Beverly Hills Unified School District (PERB 0789E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
BEVERLY 	HILLS 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	Party,
v.
BEVERLY 	HILLS 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case No. 	LA-CE-2725
PERB Decision No. 	789
January 19, 	1990
Appearances: 	California 	Teachers Association by Rosalind 	D.
Wolf, 	Attorney, 	for Beverly Hills Education Association, 	CTA/NEA;
Liebert, 	Cassidy and Frierson by Sandra Owens 	Dennison, 	Attorney,
for 	Beverly 	Hills 	Unified 	School 	District.
Before Hesse, 	Chairperson; 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Beverly Hills 	Unified School 	District 	(District) 	to 	the 	attached
proposed decision of a PERB administrative 	law judge 	(ALJ). 	The
ALJ 	found that 	the District violated 	section 3543.5, 	subdivisions
(b) 	and 	(c), 	of the Educational Employment Relations Act 	(EERA)1
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 	states, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to:
(b) 	Deny to employee organizations 	rights
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by 	unilaterally 	contracting 	out 	bargaining 	unit work 	involving 	a
peer 	counseling program entitled the 	Opportunity 	Program 	(OP).
The District 	excepts 	to the 	finding of 	a violation and, 	assuming
a 	violation did occur, 	to 	the 	appropriateness 	of 	awarding back
pay 	and 	reinstatement 	to 	the 	teacher 	assigned 	to 	the 	OP 	prior 	to
the 	contracting out.
We have reviewed the 	entire record 	in this 	case, 	including
the proposed decision, 	the 	District's 	exceptions 	and the 	response
thereto, 	and, 	finding the ALJ's 	findings 	of 	fact free from
prejudicial 	error, 	adopt them as 	our own. 	Consistent with the
following discussion, 	we 	affirm the ALJ's 	conclusions 	of 	law with
regard 	to 	the unlawful 	contracting out 	of 	bargaining unit work.
However, 	finding reinstatement 	and back pay to be 	inappropriate
in these 	circumstances, 	we modify the proposed remedy.
FACTUAL 	SUMMARY
The 	following is 	a 	synopsis 	of the pertinent 	facts 	in this
case.
The OP 	is 	a peer counseling program 	in which 	students 	at
Beverly 	Hills 	High 	School 	receive 	course 	credit 	for providing
counseling and tutoring 	services 	to 	fellow 	students. 	The
Community 	Internship 	Program 	(CIP) 	offers 	course 	credit 	to
students who 	serve as 	interns 	in various 	fields. 	The CIP 	is part
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
N	
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of 	a 	larger program called the Applied Education Program. 	OP was
once part of CIP, 	but had been operated as 	an independent program
for many years prior to the 	events 	at 	issue.
The Maple Center is 	a 	non-profit 	community mental 	health
organization that 	has 	traditionally provided various 	mental
health 	services 	to 	the 	District, 	including 	counseling 	students
with 	substance 	abuse problems, 	operating the teen brother/teen
sister program, 	and assisting with the OP. 	The District was
unable 	to 	locate 	any written contract 	for the 	services 	provided
by the Maple Center, 	though the Maple Center is paid annually
from the District's budget, 	as 	a 	line 	item expense. 	Since the
1985-86 	school year, 	the District has 	paid the Maple Center a
flat rate of $27,500 	a year.
Prior to the 	1987-88 	school year, 	the District had assigned
one 	full-time 	certificated 	employee 	to 	operate 	the OP 	on a day-
to-day basis, 	involving at 	least 	six periods per day. 	Judith
Warren held that position from 	1976 	to 	1986, 	when 	she became 	a
guidance 	counselor. 	She was 	replaced 	for the 	1986-87 	year by
Susan Kelleher, 	a temporary employee with an emergency 	teaching
credential.
Warren 	testified 	that her 	job duties 	had 	included:
recruiting, 	interviewing, 	selecting and training 	student
counselors; 	taking attendance; 	reviewing cases, 	records and
quarterly reports; 	issuing grades; 	advertising the program to
students 	who might wish to receive 	counseling; 	interviewing
students 	seeking 	counseling 	and 	matching 	them with 	student
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counselors; 	discussing with teachers, 	guidance counselors and
others 	the progress 	of 	students 	in the program; 	and writing
course 	evaluations. 	She 	also 	supervised 	interns 	(college 	or
post-graduate 	students), 	some of whom were 	serving their
internships with the District, 	and 	some of whom were 	serving
their 	internships with the Maple Center.
Maple Center personnel were 	responsible 	for 	training 	and
assisting 	the 	student 	counselors 	in the 	counseling 	aspects 	of 	the
program. 	Thus, 	Maple Center employees 	conducted training
sessions, 	reviewed notes 	from counseling 	sessions 	and provided
critiques 	of the 	students' 	counseling techniques. 	They would
also 	determine whether 	students 	who 	sought 	counseling 	should
instead 	be 	referred to a professional 	counselor.
When Kelleher replaced Warren 	for the 	1986-87 	school 	year,
she also worked full-time as OP director. 	However, 	due to her
relative 	lack of 	training and 	experience, 	Kelleher did 	less
training 	and 	supervision than Warren had done. 	Maple 	Center
personnel, 	accordingly, 	took on more 	supervision and training
duties, 	though the record does 	not 	reflect 	the magnitude 	of 	the
accretion of duties.
Early in the 	1986-87 academic year, 	a citizens' 	advisory
group was 	formed 	to 	study ways 	in which 	the 	District 	could 	cut
costs 	in order to balance 	its 	budget. 	Within the report 	issued
by 	the group was 	a 	recommendation that the 	OP be 	eliminated. 	On
March 	10, 	1987, 	the District's governing board adopted a
resolution 	containing many 	of 	the 	group's 	recommendations,
r . .
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including that 	involving the OP. 	The resolution 	"reduces 	and/or
discontinues 	. 	. 	. 	particular kinds of services," which were then
listed. 	The 	list 	included 	"High 	School 	Opportunity Program--1.0
FTE 	[full-time equivalent]." 	Beverly Hills 	Education
Association, 	CTA/NEA 	(Association) 	representative 	Kenneth Eaves
was present at the public 	meeting on March 	10, 	and the ALJ
credited his 	testimony that 	no mention was 	made 	at 	the meeting of
continuing the OP. 	Shortly after the adoption of 	the 	resolution,
Kelleher received a notice 	of 	nonreappointment. 	It 	is 	undisputed
that the 	reason 	for the 	elimination of 	the 	1.0 	OP 	FTE was 	the
budget crisis.
In March of 	1987, 	while the parties were meeting to
renegotiate their 	1986-89 	agreement, 	they discussed the 	layoffs
adopted by the governing board on March 	10. 	The 	District 	offered
to 	negotiate the 	impact of the 	layoffs, 	but the Association never
made any 	specific proposals 	in response to 	the offer. 	The ALJ
credited Eaves' 	testimony that, 	in those discussions, 	no mention
was 	made 	of 	continuing the OP 	and that he believed 	that 	it 	had
been discontinued. 	Nor did the Association grieve 	the 	layoffs 	or
notices 	of nonreappointment, 	though 	it did represent 	several
employees 	who 	unsuccessfully 	challenged 	their 	terminations
pursuant 	to 	Education Code 	section 44949.
Sol 	Levine, 	the principal of Beverly Hills 	High School,
testified that, 	after the March 	10 resolution was adopted, 	he
investigated ways 	in which 	the 	District 	could 	continue 	to 	operate
the 	OP. 	While he discussed 	continuation of 	the program with 	the
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governing board, 	the board took no 	formal action. 	Ultimately,
Levine decided 	to place 	the OP under the umbrella 	of 	the Applied
Education Program, 	under the 	supervision of 	its director, 	Rhoda
Sharp, 	and have the Maple Center take over the day-to-day
operation of 	the OP.
While 	some 	of 	the 	former duties 	of 	the OP teacher were
reassigned to Sharp, 	a certificated unit member, 	it 	is 	clear that
the bulk of 	those duties were 	assumed by Maple Center 	staff.
Sharp 	assigns pass/fail 	grades 	to the 	student 	interns, 	on the
recommendations 	of 	the Maple Center 	staff, 	performs 	some 	liaison
duties 	between the 	students 	seeking 	counseling 	and 	the 	District's
staff/and meets with the 	student counselors 	about 	four times, per
semester to discuss 	their progress. 	Maple Center 	staff members
now perform all 	of 	the 	other duties 	formerly 	assigned 	to 	the 	OP
teacher. 	Even though counseling 	is 	now offered only 	four periods
a 	day 	instead of 	six, 	the 	services 	provided have 	essentially
remained the 	same, 	as 	the number of 	student 	counselors 	and the
number 	of 	students 	receiving 	counseling have 	remained 	fairly
constant.
The ALJ 	credited Eaves' 	testimony that 	the 	first 	time he
learned 	that 	OP would 	continue 	to be offered was 	at 	the 	beginning
of 	the 	1987-88 	school 	year. 	Eaves 	questioned the 	District's
superintendent about the matter, 	who responded on October 	15,
1987, 	by 	forwarding a memorandum 	(dated September 	22) 	from Levine
which outlined the 	changes 	in the program. 	By 	letter dated
November 	17, 	Association consultant 	Jacques 	Bernier protested the
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removal 	of 	bargaining unit work, 	demanded that a unit member be
assigned 	to 	the program, 	and demanded that 	the 	District 	negotiate
any 	intended removal 	of bargaining unit work from the OP. 	The
District did not respond to Bernier's 	letter. 	On March 	9, 	1988,
the Association 	filed 	its 	unfair practice 	charge.
DISCUSSION
The 	District's 	exceptions 	to 	the 	finding of 	a 	violation
contain three main assertions: 	(1) 	the Association waived its
right 	to 	negotiate by 	failing to 	respond 	to 	the 	District's
invitation to bargain the 	effects 	of 	the 	layoffs 	and
nonreappointments; 	(2) 	the Association waived its 	right to
bargain 	over 	subcontracting 	by 	agreeing 	to 	the 	management 	rights
clause in Article 	17 	of the parties' 	last 	collective bargaining
agreement, 	and the ALJ 	erred by refusing to 	consider 	this
defense; 	and 	(3) 	the contracting out of OP work was 	consistent
with past practice. 	Relying primarily 	on the 	lawfulness 	of
Kelleher's 	nonreappointment 	and 	her 	temporary 	(and 	emergency
credentialed) 	status, 	the District also asserts 	that a make whole
remedy 	is 	inappropriate.
Waiver 	By 	Inaction
The 	District 	claims 	the Association waived 	its 	right 	to
bargain because of 	its 	failure to make 	any proposals 	dealing with
the 	effects 	of 	the 	layoffs 	and nonreappointments, 	the 	contracting
out 	of 	the 	former OP teacher's 	duties 	being one possible
ramification of 	the 	nonnegotiable 	decision 	to 	eliminate 	the 	1.0
FTE 	assigned to 	the OP. 	The 	District places 	great weight 	on 	its
. . 	. . ..! . .
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assertion that the 	evidence does 	not 	show that 	the 	District 	ever
told 	the Association that 	the OP was 	being discontinued. 	It
asserts 	that the ALJ's 	crediting of Association witnesses'
testimony that 	their 	impression was 	that OP was 	to be
discontinued 	is 	insufficient 	evidence 	on which 	to 	conclude 	that
the Association was 	not put 	on notice 	of 	subcontracting.
We 	believe that 	the ALJ properly rejected 	this 	defense. 	Our
reading 	of 	the 	record 	fully 	supports 	the ALJ's 	finding 	that 	the
OP was, 	in fact, 	discontinued, 	only to be revived a few months
later when Levine 	secured the Maple Center's 	agreement 	to 	assume
additional duties. 	Levine testified that, 	after the governing
board eliminated the OP FTE, 	he 	sought a way in which the OP
could be 	continued. 	By 	late May or early June, 	when he 	secured
the Maple Center's 	agreement 	and 	the 	commitment 	from 	Sharp 	to
provide 	overall 	supervision within the 	ambit of 	the Applied
Education Program, 	Levine had 	succeeded 	in devising a way to
continue 	the OP.
Our review of 	the record has 	revealed no basis 	on which to
disturb 	the ALJ's 	credibility 	determinations 	concerning 	the
Association's 	ignorance 	of 	the 	revival 	of 	the OP until 	the
beginning of 	the 	next 	school 	year. 	The 	Board normally gives
deference to the credibility determinations 	of ALJs, 	in
recognition that, 	by virtue of witnessing the 	live testimony,
they 	are 	in a much better position to 	accurately make 	such
determinations. 	(Santa Clara Unified School District 	(1979) 	PERB
Decision No. 	104, 	pp. 	12-13; 	Los Angeles Unified School District
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(1988) 	PERB Decision No. 	659, pp. 	8-9.) 	Moreover, 	the
documentary 	evidence 	gives 	the 	impression that 	the OP was 	to 	be
eliminated. 	The March 	10, 	1987 board resolution states 	that the
District 	"hereby reduces 	and/or discontinues 	the 	following
particular kinds of services 	. 	. 	. 	." 	On the list of services
that 	follows 	is 	a reference to 	"High School Opportunity Program."
A March 	13, 	1987 	memo from the 	superintendent to all 	staff
members 	references 	an attached 	list which details 	the 	budget
reduction recommendations 	adopted by the board on March 	10. 	Item
number 	16 	on that list 	states: 	"Eliminate high school opportunity
program 	(1.0 	FTE)."
Therefore, 	we 	find that the ALJ was 	correct 	in concluding
that 	the 	elimination of 	the OP 	and the 	later 	subcontracting 	of
the 	former OP 	teacher's 	duties 	represent two distinct decisions,
and that 	the 	notice 	the Association received 	in the 	spring 	of
1987 	referred only 	to the 	former decision 	and did 	not 	logically
include the yet to be revealed decision to 	contract out. 	As 	the
ALJ 	stated, 	the 	two decisions 	are 	conceptually 	separate 	and have
very different bargaining 	consequences. 	While 	an employer 	is
obligated to bargain only the 	effects 	of 	a decision to 	lay off
employees, 	subcontracting may be 	subject to decision bargaining.
(Newman-Crows 	Landing Unified 	School 	District 	(1982) 	PERB
Decision No. 	223; 	State of California 	(Department of Personnel
Administration) 	(1987) 	PERB Decision No. 	648-S.) 	In sum, 	we
agree with 	the ALJ 	that 	the Association 	could not 	have waived 	its
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right 	to 	bargain over the 	subcontracting when 	it 	only had 	notice
of 	the District's 	apparent decision to 	eliminate the OP.2
Contract 	Waiver
The ALJ 	refused 	to 	consider 	the 	District's 	contract waiver
defense because 	it was 	not raised until 	late 	in the hearing.
Before discussing the District's 	exceptions 	to 	that
determination, 	it 	is 	necessary to 	explain the 	circumstances 	in
which the 	issue 	arose.
Near the beginning of 	the hearing, 	the ALJ asked the
parties 	about 	the 	status 	and 	importance 	of 	an unsigned 	contract
that was 	on file with PERB, 	and 	stated that he thought the
contract 	could be highly relevant. 	He asked 	if 	the parties 	could
stipulate as 	to 	the 	status 	and 	effective dates 	of 	the unsigned
contract. 	The Association's 	counsel 	claimed that 	the 	contract
was 	not 	relevant to the 	issues 	in dispute. 	The District's
counsel 	essentially echoed that 	sentiment, 	stating:
Since we're not 	talking about 	the part 	of 	the
charge that will be relevant to the MOU, 	I
would agree that there 	is 	one 	that exists,
but 	that we're 	not going 	to be pointing at
that. 	If 	anything that we point to would be
2In 	support 	of 	his 	conclusion that 	the District's waiver by
inaction defense was without merit, 	the ALJ 	cited Oakland 	Unified
School District 	(1983) 	PERB Decision No. 	367 and Solano County
Community College District 	(1982) 	PERB Decision No. 	219. 	While
we 	agree with the ALJ's 	conclusion regarding this 	defense, 	we
fail to 	see the relevance of the cases 	cited. 	However, 	his
conclusion 	is 	consistent with 	Board precedent 	concerning waiver
by inaction. 	(See, 	e.g., 	Placentia Unified School 	District
(1986) 	PERB Decision No. 	595; 	Los Angeles Community College
District 	(1982) 	PERB Decision No. 	252.)
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the one that was 	in existence 	in 	'86-'87 when
notices 	of 	layoff went out.
(Tr. Vol. I, p. 11.)
The 	District's 	counsel 	did 	not 	mention the 	contract waiver 	issue
in his 	opening 	statement.
At 	the 	close of 	its 	case-in-chief, 	during the testimony of
its 	last witness, 	the District 	introduced the 	current 	collective
bargaining agreement,3 with 	specific 	reference to Article 	17,
"District Rights." 	After being asked by the ALJ, 	the District
stated that 	it was 	raising Article 	17 	as 	an affirmative defense.
The ALJ 	replied that 	it was 	quite 	late 	to be raising 	such 	a
defense, 	especially 	since there was 	no 	indication at 	any other
time 	that the 	District would rely on 	such a defense. 	Bernier,
the Association 	representative who 	knew the 	relevant 	bargaining
history, 	was 	in an automobile accident 	and the Association was
unable 	to 	contact him regarding the 	newly raised defense. 	The
ALJ 	reserved 	a 	ruling on allowing 	the 	contract waiver defense 	and
left 	the 	record 	open to 	allow the Association 	sufficient 	time 	to
decide whether to provide evidence 	concerning Article 	17. 	The
record was 	closed 	after the Association 	failed 	to 	take 	advantage
of 	that 	opportunity.
3The 	last 	executed 	agreement 	between 	the parties 	was
effective from July 	1, 	1986 through June 30, 	1989. 	In 	1987, 	the
parties 	renegotiated that agreement, 	but never 	executed the 	new
agreement due 	to 	a 	dispute over an article which 	is 	irrelevant 	to
the 	issues 	in this 	case. 	The unexecuted agreement, 	by its 	terms,
was 	effective 	from 	some unspecified date through June 	30, 	1989.
This 	agreement has 	apparently been implemented, 	with the
exception of the disputed article. 	In any event, 	the provision
at 	issue here, 	the management rights 	clause, 	was unchanged 	from
the previous 	contract.
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In his proposed decision, 	the ALJ 	concluded that the
contract waiver 	argument 	should 	not be 	considered because 	of
prejudice to 	the Association. 	The ALJ 	found that 	the Association
was 	seriously misled by the District's 	comments 	at 	the 	outset 	of
the hearing. 	The ALJ noted that, 	when the District 	introduced
the 	contract 	into 	evidence, 	he had to elicit the purpose thereof.
Even though 	the ALJ 	mentioned 	that 	no 	amendment 	to 	the 	answer had
been proposed, 	the District did not move to amend 	its 	answer.
The ALJ 	further 	noted that 	the 	contract waiver defense was
unrelated 	to 	any 	evidence 	introduced 	in the Association's 	case-
in-chief. 	Even though he 	afforded the Association an opportunity
to present rebuttal 	evidence, 	the ALJ 	found that the untimely
raising 	of 	the defense may well 	have been prejudicial 	since 	a
potentially 	key witness 	was 	unable 	to 	attend the 	hearing because
of 	an 	injury. 	The ALJ 	observed that parties 	are 	entitled to
reasonable notice of the other 	side's 	claims and defenses, 	and to
a 	litigation process 	founded on principles 	of 	fair play. 	The ALJ
concluded 	that 	fairness 	would 	not 	be 	served by 	entertaining 	the
contract waiver defense.
In 	challenging the ALJ's 	refusal 	to 	consider 	its 	contract
waiver defense, 	the District asserts 	that 	it did nothing to
mislead the Association and, 	in any event, 	the ALJ gave the
Association 	sufficient time to present 	rebuttal 	evidence. 	The
District 	also 	asserts 	that 	its denial 	in the answer of 	the
allegation that 	it 	failed 	to provide 	notice 	and 	an 	opportunity 	to
.
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- -
bargain was 	sufficient 	to put the Association on notice 	that 	the
District might present 	a 	contract waiver defense.
For the reasons 	stated at pages 	19-22 	of 	the proposed
decision, 	we agree with the ALJ 	that he had 	the discretion
whether 	or not 	to 	consider 	the 	District's 	untimely 	affirmative
defense. 	As we 	affirm his 	finding that 	the Association was
prejudiced by 	the 	District's 	untimely 	raising of 	the 	contract
waiver defense, 	we conclude that, 	under the circumstances
presented here, 	the ALJ 	correctly 	exercised that discretion.
In addition, 	we reject the 	argument that the District's
answer 	should have put 	the Association on notice 	of 	the 	contract
waiver defense. 	Simply denying 	that 	a unilateral 	action took
place without 	notice 	and an opportunity 	to 	bargain may provide 	a
clue 	that 	the respondent will 	assert 	a waiver by 	inaction
defense, 	but 	it would not put the 	charging party on notice of 	all
types of waiver defenses. 	The allegation and, 	logically, 	the
District's 	general denial, 	pertain only to the 	circumstances
surrounding 	the 	unilateral 	action 	itself.
We 	also 	agree with the ALJ 	that 	Los Angeles 	Unified 	School
District, 	supra, 	PERB Decision No. 	659 is instructive. 	While
that 	case dealt not with an affirmative defense, 	but with an
untimely motion to amend the 	complaint, 	the principles 	involved
are analogous. 	In Los Angeles, 	as 	in the instant case, 	the ALJ
directly 	asked the parties 	if 	a particular 	issue would be 	in
dispute 	and 	received 	assurances 	that 	it would not. 	Nevertheless,
late 	in the hearing, 	after the respondent, 	relying on the earlier
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assurance, 	had already presented its 	case, 	the charging party
moved to amend the complaint. 	In Los Angeles. 	the Board,
recognizing 	the possibility of prejudice 	to 	the 	opposing party,
erred on the 	side 	of 	caution and affirmed 	the denial 	of 	the
untimely motion. 	We believe a 	similar approach 	is warranted
here. 	Moreover, 	as 	the ALJ noted, 	PERB Regulation 32644.4 which
requires 	that a 	statement 	of 	affirmative defenses 	be 	included 	in
the answer to a 	complaint, 	serves 	to assure a 	fair 	litigation
process, 	particularly in light of the 	fact that the Board's
unfair practice procedures 	does 	not provide 	for a 	formal
discovery process.
Past 	Practice
The 	District 	claims 	that 	the 	contracting out 	of 	additional
work to 	the 	Maple 	Center was 	consistent with 	established past
practice. 	First, 	the District points to the OP itself, 	which has
always 	involved a mix of unit 	and nonunit work. 	The 	District
also points to the Regional Occupational Program 	(ROP), 	parts of
which were 	formerly taught by District teachers, 	but 	are now
taught 	by 	county 	employees.
4PERB 	Regulations 	are 	codified 	at 	California Administrative
Code, 	title 8, 	section 31001 et seq.
5Since we 	affirm the ALJ's 	refusal 	to 	consider 	the
District's 	contract waiver defense, 	it 	is 	unnecessary to discuss
the merits 	of that defense, 	and we decline to do 	so.
14

