proposed decision, 	and the 	filings 	of 	the
parties, 	the 	Board 	reverses 	the ALJ's 	proposed 	decision 	and
dismisses 	the 	unfair practice 	charge 	and 	complaint 	in 	accordance
with 	the 	following 	discussion.
BACKGROUND
At 	all 	times 	relevant, 	CSEA and 	the 	District 	were 	parties 	to
a 	collective bargaining agreement 	(CBA) 	effective 	October 	5, 	1990
through June 	30, 	1993, 	which 	included a provision 	indicating 	that
the 	parties 	agreed 	that 	the 	CBA 	should 	remain 	in 	effect 	from 	"day
to 	day until 	such 	time 	as 	a 	new 	or modified 	agreement 	is 	reached
by 	the 	parties." 	For more 	than a year prior 	to 	June 	1993 	the
District 	had 	considered 	contracting 	out 	its 	transportation
services 	as 	a means 	of 	reducing 	its 	overall 	budget. 	The 	issue
had 	been 	discussed 	at 	budget 	committee 	meetings 	which 	included
CSEA representatives 	and at 	District 	board meetings, 	including
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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the public board meetings 	of May 4, 	18 	and June 	11
of 	1993. 	The meetings were attended by CSEA representatives 	who
strongly 	objected 	to 	the 	contracting 	out 	of 	transportation
services.
At 	its May 4 meeting, 	the District board voted to 	contract
with Mayflower Contract Services, 	Inc. 	(Mayflower) 	for all
student 	transportation 	services 	and vehicle maintenance 	for 	the
1993-94 	school 	year, 	and directed District 	staff 	to 	enter 	into
contract 	negotiations with Mayflower. 	By taking this action, 	the
board 	anticipated a budgetary 	savings 	of 	approximately 	$300,000.
Prior to May 4, 	the District had not provided CSEA with 	the 	type
of 	notice 	that 	it 	normally sent 	to 	the 	chapter president when
contemplating a 	change 	of 	policy or action 	that 	affects
bargaining unit members.
By letter of May 6, 	1993, 	Jack Ashley 	(Ashley), 	the CSEA
labor 	relations 	representative, 	demanded 	that 	the District 	not
proceed with 	the 	contracting 	out 	until 	the parties 	had negotiated
the decision and its effects. 	By letter of May 12, 	1993, 	the
District's 	chief 	negotiator and assistant 	superintendent, 	Robert
Myers 	(Myers) 	replied that, 	"The District has always 	taken the
position 	that 	the 	contract 	authorizes 	the District 	to 	contract
for services without bargaining." 	Myers 	did offer 	to discuss 	the
matter 	"informally." 	On May 17, 	Myers 	sent another letter to
Ashley 	citing 	the District 	Rights 	article 	of 	the 	CBA as 	the
District's 	authority 	for unilaterally 	contracting 	out 	services.
3
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That 	letter 	concluded with an offer 	to negotiate 	the 	"effects 	of
layoff."
On May 	18, 	the District 	board adopted a resolution to 	reduce
classified school 	services 	for 	transportation, 	and lay off 	28
bargaining unit employees effective June 30, 	1993. 	On May 24,
Ashley 	responded and 	requested 	to meet 	and negotiate 	the 	effects
of 	the proposed layoffs.
On June 	3, 	CSEA and 	the District met 	and CSEA again demanded
that 	the District 	negotiate 	the decision to 	contract 	out
transportation services. 	The District 	responded that 	it 	had a
contractual 	right 	to 	contract 	out 	transportation services 	and,
therefore, 	needed to negotiate 	only the 	effects 	of 	that action on
employees. 	Later that day, 	Ashley sent Myers 	a letter which
purported to add two 	items 	to negotiations. 	The 	letter stated 	in
part:
As you know, 	the 	counter proposals which were
presented to the 	district 	today, 	contain a
proposal 	to 	eliminate 	the 	language 	in the
District 	Rights 	article which addresses 	the
district's 	right 	to contract. 	In addition we
have 	also proposed 	to eliminate 	25.1 	of 	the
contract. 	Therefore, 	the district is
obligated 	to negotiate 	to 	impasse 	and 	through
the 	impasse procedure, 	before 	it 	can rely on
these 	sections 	of 	the 	contract.
