Walnut Valley Unified School District (PERB 0160E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS WALNUT
CHAPTER NO. 446,
Charging Party, 	Case No. LA-CE-460
v .
PERB Decision No. 160
WALNUT VALLEY UNIFIED SCHOOL
DISTRICT, 	March 3
Respondent.
Appearances: Michael Heumann, Attorney for California School
Employees Association and its Walnut Chapter No. 446;
Patrick D. Sisneros, Attorney (Wagner & Wagner) for Walnut
Valley Unified School District.
Before Gluck, Chairperson; Jaeger, Moore and Tovar, Members.
DECISION
The Walnut Valley Unified School District (hereafter
District) excepts to a hearing officer's proposed decision
which finds the District violated section 3543.5 (c) of the
Educational Employment Relations Act (hereafter EERA) | by
lA 	tatutory references are to the California
Government Code unless otherwise specified. 	Section 3543.5 (c)
provides :
It shall be unlawful for a public school
employer to:
STATE
	OF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
CALIFORNIA
	SCHOOL
	EMPLOYEES
ASSOCIATION
	AND
	ITS
	WALNUT
CHAPTER
	NO.
	446,
Charging
	Party,
v.
WALNUT
	VALLEY
	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
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)
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___________________ )
Case
	No.
	LA-CE-460
PERB
	Decision
	No.
	160
March 0, 1981	3(1,
	1981
~pearance.~:	
Michael
	Heumann,
	Attorney 	for
	California
	School
Employees
	Association
	and
	its
	Walnut
	Chapter
	No.
	446;
Patrick
	D.
	Sisneros,
	Attorney
	(Wagner
	&
Wagner)
	for
	Walnut
Valley 	Unified
	School
	District.
Before 	Gluck,
	chairperson; 	Jaeger,
	Moore 	and
	Tovar,
	Members.
DECISION
The
	Walnut
	Valley 	Unified
	School
	District
	(hereafter
District)
	excepts 	to
	a
	hearing
	officer's
	proposed
	decision
which
	finds 	the
	District
	violated 	section
	3543.S(c) 	of 	the
1	
Educational
	Employment
	Relations
	Act
	(hereafter
	EERA}	
by
l	lAl	ll s	
statutory 	references 	are 	to 	the
	California
Government
	Code
	unless 	otherwise 	specified. 	Section 	3543.S(c)
provides:
It
	shall
	be
	unlawful 	for
	a
	public 	schoolemployer
	to:

negotiating certain overtime provisions directly with four
District employees. The California School Employees
Association and its Walnut Chapter No. 446 (hereafter CSEA)
excepts to the hearing officer's failure also to find a
violation of section 3543.5 (a) and (b) . 2
The District argues that no violation should be found as
CSEA, by signing a collective agreement with the District
including a provision governing overtime, waived its right to
negotiate concerning the increase in the employees' hours which
is the subject of this charge.
The hearing officer's proposed decision is reversed and the
charge is DISMISSED.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2 Section 3543.5 provides:
It shall be unlawful for a public school
employer to:
(a) 	Impose or threaten to impose reprisals
on employees, to discriminate or threaten to
discriminate against employees, or otherwise
to interfere with,
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
2
negotiating 	certain 	overtime 	provisions 	directly 	with 	four
District 	employees. 	The 	California 	School 	Employees
Association 	and 	its 	Walnut 	Chapter 	No. 	446 	(hereafter 	CSEA)
excepts 	to 	the 	hearing 	officer's 	failure 	also 	to 	find 	a
2	violation 	of 	section 	3543.5(a} 	and 	(b).
The 	District 	argues 	that 	no 	violation 	should 	be 	found 	as
CSEA, 	by 	signing 	a 	collective 	agreement 	with 	the 	District
including 	a 	provision 	governing 	overtime, 	waived 	its 	right 	to
negotiate 	concerning 	the 	increase 	in 	the 	employees' 	hours 	which
is 	the 	subject 	of 	this 	charge.
