Compton Unified School District (PERB 0784E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER #30
Charging 	Party,
v.
COMPTON UNIFIED SCHOOL 	DISTRICT
Respondent.
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)
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) 	Case No. 	LA-CE-2817
PERB 	Decision No. 	784
December 	29, 	1989
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Appearances: 	Janet I. 	White, 	Field Representative, 	for
California 	School 	Employees Association and 	its 	Chapter 	#30;
Jones & Matson, 	by Martine Magana, 	Attorney, 	for Compton Unified
School 	District.
Before Hesse, 	Chairperson; 	Shank and Camilli, 	Members.
DECISION
SHANK, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Compton Community College 	District 	(District) 	to the 	attached
proposed decision of 	a PERB administrative 	law judge 	(ALJ). 	The
case 	arose out 	of 	an unfair practice 	charge 	filed by the
California 	School 	Employees 	Association and 	its 	Chapter 	#30
(CSEA) 	against the District, 	alleging that the District violated
section 3543.5(a), 	(b), 	and (c) 	of the Educational Employment
Relations Act 	(EERA or Act).1 The 	3543.5(a) 	allegation was
1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	(a), 	(b) 	and 	(c) 	states:
It 	shall be unlawful 	for a public 	school
employer to:
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withdrawn by CSEA and PERB 	sent 	the parties 	a 	notice 	of partial
withdrawal. 	A 	complaint was 	issued by 	PERB which 	alleged 	that
the 	District violated section 	3543.5(b) 	and 	(c) 	of 	the Act by
altering 	the 	customary 	overtime practices 	for bus 	and 	truck
drivers 	transporting 	regional 	occupation 	students 	to 	and 	from
employment 	at Universal 	Studios, 	without 	affording CSEA notice
and 	opportunity 	to 	negotiate.
Prior to July 7, 	1988, 	overtime assignments began at the
origin of 	a 	driving 	assignment 	and 	continued until 	the 	students
were 	returned 	to 	their 	initial 	pick-up point 	and 	the 	bus 	was
cleaned and 	secured. 	On or about July 	7, 	1988, 	overtime was
reduced. 	Specifically, 	drivers would only be 	credited with a
maximum of 	three 	overtime 	hours 	for weekday 	trips 	and 	six
overtime 	hours 	for trips 	occurring on weekends 	and holidays. 	The
assignments 	on Monday through Friday began at 	the 	actual 	time 	the
students were picked up, 	and began again at the time the driver
had to retrieve the 	students. 	On Saturday, 	Sunday and holidays,
overtime 	began when the 	bus 	was 	picked up 	and 	ceased when the
(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.
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students 	were dropped off 	and 	the 	bus was 	returned to 	the
District's 	transportation department. 	The overtime 	assignment
began again only when it was 	time to pick up the 	students. 	For
each 	assignment, 	the driver 	lost 	approximately 	four overtime
hours 	on weekday assignments, 	and 	lost 	seven overtime hours 	on
Saturday, 	Sunday and holiday assignments.
After a 	hearing on the matter, 	the ALJ 	concluded that 	the
District violated EERA section 3543.5(b) 	and 	(c) 	when it 	changed
its 	overtime policy without 	negotiating with CSEA.
We have reviewed the 	entire record 	in this 	case, 	and 	finding
the ALJ's 	findings 	of 	fact and conclusions 	of 	law to be 	free 	of
prejudicial 	error, 	we adopt the ALJ's proposed decision as 	the
decision of 	the 	Board 	itself. 	The 	District's 	exceptions 	will 	be
addressed 	in the 	following discussion.2
DISCUSSION
The 	District 	filed three 	exceptions 	to 	the ALJ's 	proposed
decision. 	CSEA responded 	to 	the District's 	exceptions 	but did
not 	file 	exceptions 	to the proposed decision.
The 	District 	excepted to 	the ALJ's 	finding 	that 	it 	is 	not
authorized by 	the 	express 	terms 	of 	the 	collective 	bargaining
agreement between the parties 	to: 	(1) 	determine the period and
amount of overtime; 	and 	(2) 	authorize and order overtime
assignments 	for unit members.
2The 	Board notes 	that the 	District's 	exceptions 	are
identical 	to 	the 	arguments 	raised 	in its 	post-hearing brief.
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The ALJ correctly determined that, 	while 	the broad 	subject
of 	overtime was 	addressed 	in the 	collective 	bargaining 	agreement,
the 	specific 	overtime 	compensation practice 	involved 	in the
instant 	case was 	not 	covered. 	We 	find that 	the 	contract 	language
regarding overtime 	is 	too 	general 	and 	imprecise 	to 	grant 	the
District 	the 	discretion to 	authorize 	and 	order 	overtime 	for 	bus
drivers 	based on District program needs. 	Furthermore, 	the
District 	produced 	no 	evidence 	of 	bargaining 	history 	from which
one 	could 	reasonably 	interpret 	the 	contractual 	provisions 	as 	a
waiver of 	CSEA's 	right 	to 	notice 	and bargain over the 	changes 	in
overtime pay. 	Therefore, 	we 	find no merit in the District's
exception.
Secondly, 	the District 	excepted on the grounds 	that PERB has
no 	jurisdiction 	since the matter 	is 	covered by 	the 	collective
bargaining 	agreement 	and 	CSEA has 	not 	exhausted 	the 	contractual
grievance 	machinery. 	(Lake 	Elsinore 	Unified School 	District
(1987) 	PERB Decision No. 	646.)
Since we 	find 	that 	the 	overtime 	compensation practice 	is
based 	on 	longstanding practice 	and 	is 	not 	covered by 	the
collective bargaining agreement, 	the ALJ 	correctly 	found that
CSEA could not 	exhaust the 	grievance machinery.
Finally, 	the District excepted to the ALJ's 	rejection of 	its
contention that 	the 	District was 	required by operational
necessity to 	reduce 	overtime 	to 	allow students 	to 	complete 	the
work/study program at 	Universal 	Studios.
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An 	employer may 	not 	take 	unilateral 	action on negotiable
subjects, 	even if 	faced with an actual 	economic 	collapse of
unknown proportions. 	It must bring 	its 	concerns 	to 	the
bargaining table. 	(San Francisco Community College 	District
(1979) 	PERB Decision No. 	105.) 	PERB has held that the diminution
of 	overtime opportunity constitutes 	a 	change 	in wages, 	an
enumerated 	scope item, 	and 	is 	subject to negotiations. 	(Calexico
Unified School District 	(1989) 	PERB Decision No. 	754; 	State of
California 	(Dept, 	of Transportation) 	(1983) 	PERB Decision No.
333-S.) 	The 	evidence 	shows 	that participation 	in the 	Universal
Studios 	work/study program was 	voluntary, 	the program did 	not
require 	mandatory transportation, 	and 	lack of participation would
not 	have 	affected 	the 	remainder of 	the 	District's 	program.
Further, 	the District did not prove that 	it was 	faced with a
genuine 	financial crisis. 	Accordingly, 	we 	find the ALJ was
correct 	in rejecting 	the 	District's 	operational 	necessity
defense.
ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the 	entire record in this 	case, 	we 	find that the Compton
Community College District violated 	section 	3543.5(b) 	and 	(c) 	of
the 	Educational 	Employment 	Relations Act.
It 	is hereby ORDERED that the District, 	its 	governing board
and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
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1. 	Changing, 	without notice to and negotiations with
CSEA, 	the overtime 	compensation practices 	in effect 	in the
transportation department 	immediately before July 	6, 	1988.
2. 	Interfering with CSEA's 	right to represent unit
members 	in their 	employment relations with the 	District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Restore the transportation department's 	overtime
compensation procedure 	in effect 	immediately before July 	6, 	1988.
2. 	Make whole 	each unit member who 	suffered 	economic
harm 	from the 	change 	in overtime 	compensation as 	to 	Universal
Studio 	assignments. 	Drivers who performed Universal 	Studios
assignments 	after the 	change will 	receive 	the 	difference 	between
the 	amount 	they were 	actually paid 	and the 	amount 	they would 	have
received under the 	old procedure. 	Compensation 	shall 	include 	an
additional 	sum of 	interest at ten 	(10) 	percent per annum. 	For
drivers who declined 	such assignments 	after the change, 	the
District 	shall deduct the 	number of 	hours 	they were 	credited 	on
the 	overtime 	assignment 	list. 	Their names will 	be placed 	at 	the
top 	of 	the 	list 	for 	future overtime until 	the 	number of hours
worked 	equals 	the 	number 	they were 	credited 	for declining 	the
assignments.
3. 	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
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hereto 	as 	an Appendix. 	The Notice must be 	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 	ensure that the Notice 	is 	not
reduced 	in 	size, 	altered, 	defaced or covered by any other
material.
4. 	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.
Chairperson Hesse 	and Member Camilli 	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. 	LA-CE-2817,
California 	School 	Employees Association and 	its 	Chapter 	#30 	v.
Compton Unified School 	District, 	in which all parties 	had the
right to participate, 	it has been found that the Compton Unified
School District violated 	section 3543.5(b) 	and 	(c) 	of the
Educational 	Employment 	Relations 	Act 	by 	failing and 	refusing 	to
meet 	and 	negotiate 	in good 	faith with 	the 	California 	School
Employees Association and its 	Chapter #30 	(CSEA) 	by changing the
overtime 	pay practices 	for bus 	drivers 	without 	giving CSEA notice
and 	an opportunity 	to bargain 	over 	the 	subject.
As 	a 	result of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Changing, 	without notice to and negotiations with
CSEA, 	the overtime 	compensation practices 	in effect 	in the
transportation department 	immediately before July 	6, 	1988.
2. 	Interfering with CSEA's 	right to represent unit
members 	in their 	employment relations with the 	District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Restore the transportation department's 	overtime
compensation procedure 	in effect 	immediately before July 	6, 	1988.
2. 	Make whole 	each unit member who 	suffered 	economic
harm 	from the 	change 	in overtime 	compensation as 	to 	Universal
Studios 	assignments. 	Drivers who performed Universal 	Studio
assignments 	after 	the 	change will 	receive 	the difference 	between
the 	amount 	they were 	actually paid 	and the 	amount 	they would have
received under the 	old procedure. 	Compensation 	shall 	include 	an
additional 	sum of 	interest at ten 	(10) 	percent per annum. 	For
drivers who declined 	such assignments 	after the change, 	the
District 	shall 	deduct the number of 	hours 	they were 	credited on
the 	overtime assignment 	list. 	Their names will be placed 	at 	the
top 	of 	the 	list 	for 	future 	overtime until 	the number 	of 	hours
worked 	equals 	the 	number 	they were 	credited 	for declining 	the
assignments.
DATED: 	COMPTON 	UNIFIED 	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.
I)

