East Side Union High School District * * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525 (PERB 1353E)

STATE 	OP 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
e
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER #187,
Charging 	Party,
v.
EAST SIDE UNION HIGH SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-1946
PERB Decision No. 	1353
September 	30, 	1999
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Appearances: 	California School 	Employees Association by
Maureen C. 	Whelan, 	Attorney, 	for California School Employees
Association and its 	Chapter #187; 	Office 	of 	the General 	Counsel
by Rodney G. 	Moore, 	General 	Counsel, 	for East 	Side Union High
School District.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	to a
proposed decision by a PERB administrative 	law judge 	(ALJ) 	filed
by the East 	Side Union High School District 	(District). 	In the
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 	changed the hours 	of bargaining
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
OVERRULED IN PART by Huntington Beach Union High School District (2003)
PERB Decision No. 1525, pp. 2-10.

unit 	positions 	without 	providing 	the 	California 	School 	Employees
Association and 	its 	Chapter #187 	(CSEA) 	with notice 	or the
opportunity 	to negotiate.
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.
BACKGROUND
The District 	is 	an employer within the meaning of 	EERA.
CSEA 	is 	an 	employee 	organization within 	the meaning 	of 	EERA and
the 	exclusive 	representative 	of 	a wall-to-wall 	classified
bargaining unit 	within 	the 	District.
The District's 	Child Nutritional 	Services 	(CNS) 	program
operates 	10 	kitchens providing 	food service 	to 	students 	at 	11
District high schools. 	Historically, 	CNS has 	cost more to
operate 	than 	it 	earns, 	and has been subsidized by the District's
general 	fund budget.
Diane Wegner 	(Wegner) 	was hired in January 1996 as 	the
District's 	director of 	CNS. 	One 	of her primary responsibilities
was 	to 	reduce 	the 	general 	fund subsidy of 	the program. 	Wegner
sought 	to do 	this by reducing 	CNS 	expenses 	and 	increasing CNS
revenue. 	To reduce expenses, 	Wegner instituted changes 	such as
purchasing 	food and 	supplies 	centrally 	through 	the 	District
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office, 	and changing the menu to include items such as pre- 	.
packaged 	cookies 	instead of 	cookies 	baked by CNS 	employees.
Other menu 	changes 	reduced 	the 	number of 	entrees 	offered.
To 	increase 	revenue, 	Wegner sought 	to 	increase 	sales 	to
students 	during the peak service hours 	of 	10:00 	a.m. 	to 	1:00 	p.m.
Her plan was 	to make more 	staff 	available 	to work at 	food 	service
sales 	windows 	and 	food vendor 	carts 	during 	this 	peak 	service
period 	in order to 	sell 	more 	food to 	students. 	Because 	she was
working with a 	fixed budget 	for staff 	costs, 	Wegner 	could not
simply hire 	additional 	employees 	to 	increase 	staffing during 	the
peak service hours. 	As 	a 	result, 	she decided to 	free up existing
resources 	which 	could be used 	to 	support 	additional 	part-time 	CNS
employees. 	Specifically, 	Wegner planned to convert 	several 	8-
hour positions 	to 	two 	3.5-hour positions 	and 	to 	reduce 	the 	hours
of 	approximately 30 	other 	full-time positions 	by amounts varying
from 3 0 minutes 	to 3 	hours per day. 	She would then redirect 	the
savings 	from these 	hour 	reductions 	to 	support 	the 	additional
part-time positions. 	To avoid 	creating a hardship 	for 	current
employees, 	Wegner planned to 	implement 	her new staffing
arrangement 	gradually as positions became vacant. 	Due 	to 	the
turnover 	rate within CNS, 	Wegner anticipated that 	it would 	take
several 	years 	to 	fully implement her plan.
Wegner holds monthly meetings 	with CNS 	kitchen managers 	who
are members 	of 	the bargaining unit. 	At 	these meetings, 	she
regularly reviews 	sales 	revenue and expense 	issues. 	At 	some 	of
these meetings, 	Wegner discussed her plans 	to 	save money by
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splitting vacant 	8-hour positions 	into 	two 	3.5-hour positions 	and
reducing the hours of other vacant positions. 	Aletha Gilliland,
a kitchen manager, 	testified that 	reducing labor costs was a
recurring issue at 	the staff meetings 	she attended. 	Unit member
Doris Silva testified that at the December 13, 	1996, 	staff
meeting, 	Wegner discussed how reducing the hours of cafeteria
worker positions 	could result 	in budget savings. 	During the
discussions, 	Wegner detailed the amount 	saved by converting one
8-hour position to 	two 	3.5-hour positions.
