Calistoga Joint Unified School District (PERB 0744E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
CALISTOGA 	JOINT 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
)
)
) 	Case No. 	SF-CE-11 19
PERB Decision No. 	744
June 	19, 1989
)
)
)
Appearances: 	Madalyn J. 	Frazzini, Attorney, 	for California
School 	Employees Association; 	School 	and College Legal 	Services
by Margaret M. 	Merchat, 	Assistant General Counsel, 	for Calistoga
Joint 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	on 	exceptions 	filed by 	the Calistoga 	Joint
Unified 	School 	District 	(District) 	to the proposed decision of 	an
administrative 	law judge 	(ALJ) 	who 	found that the District
violated section 3543.5, 	subdivision 	(c) 	and, 	derivatively,
subdivisions 	(a) 	and 	(b), 	of the Educational Employment Relations
Act 	(EERA or Act)1 by unilaterally transferring work out of 	the
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code.
Section 3543.5 provides, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
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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.
classified 	bargaining 	unit.
FACTUAL 	SUMMARY
The 	California 	School 	Employees 	Association 	(Association)
became 	the 	exclusive 	representative 	of 	classified 	employees 	of
the District 	in October 	1985. 	The 	incidents 	giving rise to 	this
case occurred in the 	summer of 	1986. 	During that time, 	no
collective 	bargaining 	agreement 	had 	yet 	been proposed 	nor
negotiated. 	In late May, 	1986, 	District Superintendent Thomas
Henry 	called 	the Association's 	Chapter 	President 	Stephanie 	Bigham
to 	inform her 	that 	the 	District would be 	discussing reductions 	in
the 	classified 	staff at the June 	4, 	1986 	school board meeting.
Contemplated 	changes 	included 	eliminating 	an 	instructional 	aide
position and 	two 	noon-duty 	supervisor positions 	at 	the 	elementary
school.
The Association immediately 	sent 	a memorandum to 	the.
District 	addressing the proposed reductions. 	In pertinent part,
it 	stated 	that
[t]hese decisions 	and 	effects 	fall within the
scope of negotiations: 	the effects 	of 	layoff
are negotiable; 	the decision to reduce hours,
as well as 	the effects 	of 	such reductions,
are negotiable.
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The Association also demanded 	that 	the 	District 	begin bargaining
as 	soon as possible, 	in order to reach agreement before
implementation of 	the proposed decisions.
At 	the June 	4, 	1986 	board meeting, 	Bigham presented the
Association's 	proposed 	contract 	and 	again demanded 	that 	the
District 	negotiate 	any proposed 	reductions. 	The board 	members
discussed, 	at length, 	the proposed reductions, 	but took no formal
action.
There was 	no 	further 	communication between the 	District 	and
the Association until the agenda 	for the July 	16, 	1986 board
meeting was 	received by the Association. 	The 	agenda 	contained 	a
recommendation 	for 	the 	elimination of 	the 	instructional 	aide 	and
two 	noon-duty 	supervisor positions.
In addition to Bigham, 	Michael Persch, 	field representative
for the Association, 	attended the July 	16, 	1986 meeting. 	He read
the 	following prepared 	statement.
This 	shall 	serve as 	our written demand to
negotiate the decision, 	where appropriate,
and the 	effects 	of 	all 	the proposed
layoffs/transfer 	of 	work 	from 	the 	bargaining
unit/reduction 	in hours 	being proposed 	for
adoption by the 	Board 	tonight.
This 	demand to 	negotiate will 	be 	followed 	at
the 	appropriate 	time with proposals 	including
but not 	limited to 	alternative 	actions,
timing, 	appropriateness of duties, 	seniority,
reassignment, 	severance pay, 	number of
employees 	to be affected 	etc.
We 	encourage the Board, 	in order to avoid a
unilateral action, 	to postpone these
decisions 	to accommodate 	the obligation to
bargain 	the 	aforementioned 	action.
3
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The Association argued at 	the 	meeting 	that 	the proposed
reduction of 	the 	noon-duty positions was 	either a 	reduction 	in
hours or a transfer of work and, 	therefore, 	the District was
required 	to 	negotiate both 	the decision and 	the 	effects 	of 	the
reduction. 	Additionally, 	the Association argued that the
District was 	required to 	negotiate 	the 	effects 	of 	the 	elimination
of 	the 	instructional 	aide position.
