Cajon Valley Union School District (PERB 0766E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	AND ITS CHAPTER #179,
Charging 	Party,
v.
CAJON VALLEY UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-2620
PERB 	Decision No. 	766
September 15, 	1989
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Appearances: 	Robert M. 	Baker, 	Senior Field Representative, 	for
California School 	Employees Association, 	and its 	Chapter #179;
Worley, 	Schwartz, 	Garfield & Rice by Timothy K. 	Garfield,
Attorney, 	for Cajon Valley Union School District.
Before Hesse, Chairperson; 	Porter, Craib, 	and Shank, Members.
DECISION
HESSE, 	Chairperson: 	This case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the Cajon Valley Union School 	District 	(District) 	to 	the 	attached
proposed decision of an administrative 	law judge 	(ALJ), 	finding
that the District violated section 3543.5(a), 	(b), 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 when it unilaterally
1 EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein 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
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
_______ )

implemented 	the 	Personnel 	Commission's 	(Commission) 	recommended
changes 	to 	existing wage 	scales 	contained 	in a 	collective
bargaining 	agreement 	then in effect. 	We have 	carefully reviewed
the entire record, 	including the proposed decision, 	the
transcripts, 	the exceptions 	filed by the District, 	and the
response 	to 	the 	exceptions 	filed by 	the 	California 	School
Employees Association, 	and its Chapter #179 	(CSEA). 	We find the
ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law free 	of prejudicial
error and adopt them as 	the decision of 	the 	Board 	itself.
However, 	we believe that the District's 	exceptions 	require a
brief 	response.
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.
The 	District 	specifically 	excepted 	only to 	the ALJ's
conclusion of 	law that 	it was 	required to negotiate 	changes 	in
salary 	ranges 	assigned 	to 	three 	classified positions 	by 	the
Commission as 	a result of 	a reclassification study. 	The
District's bases 	for this 	exception are: 	(1) 	as 	a matter of 	law,
in a merit 	system 	school district, 	a personnel 	commission has
exclusive 	jurisdiction to 	assign 	salary range 	classifications,
and, 	therefore, 	the district may not 	legally negotiate concerning
the 	salaries of 	individual positions; 	and 	(2) 	the District's past
practice 	of 	automatically 	implementing 	the 	Commission's
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2

recommendations 	without 	objection 	from CSEA 	is 	a 	legitimate
defense 	to 	an allegation of 	failure 	to 	negotiate 	the 	changes.	. ..
The ALJ 	found 	it necessary to 	address 	the 	District's
arguments 	concerning a 	1981 	amendment to 	Education Code 	section
45256 which was 	subsequent 	to the Court 	of Appeal 	decision 	in
Sonoma County Board of 	Education v. 	Public 	Employment 	Relations
Board 	(1980) 	102 	Cal.App.3d 	689. 	The District argues 	that the
1981 	amendment overruled the Sonoma decision, 	in which 	it was
found that wage 	ranges 	are 	negotiable 	in districts 	operating
under a merit 	system, 	with the 	exception that 	relationships
between 	salaries 	in the 	same 	occupational 	group 	established 	by 	a
personnel 	commission must remain the 	same. 	Since the ALJ's
proposed decision was 	issued, 	this 	Board, 	in San Bernardino City
Unified School District 	(1989) 	PERB Decision No. 	723, 	held that
the 	1981 	amendment 	to Education Code 	section 45256 	did not
overrule 	the 	Sonoma 	decision and does 	not 	establish 	exclusive
salary-setting 	authority with 	a 	personnel 	commission.
Therefore, 	in the absence of exclusive 	salary-setting
authority vested 	in a civil 	service 	commission, 	it remains 	an
unfair practice 	for the 	employer to 	alter the 	clear terms 	of 	the
collective 	bargaining agreement without 	the 	consent 	of 	the
exclusive representative. 	The District, 	however, 	also argues
that 	CSEA waived 	its 	right 	to 	rely 	on unambiguous 	language 	in the
collective bargaining agreement, 	i.e., 	the 	established and
existing wage 	scales, 	when it did not object to the District's
33

past 	implementation of 	changes 	in 	salary 	immediately 	following
the 	approval 	by the Commission of 	such 	changes.
The 	mere 	fact 	that 	a party to 	a 	collective bargaining
agreement has 	not 	chosen to 	enforce 	its 	contractual 	rights 	in the
past, 	does not mean that, 	ipso facto, 	it is forever precluded
from doing 	so. 	(Marysville 	Joint 	Unified 	School 	District 	(1983)
PERB Decision No. 	314, 	p. 	10.) 	Furthermore, 	the record indicates
CSEA was 	not 	notified as 	to when reclassifications were 	to be
implemented 	or otherwise 	assigned an effective date. 	In
Placentia Unified School District 	(1986) 	PERB Decision No. 	595,
the 	Board 	stated:
. 	. 	. 	not only must a waiver be 	"clear and
unmistakable" 	but waiver is 	also an
affirmative defense, 	therefore, 	the party
asserting it bears the burden of proof. 	. 	. 	.
doubts 	must be 	resolved 	against 	the party
asserting waiver. 	. 	. 	.
(At pp. 	7-8.)
Given 	the 	existing 	and 	unambiguous 	contract provisions
governing 	salary 	rates 	for the affected 	classifications, 	and 	the
lack 	of 	any 	convincing 	evidence 	that 	CSEA waived 	its 	contractual
rights, 	the District's 	argument regarding a uniform past practice
in 	implementing 	salary 	changes 	is 	meritless.
ORDER	ORDER
Based on the entire record in this 	case, 	it is hereby
ORDERED that 	the Cajon Valley Union School 	District 	(District),
its 	governing board and representatives, 	shall:
4

A. 	CEASE AND DESIST FROM:
1. 	Interfering with the exercise of rights, 	guaranteed
under the Educational Employment Relations Act 	(EERA or Act), 	by
the District's 	employees 	in the classified bargaining unit, 	by
unilaterally 	changing those 	employees' 	salary ranges 	during 	the
term 	of 	collective 	bargaining 	agreements 	negotiated with
California School Employees Association, 	and its 	Chapter #179
(CSEA), without CSEA's consent.
2. 	Denying CSEA rights 	guaranteed to 	it by EERA by
unilaterally 	changing the 	salary 	ranges 	of 	employees 	in the
classified bargaining 	unit 	during 	the 	term of 	collective
bargaining agreements 	between the 	District and CSEA, 	without
CSEA's 	consent.
3. 	Failing and refusing to meet 	and 	negotiate 	in good 	faith
with 	CSEA by 	unilaterally 	changing 	the 	salary 	ranges 	of 	employees
in 	the 	classified bargaining unit during 	the 	term of 	collective
bargaining agreements 	between the 	District 	and CSEA, 	without
CSEA's 	consent.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE POLICIES OF THE ACT:
1. 	Within thirty-five days 	(35) 	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 	District. 	Such posting 	shall 	be
maintained 	for a period of 	thirty 	(30) 	consecutive workdays.
5