Converting an 	8-hour position 	to 	two 	3.5-hour positions
results 	in significant labor cost savings. 	While the hourly rate
of pay may be unchanged, 	there 	is a dramatic 	impact on the
District's cost of benefits. 	District employees working 4 hours
or more receive health benefits at an employee cost 	of 	only one
dollar per month. 	The District's 	contribution is 	$387.61 per
month. 	Employees working less than 4 hours are eligible for
health benefits, 	but the District's share of the benefit cost is
significantly reduced. 	If a 3.5-hour employee elects 	to take
health benefits, 	the District contributes 	$170.55 toward the
benefit premiums. 	The difference of $217.06 in the District's
contribution must be paid by the employee. 	Since this 	represents
a 	substantial 	percentage 	of 	a 	3.5-hour employee's monthly gross
salary, 	no 3.5-hour employee has elected to obtain health
benefits through the District. 	It is this fact which results in
the significant labor cost 	savings associated with Wegner's plan
to convert 	full-time positions 	to 3.5 hour positions.
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Wegner 	testified 	that 	her CNS 	staffing plan was 	based on 	the
need to 	change 	staffing 	in order 	to 	increase 	sales. 	She
indicated 	that 	the 	plan was 	an attempt 	to allocate 	CNS 	resources
in 	a way which provided 	the 	best 	food 	service 	to 	students 	while
increasing revenues. 	According to Wegner, 	the potential 	labor
cost 	savings 	were not 	a 	significant 	consideration 	in her decision
to 	establish 	3.5-hour positions. 	Instead, 	the 	3.5-hour 	time base
was 	chosen because 	the peak service period was 	from 10:00 	a.m. 	to
1:00 	p.m., 	and 	it was 	appropriate 	to allow 15 	minutes 	before 	and
after 	the 	service period 	for employee preparation and 	clean up.
In December 	1996, 	CSEA received a document 	from Wegner
detailing her 	CNS 	staffing plan, 	including 	the planned 	reduction
in hours 	of many positions. 	Denise Jensen, 	CSEA's 	labor
relations 	representative, 	wrote to the District demanding to
negotiate 	the proposed changes. 	She also demanded that 	the
District 	cease and desist 	from unilaterally 	implementing 	any 	of
the proposed 	changes.
On February 18, 	1997, 	the parties met and CSEA learned that
a number 	of 	the 	changes 	in Wegner's 	plan had already taken place,
including 	the 	conversion of vacant 	8-hour positions 	into 	two 	3.5-
hour positions 	and 	the 	filling 	of 	some 	of 	the 	resulting part-time
positions. 	Although the District met 	with CSEA to discuss 	the
changes, 	the District 	took the 	consistent position that 	it was
not 	required to negotiate 	its 	decision to 	reduce 	the hours 	of
vacant positions 	in 	order to 	implement Wegner's 	CNS 	staffing
plan.
5
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On May 5, 	1997, 	CSEA filed the 	instant unfair practice
charge alleging 	that 	the 	District 	had unilaterally 	reduced 	the
hours 	of 	bargaining unit positions 	in violation of 	EERA.
On July 29, 	1997, 	PERB's Office of 	the General 	Counsel 	issued a
complaint 	alleging 	that 	the 	District 	unlawfully 	failed 	to provide
CSEA with notice 	or 	the 	opportunity 	to bargain over 	the 	decision
to reduce the hours 	of bargaining unit positions, 	and the effects
of 	that decision.
DISCUSSION
An 	employer's 	pre-impasse unilateral 	change 	in a policy 	or
established practice which 	falls 	within 	the 	scope 	of
representation violates 	its 	duty to meet 	and negotiate 	in good
faith. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].)
Unilateral 	changes 	are 	inherently destructive 	of 	employee 	rights
and 	can 	constitute 	a per 	se violation of 	the bargaining
obligation. 	(Davis Unified School District, 	et al. 	(1980) 	PERB
Decision No. 	116.)
In order to prevail 	in a unilateral 	change 	case, 	the
charging party must 	prove 	that 	the 	employer altered 	the 	status
quo 	on a matter within 	the 	scope 	of 	representation without
providing 	the 	exclusive 	representative 	with notice 	or 	the
opportunity 	to bargain, 	and the 	change had a generalized and
continuing effect 	on bargaining unit members. 	(Grant 	Joint Union
High School District 	(1982) 	PERB Decision No. 	196.)
