San Ysidro School District (California School Employees Association and Its San Ysidro Chapter #154)) (PERB 1206E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN YSIDRO
CHAPTER 	#154,
Charging 	Party,
v.
SAN YSIDRO SCHOOL DISTRICT,
Respondent.
)
)
)
)
) 	Case No. 	LA-CE-3654
PERB Decision No. 	1206
June 23, 	1997
)
))
))
)
;
Appearances; 	California School 	Employees Association by Kent
Buchholz, 	Labor Relations Representative, 	for California School
Employees Association and its 	San Ysidro Chapter #154; 	Wagner &
Wagner by John J. 	Wagner, 	Attorney, 	for San Ysidro School
District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
DYER, 	Member: 	This 	case 	comes before 	the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by the
San Ysidro School 	District 	(District) 	to a 	PERB administrative
law judge's 	(ALJ) 	proposed decision 	(attached). 	In his proposed
decision, 	the ALJ held that 	the District violated section
3543.5(b) 	and 	(c) 	of 	the Educational Employment Relations
Act 	(EERA)1 when it unilaterally replaced a vacant 	7-hour
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
EERA section 3543.5 	reads, 	in relevant 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.
instructional 	aide 	(IA) 	position with two 	3.5-hour 	IA positions
without 	giving 	the 	California 	School 	Employees Association and
its San Ysidro Chapter #154 	(Association) 	notice or an
opportunity to bargain over the 	change.
The 	Board has 	reviewed the 	entire 	record 	in 	this 	case,
including the proposed decision, 	the hearing transcript, 	the
District's 	exceptions and the Association's 	response 	thereto.
The Board finds 	the ALJ's 	findings 	of 	fact and conclusions 	of 	law
to be 	free 	from prejudicial 	error and adopts 	them as 	the 	decision
of 	the Board 	itself.
ORDER
Upon the 	findings of 	fact, 	conclusions of 	law, 	and the
entire record in this 	case, 	it 	is 	found that 	the San Ysidro
School District 	(District) 	violated the Educational 	Employment
Relations Act 	(EERA), 	Government Code section 3543.5(b) 	and 	(c).
Pursuant to EERA section 3541.5(c), 	it is hereby ORDERED
that 	the District, 	its administrators and representatives 	shall:
22

A. 	CEASE AND DESIST FROM:
1. 	Converting 	the vacant 	7-hour 	instructional 	aide
(IA) 	position into two 3.5-hour IA positions, 	prior to the
completion of negotiations.
2. 	Denying the California School 	Employees
Association and 	its 	San Ysidro 	Chapter #154 	(Association)
the 	right 	to represent 	its unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Rescind the action of 	converting the vacant 	7-hour
IA position 	into 	two 	3.5-hour 	IA positions.
2. 	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 as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable steps 	shall be taken to 	insure 	that 	this
Notice 	is not 	reduced in size, 	defaced, 	altered or covered by
any material.
3. 	Written notification of 	the actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	San 	Francisco
Regional 	Director 	of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with the director's 	instructions. 	All 	reports 	to
the 	regional 	director shall 	be 	concurrently 	served on the
Association.
33

All 	other aspects 	of 	the 	charge and 	complaint 	are hereby
DISMISSED.
Member Johnson 	joined in 	this 	Decision.
Chairman Caffrey's 	concurrence begins 	on page 	5.

