Lodi Unified School District (PERB 0883E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	LODI 	CHAPTER
#77,
Charging 	Party,
V.
LODI 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Case No. 	S-CE-1373
PERB Decision No. 	883
May 30, 	1991
Appearances: 	California 	School 	Employees Association by
Burton E. 	Gray, 	Field Representative, 	for California School
Employees Association and its Lodi Chapter #77; 	Pinnell, 	Kingsley
& 	Larsen by Cynthia Convey, 	Attorney, 	for Lodi 	Unified School
District.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION AND 	ORDER
CAMILLI, 	Member: 	This case is before the Public Employment
Relations 	Board 	(Board) 	on appeal 	by the California 	School
Employees Association and 	its 	Lodi Chapter #77 	(CSEA) 	to a Board
agent's partial dismissal 	(attached hereto) 	of 	its 	charge that
the 	Lodi 	Unified School 	District 	(District) 	violated 	section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA).1 Specifically, 	CSEA alleges 	that the District
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 do 	any of 	the 	following:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
)
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unilaterally 	implemented 	a 	change 	in policy when 	it 	reduced 	the
work hours 	of 	transportation bus 	drivers without 	giving 	a 	30-day
notice, 	and when it 	failed to restore hours 	to bus 	drivers
working 	less 	than full time on a 	seniority basis. 	The Board
agent 	dismissed 	the 	allegation that 	the 	employer violated 	EERA
section 	3543.5(c) 	by 	failing to give 	employees 	30 days 	notice of
the 	reduction 	in driving hours 	on the ground that 	it 	failed to
state a prima 	facie case. 	The Board has 	reviewed the dismissal,
and 	finding 	it to be 	free 	from prejudicial 	error, 	adopts 	it as
the decision of 	the 	Board 	itself.2
On appeal, 	CSEA contends 	a 	factual dispute exists, 	and the
Board agent was 	not 	entitled to decide 	the merits 	of 	this 	case.
(Eastside Union School District 	(1984) 	PERB Decision No. 	466.)
As 	the 	Board agent was 	merely 	interpreting 	the 	unambiguous
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or reemployment.
(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.
2In adopting the Board agent's partial dismissal, 	the Board
notes 	that 	the 	collective 	bargaining 	agreement which 	the 	Board
agent states 	is effective from July 	1, 	1990 to June 	1991 	is, 	in
fact, 	effective from July 	1, 	1988 to June 30, 	1991.
In addition, 	the Board agent 	incorrectly 	cites 	Grant Joint 	Union
High School District 	(1983) 	PERB Decision No. 	196. 	The correct
citation is 	Grant Joint Union High School 	District 	(1982) 	PERB
Decision No. 	196.
22

language of the parties' 	collective bargaining agreements, 	the
Board rejects 	CSEA's 	argument.
The portion of 	the 	charge 	in Case No. 	S-CE-1373 which
alleges 	the 	District violated Government 	Code 	section 	3543.5(c)
by 	failing to give 	employees 	30 	days 	notice of 	a reduction 	in
driving hours 	is 	hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Chairperson Hesse 	and Member Carlyle 	joined 	in this 	Decision.
3
3

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
March 	12, 	1991
Burton Gray
CSEA, 	Lodi Ch. 	77
8217 	Auburn Blvd.
Citrus 	Heights 	CA 	95610
Re: 	California 	School 	Employees Association and 	its 	Lodi 	Chapter
77 v. 	Lodi Unified School District
Unfair Practice Charge No. 	S-CE-1373
PARTIAL 	DISMISSAL 	LETTER
Dear Mr. 	Gray:
On September 20, 	1991, 	CSEA filed the above 	charge.
Specifically, 	CSEA has 	charged 	that 	the 	Lodi 	Unified School
District violated Government Code 	section 3543.5(c). 	The union
alleged 	that 	the 	District 	has 	taken unilateral 	action by 	not
giving 30 days 	notification of 	reduced hours 	to bus drivers 	and
by restoring hours, 	to bus drivers working 	less 	than full 	time,
on a basis 	other than 	seniority.
I 	indicated to you in my attached 	letter dated February 28, 	1991,
that certain allegations 	contained 	in 	the 	charge did not 	state 	a
prima 	facie 	case. 	You were 	advised 	that 	if 	there were 	any
factual 	inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained 	in that 	letter, 	you 	should amend the
charge accordingly. 	You were 	further advised 	that unless 	you
amended these allegations 	to 	state a prima 	facie case, 	or
withdrew them prior to March 	5, 	1991, 	the allegations would be
dismissed.
I have 	not received 	either a 	request 	for withdrawal 	or an amended
charge 	and 	am therefore dismissing those 	allegations which 	fail
to 	state a prima 	facie 	case 	based on 	the 	facts 	and reasons
contained in my February 28, 	1991, 	letter.
PLAG
..

