Arcata Elementary School District * * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525 (PERB 1163E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ARCATA ELEMENTARY SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1761
PERB Decision No. 	1163
June 26, 	1996
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Appearance: 	School 	and College Legal 	Services by Patrick D.
Sisneros, 	Attorney, 	for Arcata Elementary School District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on exceptions 	filed
by the Arcata Elementary School District 	(District) 	to a 	PERB
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
In his 	decision, 	the ALJ 	found that 	the District violated section
3543.5(c) 	of 	the Educational Employment Relations Act 	(EERA)1 by
EERA 	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
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
* * * OVERRULED IN PART by Huntington Beach Union High School
District (2003) PERB Decision No. 1525, pp. 2-10 * * *

unilaterally 	changing 	its 	past practice 	of 	having a 	full-time
custodian position, 	at 	Sunset 	Elementary School 	(Sunset
Elementary), 	when it 	converted the vacant 	full-time position into
two part-time positions. 	The ALJ also 	found that 	the District's
action violated 	EERA section 	3543.5(b) 	by 	effectively 	interfering
with 	the 	right 	of 	the 	California 	School 	Employees Association
(CSEA) 	to represent 	its members. 	The ALJ dismissed the
allegation 	that 	the 	District's 	conduct 	violated 	EERA section
3543.5(a).
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the hearing 	transcript 	and
the District's 	exceptions. 	The Board finds 	the ALJ's 	findings
of 	fact 	to be 	free 	of prejudicial 	error and adopts 	them as
the 	findings 	of 	the Board 	itself. 	The Board finds 	the ALJ's
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them as 	the 	conclusions 	of 	the 	Board 	itself 	as modified by 	the
following 	discussion.
DISCUSSION
The District 	offers 	several 	exceptions 	to the ALJ's proposed
decision. 	The District 	contends 	that 	it has not 	converted a
vacant 	full-time 	custodian position 	to 	two part-time positions.
Instead, 	it asserts 	that 	the 	full-time position simply remains
vacant 	while 	the District 	experiments 	with a 	split 	shift 	approach
(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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to providing 	custodial 	services 	using 	two new part-time
positions. 	Therefore, 	the District argues 	that 	its action does
not 	fall 	within 	the 	ambit 	of 	Cajon Valley Union School 	District
(1995) 	PERB Decision No. 	1085 	(Cajon Valley), 	and there was no
duty 	to 	negotiate 	over the 	creation of 	the 	new part-time
positions.
Second, 	the District asserts 	that 	the 	creation and
assignment 	of 	the part-time 	custodian positions 	was 	completely
consistent 	with 	the past 	practice with 	regard 	to 	the
configuration of 	custodial 	services. 	The District argues 	that
there 	is 	a history of 	full-time 	and part-time 	custodian positions
being assigned 	to 	schools 	or designated as 	districtwide
positions.
The District also claims 	that the parties did, 	in fact,
negotiate and reach consensus 	on the 	establishment 	of 	the part-
time 	custodian positions 	during 	the 	interest-based bargaining
process. 	The District asserts 	that 	CSEA failed 	to 	support 	the
consensus 	agreement when 	it was put 	to a vote 	of 	the 	CSEA
membership.
EERA section 3543.2(a)2 limits 	the scope of 	representation
2Section 3543.2 	states, 	in pertinent part:
(a) 	The 	scope of 	representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of employment. 	. 	. 	. 	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
33

to matters 	relating to hours, 	wages, 	and other enumerated terms
and 	conditions 	of 	employment. 	EERA reserves 	all matters 	outside
the 	scope of 	representation to 	the public 	school 	employer. 	PERB
applies 	the 	test 	it 	established 	in Anaheim Union High School
District 	(1981) 	PERB Decision No. 	177,3 to determine whether a
subject 	is within the 	scope of 	representation. 	This balancing
test places 	a 	subject 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.
In applying this 	test, 	PERB has 	looked to private 	sector
cases 	for guidance 	in defining 	the management prerogative. 	The
National 	Labor Relations 	Board 	(NLRB) 	has 	excluded managerial
decisions 	"which lie at 	the 	core of 	entrepreneurial 	control" 	from
the 	scope 	of 	representation unless 	the decision 	is based on labor
costs. 	(Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964) 	379 U.S.
203 	[57 LRRM 2609, 	2617] 	(Fibreboard); 	Otis Elevator Co. 	(1984)
consult 	with any 	employees 	or 	employee
organization on any matter 	outside 	the 	scope
of 	representation.
3The 	California 	Supreme 	Court 	approved this 	test 	in
San Mateo City School Dist, 	v. 	Public Employment 	Relations
Bd. 	(1983) 	33 Cal.3d 850 	[191 Cal.Rptr. 	800].
4