The 	hearing 	officer's 	proposed 	decision 	is 	reversed 	and 	the
charge 	is 	DISMISSED.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
2section 	3543.5 	provides:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on 	employees, 	to 	discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to 	interfererestrain, or coerce	with, 	restrain, 	or 	coerce
employees because of their exercise ofercise 	of
rights guaranteed by this chapter.	rights 	guaranteed 	by 	this 	chapter.
employees 	because 	of 	their 	ex
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
2

FACTS
This District has recognized CSEA as the exclusive
representative of its classified employees, including
instructional aides, since November 1977. A collective
agreement between the parties was in effect during all times
relevant to this case. 	Belva Keenan is an Instructional Aide I
and Ann Marton, Ruth Frazer, and Linda Cuesta are Instructional
Aide IIs. On or just prior to March 13, 1979, Truman Collins,
Principal of the District's Collegewood School, discussed with
Keenan her working additional hours for a period of time. 	He
did mention to her that she would receive additional sick days
and benefits according to the amount of time so worked. On
March 13, 1979, Keenan signed a document which reads:
I voluntarily accept the additional limited
term assignment as a [sic] Instructional
Aide I for 3 hours for a period of 6 to 9
weeks.
I understand this is a temporary assignment
and may cease at any time and it will not
become part of my permanent regular
assignment.
Soon thereafter, Collins approached Marton and Frazer and
made arrangements with them to work additional hours. Collins
roached Cuesta and asked her to work additional hours,
which she did. During this period, Collins did not notify CSEA
of any of his discu 	r his agreements
reached wit 	hem.
3
FACTS
This
	District
	has
	recognized
	CSEA
	as
	the
	exclusive
representative
	of
	its
	classified
	employees,
	including
instructional
	aides, 	since
	November
	1977.
	A
collective
agreement
	between
	the
	parties
	was
	in
	effect
	during
	all
	times
relevant
	to
	this
	case.
	Belva
	Keenan
	is
	an
	Instructional
	Aide
	I
and
	Ann
	Marton,
	Ruth
	Frazer,
	and
	Linda
	Cuesta
	are
	Instructional
Aide
	IIs.
	On
	or
	just
	prior
	to
	March
	13,
	1979,
	Truman
	Collins,
Principal
	of 	the
	District's
	Collegewood
	School,
	discussed 	with
Keenan
	her 	working
	additional
	hours
	for
	a
	period 	of 	time.
	He
did
	mention
	to
	her
	that
	she
	would
	receive
	additional
	sick
	days
and
	benefits
	according
	to
	the
	amount
	of
	time 	so
	worked.
	On
March
	13, 	1979,
	Keenan
	signed
	a
	document 	which
	reads:
I
	voluntarily
	accept 	the
	additional 	limited
term 	assignment 	as
	a
	[sic]
	Instructional
Aide
	I
	for
	3
	hours
	for
	a
	period 	of
	6
	to
	9
weeks.
I
	understand
	this 	is
	a
	temporary 	assignment
and
	may
	cease
	at
	any
	time
	and
	it
	will
	not
become
	part
	of
	my
	permanent
	regularassignment.
Soon
	thereafter,
	Collins
	approached 	Marton 	and
	Frazer
	and
made
	arrangements 	with
	them
	to
	work
	additional
	hours.
	Collins
also app	o
	approached 	Cuesta
	and
	asked 	her 	to
	work
	additional
which 	she
	did.
	During
	this 	period, 	Collins 	did 	not
	notify
	CSEA
of
	any
	of
	his ssions with the aides o
the 	aides 	or
	his
	agreements
reached h t
th
	them.
hours,
discussions 	with
3

DISCUSSION
The gravamen of CSEA's charge is that the District, by
directly approaching four individual employees, bypassed CSEA
in order to effect a change in the terms and conditions of
employment as to which the District is obliged to negotiate.
Specifically, CSEA alleges that, since extra-hour assignment is
a matter within the scope of representation as defined by
section 3543.2 of EERA, the assignment of additional hours
The scope of representation 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, and the layoff
of probationary certificated school district
employees, pursuant to Section 44959.5 of
the Education Code. In addition, the
exclusive representative of certified
personnel has the right to consult on the
definition of educational objectives, the
determination of the content of courses and
curriculum, and the selection of textbooks
to the extent such matters are within the
discretion of the public school employer
under the law. 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
DISCUSSION
The
	gravamen
	of
	CSEA
1 s
	charge
	is
	that
	the
	District,
	by
directly
	approaching 	four
	individual
	employees, 	bypassed
	CSEA
in
	order 	to
	effect
	a
	change
	in
	the
	terms
	and
	conditions
	of
employment
	as
	to
	which
	the
	District 	is
	obliged 	to
	negotiate.