In this 	letter, 	Ashley again 	reiterated CSEA's 	demand 	that 	the
District 	desist 	from implementing plans 	to 	contract 	out 	the work
of 	the 	transportation department 	until 	negotiations 	were
completed with CSEA. 	The 	letter demanded 	that 	the District
"maintain the 	status 	quo until 	the parties 	can negotiate 	the 	cost
cutting measures 	which were 	previously 	submitted 	to 	the 	governing
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board by 	employees 	of 	the 	transportation department."
At 	its June 	11 meeting, 	the District board reviewed the
contract with Mayflower for approval. 	However, 	prior to 	taking
action, 	the board entertained a written 	request 	from the
president 	of 	the 	District's 	personnel 	commission 	to 	delay 	its
contracting 	out 	decision because 	of 	possible 	legal 	implications
for the District 	as 	a merit 	system. 	After devoting 	some
discussion 	to 	the 	concerns 	raised by 	the personnel 	commission,
the board approved the Mayflower 	contract, 	effective July 	1,
1993.
Sometime after June 	11, 	the District 	entered into a three-
year contract with Mayflower 	for the period July 	1, 	1993 	through
June 30, 	1996.
CSEA and 	the District met 	to 	continue 	their 	"effects"
negotiations 	on June 	18 	and 22. 	Negotiations 	continued in July
and August 	and were 	certified by 	PERB 	for 	impasse 	on
October 1, 	1993.2 During this period, 	the parties were also
engaged 	in 	their 	1992-93 	reopener negotiations 	which 	concluded 	in
August 	1993. 	The 	"effects" 	bargaining and the 	1992-93 	reopener
negotiations 	ended with no 	change 	in 	the District 	Rights 	article
of the parties' 	CBA.
On or about 	June 	2, 	the District 	issued layoff 	notices 	to
all 	affected 	transportation employees. 	Layoffs were 	to be
2Official 	notice 	is 	taken of 	Barstow Unified 	School
District, 	impasse Case No. 	LA-M-2461, 	which is maintained in the
PERB Los Angeles Regional 	Office. 	This 	record shows 	that
mediation was 	eventually successful 	in resolving 	the matter. 	The
case was 	closed on November 4, 	1994.
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effective July 5. 	In lieu of 	layoff, 	some employees 	elected to
"bump" 	into other unit positions at 	reduced salaries. 	Others
took positions 	with Mayflower at 	unknown wage 	rates 	and benefit
levels.
All 	District 	pupil 	transportation and vehicle maintenance
services 	have been provided by Mayflower 	since 	July 	of 	1993.
The 	CBA contains 	several 	provisions 	which are 	relevant 	to
this 	case. 	CBA Article IV, 	District Rights, 	states 	in pertinent
part:
4.1 	It 	is 	understood and agreed 	that 	the District
retain 	[sic] 	all 	of 	its powers and authority
to direct, 	manage and control 	to the 	full
extent 	of 	the 	law. 	Included in but not
limited 	to 	those 	duties 	and powers 	are 	the
exclusive right 	to: 	determine 	its
organization; 	. 	. 	. determine the kinds and
levels 	of 	services 	to be provided, 	and the
methods 	and means 	of providing them; 	maintain
the 	efficiency of District 	operations;
contract 	out work, 	which may lawfully be
contracted 	for 	. . . .
(Emphasis 	added.)
4.2 	The exercise of 	the 	foregoing powers. 	rights.
authority, 	duties 	and responsibilities by the
District, 	the adoptions of policies, 	rules,
regulations, 	and practices 	in furtherance
thereof, 	and the use of 	judgment and
discretion in connection therewith, 	shall be
limited 	only by 	the 	specific 	and 	express
. terms of 	this Agreement, 	and then only to the
extent 	such specific 	and express 	terms 	are 	in
conformance with 	the 	law.
(Emphasis 	added.)
The 	language 	in 	section 4.1 	of Article 	IV has 	existed as
worded above 	since 	the 	late 	1970's 	or early 	1980's. 	There was 	no
evidence 	presented by 	the 	parties 	with 	regard 	to 	their 	original
intent 	or understanding when 	the 	language was 	first 	negotiated.
