Norris School District (PERB 1090E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	NORRIS
CHAPTER NO. 	824,
Charging 	Party,
v.
NORRIS 	SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3292
PERB Decision No. 	1090
March 16, 	1995
Appearances: 	California 	School 	Employees Association by
Madalyn J. 	Frazzini, 	Attorney, 	for California. School Employees
Association and its Norris Chapter No. 	824; 	Schools Legal 	Service
by Phil 	Lancaster, 	Bargaining Specialist, 	for Norris School
District.
Before Blair, 	Chair; 	Carlyle and Johnson, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case is before the Public Employment
Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by the Norris
School 	District 	(District) 	to 	the proposed decision 	(attached
hereto) 	of a PERB administrative law judge 	(ALJ). 	In her
decision, 	the ALJ 	concluded 	that 	the District 	violated 	section
3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA)1 when it unilaterally 	(1) 	transferred work from
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
)
)
)
)
)
)
)
)
-=====~----------!

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.
existing 	unit 	classifications 	to 	a 	newly 	created 	classification,
and 	(2) 	established the 	salary assigned 	to 	the new
classification.
The 	Board has 	reviewed 	the 	entire 	record 	in 	this 	case,
including 	the proposed decision, 	the 	stipulated statement 	of
facts 	and exhibits, 	the District's 	statement of 	exceptions 	and
the 	response 	thereto 	filed by 	the 	California School 	Employees
Association and its Norris Chapter No. 	824 	(CSEA). 	The Board
finds 	the ALJ's 	findings 	of 	fact and conclusions 	of 	law to be
free of prejudicial 	error and, 	therefore, 	adopts 	them as 	the
decision of 	the 	Board itself.
DISTRICT'S 	EXCEPTIONS
On appeal, 	the District 	contends 	that 	it did in fact
negotiate 	the 	duties 	and 	salary 	level 	with CSEA concerning 	the
groundskeeper/custodian 	classification. 	The District 	states 	that
the parties 	entered 	into a memorandum of 	understanding 	(MOU)
concerning the matter on April 	25, 	1991, 	nearly 18 months prior
to 	the 	earliest 	alleged violation of 	its 	duty 	to bargain 	this
issue. 	The MOU attached to the District's appeal 	states:
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CSEA and 	the Norris 	School 	District 	agree 	to
the posting of 	a position which 	combines 	the
two 	job 	categories 	"Groundskeeper" 	and
"Custodian" 	(see attached). [2] The rate of
pay will 	be based on 	the 	hourly 	rate 	for each
job 	category and 	the number 	of 	hours 	assigned
within 	each 	job 	category.
The District 	asserts 	that 	the 	existence 	of 	this MOU was
"unknown 	to 	the 	representative 	of 	the 	District 	during 	the
proceedings before the ALJ 	. 	. 	. 	." 	In light of its claim that
the parties 	have already negotiated 	this matter, 	the District
asks 	the 	Board 	to 	reverse 	the ALJ's 	decision and deny 	the 	remedy.
The 	District 	also 	contends 	the ALJ erred 	in 	finding 	that 	all
classified positions 	in 	the bargaining unit 	are 	eight-hour
positions. 	The District attaches 	a memo to 	its appeal which
proposes 	to demonstrate 	that 	the District 	employs 	numerous unit
members 	in part-time positions.
CSEA'S 	RESPONSE
CSEA states 	that 	the MOU referenced by 	the District 	was 	not
made part 	of 	the 	stipulated record. 	CSEA contends 	that 	the
District 	is 	essentially asking 	the 	Board 	to 	reopen 	the 	record.
CSEA asserts 	that 	the District 	has made no 	showing 	that 	it
exercised 	reasonable 	diligence 	in attempting 	to 	discover and
produce 	these documents 	at 	the 	time 	it 	entered into 	the 	joint
stipulation of 	facts. 	CSEA states 	that 	the documents 	submitted
2The attachment 	describes 	the position's 	duties 	and sets 	the
salary.
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by 	the District 	"lack authentication" 	and objects 	to 	their
consideration by 	the 	Board.3
DISCUSSION
PERB Regulation 32320(a)4 states, 	in pertinent part:
- 	(a) 	The Board itself may:
(1) 	Issue a decision based upon the 	record
of hearing, 	or
(2) 	Affirm, 	modify or reverse 	the proposed
decision, 	order the 	record reopened 	for 	the
taking of 	further evidence, 	or take 	such
other action as 	it 	considers proper.
The 	Board has 	held 	that 	the 	standard applied 	to 	requests 	to
reopen the 	record under PERB Regulation 3232 0 	is 	the 	same
standard as 	that 	governing 	requests 	for 	reconsideration 	of 	a
decision by 	the 	Board 	itself.5 The 	Board will 	reopen 	the 	record
on 	the basis 	of 	newly discovered 	evidence 	that 	was 	not 	previously
available 	and 	could not 	have been discovered with 	the 	exercise 	of
reasonable 	diligence. 	(San Mateo 	Community College District
(1985) 	PERB Decision No. 	543.) 	The party requesting that 	the
3In light 	of 	the Board's 	ruling in this 	case, 	the Board
finds 	it unnecessary 	to address 	the 	remainder of 	CSEA's 	arguments
on appeal.
4PERB 	regulations 	are 	codified at 	California 	Code 	of
Regulations, 	title 8, 	section 31001 et seq.
5PERB Regulation 32410(a) 	states, 	in pertinent part:
The 	grounds 	for 	requesting 	reconsideration
are 	limited to 	claims 	that 	the decision of
the 	Board 	itself 	contains 	prejudicial 	errors
of 	fact, 	or newly discovered evidence or law
which was 	not 	previously available 	and 	could
not 	have 	been discovered with 	the 	exercise 	of
reasonable diligence.
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record be 	reopened must 	present 	a 	satisfactory 	explanation 	for
the 	failure 	to produce the 	evidence at an earlier time. 	(San
Joaquin Delta Community College District 	(1983) 	PERB Decision
No. 	261b; 	Regents of the University of California 	(Yeary) 	(1987)
PERB Decision No. 	615-H.)
In California State Employees Association 	(Garcia) 	(1993)
PERB Decision No. 	1014a-S, 	the Board considered a reconsideration
request 	in which 	the union presented new evidence. 	The union
admitted 	that 	the 	evidence 	it 	submitted was 	located within 	its
own 	files. 	The Board concluded that 	since 	the union had access
to 	the documents when the 	case was before 	the Board agent, 	the
union 	failed 	to demonstrate 	that 	the 	evidence 	could not 	have 	been
discovered with 	the 	exercise 	of 	reasonable 	diligence.
Similarly, 	in the present 	case, 	the documents 	the District
asks 	the 	Board 	to 	consider were 	submitted by the District
attached 	to 	its 	appeal. 	The District provides 	no 	satisfactory
explanation why 	these 	documents 	were 	not 	previously available 	and
could not 	have been 	easily discovered while 	this 	case 	was 	before
the ALJ. 	If 	the 	Board were 	to 	reopen 	the 	record under 	these
circumstances 	it would reward a party's 	neglect 	in presenting 	its
case 	and 	result 	in numerous 	instances 	where 	new evidence 	is
presented on appeal 	to the Board itself. 	Accordingly, 	the Board
rejects 	the 	evidence 	offered by 	the District 	and declines 	to
reopen 	the 	record.
The 	District 	also 	claims 	that 	the 	remedy 	requiring 	the
parties 	to negotiate 	and 	the make whole 	order 	is 	inappropriate
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because 	the 	parties 	have 	already 	reached agreement 	on 	this 	issue.
If 	in 	fact 	the parties have previously negotiated the 	salary and
duties 	assigned 	to 	the 	groundskeeper/custodian 	classification,
this 	matter 	can best be 	resolved 	through 	PERB's 	compliance
proceedings.
ORDER
Based upon the 	findings 	of 	fact, 	conclusions 	of 	law and the
entire record in this 	case, 	it 	is 	found that 	the Norris 	School
District 	(District) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5 (c) 	by unilaterally 	(1)
transferring work 	from existing unit 	classifications 	to 	a 	newly-
created bargaining unit 	classification, 	and 	(2) 	setting the
salary for the new classification. 	By the 	same 	conduct, 	it has
been 	found 	that 	the 	District 	also violated 	EERA section 	3543.5(a)
and (b).
Pursuant 	to EERA section 3541.5(c), 	it 	is hereby ordered
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to negotiate 	in good 	faith
with 	the 	California 	School 	Employees Association and 	its 	Norris
Chapter No. 	824 	(CSEA), 	the exclusive representative of the
District's 	classified employees, 	by taking unilateral 	action
concerning employees' 	salary and other terms and conditions 	of
employment within the 	scope 	of 	representation, 	including the
transfer 	of 	work 	from one 	classification 	to another;
6
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2. 	Denying 	to 	CSEA rights 	guaranteed by EERA,
including the right 	to represent 	its members; 	and
3. 	Interfering with employees 	in the 	exercise 	of 	their
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request, 	immediately meet and negotiate with
CSEA regarding 	(1) 	the 	transfer of 	work 	from one 	classification
to another, 	and 	(2) 	all matters related to salaries, 	including
the 	salary 	range 	to which 	the 	new classification of
groundskeeper/custodian 	is 	assigned.
2. 	Unless 	the parties 	reach a contrary agreement, 	make
employees 	in 	the 	groundskeeper/custodian 	classification whole 	for
any 	difference 	between 	the 	salary agreed upon by 	the 	parties 	and
that unilaterally established by the District, 	with 	interest 	at
the 	rate 	of 	seven 	(7) 	percent per annum for 	the period beginning
on the date of 	the unilateral 	action 	(October 15, 	1992) 	until 	the
date 	CSEA and 	the District 	reach agreement.
3. 	Within thirty-five 	(35) 	days 	following the date
this Decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where notices 	to employees 	are 	customarily
placed, 	copies 	of 	the Notice attached hereto as 	an Appendix. 	The
Notice must 	be 	signed by an authorized agent 	of 	the District,
indicating 	that 	the District will 	comply with the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for a period of 	thirty
(30) 	consecutive workdays. 	Reasonable steps 	shall be taken to
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insure that 	the Notice is not 	reduced in size, 	defaced, 	altered
or 	covered with any other material.
4. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order shall be made 	to 	the 	Sacramento Regional 	Director
of 	the 	Public 	Employment 	Relations 	Board 	in accordance with 	the
Director's 	instructions. 	All 	reports 	to the Regional Director
shall 	be 	served 	concurrently 	on 	the 	charging party herein.
Members 	Carlyle 	and Johnson joined 	in this Decision.
88