CAFFREY, 	Chairman, 	concurring: 	I concur in the finding that
the San Ysidro School District 	(District) 	violated
section 3543.5(b) 	and 	(c) 	of the Educational Employment Relations
Act 	(EERA) 	when 	it 	unilaterally 	converted a vacant 	7-hour
instructional 	aide 	position 	into 	two 	3.5-hour 	instructional 	aide
positions 	without 	giving 	the 	California 	School 	Employees
Association and 	its 	San Ysidro Chapter #154 	(Association) 	notice
and an opportunity 	to bargain over 	the 	change.
In Arcata 	Elementary School 	District 	(1996) 	PERB Decision
No. 	1163 	(Arcata), 	the Board refined its rulings with regard to
the negotiability of 	an employer's 	decision 	to 	change 	the 	hours
of a vacant position, 	stating:
Such a decision which reflects 	a 	change 	in
the nature, 	direction or level 	of service
falls 	within management's prerogative 	and 	is
outside 	the 	scope 	of 	representation.
Conversely, 	a decision to change 	the hours 	of
a vacant 	position which 	is 	based 	on 	labor
cost 	considerations 	and does 	not 	reflect 	a
change in the nature, 	direction or level 	of
service, 	is directly related to issues of
employee wages 	and hours 	and is within the
scope 	of 	representation.
(Fn. omitted.)
The Board balanced 	the 	employer's 	exercise 	of management
prerogative 	and 	the 	right 	of 	employees 	to be 	represented 	in
matters 	relating 	to terms 	and conditions 	of 	employment when 	it
adopted 	this 	approach.
In this 	case, 	it 	is 	clear that 	the District 	increased the
level 	of 	instructional aide service 	from 7 	to 14 hours. 	The
change 	in the 	level 	of service, 	embodied in the establishment 	of
55

two new 3.5-hour positions, 	is a matter of management prerogative
and outside 	the 	scope of 	representation.
Simultaneously, 	the District 	decided to replace 	the vacant
7-hour 	instructional 	aide 	position with 	two 	3.5-hour positions.
Under Arcata, 	if 	this decision was based on labor cost
considerations 	and did not 	reflect 	a 	change 	in the nature,
direction or level of service, 	it was negotiable. 	It 	is clear
that 	labor cost 	considerations were 	involved in this 	decision, 	as
they often are 	in today's 	fiscal 	environment, 	since the record
indicates 	that 	employees 	of 	the District who work less 	than
4 	hours per day do not 	qualify 	for 	the 	employee benefit package
offered by the District. 	The crucial question, 	therefore, 	is
whether the decision also 	reflected a 	change 	in the nature,
direction or level 	of 	service.1
I 	conclude 	that 	the 	circumstances 	here are analogous 	to
those 	the 	Board 	considered 	in Arcata. 	The 	two 	3.5-hour
instructional 	aide positions perform the 	same duties 	and services
previously performed by 	the 	7-hour position 	they 	replaced. 	The
District 	failed 	to 	establish 	that 	its 	decision 	to 	change 	the
hours 	of 	the vacant 	7-hour 	instructional 	aide position 	to 	two
3.5-hour positions 	without 	benefits 	reflected a 	decision 	to
change the nature, 	direction or level 	of 	service. 	Accordingly,
that 	decision was 	within 	the 	scope 	of 	representation and 	the
1Pursuant to Arcata, 	a decision to change the hours of a
vacant position which reflects 	a 	change 	in the nature, 	direction
or 	level 	of 	service may be 	outside 	the 	scope 	of 	representation
even 	if 	labor cost 	considerations 	are 	involved.
66

District 	was 	required to provide 	the Association with notice 	and
the opportunity to negotiate. 	When it 	failed to do so, 	and
unilaterally 	converted 	the 	7-hour position 	to 	two 	3.5-hour
positions, 	the District violated the EERA.
7

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-3654,
California 	School 	Employees 	Association and 	its 	San Ysidro
Chapter #154 v. 	San Ysidro School District, 	in which all 	parties
had the 	right 	to participate, 	it 	has been found that 	the
San 	Ysidro 	School 	District 	violated 	the 	Educational 	Employment
Relations Act 	(EERA), 	Government Code section 3543.5(b) 	and 	(c).
As 	a 	result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Converting 	the vacant 	7-hour 	instructional 	aide
(IA) 	position into two 3.5-hour IA positions, 	prior to the
completion of 	negotiations.
2. 	Denying 	the 	California 	School 	Employees
Association and 	its 	San Ysidro Chapter #154 	the 	right 	to
represent 	its unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Rescind the action of 	converting 	the vacant 	7-hour
IA position 	into 	two 	3.5-hour 	IA positions.
Dated: 	SAN YSIDRO 	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.
~
~