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND ITS 	CHAPTER #30,
Charging 	Party,
v.
COMPTON UNIFIED SCHOOL 	DISTRICT,
Respondent.
)
)
)
) 	Unfair Practice
Case No. 	LA-CE-2817	)
)
) 	PROPOSED DECISION
) 	(9/14/89)
)
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Appearances: 	Janet I. 	White, 	Field Representative, 	for
California 	School 	Employees Association and 	its 	Compton Chapter
#30; 	Jones & Matson, 	by Martine Magana, 	Attorney for Compton
Unified 	School 	District.
Before Manuel M. 	Melgoza, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On December 21, 	1988, 	the California School Employees
Association and its Chapter #30 	(CSEA, 	Charging Party or Union),
filed 	the 	above-referenced 	unfair practice 	charge with 	the 	Public
Employment Relations 	Board 	(PERB or Board). 	As 	amended on
January 4, 	1989, 	the charge alleged that the Compton Unified
School District 	(Respondent, 	District or Employer) 	violated the
Educational 	Employment Relations Act 	(EERA or Act) 	when it
altered 	a 	settled practice 	of 	assigning and paying 	for 	overtime
bus-driving, 	thereby reducing the number of 	compensable overtime
hours.1 Although 	the 	amended 	charge 	alleged violations 	of
1The EERA is 	codified at Government Code 	section 3 540
et.seq. 	The pertinent provisions 	of 	section 3543.5 	state:
It 	shall be unlawful 	for a public 	school 	employer
to:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
)

subsections 	(a), 	(b) and (c) of EERA section 3543.5, the "(a)"
allegation was withdrawn by CSEA on February 23, 	1989. 	The 	PERB
sent 	the parties 	a 	notice of 	the partial withdrawal 	on February
27, 1989.
The PERB's 	General 	Counsel's 	office 	also 	issued a 	Complaint
on February 27, 	1989. 	The Complaint alleged that the District
violated EERA 	sections 	3543.5(c) 	and 	(b) 	by altering the
customary 	overtime 	practices 	without 	affording 	the 	Union 	notice
and 	an opportunity 	to negotiate 	the 	change 	and/or 	the 	effects 	of
the change. 	In its Answer, 	filed on March 22, 	1989, 	the
Respondent 	denied 	having 	violated 	the Act 	and 	asserted 	various
affirmative defenses.
On March 28, 	1989, 	a PERB administrative 	law judge conducted
a 	settlement 	conference 	involving the parties. 	The parties 	did
not resolve the dispute, 	however, 	and the case proceeded to
formal 	hearing.
(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.
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The 	Union 	and the 	District presented 	evidence 	at 	a 	hearing
conducted on May 31 	and June 	1, 	1989, 	before Administrative Law
Judge Barbara E. 	Miller. 	After the conclusion of the hearing,
the 	case was 	transferred 	for 	further processing 	to Administrative
Law Judge Manuel M. 	Melgoza on August 4, 	1989.
The parties 	filed opening post-hearing briefs 	on August 	15
and 	16, 	1989. 	The parties were given an opportunity to 	file
closing 	or 	responsive briefs, 	but only CSEA exercised this
option. 	When CSEA's 	closing brief was received, 	August 25, 	1989,
the 	case was 	submitted 	for 	issuance of 	a proposed decision.
FACTS
A. 	Background
CSEA 	exclusively represents 	a 	bargaining 	unit 	of 	classified
employees 	of the District. 	The District has historically
assigned bus 	and truck drivers, 	who make up a portion of 	that
unit, 	to transport pupils 	and 	staff to a variety of 	functions,
including field trips, 	athletic 	events, 	and various 	Regional
Occupational Programs 	(ROPs). 	The District's 	transportation
department, 	under Director Alfred Gibson, 	oversees 	the 	functions
performed by the bus 	and truck drivers.
B. 	The 	Past Practice
According to Gibson, 	whose testimony agreed with that of
senior drivers, 	the department's 	overtime pay procedure had been
applied 	consistently 	for over twenty years 	until 	the 	summer 	of
1988. 	Specifically, 	for all Saturday assignments, 	whether field
trips or ROP trips, 	the driver would go 	"on the clock" 	thirty
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minutes 	before he/she was 	to pick up the 	students 	from their
point of departure. 	During this half-hour, 	the driver went where
the vehicle was 	stored, 	performed a 	safety check on the bus, 	then
proceeded to the pick-up point. 	If the 	"pick-up time" 	happened
to be 	8:00 	a.m., 	the driver went 	"on the 	clock" 	at 	7:30 	a.m., 	for
compensation purposes. 	Upon delivering 	the 	students 	to 	their
destination, 	the driver ordinarily 	remained with the bus 	or would
join the 	students 	at their event, 	depending on various
circumstances.2 Whatever the driver chose to do, 	he/she remained
"on the 	clock" 	while he/she waited or 	joined the 	students.
After the 	event, 	the driver transported the 	students 	to 	the
point of 	original 	departure. 	He 	or 	she was 	credited with an
additional 	thirty minutes 	after dropping them off. 	During 	this
half-hour, 	the driver returned the bus 	to its 	storage area,
prepared it 	for the next day's use, 	and 	secured it. 	At the end
of the 	latter 	30-minute period, 	the driver went 	"off 	the 	clock."
Therefore, 	the driver stayed 	"on the clock" 	continuously and
earned overtime pay 	(at 	one 	and 	one-half 	times 	the 	regular 	rate)
beginning with 	the 	30-minute 	period before 	the pick-up 	time 	and
ending 	30 minutes 	after the drop-off time.
For overtime 	assignments 	occurring during weekdays 	(Monday 	-
Friday), 	the procedure varied slightly. 	Drivers' 	regular
workdays were from 7:00 	a.m. 	to 	4:00 p.m. 	If, 	for example, 	the
2The driver could 	join the 	students 	on field trips, 	for
example, 	or remain in the bus 	for other reasons. 	In some cases,
he/she was 	required to 	transport 	students 	back to 	school 	for
unanticipated reasons. 	In others, 	drivers 	retrieved equipment or
lunches 	inadvertently 	left behind by 	the 	students.
4