The 	District 	took the position that 	it 	need 	only 	negotiate
the 	effects 	of the 	layoffs 	and eliminated positions. 	The
District 	indicated 	its willingness 	to 	so negotiate. 	The
Association wanted 	the proposed 	decisions 	negotiated 	before 	their
final 	approval. 	In response, 	one board member offered to table
the 	discussion 	if 	the Association waived 	the mandatory 	30-day
notice to 	the 	affected 	employees. 	The Association refused.2 The
District 	approved 	the 	elimination of 	the 	instructional 	aide
position and the 	noon-duty 	supervisor positions. 	The 	elementary
2Persch 	testified that 	the 	District 	refused to 	engage 	in any
negotiations without 	a waiver of 	the notice 	requirement. 	Bigham
testified 	that 	no 	one on the board 	indicated whether 	the 	District
would negotiate. 	The ALJ 	credited the 	District's 	witness'
testimony which 	indicated 	that 	the 	District was 	willing 	to
negotiate 	the 	effects 	of 	the decisions 	to 	eliminate positions 	and
lay off 	employees. 	The ALJ 	found 	it unlikely that 	the 	District
would 	require waiver of 	the 	notice 	requirement 	in exchange 	for
continued negotiations 	after the decision to 	lay off 	and
eliminate positions was made. 	Furthermore, 	he 	found it unlikely
that 	the 	board would 	refuse 	to participate 	in 	effects
negotiations 	after being advised by 	legal 	counsel 	to do 	so. 	We
defer to 	this 	credibility determination by the ALJ. 	(Santa Clara
Unified School District 	(1979) 	PERB Decision No. 	104.)
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students 	were 	subsequently 	supervised by members 	of 	the
certificated unit 	during 	the 	noon hour.
On August 22, 	1986, 	the Association filed charges against
the District on a number of 	issues, 	including the District's
alleged 	failure 	to 	bargain the 	decision to 	eliminate 	the
instructional 	aide 	and noon-duty 	supervisor positions. 	A
complaint was 	issued and hearings were held on March 23-25, 	1987.
Solely at 	issue 	in this 	appeal 	is 	the 	elimination of 	the
noon-duty 	supervisor positions.
THE 	PROPOSED 	DECISION
The 	District 	argued 	that 	the 	elimination of 	the 	noon-duty
supervisor positions was 	a 	layoff and, 	therefore, 	the District
need 	only 	negotiate the 	effects 	after the decision was 	made. 	The
Association presented two theories. 	First, 	it asserted that the
noon-duty 	supervisor position was 	not 	a 	separate position, 	but
part of an instructional aide position; 	therefore, 	the
elimination 	involved a reduction in hours 	for the 	employees.
Alternatively, 	it argued that the elimination of 	the classified
position 	and 	reassignment 	to 	the 	certificated 	unit 	constituted 	a
unilateral 	transfer of unit work to nonunit members.
The ALJ 	rejected the 	District's 	argument 	and 	the
Association's 	reduction 	in hours 	argument 	and held 	that 	the
District 	"breached 	its 	obligation to 	negotiate 	in good 	faith by
unilaterally 	transferring work of 	noon duty 	supervisors 	to 	the
certificated unit." 	In 	so holding, 	the ALJ relied on the Board's
decisions 	in Eureka City School 	District 	(1985) 	PERB Decision
un
	5

No. 	481 	and Lincoln Unified School 	District 	(1984) 	PERB Decision
No. 465.
In Eureka, 	the 	Board held that an 	impermissible 	transfer of
work 	from unit 	to 	nonunit 	employees 	did 	not 	take place where 	unit
and 	nonunit 	employees 	traditionally had 	overlapping duties 	and
the 	employer 	merely 	increased 	the 	quantity 	of 	work which 	nonunit
employees 	performed and decreased 	the unit 	employees' 	share 	of
the overlapping duties. 	(Ibid, 	at p. 	15.) 	The Board expressly
set 	forth the burden of proof:
. 	. 	. 	the charging party must establish, 	as a
threshold matter, 	that duties were, 	in fact,
transferred out of the unit; 	that is, 	that
unit 	employees 	ceased 	to 	perform work which
they had previously performed 	or 	that 	nonunit
employees 	began to perform duties 	previously
performed 	exclusively by 	unit 	members.