The 	dispute 	in 	this 	case 	involves 	the 	issue 	of whether 	the
District's 	action to 	change 	the hours 	of vacant positions 	was 	a
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matter within the 	scope 	of 	representation and subject 	to
negotiations, 	or a matter of management prerogative which was not
negotiable. 	In Anaheim Union High School District 	(1981) 	PERB
Decision No. 	177, 	the Board adopted the standard by which it
determines whether a subject 	is within the 	scope of
representation.2 Under 	this balancing 	test 	a 	subject 	is 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 	standard, 	the Board has 	recognized 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 positions, 	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
2The 	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].
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Decision No. 	322; 	Newman-Crows Landing Unified School District
(1982) 	PERB Decision No. 	223; 	Stanislaus County Department of
Education 	(1985) 	PERB Decision No. 	556; 	San Diego Unified School
District 	(1982) 	PERB Decision No. 	234.)
The Board has 	dealt with the 	issue 	of 	employer changes 	in
the hours 	of vacant positions 	in several 	recent 	cases. 	In
San Jacinto Unified School District 	(1994) 	PERB Decision No. 	1078
and Cajon Valley Union School 	District 	(1995) 	PERB Decision
No. 	1085, 	the Board found the employer's 	change 	in the hours 	of a
vacant position to be negotiable. 	In Arcata Elementary School
District 	(199 6) 	PERB Decision No. 	1163 	(Arcata), 	the Board
refined these rulings, 	and attempted to balance 	the 	rights 	of
employees 	and employee 	organizations 	to negotiate 	over matters
relating 	to hours 	of 	employment, 	an enumerated subject 	of
bargaining within EERA section 3543.2(a), 	with management's 	right
to make decisions 	involving the 	level 	of 	services 	to be provided.
In Arcata. 	the Board 	cited and 	followed the guidance 	of 	the
National 	Labor Relations 	Board 	(NLRB) 	which excludes 	from the
scope 	of 	representation 	those management 	decisions 	"which 	lie 	at
the 	core 	of 	entrepreneurial 	control" 	unless 	the decision is based
primarily on labor costs. 	(Fibreboard Paper Products 	Corp. 	v.
NLRB 	(1964) 	379 U.S. 	203 	[57 LRRM 2609, 	2617]; 	Otis Elevator Co.
(1984) 	269 NLRB 891 	[116 LRRM 1075]; 	and First National
Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 2705].)
In Arcata. 	the 	following 	rule was 	adopted with regard to 	the
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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.
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.
(Fn. omitted.)
The 	Board noted 	in Arcata 	that 	the 	effects 	of 	a non-negotiable
decision 	to 	change 	the hours 	of 	a vacant position are negotiable
to 	the 	extent 	that 	they affect 	terms 	and conditions 	of
employment.
This 	case provides 	the 	Board with 	the 	opportunity 	to 	clarify
the 	rule 	it 	adopted in Arcata.
It 	is axiomatic 	that 	any change 	in the hours 	of 	any vacant
position 	changes 	the 	level 	of 	service 	to be provided by 	that
position. 	This mere 	fact 	does not allow the employer, 	pursuant
to Arcata. 	unilaterally to change 	the hours 	of bargaining unit
positions 	as 	they become vacant. 	The Board's 	intent 	in Arcata
was 	to permit 	employers 	to adjust 	the hours 	of vacant positions
unilaterally 	in 	those 	circumstances 	in which 	legitimate 	changes
in the nature, 	direction or level 	of services have occurred,
changes 	which are 	not based primarily on wage and benefit 	cost
considerations.
The Arcata rule was not 	intended, 	and will 	not be applied,
to grant 	carte blanche authority to employers 	to 	change 	the 	hours
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of vacant bargaining unit positions unilaterally. 	The 	employer
may not unilaterally convert 	a vacant 	full-time, 	full-benefit
position to multiple part-time, 	reduced-benefit positions at
substantial 	labor cost 	savings, 	and justify 	the action simply
because 	the 	resulting part-time positions will 	provide a 	changed
level 	of 	service. 	Similarly, 	the Arcata rule does not permit
employers 	unilaterally 	to 	reallocate 	labor 	cost 	resources 	by
changing 	the hours 	of multiple bargaining unit positions 	as 	they
become vacant, 	based on the assertion that 	the nature of 	service
delivery 	is 	being 	changed. 	These 	employer actions 	are based
primarily on labor 	cost 	considerations, 	relate directly to 	the
terms 	and 	conditions 	of 	employment 	of 	bargaining unit members 	and
are negotiable.