Reasonable 	steps 	shall be taken to 	insure 	that this 	Notice 	is 	not
reduced 	in 	size, 	defaced, 	altered or covered by any material.
2. 	Written notification of 	the 	actions 	taken to 	comply with
this 	Order 	shall be made 	to 	the Los Angeles 	Regional 	Director of
the 	Public 	Employment Relations 	Board 	in accordance with her
instructions.
IT 	IS 	FURTHER ORDERED that 	all 	other allegations 	in the
charge 	and 	complaint 	are hereby 	DISMISSED.
Members 	Craib 	and 	Shank 	joined 	in this 	Decision.
Member Porter's 	dissent begins 	on page 	7.
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Porter, 	Member, 	dissenting: 	I respectfully adhere to
my position 	that 	the 	salaries 	for 	individual 	classifications
in a merit 	system school district are not negotiable. 	(See
San Bernardino City Unified School 	District 	(1989) 	PERB 	Decision
No. 	723, 	dis. 	opn. 	pp. 	11-53.) 	Accordingly, 	I cannot find that
this 	merit 	system district 	employer made 	an unlawful 	unilateral
change 	in a negotiable 	subject.
Furthermore, 	as 	to the factual 	situation presented
in the instant case, 	I 	submit that a Personnel Commission's
reclassifications 	are not within the 	scope 	of 	representation and
negotiable, 	nor a permissible 	subject of 	negotiations 	in a merit
system 	school 	district. 	Reclassification is 	a matter within the
purview and 	authority of 	the 	independent 	Personnel 	Commission.
(Ed. 	Code, 	secs. 	45256 and 45285; 	and see Gov. 	Code, 	sec.
3543.2.) 	Moreover, 	once a merit 	system Personnel Commission
has 	adopted a reclassification, 	the 	incumbents 	of 	the position
or class, 	which has 	been 	so reclassified to a higher class 	due
to an increase 	in the duties of the class, 	would be entitled, 	as
a matter of 	law, 	to the 	salary of the higher class pursuant to
"like pay for like 	service" 	merit 	system principles. 	(See Ed.
Code, 	secs. 	45101, 	subd, 	(f), 	45256, 45285 and 45268; and State
Trial Attorneys' Association v. 	The 	State 	of California 	(1976)
63 Cal.App.3d 298, 	304.)
I 	would dismiss 	the 	complaint.
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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. 	LA-CE-2620,
California 	School 	Employees Association, 	and 	its 	Chapter #179 	v.
Cajon Valley Union School 	District, 	in which all parties 	had 	the
right to participate, 	it has 	been found that the Cajon Valley
Union School District (District) 	violated section 3543.5(a), 	(b) ,
and 	(c) 	of the Educational Employment Relations Act 	(EERA).
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	notice and we will:
CEASE AND 	DESIST FROM:
1. 	Interfering with the exercise of rights, 	guaranteed
under EERA, 	by District 	employees 	in the 	classified bargaining
unit, 	by unilaterally changing those 	employees' 	salary ranges
during 	the 	term 	of 	collective 	bargaining 	agreements 	negotiated
with California School Employees Association, 	and 	its Chapter
#179 	(CSEA), without CSEA's consent.
2. 	Denying CSEA rights 	guaranteed to 	it by EERA by
unilaterally 	changing the 	salary ranges 	of 	employees 	in 	the
classified bargaining unit 	during 	the 	term 	of 	collective
bargaining agreements 	between the 	District and CSEA, 	without
CSEA's 	consent.
3. 	Failing and refusing to meet 	and 	negotiate 	in good 	faith
with 	CSEA by 	unilaterally 	changing 	the 	salary 	ranges 	of 	employees
in 	the 	classified bargaining unit 	during 	the 	term of 	collective
bargaining agreements between the 	District 	and CSEA, 	without
CSEA's 	consent.
Dated: 	CAJON VALLEY 	UNION 	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.
I)

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION, 	AND ITS CHAPTER #179,
Charging 	Party,
V.
CAJON VALLEY UNION SCHOOL
DISTRICT,1
Respondent.
)
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) 	Unfair 	Practice
Case No. 	LA-CE-2620
PROPOSED 	DECISION
(12/20/88)
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Appearances: 	Robert M. 	Baker, 	Senior Field Representative for
California School 	Employees Association and its Chapter #179;
Worley, 	Schwartz, 	Garfield & Rice by Timothy K. 	Garfield for
Cajon Valley Union School 	District.
Before Douglas Gallop, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On August 	13, 	1987,2 California School Employees Association
and its 	Chapter #179 	(hereinafter Association) 	filed an unfair
practice 	charge 	alleging that Cajon Valley Union 	School 	District
(hereinafter District) violated section 3543.5(a), 	(b) and 	(c) 	of
the Educational Employment Relations Act 	(hereinafter EERA), 	by
unilaterally implementing changes in 	job descriptions, 	by
unilaterally changing the wage 	scales 	for three existing 	job
classifications 	and assigning a wage 	scale to one new job
The 	District's name appears as amended at the hearing.
2
A11 dates hereinafter refer to 1987, 	unless otherwise
indicated.
3The EERA is codified at Government Code section 3 540 et
seq. 	Unless otherwise indicated, all statutory references herein
are to the Government Code.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.

classification, 	and by refusing to 	furnish 	the Association with
requested 	information 	relevant 	to 	its 	representational
activities. 	On March 31, 	1988, 	the then Acting General Counsel
of 	the 	Public 	Employment 	Relations 	Board 	(hereinafter 	PERB)
issued a 	complaint 	alleging the 	changes 	in 	job descriptions 	and
wage 	scales, 	and the refusal 	to furnish information as violative
of section 3543.5(a), 	(b) and (c). 	On April 21, 	1988, 	the
District 	filed 	an answer denying 	the 	commission 	of 	unfair
practices. 	The parties met 	in an informal 	settlement 	conference
on June 20, 	1988, 	but were unable to resolve the matter. 	A
hearing was 	conducted 	pursuant 	to 	these 	unfair 	practice
allegations 	on September 	7 	and 8, 	1988. 	The parties 	filed post-
hearing briefs, 	and the matter was 	submitted 	for decision on
November 28, 	1988.
FINDINGS 	OF 	FACT
The 	District is 	an employer within the meaning of 	section
3540.l(k). 	The Association, 	an employee organization within the
meaning of 	section 3540.l(d), 	is the exclusive representative of
a 	comprehensive 	classified unit 	of 	the 	District's 	employees.
Tony Fernandez, 	a Field Representative, 	and Iris Schliekelman, 	a
District employee 	and the Chapter President, 	are primarily
responsible 	for representing 	the 	classified employees. 	Edmund G.
Derning, 	a labor relations consultant and G. 	Wayne Oetken, 	the
District's Assistant Superintendent, 	have been the 	District's
lead negotiators.
N	2

