Clovis Unified School District (PERB 1504E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION-CHAPTER 250,
Charging Party,
V.
CLOVIS UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2000-E
PERB Decision No.
	1504
December
	18, 	2002
Appearances: California School Employees Association by Maureen C. Whelan,
Staff
Attorney, for California School Employees Association-Chapter 250; Lozano Smith
by
Richard B. Galtman, Attorney, for Clovis Unified School District.
Before Baker, Whitehead and Neima, Members.
DECISION
WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Clovis Unified School District (District)
of
an
administrative law judge's (ALJ) proposed decision. The charge alleged that the District
violated the Educational Employment Relations Act (EERA) 1 by: (1) conducting an election
for unit employees to "opt out"
of
Social Security and make changes in unit employees'
California Public Employment Retirement System (PERS) benefits; (2) unilaterally changing
the paycheck issuer; (3) denying the California School Employees Association (CSEA) and its
Clovis Chapter 250 (Chapter 250)
of
their rights as the exclusive representative by, inter alia,
communicating directly with unit employees; (4) failing to meet and negotiate with CSEA
1EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

regarding Social Security participation, paycheck issuer and the unit employees' contract
arrangement with PERS; (5) informing unit employees directly that they can opt out
of
Social
Security, which CSEA alleges is an illegal act; and, (6) circumventing CSEA concerning an
agreement to conduct an election for unit employees to opt out
of
Social Security and PERS.
By letter dated January 4, 2001, CSEA withdrew the charges regarding the paycheck issuer. In
its amended charge, CSEA alleged that this conduct constituted violations
of
EERA section
3543.5 (a), (b) and (c).2
In its charge, as amended, CSEA alleges that the District conducted meetings in June
2000, to explain to unit employees the benefits
of
opting out
of
the Social Security system, and
conducted an election on October
9,
2000 for employees to vote on the status
of
retirement
benefits for aii unit members. Before the June 2000 meetings, the District issued mailers to
unit employees for their signatures containing an estimate
of
their Social Security retirement
benefits. 	The election, which took place from October 9 to October 11, 2000, allowed unit
employees to determine by majority vote whether to continue their participation in Social
2Section 3543.5 provides, in pertinent part:
It shall be unlawful for a public school employer to do any
of
the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise
of
rights guaranteed by this chapter. For
purposes
of
this subdivision, "employee" includes an applicant
for employment or reemployment.
(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

Security and PERS through the Central Valley Support Services Joint Power Agency (JPA).
The charge further alleges that after October 11, 2000, when the votes were counted, the
District removed bargaining unit members from the Social Security system and changed their
PERS benefits without prior notice to CSEA or without providing CSEA with an opportunity
to negotiate this change in benefits. As derivative violations, CSEA further alleges that the
above conduct interfered with unit members' rights to be represented by their exclusive
representative and denied CSEA its right to represent unit employees. The ALJ dismissed the
charge regarding the June 2000 meetings but found the District's actions involving the October
2000 election violated EERA. The District filed exceptions to the
ALJ's
finding
of
a violation.
After reviewing the entire record in this matter, including the charge and amended
charge, the compiaint, the parties' post-hearing briefs, the proposed decision, the
District's
statement
of
exceptions and CSEA's response to the District's exceptions, the Board affirms
the
ALJ's
proposed decision in line with the following discussion.
BACKGROUND
CSEA and its Chapter 250 is an employee organization under EERA section
3540.l(d)
and is the exclusive representative for a blue collar unit
of
classified employees under
EERA
section 3540.l(e). The District is a public school employer within the meaning
of
section
3540. l(k).
At some time before February 1999, the District contracted to participate with other
school districts in the JP A, for the purpose
of
providing support services to the member
districts.3 The District believed that it would receive a financial benefit from its participation
3The JP A's bylaws, as revised February 5, 2000, state in pertinent part:
3

in the JP A in that it would not have to reimburse the State
of
California's (State) contributions
to PERS for unit employees.4 The JPA is not subject to State recapture
of
the funds but
instead, pays its PERS contribution directly under contract with PERS for a different
categorical grouping than school districts. Therefore, the District believes that by using the
JP
A's
services, the State would not reduce the District's revenue limits and the District would
thereby receive a revenue gain. 5
8.1
	The administration
of
the program and facilities
of
the CVSS
shall be vested in with each participating agency which shall be
charged with the responsibility
of
conducting the programs
according to the rules and regulations adopted by the CVSS and
the member educational agencies.
8.5 Each employee
of
CVSS must be sponsored by a member
agency. The CVSS employee's employment/working practices,
salary and benefit schedules will be that
of
the sponsoring
educational agency.
4Annually, the State recaptures its PERS contribution on behalf
of
the District
by
a
prescribed amount through a reduction in State aid to the District based on the number
of
students, otherwise known as "revenue limits." Computation
of
"revenue limits" is based upon
a formula accounting for the number
of
classified employees in a school district, i.e., the
"payroll subject to PERS." (See Ed. Code sec. 42238.12.)
5Sometime in 1999, CSEA apparently sought a legal opinion from the Legislative
Counsel's Office regarding the legality
of
the JP A. In its request, CSEA explained that the
stated purpose
of
the JP A was to allow its member districts to avoid a decrease in the revenue
limit. Although the Legislative Counsel believed that the formation
of
the JPA was legal, it
also concluded that, under section 8.5
of
the JP A bylaws, each sponsoring school district
retains full control over all aspects of employment
of
its sponsored employees. The JP A would
merely perform payroll functions. The Legislative Counsel further stated that
if
the District
retains essentially all employer functions, as stated in the bylaws, then the relationship between
the JP A and the sponsored employees did not appear to be that of an employer/employee
relationship. Under these circumstances, the Legislative Counsel opined that the District's
retention of funds, which the State would othenvise recapture, would contravene the
Legislature's intent with regard to Education Code section 42238.12, that school districts
neither be enriched by the revenue limit calculations nor bear the increased costs in years when
the PERS contribution rate exceeds 13.020 percent.
4