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION and 	its 	SAN YSIDRO
CHAPTER 	#154,
Charging 	Party,
v.
SAN YSIDRO SCHOOL DISTRICT,
Respondent.
)
)
)
)
) 	Unfair Practice
Case No. 	LA-CE-3654
PROPOSED DECISION
(1/21/97)
)
)
)
)
)
)
Appearances: 	Kent Buchholz, 	Labor Relations Representative,
for 	California 	School 	Employees Association and 	its 	San Ysidro
Chapter #154; 	Wagner and Wagner, 	by John J. 	Wagner, 	Attorney, 	for
San Ysidro School 	District.
Before Allen R. 	Link, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
On March 12, 	1996, 	the California School Employees
Association and 	its 	San Ysidro 	Chapter #154 	(CSEA) 	filed an
unfair practice 	charge with 	the 	Public 	Employment 	Relations 	Board
(PERB or Board) 	against 	the San Ysidro School District
(District). 	The charge alleged violations of subdivisions 	(a),
(b) 	and 	(c) 	of section 3543.5, 	which is a part of the Educational
Employment Relations Act 	(EERA or Act).1
JEERA 	is 	codified at 	Government 	Code 	section 3540 	et 	seq.
All 	section references, 	unless otherwise noted, 	are to the
Government Code. 	Subdivisions 	(a), 	(b) 	and 	(c) 	of section 3543.5
state:
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
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.

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.
On May 31, 	1996, 	the Office of 	the 	General 	Counsel 	of 	PERB,
after 	an 	investigation of 	the 	charge, 	issued a 	complaint 	against
the District 	alleging violations of 	subdivisions 	(a), 	(b) 	and 	(c)
of 	section 3543.5. 	On June 	20, 	1996, 	the District 	answered the
complaint, 	denying all material 	allegations.
A 	formal 	hearing 	was 	held 	before 	the 	undersigned 	on
October 4, 	1996. 	With the 	filing of 	the 	briefs 	by each 	side,
the 	matter was 	submitted 	for 	decision 	on 	December 	9, 	1996.
INTRODUCTION
CSEA 	accuses 	the 	District 	of 	unilaterally 	reducing 	the 	hours
of 	a 	seven hour 	a day 	instructional 	aide 	(IA) 	position. 	The
District 	insists 	there was 	no 	such 	reduction, 	but 	rather 	the
position 	has 	remained vacant. 	The 	District 	also 	insists 	it 	has
both 	statutory 	and 	contractual 	justification 	for 	its 	actions.
FINDINGS 	OF 	FACT
Jurisdiction
The parties 	stipulated, 	and 	it 	is 	therefore 	found, 	that 	CSEA
is 	both 	an 	employee 	organization 	and 	an 	exclusive 	representative,
and 	the 	District 	is 	a 	public 	school 	employer 	within 	the 	meaning
of 	the 	Act.
22

Relevant 	Circumstances
There 	is 	presently a 	collective 	bargaining agreement 	(CBA)
between the parties, 	which is due to expire, 	by its terms, 	on
June 30, 	1997. 	The District operates a number of elementary
schools, 	one of which is Sunset 	School. 	At 	that 	site 	it 	operates
a preschool 	program which utilizes 	IAs.
On September 15, 	1995, 	Norma Medina 	(Medina) 	retired from
employment 	with the 	District 	after 23 	years. 	Immediately prior
to her retirement, 	she had a 	seven hour per day 	IA position 	in
Belinda Meza's 	(Meza) 	preschool 	classroom at 	Sunset 	School.
Lorraine Ramirez 	(Ramirez), 	the CSEA chapter president, 	was
informed 	that 	Medina's 	position was 	being performed by 	substitute
employees. 	During the week of September 18, 	1995, 	Ramirez 	spoke
to 	Personnel 	Director Arthur La Cues 	(La Cues) 	about 	the matter.
He 	confirmed 	that 	Medina's 	duties 	were 	being performed by
substitute 	employees. 	Ramirez 	objected to what 	she believed was
a unilateral 	reduction in hours 	of Medina's position.
Shortly after Medina's 	retirement 	four new three 	and one-
half 	(3-1/2) 	hour 	IA positions were 	created by the 	District 	and
assigned to Meza's 	classroom. 	The 	net 	effect was 	that Meza 	had
two 	full-time 	equivalent 	aides 	in her 	classroom 	in 	the 	1995-96
school year, 	one more than the previous year.
La 	Cues 	admitted that 	the 	employees 	filling 	the 	four new
positions 	were 	doing 	the 	same 	duties 	that 	had been performed by
33