pick-up 	time 	for a trip was 	1:00 p.m., 	the driver delivered the
students 	to their destination, 	then returned to 	complete his/her
regular afternoon 	school runs. 	Afterward, 	he/she would go back
to retrieve 	the 	students 	and take 	them to 	the point 	of 	the
overtime trip's 	origin. 	If the trip's 	return time was 	5:30 p.m.,
the driver would not 	go 	"off 	the 	clock" 	at 	the 	end of his/her
regular shift 	(4:00 p.m.). 	Rather, 	he/she would stay 	"on the
clock" 	and begin earning overtime 	at 	4:01 	p.m. 	The driver would
stay 	"on the 	clock" 	for 	thirty minutes 	after the drop-off 	time 	to
store and 	secure the bus.3
Another aspect 	of 	the 	transportation department's 	procedures
dealt with the manner of 	assigning overtime 	trips 	to drivers.
This process was 	codified 	in the parties' 	1987-1990 	collective
bargaining agreement. 	Section E of Article 	IX 	(Work Periods 	and
Overtime) provided:
E. 	Equalization of 	Overtime 	for Bus 	and Truck Drivers
The purpose of this 	section is 	to equalize
the number of 	overtime hours 	for each driver.
This 	section 	shall 	apply to 	Bus 	and Truck
Driver[s] only:
1. 	The District 	shall 	establish an
overtime 	list 	containing 	the 	names
of 	all 	affected drivers 	and
indicating the total 	number of
overtime 	hours 	currently 	accrued by
each driver. 	. 	. 	.
2. 	Assignment of overtime 	shall be as 	follows:
(a) 	Overtime assignments 	for
any 	given day 	shall 	be
given to 	the driver on
3The 	same driver employed to pick-up 	the 	students 	for the
overtime 	trip was 	used to 	retrieve and return the 	students 	at the
conclusion of 	the 	function.
. . . . . ...". "."s
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the 	list who 	has 	the
least 	number of 	overtime
hours on the list. 	. 	. 	.
(b) 	Additional overtime
assignments 	shall 	be
given to 	other drivers 	in
ascending 	order.
(c) 	If more than one overtime
assignment 	is 	available
on the day of 	the 	trip,
the 	driver with the 	least
number 	of 	total 	overtime
hours 	assigned 	that 	day
shall 	be 	given the trip
with 	the 	longest 	duration
for that day.
3. 	Refusal 	of Overtime Assignment
(a) 	A driver who 	refuses 	an
overtime 	assignment 	shall
have the actual 	number of
hours 	worked 	on 	that 	trip
charged 	against 	him/her
and 	have 	those 	hours
added 	to 	his/her 	total
number 	of 	overtime hours
on the list. 	. 	. 	.
(b) 	Notwithstanding
subsection (a) 	above, 	a
driver who becomes 	ill 	or
refuses 	to 	implement 	or
complete 	their 	overtime
assignment will 	be
credited 	for 	each
overtime 	trip 	he/she
refuses 	or 	can 	not
implement. . . .
Before refusing an overtime assignment, 	therefore, 	a driver had
to 	consider 	this 	provision's 	impact 	in 	lowering his/her 	name 	on
the 	overtime 	assignment 	list 	as 	if 	the driver had 	completed 	the
task.
C. 	The 	Regional 	Occupational Programs
Just 	before 	the 	events 	giving 	rise 	to 	the unfair practice
allegations 	involved 	in this 	case, 	the District was 	one of 	some
22 	public 	school districts 	involved 	in a 	Regional 	Occupational
6

Program conducted through the County of 	Los Angeles. 	The
specific 	programs within the 	ROP are designed to 	equip 	students
to 	enter 	the work 	force 	rather 	than to prepare 	them 	for an
academic 	career. 	The County 	employed a 	liaison to work with
individual Districts. 	The 	liaison worked with Riley Johnson,
Jr., 	who, 	until October of 	1988, 	was the District's director of
vocational 	career and adult 	education. 	As of May 	1988, 	the
Compton 	Unified 	School 	District participated 	in about 	44
individual 	ROP programs within the County ROP. 	Some 	2200
District 	students were 	enrolled 	in the programs. 	Each of 	the
individual programs was 	funded 	separately on the basis 	of 	the
number of 	students 	enrolled 	in the particular program. 	The
source 	of 	the 	funds 	was 	average daily attendance 	("ADA") 	monies
received 	from the 	state.
The 	District 	used 	its 	transportation department's 	vehicles
and personnel 	for some ROPs. 	For example, 	students participated
in a 	ROP program 	involving travel 	to Rockwell Aerospace. 	Others
were 	involved 	in a Montgomery Ward ROP, 	and 	still 	others
travelled to Johnson's Market, 	beauty colleges, 	and neighboring
community colleges. 	The procedure governing drivers' 	pay was
uniform, 	disregarding whether the 	assignment was 	for a ROP 	or
some other trip.
On July 	1, 	1988, 	the District withdrew from the County's 	ROP
structure. 	It 	assumed direct 	responsibility 	for all 	the 	ROP
programs 	it had been participating in up until 	that time.
Compton became what 	Johnson described as 	"a 	single-district 	ROP."
7

1. 	The Universal 	Studios ROP
Before 	1988, 	the County allowed 	some districts 	to
participate 	in 	an 	individual 	ROP program 	involving 	Universal
Studios. 	Students 	enlisting 	in that program worked at different
jobs 	on the 	Universal Studios 	grounds. 	The 	students 	received a
wage, 	but neither the County nor the District received
compensation 	from Universal 	Studios 	itself. 	The purpose 	of 	the
Universal 	Studios 	ROP was 	to provide 	students with work
experience 	and compensation, 	although 	some preliminary
orientation 	classes 	on 	job 	interviewing 	skills were 	also 	given.
The 	students 	did 	not 	receive 	classroom credit 	for participating
in the program.
The 	County had 	not 	given the 	Compton Unified 	School 	District
the 	chance 	to participate 	in the 	Universal 	Studios 	ROP before
1988. 	However, 	the County apparently began to 	suspect that
Compton was 	seeking to pull 	out of 	its ROP program.
Allegedly 	as 	an 	inducement 	for Compton not 	to withdraw 	from
the 	County's 	ROP 	administration, 	the County offered the District
the 	opportunity to participate 	in the 	Universal 	Studios 	ROP
sometime 	in 	late April of 	1988. 	The County's 	representatives
informed 	District personnel what 	the program would 	entail. 	There
was 	no 	requirement 	that 	the 	District provide transportation 	for
students who 	enrolled in the program. 	The District was 	also
informed 	that 	the program would 	last 	from May 	21 	to 	September 	6,
1988.
Co
	8

Director 	Johnson asked 	the 	transportation department's
director, 	Alfred Gibson, 	about the cost of 	transporting the
students 	to 	Universal 	Studios 	for 	the duration of 	the program.
In addition to discussing with Gibson this 	cost, 	Johnson received
a 	list 	of 	rates 	charged by the 	transportation department. 	Costs
were 	based 	on variables 	including 	the 	type 	of 	District vehicle
used, 	the mileage involved, 	and the number of hours 	the trip
would 	take. 	Johnson also 	obtained 	a 	bulletin routinely 	issued by
the 	Department 	showing the different 	rates 	charged 	for 	certain
services. 	Johnson testified that he was 	aware of the
Department's 	overtime pay procedures 	and 	that 	they 	applied 	to 	all
ROP trips.
Johnson also knew that, 	because the Universal 	Studios 	ROP
involved only one week of 	"classroom" 	time 	- 	the orientation 	-
the 	District would 	receive 	less 	than 	$1900 	per 	student 	enrolled
in the program. 	The program would not generate any more ADA
monies 	after the 	orientation week because the 	"academic" 	part of
the 	program would 	be 	over 	and 	the 	remaining portion was
considered by 	the 	state to be 	employment.
Johnson testified 	that 	he 	calculated 	the 	transportation
costs 	before the 	start of 	the program. 	He acknowledged that the
figure was 	more than $17,000.00. 	When asked on cross-examination
how he 	figured he would be able to pay 	for 	the program, 	he
99