In April 1999, in its proposed reopener under the existing collective bargaining
agreement (CBA), the District sought to change the management rights provision of the CBA
to reflect its participation in the JP A and the impact on unit employees. 	The District intended
that unit members become employees of the JP A. 	CSEA' s position was that unit members
remain employees of the District. The parties reached impasse over this issue and proceeded
to mediation. Unable to reach agreement, CSEA filed an unfair practice charge with PERB
(Case No. SA-CE-1945-E), for which a complaint was issued and the District filed a
declaratory relief action in Fresno County Superior Court. The parties ultimately settled the
dispute via a settlement agreement, signed on March 2, 2000. The agreement contains the
following pertinent provisions:
1. The parties agree that the current collective bargaining
agreement between them, and more particularly Article VIII
(Management Rights), shall be modified to allow CUSD to
sponsor the unit employees into the Central Valley Support
Services Joint Powers Agency (CVSS JPA).6
2. The unit employees shall be sponsored into the CVSS JP A
effective after July 1, 2000.
3. All unit employees sponsored into the CVSS JP A shall
maintain all rights and benefits derived from the collective
bargaining agreement between CUSD and CSEA including but
not limited to wages, hours, and working conditions. All unit
employees sponsored into the CVSS JP A shall have their wages,
hours and working conditions controlled by the collective
bargaining agreement between CUSD and CSEA, and shall retain
all rights and benefits they have as CUSD employees under the
law. Collective bargaining of the wages, hours and terms and
conditions of employment for all unit employees sponsored into
the CVSS JP A shall be by and between CUSD and CSEA. The
term "Collective bargaining" as used here, includes but is not
limited to, negotiations, contract administration, grievance
processing, PERB matters, and resolution of employment
disputes.
6The settlement agreement does not provide a definition of the word "sponsor."
5

4. CUSD understands and agrees that CUSD is the employer of
the sponsored unit employees for the purposes of compliance
with the rights and duties under the collective bargaining
agreement and the EERA and for PERB jurisdiction. CUSD
agrees that it will not raise any objection to PERB's jurisdiction
on the basis of its relationship to the CVSS JP A. CUSD agrees to
be bound by EERA, PERB precedent and PERB rules.
5. If this agreement and/or the agreement between CUSD and
CVSS JP A are ultimately found by a court of competent
jurisdiction to be illegal, the unit employees sponsored into the
CVSS JP A by CUSD shall no longer be sponsored into the CVSS
JP A and shall be deemed to be employed by CUSD for all intents
and purposes. At that time, the unit employees shall have the
same rights and benefits and be employed on the same terms and
conditions as negotiated by CUSD and CSEA, as if the agreement
between CUSD and CVSS JP A never existed.
6. If CUSD ever withdraws from the CVSS JP A, the unit
employees sponsored into the CVSS JP A by CUSD shall no
longer be sponsored into the CVSS JP A and shall be deemed to
be employed by CUSD for all intents and purposes. At that time,
the unit employees shall have the same rights and benefits and be
employed on the same terms and conditions as negotiated by
CUSD and CSEA, as if the agreement between CUSD and CVSS
JP A never existed.
On April 26, 2000, the parties signed a new CBA for the period of July 1, 2000 to
June 30, 2003. In Article VIII, Management Rights, section C, the CBA states that "the
District shall have the right and authority to sponsor the CUSD operations unit employees into
the Central Valley Support Services Joint Powers Agency (CVSS JP A)." Article VIII, Section
C, 1 - 3 of the CBA essentially reiterate sections 3 - 6 of the settlement agreement, above.
There is no further mention of the JP A or definition of the term "sponsorship" in the CBA.
In early June 2000, the District conducted meetings at which Bill McGuire (McGuire),
the District's associate superintendent for business, made a PowerPoint presentation to unit
employees covering impact of the District's participation in the JP A, including the effect on
6

