Lodi Unified School District (PERB 1452E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS LODI CHAPTER #77,
Charging Party,
V.
LODI UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-1873-E
PERB Decision No. 1452
June 	28, 	2001
Appearances: California School Employees Association by Madalyn J. Frazzini, Attorney, for
California School Employees Association and its Lodi Chapter #77; Pinnell & Kingsley by
Kim Kingsley Bogard, Attorney, for Lodi Unified School District.
Before Amador, Baker and Whitehead, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by California School Employees Association and its Lodi
Chapter #77 (CSEA) of a PERB administrative law judge's (ALJ) proposed decision (attached)
dismissing its unfair practice charge. The charge alleged that the Lodi Unified School District
(District) violated the Educational Employment Relations Act ( EERA) 1 by unilaterally
modifying the pay rate for its food service workers. CSEA alleged that this conduct
constituted a violation of Section 3543.5 (a), (b) and (c).2
1EERA is codified at Government Code section 3540 et seq.
2Section 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.
(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 unfair practice
charge and complaint, the briefs of the parties, the ALJ's proposed decision, CSEA's
exceptions and the District's response to the exceptions. The Board finds the ALJ's proposed
decision to be free from prejudicial error and adopts it as the decision of the Board itself.3
ORDER
The unfair practice charge and complaint in Case No. SA-CE-1873 are hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Member Amador joined in this Decision.
Member Baker's concurrence begins on page 3.
3Throughout the proposed decision the document dated May 25, 1989 is mistakenly
referred to as the March 25, 1989 document. The Board corrects this typographical error
wherever it appears in the proposed decision.
The Board orders that the last complete sentence on page 26 of the proposed decision
be deleted. This sentence reads: "It merely remains in effect until such time as one side or the
other asks to negotiate a modification and/or to insert it into the CBA."
The Board orders that the phrase, "on May 9, 1995," contained in the first full
paragraph on page 27, be deleted from the proposed decision.
2

BAKER, Member, concurring. I agree with the majority's dismissal of this charge;
however, this case is materially distinguishable from Marysville Joint Unified School District
(1983) PERB Decision No. 314 (Marysville), which the proposed decision of the
administrative law judge and the majority relied upon in dismissing the charge.
In Marysville the Public Employment Relations Board (Board) held that:
The mere fact that an employer has not chosen to enforce its
contractual rights in the past does not mean that, ipso facto, it is
forever precluded from doing so.
To the extent that Marysville holds that regardless of the conduct of the parties, the employer
can, ipso facto, return to a written agreement, it is wrong and should be overruled. The Board
is concerned with a unilateral change in established policy which represents a conscious or
apparent reversal of a previous understanding, whether the latter is embodied in a contract or
evident from the party's past practice. (Grant Joint Union High School District (1982) PERB
Decision No. 196.) It is no stretch of collective bargaining law to hold that a written collective
bargaining agreement may be modified through the mutual consent of the parties. (Speedrack,
Inc. (1989) 293 NLRB 1054, 1055 [131 LRRM 1347]; Hydrologies, Inc. (1989) 293 NLRB
1060, 1061 [131 LRRM 1350].) This is true even where a collective bargaining agreement
does not explicitly provide a mechanism for modification. 	(Ibid.) Based upon the facts of a
specific case, including a review of the language of the parties collective bargaining
agreement, it is entirely possible this mutual consent could be reflected in the conduct of the
parties.
If in this case the parties had "agreed" to modify the written language through nine
years of knowingly paying a different wage, I would very easily find a violation and overrule
Marysville as the parties agreement on the bargained for wage was not subject to a provision
3

which provided that its terms and conditions may be altered, changed, added to, deleted from,
or modified only through the voluntary and mutual consent of the parties in an expressed
written amendment to the agreement. However, in the instant case there was no knowing
"agreement" of the parties evidenced by a course of conduct. The record instead reflects an
"honest mistake" as the reason a wage other than the bargained for wage was paid. 	Upon
discovery of this honest mistake, it is appropriate to revert to the parties' written agreement and
the bargained for wage. It is upon these facts I concur in the decision to dismiss the charge.
4

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	LODI
CHAPTER 	#77,
Charging 	Party,
v.
LODI 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Charge 	No. 	SA-CE-1873
PROPOSED 	DECISION
(6/29/2000)
Appearances: 	Linda A. 	Norman, 	Labor 	Relations 	Representative,
and 	Sharon R. 	Furlong, 	Senior 	Labor 	Relations 	Representative, 	for
the 	California 	School 	Employees 	Association 	and 	its 	Lodi 	Chapter
#77; 	Pinnell 	and 	Kingsley, 	by Robert 	E. 	Kingsley 	and 	Kim 	Kingsley
Bogard, 	Attorneys, 	for 	Lodi 	Unified 	School 	District.
Before 	Allen 	R. 	Link, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
On 	December 	10, 	1998, 	the 	California 	School 	Employees
Association 	and 	its 	Lodi 	Chapter 	#77 	(CSEA) 	filed 	an 	unfair
practice 	charge 	with 	the 	Public 	Employment 	Relations 	Board 	(PERB
or 	Board) 	against 	the 	Lodi 	Unified 	School 	District 	(District)
The 	charge 	alleged violations 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA 	or Act) . 1
On 	January 	6, 	1999, 	the 	Office 	of 	the 	General 	Counsel 	of
PERB, 	after 	an 	investigation 	of 	the 	charge, 	issued 	a 	complaint
alleging 	violations 	of 	subdivisions 	(a), 	(b) 	and 	(c) 	of 	section
1All 	section 	references, 	unless 	otherwise 	noted, 	are 	to 	the
Government 	Code. 	EERA 	is 	codified 	at 	section 	3540 	et 	seq.
1

3543.5. 2
On 	February 	2, 	1999, 	the 	District 	answered 	the 	complaint
denying 	all 	material 	allegations 	and 	propounding 	various
affirmative 	defenses. 	An 	informal 	conference 	was 	held 	on
March 	9, 	1999, 	in 	an 	unsuccessful 	attempt 	to 	reach 	a 	voluntary
settlement. 	Three 	days 	of 	formal 	hearing 	were 	held 	before 	the
undersigned 	on 	October 	19 	and 	20, 	1999 	and 	February 	7, 	2000.
With 	the 	filing 	of 	briefs 	by 	each 	side, 	the 	matter 	was 	submitted
on May 	15, 	2000.
INTRODUCTION
Starting 	with 	the 	1985-86 	school 	year, 	the 	District 	began
the 	transition 	from 	a 	traditional 	school 	calendar 	to 	a
predominantly year 	round 	education 	(YRE) 	calendar. 	This 	change
affected many 	bargainable 	issues, 	which 	required 	the 	parties 	to
participate 	in 	extensive 	negotiations. 	One 	substantial 	issue 	was
2Subdivisions 	(a), 	(b) 	and 	(c) 	of 	section 	3543.5 	state, 	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.
(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.
2

the 	rate 	of 	pay 	for 	employees 	who 	substitute 	while 	(1) 	in 	an 	off-
track 	or 	(2) 	non-service 	status, 	(3) 	in 	the 	same 	classification,
(4) 	but 	at 	a 	site 	other 	than 	their 	regular 	assignment. 3 	The
primary 	issue 	was 	whether 	these 	employees 	should 	receive
(1) 	their 	regular 	hourly 	rate, 	(2) 	the 	traditional 	substitute
rate, 	or 	(3) 	something 	in 	between.
From 	the 	start 	of 	YRE 	until 	July 	1998, 	the 	off-track
substituting 	food 	service 	workers 	received 	their 	regular 	hourly
rate 	of 	pay. 	In 	July 	1998 	the 	District 	began 	to 	pay 	these
employees 	the 	lower ,substitute 	rate, 	insisting 	such 	action 	was
consistent 	with 	the 	terms 	of 	a 	March 	25, 	1989, 	written 	agreement
between 	it 	and 	CSEA. 	This 	entire 	case 	hinges 	on 	the 	efficacy 	of
this 	document. 	For 	the 	remainder 	of 	this 	proposed 	decision 	it
will 	be 	referred 	to 	as 	the 	March 	25 	Document. 	CSEA 	disputes 	the
authenticity 	of 	this 	document.
CSEA objected 	to 	the 	District 1 s 	action, 	demanded 	to
negotiate 	the 	matter, 	and 	eventually 	filed 	this 	unfair 	practice
charge. 	It 	charged 	the 	District 	with 	unilaterally modifying 	the
pay 	rate 	for 	its 	food 	service 	workers.
FINDINGS 	OF 	FACT
Jurisdiction
The 	parties 	stipulated, 	and 	it 	is 	therefore 	found, 	that 	CSEA
is 	both 	an 	employee 	organization 	and 	an 	exclusive 	representative,
3In 	the 	interests 	of 	brevity, 	situations 	that 	meet 	all 	four
of 	these 	criteria 	will 	be 	referred 	to 	as 	off-track 	substitutions.
3