The District argues that, 	given its past practice, 	the
contracting 	out 	is 	consistent with 	the Westinghouse 	standards
discussed 	by 	the 	Board 	in Oakland 	Unified 	School 	District 	(1983)
PERB Decision No. 	367. 	Pursuant to those 	standards, 	an employer
may 	lawfully 	subcontract where:
(1) 	the recurrent 	subcontracting is motivated
solely by economic considerations; 	(2) 	it
comports 	with 	the 	company's 	traditional
methods 	of 	conducting 	its 	business
operations; 	(3) 	it does not vary
significantly 	from prior 	established
practices; 	(4) 	it does not have a
demonstrable 	adverse 	impact on employees 	in
the unit; 	and 	(5) 	the union had the
opportunity to bargain about 	changes 	in
existing 	subcontracting practices 	at 	general
negotiating meetings.
(Westinghouse Electric 	Corp., 	supra. 	58 LRRM at 	1259.)
Lastly, 	the District urges 	that the Board extend the transfer of
work 	analysis 	contained 	in Eureka 	City 	School 	District 	(1985)
PERB Decision No. 	481 	to contracting out cases. 	In the
District's 	view, 	the 	instant case merely 	involves 	the transfer of
previously 	overlapping duties 	from unit 	to 	nonunit 	employees 	and
should, therefore, be lawful.
While 	the 	Board 	in Oakland did discuss 	the Westinahouse
standards, 	the Board disavowed 	any reliance 	on 	later 	cases
applying 	those 	standards 	because 	they are 	hopelessly
inconsistent. 	In our view, 	the key to the Oakland decision was
the 	Board's 	finding 	that 	a 	significant 	increase 	in 	subcontracting
constituted 	an unlawful 	"change 	in quantity 	and kind," 	even where
6Westinghouse Electric Corp. 	(Mansfield Plant) 	(1965) 	150
NLRB 	1574 	[58 LRRM 1257].
15
'

