Morgan Hill Unified School District (PERB 0554E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES 	ASSOCIATION
AND 	ITS MORGAN HILL CHAPTER 	#159,
Charging 	Party,
v.
MORGAN HILL UNIFIED SCHOOL DISTRICT,
Respondent.
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Case 	No. 	SF-CE-844
PERB 	Decision 	No. 	554
December 	27, 	1985
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Appearances; 	William C. 	Heath 	for 	California School 	Employees
Association and 	its Morgan Hill 	Chapter 	#159; 	Littler, 	Mendelson,
Fastiff 	& 	Tichy by Patricia 	P. 	White and Janice Jablonski 	for
Morgan 	Hill 	Unified 	School 	District.
Before Hesse, 	Chairperson; Morgenstern and Burt, 	Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by Respondent, 	Morgan Hill 	Unified School 	District 	(District),
to 	the proposed decision 	of 	a 	PERB 	administrative 	law 	judge
(ALJ).1 The District 	excepts 	to the ALJ's 	finding that 	it
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations 	Act 	(EERA)2 by making a 	unilateral 	change
1Charging 	Party, 	California 	School 	Employees 	Association
and 	its Morgan Hill 	Chapter 	#159 	(CSEA), 	also filed an exception,
claiming 	the proposed order 	is 	inadequate because 	it does 	not
require 	the 	District 	to 	return 	to 	the 	status 	quo ante by
reassigning 	former 	dispatcher 	Vicki 	Rivera 	in accordance 	with
her proper 	seniority 	status.
2EERA is 	codified at 	Government 	Code section 	3540 et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the 	Government 	Code.
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in policy 	concerning 	a matter 	within 	the 	scope 	of 	representation
when 	it 	allowed 	a 	former 	dispatcher 	to 	include her 	dispatcher
hours 	in 	calculating her bus 	driver 	seniority 	for 	the purpose 	of
bidding on bus 	routes. 	More specifically, 	the 	District 	complains
that 	the ALJ 	erred by not 	finding 	that 	the 	contract 	in 	effect 	at
the 	relevant 	time 	required 	the 	inclusion of 	the dispatcher hours,
by not 	finding 	that 	the practice 	of 	the 	District 	was 	to calculate
seniority 	for 	all purposes 	according 	to 	Education Code 	section
45308 	(sec. 	45308), 	by giving too much weight to Charging Party's
bumping procedure memorandum, 	by 	failing 	to credit 	the 	testimony
of 	Jay Yinger, 	and by 	finding 	that 	an adverse 	impact 	upon
bargaining unit 	members 	resulted 	from the 	inclusion of 	the
dispatcher hours.
The 	complaint 	also alleged 	that 	the 	District 	violated 	section
3543.5 	by 	actually 	allowing 	the 	former 	dispatcher 	to bid 	based
upon 	the 	combined 	seniority 	total 	and by engaging 	in bad 	faith
bargaining 	over 	the 	alleged 	unilateral 	change. 	The 	ALJ 	found 	no
merit 	to either of 	these 	charges, 	and CSEA does 	not 	except 	to
these 	determinations.
In accordance with the discussion below, 	we affirm the
decision 	that 	the 	inclusion of 	the 	dispatcher hours 	in 	the
calculation 	of 	bus 	driver 	seniority 	constituted 	an 	unlawful
unilateral 	change 	in 	violation of 	EERA. 	The 	Board has 	reviewed
the entire 	record, 	including 	the exceptions 	filed by both
parties 	and 	CSEA's 	response 	to 	exceptions.
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FACTUAL 	SUMMARY
A. 	Route 	Bidding
On August 25, 	1983, 	Vicki Rivera, 	the District's bus
dispatcher, 	requested a voluntary demotion to bus 	driver. 	The
dispatcher 	classification 	is 	higher 	on 	the 	salary scale 	and,
unlike the bus 	driver 	classification, 	is not 	in the bargaining
unit 	represented by CSEA. 	Also on August 	25, 	Rivera met 	with 	the
District's personnel director, 	Lee Cunningham, 	concerning whether
she 	would 	be 	credited 	with her 	dispatcher hours 	when bidding 	on
bus 	routes. 	Also present was Jay Yinger, 	then president of 	the
CSEA local, 	who 	clearly communicated 	that he was 	assisting 	Rivera
as 	a 	"friend" and not 	in his official 	capacity as president. 3w	3
Cunningham 	informed 	Rivera 	and 	Yinger 	that 	if 	the 	demotion 	to bus
driver was 	approved, 	the dispatcher hours 	would be 	counted 	for
seniority purposes.
After 	consulting 	with 	the 	District 	superintendent, 	Cunningham
sent a note, 	dated August 	25, 	to Rivera confirming that her
dispatcher hours 	would be 	included 	in 	calculating 	seniority. 	On
August 27, 	Cunningham, 	Yinger, 	Supervisor of Transportation Bill
Speegle, 	and Assistant 	Superintendent Jim Hall 	met 	to discuss
whether 	Rivera 	would be 	allowed 	to bid 	even 	though 	she 	would
continue 	temporarily as 	the dispatcher, 	making her 	unavailable
The3
District 	does 	not dispute 	that 	Yinger was 	not acting
in his official capacity at 	the August 	25 meeting. 	In fact, 	in
its post-hearing brief, 	the District 	emphasized that, 	as 	opposed
to the August 	25 	meeting, 	at an August 	27 meeting, 	Yinger was
clearly acting 	in his 	official 	capacity and, 	thus, 	had at 	least
the 	apparent 	authority to bind 	CSEA.
W	
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to drive 	at 	the beginning of 	the school 	term. 	In this 	meeting,
Yinger participated 	as 	CSEA president. 	Yinger 	told 	the
administrators 	it 	was 	past practice 	to allow a driver 	to bid
despite 	temporary unavailability, 	and 	to then 	fill 	the driver's
slot 	with a 	temporary employee. 	This 	avoids 	going 	through a
series 	of 	"bumps" 	according 	to seniority when the 	unavailable
driver 	returns. 	Yinger 	said CSEA wanted 	the 	District 	to 	follow
this past practice, 	and the 	District 	agreed 	to do so.
With 	the 	inclusion of her 	dispatcher hours, 	Rivera was 	12th
in the bus driver seniority ranking; 	without 	them, 	she was 	17th.
No 	other 	driver 	on 	the 	list had 	worked 	in a higher 	classification
for the District. 	On August 	31, 	1983, 	Rivera was allowed to bid
along with the other drivers 	and 	chose 	12th, 	in accordance with
the 	revised 	seniority 	list 	that had been posted 	by 	the 	District
the previous 	day. 	Since 	drivers 	are paid at 	an hourly rate 	and
the 	routes 	vary 	in the number of hours per week, 	the 	route chosen
is 	a major determinant of each driver's 	annual 	earnings.4
The other bus 	drivers, 	as well as other CSEA officials, 	were
not pleased 	with Yinger's 	handling of 	the 	Rivera matter. 	They
felt 	the 	inclusion of 	the dispatcher hours 	violated past 	practice
4Routes 	of 	40 hours per week 	are 	available 	to only the 	top
4 or 	5 	drivers 	on 	the 	seniority 	list. 	The other drivers 	may have
the 	opportunity 	to be 	assigned 	kindergarten 	and 	activity 	routes
which would 	increase 	their hours 	to 40 per 	week. 	These 	extra
routes 	are assigned separately according 	to seniority, 	so 	it 	is
not 	uncommon 	for 	drivers 	to bid 	on main 	routes 	which are 	shorter
than other 	available 	ones 	(assuming 	all 	the 	40-hour 	routes 	are
taken) 	if 	the 	shorter main 	routes 	would better 	facilitate
assignment 	of 	the 	extra routes.
A
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and 	that 	Rivera 	should not have 	been 	allowed 	to bid with 	the
extra 	seniority 	until 	the 	matter had 	been 	resolved. 	Upon
receiving 	this 	reaction 	from 	CSEA members 	and officials, 	Yinger
refrained 	from 	further 	involvement 	in 	the 	Rivera matter. 	Yinger
resigned 	as 	president 	in 	October 	or November 	1983.
B. 	Bargaining 	History
Prior 	to July 1, 	1980, 	seniority was based on an employee's
date of hire. 	In 1980, 	the parties negotiated a new agreement
running 	from July 1, 	1980 through June 	30, 	1983. 	This new
agreement 	based 	seniority on 	the 	number 	of hours 	worked.
Paragraph 	5 of Article 	IV, 	section C, 	entitled 	"Initial
Assignment 	(Food Service and Bus 	Drivers)" 	read as 	follows:
The 	initial 	assignment 	of 	time 	to Food
Service 	workers 	and bus 	drivers 	shall be
based 	on an 	estimate 	of hours 	needed 	for 	a
particular 	assignment. 	Assignments 	shall 	be
offered 	first 	to the 	unit 	member 	in 	the
appropriate 	class 	having 	the 	greatest 	number
of hours 	of paid employment 	in 	the 	District
in 	that 	class. 	When such an assignment 	is
declined, 	it 	shall be offered 	to other unit
members 	in descending 	order 	of 	their 	total
hours 	of paid employment 	in 	the 	District 	in
that class. 	If, 	after 20 days, 	the total
amount 	of 	time 	worked 	on a particular
assignment 	regularly deviates 	by 	30 	minutes
per day from the estimate, 	it shall be
offered 	for 	reassignment 	to other 	unit
members 	in order 	of 	their 	time 	worked 	for 	the
District. 	(Emphasis 	added.)
Paragraphs 	6 	and 	7 	of 	the 	same 	section consisted 	of 	the
following:
6. 	Assignment 	of Additional 	Hours
Assignment 	of 	additional hours 	to a
part-time position on a 	regular 	basis 	shall
UT	
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be 	offered 	to the 	unit 	member 	in 	the
appropriate 	class 	having 	the 	greatest 	number
of hours 	of paid 	employment 	in 	the 	District
in that 	class. 	When such an assignment 	is
declined, 	it 	shall 	be offered 	to other 	unit
members 	in descending 	order 	of 	their 	total
hours 	of paid employment 	in 	the 	District 	in
that class.
7. 	Decrease 	in Assigned Hours
In 	the event 	that a change 	in workload
requires 	a decrease 	in 	the 	number of
assigned hours 	of 	a part-time 	unit member,
such adjustment 	shall 	be made 	just 	in the
assignment 	of 	the 	unit 	member having 	the
least hours 	of paid 	employment 	in 	the
District 	in 	the appropriate class.
On February 8, 	1982, 	the District 	incorporated 	into its 	"Bus
Drivers 	Handbook" 	several 	provisions 	related 	to seniority and
assignment of work. 	Article 	II, 	"Assignment of Routes 	and
Schedules," 	includes 	the 	following:
1. 	The 	District 	shall prepare 	and maintain
a bus driver 	"seniority list." 	. 	. 	.
2. 	The 	seniority list 	shall 	contain the
following 	information:
A. 	Driver's 	name.
B. 	Numerical 	seniority position of 	each
driver 	as 	determined by hours 	of paid
employment 	at 	the 	date 	as 	specified.
(Emphasis 	added.)
Less 	than three weeks 	after 	the 	"Bus 	Drivers 	Handbook" 	was
prepared, 	Assistant 	Superintendent 	Hall 	sent 	a note 	to
Supervisor 	of 	Transportation Speegle 	entitled, 	"Clarification of
Reassignment 	Rights." 	This 	note provided 	the 	following:
The 	initial 	assignment 	of 	time 	to bus
drivers 	shall 	be based 	on an 	estimate of
hours 	needed 	for 	a particular 	assignment.
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That 	assignment 	shall 	be 	offered 	to 	the
driver 	having 	the 	greatest 	number 	of hours
of paid 	employment 	in 	the 	District.
Later 	in 	1982, 	the 	District 	and 	CSEA renegotiated various
provisions 	of 	the 	collective bargaining agreement. 	Article 	IV,
section C, 	paragraphs 	5, 	6 and 7 read as 	follows:
5. 	Initial Assignment
The 	District 	shall 	assign 	unit 	members
to particular positions 	based 	upon 	the 	needs
of 	the District.
6. 	Assignment 	of Additional 	Hours
When 	the hours 	of 	an 	existing position
are 	increased by the 	District, 	the employee
in 	the 	same 	class 	with 	the 	greatest 	"length
of service" 	(as 	defined 	in Ed. 	Code 45308)
at 	the particular 	administrative 	unit 	where
the adjustment 	is being made, 	shall be
offered 	the 	increase.
7. 	Decrease 	in Assigned Hours
In 	the event 	the District decreases 	the
number of 	assigned hours, 	such decrease
shall 	be handled according 	to Ed. 	Code 45308.
A successor 	to 	the 	1980-83 	agreement 	was 	not 	negotiated 	until
after 	the August 	1983 bidding 	in dispute.
Sec. 	45308, 	referred to above, 	includes the following
provision:
Whenever 	a 	classified 	employee 	is 	laid off,
the 	order 	of 	layoff within 	the 	class 	shall
be 	determined by length of 	service. 	The
employee who has 	been 	employed 	the 	shortest
time 	in the class, 	plus higher 	classes,
shall 	be 	laid 	off 	f i r s t . . . . ( E m p h a s i s
added.)
One 	other 	document 	was 	introduced 	as 	relevant 	to 	the
bargaining history, 	a 	one-page 	memorandum entitled 	"Bumping
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Procedure, 	Bus 	Drivers." 	The document 	includes 	the 	following
provisions:
l.(A) 	. 	. 	. Assignments shall be offered
first 	to the unit member 	in the
appropriate 	class 	having 	the 	greatest
number of hours 	of paid 	employment 	for
the 	District 	in that 	class. 	When such
an assignment 	is declined, 	it shall be
offered 	to other 	unit 	members 	in
descending 	order 	of 	their 	total hours
of paid 	employment 	in 	that 	class 	for
the district. 	If, 	after 20 days 	the
total 	amount 	of 	time 	worked on a
particular 	assignment 	deviates 	in
excess 	of 	1.5 hours 	per 	week 	from 	the
estimate 	it 	shall 	be 	offered 	for
reassignment 	to other 	unit 	members 	in
order 	of 	their 	time 	worked 	for 	the
district. 	(Emphasis 	added.)
2. 	In the event 	that 	a change 	in workload
requires 	a decrease 	in the number of
assigned hours 	of a 	unit member, 	such
adjustment 	shall 	be made 	first 	in 	the
assignment 	of 	the 	unit 	member having
the 	least hours 	of paid 	employment 	in
the district 	in the appropriate 	class.
(Emphasis 	added.)
In sum, 	the 	language of 	the 	1980-83 	contract 	quite clearly
bases 	seniority 	for 	initial 	assignments5 on hours 	of paid
employment 	in the 	class. 	The 	1982 	renegotiated agreement 	is
5 The 	ALJ 	found 	that assignments 	of 	routes 	at 	the
beginning of 	the 	school year are 	"initial 	assignments." 	As
will be discussed later, 	the District 	claims 	that 	sec. 	45308
was 	applied where 	the bidding process 	resulted 	in reductions 	in
hours 	(from the previous year). 	However, 	the District does not
dispute 	that 	the 	bidding process 	represents 	"initial
assignments."
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silent6 on seniority 	for 	initial 	assignments. 	The 	District
asserts 	that, 	in either 1980 or 1982, 	the parties 	intended to
use 	the 	method 	of 	calculating 	seniority provided by sec. 	45308
for all purposes, 	including 	initial 	assignments. 	CSEA asserts
that, 	for initial assignments, 	the parties 	continued to use
hours 	worked 	in 	the 	class 	and 	that 	sec. 	45308 was 	to be 	used
only where 	the 	District 	increases 	or 	decreases 	assigned hours.
DISCUSSION
In order 	to prove 	a 	violation of 	EERA section 	3543.5 	based
upon a unilateral 	change, 	a charging party must 	first make a
prima 	facie 	showing 	that 	the 	respondent 	breached 	a 	written
agreement 	or 	altered a past practice. 	Grant 	Joint 	Union High
School 	District 	(1982) 	PERB Decision No. 	196. 	In the 	instant
case, 	CSEA has 	made 	that 	showing 	through the 	introduction of 	the
original 	1980-83 	contract 	and 	the 	renegotiated 	1980-83 	contract.
The 	original 	contract 	quite 	clearly 	states 	that 	initial
assignments 	are 	to be 	offered 	first 	to 	the 	unit 	member having
the 	greatest number 	of paid hours 	in 	that 	class. 	As 	discussed
above, 	the 	renegotiated contract 	is 	silent on seniority
66The	The 	renegotiated contract, 	on its 	face, 	gives 	total
discretion to the 	District 	in making assignments, 	without 	regard
to seniority. 	However, 	at no time has 	the District asserted
this 	literal 	interpretation, 	and both parties 	introduced 	evidence
designed 	to prove 	that 	there was 	in 	fact 	a seniority rule 	for
initial 	assignments 	in effect after 	the 	1982 negotiations. 	The
issue 	in dispute 	is 	the proper 	method of 	calculating bus 	driver
seniority. 	With 	the 	clear 	rejection by both parties 	of 	the
literal 	meaning of 	the provision, 	the 	renegotiated 	contract 	can
only be 	viewed 	as 	silent 	on 	the 	method 	of 	seniority 	calculation
for 	initial 	assignments.
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calculation 	for 	initial 	assignments. 	Since 	the original 	1980-83
contract 	contains 	the 	last 	clear provision 	for 	initial 	assignment
seniority, 7 the 	inference 	is 	raised 	that 	this provision
continued 	to 	reflect 	the 	mutually agreed-upon policy applicable
to route bidding.
CSEA introduced 	a memo on bumping procedures, 	quoted above,
as 	evidence 	that 	the parties 	continued 	to 	live by the 	original
1980 contract 	language on 	initial 	assignments. 	The memo arose
in the context of 	negotiations 	in the 	fall of 	1982 	to lower 	the
bumping 	"trigger."8 The 	memo was 	prepared by CSEA 	from a
pre-existing document 	for 	use 	as 	a working proposal 	to present
to the 	District, 	the only change being 	the 	reduction of 	the
"trigger" 	from 2.5 	to 1.5 hours per 	week. 	Otherwise, 	the memo
7Both 	the 	note 	from Hall 	to Speegle and 	the 	"Bus 	Drivers
Handbook" 	mentioned 	earlier 	refer 	to 	"hours 	of paid employment."
After 	noting 	that both documents 	were 	drafted 	in early 1982,
prior 	to the 	drafting of 	the 	1982 	renegotiated contract, 	the ALJ
found 	that 	language 	consistent 	with 	the 	1980 	contract 	language
then 	in effect, 	which referred 	to hours 	of paid employment 	in
that 	class. 	We 	find 	this 	to be a reasonable conclusion. 	In 	any
case, 	the language does not support the District's position, 	for,
if taken literally, 	"hours 	in paid employment" means hours 	in all
classes, 	whether higher or 	lower. 	Neither party asserted 	that
such 	a 	method 	of 	seniority 	calculation 	was 	ever 	used by 	the
District.
8 The 	bumping procedure 	is 	contained 	in 	the 	latter part 	of
paragraph 	1(A). 	The bumping procedure 	is basically a review of
the 	route bidding process, 	whereby routes 	are reassigned 	if 	they
deviate 	a 	certain 	number 	of hours 	per 	week 	from 	the 	estimate 	used
for 	the 	initial bidding. 	After 	complaints 	from bus 	drivers 	that
the 	"trigger" 	was 	too high, 	it was 	tentatively lowered 	from 2.5
hours 	to 	1.5. 	(The 	agreement 	was 	never 	finalized because 	the 	1.5
hour 	figure was 	still 	too high 	to 	suit 	many of 	the drivers.)
7
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is 	identical 	to 	the 	language of paragraphs 	5 	and 	7 of 	the
original 	1980-83 	contract, 	quoted above.
The 	testimony 	revealed 	that 	the parties 	neither 	discussed
nor 	changed 	the 	language 	in 	the 	memo 	concerning 	seniority 	for
initial 	assignments. 	From this, 	the ALJ drew the 	inference 	that
the parties 	must have 	acknowledged 	its 	accuracy. 	The ALJ also
credited 	testimony 	from various 	witnesses 	(primarily, 	temporary
dispatcher 	Darlene 	Bannister) 	that 	the memo was 	applied 	to
bumping situations 	that 	occurred 	thereafter. 	The 	District
claims 	the ALJ gave 	too much weight 	to this 	document. 	For 	the
following reasons, 	we agree.
It 	is 	true 	that 	the parties 	failed 	to discuss 	or 	change 	the
provision on seniority for 	initial 	assignments. 	But 	it 	is 	also
true 	that paragraph 	2 of 	the memo, 	which provided 	for 	in class
seniority 	for 	decreases 	in assignments, 	was 	not discussed or
changed. 	Yet, 	this 	clearly contradicts 	the explicit 	contract
language 	that 	both parties 	agree 	was 	in effect 	at 	the 	time
(Article 	IV, 	section C-7, 	which called for use of the sec. 	45308
method where decreases occurred). 	The parties' 	failure to
address 	this 	obvious 	inconsistency 	undermines 	the 	inference 	drawn
by the ALJ with 	respect 	to 	the 	initial 	assignment 	language. 	A
more 	reasonable 	inference 	would 	be 	that 	the parties 	were
concerned 	only 	with 	the 	trigger 	reduction 	from 	2.5 	to 	1.5 	hours,
and 	they 	simply paid 	no 	attention 	to 	the 	seniority 	language
(either on 	initial 	assignments 	or decreases) 	in 	the bumping memo.
Further, 	the 	testimony as 	to the application of 	the bumping
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procedure 	is 	certain only as 	to the 	"trigger" 	amount 	used 	(1.5
hours) 	and 	is 	inconclusive as 	to the seniority method used 	in
the 	rebidding.9 On 	the other hand, 	the 	fact 	that 	the memo was
posted 	in 	the 	transportation 	department 	and 	occasionally 	referred
to does 	weigh 	somewhat 	in 	favor of 	CSEA's position.
Though we 	agree 	with 	the 	District 	that 	the bumping memo was
not 	as 	significant 	as 	the ALJ believed, 	the 	fact 	remains 	that
the 	only 	clear 	language on 	seniority 	for 	initial 	assignments 	is
found 	in the original 	1980-83 agreement. 	This 	is 	sufficient 	to
raise 	the 	inference 	that 	the 	language of 	the 	original 	1980-83
agreement 	continued 	to 	reflect 	the 	mutually 	agreed-upon policy
for 	initial assignments 	(route bidding). 	Absent 	some credible
evidence 	to reflect 	that 	the policy 	on 	initial 	assignments 	was
in 	fact 	something different, 	we must 	conclude that 	the original
1980-83 	contract 	language 	indeed 	reflects 	the policy applicable
to the 	1983 	route bidding at 	issue here.
The 	District 	maintains 	that 	it had 	agreed with 	CSEA to use
the 	sec. 	45308 method of 	seniority calculation 	(hours 	in class,
plus higher classes) 	for all purposes, 	including initial
assignments 	of bus 	drivers. 	This 	agreement 	is 	said 	to be
evidenced by various 	examples 	where 	the 	District 	used hours 	in
higher 	classifications 	in calculating 	seniority, 	by the
9s	9 ince	since 	Rivera was 	the only bus 	driver 	working 	for 	the
District 	who had 	worked 	in a higher 	classification, 	the
application 	of 	either 	seniority method 	would 	yield 	the 	same
result.
12