PERS and Social Security benefits. Ricardo Ornelas (Ornelas), CSEA's labor relations
representative in the Fresno field office, attended one of these meetings. Roger Krueger
(Krueger), the Chapter 250 president, helped McGuire to develop the presentation and Bill
Pedersen (Pedersen), Chapter 250's vice-president, assisted McGuire as a co-presenter.
Following the presentations, there was a flurry of correspondence between Ornelas and
various District representatives regarding, among other matters, CSEA's objection to the
District identifying the JP A as the employer for all legal purposes. Of significance, by letter
dated August 7, 2000, Ornelas wrote District Superintendent Walter Buster (Buster)
demanding that the District cease and desist from unilaterally changing CSEA unit members'
contract arrangement with PERS without negotiating with CSEA and informing the District
that "opting out" of Social Security was not only negotiable but also possibly illegal. 	Ornelas
threatened to file an unfair practice charge against the District in the absence of an affirmative
response by August 18, 2000.
On June 30, 2000, the District issued letters to each unit employee regarding Social
Security benefits to be used in a meeting with the District's retirement consultant, American
Fidelity. By letter dated July 26, 2000, each employee was then scheduled to meet with
American Fidelity to discuss personal retirement and investment options. These meetings
occurred in late July for employees who wished to attend.
District Counsel, Richard Galtman (Galtman), by two letters dated August 15, 2000,
responded to Ornelas objections. In one letter, citing section 8.5 of the JPA bylaws, Galtman
stated that the employees sponsored into the JP A are required to be JP A employees for all
purposes not delineated by the March 2, 2000 agreement. As PERS and Social Security were
not part of the March 2 agreement and these are employer functions, Galtman asserted that the
7

District need not negotiate issues pertaining to PERS and Social Security. Galtman further
explained that as a newly created entity, the JP A may opt out of the Social Security system and
that opting out of Social Security benefits both the employer and employees. He stated that the
decision to opt out of Social Security was to be made by the employees, not CSEA. He further
declared that the District had not implemented anything yet. In the other August 15 letter,
Galtman invited CSEA to provide legal support for its position that opting out of Social
Security was illegal.
By letter dated September 20, 2000, CSEA staff attorney Maureen Whelan (Whelan)
provided a legal analysis supporting CSEA's view that opting out of Social Security was
illegal. Whelan asserts that the District is the employer for this purpose, citing Article VIII of
the CBA. It is therefore apparent from the correspondence between the parties that the
underlying dispute on this issue involves the identity of the employer for these purposes; and
the legality of opting out rests on whether the employer is the District or the JP A.
On September 26, 2000, the parties commenced negotiations on reopeners. There were
no proposals from either side regarding the JPA, Social Security or PERS benefits. On
September 28, 2000, Ornelas mailed to each District board member a packet of materials sent
to unit members regarding the illegality of opting out of Social Security and the disadvantages
to employees of opting out of Social Security.
By letter dated October 9, 2000, the District mailed ballots to unit employees designed
to implement JP A retirement benefits programs. Attachments included a ballot to join PERS
as "miscellaneous" employees of the JP A, a summary of PERS benefits for "local
miscellaneous members," a ballot for coverage under PERS 1959 survivor benefits (an option
affecting Social Security coverage), and a ballot for coverage under Social Security. Both
8

McGuire and Krueger signed the October 9 letter. Also by letter dated October 9, Krueger
resigned his position as Chapter 250 president effective immediately.
Additionally, on October
9,
Ornelas faxed a letter to District Superintendent Buster
protesting the election. Ornelas also wrote that Krueger had resigned his position and had no
authority to represent the bargaining unit. He contends that the October 9 ballot cover letter
from the District was not a proper contractual agreement, and was not ratified in compliance
with the CBA and CSEA internal policies. He also asserts that negotiation
of
the JP A
sponsorship was neither proposed as a reopener nor "sunshined" by the District to the public,
which is required by law. Ornelas finally claims that CSEA had already formally notified the
District that dropping out
of
Social Security was illegal. Ornelas concludes by asking the
District to cease and desist taking uniiateral action, to formally disregard the ballots to unit
employees, and that absence
of
an affirmative response by October 13, 2000 would result in
filing an unfair practice charge with PERB.
At the hearing before the ALJ, Ornelas testified that he was surprised that Krueger
signed the October 9 District ballot letter. He also reiterated his view that Krueger lacked the
authority to sign the letter on behalf
of
CSEA. Besides the fact that Krueger resigned his
position as Chapter 250 president on that date, Ornelas referred to CSEA Policy 610. 	Policy
610 requires that a tentative agreement be submitted to the labor relations representative
assigned to the chapter, who with his/her field director, reviews the agreement and issues a
recommendation to the chapter president stating approval or disapproval, before the unit
members may convene to ratify or reject the agreement.7 At the hearing, Krueger testified to
7Policy 610 states, in pertinent part:
.3 Negotiated Agreement
9

.02 Every contract shall be executed
by
both
the State
Association and its chapter, except as herein provided .
.03 No chapter shall enter into a collective bargaining agreement
or
approve any subsequent modification
thereof
until a formal
ratification vote has been taken
in
accordance with procedures set
forth herein .
.4 Ratification Meeting
.01 	When the negotiating committee (by whatever name) has
negotiated a contract or modifications to an existing contract it
shall, prior to submitting the Tentative Agreement to the
bargaining unit members for ratification or rejection, submit one
copy
to the Labor Relations Representative assigned to the
chapter .
.02 Upon receipt
of
the Tentative Agreement the Labor Relations
Representative shall immediately review the same with his/her
Field Director.
.03 The Field Director shall forward to the Chapter President,
without delay, a recommendation stating approval or disapproval
by
the State Association.
	If
the recommendation is for
disapproval, the Field Director shall include the specific reasons
as to
why
such a recommendation is being made. In cases where
a verbal recommendation is necessary, the Field Director shall
immediately follow up such verbal recommendation in writing to
the Chapter President. All recommendations shall
be
provided in
writing to the Chapter President prior to the ratification meeting .
. 04 Upon receipt
of
the aforementioned recommendation (either
verbal or written) from the Field Director, the Chapter President,
in accordance with Article XII, Section 3
of
the State Bylaws,
shall call a meeting
of
all members
of
the bargaining unit(s) at
which the leadership shall outline all the provisions
of
the
Tentative Agreement and provide adequate opportunity for
discussion, debate, and answering
of
questions, prior to the
ratification vote .
.06 In addition to the meeting notice, the chapter shall provide
each CSEA member
of
the bargaining unit(s): 	(1) a copy
of
the
Tentative Agreement, or a summary
of
the Tentative Agreement;
and (2) a statement as to whether or not the Negotiating
Committee recommends ratification or rejection of the