269 NLRB 891 	[116 LRRM 1075] 	(Otis Elevator); 	and First National
Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 2705]
(First 	National).)
PERB 	has 	taken a 	similar approach 	in determining whether
employer decisions 	which may affect 	the 	terms 	and 	conditions 	of
employment 	are 	negotiable.4 The 	Board 	recognizes 	as 	within 	the
management prerogative 	the 	employer's 	decisions 	involving 	the
level 	of 	services 	to be provided. 	This prerogative 	includes
decisions 	to create new positions, 	to determine the number of
hours 	to be assigned to new positions, 	to discontinue a service
by abolishing a position, 	and to lay off 	employees.
(Mt. 	San Antonio Community College District 	(1983) 	PERB Decision
No. 	297; 	Davis Joint Unified School District 	(1984) 	PERB Decision
No. 	393; 	Alum Rock Union Elementary School District 	(1983) 	PERB
Decision No. 	322; 	and Newman-Crows 	Landing Unified School
District 	(1982) 	PERB Decision No. 	223.)
The 	Board has 	only 	recently 	considered 	the 	negotiability of
the 	employer's 	decision to 	change 	the hours 	of 	a vacant position.
4PERB has 	specifically 	referred to 	the 	standard 	established
in 	Fibreboard 	in 	finding 	that various 	employer decisions 	fall
within management 	prerogative 	and are 	outside 	the 	scope 	of
representation. 	See, 	e.g., 	Alum Rock Union Elementary School
District 	(1983) 	PERB Decision No. 	322 	(District 	creation and
abolition of job classifications); 	State of California
(Department of 	Personnel Administration) 	(1987) 	PERB Decision
No. 	648-S 	(Department of 	Personnel Administration) 	(contracting
out); 	Whisman Elementary School District 	(1991) 	PERB Decision
No. 	868 	(non-unit work performed by volunteers); 	Stanislaus
County Department of 	Education 	(1985) 	PERB Decision No. 	556
(District decision to cease operation of 	child care 	center);
and San Diego Unified School 	District 	(1982) 	PERB Decision
No. 	234 	(District decision to create Employee Assistance
Program).
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Although not 	cited by 	the ALJ,5 the 	Board 	first 	considered 	this
issue 	in San Jacinto Unified School 	District 	(1994) 	PERB Decision
No. 	1078 	(San Jacinto). 	In that case, 	the employer reduced the
hours 	of 	a vacant 	library technician position 	from 8 	hours 	to 	6
hours per day, 	and increased the hours 	of 	a vacant health clerk
position 	from 5 	hours 	to 	6 	hours per day. 	The Board stated that
had the 	employer decided to 	create new positions, 	leave 	the
existing positions vacant, 	and allocate a different 	number of
hours 	to 	the new positions, 	its decisions would constitute a
level 	of 	service 	change 	outside 	the 	scope 	of 	representation.
In San Jacinto, 	the Board 	found that 	the 	employer had not met
its burden of 	showing that 	the positions were new, 	holding that
the 	employer had simply 	changed the hours 	of 	the vacant, 	existing
library 	technician and health 	clerk positions. 	The 	Board went
on to 	conclude 	that 	any 	change 	in the hours 	of 	a vacant 	position
affects 	the 	collective 	interests 	of bargaining unit members,
involves 	economic 	considerations 	rather 	than a 	significant 	change
in the level 	or kind of 	service to be provided and, 	therefore, 	is
a matter within 	the 	scope 	of 	representation.
This 	case provides 	the 	Board with an 	opportunity 	to 	refine
its 	rulings 	in San Jacinto 	and Cajon Valley with 	regard 	to 	the
negotiability of 	a change 	in the hours 	of a vacant position. 	In
doing 	so, 	the Board must 	give 	consideration to 	the 	employer's
5The ALJ 	relied 	solely on 	the Board's 	decision 	in Cajon
-Valley in finding that a district's 	change 	in the hours 	of 	a
vacant position 	is 	a negotiable 	subject.
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- -
exercise 	of management prerogative 	and the 	rights 	of 	employees 	to
be 	represented 	in matters 	relating 	to 	terms 	and 	conditions 	of
employment.
The 	Board 	faced 	similar 	considerations 	in determining 	the
negotiability 	of 	the 	employer's 	decision 	to 	contract 	out 	work.
The 	Board 	originally placed all 	contracting 	out 	decisions 	within
the scope of 	representation. 	(Arcohe Union School District 	(1983)
PERB Decision No. 	360.) 	However, 	later decisions have limited
the 	negotiability of 	the 	employer's 	contracting 	out 	decisions
to 	those based on labor 	cost 	considerations. 	Contracting out
decisions based on a 	change 	in 	the 	nature and direction of 	a
significant 	facet 	of 	business 	are not 	negotiable. 	(Department
of 	Personnel Administration; 	San Diego Community College District
(1988) 	PERB Decision No. 	662, 	rev. 	in part sub nom. 	San Diego
Adult 	Educators v. 	PERB 	(1990) 	223 	Cal.App.3d 1124 	[273 	Cal.Rptr.
53] .)
In 	reaching 	this 	conclusion 	in Department 	of 	Personnel
Administration, 	the Board harmonized 	its 	ruling with the holdings
of 	Fibreboard, 	Otis 	Elevator and First National. 	The Board
defined 	the boundary between 	the management 	prerogative 	and 	the
scope 	of 	representation by 	focusing 	on whether 	the 	employer needs
unencumbered decision-making 	or whether 	the 	subject 	is 	amenable
to 	resolution through the bargaining process. 	The Board
concluded:
If 	the decision to be made by this 	employer
on contracting out 	is based upon
considerations other than labor costs, 	it 	is
difficult 	to 	see 	how 	the 	decision would be
77

