Arcohe Union School District (PERB 0360EA)

STATE 	OF CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ARCOHE UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	S-CE-428
Request 	for 	Reconsideration
PERB 	Decision No. 	360
PERB Decision No. 	360a
May 	16, 	1984
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Appearances; 	William C. 	Heath, 	Attorney 	for California 	School
Employees Association; 	Donald R. Morris, 	Superintendent, 	for
Arcohe Union School 	District.
Before Hesse, 	Chairperson; Jaeger and Burt, 	Members.
DECISION
BURT, 	Member: 	The Public Employment Relations Board 	(PERB
or 	Board) 	having duly considered 	the 	request 	for
reconsideration1 filed by 	the 	California 	School 	Employees
1PERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq. 	PERB rule 32410(a)
provides:
Any party 	to a decision of 	the 	Board
itself may, 	because of extraordinary
circumstances, 	file a request 	to reconsider
the 	decision 	. . . . 	The 	grounds 	for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the 	decision of 	the 	Board 	itself
contains prejudicial errors of 	fact, 	or
newly discovered 	evidence 	or 	law which was
not previously available 	and 	could not have
been discovered with 	the 	exercise 	of
reasonable 	diligence.

Association 	(CSEA or Association) 	hereby grants 	that 	request,
in part, 	for 	the limited purpose set 	forth below.
DISCUSSION
In Arcohe Union 	School 	District 	(11/23/83) 	PERB Decision
No. 	360, 	the Board affirmed the Administrative Law Judge's
(ALJ) 	finding 	that 	the Arcohe Union School 	District 	(District)
violated subsections 3543.5(a), 	(b) 	and 	(c) of the Educational
Employment 	Relations 	Act 	(EERA)2 by 	subcontracting 	custodial
services 	formerly provided by unit 	employees 	(in 	this 	case, 	two
employees 	funded 	under 	the 	Comprehensive 	Education 	and 	Training
Act 	or 	CETA).
By way of 	remedy, 	the ALJ ordered 	the 	District 	to rescind
the subcontract, 	to return 	the 	cleaning work 	to classified
employees of 	the 	District, 	and to negotiate before making any
further 	change. 	Specifically, 	he ordered 	the District 	to 	cease
2 The
EERA is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory references herein 	are 	to 	the 	Government
Code 	unless 	otherwise 	indicated.
Section 3543.5 provides 	that 	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, 	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.
N	
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and 	desist 	from 	subcontracting without 	negotiating 	with 	CSEA,
and 	to 	refill 	the 	custodial 	positions 	replaced by 	the
contracting 	out 	with 	District 	classified 	employees 	represented
by 	CSEA.
The 	Board altered 	the proposed remedy. 	It ordered 	the
District 	to 	rescind 	the 	subcontract, 	and 	to cease 	and desist
from:
Engaging 	in 	unilateral 	action 	regarding
matters 	within 	the 	scope of 	representation
by 	implementing 	any method of 	providing 	the
level of 	custodial 	services which 	it
furnished prior 	to 	expiration 	of 	funding of
two CETA-funded custodians 	in April 	of 	1981,
without 	furnishing 	notice 	and 	an 	opportunity
to negotiate 	regarding any 	such 	decision 	to
CSEA.
CSEA requests 	reconsideration of 	the 	Board's 	remedy 	in 	this
case, 	arguing that a return 	to 	the status quo 	includes 	a return
of 	two custodial positions 	to 	the unit.
In Arcohe, 	supra, 	the decision to lay off 	the CETA
employees was not 	that of 	the District, 	but 	rather 	resulted
from 	the 	elimination of 	CETA funding. 	The 	District decided 	to
maintain the same 	level of services, 	however, 	through
subcontracting. 	The 	Board emphasized 	in 	its 	decision 	that 	the
District was 	entitled 	to determine 	the 	level 	of 	services 	as
part of 	its management prerogative; 	however, 	it could not
maintain 	the 	former 	level 	of 	services 	by 	subcontracting without
first negotiating with 	the 	exclusive 	representative. 	In
ordering 	the work 	returned 	to 	the 	unit 	but 	declining 	to 	order
the positions 	restored, 	the Board left 	to management 	the
determination of what 	level 	of 	services 	it would provide while
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assuring 	that 	the work would remain within 	the unit. 	Further,
since 	the 	District 	did not 	decide 	to 	lay off 	these 	individuals
or 	to eliminate 	the positions, 	the Board declined 	to direct 	the
District 	to reinstate 	either 	the positions 	or 	the 	terminated
individuals.
We 	see no reason 	to 	reconsider 	the 	Board's 	remedial 	order.
The Board's Order, 	as written, 	adequately protects employees by
returning 	the 	work 	to 	the 	unit 	and 	requiring 	that 	the 	District
negotiate 	with 	the 	exclusive 	representative 	concerning 	in-scope
matters 	before restoring 	the previous 	level 	of 	services 	in any
fashion. 	We 	therefore deny reconsideration of 	the 	Board's
Order.
CSEA also argues 	that 	anyone who 	suffered 	a 	monetary 	loss
as 	a result 	of 	the 	unlawful 	unilateral 	transfer 	should be
reimbursed with 	the 	specifics 	of 	reimbursement 	to be 	left 	to 	a
compliance hearing. 	The Association, 	however, 	offers no hint
of what 	those 	losses might be, 	or who may have 	suffered them,
nor does 	it point 	to any such evidence 	in 	the 	record. 	We
therefore refuse 	to 	reconsider 	our 	remedy on 	those grounds.
