El Dorado Union High School District (PERB 0564E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	PONDERADO
CHAPTER NO. 	267,
Charging 	Party,
v.
EL 	DORADO 	UNION 	HIGH 	SCHOOL
DISTRICT,
Respondent.
Case No. 	S-CE-775
PERB Decision No. 	564
April 4, 	1986
Appearances; 	Minnie 	Franklin, 	Field Representative for 	the
California 	School 	Employees 	Association 	and 	its 	Ponderado
Chapter No. 	267; 	Girard and Griffin by Thomas M. 	Griffin 	for
El 	Dorado 	Union 	High 	School 	District.
Before Morgenstern, 	Porter and Craib, 	Members.
DECISION
PORTER, 	Member: 	El 	Dorado Union 	High 	School 	District
(District) 	excepts 	to 	the proposed 	decision, 	attached 	hereto,
by 	a 	Public 	Employment 	Relations 	Board 	(PERB 	or 	Board)
administrative 	law 	judge 	(ALJ) 	finding 	that 	the 	District
violated 	section 	3543.5(a) 	and 	(b) 	of 	the 	Educational
Employment 	Relations 	Act 	(EERA 	or 	Act).1 Specifically, 	the
ALJ 	found 	the 	District 	violated 	the 	Act 	by 	cancelling 	the
assignment 	of 	an 	overnight 	field 	trip 	to 	three 	district 	bus
1EERA 	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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drivers 	in 	retaliation 	for 	the 	exercise 	of 	rights 	protected 	by
the 	Act 	and 	by 	interfering 	with 	the 	right 	of 	the 	drivers 	to
seek 	the 	representation 	of 	their 	employee 	organization 	and 	with
the 	right 	of 	the 	employee 	organization 	to 	provide
representation.
We 	have 	reviewed 	the ALJ's 	findings 	of 	fact, 	conclusions 	of
law 	and 	proposed 	decision 	and, 	finding 	them 	free 	from
prejudicial 	error, 	adopt 	them as 	those 	of 	the Board 	itself,
save 	and 	except 	those 	portions 	of 	the 	decision 	interpreting 	the
collective 	bargaining 	agreement. 	We 	find 	this 	interpretation
was 	unnecessary 	to 	resolution 	of 	the 	charges, 	and 	therefore 	do
not 	adopt 	the 	ALJ's 	discussion 	or 	conclusion 	in 	that 	regard.
Inasmuch 	as 	neither 	party 	excepted 	to 	the 	ALJ's 	remedy,
however, 	we adopt 	it 	as that 	of 	the Board, 	notwithstanding that
the 	ALJ's 	interpretation 	of 	the 	contract 	was 	the 	basis 	upon
which 	such 	remedy was 	granted.
ORDER
Based 	on 	the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	it 	is 	hereby ORDERED that
the 	District, 	its 	governing 	board 	and 	its 	representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Retaliating 	against 	employees 	because 	of 	their
exercise 	of 	the 	protected 	right 	to 	seek 	representation 	by 	an
employee 	organization 	in 	their 	employer-employee 	relations 	by
cancelling 	work 	assignments 	which 	had 	been 	given 	to 	them 	and
thereby 	causing 	them 	to 	lose 	extra 	pay.
N	2

(b) 	Interfering with the 	right 	of 	employees 	to seek
representation 	by 	an 	employee 	organization 	in 	their
employer-employee 	relations 	by warning 	them 	that 	the 	filing 	of
grievances 	will 	result 	in 	the 	loss 	of 	work 	assignments 	and 	by
cancelling 	such 	assignments.
(c) 	Interfering with 	the 	right 	of 	an 	employee
organization 	to 	represent 	its members 	in 	their
employer-employee 	relations 	by warning 	employees 	that 	the
filing of 	grievances will 	result 	in 	the 	loss 	of work
assignments 	and 	by 	cancelling 	such 	assignments.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
(a) 	Compensate bus drivers Dianne Woodson, 	Victoria
Tilley 	and 	Claudia 	Larson 	for 	wages 	lost 	because 	of 	the
District 	cancellation 	of 	their 	assignment 	to 	drive 	students 	to
San 	Mateo on May 	12 	and 	13, 	1984. 	Each driver 	shall 	be paid
for 	four 	hours 	of work 	on 	May 	12 	and 	a 	full 	day on May 	13, 	with
the 	workday 	concluding 	at 	8:30 	p.m. 	unless 	either 	party 	can
demonstrate 	that 	the 	trip 	as 	actually made 	by 	the 	charter 	bus
company 	required 	either 	a 	greater 	or 	lesser 	amount 	of 	time.
Insofar 	as 	any portion 	of 	the 	trip 	normally would 	have 	been
paid 	at 	the 	overtime 	rate 	under 	the 	contract 	between 	the
parties, 	the 	back 	pay 	award 	shall 	be 	calculated 	accordingly.
The 	amount 	due 	each 	driver 	shall 	be 	augmented 	by 	interest 	at
the 	rate 	of 	10 	percent 	with 	the 	interest 	due 	from 	the 	date
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District 	drivers 	received 	paychecks 	covering 	the 	period 	of 	May
12 and 13, 	1984.
(b) 	Within 	35 	days 	following 	the 	date 	this 	Decision 	is
no 	longer 	subject 	to 	reconsideration, 	post 	at 	all 	school 	sites
and 	all 	other 	work 	locations 	where 	notices 	to 	employees 	are
customarily placed, 	copies 	of 	the 	Notice 	attached 	hereto 	as 	an
Appendix. 	The 	Notice must 	be 	signed 	by 	an 	authorized 	agent 	of
the 	District, 	indicating 	that 	the 	District will 	comply with 	the
terms 	of 	this 	Order. 	Such 	posting 	shall 	be maintained 	for 	a
period 	of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken 	to 	insure 	that 	the 	Notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or 	covered 	by any other material.
(c) 	Make written 	notification 	of 	the 	actions 	taken 	to
comply with 	this 	Order 	to 	the 	Sacramento 	Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in 	accordance 	with 	his
instructions.
It 	is 	further 	ORDERED 	that 	the portion 	of 	the 	complaint 	and
charge 	which 	alleges 	that 	the 	District 	subcontracted 	unit 	work
is 	hereby 	DISMISSED.
Members 	Morgenstern 	and 	Craib 	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
After 	a 	hearing 	in 	Unfair 	Practice 	Case No. 	S-CE-775,
California 	School 	Employees 	Association 	and 	its 	Ponderado
Chapter No. 	267 	v. 	El Dorado Union High School 	District, 	in
which 	all 	parties 	had 	the 	right 	to participate, 	it has been
found 	that 	the 	El 	Dorado 	Union 	High 	School 	District 	violated
section 	3543.5(a) 	of 	the 	Educational 	Employment 	Relations 	Act
by 	imposing 	reprisals 	against 	employees 	because 	of 	their
exercise 	of 	the 	protected 	right 	to 	seek 	the 	assistance 	of 	an
employee 	organization 	in 	their 	employer-employee 	relations.
The 	reprisal 	took 	the 	form of 	a 	cancellation 	of 	an 	assignment
to 	drive 	students 	on 	a weekend 	field 	trip 	to 	San Mateo. 	The
District 	also 	violated 	subsection 	(a) 	when 	it 	interfered 	with
the 	right 	of 	employees 	to 	seek 	the 	assistance 	of 	an 	employee
organization 	in 	their 	employer-employee 	relations. 	The
interference 	took 	the 	form 	of 	a 	supervisor's 	warning 	to
employees 	that 	the 	filing 	of 	grievances 	would 	lead 	to 	the
cancellation 	of 	the 	trip 	to San Mateo. 	It 	also has been 	found
that 	by this 	same 	conduct 	the 	District 	violated 	section
3543.5(b) 	when 	it 	denied 	CSEA 	its 	right 	to 	represent 	its
members.
As 	a 	result 	of 	this conduct, 	we 	have 	been 	ordered 	to post
this 	Notice, 	and will 	abide 	by the 	following. 	We will:
1. 	CEASE AND DESIST 	FROM:
(a) 	Retaliating against 	employees 	because 	of 	their
exercise 	of 	the 	protected 	right 	to 	seek 	representation 	by 	an
employee 	organization 	in 	their 	employer-employee 	relations 	by
cancelling work 	assignments 	which 	had 	been 	given 	to 	them 	and
thereby 	causing 	them 	to 	lose 	extra 	pay.
(b) 	Interfering with 	the 	right 	of 	employees 	to 	seek
representation 	by 	an 	employee 	organization 	in 	their
employer-employee 	relations 	by 	warning 	them 	that 	the 	filing 	of
grievances will 	result 	in 	the 	loss 	of work 	assignments 	and 	by
cancelling 	such 	assignments.
(c) 	Interfering 	with 	the 	right 	of 	an 	employee 	organization
to 	represent 	its 	members 	in 	their 	employer-employee 	relations
by warning 	employees 	that 	the 	filing 	of 	grievances 	will 	result
in 	the 	loss 	of 	work 	assignments 	and 	by 	cancelling 	such
assignments.
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2. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS 	ACT:
Compensate 	bus 	drivers 	Dianne Woodson, 	Victoria 	Tilley 	and
Claudia 	Larson 	for wages 	lost 	because 	of 	the 	District
cancellation 	of 	their 	assignment 	to 	drive 	students 	to 	San
Mateo 	on May 	12 	and 	13, 	1984. 	Each 	driver 	shall 	be paid 	for
four 	hours 	of work 	on May 	12 	and a 	full 	day on May 13, 	with
the 	workday concluding at 	8:30 	p.m. 	unless 	either 	party 	can
demonstrate 	that 	the 	trip as 	actually made 	by 	the 	charter 	bus
company 	required 	either 	a 	greater 	or 	lesser 	amount 	of 	time.
Insofar 	as 	any portion 	of 	the 	trip 	normally would 	have 	been
paid 	at 	the 	overtime 	rate 	under 	the 	contract 	between 	the
parties, 	the 	back 	pay 	award 	shall 	be 	calculated 	accordingly.
The 	amount 	due 	each 	driver 	shall 	be 	augmented 	by 	interest 	at
the 	rate 	of 	10 	percent with 	the 	interest 	due 	from the date
District 	drivers 	received 	paychecks 	covering 	the 	period 	of
May 12 and 	13, 	1984.
Dated: 	EL 	DORADO 	UNION 	HIGH 	SCHOOL
DISTRICT
By: Authorized 	Representative
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.
N	2

STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its 	PONDERADO
CHAPTER NO. 	267,
Charging 	Party,
V.
EL DORADO UNION HIGH SCHOOL DISTRICT,
R e s p o n d e n t .
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PROPOSED 	DECISION
(1/31/85)
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Appearances: 	Brian H. 	Caldeira, 	Field Director 	for 	the
California 	School 	Employees 	Association 	and 	its 	Ponderado
Chapter No. 	267; 	Thomas M. 	Griffin, 	Attorney 	(Girard and
Griffin) 	for 	the El 	Dorado Union High 	School District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case 	involves 	the 	cancellation 	of 	an 	assignment 	for
three 	school 	bus drivers 	to 	take 	students 	on an overnight 	trip
from Placerville 	to 	San Mateo. 	After 	cancelling 	the 	trip 	for
its own drivers, 	the 	school district 	employed 	Greyhound 	to
transport 	the 	students. 	The 	exclusive 	representative 	contends
that 	the 	district's 	action was 	the 	unilateral contracting 	out
of unit work. 	Moreover, 	the union continues, 	the action was
taken 	as 	a 	reprisal 	because 	the 	union 	had challenged 	the
employer's 	intended method 	for 	paying 	the 	drivers. 	The
district 	denies 	that 	it committed 	any unfair practice, 	arguing
that 	its 	action 	was 	consistent 	with prior 	practice 	on 	the 	use
of commercial carriers 	to 	transport 	students. 	The district
This Board agent decision has been appealed to
the Board itself and is not final. 	Only to the
extent the Board itself adopts this decision and
rationale may it be cited as precedent.
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also denies 	that 	it 	acted with 	retaliatory 	intent.
The charge which commenced 	this 	action was 	filed 	on 	June 	4,
1984, 	by 	the California School Employees Association and 	its
Ponderado 	Chapter 	No. 	267 	(hereafter 	CSEA or 	Association)
against 	the 	El 	Dorado 	Union 	High 	School 	District 	(hereafter
District). 	The charge alleges that the District's action 	in
cancelling 	the 	bus 	trip and 	employing 	Greyhound 	was 	the
unilateral 	contracting 	out 	of 	unit 	work, 	the 	imposition of 	a
reprisal 	because of 	the exercise of protected rights, 	the
denial 	to CSEA of 	the 	right 	to 	represent 	its members 	and 	an
interference 	with employee 	exercise 	of protected 	rights. 	Such
conduct was 	alleged 	by CSEA to 	be 	in 	violation 	of 	subsections
3543.5 	(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act.1
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government 	Code. 	The 	Educational 	Employment Relations Act
(hereafter EERA) 	is 	found at section 3540 et seq. 	In 	relevant
part, 	section 	3543.5 provides as follows:
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	2

On July 11, 	1984, 	the Sacramento Regional Attorney of 	the
Public 	Employment 	Relations Board 	(hereafter 	PERB) 	issued 	a
complaint 	against 	the 	District 	which 	incorporated 	the
allegations 	in 	the charge. 	The District 	filed 	an answer 	to the
complaint on July 	26, 	1984, 	denying 	that 	it had committed any
unfair 	practice 	and 	asserting 	affirmatively 	that 	its 	action was
consistent with past practice 	in 	the 	use of private carriers.
In addition, 	the District asserted, 	CSEA waived 	its right to
negotiate 	over 	the 	subject 	of 	contracting 	out 	by 	the 	withdrawal
of 	a 	negotiating 	proposal which 	had 	addressed 	the 	issue.
Moreover, 	the District continued, 	the 	transportation of
students 	on 	field 	trips 	is 	not 	bargaining 	unit work 	and,
finally, 	the 	PERB lacks 	jurisdiction 	to 	hear 	and decide 	the
matter.2
A hearing was conducted 	on October 	9, 	1984. 	The parties
filed 	simultaneous 	briefs which were 	received 	on December 	17,
1984, 	at which time the matter was 	submitted for decision.
2In 	support 	of 	this contention, 	the 	District cited EERA
subsections 3541.5 	(a) 	and 	(b). 	Subsection 	(a) 	prohibits the
PERB 	from 	issuing 	a 	complaint where 	the 	contract 	covers 	the
matter 	at 	issue 	and 	the contractual grievance machinery has 	not
been 	exhausted 	by 	settlement 	or 	binding 	arbitration.
Subsection 	(b) 	prohibits 	the 	PERB 	from enforcing 	agreements
between 	the 	parties 	and provides 	that 	a complaint 	shall 	not 	be
issued on a contractual violation unless 	it 	also constitutes 	an
unfair 	practice.
The 	District provided 	no 	explanation 	in 	its 	answer 	for 	how
it 	believed 	that 	the complaint 	in 	the case 	had 	been 	issued 	in
violation 	of 	either 	subsection. 	In 	its post-hearing 	brief, 	the
District did 	not 	address 	the contention. 	The District has 	not
made 	a motion 	to dismiss 	based 	on 	its 	contention 	and 	the
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FINDINGS 	OF 	FACT
The 	El Dorado Union High 	School 	District 	is 	a public 	school
employer 	with 	schools 	in 	five 	El Dorado County communities.
The 	District 	has 	an enrollment 	of 	approximately 	4,200 	high
school 	students.3 At 	all 	times 	relevant, 	CSEA has 	been 	the
exclusive 	representative 	of 	the 	classified 	employee 	unit which
includes 	transportation department 	employees.
The Assignment.
On May 7, 	1984, 	three District bus drivers, 	all members of
the 	unit 	represented 	by CSEA, 	were 	offered 	the 	opportunity 	to
drive 	the 	Ponderosa High School band 	and chorale, 	their
teachers 	and chaperons on a weekend 	trip to San Mateo. 	The
trip was 	to commence 	at 	7:30 	a.m. 	on May 	12 	and conclude 	about
8:30 p.m. 	on May 13. 	Approximately 115 	students, 	3 	teachers
and 	19 	to 	21 chaperons were 	scheduled 	to make 	the 	trip on
3 	District 	buses. 	In 	accord with 	established 	District
practice, 	the 	three 	drivers 	— 	Dianne Woodson, 	Victoria 	Tilley
and 	Claudia 	Larson 	— 	all 	marked 	the 	assignment 	slip 	to
indicated 	acceptance of 	the 	trip.
The 	assignment 	of 	special 	trips 	is 	a common event 	in 	the
rationale 	for 	the 	affirmative defense 	set 	out 	in 	the 	answer 	is
not 	apparent 	from an examination of 	the pleadings. 	It 	is
concluded 	that 	the District, 	by 	its 	failure 	to address 	the
contention 	in 	its 	brief 	or 	to make 	a motion to dismiss, 	has
abandoned 	the 	jurisdictional argument. 	It 	therefore 	is not
considered 	in 	this 	proposed 	decision.
33 The 	District 	enrollment 	figures 	are drawn 	from 	the
California 	Public School Directory, 	1984, 	published by the
California 	State 	Department 	of 	Education.
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District 	and 	drivers 	are 	offered 	the 	opportunity 	for 	them on 	a
rotational basis. 	Some drivers make as many as 	50 	to 	100
special 	trips per 	year. 	The 	trips 	allow drivers 	to earn
additional 	income 	and 	it 	is 	the District's practice 	to 	offer
all drivers 	the 	same 	number 	of 	trips 	each year. 	The
least-frequently 	assigned 	type 	of 	special 	trip 	is 	one 	that
requires 	an overnight 	stay.
The 	day 	after 	she 	agreed 	to 	the 	San Mateo 	assignment,
Claudia 	Larson 	questioned 	the 	driver 	coordinator,
Phyllis Riley, 	and 	the transportation manager, 	Glen Hunter,
about 	how 	the 	hours would 	be calculated 	for 	pay purposes. 	The
assignments were made by Ms. 	Riley at 	the direction of
Mr. 	Hunter who 	supervises 	the 	transportation department. 	The
two 	supervisors were 	together 	when Ms. 	Larson asked 	the
question. 	Mr. 	Hunter 	responded 	that on the first day, 	the
drivers 	would 	be 	paid 	for 	the 	amount 	of 	time 	it 	took 	to drive
to 	San Mateo 	and check 	into their 	hotel 	rooms. 	This was
estimated at about 	four 	hours. 	He 	told her 	that on Sunday, 	the
drivers would be paid for 	the entire day, 	until their 	return to
the District. 	Ms. 	Larson did not challenge 	this method of
payment 	and made 	no 	complaints 	to CSEA.
The other 	two drivers, 	Victoria Tilley and Dianne Woodson,
both CSEA members, 	did discuss 	the matter 	with 	a CSEA
representative. 	Shortly 	after 	she 	accepted 	the 	assignment,
Ms. 	Tilley, 	the CSEA chapter vice president, 	asked Ms. 	Riley
how the 	hours would 	be calculated. 	Ms. 	Riley responded 	that
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the drivers 	would 	be 	paid 	for 	driving 	time 	on 	Saturday 	and 	for
the 	full day on 	Sunday. 	Ms. 	Tilley challenged 	that plan as
contrary 	to 	past 	practice 	and 	stated 	that 	drivers 	should 	be
paid 	for 	16 hours on Saturday. 	Ms. 	Tilley told Ms. 	Riley she
"would get back 	to 	her" 	about 	the method of payment.
Following her conversation with Ms. 	Riley, 	Ms. 	Tilley went
to the CSEA shop steward, 	Georgia Ybright, 	and 	told her 	about
the 	District's 	planned method 	of 	compensating 	drivers 	for 	the
San Mateo trip. 	Ms. 	Ybright 	told Ms. 	Riley that 	she would 	find
out about 	the past practice 	but 	that 	in 	the meantime 	the
drivers 	should go 	ahead with 	the 	trip. 	If 	it became 	necessary,
Ms. 	Ybright 	said, 	CSEA could 	file a grievance 	later.
Ms. 	Woodson 	overheard 	the 	conversation 	and 	separately discussed
the matter 	with Ms. 	Ybright who gave her 	the 	same 	advice 	she
gave Ms. 	Tilley.
Georgia Ybright 	then went 	to Mr. 	Hunter. 	She 	told him that
under 	the contract 	the only 	time drivers 	should 	not 	be paid 	on
overnight 	trips 	was 	for 	the 	eight 	hours 	of 	sleep 	required 	by
law.4 Mr. 	Hunter 	responded 	that under 	the contract, 	drivers
4The 	relevant provision of 	the contract 	in existence 	at
the time provides 	in Article VII, 	section 6, 	as follows:
6. 	Salary
a. 	Bus drivers who must chain up on
snow days will receive one 	(1) 	hour
additional pay 	for 	each day 	they
chain up.
b. 	Bus drivers will 	receive
compensation 	for 	hours 	driven 	only
6