maintenance 	of 	a 	single 	seniority 	list 	calculated 	in 	accordance
with sec. 	45308, 	and by the application of 	this 	section to the
1983 	bidding process.
The 	District's 	version of 	the bargaining history between 	the
parties 	is 	heavily dependent 	upon 	the 	testimony of 	former 	CSEA
Chapter 	President 	Yinger, 	who was 	called on behalf of 	the
District. 	The ALJ 	failed 	to credit Yinger's 	testimony, 	primarily
due 	to a perceived 	conflict between Yinger 	and CSEA. 	His 	actions
were 	contrary to 	the 	interests 	of at 	least 	a dozen bargaining
unit members 	(those below Rivera on 	the seniority list) 	and, 	in
fact, 	disturbed 	the bus 	drivers 	and other 	CSEA officials. 	When
Yinger's 	impartiality was 	questioned by others 	in 	CSEA, 	he 	ceased
playing any role 	in 	the 	Rivera matter. 	As 	noted above, 	Yinger
resigned 	a 	few months 	later.
The 	ALJ observed 	that 	Yinger had an 	interest 	in 	shaping his
testimony to 	fit 	the 	District's 	position, 	for a decision 	in 	favor
of 	the 	District 	would 	tend 	to vindicate 	Yinger. 	The ALJ also
found 	that 	antagonism between Yinger 	and 	CSEA was 	reflected by
Yinger's 	December 	1983 	letter 	(before 	a 	complaint 	was 	issued but
after 	the 	charge was 	filed) 	to PERB's 	regional attorney. 	The
letter 	asserted 	that 	Yinger 	(on behalf of 	CSEA) 	had made 	an
agreement 	with 	the 	District 	to allow Rivera 	to bid on August 	31,
1983, 	and 	to 	fill 	the position with a 	temporary employee. 	Yinger
wrote 	the 	letter 	on 	District 	stationery and 	signed 	it 	as
president 	of 	the 	CSEA local, 	even 	though he had already resigned.
Yinger 	did 	not 	send a 	copy of 	the 	letter 	to CSEA.
13