amenable 	to collective bargaining. 	The
unions would, 	of necessity, 	be 	involved in
decision making beyond 	their 	own 	interests 	of
employee wages and hours. 	But 	such is not
the 	function of 	an 	exclusive 	representative,
it 	is 	the 	function of management 	to be
concerned with the 	running of 	the business.
The 	approach 	taken by 	the 	Board 	in Department 	of 	Personnel
Administration 	can be 	applied with 	regard 	to 	the 	negotiability 	of
an employer's 	decision to 	change 	the hours 	of 	a vacant 	position.
Such a decision which 	reflects 	a 	change 	in 	the nature, 	direction
or level 	of 	service 	falls within management's prerogative 	and 	is
outside 	the 	scope 	of 	representation.6 Conversely, 	a decision to
change 	the hours 	of 	a vacant position which 	is based on labor
cost 	considerations 	and does 	not 	reflect 	a 	change 	in the nature,
direction or level 	of 	service, 	is 	directly related to 	issues 	of
employee wages 	and hours 	and 	is within the 	scope 	of
representation.
Applying this approach to the 	instant 	case, 	the District
changed 	the 	hours 	of 	a vacant 	full-time 	custodian position,
converting 	it 	to 	two 	3 	3/4-hour-per-day positions. 	The District
does not assert, 	however, 	that 	its action reflected a decision
to 	change 	the 	level 	of 	custodial 	service being provided. 	On the
contrary, 	it 	is 	clear that 	the District 	intended that no change
in the nature, 	direction or level 	of 	custodial 	service would
result 	from its decision. 	Instead, 	it 	contends 	that 	the use of
6As 	with other management 	decisions 	which 	fall 	outside 	the
scope 	of 	representation, 	the effects 	of a non-negotiable decision
to 	change 	the hours 	of a vacant position are negotiable 	to 	the
extent 	that 	they affect 	the 	terms 	and 	conditions 	of 	employment 	of
bargaining unit members.
8

the 	two part-time positions 	represents 	an 	innovative 	attempt 	to
deliver 	that 	service more 	efficiently.
The District's 	selection of 	the 	somewhat unusual 	time base
of 	3 	3/4 	hours per day for the part-time 	custodian positions,
suggests 	some 	significance attributable 	to 	that 	selection. 	The
District 	offers 	no 	information or 	explanation 	relative 	to 	its
selection of 	the unusual 	3 	3/4-hour time base. 	However, 	the
record 	indicates 	that 	employees 	of 	the District 	who work 	less
than 4 	hours per day do not 	qualify 	for 	the 	employee benefit
package 	offered by the District. 	Based on these 	facts, 	the Board
concludes 	that 	the District's 	decision to 	change 	the hours 	of 	the
vacant, 	full-time 	custodian position to 	two 	3 	3/4-hour-per-day
custodian positions 	did not 	reflect 	a decision 	to 	change 	the
nature, 	direction or level 	of 	custodial 	service being provided,
but 	rather was 	based on 	consideration of 	the 	labor 	costs
associated with that 	service. 	Accordingly, 	that decision was
within the 	scope of 	representation, 	and the District was 	required
to provide 	CSEA with notice 	and 	the 	opportunity 	to negotiate.
When 	it 	did not 	do 	so and unilaterally 	changed 	the 	full-time
position 	to 	two part-time positions, 	the District violated the
EERA.
The District, 	citing the Board's analysis 	in Cajon Valley,
contends 	that 	it has not 	changed the hours 	of a vacant position;
rather, 	it 	has 	established two new part-time positions 	and left
the full-time position vacant. 	Consequently, 	since 	the
establishment 	of 	a new position 	is 	a matter of management
99

prerogative, 	the District argues 	that 	it had no duty to negotiate
with CSEA. 	As noted above, 	the negotiability of 	the District's
action turns 	on 	the 	question of whether 	it 	reflects 	a 	change 	in
the nature, 	direction or level 	of 	service being provided. 	Here,
the District's 	action clearly does 	not 	reflect 	such a 	change.
Furthermore, 	as 	correctly determined by the ALJ, 	the 	same
custodial 	work 	formerly performed by a 	full-time 	custodian
at 	Sunset 	Elementary 	is 	now being performed by 	two part-time
custodians. 	A position 	is 	defined by the duties 	assigned to
it, 	not 	simply by the designation given to 	it 	in a position
accounting system. 	Therefore, 	the District's 	assertion that 	its
action was 	not 	negotiable because 	it 	created two 	"new" 	part-time
custodian positions 	is without merit.
The District 	also argues 	that 	its 	action with 	regard to 	the
part-time 	custodian positions 	is 	consistent 	with 	its 	established
past 	practice 	of 	utilizing both 	full-time 	and part-time
custodians 	at various 	schools 	and 	times 	throughout 	the District
and, 	therefore, 	is not subject 	to negotiations. 	This argument 	is
also without merit. 	The 	conduct at 	issue here 	is 	the 	change 	in
the hours 	of 	the vacant 	full-time 	custodian position. 	While 	the
District 	has 	maintained both 	full-time 	and part-time 	custodian
positions 	in the past, 	it has presented no evidence 	that 	it has
previously 	changed 	the hours 	of 	those positions 	when 	they became
vacant. 	Therefore, 	the District has not demonstrated that 	its
action was 	consistent 	with an 	established past 	practice.
10

Finally, 	the District argues 	that 	it 	did not 	refuse 	to
negotiate and, 	in fact, 	reached consensus with CSEA in interest-
based bargaining 	that 	the 	two part-time 	custodian positions 	would
be 	continued. 	As noted by the ALJ, 	it 	is undisputed that 	the
District 	initially decided 	to 	divide 	the 	full-time 	custodian
position without 	notifying 	or negotiating with CSEA. 	The
interest-based bargaining 	sessions 	in which 	the 	parties 	engaged
occurred weeks 	after the hiring of 	the part-time 	custodians.
The 	disputed versions 	offered by 	the 	District 	and 	CSEA of 	the
"consensus" 	reached in those sessions, 	as well 	as 	the ultimate
refusal 	by CSEA to agree 	to 	the part-time 	custodian positions,
make 	it 	clear 	that 	the parties 	had not 	completed 	the bargaining
process. 	Therefore, 	the District's argument is rejected.
In summary, 	the District 	changed the hours 	of 	a vacant
position, 	converting 	it 	from full-time to two part-time
positions. 	The District's 	action did not 	reflect 	a decision
to change 	the nature, 	direction or level 	of 	custodial 	service,
but was based on labor cost 	considerations. 	Consequently, 	the
District's 	decision was 	within the 	scope 	of 	representation.
The District 	took 	this 	action before 	the parties 	had 	reached
agreement 	or 	exhausted the 	statutory 	impasse procedures.
Therefore, 	the District 	failed to negotiate 	in good faith 	in
violation of 	EERA section 	3543.5(c) 	and 	thereby denied CSEA the
11