the 	same type of duties had been contracted out 	in the past. 	It
is 	this 	standard that 	is 	appropriately applied 	in this 	case 	and,
to 	the 	extent 	that 	the ALJ 	relied on Oakland. 	we 	agree with his
analysis.
While 	it 	is 	true that 	the Maple Center had previously
provided a 	significant number of 	services 	to the OP, 	never before
did 	the 	Maple 	Center have 	the 	responsibility 	for 	running 	the 	day-
to-day operation of the program. 	Previously, 	the Maple Center
simply aided 	in training the 	students 	in 	counseling techniques.
As 	a result 	of the 	contracting out at 	issue, 	the Maple Center
staff 	is 	also 	responsible 	for the 	tutoring aspects 	of 	the
program, 	along with a myriad of 	other duties 	formerly performed
by the OP 	teacher. 	The unit work that was 	transferred to 	another
unit member 	(Sharp) 	represents 	only a 	small 	fraction of 	all 	the
duties 	involved 	in running the program. 	The bulk of 	the duties,
including all 	of the day-to-day operations 	of the program, 	are
now performed by Maple Center 	staff. 	When the 	number of 	duties
contracted out 	is 	examined 	in 	isolation, 	it may not 	seem very
large. 	However, 	within the parameters of the OP, 	the duties
contracted out are of 	substantial 	quantity. 	Further, 	within the
parameters 	of the OP, 	the type of duties 	contracted out changed-
dramatically. 	In sum, 	we affirm the ALJ's 	finding that a
unilateral 	change 	in the 	"quantity and kind" 	of 	subcontracting
occurred.7
7 The District 	correctly points 	out 	in its 	exceptions 	that
the ALJ 	erred by 	concluding 	that 	there was 	no 	evidence 	that 	the
ROP was 	once taught, 	at 	least 	in part, 	by unit members and then
16
7

As 	the 	District acknowledges, 	contracting out 	and the
transfer 	of 	unit work are 	analytically distinct 	and 	have 	been
treated differently by the Board. 8 	In our view, 	the Oakland
analysis 	strikes 	the proper balance because 	it provides 	the
employer 	some 	flexibility where 	similar 	subcontracting 	has
occurred previously, 	while outlawing more 	severe 	changes 	that
would have a 	significant 	effect on the unit. 	Consequently, 	we
decline 	to 	extend 	the Eureka 	analysis 	to 	subcontracting.
Remedy
The ALJ's 	proposed remedy requires 	the 	District 	to 	cease 	and
desist 	from unilateral 	subcontracting 	and 	orders 	that 	Kelleher,
or another unit employee, 	if 	she declines, 	be offered the
position 	of 	OP 	teacher beginning with 	the 	first 	academic 	year
after the order becomes 	final. 	This 	is 	contingent upon the
parties 	not 	having 	since 	negotiated 	over 	this 	decision 	to
contract 	out. 	The proposed order also 	requires 	that 	Kelleher be
made whole 	for 	any monetary 	losses 	suffered as 	a 	result 	of 	the
unlawful 	subcontracting. 	The ALJ 	reasoned that 	she was 	entitled
to 	such relief 	because there was 	no 	evidence that 	she would 	not
was 	taken over by the county. 	However, 	the 	error is
nonprejudicial, 	as we agree with the ALJ that, 	in these
circumstances, 	such evidence as 	to a different 	educational
program 	is 	not 	sufficient 	to demonstrate 	a 	general policy
allowing 	the 	District to 	contract 	out unit work.
8While 	"contracting out" 	does 	involve a transfer of unit
work 	in the general 	sense, 	the term refers 	to a transfer of unit
work to 	those 	not 	in the 	employ of 	the 	employer 	in question. 	In
contrast, 	"transfer of work" 	is a term of art referring to the
transfer of 	unit work to 	nonunit 	employees 	of the 	same 	employer.
17

otherwise 	have been offered 	an appointment 	for 	the 	1987-88 	and
1988-89 	academic 	years.
The District insists that, 	if there was a violation,
reinstatement 	and back pay are 	inappropriate 	in this 	case. 	The
District 	relies 	primarily 	on 	San 	Diego 	Community 	College 	District
(1988) PERB Decision No. 	662 	(appeal pending, Civ. 	No. 	D009278),
in which 	the 	Board declined 	to 	order 	reinstatement 	or back pay
where 	the 	illegal 	contracting 	out 	had been preceded 	by 	an
independent 	and 	lawful decision to 	lay off. 	If 	such relief 	is
ordered, 	the 	District 	further 	insists 	that 	Kelleher 	should not be
the 	recipient 	since 	she was 	hired as 	OP 	teacher on an emergency
credential 	and there 	is 	no 	evidence 	that 	she would have 	been
rehired 	or would have been eligible 	for the position. 	The
District 	also 	objects 	to 	the proposed 	order requiring 	that
Kelleher 	or 	another unit 	employee 	be 	offered a 	full-time
appointment when the 	program had been 	reduced 	to 	only 	four
periods.
We 	believe 	that 	the 	District's 	arguments 	with 	regard 	to
San Diego have merit. 	As 	in San Diego, 	in the present case,
there was 	a 	lawful 	decision to 	eliminate part 	of 	the 	educational
program and to 	lay off 	(or not reappoint) 	the 	affected teachers.
The 	later decision to 	revive 	the 	OP 	by unilaterally 	contracting
out most of 	the 	former OP teacher's 	duties 	is much 	like the
contracting out 	of 	certain 	foreign 	language 	courses 	in San Diego
that 	occurred 	after 	an earlier decision to 	stop 	offering 	those
courses. 	In San Diego, 	the Board declined to order reinstatement
18