Specifically,
	CSEA
	alleges
	that,
	since 	extra-hour
	assignment
	is
a
	matter 	within
	the
	scope
	of
	representation
	as
	defined
	by
section
	3543.2
	of
	EERA,
3	
the
	assignment
	of
	additional
	hours
3 Section 3543.2 provides:	
3section	
3543.2
	provides:
The
	scope
	of
	representation
	shall
	be
	limited
to 	matters
	relating
	to
	wages,
	hours
	of
employment,
	and
	other
	terms
	and
	conditionsof
	employment.
	"Terms 	and
	conditions 	of
employment" 	mean
	health
	and
	welfare
	benefits
as 	defined
	by
	Section
	53200,
	leave,
	transfer
and
	reassignment
	policies,
	safety 	conditionsof
	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,
	and
	the
	layoff
of 	probationary
	certificated
	school
	district
employees,
	pursuant 	to 	Section
	44959.5
	of
the 	Education
	Code.
	In
	addition,
	the
exclusive 	representative
	of
	certified
personnel
	has 	the
	right
	to 	consult
	on
	the
definition
	of 	educational 	objectives,
	the
determination 	of 	the 	content 	of 	courses
	and
curriculum,
	and
	the
	selection
	of 	textbooks
to 	the 	extent
	such
	matters 	are 	within 	the
discretion 	of 	the 	public 	school
	employer
under 	the 	law. 	All 	matters 	not
	specifically
enumerated
	are 	reserved 	to 	the 	public 	schoolemployer 	and 	may
	not
	be 	a
	subject 	of 	meetingand
	negotiating, 	provided
	that
	nothing
herein
	may 	be
	construed 	to 	limit
	the
	right
4

to each of the four instructional aides in this case was
impermissible.
The law regarding employers negotiating directly with their
employees and bypassing the designated bargaining
representative is clear. Section 3543.3 of the EERA, requires
the employer to negotiate and bargain in good faith once an
employee organization has been duly designated as the exclusive
representative for a given group of employees. 4 This
obligation imposes on the employer the requirement that it
provide the exclusive representative with notice and the
opportunity to negotiate on proposed changes of matters within
the scope of representation. Unilateral action taken without
fulfilling this obligation constitutes a refusal to negotiate
in good faith. San Mateo County CCD PERB Decision No. 94
(6/8/79). An employer may not, in the presence of an exclusive
of the public school employer to consult
with any employees or employee organization
on any matter outside the scope of
representation.
A public school employer or such
but need not be, subject to either
certification requirements or requirements
for classified employees set forth in the
Education Code, shall meet and negotiate
with and only with representatives of
employee organizations selected as exclusive
representatives of appropriate units upon
request with regard to matters within the
scope of representation.
to
	each
	of
	the 	four
	instructional
	aides 	in
	this
	case
	was
impermissible.
of
	the 	public
	school
	employer
	to 	consult
with
	any 	employees
	or
	employee
	organization
on 	any
	matter 	outside
	the
	scope
	of
representation.
The
	law
	regarding
	employers
	negotiating
	directly
	with
	their
employees
	and
	bypassing 	the
	designated 	bargaining
representative
	is
	clear.
	Section
	3543.3
	of 	the
	EERA,
	requires
the
	employer
	to 	negotiate
	and
	bargain 	in
	good
	faith
	once 	an
employee
	organization
	has 	been
	duly
	designated
	as
	the
	exclusive
representative
	for
	a
	given
	group
	of
	employees.4 	This
obligation
	imposes
	on
	the
	employer
	the
	requirement
	that
	it
provide 	the 	exclusive
	representative
	with
	notice
	and
	the
opportunity 	to 	negotiate
	on
	proposed 	changes
	of 	matters 	within
the
	scope
	of
	representation. 	Unilateral 	action
	taken
	without
fulfilling
	this
	obligation 	constitutes
	a
	refusal 	to 	negotiate
in
	good
	faith.