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Article XXV, 	which 	is 	entitled 	"Completion of Meet 	and
Negotiation," 	states, 	in pertinent part:
25.1 During the 	term of 	this Agreement, 	except as
provided 	in sections 	25.2 	and 25.3 	of 	this
article, 	the Association expressly waives 	and
relinquishes 	the 	right 	to meet 	and negotiate
and agrees 	that 	the District 	shall 	not be
obligated 	to meet 	and negotiate 	with 	respect
to any 	subject 	or matter whether or not
referred 	to or covered 	in 	this Agreement,
even 	though 	such 	subject 	or matter may not
have been within 	the 	knowledge 	or
contemplation 	of 	either or both the District
or the Association at 	the 	time 	they met 	and
negotiated 	on and 	executed 	this 	Agreement,
and even 	though 	such 	subjects 	or matters 	were
proposed 	and 	later 	withdrawn.
25.3 	This 	agreement 	shall 	be 	reopened 	for
negotiations 	on 	the 	1992-93 	salary schedule,
benefits under Article XII, 	1992-93 	calendar,
and up to two 	(2) 	additional articles which
may be 	selected by 	each party 	(maximum of
four), 	provided that one party gives the
other written notice 	of 	its 	intention to
reopen negotiations 	no 	later than March 	15,
1992.
Juan Rubio, 	a member of 	the District's negotiating team
since 	1989, 	who had previously been on the 	CSEA negotiating 	team,
testified 	that 	CSEA had 	tried unsuccessfully 	to 	change 	the
language 	of 	section 	4.1 	regarding 	contracting 	out 	several 	times.
During negotiations 	in the 	1980's, 	the parties did agree 	to a
procedure 	for bargaining 	the 	effects 	of 	layoffs 	or reductions 	in
hours, 	but 	the District Rights article 	remained unchanged.
The 	District 	apparently 	contracted 	out 	for 	some
transportation services 	on one prior occasion. 	In October of
1991, 	the District 	decided to reduce 	the hours 	of bus 	drivers by
15 minutes per day, 	and contract 	out bus washing services 	to a
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private 	contractor. 	CSEA demanded 	to bargain 	the District's
decision but 	the District 	refused. 	The parties ultimately agreed
to negotiate 	the effects 	of 	the decision, 	but not 	the decision
itself. 	CSEA filed an unfair 	labor practice 	charge 	against 	the
District 	regarding 	this matter which was 	later withdrawn.
Evidence 	was 	also 	submitted 	that 	private 	transportation 	companies
had been used 	for 	special 	events 	such as 	out-of-town 	trips
sponsored by individual 	schools. 	However, 	these events were paid
for by student 	organizations, 	and no District 	funds were
involved.
CSEA filed 	the 	instant 	unfair practice 	charge 	against 	the
District 	on June 21, 	1993, 	and an amended charge on January 13,
1994. 	On January 20, 	1994, 	after investigation, 	the Office of
the 	PERB General 	Counsel 	issued a 	complaint 	alleging 	that 	the
District 	had unilaterally 	contracted 	out 	pupil 	transportation and
vehicle 	maintenance 	services 	performed by bargaining 	unit 	members
without 	affording 	CSEA an 	opportunity 	to 	negotiate 	the 	decision
and/or its effects 	in violation of section 3543.5(a), 	(b) 	and 	(c)
of 	EERA.3 A PERB-conducted 	settlement 	conference 	was 	held 	on
March 3, 	1994, 	which failed to resolve the dispute. 	A formal
hearing was held June 6 	through June 	8, 	1994. 	After
continuances, 	the parties 	completed the 	filing of post-hearing
briefs 	on October 7, 	1994, 	and the ALJ issued her proposed
3The 	complaint 	also 	included an allegation 	that 	the District
had 	contracted 	out 	the 	transportation 	department 	work as
retaliation against 	CSEA. 	Prior to the 	formal 	hearing, 	this
allegation was 	withdrawn.
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decision on January 12, 	1995, 	in which she 	found that 	the
District 	had violated the 	EERA by 	its 	actions.4
POSITIONS 	OF THE 	PARTIES
CSEA asserts 	that 	the 	District's 	established policy and
practice 	prior 	to June 	1993 	had been 	to utilize bargaining unit
members 	to provide 	transportation and vehicle maintenance
services. 	CSEA argues 	that 	any prior contracting 	out 	of
transportation services 	within 	the District 	was 	isolated and
remote and, 	therefore, 	does not 	constitute an established past
practice 	of 	contracting 	out.