answered, 	"One possibility was paying 	for 	it out of the general
funds. "4
Johnson did 	not 	know how many 	students 	would 	eventually
enroll 	in the program and thus 	how much ADA money would be
available 	for the 	entire program. 	Despite not knowing what the
program's 	budget would eventually be, 	Johnson decided to 	go
forward with 	the program and to devote 	the 	entire budget 	to
transportation expenses. 	His 	reasons 	for 	implementing the
program, 	despite the uncertainty over 	funding were 	"this was 	a
special 	effort 	that Compton was 	trying," 	and there were 	"special
attributes" 	that made Compton want to participate 	in it, 	whether
or not 	it could afford to.
Whatever these attributes might have been, 	the District
hastily 	took 	steps 	to 	activate 	the program between 	late April 	and
May 	1988. 	In the 	first week in May, 	the County conducted a one-
week orientation designed 	to prepare 	the 	students 	for 	job
interviews 	to be handled by Universal 	Studios 	personnel. 	About 	a
week before work actually 	started, 	the Universal 	Studios
representatives 	conducted 	the 	job 	interviews 	and 	decided which
students to hire.
The 	first day of work was May 21, 	1988, 	a Saturday.5 On
4In the 	1988-89 	school year, 	the ROP programs 	at Compton,
according to 	Johnson, 	were being 	subsidized by the District's
general 	fund, 	but the ROP programs would 	eventually have to
reimburse the general 	fund.
5At 	the beginning of 	the program, 	the 	employment 	took place
only on weekends. 	At the 	end 	of 	the academic 	year 	in the 	latter
part of 	June 	1988, 	the 	students were transported to Universal
Studios 	both 	on weekdays 	and weekends. 	District bus 	and truck
10

that date, 	Richard White, 	a District driver, 	was assigned to
transport 	25 	of 	the 	students 	to Universal 	Studios 	and to return
them at 	the 	end 	of 	the 	day.6 Consistent with the 	transportation
department's practice, 	he went 	"on the clock" 	at 	6:00 a.m. 	to
pick up the 	students. 	He 	stayed 	"on the 	clock" 	the remainder of
the 	day until 	6:30 	p.m. 	when he had 	stored his 	bus 	after
returning the 	Universal 	Studios 	ROP 	students 	to 	their 	initial
pick-up point. 	He did not go 	"off the clock" 	in the middle of
the day while he waited 	for his 	return trip. 	He was 	therefore
credited with 	12 	1/2 	hours 	of overtime 	for this 	job. 	Other ROP
trips were 	also paid 	according to 	the 	customary procedure.
On June 	7, 	1988, 	the District was 	informed by the County
that 	its ADA allocation for the Universal 	Studios 	ROP was 	about
$7900. 	Further, 	the District would only be receiving $7,000 	of
that 	allocation. 	Johnson testified 	that 	although he 	discovered
on June 	7 	the program's 	meager allocation, 	and knew that 	the
money would not 	last until 	September 	6, 	he did nothing 	about 	the
looming problems. 	Rather, 	he waited until the District's
budgeting department 	informed him a week 	later that he was 	"going
to 	run out of money."
Johnson 	then told the 	District's 	superintendent 	of 	the
financial problems. 	He did not request additional 	funds 	from any
other 	source 	to 	complete 	the program nor did he 	request 	general
drivers 	ordinarily worked during 	the 	summer months.
6The 	students' 	starting and ending times were not uniform.
Therefore, 	some drivers' 	pick-up and drop-off times varied.
11

fund money 	for the Universal ROP, 	according to his 	own testimony.
He did tell 	the 	superintendent that he 	felt the 	"thirteen hour
trip wasn't necessary." 	In testifying, 	Johnson explained that he
saw no 	sense 	in 	sending 	a driver to 	Universal 	Studios 	to have
him/her 	sitting 	there all 	day waiting 	for 	the 	students 	to 	return
in the evening.
The 	issue was 	not 	completely 	resolved during 	that
discussion. 	The 	superintendent 	referred 	the problem to 	Director
of 	Employer-Employee Relations 	Dwight Prince. 	Prince was 	asked
to 	figure out a way to maintain the Universal 	Studios 	ROP, 	but to
"bring 	it within budget." 	Otherwise the 	ROP would have 	to 	repay
the general 	fund 	later 	for any amount 	spent 	over budget.
From discussions with Gibson and Johnson, 	Prince was
convinced that 	he had to work with 	the 	$7,000 	budget 	rather 	than
to try 	securing additional 	funding. 	According to Prince, 	the
District's primary goal was 	to 	continue 	the 	Universal 	Studios 	ROP
because it did not want to 	"disappoint students, 	parents, 	that
whole thing." 	The option of 	charging a 	transportation 	fee was
discussed, 	but 	not 	considered viable 	"from a 	community
standpoint." 	Also, 	according to Prince, 	the District did not
want 	to 	charge 	students/employees 	who were 	earning wages 	near
minimum 	levels. 	Prince 	testified 	that 	the District would not
levy 	such a 	fee 	"if there was 	any way 	in the world to avoid" 	it.
D. 	The Change 	in Overtime
Prince opted, 	therefore, 	to change the overtime pay policy
for drivers, 	but only for Universal Studios 	ROP trips. 	On about
12

July 	5 	or 	6, 	Prince 	informed CSEA Field Representative 	Janet
White that a decision had been made 	to 	change the 	overtime
procedure 	for drivers who were given assignments 	in the program.
Prince testified that the Union protested that 	any 	change 	in the
time 	credited 	for the trips would be viewed as 	a 	change 	in past
practice and subject to negotiations. 	However, 	according to
Prince, 	the District did not offer to negotiate.7
On about July 	6, 	1988, 	Prince 	called and attended a meeting
for the 	District's 	bus drivers 	to 	announce 	the 	change personally.
Transportation Director 	Gibson accompanied 	Prince, 	and Janet
White also attended. 	Prince 	informed 	those 	in attendance 	that
the 	Universal 	Studios 	ROP did 	not have 	enough money 	to 	continue
to pay the drivers what 	they had been receiving 	for those 	trips.
Therefore, 	beginning July 	7, 	the drivers would only be credited
with a maximum of 	three 	overtime hours 	for the trips 	on weekdays
and 	six hours 	for trips 	occurring on weekends 	and holidays.
On Saturdays 	and holidays, 	the drivers would be 	considered
"off 	the 	clock" 	between the time 	they dropped off 	the 	students 	at
Universal 	Studios 	and the time the 	driver returned to 	the 	studios
to take them back to the 	school. 	According to one driver, 	he
could 	choose 	to 	remain at Universal 	Studios with his 	bus 	after
7Prince 	explained that 	a 	decision had 	already been made 	to
change the compensation 	scheme and that, 	rather than 	informing
the Union what the District was 	"proposing", 	he notified White of
"what was 	going to happen." 	During the 	PERB proceedings 	and 	in
its post-hearing brief, 	the District advanced contractual
authority as 	one 	reason 	for not 	giving CSEA an opportunity 	to
bargain over the change. 	That reason was 	not offered when Prince
informed White of 	the change.
13

the 	initial drop-off, 	but he would be on 	"dead time" 	and
therefore not be paid 	for that period. 	The other option was 	to
return to the 	District garage 	and 	store 	the bus 	until 	the 	late
evening 	- around 	9:00 p.m. 	- when it was 	time to go back to
Universal Studios 	for the return trip. 	In either case, 	instead
of 	earning the normal 	12-13 	hours 	of 	overtime on weekends 	and
holidays, 	the drivers would be 	earning only 	six hours worth of
pay 	for 	the 	same 	task they had performed 	in the past.
On weekdays, 	the change would affect 	the drivers 	only 	for
the 	evening 	return trip 	because the 	morning 	route 	usually
occurred within the normal 	7:00 	a.m. 	to 	4:00 p.m. 	shift. 	In the
evening, 	however, 	the drivers were deemed 	"off the 	clock" 	at 	4:00
p.m. 	When the time 	came 	to 	retrieve the 	students 	from Universal
Studios, 	the driver would go back 	"on the 	clock," 	usually at
about 	9:00 p.m., 	and 	"off the 	clock" 	three hours 	later. 	They did
not automatically 	stay 	"on the 	clock" 	and begin to 	earn overtime
at 4:01 p.m. 	as 	in the past.
Other overtime trips, 	including trips 	for other ROPs, 	were
unaffected by 	the new procedure. 	They 	continued to be paid
according to 	traditional 	practice.
When the 	change was 	announced on July 	6, 	the drivers
protested that 	it was unfair and 	contrary to past practice. 	Some
threatened to refuse to accept those assignments. 	Others 	said
they would continue to perform them but, 	essentially, 	under
protest.
14