The 	ALJ 	found 	Yinger's 	testimony 	to be hopelessly 	confused
and 	factually inaccurate, 	and rejected 	it 	on that basis 	as 	well.
Yinger 	insisted 	that 	the 	intent 	of 	the parties 	at 	the 	time 	of
the 	switch 	from 	a 	date-of-hire 	to an hours-worked basis 	for
seniority was 	to 	establish a 	single 	seniority system 	for 	all
purposes based upon sec. 	45308. 	This 	is dubious, 	for when the
parties 	switched 	to an hours-worked standard 	in 	1980, 	the
contract 	clearly provided 	that 	seniority was 	based 	upon hours
worked 	in the 	class. 	Further, 	the contract made no mention of
sec. 	45308.
After 	reviewing 	the 	entire 	record, 	we 	see no reason 	to
disturb 	the ALJ's 	finding 	that 	Yinger's 	testimony on 	the
bargaining history of 	the parties 	was 	too 	tainted by bias 	and
confusion to be credible.10
As 	noted above, 	Yinger 	testified 	that 	the parties 	agreed 	in
1980 	to use 	the 	sec. 	45308 method of seniority calculation 	for
all purposes. 	The 	District pursued 	this 	argument 	in 	its
post-hearing brief. 	In 	its 	exceptions 	to 	the proposed decision,
1 0 In 	Santa 	Clara 	Unified 	School 	District 	(1979) 	PERB
Decision No. 	104, 	the Board articulated 	the standard 	it will
apply 	in 	reviewing 	its hearing 	officers 	credibility 	findings
The 	Board 	stated 	that:
. 	. 	. 	while the Board will afford deference
to 	the hearing officer's 	findings 	of 	fact
which 	incorporate 	credibility 	determinations,
the 	Board 	is 	required 	to consider 	the 	entire
record, 	including 	the 	totality of 	testimony
offered, 	and 	is 	free to draw 	its 	own and
perhaps 	contrary 	inferences 	from 	the 	evidence
presented.
10
14
10