	San 	Mateo
	County
	CCD
	PERB
	Decision
	No. 	94
(6/8/79).
	An
	employer
	may
	not, 	in
	the 	presence 	of
	an
	exclusive
4	4 Section 3543.3 reads:	
section
	3543.3
	reads:
A
public
	school
	employer
	or
	such
representatives as it may designate who may,	
representatives
	as
	it
	may
	designate
	who 	may,
but
	need
	not 	be,
	subject 	to 	either
certification
	requirements 	or 	requirements
for
	classified
	employees
	set 	forth 	in 	the
Education
	Code,
	shall
	meet 	and
	negotiatewith
	and
	only 	with
	representatives 	ofemployee
	organizations 	selected
	as 	exclusive
representatives 	of 	appropriate 	units
	upon
request 	with 	regard 	to 	matters
	wi
	in 	the
scope 	of 	representation.
5

representative, unilaterally establish or modify existing
policies covering, for example, overtime pay rates, the
selection of employees to work overtime, or the definition of
overtime hours.
However, once such a policy has been established by lawful
means, the employer has the right to assign personnel to meet
operational needs in accordance with that policy; as, in the
instant case, to ask four instructional aides to voluntarily
work overtime for a specified number of hours because of
regular employee illness or other work needs.
To prove that the District has unlawfully bypassed CSEA by
"negotiating" directly with the four employees in question, it
must be demonstrated that the District sought either to create
a new overtime policy of general application or to obtain a
waiver or modification of existing policy applicable to those
employees.
We find that the record is totally devoid of any proof that
the District employed an extra-hours assignment method which
conflicts with established policy, past practice, or
contractual requirements. Nor does the evidence demonstrate
that the employer sought to negotiate individual employment
contracts with the affected employees.
CSEA may have intended to demonstrate a general plan by the
District to seek modification of its overtime policy by having
a CSEA site representative testify as to a conversation held
6
representative, 	unilaterally 	establish 	or 	modify 	existing
policies 	covering, 	for 	example, 	overtime 	pay 	rates, 	the
selection 	of 	employees 	to 	work 	overtime, 	or 	the 	definition 	of
overtime 	hours.
However, 	once 	such 	a 	policy 	has 	been 	established 	by 	lawful
means, 	the 	employer 	has 	the 	right 	to 	assign 	personnel 	to 	meet
operational 	needs 	in 	accordance 	with 	that 	policy; 	as, 	in 	the
instant 	case, 	to 	ask 	four 	instructional 	aides 	to 	voluntarily
work 	overtime 	for 	a 	specified 	number 	of 	hours 	because 	of
regular 	employee 	illness 	or 	other 	work 	needs.
To 	prove 	that 	the 	District 	has 	unlawfully 	bypassed 	CSEA 	by
"negotiating" 	directly 	with 	the 	four 	employees 	in 	question, 	it
must 	be 	demonstrated 	that 	the 	District 	sought 	either 	to 	create
a 	new 	overtime 	policy 	of 	general 	application 	or 	to 	obtain 	a
waiver 	or 	modification 	of 	existing 	policy 	applicable 	to 	those
employees.
We 	find 	that 	the 	record 	is 	totally 	devoid 	of 	any 	proof 	that
the 	District 	employed 	an 	extra-hours 	assignment 	method 	which
conflicts 	with 	established 	policy, 	past 	practice, 	or
contractual 	requirements. 	Nor 	does 	the 	evidence 	demonstrate
that 	the 	employer 	sought 	to 	negotiate 	individual 	employment
contracts 	with 	the 	affected 	employees.
CSEA may 	have 	intended 	to 	demonstrate 	a 	general 	plan 	by 	the
District 	to 	seek 	modification 	of 	its 	overtime 	policy 	by 	having
a 	CSEA 	site 	representative 	testify 	as 	to 	a 	conversation 	held
6

with the District principal concerning a grievance filed by
another employee over a similar assignment. If so, CSEA's
efforts fall short. The principal's statement to the effect
that he would have asked for a written acknowledgment that the
grievant had volunteered for the work may reasonably be
construed as nothing more than his desire to establish that the
employee had not been ordered to work overtime. 5
Similarly, we can reach no conclusion that in dealing with
the four employees here, the District sought to change the
overtime policy. The document signed by Ms. Keenan is, at
best, ambiguous. On its face, it constitutes nothing more than
an acknowledgment on her part that she voluntarily accepts an
overtime assignment which will not entitle her to any
additional benefits. There is nothing in the document itself
or in the testimony surrounding it which indicates that the
District departed from its overtime policy or sought to obtain
Ms. Keenan's approval of a new policy. The Board cannot infer
from such a paucity of evidence conduct constituting a
violation of law. The charge should be dismissed.
