Oakland Unified School District (PERB 0367E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
OAKLAND SCHOOL EMPLOYEES ASSOCIATION,
Charging 	Party,
v.
OAKLAND UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. 	SF-CE-469
PERB 	Decision No. 	367
December 	16, 	1983
Appearances; 	Andrew Thomas Sinclair, 	Attorney for Oakland
School Employees Association; 	Sharon D. 	Banks 	and Brian M.
Libow, 	Attorneys 	for Oakland Unified School District.
Before Gluck, 	Chairperson; 	Tovar and Morgenstern, Members.
DECISION
MORGENSTERN, 	Member: 	This case 	is before 	the Public
Employment Relations Board 	(PERB or Board) 	on exceptions 	filed
by 	both 	the 	Oakland 	School Employees Association 	(OSEA or
Association) 	and 	the Oakland Unified School District 	(District)
to 	the proposed 	decision of 	an 	administrative 	law judge 	(ALJ).
Generally, 	OSEA excepts 	to 	the dismissal of 	its 	charges
alleging 	that 	the District violated 	subsections 3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act 	(EERA or
Act)l 	by 	contracting 	out white 	collar 	bargaining 	unit 	work
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	statutory 	references 	herein 	are 	to 	the Government
Code 	unless 	otherwise 	noted.
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to 	temporary 	employees 	and 	by 	assigning 	overtime 	security watch
work 	to employees 	in 	another 	bargaining 	unit. 	The District
excepts 	to 	the ALJ's 	findings 	that 	it violated 	these
subsections 	of EERA 	by 	unilaterally 	standardizing 	the 	hours 	of
paraprofessional 	employees 	and 	by 	unilaterally 	adopting 	a
three-year 	school calendar.
The Board 	has 	reviewed 	the ALJ's 	proposed 	decision 	in 	light
of 	the parties' 	exceptions 	and 	the 	entire 	record 	in 	this
matter. 	For 	the 	reasons discussed 	herein, 	we 	affirm 	in part
and 	reverse 	in 	part 	the ALJ's 	proposed 	decision.
FACTS
The 	District 	employs 	approximately 	7,200 	persons 	organized
into 	12 	bargaining 	units. 	OSEA 	is 	the 	exclusive 	representative
of 	two bargaining 	units of classified 	employees, 	white 	collar
and 	paraprofessional, 	each 	of which 	consists 	of 	approximately
1,000 	employees.
At 	all 	times 	relevant 	to 	this 	case, 	OSEA and 	the District
were 	parties 	to 	collective 	bargaining 	agreements 	for 	each of
these 	units. 	The white 	collar 	agreement was 	effective
April 4, 	1979 	to June 30, 	1981. 	The paraprofessional agreement
was effective December 	12, 	1979 	to June 30, 	1981. 	Both
agreements provide 	for 	reopeners 	in 	1980-81 on wages, 	health
and 	welfare 	benefits 	and 	school district 	annuity
contributions. 	Both 	provide 	for 	advisory 	arbitration of
grievances.
22

During 	the 	spring 	and 	summer of 	1980, 	the parties 	engaged
in three 	sets of negotiations. 	In April 1980, 	negotiations
commenced 	on 	the 	effects 	of 	a 	layoff 	which 	took 	place 	in
June 	1980. 	Negotiations 	on 	the 	1980-81 calendar 	began on
May 14, 	1980. 	The parties 	began negotiating 	reopeners on
August 8, 	1980 	and 	reached 	agreement on September 	15, 	1980.
The Association alleges 	that, 	during 	this period, 	the
District 	took 	unilateral 	action 	and 	failed 	and 	refused 	to
negotiate 	regarding 	the 	following matters: 	the 	subcontracting
of white 	collar 	unit 	work; 	the 	assignment of overtime 	security
watch 	work; 	the 	standardization of 	hours of paraprofessionals;
and 	the 	adoption 	of 	school calendars.
Subcontracting 	of White 	Collar 	Unit Work
In February 1979, 	the District 	initiated 	a procurement 	and
hiring 	freeze 	and 	formed 	a 	"freeze 	committee" 	to 	review all
requests 	for 	procurement 	or 	hiring. 	In July and August 	1979,
when preparing 	the 	budget 	for 	fiscal year 	1979-80, 	the District
decided 	to maintain 	100 	vacancies 	in 	the 	classified 	service 	in
lieu of 	layoffs. 	The 	freeze 	committee 	was 	to 	insure 	that 	the
100 	vacancies 	were maintained.
Sometime during 	the beginning of 1980, Ann C. 	Sprague, 	OSEA
President, 	began 	receiving 	complaints 	from members 	of 	the white
collar 	bargaining 	unit 	that 	the 	District was 	hiring 	temporary
personnel 	to provide 	secretarial 	and 	clerical 	services 	normally
provided 	by members 	of 	the 	unit.
33