the 	District 	appears 	to acknowledge 	that 	Yinger 	confused 	the 	1980
and 	the 	1982 	negotiations 	and 	instead 	asserts 	that 	in 	1982 	the
parties 	agreed 	to 	calculate 	all 	seniority 	in accordance 	with
sec. 	45308.
Even 	assuming 	that 	the 	District 	and Yinger 	did 	in 	fact
confuse 	the 	two 	sets 	of negotiations 	and meant 	to assert 	that 	the
seniority calculation 	change 	occurred 	in 	1982, 	we would 	still
find 	that 	the 	District 	failed 	to 	demonstrate 	that 	the parties
agreed at 	the 	time of 	the 	1982 	negotiations 	to use 	the sec. 	45308
method 	for 	initial 	assignments, 	or 	that 	there was 	some subsequent
agreement 	to do so. 	As 	Yinger's 	testimony has 	been discredited,
the 	District 	cannot 	rely merely on 	its 	bald 	assertion 	that 	the
parties 	intended, 	from July 1982 	forward, 	to apply the sec. 	45308
method to 	initial 	assignments. 	Certainly, 	the language of 	the
renegotiated 	contract 	gives 	no 	such 	indication.
While 	the provisions 	for 	increases 	and decreases 	in
assignments 	clearly 	indicate 	calculation 	of 	seniority 	in 	accord
with sec. 	45308, 	the provision dealing with initial assignments
in 1982, 	as 	in 1980, 	makes no reference to sec. 	45308. 	Nor was
there 	testimony 	explaining 	why 	the 	new provision 	on 	initial
assignments 	made 	no mention 	of 	seniority calculation 	or 	of 	sec.
45308 if, 	in 	fact, 	the parties 	intended to use 	the sec. 	45308
method. 	The 	existence of a separate provision 	for 	initial
assignments 	in both 	the 	1980 and 	1982 	agreements 	demonstrates
that 	initial 	assignments 	are 	viewed 	independently 	from 	increases
or decreases 	in hours, 	and we 	find no evidence 	in the 	contract
15