(Ibid.. 	emphasis 	in original.)
In reaching 	the 	conclusion that 	the 	elimination of 	the
noon-duty 	supervisory positions 	resulted 	in 	a 	unilateral 	transfer
of work, 	the ALJ relied on three 	factors. 	First, 	and most
importantly, 	that the
noon duty 	supervision has 	always 	been
- -	performed 	solely 	by 	classified 	employees 	who
were also instructional aides, 	whereas
certificated 	employees 	have 	always 	handled
yard duty 	supervision at 	other 	times 	during
the day.
(Emphasis 	in original.) 	Secondly, 	the ALJ found that the 	salary
schedule 	tied 	the 	noon-duty 	supervisors 	to 	the 	classified unit.
And third, 	he 	found that, 	in the past, 	the certificated employees
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performed yard 	supervision only before 	and after 	school, 	and
during recesses. 	He held that
[a]lthough the 	duties 	performed by 	teachers
during 	those periods 	bear 	some 	similarity 	to
duties 	performed 	by 	classified 	employees
during the noon period, 	they are not
identical.
He reasoned that the certificated employees' 	duties, 	as yard
supervisors, 	may vary because of the different activities which
occur during the 	day.
THE 	DISTRICT'S 	EXCEPTIONS
The District excepts 	to two of 	the ALJ's 	conclusions.
First, 	it argues 	that the ALJ erred 	in his 	conclusion that there
was 	an unlawful transfer because, 	the District contends, 	the
Association waived 	its 	right to bargain by 	its 	actions 	and
failure to demand to bargain. 	Additionally, 	it argues that, 	even
if 	the Association's 	conduct was 	insufficient 	to 	support waiver,
the 	conduct warrants 	a reduction in the 	District's 	back pay
liability.
Second, 	the 	District argues 	that 	the ALJ 	erred when he
concluded that 	there was 	no overlap 	of 	duties 	between the
classified and certificated units' 	yard 	supervision and, 	hence,
no unlawful 	transfer of work took place. 	It takes particular
exception to 	each of 	the 	factors 	relied upon by the ALJ.
DISCUSSION
1. 	Application of the Eureka Test
As discussed earlier, 	in Eureka City School District, 	supra.
PERB Decision No. 	481, 	the Board held that in order to prevail on
7
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a unilateral 	transfer of work charge, 	the 	charging party must
show that 	duties 	were 	transferred out 	of 	the unit by 	showing
either 	that 	unit 	employees 	ceased 	to perform work which 	they
previously performed, 	or that 	nonunit 	employees 	began to perform
-
duties 	previously performed 	exclusively 	by 	unit 	employees,
(Ibid, at p. 	15.) 	The District argues that, 	because the
certificated 	employees 	had 	always 	supervised 	yard duty 	before
school, 	during recesses, 	and after school, 	the yard supervision
duties were overlapping and, 	thus, 	met the Eureka criteria.
The District errs 	in its Eureka analysis. 	The 	facts 	in
Eureka 	presented 	a 	markedly different problem 	than 	that presently
before the Board. 	In Eureka. 	a teacher and an instructional 	aide
shared 	teaching 	responsibilities 	for 	a 	special 	education program.
The 	aide was 	subject to the teacher's 	supervision. 	In a
departure 	from the district's previous procedure, 	the teacher and
the 	aide were not 	assigned to 	the 	same 	class 	(nor the 	same
school) 	during the teaching day. 	The Board found that, 	although
the 	duties 	assumed by the 	aide 	increased because 	of 	the 	new
arrangement, 	work had not been 	"transferred" 	to nonunit,
classified 	employees. 	The 	Board relied primarily 	on the 	fact
that 	the duties 	of 	the aide 	and the 	teacher had overlapped
significantly 	for 	the 	entire 	time 	that 	aides 	had been assigned 	to
the 	program.
By contrast, 	the 	case presently before the Board 	involves 	a
situation where, 	regardless 	of whether there were overlapping
duties, 	the 	District 	eliminated work previously performed by 	the
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classified unit 	and 	reassigned 	it 	to 	the 	certificated unit.