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-3292,
California 	School 	Employees Association and 	its 	Norris 	Chapter
No. 	824 v. 	Norris School District, 	in which all parties had the
right 	to participate, 	it has been found that 	the Norris 	School
District 	(District) 	violated the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5(c). 	The District
violated 	EERA by unilaterally 	(1) 	transferring 	work 	from existing
unit 	classifications 	to 	the 	newly-created 	classification 	of
groundskeeper/custodian, 	and 	(2) 	establishing the 	salary assigned
to this 	classification. 	By the 	same 	conduct, 	it has been found
that 	the District 	also violated EERA section 3543.5(a) 	and 	(b).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and refusing 	to negotiate 	in good 	faith
with 	the 	California 	School 	Employees Association and 	its 	Norris
Chapter No. 	824 	(CSEA), 	the exclusive representative of the
District's 	classified employees, 	by taking unilateral 	action
concerning employees' 	salary and other terms 	and 	conditions 	of
employment within the 	scope 	of 	representation, 	including 	the
transfer 	of 	work 	from one 	classification 	to another;
2. 	Denying 	to 	CSEA rights 	guaranteed by EERA,
including the 	right 	to represent 	its members; 	and
3. 	Interfering with employees 	in the 	exercise 	of 	their
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE. ACTIONS DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request, 	immediately meet and negotiate with
CSEA regarding 	(1) 	the 	transfer of work 	from one 	classification
to another, 	and 	(2) 	all matters related to salaries, 	including
the 	salary 	range 	to which the 	new 	classification of
groundskeeper/custodian 	is 	assigned.
•