who work 	overnight 	trips 	are 	not 	entitled 	to pay 	after 	they 	are
released for 	the evening. 	At that point, 	Ms. 	Ybright told
Mr. 	Hunter 	that 	the drivers would 	take 	the 	trip and 	the parties
plus one-half 	hour 	bus 	preparation
time 	and 	standby 	time 	for 	trips
outside 	regularly 	assigned 	bus
routes.
c. 	Each driver 	must 	safety 	inspect
each different 	bus 	they 	drive
during the day, 	prior 	to
transporting 	students. 	Payment 	for
additional 	inspection(s) 	shall be
fifteen 	(15) 	minutes for each bus,
or 	twenty-five 	(25) 	minutes for
buses 	equipped with 	dual 	air 	brake
systems.
d. 	Bus drivers on special 	trips,
including 	but 	not 	limited 	to
athletic events, 	field trips, 	and
curricular 	trips 	who 	are 	required
to remain on 	standby, 	will be paid
at 	the 	appropriate 	rate of pay 	for
the duration of 	the 	event 	for 	which
the special 	trip 	is made.
e. 	Notwithstanding 	any other
provisions of this Agreement, 	if a
special 	trip 	requires 	an overnight
stay, 	the District shall be
relieved 	of 	the 	obligation of
payment 	for 	any 	hours 	between 	the
time a bus driver 	is 	relieved 	of
duties 	for 	the 	evening 	and 	the 	time
duties 	resume 	the 	following 	morning.
f. 	Trip drivers may 	be 	taken off 	their
regular 	route 	assignment 	to 	take 	a
special trip. 	In such cases
drivers will 	be 	paid 	for 	their 	trip
time pursuant 	to 	the provisions of
the 	agreement 	and 	not 	their 	missed
route time.
7

could 	"settle 	it when 	they come 	back." 	She 	testified 	that
Mr. 	Hunter 	warned 	"that by pursuing grievances 	and continuing
to pursue 	this 	line, 	that we were going 	to end up doing
ourselves 	harm by 	the 	District 	taking 	away our 	field 	trips."
When he was called as a witness, 	Mr. 	Hunter was not asked 	if he
warned Ms. 	Ybright 	that 	the drivers would harm themselves 	by
pursuing 	grievances.
After her conversation with Mr. 	Hunter, 	Ms. 	Ybright called
Minnie 	Franklin, 	a 	CSEA field 	representative 	and 	explained 	the
growing dispute over 	the hours calculation. 	Ms. 	Franklin 	in
turn contacted Arthur 	Cate, 	the 	assistant 	superintendent who 	is
responsible 	for 	personnel 	and 	employer-employee 	relations.
Ms. 	Franklin 	testified 	that 	she 	explained 	the problem to
Mr. 	Cate. 	However, 	the matter was not resolved.
After he spoke with Ms. 	Franklin, Mr. 	Cate contacted
Mr. 	Hunter 	and 	asked 	for 	an explanation of 	the problem.
Mr. 	Hunter 	described 	the planned 	trip and 	told Mr. 	Cate how he
interpreted 	the contract provision on hours. 	Mr. 	Cate 	said 	he
then 	urged 	Hunter 	to 	speak 	to 	the 	District 	superintendent
because 	he 	believed 	the 	superintendent previously 	had
instructed 	Hunter 	to 	obtain 	the 	superintendent's 	approval
before 	scheduling 	overnight 	trips.
Mr. 	Hunter 	testified 	that 	he 	had 	not 	believed 	the
superintendent's 	instruction 	to be quite 	so 	strict. 	However,
following 	the conversation with Mr. 	Cate, 	Mr. 	Hunter 	did visit
8

the 	superintendent 	and 	described 	the 	disagreement 	with 	CSEA
over 	hours. 	The 	superintendent 	instructed Mr. 	Hunter 	to
develop cost estimates 	for 	the 	trip, 	comparing 	the method of
hours calculation 	favored 	by 	the 	District 	to 	that 	favored 	by
CSEA and comparing 	the 	cost 	of 	both 	to 	the cost 	of 	an 	outside
carrier. 	Mr. 	Hunter did make 	the comparison. 	He determined
that 	the 	least 	expensive 	method 	of 	transportation 	would 	have
been 	the 	use 	of 	District drivers 	and 	buses paid 	in accord with
the District's 	interpretation of 	the contract. 	The most
expensive method 	of 	transportation would 	have 	been 	the 	use 	of
District 	drivers 	and 	buses 	paid 	in 	accord 	with 	CSEA's
interpretation of 	the contract. 	The cost 	of Greyhound was
between 	the other 	two.
The 	Cancellation.
Mr. 	Hunter 	presented his cost calculations 	to 	the
superintendent 	who 	shared 	them with 	the 	principal 	of 	Ponderosa
High 	School. 	The 	superintendent 	thereafter 	directed Mr. 	Hunter
to cancel 	the 	trip 	for 	the 	District drivers 	and 	contract with
Greyhound 	for 	the 	transportation of 	the 	students. 	On
cross-examination Mr. 	Hunter 	was asked why 	the 	District did not
go ahead with 	the 	trip as 	scheduled, 	pay 	the drivers per 	its
reading 	of 	the 	contract 	and 	take 	its chances on winning 	the
grievance. 	Mr. 	Hunter responded, 	"I don't know. 	I suppose. 	I
didn't make 	that decision." 	The 	superintendent, 	who did make
the decision, 	was not called as a witness.
99

On May 	9, 	1984, 	the three drivers 	scheduled 	to make the
San Mateo 	trip were given cancellation notices 	by 	the driver
coordinator. 	No 	explanation 	accompanied 	the 	notices 	which
simply were 	placed 	into 	the 	boxes 	where 	drivers 	routinely
receive 	instructions 	and 	communications 	from their
supervisors. 	Claudia 	Larson was 	the only driver 	who 	testified
that 	she 	was given any explanation 	for 	the cancellation. 	She
said 	that Mr. 	Hunter 	followed her 	out 	to her 	bus 	just as 	she
was preparing 	to 	leave on her 	afternoon 	run. 	She 	testified
that 	she 	asked him, 	"What's going on, 	here? " 	She 	said he
responded 	that, 	"Minnie 	and 	Georgia were causing 	trouble 	again
and 	if 	it didn't 	stop that we weren't going 	to have 	any more
weekend 	trips 	at 	all." 	Ms. 	Larson 	said 	she did 	not 	know what
"trouble" 	was 	being 	caused 	by Minnie 	and Georgia.
Mr. 	Hunter 	testified 	that 	he 	did 	not 	recall 	following
Ms. 	Larson out to her bus on May 9 but that, 	"it's not unusual
for me 	to go out to a bus 	to talk 	to a driver." 	Asked 	if he
made 	the 	"Minnie 	and 	Georgia" 	comment 	attributed 	to 	him by
Ms. 	Larson, Mr. 	Hunter replied, 	"No, 	that's not accurate." 	He
then denied 	that 	he 	had made 	any 	reference 	to 	"Minnie 	and
Georgia 	causing 	trouble."
After 	she 	learned 	of 	the cancellation of 	the 	trip 	for
District drivers, 	Minnie 	Franklin called Mr. 	Hunter 	to
protest. 	She 	told 	him that 	the 	District 	should 	reassign 	the
trip to the District drivers. 	Mr. 	Hunter declined to do 	so and
10