In mid-March 	1980, 	Sprague made 	a presentation 	to the
District 	board 	requesting 	information 	concerning 	the 	number 	and
cost 	of 	temporary personnel being 	used 	by 	the District. 	On
March 	20, 	OSEA Grievance Officer William F. 	Freeman wrote 	a
letter 	to Superintendent 	Ruth B. 	Love 	requesting 	a
" . . . 	detailed 	report 	on 	the 	District's 	use 	of 	Sub-Contract
'temporary' 	employees 	from 	the 	Kelly or 	other 	like
services 	. 	. 	. 	." 	Freeman expressed concern that 	the District
was 	circumventing 	the 	OSEA 	contract 	by 	replacing 	permanent
staff 	with 	temporary personnel 	for 	long 	periods of 	time, 	and
stated 	that 	OSEA considered 	"Sub-Contract 	services" 	a
negotiable 	item.
On March 	26, 	Superintendent Love 	prepared 	a memo 	to 	the
board 	stating 	that 	temporary 	personnel 	are 	hired 	for 	two
reasons: 	to do a 	special project 	for 	a specified period or 	to
fill 	a position which 	has 	been posted, 	but 	not 	filled.
District Business Manager 	W. 	B. 	Lovell wrote 	to Freeman on
April 	9 	reiterating 	the points 	included 	in 	the 	superintendent's
memo 	to 	the 	board 	and 	denying 	any 	attempt 	by 	the 	District 	to
circumvent 	or 	violate 	any provision of 	the OSEA contract.
On April 	29, 	Freeman 	sent 	a 	letter 	to Superintendent Love
demanding 	to 	bargain 	over 	the 	subject 	of 	subcontracting 	for
temporary 	services 	and 	threatening 	to 	file 	an 	unfair 	practice
charge 	if 	the District 	refused 	to bargain over 	the matter.
A
4

On May 5, 	Ruth M. 	McClanahan, 	District Director 	of Staff
Relations 	and Chief Negotiator, 	responded 	to Freeman, 	stating
that 	she 	presumed OSEA was 	considering 	subcontracting 	to 	be 	an
"effect 	of 	layoff," 	and 	that 	negotiations 	had 	commenced 	on
April 	1 on 	the 	effects of 	layoffs 	scheduled 	to occur 	in June.
On May 7 	and 	13, 	OSEA notified 	the 	District 	board 	president
about 	its 	concern over 	the 	increased 	use 	of 	temporary clerical
personnel 	and 	again 	threatened 	to 	file 	an 	unfair 	practice
charge 	if 	the District 	did 	not 	immediately 	agree 	to 	bargain
over 	this 	subject. 	There 	is 	no 	record 	of any District 	response
to 	this 	demand.
On May 27, 	1980, 	the 	instant charge was 	filed. 	At 	the 	time
of 	hearing, 	the District 	provided 	detailed 	data 	regarding 	the
use 	of 	temporary personnel.
The 	following District 	figures 	show 	that 	expenditures 	for
temporary 	services 	for 	all 	classified 	employees, 	including 	the
white 	collar 	unit, 	increased 	tenfold during 	the 	1979-80 	school
year:
July 1979 	$ 	679
August 1979 	7,234
September 	1979 	No 	payments 	made
October 1979 	6,426
November 	1979 	3,000
December 	1979 	4,127
January 1980 	20,772
February 1980 	11,827
March 1980 	26,937
April 1980 	45,254
May 1980 	22,911
June 1980 	60,146
5