and 	the 	District 	is 	a 	public 	school 	employer, 	within 	the 	meaning
of 	the 	EERA.
Background
The 	respondent 	is 	a 	large 	school 	district 	with 	approximately
1,100 	classified 	bargaining 	unit 	employees, 	of 	whom 	approximately
140 	are 	food 	service 	workers. 	The 	issue 	in 	this 	case 	affects
approximately 	14 	of 	these 	workers.
Overtime 	Reporting 	Procedures
With 	the 	exception 	of 	the 	transportation 	department, 	all
classified employees 	record 	overtime 	hours 	in 	one 	of 	two 	ways.
Regular 	assignment 	overtime 	hours 	are 	reported 	on 	a 	white 	time
card. 	Off-track 	substitute 	hours 	are 	reported 	on 	a 	goldenrod
time 	card. 	Prior 	to 	July 	1998, 	the 	head 	of 	each 	department
(except 	food 	service) 	submitted both white 	and 	goldenrod 	time
cards 	to 	the 	director 	of 	classified personnel, 	Elliott 	Grauman
(Grauman). 	The 	food 	service 	department, 	however, 	submitted 	its
goldenrod 	time 	cards 	directly 	to 	payroll 	and 	only 	its 	white 	time
cards 	were 	sent 	to 	Grauman.
Grauman 	reviews 	these 	goldenrod 	time 	cards 	and 	determines
the 	appropriate 	rate 	of 	pay 	for 	each 	employee. 	After 	designating
the 	appropriate 	pay 	rate, 	Grauman 	forwards 	the 	goldenrod 	time
cards 	to 	payroll 	for 	payment.
In 	July 	1998, 	a 	payroll 	clerk 	came 	to 	Grauman's 	office 	for 	a
determination 	of 	the 	appropriate 	pay 	rate 	for 	a 	cafeteria
assistant 	who 	had 	substituted while 	off-track. 	The 	payroll 	clerk
4

was 	directed 	to 	pay 	the 	employee 	in 	accordance 	with 	page 	eleven
of 	the 	Ladybook. 4 	Page 	eleven 	of 	the 	Ladybook 	is 	a 	retyped,
smooth 	version 	of 	the 	March 	25 	Document.
Upon 	investigating 	the 	matter, 	Grauman 	discovered 	that 	food
service 	employees 	had 	been 	correctly 	recording 	their 	off-track
substitution 	time 	on 	goldenrod 	time 	sheets. 	However, 	Carol
Sidman 	(Sidman), 	director 	of 	food 	services, 	had 	not 	been 	basing
the 	appropriate 	pay 	rate 	on 	the 	March 	25 	Document. 	Instead, 	she
had 	been 	approving 	and 	submitting 	the 	goldenrod 	time 	cards
designating 	the 	employee's 	regular 	pay 	as 	the 	appropriate 	rate.
Consequently, 	the 	payroll 	department 	had 	been paying 	food 	service
employees 	their 	regular 	pay 	rate 	for 	off-track 	substitution 	work.
Grauman 	directed 	Sidman 	to 	modify 	her 	method 	of 	approving 	time
cards 	and 	to 	begin 	complying with 	what 	the 	District 	believed was
the 	proper 	procedure.
From 	1989 	to 	the 	present, 	all 	non-food 	service 	worker
classified 	employees 	who 	engaged 	in 	off-track 	substituting 	have
been 	paid 	in 	accordance 	with 	the 	March 	25 	Document.
CSEA denies 	any 	knowledge 	of 	the 	March 	25 	Document. 	It
correctly 	contends 	there 	is 	no 	collective 	bargaining 	agreement
(CBA) 	language 	that 	permits 	the 	District 	to 	pay 	food 	service
workers 	anything 	other 	than 	their 	regular 	wage 	for 	substitute
work.
4 The 	Ladybook 	is 	an 	informal 	District 	compilation 	of 	YRE
documents. 	Both 	the 	book 	and 	its 	page 	eleven will 	be 	described
in 	detail 	below.
5

In 	order 	to 	determine 	the 	efficacy 	of 	this 	document, 	it 	is
necessary 	to 	examine 	the 	parties' 	1988-89 	YRE 	negotiations.
Negotiating 	History
In 	1985, 	the 	parties 	began 	to 	discuss, 	in 	a 	general 	sense,
YRE 	issues 	when 	one 	school 	began 	to 	operate 	on 	the 	new 	calendar.
The 	issue 	of 	all 	non-track 	substituting 	employees, 	both
instructional 	assistants5 and 	other 	classified 	employees, 	was 	of
vital 	interest 	to 	both 	parties. 	At 	that 	time 	non-track
instructional 	assistants 	were 	paid 	the 	substitute 	rate 	when
performing 	off-track 	substitute 	work. 	Commencing 	in April 	1988
the 	parties 	began 	a 	series 	of 	negotiating 	sessions. 	Both 	sides
agreed 	that 	the 	YRE 	concept 	disproportionately 	concerned
instructional 	assistants. 	Therefore, 	the 	parties 	bifurcated
their 	YRE 	negotiations, 	designating 	one 	set 	for 	instructional
assistants, 	and 	the 	other 	for 	all 	other 	classified 	employees.
1. 	On April 	20, 	1988, 	CSEA proposed 	that 	non-track
substituting 	employees 	receive 	pay 	at 	a 	specified 	rate. 	The
proposed 	rate 	was 	less 	than 	their 	regular 	pay, 	but 	greater 	than
the 	substitute 	rate. 6
5The 	parties 	use 	the 	terms 	11 aides 11 	and 	"assistants"
interchangeably. 	For 	purposes 	of 	this 	decision 	these 	employees
will 	be 	called 	instructional 	assistants.
6There 	was 	no 	evidence 	proffered 	as 	to 	the 	actual 	amount 	of
the 	existing 	"substitute" 	rate. 	However, 	all 	parties 	agreed 	that
in most 	cases 	such 	rate 	was 	lower 	than 	the 	individual 	employee's
regular 	rate. 	Later, 	the 	March 	25 	Document 	created 	an 	off-track
substitute 	rate 	for 	six 	employee 	classifications.
6

2.
	On
	April
	29, 	1988,
	the
	District
	proposed
	that 	off-track
substituting 	instructional 	assistants
	be
	paid 	the
	substitute
	rate
of
	pay.
3.
	Almost 	one
	year
	later,
	on
	April
	18, 	1989,
	CSEA
	proposed
that 	instructional 	assistants
	"who
	choose
	to
	substitute
	when
	off-
track,
	shall
	be
	paid
	not
	less
	than
	5%
	of
	his/her
	regular
	rate
	of
pay.
II
4.
	On
	April
	21, 	1989,
	the
	District's
	proposal
	for
	all
	off-
track 	substituting 	classified
	employees,
	other
	than
	instructional
assistants,
	included
	a
	paragraph
	4, 	which
	stated 	that
	they
	were
to 	receive 	the
	substitute 	rate
	plus
	fifty
	cents 	per
	hour.
5.
	On May
	9, 	1989,
	at
	10:05 	a.m.
	the
	District
	submitted
	a
written
	proposal 	with 	regard 	to
	all
	classified
	employees,
	other
than
	instructional 	assistants.
	It
	had
	a
	series
	of 	handwritten
corrections
	and
	deletions
	on
	it.
	One
	of 	the 	deletions
	included
all
	of 	paragraph
	4 	-
	substitute
	pay, 	as 	described
	above.
Assistant
	Superintendent 	for
	Personnel 	Claudette 	Berry
(Berry)
	testified
	that
	the 	reason 	for
	this 	deletion
	was
	because
"we
	subsequently 	agreed 	with
	CSEA
	to 	the
	salary
	schedule
	that's
in 	question 	here."
	In
	other
	words, 	she 	contends 	paragraph
	4,
	in
the
	District's
	April
	21
	proposal,
	was
	deleted
	because
	CSEA
	and
the
	District
	had 	agreed 	to
	a
	substitute
	pay
	plan 	that
	would
eventually
	become
	the
	May 	25
	Document.
6. 	The
	District's
	second
	May 	9 	(no
	time
	listed) 	proposal
with 	regard 	to 	classified
	employees
	other 	than 	instructional
7