Finally, 	CSEA asks 	that 	the order be 	modified 	to substitute
the 	"Arcohe 	School 	Classified Employees 	Association" 	(ASCEA)
for 	"CSEA" 	in the Board's 	order, 	since 	that organization now
represents 	classified employees 	in the unit. 	It notes,
however, 	that 	it has pursued this matter 	in order 	to protect
the rights of 	the unit 	it 	formerly represented, 	and that 	there
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is 	no prejudice merely because 	the ASCEA was not 	joined. 	The
District 	concurs 	that 	there 	is 	a new representative.
The Board's 	representation 	file, 	of which we 	take
administrative notice, 	reveals 	that 	the decertification
election was 	conducted at Arcohe 	in December 1982, 	and ASCEA
was 	certified as 	the 	exclusive 	representative 	of 	classified
employees on December 3, 	1982.
While both 	the 	Respondent's 	exceptions 	to 	the ALJ's
decision and 	the 	Charging Party's 	response 	were 	apparently
filed shortly after 	the date of 	the decertification, 	there 	is
no mention in the parties' 	papers of 	that 	fact until 	the
instant request 	for 	reconsideration. 	CSEA's 	request 	for
reconsideration 	and 	the 	response 	thereto were 	served 	on 	the 	new
representative, 	but 	the ASCEA has 	not participated 	in any way
in the case. 	However, 	none of 	the parties allege that the
ASCEA was 	an 	indispensable party to 	the proceedings, 	or 	that
the 	interests 	of 	the 	employees were not 	fully protected by
CSEA. 	(See Alum 	Rock 	Union Elementary 	School 	District
(6/27/83) 	PERB Decision No. 	322.) 	The 	Board's 	Order and Notice
will 	therefore be modified 	to reflect 	the 	change 	in
certification.
ORDER
Having 	shown 	no 	"extraordinary 	circumstances" 	within 	the
meaning of rule 	32410, 	the request 	for 	reconsideration of 	PERB
Decision No. 	360 	is hereby granted only 	for 	the 	limited purpose
of modifying 	the 	order 	in 	that 	case 	to reflect 	the 	fact 	that
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CSEA no 	longer 	represents 	classified 	employees 	at Arcohe. 	The
Order 	and Notice 	are 	therefore modified as 	follows:
Upon the 	foregoing 	findings of 	fact, 	conclusions of 	law,
and the entire record in case No. 	S-CE-428, 	and pursuant to
Government Code subsection 3541.5(c), 	it 	is hereby ORDERED that
the Arcohe Union 	School 	District board of 	trustees 	and
superintendent 	and 	their 	respective 	agents 	shall:
A. 	CEASE AND DESIST FROM:
Engaging 	in 	unilateral 	action 	regarding matters 	within
the 	scope 	of 	representation by 	implementing 	any method 	of
providing the 	level 	of 	custodial 	services 	that 	it 	furnished
prior 	to 	expiration of 	funding 	for 	two 	CETA-funded 	custodians
in April 	of 	1981, 	without 	furnishing notice and an opportunity
to negotiate 	regarding 	any such decision 	to 	the 	exclusive
representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTION TO EFFECTUATE
THE 	PURPOSES AND POLICIES OF THE EDUCATIONAL EMPLOYMENT
RELATIONS ACT:
1. 	Rescind 	the 	subcontract 	for 	custodial 	services
entered 	into with 	"Services 	Unlimited" 	and/or 	any other 	such
subcontracts 	for 	custodial 	services.
2. 	Prepare and post, 	no later 	than thirty-five 	(35)
days 	after 	service of 	this 	Decision, 	at all work 	locations
where notices 	to employees 	are 	customarily placed, 	copies 	of
the Notice 	to Employees 	attached as 	an Appendix hereto, 	signed
by an authorized agent 	of 	the 	employer. 	Such posting 	shall 	be
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maintained 	for 	a period of 	thirty 	(30) 	consecutive workdays.
Reasonable steps 	shall be 	taken to 	insure 	that 	this 	Notice 	is
not 	reduced 	in 	size, 	defaced, 	altered or 	covered by any
material.
3. 	Provide written notification of 	the 	actions 	taken
to 	comply with 	this 	Order 	to 	the regional 	director 	of 	the
Public Employment 	Relations 	Board, 	in accordance with her
instructions.
Chairperson Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
• I
•
After 	a hearing 	in Unfair Practice Case No. 	S-CE-428 	in
which all parties had the right 	to participate, 	it has been
found 	that 	the Arcohe Union 	School 	District 	violated 	the
Educational 	Employment 	Relations Act, 	Government Code
subsections 3543.5(a), 	(b) and 	(c) by subcontracting unit work
without providing 	notice 	and 	a 	reasonable 	opportunity 	to
negotiate 	to 	the 	exclusive 	representative 	of 	our 	classified
employees.
As 	a result of 	this 	conduct, 	we have been ordered 	to post
this Notice, 	and we will:
A. 	CEASE AND DESIST FROM:
Engaging 	in 	unilateral 	action 	regarding matters 	within
the 	scope 	of 	representation by 	implementing 	any method of
providing 	the 	level 	of 	custodial 	services 	which 	it 	furnished
prior 	to expiration 	of 	funding 	for 	two CETA-funded 	custodians
in April 	of 	1981, 	without 	furnishing notice and an opportunity
to negotiate 	regarding 	any 	such decision 	to 	the 	exclusive
representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE 	PURPOSES AND POLICIES OF THE ACT:
Rescind 	the 	subcontract 	for 	custodial 	services 	entered
into with 	"Services 	Unlimited" 	and/or 	any other 	such
subcontracts 	for 	custodial 	services.
Dated: 	ARCOHE 	UNION 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT
BE REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.