Sylvan Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M (PERB 0919E)

OVERRULED IN PART by County of Santa Clara
(2013) Decision No. 2321-M
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
SYLVAN 	DISTRICT 	EDUCATORS
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
SYLVAN UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1366
PERB Decision No. 	919
January 	7, 	1992
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Appearances: 	California Teachers Association by A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Sylvan District Educators
Association, 	CTA/NEA; 	Pinnell & Kingsley by Joyce E. 	Earl,
Attorney, 	for Sylvan Union Elementary School District.
Before Hesse, 	Chairperson; 	Camilli and Carlyle, 	Members.
DECISION
CAMILLI, 	Member: 	This 	case is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on appeal by the 	Sylvan District
Educators Association, 	CTA/NEA 	(Association) 	from the proposed
decision of a PERB 	administrative 	law judge 	(ALJ) 	which dismissed
the Association's 	complaint 	alleging 	that 	the 	Sylvan Union
Elementary 	School 	District 	(District) 	violated the 	Educational
Employment Relations Act 	(EERA or Act) 	section 3543.5(a), 	(b) 	and
(c)1 by unilaterally eliminating the position of 	learning
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 provides, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do any of 	the 	following:
e

specialist 	without 	affording 	the Association notice 	and 	an
opportunity to bargain the 	effects 	of that decision.
Specifically, 	the ALJ 	found that 	the Association waived 	its 	right
to bargain this 	issue when it 	failed 	to 	request 	to discuss 	or
negotiate the 	effects 	of 	the decision once 	it had 	received notice
that 	the decision had been made.
PROCEDURAL 	HISTORY
The 	charge 	originally 	alleged 	that 	the 	District 	engaged 	in a
unilateral 	change when 	it 	failed 	to 	notify 	the Association and
allow it 	ample 	time 	to 	negotiate both 	the decision to 	eliminate
the 	learning 	specialist and the 	effects 	of 	that decision. 	During
the 	investigation, 	the Association's 	allegations 	regarding the
decision, 	as opposed to the effects thereof, were withdrawn.
Therefore, 	the only violation alleged 	in the complaint 	is 	that
the 	District 	violated the Act 	by 	failing 	to 	notify 	and 	bargain
regarding the 	effects of 	its decision.
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because of 	their 	exercise 	of 	rights
guaranteed by this 	chapter. 	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.
22

FINDINGS OF 	FACT
The Association 	is 	an 	employee 	organization 	and the 	District
is 	a public 	school 	employer as 	those terms 	are defined 	in the
EERA. 	The Association is 	the exclusive representative of 	a 	unit
of 	certificated employees. 	The District 	and the Association are
parties 	to 	a 	collective bargaining 	contract which was 	in 	effect
at all times relevant hereto, 	namely July 	1, 	1988, 	through
June 30, 	1991. 	In that contract, 	the position of learning
specialist 	is 	specifically recognized as 	part 	of 	the 	bargaining
unit and, 	incumbents 	receive a 	stipend 	for their 	services.
In a 	separate document 	approved by the 	District's 	governing
board in June 	1986, 	the position of 	learning specialist is
described as 	follows:
Provides 	instruction to 	students 	on a regular
basis 	in units 	of work; 	assists 	in providing
an educational program for 	students; 	serves
as 	a 	curriculum/instructional 	leader 	at 	the
site level.
The document 	lists 	the major duties 	of the position as providing
instruction as 	needed, 	coordinating and assessing 	students,
maintaining records, 	providing resources, 	sharing 	in sponsorship
and 	supervision of 	student 	activities, 	and performing other
duties 	as 	assigned.
During the hearing, 	employees who had actually 	served 	in the
position 	of 	learning 	specialist 	indicated 	that 	they were
responsible 	for 	a 	number of 	activities 	which might 	vary depending
upon the 	specialists 	and the 	school 	site. 	Some of the activities
were performed 	exclusively by the 	learning 	specialist, 	some 	in
w	3