These 	facts 	fall 	squarely within the 	first prong of 	the 	Eureka
test: 	the 	classified 	employees 	"ceased 	to perform work which
they had previously performed." 	(Ibid. 	at p. 	15.) 	Subsequent 	to
the 	elimination of the noon-duty 	supervisory positions, 	no
classified 	unit 	employee 	performed 	any 	yard duty 	supervision.
Since 	classified 	employees 	"ceased 	to perform work which 	they 	had
previously performed," 	under Eureka, 	an unlawful 	unilateral
transfer of work took place. 	Given this 	analysis, 	we need not
address 	the 	specifics of 	the District's 	exceptions, 	as we do not
adopt the ALJ's 	Eureka analysis. 	Whether or not the duties were
overlapping, 	the District unlawfully transferred 	all 	of 	the
classified unit's 	yard 	supervision work 	to 	the 	certificated 	unit.
2. 	Waiver of 	the Right to Bargain
The District argues 	that, 	even if 	it had a duty to bargain
over the 	transfer of work to 	the 	certificated unit, 	it 	should be
relieved 	of 	that duty because 	of 	the Association's 	dilatory 	and
confusing actions. 	The crux of 	its 	argument 	is 	that the
Association did 	not properly 	request 	bargaining 	on the 	issue 	of
transfer, 	but 	instead addressed 	generally 	the 	layoff/reduction 	of
hours.
This 	analysis 	completely 	ignores 	the Association's 	repeated
requests 	for negotiations. 	Prior to the June 	4, 	1986 board
meeting, 	the Association 	indicated 	its 	desire 	and demand 	for
negotiations 	on both 	the 	decision-making process 	and 	the 	effects
of 	any proposed decision. 	A demand was 	reiterated at 	the 	June 	4
99

meeting. 	And at the July 	16, 	1986 board meeting, 	the Association
expressly demanded to negotiate 	"the decision, 	. 	. 	. 	and the
effects 	of 	all 	the proposed 	layoffs/transfer of work 	from the
bargaining unit/reduction 	in hours 	being proposed." 	(Emphasis
added.)
The 	Board has held that, 	where there was 	a 	clear demand to
meet and discuss 	a matter, 	even without a 	specific 	request to
negotiate, 	a duty to bargain exists, 	and no waiver occurs, 	even
if 	the position maintained by 	the 	requesting party was 	erroneous
as 	a matter of 	law. 	(Goleta Union School District 	(1984) 	PERB
Decision No. 	391; 	see also, 	Newman-Crows Landing Unified School
District 	(1982) 	PERB Decision No. 	223 	(it is not essential that a
request be 	specific 	or 	in a particular 	form).)
The Association, 	while not 	specifically addressing transfer
in each of 	its 	requests 	to bargain, 	did consistently demand
negotiations 	over the decision to 	reduce the hours 	of 	the aide
and yard-duty positions. 	The 	District always 	took the position
that there was 	only a layoff and no reduction in hours, 	thus
asserting 	that 	it 	need only bargain effects.
Since 	the 	Association 	consistently 	requested 	negotiations
over the decision and effects 	of 	the 	elimination of 	the yard-duty
supervisory position, 	including a 	specific 	request 	on July 	16,
1986, 	to bargain the District's decision to 	"transfer," 	we reject
the 	District's waiver argument. 	The 	District's 	attempt to 	limit
its 	liability, 	also based on the Association's 	alleged waiver,
similarly must 	fail.
-
10

CONCLUSION
We, 	therefore, 	find that the District violated 	section
3543.5, subdivision (c), and, derivatively, subdivision (b),3 by
unilaterally 	transferring work 	from 	the 	classified 	unit 	to 	the
certificated 	unit without 	first 	affording 	the Association 	an
opportunity 	to 	negotiate with 	the 	District 	over that decision.
REMEDY
Section 3541.5, 	subdivision 	(c) 	grants PERB
. 	. 	. 	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.
In this 	case, 	since it has been found that the District
unilaterally transferred work, 	the 	appropriate remedy 	is 	to
restore the 	status 	quo. 	(Santa Clara 	Unified School 	District,
supra, 	PERB Decision No. 	104.) 	The District, 	therefore, 	must
return the 	noon-duty 	supervisory positions 	to 	the 	classified
unit. 	It 	is 	also appropriate 	for the District to 	compensate the
affected 	employees 	for any 	financial 	losses 	which 	they 	suffered
due 	to 	the unilateral 	change. 	The District must 	also 	notify 	the
exclusive 	representative of 	the 	classified unit 	of 	any 	future
decisions 	to transfer work and, 	upon request, 	bargain over that
decision.