The 	District's 	classified employees 	have 	elected 	to 	be
governed by a merit 	system, 	pursuant to Education Code
section 	45220 	et 	seq. 	The merit 	system 	is 	administered by 	the
Cajon Valley 	Union 	School 	District 	Personnel 	Commission
(hereinafter Commission). 	The Commission consists of three
commissioners, 	one nominated by the Association, 	the 	second
nominated by 	the 	District 	and the 	third 	selected by 	the 	other
commissioners. 	The commissioners, 	who 	serve without pay, 	are not
employees 	of either the Association or the 	District. 	The
Commission maintains 	a 	small, 	paid 	staff 	including Ronald M.
Damschen, 	the Personnel Director, 	and Kathie Hillix, 	Assistant
Personnel 	Director. 	Both Damschen and Hillix 	are 	also 	employed
by the 	District; 	Damschen as 	Personnel 	Director 	and Hillix 	as
Personnel Analyst.
The 	District 	and the Association have 	been parties 	to 	a
series 	of 	collective bargaining agreements, 	including an
agreement which was 	effective 	for the period November 	9, 	1982 	to
June 30, 	1988, 	subject to reopeners 	(hereinafter Agreement).4
The Agreement 	contained 	a 	salary 	schedule 	containing 	salary
ranges 	and 	steps within each range. 	The Agreement also 	contained
a 	listing of 	job classifications, 	grouped within 	job 	families,
with each 	classification assigned 	to 	a 	salary range.
The Agreement 	contained 	the 	following provision:
''The parties 	are currently under contract until 	June 	30,
1990, 	subject to reopeners.
w	3

ARTICLE 	IV: 	BOARD RIGHTS
Except 	as 	limited by the provisions 	of 	this
Agreement, 	the Management of the District and
the direction of the working force, 	including
the right to hire, 	promote, 	transfer,
discharge, 	discipline for proper cause, 	and
to maintain efficiency of the employees, 	is
the responsibility of the Board. 	In
addition, 	the work to be performed, 	the
location of the work, 	the method and
processes, 	and the decision to make or buy
are 	solely 	and 	exclusively 	the 	responsibility
of 	the 	District provided that 	in the 	exercise
of 	such functions, 	the District 	shall 	not
discriminate 	against 	employees 	because 	of
participation 	in 	legitimate 	activities 	on
behalf 	of the Association. 	The 	foregoing
enumeration of 	Board rights 	shall 	not be
deemed to exclude 	other rights 	of 	the 	Board
not 	specifically 	set 	forth herein. 	The
Board, 	therefore, 	retains all rights not
otherwise 	specifically 	limited 	by 	this
Agreement 	and 	the 	non-utilization of 	any
Board right does 	not mean that 	the 	Board
shall 	not maintain 	said right.
Pursuant to Education Code 	section 45260 	et 	seq., 	the
Commission has 	published rules 	and regulations 	for 	classified
employees. 	These rules 	grant to the Commission the 	following
authority: 	1). 	To conduct classification studies at least every
four years 	(Chapter 20.300.2B); 	2 ) . 	To establish classification
plans 	(Chapter 30.200.2); 	3 ) . 	To determine whether jobs should be
reclassified due to changes 	in job duties 	(Chapter 30.200.6); 	and
4 ) . 	To classify newly created positions 	(Chapter 30.200.9). 	The
rules 	grant 	to 	the 	District 	the 	authority to 	assign 	job duties 	to
classified employees 	(Chapter 	30.200.1), 	and to create new
positions 	(Chapter 	30.200.9). 	The rules 	further provide that
44

classification 	studies 	are 	to be 	conducted by 	the 	Commission's
Personnel 	Director 	(Chapter 	30.200.8), 	and that the 	only basis
for reclassifying incumbent employees 	shall be 	"a gradual
accretion of duties." 	(Chapter 30.300.3). 	The rules provide
that 	the 	Commission 	is 	responsible 	for 	preparing 	salary 	schedules
and may conduct 	salary 	studies, 	but that the District may
approve, 	amend or reject these recommendations 	(Chapters
70.200.1, 	70.200.2 and 70.200.3). 	Finally, 	the rules provide
that reclassifications 	shall 	be 	effective 	on the 	date prescribed
by the Commission 	(Chapter 	30.200.2).
The 	Commission had 	historically 	conducted 	its 	own
classification studies, 	under the auspices 	of its 	Personnel
Director 	and Assistant 	Personnel 	Director.5 The 	Commission had
always 	given notice 	of 	intended reclassifications 	to 	the
classified employees 	and to 	the Association, 	and 	conducted
meetings 	to receive 	comments 	and 	criticism. 	Pursuant to rules 	of
the Commission, 	its 	final 	classification decisions became
effective 	immediately upon approval. 	Apparently, 	the 	District
had 	also 	uniformly 	accepted 	the 	recommended wage 	reassignments
without 	taking independent action. 	The Association rarely
protested these 	actions, 	because 	they usually 	involved wage
increases or new positions. 	On occasion, 	such as 	in a case
5Some of the Association's witnesses, 	perhaps 	confusing
Damschen's dual roles, 	vaguely referred to these as 	"in house"
studies 	by the District. 	The Commission's 	rules 	and regulations,
and documentary evidence 	concerning these 	past 	studies 	show,
however, 	that 	the 	studies were 	conducted by the Commission.
55

involving 	a 	downward reclassification 	accompanied 	by 	a 	wage
freeze, 	the Association's representatives 	did discuss
reclassifications with Damschen. 	Fernandez 	and 	Schliekelman
credibly 	testified 	that 	they were 	unaware 	of 	any 	District 	policy
as 	to when 	the 	District 	implements 	changes 	in 	salary ranges
recommended by 	the 	Commission.
Approximately two years 	ago, 	Fernandez met with a group of
Special 	Education Classroom Aides 	(SECAs), 	who complained that
their 	job duties 	had 	"radically" 	changed over the 	past 	five 	to
six years, 	and 	felt that they 	should be reclassified upward. 	The
Association requested a reclassification 	study 	for 	the 	SECAs, 	but
since many other classified positions were due 	(or overdue) 	for
review, 	the Association agreed to 	select 	an outside 	consultant 	to
review many of the 	classified positions. 	Dr. 	Michael Nash, 	who
was 	selected by a committee consisting, 	inter alia, 	of Fernandez,
Schliekelman, 	Damschen and Hillix, 	conducted the 	study. 	At one
such committee meeting, 	in August 	1986, 	Fernandez took the
position that the results 	of 	the 	study would be negotiable.
In the 	course of the reclassification 	study, 	Nash 	sent
questionnaires 	to the 	classified employees, 	and met with them to
discuss 	their 	job duties. 	Nash 	issued a preliminary report dated
November 	14, 	1986, 	and a final report dated December 	19, 	1986.
While 	the 	Commission promptly 	furnished 	copies 	of 	these 	reports
to the District, 	it 	failed to provide copies to the Association.
The 	Commission's 	rules 	provide 	that 	the Association 	is 	to 	receive
copies 	of the data obtained in 	salary studies 	(Chapter 	70.200.2),
6

