Lodi Unified School District (PERB 0239E)

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. 	S-CE-282
PERB Decision No. 	239
September 	29, 	1982
Appearances; 	Maureen C. 	Whelan, 	Attorney for California School
Employees Association and 	its 	Lodi 	Chapter 	#77;
James D. 	Pinnell 	(Breon, Galgani & Godino), Attorney for Lodi
Unified 	School 	District.
Before: 	Jaeger, Morgenstern and Jensen, Members.
DECISION
JAEGER, Member: 	This case 	is 	before 	the Public Employment
Relations Board 	(hereafter 	PERB or 	Board) 	on exceptions 	filed
by 	the Lodi 	Unified School District 	(hereafter 	District) 	to 	the
proposed 	decision of 	the 	hearing 	officer. 	The 	hearing 	officer
found 	that 	the District violated subsections 3543.5(a), 	(b) 	and
(c) 	of 	the Educational Employment Relations Act 	(hereafter
EERA)1 when 	it 	unilaterally 	altered 	the 	vacation 	benefits 	of
classified 	employees. 	The 	single 	exception 	taken 	to 	the
proposed 	decision 	concerns 	the 	remedy. 	The District 	asserts
that 	the 	remedy 	is 	punitive 	because 	it 	requires 	the District 	to
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq.
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grant 	each 	affected 	employee 	four 	additional 	days 	of 	vacation
in 	the year 	the 	decision becomes 	final. 	This 	remedy would 	be
subject 	to and 	conditioned 	by 	the 	approval 	rights 	contained 	in
Article VIII, 	section G of 	the parties' 	collective negotiating
agreement.
FACTS
We 	find 	the 	hearing 	officer's 	findings of 	fact 	to be
accurate 	and 	substantially 	supported 	by 	the 	record. 	We 	note
that 	no exceptions 	were 	taken 	to any of 	her 	findings. 	Thus, 	we
adopt her 	findings of 	fact 	as 	those of 	the Board.
DISCUSSION
The 	sole 	issue 	before 	the Board 	is whether 	the proposed
remedy 	is proper. 	Since 	no exception was 	taken 	to any
conclusions 	of 	the 	hearing officer, 	it 	is 	unnecessary and we
expressly 	decline 	to 	decide 	or 	adopt 	the 	hearing 	officer's
conclusions.
Generally, 	an order 	reinstating 	the 	status quo ante 	is
appropriate 	in cases 	such as 	this. 	However, 	the Board notes
that 	in 	this 	case 	restoration of 	the 	status quo ante can only
be partial because 	the affected employees 	suffered 	the loss of
the 	right 	to 	take vacations 	in 	the 	1979-80 	school year. 	We
note 	that 	these 	employees 	were paid 	for 	four 	days 	in
September 	1979 	during which 	they did not 	work. 	We will 	allow
the District 	to 	credit 	this payment 	toward 	its 	financial
obligation 	under 	the 	vacation provisions 	of 	the 	collective
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negotiating 	agreement. 	In order 	to 	restore 	the lost 	benefit,
which 	includes 	the 	right 	to take vacation, 	we will 	require 	the
District 	to grant 	to 	all 	affected 	employees 	the 	vacation 	rights
contained 	in 	the 	1979-80 	collective 	negotiating 	agreement,
including 	the 	right 	to 	take 	vacation 	time off. 	This grant
shall 	include 	a provision 	that 	this Order 	be carried out 	in
conformance 	with 	the 	relevant provisions 	of 	the 	collective
negotiating 	agreement, 	including 	but not 	limited 	to 	the
provisions 	concerning 	carry-over 	rights 	and prior 	approval 	by
the District.
If, 	in fact, 	the District has complied with the terms of
this Order 	subsequent 	to 	the 	submission of 	this matter 	to 	the
Board, 	proof 	of 	such 	compliance 	shall 	be 	filed with 	the
Sacramento Regional Director 	of 	the 	Public Employment Relations
Board 	within 	ten 	days of 	service 	of 	this 	Order.
ORDER
Upon 	the 	foregoing 	facts 	and 	conclusions of 	law 	and 	the
entire 	record 	in 	this case, 	IT 	IS HEREBY ORDERED that 	the Lodi
Unified 	School District 	and 	its 	representatives 	shall:
CEASE AND 	DESIST FROM:
(a) 	Failing and 	refusing 	to meet 	and 	negotiate 	in
good 	faith, 	denying 	the California School Employees Association
and 	its 	Lodi Chapter 	#77 	its 	right 	to 	represent 	unit members,
and 	denying 	employees 	their 	right 	to 	select 	an exclusive
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representative, 	by 	refusing 	to meet 	and 	negotiate 	in 	good 	faith
and 	taking 	unilateral 	action 	with 	respect 	to 	vacation 	benefits.
TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE PURPOSES 	OF 	THE ACT:
(a) 	Grant 	to 	each 	affected 	employee 	the 	right 	to 	take
his/her 	vacation 	contained 	in 	the 	1979-80 	collective 	bargaining
agreement. 	This 	grant 	shall 	be 	exercised 	in 	accordance 	with
the 	relevant 	provisions 	of 	that 	collective 	negotiating
agreement, 	including 	but 	not 	limited 	to 	the 	provisions
concerning 	carry-over 	rights 	and 	prior 	approval 	by 	the
District.
(b) 	Within 	ten 	(10) 	workdays 	following 	the date of
service 	of 	this 	decision, 	post 	at 	all work 	locations 	where
notices 	to 	employees 	customarily 	are 	placed 	copies 	of 	the
Notice 	attached 	as 	an 	appendix 	hereto 	signed 	by 	an 	authorized
agent 	of 	the 	employer. 	Such 	posting 	shall 	be 	maintained 	for 	a
period of 	ten 	(10) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	ensure 	that 	such Notices 	are 	not 	altered,
defaced 	or 	covered 	by 	any 	other 	material 	or 	reduced 	in 	size.
Within 	ten 	(10) 	workdays 	following 	service 	of 	this 	decision,
notify 	the 	Sacramento 	regional 	director 	of 	the 	Public
Employment 	Relations 	Board 	in writing 	of 	what 	steps 	the
employer 	has 	taken 	to 	comply with 	the 	terms 	of 	this 	Decision.
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Continue 	to 	report 	in writing 	to 	the 	regional director
periodically 	thereafter 	as 	directed. 	All 	reports 	to 	the
regional 	director 	shall 	be 	served 	concurrently 	on 	the 	charging
party 	herein.
Members Morgenstern 	and Jensen, 	concurred.
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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. 	S-CE-282, 	in
which all parties 	had 	the 	right 	to participate, 	it has 	been
found 	that 	the 	District 	violated 	Government Code 	subsection
3543.5(c) 	of 	the Educational Employment Relations Act 	(EERA) 	by
failing 	and 	refusing 	to meet 	and 	negotiate 	with 	the California
School Employees Association and 	its Lodi Chapter 	#77 	(CSEA) 	by
taking 	unilateral 	action 	in September 	1979 	with 	respect 	to
change 	of 	vacation benefits 	for 	1979-80 	school year.
It 	has 	also 	been 	found 	that 	this 	same conduct 	violated
subsection 	3543.5(b) 	of 	the EERA since 	it 	interfered with 	the
right 	of CSEA to 	represent 	its members.
It 	has 	also been 	found 	that 	this 	same 	conduct 	interfered
with negotiating 	unit members' 	right 	to be 	represented 	by 	their
exclusive 	representative, 	thus 	constituting 	a violation of
subsection 3543.5(a) 	of 	the EERA.
As 	a 	result of 	this 	conduct 	we 	have 	been ordered 	to post
this Notice, 	and we will 	abide 	by 	the 	following:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in good
faith 	with 	the 	exclusive 	representative 	by 	taking 	unilateral
action on matters 	within 	the 	scope of 	representation, 	as
defined 	by 	section 	3543.2, 	and specifically with 	respect 	to 	the
vacation 	benefits.
2. 	Denying 	the California School Employees Association 	its
right 	to 	represent 	unit members 	by 	failing 	and 	refusing 	to meet
and 	negotiate 	about matters 	within 	the 	scope of 	representation.
3. 	Interfering 	with 	employees 	because of 	their 	exercise of
their 	right 	to select 	an 	exclusive 	representative 	to meet 	and
negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
changing 	matters 	within 	the 	scope of 	representation without
meeting 	and 	negotiating 	with 	the 	exclusive 	representative.
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B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE ACT:
The District 	shall 	grant 	to 	each 	affected 	employee 	the
right 	to 	take 	his/her 	vacation 	contained 	in 	the 	1979-80
collective 	bargaining 	agreement. 	This 	grant 	shall 	be 	exercised
in 	accordance 	with 	the 	relevant 	provisions 	of 	that 	collective
bargaining 	agreement 	and 	the 	District's policies, 	including 	but
not 	limited 	to 	the provisions 	concerning 	carry-over 	rights 	and
prior 	approval 	by 	the District.
Dated: 	LODI 	UNIFIED SCHOOL 	DISTRICT
By Authorized 	Agent
THIS 	IS AN 	OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	WORKDAYS 	FROM THE DATE OF 	POSTING AND MUST NOT BE
REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
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