Noting 	that 	the 	contracting out 	of bargaining unit 	work 	is 	a
negotiable 	subject under EERA, 	CSEA argues 	that 	the 	record
clearly establishes 	that 	a 	timely 	request 	to negotiate 	the
District's 	contracting out 	decision was made by CSEA, 	and denied
by 	the District.
CSEA further asserts 	that 	the 	record 	establishes 	that 	it 	did
not waive, 	in the District Rights article of the CBA, 	its right
to negotiate 	over 	the 	subject 	of 	contracting out 	the District's
transportation services. 	Citing PERB precedent, 	CSEA notes 	that
a 	contractual 	waiver of 	the 	right 	to bargain must 	be 	clear and
4In her decision, 	the ALJ 	interpreted the 	CBA District
Rights 	article 	language giving 	the District 	the authority to
"contract 	out work, 	which may lawfully be 	contracted out" 	and
found 	that 	the meaning of 	the word 	"lawfully" 	within the
provision was 	unclear with 	respect 	to 	the 	lawful 	bargaining
obligations 	of 	the 	employer under the EERA. 	Accordingly, 	the ALJ
concluded 	that 	those 	lawful 	bargaining 	obligations 	had not 	been
waived by CSEA through this 	language. 	CSEA did not 	offer 	this
interpretation 	to 	the ALJ 	in 	its post-hearing briefs, 	and does
not 	advance 	it 	in the 	instant 	appeal 	pending before 	the 	Board.
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unmistakable, 	and argues 	that 	the 	language 	of 	the CBA District
Rights 	article 	is 	overly broad and 	cannot 	be 	considered a waiver
of 	the specific 	right 	to negotiate 	over the 	contracting out 	of
transportation services. 	Furthermore, 	CSEA argues 	that 	testimony-
offered by various 	witnesses 	establishes 	that 	the 	topic 	of
contracting 	out 	transportation 	services 	was 	never 	fully discussed
by the parties, 	much less a waiver of 	CSEA's 	right 	to negotiate
over that 	subject. 	Therefore, 	there 	is no clear indication of
the mutual 	intent 	of 	the parties 	at 	the 	time agreement 	was
reached on the District Rights article of 	the CBA, 	the
consideration of which is 	a primary rule 	of 	contract
interpretation.
In response, 	the District 	readily admits 	that 	it 	contracted
out 	transportation 	services 	and 	refused 	CSEA's 	demand 	to bargain
over the decision to do so. 	The District 	claims 	its 	action was
lawful 	because 	the District 	Rights 	article 	of 	the 	CBA expressly
authorizes 	the District's actions, 	constituting a 	clear and
unmistakable 	waiver by CSEA of 	its 	right 	to 	negotiate 	over 	the
subject. 	The District asserts 	that 	the Board 	in Goleta Union
School District 	(1984) 	PERB Decision No. 	391 	(Goleta USD) 	found
similar language 	to be a valid express waiver. 	The District 	also
refers 	to a decision by a 	PERB ALJ, 	Alvord Unified School
District 	(1983) 	PERB Decision No. 	HO-U-199 	(Alvord USD). 	in which
a 	similar 	finding 	was 	reached.
The District also asserts 	that 	the parties' 	bargaining
history and past 	practice 	with 	regard 	to 	contracting 	out
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transportation 	services 	support 	a 	finding 	of 	contractual 	waiver
in this case.
DISCUSSION
An 	employer violates 	the 	EERA duty 	to negotiate 	in good
faith when 	it 	unilaterally 	changes 	an 	established practice 	or
policy affecting a 	subject 	within the 	scope 	of 	representation
without 	affording 	the 	exclusive 	representative 	with notice 	and 	a
reasonable 	opportunity to negotiate 	the matter. 	(Pajaro Valley
Unified School District 	(1978) 	PERB Decision No. 	51.) 	The Board
has 	held 	that 	when an employer's 	decision 	to 	contract 	out 	work
turns upon labor costs, 	the decision is within the scope of
representation. 	(State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1987) 	PERB Decision No. 	648-S.)
In this 	case, 	it 	is 	clear that 	the District's decision to
contract 	out 	its 	transportation services 	was 	an attempt 	to 	lower
labor 	costs 	associated with 	the 	salaries 	and benefits 	of 	the
classified unit 	employees 	in 	its 	transportation department. 	The
District 	acknowledges 	that 	it 	steadfastly refused 	to 	negotiate
this 	decision despite written and oral 	demands 	for bargaining
from CSEA on May 	6 	and June 	3. 	The District admits 	that 	in June
1993, 	it unilaterally contracted out all pupil 	transportation and
vehicle maintenance 	services 	formerly provided by unit 	employees.