the 	students were 	taken to San Mateo 	by Greyhound. 	The
District 	in 	the past 	has 	cancelled 	trips 	after 	drivers 	have
accepted assignments. 	Previous cancellations, 	however, 	have
been 	because 	of 	adverse 	weather 	or 	the combining 	of 	two 	bus
loads 	into one. 	No witness could 	recall 	a previous occasion
when a 	scheduled 	trip was cancelled 	to 	be 	replaced 	by 	a private
carrier.
Past 	Practice 	on 	Payment 	for 	Trips.
The 	evidence 	does 	not 	conclusively 	establish 	what 	was 	the
method 	of 	hours 	calculation 	for 	bus 	drivers 	taking 	overnight
trips prior 	to 	a contractual change 	in 	the 	fall of 	1983. 	It 	is
clear 	that 	on 	some 	occasions drivers were paid 	from 	the 	time
they 	left 	the 	District until 	their 	time of 	return, 	less 	eight
hours for 	sleep. 	One driver, 	Patsy Estey, 	was paid for
36 	hours 	of 	work 	after 	making 	an overnight 	trip 	to Modesto 	in
December 	of 	1981. 	She 	testified 	that when she 	accepted 	the
assignment 	she 	was 	told 	that 	she would 	be paid 	from the 	time
she 	left 	the 	District until 	the 	time of her 	return. 	Another
driver, 	Dan Herrmann, 	testified 	that he was paid 	for 	27 hours
of work 	for 	an overnight 	trip to Modesto 	in October 	of 	1982.
He 	testified 	that 	on 	the 	first day 	his 	actual 	driving 	time 	was
approximately 	5 	to 	6 hours but he was paid for 	16. 	On the
second day, 	he 	testified, 	he was paid for 	11 hours. 	Payroll
records 	corroborated 	the 	testimony 	of 	both drivers.
11

Yet 	the 	District 	was 	able 	to produce 	evidence 	that 	on other
occasions prior 	to 	the fall of 	1983, 	drivers were paid 	for
something 	less 	than portal-to-portal 	time 	minus 	eight hours 	for
sleep. 	In August of 1982, 	for example, 	a driver was gone two
nights on a trip to Aptos and was paid 	for 	only 	24 	hours. 	In
June of 	1982, 	another 	driver 	was gone 	for 	two nights 	and was
paid 	for 	only 	29 	hours on 	a 	trip to Calaveras County.
In September 	of 	1983 	a District bus driver 	took 	a 	trip
which 	brought 	into clear 	focus 	the 	issue 	of payment 	for
overnight bus 	trips. 	The driver 	Jesse Martinez, 	took 	a concert
choir 	to Nevada City on a 	trip 	that 	required 	a 	stay of 	two
nights. 	When he 	returned, 	the District proposed 	to pay him
only 	for 	driving 	time. 	CSEA filed 	a grievance which 	ultimately
reached 	the 	superintendent. 	During 	a meeting with 	the
superintendent, 	Mr. 	Martinez 	said he would be 	satisfied 	if 	the
District 	would 	give 	him eight 	hours 	of 	pay 	for 	the 	Saturday
portion of 	the 	trip, 	rather 	than 	the 	16 	hours 	sought by CSEA.
The 	superintendent 	agreed 	and 	CSEA accepted 	the 	settlement 	with
the 	stipulation 	that 	it was not 	intended 	to 	be precedential.
The 	settlement was 	reached 	in mid-October.
The parties were 	in contract negotiations at 	the 	time of
the 	Martinez 	grievance 	and 	the problem 	it presented 	soon 	became
a consideration of 	the District. 	Mr. 	Cate and Mr. 	Hunter
decided 	that 	the contract 	should 	be 	revised 	to preclude 	any
12

further 	misunderstanding 	about 	the 	method 	of 	calculating 	the
hours 	of 	work 	for 	bus 	drivers 	taking overnight 	trips.
The 	prior 	contract contained 	only 	limited 	provisions
dealing with bus driver 	compensation 	for 	field 	trips. 	The only
relevant clause was 	in Article VII, 	section 6(b) 	which provided:
Bus 	drivers 	will 	receive compensation 	for
hours 	driven 	only plus 	one-half 	hour 	bus
preparation 	time 	and 	standby 	time 	for 	trips
outside 	regularly 	assigned 	bus 	routes.
CSEA 	had 	proposed 	an 	extensive 	revision 	of 	the 	sections
pertaining 	to 	transportation 	employees. 	Of particular
relevance 	was 	a 	proposal 	specifically 	requiring 	that 	drivers 	be
compensated 	portal-to-portal. 	The 	CSEA proposal 	contained 	the
following 	provision:
Time 	leaving 	yard 	to 	time 	returning 	to yard
will 	be compensated 	at 	the 	regular 	rate 	of
pay plus overtime 	if 	applicable.
The 	District made 	no 	written counter 	to 	the CSEA proposals
on 	transportation 	and 	there was 	very 	little discussion 	about
the 	subject 	in the 	regular 	negotiating meetings. 	However, 	the
settlement 	was 	worked 	out 	principally 	in 	side discussions
between Mr. 	Cate 	and CSEA field 	representative 	Elizabeth
Stephens. 	Mr. 	Cate testified that 	in those meetings,
. 	. 	. 	one of the things we 	insisted upon was
that we 	pull 	back 	on 	the drivers' time 	so
that we would make 	that clear 	so, 	and we
really both 	thought or 	I 	thought we 	had 	an
understanding 	of 	what 	this 	article meant.
That's maybe 	why 	the 	shock 	when 	suddenly we
didn't get people 	interpreting 	it 	the 	same
way we 	did 	because 	we 	thought 	the
understanding 	was 	clear 	. . . .
13

As 	a result of 	the negotiations, 	four 	new provisions were
added 	to Article VII, 	section 	6, 	which deals with the 	salary of
bus drivers. 	The 	two 	new sections which are 	relevant 	read as
follows:
d. 	Bus drivers on special 	trips, 	including
but 	not 	limited 	to 	athletic 	events,
field 	trips, 	and curricular 	trips who
are 	required 	to 	remain on 	standby, 	will
be 	paid 	at 	the 	appropriate 	rate of 	pay
for 	the 	duration of 	the 	event 	for 	which
the special trip is made.
e. 	Notwithstanding 	any other 	provisions 	of
this Agreement, 	if a special trip
requires 	an overnight stay, 	the District
shall 	be 	relieved 	of 	the 	obligation of
payment 	for 	any hours 	between 	the 	time 	a
bus driver 	is 	relieved 	of duties 	for 	the
evening 	and 	the 	time duties 	resume 	the
following 	morning.
Mr. 	Cate 	testified 	that the purpose of 	subsection 	(e) 	was to
provide 	that 	when a driver 	was 	finished 	for 	the 	evening 	and 	not
needed 	on 	standby, 	the 	District would 	no 	longer 	be 	obligated 	to
compensate 	the driver. 	He 	said CSEA knew the District's
position 	because 	of 	discussions 	that 	occurred during 	the
processing 	of 	the Martinez 	grievance.
Georgia 	Ybright, 	a member 	of 	the CSEA negotiating 	team,
testified 	that 	no 	such purpose 	was 	intended 	by 	subsection 	(e).
She 	said 	it did 	not make 	a change 	and 	that 	it was 	an effort 	"to
put 	in black 	and white 	a 	past practice 	that 	had 	already 	been
set." 	Ms. 	Ybright 	testified 	that 	she could 	not 	remember 	if
subsection 	(e) 	was a District or 	a CSEA proposal. 	The 	language
14

was 	not 	contained 	in CSEA's written proposal. 	Agreement was
reached 	between 	the parties on November 	1, 	1983.
Past 	Practice on Use of 	Private Carriers.
The 	District 	has 	a 	long 	history 	of 	using private 	carriers
to 	transport 	students on 	field 	trips. 	Mr. 	Cate 	testified 	that
as 	long 	ago as 	1971, 	the District 	sometimes used private
carriers 	to 	transport 	students depending 	upon cost 	and
distance. 	The practice has continued 	in recent years. 	The
District presented 	evidence 	that 	in 	the 	1980-81 	school year
students 	were 	taken 	on 	two 	trips 	to 	the 	bay area 	and 	one 	trip
to Nevada by charter 	bus. 	In 1981-82, 	there was one 	trip to
Nevada by charter 	bus. 	In 1982-83, 	there were three 	trips to
the bay area and one 	to Nevada by charter 	bus. 	In 	1983-84,
there were four 	trips 	to the bay area, 	one to Nevada, 	one to
Southern California 	and 	one 	to Mexico 	by charter 	bus.
Dave 	Soper, 	assistant principal 	at El Dorado High School,
testified 	that 	the 	decision on 	whether 	to 	use 	District 	or
charter 	buses 	is 	left primarily 	to 	the 	teacher 	who 	organizes
the 	trip and 	the 	school 	administrators. 	Traditionally, 	he
said, 	the 	basis 	for 	the decision has 	been 	the 	length of 	the
trip. 	He 	testified 	that because charter 	buses 	are more
comfortable, 	have air-conditioning and restrooms, 	they
frequently have 	been 	selected 	for 	longer 	trips. 	He 	said 	that
if a charter 	bus 	is to be 	used, 	the arrangements 	for 	it usually
are made 	by 	the participating 	high 	school.
15