or 	the 	record 	that 	would 	indicate 	the parties 	agreed 	to 	end 	this
distinction.
In 	support of 	its 	reading of 	the 	1982 	renegotiated contract,
the 	District 	offered 	evidence 	that 	its 	past 	or 	"actual" 	practice
was, 	in fact, 	to use the sec. 	45308 seniority method for all
purposes. 	First, 	there 	is 	Personnel 	Director Cunningham's
testimony 	that 	she 	always 	calculated 	seniority according 	to 	sec.
45308. 	She provided 	five examples. 	The subject of one example,
Pat Auser, 	also 	testified, 	stating that 	she was 	credited with
time worked as 	a 	confidential 	secretary 	(in 1977) 	after 	she
returned 	to the position of 	school 	secretary. 	Cunningham
testified 	that 	she 	credited Merle 	McCartney with 	time 	served 	as
director 	of transportation 	(in 1973), 	a supervisory position,
when he 	returned 	to 	the position of 	mechanic.
The 	ALJ properly 	found 	little 	relevance 	in 	these 	examples
because 	in both 	cases 	the 	time 	served 	in 	the higher
classifications 	was prior 	to 	the 	1980 change 	from date 	of hire
to hours 	worked 	as 	the basis 	for 	calculating seniority. 	There
is 	no provision 	in either 	the original 	or 	the 	renegotiated
1980-83 	contract 	making 	the 	seniority provisions 	retroactive;
therefore, 	whatever 	level 	of 	seniority an employee had 	under
prior methods 	of 	seniority calculation would, 	of course, 	carry
forward. 	Thus, 	examples of time worked prior 	to 1980 or 	1982
are 	not 	instructive 	of 	the 	District's 	practice 	under 	the
relevant 	contractual provisions. 	Further, 	Cunningham's
16

testimony reveals 	that 	Auser's 	seniority was 	calculated 	for
layoff purposes.11
The 	next 	example 	involved 	two account 	clerks 	who 	temporarily
worked out 	of 	class 	as 	supervising 	accountants 	and were 	credited
in 	their 	account 	clerk 	seniority with 	the 	out-of-class 	hours.
Because 	these 	examples 	merely 	involve 	temporary out-of-class
work, 	where 	the employees 	officially remain 	in their 	original
classifications, 	they are also of little relevance.
The 	last 	example 	involved 	Frank 	Rael, 	who took a voluntary
demotion 	from lead mechanic 	to mechanic 	and, 	according 	to
Cunningham, 	his 	lead mechanic hours 	were 	credited 	to his 	mechanic
seniority. 	The 	ALJ noted 	that 	the 	District's 	seniority 	lists
show Rael with 12,200 hours 	as 	a lead mechanic, 	12,784 hours 	as
a bus 	mechanic, 	and 	3,043 hours 	as 	a bus 	mechanic helper.
Clearly, 	Rael's 	seniority as 	a bus 	mechanic helper does 	not
include his hours 	in the higher 	classifications. 	His hours 	as 	a
bus 	mechanic might 	include his hours 	as 	a lead mechanic, 	assuming
he had worked very 	few hours 	as 	a bus 	mechanic. 	In terms 	of
support 	for 	the District's position, 	this 	example 	is 	at best
inconclusive.
Closely related 	to the 	last 	example 	above 	is 	the 	District's
insistence 	that 	it 	maintained but one 	seniority list, 	which was
calculated 	in accordance with sec. 	45308 	(hours 	in class 	plus
11There 	is 	no dispute 	that sec. 	45308 obligates 	the
District 	to 	follow 	its 	provisions 	for 	the 	sequence of 	layoffs.
11
17
11

higher classes). 	If this were true, 	it might provide persuasive
evidence; 	however, 	the record before us does 	not support 	the
District's 	claim. 	The 	seniority 	lists 	put 	in evidence 	generally
do not 	reflect hours 	worked 	in higher 	classifications 	in 	the
hour 	figures 	for 	lower 	classifications. 	Instead, 	they appear 	to
simply list 	the 	time worked 	in each 	classification. 	While 	the
hours 	worked 	in 	each 	classification 	could 	easily be 	added 	to
those 	in higher 	classifications 	for 	comparative purposes, 	the
lists, 	on their 	face, 	do not reflect 	inclusion of hours 	in higher
classifications.
The 	District 	also 	introduced evidence 	that 	in 	1983 	it applied
sec. 	45308 	to the bidding procedure whenever drivers 	chose 	routes
shorter 	than 	those 	available 	and 	shorter 	than 	their 	routes 	of 	the
previous 	year. 	The 	District had drivers 	sign documents 	attesting
that 	they 	voluntarily accepted 	the 	reductions 	in 	time 	and 	then
sent 	confirming notices. 	The 	District maintains 	that 	this 	was
required by 	the 	contractual 	provision 	on decreases 	in assigned
hours 	(quoted above), 	which provided that 	if the District
decreases 	assigned hours, 	such decreases 	shall be handled
according to sec. 	45308.
The ALJ found this 	attempt 	to apply sec. 	45308 	to the bidding
process 	to be 	nonsensical. 	He pointed out 	that 	the 	contract
calls 	for 	the application of sec. 	45308 where the 	District
initiates 	increases 	or decreases 	in assigned hours 	and cannot be
fairly read 	to 	encompass 	the 	choice 	of 	shorter 	than 	available
routes 	in 	the bidding process. 	While we 	tend 	to agree 	that 	the
18

District's 	attempt 	to apply sec. 	45308 	to the route bidding
process 	in 	1983 	constituted a 	strained 	construction 	of 	the
parties' 	agreement, 	such a conclusion 	is 	not necessary 	for
finding 	a 	violation.
The 	only evidence presented 	consists 	of 	the 	documents 	signed
by bus 	drivers 	after 	the 	1983-84 bidding. 	This 	is 	the bidding
that 	is 	at 	issue here 	and 	in response 	to which 	CSEA first
requested 	negotiations 	and 	then 	filed 	this 	unfair 	practice
charge. 	The 	renegotiated 	1980-83 	contract was 	ratified 	in July
1982. 	This 	was prior 	to the 	1982-83 	route bidding. 	(The record
reflects 	that 	route 	bidding normally takes 	place 	in 	late August,
just before 	the beginning of 	the new school 	year.) 	The 	District
introduced no evidence 	that 	it applied 	sec. 	45308 	to the 	route
bidding process 	that 	year. 	Evidence 	of 	actions 	taken which
involve only the bidding 	that 	is 	in actual 	dispute 	does 	not
establish a past practice.
The 	District's 	final 	exception states 	that no adverse 	impact
upon other drivers 	was 	shown. 	However, 	there was 	testimony that
drivers 	often bid on routes 	shorter 	than 	those available, 	in 	the
hope 	that 	the 	scheduling of 	such 	routes 	is 	more 	conducive 	to
assignment 	of 	additional 	hours 	(kindergarten 	and 	activity
routes). 	Thus, 	a driver may end up with more total hours 	than
if he 	or 	she had 	initially chosen 	the 	longer 	route. 	Whether 	the
District's 	unlawful 	conduct 	actually 	caused 	calculable 	damages
19