2. 	Unless 	the parties 	reach a 	contrary agreement, 	make
employees 	in 	the 	groundskeeper/custodian 	classification whole 	for
any 	difference 	between 	the 	salary agreed upon by 	the 	parties 	and
that unilaterally established by the District, 	with 	interest 	at
the 	rate 	of 	seven 	(7) 	percent per annum for 	the period beginning
on the date of 	the unilateral 	action 	(October 15, 	1992) 	until 	the
date 	CSEA and 	the District 	reach agreement.
Dated: 	NORRIS 	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.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	NORRIS
CHAPTER #824,
Charging 	Party,
v.
NORRIS 	SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3292
PROPOSED 	DECISION
(6/30/94)
Appearances: 	Pat Sproul, 	Field Representative, 	for California
School 	Employees Association and its Norris 	Chapter #824; 	Fekete,
Carton, 	Hartsell, 	Grass, 	Ronich, 	Peters and Inman, 	by Phil
Lancaster, 	Bargaining Specialist, 	for Norris School District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
An 	exclusive 	representative 	of 	a 	classified bargaining unit
alleges 	that 	the 	employer unilaterally 	reduced 	the 	hours 	of 	a
vacant 	eight-hour unit 	position and 	replaced 	it 	with 	two 	five and
one-half 	hour positions 	without 	providing 	the 	representative with
(1) 	prior notice, 	(2) 	an opportunity to negotiate the decision,
or 	(3) 	the effects of such changes.
The 	employer denies 	that 	it 	reduced the hours 	of 	the
position 	in question. 	It 	insists 	that 	the vacated position
still exists, 	but remains unfilled. 	Instead, 	the employer
maintains 	that 	it 	declared the 	existence 	of vacancies 	in 	two
positions 	of 	a different 	classification, 	posted a 	job notice and
filled both vacancies 	in accord with applicable 	provisions 	of 	the
parties' 	collective bargaining agreement 	(CBA).
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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PROCEDURAL 	HISTORY
On March 15, 	1993, 	the California School Employees
Association and 	its Norris 	Chapter #824 	(CSEA) 	filed an unfair
practice 	charge 	against 	the Norris 	School 	District 	(District)
alleging unlawful 	conduct 	in violation of 	the 	Educational
Employment Relations Act 	(EERA or Act).1
The 	charge alleged that on or about October 15, 	1992, 	the
District 	unilaterally 	reduced 	the 	hours 	of 	a vacant 	eight-hour
maintenance/groundskeeper position and 	replaced 	it 	with 	two
groundskeeper/custodian 	positions 	of 	five-and-one-half 	hours
each. 	The 	charge 	further alleged that 	on or about 	October 28,
1992, 	February 7, 	1993, 	and March 1, 	1993, 	the District refused
to negotiate 	the 	decision to 	change 	the hours 	of 	the unit
position 	in question or the 	effects 	of 	such 	change 	in violation
of 	EERA.
Based on these allegations, 	the Office of 	the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issued a complaint 	on May 18, 	1993, 	alleging that 	the District's
conduct described above, 	was 	in violation of section 3543.5(a),
(b) , and (c).1
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to 	the Government 	Code.
2Section 3543.5 	states, 	in pertinent part:
3543.5. 	INTERFERENCE WITH EMPLOYEES' 	RIGHTS
PROHIBITED
It 	shall 	be unlawful 	for a public 	school
employer 	to do any of 	the 	following:
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(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.
The District answered the complaint on May 24, 	1993, 	denying
all material 	allegations 	of unlawful 	conduct. 	The District 	also
raised a number of 	affirmative 	defenses.
At an informal 	conference held on July 20, 	1993, 	the dispute
was not 	resolved.
After the 	case was 	noticed 	for 	formal 	hearing, 	the parties
agreed, 	on September 29, 	1993, 	that there were no material
factual 	disputes 	and 	requested to 	file 	declarations 	setting 	forth
their 	respective positions 	in lieu 	of 	a 	formal 	hearing. 	This
request was 	granted by the undersigned on October 13, 	1993,
provided 	that 	the parties 	agree 	to 	submit 	stipulations 	of 	fact
and 	relevant 	joint 	exhibits 	prior 	to 	submitting post-hearing
briefs.
The' stipulations 	of 	fact and exhibits were 	filed on
December 1, 	1993. 	On December 22, 	1993, 	CSEA filed a post-
hearing brief 	and the District 	filed a declaration 	in 	support 	of
33

its position. 	Thereafter the 	case was 	submitted for proposed
decision.
FINDINGS 	OF 	FACT
Most 	of 	the 	relevant 	factual 	matters 	in this 	case are not
disputed. 	The 	following 	findings 	of 	facts 	are based on the
parties' 	stipulations, 	which are set 	forth verbatim as 	follows:
1. 	California School 	Employees Association
Chapter #824 	is 	the employee
organization within 	the meaning 	of
Government Code section 3540.1 	(d) 	and
is 	the exclusive representative.
2. 	The Norris 	School District 	is 	the
employer 	in 	this matter within 	the
meaning 	of 	Government 	Code 	section
3540.1 (k).
3. 	On or about 	September 20, 	1992 	an 8-hour
per 	day 	Maintenance/Groundskeeper
position was vacated due 	to 	the
resignation of James White. 	Mr. 	White
received a 	full 	Health and Welfare
Benefit 	package 	under 	the 	applicable
provisions of. the 1991-93 Collective
Bargaining Agreement.
4. 	The vacated position of
Maintenance/Groundskeeper 	formerly 	held
by Mr. 	White was not 	filled.
5. 	On or about October 15, 	1992 	the
District 	posted 	two 	5 	1/2 	hour per day
vacancies 	in 	the 	job 	classification
Groundskeeper/Custodian. 	The posted
vacancies 	were 	subsequently 	filled.
6. 	The District's 	actions were 	consistent
with the provisions 	of Article XI,
Vacancy, 	section A of 	the 	1991-93
Collective Bargaining Agreement, 	which
states:
44

"A. 	When the District determines 	that a
vacancy exists 	and 	that 	the vacancy-
shall be 	filled, 	notice 	shall be posted
for 	five workdays 	in the District 	Office
and at 	each job 	site."
The District 	declared vacancies 	in 	the
positions 	of 	Groundskeeper/Custodian and
followed 	the 	Collective 	Bargaining
Agreement procedures 	to 	fill 	the
positions.
7. 	The 	1991-93 	Collective Bargaining
Agreement provides 	that 	the 	final 	step
in the 	grievance procedure 	is advisory
arbitration. 	California School
Employees 	Association has 	not 	filed a
grievance 	regarding 	this 	matter.
8. 	On or about December 16, 	1992
representatives 	for 	California 	School
Employees 	Association and 	the District
met 	in an attempt 	to 	resolve 	the matter.
9. 	The District 	has 	not 	subcontracted or
transferred 	the 	work 	of
Maintenance/Groundskeeper 	outside 	of 	the
bargaining 	unit.
10. 	The District has not 	reduced the hours
of any active employee, 	nor has 	it 	taken
action to 	lay off any employee. 	The
position was voluntarily vacated. 	The
net 	effect 	of 	the District's 	actions 	has
increased 	the 	number 	of 	bargaining unit
work hours.
The 	following 	findings 	of 	fact 	are based 	on 	evidence
presented 	in 	the 	joint 	exhibits 	submitted with 	the 	stipulations
of 	fact. 	These documents 	include the parties' 	CBA, 	in effect
from July 1, 	1990, 	through June 30, 	1993.3
3It 	is noted that Article XIV 	(Duration), 	section A, 	states
that after June 30, 	1993, 	the CBA will 	" . . . 	continue 	in effect
until 	a 	successor agreement 	is 	negotiated."
55