Medina.2 On 	cross-examination he 	admitted that 	he 	had never
observed Medina perform her duties, 	but 	he 	had observed the 	new
employees 	in Meza's 	classroom. 	There 	was 	little 	evidence
regarding the 	specific nature of Medina's 	classroom duties. 	It
was, 	however, 	acknowledged that 	she performed those duties
normally associated with an 	instructional 	aide 	in 	a 	classroom.
The 	District 	states 	that 	Medina's position has 	not 	been
eliminated and is 	still vacant. 	It 	insists 	that 	it 	has not been
filled with 	the 	newly hired 	employees.
There was no evidence 	showing that 	the governing board, 	at
the 	time 	the 	new positions were 	created, 	offered any rationale
reflecting a 	change 	in the nature 	or direction of 	service with
regard to Meza's 	classroom. 	The 	fact 	that Medina's 	seven hours
were 	replaced with 	fourteen hours 	does 	show an 	increased 	level 	of
service. 	However, 	no evidence was 	offered to show that 	the
increase 	required or 	justified the 	elimination, 	conversion or
reduction of Medina's 	position.
-------Employee 	Benefits
CBA Article 	XIV section B 	states 	that 	the 	District 	will
provide 	benefits 	only 	for employees 	who work half-time 	(four
hours per day) 	or more.
2There was 	no 	evidence proffered 	regarding 	the 	quantum of
support 	provided other than the number of 	hours 	the 	IAs 	spent 	in
Meza's 	classroom.
44

ISSUE
Did 	the 	District 	unilaterally convert 	a vacant 	seven hour
position to two three 	and one-half hour positions, 	thereby-
violating subdivisions 	(a), 	(b) 	or 	(c) 	of section 3543.5?
CONCLUSIONS 	OF 	LAW
A unilateral 	modification 	in 	terms 	and 	conditions 	of
employment 	within the 	scope 	or representation 	is 	a per 	se 	refusal
to negotiate. 	(NLRB v. 	Katz 	(1962) 	369 U.S. 	736 	[50 LRRM 2177].)
PERB has 	long recognized this principle. 	(San Mateo 	County
Community College District 	(1979) 	PERB Decision No. 	94.) 	The
modification can be to a provision of 	the parties' 	CBA, 	a side
agreement 	or an established past practice, 	but must 	have 	a
"generalized effect" 	or a 	"continuing 	impact" 	on bargaining unit
members. 	(Grant 	Joint Union High School 	District 	(1982) 	PERB
Decision No. 	196.)
Under subdivision 	(c) 	of 	section 3543.5 	a public 	school
employer 	is 	obligated to meet 	and negotiate 	in good 	faith with
its 	recognized 	employee 	organization 	about 	matters 	within 	the
scope 	of 	representation.
Section 	3543.2 	sets 	forth the Act's 	scope 	of 	representation.
It is, 	in pertinent part, 	as follows:
(a) 	The 	scope of representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	e m p l o y m e n t . . . .
A reduction 	in the 	hours 	of bargaining unit 	members 	is 	a
matter within the 	scope 	of 	representation. 	(North Sacramento
School District 	(1981) 	PERB Decision No. 	193.) 	Therefore, 	as a
5