knowledge
of
CSEA ratification procedures. Krueger discussed his familiarity with the CSEA
Chapter 250 Constitution and Bylaws, approved by the State CSEA office with his knowledge
in 1991. The Chapter 250 Constitution and Bylaws, Article XI, Collective Bargaining,
reiterates the Policy 610 protocol for ratifying tentative agreements and even refers to Policy
610.8 The District's Deputy Superintendent for Administrative Services, Terry Bradley,
acknowledged that he and Krueger would contact the CSEA labor relations representative upon
reaching a tentative agreement and admitted that Parks, CSEA field office director, once
warned him not to speak with the chapter leadership when Field Director Parks was not
present.
During the hearing, Krueger testified that he had agreed to the election after the unit
employees had been informed
of
their options. He had wanted unit employees to have as much
information as possible. He also stated that he did not believe that the issues involving Social
Security and PERS had been resolved by the settlement agreement, but that these issues would
be settled in the court system.
The election closed on October 11, 2000, and Pedersen assisted District officials in
counting the ballots.
	Of
634 ballots distributed, 497 employees, or 78.39 percent voted; 	94.37
Agreement, and the State Association's recommendation
if
for
rejection .
.8 Failure to Adhere to Policy. Should chapter officers fail to
adhere to this policy, it shall be grounds for their expulsion from
membership or removal from office under Section 7, Article II
of
the Constitution upon charges being brought and sustained by the
Board of Directors that they have willingly and knowingly
violated the provisions
of
Policy 610.
8CSEA submitted three examples showing the operation of this protocol by letters from
Michael Parks (Parks) to Krueger and Pedersen dated May 5, 1997, October 23, 2000, and
November 27, 2000.
11

percent voted to remain in PERS and 52.32 percent voted to opt out
of
Social Security. The
District's eiection resuits handout indicated that the results would be sent to the JPA board and
PERS.
On October 19, 2000, the parties reached a tentative agreement to amend the CBA.
This agreement made no reference to the JP A.
The District acknowledges that the unit employees have not yet been sponsored into the
JP A and so are still employees
of
the District.9 Both parties, therefore, agree that the District,
at this time, is the employer
of
the unit employees.
ALI'S
Proposed Decision
The ALJ found that wages and future benefits
of
those still employed are within the
scope ofrepresentation. (See Sec. 3543.210
; Jefferson School District (1980) PERB Decision
9However, following the publication
of
the October
11
election results, the District,
with CSEA's knowledge, sponsored non-unit employees into the JPA. 	(R.T., vol.
I,
	p. 78 -
80; p. 155.)
10
Section 3543.2 provides, in pertinent part:
(a) The scope ofrepresentation shall be limited to matters
relating to wages, hours
of
employment, and other terms and
conditions
of
employment. "Terms and conditions
of
employment" mean health and welfare benefits as defined by
Section 53200, leave, transfer and reassignment policies, safety
conditions
of
employment, class size, procedures to be used for
the evaluation
of
employees, organizational security pursuant to
Section 3546, procedures for processing grievances pursuant to
Sections 3548.5, 3548.6, 3548. 7, and 3548.8, the layoff
of
probationary certificated school district employees, pursuant to
Section 44959.5
of
the Education Code, and alternative
compensation or benefits for employees adversely affected by
pension limitations pursuant to Section 22316
of
the Education
Code, to the extent deemed reasonable and without violating the
intent and purposes of Section 415 of the Internal Revenue Code .
. . . All matters not specifically enumerated are reserved to the
12

No. 133; Mt. Diablo Unified School District (1983) PERB Decision No. 373.) He further
determined that, since the unit employees had not been sponsored into the JP A and therefore
remained employees
of
the District, a public school employer, the dispute is within PERB
's
jurisdiction. (See North Orange County Regional Occupational Program (1990) PERB
Decision No. 857.)
With regard to the June 2000 meetings, the ALJ found that there was no bypass
of
the
exclusive representative. (Muroc Unified School District (1978) PERB Decision No. 80;
Walnut Valley Unified School District (1981) PERB Decision No. 160.) He reasoned that
Ornelas attended one
of
the meetings and neither he nor others at the field office objected to
the District meeting with the employees. Krueger assisted in organizing the meetings and in
creating the design
of
the presentations. Pedersen acted as a co-presenter at these meetings.
As both the CSEA field office and Chapter 250 officials in some way participated in the
meetings and did not object to the meetings, the District did not bypass CSEA, or derogate or
undermine CSEA' s authority. These meetings also did not result in the creation
of
a
new
policy or modification
of
an existing policy.
With respect to the election, however, the ALJ found that the District bypassed CSEA.
Social Security and PERS benefits are within the scope
of
representation and the District
cannot conduct the election in the face
of
CSEA's objections. The fact that the CBA does not
clearly refer to these benefits does not detract from the fact that their existence represents the
status quo. The employer cannot change the status quo on items within scope without first
public school employer and may not be a subject of meeting and
negotiating, provided that nothing herein may be construed to
limit the right of the public school employer to consult with any
employees or employee organization on any matter outside the
scope of representation.
13