assistants 	was 	a 	retyped 	version 	of 	its 	May 	9, 	10:05 	a.m.
proposal. 	It 	incorporated 	the 	handwritten 	corrections 	and
deletions. 	This 	proposal 	contained 	a 	handwritten 	"T.A."
(Tentative 	Agreement), 	as 	well 	as 	the 	initials, 	"MB" 	and
"C. 	Berry. 117
As 	described 	above, 	this 	"TA'd" 	proposal 	contained 	no
language 	with 	regard 	to 	substitute 	pay 	for 	classified 	employees.
7. 	The 	District 	offered 	into 	evidence 	what 	purports 	to 	be
a 	9:09, 8 May 	25, 	1989, 	management 	offer. 	The 	document 	is
entitled 	"Substitute 	Pay 	For 	Regular 	Employees 	During 	Off-Track
Or 	Non-Service 	Time." 	The 	document 	purported 	to 	cover 	all
classified 	employees, 	instructional 	assistants 	as 	well 	as 	all
others. 	It 	is, 	in 	its 	entirety, 	as 	follows:
1. 	An 	employee 	shall 	receive 	their 	regular
rate 	of 	pay provided 	they 	substitute:
a. 	in 	the 	same 	classification;
b. 	at 	the 	same 	site;
c. 	in 	the 	same 	"work 	area II 	as 	their
base 	assignment.
2. 	A substitute 	assignment 	that 	does 	not
meet 	the 	criteria 	in 	#1 	shall 	be
compensated 	as 	follows:
a. 	at 	the 	regular 	sub 	rate, 	unless:
b. 	at 	the 	following 	adjunct 	rate
or 	employee's 	regular 	rate 	of
pay, 	whichever 	is 	less,
provided 	the 	assignment 	is 	ten
7MB 	refers 	to 	Mike 	Branham 	(Branham), 	the 	CSEA 	labor
relations 	representative 	assigned 	to 	the 	District 	at 	that 	time.
8There 	is 	no 	a.m. 	or p.m. 	designation.
8

or
	more
	consecutive
	work
	days
retroactive
	to
	the
	first
	day:
Instructional
	Asst-Gen 	$7.00
Instructional
	Asst-S.H.
	$7.30
Cafeteria
	Asst
	$6.00
Clerical
	$7.50
Campus
	Supervisor
	$8.00
Custodial
	$8.00
3.	
Additional 	Contracted
	Days
At
	the
	employee's
	regular
	rate
	of
	pay
In 	paragraph
	2.b. 	the
	words
	"ten
	or"
	are 	crossed
	out
	and
	the
words
	"than
	5"
	are
	inserted
	after
	the
	word,
	"more." 	These
modifications 	are
	initialed
	by
	"MB"
	and
	"CB."
	This
interlineation
	modifies 	paragraph
	2.b.
	to
	read 	as 	follows:
at
	the 	following 	adjunct
	rate
	or
	employee's
regular
	rate
	of
	pay, 	whichever
	is
	less,
provided 	the
	assignment
	is
	more
	than
	5
consecutive
	work
	days
	retroactive 	to 	the
first
	day:
At
	the 	top 	of
	this
	9:09,
	May
	25, 	1989, 	document 	someone
	has
inserted
	"TA"
	and
	the
	initials
	"MB"
	and
	"CB."
	This
	is
	the
document
	that
	became
	the
	March
	25
	Document.
	It
	is 	this
	document
the
	District 	relies
	upon
	to
	pay
	its
	food
	service
	workers
	less
than
	their
	regular 	rate
	of
	pay
	when
	they 	are 	non-track
substituting.
9	
It
	is
	a
	retyped version 	of
	this
	document
	that
became
	page
	eleven 	of 	the
	Ladybook.
9
This 	agreement
	created
	a
	conflict
	with
	an
	April
	29, 	1988,
agreement
	(seep.
	7,
	para.
	2,
	supra), 	since 	both 	agreements
purported 	to 	set 	off-track 	substitute
	pay
	for 	Instructional
Assistants. 	Eventually, 	the 	parties
	agreed 	Instructional
Assistants
	were
	to 	paid 	in 	accordance 	with 	the
	March 	25 	Document.
This
	new
	agreement
	was
	signed
	on 	June 	27, 	1989
	(seep.
	11,
para. 	10, 	below).
9

CSEA
	points
	out
	a
	number
	of
	what
	it
	characterizes
	as
inconsistencies 	in
	this
	document,
	as
	compared
	to 	other
	District
proposals.
	It
	points
	out
	that
	(1)
	there
	is
	no
	typed
	date
	and
space
	for
	the
	time
	at
	the
	top 	of
	the
	document,
	(2)
	the
	written
"TA",
	"CB"
	and
	"MB"
	are
	in
	a
	different
	pen
	than
	that
	of
	the
written
	date
	and
	time,
	and
	(3)
	there
	is
	a
	flowered
	border
	on
	the
bottom
	left
	side
	of 	the
	document.
8.
	On
	June 	15, 	1989,
	at
	12:05
	p.m.,
	the
	District
	submitted
a
	proposal
	entitled
	"INSTRUCTIONAL ASSISTANTS 	ASSIGNED
	TO
TRACKS."
	The
	document
	had
	two
	attachments,
	A
and
	B.
	Its
preamble
	is
	as 	follows:
The
	following
	material
	shall
	supersede
	and
replace
	all
	prior
	agreements
	regarding
	YRE
except 	the
	memorandum
	of 	understanding 	dated
November
	22,
	1988
	which
	addresseschild/employee
	track
	placement.
The
	text
	of 	the
	document
	contains
	no
	language
	that
	would
suggest
	it
	relates
	to
	any 	employees
	other
	than
	instructional
assistants.
	Paragraph
	D.5.
	of
	this
	document
	states:
Instructional 	Assistants
	who
	choose
	to
substitute
	when
	in
	unpaid
	status 	will
	be
	paidaccording
	to
	Attachment
	B.
Attachment
	Bis
	the
	March 	25
	Document.
	CSEA
	acknowledges
that 	the 	language 	of 	Attachment
	Band 	the
	March 	25 	Document
	are
identical.
	However,
	it
	points 	out
	two
	differences
	between
	the
documents.
	First,
	unlike 	the
	March 	25
	Document,
	Attachment
	B
reflects
	a
	submission 	date 	of 	June 	15, 	1989,
	with
	a
	line 	for 	the
time, 	but 	with
	no 	time 	inserted.
	Second,
	neither 	the 	designation
10

"TA" 	nor 	the 	initials 	MB 	or 	CB 	are 	on Attachment 	B. 	In 	addition,
the 	March 	25 	Document's 	interlineations 	which 	changed 	"'ten 	or
more' 	to 	'more 	than 	5' 	consecutive 	work 	days" 	have 	been
incorporated 	into 	the 	text 	of 	Attachment 	B. 	In 	other 	words,
Attachment 	Bis 	a 	retyped version 	of 	the 	March 	25 	Document.
Therefore, 	it 	is 	understandable 	the 	"TA" 	and 	the 	"MB" 	and
"CB" 	initials 	would 	be 	missing 	from 	the 	retyped 	document.
9. 	On 	June 	21, 	1989 	CSEA proposed 	its 	own version 	of
"Instructional 	Assistants 	Assigned 	to 	Tracks 	for 	1989-90 	School
Year.'' 	In 	it, 	CSEA 	agrees 	that 	Instructional 	Aides 	who 	choose 	to
substitute 	when 	in 	an 	unpaid 	status 	will 	be 	paid 	according 	to
Attachment 	B 	(also 	known 	as 	the 	March 	25 	Document.)
10. 	Shortly 	thereafter, 	on 	June 	27, 	1989, 	the 	parties
"TA'd" 	a 	slightly 	revised 	version 	of 	the 	June 	15, 	12:05 	p.m.
District 	proposal. 10 	However, 	it 	also 	stated 	off-track
substituting 	instructional 	assistants 	will 	be 	paid 	at 	the
Attachment 	B 	(the 	March 	25 	Document) 	rate.
11. 	Berry 	states 	that 	this 	June 	27 	document 	was 	ratified 	by
the 	District's 	governing 	board 	on 	July 	11, 	1989. 	She 	cites 	the
governing 	board's 	minutes 	for 	that 	meeting, 	stating 	that 	the 	YRE
tentative 	agreements 	were 	attached 	to 	this 	board 	agenda 	item 	for
ratification. 	However, 	the 	board minutes 	merely 	state:
Motion was 	made, 	seconded, 	and 	carried by 	a
unanimous 	roll 	call 	vote 	to 	ratify 	the
10This 	document, 	like 	its 	June 	15, 	12:05 	p.m. 	predecessor 	was
equally 	clear 	that 	it 	applied 	only 	to 	instructional 	assistants.
11