On September 30, 	1992, 	CSEA Field Representative Bob Baker
sent 	a 	letter 	to 	the District 	stating 	that 	CSEA had heard 	that
the 	District 	was 	considering 	replacing 	the 	eight-hour
maintenance/groundskeeper 	position vacated by 	James 	White 	(White)
with two 	five and one-half hour positions. 	Therefore, 	CSEA was
demanding 	to negotiate 	the 	(1) 	decision and effects 	of 	reduction
in hours of 	the vacant position, 	or 	(2) 	the effects of the
decision not 	to 	fill 	either 	the maintenance/groundskeeper
position 	or another vacant position 	in 	the 	grounds 	area.
The District 	responded to the 	letter on October 28, 	1992,
refusing 	to negotiate 	either matter. 	The 	letter 	further stated
that 	the procedures 	for 	filling vacancies 	was 	already negotiated
as provided for in Article XI 	(Vacancy), 	section A, 	of the CBA.
On November 13, 	1992, 	CSEA sent another letter to the
District 	renewing 	its 	demand to negotiate 	(1) 	the 	decision and
effect 	of 	the 	reduction 	in hours 	of 	the vacated
maintenance/groundskeeper position, 	(2) 	the effects of 	the
decision not 	to fill 	two unit positions, 	and 	(3) 	the wage
placement 	of 	the 	groundskeeper/custodian 	classification.4 CSEA's
letter stated 	that 	it understood one 	of 	the 	two
groundskeeper/custodian positions 	had been 	filled. 	This 	letter
also accused 	the District 	of 	assigning hours 	to 	the positions
that 	fell 	below the 	contractual 	eligibility 	level 	for health and
welfare benefits.
4The October 15, 	1992, 	job opening notice listed the 	salary
for 	the 	groundskeeper/custodian position as 	$8.44 	per hour.
66

Appendix 	"A" 	of 	the 	CBA is 	entitled 	"Regular Classified
Employees 	1991-92 	Salary Schedule." 	This 	schedule 	lists 	all
classifications 	in 	the bargaining unit by job 	title 	as 	of 	July 	1,
1991. 	Under the 	occupational 	grouping 	called maintenance,
operations and transportation 	(MOT) 	services, 	it lists, 	among
others, 	the classifications of maintenance/groundskeeper,
groundskeeper, 	and custodian, 	but 	the classification of
groundskeeper/custodian is 	not 	listed. 	Under the 	"hours/days"
column, 	all 	of 	the aforementioned positions are 	shown as 	eight-
hour positions.
At 	Step 	I 	of 	this 	schedule, 	the hourly rate 	for the
maintenance/groundskeeper was 	$9.09; 	for the groundskeeper $8.48;
and 	$8.33 	for 	the 	custodian.
Article 	II 	(Recognition) 	of 	the CBA contains 	the 	following
language 	regarding 	the placement 	of 	new positions 	in 	the
bargaining unit:
The District 	recognizes 	CSEA as 	the
Exclusive 	Representative 	for all 	classified
employees, 	excluding confidential, 	management
and supervisory employees, 	as 	recognized by
the 	Public 	Employment 	Relations 	Board
("PERB"). 	The District 	shall 	notify CSEA of
any 	newly 	created 	classified position,
including 	the 	proposed 	salary 	range 	and 	job
duties. 	Any newly 	created 	classified
position 	(excluding 	supervisory, 	management
and confidential positions) 	shall be placed
in the bargaining unit and shall 	be 	subject
to the 	terms of 	the Agreement. 	Disputed
cases 	shall 	be 	submitted to 	PERB 	for
resolution.
7
7

Article V 	(Insurance 	Programs) 	contains provisions 	related
to 	health and welfare benefits 	for members 	of 	the bargaining
unit. 	Section B(3) 	of that article reads as follows:
3. 	Effective July 1, 	1990, 	employees
must have a workday of 	at 	least 	six hours 	in
order 	to be 	eligible 	for pro-rated health and
welfare benefits.
Following the parties' 	unsuccessful 	attempt 	on December 	16,
1992, 	to resolve this matter, 	CSEA sent 	its 	final 	letter to the
District 	on February 15, 	1993. 	This 	letter protested the
District's 	failure 	"to meet 	and negotiate 	in good 	faith 	over
mandatory subjects 	of bargaining." 	It 	is 	not 	known whether 	the
District 	responded 	to 	this 	letter.
ISSUES
1. 	Whether the District 	took unilateral 	actions 	on matters
within the 	scope 	of 	representation?
2. 	If so, 	did such actions violate section 3543.5(a), 	(b)
and 	(c) 	of EERA?
DISCUSSION
I. 	Scope 	of 	Representation 	Issues
Although 	the parties 	are 	in 	substantial 	agreement 	about 	the
relevant 	facts 	of 	this case, 	they disagree 	in their
characterizations 	of 	the District's 	actions 	as 	they pertain to
matters 	that 	fall 	within 	the 	statutorily defined 	scope 	of
representation.
88