While 	the District 	concedes 	that 	it 	did not 	negotiate with
CSEA, 	it 	argues 	that negotiations were not 	required because CSEA
expressly waived 	its 	right 	to bargain the 	subject 	in the parties'
CBA. 	The District 	claims 	that 	the provision in Article 	IV,
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section 4.1 	of 	the 	1990-1993 	CBA, 	which permits 	the District 	to
"contract 	out work, 	which may be 	lawfully contracted 	for"
constitutes 	a 	"clear and unequivocal" 	waiver by CSEA of 	the 	right
to bargain regarding decisions 	to 	contract 	out. 	(San Mateo 	City
School District 	(1980) 	PERB Decision No. 	129.)
CSEA, 	by contrast, 	rejects the claim of waiver. 	It 	contends
that 	the District 	has not produced evidence 	of 	either 	clear and
unmistakable 	contract 	language, 	or behavior 	indicating an 	intent
by CSEA to waive 	its 	bargaining 	rights 	over 	the 	subject.
This 	case 	turns 	on the 	interpretation of 	the disputed
contact 	language. 	The issue before 	the Board is whether the 	CBA
language 	in question gives 	the District 	the 	right 	to decide 	to
contract 	out a 	specific area of work, 	transportation services,
without 	further negotiations with CSEA. 	Restating 	the 	issue, 	the
Board must 	decide 	whether 	the 	language 	of 	the 	CBA constitutes 	a
waiver by CSEA of 	the 	right 	to negotiate 	over 	the District's
specific 	decision 	to 	contract 	out 	transportation 	services.
Initially, 	it 	is 	important 	to note that the parties have
negotiated over the 	subject 	of 	contracting out work. 	The 	result
of 	those 	negotiations 	is 	embodied within the 	language 	of 	the
District 	Rights article 	of 	the CBA, 	a management 	rights 	clause
which reserves 	the 	rights 	of management 	to 	take 	certain actions
and make 	certain decisions. 	Under 	the 	terms 	of 	a broad
management 	rights 	clause 	"the 	employer may not 	be 	required 	to
bargain about 	some 	changes upon which, 	in the absence of 	such
clause, 	he might 	otherwise be 	compelled to bargain." 	(Elkouri
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and Elkouri, 	How Arbitration Works 	(4th ed. 	1985) 	p. 	479.) 	We
also note 	that 	the parties' 	CBA contains a 	"zipper" 	clause at
Article XXV, 	"Completion of Meet 	and Negotiation," 	under which
CSEA 	"expressly waives" 	the 	right 	to negotiate 	over any subject
"referred 	to 	or 	covered 	in 	this Agreement."
The 	California 	Civil 	Code provides 	guidance 	in 	the
interpretation of 	contractual 	language. 	Civil 	Code 	section 	1638
states, 	in part:
INTENTION TO BE ASCERTAINED 	FROM LANGUAGE.
The 	language of 	a 	contract 	is 	to govern 	its
interpretation, 	if 	the language 	is clear and
explicit, 	and does 	not 	involve an absurdity.
Additionally, 	Civil Code section 1641 states, 	in part:
EFFECT TO BE GIVEN TO 	EVERY PART OF 	CONTRACT.
The whole 	of a 	contract 	is 	to be 	taken
together, 	so as 	to give effect 	to every part,
if 	reasonably practicable, 	each clause
helping 	to 	interpret 	the 	other.
The 	Board 	follows 	this 	guidance 	in determining whether
contract 	language 	constitutes 	a waiver of 	the 	right 	to bargain.
A waiver 	of 	the 	right 	to bargain will 	not 	be 	lightly 	inferred.
For the District 	to demonstrate 	contractual 	waiver 	it must 	show
clear and unmistakable 	contract 	language 	waiving CSEA's 	right 	to
bargain. 	(Los Angeles Community College District 	(1982) 	PERB
Decision No. 	252.) 	When contract language is ambiguous, 	the
Board may 	examine 	bargaining 	history 	for 	evidence 	of 	a 	conscious
abandonment 	of 	the 	right 	to bargain over a particular subject.