conjunction with other personnel, 	in and out of the unit. 	The
activities 	included 	supervising the 	student 	council, 	speech 	and
spelling contests, 	testing programs, 	GATE screening, 	awards and
assemblies, 	a talent 	show and the District's 	self-esteem program.
Sometime 	in January or February of 	1990, 	the District
determined 	that 	budget 	constraints 	might 	require 	the 	reduction 	in
certain services or personnel 	for the 	1990-1991 	school year. 	The
management team, 	known as 	the cabinet, 	focused upon the position
of 	learning 	specialist. 	Reluctant 	to take 	any definitive 	action
until more financial and budget information was 	available, 	no
action was 	taken at that time. 	By May, 	the cabinet, 	comprised of
the Superintendent, 	Dr. 	Michael Sibitz 	(Sibitz), 	the Business
Manager, 	Michael Dodge, 	the Assistant Superintendent for
Instruction, 	Doris Causey, 	and the Personnel Director, 	Jeff
Lovell 	(Lovell), 	had reached a decision to recommend the
elimination of 	the 	learning 	specialist position. 	On May 	22,
1990, 	the District's 	governing board approved the recommendation
in 	executive 	session but did not 	report 	the matter out 	to 	a
public 	meeting at 	that time. 	The board did not 	take public
action until June 7, 	1990.
At no time prior to June 	5, 	1990, 	were the Association or
the 	concerned 	employees 	given notice 	of 	the 	District's
contemplated action, 	or the decision made 	in executive 	session.
The 	District provided no 	colorable 	explanation 	for 	its 	failure 	to
give 	the Association notice; 	the person who apparently decided
when to give notice, 	and to whom, 	Dr. 	Sibitz, 	was not called as a
4
4

witness. 	In any event, 	Lovell 	claimed that he did not believe
notice was 	required 	as 	action was 	being taken pursuant 	to 	the
involuntary transfer 	section of 	the 	contract 	and 	Education Code
section 44955, 	which pertains to a reduction in force.NN2
On or about June 	5, 	the 	superintendent and Lovell 	travelled
to 	each 	school 	site with 	the purpose 	of 	advising the 	learning
specialists 	that 	their positions 	were 	being 	eliminated 	effective
the end of 	the 	school year. 	The teachers 	in question were 	told
to consider transfer options 	immediately. 	Lovell did not have
direct contact with Cassandra Sparks 	(Sparks), 	a learning
specialist 	at 	the Stockard-Coffee 	school 	site. 	She 	received
notice through Martha Gausman, 	the principal at that 	school 	on
the 	same date. 	No teacher was given notice of 	layoff or
termination.
Prior to the action complained of herein, 	the District
employed six 	(6) 	learning specialists, 	one at each of 	its
elementary schools. 	Sparks was 	a 	learning 	specialist at
Stockard-Coffee 	for three years 	at 	the 	time of 	the 	action
complained of herein. 	She was 	transferred to 	a 	5th grade
classroom teaching assignment at the 	same 	school. 	As 	a 	result 	of
her transfer, 	she 	lost her 	stipend and 	since 	she had taught at 	a
22Daniel Savage 	(Savage), 	President of the Association,
testified that Gary Vance, 	President of 	the governing board, 	told
him that 	the District, 	which had contemplated elimination of
learning 	specialists 	as 	early as 	February 	1990, 	refrained 	from
giving earlier notice 	for 	fear the 	news 	would have 	a 	negative
impact on the 	learning specialists' 	performance of their 	job.
Similar 	information had 	been 	communicated 	to 	Savage 	by 	Jeff
Lovell, 	the District's personnel director.
55

school on a year-round schedule, 	she worked on an extended year
contract and 	lost 	20 days 	of 	compensation. 	A stipend and 	20 	days
of per diem compensation were 	also 	lost by David Holtz, 	the
learning 	specialist at the Coleman Brown School 	site, 	and Nancy
Kramling, 	the 	learning 	specialist at Sylvan School. 	Candace
Brody was 	the 	learning 	specialist 	at 	Sherwood 	School 	and Ann Rapp
was 	the 	learning 	specialist 	at 	Standiford. 	They 	each received 	a
stipend 	for their 	learning 	specialist 	assignment 	and 	one 	for
serving as assistant to the principal as well. 	The record 	is 	not
clear as 	to whether they 	automatically 	lost 	the 	assistant
principal 	assignment when they were 	transferred 	out 	of 	their
positions 	as 	learning specialists. 	Barbara Bert was 	the 	learning
specialist at the Woodrow School 	site; 	she 	lost her 	stipend.
Although the record 	is 	not entirely clear, 	each of 	the
above-named 	teachers 	did 	transfer 	to 	a 	classroom 	teaching
assignment 	fairly high on his/her 	list 	of preferred 	assignments.
There is no dispute, 	however, 	that most of the duties the
learning 	specialists 	had performed 	during 	the 	1989-1990 	school
year were 	not 	eliminated but 	rather were 	transferred 	to 	other
teaching personnel, 	classified staff, 	volunteers, 	or
administrators. 	In at least one 	school, 	supplemental 	teachers
were hired, 	using 	school 	improvement program funds, 	to perform
some 	of 	the tasks 	hitherto performed by 	learning 	specialists.
Some 	specific duties, 	such as 	the 	administration of a particular
test, 	were not transferred because a different test 	instrument
66