general 	rule, 	if 	a school district 	reduces 	the hours of an
employee, 	it must negotiate both the decision and the 	effects 	of
such reduction. 	A reduction 	in the 	hours 	of 	a vacant 	position 	is
also a negotiable matter as 	it 	impacts 	"the number of 	hours which
have been regularly assigned. 	. 	. " t o the bargaining unit.
(Cajon Valley Union School 	District 	(1995) 	PERB Decision No.
1085.) 	However, 	a later decision, 	Arcata Elementary School
District 	(1996) 	PERB Decision No. 	1163, 	modified this rule, 	as
follows:
. 	. 	. 	a decision which reflects a change in
the nature, 	direction or level 	of 	service
falls 	within management's 	prerogative 	and 	is
outside 	the 	scope 	of 	representation.
Conversely, 	a decision to chancre the hours of
a vacant 	position which 	is 	based on 	labor
cost 	considerations 	and does not 	reflect 	a
change 	in the nature, 	direction or level of
service, 	is directly related to 	issues of
employee wages 	and hours 	and 	is 	within 	the
scope of 	representation. 	[Emphasis added;
fn. omitted.]
In this case, 	the facts are not 	in dispute. 	Medina, 	in her
prior position, 	performed 	IA duties 	in Meza's 	classroom for 	seven
hours 	each day. 	Shortly after she 	retired, 	the District 	created
four 	three 	and 	one-half 	hour positions 	and used 	those 	employees
to provide 	the 	same 	classroom 	support 	Medina 	had 	supplied 	in 	the
past.
In its opening argument, 	as well as 	in its brief, 	the
District 	insists 	that 	its 	decision 	to 	create 	four new positions
was 	a 	decision 	"to 	change 	the 	nature 	and level 	of 	preschool
instructional 	aide 	service."
66

The District 	has 	a management 	right 	to change 	"the nature
and level 	of preschool 	instructional 	aide 	service." 	The 	evidence
shows 	that 	it made 	a decision to 	increase 	the 	level 	of hours 	of
IA support 	in Meza's 	classroom. 	There 	is no dispute 	that 	the
District 	had the 	right 	to unilaterally 	increase 	the 	level 	of 	IA
support 	in Meza's 	classroom 	from 	seven 	to 	fourteen hours 	by
hiring two additional 	three and one-half 	hour 	IAs. 	However, 	this
decision 	does 	not 	justify the 	conversion of 	Medina's 	seven hour
position 	into 	the 	other 	two 	three 	and one-half 	hour positions.
The 	crucial 	question 	is whether 	the 	conversion of Medina's
position was 	effected 	for 	labor 	cost 	considerations.
There 	was 	no 	reason proffered 	for 	the 	conversion of
Medina's position, 	other than a general 	statement 	at 	the 	formal
hearing that 	it 	was 	done 	to 	"change 	the 	nature 	and 	level 	of 	. . .
IA service" 	in some unspecified manner. 	The CBA states 	that 	only
those 	employees 	that 	work a minimum of half-time, 	are 	eligible
for benefits. 	These 	two 	facts 	support 	an 	inference 	that 	the
reason 	for 	the 	conversion was 	labor 	cost 	considerations.3 As
such conversion was due to labor costs, 	it 	is within the 	scope of
representation 	and 	should have 	been 	negotiated.
However, 	the District also 	insists 	it has 	statutory and CBA
authority to 	take 	such actions. 	It 	cites 	CBA Article XV,
3The 	fact 	that 	the District, 	at 	the 	same time, 	increased the
level of 	IA support, 	does not negate this 	inference. 	The 	savings
in the 	cost 	of benefits made more 	resources 	available 	for the
additional 	salaries.
77