A subject 	is 	not 	negotiable 	if 	it 	is 	not 	encompassed by 	the
language 	of 	section 3543.25 which sets 	forth the 	"scope of
representation" 	under EERA.
In addition to the 	topics 	listed in section 3543.2, 	the
Board has 	adopted a 	test 	for determining 	the negotiability of
subjects 	not 	expressly enumerated 	in section 3543.2. 	In Anaheim
Union High school District 	(1981) 	PERB Decision No. 	177
(Anaheim)6, 	the Board determined that a subject will be deemed
negotiable 	if: 	(1) 	the 	subject 	is 	logically and reasonably
related 	to hours, 	wages 	or an enumerated term and condition of
employment; 	(2) 	the subject 	is of 	such concern to both management
and employees 	that 	conflict 	is 	likely 	to 	occur and 	the mediatory
5Section 3543.2 	provides 	in relevant part:
(a) 	The 	scope 	of 	representation shall be
limited to matters 	relating 	to wages, 	hours
of 	employment, 	and other terms and conditions
of 	employment. 	"Terms and conditions 	of
employment" 	mean health and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the 	evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the layoff 	of probationary
certificated 	school 	district 	employees,
pursuant 	to Section 44959.5 	of 	the 	Education
Code, 	and alternative compensation or
benefits 	for 	employees 	adversely affected by
pension 	limitations 	pursuant 	to 	Section 22515
of the Education Code, 	. 	. 	.
6This 	test 	was 	approved by 	the 	California 	Supreme 	Court 	in
San Mateo 	City 	School 	District/Healdsburg Union High 	School
District v. 	Public Employment Relations Board 	(1983) 	33 	Cal.3d
850 	[191 Cal.Rptr. 	800].
99

influence 	of 	collective negotiations 	is 	the appropriate means 	of
resolving the 	conflict; 	and 	(3) 	the employer's obligation to
negotiate 	would not 	significantly abridge 	its 	freedom to 	exercise
those managerial 	prerogatives 	essential 	to 	the achievement 	of 	its
mission.
These principles 	concerning 	the 	scope 	of 	representation will
be 	applied to 	the District's 	actions 	at 	issue here 	to determine
whether 	they 	concerned negotiable 	subjects.
A. 	Reduction 	in Hours 	of 	the Maintenance/Groundskeeper
Position
CSEA asserts 	that 	the District 	reduced the hours 	of 	the
vacant 	eight-hour maintenance/groundskeeper position when 	it
subsequently 	created 	the 	two 	groundskeeper/custodian positions 	at
lesser hours.
The District 	insists 	that 	it 	did not 	reduce 	the hours 	of
that position, 	and that 	it 	remains 	intact as a vacant position.
In a number of decisions, 	PERB has held that 	the 	level 	of
services 	that 	an employer decides 	to provide 	is 	nonnegotiable.
This 	includes 	the 	creation of 	new positions 	and a 	determination
of 	the number of hours to be assigned. 	(See, 	e.g., 	Mt. 	San
Antonio Community College District 	(1983) 	PERB Decision No. 	297,
p. 	3; 	Davis Joint Unified School District 	(1984) 	PERB Decision
No. 	393, 	pp. 	26-27.) 	Thus, 	if, 	as the District claims, 	it left
the 	existing maintenance/groundskeeper position vacant, 	this
decision was within 	its 	exercise 	of managerial 	prerogative.
However, 	this action did not 	relieve 	the District 	of 	the duty to
negotiate 	the 	effects 	of 	this 	decision on bargaining unit members
10

if 	it 	impacted matters within the 	scope 	of 	representation.
(Anaheim; 	Newman-Crows 	Landing Unified School 	District 	(1982)
PERB Decision No. 	223.)
CSEA has 	presented no 	evidence 	to 	support 	its 	claim that 	the
District 	actually 	reduced the 	hours 	of 	the vacant maintenance/
groundskeeper position when 	the 	two 	groundskeeper/custodian
positions 	were 	created. 	CSEA apparently believes 	that 	since 	the
maintenance/groundskeeper 	classification 	consisted 	of 	only 	one
position, 	which was 	occupied by White until 	he 	resigned 	in
September 1992, 	the District must have decided to reduce 	the
hours 	of 	that 	position 	in order to accomplish 	its 	subsequent
action.
However, 	it 	is noted that 	there 	is another groundskeeper
position 	in 	the unit 	that was 	also vacant at 	the 	time 	of White's
resignation. 	One 	could conjecture 	that 	the District 	decided to
reduce 	the hours 	of 	one 	or both vacant 	grounds positions when it
decided 	to 	create 	two new positions. 	But 	there 	is 	no 	evidence
which establishes 	that, 	in fact, 	the District governing board or
its administration took any action(s) 	to that 	effect. 	The
October 15, 	1992, 	job opening notice 	is 	the only evidence of an
"official" 	District action and it makes 	no express 	reference 	to
the maintenance/groundskeeper position as 	a predecessor position.
Nor 	is 	there 	evidence 	that 	the District decided 	to abolish
the maintenance/groundskeeper 	classification. 	In Alum Rock Union
Elementary School District 	(1983) 	PERB Decision No. 	322 	(Alum
Rock), 	the Board determined that the decision 	"to abolish a
11

classification and 	cease 	engaging 	in 	the 	activity previously-
performed by employees 	in that 	classification" 	is 	a managerial
prerogative. 	However, 	the effects on negotiable subjects of a
decision 	to abolish a 	classification would be 	a proper 	subject 	of
bargaining. 	(Healdsburg Union High School District, 	et al.
(1984) 	PERB Decision No. 	375 	(Healdsburg).)
Thus, 	if 	the District abolished the maintenance/
groundskeeper 	classification/position 	vacated 	by White 	with 	new
positions of 	lesser hours, 	at a minimum, 	the District had a duty
to bargain with 	CSEA over 	the 	effects 	of 	that 	decision 	on matters
within 	scope. 	(Alum Rock and Healdsburg.)
Absent 	evidence 	to 	support 	a 	conclusion that 	the District
either 	reduced 	the 	hours 	of 	an 	existing 	classification/position,
or abolished the 	classification, 	there 	is 	no basis 	for finding
that 	the 	District 	took action 	concerning 	the maintenance
/groundskeeper position 	in October 	1992 	that 	encompassed matters
within the 	scope 	of 	representation.
B. 	Creation 	of 	Groundskeeper/Custodian 	Positions
CSEA maintains 	that 	the 	District 	consolidated 	the 	duties 	of
two 	existing 	classifications 	to 	create 	a new job 	classification
that was 	nonexistent prior to October 	1992.
Although 	the District 	claims 	that 	it 	"declared 	the 	existence
of 	two vacancies" 	in the groundskeeper/custodian position, 	it has
not 	explained how these positions 	came 	into existence. 	There 	is
no proof 	that 	the 	classification was 	in the unit prior to White's
resignation 	in September 	1992.
12