or back pay because 	it was 	not possible 	to 	speculate 	that the
employer would have 	again offered 	the 	language 	courses 	itself 	if
it 	could not have contracted out the work. 	This was 	due 	to 	the
separate 	nature 	of 	the decision to 	stop 	offering the 	courses 	and
the 	later decision to 	contract out 	the work.
Likewise, 	in the instant case, 	the District had the right to
discontinue 	the 	OP 	and 	that 	decision was 	not 	challenged by 	the
Association. 	The decision to have 	the Maple Center take 	over 	the
day-to-day operation of 	the OP 	in order to 	revive 	the program was
a 	separate decision. 	The District's 	financial 	straits, 	and the
fact 	that 	the Maple Center took on the 	extra duties without
additional 	compensation, 	support the 	finding that the two
decisions were 	independent. 	As 	in San Diego, 	it would unduly
intrude 	upon the 	District's 	managerial prerogatives 	if 	the 	Board
ordered 	reinstatement where 	the 	status 	quo 	ante would have 	been
the 	elimination of 	the unit work due 	to the discontinuance 	of 	an
educational program. 	The 	charging party 	is 	made whole by
issuance of a bargaining order, 	which puts 	it 	in the 	same
position 	it would have been absent 	the 	unlawful 	contracting 	out,
i.e., 	in a position to offer alternatives 	to contracting out 	that
might result 	in the revival 	of unit work lost due to the
- -
nonnegotiable 	decision to 	eliminate part 	of 	the 	educational
program. 	In sum, 	given the sequence of events, 	even if the
District had not 	contracted out the OP duties, 	there 	is 	no
19

S ..
evidence 	that 	Kelleher
g
or 	another 	unit 	member would have 	been
hired to perform those duties. 	Consequently, 	on the 	facts 	of
this 	case, 	we 	find it 	inappropriate to order back pay and
reinstatement.
The ALJ 	concluded 	that, 	since 	the District had 	a potential
contract waiver defense that was waived in this 	instance, 	the
remedy 	should be 	restricted 	to 	this 	particular 	subcontracting
decision. 	As we 	affirm the ALJ's 	decision not 	to 	consider the
contract waiver defense 	in this proceeding, 	and 	in 	light of 	the
fact 	that 	the Association did 	not 	except 	to 	the proposed 	remedy,
we 	agree 	that 	the 	remedy 	should be 	restricted 	to 	the 	decision to
subcontract 	the work of the 	former OP teacher. 	In the absence 	of
the 	make whole 	remedy which we have 	found to be 	inappropriate, 	we
find 	it 	necessary 	to 	modify the 	language 	of 	the proposed 	order 	to
better 	comport with our holding 	in this 	case and to minimize 	the
potential 	for 	compliance disputes.
Generally, 	in order to make the bargaining order meaningful,
it 	is 	necessary to restore the 	status quo ante, 	thereby
approximating the positions 	of 	the parties prior to 	the unlawful
action. 	(Rio Hondo Community College District 	(1983) 	PERB
Decision No. 	292.) 	However, 	the Board has declined to order an
immediate return to the 	status 	quo where there 	is 	the potential
for disruption 	from requiring 	such 	action 	in the 	middle 	of 	the
9Given the 	fact 	that 	Kelleher was 	a 	temporary 	employee who
was 	able 	to 	teach 	in the OP during 	the 	1986-87 	school 	year only
after 	securing an emergency credential, 	even if the unit position
in the OP had not been eliminated, 	there is 	no evidence that 	she
would have been rehired 	for the 	succeeding year.
20
•

school year. 	(See, 	e.g., 	Morgan Hill 	Unified School District
(1985) 	PERB Decision No. 	554, 	at p. 	20.) 	Here, 	requiring the
District 	to 	immediately 	rescind 	its 	agreement with 	the 	Maple
Center 	for the provision of 	the duties 	of 	the 	former OP 	teacher
would undoubtedly 	cause 	great disruption 	in the OP, 	creating not
only 	administrative problems, 	but 	also 	creating hardship 	for 	the
student 	counselors 	and those 	using 	the 	counseling 	services.
Therefore, 	absent prior agreement of the parties 	or exhaustion of
impasse procedures, 	the District 	is 	ordered to rescind or not
renew the 	agreement with 	the 	Maple 	Center 	for 	the provision 	of
the duties 	at issue here. 	However, 	this 	requirement 	shall 	not be
effective until 	the 	end of 	the present 	school 	year.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire record in this 	case, 	and pursuant to 	section
3541.5(c) 	of the Educational Employment Relations Act, 	it is
hereby ORDERED 	that 	the 	Beverly 	Hills 	Unified 	School 	District,
its 	governing board 	and 	its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Denying the Beverly Hills 	Education Association,
CTA/NEA 	(Association) 	rights 	guaranteed 	to 	it by 	the EERA by
unilaterally 	subcontracting 	the 	job duties 	of 	the 	Opportunity
Program 	teacher.
2. 	Failing and refusing to meet 	and negotiate 	in good
faith with 	the 	Association by 	unilaterally 	subcontracting 	the 	job
duties 	of 	the 	Opportunity 	Program teacher.
21

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT: .
1. 	Upon request, 	meet and negotiate with the
Association prior to 	contracting out the 	job duties 	of 	the
Opportunity Program teacher. 	If, 	however, 	subsequent to the
District's 	unlawful 	actions, 	the parties 	have reached agreement
or 	negotiated 	through 	completion 	of 	statutory 	impasse 	procedures
concerning this matter, 	further negotiations 	shall 	not be
required as 	a result of 	this 	Decision.
2. 	Absent prior agreement of 	the parties 	or
negotiation 	through 	the 	completion 	of 	statutory 	impasse
procedures, 	restore the 	status 	quo 	ante by rescinding or not
renewing 	the 	agreement with 	the 	Maple 	Center to perform duties
formerly 	assigned 	to 	the 	Opportunity 	Program teacher. 	However,
such rescission or nonrenewal 	shall 	not 	take 	effect until 	the 	end
of 	the present 	school year.
3. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject 	to 	reconsideration pursuant 	to
PERB 	Regulation 3,2410, 	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 	ensure that 	this 	Notice 	is 	not
reduced 	in size, 	defaced, 	altered or covered by any other
material.
22

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 	Shank 	joined 	in this 	Decision.
. . .:
23

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-2725,
Beverly Hills 	Education Association, 	CTA/NEA v. 	Beverly Hills
Unified School 	District, 	in which all parties had the right to
participate, 	it has 	been found that 	the Beverly Hills 	Unified
School 	District 	(District) 	violated the 	Educational 	Employment
Relations Act 	section 3543.5(b) 	and 	(c). 	The District violated
this 	provision of 	the 	law by unilaterally 	subcontracting 	the 	job
duties 	of 	the Opportunity Program teacher.
As 	a result of this 	conduct, 	we have been ordered 	to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Denying the Beverly Hills 	Education Association,
CTA/NEA 	(Association) 	rights 	guaranteed to 	it by the 	Educational
Employment 	Relations 	Act 	by unilaterally 	subcontracting 	the 	job
duties 	of 	the 	Opportunity Program teacher.
2. 	Failing and refusing to meet 	and negotiate 	in good
faith with 	the Association by 	unilaterally 	subcontracting 	the 	job
duties 	of 	the 	Opportunity Program teacher.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Upon request, 	meet and negotiate with the
Association prior to 	contracting out the 	job duties 	of 	the
Opportunity Program teacher. 	If, 	however, 	subsequent to the
District's unlawful actions, 	the parties 	have reached agreement
or 	negotiated 	through 	completion 	of 	statutory 	impasse 	procedures
concerning this 	matter, 	further negotiations 	shall 	not be
required as 	a result of this 	Decision.
2. 	Absent prior agreement of 	the parties 	or
negotiation 	through 	the 	completion 	of 	statutory 	impasse
procedures, 	restore the 	status 	quo ante by rescinding or not
renewing 	the 	agreement with 	the Maple 	Center to perform duties
formerly 	assigned 	to 	the 	Opportunity 	Program teacher. 	However,

such 	rescission or nonrenewal 	shall 	not 	take 	effect until 	the 	end
of the present 	school year.
Dated: 	BEVERLY HILLS 	UNIFIED 	SCHOOL 	DISTRICT
By_
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
BEVERLY HILLS 	EDUCATION
ASSOCIATION, 	CTA/NEA,
Charging 	P a r t y ,
v .
BEVERLY 	HILLS 	UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. LA-CE-2 72 5
PROPOSED 	DECISION
(3/20/89)
Appearances: 	Rosalind D. 	Wolf, 	Attorney 	for Beverly Hills
Education Association, 	CTA/NEA; 	Liebert, 	Cassidy and Frierson by
Daniel C. 	Cassidy and Sandra O. 	Dennison, 	Attorneys 	for Beverly
Hills 	Unified 	School 	District.
Before Douglas Gallop, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 	9, 	1988, 	Beverly Hills Education Association,
CTA/NEA 	(hereinafter Association) 	filed an unfair practice 	charge
alleging 	that 	Beverly 	Hills 	Unified 	School 	District 	(hereinafter
District) violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act 	(hereinafter EERA),1 by
implementing three unilateral 	changes 	in wages, 	hours 	and working
conditions. 	Prior to the 	issuance of 	a complaint 	in this 	matter,
the Association withdrew one 	of 	the 	unilateral 	change
allegations, 	and the General Counsel of the Public 	Employment
Relations 	Board 	(hereinafter PERB) 	dismissed the 	section
3543.5(a) 	portions 	of the remaining allegations. 	On August 	11,
1The EERA is codified at Government Code section 3540 	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.
)
)
)
)
)
)
)
)
)
)
)
----)