Classification, 	Reclassification and Abolition of 	Positions, 	as
support 	for its position, 	as 	follows:
A. 	The 	District may classify, 	reclassify or
abolish positions 	as 	long 	as 	any such action
is 	not 	inconsistent 	with any other provision
in this Article or Agreement.
B. 	The 	District 	shall 	notify CSEA in
writing prior 	to 	the 	creation of 	any new
classification, 	reclassification of an
existing 	classification 	or 	the 	abolition 	of
classifications.
C. 	Upon receipt 	by CSEA of 	the District's
written notice 	of 	its 	intent 	to 	classify,
reclassify or abolish classification, 	CSEA
shall 	notify the District 	in writing, 	within
10 working days, 	CSEA's 	intent 	to consult on
this 	subject. 	CSEA also may determine 	to
demand to negotiate 	a 	change 	in any new
salary granted because 	of 	a 	classification,
reclassification or 	abolition of position.
(Emphasis 	added.)
The 	District 	contends 	that 	when 	it 	notified CSEA of 	the
creation of 	the 	four new IA positions, 	its 	failure 	to request 	a
consultation 	somehow precluded 	it 	from objecting 	to 	the 	use 	of
these 	employees 	to perform the 	duties 	of 	Medina's 	position.
The 	District's 	reliance 	on 	CBA Article 	XV 	section A 	is
without merit. 	The District's 	contractual 	right 	to classify,
reclassify or abolish positions 	is not 	at 	issue. 	In addition,
the 	Board has 	adopted 	the 	National 	Labor Relations 	Board's
standard which requires 	a waiver of 	statutory rights 	be 	"clear
and unmistakable." 	It 	has held that 	a party waives 	its 	rights 	to
negotiate 	a 	subject 	only if 	it was 	"fully discussed" 	or
"consciously explored" 	and 	the 	union 	"consciously yielded" 	its
interest 	in the matter. 	(Los Angeles 	Community College District
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(1982) 	PERB Decision No. 	252; 	Placentia Unified School District
(1986) 	PERB Decision No. 	595.) 	It 	is clear the 	language in CBA
Article 	XV section A 	is 	not 	a 	clear and unmistakable
relinquishment 	of 	any CSEA rights. 	Nor was 	there 	any evidence
the 	subject 	issue 	was 	"fully discussed" 	or 	"consciously
explored." 	Therefore, 	it 	does not 	constitute 	a waiver of 	CSEA's
right 	to negotiate 	a 	reduction of 	hours 	of 	a bargaining unit
position.
The 	District's 	reliance 	on 	CBA Article 	XV 	sections 	B 	and 	C
is 	also without 	merit. 	When 	it 	created the 	four new positions,
it 	did not 	create, 	classify, 	reclassify or abolish any
classifications. 	As 	CSEA was 	under no obligation to request
consultation, 	its 	failure 	to do 	so did not preclude 	it 	from
objecting to 	the 	subject 	reduction 	in hours.
The 	District 	also 	cites 	Education 	Code 	provisions 	which
vest, 	in its governing board, 	the exclusive authority to create
classified positions 	and 	to 	assign persons 	to 	those 	classified
positions. 	Its 	argument 	seems 	to be 	that because 	it 	has 	such
statutory authority, 	CSEA may not 	object 	to 	its 	attempt 	to
implement 	a 	"change 	in the nature 	and level 	of 	preschool
instructional 	aide 	service" 	by effectively reducing the 	hours 	of
a bargaining unit position. 	This 	argument 	is not persuasive.
Its 	authority to 	"create 	and assign" 	does not give 	it 	the 	right
to violate 	the Act, 	i.e., 	modifying working conditions by a
unilateral 	reduction 	in 	the 	hours 	of 	a bargaining unit 	position.
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CSEA's Rights Were Violated
When 	the 	District 	unilaterally converted, 	and 	thereby
reduced, 	the hours of a bargaining unit position, 	it 	effectively
diminished CSEA's 	ability to 	represent 	the members 	of 	the
bargaining unit. 	Therefore, 	when the District 	took the 	charged
action, 	it 	interfered with CSEA's 	ability to properly represent
its members 	in their labor relations with the District, 	a
violation of 	subdivision 	(b) 	of 	section 3543.5.
Individual Employees' 	Rights Were Not Violated
The 	evidence 	shows 	that 	the 	unilateral 	reduction occurred
with regard to a vacant 	position. 	The 	effect 	of 	such action on
employees 	that 	may have 	wished 	to 	transfer 	into 	such position 	is
too remote 	to 	support 	a violation of 	subdivision 	(a) 	of 	section
3543.5.
SUMMARY
Based on all 	of 	the 	foregoing, 	it 	has been concluded that
the District 	has violated subdivision 	(b) 	and 	(c) 	of 	section
3543.5 when 	it 	(1) 	unilaterally reduced a vacant 	seven hour
position to 	two 	three 	and one-half 	hour positions 	and 	(2) 	denied
to 	CSEA rights 	guaranteed 	it 	by the Act.
REMEDY
The PERB, 	in section 3541.5(c), 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative action, 	including but 	not
limited to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
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In order to 	remedy the unfair practice 	of 	the 	District 	and
prevent 	it 	from benefitting from 	its unfair 	labor practices, 	and
to effectuate the purposes of the Act, 	it 	is appropriate to order
it 	to cease 	and desist 	from 	(1) 	reducing a vacant 	seven hour
position to two 	three 	and one-half hour positions, 	and
(2) 	denying to CSEA rights guaranteed to 	it by the Act.
It 	is 	also appropriate 	that 	the District 	be 	required to post
a notice 	incorporating the 	terms 	of 	this 	Order at 	all 	sites where
notices 	are 	customarily placed 	for 	classified employees 	of 	the
District. 	This 	notice 	should be 	subscribed by an authorized
agent 	of 	the District, 	indicating that 	it will 	comply with the
terms 	therein. 	The notice shall not be reduced in size, 	defaced,
altered or 	covered by any other material. 	Posting 	such a 	notice
will 	provide 	employees with notice 	the 	District 	has 	acted 	in an
unlawful 	manner 	and 	is 	being 	required to 	cease 	and desist 	from
this activity. 	It 	effectuates 	the purposes of 	the Act 	that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	District's 	readiness 	to 	comply with the 	ordered
remedy. 	(See 	Placerville Union School District 	(1978) 	PERB
Decision No. 	69.) 	In Pandol 	and Sons v. 	Agricultural 	Labor
Relations Board 	(1979) 	98 Cal.App.3d 580, 	587 	[159 Cal.Rptr.
584], 	the California District 	Court of Appeals 	approved a similar
posting requirement. 	(See 	also National 	Labor Relations 	Board v.
Express Publishing Co. 	(1941) 	312 U.S. 	425 	[8 LRRM 415].)
11