right 	to 	represent 	its members 	in violation of 	EERA section
3543.5 (b) .7
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Arcata
Elementary School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA) , 	Government Code section
3543.5(c). 	The District violated EERA by unilaterally changing
its 	past 	practice 	of 	having a 	full-time 	custodian position at
Sunset 	Elementary 	School 	by 	converting 	the vacant 	full-time
position 	into 	two part-time positions. 	Because 	this 	action
had 	the 	additional 	effect 	of 	interfering with 	the 	right 	of 	the
California School 	Employees Association 	(CSEA) 	to represent 	its
members, 	the unilateral 	change also was a violation of 	EERA
section 3543.5(b). 	The allegation that 	the District's 	conduct
violated EERA section 3543.5(a) 	is 	hereby DISMISSED.
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. 	Converting 	the vacant 	full-time 	custodian position
at 	the 	Sunset 	Elementary School 	into 	two part-time positions
prior 	to 	the 	completion of 	negotiations.
7The 	parties 	filed no 	exception 	to 	the ALJ's 	conclusion 	that
the District 	had not violated EERA section 3543.5(a).
12

2. 	Interfering with the 	right 	of 	CSEA to 	represent
its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
TO 	EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
1. 	Within thirty 	(30) 	workdays 	of 	the service of 	this
decision, 	rescind 	the action of 	converting 	the vacant 	full-time
custodian position at 	the 	Sunset 	Elementary School 	into 	two part-
time positions.
2. 	Within ten 	(10) 	days 	following the date 	this
Decision is no 	longer subject 	to reconsideration, 	post at all
work 	locations 	where 	notices 	to 	classified employees 	customarily
are posted, 	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 positing 	shall 	be maintained 	for a period 	of 	thirty
(30) 	consecutive workdays. 	Reasonable steps shall be taken to
ensure that 	the Notice is not 	reduced in size, 	altered, 	defaced
or 	covered with any other material.
3. 	Upon issuance of 	this decision, 	make written
notification of 	the actions 	taken to 	comply with the Order 	to
the 	San 	Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with 	the 	director's 	instructions.
Members 	Johnson and Dyer 	joined 	in 	this 	Decision.
13

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 No. 	SF-CE-1761,
California School 	Employees Association v. 	Arcata Elementary-
School District, 	in which all parties had the 	right 	to
participate, 	it has been 	found that 	the Arcata Elementary School
District 	(District) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5(c) 	and 	(b). 	The
District 	violated 	EERA by 	unilaterally 	changing 	its 	past 	practice
of 	having a 	full-time 	custodian position at 	Sunset 	Elementary
School 	by 	converting 	the vacant 	full-time position 	into 	two part-
time positions. 	The District 	took this 	action prior to
negotiating 	with 	the 	California 	School 	Employees 	Association
(CSEA) 	and without 	first 	exhausting 	the 	statutory 	impasse
procedure.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Converting 	the vacant 	full-time 	custodian position
at 	the 	Sunset 	Elementary School 	into 	two part-time positions
prior to 	the 	completion of 	negotiations.
2. 	Interfering with the 	right 	of 	CSEA to 	represent
its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
Within thirty 	(30) 	workdays 	of 	the 	service 	of 	this
decision, 	rescind the action of 	converting 	the vacant 	full-time
custodian position at 	the 	Sunset 	Elementary School 	into 	two part-
time positions.
Dated: 	ARCATA 	ELEMENTARY 	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.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ARCATA 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	SF-CE-1761
PROPOSED 	DECISION
(10/31/95)
Appearances: 	David R. 	Young, 	Labor Relations Representative, 	for
the California School 	Employees Association; 	Patrick D. 	Sisneros,
Associate General 	Counsel, 	School 	and College Legal 	Services, 	for
the Arcata Elementary School 	District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A public 	school 	employer 	is 	accused here 	of 	dividing a
vacant 	full-time 	custodian position 	into 	two part-time 	jobs
without 	prior negotiations with the 	union. 	The union contends
that 	it 	first 	learned of 	the 	change 	from an advertisement 	in the
newspaper. 	The 	employer denies 	that 	the 	full-time position was
abolished, 	asserting that 	the 	job continues 	to exist but 	is
unfilled. 	The 	employer also asserts 	that 	the union consented to
the 	hiring of 	the part-time 	employees.
The 	California 	School 	Employees Association 	(CSEA or Union)
commenced this 	action on February 6, 	1995, 	by filing an unfair
practice 	charge 	against 	the Arcata 	Elementary School 	District
(District). 	The general 	counsel 	of 	the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	issued a 	complaint 	against 	the
District on March 1, 	1995. 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.
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The complaint alleges that prior to January 10, 	1995, 	it was
the policy of 	the 	District 	that 	the 	custodian position at 	the
District's 	Sunset 	School 	was 	a 	full-time 	job. 	On or about 	that
date, 	the complaint 	alleges, 	the District 	changed the policy by
posting notices 	for two 	3 	and 3/4 	hour positions. 	The 	complaint
alleges 	that 	after the Union demanded to negotiate, 	the parties
met 	but 	did not 	reach agreement. 	The 	complaint 	alleges 	that 	on
or about 	January 25 	and 30, 	the District 	hired two 	individuals 	to
fill 	the part-time positions. 	By these actions, 	the complaint
alleges, 	the District 	failed to negotiate 	in good faith 	in
violation of 	the 	Educational 	Employment 	Relations Act 	(EERA or
Act) section 3543.5(c), 	(a) and (b).1
The District 	answered the 	complaint 	on March 20, 	1995,
denying generally the 	operative 	allegations 	against 	it. 	A
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	The 	EERA is 	codified at Government 	Code
section 3540 	et 	seq. 	In relevant part, 	section 3543.5 provides
as follows:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(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.
22