contractual 	agreement 	between 	the 	District
and 	the 	California 	School 	Employees
Association 	concerning 	salary 	reopeners 	for
the 	1988-89 	school 	year.
There 	is 	no 	direct 	reference 	to 	YRE 	agreements 	in 	these
governing 	board minutes. 	Berry 	attempted 	to 	obtain 	copies 	of 	the
backup 	material 	for 	this 	governing 	board 	agenda 	item. 	However,
she 	learned 	that 	agenda 	back-up 	material 	is 	routinely 	discarded
after 	five 	years.
12. 	On 	February 	6, 	1990, 	the 	District 	submitted 	a 	"Package
Counter 	Proposal" 	to 	CSEA 	in 	"complete 	satisfaction of 	the
bargaining 	obligation 	for 	1989-90, 	II 	On 	the 	last 	page 	of
this 	proposal 	are 	the 	following 	paragraphs:
YEAR ROUND 	EDUCATION 	ISSUES
1. 	As 	noted 	above, 	all 	Year 	Round 	Education
economic 	issues 	have 	been 	finally
resolved 	for 	the 	1989-90 	school 	year.
2. 	Changes 	necessitated by program 	changes 	or
unforeseen 	events 	shall 	be 	negotiated 	upon
request 	of 	either 	party.
This 	document 	had 	a 	"TA" 	signed by Berry 	for 	the 	District
and 	by 	Jean 	May 	(May), 	CSEA's 	YRE 	negotiating 	team 	chair. 	It
also 	had 	numerous 	modifications 	throughout 	that 	were 	initialed by
11 CB 11 	and 	"JM."
Ladybook
Following 	YRE 	negotiations, 	Berry 	created 	the 	Ladybook. 	She
admits 	it 	was 	not 	a 	negotiated 	agreement, 	but 	rather 	a
compilation 	of 	negotiated 	agreements, 	documents 	and 	informal
explanations 	to 	enable 	the 	employees 	to 	better 	understand 	YRE
12

rules. 	The 	cover 	shows 	a 	woman 	holding 	a 	book 	entitled, 	11 YRE 	for
Classified 	Employees." 	Berry 	created 	the 	front 	cover 	and 	wrote
the 	introduction. 	She 	also 	wrote 	the 	history 	of 	YRE, 	developed
the 	question 	and 	answer 	section, 	and 	determined 	which 	documents
should 	be 	inserted 	into 	the 	book.
The 	book 	starts 	with 	(1) 	an 	introduction, 	(2) 	table 	of
contents, 	and 	(3) 	the 	District 1 s 	YRE 	history 	(pp. 	1-3). 	It 	next
includes 	a 	workday 	schedule 	and 	medical 	benefit 	entitlement 	for
instructional 	assistants 	(p. 	4). 	At 	some 	time 	later, 	this
document 	was 	incorporated 	as 	Addendum No. 	1 	to 	the 	parties 1 	1991-
94 	CBA. 	Next 	it 	includes 	payroll 	procedures 	(pp. 	6-9) 	describing
the 	transition 	from 	traditional 	to 	YRE 	calendars. 	Page 	10 	is
entitled 	"VII. 	SUBSTITUTES." 	It 	describes 	the 	amount 	of 	money
each 	YRE 	site 	has 	available 	to 	pay 	for 	classified 	substitutes 	and
describes 	the 	manner 	in which 	employees 	may volunteer 	for 	off-
track 	substituting.
The 	next 	document, 	page 	11, 	is 	the 	March 	25 	Document.
Following 	are 	"Most 	Commonly Asked 	Questions" 	(pp. 	12-14). 	The
next 	three 	documents 	(pp. 	15-25) 	are 	copies 	of 	memoranda 	of
understanding 	between 	the 	District 	and 	CSEA. 	These 	memoranda
cover various 	topics 	concerning 	instructional 	assistants, 	drivers
and 	"OTHER YRE 	EMPLOYEES." 	The 	last 	four 	pages 	of 	the 	Ladybook
(pp. 	26-29) 	are 	various 	forms 	of 	the 	District 1 s 	1989-90
instructional 	calendar.
13

1998 	Resulting 	Events
For 	nine 	years, 	from 	1989 	to 	1998, 	the 	food 	service 	workers
were 	paid 	their 	regular 	wages 	for 	off-track 	substituting. 	In
July 	1998, 	as 	more 	fully 	described 	supra, 	the 	District 	paid 	these
workers 	at 	the 	March 	25 	Document 	rate.
Once 	the 	employees 	learned 	of 	the 	lowered 	salary 	they
contacted 	CSEA. 	At 	the 	next 	1998-99 	reopener 	negotiation
session, 	Linda 	Norman 	(Norman), 	CSEA 	labor 	relations
representative, 	asked 	Berry about 	the 	matter 	and 	insists 	she 	said
CSEA wanted 	to 	negotiate 	it.II 	Berry 	declined 	to 	do 	so, 	stating
that 	a 	policy was 	in place. 	Norman 	asked 	for 	a 	copy 	of 	the
policy. 	Berry 	referred 	her 	to 	the 	Ladybook.
Norman 	and 	the 	CSEA 	negotiators 	asked 	Berry what 	a 	Ladybook
was. 	Berry described 	it, 	obtained 	a 	copy 	and 	gave 	it 	to 	them.
The 	CSEA 	negotiators 	said 	they 	had 	never 	seen 	the 	book 	prior 	to
that 	time. 	Both 	Berry and 	Grauman 	insist 	the 	book 	had 	been
11 The 	parties 	spent 	a 	certain 	amount 	of 	time 	discussing
whether 	or 	not 	Norman 	made 	a 	demand 	to 	bargain. 	Under 	the
circumstances 	a 	demand 	to 	bargain was 	not 	necessary. 	In 	Pajaro
Valley 	Unified 	School 	District 	(1978) 	PERB 	Decision No. 	51
(Pajaro), 	the 	Board, 	when 	citing NLRB 	v. 	Katz 	(1962) 	369 	U.S. 	736
[50 	LRRM 	2177] 	(Katz), 	stated:
just 	as 	an 	outright 	refusal 	to 	bargain
with 	respect 	to 	wages, 	hours 	and 	other 	terms
and 	conditions 	of 	employment 	violates 	the
duty 	to 	bargain, 	so 	does 	a 	unilateral 	change
in 	the 	terms 	and 	conditions 	of 	employment,
for 	such 	a 	change 	is 	"a 	circumvention 	of 	the
duty 	to 	negotiate 	which 	frustrates 	the
objectives 	of 	Section 	8 (a) ( 5) 	much 	as 	does 	a
flat 	refusal.
14

distributed 	to 	all 	classified 	employees 	in 	1989 	and 	had 	been 	in
regular 	and 	constant 	use 	since 	that 	time. 	Berry 	also 	insists 	May
reviewed 	and 	approved 	the 	book 	prior 	to 	it 	being 	sent 	to 	the
employees.
On May 	7, 	1990, 	and 	again 	on 	February 	14, 	1991, 	Berry 	sent 	a
memorandum 	to 	all 	classified 	employees 	reporting 	on 	the 	most
recent 	contract 	negotiations. 	In 	both memoranda 	she 	included 	the
following 	sentence:
YRE 	- 	There 	were 	no 	changes 	made 	to 	the
current 	memorandums 	of 	understanding
contained 	in your YRE 	handbook.
Carol 	Sidman
Sidman 	has 	been 	the 	director 	of 	food 	services 	since 	1989.
In 	that 	capacity 	she 	has 	served 	continuously on 	the 	District 1 s
negotiations 	team, 	including 	the 	1989 	YRE 	negotiations. 	Sidman
testified 	that 	she 	had 	not 	seen 	or 	read 	the 	Ladybook 	until 	July
1998, 	when 	the 	food 	service 	off-track 	substitution 	issue 	arose.
When 	asked why 	she 	had 	not 	applied 	the 	March 	25 	Document 	pay 	rate
for 	non-track 	substitute 	work 	from 	1989 	to 	July 	1998, 	she 	stated
she 	had 	not 	been 	aware 	of 	that 	document.
CSEA 	President 	Patricia 	Calderia
Patricia 	Calderia 	(Calderia) 	is 	the 	current 	chapter
president 	and 	has 	held 	that 	office 	since 	1991. 	She 	had 	no
involvement 	in 	chapter 	affairs 	prior 	to 	that 	time. 	She 	was 	not
involved 	in 	negotiating 	either 	the 	1988-91 	CBA 	nor 	the 	YRE
agreements. 	Nor 	was 	she 	involved 	in 	the 	negotiations 	for 	the
15

1991-94 	CBA, 	although 	it 	was 	signed 	shortly 	after 	she 	became
president.
Immediately 	after 	the 	parties 	reached 	a 	tentative 	agreement
on 	the 	1997-2000 	CBA, 	and 	while 	they 	were 	still 	at 	the 	table,
Calderia 	asked 	Berry 	to 	provide 	her 	with 	copies 	of 	all
outstanding 	side 	letters. 	Calderia 	requested 	these 	documents 	in
anticipation 	of 	incorporating 	them 	into 	the 	1997-2000 	CBA. 	She
wanted 	the 	documents 	to 	prevent 	the 	District 	from 	claiming 	there
was 	some 	outstanding 	agreement 	that 	had 	been 	negotiated 	prior 	to
her 	assuming 	the 	presidency. 	Although 	Berry 	sent 	her 	numerous
documents, 	she 	did 	not 	send her 	a 	copy 	of 	the 	March 	25 	Document.
Berry 	insisted 	that 	she 	sent 	''a 	copy 	of 	everything 	that 	we
had 	signed 	between 	'94 	to 	'97." 	Berry 	testified 	that 	"anything
else 	I 	did 	not 	provide 	her 	with. 	I 	mean, 	it 	was 	either 	in 	the
contract 	or 	it 	was 	in 	a 	handbook." 	She 	went 	on 	to 	state 	that
there 	are 	items 	outside 	of 	the 	CBA which 	affect 	wages, 	hours 	and
terms 	and 	conditions 	of 	employment 	for 	classified 	employees. 	She
described 	these 	items, 	as 	follows:
First 	of 	all, 	salary 	schedules. 	Salary
schedules 	are 	not 	in 	the 	contract. 	We 	have
Board policies 	on 	catastrophic 	leave, 	on
family 	care 	leave, 	on 	smoking. 	We 	have 	a
handbook 	on 	drug 	testing, 	and 	then, 	of
course, 	the 	YRE 	handbook. 	2l[ l
12The 	YRE 	handbook 	she 	references 	is 	the 	Ladybook.
16