PROPOSED 	ORDER
Based on the 	foregoing 	findings of 	fact, 	conclusions 	of 	law,
and the 	entire 	record in this 	case, 	it 	is 	found that 	the 	San
Ysidro School District 	(District) 	violated subdivisions 	(b) 	and
(c) 	of Government 	Code section 3543.5 	of 	the Educational
Employment Relations Act 	(Act). 	Therefore, 	it is hereby ORDERED
that the District, 	its administrators, 	and representatives shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Converting 	the vacant 	seven hour preschool
instructional 	aide 	(IA) 	position 	into 	two 	three 	and one-half 	hour
positions, 	prior to the completion of negotiations.
2. 	Denying to 	the 	California 	School 	Employees
Association and its 	San Ysidro Chapter #154 	(CSEA) 	the 	right 	to
represent 	its unit members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Within thirty 	(3 0) 	workdays of the 	service of this
decision, 	rescind the 	action of 	converting the vacant 	seven hour
IA position 	into 	two 	three 	and one-half 	hour positions.
2. 	Within ten 	(10) 	workdays of 	service of a 	final
decision 	in this matter, 	post 	at 	all 	sites where notices 	are
customarily placed 	for classified employees, 	copies 	of 	the 	notice
attached hereto 	as 	an Appendix. 	The notice must 	be 	signed by an
authorized agent 	of 	the District, 	indicating that 	it will 	comply
with the 	terms 	of 	this Order. 	Such posting shall 	be maintained
for a period of 	thirty 	(30) 	consecutive workdays. 	Reasonable
12

steps 	shall 	be 	taken to 	insure 	that 	the 	notice 	is 	not 	reduced 	in
size, 	altered, 	defaced or covered by any other material.
3. 	Upon issuance of a final decision, 	make written
notification of 	the 	actions 	taken to 	comply with this 	Order 	to
the 	San 	Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations Board 	in accordance with her 	instructions. 	Continue 	to
report, 	in writing, 	to the regional 	director thereafter as
directed. 	All 	reports 	to the 	regional 	director shall be
concurrently 	served 	on 	the 	charging party herein.
It 	is 	further Ordered that 	all 	other aspects of 	the 	charge
and complaint 	are 	hereby DISMISSED.
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 Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the 	close of business 	(5 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 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
13

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 Regs., 	tit. 	8, 	secs,
32300, 	32305 and 32140.)
ALLEN R. 	LINK
Administrative 	Law 	Judge
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