Applying this 	rule 	for the 	first 	time 	in Arcata, 	the Board
found that 	the 	employer's 	decision to 	convert 	a vacant, 	full-time
custodian position 	into 	two 	3-3/4-hour 	custodian positions 	was
negotiable. 	The Board noted that 	employees working less 	than 4
hours 	did not 	qualify 	for employer-provided benefits, 	and
concluded that 	it was 	that 	labor cost 	consideration, 	rather than
a 	change 	in the 	level 	of 	service, 	which 	formed the primary basis
of 	the employer's action. 	Under similar circumstances 	in
San Ysidro School District 	(1997) 	PERB Decision No. 	1206, 	the
Board 	found 	the 	employer's 	conversion of 	a vacant 	instructional
aide position to two 3.5-hour, 	no-benefit positions, 	to be based
primarily on 	labor 	cost 	considerations 	and negotiable.
10

In the 	instant 	case, 	while the District 	sought 	to 	increase
food 	service during 	the peak hours, 	it 	is 	clear that 	the 	3.5-hour
time base 	for the part-time CNS positions, 	established by
converting vacant 	full-time positions, 	reflects 	the 	fact 	that
employees working 	less 	than 4 	hours 	receive 	substantially 	reduced
employer-provided benefits. 	Converting a 	full-time position 	into
two 	4-hour positions 	actually would 	increase 	labor 	costs 	because
the 	4-hour 	employees 	would be 	entitled 	to 	employer-provided
benefits. 	The record reveals 	that 	labor cost 	considerations,
rather than a change 	in the nature, 	direction or level 	of
service, 	formed the primary basis 	of 	the District's 	decision to
convert 	vacant 	full-time 	positions 	to multiple 	3.5-hour
positions. 	Therefore, 	pursuant to Arcata. 	the District's
decision 	to 	change 	the hours 	of 	those vacant 	CNS positions 	was
negotiable. 	Similarly, 	Wegner's 	CNS 	staffing plan to 	reduce 	the
hours 	of 	dozens 	of 	other CNS positions as 	they became vacant, 	was
devised 	to achieve 	labor 	cost 	savings 	sufficient 	to 	support 	the
addition of 	other positions. 	Rather than 	reflecting a 	change 	in
service 	which would permit 	the 	District 	to proceed unilaterally
under Arcata. 	the District's plan represents a 	cost-driven
redeployment 	of 	its 	labor resources which has 	the effect 	of
converting 	CNS 	to a 	largely less-than-full-time workforce.
Clearly, 	that action is 	so 	intimately related to the 	terms 	and
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conditions 	of 	employment 	of bargaining unit members 	that 	it 	is
subject 	to negotiations.3
It 	is 	undisputed 	that 	the District 	consistently maintained
that 	the 	decisions 	embodied 	in Wegner's 	CNS 	staffing plan were
matters 	of management prerogative. 	Since 	it has been determined
that 	those decisions were 	subject 	to bargaining, 	the District
violated EERA section 3543.5 (c) 	when it 	failed to provide 	CSEA
with 	the 	opportunity to negotiate 	over 	them and 	their effects.
Because 	that 	same 	conduct 	denied CSEA its 	right 	to 	represent
bargaining unit members, 	and deprived employees 	of 	their right 	to
be 	represented by CSEA, 	the District 	also violated EERA section
3543.5(b) and (a).
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the entire record in this 	case, 	it 	is 	found that 	the 	East
Side Union High School District 	(District) 	violated the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(c). 	The District violated EERA by unilaterally
converting 	full-time positions 	into multiple part-time positions,
and by unilaterally 	changing 	the 	hours 	of 	numerous 	other
bargaining unit positions. 	Because 	this 	action had 	the
additional 	effect 	of 	interfering with 	the 	right 	of 	the 	California
School 	Employees Association and its 	Chapter #187 	(CSEA) 	to
3The 	Board wishes 	to 	emphasize 	that 	the 	efficacy or
advisability of Wegner's 	CNS 	staffing plan 	is 	not 	a matter within
PERB's purview. 	This 	case 	involves 	the question of 	the
negotiability of 	aspects 	of 	that plan under EERA.