hearing was held on August 	16, 	1995, 	at 	the District office 	in
Arcata. 	With the 	filing of briefs, 	the matter was 	submitted for
decision on October 23, 	1995.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under 	the 	EERA.
The Union 	is 	the 	exclusive 	representative 	of 	a 	comprehensive 	unit
of 	the District's 	classified employees. 	Included within 	the 	unit
are 	the District's 	custodial 	employees.
The District has 	three 	schools: 	Sunny Brae Middle 	School,
Bloomfield Elementary and Sunset 	Elementary. 	Prior 	to 	the
events 	at 	issue, 	the District 	employed one 	full-time 	lead
custodian 	and one 	full-time 	custodian at 	both 	Sunny Brae 	and
Sunset 	and one 	full-time 	lead 	custodian 	and 	one 	part-time
custodian at Bloomfield. 	Until 	the events at 	issue, 	these work
hours 	for custodians 	had been in effect 	for at 	least 	15 	years.
In December of 	1994, 	the District 	superintendent 	terminated
the 	employment 	of 	the 	custodian at 	Sunset 	on the 	ground that
he had failed his 	six months' 	probationary period. 	Thereafter,
the 	District 	posted a notice 	for a 	full-time 	custodian at 	Sunset.
After the 	closing of 	the 	application period on January 5, 	the
District 	hired no one. 	On January 10, 	the District posted a 	job
vacancy notice 	for two custodian positions 	at 	Sunset 	of 	3 	and 	3/4
hours 	each. 	The 	application closing date was 	fixed at
January 19.
The 	District 	gave 	no prior notice 	to 	CSEA about 	its
decision to 	advertise 	for two part-time positions 	rather 	than
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one 	full-time position. 	CSEA's 	negotiating 	committee 	chair and
District employee, 	Donald T. 	(Chris) 	Christensen, 	testified
that 	he 	learned of 	the plan 	to 	hire 	the part-time 	custodians
from a unit 	member who 	saw an 	advertisement 	in 	the 	newspaper.
On January 11, 	Mr. 	Christensen wrote a memo to District
Superintendent 	David Hochman, 	asking to meet 	as 	soon as
possible 	about 	the 	filling of 	the position at 	Sunset. 	He
also 	asked 	that 	the 	District 	take 	no 	action prior 	to 	reaching
an 	agreement 	with CSEA.
The 	superintendent 	responded to Mr. 	Christensen's 	letter by
agreeing 	to meet 	with 	the 	CSEA negotiating 	team on 	January 20.
At 	the meeting, 	CSEA asserted that 	the 	full-time position 	should
not 	be 	divided 	into 	two part-time 	jobs 	and 	should be 	filled as
before. 	The 	superintendent 	disagreed and the matter was 	left
unresolved. 	This was 	the 	only negotiating 	session between 	the
District 	and CSEA about 	the 	issue.
Despite 	CSEA's protest, 	the District 	hired the 	two part-time
custodians 	for Sunset 	School. 	One went 	to work on January 25,
1995, 	and the 	other on January 30. 	Each was 	assigned to work a
shift 	of 	3 	and 3/4 	hours. 	One 	custodian begins work at 	5:30 	a.m.
and the 	other at 	2:30 	p.m. 	By working 	less 	than 	four hours 	a
day, 	the 	two custodians are not 	eligible 	for fringe benefits.
Superintendent 	Hochman 	testified 	that 	the 	District 	wanted
the 	part-time 	custodians 	because 	the 	work 	shift 	could be 	divided
and the 	custodians 	could work when children were 	not present. 	He
said that 	an 	eight-hour 	custodian would have 	to 	start 	in the
4
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morning and work during the 	school 	day. 	Since 	children are
present, 	he 	said, 	a day-shift 	custodian could not 	clean the
facility as well 	as 	one who works 	after hours. 	Despite 	his
preference 	for the part-time work 	shifts, 	the 	superintendent 	said
that 	the 	District 	has 	not 	abolished the 	full-time position.
Rather, 	he said, 	it remains as an unfilled position.
The 	District 	Board of 	Trustees 	considered the 	hiring 	of 	the
two part-time 	custodians 	at 	its meeting on February 27. 	In the
early part 	of 	the meeting, 	the 	school 	board approved the 	hiring.
Later in the meeting, 	Mr. 	Christensen protested the decision
not 	to 	fill 	the 	eight-hour position and to hire 	the 	two part-time
custodians. 	He 	complained that 	CSEA was 	not 	given the
opportunity to bargain about 	the 	decision which he 	described 	as 	a
negotiable 	subject. 	He 	asked the 	trustees 	to rescind the
decision 	to hire 	the 	part-time 	custodians 	so 	CSEA and 	the
District 	could negotiate.
Following Mr. 	Christensen's statement, 	the 	school board
voted to 	rescind 	its 	earlier approval 	of 	the 	hiring of 	the
part-time 	custodians. 	Minutes of 	the meeting state 	that 	the
District 	trustees 	also 	"directed the 	superintendent 	to 	begin
bargaining with 	CSEA." 	Despite 	the 	school 	board's 	refusal 	to
approve 	of 	their hiring, 	the 	two part-time 	custodians 	remained on
the 	District payroll. 	Superintendent 	Hochman testified that
there 	was 	a 	tacit 	understanding between him, 	the 	school 	board and
CSEA that 	the 	two 	custodians 	would 	remain 	employed while 	the
challenge 	to 	their hiring was pending.
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Following the 	action of 	the 	school board, 	further
consideration of 	the 	change 	in 	the 	custodian position was
deferred to 	the District's 	"Interest-Based Bargaining" 	(IBB)
Committee. 	The 	IBB 	Committee 	is 	composed of 	representatives of
the District administration, 	confidential 	employees, 	CSEA and the
Arcata Teachers Association, 	exclusive 	representative 	of 	the
District's 	certificated employees. 	Committee 	ground rules 	call
for all decisions to be made by consensus. 	Mr. 	Christensen
testified that 	he 	interpreted 	"consensus" 	to mean that 	all
persons 	on the 	committee 	reach an agreement. 	Superintendent
Hochman 	testified 	that 	he 	interpreted 	"consensus" 	to mean an
absence 	of 	further objection to 	the proposal 	at 	issue.
The 	IBB 	Committee 	took up 	the 	issue 	of 	the 	custodian
position at 	its meeting of March 27, 	1995. 	At 	that meeting there
were 	six representatives 	from the District. 	Among them were 	the
superintendent, 	two principals 	and at 	least 	one 	confidential
employee. 	There were 	five 	representatives 	from CSEA and three
from the Arcata 	Teachers Association.
Mr. 	Christensen testified that 	he 	and the 	CSEA
representatives 	spoke 	against 	the 	division of 	the 	full-time
position into two part-time positions. 	However, 	he said, 	he
agreed to 	take 	the plan to divide 	the position back to a meeting
of 	the 	chapter. 	He 	said the 	consensus 	reached was 	that 	the 	CSEA
representatives 	would 	take 	the 	issue 	back 	to 	the 	chapter
membership 	for a vote. 	Mr. 	Christensen decided that 	he would
remain 	"neutral" 	on the proposal when it went before 	chapter
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members. 	He 	did not 	tell 	others 	on the 	IBB Committee of 	this
intent.
Superintendent 	Hochman 	initially 	testified 	that 	the
consensus 	he 	understood the 	parties 	to have 	reached on March 	27
was 	that 	the District 	would keep the 	two part-time 	custodians.
On cross-examination, 	however, 	he acknowledged that 	the consensus
reached was 	that 	the 	CSEA representatives 	would 	take 	the 	issue
back to 	their membership 	for 	a decision. 	He 	said he believed,
nevertheless, 	that 	the representatives would support 	the plan
when the members 	considered 	it. 	He 	said he 	did not 	understand
that 	it was Mr. 	Christensen's plan to remain neutral.
The 	question of whether 	to agree 	to 	the 	employment 	of 	the
two part-time 	custodians 	was 	put 	before 	a 	CSEA membership meeting
on April 	11, 	1995. 	The membership voted against agreeing to
accept 	the District's 	action. 	Mr. 	Christensen testified that 	he
later told the 	superintendent 	of 	the 	chapter's 	refusal 	to agree.
There were 	no 	further negotiations 	between 	the 	District 	and
CSEA on the 	issue. 	The matter was 	never taken through the
statutory impasse procedure. 	As of 	the date of 	the hearing, 	the
two part-time 	custodians 	were 	still 	employed by the 	District 	at
the 	Sunset 	Elementary School.
LEGAL 	ISSUE
Did 	the 	District 	unilaterally change 	a vacant 	full-time
custodian position 	into 	two part-time 	jobs 	and 	thereby 	fail 	to
meet 	and negotiate 	in good 	faith with 	CSEA?
77