but 	is 	silent with respect to data obtained in reclassification
studies.
In January 	1987, 	Damschen sent letters to the employees
affected by the 	study, 	stating Nash's recommendations 	as 	to 	their
job titles, 	salary ranges 	and 	job descriptions.6 The 	letters
further 	notified the employees 	of 	a 	January 	20 	Commission meeting
at which they 	could present 	their views 	on the 	recommendations.
At the 	January 20 meeting, 	several 	employees 	spoke 	in opposition
to the Nash 	study recommendations, 	including the 	SECAs, 	who were
opposed 	to 	the recommendation 	for no 	change 	in their 	job title 	or
classification. 	Angelina Elias, 	a SECA employee, 	told the
Commission that due 	to the 	gradual 	increase 	in the 	job duties 	for
that position, 	the Commission 	should consider a 	"salary
increase."
On January 22, 	after receiving further input 	from employees,
the 	Commission adopted the 	final 	Nash 	study, 	with minor
modifications. 	Thus, 	the Commission adopted 	job descriptions 	and
salary range placements 	for 	28 	job classifications, 	including a
newly-created position. 	Of these, 	two positions were 	classified
upward in 	salary range, 	one 	(having no incumbent) 	was 	classified
downward, 	and a 	salary range was 	assigned to the new position.
The 	Commission 	also 	approved 	five 	individual 	employee
reclassifications 	(all 	of which involved equal 	or higher wage
ranges) 	and deleted one 	job classification.
w' hile	while 	the 	letters 	are 	on the 	District's 	stationery,
Damschen 	signed the 	letters 	as 	"Director Personnel 	Commission."
77

With respect to the 	job descriptions, 	the Association placed
into 	evidence 	the 	pre 	and post-Nash 	study 	job descriptions 	which
show changes 	in 	job descriptions 	for many 	job classifications.
Fernandez 	and Schliekelman, 	however, 	both testified that they
believed that 	all 	of 	these 	changes 	in 	job descriptions 	reflected
changes 	in 	job duties 	that had occurred over the 	past 	several
years. 	As noted above, 	Elias, 	at the January 20 meeting, 	stated
that the 	SECA's 	job duties had also changed over the years, 	and
she 	initially 	testified 	that 	the 	new SECA 	job description 	only
reflected existing 	changes 	in 	job duties. 	Elias 	later 	testified,
in an inconclusive manner, 	concerning 	specific 	job duties which
she, 	individually, 	may not have performed prior to the 	study. 	No
further 	evidence was 	presented on this 	issue.
Schliekelman 	and 	Fernandez 	gave 	rather 	conflicting 	accounts
as 	to 	Fernandez's 	statements 	before 	the Commission in January.
While 	both 	agree 	that 	Fernandez 	requested 	that 	the 	Commission
negotiate 	the 	Nash 	study prior 	to 	implementation, 	they disagree
as 	to whether this 	took place on January 20 	or January 22. 	Also,
while 	both 	testified that 	Fernandez 	requested 	information 	at 	one
of these meetings, 	they conflict as 	to what was requested.
According to Fernandez, 	he requested a 	copy of 	the 	"preliminary"
Nash report, 	while 	Schliekelman testified that 	Fernandez
requested the 	"results" 	of the Nash 	study, 	and that 	she did not
learn that 	a preliminary report had been 	issued until 	March 	19.
Finally, 	Fernandez 	initially testified that 	in response 	to 	his
information request, 	Damschen 	stated that he 	favored 	furnishing
8

the 	report. 	Fernandez 	later testified that Damschen opposed
furnishing the 	report. 	Schliekelman testified 	that 	Damschen 	said
he was 	opposed to providing the 	information. 	Damschen 	testified
that he recalled no request 	for 	information at 	the 	Commission
meetings. 	He does recall that Fernandez, 	at some point, 	demanded
that the Commission negotiate 	the 	study, 	and that he replied that
the 	Commission does 	not negotiate with the Association, 	but that
rather, 	the District negotiates. 	The 	foregoing evidence 	is
simply 	too 	confusing 	and 	contradictory 	to 	establish what
information request, 	if any, 	the Association made 	in January,
when the request was made, 	or the Commission's response 	thereto.
If 	such a request was made, 	it is 	found that Fernandez did not
specifically request a 	copy of the preliminary report, 	but
requested a 	copy of 	the 	results 	of 	the 	Nash 	study.
Schliekelman did request 	information 	in a 	letter dated
February 2; 	however, 	the letter was addressed to John Jarboe, 	the
Commission's Chairman 	(and the Association's nominee). 	The
letter requested 	". 	. 	.a 	complete 	copy of 	the report/findings/
recommendations made 	to 	the 	Personnel 	Commission by
Dr. 	Nash. 	. . . " 	In a letter dated February 	6, 	Jarboe replied:
As 	an 	individual 	Commission member 	I 	cannot
release 	the 	information you requested 	on 	the
classification study. 	However, 	the
Commission will 	consider 	your 	request 	at 	the
next meeting on February 	26.
The Commission, 	on February 26, 	approved the information request,
and on that date, 	provided a 	copy of 	the 	final 	report 	to the
. .
9

Association. 	Derning provided Fernandez with a 	copy of 	the
preliminary report 	at 	a meeting on March 	19.
Schliekelman, 	also on February 2, 	sent a letter to the
District's 	governing board demanding to meet 	and negotiate 	on 	the
reclassification 	study. 	Oetken 	subsequently requested 	that 	the
Association 	agree 	to upgrade one 	of 	the positions 	pursuant 	to the
Nash 	study. 	In a letter dated February 	12, 	Schliekelman denied
this 	request 	stating that the Association had 	"rejected" 	the 	Nash
Report 	in 	its 	"entirety" 	and that 	the Association would not
accept 	any portion of 	the report until 	it was 	negotiated 	in 	its
entirety. 	The District, 	in a letter dated February 	17, 	replied
that 	it 	considered the Nash 	study to be 	outside 	the 	scope 	of
representation, 	but offered 	to meet 	and negotiate with respect 	to
the 	four 	job 	classifications 	(including 	the 	newly-created
position) 	which had been reclassified to different 	salary ranges.
The District, 	without formal 	action, 	had implemented the
reclassifications 	and 	changes 	in 	salary ranges 	effective 	January
23. 	The District's 	governing board, 	over the protest contained
in a letter from Schliekelman, 	dated February 23, 	formally
adopted the 	job description 	changes 	on 	February 	24.
The Association's 	protests 	continued, 	resulting in a meeting
on March 19, 	attended, 	inter alia, 	by Fernandez, 	Schliekelman and
Derning.7 According to 	Fernandez, 	he 	told Derning that the
7The 	parties 	had originally 	scheduled 	a meeting with 	Oetken
more than two weeks 	earlier, 	but Oetken's 	illness 	and other
commitments 	forced 	a 	cancellation.
10