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represent 	its members, 	and the right of 	employees 	to be
represented by CSEA, 	the unilateral 	change also was 	a violation
of EERA section 3543.5(b) 	and 	(a).
Pursuant to EERA section 3541.5(c), 	it is hereby ORDERED
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	converting 	full-time 	Child
Nutritional 	Services 	(CNS) 	positions 	into multiple part-time
positions, 	and unilaterally changing the hours 	of 	other
bargaining unit 	positions 	without 	providing 	CSEA with notice 	and
the 	opportunity 	to negotiate 	over 	the 	changes 	and 	their effects
on 	the 	terms 	and 	conditions 	of 	employment 	of bargaining unit
members.
2. 	Interfering with 	the 	right 	of 	CSEA to 	represent
its members.
3. 	Interfering with the 	right 	of 	employees 	to be
represented 	by 	CSEA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF EERA:
1. 	Immediately upon request by CSEA, 	enter 	into
negotiations 	over these unilateral 	changes.
2. 	Within thirty 	(30) 	workdays 	following the date
that 	this decision is no longer subject 	to appeal, 	rescind the
actions 	of 	unilaterally 	converting 	full-time bargaining 	CNS
positions 	into multiple part-time positions 	and unilaterally
changing 	the hours 	of 	other bargaining unit positions.
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3. 	Within ten 	(10) 	workdays 	following the date that
this Decision is no longer subject 	to appeal, 	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.
4. 	Written notification of 	the actions 	taken to
comply with 	this 	Order 	shall 	be made 	to 	the 	San 	Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with 	the director's 	instructions.
Member Dyer 	joined 	in 	this 	Decision.
Member Amador's dissent begins 	on page 	15.
14

AMADOR, 	Member, 	dissenting: 	I dissent and I would dismiss
the unfair practice 	charge and 	complaint. 	My reasoning 	is 	as
follows.
In Arcata Elementary School District 	(1996) 	PERB Decision
No. 	1163 	(Arcata), 	the Public Employment Relations Board 	(PERB or
Board) 	followed the 	guidance 	of 	the National 	Labor Relations
Board 	(NLRB) 	by excluding 	from the 	scope 	of 	representation those
management 	decisions 	"which lie at 	the 	core 	of 	entrepreneurial
control" 	unless 	the decision is based on labor costs. 	(Id. 	at
p. 	4, 	citing Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964) 	379
U.S. 	203 	[57 LRRM 2609, 	2617] 	(Fibreboard); 	Otis Elevator Co.
(1984) 	269 NLRB 891 	[116 LRRM 1075]; 	and First National
Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 2705].)l
The 	Board has 	long 	recognized as 	within management prerogative,
the 	employer's 	decisions 	involving 	the 	level 	of 	services 	to be
provided, 	including the decision 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. 	(Arcata at p. 	5, 	citing Mt. 	San Antonio Community
College District 	(1983) 	PERB Decision No. 	297; 	Davis Joint
Unified School District 	(1984) 	PERB Decision No. 	393; 	Alum Rock
11 PERB	PERB has 	specifically applied 	the 	Fibreboard 	standard 	to
conclude 	that various 	employer decisions 	fall 	within management
prerogative and are 	outside 	the 	scope 	of 	representation,
including 	the 	creation and abolition of 	job 	classifications;
contracting out; 	assignment of non-unit work to volunteers; 	the
decision 	to 	cease 	operation of 	child care 	center; 	and the
decision 	to 	create an Employee Assistance 	Program. 	(Arcata at
p. 	5, fn. 4 .)
15

Union Elementary School District 	(1983) 	PERB Decision No. 	322;
Newman-Crows 	Landing Unified School 	District 	(1982) 	PERB Decision
No. 223.)
In attempting 	to define 	the boundary between management
prerogative 	and 	the 	scope 	of 	representation, 	the 	focus 	should be
on whether 	the 	employer needs 	unencumbered decision-making 	or
whether 	the 	subject 	is amenable 	to 	resolution through the
collective bargaining process. 	(Arcata at p. 	7.) 	The Board's
reasoning 	is 	instructive:
If 	the 	decision to be made by this 	employer
. 	. 	. 	is based upon considerations other than
labor costs, 	it 	is difficult 	to see how the
decision would be 	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. 	[Id. 	at pp. 	7-8, 	citing
State 	of 	California 	(Department 	of 	Personnel
Administration) 	(1987) 	PERB Decision No.