complying with EERA requirements. The ALJ found that the District both created a new
policy and modified an existing policy by deleting Social Security and changing the
employees' status in PERS.
The ALJ also disagreed with the District's contention that the approval by Chapter 250
officers
of
the election was sufficient to prevent bypass. The certification for the classified
employees at the District is for CSEA and the local Chapter 250. (See Fairfield-Suisun
Unified School District (1980) PERB Decision No. 121.) Once CSEA had notified the District
of
its objections, even
if
contrary to the position
of
the local chapter, by conducting the
election, the District violated its obligation to the exclusive representative. In fact, CSEA
repeatedly informed the District
of
its belief that opting out
of
Social Security was illegal and
had done so as early as the negotiations leading up to the March 2, 2000 settlement agreement.
The ALJ thus concluded that the District's actions violated CSEA's rights to represent unit
members in violation
of
Section 3543.5(b) and thereby violated the unit employees' right to be
represented under Section 3543.5(a).
The ALJ also determined that the District's actions constituted a unilateral change in
violation
of
Section 3543.5(c). The ALJ utilized a "per se" test to find a unilateral change.
(Stockton Unified School District (1980) PERB Decision No. 143.) He determined that the
District implemented a change in policy within the scope
of
representation and the change was
implemented before the employer notified the exclusive representative and gave it an
opportunity to request negotiations. 	(Walnut Valley Unified School District (1981) PERB
Decision No. 160; Grant Joint Union High School District (1982) PERB Decision No. 196.)
Although the District had not yet sponsored unit employees into the JP A, it announced
its intent to sponsor the employees into the JPA, depending upon the outcome of this case. 	In
14

fact, the District had already sponsored other District employees into the JP A. The District
also expressed a clear intent to change the policies regarding Social Security and PERS
by
conducting the election. The ALJ also disagreed with the District's contentions that its
agreement with Chapter 250 to conduct the election was consistent with past practice or that
the consent
of
the CSEA field office was not required in order to hold the election. The ALJ
concluded that the District was clearly aware
of
CSEA's opposition to any unilateral changes
to the unit's benefits.
The District excepted to the ALJ's findings that the October 9 election constituted an
illegal bypass
of
CSEA, that the election and intended changes in Social Security and
PERS
benefits comprised a unilateral change in items within the scope
of
representation, and that the
District's conduct also interfered with unit employees' rights to representation.
DISCUSSION
The District is a "public school employer" under BERA section 3540.1 (k). Although
originally at issue, it is undisputed that, as
of
the dates
of
the charge and hearing before the
ALJ, the District, not the JP A, was the employer
of
the unit employees. Therefore, it is not
necessary to address whether the unit employees would become employees
of
the JP A once the
District sponsored them into the JP A.
11
The Board thus retains jurisdiction over this matter
11
Both parties and the ALJ cite North Orange County Regional Occupational Program
(1990) PERB Decision No. 857 (North Orange County) for the proposition that joint powers
agencies are not subject to PERB jurisdiction. It is troubling that a group
of
school districts
may legally join together in a way that evades BERA and results in the loss
of
employees'
statutory rights. (See also, the Board's analysis in Joint Powers Board
of
Directors, Tulare
County Organization for Vocational Education, Regional Occupational Center and Program
(1978) PERB Decision No. 57 overturned by North Orange County.) The dissent in North
Orange County opined that a proper statutory interpretation should promote, rather than defeat,
"the legislative purpose and policy underlying a statutory scheme." ( citations omitted.) 	The
JP A bylaws, as confirmed by District witness testimony, provide that JP A member districts
retain control over all employment matters. This fact would become particularly significant in
15

and does not at this time need to address the issue
of
Board jurisdiction over sponsored
employees.
The key issues on appeal before the Board involve the events surrounding the
October 9, 2000 election held by the District and the District's stated intent to use the election
results to modify unit employees' Social Security and PERS benefits. The ALJ agreed
with
CSEA's allegations that the District, by conducting this election, unilaterally changed items
within the scope
of
representation without notifying CSEA or providing CSEA the opportunity
to bargain, bypassed CSEA by dealing directly with unit employees, and interfered with unit
employees' right to be represented
by
its exclusive representative, CSEA, in violation
of
EERA section 3543.S(c), (b) and (a), respectively. In its exceptions, the District disagrees with
the ALJ' s finding that those actions violated EERA. The issues excepted to
by
the District are
discussed individually below.
Unilateral Change
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met. 	Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope ofrepresentation, and (2) the change was implemented
before the employer notified the exclusive representative and gave it an opportunity to request
any Board review of the above jurisdictional issue. Interestingly, the Legislative Counsel's
Opinion reached a similar conclusion regarding the stated purpose and operative effect
of
the
Central Valley Support Services Joint Powers Agreement and bylaws on the statutory
requirements of Education Code section 42238.12.
16

negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.)
1.
	Scope
of
representation
There is as
of
yet no PERB decision pertaining to whether Social Security and PERS
benefits are within the EERA scope
of
representation, 12 but the question is easily handled
under well-established precedent. The first federal case to hold that retirement benefits are a
mandatory subject
of
bargaining was Inland Steel Company (1948) 77 NLRB
1,
enforced
(ih
Cir. 1948) 170 F.2d 247, cert. denied, (1949) 336 U.S. 960 (Inland Steel Co.). In Inland Steel
Company, the National Labor Relations Board held that pension benefits are "wages" under a
broad interpretation
of
section 9(a)
of
the National Labor Relations Act because such benefits
also accrue to employees due to their employment relationship; i.e., they simply comprise
another form
of
compensation for employees' personal services. Social Security and PERS
benefits both require employer and employee contributions to the applicable funds and so
12
EERA section 3543.2 defines scope ofrepresentation and provides, in pertinent part:
(a) The scope ofrepresentation shall be limited to matters
relating to wages, hours
of
employment, and other terms and
conditions
of
employment. "Terms and conditions
of
employment" mean health and welfare benefits as defined by
Section 53200, leave, transfer and reassignment policies, safety
conditions
of
employment, class size, procedures to be used for
the evaluation of employees, organizational security pursuant to
Section 3546, procedures for processing grievances pursuant to
Sections 3548.5, 3548.6, 3548.7, and 3548.8
....
All matters not
specifically enumerated are reserved to the public school
employer and may not be a subject of meeting and negotiating,
provided that nothing herein may be construed to limit the right
of the public school employer to consult with any employees or
employee organization on any matter outside the scope of
representation.
17

embody both deferred wages and a reduction
of
employees' wages. Therefore, the election for
retention
of
Social Security benefits and change in status
of
PERS benefits is a mandatory
subject
of
bargaining. This conclusion is consistent with the Board's decisions in Jefferson
School District (1980) PERB Decision No. 133 (at pp. 13-14
13
and pp. 47-48) (Jefferson) and
Temple City Unified School District (1989) PERB Decision No. 782, regarding the mandatory
status
of
retirement benefits in general.
2.
	Change in Policy
The District asserts that the October 9 election and subsequent announcement to carry
out its results were merely an implementation
of
the settlement agreement. The District's
argument essentially alleges that, through the provisions in the settlement agreement, CSEA
has waived its right to negotiate changes in Social Security and PERS benefits. (See e.g.,
Grossmont Union High School District (1983) PERB Decision No. 313; Chico Unified School
District (1983) PERB Decision No. 286.) However, such waiver must be clearly and
unequivocally conveyed. (Oakland Unified School District (1982) PERB Decision No. 236;
San Francisco Community College District (1979) PERB Decision No. 105.) CSEA,
on
the
other hand, contends that the settlement agreement and reiterative CBA provisions should be
13
Quoting liberally from Inland Steel Company, the Board in Jefferson opined that the
term "wages" in BERA section 3543.2:
...
must be construed to include other forms
of
economic benefit
arising out of the employment relationship. There is an
inseparable nexus between an employee's current compensation
and his future economic welfare and security. Where deductions
from wages are applied to annuities, savings bonds, or other
programs designed to enhance the employee's current or future
economic status, they become an integral part of the
compensation structure and are no less a matter of employee-
employer concern than is the basic wage rate. (Fn. omitted;
emphasis added, p. 13.)
18

interpreted according to their labor law meaning. (Brant
v.
California Dairies, Inc. (1935) 4
Cal. 2d 128, 133; Mission Valley East, Inc.
v.
County
of
Kern (1981) 120 Cal. App. 3d 89, 97
[174 Cal.Rptr. 300]; Witkin, Summary
of
California Law 9 th ed. section 684; Civ. Code section
1645.)
Under PERB precedent, PERB must interpret collective bargaining agreements
according to their plain meaning
if
the language is clear. (Trustees
of
the California State
University (1996) PERB Decision No. 1174-H; Marysville Joint Unified School District
(1983) PERB Decision No. 314.)
If
the language is ambiguous, then the Board may consider
extrinsic evidence, such as bargaining history. 	(Los Angeles Unified School District (1984)
PERB Decision No. 407.) In this case, the settlement agreement and parallel CBA provisions
cieariy require the parties to negotiate wages, hours and working conditions. Social Security
and PERS are not specifically mentioned either in the JP A bylaws or in the CBA; however,
unit employees' participation in the Social Security system and in PERS is the undisputed
status quo. Therefore, the election and the District's stated intent to implement the results
of
the election constitute evidence
of
the District's plan to change those retirement benefits.
The District further asserts that no action has yet been taken, i.e., that it has not
sponsored employees into the JPA or eliminated or changed unit employees' Social Security or
PERS benefits. In other words, the District argues, the issue
of
unilateral change in this case is
not ripe for Board resolution. The Board stated in Milpitas Unified School District (1997)
PERB Decision No. 1234 that in a unilateral change case, the statute oflimitations commences
on the date the charging party has actual or constructive notice
of
the respondent's clear intent
to implement the change in policy and no subsequent wavering of respondent's intent, citing
Cloverdale Unified School District (1991) PERB Decision No. 911. The Board further opined
19