was 	being used 	or a program was 	being organized 	somewhat
differently.
Testimony 	showed 	that 	before 	learning 	specialists 	were
eliminated, 	they 	coordinated 	extra 	curricular activities 	which
the 	District deemed 	important 	for 	the development 	of 	elementary
school children. 	In addition, 	the 	learning specialists gathered
reading materials, 	administered tests, 	and assisted in student
discipline, 	thereby relieving the 	teachers 	of 	that
responsibility. 	The witnesses who were 	classroom teachers 	before
and after the 	elimination of 	learning 	specialists 	credibly
testified that 	their workweek 	increased 	an average of 	60 	to 	90
minutes 	after the 	learning 	specialist was 	no 	longer available 	to
provide assistance. 	No additional 	compensation was provided as 	a
result 	of 	the workload 	increase.
ASSOCIATION'S 	EXCEPTIONS
The Association excepts 	to the proposed decision, 	arguing
that 	it was 	never given notice 	of 	the decision to 	eliminate 	the
learning 	specialists, 	because 	implementation was 	actually 	carried
out on June 	5, 	1990. 	The Association claims the duty to request
negotiations 	never arose 	because 	the Association did 	not 	have
notice prior to the date of 	implementation, 	i.e., 	June 	5. 	The
Association 	further 	contends 	that 	the 	employer never 	raised 	the
affirmative 	defense 	of wavier and an affirmative 	defense 	must 	be
raised 	in the answer or it 	is waived. 	(Beverly Hills 	Unified
School District 	(1990) 	PERB Decision;No. 	789; 	Brawley Union High
School District 	(1982) 	PERB Decision No. 	266; 	Walnut Valley
77

Unified School District 	(1983) 	PERB Decision No. 	289; 	Morgan Hill
Unified School 	District 	(1985) 	PERB Decision No. 	554.)
DISTRICT'S 	RESPONSE 	TO 	EXCEPTIONS
The 	District's 	response 	supports 	affirmance 	of 	the proposed
decision. 	The 	District 	claims 	that 	the 	second affirmative
defense 	raised 	in 	its 	answer 	incorporated 	the waiver by 	inaction
defense. 	The District's 	second affirmative defense 	states,
"Respondent was 	required to 	take 	the 	actions 	complained of 	on the
basis 	of 	law." 	With regard to the 	affirmative defense 	issue,
the District 	argues 	that PERB Regulation 	326453 grants 	the Board
discretion to disregard this 	error, 	because 	the Association would
suffer no prejudice 	as 	a result thereof. 	The District goes 	on to
state 	that 	the Association has 	never 	claimed 	it was 	unable 	to
produce 	a key witness.
The 	District 	further 	contends 	the Association had 	actual
knowledge 	of 	the decision to 	eliminate 	the position of 	learning
specialist on June 	5, 	1990. 	The District agrees with the ALJ
that June 5 was the date of notice, 	not implementation. 	The
District 	contends 	actual 	notice was 	received when personnel
director Lovell 	met with or 	spoke 	over the 	telephone 	to 	each of
the 	learning 	specialists. 	It 	is 	claimed that the process was 	not
3PERB Regulations 	are 	codified at California 	Code 	of
Regulations, 	title 8, 	section 31001 	et seq. 	PERB Regulation
32645 	states:
Non-prejudicial 	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
substantial rights 	of the parties.
8