Mr. 	Soper 	testified 	that 	the manner 	of payment 	for 	the
transportation was 	the 	same whether 	District 	or 	charter 	buses
were 	used 	for 	the 	trip. 	He 	said 	that all District 	funds 	for
field 	trips 	except 	athletics 	were 	eliminated 	in 	about 	the
1977-78 	school year. 	Since that time, 	funds for 	field trips
have 	been obtained 	from the 	student group taking 	the 	trip. 	The
students 	conduct 	fund-raisers 	to 	collect 	the 	money 	and deposit
it 	in 	student body accounts. 	The cost of both
District-supplied 	and 	private 	charter 	transportation 	is 	paid
from the 	student 	body 	accounts. 	If District 	buses 	are 	used,
the 	transportation 	department 	bills 	the 	high 	school 	which 	pays
the 	bill 	from 	the 	student 	account.
Credibility 	Determination.
There 	is one 	significant conflict 	in testimony. 	It
involves 	a 	statement 	allegedly made 	by 	a 	District 	administrator
to a CSEA witness. 	Claudia Larson 	testified 	that Mr. 	Hunter
told her, 	"Minnie 	and 	George were causing 	trouble 	again and 	if
it didn't 	stop 	that we weren't going 	to 	have 	any more 	weekend
trips 	at all." 	Mr. 	Hunter 	denied making 	the 	statement.
It 	is 	significant 	that 	the disputed 	statement 	is 	similar 	to
another 	remark 	attributed 	to Mr. 	Hunter 	that 	stands without
contradiction 	in 	the 	record. 	Georgia 	Ybright 	testified 	that
Mr. 	Hunter 	warned her 	"that by pursuing 	grievances 	and
continuing 	to pursue 	this 	line, 	that we were going 	to end 	up
doing 	ourselves 	harm by 	the 	District 	taking 	away 	our 	field
16

trips." 	The comment 	is quite similar 	to Ms. 	Larson's 	testimony
that Mr. Hunter 	told 	her, 	"Minnie 	and 	Georgia were causing
trouble 	again and 	if 	it didn't 	stop 	that we weren't going 	to
have 	any more 	weekend 	trips 	at all." 	It 	is entirely believable
that 	a person who made 	the 	first 	statement 	would 	also make 	the
second.
Ms. 	Larson, 	moreover, 	was a highly credible witness. 	She
was 	not 	one 	of 	the 	persons 	who 	contested 	the 	proposed method 	of
pay 	in 	the 	first 	instance 	and 	she 	did 	not 	know even what 	the
dispute was 	about when 	the 	trips were cancelled. 	She 	struck
the 	administrative 	law judge 	as 	a person who 	felt 	herself
caught 	in 	the middle 	between contesting parties 	in 	a dispute
she did 	not desire. 	Her 	demeanor 	on 	the 	stand was 	that of 	a
bystander 	simply describing what happened. 	Mr. 	Hunter, 	in
contrast, 	gave a 	somewhat 	less convincing description of 	the
conversation 	he 	had with Ms. 	Larson. 	He could not 	remember
whether 	or 	not he 	followed 	her 	to 	the 	bus. 	When 	first 	asked 	if
he made the disputed statement, 	he responded, 	"No, 	that's not
accurate." 	It was 	only when pressed with 	further 	questions
that 	his 	denial 	became more direct 	and 	even 	then 	he 	felt
constrained 	to 	offer 	an 	explanation 	for 	why 	it 	is 	not 	likely
that 	he 	would 	have made 	such a 	statement. 	A straightforward
denial would 	have 	been more 	believable.
For 	these reasons, 	the testimony of Ms. 	Larson on this
point 	is credited and 	that of Mr. 	Hunter 	is not.
17

LEGAL 	ISSUES
1. 	Did 	the 	District 	by hiring 	a private carrier 	to 	take
students 	on a 	field 	trip make 	a 	unilateral 	change 	in past
practice 	and 	thereby 	fail 	to 	negotiate 	in good 	faith 	in
violation 	of 	subsection 	3543.5 	(c)?
2. 	Did 	the 	District by cancelling 	the 	assignment 	of 	its
drivers 	to 	take 	students 	on 	a 	field 	trip 	thereby 	retaliate
against 	employees 	for 	the 	exercise 	of 	protected 	rights 	in
violation 	of 	subsection 	3543.5 	(a)?
3. 	Did 	the 	District 	by cancelling 	the 	assignment 	of 	its
drivers 	to 	take 	students 	on a 	field 	trip thereby 	interfere with
the 	right of 	employees 	to 	engage 	in protected 	activities 	in
violation 	of 	subsection 	3543.5 	(a)?
4. 	Did 	the 	District 	by cancelling 	the 	assignment 	of 	its
drivers 	to 	take 	students 	on 	a 	field 	trip 	thereby 	interfere 	with
the 	right 	of 	CSEA to 	represent 	its members 	in violation of
subsection 	3543.5 	(b)?
CONCLUSIONS 	OF 	LAW
Unilateral Change.
It 	is 	well-settled 	that 	the 	decision 	to 	subcontract 	unit
work 	is 	within 	the 	scope 	of 	representation.5 Archoe 	Union
5 The 	scope 	of 	representation 	under 	the 	EERA 	is 	set 	forth
at sections 3543.2 which, 	in relevant part, 	provides as follows:
(a) 	The 	scope of representation shall be
limited 	to matters 	relating 	to wages, 	hours
of employment, 	and other 	terms 	and
18

School District 	(11/23/83) 	PERB Decision No. 	360. 	It 	is
equally 	well-settled 	that 	an 	employer 	that makes 	a pre-impasse
unilateral 	change 	affecting 	an 	established 	policy 	within 	the
scope 	of 	representation violates 	its duty 	to meet 	and 	negotiate
in good faith. 	NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
-
2177]. 	Such unilateral changes are 	inherently destructive of
employee 	rights 	and 	are a 	failure per 	se 	of 	the duty 	to
negotiate 	in good 	faith. 	See generally, 	Davis 	Unified School
District 	(2/22/80) 	PERB Decision No. 	116, 	San Francisco
Community College District 	(6/8/79) 	PERB Decision No. 	94.
The 	District 	argues that 	its 	use 	of 	a private carrier 	to
take 	students 	on 	a 	field 	trip was 	not a 	unilateral change 	but
was 	the 	consistent 	application of 	a practice 	in continuous
effect 	since 	1971. 	An employer's acts 	that are consistent with
an 	established 	practice 	cannot 	be 	considered 	unlawful
unilateral changes. 	Placer 	Hills Union School District
(11/30/83) 	PERB Decision No. 	262.
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 	. . . .
*
19

CSEA argues 	that 	the 	District's 	action here 	was 	different
from 	the 	previous 	practice 	because 	never 	in 	the 	past 	had 	the
District 	cancelled 	a 	trip assigned 	to 	its 	own drivers 	and 	then
hired 	a private 	carrier. 	CSEA argues 	that 	this 	difference 	of
itself constitutes 	an unlawful change 	in practice.
As will be 	seen, 	infra, 	the District's action 	in scheduling
and 	then 	rescinding 	the 	assignment 	for 	its 	own drivers 	is
substantial evidence of unlawful motivation. 	However, 	the use
of 	a private carrier 	to 	take 	students on a 	trip 	to 	San Mateo 	in
May 	of 	1984 	was consistent with past 	actions by 	the 	District.
The 	District correctly argues 	that 	there 	is 	a continuous
practice 	since 	1971 	of 	its 	use 	of private carriers 	to 	take
students on 	field 	trips. 	In 	1982-83, 	the District 	used private
carriers 	three 	times 	to 	take 	students on 	trips 	to 	the 	bay
area. 	In 1983-84, 	the District used private carriers 	four
times 	to 	take 	students to 	the 	bay area. 	Except 	for 	the case 	at
issue, 	there 	is no 	evidence of 	any CSEA protest 	about 	those
trips. 	There would, 	of course, 	have been no grounds 	for such a
protest 	because 	the 	status 	quo 	between 	the 	parties 	permits 	the
use 	of private 	carriers.
Because CSEA has 	failed 	to demonstrate 	that 	the 	District
changed 	the 	past practice 	by 	its 	use 	of 	a private carrier 	on
the 	San Mateo 	trip, 	the 	allegation 	that 	the 	District violated
subsection 	3543.5 	(c) 	must be dismissed.
20

Reprisals.
CSEA next 	argues 	that 	the 	District's decision 	to 	cancel 	the
San Mateo 	trip 	for 	the 	three 	drivers was motivated 	solely by
CSEA's challenge 	to 	the planned method 	of payment. 	Such
motivation, 	CSEA concludes, 	was unlawful and constituted a
violation of 	subsection 3543.5(a). 	The District does not
specifically 	respond 	to 	the discrimination 	argument 	other 	than
to 	argue 	that 	by contracting 	with Greyhound 	it did 	only what,
under 	the Education Code, 	it has a legal right to do. 	The
District 	argues 	that 	the 	action was 	consistent with 	past
practice 	and 	motivated 	by comfort 	and cost.
In a discrimination or 	retaliation case, 	the 	key 	issue 	is
the motivation of 	the 	respondent. 	An action 	that 	is 	otherwise
legal can become 	unlawful under 	the 	EERA 	if 	it 	is motivated by
improper considerations. 	Thus, 	if 	the District acted with
unlawful motivation 	it cannot 	escape 	the 	consequence 	of 	its
action 	by 	arguing 	that 	the 	Education Code 	empowers 	school
districts 	to employ private carriers. 	Nor 	is 	it significant
that 	the 	District has a past practice 	of employing private
carriers. 	The question is whether 	in this 	instance 	the District
cancelled 	the 	assignment of 	the 	trip to 	its own drivers 	as 	a
retaliatory 	response 	to 	employee 	exercise 	of 	protected 	conduct.
Public 	school 	employees 	have 	the protected 	right,
. 	. 	. 	to form, 	join, 	and participate in the
activities 	of employee 	organizations 	of
their 	own choosing 	for 	the 	purpose 	of
21