-..
Despite the complaints, 	the change was 	carried out. 	One
driver refused to 	accept the 	assignments 	to Universal 	Studios 	and
lost 	the 	overtime 	he would 	normally have 	earned under the 	old
procedure. 	He testified that, 	in addition, 	he was denied other
overtime 	assignments 	because 	of 	the operation of 	contract 	article
IX, 	section E. 	Since he was 	credited with having accepted the
assignments, 	his name was 	repeatedly pushed down the list of
drivers who were due 	for overtime trips. 	Other drivers 	continued
to 	claim 	(on their time 	sheets) 	the number of hours 	as 	they had
according to prior procedure. 	But, 	they were only paid the
maximums 	announced by Prince 	at 	the July 	6 	meeting.
No 	figures 	on the 	final 	expenses 	of 	the Universal 	Studios
ROP were offered as 	evidence. 	However, 	based on Prince's
calculations 	in early July, 	the 	amount 	saved 	from bus 	driver pay
was 	projected 	to 	reduce 	the 	cost 	overrun 	to 	slightly over 	$1,000
above the original allocation. 	The projected cost of
transportation, 	including 	savings 	from the new compensation
procedure, 	was 	$8026.02. 	Prince testified that whatever the
overrun was, 	it was 	to be paid out of the District's 	general
fund, 	and the ROP would 	later have to reimburse that 	fund.8
E. 	The 	Collective Bargaining Agreement
In addition to the portions of the parties' 	contract quoted
earlier in this 	Decision, 	there are other arguably germane
provisions. 	Article IV 	(District Rights) 	states:
8There 	is 	no 	evidence 	as 	to whether 	the District would be
participating 	in the 	Universal 	Studios 	ROP 	for the 	following
summer.
15

1. 	It 	is understood and agreed that the District
retains 	all of 	its 	powers 	and 	authority to
direct, 	manage and control to the full extent
of the law. 	Included in, 	but not limited to,
those duties 	and powers 	are 	the 	exclusive
right to: 	Determine its 	organization; 	direct
the work of its 	employees; 	determine the
times 	and hours 	of operation; 	determine the
kinds 	and 	levels 	of 	services 	to be provided,
and the 	methods 	and means 	of providing them:
establish its 	educational policies, 	goals and
objectives; 	insure the rights 	and educational
opportunities 	of 	students; 	determine 	staffing
patterns; 	determine the number and kinds 	of
personnel 	required; 	maintain the 	efficiency
of District operations; 	determine the
curriculum; 	build, 	move or modify facilities;
establish 	budget 	procedures 	and 	determine
budgetary allocations; 	determine 	the methods
of raising revenue; 	contract out work, 	and
take 	action on any matter 	in the 	event of 	an
emergency.
2. 	The exercise of the foregoing powers, 	rights,
authority, 	duties 	and responsibilities by the
District, 	the adoption of policies, 	rules,
regulations 	and practices 	in 	furtherance
thereof, 	and the use of 	judgment and
discretion in connection therewith, 	shall be
limited only by 	the 	express 	terms 	of 	this
Agreement, 	and then only to the 	extent 	such
specific 	and 	express 	terms 	are 	in conformance
with 	law.
3. 	The District retains 	its 	right to amend,
modify 	or 	rescind policies 	and practices
referred to 	in this Agreement 	in cases 	of
emergency. 	"Emergency" 	shall be defined as:
A 	situation calling 	for prompt 	action,
brought by an act of God; 	by unusual,
unexpected 	or 	extraordinary 	interference 	from
a third party; 	or by an unusual, 	unexpected
or 	extraordinary occurrence whose 	cause 	is
unknown.
The 	contract 	also 	contains 	provisions 	under previously-cited
Article 	IX 	(Work Periods 	and Overtime) 	which 	state:
1. 	Workday and Workweek
The maximum number of 	hours 	of 	regular
employment of unit members 	is 	eight 	(8) 	hours
a day and forty 	(40) 	hours a week. 	However,
16

the Governing 	Board may 	employ persons 	for
lesser periods 	. 	. 	. 	and authorize unit
members to work in excess 	of eight 	(8) 	hours
in one day or forty 	(40) 	hours 	in one
week. , . .
4.	4. 	Overtime
A. 	Overtime 	is 	ordered and authorized
working time 	in excess 	of 	8 hours
in one day or 40 hours 	in one week.
No one 	shall 	order or authorize
overtime unless 	it 	is 	compensable
as provided below. 	. 	. 	.
C. 	No unit member covered by this
Agreement 	shall 	have 	his/her hours
altered 	or 	changed 	for the 	sole
purpose 	of 	circumventing 	the
overtime provisions 	of 	this
Agreement.
D. 	Overtime 	- 	Distribution by
Seniority; 	Overtime 	shall be
distributed to unit members 	in the
bargaining unit within 	each
department 	by 	classification 	in
order of 	bargaining unit
seniority. . . .
5.5. 	Compensation 	for Overtime
A. 	All 	overtime must be 	approved 	in
advance by the 	appropriate
supervisor.
B. 	The unit member has the option of
taking 	compensating 	time 	off 	or
cash payment 	for accrued 	overtime,
providing the needs 	of the District
do not conflict.
C. 	Overtime worked must be paid 	in
cash or 	compensating time 	off
allowed 	at 	one 	and 	one-half 	times
the actual hours worked. 	Any
compensating 	time 	off 	not 	used
during the 	calendar month 	in which
earned must be paid 	in cash, 	unless
the 	unit member 	and his/her
immediate 	supervisor mutually 	agree
to 	an 	extension of 	time 	. . . .
17

The 	contract also 	includes 	a 	"zipper clause" 	(Article XX -
Completion of 	Meeting and Negotiations) 	binding both parties 	as
follows:
CSEA 	and 	the 	District 	knowingly 	and 	voluntarily
expressly waive 	and 	relinquish the 	right 	to 	meet 	and
negotiate during the 	life of 	this Agreement over any
matter within the 	scope 	of representation. 	No
exception 	shall 	be 	granted on the basis 	that 	the
subject 	to be 	addressed 	in additional 	negotiations 	is
not 	covered by this Agreement 	or was 	not within the
knowledge 	or 	contemplation of 	either party during
negotiations 	for this Agreement.
Neither party 	offered 	evidence 	of 	bargaining history 	about 	the
contractual provisions 	cited 	in this 	Decision.
DISCUSSION
PERB has 	recognized that 	the 	opportunity 	for 	overtime pay 	is
within the 	scope of 	representation. 	State of California
(Department of Transportation) 	(1983) 	PERB Decision No. 	333-S.
In Lincoln Unified School District 	(1984) 	PERB Decision No. 	465,
an employer violated the EERA where, 	without prior negotiations
with an exclusive representative, 	it 	caused a reduction 	in
overtime pay during weekend trips 	for which bus 	drivers 	were
eligible. 	The Board also held that 	it was 	immaterial 	that the
source 	of 	the 	funds 	for the weekend 	trips was 	not the 	employer
but rather a 	group 	of parents 	and 	friends 	of 	students who 	raised
the money. 	The Board, 	in Oakland Unified School District 	(1983)
PERB Decision No. 	367, 	dismissed a unilateral change allegation,
but 	recognized 	that practices 	of 	assigning overtime work are
within the 	scope 	of 	representation.
18