Article 10.3 of the collective agreement reads:
Assignment Adjustment: Any employee in the
bargaining unit who is required to work an
average of thirty (30) minutes or more per
day in excess of said employee's regular
part-time assignment for a period of twenty
(20) consecutive working days shall have
his/her regular assignment adjusted upward
to reflect the longer hours.
7
with
	the
	District
	principal
	concerning
	a
	grievance
	filed
	by
another
	employee
	over
	a
	similar
	assignment.
	If
	so,
	CSEA's
efforts
	fall
	short.
	The
	principal's
	statement
	to
	the
	effect
that
	he 	would
	have
	asked
	for
	a
	written
	acknowledgment
	that
	the
grievant
	had
	volunteered 	for 	the
	work 	may
	reasonably
	be
construed
	as 	nothing
	more
	than
	his 	desire
	to
	establish 	that
	the
employee
	had
	not
	been
	ordered 	to
	work
	overtime.5
Similarly,
	we
	can
	reach
	no
	conclusion
	that
	in 	dealing 	with
the
	four
	employees
	here, 	the
	District
	sought
	to
	change
	the
overtime
	policy.
	The
	document
	signed
	by Ms. 	Keenan
	is, 	at
best,
	ambiguous.
	On
	its
	face,
	it
	constitutes
	nothing
	more
	than
an 	acknowledgment 	on
	her
	part 	that
	she
	voluntarily
	accepts
	an
overtime 	assignment
	which
	will
	not
	entitle
	her
	to
	any
additional 	benefits.
	There
	is
	nothing
	in
	the
	document
	itself
or 	in 	the 	testimony 	surrounding
	it
	which
	indicates 	that
	the
District
	departed
	from
	its
	overtime
	policy
	or 	sought
	to
	obtain
Ms.
	Keenan's 	approval 	of
	a 	new
	policy.
	The
	Board
	cannot
	infer
from 	such
	a
	paucity
	of 	evidence 	conduct
	constituting
	a
violation
	of
	law.
	The
	charge 	should
	be
	dismissed.
5
5Article
	10.3 	of 	the
	collective
	agreement
	reads:
Assignment 	Adjustment:
	Any
	employee
	in 	the
bargaining 	unit
	who
	is
	required 	to
	work 	an
average 	of
	thirty
	(30)
	minutes 	or
	more
	perday
	in 	excess 	of 	said 	employee's 	regular
part-time
	assignment 	for
	a
	period 	of 	twenty(20)
	consecutive
	working 	days
	shall
	have
his/her 	regular 	assignment 	adjusted
	upward
to 	re 	ect 	the 	longer 	hours.
7

C
ORDER
Upon the foregoing decision and the entire record in this
case, the Public Employment Relations Board ORDERS that: the
unfair practice charge filed by the California School Employees
Association and its Walnut Chapter No. 446 against the Walnut
Valley Unified School District is DISMISSED.
Barbara D. Moore, Member
Co
ORDER
Upon 	the 	foregoing 	decision 	and 	the 	entire 	record 	in 	this
case, 	the 	Public 	Employment 	Relations 	Board 	ORDERS 	that: 	the
unfair 	practice 	charge 	filed 	by 	the 	California 	School 	Employees
Association 	and 	its 	Walnut 	Chapter 	No. 	446 	against 	the 	Walnut
Valley 	Unified 	School 	District 	is 	DISMISSED.
By : John w. Jaeger , Member 	Harry Gluck , Chairperson
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By:Qoh'n'w: 	Jaeger,~ember
Barbara 	D. 	Moore, 	Member 	Irene Tovar , Member	Iren~'---'rovar, 	Member
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