Ocean View School District (PERB 1320E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
OCEAN VIEW SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3993
PERB Decision No. 	1320
March 22, 	1999
Appearances: 	Susan E. 	Ross, 	Labor Relations Representative, 	for
California School 	Employees Association; 	Miller, 	Brown & Dannis
by Joan Birdt, 	Attorney, 	for Ocean View School District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the 	Public Employment
Relations 	Board 	(PERB 	or Board) 	on the 	California School
Employees Association's 	(Association) 	appeal 	from a Board agent's
partial dismissal 	(attached) 	of 	its unfair practice 	charge. 	As
amended, 	the 	relevant portion of 	the 	charge alleges 	that 	the
Ocean View School District 	(District) 	violated section 3543.5(a),
(b), 	and 	(c) 	of the Educational Employment Relations Act 	(EERA)1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Section 3543.5 provides, 	in relevant 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
)
)
)
)
)
)
)
)
)
)
___________ )

when 	it 	unilaterally 	transferred bargaining unit 	work 	to 	a
company known as Wright 	Transportation.2
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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the 	original 	and amended unfair practice 	charge, 	the
warning and dismissal 	letters, 	the Association's appeal, 	and the
District's 	response 	thereto. 	The Board 	finds 	the warning and
dismissal 	letters 	to be 	free 	from prejudicial 	error and adopts
them as 	the 	decision of 	the Board 	itself.
ORDER
The partial 	dismissal 	of 	the unfair practice 	charge 	in Case
No. 	LA-CE-3993 	is hereby AFFIRMED.
Chairman 	Caffrey and Member Amador 	joined 	in 	this 	Decision.
20n January 6, 	1999, 	the Board agent 	issued a 	complaint
alleging 	that 	the District 	had violated EERA section 3543.5(a),
(b), 	and 	(c) 	when it refused to provide the Association with
information 	relevant 	and necessary 	to 	its 	representational
duties.
22

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415)439-6940
January 6, 	1999
Susan E. Ross, LRR
California School 	Employees Association
32 6 West Katella Avenue, Suite E
Orange, 	CA 	92867
Re: 	PARTIAL DISMISSAL LETTER
California School Employees Association v. 	Ocean View School
District
Unfair Practice Charge No. 	LA-CE-3993
Dear Ms. Ross:
The above-referenced unfair practice charge, 	filed October 8,
1998, 	alleges the Ocean View School District 	(District)
unilaterally contracted out bargaining unit 	services and refused
to provide information to an exclusive representative. 	The
California School Employees Association 	(CSEA) 	alleges this
conduct violates Government Code section 3543.5(a), 	(b) 	and 	(c)
of the Educational Employment Relations Act 	(EERA or Act).
I 	indicated to you, 	in my attached letter dated December 14,
1998, 	that certain allegations contained in the charge did not
state a prima facie case. 	You were advised that, 	if there were
any factual 	inaccuracies or additional 	facts which would correct
the deficiencies explained in that letter, 	you should amend the
charge. 	You were further advised that, 	unless you amended these
allegations 	to state a prima facie case or withdrew them prior to
December 23, 	1998, 	the allegations would be dismissed. 	On
December 23, 	1998", 	Charging Party filed a first amended charge.
The 	first amended charge reiterates 	CSEA's position that 	the
District's action in allowing 	"parent volunteers" 	to drive
privately owned school buses 	on school sponsored field trips
constitutes a transfer of bargaining unit work, 	and not
subcontracting out. 	Specifically, 	the amended charge adds:
Charging Party asserts as a factual matter
that 	this work was performed by parent
volunteers, 	based upon the following: 	a. 	the
individuals driving the buses unlawfully on
the dates in question were parents of
students and not employees of Wright
Transportation; and, b. 	that for the work