CONCLUSIONS 	OF 	LAW
An 	employer's 	pre-impasse 	unilateral 	change 	in 	an
established, 	negotiable practice violates 	its 	duty to meet 	and
negotiate 	in good faith. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50
LRRM 2177].) 	Such unilateral 	changes 	are 	inherently destructive
of 	employee 	rights 	and are 	a 	failure per 	se 	of 	the 	duty to
negotiate 	in good faith. 	(Davis Unified School 	District, 	et 	al.
(1980) 	PERB Decision No. 	116.)
In order 	to 	establish a unilateral 	change 	an 	exclusive
representative 	must 	prove 	that 	there 	existed a past 	practice
involving a negotiable 	subject. 	The 	exclusive 	representative
must 	prove 	that 	the 	employer changed that 	practice 	in a mariner
that will 	have 	"a generalized effect" 	or a 	"continuing 	impact" 	on
the members 	of 	the negotiating unit. 	(Grant 	Joint Union High
School District 	(1982) 	PERB Decision No. 	196.) 	The 	change must
have 	been made 	without 	affording 	the 	exclusive 	representative
notice 	and the opportunity to negotiate. 	Or if 	there was notice,
the 	exclusive 	representative must 	prove 	that 	it 	made 	a 	demand to
meet 	and negotiate but was 	rejected. 	Finally, 	the 	exclusive
representative 	must 	show 	that 	the 	employer made 	the 	change 	before
the 	parties 	had 	reached 	agreement 	or 	exhausted 	the 	impasse
procedures.
It 	is clear, 	initially, 	that this dispute involves a
negotiable matter. 	Hours 	of work 	is 	a 	specifically enumerated
negotiable 	subject 	under 	the 	EERA scope 	of 	representation
8