(Colusa Unified School District 	(1983) 	PERB Decision No. 	296
(Colusa USD)'.)
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Applying 	this 	Civil 	Code 	guidance and Board precedent 	to 	the
instant matter, 	the Board concludes 	that 	the language 	of 	the
contract 	is 	clear and explicit 	in giving 	the District 	the 	right
to make 	the decision to 	contract 	out 	transportation services; 	and
that 	the 	language 	in question constitutes 	a 	clear and
unmistakable waiver by CSEA of 	the 	right 	to negotiate 	over 	the
subject 	of 	that 	decision.
Turning to the actual 	language of 	the CBA, 	sections 	4.1 and
4.2 	affirm the 	District's 	power and authority 	to 	direct 	and
manage the operations of 	the District. 	Specifically, 	the
District's 	"exclusive 	right" 	to make 	certain determinations 	and
take 	certain actions 	is 	itemized, 	including the exclusive 	right
to 	"contract 	out work, 	which may lawfully be 	contracted 	for."
Moreover, 	the District's 	exercise of 	these powers and rights
"shall be 	limited only by the 	specific and express 	terms" 	of 	the
CBA. 	Since 	the 	CBA contains 	no express 	limiting 	terms 	and
further negotiations 	of 	the 	subject 	have been waived 	in
Article XXV, 	the parties have agreed that 	the District's 	right 	to
contract 	out work 	is 	to be 	exercised broadly. 	The 	clear and
explicit meaning of 	this 	contract 	language 	is 	that 	the District
has 	the 	right 	to make 	the decision 	to 	contract 	out 	a specific
area of work, 	transportation services, 	without engaging in
negotiations 	with CSEA over 	that 	decision.
CSEA's 	argument 	that 	this 	contract 	language 	is 	too broad and
non-specific 	to 	indicate 	its 	intent 	to waive 	its 	right 	to
negotiate 	over 	the 	contacting 	out 	of 	transportation 	services 	is
14

without merit. 	First, 	as noted above, 	the ordinary meaning of
the words 	of 	the disputed language 	is 	clear and unambiguous. 	The
parties' 	agreement 	in CBA section 4.2 	that 	the powers 	and rights
given 	the 	District 	in 	section 	4.1 	may be 	limited 	only by 	specific
terms 	of 	the CBA, 	indicates a clear agreement 	that 	those powers
are broad and unlimited 	in 	the 	absence 	of 	any 	express 	contractual
limitation. 	No 	such limitation of 	the power to 	contract 	out work
is 	included in the parties' 	CBA. 	Second, 	under the rules of
contract 	interpretation, 	the 	intent 	of 	the parties 	is 	to be
ascertained 	from the 	contract 	language 	itself, 	if 	it 	is 	clear and
explicit. 	The 	language 	in question here 	is 	clear and explicit.
Third, 	to 	find that 	this 	language 	is 	too broad to allow the
District 	to 	contract 	out a specific area of work, 	such as
transportation services, 	would essentially render 	the 	language
meaningless 	and 	ineffective, 	since presumably no 	contracting out
of 	specific work could occur pursuant 	to 	this 	language. 	In
accordance with Civil 	Code 	section 1641, 	the Board avoids 	an
interpretation of 	contract 	language which 	leaves 	a provision
without 	effect. 	(Riverside 	Community College District 	(1992)
PERB Decision No. 	Ad-229.) 	As noted in 1 Witkin, 	Summary of
California Law 	(9th ed. 	1987) 	Contracts, 	section 690, 	page 623:
"An 	interpretation which gives 	a 	reasonable, 	lawful 	and effective
meaning 	to all 	the 	terms 	is 	preferred 	to an 	interpretation which
leaves a part unreasonable, 	unlawful 	or of no effect." 	The
language of the parties' 	CBA is clear and explicit, 	it affirms
the 	intent 	of 	the parties 	that 	it not be 	interpreted as 	limited,
15

and 	to 	interpret 	it 	as 	argued by 	CSEA would 	leave 	it 	without
effect.5
The 	Board 	concludes 	that 	the 	disputed 	language 	clearly gives
the District 	the 	right 	to decide 	to 	contract 	out 	transportation
services, 	and 	constitutes 	a 	clear and unmistakable waiver by CSEA
of 	the 	right 	to negotiate 	over the District's 	decision.