In this 	case, 	the District does not argue that the overtime
procedure 	in question is 	outside the 	scope of representation.
Its own witness, 	Dwight Prince, 	acknowledged that the overtime
compensation practice at 	issue was part of the drivers' 	terms 	and
conditions 	of 	employment.
An 	employer's 	unilateral 	change 	in terms 	and 	conditions 	of
employment within the 	scope of representation is, 	absent a valid
defense, 	a per se refusal to negotiate and violative of EERA
section 	3543.5 	(c). 	Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51; 	San Mateo County Community College District
(1979) 	PERB Decision No. 	94. 	A collective bargaining agreement
may 	set 	forth 	established terms 	and 	conditions 	of 	employment.
Grant Joint Union High School 	District 	(1982) 	PERB Decision No.
196. 	Where a contract 	is 	silent or ambiguous, 	established policy
may be determined by 	examining past practice or the parties'
bargaining history. 	Rio 	Hondo Community College 	District 	(1982)
PERB Decision No. 	279.
Here, 	the applicable policy is the practice of allowing
drivers 	to 	stay 	"on the 	clock" 	- 	and thereby earn overtime pay 	-
between 	the 	time 	they 	started 	their assignment 	(on trips
extending beyond regular hours 	and/or workdays) 	and the 	time 	they
stored the bus 	after returning the 	students 	to the point 	of
origin. 	This policy is 	not 	set forth in the parties' 	collective
bargaining agreement. 	However, 	it was 	clearly established
through 	over twenty years 	of 	consistent 	and well-known practice.
There 	is 	also 	no dispute 	that 	the 	established policy was
19

changed, 	and changed unilaterally. 	Prince 	admitted this 	fact
during his 	testimony. 	His 	announcement of the 	change to the
Union - 	a day or two before 	it was 	to take effect 	- was 	a 	firm
decision already made, 	not a proposal. 	He also conceded that the
District did 	not 	offer 	to 	negotiate 	on the 	subject despite
protests 	that 	such change was 	negotiable.
Considering the above, 	the District must 	establish an
affirmative defense to 	avoid a 	finding that 	it violated the 	EERA.
The 	Respondent 	asserts 	two main arguments 	in defense 	of 	the
alleged 	conduct 	- waiver by 	contract 	and 	operational 	necessity.
Specifically, 	the District argues 	that the collective bargaining
agreement grants 	it the 	sole power to determine the amount of
overtime 	and to authorize 	overtime 	assignments 	for unit members.
From this, 	Respondent concludes 	that the 	contract therefore
allows 	it to reduce overtime as it did herein. 	Additionally, 	the
District 	claims 	that 	it was 	required to reduce overtime 	so 	its
students 	could 	complete 	the 	Universal 	Studios 	program.
Waiver 	is 	an affirmative defense which the PERB will 	not
find unless 	the 	Respondent 	can 	show that 	the 	exclusive
representative 	"intentionally 	relinquished 	in 	clear 	and
unmistakable terms" 	its rights under the Act. 	See, 	e.g., 	Davis
Unified School District, 	et al. 	(1980) 	PERB Decision No. 	116.
The 	subject 	involved must have 	been 	"fully discussed" 	or
"consciously 	explored" 	and 	thereafter 	"consciously yielded" 	by
the 	charging party. 	Los Angeles 	Community College 	District
(1982) 	PERB Decision No. 	252. 	In Placentia Unified School
20

District 	(1986) 	PERB Decision No. 	595, 	the Board held that 	simply
including a 	broad 	subject 	in a 	collective bargaining 	agreement
does 	not amount to a waiver of particular aspects 	of 	that 	subject
that were 	neither discussed 	nor 	covered by 	the 	eventually 	agreed
upon 	language.
Here, 	the District's waiver defense hinges 	on extrapolation
from general 	and imprecise contractual 	language. 	Yet, 	Article
III 	(Effect of Agreement) 	of 	the 	contract 	states 	clearly that
"rules, 	policies 	and practices 	not 	specifically written into this
Agreement are not part of 	this Agreement." 	Hence, 	although 	the
broad 	subject of overtime was 	addressed in the contract, 	the
specific 	overtime 	compensation practice 	involved here was 	not
covered. 	Therefore, 	the claim that the 	specific 	subject of
staying 	"on the 	clock" 	was 	consciously yielded 	is 	suspect.
The 	District 	also 	cites 	contract Articles 	IV and 	IX for the
proposition that, 	absent a 	specific 	contractual prohibition, 	it
has 	complete discretion to make changes 	in overtime. 	And, 	since
the overtime practice at 	issue was 	not delineated 	in the
contract, 	the District declares 	it was 	free to act as 	it did
here. 	Only a 	strained reading of 	the 	contractual provisions 	can
yield 	such a 	conclusion.
The District Rights Article 	(IV) 	gives 	the Employer the
broad rights 	to 	"direct the work of 	its 	employees, 	determine the
times and hours of operation, 	and determine the kinds 	and levels
of 	services 	to be provided." 	Nowhere does 	the 	language 	state
that 	the District may change 	the pay 	scheme of 	those 	employees 	or
21
-----·

alter a 	compensation practice 	the 	District 	itself 	has 	established
by unwritten policy. 	Furthermore, 	the article provides 	that the
Respondent 	"retains" 	its managerial authority 	"to the 	full 	extent
of the 	law." 	One 	can fairly conclude 	"the 	law," 	as 	referenced 	in
the provision, 	includes 	the duties 	of 	notice and opportunity to
bargain under the EERA. 	Hence, 	although the compensation
procedure here was 	not 	expressed 	in the 	contract, 	the District
was bound by the 	limitations 	of 	the Act. 	It did not have
unbridled discretion to 	alter terms 	not 	expressly mentioned 	in
the agreement.
Even if 	the 	contract were not 	read to 	incorporate the 	EERA
by 	implication, 	the agreement's 	unspecific 	management rights
language does 	not 	clearly give 	the 	District the authority 	to make
changes 	in the 	settled overtime procedure. 	A waiver of
bargaining rights 	by a union will 	not be 	lightly 	inferred,
particularly where, 	as here, 	the language of the agreement fails
to define the policy 	in question. 	Compton Community College
District 	(1989) 	PERB Decision No. 	720, 	at p. 	19. 	Not only must a
waiver be 	"clear and unmistakable" 	but waiver 	is 	also 	an
affirmative defense, 	and the party asserting it 	(here the
District) 	bears 	the burden of proof. 	Placentia Unified School
District 	(1986) 	PERB Decision No. 	595, 	at p. 	7. 	The District did
not produce 	evidence 	of 	bargaining history 	from which one 	could
reasonably 	interpret the 	contractual provisions 	as 	a waiver of
the Union's 	right to 	notice and bargaining over the 	changes 	in
overtime pay.
. .. .
22

The agreement's 	zipper clause 	(Article XX) 	supports 	the
conclusion that the District was 	not 	free 	to alter the
transportation 	department's 	overtime 	compensation practice
without the participation of the bus drivers' 	exclusive
representative. 	The 	clause's plain 	language gives 	both parties
the right to refuse to bargain changes 	in all matters 	covered by
the terms 	of 	the clause 	for the duration of 	the agreement. 	This
includes 	"any matter within the 	scope of 	representation" 	and
those 	"not 	covered by this Agreement 	or 	. . . 	not within the
knowledge 	or 	contemplation of 	either party 	during 	negotiations
for this Agreement."
In Los 	Rios Community College District 	(1988) 	PERB Decision
No. 	684, 	the Board analyzed the effects 	of a zipper clause
essentially the 	same 	as 	the 	one 	involved herein.9 The Board
concluded that, 	in practical terms, 	the clause fixed for the 	life
of 	the agreement 	(absent mutual 	agreement to negotiate 	changes)
9The 	zipper clause 	in that case 	read:
The parties 	acknowledge 	that during 	the negotiations
which resulted in this Agreement, 	each had the
unlimited right and opportunity to 	make demands 	and
proposals with respect to 	any 	subject 	or matter
appropriate 	for collective bargaining, 	and that the
understanding 	and 	agreements 	arrived 	at by 	the parties
after the 	exercise 	of 	that 	right 	and 	opportunity 	are
set forth in this Agreement. 	Therefore, 	the Board and
the Union for the 	life of this Agreement, 	each
voluntarily and unqualifiedly waives 	the 	right, 	and
each agrees 	that the other 	shall 	not be obligated to
bargain 	collectively 	unless 	mutually 	agreed upon with
respect to any 	subject or matter, 	even though 	such
subjects 	or matter may not have been within the
knowledge 	or 	contemplation of 	either or both parties 	at
the 	time 	they 	negotiated or 	signed 	this Agreement,
[emphasis 	added]
23