that the charging party need not await actual implementation of the change in policy to file a
charge and should not rest on its rights, citing Mt. Diablo Unified School District (1994) PERB
Decision No. 1034. When the District conducted the election, published its intent to send the
results to the JP A board of directors and to PERS without negotiating first with CSEA, and
proceeded to sponsor non-unit employees into the JPA, CSEA had actual notice of the
District's intent to make the change.
3. Prior notification of exclusive representative
The District argues that the chapter officers participated in and approved of the District
conducting the election and therefore, it not only provided advance notice to Chapter 250, as
the exclusive representative, but Chapter 250 was cooperating with the District throughout the
election process. The District further claims that it was unaware that the CSEA field office
needed to ratify Chapter 250's agreement to the election. CSEA asserts that the Chapter 250
leadership and District representatives were aware of CSEA Policy 610 and the Chapter 250
Constitution, which incorporates the ratification provisions of Policy 610. 	CSEA notes that the
certification for the bargaining unit is CSEA and its Chapter 250, so that CSEA and the chapter
are really one and the same. (Fairfield-Suisun Unified School District ( 1980) PERB Decision
No. 121.)
We conclude that the District did not provide prior notice to CSEA before it held the
election and announced its intention to implement the election results. The CSEA field o~fice
represents unit members in negotiations for the CBA and is an essential component of the
ratification process under Policy 610 and Chapter 250's constitution. CSEA Policy 610
requires that local chapters submit tentative agreements for review. The CSEA field office
reviews and issues its recommendation to the chapter to either vote to ratify or reject the
20

tentative agreement. At the ratification meeting, a CSEA field representative attends to explain
and discuss CSEA's position with the unit members before they vote. Moreover, Deputy
Superintendent Bradley, a District negotiator, testified to his awareness of the need to
communicate tentative agreements to the CSEA field representative, including proposed
agreements on wage reopeners. Chapter 250 President Krueger testified to his knowledge of
Policy 610. Bradley also acknowledged that CSEA Field Director Parks had advised him not
to speak with Chapter leadership when Parks was not present. CSEA further provided
correspondence showing the parties' past practice of submitting tentative agreements to CSEA
for ratification under Policy 610.
In the CBA, the exclusive representative is listed as CSEA and its Chapter 250.
Therefore, under Fairfield-Suisun Unified School District (1980) PERB Decision No. 121, the
District must provide advance notice of its actions to both entities. In this case, the District
and Chapter 250 did not invoke the ratification process by forwarding the proposed agreement
to conduct the election and implement the election results to CSEA. The District thereby did
not provide the required advance notice to CSEA.
4. Opportunity to request negotiations
Again, the District contends that the Chapter 250 officials agreed to the election and
that there is no past practice regarding the need for CSEA field office consent. As stated
above, we conclude that there is such a practice and policy requiring CSEA field office review.
The District also asserts that CSEA did not object to the election until the ballots were
issued, citing various cases for the principle that the District had no obligation to bargain
unless CSEA made a demand to bargain. However, the CSEA field office did not learn of the
election until October 9, with the receipt of the October 9 letter signed by McGuire and
21

Krueger and enclosed ballots. 14 Upon receipt of the October 9 letter, CSEA immediately faxed
its opposition and demand to bargain to the District. In addition, previous correspondence
between CSEA and District negotiators addressed CSEA's opposition to the District's
elimination of Social Security benefits of unit employees on the basis that such action is
illegal. Clearly CSEA had historically opposed the District's actions to alter unit members'
retirement benefits. CSEA also had no advance notice of the election but immediately
objected and demanded the right to negotiate upon learning of its happening. 	In addition, we
disagree with the District's contention that CSEA opposed the elimination of Social Security
benefits but not the election process itself and so did not effectively request negotiations. 	This
contention entails a "distinction without a difference."
By conducting the election and announcing its intent to implement the results, the
District thereby violated EERA section 3543.S(c).
Bypass
The District incorrectly maintains that a bypass violation only involves employer denial
of union access to unit members. Rather, under PERB precedent, an employer may not
communicate directly with employees to undermine or derogate the representative's exclusive
authority to represent unit members. (Muroc Unified School District (1978) PERB Decision
No. 80.) Similarly, the employer violates the duty to bargain in good faith when it bypasses
the exclusive representative to negotiate directly with employees over matters within the scope
ofrepresentation. (Walnut Valley Unified School District (1981) PERB Decision No. 160.)
However, once a policy has been established by lawful means, an employer has the right to
14Under this analysis, Krueger's resignation on October 9 and the resulting impact on
his authority to represent CSEA become irrelevant.
22