to 	those 	drivers 	wrongfully placed below 	Rivera 	on 	the 	seniority
list is a matter for compliance.12
CSEA argues 	in 	its 	sole 	exception 	that 	the proposed order 	is
deficient 	in that 	it 	fails 	to require a return 	to the status 	quo
ante by 	ordering 	that 	Rivera's 	seniority be 	adjusted 	to exclude
her dispatcher hours 	(for 	the purpose of route bidding).
Ordinarily, a 	return 	to the status 	quo ante 	is 	the appropriate
remedy 	for 	an 	unlawful 	unilateral 	change. 	Rio Hondo Community
College District 	(1983) 	PERB Decision No. 	292. 	However, 	given
the potential 	disruption 	from a 	rebidding of 	routes 	in 	the
middle of 	the 	school 	year, 	we decline 	to order an 	immediate
return 	to the 	status 	quo ante. 	The order 	shall 	reflect 	that,
absent 	agreement 	of 	the parties 	or 	completion of 	statutory
impasse procedures, 	the status 	quo ante shall be restored prior
to 	the 	route bidding 	for 	the next 	school year. 	Until 	such 	time,
the 	District 	shall 	make 	the 	affected drivers 	whole 	for 	any
continuing 	damages 	caused by 	its 	unlawful 	actions.
In sum, 	we 	find 	that 	CSEA established by a preponderance 	of
the 	evidence 	that 	the 	language of 	the 	original 	1980-83 	contract
12It 	is 	argued 	in 	Chairperson Hesse's 	dissent 	that 	damages
are precluded by 	the 	fact 	that 	the 	drivers 	who were 	wrongfully
placed below 	Rivera 	on 	the 	seniority 	list 	had 	the 	opportunity 	to
bid on routes 	equal 	to or 	greater 	than 	that 	chosen by Rivera. 	As
explained 	in footnote 4, 	supra, 	where the main routes 	are less
than 40 hours per week, 	their attractiveness 	is not solely
dependent 	on 	their 	length. 	We believe 	that 	the 	displaced 	drivers
should have 	the 	opportunity of 	showing 	that 	Rivera's 	improper
placement 	on 	the 	seniority 	list 	affected 	their 	assignment 	to
kindergarten or 	activity routes, 	creating calculable damages.
20

continued 	to 	control 	seniority 	calculation 	for 	the 	initial
assignment of bus 	routes 	in August 	1983. 	The District 	failed 	to
introduce 	credible 	evidence 	to 	support 	its 	contention 	that 	the
then 	existing 	(and 	lawful) 	policy required 	that 	such 	seniority
be calculated pursuant to sec. 	45308.13 We, 	therefore, 	affirm
13Chairperson 	Hesse's 	dissent 	erroneously asserts 	that 	the
District 	argued 	it 	had 	reached 	agreement 	with 	CSEA Chapter
President 	Yinger 	as 	to 	the 	calculation of 	Rivera's 	seniority.
The 	District 	argued 	only 	that 	Yinger had 	actual 	or 	apparent
authority at 	the 	August 	27 meeting to agree 	to allow Rivera 	to
bid on August 	31. 	Only 	in the August 	25 meeting was 	the
calculation of Rivera's 	seniority discussed. 	In 	fact, 	the
District 	clearly admits 	that Yinger 	was 	not 	acting 	in his
official 	capacity at 	the August 	25 meeting, 	for 	in both 	its
post-hearing brief 	and 	its 	exceptions 	to 	the proposed decision,
the 	District 	made 	a point 	of distinguishing Yinger's 	role 	at 	the
two meetings. 	The ALJ properly found, 	and we affirm, 	that
Yinger 	did have 	the 	actual 	or 	apparent 	authority to bind 	CSEA on
August 	27. 	Further, 	the District never argued that 	it relied on
Yinger's 	acquiescence at 	the August 	25 meeting. 	Therefore, 	the
argument 	in 	the dissent 	as 	to apparent 	authority 	fails 	on 	that
basis as well.
While 	we disagree with 	the 	conclusion 	in 	the dissent 	that
waiver 	could be 	found 	upon 	the 	facts 	of 	this 	case, 	we decline 	to
reach 	the 	issue because 	it 	is 	not properly before us. 	At no
time has 	the 	District 	argued 	that 	CSEA waived 	its 	right 	to
negotiate 	a 	change 	in 	the 	calculation of 	seniority. 	Nor 	did 	the
ALJ consider 	a 	waiver 	defense 	in his 	proposed decision.
Waiver 	is 	an affirmative defense which 	is 	itself 	waived 	if
not 	raised by 	the 	respondent. 	Walnut 	Valley Unified 	School
District 	(1983) 	PERB Decision No. 	289; 	Brawley Union High School
District 	(1982) 	PERB Decision No. 	266. 	Nevertheless, 	the Board
will 	raise an 	issue 	sua 	sponte 	if necessary to correct 	a serious
mistake of law. 	See, 	e.g., 	Fresno Unified School District 	(1982)
PERB Decision No. 	208. 	Fresno and 	its progeny involved 	issues 	of
law which 	were 	dealt 	with 	erroneously by 	the ALJ but 	not 	excepted
to. 	Therefore, 	had 	the Board adopted 	the proposed decisions
without 	correcting 	the mistakes, 	erroneous precedents 	would have
been established. 	In contrast, 	in the 	instant 	case the 	issue of
waiver 	was 	never 	argued by 	the 	District 	nor 	considered by 	the
ALJ. 	Likewise, 	our decision does 	not 	consider waiver but 	merely
relies 	on 	established 	law 	concerning 	unilateral 	changes 	and 	the
21

the 	decision below 	that 	the 	District 	violated 	EERA section
3543.5(a), 	(b) 	and 	(c) by making an unlawful unilateral change
in a matter 	within 	the scope of representation, 	as 	defined by
EERA section 	3543.2.
duty to bargain. 	Thus, 	no error of 	law is present 	in this
decision. 	Were we 	to 	raise 	sua 	sponte 	an unargued affirmative
- --	defense, 	as 	the dissent would have 	us 	do, 	we would effectively
be 	substituting our 	judgment 	as 	to how 	to 	try a particular 	case
for 	that 	of 	the party 	involved. 	Clearly, 	this 	would not be a
proper 	role 	for 	the 	Board.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and 	the entire 	record 	in the case, 	and pursuant 	to section
3541.5(c), 	it 	is hereby ORDERED that 	the Morgan Hill Unified
School 	District 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and negotiate 	in good 	faith
with 	the 	California 	School 	Employees 	Association 	and 	its 	Morgan
Hill 	Chapter 	#159 	by 	unilaterally altering 	the 	method 	by 	which
the 	District 	calculates 	the hours 	of 	seniority of bus 	drivers
for 	the purposes 	of 	initial 	assignments.
2. 	Denying 	the 	California 	School 	Employees 	Association and
its 	Morgan Hill 	Chapter 	#159 	the 	right 	to represent 	its 	members
by 	failing 	and 	refusing 	to meet 	and 	negotiate 	in 	good 	faith
concerning 	seniority 	calculation 	for 	the 	initial 	assignment 	of
bus routes.
22

3. 	Interfering 	with 	employees 	in 	the 	exercise of 	rights
guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act 	by
failing 	and 	refusing 	to meet 	and negotiate 	in good 	faith
concerning 	seniority 	calculation 	for 	the 	initial 	assignment 	of
bus routes.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
1. 	Upon request, 	meet and negotiate with CSEA, 	as 	defined
by EERA section 	3540.l(h), 	prior 	to adopting any change 	in the
existing 	method 	of 	calculating 	seniority of bus 	drivers 	for
purposes 	of 	initial 	assignments. 	If, 	however, 	subsequent to the
District's 	unlawful 	actions, 	the parties have on their own
initiative 	reached 	agreement 	or 	negotiated 	through 	completion of
statutory 	impasse 	procedures 	concerning 	seniority 	calculation
for 	initial 	assignments, 	further negotiations 	shall not be
required 	as 	a result 	of 	this 	Decision.
2. 	Absent 	agreement of 	the parties 	or negotiation through
completion of 	statutory 	impasse procedures, 	restore 	the 	status
quo ante prior 	to 	the 	initial 	assignment 	of bus 	routes 	for 	the
1986-87 	school 	year 	by adjusting Vicki 	Rivera's 	seniority 	(for
the purpose of 	initial assignments) 	to exclude her hours 	as 	a
dispatcher.
3. 	Make whole any employee who has 	suffered, 	or 	continues
to suffer, 	financial 	or seniority loss 	as 	a consequence of 	the
District's 	unilateral 	change 	of 	the 	method 	of 	calculating
seniority for 	initial 	assignments 	in 1983. 	If, 	however,
-
23
----