Association wished 	to 	negotiate 	the 	Nash 	study 	and 	asked 	if 	the
District had any proposals 	to make. 	Derning replied that he was
not 	there 	to negotiate 	but was 	attempting to 	find 	out what 	the
problem was. 	Fernandez 	stated that 	the Association 	considered
the Nash 	study negotiable, 	citing legal 	authority. 	Fernandez
testified that 	the meeting 	"didn't 	go 	anywhere" 	and that 	Derning
told him 	"to 	file 	the 	unfair." 	Neither 	side made 	any proposals
at 	the meeting. 	Schliekelman 	testified 	in a 	similar manner
concerning the meeting. 	She 	stated that 	she 	had expected the
meeting to be an 	"entry" 	into the negotiations process, 	to
address 	the Association's 	concerns.
Derning 	testified that 	he was 	asked 	to attend 	the 	meeting 	by
Oetken 	and Damschen, 	and was 	asked to 	find out what 	the
Association's 	complaints were. 	He 	acknowledged that he 	told the
Association's 	representatives 	that he was 	not there 	to negotiate,
but 	to 	ascertain their 	concerns. 	Derning testified that
Fernandez 	and 	Schliekelman 	insisted 	that 	the 	entire 	Nash 	study
should be negotiated, 	including the 	job duties 	and descriptions.
According to Derning, 	he replied that he 	felt that any changes 	in
wages were 	subject to negotiations, 	but that the 	subjects 	of 	job
descriptions 	and 	job duties were management prerogatives.
Derning 	contends 	that he 	offered 	to meet with respect 	to 	the
positions 	which 	had been 	assigned 	new 	salary 	schedules. 	With
respect to the 	filing of unfair practice 	charges, 	Derning
testified that Fernandez 	brought up the 	subject 	first, 	stating
that he 	had 	filed charges. 	Derning did not recall 	telling
11

Fernandez to file charges, 	but testified that if he did so, 	it
would have been 	in response 	to Fernandez's 	statement. 	It is
undisputed 	that 	the Association made 	no 	further 	requests 	for
negotiations 	on the 	study, 	or any portion thereof.
Derning is 	credited 	in his 	testimony that he 	offered 	to
negotiate wages 	for those positions 	which had been 	assigned
new wage 	scales. 	The Association's witnesses 	did not
specifically deny that this 	offer was made, 	and it 	comports with
both the 	District's 	letter 	of 	February 	17 	and Derning's 	strongly
asserted 	sentiment 	that 	the 	District 	should negotiate 	any wage-
related matters 	arising 	from 	actions 	taken by 	the 	Commission.
Derning is 	also 	credited that Fernandez 	and Schliekelman, 	at the
meeting, 	insisted on negotiating the 	entire Nash 	study. 	That
position 	is 	also 	consistent with 	Fernandez's 	and 	Schliekelman's
prior 	statements.
THE 	ISSUES
1. 	Did the District violate section 3543.5(a), 	(b) 	or 	(c) 	by
unilaterally 	implementing 	the 	changes 	in 	job 	descriptions?
2. 	Did the District violate section 3543.5(a), 	(b) 	or 	(c) 	by
implementing 	the 	changed 	or 	new 	salary 	schedules?
3. 	Did the District violate section 3543.5(a), 	(b) 	or 	(c) 	by
refusing 	to 	furnish 	the Association with 	requested 	information?
ANALYSIS AND CONCLUSIONS 	OF 	LAW
The 	Changes 	in Job Descriptions
The subject of 	job duties, 	unless waived, 	is normally
considered within the 	scope 	of representation. 	Jefferson 	School
12

District 	(1980) 	PERB Decision No. 	133. 	Changes in job duties,
however, 	are 	only negotiable 	if they are unrelated to the
existing 	job duties. 	Rio Hondo Community College 	District 	(1982)
PERB Decision No. 	279 at pages 	16-19; 	cf. 	Mt. 	San Antonio
Community College District 	(1983) 	PERB Decision No. 	297.
Similarly, 	while 	job descriptions and job titles, 	absent a
waiver, 	are generally negotiable, 	changes 	in job descriptions or
titles which do not represent material 	changes 	in the 	actual 	job
duties 	performed by 	employees 	in 	those 	job 	classifications 	do 	not
constitute 	unfair practices. 	Alum Rock Union Elementary 	School
District 	(1983) 	PERB Decision No. 	322, 	at pages 21-22; 	State of
California 	(Department of Developmental 	Services) 	(1985) 	PERB
Decision No. 	484-S;
cf. 	Mt. 	San Antonio Community College District 	(1983) 	PERB
Decision No. 	334.
The evidence 	in this 	case 	shows 	that 	the 	changes 	in 	job
descriptions 	reflected 	changes 	in 	job duties 	which had 	accrued
over 	a 	period of 	several 	years, 	and which had not previously been
objected to by the Association. 	The 	evidence 	concerning the
purported charges 	in SECA 	job duties was 	inconclusive, 	and
further 	failed to 	establish 	that 	said 	changes 	affected 	anyone
other than the one SECA who testified. 	In addition, 	the
purported changes 	appear to have arisen out of the SECAs' 	pre-
existing duties, 	as was 	the 	case 	in Rio 	Hondo Community College
District, 	supra. 	Therefore, 	it is concluded that the District's
adoption 	of 	the 	job description 	changes 	did not materially 	change
13

any term or 	condition of 	employment, 	and that 	the 	District 	did
not 	thereby violate 	the 	EERA.8
The 	Refusal 	to Negotiate 	the 	Nash 	Study
The 	credited evidence 	establishes 	that while 	Derning,
perhaps 	inappropriately, 	began the March 	19 meeting by 	stating
that he was not in attendance to negotiate, 	the District, 	through
its 	letter 	of 	February 	17 	and by virtue 	of 	Derning's 	subsequent
statements 	on March 	19, 	clearly evinced a willingness 	to
negotiate 	the wages 	of 	those 	job 	classifications which were
reclassified and the new classification. 	The Association, 	while
choosing not to pursue this 	offer, 	never consented to the
implementation of the 	changes 	in 	salary ranges, 	or any other
portion of 	the Commission's 	recommendations. 	Schliekelman's
February 	12 	letter 	to Oetken and the verbal 	statements 	by both
Schliekelman 	and 	Fernandez 	made 	it 	clear 	that no 	such 	consent was
given, 	at least pending negotiations.
Several 	sections 	of 	the 	Education Code 	are 	relevant herein.
These include:
Section 45256. 	Establishment of classified
service; 	Exemptions
(a) 	The 	commission 	shall 	classify all
employees 	and positions 	within 	the
jurisdiction of 	the 	governing board or 	of 	the
commission, 	except those which are exempt
from the 	classified 	service, 	as 	specified in
B' ased	Based 	on the 	foregoing, 	it is unnecessary to consider
whether the management rights 	clause, 	contained in the Agreement,
constituted 	a waiver 	of 	bargaining rights 	on this 	subject 	by 	the
Association, 	as 	Derning apparently contends. 	It is noted that
the 	District did not raise 	the 	issue 	of waiver as 	a defense 	to
this 	allegation.
1 4. .7.. 	. .'.
14