Partial Dismissal Letter
LA-CE-3993
Page 2
dates in dispute, 	there exists no record of
payment 	to Wright Transportation for
contracted transportation services. 	. 	.
Therefore, 	the weight of existing evidence
establishes 	that the work was performed by
parent volunteers 	rather than by the
employees of an independent contractor.
The above-quoted statement 	is 	the only additional 	factual
information provided by Charging Party. 	Based on the above-
stated facts, 	and those provided in the original charge, 	the
allegation still 	fails to state a prima facie case for the
reasons provided below.
As noted in my December 14, 	1998, 	letter, 	the removal of work
from a. bargaining unit, 	either by transferring the work to other
District employees outside the unit, 	or by contracting out the
work to nonemployees, 	has been the subject of numerous charges
before PERB. 	However, 	despite their similarities, 	the transfer
of bargaining unit work and the subcontracting of work are
treated differently under the EERA.
CSEA contends the District's action constitutes the transfer of
bargaining unit work to 	"parent volunteers" 	outside the unit. 	In
order to demonstrate a transfer of bargaining unit work to other
employees, 	CSEA must show that the parent volunteers were
employees of the District. 	(Rialto Unified School District
(1982) 	PERB Decision No. 	209.) 	However, 	the charge fails to
demonstrate the 	individuals who drove the buses owned by Wright
Transportation are 	"employees" 	of the District. 	While CSEA
contends that these parent drivers are 	"volunteers" 	such a fact
does not render these parents employees of the District.1 Facts
provided demonstrate 	that Wright Transportation is an independent
company which employs parents to drive school buses. 	The buses
used are owned by Wright Transportation, 	not the District, 	and
the drivers are not trained by the District or supervised by
District employees. 	Instead, 	the drivers, 	whether volunteers or
not, 	operated buses owned by Wright Transportation and were
supervised by employees of Wright Transportation. 	Nothing in
either the original or amended charge indicates the parent
volunteers were employees of the 	District. 	As such, 	the charge
fails to demonstrate a transfer of bargaining unit work.
Instead, 	as noted in my December 14, 	1998, 	letter, 	facts provided
demonstrate 	the District 	contracted out bargaining unit work to
Wright Transportation who used parent volunteers 	to operate 	the
1 See, 	Lincoln Unified School District 	(1984) 	PERB Decision
No. 465.
I

Partial Dismissal Letter
LA-CE-3993
Page 3
buses. For the reasons noted in my December 14, 199 8, letter,
the contracting out of services, 	in this instance, 	does not
violate the EERA. 	(See, 	Barstow Unified School District 	(1997)
PERB Decision No. 	1138b.) 	Indeed, 	CSEA itself in its July 23,
1998, 	letter to the District, 	notes that contracting out is
allowed under the collective bargaining agreement. 	As such, 	this
allegation must be dismissed.
Right to Appeal
Pursuant to Public Employment Relations Board regulations, 	you
may obtain a review of this dismissal 	of 	certain allegations
contained in the charge by filing an appeal 	to the Board itself
within twenty 	(20) 	calendar days after service of this dismissal.
(Cal. 	Code of Regs., 	tit. 8, sec. 32635(a).) 	To be timely filed,
the original and five copies of such appeal must be actually
received by the Board itself before the 	close of business
(5 p.m.) 	or sent by telegraph, 	certified or Express United States
mail postmarked no later than the last date set 	for filing.
(Cal. Code of Regs., 	tit. 8, sec. 32135.) 	Code of Civil
Procedure section 1013 shall apply. 	The Board's address is:
Public Employment Relations Board
1031 18th Street
Sacramento, 	CA 95814
If you file a timely appeal of the refusal to issue a complaint,
any other party may file with the Board an original 	and five
copies of a statement 	in opposition within twenty 	(20) 	calendar
days following the date of service of the appeal. 	(Cal. 	Code of
Regs., tit. 8, sec. 32635(b).)
Service
All 	documents authorized to be filed herein must also be 	"served"
upon all parties 'to the proceeding, 	and a 	"proof of service"
must accompany each copy of a document 	served upon a party or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
sec. 	32140 	for the required contents and a sample form.) 	The
document will be considered properly 	"served' 	when personally
delivered or deposited in the first-class mail, 	postage paid and
properly addressed.
Extension of Time
A request for an extension of time, 	in which to file a document
with the Board itself, 	must be in writing and filed with the
Board at the previously noted address. 	A request 	for an