Once 	Calderia 	had 	the 	material 	provided by 	Berry, 	the 	two 	of
them decided 	which 	documents 	would 	be 	incorporated 	into 	the 	body
of 	the 	1997-2000 	CBA.
Calderia 	admitted 	that 	off-track 	substitute 	instructional
assistants 	were 	paid 	at 	a 	substitute 	rate. 	She 	admitted 	that,
despite 	CSEA's 	interest 	in 	an 	all-inclusive 	CBA, 	the 	agreement
for 	this 	reduced 	rate 	was 	not 	incorporated 	in 	the 	CBA. 	She 	does
not 	know when 	this 	reduced 	rate 	was 	negotiated, 	or 	even 	if 	it 	was
negotiated. 	She 	admitted 	that 	it 	initially became 	controlling
policy 	"before 	my 	time."
1995 	Substitute 	Food 	Service 	Worker 	Salary 	Increase
In March 	1995, 	the 	March 	25 	Document 	was 	revised 	on May 	9,
1995, 	to 	reflect 	an 	increase 	in 	the 	substitute 	pay 	for 	cafeteria
workers 	from 	$6.00 	to 	$7.59 	per 	hour, 	to 	be 	effective
September 	1, 	1998. 13 	It 	was 	the 	only 	classification 	amended.
This 	amended version 	of 	the 	March 	25 	Document, 	according 	to
Grauman, 	was 	sent 	to 	the 	food 	service 	department 	at 	the 	time 	it
became 	effective. 	Sidman 	does 	not 	recall 	receiving 	it 	in 	1995,
or 	at 	any 	other 	time. 	She 	does 	remember 	the 	cafeteria
assistants' 	substitute 	pay 	being 	increased 	from 	$6.00 	to 	$7.59.
13 There 	was 	no 	evidence 	proffered 	as 	to 	why 	there 	was 	a
three-year 	delay 	between 	the 	revision 	and 	effective 	dates.
17

ISSUE
Did 	the 	District, 	when 	it 	modified 	the 	off-track
substitution pay 	for 	its 	food 	service 	workers, 	violate
subdivision 	(a), 	(b) 	or 	(c) 	of 	section 	3543. 5?
CONCLUSIONS 	OF 	LAW
A unilateral 	modification 	of 	terms 	and 	conditions 	of
employment 	within 	the 	scope 	of 	negotiations 	that 	has 	a
generalized 	effect 	or 	continuing 	impact 	is 	a 	per 	se 	refusal 	to
negotiate. 	PERB 	has 	long 	recognized 	this 	principle.
(Pajaro; 	San Mateo 	County Community 	College 	District 	(1979) 	PERB
Decision No. 	94; 	and 	Grant 	Joint 	Union High 	School 	District
(1982) 	PERB 	Decision No. 	196.)
Under 	subdivision 	(c) 	of 	section 	3543.5, 	the 	public 	school
employer 	is 	obligated 	to 	meet 	and 	negotiate 	in good 	faith 	with 	an
exclusive 	representative 	about 	matters 	within 	the 	scope 	of
representation. 	This 	section precludes 	an 	employer 	from 	making
unilateral 	changes 	in 	the 	status 	quo, 	whether 	it 	is 	evidenced 	by
a 	CBA or 	past 	practice. 	(Anaheim City 	School 	District 	(1983)
PERB 	Decision No. 	364; 	Pittsburg 	Unified 	School 	District 	(1982)
PERB 	Decision No. 	199.)
The 	EERA's 	scope 	of 	representation 	is 	found 	in 	subdivision
(a) 	of 	section 	3543.2, 	which 	states:
The 	scope 	of 	representation 	shall 	be 	limited
to 	matters 	relating 	to 	wages, 	hours 	of
employment, 	and 	other 	terms 	and 	conditions 	of
employment.
18

As 	the 	facts 	of 	this 	case 	involve 	the 	appropriate 	salary 	for
off-track 	substituting 	food 	service 	workers, 	the 	matter 	falls
within 	the 	category 	of 	wages, 	a 	specifically 	enumerated 	item
within 	section 	3543.2.
This 	law 	in 	this 	case 	is 	very 	clear. 	If 	the 	March 	25
Document 	is 	valid, 	the 	District 	has 	the 	right 	to 	pay 	off-track
substituting 	food 	service 	workers 	the 	$7.59 	per 	hour 	listed 	in
that 	document. 14 	If 	this 	document 	is 	invalid, 	the 	subject
employees 	are 	entitled 	to 	their 	regular 	pay 	for 	their 	off-track
substituting 	hours.
CSEA's 	Position
CSEA propounded 	a 	number 	of 	reasons 	to 	support 	its
contention 	the 	March 	25 	Document 	is 	invalid. 	They 	are:
1. 	Both parties 	in 	their 	YRE 	negotiations 	proposed 	that
the 	off-track 	substituting 	food 	service 	workers 	be 	paid 	at 	rates
higher 	than 	those 	listed 	in 	the 	March 	25 	Document. 	Therefore, 	it
is 	inconsistent 	to 	expect 	CSEA 	to 	have 	eventually 	agreed 	to 	a
rate 	lower 	than 	either 	side 	initially proposed.
14The 	fact 	that 	the 	District, 	for 	approximately 	nine 	years,
failed 	to 	enforce 	its 	right 	to 	pay 	off-track 	substituting 	food
service 	workers 	the 	lower wage, 	does 	not 	preclude 	it 	from 	doing
so 	in 	July 	1998. 	In Marysville 	Joint 	Unified 	School 	District
(1983) 	PERB 	Decision No. 	314, 	the 	Board 	said:
. 	The 	mere 	fact 	that 	an 	employer 	has 	not
chosen 	to 	enforce 	its 	contractual 	rights 	in
the 	past 	does 	not 	mean 	that, 	ipso 	facto, 	it
is 	forever 	precluded 	from 	doing 	so.
19

2. 	The 	format 	of 	the 	original 	version 	of 	the 	March 	25
Document 	is 	markedly 	different 	from 	any 	other 	District 	proposal,
in 	that 	(a) 	it 	has 	no 	typed 	date 	or 	space 	for 	the 	time 	at 	the 	top
of 	the 	document, 	(b) 	the 	written 	"TA," 	"CB" 	and 	"MB" 	are 	in 	a
different 	pen 	than 	that 	of 	the 	written 	date 	and 	time, 	and 	(c) 	it
has 	a 	flowered 	border 	on 	the 	bottom 	left 	of 	the 	document.
3. 	Attachment 	B to 	the 	District 1 s 	June 	15, 	1989, 	proposal
is 	not 	identical 	to 	the 	March 	25 	Document, 	as 	the 	District
claims. 	Admittedly, 	they 	are 	similar, 	but 	there 	are 	a 	number 	of
inconsistencies, 	which 	support 	a 	claim of 	invalidity.
4. 	The 	District 1 s 	claim 	that 	the 	March 	25 	Document 	was
ratified 	by 	its 	governing 	board 	on 	July 	11, 	1989, 	is 	not
supported by 	its 	minutes. 	There 	is 	no 	reference 	to 	YRE
negotiations; 	they 	merely mention 	the 	ratification 	of 	1988-89
salary 	reopeners.
5. 	The 	fact 	that 	a 	document 	is 	in 	the 	Ladybook 	provides 	no
evidence 	of 	validity. 	It 	is 	a 	book 	unilaterally 	created 	and
maintained by 	the 	District.
6. 	When 	Berry 	first 	mentioned 	the 	Ladybook 	as 	the 	source
of 	the 	District 1 s 	off-track 	substitution policy, 	none 	of 	CSEA 1 s
negotiators 	knew 	what 	it 	was 	or where 	it 	came 	from.
7. 	Sidman, 	the 	District 1 s 	food 	service 	manager, 	was 	not
aware 	of 	either 	the 	March 	25 	Document 	or 	the 	Ladybook 	prior 	to
July 	1998.
20