subdivision 	(b). 	The employees and positions
shall 	be 	known as 	the 	classified 	service.
"To classify" 	shall 	include, 	but not be
limited to, 	allocating positions 	to
appropriate 	classes, 	arranging classes 	into
occupational hierarchies, 	determining
reasonable 	relationships 	within 	occupational
hierarchies, 	and preparing written class
specifications.
Section 45261. 	Subjects of rules
(a) 	The rules 	shall provide 	for the
procedures 	to 	be 	followed by 	the 	governing
board 	as 	they pertain 	to 	the 	classified
service regarding applications, 	examinations,
eligibility, appointments, promotions,
demotions, transfers, dismissals,
resignations, layoffs, reemployment,
vacations, 	leaves of absence, 	compensation
within classification, 	job analyses 	and
specifications, 	performance evaluations,
public 	advertisement 	of 	examinations,
rejection 	of 	unfit 	applicants 	without
competition, 	and any other matters 	necessary
to 	carry out 	the 	provisions 	and purposes 	of
this article.
(b) 	With respect to those matters 	set 	forth
in 	subdivision 	(a) 	which are 	a 	subject of
negotiation under 	the 	provisions 	of 	Section
3543.2 	of the Government Code, 	such rules 	as
apply 	to 	each bargaining unit 	shall 	be 	in
accordance with the negotiated agreement, 	if
any, 	between the exclusive representative 	for
that unit 	and the 	public 	school 	employer.
Section 45268. 	Salary schedule 	for the
classified 	service
The 	commission 	shall 	recommend to the
governing 	board 	salary 	schedules 	for 	the
classified 	service. 	The 	governing board may
approve, 	amend, 	or reject these
recommendations. 	No 	amendment 	shall be
adopted until 	the 	commission 	is 	first given a
reasonable 	opportunity 	to make 	a written
statement 	of 	the 	effect 	the 	amendments 	will
have 	upon 	the principle 	of 	like 	pay 	for 	like
service. 	No 	changes 	shall 	operate to disturb
the 	relationship which 	compensation 	schedules
bear to one another, 	as 	the relationship has
15

been 	established 	in 	the 	classification made
by the 	commission.
In Sonoma County Board of Education v. 	PERB 	(1980) 	102
Cal.App.3d 	689, 	the 	Court of Appeal 	found that pursuant to
Education Code 	section 	45268, 	the 	implementation of personnel
commission recommendations 	concerning wage 	ranges 	are 	not
mandated by 	virtue 	of 	the 	commission's 	classification 	authority
under 	Education Code 	section 	45256, 	with the 	exception that
relationships 	between 	salaries 	in 	the 	same 	occupational 	group
established by 	the personnel 	commission must remain the 	same.
Having reached 	this 	conclusion, 	the 	Court 	further 	concluded 	that
salaries 	in a merit 	system district, 	within those parameters, 	are
negotiable.
The 	District 	argues 	that by amending 	Education Code 	section
45256 	in 	1981, 	after the Sonoma decision issued, 	to include a
definition of the term, 	"to classify," 	the legislature intended
to overrule 	the 	court's 	finding that wage ranges, 	subject 	to the
stated 	limitation, 	are 	negotiable 	in districts 	operating under
merit 	systems. 	The PERB, 	in 	1982, 	issued its decision in San
Lorenzo Unified School 	District 	(1982) 	PERB Decision No. 	274,
specifically continuing to uphold 	the rationale 	of 	Sonoma. 	Since
the 	PERB 	did not 	specifically 	address 	the 	District's 	arguments
concerning the 	1981 	amendment to Education Code 	section 	45256 	in
San Lorenzo, 	a brief response is 	appropriate. 	Education Code
section 45256, 	as amended, 	nowhere refers to wages or wage
ranges, 	and in itself, 	does not in any manner remove wage-related
16

issues 	from 	collective bargaining. 	Education Code 	section 	45268,
on the 	other hand, 	specifically addresses 	the 	authority of
personnel 	commissions with respect 	to 	salary 	schedules. 	This
authority is, 	by the explicit terms 	of that provision, 	strictly
advisory and 	the 	governing board 	is 	not 	obligated 	to 	accept 	such
recommendations. 	Education Code 	section 45268 	also does not
limit the 	authority of 	governing boards 	to approve, 	amend or
reject 	personnel 	commission 	salary 	schedules 	to 	initial 	or 	unit-
wide 	schedules. 	Rather, 	by its terms, 	this 	section permits the
governing boards 	to act 	in this 	area at any time, 	so 	long as 	the
relationships 	within 	occupational 	groups 	established 	by 	the
commission are not disturbed. 	Accordingly, 	since 	the 	subject of
salary 	schedules 	is 	governed by Education Code 	section 	45268, 	and
not by 	section 45256, 	the District's argument of non-
negotiability 	is 	rejected.9
The 	San Lorenzo decision is 	factually parallel 	to 	a portion
of this 	case, 	and is controlling. 	In that case, 	a merit 	system
district 	created a new position, 	which was 	then 	classified and
assigned 	to 	an 	existing wage 	range 	by 	the 	personnel 	commission.
The 	union 	in 	that 	case 	contended 	that 	the 	district 	had refused 	to
bargain 	concerning 	the 	salary range 	for 	that position, 	while 	the
district, 	as one of its defenses, 	denied that it had the
authority 	to 	negotiate wage 	ranges 	established by 	the 	personnel
commission. 	The PERB, 	citing Sonoma, 	rejected the negotiability
9It 	is noted that the Commission's rules 	and regulations
recognize 	this 	distinction.
17

defense, 	but found, 	on the 	facts presented, 	that the union had
been 	afforded the 	opportunity 	to 	negotiate 	the 	salary 	for 	the 	new
position, 	and dismissed the 	complaint on that basis.
It has 	been 	found herein that the 	District did, 	in 	fact,
offer 	to 	negotiate 	the wages 	of 	the 	three 	reclassified positions
and 	for 	the 	new position, 	and that 	the Association declined 	to
engage 	in bargaining after March 	19. 	Therefore, 	with respect to
the newly-created position, 	it is 	concluded that the 	District
complied with 	its 	obligations 	under 	section 	3543.2 	and did 	not
violate 	the 	EERA.
The changes in the other salary ranges, 	however, 	present a
different issue, 	because 	those positions were 	already assigned
wage ranges under the parties' 	collective bargaining agreement.
Neither 	Sonoma, 	which dealt with an 	initial 	collective 	bargaining
agreement,10 nor San Lorenzo, 	which involved the negotiability of
wage 	ranges 	for newly-created positions, 	decided the
negotiability 	of 	personnel 	commission recommendations 	which would
affect wage 	rates 	contained 	in 	a 	collective 	bargaining 	agreement.
It 	is 	an unfair practice 	for an employer to 	alter 	the 	clear
terms 	of 	a 	collective bargaining agreement without 	the 	consent 	of
the 	exclusive 	collective 	bargaining representative. 	Grant 	Joint
Union High School District 	(1982) 	PERB Decision No. 	196; 	South
San Francisco Unified School 	District 	(1983) 	PERB Decision No.
10See 	Sonoma County Office 	of 	Education 	(1977) 	EERB Decision
No. 	40, 	at ALJ Decision, 	slip. 	op. 	1-2. 	(The PERB was formerly
called the Educational Employment Relations Board, 	EERB).
18