1988, 	the PERB's 	General Counsel 	issued a 	complaint alleging that
the District violated 	section 3543.5(b) 	and 	(c) 	by unilaterally
contracting out 	the 	job duties 	of 	the District's 	Opportunity
Program 	(hereinafter OP) 	teacher, 	and by unilaterally changing
its 	prior practice 	of permitting 	teachers 	employed by 	the
District 	to 	enroll 	their children 	in the 	same 	school 	at which
they worked. 	The 	District 	subsequently 	filed 	an answer 	to 	the
complaint, 	denying the 	commission of unfair practices 	and
alleging affirmative defenses. 	On September 	14, 	1988, 	the
parties 	attended an informal 	settlement conference; 	however, 	the
matter was 	not 	resolved. 	A hearing was 	conducted before 	the
undersigned on November 	18 	and December 	14, 	1988. 	At the
hearing, 	the Association withdrew the unilateral 	change
allegation 	concerning the 	school 	enrollment 	of 	children of 	the
unit teachers, 	based on a 	settlement agreement between the
parties. 	The 	subcontracting 	issue was 	litigated, 	and the parties
filed post-hearing briefs, 	the matter being 	submitted 	for
decision on March 	13, 	1989.
THE 	FACTS
The 	District 	is 	an employer within the meaning of 	section
3540.l(k), 	and operates various public 	schools, 	including Beverly
Hills High School 	(hereinafter BHHS). 	The Association, 	an
employee organization within the meaning of 	section 3540.l(d), 	is
the 	exclusive 	collective bargaining 	representative 	of 	the
District's 	certificated 	employees. 	The 	last executed agreement
between the parties was 	effective by 	its 	terms 	for the period
22

July 	1, 	1986 through June 30, 	1989. 	In 1987, 	the parties
renegotiated that 	agreement, 	but 	never executed the 	new agreement
due 	to 	a dispute over an article 	therein which 	is 	irrelevant 	to
the 	issues presented 	in this 	case. 	The unexecuted agreement 	is
effective 	from an unspecified date 	through June 	30, 	1989.
BHHS has 	offered OP 	for many years, 	since perhaps 	as 	early
as 	1971. 	OP 	is 	a peer counseling program offering academic
tutoring 	and 	counseling 	for 	students with personal 	problems.
Student counselors 	or aides, 	numbering 20-40 	in more recent
years, 	receive course credit 	for providing these 	services 	to
fellow students. 	OP was 	initially part of 	the 	District's Applied
Education Program, 	which 	includes 	the 	Community 	Internship
Program 	(CIP). 	CIP offers 	course credit to 	students who 	serve as
interns 	in 	fields 	of 	specialized 	interest 	to them which 	are 	often
career oriented. 	For many years, 	however, 	OP had operated as 	a
program 	independent 	from Applied 	Education.
The Maple Center 	is 	a 	non-profit 	community mental 	health
facility which 	is 	not operated by the 	District. 	The Maple Center
has 	traditionally provided mental 	health 	services 	to 	the
District, 	including 	counseling 	students with 	substance abuse
problems, 	the operation of the teen brother/teen sister program,
and 	services 	connected with OP. 	While 	the District was 	unable 	to
locate a 	contract 	for 	services 	between it 	and the Maple Center,
the Maple Center has 	been paid 	for 	its 	services 	to 	the 	District
out of the District's budget, 	as 	a yearly line 	item expense. 	The
w	
3

District has 	paid the Maple Center a 	flat rate 	of 	$27,500.00 	for
each of 	the academic 	years 	since 	1985-1986.
The 	District 	had historically 	assigned 	one 	certificated 	unit
employee to operate OP on a day-to-day basis. 	This was 	a 	full-
time position, 	requiring at 	least 	six periods per day in the OP
classroom at BHHS. 	Judith Warren, 	who led OP from 	1976 	to 	1986,
testified 	that her 	job duties 	in that position 	included
recruiting, 	interviewing, 	selecting and training 	student
counselors; 	taking their attendance; 	reviewing their cases,
records 	and quarterly reports; 	issuing their grades 	on a
pass/fail basis; 	advertising the program to 	students who might
wish 	to 	seek counseling 	services; 	interviewing 	students 	seeking
counseling 	and matching 	them with 	student 	counselors; 	discussing
the progress 	of 	students 	in the program with their teachers,
guidance 	counselors 	and other BHHS 	staff; 	and writing course
evaluations. 	OP also engaged the 	services of volunteer 	interns,
some 	of whom were 	selected and 	supervised by Warren, 	while 	others
were 	selected by and were 	serving 	internships 	for 	the Maple
Center. 	The 	interns 	observed 	the program in operation and
participated 	in 	some 	supervision of the 	student counselors. 	In
addition, 	interns 	acted 	in Warren's place when 	she was 	taking her
lunch period 	and 	at 	other times 	when 	she was 	absent 	from the
classroom.
The Maple Center has 	always 	played an important 	role 	in the
OP. 	In 	addition to 	supervising and 	evaluating 	interns 	they
provided 	to 	the program, 	Maple Center personnel were 	responsible
4
4

for 	training and assisting 	the 	student 	counselors 	in the 	non-
academic 	aspects 	of 	their peer work. 	This 	included 	conducting
counseling 	training 	sessions 	for the 	counselors, 	reviewing their
notes 	from 	counseling 	sessions 	and providing 	input 	into 	their
case handling techniques. 	Also, 	in cases where 	students who
sought 	counseling appeared 	to be 	in need of professional 	help,
Maple Center 	staff 	evaluated 	those 	students 	and 	issued
recommendations 	as 	to whether 	student 	counseling 	or professional
help would be the more appropriate 	course 	of 	action.
Warren became a guidance 	counselor 	for the District, 	and was
replaced by 	Susan Kelleher, 	a 	temporary employee 	on an emergency
teaching credential, 	for the 	1986-1987 academic year. 	Kelleher
also worked 	full-time as 	the OP director. 	Apparently due 	to 	her
inexperience 	in the position, 	Kelleher was 	less 	actively involved
in training 	students 	to perform psychological 	counseling 	than
Warren had been, 	although she, 	like Warren, 	attended counseling
training 	sessions 	conducted by Maple Center personnel.
Early in the 	1986-1987 	academic year, 	the District's budget
reserves were 	almost 	entirely depleted, 	and 	it was 	forced to
consider ways 	to balance 	its 	budget. 	A citizens' 	advisory group
was 	established, 	and conducted a 	study of ways 	to cut costs 	in
the District. 	The group then issued a report containing cost-
cutting recommendations, 	a 	copy of which was 	obtained by the
Association. 	Included in the recommendations was, 	"Eliminate
5
5

high school opportunity program 	(1. 	FTE)2 $35,000." 	On March 	10,
1987, 	the District's 	governing board met 	in an open 	session,
which was 	attended by representatives 	of 	the Association. 	At the
meeting, 	the governing board 	adopted many of the 	committee's
recommendations by virtue of a resolution. 	Thus, 	the resolution
"reduces and/or discontinues" 	several 	"kinds of 	services,"
including the 	"High 	School 	Opportunity Program 	- 	1.0 	FTE." 	It 	is
undisputed 	that 	OP 	had 	historically 	been 	assigned 	1.0 	FTE.
Association representative Kenneth 	(Gene) 	Eaves 	credibly
testified that 	no mention was 	made 	at the meeting of 	continuing
OP, 	and that his 	impression was 	that 	it was being discontinued.
Several 	classified 	and 	certificated 	employees 	were 	sent
layoff 	or notice 	of 	non-reappointment 	letters. 	Kelleher's 	notice
of non-reappointment is dated March 2, 	1987, 	prior to the March
10 	resolution, 	but was apparently not 	sent to her until after the
resolution, 	and the District agrees 	that the reason for her
notice of non-reappointment was 	the budget crisis. 	In March, 	the
parties were meeting to renegotiate the 	1986 	agreement. 	The
parties 	discussed the 	layoffs 	during those 	negotiations, 	and 	the
District 	offered to negotiate 	their 	impact. 	Eaves 	credibly
testified 	that 	no 	mention was 	made 	of 	continuing OP 	during
2"FTE" 	stands 	for 	"full-time equivalent," 	and means the
number of 	staff positions 	at a 	given 	salary used to operate 	a
program. 	For the District, 	the FTE 	salary level 	is 	$35,000 per
year.
66

negotiations, 	and that he believed the program had been
discontinued.
Sol Levine, 	Principal of BHHS, 	testified that after the
March 	10, 	1987 resolution was passed, 	he investigated ways to
continue operating OP, 	and discussed this with the governing
board. 	He decided that 	if Maple Center personnel 	could assume
some 	of 	the 	duties 	previously performed by 	the 	certificated 	staff
member, 	the program could be 	continued as 	part of 	the Applied
Education Program, 	under the 	supervision of Rhoda Sharp, 	the
Director. 	Sharp 	is 	a certificated unit employee. 	The governing
board took no 	formal 	action on his 	decision. 	With respect to 	the
role 	that Maple Center personnel would now have 	in the OP, 	Levine
testified:
What 	I 	ultimately decided to do was 	to have
the arrangement that we presently have, 	which
was 	to have the Maple Center play a major
part 	in running and operating 	the 	Opportunity
Program.
Levine 	subsequently 	contacted 	Maple 	Center 	representatives
and 	discussed 	the 	availability of 	their 	staff 	to provide
additional 	services 	to 	the program. 	The Maple Center agreed 	to
furnish 	a 	staff 	member and an 	intern to provide these 	services 	to
the program, 	but 	informed Levine 	that they would only be
3The Association did not grieve 	the 	layoffs 	or notices 	of
non-reappointment. 	Instead, 	some of the employees, 	but not
Kelleher, 	filed and unsuccessfully 	litigated challenges 	to 	their
terminations 	from employment pursuant 	to 	Education Code 	section
44949. 	The Association represented the 	employees 	in this 	action.
All 	of 	the 	employees, 	with the exception of one who obtained
employment 	elsewhere, 	have 	since been reinstated by the District,
including Kelleher, 	who 	is 	now employed in a classified position.
7
'
7