subsequent 	to 	the 	District's 	unlawful 	actions, 	the parties 	have
on 	their 	own 	initiative 	reached 	agreement 	or 	negotiated 	through
completion 	of 	statutory 	impasse 	procedures 	concerning 	seniority
calculation 	for 	initial 	assignments, 	monetary liability shall
terminate at 	that 	time.
4. 	Within 	thirty-five 	(35) 	days 	following the date 	this
Decision 	is 	no longer subject 	to reconsideration, 	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 	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.
5. 	Written notification of 	the 	actions 	taken 	to comply with
this 	Order 	shall 	be 	made 	to 	the 	regional 	director of 	the 	Public
Employment 	Relations 	Board 	in accordance 	with her 	instructions.
It 	is 	further 	ORDERED that 	all 	other 	allegations 	in the
action herein 	are hereby 	DISMISSED.
This 	Order 	shall 	become 	effective 	immediately upon 	service
of 	a 	true 	copy 	thereof 	upon 	the Morgan Hill 	Unified 	School
District.
Member 	Burt 	joined 	in 	this 	Decision. 	Chairperson Hesse's
dissent begins 	on p. 	25.
24

Hesse, 	Chairperson, 	dissenting: 	On appeal, 	the District
asserts 	that 	it 	did not 	unilaterally change 	the method 	of
determining 	seniority 	for 	the purpose 	of bidding 	on bus
routes. 	The District argues 	that 	it 	reached agreement with the
CSEA chapter president, 	i.e., 	an agent of 	the exclusive
representative.1 I 	respectfully dissent 	from 	the 	majority
opinion which 	finds 	no such 	agreement.
On August 	25, 	1983, 	the president of 	the CSEA Morgan Hill
Chapter, 	Jay Yinger, 	met with the District personnel director
1 The 	District 	argued 	that 	it 	reached 	agreement 	with 	CSEA
as 	to the 	seniority calculation. 	In 	its Answer, 	the 	District
stated, 	in relevant part:
8. 	As 	its 	eighth affirmative defense,
Respondent 	alleges 	that 	the 	method 	for
computing Vicki 	Rivera's 	seniority was
consistent 	with past 	practice 	and 	the
parties' 	agreement and was 	the same method
as 	that 	used 	for all 	other bus 	drivers 	in
the District. 	. 	. 	.
9. 	As 	its 	ninth affirmative defense,
Respondent 	alleges 	that Ms. 	Rivera was
allowed 	to bid on bus 	runs 	at 	the 	same 	time
as 	all 	other bus 	drivers 	in accordance with
an 	agreement 	reached 	between 	Respondent 	and
Charging 	Party.
10. 	As 	its 	tenth affirmative defense,
Respondent 	alleges 	that 	the 	agreement
between 	Respondent 	and 	Charging 	Party
allowing Ms. 	Rivera to bid on bus 	runs at
the 	same 	time as 	other 	drivers 	was 	reached
prior 	to the bidding of 	routes 	on August 	31,
1983. 	(Emphasis 	added.)
Based on the 	evidence 	the 	District produced, 	I 	find the
District 	did 	reach 	agreement 	with 	the 	CSEA chapter 	president,
and 	argued 	the 	same.
25
'

to discuss 	crediting Vickie 	Rivera's 	hours 	as 	a bus 	dispatcher
for 	bidding purposes. 	Yinger 	told 	the 	District 	that he 	was
acting as 	a 	friend, 	and not 	in his 	official 	capacity as 	chapter
president. 	Later, 	the 	District 	agreed 	to credit 	Rivera with
her hours 	as 	a dispatcher.
On August 	27, 	Yinger met with 	the District 	to discuss
whether 	Rivera 	would be 	allowed 	to bid 	with 	the other 	drivers,
even 	though 	she 	was 	required 	to 	continue 	working 	temporarily as
a dispatcher 	at 	the 	time. 	At 	this 	meeting, 	Yinger acted 	in his
official 	status 	as 	the chapter president. 	The District 	and
Yinger 	agreed 	to 	allow Rivera 	to bid on bus 	routes 	with 	the
other 	drivers. 	The bidding was 	scheduled 	to take place 	on
August 31.
On August 30, 	1983, 	the day before the bidding, 	CSEA Field
Representative 	Stephen 	Pearl 	discussed 	the 	seniority dispute
with Yinger 	and some of 	the bus 	drivers. 	Although Pearl
disagreed with Yinger's handling of 	the matter, 	it was 	not
until September 19, 	or three 	(3) 	weeks 	later, 	that Pearl
notified 	the 	District 	that 	CSEA was 	taking a position contrary
to Yinger's.
In similar 	cases, 	the Board has 	ruled that officers 	or
agents 	of 	employee 	organizations 	must 	be presumed 	to be 	acting
on behalf of 	the organization. 	Furthermore, 	the acts 	of an
officer 	or 	agent 	within his 	apparent 	authority are binding 	on
the organization. 	In Antelope Valley Community College
District 	(1979) 	PERB Decision No. 	97, 	the Board held:
26

Under 	California common law, 	the acts 	of an
agent 	within his 	actual 	or 	apparent
authority are binding 	on 	the principal.
Apparent 	authority results 	from 	conduct 	of
the principal 	upon which 	third persons 	rely
in dealing with agents. 	The 	liability of
the principal 	attaches 	where 	such 	reliance
was 	reasonable and results 	in a change 	in
position by 	the 	third party. 	(Antelope
Valley, 	supra, 	at p. 	11.) 	(Emphasis in
original.)
In the August 27 meeting, 	Yinger had apparent, 	if not actual,
authority to negotiate 	the 	seniority 	issue 	on behalf 	of 	CSEA.
In addition, 	the Board has held 	that
Officers 	of 	employee 	organizations 	should be
presumed 	to be 	acting 	with 	the 	authorization
of 	and on behalf 	of 	the 	organization on
those 	matters 	which 	even 	remotely relate 	to
the goals 	or 	interests 	of 	the organization.
If 	the determination of 	"organizational
activity" 	were dependent 	upon 	specific
authorization, 	the natural 	result 	would be
that public 	school 	employers 	and 	the PERB
would 	be 	required 	to 	continuously monitor
the 	internal 	affairs 	of 	employee
organizations 	in order 	to 	ascertain whether
an 	individual had 	been properly 	authorized
to act 	on behalf 	of 	the organization. 	This
is 	hardly the 	function of 	either public
agency. 	(San Diego Community College
District 	(1983) 	PERB Decision No. 	368,
citing 	the 	Board's 	affirmance of 	a hearing
officer's 	decision 	in 	Santa Monica 	Unified
School 	District 	(1980) 	PERB Decision No.
147.)
Thus, 	I conclude 	that 	Yinger had authority to act 	on behalf
of 	CSEA in reaching agreement 	on 	the 	seniority matter. 	Not
only was 	an agreement 	reached with Yinger 	in 	the August 	27,
1983 	meeting, 	but 	I 	also 	find 	that 	agreement was 	reached 	in 	the
August 25 meeting, 	as well.
In Ravenswood City School 	District 	(1984) 	PERB Decision No.
27