representation on 	all matters 	of
employer-employee 	relations.6
It 	is 	an unfair practice 	under 	subsection 	3543.5 	(a) 	for 	a
public school employer to 	"impose 	. 	. 	. 	reprisals on employees,
[or] 	to discriminate . 	. 	. against employees . 	. 	. because of
their 	exercise of 	[protected] 	rights." 	In an unfair practice
case 	involving 	reprisals or 	discrimination, 	the charging party
must 	make 	a prima 	facie 	showing 	that 	the 	employer's 	action
against 	the 	employee 	was 	motivated 	by 	the 	employee's
participation 	in 	protected conduct. 	Novato 	Unified 	School
District 	(4/30/82) 	PERB Decision No. 	210. 	This can be done by
either 	direct 	or 	circumstantial 	evidence.
In a case 	involving proof by circumstantial evidence, 	the
charging 	party 	must 	show 	initially 	that 	the 	employer 	had 	actual
or 	imputed 	knowledge 	of 	the 	employee's 	participation 	in
protected 	activity. 	Moreland 	Elementary 	School 	District
(7/27/82) 	PERB Decision 	227. 	An employer 	cannot 	retaliate
against 	an 	employee 	for 	engaging 	in protected conduct 	if 	the
employer 	does 	not 	even know of 	the 	existence 	of 	that conduct.
The 	charging 	party 	then must produce 	evidence 	of 	unlawful
motivation 	to 	link 	the 	employer's 	knowledge 	to 	the 	harm which
befell 	the employee. 	Indications of unlawful motivation have
been 	found 	in an 	employer's 	general 	animus 	toward 	unions,
San Joaquin Delta 	Community 	College 	District 	(11/30/82) 	PERB
6Section 	3543.
22

Decision No. 	261, 	in an inadequate explanation to employees of
the action, 	Clovis Unified School District 	(7/2/84) 	PERB
Decision No. 	389, 	in the timing of the employer's action, 	North
Sacramento School District 	(12/20/82) 	PERB Decision No. 	264,
and 	in 	the 	failure 	to 	follow usual procedures, 	Santa Clara
Unified School District 	(9/26/79) 	PERB Decision No. 	104.
After 	the 	charging party has made 	a prima 	facie 	showing
sufficient to 	support an 	inference of unlawful motive, 	the
burden 	shifts 	to 	the 	employer 	to prove 	that 	its 	action would
have 	been 	the 	same 	in 	the 	absence 	of protected 	activity.
Novato Unified School District, 	supra, 	PERB Decision No. 	210.
It 	is clear 	that 	employees 	in 	the present action
participated 	in protected 	activity. 	Two 	of 	the 	drivers 	sought
CSEA assistance 	to determine 	whether 	or 	not 	the 	District
proposed 	to pay 	them at 	the 	proper 	rate 	for 	the 	San Mateo
trip. 	Employees 	have 	a protected 	right 	to 	seek employee
organization 	assistance 	"for 	the 	purpose 	of 	representation 	on
all matters 	of employer-employee 	relations." 	Seeking 	advice
from an employee 	organization 	is 	a protected 	activity, 	even
outside the grievance process. 	Santa Clara USD, 	supra, 	PERB
Decision No. 	104. 	Here, 	the contact with the employee
organization was prefatory to 	the 	filing of a grievance, 	which
likewise 	is a protected activity. 	North Sacramento, 	supra,
PERB Decision No. 	264.
23

It also 	is clear 	that 	the 	District 	knew of 	the 	employee
participation 	in 	the protected conduct. 	Victoria 	Tilley 	raised
the 	issue of 	the 	amount of pay with 	Phyllis Riley, 	the person
who assigned 	the 	trip, 	and 	then challenged Ms. 	Riley's
explanation of 	the proposed method 	of 	payment. 	Shortly
thereafter, 	CSEA 	representatives contacted 	two 	District
administrators 	to question 	the 	proposed method 	of 	payment.
From this 	sequence of events, 	knowledge that one or more of 	the
bus 	drivers 	had 	requested CSEA's 	assistance 	can 	be 	imputed 	to
the District.
Finally, 	there 	is 	substantial evidence of unlawful
motivation by 	the 	District. 	Most persuasive 	is 	the virtual
admission of Mr. 	Hunter 	that 	the cancellation was due 	to 	the
CSEA challenge. 	One of the drivers, 	Claudia Larson, 	testified
that Mr. 	Hunter 	told her, 	"Minnie 	and Georgia were causing
trouble 	again and 	if 	it didn't 	stop 	that weren't going 	to 	have
any more 	weekend 	trips 	at 	all." 	Minnie 	and 	Georgia 	are 	the
CSEA 	field 	representative 	and 	shop 	steward 	who 	questioned
District 	administrators 	about 	the 	proposed method 	of 	payment.
Presumably, 	the 	"trouble" 	they were causing was 	their 	challenge
to 	the 	District's 	plan to pay 	employees only 	for 	time worked 	on
Saturday. 	Mr. 	Hunter 	made 	a 	similar 	comment 	to 	Georgia 	Ybright
when 	he 	told 	her 	that 	"by pursuing 	grievances 	. . . 	we 	were
going 	to 	end 	up doing 	ourselves 	harm by 	the 	District 	taking
away our 	field 	trips." 	The 	statements of Mr. 	Hunter 	plainly
reveal 	a 	retaliatory 	intent.
24

Retaliatory 	intent 	is 	obvious 	also 	in 	the 	timing 	of 	the
District's 	action. 	The 	trip was assigned on Monday. 	On
Tuesday 	and Wednesday 	CSEA 	representatives 	challenged 	the
proposed method of payment for 	the trip. 	On Thursday, 	the 	trip
was 	cancelled. 	The 	record 	establishes 	that 	the 	cancellation
was 	the 	first 	ever 	made 	so 	that 	a 	trip then could be
subcontracted to a private carrier. 	In the past, 	trips
subcontracted 	to 	private 	carriers 	were 	assigned 	to 	them 	from
the 	beginning. 	Here, 	the 	trip was 	subcontracted 	after 	CSEA
challenged 	the 	District's proposed method of payment. 	The
proximity 	of 	the 	CSEA challenge 	to 	the 	decision 	to 	hire
Greyhound 	strongly 	suggests 	a cause 	and 	effect 	relationship.
Against 	this prima 	facie 	showing 	by CSEA, 	the 	District
argues 	that 	it cancelled 	the 	trip for 	its own drivers 	because
charter 	buses 	were more comfortable 	and 	less 	expensive.
Neither 	contention 	is persuasive. 	One would expect 	that 	if
comfort were 	a 	key consideration 	the 	District would 	have 	opted
for 	charter 	buses 	in 	the 	first 	instance. 	Apparently, 	comfort
became 	an 	important 	consideration 	only 	after 	CSEA challenged
the proposed method of payment. 	The comfort argument 	is 	at
best 	an afterthought designed 	to put 	the 	District's 	action 	in 	a
better 	light.
Equally 	unconvincing 	is 	the 	contention 	that 	the 	District
contracted with Greyhound 	in order 	to cut cost. 	The 	District's
own 	cost 	calculations 	established 	that 	use 	of 	District 	drivers
25
'

and 	buses 	under 	the 	District's 	interpretation of 	the contract
was 	less 	expensive 	than 	Greyhound 	for 	transporting 	students 	on
the 	San Mateo 	trip. 	The 	use of 	District 	buses would have been
more 	expensive 	than 	Greyhound 	only 	under 	the 	CSEA
interpretation of 	the contract.
The 	contract provides 	that 	"notwithstanding 	any 	other
provisions 	of 	this agreement," 	the 	District has 	no 	obligation
to pay drivers 	on overnight 	trips 	for 	the 	hours 	"between 	the
time 	a 	bus 	driver 	is 	relieved 	of 	duties 	for 	the 	evening 	and 	the
time 	the 	duties 	resume 	the 	following morning." 	As 	the 	District
convincingly 	argues 	in 	its 	brief, 	the clause 	when 	read 	together
with 	related provisions 	creates 	three categories 	of 	time.
First 	is 	actual driving 	time, 	next 	is 	"standby time" 	and 	third
is 	time 	after 	a driver 	is 	"relieved 	of duties 	for 	the
evening." 	The 	District 	is 	obligated 	to pay drivers 	for 	the
first 	two categories of 	time but not 	the 	third.
CSEA's 	claim that drivers 	are 	entitled 	to pay 	for 	the 	third
category 	of 	time contradicts 	the clear 	meaning 	of 	the
provision, 	not 	to mention 	its negotiating 	history. 	The 	record
establishes 	that 	the provision was 	the product of 	District
concerns 	about 	a 	1983 	grievance 	that 	had 	been 	filed 	over 	a
similar 	dispute 	about 	hours. 	Although 	the past practice 	was
ambiguous, 	the District wanted 	to 	ensure 	that 	there would be 	no
future disputes 	about 	the 	payment 	to drivers 	on overnight
26

trips. 	As 	the District argues 	in its brief, 	the 	1983 changes
in 	the contract 	"clearly accomplished 	that 	result."
Thus, 	as 	its own brief makes apparent, 	the District's
position on 	the meaning 	of 	the 	contract cause was 	by 	far 	the
more 	convincing. 	The 	District 	almost certainly would 	have
prevailed 	in 	any dispute 	that might 	have 	arisen out 	of 	its
planned method 	for 	paying drivers 	on 	the 	San Mateo 	trip. 	Seen
in 	this context, 	the District's argument that it used Greyhound
in order 	to 	save money 	is 	hardly compelling. 	Greyhound was not
the 	least 	expensive 	method 	of 	transporting 	the 	students 	to
San Mateo. 	It 	is concluded 	that 	the 	District has 	failed 	to
demonstrate 	that 	its 	action would 	have 	been 	the 	same 	in 	the
absence 	of protected 	activity. 	CSEA's prima 	facie 	case 	that
the 	District cancelled 	the 	San Mateo 	trip 	for 	its own drivers
in 	retaliation 	for 	their 	exercise of protected 	activity 	is 	thus
unrebutted. 	Accordingly, 	it 	is concluded that 	the District did
violate EERA subsection 3543.5 	(a).
Interference.
As 	a 	separate 	legal 	theory, 	the charge 	and complaint 	allege
that 	the 	District's 	action 	in cancelling 	the 	trip 	for 	District
drivers 	after 	the 	CSEA protest 	constituted 	an 	unlawful
interference. 	Although 	neither 	party 	specifically discusses
the question of 	interference 	in 	its briefs, 	the matter was
raised 	in 	the complaint 	and was 	litigated.
27