completed until 	the 	school 	year began for 	employees 	on July 	9,
19 90, 	subsequent to the governing board adoption of the tentative
budget 	in June, 	1990. 	The District claims 	the Association was
required 	to 	make 	a 	demand to bargain when 	it 	received 	actual
notice. 	(Mt. 	Diablo Unified School 	District 	(1983) 	PERB Decision
No. 	373.)
DISCUSSION
The Association's 	exception that waiver by 	inaction 	is 	an
affirmative defense, 	which the District waived by 	failing 	to
raise 	in its 	answer, 	presents 	a novel 	situation. 	In the present
case, the Association, 	for an unknown reason, 	withdrew the
allegation of 	unilateral 	change with 	regard to 	the 	decision 	to
eliminate 	learning 	specialists. 	The 	complaint 	alleges 	only that
the 	District 	unilaterally 	changed 	the policy 	of 	employing
learning 	specialists 	"without prior notice 	and without 	having
afforded 	Charging 	Party 	an 	opportunity 	to 	negotiate 	the 	effects
of the change in policy". 	The Board, 	therefore, 	has no
jurisdiction 	to determine whether 	the decision 	itself was
negotiable.
As 	a general rule, 	in a unilateral 	change case charging
party must 	show that 	a 	change 	in policy was 	made without 	first
affording 	the 	charging party 	notice 	and 	an opportunity 	to 	bargain
regarding the 	issue. 	Once 	it 	can be 	shown that notice was 	given,
if 	the 	charging party 	fails 	to 	request 	to bargain regarding 	the
issue, 	that is 	considered a waiver by inaction. 	In Morgan Hill
Unified School District 	(1985) 	PERB Decision No. 	554, 	footnote
99

13, 	the Board held that waiver 	is 	an affirmative defense which 	is
itself waived 	if 	not raised by the 	respondent, 	citing Walnut
Valley Unified School District 	(1983) 	PERB Decision No. 	289;
Brawley Union High School 	District 	(1982) 	PERB Decision No. 	266.
In addition, 	PERB Regulation 32644(b)(6) 	requires affirmative
defenses 	be 	contained in a party's 	answer.4 See 	also 	Beverly
Hills Unified School District 	(1990) 	PERB Decision No. 	789,
p. 14.
Hence, 	the District's 	claim of waiver on the part of 	the
Association, 	and the Association's 	contention that 	the 	District
waived that 	affirmative defense by 	its 	failure 	to raise 	it 	in 	its
answer, 	is understandable. 	Nonetheless, 	the sole issue before
the Board 	in this 	case 	concerns 	the allegation that 	the 	District
failed 	to 	afford 	the Association 	notice 	and 	an 	opportunity 	to
bargain the effects 	of 	its decision. 	Therefore, 	the Board must
address 	the 	issue before 	it, 	applying the relevant 	legal
precepts.
When considering an 	effects 	bargaining 	allegation 	of
unilateral change, 	the charging party must 	show, 	as part of 	its
prima 	facie case, 	that it made a request to bargain the effects
of the decision. 	Waiver is no 	longer an affirmative defense. 	In
Allan Hancock Community College District 	(1989) 	PERB 	Decision
4PERB Regulation 32644(b)(6) 	states:
(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;
10

No. 	768, 	Dismissal Letter, 	p. 	2, 	the Board summarily affirmed a
Board agent's 	dismissal 	of 	an allegation of 	unilateral 	change 	for
failure to state a prima facie case, 	stating:
In Newman-Crows 	Landing 	Unified 	School
District 	(1982) 	PERB Decision No. 	223, 	the
Board 	held 	that 	an 	exclusive 	representative
alleging 	that 	the 	employer 	refused to 	bargain
"effects" 	must allege that 	it 	signified to
the 	employer 	its 	desire 	to 	negotiate 	the
effects 	of the 	employer's decision in order
to 	set 	forth a violation of 	EERA 	section
3543.5(c). 	The request may consist of a
"general 	notice of 	interest 	in the effects 	of
the . 	. 	. decision".
(Emphasis 	added.)
An employer 	still has 	a 	"duty to provide 	notice 	and 	an
opportunity to negotiate the effects of its decision 	. 	. 	. 	when
the employer reaches 	a 	firm decision." 	(Mt. 	Diablo 	Unified
School District 	(1984) 	PERB Decision No. 	373b, 	p. 	3, 	emphasis
deleted.) 	Stated otherwise, 	an employer has 	a duty to afford the
Association 	"notice 	and 	a 	reasonable 	opportunity 	to 	negotiate
prior to 	taking action which affects 	matters within the 	scope 	of
representation". 	(Mt. 	Diablo Unified School District 	(1983) 	PERB
Decision No. 	373, 	p. 	20.) 	However, 	where an Association receives
actual notice of a decision, 	the effects 	of which 	it believes 	to
be negotiable, 	the employer's 	"failure to give 	formal 	notice 	is
of 	no 	legal 	import". 	(Regents 	of 	the 	University of California
(1987) 	PERB Decision No. 	640-H, p. 	22.)
With regard to the adequacy of 	the request, 	the Board has
held that, 	while 	"it is not essential that a request to negotiate
be 	specific 	or made 	in a particular 	form" 	it must 	"adequately
signif[y] 	a desire to negotiate on a 	subject within the 	scope of
11