The 	only plausible explanation for this 	"fiat" 	is 	that 	the
District 	decided 	to 	create 	a 	new 	classification/position 	to meet
its operational 	needs. 	Thus, 	for purposes 	of determining whether
or not 	the District 	took actions 	on a matter within the 	scope 	of
representation, 	it 	is 	concluded that 	the District 	declared the
two positions 	vacant 	by 	creating a new classification 	for 	the
positions.
The 	District 	further determined 	that 	the 	number of 	hours
allotted 	to 	these positions were 	to be 	less 	than those assigned
to 	the 	existing vacant grounds positions. 	The net 	effect 	of 	this
action, 	it contends, 	was to increase the number of bargaining
unit hours.
The 	creation of 	classifications 	is 	not 	specifically
enumerated as 	a 	term and 	condition 	of 	employment 	within 	the 	scope
of 	representation. 	However, 	in Alum Rock, 	the Board applied the
Anaheim test 	to 	this 	subject 	and 	concluded 	that
. 	. 	. 	where management seeks to create a new
classification 	to perform a 	function not
previously performed 	. . . 	it 	need not
negotiate its decision. 	[Fn. 	omitted.]
However, 	. 	. 	. 	those aspects of the creation
. 	. 	. 	of a classification which merely
transfer 	existing 	functions 	and 	duties 	from
one 	classification 	to another 	involve no
overriding managerial 	prerogative. 	Such
changes 	amount 	to 	transfers 	of 	work between
employees 	or groupings of employees, 	similar
to decisions 	to 	subcontract work or 	to
transfer work out 	of 	the bargaining unit.
[Fn. 	omitted.] 	They do not 	represent a
decision 	to undertake 	a new 	function 	or 	to
eliminate an existing function. 	Thus, 	no
decision on what 	functions 	are 	essential 	to
management's mission is 	involved. 	The 	same
functions 	are 	still being performed; 	an
13

existing 	classification 	is 	merely 	replaced by
a new 	classification 	to 	do 	the 	same work
under similar 	conditions 	of 	employment.
[Citation 	omitted.]
. 	. 	. Thus, 	under Anaheim, 	the decision to
transfer 	duties 	from one 	classification 	to
another is negotiable.
Here, 	the District has 	not 	rebutted CSEA's assertions 	that
it 	transferred duties 	from the 	existing 	classifications 	of
maintenance/groundskeeper 	and 	custodian 	to 	the 	"newly-created"
classification of 	groundskeeper/custodian. 	Although 	the 	duties
of 	the maintenance/groundskeeper and 	custodian positions 	were 	not
included 	in the 	documentation submitted by the parties, 	the
October 15, 	1992, 	job opening notice did include an extensive
list 	of 	duties 	to be performed by 	incumbents 	in 	the position.
According to 	the 	"job description" 	set 	forth on the notice, 	the
position 	is 	required 	to
. 	. 	. 	operate and maintain a variety of power
ground equipment; 	. 	. 	. perform
groundskeeping maintenance 	and 	gardening
functions; 	. 	. 	. 	[and] maintain an assigned
facility, 	group of buildings 	or office 	space
in a clean orderly and secure manner 	. 	. 	.
It 	is not known which, 	if any, 	of 	the former maintenance/
groundskeeper duties 	ceased to be performed or which, 	if any, 	of
the 	duties 	listed 	for 	the 	new position 	represent 	functions 	not
previously performed by 	employees 	in 	the 	pre-existing
classifications. 	However, 	since the custodian class 	still 	exists
and the new class 	includes 	custodian and grounds 	duties, 	the
"newly-created" 	classification undoubtedly 	represents 	the
transfer of 	existing duties 	to a 	retitled classification. 	Also,
14

it 	is 	noted 	that 	the new positions 	report 	to the 	same MOT
supervisor as 	the existing classifications. 	Thus, 	it appears
that 	the 	same 	functions 	are being performed, 	the 	same work is
being done under similar 	conditions 	of 	employment, 	but by
employees 	under a new job 	title.
Given this determination, 	it 	is 	concluded that 	the District
was 	obligated 	to negotiate 	the 	decision 	to 	transfer work 	from one
classification to another. 	(See Alum Rock, 	pp. 	12-13.)
C. 	Assignment 	of Wage Rate
Wages 	are 	clearly an enumerated 	subject 	of bargaining. 	The
California 	Supreme 	Court 	has 	held 	that 	the 	authority of 	an
employer 	to prescribe 	a 	classification does 	not 	encompass 	the
power 	to 	set 	the particular 	salary 	for 	such 	classification.
(Pacific Legal 	Foundation v. 	Brown 	(1981) 	29 Cal.3d 168, 	187 	[172
Cal.Rptr. 	487].) 	Further, 	salary adjustments 	for individual 	job
classifications 	within the 	same 	occupational 	group are
negotiable. 	(Sonoma County Board of Education v. 	PERB 	(1980) 	102
Cal.App.3d 689, 	697 	[163 Cal.Rptr. 	464]; Alum Rock.) 	Therefore,
the District 	was 	obligated 	to negotiate with CSEA over 	the
assignment 	of 	a 	salary range 	to 	the 	new 	classification of
groundskeeper/custodian. 	(See Alum Rock, 	p. 	16.)
II. 	Unilateral 	Change Allegations
To establish a prima 	facie 	case of a unilateral 	change, 	the
charging party must 	demonstrate 	facts 	sufficient 	to 	establish:
(1) 	the employer breached or altered the parties' 	written
agreement 	or previous understanding, 	whether that understanding
15

is 	embodied 	in a 	contract 	or evidenced 	from the parties' 	past
practice; 	(2) 	such action was 	taken without giving the exclusive
representative 	notice 	or an 	opportunity 	to bargain 	over 	the
change; 	(3) 	the change is not merely an isolated breach of 	the
contract, 	but amounts 	to a change of policy 	(i.e., 	has a
generalized 	effect 	or 	continuing 	impact 	upon bargaining 	unit
member's 	terms and conditions of employment); 	and 	(4) 	the change
in policy 	concerns 	a matter within 	the 	scope 	of 	representation.
(Grant Joint Union High School 	District 	(1982) 	PERB Decision No.
196; 	Pajaro Valley Unified School District 	(1978) 	PERB Decision
No. 	51; 	Davis Unified School District, 	et al. 	(1980) 	PERB
Decision No. 	116.)
Absent 	a valid defense, 	unilateral 	actions 	taken by an
employer without 	providing 	the 	exclusive 	representative 	with
prior 	notice 	and an 	opportunity 	to 	negotiate 	the 	proposed 	changes
in matters 	within 	the 	scope 	of 	representation 	constitute 	a
refusal 	to negotiate 	in good 	faith 	in violation of 	section
3543.5(c). 	(San Mateo County Community College District 	(1979)
PERB Decision No. 	94 	(San Mateo).)
In summary, 	on the 	facts presented here, 	it has been found
that 	the District was 	obligated to negotiate 	regarding: 	(1) 	the
transfer 	of 	unit 	work 	from two 	existing 	classifications 	to 	a
newly-created classification; 	and 	(2) 	matters 	related to 	salary,
including 	the 	salary 	range 	to which 	the 	newly-created
classification was 	assigned. 	Therefore, 	such actions 	amounted to
16