-
3We decline to find a 	section 3543.5, 	subdivision 	(a)
violation as 	there was 	no 	evidence 	submitted that 	the District's
actions 	directly 	affected 	the 	exercise 	of 	any protected 	rights 	by
any members 	of 	the Association.
11

ORDER
Based upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the 	entire record in this 	case, 	we 	find that the
Calistoga 	Joint 	Unified 	School 	District 	(District) 	violated 	the
Educational 	Employment Relations Act 	(EERA) 	section 	3543.5,
subdivisions 	(b) 	and 	(c). 	Pursuant to EERA section 3541.5,
subdivision 	(c), 	it is hereby ORDERED that the District, 	its
governing board, 	and its representatives, 	shall:
1. 	CEASE AND DESIST FROM:
(a) 	Failing and refusing to meet 	and negotiate 	in good
faith with the 	California 	School 	Employees 	Association
(Association), 	as the exclusive representative of the District's
classified 	employees, 	by unilaterally 	transferring work out 	of
the unit, 	a matter within the 	scope of representation.
(b) 	By the same conduct, 	denying to the Association
rights 	guaranteed by EERA, 	including the 	right 	to represent 	its
members.
2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES 	OF THE ACT:
(a) 	In the future, 	provide notice to the Association
of 	any proposed decision to 	transfer work out 	of 	the 	bargaining
unit and, 	upon request, 	meet and negotiate with the Association
over the decision, 	and the effects 	thereof, 	of transferring work
out of 	the 	classified unit.
(b) 	Return the work of 	the 	noon-duty 	supervisors 	to
the 	classified unit 	and pay 	to 	all 	affected 	employees 	in the 	unit
the 	lost 	income and other benefits, 	plus 	interest, 	caused by the
12

transfer of work.
(c) 	Within thirty-five 	(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
as 	an Appendix hereto. 	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.
(d) 	Written notification of 	the actions 	taken to 	comply
with this 	Order 	shall be made to the 	San Francisco 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with her 	instructions.
Chairperson Hesse 	and Member Camilli 	joined 	in this 	Decision.
13

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. 	SF-CE-1119, 	California
School 	Employees Association v. 	Calistoga Joint Unified School 	District, 	in
which all parties 	had the right 	to participate, 	it has 	been 	found 	that 	the
District violated the Educational 	Employment 	Relations Act 	(EERA) 	section
3543.5, 	subdivisions 	(b) 	and 	(c) 	by unilaterally transferring work from the
classified 	unit 	to 	the 	certificated 	unit without 	affording 	the 	exclusive
representative 	notice 	and 	the 	opportunity 	to 	negotiate.
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post 	this 	notice
and 	we 	will:
1. 	CEASE AND DESIST FROM:
(a) 	Failing and refusing to meet and negotiate 	in good 	faith
with the California School Employees Association 	(Association), 	as 	the
exclusive 	representative 	of 	the 	Calistoga 	Joint 	Unified 	School 	District's
classified employees, 	by unilaterally transferring work out of 	the unit, 	a
matter within the 	scope of 	representation.
(b) 	By the 	same conduct, 	denying to the Association rights
guaranteed by 	EERA, 	including the right 	to 	represent 	its 	members.
2. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
(a) 	In the future, 	provide notice to the Association of any
proposed decision to 	transfer work out 	of 	the 	bargaining unit 	and, 	upon
request, 	meet and negotiate with the Association over the decision, 	and the
effects 	thereof, 	of 	transferring work out of 	the 	classified unit.
(b) 	Return the work of 	the noon-duty 	supervisors 	to 	the
classified unit 	and pay to 	all 	affected 	employees 	in the 	unit 	the 	lost
income and other benefits, 	plus 	interest, 	caused by the unilateral transfer
of work.
Dated: 	CALISTOGA JOINT 	UNIFIED 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS AN OFFICIAL 	NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY 	(30)
CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND MUST NOT 	BE 	DEFACED,
ALTERED, 	REDUCED 	IN SIZE OR COVERED BY ANY OTHER MATERIAL.