bargaining." 	(Newman-Crows 	Landing 	Unified 	School 	District.
supra. 	pp. 	7-8.) 	In that case, 	the Board also held that a
- -.
request 	is 	insufficient 	to 	state 	a prima 	facie 	case 	of 	failure 	to
bargain effects where the request 	fails 	to 	express 	any desire 	to
negotiate the 	effects of 	a decision, 	as 	opposed to the decision
itself. 	(Id.. 	pp. 	8 and 10; 	Allan Hancock Community College
District 	(1989) 	PERB Decision No. 	768, 	Dismissal Letter, 	p. 	2.)
Regarding 	the 	specificity of 	the request, 	although virtually
all 	the 	PERB 	cases 	cite 	Newman-Crows 	Landing Unified 	School
District, 	supra, 	for the proposition that a 	sufficient request
may be a 	showing of 	general 	interest,, 	and no particular 	form or
verbiage 	is 	required, 	the requests which the cases 	have 	found to
be 	sufficient have been quite 	specific. 	In Calistoga 	Joint
Unified School District 	(1989) 	PERB Decision No. 	744, 	p. 	10, 	the
Board held 	"a clear demand to meet and discuss 	a matter, 	even
without a 	specific 	request to negotiate" 	is 	sufficient to raise
the duty to bargain. 	However, 	in that case, 	the Association made
both written and 	oral 	demands 	which 	clearly 	stated 	its 	demand 	to
negotiate both 	the decision and 	effects 	of 	issues 	in question.
(Id.. pp. 3 and 9-10.)
In Kern Community College 	District 	(1983) 	PERB 	Decision
No. 	337, 	the Association stated in a letter to the District that
the 	issue at hand was within the 	scope of bargaining, 	and 	that
the 	employer must 	give 	the Association 	"notice 	and 	the
opportunity to negotiate over the 	effects 	of the decision."
(Id.t 	p. 	5.) 	Later, 	the Association president gave a written
12

presentation 	in which he 	alleged 	the 	District 	refused 	"to
negotiate the 	effects" 	of 	the relevant 	issue. 	The Board 	found
these 	communications 	from 	the Association to 	the 	District 	to 	be
"sufficient 	to put 	the 	District on notice 	that 	the Association
desired to hold negotiations 	not merely on the 	subject 	of 	the
. 	. 	. 	decision itself, 	but on the negotiable effects of that
decision." 	In fact, 	when the District 	claimed that 	it was
confused as 	to the object 	of 	the Association's 	various 	requests
for negotiations, 	the Board held that 	in this 	case 	if the
District were 	confused 	"the duty 	to 	bargain 	in 	good 	faith
behooved 	it 	as 	a minimum to 	seek clarification of 	the
Association's position." 	fid., 	p. 	6.)
Similarly, 	where the Association 	"formally demanded to
negotiate 	'any and all 	impacts 	upon members 	of 	[their] 	bargaining
unit 	in any 	and 	all 	mandatory 	subjects 	for negotiation resulting
from 	[the District's] 	decisions 	of recent weeks,'" 	the Board held
that 	"[s]uch a 	request was 	certainly 	sufficient 	to place 	the
District 	on notice 	that 	the Association wished 	to 	negotiate 	the
effects 	. 	. 	. 	arising from its decision." 	(Mt. 	Diablo Unified
School District 	(1983) 	PERB Decision No. 	373, 	pp. 	21-22.)
The Board, 	in agreement with the ALJ, 	finds that, 	although
the District 	failed to notify the Association of 	its 	decision to
eliminate the 	learning 	specialists, 	the Association received
actual notice of the decision on June 	5, 	1990. 	The District's
failure to give notice to the Association became 	a moot point,
from a 	legal 	standpoint, 	when it received actual 	notice on
13