those 	terms 	and 	conditions 	of 	employment 	established by past
practice, 	as well as 	those established by the express 	terms 	of
the contract. 	Thus, 	unspecified terms 	and conditions of
employment 	covering negotiable 	subjects 	became 	the 	status 	quo 	for
the 	life of that agreement.
Here, 	the practice of drivers remaining 	"on the clock"
during overtime 	assignments 	became 	the 	status 	quo 	for the 	term of
the contract. 	As 	in the Los 	Rios 	case, 	it is 	found here that the
Compton Unified 	School 	District was 	not 	free to 	alter the
overtime 	compensation practice unilaterally, 	even though 	it was
not detailed 	in the agreement.
The 	District next 	claims 	it was 	forced by operational
necessity to carry out the change. 	In Compton Community College
District 	(1989) 	PERB Decision No. 	720, 	the Board restated the
principle that, 	to 	establish a business 	necessity defense based
on budgetary 	considerations, 	an employer must 	show that 	the
financial 	crisis
. 	. 	. 	is an actual financial emergency which leaves no
real 	alternative to 	the 	action taken and allows 	no 	time
for meaningful 	negotiations 	before 	taking 	action.
(Calexico Unified School 	District 	(1983) 	PERB Decision
No. 	357, at p. 	20.)
Even when an 	employer 	is 	faced with 	an actual 	economic 	collapse
of unknown proportions, 	it may not take unilateral 	action on
negotiable 	subjects, 	but must bring 	its 	concerns 	about these
matters 	to 	the 	negotiating table. 	San Francisco Community
College District 	(1979) 	PERB Decision No. 	105, 	at pp. 	10-11. 	The
- . ". .. . .
24

existence of a genuine emergency, 	by itself, 	does 	not extinguish
the duty to give notice and an opportunity to bargain.
The 	District's 	threshold 	argument 	that 	there 	existed 	a
genuine 	financial 	crisis 	is unpersuasive. 	The evidence 	clearly
shows 	that the Universal 	Studios 	ROP was 	voluntary. 	Further,
participation 	in the program did 	not mandate 	that 	the 	District
provide 	free 	transportation 	for 	the 	student/workers.10 Although
the Respondent viewed District 	transportation as 	valuable 	to 	the
program's 	success, 	the 	evidence does 	not 	show that the District
had no alternative but 	to 	furnish 	it 	to 	the 	extent 	it did here.
PERB does 	not 	sanction unilateral 	changes where 	statutes 	give the
employer discretion. 	Fountain Valley 	Elementary 	School 	District
(1987) PERB Decision No. 	625, 	at p. 	27.
The 	"financial 	crisis" 	was 	not unanticipated. 	Almost 	from
the 	start, 	District administrators 	decided to participate
regardless 	of whether or not 	the 	District 	could afford 	the 	entire
costs of the Universal Studios program. 	Yet, 	when the District
chose to participate 	in the 	face of 	information that the
program's transportation costs 	alone would exceed $17,000.00, 	and
that the 	income 	from ADA monies would be 	limited, 	administrators
moved onward despite 	foreseeable 	financial 	obstacles. 	Johnson
even entertained, 	at that time, 	the possibility that the
District's 	general 	fund 	could be used 	to 	help pay 	for 	the
program. 	Even when Johnson was 	informed of 	the actual 	fund
10One 	District witness 	testified that 	some of 	the 	students
supplied their own transportation, 	although the District
administrators 	felt this was 	not 	"supposed" 	to happen.
25

allocation for the Universal 	Studios 	ROP on June 	7, 	he apparently
did not 	feel 	it was 	sufficiently 	serious 	to warrant 	immediate
action until 	he was prodded to do 	so by the District's 	budget
department.
Prince's 	testimony 	shows 	that 	some 	thought was 	given to the
prospect 	of 	requesting additional 	funds 	in order to meet 	the
transportation costs 	for the remainder of 	the program. 	However,
the 	overall 	record demonstrates only 	a 	superficial 	effort was 	made
in this 	regard. 	Prince testified that he 	simply accepted the 	two
directors' 	(Gibson and Johnson) 	conclusions that the $7,000 was
all 	there was with which to work. 	He 	also 	testified that 	the
directive 	he had been given by 	the 	superintendent was 	not 	to 	seek
funds 	to 	supplement the ADA monies, 	but rather to 	"bring the
program within budget."
Given these 	facts, 	one must doubt the assertion that 	the
"financial 	emergency" 	was 	one which 	"left no real 	alternative to
the action taken" 	by the District. 	Indeed, 	Prince 	surmised that
the 	amount 	eventually overspent by 	the 	Universal 	Studios 	ROP
would be paid 	from the District's 	general 	fund, 	to be 	reimbursed
at 	an unspecified 	later date. 	He acknowledged there was 	no
restriction, 	other than the 	"concept of 	efficiency and
management," 	preventing the 	District 	from advancing more 	than the
amount actually overspent. 	Interestingly, 	the District's 	general
fund was 	being used to 	subsidize 	the ROP programs 	in the
following academic 	year. 	The 	lack of 	genuine 	efforts 	to 	find
26

options 	to 	the 	funding 	shortage 	belies 	any 	assertion that 	the
situation left no 	real alternatives.
Arguably, 	several alternatives, 	apart from those discussed
above, 	were available. 	The District could have continued to
participate 	in the Universal 	Studios program, 	but 	cease providing
transportation. 	Or, 	it 	could have 	limited its transportation to
the weekdays, 	thereby eliminating the weekend overtime
expenditures. 	It might have 	subsidized students' 	public
transportation bus 	fares. 	It 	could have negotiated 	(with CSEA) 	a
way to 	avoid the 	financial 	impact 	on drivers 	- 	e.g., 	creating an
exception 	for 	Universal 	Studios 	assignments whereby 	a 	driver
declining 	such would 	not 	be penalized or precluded 	from the 	next
overtime 	assignment which 	came up.
The 	Respondent 	never 	considered 	the 	alternatives 	of
informing 	the Union of 	the options 	it was 	entertaining or of
seeking alternative 	solutions 	via 	the negotiations 	table.
Although the 	status 	of the 	funding was unclear at the time 	the
District 	calculated 	expenses 	during planning 	stages 	of 	the
program, 	Respondent was 	aware, 	from the disparity of costs to
possible revenue, 	of 	likely financial problems. 	Nothing
precluded 	contingency negotiations 	on the 	issue. 	When the
District received the budget allocation 	statement on June 	7, 	it
could have, 	but did not, 	alert the Union of the chance that
drivers' 	hours 	and pay might be affected. 	A week or 	so 	later,
Johnson was 	advocating 	to 	the 	superintendent 	a possible 	solution
to 	the 	fund 	shortage 	- 	there was 	no reason to pay the drivers 	for
. : -
27

sitting 	at 	Universal 	studios 	all 	day 	(collecting 	overtime)
waiting 	for the return trip. 	Yet 	the 	Union was 	not 	informed that
the 	District was 	entertaining this 	possibility. 	The 	alternative
selected was 	one 	intended to accommodate 	students, 	parents, 	the
community, 	and the administration, 	at the expense of the drivers.
Prince 	reached 	a 	firm decision to 	implement 	the 	overtime
change at most two days 	before the date of 	implementation. 	Even
then, 	he made no offer to CSEA to negotiate over the matter. 	No
reason was 	given as 	to why the 	implementation date 	could not 	be
moved even 	for a 	few days 	to 	give 	the Union an opportunity to
assert 	its bargaining rights 	on behalf of 	the drivers. 	No 	effort
was 	made to negotiate a 	compromise after the 	fact. 	The District
made what was 	a 	final decision, 	not a proposal capable of being
negotiated. 	Under all these circumstances, 	the Respondent's
operational 	necessity defense must 	be 	rejected.
Respondent 	finally 	contends 	that 	the 	Complaint 	should be
dismissed because 	PERB 	lacks 	jurisdiction 	since 	the 	matter 	is
covered 	by 	the 	collective 	bargaining 	agreement 	and 	the 	Charging
Party has 	not 	exhausted 	the 	contractual 	grievance 	machinery.
This 	argument 	lacks 	merit 	for various 	reasons.
Section 	3541.5 	(a) 	of the Act prevents 	PERB 	from issuing a
Complaint 	against 	conduct prohibited by 	a 	collective 	bargaining
agreement unless 	the 	grievance machinery of the 	contract has 	been
exhausted 	either by 	settlement 	or binding 	arbitration. 	As
already concluded, 	supra, 	the matter involved in this 	case 	is 	not
covered by the applicable contract but, 	rather, 	is based on
28