Partial Dismissal Letter
LA-CE-3993
Page 4
extension must be filed at least three 	(3) 	calendar days before
the expiration of the time required for filing the document.
The request must indicate good cause for and, 	if known, 	the
position of each other party regarding the extension, 	and shall
be accompanied by proof 	of service of the request upon each
party. 	(Cal. Code of Regs., tit. 8, sec. 32132.)
Final Date
If no appeal 	is filed within the specified time limits, 	the
dismissal will become final when the time limits have expired.
Sincerely,
ROBERT THOMPSON
Deputy, General Counsel
By Kristin L. 	Rosi
Regional Attorney
Attachment
cc: 	Joan Birdt

STATE OF CALIFORNIA 	PETE WILSON. Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
December 14, 	1998
Susan E. Ross, LRR
California School 	Employees Association
32 6 West Katella Avenue, Suite E
Orange, 	CA 	92867
Re: 	PARTIAL WARNING LETTER
California School 	Employees Association v. Ocean View School
District
Unfair Practice Charge No. 	LA-CE-3993
Dear Ms. Ross:
The above-referenced unfair practice charge, 	filed October 8,
1998, 	alleges the Ocean View School District 	(District)
unilaterally contracted out bargaining unit 	services and refused
to provide information to an exclusive representative. 	The
California School Employees Association 	(CSEA) 	alleges this
conduct violates Government Code section 3543.5(a), 	(b) 	and 	(c)
of the Educational Employment Relations Act 	(EERA or Act).
Investigation of the 	charge revealed the 	following. 	CSEA is 	the
exclusive 	representative of 	the District's 	classified bargaining
unit, 	which includes bus drivers. 	CSEA and the District are
parties to a collective bargaining agreement 	(Agreement) 	which
expired on June 30, 	1998. 	Article 2 of the Agreement states in
relevant part:
It 	is understood and agreed that 	the District
retains all 	of 	its powers and authority to
direct, 	manage and control to the full extend
of the law. 	Included but not limited to
those duties and powers are the exclusive
right 	to: 	. . . 	contract out work according
to-law;On April 28, 1998, the District contracted out a field trip to
Wright Transportation, 	a transportation company owned by parents
of an Golden View School student. 	On this 	field trip, 	one
District bus and driver transported children to the Santa Ana
Zoo, 	while another bus 	owned by Wright Transportation and another
driver, 	employed by Wright, 	transported the remaining students to
the Zoo.
(
--..·--

Partial 	Warning 	Letter
LA-CE-3993
Page 2
On April 30, 	1998, 	CSEA representative Susan Ross noticed the
District 	that CSEA considered the use of parent volunteers 	to
constitute a transfer of bargaining unit work, 	and not
contracting out. 	Ms. 	Ross cited no precedent for this
proposition, 	and the District disagreed with Ms. 	Ross'
conclusion.
On May 7, 	1998, 	Ms. 	Ross learned that two additional field trips
had been driven by employees of Wright Transportation. 	This work
was 	customarily assigned to District bus drivers. 	Ms. 	Ross
verbally notified Assistant Superintendent John Tennant of 	the
additional 	trip3 and again requested the District 	cease and
desist 	this contracting out of bus driver services.
On June 3, 	1998, 	having not heard back from the District, 	Ms.
Ross 	again requested the District 	cease and desist 	from
contracting out these services. 	On June 17, 	1998, Mr. Tennant
responded to Ms. 	Ross' 	letter by outlining the District's
position. 	Mr. 	Tennant stated the District 	considered the hiring
of Wright Transportation to be lawful 	contracting out of 	services
under the Agreement and Education Code section 38020. 	Mr.
Tennant also 	cited California School 	Employees Association v.
Barstow Unified School District 	(1997) 	PERB Decision No. 	1138b,
for the proposition that CSEA's agreement 	to contractual 	language
allowing for 	"contracting out work according to law" 	served as a
waiver of CSEA's right to negotiate this decision.
On July 23, 	1998, 	Ms. 	Ross sent a third letter to the District
requesting the District 	cease and desist 	from contracting out
services to Wright Transportation. 	Ms. 	Ross also stated CSEA's
position that the District's action constituted the transfer of
bargaining unit work and not the contracting out of services.
Based on the above stated facts, 	the charge as presently written
fails 	to demonstrate 	the District unilaterally transferred
bargaining unit work, 	for the reasons provided below.
The 	removal of work from a bargaining unit, 	either by
transferring the work to other District 	employees 	outside 	the
unit, 	or by contracting out the work to nonemployees, 	has been
the subject of numerous charges before PERB. 	However, 	despite
their similarities, 	the 	transfer of bargaining unit work and the
subcontracting of work are 	treated differently under the EERA.
CSEA contends 	the District's action constitutes the transfer of
bargaining unit work to other employees outside the unit. 	In
order to demonstrate a transfer of bargaining unit work to other
employees, 	CSEA must show that the drivers at Wright
Transportation were employees of the District. 	(Rialto Unified
School District 	(1982) 	PERB Decision No. 	209.) 	However, 	the
I