a 	change 	in policy 	concerning matters 	within the 	scope 	of
representation.
It 	is 	further undisputed that 	such action was 	taken without
giving 	CSEA prior 	notice 	or an 	opportunity 	to bargain 	over 	the
changes. 	CSEA made a timely demand, 	on or about 	September 30,
1992, 	to negotiate what 	it believed at 	the 	time was 	a decision to
replace 	the 	eight-hour maintenance/groundskeeper 	position with
two 	five 	and 	one-half 	hour positions. 	CSEA further demanded 	on
November 13, 	1992, 	to negotiate both the decision and the effects
of 	the 	rumored reduction 	in hours 	of 	the vacant positions 	and 	the
effects 	of 	the 	decision not 	to 	fill 	the 	two vacant positions 	in
the grounds 	area. 	The District 	refused CSEA's 	demand and
unilaterally 	adopted and 	implemented 	its 	decision 	to 	fill 	two
positions 	in 	the 	newly-created 	classification 	on 	or 	about
October 15, 	1992.7
The 	District 	also unilaterally determined 	the 	salary 	for 	the
newly-created groundskeeper/custodian 	classification, 	despite
CSEA's 	request 	to negotiate 	the wage placement 	of 	this
classification. 	This 	conduct 	not 	only breached the parties'
written agreement, 	which provided 	for notice 	to 	CSEA of 	newly-
created 	classifications, 	and undoubtedly 	the 	opportunity 	to meet
and negotiate 	over 	the subject 	of 	salary and job duties, 	but
apparently was 	a 	change 	from the parties' 	understanding 	that 	such
7CSEA does 	not 	challenge 	the 	right 	or 	the procedures
utilized by 	the District 	to 	fill 	the 	two 	contractual
groundskeeper/custodian 	positions.
17

negotiations would take place prior 	to 	the placement 	of 	a newly-
created position 	in 	the bargaining unit.
These 	actions 	by the District 	were 	not merely an 	isolated
breach of 	the 	contract, 	but 	amounted to a 	change 	in policy having
a 	generalized 	effect 	or 	continuing 	impact 	upon bargaining unit
members' 	terms and conditions 	of employment. 	Although the
parties 	met 	in an attempt 	to 	resolve 	their dispute 	in December
1992, 	there was no agreement 	to submit 	the matters 	to the
negotiating process.
Absent a valid defense, 	the District's unilateral 	change 	in
matters 	within 	the 	scope 	of 	representation without 	prior
notification 	CSEA and an 	opportunity 	to 	bargain 	the 	proposed
changes amounted to a violation of 	section 3543.5(c). 	(San
Mateo.)
III. 	District Defenses
The District 	argues 	in 	its 	declaration that 	the management
rights 	clause 	found in Article XVI, 	section C, 	of 	the CBA spells
out 	its 	reserved right 	"to determine 	the workforce."
Even accepting 	the 	District's 	assertion of managerial
prerogative, 	its actions 	cannot be excused on the basis 	of
contractual 	waiver.
PERB 	has 	adopted 	the 	standard 	for waiver used by 	the
National 	Labor Relations Board 	(NLRB), 	which requires 	that a
waiver of 	statutory 	rights 	be 	"clear and unmistakable." 	A waiver
will 	not 	be 	lightly 	inferred. 	(Amador Valley Joint 	Union High
18