available 	four periods per day. 	The Maple Center did not
request, 	and did not receive, 	any additional 	funds 	for providing
these 	additional 	services. 	Levine 	and Sharp discussed placing OP
under 	the Applied 	Education 	Program. 	Upon being 	informed 	of 	the
role 	that Maple 	Center personnel 	would 	now play 	in the 	operation
of OP, 	Sharp 	told Levine 	that 	she 	could easily assume 	the
responsibilities 	of 	overall 	supervision 	for 	the program 	in
addition to her other duties.
Eaves 	credibly 	testified 	that 	the 	first 	time 	that 	he 	learned
that 	OP would be 	offered under this 	staffing arrangement was 	at
the beginning of the 	1987-1988 	school year, 	when Betty Nichols, 	a
certificated employee and an Association representative, 	so
informed him. 	Eaves 	questioned Bob French, 	the District's
superintendent, 	concerning the program's 	status, 	and on
October 	15, 	1987, 	French responded by attaching a memorandum from
Levine dated September 22, 	which outlined the changes 	in the
program. 	In a letter to French dated November 	17, 	Jacques
Bernier, 	a consultant to the Association, 	protested, 	inter alia,
the removal 	of 	the 	OP 	teacher position 	from the bargaining unit,
and demanded that a unit 	employee be assigned to 	it. 	Bernier
further demanded 	that 	the 	District 	negotiate 	any 	intended
displacement of 	OP bargaining unit work. 	The 	District 	never
responded to 	the 	letter, 	and continues 	to operate OP with Maple
Center personnel 	performing 	virtually 	all 	day-to-day 	functions.
While 	Sharp has 	overall responsibility for OP, 	she does 	not
participate 	in 	its 	day-to-day operation. 	That 	function was
8

performed by Maple Center personnel 	and 	an 	intern 	in 	1987-1988,
and 	there 	is 	no 	intern assigned to 	the program during 	the 	current
academic 	year. 	Maple Center personnel 	and/or 	interns 	have
continued to perform the 	functions 	they did 	in the past, 	and have
additionally 	assumed 	most 	of 	the 	responsibilities 	previously
performed by the OP 	teacher. 	Sharp now assigns pass/fail 	grades
to 	student 	interns 	in the program, 	but this 	is primarily based on
the recommendations 	made by the Maple Center staff member, 	who
bases 	those 	recommendations 	primarily on attendance 	and
participation by the 	student 	interns. 	Since the Maple 	Center
staff 	is 	less 	familiar with the District's 	staff 	than were 	the OP
teachers, 	Sharp has 	assumed 	some of the 	liaison duties 	between
the 	students 	seeking 	counseling and the 	District's 	staff. 	Sharp
meets with 	student 	counselors 	about 	four times per 	semester 	to
discuss 	their progress.
Although OP operates 	for two or three 	fewer periods 	than 	it
had 	in the past, 	it appears 	to be providing the 	same type and
level 	of 	services 	as 	it did when an OP teacher was 	assigned to
it. 	Thus, 	Levine testified that other than the changes 	in
program leadership, 	the 	services provided are unchanged. 	In
1987-1988, 	between 20 and 25 	student interns participated in OP,
and 	there was 	apparently 	no 	significant 	reduction 	in the 	number
of 	students 	seeking 	counseling. 	In addition to their 	services 	to
OP, 	Maple Center personnel 	now operate 	the 	teen brother/teen
sister program out 	of the 	same 	classroom, 	in part during 	school
9

hours. 	In the past, 	the teen brother/teen sister program
operated outside 	school 	hours.
The 	record 	shows 	that the 	District 	offers 	students 	the
opportunity 	to 	enroll 	in the 	Regional 	Occupational 	Program
(hereinafter ROP). 	ROP offers 	career-oriented courses 	in such
fields 	as 	computer accounting and technology, 	community
counseling, 	interior design, 	legal assistant work, 	office 	skills
and television production. 	These 	courses 	are 	taught by ROP 	staff
members, 	who are employed by Los Angeles County. 	Students obtain
course 	credit 	for ROP courses, 	many of which are 	conducted during
normal 	school hours.
THE 	ISSUES
1. 	Did the District unilaterally 	contract 	out bargaining
unit 	work?
2. 	If 	so, 	do any of the District's 	affirmative defenses
preclude 	finding 	a 	violation?
ANALYSIS AND CONCLUSIONS 	OF 	LAW
The 	Unilateral Change:
The 	complaint 	alleges 	that 	the 	District 	"contracted out" 	the
job duties 	of the OP teacher. 	The PERB, 	following the United
States 	Supreme Court's 	ruling 	in First National 	Maintenance
Corporation v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM 2705] 	and the
National 	Labor Relations 	Board's 	(hereinafter NLRB) 	decision 	in
Otis 	Elevator Company, 	a wholly owned 	subsidiary of 	United
Technologies (1984) 	269 	NLRB 	891 	[116 	LRRM 	1075], 	has 	held 	that
subcontracting decisions which are based, 	at least 	in part, 	on
10

labor costs 	are negotiable, 	provided that the decision is
otherwise 	amenable 	to collective bargaining. 	State 	of California
(Department of Personnel Administration) 	(1987) 	PERB Decision
No. 	648-S. 	In Arcohe Union School District 	(1983) 	PERB Decision
No. 	360, 	the PERB found that fiscal management, 	in itself, 	is not
a 	management 	prerogative 	removing 	a 	subcontracting 	decision 	from
the 	scope of bargaining, 	but that a decision to reduce the 	level
of 	services provided by a 	school district 	is 	a matter within the
district's 	prerogative.
In Fremont Union High School 	District 	(1987) 	PERB Decision
No. 	651, 	the PERB adopted United States 	Supreme Court Justice
Stewart's definition of 	the term, 	"subcontracting" 	from his
concurring 	opinion 	in Fibreboard 	Paper 	Products 	Corporation 	v.
NLRB 	(1964) 	379 U.S. 	203 	[57 LRRM 2609], which defined
subcontracting as 	the:
. 	. 	. 	substitution of one group of workers
for another to perform the 	same task 	in the
same 	[location] 	under the ultimate control of
the 	same employer.
In Fremont, the 	PERB 	concluded that 	a 	lease agreement 	for the
operation of 	a 	summer 	school 	program did not amount 	to 	a 	transfer
or 	subcontract of 	unit work because 	the district 	retained no
control 	over the operation of 	the 	summer 	school, 	and could not be
said to 	have been offering that 	service.
The 	PERB also 	examines 	the nature and 	extent 	of 	a district's
subcontract or transfer of unit work, 	and its past practice, 	in
order to determine whether the conduct 	is 	unlawful. 	In Oakland
11

Unified School District 	(1983) 	PERB Decision No. 	367, 	the PERB
held 	unlawful 	the 	district's 	unilateral 	subcontract 	of
secretarial 	and clerical 	services, 	even though the association
had 	acquiesced 	to 	some 	subcontracting 	of 	that work 	in the past,
on the basis 	that the 	level 	of work being 	subcontracted had
dramatically 	increased. 	In contrast, 	in California 	State
University. 	San Diego 	(1989) 	PERB Decision No. 	718-H, 	the PERB
found that 	no 	unlawful 	transfer 	of 	unit work had 	taken place,
where 	the 	job duties 	in question were performed on a 	sporadic
basis, 	no 	layoffs 	took place 	and the 	association had acquiesced
to 	the 	same 	type 	of work being performed by members 	of 	another
bargaining unit. 	The PERB 	noted that 	in Eureka City Schools
District 	(1985) 	PERB Decision No. 	481, 	it had held that where a
non-bargaining 	unit 	employee 	historically performed 	overlapping
duties with a bargaining unit member, 	the district did not
unlawfully 	transfer 	unit work merely by 	assigning 	more 	of 	the
overlapping duties 	to the non-unit employee. 	In Eureka. 	however,
the 	PERB 	did 	find a 	violation where 	the district 	unilaterally
reduced the hours 	of 	the bargaining unit employee, 	even though
the district 	contended that 	it did 	so because 	it was 	reducing the
level 	of 	the 	services performed by that employee.
Based on the 	foregoing, 	it 	is 	concluded that the District
has 	subcontracted a 	substantial portion of 	the OP 	teacher's 	job
duties 	to Maple Center personnel. 	It 	is 	clear that 	Sharp's
duties with respect to the program are 	largely ministerial, 	and
that 	the 	bulk of 	the 	actual 	instruction and 	supervision are
12

performed by Maple Center personnel, 	who previously 	served
primarily a 	training 	function 	for 	the 	counseling 	aspects 	of 	the
program. 	While 	the Maple Center 	is 	not being paid any additional
funds 	for these new services, 	it 	is 	still under at least a verbal
or 	implied 	contract 	to provide 	such 	services 	as part of 	its 	line
item 	fee paid by the District. 	Even 	if 	the Maple Center were
volunteering its 	services, 	however, 	the 	same rules would be
applied 	as 	in 	subcontracting or transfer of unit work cases,
because 	the 	effect 	on unit 	employees would also be 	the 	same. 	See
Roseville Joint 	Union High School 	District 	(1986) 	PERB Decision
No. 580.
It 	is 	further 	concluded that by 	contracting out 	this 	unit
work, 	the District changed a past practice. 	The record reflects
that the District, 	for many years, 	assigned a certificated
employee to 	select, 	supervise, 	assist and evaluate the 	student
interns, 	and to 	coordinate and advertise the program to the
students and staff. 	While those duties, 	to some extent, 	were
intermingled with 	the 	services 	provided 	by the Maple 	Center,
there was 	a 	sufficient delineation of 	such duties 	to 	find a
change 	in past practice. 	Furthermore, 	unlike 	in Eureka, supra
and California 	State University. 	San Diego, 	supra, 	the
subcontracted 	duties 	herein were 	neither 	sporadic 	nor
insignificant, 	but instead were permanent, 	substantial and
resulted 	in the 	loss 	of a unit position. 	The District argues
that there was 	no 	change 	in past practice because 	ROP 	courses
have been conducted by persons 	not 	employed by the 	District.
13