8. 	Calderia 	asked 	Berry 	for 	copies 	of 	all 	side 	letters.
Although 	Berry produced 	some 	documents, 	she 	did 	not 	produce
March 	25 	Document.
9. 	The 	March 	25 	Document, 	even 	if 	originally valid, 	is 	no
longer 	in 	effect 	due 	to 	the 	EERA's 	prohibition 	on 	CBAs 	in 	excess
of 	three 	years. 	It 	cites 	section 	3 54 0. 1 (h) 15 	in 	support 	of 	its
position. 	It 	contends 	that 	the 	March 	25 	Document 	was
automatically 	terminated when 	three 	years 	passed without 	the
District 	inserting 	it 	into 	any 	CBA.
10. 	The 	District's 	June 	27, 	1989, 	proposal 	(Proposal 	Nos.
8, 	9 	and 	10 	on 	pp. 	10-11), 	which 	was 	later 	TA'd 	by 	the 	parties,
on 	its 	face 	states 	it 	supersedes 	all 	prior YRE 	agreements.
Therefore, 	CSEA 	contends, 	the 	March 	25 	Document 	was 	rendered 	null
and 	void.
Analysis 	of 	CSEA's 	Positions
1. 	CSEA's 	argument 	that 	both 	parties 	initially proposed
off-track 	substitution 	food 	service 	worker 	salary 	rates 	higher
15 Section 	3 54 0. 1 (h) 	states, 	in pertinent 	part:
"Meeting 	and 	negotiating" 	means 	meeting,
conferring, 	negotiating, 	and 	discussing 	by
the 	exclusive 	representative 	and 	the 	public
school 	employer 	in 	a 	good 	faith 	effort 	to
reach 	agreement 	on 	matters 	within 	the 	scope
of 	representation 	and 	the 	execution, 	if
requested 	by 	either 	party, 	of 	a 	written
document 	incorporating 	any 	agreements
reached, 	which 	document 	shall, 	. 	become
binding 	upon 	both 	parties 	. 	The
agreement 	may 	be 	good 	for 	a 	period 	of 	not 	to
exceed 	three 	years. 	[Emphasis 	added.]
21

than
	the 	eventual
	$6.00
	per
	hour
	is
	supported
	by
	the 	evidence.
However,
	many
	weird, 	unusual
	and
	often 	contradictory 	things
happen
	in
	the 	give-and-take
	of
	the
	negotiation
	process.
	Both
parties
	admitted
	that
	the
	instructional
	assistants
	bore
	the 	brunt
of 	the
	YRE
	impact;
	therefore,
	this 	classification's 	interests
	had
to
	be
	balanced
	and
	consistent
	with 	those 	of 	the
	other
classifications.
	There
	are
	just
	too
	many
	reasons
	that
	could
	have
caused
	CSEA
	to
	agree
	to
	a
	lower
	rate
	than 	the
	parties 	originally
proposed. 	This 	lower
	rate
	does
	not 	support
	an
	inference 	of
invalidity
	for 	the
	March
	25
	Document.
2.
	CSEA's
	"inconsistencies" 	are
	more
	illusory
	than
substantive.
	To
	anyone
	who
	has
	spent
	time
	in 	negotiations, 	the
"different"
	pen 	argument
	is
	ludicrous.
	There
	are
	so
	many
	papers
and
	comments,
	as 	well 	as
	verbal
	and
	written
	"proposed"
	proposals,
floating
	around
	a
	negotiating 	table,
	it
	is
	a
	surprise
	when
	the
original
	proposal
	can
	be 	found,
	much
	less
	the
	identical
	pen
	to
initial
	TA's.
CSEA
	is
	correct 	the 	subject 	proposal
	had
	a
	different
	format
from
	other
	District
	proposals,
	i.e., 	it
	did 	not
	have
	a
	typed 	date
and
	underlined
	space
	for 	the 	time. 	This, 	along 	with 	the 	use 	of
flowered
	stationery,
	could 	lend
	some
	support
	to
	an
	inference 	of
invalidity
	of 	the
	document.
On
	the 	other
	hand,
	if
	the
	District
	had
	unilaterally
	prepared
and
	surreptitiously
	forged 	Branham's
	initials
	to
	a
	bogus
22

document, 	it 	is 	unlikely 	it 	would 	have 	used 	a 	modified 	format,
flowered 	stationery 	and 	multiple 	pens 	in 	the 	endeavor.
On 	balance, 	these 	inconsistencies 	do 	not 	provide 	support 	for
an 	inference 	of 	invalidity.
3. 	The 	fact 	that 	the 	March 	25 	Document 	and Attachment 	B
are 	not 	identical 	fails 	to 	lend 	support 	to 	CSEA 1 s 	case.
Attachment 	B was 	a 	11 cleaned 	up, 11 	typed version 	of 	the 	March 	25
Document. 	It 	omitted 	the 	deleted 	language 	and 	inserted 	the 	newly
inserted 	language. 	The 	original 	document 	needed 	the 	11 TA 11 	and 	the
negotiators 1 	initials 	to 	establish 	its 	validity. 	The 	11 cleaned-
up, 11 	typed version 	of 	the 	document 	did 	not.
The 	discrepancies 	between 	the 	documents 	do 	not 	support 	an
inference 	of 	invalidity.
4. 	The 	ratification 	language, 	as 	set 	forth 	in 	the
governing 	board 	minutes, 	was 	less 	than 	conclusive. 	However, 	the
reason 	given 	for 	the 	unavailability 	of 	the 	supporting 	material
was 	reasonable. 	In 	addition, 	if 	the 	board 	agenda 	item did, 	in
fact, 	include 	the 	March 	25 	Document, 	it 	is 	unlikely 	that 	the
board would 	have 	ratified 	it 	without 	a 	previous 	ratification 	from
CSEA.
The 	failure 	of 	the 	governing 	board minutes 	to 	specifically
mention 	that 	its 	ratification 	included YRE 	agreements 	lends 	some
support 	to 	an 	inference 	of 	invalidity.
5. 	CSEA 	is 	correct 	when 	it 	states 	that 	the 	fact 	that 	a
document 	is 	included 	in 	the 	Ladybook 	provides 	no 	indicia 	of
23

validity.
	The
	Ladybook
	was
	not
	negotiated
	in
	any
	manner,
	shape
or
	form.
	The
	fact 	that
	some
	of
	the
	documents
	had 	been
	negotiated
does
	not 	give 	"negotiated"
	status
	to
	the
	rest
	of 	the
	book.
	Each
document
	in
	the
	Ladybook must
	stand
	or
	fall
	on
	its
	own
	merits
	as
to
	whether
	it
	was
	negotiated.
	The
	fact
	that
	the
	March
	25
Document 	was
	in
	the
	Ladybook,
	a
	District
	controlled
	and
unilaterally
	prepared
	book,
	does
	not 	lend
	any
	support
	to
	an
inference
	that
	it
	was
	a
	negotiated
	document.
6.
	The
	fact 	that
	the
	CSEA
	negotiators
	were
	not
	previously
aware
	of 	the
	Ladybook
	lends
	some
	support
	to
	CSEA's
	contentions.
However,
	the 	book's 	contents
	would
	seem
	to
	support
	a
	conclusion
that
	it
	was
	not 	used
	very
	often
	by
	the
	rank-and-file.
	The
	book's
contents
	were
	more
	likely
	used
	by
	the
	District's
	personnel
(Grauman)
	and
	labor
	relations
	(Berry)
	departments.
	Certainly,
the 	very
	size
	of 	the
	District
	would
	suggest
	that
	issues
	would
occasionally
	arise 	that
	would
	dictate
	the
	use 	of 	the
	book
	as
	a
resource.
	It
	does 	not 	include
	much
	information
	that
	would
	lend
itself
	to
	be 	used
	on
	a
	daily 	basis.
In 	the
	final 	analysis, 	the
	CSEA
	negotiators' 	unfamiliarity
with 	these
	two
	documents 	does
	lend
	some
	minimal
	support
	to
	an
inference 	of
	invalidity.
7.
	The
	fact 	that
	Sidman was
	also 	not
	familiar 	with
	either
the
	March 	25 	Document
	or 	the
	Ladybook 	does 	lend
	some
	support 	to
CSEA's
	contentions.
	She 	was 	a
	credible 	witness
	who
	tried
	very
hard 	to 	recall 	events 	that 	occurred 	eleven years 	previously.
	The
24