648-S (DPA) . 1
In Arcata. 	the Board set 	forth 	the approach to be used 	in
determining 	the 	negotiability of 	an 	employer's 	decision 	to 	change
the hours 	of 	a vacant position:
. 	. 	. 	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.
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.
(Arcata at p. 	8; 	fn. 	omitted.)
16

As 	I 	read the 	cited language, 	the Board uses 	a two-part
approach in determining negotiability of 	a decision: 	(1) 	Has 	the
charging party proven by a preponderance 	of 	the 	evidence 	that 	the
District's 	decision does 	not 	reflect a change 	in the nature,
direction or 	level 	of 	service? 	If 	the 	charging party 	cannot meet
this burden, 	the decision is nonnegotiable. 	(2) 	If a decision to
change 	the 	hours 	of 	a vacant position does 	not 	reflect 	a 	change
in the nature, 	direction or level of service, 	the decision is
negotiable if 	the 	charging party 	can prove 	that 	the 	decision 	is
based 	on 	labor 	cost 	considerations.
In weighing these questions, 	the Board must 	rely on
objective 	evidence 	and refrain 	from engaging 	in 	speculation as 	to
the 	legitimacy of 	the employer's motive. 	This approach is
necessary 	to 	avoid undermining 	the 	Board's 	longstanding
recognition 	that 	the 	employer's 	decisions 	involving 	the 	level 	of
services 	are outside 	the 	scope 	of 	representation. 	(Arcata.
supra, 	at p. 	5.)
In applying 	the Arcata approach 	I 	reach the 	following
conclusions. 	Although there 	is 	conflicting 	testimony, 	the 	record
supports 	a 	finding 	that 	a 	legitimate 	change 	in the 	level 	of
service 	did occur. 	The 	California School 	Employees Association
and 	its 	Chapter #187 	(CSEA) 	has 	failed to meet 	its burden of
proof 	and the 	charge 	should be 	dismissed 	on 	that 	ground.2
- -.
2Even 	if 	CSEA had established 	that 	there was 	no 	change 	in
the level of 	service, 	I do not 	share 	the majority's view that 	the
East 	Side Union High School 	District's plan represents 	a 	"cost-
driven redeployment 	of 	its 	labor resources."
17

This 	case provides 	a good example 	of 	the 	Board's 	reminder 	in
DPA that 	"it 	is 	the 	function of management 	to be 	concerned with
the running of 	the business." 	Neither the Board nor the
exclusive 	representative 	should become 	involved 	in 	the 	detailed
type 	of 	staffing decisions 	at 	issue here.
In conclusion, 	I 	find that no change to a negotiable subject
occurred and 	I would dismiss 	the 	charge.
-
18

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-1946,
California 	School 	Employees Association and 	its 	Chapter #187 	v.
East 	Side Union High School District, 	in which all parties had
the 	right 	to participate, 	it has been found that 	the East 	Side
Union High School 	District 	(District) 	violated 	the Educational
Employment Relations Act 	(EERA), 	Government Code section
3543.5(a), 	(b) 	and 	(c). 	The District violated EERA by
unilaterally 	converting 	full-time 	Child Nutritional 	Services
(CNS) 	positions into multiple part-time positions, 	and
unilaterally 	changing 	the 	hours 	of 	numerous 	other bargaining unit
positions. 	The District 	took 	this 	action without providing 	the
California 	School 	Employees Association and 	its 	Chapter #187
(CSEA) 	with notice or the opportunity to negotiate, 	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. 	Unilaterally 	converting 	full-time 	CNS 	positions
into multiple part-time positions, 	and unilaterally changing the
hours 	of 	other bargaining positions 	without 	providing 	CSEA with
notice and 	the 	opportunity 	to negotiate 	over the 	changes 	and
their effects 	on the 	terms and conditions 	of employment 	of
bargaining unit members.
2. 	Interfering with 	the 	right 	of 	CSEA to 	represent
its members.
3. 	Interfering with the 	right 	of 	employees 	to be
represented 	by 	CSEA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF EERA:
1. 	Immediately upon request by CSEA, 	enter into
negotiations 	over these unilateral 	changes.
2. 	Within thirty 	(30) 	workdays 	following the date
that 	this 	decision is 	no longer subject 	to appeal, 	rescind the

actions 	of unilaterally converting 	full-time CNS positions 	into
multiple 	part-time positions 	and unilaterally 	changing 	the 	hours
of 	other bargaining unit positions.
Dated: 	EAST SIDE 	UNION HIGH
SCHOOL 	DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22