This 	argument is not convincing, 	because the ROP 	is 	a different
educational program, 	and because there 	is 	no evidence that unit
employees 	have 	ever 	conducted ROP 	courses.
Additionally, 	it 	is 	concluded that this 	subcontracting
decision was within the 	scope 	of 	representation. 	There 	is 	no
doubt 	that 	the decision to 	reinstitute 	the program with 	services
almost 	exclusively provided by 	Maple 	Center personnel 	was
motivated primarily, 	if not exclusively, 	by labor costs. 	This 	is
exemplified by the budget 	resolution and recommendations, 	which
defined 	the 	cost 	savings 	for 	eliminating 	or reducing 	the 	various
named programs 	in terms 	of 	FTE.
The 	evidence 	establishes 	that 	this was 	not a decision by the
District to cease providing services. 	To the contrary, 	the
District 	still 	offers 	OP 	to 	its 	students 	at 	BHHS 	and retains
ultimate 	control 	over the 	operation of 	the program. 	While 	the
program 	is 	now offered 	for 	fewer hours 	per day 	than previously,
it 	is 	questionable whether there has 	been any tangible 	reduction
in 	services, 	inasmuch as 	enrollment of 	student 	counselors 	appears
to be constant, 	the content of the 	services 	is basically the 	same
and 	there 	is 	no 	evidence 	that 	the program is 	not open to 	all
students 	seeking counseling, 	as 	it was 	in the past. 	Moreover,
even if 	there were a partial reduction in services, 	it would be
concluded that 	the 	contracting 	out 	of 	those 	OP 	services 	remaining
would be 	considered within the 	scope 	of 	the Association's
representative 	functions.
.. .P..
14

It 	is 	further concluded that the decision to use Maple
Center personnel 	to perform additional 	OP 	duties 	was 	amenable 	to
collective bargaining. 	Quite possibly, 	the Association could
have 	convinced the District to make cuts 	in other labor costs, 	to
have reduced the O.P. 	position to part-time,' or made other
proposals within the Association's 	scope 	of 	representation.
While 	Levine 	did 	not 	specify 	the 	date when he 	decided 	to 	make
these changes 	in the program, 	it appears 	that the District had
ample time 	to 	give notice 	to 	the Association and to bargain over
the decision prior to the 	commencement of 	the 	1987-1988 	school
year.
The 	evidence 	establishes 	that 	the decision to have OP 	run,
in effect, 	by Maple Center personnel was 	made without prior
notice to the Association, 	and that the decision was 	implemented
without notice or, 	at least, 	without adequate notice to afford
the Association the 	opportunity to meaningfully bargain. 	The
evidence 	further 	shows 	that when the Association requested
bargaining, 	after implementation, 	the District did not respond,
which is tantamount to a refusal.
Therefore, 	unless one or more of the District's 	affirmative
defenses has merit, 	it is 	concluded that the District's 	conduct
herein violated 	the 	EERA.
Affirmative 	Defenses:
In 	its 	answer, 	the District alleged 	separate affirmative
4The District, 	in practice, 	employs 	some of its certificated
staff on a part-time basis.
15

defenses 	to 	the 	subcontracting and 	the now-settled 	enrollment 	of
children allegations 	in the complaint. 	With respect to the
subcontracting allegation, 	the 	answer raised two 	affirmative
defenses, 	both of which state that the allegations, 	on their
face, 	fail to establish 	sufficient 	facts 	to establish a
violation. 	With respect to the enrollment allegation, 	the
District alleged the above-cited affirmative defense 	(twice), 	and
additionally 	alleged 	scope 	of 	representation and 	unspecified
waiver defenses.
Near the outset of the hearing, 	the undersigned questioned
the parties 	concerning the 	status 	and production of 	any
collective 	bargaining 	agreement 	between 	them and 	stated 	that 	it
appeared 	that 	the 	agreement was 	highly 	relevant 	to 	the 	issues
herein. 	Shortly thereafter, 	the District's 	attorney gave an
opening 	statement alleging, 	with respect to waiver, 	that the
Association had waived 	its 	right 	to 	negotiate when 	it did 	not
respond to the District's 	notice of 	the 	layoffs, 	including
Kelleher's 	notice of non-reappointment, 	and 	its 	offer to bargain
the effects 	thereof. 	In response, 	the Association's 	attorney
objected 	to 	the presentation of 	any 	evidence 	regarding 	notice 	of
the 	layoffs 	on the basis 	that 	the District had not 	raised waiver
as 	an affirmative defense 	to the 	subcontracting allegation,
citing 	the 	PERB's 	decision 	in Morgan Hill 	Unified 	School 	District
(1985) 	PERB Decision No. 	554. 	Counsel for the District responded
that by denying 	in 	its 	answer that 	the Association was 	not 	given
notice 	or the 	opportunity to 	bargain 	concerning the
16

subcontracting decision, 	the 	District had properly 	raised 	the
issue 	of whether the 	layoff/non-appointment 	notices 	constituted 	a
defense. 	A ruling on the District's 	ability to raise 	this
defense was 	reserved, 	and the 	above-cited evidence 	concerning the
layoff 	notices 	and offer 	to bargain the 	effects 	thereof was
received.
At the 	conclusion of 	the Association's 	case-in-chief, 	the
District moved to dismiss 	the 	charge, 	on the basis 	that the
Association had not 	established a prima 	facie 	case. 	Counsel 	for
the District, 	in support of the motion, 	stated that there was no
subcontract 	because 	the 	Maple 	Center had 	received 	no 	additional
funds 	and because 	a 	certificated 	employee was 	still 	overseeing
the program. 	In addition, 	counsel again raised, 	as a defense,
that 	the notices 	and 	failure to bargain 	effects 	in response 	to
the 	District's 	offer 	constituted 	a waiver by the Association.
The motion to dismiss was 	denied.
Bernier, 	the Association's consultant, 	and an important
decision-maker in this matter, 	was 	not present during the 	second
day of 	the hearing, 	reportedly due 	to 	injuries 	he 	suffered 	in an
automobile 	accident. 	The Association proceeded 	in his 	absence.
At the 	close of 	its 	case-in-chief, 	the District recalled 	its
assistant 	superintendent of personnel, 	and through him,
introduced the current, 	disputed agreement of the parties, 	with
specific reference to Article 	17, 	"District Rights." 	Article 	17,
in pertinent part, 	reads as follows:
17

ARTICLE 	XVII
DISTRICT 	RIGHTS
Section 1.
The 	District 	shall 	have within 	its 	complete
discretion, 	in compliance with the Rodda Act,
Article X, 	except 	as 	explicitly described 	in
this Agreement, 	all of the rights normally-
possessed by a public 	school 	District 	in the
State of California. 	Said rights, 	powers,
and authorities 	include but are 	not 	limited
to the 	[right] 	. . . 	to contract out work.
Section 2.
The exercise of the foregoing rights, 	powers,
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 	specific 	and 	expressed
terms 	of 	this Agreement and negotiated
policies 	stated 	in Article X, 	definition of a
"grievance", 	and then only to the extent 	such
specific 	and expressed terms 	of 	this
Agreement 	and 	negotiated policies 	stated 	in
Article X, 	definition of a 	"grievance", 	and
then only to 	the 	extent 	such 	specific 	and
expressed terms 	are 	in 	conformance with 	the
law.
Section 3.
The 	exercise of 	any right 	in a particular
manner, 	or the non-exercise of any such
right, 	shall not be deemed a waiver or
limitation of 	the District's 	right or
preclude 	the 	District 	from 	exercising 	such
right 	in a different manner.
The 	above-cited 	language 	also 	appeared 	in the 	agreement 	in 	effect
prior to 	the 	1987 	negotiations.
Upon the presentation of this 	evidence, 	the District was
asked 	if Article 	17 was being raised as 	an affirmative defense.
The District's 	representative 	stated that 	it was, 	to which the
undersigned responded that 	it was 	quite 	late 	to 	be 	asserting 	such
18

a defense, 	particularly 	since the potential 	relevance of 	the
agreement had been raised at 	the outset of 	the hearing, 	with 	no
indication at that, 	or any other time, 	that the District would
rely on this defense.
The Association attempted 	to 	contact 	Bernier 	in order 	to
decide whether to present rebuttal 	evidence, 	and what other
response to make, 	but was unable to locate him. 	As 	the result,
the 	record was 	left 	open 	in order to 	afford 	the Association
sufficient 	time 	to decide whether 	to respond to 	the 	evidence
concerning Article 	17, 	it being assumed that 	in the absence of
such evidence, 	it had none to present on this 	issue beyond the
language of the agreement 	itself. 	At the 	same time, 	a ruling was
reserved as 	to whether to 	consider this 	defense. 	Hearing nothing
from the. Association, 	the record was 	subsequently closed.
PERB regulation 32644 reads, 	in pertinent part:
32644. 	Answer.
* * *
(b) 	The answer shall be in writing, 	signed
by the party or 	its 	agent 	and 	contain the
following 	information:
* * *
(6) 	A statement of 	any affirmative defense;
* * *
PERB regulation 	32645 	reads:
32645. 	Non-preiudicial Error. 	The Board may
disregard 	any 	error 	or defect 	in the 	original
or amended charge, 	complaint, 	answer or other
pleading which does 	not 	affect 	the
-
19

substantial rights 	of the parties. 	(Emphasis 	added.)
Waiver 	is 	an affirmative defense which 	is 	itself waived
unless 	raised 	in a timely manner. 	Morgan Hill 	Unified 	School
District 	(1985) 	PERB Decision No. 	554. 	The question becomes,
when does waiver have to be 	raised 	as 	a defense 	in order to be
timely? 	The Association's 	reliance 	on Morgan Hill 	to 	establish
that waiver must be raised in the answer is 	incorrect. 	In Morgan
Hill. 	the PERB refused to consider a waiver defense because 	it
had never been raised by the district. 	In Brawley 	Union High
School District 	(1982) 	PERB Decision No. 	266, 	the PERB again held
that 	the 	failure 	to raise affirmative defenses 	at any time
constituted 	a waiver of 	such defenses. 	In Colusa 	Unified 	School
District 	(1983) 	PERB Decision No. 	296, 	the PERB refused to
consider 	an affirmative defense 	raised 	for the 	first 	time 	in the
district's 	exceptions 	stating, 	"It 	is 	a well-established rule of
administrative 	appellate procedure 	that 	a 	matter never raised
before 	the 	trial 	judge 	is 	not properly reviewed by the 	appellate
tribunal on appeal."
The Association's 	argument 	that 	affirmative 	defenses 	must 	be
raised 	in the answer 	is 	best 	supported by the PERB's 	decision in
Walnut Valley Unified School 	District 	(1983) 	PERB Decision
No. 	289, 	in which the PERB affirmed a hearing officer's 	refusal
to 	consider a 	statute of 	limitations 	defense because 	it was 	not
20