Right to Appeal
Pursuant to Public 	Employment Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	certain allegations
contained 	in the 	charge 	by 	filing 	an appeal 	to 	the Board 	itself
within twenty 	(20) 	calendar days 	after service of this 	dismissal
(California Code of Regulations, 	title 8, 	section 32635(a)). 	To
be timely filed, 	the original 	and 	five 	copies of 	such appeal 	must
be 	actually received 	by 	the 	Board 	itself before 	the 	close 	of
business 	(5:00 p.m.) 	or 	sent by telegraph, 	certified or Express
United States 	mail 	postmarked 	no 	later 	than the 	last date 	set 	for
filing 	(California Code of Regulations, 	title 8, 	section 32135).
Code of Civil 	Procedure 	section 	1013 	shall 	apply. 	The 	Board's
address is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If you file a timely appeal 	of 	the 	refusal 	to issue a complaint,
any other party may 	file with 	the 	Board 	an original 	and 	five
copies 	of a 	statement 	in opposition within 	twenty calendar days
following the date of 	service 	of 	the 	appeal 	(California 	Code 	of
Regulations, title 8, 	section 32635(b)).
Service
All documents 	authorized 	to 	be 	filed herein must also be 	"served"
upon all parties 	to the proceeding, 	and a 	"proof of service" 	must
accompany 	each 	copy 	of 	a 	document 	served upon a party or 	filed
with the Board 	itself. 	(See 	California Code 	of Regulations,
title 8, 	section 	32140 	for the 	required 	contents 	and a 	sample
form.) 	The document will 	be 	considered properly 	"served" 	when
personally delivered 	or deposited 	in 	the 	first-class 	mail 	postage
paid 	and properly 	addressed.
Extension of 	Time
A request 	for an extension of 	time 	in which 	to 	file a document
with the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously 	noted address. 	A request 	for an extension must
be 	filed at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time 	required 	for 	filing 	the document. 	The 	request must
indicate good cause 	for and, 	if known, 	the position of each other
party regarding 	the 	extension, 	and 	shall 	be 	accompanied by proof
of service of the request upon each party 	(California Code of
Regulations, title 8, 	section 32132).
March 12, 	1991
S-CE-1373
Page 2
.. .
•

March 12, 	1991
S-CE-1373
Page 2
Final 	Date
If no appeal 	is 	filed within the 	specified time limits, 	the
dismissal will 	become 	final 	when 	the 	time 	limits 	have 	expired,
Sincerely,
JOHN W. 	SPITTLER
General 	Counsel
Bernard 	McMonigle
Regional 	Attorney
BY Be though
Attachment
cc: 	Robert E. 	Kingsley
Pinnell 	& Kingsley
4401 Hazel Ave., 	Ste. 	215
Fair Oaks 	CA 	95628