It 	is 	an unfair practice 	under 	subsection 	3543.5 	(a) 	for 	a
public 	school employer 	"to 	interfere with, 	restrain, 	or coerce
employees because of 	their 	exercise of" 	protected 	rights. 	In a
case 	involving 	interference, 	a violation will be 	found where
the employer's 	acts 	interfere or 	tend to 	interfere with 	the
exercise 	of 	protected 	rights 	and 	the employer 	is 	unable 	to
justify 	its 	actions 	by proving 	operational 	necessity. 	Carlsbad
Unified School District 	(1/30/79) 	PERB Decision No. 	89.7
7 The 	Carlsbad 	test 	for 	interference 	provides 	as 	follows:
(2) 	Where 	the charging party establishes
that 	the 	employer's conduct 	tends 	to or
does 	result 	in 	some 	harm to 	employee 	rights
granted under 	the EERA, 	a prima facie case
shall 	be deemed 	to 	exist;
(3) 	Where the harm to 	the employees'
rights 	is 	slight, 	and 	the employer 	offers
justification 	based 	on 	operational
necessity, 	the competing 	interest of 	the
employer 	and 	the 	rights 	of 	the 	employees
will 	be 	balanced 	and 	the 	charge 	resolved
accordingly;
(4) 	Where 	the harm is 	inherently
destructive of employee rights, 	the
employer's 	conduct will 	be 	excused 	only on
proof 	that 	it was 	occasioned 	by
circumstances beyond 	the 	employer's 	control
and 	that 	no 	alternative course 	of 	action
was available;
(5) 	Irrespective of the foregoing, 	a
charge will 	be 	sustained where 	it 	is shown
that 	the 	employer 	would 	not 	have 	engaged 	in
the 	complained-of 	conduct 	but 	for 	an
unlawful motivation, 	purpose or 	intent.
28
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

See 	also, 	Novato Unified School District 	(4/30/82) 	PERB
Decision 	No. 	210 	and 	Sacramento City 	Unified 	School 	District
(4/30/82) 	PERB Decision No. 	214. 	Interference has been found
where 	an 	employee was warned 	against participation 	in protected
activities, 	Ravenswood City School District 	(12/28/84) 	PERB
Decision No. 	469; 	Clovis Unified School District, 	supra, 	PERB
Decision No. 	389.
Here, 	the 	District 	transportation director 	warned 	two
employees 	that 	the 	continued 	filing 	of grievances would 	have 	a
negative 	effect on the assignment of weekend trips. 	Mr. 	Hunter
told 	Claudia 	Larson 	that, 	"Minnie 	and 	Georgia were causing
trouble 	again and 	if 	it didn't 	stop 	that 	we 	weren't 	going 	to
have 	any 	more 	weekend 	trips 	at 	all." 	He 	told Georgia 	Ybright
that 	"by 	pursuing 	grievances 	and 	continuing 	to 	pursue 	this
line, 	that we 	were going 	to end 	up doing 	ourselves harm by the
District 	taking 	away our 	field 	trips." 	Thus, 	two drivers were
directly 	told 	that 	if 	employees continued 	to 	exercise 	their
protected 	right 	to 	file grievances 	the 	District would 	eliminate
their 	opportunity 	for 	weekend 	trips.
If 	those warnings were not 	sufficient to get the point
across, 	the 	District 	in fact cancelled 	a weekend 	trip and
subcontracted 	it 	to Greyhound. 	Employees 	thus 	had 	no 	need 	to
speculate 	about whether 	or 	not 	the 	District 	actually would
cancel trips 	if grievances continued. 	They were confronted
with 	a demonstration of 	the 	District's 	resolve.
29

It 	seems 	indisputable 	that 	an employer's warnings coupled
with 	an 	overt 	demonstration 	of 	resolve 	would 	interfere 	with
employee 	exercise of protected 	rights. 	It was made explicitly
clear 	to 	District bus drivers 	that 	if 	they continued 	to
exercise 	protected 	rights 	they 	would 	lose 	the 	opportunity 	for
weekend 	trips 	and 	the 	additional 	pay 	that 	accompanies 	them.
Employees 	confronted 	with 	such 	evidence 	of 	District 	resolve
would 	be 	encouraged 	to 	think 	again 	before 	seeking 	CSEA
assistance 	to question a 	planned 	District 	action.
Against 	this 	prima 	facie case 	of 	interference 	the 	District
offers 	as 	operational 	necessity 	the 	comfort 	and 	cost
justifications. 	These 	arguments 	are 	rejected 	for 	the 	reasons
discussed 	above.
Accordingly, 	it 	is concluded 	that by warning 	employees
about 	the 	filing 	of 	grievances 	and 	by cancelling 	the 	San Mateo
trip 	for 	its 	own 	drivers 	and 	subcontracting 	with 	Greyhound 	the
District did 	interfere with 	the 	right 	of employees 	to 	engage 	in
protected 	activity 	in violation of 	EERA subsection 	3543.5(a).
Denial of Association Rights.
CSEA's 	final 	line of 	argument 	is 	that 	the District's
actions 	here denied 	to CSEA 	its 	statutory 	right 	to 	represent
its members. 	It 	is 	an unfair 	practice 	for 	a public 	school
employer 	to 	"deny 	to 	employee 	organizations 	rights 	guaranteed
to 	them" 	by the EERA.8 Under 	section 3543.l(a),
8Subsection 3543.5(b), footnote no. 	1, supra.
30

employee 	organizations 	"have 	the 	right 	to 	represent 	their
members 	in 	their 	employment 	relations with public 	school
employers." 	Thus, 	any denial of 	the Association's 	right to
represent 	its members 	is 	a denial of 	the Association's
protected 	rights.
It 	has 	been held 	that 	an 	employer's 	retaliation 	against 	an
employee 	for 	the 	filing 	of 	grievances constituted 	a derivative
violation of subsection 3543.5(b). 	North Sacramento, 	supra,
PERB Decision No. 	264. 	Under 	the evidence here, 	it also is
held 	that 	the 	employer's 	action was 	an 	independent 	violation of
subsection 3543.5(b).
It 	is self-evident that Mr. 	Hunter's warnings 	to
Claudia 	Larson 	and 	Georgia 	Ybright 	constituted 	an 	interference
with CSEA's 	right 	to 	represent 	its members. 	Mr. 	Hunter 	told
Ms. 	Ybright, 	the transportation department shop steward, 	that
"by pursing 	grievances" 	CSEA was 	going 	to 	do 	harm to 	employees
because 	the 	District would 	take 	away 	field 	trips. 	A similar
comment was made to Ms. 	Larson. 	Such statements by a
management 	official gravely 	inhibit 	CSEA's 	ability 	to 	represent
its members.
Moreover, 	the District here 	showed 	that 	its warnings were
not mere 	idle 	talk. 	The District cancelled 	the 	San Mateo 	trip
for 	its 	three drivers 	and 	subcontracted 	to 	a private carrier.
CSEA's 	attempt 	to 	represent 	its members, 	Victoria Tilley and
Dianne Woodson, 	led 	to their 	loss of 	income. 	The District's
31

action 	thus 	not 	only denied CSEA 	its 	rights 	here 	but created
grave 	obstacles 	to 	future 	representation. 	Employees who
observed 	the 	result 	of 	the Association's 	complaint 	about 	bus
driver 	payments 	can make 	the 	easy 	observation 	that 	CSEA
representation can 	lead 	to 	a 	loss of 	income. 	An 	employee
organization 	confronted 	with 	such 	improper, 	District-imposed
obstacles 	is 	essentially denied 	its 	right 	to 	represent 	its
members.
Accordingly, 	it 	is concluded 	that by warning 	employees
about 	the 	filing 	of 	grievances 	and 	by cancelling 	the 	San Mateo
trip, 	the 	District did deny CSEA the 	right 	to 	represent 	its
members 	in violation of subsection 3543.5(b).
REMEDY
CSEA seeks 	an order 	that 	the District 	be directed 	to
compensate the three drivers 	for 	the May 12-13, 	1984, 	trip in
accord 	with 	the past practice. 	The 	PERB 	in 	subsection
3541.5(c) 	is given:
. 	. 	. 	the power to issue a decision and
order 	directing 	an 	offending 	party 	to 	cease
and 	desist 	from 	the 	unfair 	practice 	and 	to
take 	such 	affirmative 	action, 	including 	but
not 	limited 	to 	the 	reinstatement 	of
employees with or 	without back pay, 	as will
effectuate 	the policies of 	this chapter.
The 	ordinary 	remedy 	in cases 	involving 	discrimination
because 	of protected conduct 	is 	restoration of 	the 	benefits or
wages 	lost 	because of 	the discrimination. 	San Joaquin Delta
Community College District, 	supra, 	PERB Decision No. 	261. 	It
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is appropriate, 	therefore, 	that the three drivers be
compensated 	for 	wages 	lost 	because 	of 	the 	District's
retaliatory cancellation of 	the May 	1984 	trip.
CSEA correctly 	argues 	that 	the 	amount 	of 	the 	compensation
should 	be 	determined 	in 	accord 	with 	the 	past practice 	between
the parties 	for 	the payment 	of 	drivers who 	take 	overnight
trips. 	This means, 	according to CSEA, 	that drivers should be
compensated 	for 	16 	hours 	of 	time on May 	12 	rather 	than 	the
amount of 	actual driving 	time, 	estimated 	at 	four 	hours by the
District. 	It has 	been concluded 	in 	this proposed decision 	that
the past practice 	is not 	as CSEA claims 	it. 	Under 	the 	terms of
the 	contract 	negotiated 	between 	the parties 	in 	the 	fall 	of
1983, 	drivers 	are 	entitled 	to compensation only 	for 	driving and
standby time. 	On overnight 	trips, 	drivers are not entitled to
compensation 	for 	the 	hours 	between 	the 	time 	they 	"are 	relieved
of 	duties 	for 	the 	evening 	and 	the 	time 	the duties 	resume 	the
following 	morning." 	Thus, 	the 	three drivers 	are 	entitled 	to
compensation 	only 	for 	actual driving 	and 	standby 	time 	over 	the
two 	days.
Prior 	to 	the 	trip, 	the drivers were 	told 	that 	they would be
paid 	for 	approximately 	four 	hours 	on May 	12 	and 	for 	a 	full-day
on May 	13, 	beginning with 	the 	time 	they picked 	up 	the 	students
in 	the 	morning 	until 	approximately 	8:30 p.m. 	The 	District will
be directed 	to pay 	the drivers 	in accord with what 	it 	estimated
prior 	to 	the 	trip unless 	either 	party can demonstrate 	that 	the
33