469, 	the 	Board 	found a 	violation when a 	supervisor 	counseled an
employee 	(and 	the 	supervisor's 	"friend") 	regarding her pursuit
of a 	grievance. 	The 	supervisor 	acted on behalf 	of 	the 	employee
and had 	assisted 	in both 	the 	filing 	and 	the processing 	of 	the
grievance. 	The 	Board held 	that 	supervisory participation 	or
interference 	in an employee's 	protected 	right 	is 	imputable 	to
the employer. 	In essence, 	the supervisor was not allowed to
remove her 	supervisory 	"hat," 	despite her good 	intentions 	and
her 	good 	faith conduct. 	Likewise, 	here 	the 	CSEA local
president 	was 	acting as a 	"friend" 	of 	Rivera, 	but negotiating
on her 	behalf. 	It 	would 	indeed be a 	double 	standard 	to allow a
union official 	to remove his 	official status, 	yet preclude a
supervisor 	from doing 	the 	same.
Even 	if 	an artificial 	distinction 	is 	made of 	Yinger's
status 	as 	a 	"friend" 	rather 	than an agent 	at 	the August 	25
meeting, 	it must 	be granted 	that 	CSEA 	(through 	Chapter
President 	Yinger) 	was 	on notice of 	the District's proposed
action. 	Again, 	when Yinger met 	with 	the 	District 	on August 	27
to discuss 	the bidding procedure, 	he 	failed to raise an
objection 	to 	the 	calculations. 	CSEA's 	silence 	could be 	found
to be 	a waiver 	of 	the opportunity to bargain 	the 	issue.
2Yinger's 	failure 	to object 	at 	the August 	27 	meeting 	is
not 	the only waiver by CSEA. 	As 	noted above, 	Field
Representative 	Pearl 	became aware 	of 	the dispute on August 	30,
the day before 	the bus 	drivers 	bidding. 	He was 	first notified
by an employee 	in a telephone 	call. 	Later 	that 	evening, 	at a
strategy 	meeting 	for 	negotiations 	on a 	successor 	contract,
Pearl met 	with Yinger and other bus 	drivers. 	At 	this 	meeting,
28

the 	seniority dispute was 	discussed at great 	length. 	Yet 	it
was 	not until 	September 19, 	three weeks 	later, 	that Pearl
notified 	the District 	of 	CSEA's 	position on 	the 	issue.
Even after 	the August 	30th meeting, 	neither 	Pearl nor
Yinger 	approached 	the 	District 	with 	objections 	and 	a demand 	to
negotiate, 	despite 	their 	knowledge of 	the proposed placement.
CSEA had 	a 	reasonable 	opportunity 	to bargain 	the 	issue before
the bidding occurred. 	By 	its 	failure 	to do so, 	CSEA waived 	its
right 	to negotiate. 	Therefore, 	the District's 	change was 	not a
violation of 	the 	EERA.
Thus, 	I disagree 	with the majority 	in their 	finding no
agreement 	was 	reached between 	the parties. 	The 	District 	met
with 	CSEA Local 	President 	Yinger 	and 	reached 	agreement 	on 	the
seniority 	issue. 	No unilateral 	action was 	taken. 	The 	District
did not violate EERA section 3543.5(a), 	(b) 	and 	(c). 	The ALJ's
proposed 	decision 	should 	be 	reversed 	and 	this 	unfair 	practice
case 	dismissed.
Even 	if a violation 	is 	found, 	this 	is 	not a 	"matter 	for
compliance." 	Rivera 	bid on a 	28 	3/4-hour 	assignment. 	The 	next
three 	employees 	passed 	up not 	only 	another 	28 	3/4-hour 	slot,
they passed up a 	31 	3/4 hour slot. 	Thus, 	even 	if a violation
is 	found, 	the only remedy that 	is 	appropriate 	is 	to cease and
desist 	from 	unilaterally 	changing 	the 	method 	by which bidding
seniority 	for bus 	drivers 	is 	calculated.
29

APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OP 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	SF-CE-844,
California 	School 	Employees 	Association and 	its 	Morgan Hill
Chapter 	#159 	v. 	Morgan Hill 	Unified 	School 	District, 	in which all
parties had 	the 	right 	to participate, 	it has 	been 	found 	that 	the
District violated Government Code section 3543.5(a), 	(b) 	and 	(c)
by unilaterally 	changing 	the 	method 	by which 	seniority 	is
calculated 	for 	the purpose of 	initial 	assignment of bus 	drivers.
As 	a 	result of 	this 	conduct, 	we have been ordered 	to post 	this
Notice, 	and will abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Failing 	and 	refusing 	to meet 	and negotiate 	in good 	faith
with 	the 	California 	School 	Employees 	Association and 	its 	Morgan
Hill 	Chapter 	#159 	by 	unilaterally 	altering 	the 	method 	by which
the 	District 	calculates 	the hours 	of 	seniority of bus 	drivers
for 	the purposes 	of 	initial 	assignments.
2. 	Denying 	the 	California 	School 	Employees 	Association 	and
its 	Morgan Hill 	Chapter 	#159 	the 	right 	to represent 	its 	members
by 	failing 	and 	refusing 	to 	meet 	and negotiate 	in 	good 	faith
concerning 	seniority 	calculation 	for 	the 	initial 	assignment 	of
bus routes.
3. 	Interfering with employees 	in 	the 	exercise of 	rights
guaranteed by 	the 	Educational 	Employment 	Relations 	Act 	by
failing 	and 	refusing 	to meet 	and negotiate 	in good 	faith
concerning 	seniority 	calculation 	for 	the 	initial 	assignment 	of
bus routes.
B. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO 	EFFECTUATE
THE 	POLICIES 	OF 	THE 	EDUCATIONAL EMPLOYMENT 	RELATIONS ACT:
1. 	Upon request, 	meet and negotiate with CSEA, 	as defined
by EERA section 	3540.1(h), 	prior 	to adopting any change 	in the
existing method 	of 	calculating 	seniority of 	bus 	drivers 	for
purposes 	of 	initial assignments. 	If, 	however, 	subsequent 	to the
District's 	unlawful 	actions, 	the parties have on their own
initiative 	reached 	agreement 	or 	negotiated 	through 	completion 	of
statutory 	impasse 	procedures 	concerning 	seniority 	calculation
for 	initial 	assignments, 	further 	negotiations 	shall 	not be
required 	as 	a result 	of 	this 	Decision.
ex
ff
e

2. 	Absent 	agreement 	of 	the parties 	or 	negotiation 	through
completion of 	statutory 	impasse procedures, 	restore 	the 	status
quo 	ante prior 	to 	the 	initial 	assignment 	of bus 	routes 	for 	the
1986-87 	school 	year 	by adjusting Vicki 	Rivera's 	seniority 	(for
the purpose of 	initial assignments) 	to exclude her hours 	as 	a
dispatcher.
3. 	Make whole any employee who has 	suffered, 	or 	continues
to suffer, 	financial 	or 	seniority loss 	as 	a consequence of 	the
District's 	unilateral 	change 	of 	the 	method 	of 	calculating
seniority for 	initial 	assignments 	in 1983. 	If, 	however,
subsequent 	to the 	District's 	unlawful 	actions, 	the parties have
on 	their 	own 	initiative 	reached 	agreement 	or 	negotiated 	through
completion 	of 	statutory 	impasse 	procedures 	concerning 	seniority
calculation 	for 	initial 	assignments, 	monetary liability shall
terminate at 	that 	time.
Dated: 	MORGAN HILL 	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 BY ANY
MATERIAL.
22