STATE OF CALIFORNIA 	PETE WILSON, Governor
PUBLIC EMPLOYMENT RELATIONS 	BOARD
Headquarters Office
1031 18th Street
Sacramento, CA 95814-4174
(916) 322-3088
February 28, 	1991
Burton 	Gray
CSEA, 	Lodi Ch. 	77
8217 Auburn Blvd.
Citrus 	Heights 	CA 	95610
Re: 	California 	School 	Employees Association and 	its 	Lodi 	Chapter
77 v. 	Lodi 	Unified School District
Unfair Practice Charge No. 	S-CE-1373
WARNING 	LETTER
Dear Mr. 	Gray:
On September 20, 	1990, 	CSEA filed the above charge. 	Specifically
CSEA has 	charged 	that 	the 	Lodi 	Unified 	School 	District violated
Government Code 	section 3543.5(c). 	The union has 	alleged that
the 	District 	has 	taken 	unilateral 	action by not 	giving 	30 	days
notification of 	reduced hours 	to bus 	drivers 	and by 	restoring
hours, 	to bus drivers working less than full time, 	on a basis
other 	than 	seniority.
My investigation 	indicates 	that 	there 	is 	a 	collective bargaining
agreement between the parties which has 	a duration of 	July 	1,
1990 	to June 	1991. 	The parties 	also have an agreement 	for year-
round 	education 	issues. 	The 	collective bargaining 	agreement
contains 	an Article XVI 	Layoff 	Procedure which applies 	to 	a
reduction 	in hours. 	That 	article requires 	the employer to 	give
employees 	30 	days 	notification prior 	to 	the 	implementation of
reduced hours. 	The agreement 	for year-round education contains 	a
provision 	for bus 	driver route 	selection. 	Page 	21 	of 	that
agreement 	states 	in part 	that 	drivers 	suffering any 	involuntary
reduction 	in hours 	will 	be 	afforded 	the 	rights 	available 	under
the 	formal 	layoff process. 	Page 22 	of the agreement contains 	a
statement 	that 	"implementation 	shall 	be 	effected within 	two 	(2)
weeks 	of 	completion of 	the 	route 	selection process." 	On page 	23
there 	is 	a provision 	that 	route 	vacancies 	or newly 	created 	routes
shall 	be 	filled 	by 	seniority.
In the 	summer of 	1989, 	bus drivers went through the route
selection process 	described 	under the 	memorandum and were 	given
approximately 	two weeks 	notice prior 	to 	implementation of 	the 	new
routes. 	They were not given a 	30 day notification. 	In 	1990,
drivers 	participated 	in route 	selection on July 28. 	On August
21, 	hours were reduced.
•

In Grant 	Joint 	Union 	High 	School 	District 	(1983) 	PERB 	Decision
No. 	196, 	the Board 	set 	forth the 	elements of proof necessary to
establish 	a 	unilateral 	change. 	Initially, 	the 	charging party
must 	show 	that 	the 	employer breached 	or otherwise 	altered 	the
parties' 	written 	agreement 	or 	its 	own established past practice.
This 	element has 	not 	been 	shown in this 	case. 	It may be 	true
that 	in years 	prior 	to 	1989 	the 	employer gave bus 	drivers 	30
days' 	notice of reduced hours. 	However, 	different circumstances
existed. 	In 	1989, 	the District and 	the union negotiated a new
bus 	route 	selection procedure which provides 	for two weeks
notification. 	Two weeks notification was, 	in fact, 	given in
1989. 	The 	employer has 	again given a 	two week notification after
the 	19 90 	bus 	route 	selection. 	Such notice appears 	to comply with
current practice. 	Accordingly, 	this 	allegation must be
dismissed.
For these 	reasons, 	the allegation that the 	employer violated
Government 	Codes 	section 	3543.5(c) 	by 	not 	giving 	employees 	thirty
days' 	notice of a reduction in driving hours, 	as presently
written, 	does 	not 	state a prima facie case. 	If there are any
factual 	inaccuracies 	in this 	letter or any additional 	facts 	that
would 	correct 	the 	deficiencies 	explained 	above, 	please 	amend 	the
charge 	accordingly. 	The 	amended 	charge 	should be prepared on 	a
standard 	PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First
Amended Charge, 	contain all 	the 	facts 	and allegations 	you wish to
make, 	and must 	be 	signed under penalty of perjury by the 	charging
party. 	The 	amended 	charge 	must 	be 	served on 	the 	respondent 	and
the 	original proof of 	service must be 	filed with PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or withdrawal 	from you before 	March
5, 	1991, 	I 	shall 	dismiss 	the above-described allegation from your
charge. 	If you have any questions, 	please call me at
(916) 322-3198.
Sincerely,
Bernard 	McMonigle
Regional 	Attorney
BMC:djt
February 28, 	1991
S-CE-1373
Page 2