provision.2 " [A] 	change 	in the hours of a vacant position is a
subject within the 	scope of representation, 	and therefore, 	a
negotiable 	subject because 	it 	impact[s] 	the number of hours which
have 	been 	regularly assigned 	to positions 	that 	were 	temporarily
vacant." 	(Cajon Valley Union School 	District 	(1995) 	PERB
Decision No. 	1085.)
CSEA argues 	that 	by dividing 	the 	eight-hour position 	into
two positions 	of 	three and 3/4 	hours 	the 	District 	has 	changed
both hours 	and benefits. 	The 	change 	in hours 	is 	the 	reduction of
an eight-hour position 	into 	two positions 	of 	three 	and 	3/4 	hours,
a loss of 	3 0 minutes of 	custodial work time each day. 	The change
in benefits 	is 	the 	removal 	of 	health coverage 	from the 	custodian
positions, 	an occurrence 	that 	followed 	from the 	failure 	of 	the
two part-timers 	to work 	the 	minimum of 	four hours 	required 	for
coverage. 	CSEA rejects 	any contention that 	the meeting of 	the
IBB 	Committee 	constituted bargaining. 	Nothing 	about 	the
committee meeting constituted bargaining, 	CSEA argues, 	and the
Union 	did not 	waive 	any rights 	by participating 	in 	it.
The 	District 	argues 	that 	it 	did not 	refuse 	to negotiate with
CSEA but, 	through the 	IBB Committee, 	negotiated and reached an
agreement with CSEA about 	the 	custodial positions. 	CSEA, 	the
District 	contends, 	then took the 	agreement back to 	its membership
where 	it 	actively opposed it. 	Moreover, 	the District 	contends,
it 	long has 	employed both 	full-time 	and part-time 	custodians 	and
the 	creation of 	the part-time positions 	at 	issue was 	completely
2Section 3543.2.
99

consistent with the past practice. 	Furthermore, 	the District
argues, 	it did not 	reduce 	the hours of 	the 	full-time 	custodian
position because 	that 	job has 	not 	been abolished but 	continues 	in
existence, 	although vacant.
I 	am unpersuaded, 	initially, 	by the 	contention that 	the
position 	for 	a 	full-time 	custodian at 	Sunset 	remains 	in
existence, 	although unfilled. 	The 	two part-time 	custodians
replaced a 	full-time 	custodian. 	There 	is 	no evidence 	that 	the
District 	has 	sufficient 	work 	to 	employ both a 	full-time 	custodian
and the part-timers. 	The rationale 	for the change, 	from the
beginning, 	was that 	the hours of 	the part-time 	custodians would
permit 	classroom cleaning when no 	students were present. 	This 	is
something 	the 	superintendent 	apparently believed 	to be 	impossible
with a 	full-time 	custodian. 	Minutes 	from the 	IBB meeting 	show
that 	the 	superintendent 	presented the 	hiring of 	the part-time
custodians as being in lieu of 	a 	full-time 	custodian. 	I
believe 	that 	the 	choice before 	the District was 	to have 	either a
full-time custodian or two part-time custodians, 	but not both.
The 	next 	question is whether the decision to make 	the 	change
was done unilaterally. 	Plainly, 	the District decided to divide
the position 	into 	two part-time 	jobs without 	first 	negotiating
with the Union. 	By the time the Union learned of 	the plan, 	the
District 	already had prepared a notice 	for the part-time 	jobs 	and
placed an advertisement 	in the newspaper. 	It was 	a decision
firmly made 	by the 	time 	the Union 	learned of 	it.
10

When Mr. 	Christensen objected to the change, 	the
superintendent 	met 	with him but 	did not 	abandon 	the 	decision
to hire 	the part-time 	custodians. 	With the Union still 	in
opposition, 	the part-time 	custodians were 	hired and put 	to work
in January. 	A month later, 	Mr. 	Christensen's protests at a
school 	board meeting 	led 	the 	board 	to 	rescind 	its 	formal
ratification of 	the 	hiring of 	the part-time 	custodians. 	But
the 	two part-time 	custodians 	remained on the 	job nonetheless.
A month after the 	school 	board meeting, 	the 	hiring of
the part-time 	custodians 	was 	placed before 	an 	IBB meeting 	for
discussion. 	There 	is 	a conflict 	in the 	evidence 	about what
happened at 	the 	IBB meeting. 	The District 	contends 	that 	at 	the
end of 	the meeting, 	CSEA representatives 	had acquiesced 	in the
change 	and promised to urge members 	of 	the 	chapter to 	approve 	it.
CSEA contends 	that 	it 	promised only to 	take 	the 	matter back 	to
the 	chapter 	for 	consideration.
I 	think 	it 	very unlikely that 	CSEA representatives
acquiesced to 	the 	change 	at 	the 	IBB meeting. 	By the 	time 	of 	the
meeting, 	CSEA had opposed the 	division of 	the 	full-time position
into two part-time 	jobs both to 	the 	superintendent 	and the 	school
board. 	The present 	unfair practice 	charge 	had been 	filed and
CSEA had given 	every 	indication of 	contesting 	the 	change 	in 	every
available 	forum. 	It 	is 	hard to 	imagine 	that 	CSEA would 	suddenly
change 	its position at the 	IBB meeting. 	Indeed, 	the District
acknowledges 	that 	CSEA representatives 	spoke 	against 	the 	change
at 	the meeting.
11