trip 	as 	actually 	taken 	required 	a greater 	or 	lesser 	amount 	of
time. 	Insofar 	as 	any portion of 	the 	trip normally would 	be
paid 	at 	the overtime 	rate 	under 	the 	contract 	between 	the
parties, 	the 	back 	pay award 	shall 	be calculated 	accordingly.
The 	amount due 	to 	each driver 	shall 	be 	augmented 	by 	interest 	at
the 	rate 	of 	10 	percent with 	the 	interest due 	from 	the date
District drivers 	received paychecks 	covering 	the period 	of
May 	12-13, 	1984.9
It 	also 	is 	appropriate 	that 	the 	District be directed 	to
cease 	and 	desist 	from 	its 	unfair 	practices 	and 	to post 	a 	notice
incorporating 	the 	terms of 	the order. 	Posting 	of 	such a
notice, 	signed by an authorized agent of 	the District, 	will
provide 	employees with notice 	that 	the 	District 	has 	acted 	in 	an
unlawful manner, 	is 	being 	required 	to cease 	and desist from
9The 	District 	argues 	at 	length 	that when 	the 	Association
threatened 	to 	file 	a grievance over 	the hours 	issue, 	the
Association 	violated 	the 	agreement 	by 	seeking 	to 	avoid
concessions 	it had made 	in bargaining. 	The District also
argues 	that when 	the Association 	filed 	the present case 	it
committed 	an 	unfair 	practice 	by 	refusing 	to 	bargain 	the 	issue
in good 	faith. 	The District's 	legal 	theories 	in 	this 	regard
are 	the 	subject 	of 	another 	action, 	El Dorado Union High School
District v. 	California School Employees Association 	and 	its
Ponderado Chapter No. 	267, 	Case No. 	S-CO-116. 	The charge was
dismissed on December 	18, 	1984, 	by the Sacramento Regional
Attorney. 	Exceptions were 	filed 	to 	the dismissal 	and 	the
matter 	is 	now 	before 	the Board 	itself. 	The 	District 	raised 	the
matter 	in 	its 	brief 	in the present case 	as part of 	a 	request
for 	reimbursement 	for 	its 	attorney's 	fees 	and 	other 	costs.
Inasmuch 	as 	the 	Association 	has 	been partially 	sustained 	in 	its
allegations against the District, 	the award of attorney's 	fees
and costs 	to 	the 	District 	is 	obviously 	inappropriate 	and 	is
denied.
34

this 	activity, 	and will comply with 	the 	order. 	It 	effectuates
the 	purposes 	of 	the 	EERA 	that 	employees 	be 	informed 	of 	the
resolution 	of 	the 	controversy 	and 	the 	District's 	readiness 	to
comply 	with 	the 	ordered 	remedy. 	Davis 	Unified 	School 	District
et al. 	(2/22/80) 	PERB Decision No. 	116; 	see also Placerville
Union 	School 	District 	(9/18/78) 	PERB Decision No. 	69.
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the case, 	it 	is 	found 	that 	the
El 	Dorado 	Union 	High 	School 	District 	violated 	subsections
3543.5(a) 	and 	(b) 	of 	the 	Educational 	Employment Relations Act.
Pursuant 	to 	subsection 3541.5(d) 	of 	the 	Government Code, 	it 	is
hereby 	ORDERED 	that 	the 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Retaliating 	against 	employees 	because 	of 	their
exercise 	of 	the 	protected 	right 	to 	seek 	representation 	by 	an
employee 	organization 	in 	their 	employer-employee 	relations 	by
cancelling 	work 	assignments 	which 	had 	been 	given 	to 	them and
thereby 	causing 	them 	to 	lose 	extra 	pay.
(b) 	Interfering 	with 	the 	right of 	employees 	to 	seek
representation 	by 	an 	employee 	organization 	in 	their
employer-employee 	relations 	by 	warning 	them 	that 	the 	filing 	of
grievances 	will 	result 	in 	the 	loss 	of 	work 	assignments 	and 	by
cancelling 	such 	assignments.
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(c) 	Interfering 	with 	the 	right of 	an 	employee
organization 	to 	represent 	its members 	in 	their
employer-employee 	relations 	by 	warning 	employees 	that 	the
filing 	of 	grievances 	will 	result 	in 	the 	loss 	of 	work
assignments 	and 	by 	cancelling 	such 	assignments.
2. 	TAKE 	THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
(a) 	Compensate bus drivers Dianne Woodson,
Victoria 	Tilley 	and 	Claudia 	Larson 	for 	wages 	lost 	because 	of
the 	District 	cancellation 	of 	their 	assignment 	to 	drive 	students
to 	San Mateo 	on May 	12 	and 	13, 	1984. 	Each driver 	shall 	be paid
for 	four 	hours 	of 	work 	on May 	12 	and 	a 	full 	day 	on May 	13 	with
the 	workday 	concluding 	at 	8:30 	p.m. 	unless 	either 	party 	can
demonstrate 	that 	the 	trip 	as 	actually 	made 	by 	the 	charter 	bus
company 	required 	either 	a 	greater 	or 	lesser 	amount 	of 	time.
Insofar 	as 	any portion 	of 	the 	trip 	normally 	would 	have 	been
paid 	at 	the 	overtime 	rate 	under 	the 	contract 	between 	the
parties, 	the 	back 	pay 	award 	shall 	be 	calculated 	accordingly.
The 	amount 	due 	each 	driver 	shall 	be 	augmented 	by 	interest 	at
the 	rate 	of 	10 	percent with 	the 	interest 	due 	from 	the 	date
District 	drivers 	received 	paychecks 	covering 	the 	period 	of
May 12 and 13, 	1984.
(b) 	Within ten 	(10) 	workdays of 	service of 	a 	final
decision 	in 	this matter, 	post 	at 	all 	school 	sites 	and 	all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the 	notice 	attached 	hereto 	as 	an 	appendix.
36

The 	notice must 	be 	signed 	by 	an 	authorized 	agent 	of 	the
District, 	indicating 	that the 	District will comply with 	the
terms of 	this order. 	Such posting 	shall 	be maintained 	for 	a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall 	be 	taken to 	insure 	that 	the notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
(c) 	Upon 	issuance of a final decision, 	make written
notification 	of 	the 	actions 	taken 	to comply with 	this 	Order 	to
the 	Sacramento 	Regional 	Director 	of 	the 	Public 	Employment
Relations 	Board 	in 	accordance 	with 	her 	instructions.
It 	is 	further 	ordered 	that 	the portion of 	the complaint and
charge 	which 	alleges 	that 	the 	District 	subcontracted 	unit work
is 	hereby dismissed.
Pursuant 	to California Administrative Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed Decision and Order 	shall
become final on February 20, 	1985, 	unless a party files a
timely 	statement 	of 	exceptions. 	In 	accordance with 	the 	rules,
the 	statement 	of 	exceptions 	should 	identify 	by page citation or
exhibit 	number 	the 	portions 	of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 	8,
part III, 	section 32300. 	Such statement of exceptions and
supporting 	brief 	must 	be 	actually 	received 	by 	the 	Public
Employment 	Relations 	Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento 	before 	the close of 	business 	(5:00 p.m.) 	on
February 20, 	1985, 	or 	sent by telegraph or certified United
37

States mail, 	postmarked not 	later 	than 	the 	last day 	for 	filing
in order 	to 	be 	timely 	filed. 	See 	California Administrative
Code, 	title 8, 	part III, 	section 32135. 	Any statement of
exceptions 	and 	supporting 	brief 	must 	be 	served 	concurrently
with 	its 	filing 	upon each party 	to 	this proceeding. 	Proof 	of
service 	shall 	be 	filed with 	the Board 	itself. 	See 	California
Administrative Code, 	title 8, 	part III, 	section 32300 and 32305.
Dated: 	January 31, 	1985 Ronald E. 	Blubaugh
Administrative 	Law 	Judge
38
'