Partial Warning Letter
LA-CE-3993
Page 3
charge 	fails 	to demonstrate 	the 	individuals 	employed by Wright
Transportation are 	"employees" 	of the District. 	While CSEA
contends 	that 	these parent drivers are 	"volunteers" 	such a fact
does 	not render these parents employees of 	the District.1 Facts
provided demonstrate 	that Wright Transportation is an independent
company which employs parents to drive school buses. 	The buses
used are owned by Wright Transportation, 	not the District, 	and
the 	drivers are not 	trained by the District 	or supervised by
District employees. 	Instead, 	the drivers, 	whether volunteers or
not, 	are employed by Wright Transportation and supervised by
employees of Wright Transportation. 	As such, 	the charge fails to
demonstrate a transfer of bargaining unit work.
Instead, 	facts provided demonstrate the District contracted out
bargaining unit work to Wright Transportation.2 While 	the
contracting out of bargaining unit work may be at times unlawful,
such is not the case herein. 	In the instant charge, 	facts
provided demonstrate the parties' 	Agreement 	includes a management
rights 	clause allowing for the contracting out of bargaining unit
work where lawful.
In Barstow----·, 	supra. 	the Board held that under Education Code- -- 	-·section 39800 	(now section 38020) 	a merit district may lawfully
contract out transportation services, 	subject to its good faith
bargaining obligation under the EERA. 	PERB also found that 	the
obligation was 	fulfilled under a management 	rights 	clause
allowing the district to 	"contract out work, 	which may be
lawfully contracted for." 	The Board noted that 	such language
constituted a clear and unmistakable waiver by CSEA of 	its 	right
to bargain over the subcontracting of transportation services.
Facts provided herein are nearly identical 	to those presented in
Barstow. 	CSEA and the District agreed to a management rights
clause allowing for the 	contracting out 	of 	transportation
services and the District acted under this authority. 	As 	such,
this allegation fails 	to state a prima facie violation of the
EERA.
For 	these 	reasons 	the allegation that 	transferred bargaining unit
work, 	as presently written, 	does not state a prima facie case.
If 	there are any factual 	inaccuracies 	in this letter or
additional 	facts which would correct the deficiencies 	explained
1 See, 	Lincoln Unified School District 	(1984) 	PERB Decision
No. 465.
2 It 	should also be noted that 	CSEA considered this 	issue
to be one of 	contracting out bargaining unit services 	in its June
3, 	1998, letter to Mr. Tennant.
I
'•

Partial Warning Letter
LA-CE-3993
Page 4
above, 	please amend the charge. 	The amended charge should be
prepared on a standard PERB unfair practice 	charge form, 	clearly
labeled First Amended Charge, 	contain all 	the facts and
allegations you wish to make, 	and be signed under penalty of
perjury by the charging party. 	The amended charge must have 	the
case number written on the top right hand corner of the charge
form. 	The amended charge must be served on the respondent's
representative and the original proof of 	service must be 	filed
with PERB. 	If 	I do not receive an amended charge or withdrawal
from you before December 23. 	1998. 	I shall dismiss the above-
described allegation from your charge. 	If you have any
questions, please call me at 	(415) 	439-6940.
Sincerely,
Kristin L. 	Rosi
Regional Attorney