fact 	that
	she
	only
	attended
	approximately
	15
	percent
	of
	the
	YRE
negotiations 	explains
	a
	large
	degree
	of
	her
	inability
	to
	recall
those 	events.
	This
	minimal
	attendance
	level
	would
	also 	explain
her
	unfamiliarity
	with
	the
	March
	25
	Document,
	but
	does
	not
explain
	why
	she
	was
	unfamiliar
	with
	the
	Ladybook. 	Her
	failure
	to
be 	aware
	of
	this
	book
	could 	suggest
	that
	its
	use
	was
	not
	as
prevalent
	as 	Berry
	and
	Grauman
	contend.
	On
	the
	other
	hand,
Sidman's
	job
	is
	providing
	food 	and managing
	140
	employees
	at
	a
variety
	of
	sites
	throughout
	the
	District.
	The
	idiosyncracies
	of
off-track 	substitution 	rules
	would
	not
	seem
	to
	be
	a
	large
	part
	of
that
	job.
	Berry
	and 	Grauman's
	duties
	would
	cause
	them
	to
	have
	a
much
	higher
	degree 	of 	contact 	with 	the
	YRE
	rules
	than
	Sidman.
	In
the
	final 	analysis,
	Sidman's
	unfamiliarity
	with
	these
	two
documents 	does
	lend
	some
	support
	to
	an
	inference 	of
	invalidity.
8.
	Berry's
	failure
	to
	provide 	the
	March
	25
	Document
	in
response
	to 	Calderia's
	request 	for 	side
	letters,
	absent
	further
evidence,
	does
	little
	to
	support
	CSEA's
	contentions.
	A
	side
letter 	is
	an 	agreement
	of 	the
	parties 	that
	occurs 	during
	a
	CBA
term.
	It
	usually
	modifies
	or
	interprets
	an
	existing
	CBA
provision
	and 	remains
	in 	effect 	until 	that 	particular
	CBA
	term
ends.
	When
	that
	CBA
	term
	expires, 	the 	side
	letter
	expires
unless,
	by
	its
	own
	terms,
	it
	continues.
Berry
	stated 	that
	she 	gave
	Calderia 	"everything 	that
	we
	had
signed 	between 	'94 	and
	'97."
	The 	March 	25 	Document 	was
	not
created 	during
	this
	time.
	It
	was
	developed
	in
	1989
	as
	a
	response
25

to
	a
	major 	upheaval
	of
	the
	District's
	calendar. 	Objectively
speaking, 	perhaps
	it
	should
	have
	been
	made
	a
	part
	of 	the
	CBA.
However,
	the
	failure
	to
	take
	this
	action
	can
	be
	attributed
	to
both
	parties.
	To
	some
	extent,
	it
	was
	more
	incumbent
	upon
	CSEA
	to
make
	sure
	that
	it
	was
	placed
	into
	the
	CBA.
	The
	District
	had
	no
problem
	with
	letting
	it
	remain
	where
	it
	was
	placed,
	in
	the
Ladybook.
	It
	was
	satisfied
	with
	its
	rights,
	as
	set
	forth
	in
	the
March
	25
	Document.
	It
	was
	CSEA
	that
	was
	interested 	in
	changing
it.
Berry's
	failure
	to
	provide 	the
	March
	25
	Document
	in
	response
to 	Calderia's
	request 	for 	side
	letters
	provides 	only
	a
	minimal
level
	of 	support
	for
	an
	inference 	of
	invalidity.
9.
	CSEA's
	argument
	is
	interesting,
	but 	unpersuasive.
Section 	3540.l(h)
	does
	not
	require
	all
	negotiated
	agreements
	on
any
	issue,
	no
	matter
	how
	insignificant,
	be
	automatically
	voided
after
	three 	years, 	unless
	it
	is
	inserted 	into 	the
	parties'
comprehensive
	CBA. 	To
	do
	so
	would
	raise
	havoc
	with 	educational
employment
	relationships
	throughout 	the
	state.
In
	this
	case, 	the
	parties
	had 	an 	agreement 	on
	off-track
substitution 	rates 	for 	six 	separate
	employee
	classifications.
There
	is
	no
	evidence
	that
	CSEA
	asked
	that 	this
	agreement 	be
placed 	in 	the
	parties'
	CBA.
	It
	merely 	remains
	in 	effect 	until
such 	time 	as
	one
	side 	or 	the 	other 	asks 	to 	negotiate
	a
modification 	and/or 	to 	insert
	it
	into 	the
	CBA.
26

On 	a 	somewhat 	related 	matter, 	the 	evidence 	shows 	that 	the
March 	25 	Document's 	cafeteria 	worker 	substitution 	rate 	was
revised 	from 	$6.00 	to 	$7.59 	per 	hour, 	on May 	9, 	1995, 	to 	be
effective 	September 	1, 	1998.
There 	was 	no 	evidence 	proffered 	as 	to 	how 	this 	revision 	was
effected. 	As 	wages 	are 	an 	enumerated 	item 	in 	the 	scope 	of
representation 	(see 	sec. 	3543.2 	on p. 	18) 	any modifications 	must
be 	negotiated. 	The 	increase 	could 	have 	been 	part 	of 	an 	across-
the-board 	salary 	increase, 	but 	the 	rate 	(+26.5 	percent) 	is 	too
high.
The 	only 	other 	two 	possibilities 	are 	that 	(1) 	the 	increase
was 	negotiated, 	or 	(2) 	the 	District 	unilaterally 	increased 	the
rate. 	If 	it 	were 	the 	former, 	CSEA 	could 	hardly 	be 	heard 	to
complain 	that 	the 	food 	service 	workers 	were 	being 	paid 	at 	a 	rate
that 	was 	more 	than 	three 	years 	old. 	If 	it 	were 	the 	latter, 	CSEA
sat 	on 	its 	rights 	with 	regard 	to 	the 	implementation 	of 	a 	salary
modification 	for 	some 	of 	its 	members. 	Once 	again, 	under 	these
circumstances, 	CSEA 	could 	not 	claim a 	salary 	increase 	that 	had
occurred 	less 	than 	four 	months 	before 	it 	filed 	its 	charge
violated 	section 	3540.l(h).
10. 	The 	June 	27, 	1989, 	document 	(Proposal 	No. 	10, 	p. 	11)
was 	a 	slightly 	revised version 	of 	its 	June 	15 	proposal 	(Proposal
No. 	8, 	pp. 	10-11) 	which 	admittedly 	stated 	that 	it 	superseded
specified YRE 	agreements. 	However, 	it 	must 	remembered 	that 	the
parties 	bifurcated 	their 	negotiation 	sessions, 	although 	there 	was
27

some 	overlap. 	However, 	the 	June 	15 	and 	27 	documents 	made 	it 	very
clear 	that 	they 	pertained 	exclusively 	to 	YRE 	rules 	for
instructional 	assistants. 	Therefore, 	it 	had 	no 	impact 	on 	the
March 	25 	Document, 	which 	dealt 	primarily with 	classified
employees, 	other 	than 	instructional 	assistants. 	In 	fact, 	one 	of
the 	reasons 	for 	the 	June 	27 	agreement 	was 	to 	resolve 	a 	conflict
between 	an 	earlier 	agreement 	regarding 	off-track 	substituting
instructional 	assistants.
This 	allegation 	of 	supersession 	does 	not 	provide 	any 	support
for 	an 	inference 	of 	invalidity.
The 	District's 	Position
The 	District 	propounds 	its 	own 	reasons 	to 	support 	its
contention 	that 	the 	March 	25 	Document 	is 	valid. 	These 	reasons
are:
1. 	The 	March 	25 	Document 	has 	Berry and 	Branham's 	initials,
not 	only next 	to 	the 	"TA," 	but 	next 	to 	interlineations 	in
paragraph 	2.b.
2. 	CSEA 	admits 	agreeing 	to 	off-track 	substituting
instructional 	assistants 	being 	paid 	according 	to 	Attachment 	B,
which 	is 	substantively 	identical 	to 	the 	March 	25 	Document.
CSEA 1 s 	position 	that 	the 	March 	25 	Document 	is 	an 	invalid 	and
contrived document 	is 	inconsistent 	with 	its 	agreement 	to 	permit
this 	same 	document 	to 	control 	the 	off-track 	substitution pay 	of
instructional 	assistants.
28

3. 	CSEA 1 s 	claims 	that 	it 	never 	saw 	the 	Ladybook 	or 	the
March 	25 	Document 	are 	inconsistent 	with 	(a) 	its 	1989 	YRE
negotiating 	team 	chair 1 s 	approval 	of 	the 	book, 	(b) 	the 	book 1 s
1989 	distribution 	to 	all 	classified 	employees, 	(c) 	the 	1990 	and
1991 	memoranda 	sent 	to 	all 	classified 	employees 	referencing 	the
book 	as 	a 	source 	of 	YRE 	information, 	and 	(d) 	the 	District 1 s
February 	6, 	1990, 	1989-90 	proposal 	which 	states, 	" 	.all 	YRE
economic 	issues 	have 	finally 	been 	resolved."
4. 	The 	District 	contends 	that 	the 	Ladybook 	is 	a 	negotiated
agreement 	between 	CSEA 	and 	the 	District. 	It 	further 	contends
that 	PERB, 	in 	Lodi 	Unified 	School 	District 	(1991) 	PERB 	Decision
No. 	883, 	made 	a 	determination 	that 	the 	Ladybook 	constituted 	a
separate 	agreement 	for 	YRE 	issues.
Analysis 	of 	District 1 s 	Positions
1. 	This 	is 	probably 	the 	strongest 	of 	all 	the 	arguments
presented 	in 	this 	case. 	It 	is 	this 	argument 	that 	CSEA 	attempts
to 	rebut 	with 	circumstantial 	evidence. 	On 	its 	face, 	the 	March 	25
Document 	appears 	to 	be 	exactly what 	the 	District 	says 	it 	is 	-- 	a
District 	proposal 	that 	was 	modified 	and 	TA'd 	on March 	25, 	1989.
The 	initials 	appear 	to 	resemble 	other 	initials 	that 	CSEA does 	not
dispute. 	Berry 	testified 	that 	Branham 	signed 	it. 	Neither 	he 	nor
CSEA 1 s 	chief 	YRE 	negotiations 	chair, 	nor 	anyone 	else 	on 	behalf 	of
CSEA, 	testified 	that 	he 	did 	not. 	The 	cited 	irregularities, 	i.e.,
absence 	of 	typed 	time 	and 	date, 	differences 	in pens 	and 	use 	of
29