June 	5, 	1990. 	(Regents of the University of California, 	supra.)
The Association was 	required, 	as part of 	its prima 	facie
case, 	to 	show that 	it made a request to bargain the effects of
the decision. 	(Allan Hancock Community College District, 	supra,
and Newman-Crows Landing Unified School District, 	supra.) 	The
uncontroverted 	testimony 	of 	Association president 	Joseph 	Savage
was that he expressed his 	concern to Gary Vance, 	president of the
School Board, 	over the handling of the elimination by the
District, 	specifically with regard to 	the 	lateness 	of 	the 	notices
given and the 	impact on the 	specialists' 	opportunity to 	reapply
for other positions. 	As 	a general rule, 	PERB case 	law requires
that 	the demand be 	sufficient 	to put 	the 	other party 	on notice
that the Association desires 	to bargain, 	or to meet and discuss,
a negotiable 	subject. 	(Kern Community College 	District, 	supra;
Mt. 	Diablo Unified School District, 	supra; 	Calistoga Joint
Unified School District, 	supra.) 	Furthermore, 	with regard to
effects bargaining 	cases, 	the request must adequately 	signify a
desire to negotiate the 	effects 	of the decision. 	(Newman-Crows
Landing Unified School District, 	supra: 	Allan Hancock Community
College District, 	supra.) 	In the present case, 	the Association's
request was 	inadequate to put 	the 	District 	on notice 	that 	the
Association desired to negotiate 	over the 	elimination of 	the
learning 	specialists, 	regarding either the decision or the
effects 	thereof.
The Association's 	claim that 	the 	decision was 	implemented 	on
June 5, 	1990, 	and, 	therefore, 	a duty to demand to negotiate never
14

arose, 	is rejected. 	It is 	found that affected employees were
notified of the decision on that date. 	As 	stated above, 	once the
Association received actual 	notice 	of 	the decision 	from 	its
members, 	it had a duty to demand to bargain the effects 	thereof.
CONCLUSION
Because 	a 	showing of 	a 	sufficient demand to bargain 	is 	part
of the Association's prima 	facie case, 	failure to 	carry 	its
burden in this 	respect 	is 	fatal 	to 	its 	claim, 	and dismissal 	of
the complaint 	is appropriate.55
ORDER
The complaint 	in Case No. 	S-CE-1366 	is hereby DISMISSED.
Member Carlyle 	joined 	in this 	Decision.
Chairperson Hesse's dissent begins 	on page 	16.
5Because 	the Association's 	complaint 	is 	being dismissed 	on
other grounds, 	it 	is unnecessary to address other defenses 	raised
by the District.
15

HESSE, 	Chairperson, 	dissenting: 	While I agree with the
majority's 	citation of 	applicable 	Public 	Employment 	Relations
Board 	(PERB or Board) 	case 	law for an effects bargaining case, 	I
dissent 	from the majority's 	analysis 	and ultimate dismissal 	of
the complaint.
The 	unfair practice 	charge 	alleged 	that 	the 	Sylvan 	Union
Elementary 	School 	District 	(District) 	unilaterally 	changed a
policy without 	providing 	notice 	or 	an 	opportunity 	for 	the
exclusive 	representative to negotiate 	the decision to 	eliminate
the position of 	learning 	specialist. 	Subsequently, 	the 	Sylvan
District Educators Association, 	CTA/NEA 	(Association) 	withdrew
the 	allegation 	in the unfair practice 	charge 	that 	the 	District
failed 	to 	negotiate 	over 	the decision to 	eliminate 	the position
of 	learning 	specialist. 	The PERB General 	Counsel 	issued a
complaint 	alleging 	that 	the 	District 	changed 	its 	policy 	of
employing bargaining unit 	members 	as 	learning 	specialists 	by
eliminating 	the 	learning 	specialist position and 	reassigning
bargaining unit 	members 	who had worked 	in 	those positions 	without
prior 	notice 	and without 	having 	afforded 	the Association 	an
opportunity to 	negotiate 	the 	effects 	of 	the 	change 	in policy.
As 	a result of the Association's partial withdrawal, 	the
nature of 	the 	case 	changed 	from a unilateral 	change 	to a 	refusal
or failure to bargain the 	effects 	of 	a decision. 	In effects
bargaining cases, 	the Board has held that an exclusive
representative 	alleging 	that 	the 	employer 	refused 	to 	bargain
effects 	must 	allege 	that 	it 	signified to 	the 	employer 	its 	desire
to negotiate 	the 	effects 	of 	the decision in order to 	state a
16