343; 	Palo Verde Unified School District 	(1983) 	PERB
Decision No. 	354. 	It is 	clear that the Association did not
consent to the 	changes 	in wage 	classifications. 	The 	fact that
the 	Association may have 	offered 	to 	consider 	the 	wage
classification 	changes 	in negotiations 	does not mean that 	it
relinquished 	its 	right 	to ultimately 	stand on 	the 	contract,
absent its 	consent to the changes. 	See 	Inland Cities, 	Inc.
(1979) 	241 	NLRB 374 	[101 	LRRM 1031]; 	Connecticut Light and Power
Company, 	et al. 	(1984) 	271 NLRB 766 	[116 LRRM 1475].
Furthermore, 	even if the District is 	correct when it asserts 	that
the Association did not really 	oppose 	the 	changes 	in 	salary
schedules, 	but was 	seeking to obtain other contractual 	changes,
the Association's 	motives 	for 	refusing 	to 	relinquish 	its
contractual 	rights 	are 	irrelevant to the 	issues presented. 	It 	is
also 	concluded 	that 	the Association did not waive 	its 	contractual
rights 	by delaying its 	protest to the District, 	since 	it had no
way 	of 	reasonably knowing when 	the 	changes 	in 	salary ranges 	would
be 	implemented, 	and cannot be 	required to have 	issued 	a protest
only 	one 	day 	after 	the 	Commission 	issued 	its 	recommendations.
EERA section 3 540 provides, 	in pertinent part:
Nothing 	contained herein 	shall 	be 	deemed 	to
supersede 	other provisions 	of 	the Education
Code 	and 	the rules 	and regulations 	of public
school 	employers 	which 	establish 	and regulate
tenure 	or 	a merit 	or 	civil 	service 	system or
which provide 	for other methods 	of
administering employer-employee relations, 	so
long as 	the rules 	and regulations 	or 	other
methods 	of 	the 	public 	school 	employer do not
conflict with 	lawful collective agreements.
19

The 	PERB has 	construed 	this 	portion of 	section 	3540 	to 	limit 	the
negotiability of 	subjects 	only where 	there 	is 	no direct 	conflict
with the Education Code. 	Jefferson School 	District 	(1980) 	PERB
Decision No 	133; 	Healdsburg Union High School 	District 	(1980)
PERB Decision No. 	132.
It 	is 	concluded that 	the 	Education Code does 	not 	conflict
with 	the 	negotiability 	of wage 	ranges 	and 	the 	enforcement 	of
negotiated 	salary schedules under the EERA, 	but may, 	in 	fact,
reinforce 	those 	obligations. 	Education Code 	section 	45261 	states
that personnel 	commission rules 	concerning, 	inter alia,
"compensation within classification" 	shall 	be 	applied in
accordance with the 	negotiated 	agreement 	between 	the 	parties.
This provision, 	arguably, 	could prohibit the 	application of
personnel 	commission reclassification 	decisions 	which 	change
negotiated wage rates, 	absent the 	consent of 	the 	exclusive
representative, 	during the life of the agreement. 	Such an
interpretation 	is 	bolstered by EERA 	section 	3540, 	which appears
to 	prohibit merit 	or 	civil 	service 	systems 	from enacting rules 	or
regulations 	conflicting with 	lawful 	collective 	bargaining
agreements. 	Nevertheless, 	even if the term 	"compensation within
classification" 	is distinguishable 	from a reclassification, 	there
remains 	no provision in 	the 	Education Code 	that directly
conflicts with the 	District's 	obligation to negotiate wages.
Based on the 	foregoing, 	it is 	concluded that, 	absent the
Association's 	consent, 	the 	District was 	prohibited 	from
implementing 	changes 	in 	salary ranges 	covered by 	the Agreement,
20

during its 	term. 	By doing 	so, 	the 	District violated 	section
3543.5(a),11 (b) 	and 	(c) 	of the EERA.
The 	Request 	for 	the 	Nash 	Study 	Results
The Association's 	written 	information request 	of 	February 	2
was 	directed to the Commission, 	and not 	to the 	District. 	Even if
a 	verbal 	information request was 	made 	by 	the 	Association 	on
January 20 	or 	22, 	it was 	also addressed to the Commission. 	The
fact that Damschen was present at the Commission meetings, 	in his
capacity as 	the Commission's 	Director, 	does not alter the 	clear
understanding 	by 	both 	the 	Association 	and 	the 	Commission 	that 	the
request was 	being directed to 	the 	Commission, 	and not 	to 	the
District.
Although 	Damschen 	and 	Hillix 	perform 	functions 	for 	both 	the
Commission and the 	District, 	it 	is 	concluded that there 	is
insufficient 	evidence 	to establish 	that 	the Commission 	is 	a 	joint
employer with, 	or an agent of, 	the District. 	Even if the
Personnel 	Commission violated 	its 	own rules 	by 	its 	delay 	in
furnishing 	the Association with 	a 	copy 	of 	the 	preliminary 	or
11It is 	clear that the Nash 	study, 	as 	slightly modified, 	was
widely 	disseminated 	to 	the 	bargaining 	unit 	employees 	at 	meetings
conducted by both 	the 	Commission 	and 	the Association, 	including
the 	changes 	in wage ranges 	for existing 	job classifications. 	It
is 	reasonable 	to assume 	that 	such 	conduct, 	repudiating 	important
portions of the parties' 	collective bargaining agreement, 	would
have 	the 	tendency to 	cause 	employees 	to 	lose 	confidence 	in 	their
representative's 	ability to protect their wages, 	hours 	and other
enumerated conditions of employment, 	and as 	such, 	the District's
conduct 	interfered with 	exercise 	of 	the 	protected 	employee
rights. 	San Francisco Community College District 	(1988) 	PERB
Decision No. 	703; 	San Francisco Community College 	District 	(1979)
PERB Decision No. 	105; 	cf. 	Tahoe-Truckee Unified School 	District
(1988) 	PERB Decision No. 	668.
21