flowered 	paper 	are 	de 	minimis, 	absent 	strong 	evidence 	that 	it 	is
a 	contrived 	document.
This 	position presents 	a 	very 	strong 	argument 	in 	favor 	of 	an
inference 	of 	validity.
2. 	CSEA's 	agreement 	to 	an 	off-track 	substitution 	rate 	for
instructional 	assistants 	is 	not 	necessarily 	inconsistent 	with 	its
contention 	it 	did 	not 	agree 	to 	such 	a 	rate 	for 	its 	food 	service
workers. 	However, 	the 	fact 	that 	the 	March 	25 	Document 	is 	the
source 	for 	the 	rates 	for 	both 	classifications 	is 	a 	definite
inconsistency 	on 	CSEA's 	part. 	It 	is 	incongruous 	for 	it 	to 	argue
that 	it 	(a) 	agreed 	to 	an 	off-track 	substitution 	rate 	of 	$7.00 	for
instructional 	assistants 	- 	general, 	and 	(b) 	has 	no 	knowledge 	of
an 	agreement 	for 	an 	off-track 	substitution 	rate 	of 	$6.00 	for
cafeteria 	assistants, 	when 	the 	two 	agreements 	are 	in 	the 	same
document.
This 	inconsistency 	supports 	an 	inference 	of 	validity 	of
March 	25 	Document.
3. 	The 	District's 	claims 	with 	regard 	to 	(a) 	the 	approval
of 	CSEA's 	YRE 	negotiation 	team 	chair 	and 	(b) 	the 	1989
distribution 	of 	the 	Ladybook 	are 	uncorroborated 	claims 	by
involved 	District 	personnel. 	This 	is 	not 	to 	say 	that 	they 	did
not 	testify 	in 	a 	credible 	manner, 	but 	this 	argument 	does 	little
more 	that 	provide 	one 	more 	instance 	of 	each 	side 	insisting 	its
position 	is 	correct.
30

However, 	the 	1990 	and 	1991 	memoranda 	sent 	to 	all 	classified
employees, 	referencing 	the 	Ladybook, 	and 	its 	February 	6, 	1990,
1989-90 	proposal 	regarding 	the 	final 	resolution 	of 	all 	YRE
economic 	issues, 	does 	lend 	some 	support 	the 	District 1 s 	claim 	that
the 	classified 	employees 	and 	CSEA 	should 	have 	known 	about 	this
book.
The 	1990-91 	memoranda 	were 	sent 	out 	within 	two 	years 	of 	the
YRE 	negotiations. 	It 	is 	reasonable 	to 	assume 	that 	YRE 	salary
issues 	were 	still 	being 	addressed 	on 	a 	fairly 	regular 	basis. 	It
is 	unlikely 	two 	memoranda 	describing 	a 	source 	of 	YRE 	information
would 	have 	been 	overlooked 	or 	ignored by 	either 	the 	employees 	or
CSEA.
The 	District 1 s 	statement 	regarding 	the 	final 	resolution 	of
YRE 	economic 	issues 	should 	have 	created 	an 	immediate 	negative
response, 	if 	the 	issue 	of 	non-track 	substitutions 	rates 	was 	still
unresolved.
These 	three 	contemporaneous 	documents 	provide 	support 	for 	an
inference 	of 	validity of 	the 	subject 	document.
4. 	Lodi 	Unified 	School 	District, 	supra, 	PERB 	Decision
No. 	883 1 	concerned 	pre-layoff 	time 	lines 	for 	bus 	drivers. 	The
case 	was 	decided 	on 	a 	warning 	letter 	issued by 	a 	Board 	agent, 	who
based 	his 	determination 	on 	unsworn 	statements 	given 	him 	by 	the
parties. 	In 	summarizing 	the 	information 	he 	received, 	he 	said,
"The 	parties 	also 	have 	an 	agreement 	for 	year-round 	education
issues."
31

It 	is 	unreasonable 	to 	elevate 	this 	one 	comment 	in 	an
unrelated 	case 	to 	a 	res 	judicata 	level, 	thereby 	creating 	an
impact 	on 	this 	case.
This 	position provides 	no 	support 	for 	an 	inference 	of
validity.
Summary
After 	analyzing 	the 	positions 	of 	the 	parties, 	it 	is 	clear
the 	evidence 	weighs 	heavily 	in 	favor 	of 	the 	validity 	of 	the 	March
25 	Document. 	Given 	this 	validity, 	it 	is 	clear 	that 	the 	District
has 	sufficient 	authority 	to 	pay 	its 	food 	service 	workers 	the 	rate
found 	therein, 	rather 	than 	their 	regular 	rate. 	Therefore, 	it 	is
found 	that 	there 	is 	insufficient 	evidence 	to 	support 	an
allegation 	that 	the 	District, 	when 	it 	modified 	the 	off-track
substitution pay 	for 	its 	food 	service 	workers, 	violated
subdivision 	(c) 	of 	section 	3543.5.
PROPOSED 	ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	found 	that 	the 	Lodi
Unified 	School 	District 	did 	not 	violate 	subdivision 	(c) 16 of
Government 	Code 	section 	3543.5 	of 	the 	Educational 	Employment
Relations 	Act, 	when 	it 	modified 	the 	off-track 	substitution 	pay
16Given 	the 	insufficient 	evidence 	in 	support 	a 	violation 	of
subdivision 	(c) 	of 	section 	3543.5, 	the 	allegations 	of 	violations
of 	subdivisions 	(a) 	and 	(b) 	must 	also 	fail. 	There 	was 	no
evidence 	proffered 	regarding 	an 	independent 	violation 	of 	either
of 	these 	subdivisions.
32

for 	its 	food 	service 	workers. 	Therefore, 	it 	is 	ORDERED 	that 	all
aspects 	of 	the 	charge 	and 	complaint 	in 	the 	case 	are 	hereby
DISMISSED.
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 	twenty 	days 	of
service 	of 	this 	Proposed Decision. 	The 	Board 1 s 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	958-4174
FAX: 	(916) 	327-7960
In 	accordance 	with 	PERB 	Regulations, 	the 	statement 	of
exceptions 	should 	identify by 	page, 	citation 	or 	exhibit 	number
the 	portions 	of 	the 	record, 	if 	any, 	relied 	upon 	for 	such
exceptions. 	(See 	Cal. 	Code 	of 	Regs., 	tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5:00 	p.m.) 	on 	the 	last 	day 	set 	for
filing 	or 	when 	mailed 	by 	certified 	or 	Express 	United 	States 	mail,
as 	shown 	on 	the 	postal 	receipt 	or postmark, 	or 	delivered 	to 	a
common 	carrier 	promising 	overnight 	delivery, 	as 	shown 	on 	the
carrier's 	receipt, 	not 	later 	than 	the 	last 	day 	set 	for 	filing.
(See 	Cal. 	Code 	of 	Regs., 	tit. 	8, 	sec. 	32135(a); 	see 	also 	Cal.
Code 	Regs., 	tit. 	8, 	section 	32130.)
A document 	is 	also 	considered 	"filed" 	when 	received 	by
facsimile 	transmission 	before 	the 	close 	of 	business 	on 	the 	last
33

day
	for
	filing,
	together
	with
	a
	Facsimile 	Transmission
	Cover
sheet
	which
	meets
	the 	requirements
	of
	Cal.
	Code
	Regs.,
	tit.
	8,
sec.
	32135(d),
	provided
	the
	filing
	party 	also
	places 	the
	original
together
	with
	the 	required
	number
	of 	copies
	and
	proof 	of
	service
in
	the
	U.S.
	mail.
	(Cal.
	Code
	Reg.,
	tit.
	8,
	secs.
	32135(b),
	(c)
and
	(d); 	see
	also
	Cal.
	Code
	Regs.,
	tit.
	8,
	secs.
	32090
	and
32130.)
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 ,	
sec
. 	3 2 3 OO , 	3 2 3 O5 , 	3 2
14
O
and
	3
213
5 (
c)
. )
Administrative
	Law
	Judge
34