take necessary actions, including consulting with employees, to implement the policy. (Id.)
To establish that an employer has unlawfully bypassed the union, the charging party must
demonstrate that the employer dealt directly with its employees: (1) to create a new policy
of
general application, or (2) to obtain a waiver or modification
of
existing policies applicable to
those employees. (Id.)
The District's reliance on State
of
California (Franchise Tax Board) (1992) PERB
Decision No. 954-S (Franchise Tax Board) is inappropriate. In Franchise Tax Board, the
Board held that the Association did not provide sufficient evidence to show that adverse
actions against an Association steward, which were adjudicated before the employer, interfered
with the Association's right to represent its members. The Board has found interference with
union rights in cases where the employer has circumvented the exclusive representative and
dealt directly with unit members, as in the case here. (Muroc Unified School District (1978)
PERB Decision No. 80, pp. 19-21; Modesto City Schools (1983) PERB Decision No. 291, pp.
48-51.) Refusal to bargain in good faith has also resulted in derivative violations
ofEERA
section 3543.5(a) and (b) for interfering with the rights
of
unit employees to be represented by
the exclusive representative and for denying the exclusive representative the right to represent
its members, respectively. (State
of
California (Department
of
Youth Authority) (2000) PERB
Decision No. 1374-S; State
of
California (Department
of
Corrections) (2000) PERB Decision
No. 1381-S.) As discussed above, the District was aware
of
its obligation to notify the CSEA
field office in advance
of
its decision to conduct the October 9 election and implement the
results, and to provide CSEA with the opportunity to negotiate. The October 9 cover letter to
unit members and the concurrence of Chapter 250 officials was insufficient notice to CSEA in
light of CSEA Policy 610, the Chapter 250 Constitution, and the parties' past practice
of
23

communicating tentative agreements to the CSEA field office. In the face
of
CSEA's
expressed opposition to the elimination
of
Social Security benefits, the District's failure to
notify CSEA
of
the election and the decision to implement the results constitute interference
with CSEA's right to represent unit employees in violation
ofEERA
section 3543.S(b).
Denial
of
Employees' Right to be Represented by Union
The District argues that CSEA did not establish interference under EERA section
3543.S(a) because it did not prove all elements
of
a violation. However, the cases cited
by
the
District involve the elements for a showing ofretaliation or discrimination, not interference.
15
The test for whether a respondent has interfered with the rights
of
employees under
EERA
does not require that unlawful motive be established, only that at least slight harm to employee
rights results from the conduct. The Board described the standard as follows:
[I]n order to establish a prima facie case
of
unlawful interference,
the charging party must establish that the respondent's conduct
tends to or does result in some harm to employee rights granted
under EERA. [State
of
California (Department
of
Developmental
Services) (1983) PERB Decision No. 344-S, citing Carlsbad
Unified School District (1979) PERB Decision No. 89; Service
Employees International Union, Local 99 (Kimmett) (1979)
PERB Decision No. 106.]
In this matter, the District did not notify CSEA
of
the October 9 election or
of
its plan
to implement the election results in advance
of
taking these actions. The District further did
not provide CSEA the ability to negotiate with the District regarding its actions.
15
The District incorrectly cited Novato Unified School District (1982) PERB Decision
No. 210 (Novato), which actually distinguishes the standard required for "interference" under
section 3543.S(a) from that for "discrimination." (Novato, p. 5, fn. 7.)
24

Consequently, the District interfered with unit members rights to representation under EERA
section 3543.5(a).
16
ORDER
Based upon the foregoing findings
of
fact and conclusions
oflaw,
and the entire record
in this case, it is found that the Clovis Unified School District (District) violated the
Educational Employment Relations Act (BERA), Government Code section 3543.5(a), (b) and
(c),
by
its conduct in bypassing the exclusive representative in dealing with unit employees and
by unilaterally altering retirement benefits.
Pursuant to EERA section 3541.S(c) it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.
	Bypassing the California School Employees Association-Chapter 250
(CSEA) and dealing directly with unit employees on terms and conditions
of
employment or
unilaterally changing terms and conditions
of
employment without affording CSEA an
opportunity to negotiate or until completion
of
the statutory impasse procedures.
2. 	Denying unit employees their rights to be represented by CSEA.
3. 	Denying CSEA its right to represent unit members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE THE POLICIES OF THE EERA:
1.	
Rescind the determination to remove employees from Social Security
benefits or altering their status with the California Public Employees Retirement System.
16As stated above, the District's failure to bargain in good faith creates derivative
violations of section 3543.5(a) for interference with employees' right to representation. 	(State
of California (Department of Youth Authority) (2000) PERB Decision No. 1374-S; State of
California (Department of Corrections) (2000) PERB Decision No. 1381-S.)
25

2.
	Within ten (10) workdays
of
the service
of
the decision in this matter,
post at all work locations where notices to employees customarily are posted, copies
of
the
Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of
the District, indicating that the District will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material. 
3.
	Upon issuance
of
the decision in this matter, make written notification of
the actions taken to comply with this Order to the Sacramento Regional Director
of
the Public
Employment Relations Board in accord with the director's instructions.
Members Baker and Neimajoined in this Decision.
26

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. SA-CE-2000-E, California School
Employees Association - Chapter 250
v.
Clovis Unified School District, in which all parties
had the right to participate, it has been found that the Clovis Unified School District violated
the Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b)
and (c).
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.
	Bypassing the California School Employees Association - Chapter 250
(CSEA) and dealing directly with unit employees on terms and conditions
of
employment or
unilaterally changing terms and conditions
of
employment without affording CSEA an
opportunity to negotiate or until completion
of
the statutory impasse procedures.
2.
	Denying unit employees their rights to be represented by CSEA.
3.
	Denying CSEA its right to represent unit members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
Rescind the determination to remove employees from Social Security benefits or
altering their status with the California Public Employees Retirement System.
Dated: 	CLOVIS UNIFIED 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 WITH ANY OTHER
MATERIAL.