final Nash 	study, 	it did not thereby violate 	the 	EERA, 	because 	it
is not the employer of the 	classified employees, 	and is not
obligated under 	the 	EERA to 	furnish 	information 	to 	the
Association. 	Accordingly, 	this allegation is dismissed.
1 ?
THE 	REMEDY
Where 	an employer unilaterally 	changes 	terms 	and 	conditions
of employment, 	the 	PERB typically orders 	the 	employer to 	cease
and desist 	from its 	unlawful 	action, 	to restore 	the 	status 	quo
ante, 	to 	comply with its 	bargaining obligations with the
exclusive 	representative 	and to make 	employees whole 	for 	any
damage 	they 	suffered as 	a result of 	the 	unlawful 	unilateral
change. 	Rio Hondo Community College 	District 	(1983) 	PERB
Decision No. 	292. 	A cease 	and desist order is 	appropriate
herein. 	With respect to the 	employees who received wage
increases, 	it is 	inappropriate 	to require 	them to refund the
additional wages 	they received as 	the 	result of 	the 	District's
unfair practices. 	Clovis Unified School 	District 	(1984) 	PERB
Decision No. 	389. 	While the record establishes 	that the position
which was 	downgraded by 	the 	District was 	vacant 	at 	the 	time 	it
12Assuming 	the 	Commission did 	have 	a 	duty to 	furnish
information under the EERA, 	or that the Association's 	request
constituted 	a demand 	for 	information 	from the 	District, 	it would
be 	concluded that under the 	circumstances, 	the delay was 	not
unreasonable. 	The Association's 	request 	clearly 	asked 	for 	a
response 	from the Commission. 	It was 	not unreasonable 	for the
Chairman, 	upon receipt of the February 2 	letter, 	to consult with
the 	other members 	of the Commission at 	its next regularly
scheduled meeting on February 	2 6 	before releasing the 	study. 	It
was 	also not unreasonable 	for 	the 	Commission to assume 	that 	the
Association 	sought a 	copy of 	the 	final 	report, 	rather than the
preliminary 	report.
-Biz . . .. . . ..
22

was 	downgraded, 	it is 	unclear whether the position continued to
be vacant until 	the 	current agreement became 	effective. 	The
current agreement, 	however, 	assigns the 	same wage classification
to 	that position as was 	implemented by the 	District.
Accordingly, 	no back pay order 	shall 	issue.
The 	PERB has 	consistently declined to order 	a return to 	the
status 	quo where 	the parties 	have negotiated a new agreement
covering the 	subjects 	of the unilateral 	change. 	Delano Union
Elementary School District 	(1982) 	PERB Decision No. 	213a; 	Rio
Hondo Community College 	District 	(1983) 	PERB 	Decision
No. 	279a; 	Fountain Valley Elementary School District 	(1987) 	PERB
Decision No. 	625. 	Since the parties, 	subsequent to the
unilateral 	change, 	renegotiated the wage 	classifications, 	no
restoration of 	the 	status quo ante will 	be ordered.
It 	is 	appropriate 	that 	the 	District be required to post 	a
notice 	incorporating the 	terms 	of 	this 	order. 	The 	notice 	should
be 	subscribed by 	an authorized 	agent 	of 	the 	District 	indicating
that 	it will 	comply with the 	terms 	thereof. 	The notice 	shall 	not
be reduced 	in 	size. 	Posting 	such a notice will 	provide 	employees
with notice 	that the District has 	acted 	in an unlawful 	manner 	and
is 	being required 	to 	cease 	and desist 	from this 	activity. 	It
effectuates 	the 	purposes 	of 	the 	EERA that 	employees 	be 	informed
of 	the resolution of 	the 	controversy and, 	the posting will
announce 	the 	District's 	readiness 	to 	comply with 	the 	ordered
remedy. 	See Placerville 	Union School 	District 	(1978) 	PERB
Decision No. 	69. 	In Pandol and Sons v. 	Agricultural Labor
23

Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District Court of Appeal 	approved a 	similar
posting requirement. 	See also NLRB v. 	Express 	Publishing Co.
(1941) 	312 U.S. 	426 	[8 LRRM 415].
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and the 	entire 	record in this 	case, 	and pursuant 	to 	EERA 	section
3541.5(c), 	it is hereby ORDERED that the Cajon Valley Union
School 	District, 	its governing board and its 	representatives:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the 	exercise 	of rights 	guaranteed
under 	the 	Educational 	Employment 	Relations Act by the 	District's
employees 	in the 	classified bargaining unit, 	by unilaterally
changing those employees' 	salary ranges during the 	term of
collective 	bargaining 	agreements 	negotiated with 	California
School 	Employees Association, 	and its Chapter #179 	(hereinafter
Association), without the Association's consent.
2. 	Denying the Association rights 	guaranteed to 	it by the
Educational 	Employment 	Relations 	Act 	by unilaterally 	changing 	the
salary ranges 	of 	employees 	in 	the 	classified bargaining unit
during 	the 	term 	of 	collective 	bargaining 	agreements 	between 	the
District and the Association, 	without the Association's 	consent.
3. 	Failing and refusing to meet 	and negotiate 	in good
faith with 	the 	Association by 	unilaterally 	changing 	the 	salary
ranges 	of 	employees 	in 	the 	classified bargaining unit during 	the
24

term of 	collective 	bargaining agreements 	between 	the 	District 	and
the Association, 	without the Association's 	consent.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Within ten 	(10) 	workdays 	from 	service of the 	final
decision in this matter, 	post at all 	school 	sites 	and all 	other
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 	District. 	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.
2. 	Upon issuance 	of this 	Decision, 	written notification of
the 	actions 	taken to 	comply with this 	Order 	shall 	be made 	to 	the
Los Angeles 	Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board in accordance with his 	instructions.
IT 	IS 	FURTHER ORDERED that 	all 	other allegations 	in the
Charge 	and Complaint 	are 	hereby 	DISMISSED.
Pursuant to California Administrative Code, 	title 	8, 	part
III, 	section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final unless 	a party files 	a 	statement of exceptions with the
Board itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service 	of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon 	for 	such exceptions. 	See 	California Administrative
25

Code, 	title 8, 	part III, 	section 32300. 	A document is considered
"filed" 	when actually received before 	the 	close 	of 	business
(5:00 p.m.) 	on the last day set for filing, 	". 	. 	. o r when sent
by telegraph 	or 	certified 	or 	Express 	United States 	Mail,
postmarked 	not 	later 	than 	the 	last 	day 	set 	for 	filing 	. . . " 	See
California Administrative Code, 	title 8, 	part III, 	section 32135.
Code 	of Civil 	Procedure 	section 	1013 	shall 	apply. 	Any 	statement
of 	exceptions 	and 	supporting brief must 	be 	served 	concurrently
with 	its 	filing upon each party 	to 	this 	proceeding. 	Proof 	of
service 	shall 	accompany each 	copy 	served 	on a party or 	filed with
the 	Board itself. 	See California Administrative 	Code, 	title 	8,
part III, 	sections 32300, 	32305 and 32140.
Dated: 	December 20, 	1988
Douglas 	Gallop
Administrative 	Law 	Judge
26