School District 	(1978) 	PERB Decision No. 	74; 	Placentia Unified
School District 	(1986) 	PERB Decision No. 	595.)
In 	resolving whether a waiver of 	a 	course 	of 	action or
bargaining 	rights was 	"clear and unmistakable," 	express
contractual 	terms 	as 	well 	as 	evidence 	of 	negotiating history-
reflecting a 	conscious 	abandonment 	of 	the 	right 	to bargain 	over a
particular 	subject 	can be 	examined. 	(Palo Verde Unified School
District 	(1983) 	PERB Decision No. 	321.)
In this 	case 	the District 	is 	relying on broad management
rights 	language 	which does 	not 	expressly address 	the 	subject 	at
issue. 	A generally-worded management 	rights 	clause 	will 	not 	be
construed as 	a waiver of 	statutory bargaining 	rights. 	(See
Dubuque Packing Co. 	(1991) 	303 NLRB No. 	66 	[137 LRRM 1185].)
Since 	the 	language 	of 	section C does 	not 	cover the 	subjects 	of
unit 	classification or the District's 	right 	to 	set 	salaries 	for
such classifications, 	it 	is 	found that 	there 	is no 	"clear and
unmistakable" 	contractual 	waiver of 	CSEA's 	statutory bargaining
rights.
CONCLUSIONS
Based upon the 	entire 	record in this 	case, 	it has been 	found
that 	the 	District 	breached 	its 	obligation under 	EERA to negotiate
with CSEA when 	it 	unilaterally 	(1) 	transferred work 	from existing
unit 	classifications 	to a newly-created classification, 	and 	(2)
established 	the 	salary assigned 	to 	the 	new 	classification.
As a result 	of 	this 	conduct, 	it 	is 	found that 	the District
violated section 3543.5(c). 	This 	conduct also interfered with
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CSEA's 	right 	to 	represent 	its members 	in their employment
relations with the District 	in violation of 	section 3543.5(b).
Additionally, 	the 	same 	conduct 	interfered with 	individual 	unit
members' 	rights 	to be 	represented by their 	chosen representative
in 	their employment 	relations with the District 	in violation of
section 3543.5(a).
REMEDY
Section 3541.5(c) 	gives 	PERB the power to 	issue a decision
and 	order 	directing 	the 	offending party 	to 	cease 	and 	desist 	from
an unfair practice 	and to 	take 	such affirmative 	action as 	will
effectuate 	the policies 	of 	EERA.
CSEA seeks 	an 	order 	that 	the District 	be 	required 	to 	cease
and desist 	from 	its 	unlawful 	conduct 	and make 	affected unit
members whole 	for any loss 	of wages 	and benefits 	as 	a result
thereof.
In this 	case 	it 	has 	been 	found that 	the District breached
its 	obligation 	to negotiate 	in good 	faith with CSEA when 	it
unilaterally 	(1) 	transferred work 	from existing unit
classifications 	to a newly-created classification, 	and 	(2)
established 	the 	salary assigned 	to 	the 	new classification. 	This
conduct violated section 3543.5(c). 	This action also denied to
CSEA its 	right 	to 	represent 	unit members 	in violation of 	section
3543.5(b). 	It also interfered with employees' 	rights to
representation in violation of 	section 3543.5(a). 	It 	is 	thus
appropriate 	to 	order 	the 	District 	to 	cease 	and desist 	from the
foregoing, 	as well 	as any like 	or related activity.
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PERB also has 	the power to order restoration of 	the 	status
quo ante 	in order ensure 	that 	the 	employer does 	not 	benefit 	from
its wrongful 	conduct. 	CSEA has 	not 	requested restoration of 	the
status 	quo ante and thus 	it 	will 	not be 	ordered.
However, 	it 	is appropriate to order that the District, 	upon
request, 	meet 	and negotiate 	in good 	faith with CSEA about 	the
transfer 	of 	duties 	from the pre-existing grounds 	area
classifications 	to 	the 	newly-created 	groundskeeper/custodian
classification. 	Such negotiations 	should also 	include 	the 	salary
and any 	other benefits 	to be 	assigned 	to 	this 	classification.
However, 	to ensure 	that meaningful bargaining will 	occur
under 	conditions 	essentially 	similar 	to 	those 	that 	would have
existed had 	the District 	bargained at 	the 	time 	the Act 	required
it 	to do so, 	unless the parties reach a contrary agreement, 	the
District 	is 	ordered to make 	employees 	in the groundskeeper/
custodian 	classification whole 	for any difference 	between 	the
salary 	the 	parties 	agree 	upon 	and 	that 	unilaterally 	established
by the District, 	with interest at 	the rate of seven 	(7) 	percent
per annum from the date 	of 	the unilateral 	action 	(October 	15,
1992) 	until 	the date CSEA and the District 	reach agreement.
It 	is 	also appropriate 	that 	the District post 	a notice
incorporating 	the 	terms 	of 	the 	order herein. 	Posting of 	a 	such a
notice, 	signed by an authorized agent 	of 	the District, 	will
provide 	employees 	with notice 	that 	the District 	has 	acted 	in an
unlawful manner, 	has 	been ordered to 	cease and desist 	from this
activity, 	and will 	comply with the 	order. 	It effectuates 	the
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purposes 	of 	EERA that 	employees be 	informed of 	the 	resolution of
a 	controversy, 	and 	the District's 	readiness 	to 	comply with the
ordered remedy. 	(Placerville Union School District 	(1978) 	PERB
Decision No. 	69; 	Davis Unified School District, 	et al., 	supra.
PERB Decision No. 	116.)
PROPOSED 	ORDER
Based upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of
law and the entire 	record in this 	case, 	it 	is 	found that 	the
Norris 	School 	District 	(District) 	violated Government 	Code
section 3543.5(c) 	of 	the Educational 	Employment Relations Act
(EERA) 	by unilaterally: 	(1) 	transferring work from existing unit
classifications 	to 	a 	newly-created bargaining unit
classification, 	and 	(2) 	setting the salary for the new
classification. 	By the 	same 	conduct, 	it has been 	found that 	the
District 	also violated EERA section 3543.5(b) 	and 	(a).
Pursuant 	to section 3541.5(b) 	it 	is hereby ordered that 	the
District, 	its governing board and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to negotiate 	in good 	faith
with 	the 	California 	School 	Employees Association and 	its 	Norris
Chapter #824 	(CSEA), 	the exclusive representative of the
District's 	classified employees, 	by 	taking unilateral 	action
concerning employees' 	salary, 	and other terms and conditions of
employment within the 	scope 	of 	representation, 	including 	the
transfer 	of 	work 	from one 	classification 	to 	another;
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2. 	By the 	same 	conduct, 	denying to CSEA rights
guaranteed by EERA, 	including the 	right 	to 	represent 	its members;
and
3. 	Further, 	by the same 	conduct, 	interfering with
employees 	in 	the 	exercise 	of 	their 	rights 	guaranteed by 	EERA,
including 	the 	right 	to be 	represented by 	their 	chosen
representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Upon request, 	immediately meet and negotiate with
CSEA regarding 	(1) 	the 	transfer of work 	from one 	classification
to another, 	and 	(2) 	all matters related to salaries, 	including
the 	salary 	range 	to which 	the 	new classification 	of
groundskeeper/custodian 	is 	assigned.
2. 	Unless 	the parties 	reach a 	contrary agreement,
make 	employees 	in 	the 	groundskeeper/custodian 	classification
whole 	for any difference 	between 	the 	salary agreed upon by 	the
parties 	and 	that 	unilaterally 	established by the District, 	with
interest 	at 	the 	rate of 	seven 	(7) 	percent per annum for the
period beginning 	on 	the 	date 	of 	the 	unilateral 	action
(October 15, 	1992) 	until 	the date CSEA and the District 	reach
agreement.
3. 	Within ten 	(10) 	workdays 	of a final decision in
this matter, 	post at all 	school 	sites and all work locations
where notices 	to employees are 	customarily placed, 	copies 	of 	the
Notice attached hereto as 	an Appendix. 	The Notice must 	be 	signed
. 	by an authorized agent 	of 	the District 	indicating 	that 	the
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District 	will 	comply with the 	terms 	of 	this 	Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall 	be 	taken to ensure 	that 	the
Notice 	is not 	reduced in size, 	altered, 	defaced, 	or covered by
any other material.
4. 	Within thirty 	(3 0) 	workdays 	from service of a
final 	decision, 	submit written notification of 	the action taken
to 	comply with 	the 	Order 	to 	the 	Sacramento Regional 	Director 	of
the 	Public 	Employment 	Relations 	Board 	in accord with 	the 	Regional
Director's 	instruction. 	All 	reports 	to the Regional Director
shall 	be 	served 	concurrently 	on 	the 	charging party herein.
Pursuant 	to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions with 	the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within
20 	days 	of 	service 	of 	this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the 	record, 	if any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 	00.) 	A 	document 	is 	considered 	"filed" 	when
actually 	received before 	the 	close 	of business 	(5:00 p.m.) 	on the
last 	day set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than the 	last day set 	for filing 	. . . " 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must be 	served
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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 Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
W. JEAN THOMAS
Administrative 	Law Judge
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