longstanding practice. 	Because the 	contract does 	not 	specify the
practice, 	CSEA could not allege that a 	specific 	contractual
provision was 	violated 	and, 	therefore 	could not 	exhaust 	the
grievance machinery, 	particularly 	in 	light of 	the 	following
language 	from Article VI 	(Grievance Procedure):
1. 	Definitions
A. 	A 	"grievance" 	is 	a written complaint by
a unit member 	. 	. 	. 	that he/she has been
adversely 	affected 	by 	an 	alleged 	violation,
misinterpretation, 	or misapplication of a
specific provision of 	this Agreement.
Actions 	to 	challenge or 	change 	rules 	or
regulations of 	the 	District which are not
specifically 	incorporated 	into 	this 	Agreement
or to contest matters 	for which a 	specific
method of 	review 	is 	provided by 	law are 	not
grievances 	and are 	not within the 	scope of
the 	grievance procedures 	set 	forth 	in this
Article 	. . . . 	(Emphasis 	added.)
Also as 	noted further above, 	Article 	III 	excludes 	from the
contract 	"rules, 	policies 	and practices 	not 	specifically written
into" 	the agreement. 	The Board noted, 	in State of California.
Department of the Youth Authority 	(1989) 	PERB Decision No. 	749-S,
that where allegations 	in the unfair practice charge 	are
specifically 	excluded from the 	grievance 	machinery, 	no 	deferral
can be ordered. 	It 	follows that in such instances, 	as 	in the one
at hand, 	PERB's 	jurisdiction is preserved.
CONCLUSION
Based on the 	entire record and the preceding reasons, 	it 	is
concluded 	that 	the 	District violated 	EERA 	section 	3543.5 	(c)
when, 	without negotiating with CSEA, 	it changed the practice of
allowing bus drivers 	to remain 	"on the clock" 	for a 	continuous
29

period 	starting with the 	origin of 	a driving assignment 	and
concluding at 	the 	end of 	the 	assignment when the bus was 	secured
after the 	students were 	returned 	from their trips. 	The
unilateral 	action was 	taken 	in disregard 	of 	CSEA's 	admonitions
and with 	indifference to 	the 	Union's 	right 	and duty 	to 	represent
the rights of affected unit members. 	Therefore, 	the District's
action also violated EERA section 3543.5 	(b). 	Although there 	is
evidence 	that 	the 	Respondent's 	conduct may have 	also 	violated
EERA section 3543.5 	(a), 	a 	finding on that 	section cannot be
reached 	here. 	Such allegation had been withdrawn with prejudice
by the Charging Party at 	the 	time 	the Complaint was 	issued.
ORDER AND 	REMEDY
The 	PERB 	is 	empowered to 	issue a decision and order
directing 	an offending party 	to 	take 	such action as 	will
effectuate the policies 	of the EERA. 	In a unilateral 	change
case, 	the respondent 	is 	typically ordered to cease and desist
from 	such action in the 	future 	and to restore 	the 	status 	quo
ante. 	Accordingly, 	the District will be ordered to cease and
desist 	from unilaterally 	changing 	the 	overtime policies 	which
were 	in 	effect before 	it 	engaged 	in the 	conduct which 	is 	the
subject of this 	case. 	Although it may appear that the 	change
only affected the 	Universal 	Studios 	ROP, 	which 	either 	ended or
was 	in a hiatus after September 6, 	1988, 	the evidence 	suggests
that 	the 	District 	erroneously believed 	it 	retained 	the 	discretion
to 	change the overtime practice as 	needed 	in the 	future. 	It 	is
also 	unclear whether the 	District will participate 	in the
30

Universal 	Studios 	ROP 	in the 	future. 	To avoid any ambiguity, 	the
Respondent will 	be 	directed to 	restore 	the 	overtime procedures 	in
effect before 	the unilateral 	change occurred.
Unit 	members 	were 	financially affected by 	the 	change 	in 	two
different ways. 	One was 	the reduction in the number of overtime
hours 	credited on Universal Studios 	trips. 	The other was 	a 	loss
of 	non-Universal 	Studios 	overtime assignments, 	due to the penalty
in the contract 	(Article IX, 	section E ) , 	for drivers who refused
these assignments. 	Drivers 	had only two options 	- 	accept the
assignments 	at the reduced 	level, 	or lose their turn on the
rotation 	schedule 	for overtime 	assignments, 	thereby also missing
the chance for overtime pay. 	Under these circumstances, 	it 	is
appropriate 	to order the 	District 	to make unit members 	whole 	for
any 	economic 	losses 	they 	suffered 	stemming 	from 	the 	unlawful
changes.
Drivers 	who 	accepted 	and performed 	Universal 	Studios 	ROP
assignments when the 	changes went 	into 	effect 	shall 	receive 	the
difference between what 	they were paid 	and the 	amount 	they would
have 	received under the 	old 	system of 	crediting hours. 	The 	exact
amounts 	of compensation, 	unless 	agreed to by the parties, 	can be
determined 	in compliance proceedings 	before 	the PERB. 	To 	these
compensatory amounts, 	the District 	shall 	add interest at ten 	(10)
percent 	per 	annum.
For 	those drivers who 	declined 	Universal 	Studios 	ROP
assignments 	after the change 	in practice, 	the 	District must
deduct 	the hours with which they were 	credited 	from the overtime
31

assignment 	list. 	Their names 	are to be placed at the top of 	the
list 	for 	future overtime 	assignments 	until 	the 	overtime hours
performed 	equals 	the 	number they were 	credited with pursuant 	to
contract Article IX, 	section E3.
The 	Respondent 	shall 	also be 	required to post 	a 	notice
incorporating the terms 	of 	this Order. 	The Notice 	should be
subscribed by an authorized agent 	of 	the 	Employer, 	indicating
that 	it will 	follow the terms 	thereof. 	The Notice 	shall 	not be
reduced 	in size, 	defaced, 	altered or covered by any other
material. 	Posting 	such a Notice will provide 	employees with
-notice 	that 	the 	Employer has 	acted 	in an unlawful 	manner and 	is
being required to 	cease 	and desist 	from this 	activity. 	It
effectuates 	the purposes 	of 	the Act 	that 	employees 	be 	informed of
the 	resolution of 	the 	controversy 	and will 	announce 	the
Employer'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 Relations 	Board 	(1979)
98 Cal.App.3d 580, 	587 	[159 Cal.Rptr. 	584], 	the California
District 	Court 	of Appeal 	approved 	a 	similar posting 	requirement.
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 District, 	its governing
board and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
32

(1) 	Changing, 	without notice to and negotiations with
CSEA, 	the overtime 	compensation practices 	in effect 	in the
transportation department 	immediately before July 	6, 	1988.
(2) 	Interfering with CSEA's 	right 	to 	represent unit
members 	in their employment 	relations with the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF 	THE ACT:
(1) 	Restore the 	transportation department's 	overtime
compensation procedure 	in effect 	immediately before 	July 	6, 	1988.
(2) 	Make whole 	each unit member who 	suffered 	economic
harm 	from the 	change 	in 	overtime 	compensation as 	to 	Universal
Studios 	ROP 	assignments. 	Drivers who 	continued 	to perform
Universal 	Studios 	ROP 	assignments 	after 	the 	change will 	receive
the 	difference 	between the 	amount 	they were 	actually paid 	and 	the
amount 	they would have received under the 	old procedure. 	The
amounts 	of 	compensation 	shall 	include 	an additional 	sum as
interest 	calculated at ten 	(10) 	percent per annum. 	For drivers
who 	declined 	Universal 	Studios 	ROP 	assignments 	after 	the 	unlawful
change, 	the District 	shall deduct the number of hours 	they were
charged with 	on 	the 	overtime 	assignment 	list 	for 	future
assignments. 	The names 	of 	these drivers will be placed at the
top 	of 	the 	overtime 	assignment 	list 	for 	future 	overtime 	until 	the
number of 	hours 	worked 	equals 	the 	number they were 	charged with
for having declined the 	assignments.
(3) 	Sign and post 	copies 	of 	the 	attached Notice marked
"Appendix" 	in conspicuous places where notices 	to 	employees 	are
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usually placed 	at 	its 	headquarters 	office and at 	each of 	its
campuses 	and all 	other work 	locations 	for thirty 	(30) 	consecutive
workdays. 	Copies 	of this Notice, 	after being duly 	signed by an
authorized agent of 	the Respondent, 	shall be posted within ten
(10) 	workdays 	from service of the 	final decision in this matter.
Reasonable 	steps 	shall be 	taken to 	insure that the Notice 	is 	not
reduced in size, 	altered, 	defaced or covered by any other
materials.
(4) 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	order 	to
the 	Los Angeles 	Regional 	Director of the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
Pursuant to California Administrative Code, 	title 	8, 	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 Code, 	title
8, 	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, 	section 32135. 	Code of Civil Procedure 	section 	1013
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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, 	sections 32300, 	32305 and 32140.
Dated: 	September 14, 	1989 Manuel M. 	Melgoza
Administrative 	Law 	Judge
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