I 	conclude 	that 	CSEA did not 	consent 	to the 	change 	at 	the
IBB meeting. 	I believe 	that 	CSEA representatives made 	their
opposition known. 	When it became 	clear that 	their views were 	in
the minority, 	they agreed to 	take 	the matter back 	to 	the 	chapter
as a method 	for moving the dispute out 	of 	the 	IBB arena. 	When
the 	chapter rejected the proposal, 	the parties were back where
they were 	at 	the beginning.
That 	the 	District 	may have 	employed 	another part-time
custodian does 	not 	show a practice 	of 	converting 	full-time
positions 	into part-time positions. 	Indeed, 	the hours of
District 	custodians 	had remained unchanged 	for 	at 	least 	15 	years
before 	the 	change 	in January of 	1995. 	Since all 	evidence
indicates 	that 	the District 	plans 	to make 	the 	conversion of 	the
position 	from full-to part-time 	a permanent 	change, 	the 	action
was 	one 	that 	will 	have a 	"continuing 	impact." 	The 	District 	did
not 	bargain with the 	Union prior 	to making 	the 	change 	and did not
exhaust 	the 	statutory impasse procedures 	over the 	dispute 	at 	the
time when the 	agreement 	was 	open.
Accordingly, 	I 	conclude 	that 	the 	conversion of 	the 	full-time
custodian position 	into 	two part-time 	jobs 	constituted 	a 	failure
to negotiate 	in good faith in violation of 	section 3543.5(c).
Since 	the 	action also had the 	effect 	of 	denying CSEA the 	right 	to
represent 	its members, 	it 	also was 	in violation of 	section
3543.5(b). 	There 	is no evidence that 	the 	failure to negotiate 	in
good 	faith also 	denied to 	individual 	employees 	rights 	protected
by the 	EERA. 	The 	allegation 	that 	the 	District 	violated 	section
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3543.5(a) 	therefore must be dismissed. 	(Tahoe-Truckee Unified
School District 	(1988) 	PERB Decision No. 	668.)
REMEDY
The 	PERB 	in section 3541.5(c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative action, 	including but 	not
limited to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
Here, 	the District 	unilaterally changed the 	hours 	of 	a
custodian position by dividing 	the 	position 	into 	two part-time
jobs. 	The 	District 	took 	this 	action prior to negotiating with
CSEA and without 	first 	exhausting 	the 	statutory 	impasse
procedure. 	The 	appropriate 	remedy in a unilateral 	change 	case 	is
a return to the 	status quo ante. 	Here, 	this means 	that 	the
District 	be 	directed to 	restore 	the 	full-time 	custodian position
at 	Sunset 	Elementary School 	that 	existed prior to 	January 10,
1995. 	It 	is 	further appropriate 	that 	the District be directed to
cease 	and desist 	from unilaterally changing 	the 	hours 	of
employees.
The 	District 	also 	should be 	required to post 	a 	notice
incorporating the terms 	of 	the order. 	Posting of 	such a notice,
signed by an authorized agent 	of 	the 	District, 	will 	provide
employees with notice 	that 	the 	District 	has 	acted in an unlawful
manner, 	is being required to 	cease 	and desist 	from this 	activity,
and will 	comply with the order. 	It 	effectuates 	the purposes 	of
the 	EERA that 	employees 	be 	informed of 	the 	resolution of 	this
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controversy and 	the 	District's 	readiness 	to 	comply with the
ordered remedy. 	(Placerville Union School 	District 	(1978) 	PERB
Decision No. 	69.)
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that 	the Arcata
Elementary School 	District 	(District) 	violated Government 	Code
section 3543.5 (c). 	The District violated the Act by unilaterally
changing 	its 	past 	practice 	of 	having a 	full-time 	custodian
position 	at 	Sunset 	Elementary School. 	Because 	this 	action had
the 	additional 	effect 	of 	interfering with the 	right 	of 	the
California School 	Employees Association 	(CSEA) 	to represent 	its
members, 	the unilateral 	change also was a violation of 	section
3543.5(b). 	The allegation that 	the District's 	conduct violated
section 3543.5(a) 	is hereby DISMISSED.
Pursuant 	to section 3541.5 (c) 	of the Government Code, 	it
hereby is 	ORDERED that 	the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the past practice 	of
employing a 	full-time 	custodian at 	the 	Sunset 	Elementary School
by converting 	the 	full-time position to 	two part-time positions.
2. 	By the 	same 	conduct, 	interfering with the 	right 	of
CSEA to represent 	its members.
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B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Within thirty 	(30) 	workdays of the 	service of
a 	final 	decision 	in 	this matter, 	rescind the 	action of 	converting
the 	full-time 	custodian position at 	the 	Sunset 	Elementary School
into two part-time positions.
2. 	Within ten 	(10) 	workdays of the 	service of a final
decision 	in this matter, 	post 	at 	all work locations where notices
to 	classified employees 	customarily are posted, 	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 ensure 	that 	the
Notice 	is not 	reduced in size, 	altered, 	defaced or covered with
any other material.
3. 	Upon issuance of 	a final 	decision, 	make written
notification 	of 	the 	actions 	taken 	to 	comply with 	the 	Order 	to
the 	San 	Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in 	accord with the 	director's 	instructions.
Pursuant 	to California Code of Regulations, 	title 	8,
section 	32305, 	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
2 0 	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,
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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.)
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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