prima facie violation of 	section 3543.5(a) 	and 	(c) 	of the
Educational Employment Relations Act 	(EERA). 	(Newman-Crows
Landing Unified School District 	(1982) 	PERB Decision No. 	223;
Allan Hancock Community College 	District 	(1989) 	PERB 	Decision No.
768.) 	In most effects 	bargaining cases, 	the Board has 	held that
the decision is nonnegotiable. 	Therefore, 	the only 	issue the
exclusive representative has 	the 	right 	to bargain 	is 	the 	effects
of 	that nonnegotiable decision. 	(See Alum Rock Union Elementary
School District 	(1983) 	PERB Decision No. 	322; 	Mt. 	Diablo Unified
School District 	(1983) 	PERB Decision No. 	373.)
With regard to negotiating the 	effects 	of a decision, 	the
employer has 	a duty to negotiate at a meaningful 	time, 	usually as
soon as 	the 	employer makes 	the decision. 	In Kern Community
College District 	(1983) 	PERB Decision No. 	372, 	the Board held
that:
. 	. 	. 	the effects of layoff are within the
scope of negotiation, 	and that an employer is
obligated to negotiate 	those 	effects 	upon
request. 	Further, 	the employer must
negotiate over the 	effects 	as 	soon as 	it
decides 	to 	lay off, 	consistent with its duty
to 	negotiate over the 	effects 	of 	a decision
at 	a meaningful 	time. 	Newark Unified 	School
District 	(6/30/82) 	PERB Decision No. 	225.
First National Maintenance Corp. 	v. 	NLRB
(1981) 	452 U.S. 	666 	[107 LRRM 2705, 	at p.
2771].
fid, at p. 11.)
In the present case, 	there is no evidence or finding
regarding whether 	the 	District's 	decision was 	negotiable 	or
nonnegotiable. 	However, 	regardless 	of whether the District's
decision was 	negotiable 	or nonnegotiable, 	the record reflects
17

that 	the 	District 	failed to give 	any meaningful 	notice 	to 	the
Association.
In January or February of 	1990, 	the 	District determined 	that
budget 	constraints 	might 	require 	the 	reduction of 	certain
services or personnel, 	including the position of 	learning
specialist. 	By May of 	1990, 	the District's management team had
reached 	a decision to recommend 	the 	elimination 	of 	the 	learning
specialist position. 	On May 22, 	1990, 	the District's governing
board 	approved 	the 	recommendation 	to 	eliminate 	the 	learning
specialist position. 	On or about June 5, 	1990, 	the District
advised the 	learning 	specialists 	that 	their positions were
eliminated effective the 	end of 	the 	school 	year.1
Throughout 	this 	decision-making 	and 	implementation process,
the District admits 	it did not give the Association notice. 	The
Association 	received 	actual 	notice 	after 	the 	learning 	specialists
had been 	informed 	that 	their positions 	were 	eliminated. 	Since
the District never gave the Association notice, 	and the
Association received 	actual 	notice 	only 	after 	the 	decision had
been implemented, 	I 	conclude that there was 	no meaningful 	notice
of 	the District's 	decision to 	eliminate 	the 	learning 	specialist
position. 	Accordingly, 	the District never afforded the
Association a 	reasonable 	opportunity 	to 	negotiate 	the 	effects 	of
the District's 	decision. 	(See Arvin Union School 	District 	(1983)
PERB Decision No. 	300, 	p. 	11; 	San Mateo County Community College
District 	(1979) 	PERB Decision No. 	94, 	p. 	22.) 	As the Association
18
The 	1990-91 	school year began on or about July 	9, 	1990.

did not receive meaningful 	notice, 	the obligation to demand to
negotiate 	the 	effects 	of 	the 	District's 	decision never arose.
Based on the 	lack of meaningful 	notice, 	I 	find the District
violated 	section 3543.5(a) 	and 	(c) 	of the EERA when it
unilaterally 	eliminated 	the 	learning 	specialist position 	and
. .
reassigned 	bargaining unit 	members 	who 	had worked 	in 	those
positions 	without 	meaningful 	notice 	and without 	affording 	the
Association a 	reasonable 	opportunity 	to 	negotiate 	the 	effects 	of
the 	change 	in policy.
19