raised in the answer.5 It 	is 	noted, 	however, 	that with respect
to the 	statute of 	limitations 	and deferral, 	PERB regulation 	32646
separately requires 	a respondent to 	raise 	these matters 	in the
answer, 	and to move to dismiss the complaint. 	In addition, 	the
PERB has 	overruled Walnut Valley, 	supra 	and 	found 	that both 	the
statute 	of 	limitations 	and deferral 	are 	jurisdictional 	matters,
and 	need 	not be 	raised by respondents 	before they 	can be
considered. 	California State University. 	San Diego, 	supra: 	Lake
Elsinore School District 	(1987) 	PERB Decision No. 	646.
In Los Angeles 	Unified School 	District 	(1988) 	PERB Decision
No. 	659, 	the PERB upheld the refusal of an administrative 	law
judge 	(ALJ) 	to grant the charging parties' 	motion to amend the
complaint during the hearing. 	The 	PERB had dismissed the
allegation 	in question prior to 	issuing the 	complaint, 	and 	the
charging parties 	had 	initially 	introduced 	evidence 	thereon 	for
background purposes. 	When the 	charging parties 	moved 	to 	amend
the 	complaint to reinstate 	the 	allegation, 	the ALJ denied the
motion, 	stating that while 	it 	"appeared" 	that the matter was
fully 	litigated, 	the 	respondent might have proceeded differently
if 	the 	allegation had been timely raised. 	The PERB upheld this
ruling, 	stating that 	the 	respondent may have been prejudiced by
the 	charging parties' 	initial denial 	that they were 	seeking to
establish an independent violation. 	Based on the 	foregoing, 	it
5See also Fresno Unified School District, 	et al. 	(1982) 	PERB
Decision No. 	208, 	where the PERB accepted a 	statute of
limitations 	defense 	contained 	in an answer 	that was 	untimely
filed.
21

is 	concluded that the consideration of waiver, 	as 	an affirmative
defense not raised by the answer, 	is discretionary within the
parameters 	of 	PERB regulation 32645.
The District's defense, 	that the Association waived 	its
bargaining rights 	because 	it was 	given notice of 	the
layoffs/notice of non-reappointment, 	will be considered. 	The
District 	stated 	this 	defense 	in 	its 	opening 	statement 	near 	to 	the
outset 	of 	the hearing, 	the matter was 	fully 	litigated and 	the
Association was 	in no way misled. 	In addition, 	in agreement with
the District, 	its denial 	of the complaint allegation that the
subcontracting 	took place without 	notice 	should have 	also put 	the
Association on notice of 	this 	defense.
The District's 	defense 	of waiver by virtue of Article 	17
will not be considered. 	By its 	conduct, 	the District 	seriously
misled the Association as 	to the raising of this defense, 	and
even when it 	finally put on evidence pertaining to the 	issue, 	the
undersigned 	had 	to 	elicit 	the purpose 	thereof 	from 	Respondent's
counsel. 	Even after 	it was 	noted that no amendment to the answer
had been proposed, 	the 	District proposed no 	such amendment.6
Although 	the Association was 	afforded 	the 	opportunity 	to present
rebuttal 	evidence, 	its ability to do so may well have been
prejudiced by the timing of 	the defense, 	particularly 	since 	one
6It 	is 	further noted that the Article 	17 defense was 	totally
unrelated 	to 	any 	evidence presented by 	the Association 	in 	its
case-in-chief. 	Thus, 	the District was 	fully in possession of the
facts 	needed to raise the defense prior to, 	or at 	least earlier
in the hearing, 	and was 	not responding to 	any new matter raised
by the Association.
22

of 	its 	chief 	strategists was 	unable to attend the hearing due to
an injury. 	In any event, 	while 	the PERB does 	not generally
require 	the parties 	to 	submit to pre-hearing discovery, 	they are
entitled to 	reasonable 	notice 	as 	to the other 	side's 	claims 	and
defenses, 	and to a 	litigation process 	founded on principles 	of
fair play. 	In other words, 	litigation tactics aside, 	a party is
not obligated to undergo a 	"trial by ambush" 	in PERB proceedings.
Therefore, 	it 	is 	concluded that the District has waived this
defense 	for 	this 	subcontracting decision.
With respect to the waiver by prior notice defense, 	it 	is
concluded 	that 	the 	notice 	of 	Kelleher's 	non-reappointment 	and
offer to 	bargain thereon did 	not 	constitute 	notice 	that 	OP would
be reinstated 	(or, 	as the District would have it, 	continued) 	with
Maple 	Center personnel 	assuming 	total 	day-to-day 	operational
control. 	It 	is 	clear that the Association's 	representatives
reasonably believed that OP was 	going to be discontinued, 	and the
evidence 	supports the finding that, 	in fact, 	the program was
discontinued until 	Levine 	formulated his plan to 	revive 	it. 	The
decision to discontinue the program, 	of course, 	had fundamentally
different bargaining 	consequences 	than the decision to 	change 	the
staffing of the program. 	The 	evidence 	establishes 	that the
Association was 	not 	informed of 	the 	change 	in 	staffing OP until
after 	it was 	implemented, 	and that 	its 	subsequent bargaining
demand was 	ignored. 	As 	the result, 	this waiver defense 	is
without merit. 	See Oakland Unified School District, 	supra. 	at
23

p. 	5; 	Solano County Community College District 	(1983) 	PERB
Decision No. 3 67.
It 	is 	therefore 	concluded that the District violated 	section
3543.5(b) 	and 	(c) 	by unilaterally 	subcontracting out bargaining
unit work 	in the 	Opportunity Program.
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.
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
N6. 	625. 	While it has been found herein that the District 	failed
to timely raise Article 	17 	as a defense in this 	action, 	the
District 	did present 	evidence 	that 	the parties 	have 	since 	entered
into 	a 	renegotiated 	agreement which may 	cover the 	subject 	of
subcontracting. 	Although the 	District has waived this 	defense
24

for this proceeding, 	it 	cannot reasonably be concluded that 	the
defense 	is 	forever waived with respect 	to 	all 	future
subcontracting decisions, 	particularly in light of 	the
renegotiated contract. 	Therefore, 	the remedy will be 	limited to
this 	specific 	subcontracting decision, 	until the violation 	is
remedied.
Since 	there 	is 	no 	evidence 	that 	Susan Kelleher would not
have 	otherwise 	been offered 	an appointment 	for the 	1987-1988 	or
1988-1989 academic years, 	it 	is 	appropriate that 	she be made
whole 	for any monetary 	losses 	she 	suffered 	for those years.
Kelleher's 	gross 	back pay 	shall 	be 	calculated on the basis 	of 	a
full-time 	appointment to teach OP 	for the 	1987-1988 	and
1988-1989 	academic years.7 It 	is 	also appropriate that, 	unless
the 	District has 	afforded 	the Association an adequate
opportunity 	to 	bargain 	concerning 	this 	subcontracting 	decision,
Kelleher, 	or if she refuses, 	another unit employee, 	be offered
the OP 	teacher position on a 	full-time basis 	commencing the 	first
academic year after this Order becomes 	final. 	The District,
under this 	Order, 	may hire a new unit 	employee 	for the position,
if Kelleher declines 	the offer to teach the course.
It 	is 	appropriate that 	the 	District be 	required to post 	a
notice 	incorporating the terms of this order. 	It is 	important,
7A 	full-time appointment 	is 	the 	appropriate basis 	for back
pay 	even though OP has 	operated on a part-time basis 	in those
years. 	Had the Association been given appropriate notice and the
opportunity to bargain 	it might have been able 	to negotiate
enough 	savings 	in 	labor 	costs 	elsewhere 	to have 	enabled the
District to continue OP on its previous 	schedule.
25

however, 	that 	employees 	not be misled as 	to the District's 	future
'subcontracting decisions 	inasmuch 	as 	the 	District 	may be 	entitled
to raise Article 	17 as 	a defense to 	such future decisions.
Therefore, 	the notice will be 	limited to the 	specific violation
alleged herein, 	and with respect to 	future 	subcontracting, 	will
be 	conditioned upon 	contractual 	or other 	agreement by 	the parties
granting discretion to the District 	in 	such decisions.
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 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 Beverly Hills Unified
School District, 	its governing board and its representatives:
26

A. 	CEASE AND DESIST FROM:
1. 	Denying the Beverly Hills 	Education Association,
CTA/NEA 	(hereinafter Association), 	rights guaranteed to 	it by the
Educational 	Employment 	Relations Act 	by unilaterally
subcontracting the 	job duties 	of 	the Opportunity Program teacher
for the 	1987-1988 	and 	1988-1989 	academic 	years.
2. 	Failing and refusing to meet 	and negotiate 	in good
faith with 	the Association 	by 	unilaterally 	subcontracting 	the 	job
duties 	of 	the 	Opportunity Program teacher 	for the 	1987-1988 	and
1988-1989 	academic years.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Unless the District and the Association have agreed, 	by
contract or otherwise, 	that 	subcontracting decisions 	are within
the 	District's 	sole discretion, 	offer to meet and negotiate 	in
good 	faith with 	the Association prior 	to 	implementing 	any
subcontracts 	for the performance 	of work now performed by
certificated unit members.
2. 	Unless 	the 	District has 	afforded the Association an
adequate 	opportunity 	to bargain concerning 	its 	decision to
subcontract 	the 	job duties 	of 	the 	Opportunity 	Program teacher,
offer Susan Kelleher, 	or if 	she declines, 	another certificated
unit 	employee, 	the position of Opportunity Class 	teacher
commencing with 	the 	first 	academic 	year after 	this 	Order becomes
final.
27

3. 	Make 	Susan Kelleher whole 	for any monetary 	losses 	she
suffered as 	the result of 	the District's 	subcontract 	for the
performance 	of Opportunity Class 	teacher duties 	during the 	1987-
1988 	and 	1988-1989 	academic 	years. 	Such payment 	shall 	include
interest at the rate of 	10 percent per annum.
4. 	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.
5. 	Upon issuance of this Decision, 	written notification of
the 	actions 	taken to 	comply with this 	Order 	shall be made 	to 	the
Acting 	Los 	Angeles 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accordance with her 	instructions.
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
Code, 	title 8, 	part III, 	section 32300. 	A document is considered
28

"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: 	March 20, 	1989
Douglas Gallop
Administrative 	Law Judge
29