Therefore, 	the District did not violate EERA section 3543.5(a),
(b) 	and 	(c) 	when it 	refused to negotiate with CSEA over that
decision.6
As 	noted above, 	the Board may examine bargaining history to
determine 	if 	a waiver should be 	found 	in 	contract 	language 	it
finds to be ambiguous. 	(Colusa USD.) 	In this 	case, 	the Board
finds 	the 	disputed 	language 	to be 	clear and unambiguous 	and,
therefore, 	a review of bargaining history is unnecessary. 	The
Board notes, 	however, 	that the 	record contains no bargaining
history evidence 	to 	suggest 	that 	the 	Board's 	interpretation 	of
the 	contract 	language here 	is 	incorrect. 	CSEA made 	several
unsuccessful 	attempts 	during negotiations 	prior 	to 	1993 	to modify
the 	contracting 	out 	language 	contained 	in CBA Article 	IV. 	CSEA
5Similarly, the ALJ's 	interpretation of 	the word 	"lawfully"
in the CBA language 	to 	include 	the 	employer's 	lawful 	bargaining
obligations 	under 	EERA would 	render 	the 	language meaningless 	and
ineffective. 	The 	language 	itself 	is 	the product 	of 	a lawful 	EERA
bargaining process. 	The word 	"lawfully" 	clearly refers 	to legal
restrictions 	beyond 	the 	EERA bargaining 	obligation.
6The Board notes 	that 	the question of 	the 	lawfulness under
the 	Education 	Code 	of 	contracting 	out 	transportation services 	is
being pursued by 	the parties 	in a 	separate 	legal 	action 	in 	the
courts. 	The Board's 	decision here addresses 	the District's 	right
with 	regard 	to 	contracting 	out 	which 	is 	determined 	to be 	lawful.
16

also attempted to expand the parties' 	1992-93 	reopener
negotiations 	to 	include a proposal 	to eliminate what 	CSEA
described as 	"the 	language 	in 	the District 	Rights 	article which
addresses 	the district's 	right 	to 	contract." 	In the 	same
reopener negotiations, 	CSEA proposed elimination of 	CBA
section 25.1, 	which expressly waives 	the 	right 	to negotiate 	over
any subject 	referred to 	in the CBA. 	Though not dispositive, 	this
bargaining history 	is 	clearly not 	inconsistent 	with 	the 	Board's
finding 	that 	the 	CBA Article 	IV language unambiguously gives 	the
District 	the 	right 	to make 	the decision to 	contract 	out
transportation services, 	and constitutes 	a 	clear and unmistakable
waiver by 	CSEA.7
Finally, 	the 	complaint 	issued in this 	case alleges 	that 	the
District also violated EERA section 3543.5(a), 	(b) 	and 	(c) 	by
refusing 	to 	negotiate with CSEA over 	the 	effects 	of 	its 	decision
to 	contract 	out 	transportation services. 	While under the
language 	of 	the 	CBA the District 	had no 	obligation 	to 	negotiate
with CSEA over the decision itself, 	the 	effects 	of 	that 	decision
on matters 	within the 	scope 	of 	representation are negotiable.
(Mt. 	Diablo Unified School District 	(1983) 	PERB Decision
No. 	373.) 	The 	record here 	clearly establishes 	that 	the District
offered to negotiate with CSEA over 	the 	effects 	of 	its 	decision.
In 	the 	negotiating 	sessions 	which 	followed 	the parties 	continued
7The Board 	finds 	it unnecessary 	to 	consider the 	other
arguments 	raised by the parties. 	However, 	CSEA is 	correct 	in
noting 	that 	the Goleta USD 	case 	cited by 	the District 	is
inapposite, 	and that 	the Alvord USD decision of 	a 	PERB ALJ 	is
non-precedential 	and nonbinding 	on 	the 	Board.
17

to dispute 	the 	need to 	engage 	in negotiations 	over the District's
decision, 	but 	it 	is apparent 	that 	some 	level of effects
negotiations 	occurred and were ultimately 	concluded. 	As 	a
result, 	there 	is 	insufficient evidence 	to support a 	conclusion
that 	the District violated 	the 	EERA by 	refusing to engage 	in
bargaining 	over the 	effects 	of 	its decision 	to 	contract 	out
transportation 	services.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3396 	are hereby DISMISSED.
Members 	Garcia 	and Johnson 	joined 	in 	this 	Decision.
18