The 	District 	testified 	that 	these 	temporary personnel were
hired 	primarily 	to 	fill 	positions 	which 	had 	been 	posted 	but 	not
filled; 	others 	were 	short-term 	substitutes 	for 	persons 	on 	leave
and 	for 	special projects 	of 	a 	specified 	duration.
During 	the 	1979-80 	school year, 	48 	temporary personnel
worked a period of 	three months or more. 	While 	it 	is 	not
possible 	to determine 	in which 	classifications 	these
individuals 	worked, 	the 	record 	indicates 	that 	the 	biggest 	need
for 	temporaries 	was 	for 	typist 	clerks. 	During 	the 	period
February-April 	1980, 	white 	collar 	vacancies 	ranged 	from 82-93
weekly or 	an average 	of 87; 	total classified vacancies 	ranged
from 122-136 	weekly or 	an 	average of 	128. 	Thus, 	white 	collar
positions 	constituted 	a 	sizeable majority of 	total 	classified
vacancies.
During 	1979-80, 	the cost 	to the District 	for 	a contract
clerical 	was 	approximately $7.50 	per 	hour 	as 	compared 	with
$9.97 per 	hour, 	including benefits, 	for 	a permanent District
employee 	classified 	as 	a 	secretary or 	senior 	typist 	clerk.
Overtime 	Security Watch Work
"Watch 	work" 	consists 	of patrolling 	the 	grounds 	and
maintaining 	security 	at 	school 	sites 	that 	do 	not 	have 	an
automated 	security system. 	At 	least 	two 	sites 	have 	daily
24-hour 	coverage, 	and 	another 	10 	sites 	have 	24-hour 	coverage 	on
weekends 	and 	holidays. 	The 	weekend 	and 	holiday 	assignments 	are
66

extra-duty 	overtime 	and 	are 	paid 	at 	time 	and 	one-half. 	For
approximately 	22 	years, 	the 	extra-duty weekend 	watch 	shifts
have 	been 	performed 	by 	both 	regular 	security watchpersons 	and
custodians.
Security watchpersons 	are 	members 	of 	the 	white 	collar 	unit
represented 	by OSEA. 	During 	1979-80, 	the District 	employed
five 	security watchpersons. 	However, 	the District 	is phasing
out 	the 	class 	as 	automated 	security 	systems 	are 	installed 	and,
at 	the 	time of hearing, 	three 	such positions 	existed.
The District 	employs 	243 	custodians who 	are 	in a
"custodian" 	bargaining 	unit 	represented 	by 	another 	employee
organization. 	When 	custodians 	perform watch 	work 	on 	weekends
or 	holidays, 	it 	is called 	"custodial watch work," 	which 	the
District 	regards 	as 	temporary 	watchperson work. 	Custodians 	are
assigned 	a 	second 	primary 	job number 	and, 	like 	security
watchpersons, 	are 	compensated 	for 	such work 	at 	a 	rate 	one 	and
one-half 	times 	the 	highest 	grade 	in 	the 	security watchperson
classification.
Overtime 	watch 	assignments 	are 	scheduled 	and 	assigned 	each
week 	by 	the 	supervising 	custodian 	at 	each 	site 	from a 	list of
volunteers. 	Individuals 	at 	a particular 	site 	have 	first 	choice
of working 	overtime 	at 	that 	site.
In 	late March 	1980, 	a 	security watchperson named
Joe 	Godfrey 	was 	"bumped" 	from his 	regular 	weekend 	overtime
assignment. 	With 	the 	exception of a brief period, 	for 	nearly
7

four 	years, 	Godfrey's 	assignment 	from Monday 	through Friday was
10:30 	p.m. 	to 6:30 	a.m., 	including 	one-half 	hour 	of overtime.
He 	would 	then 	work 	the 	6:30 	a.m. 	to 2:30 	p.m. 	overtime 	shift 	on
Saturday 	so 	that 	his 	overtime 	assignment was 	contiguous 	with
his Friday 	assignment.
Upon 	reporting 	to work one 	day 	in 	late March, 	Godfrey 	found
that 	his 	name 	had 	been 	taken off 	the 	weekend 	security watch
sign-up 	list 	and 	replaced 	by 	that 	of 	a 	custodian who wanted 	to
work 	the 	same 	shift. 	On March 25, 	Godfrey spoke 	with
Thomas J. 	Hagen, 	field 	supervisor 	of both custodians 	and
security 	watchpersons 	for 	the 	area 	that 	included 	Godfrey's 	work
site. 	Hagen 	told Godfrey 	that 	custodians 	had 	priority 	for
selecting 	preferred 	weekend 	assignments 	and 	that 	assignments 	to
each 	shift, 	henceforth, 	were 	to be on a rotating basis.
Because Godfrey did 	not 	wish 	to work 	other 	than 	his 	regular
overtime 	assignment, 	he worked 	nine 	fewer 	overtime 	shifts
during April, 	May and June 	than he 	had 	during January, 	February
and March. 	In July, 	his overtime 	shift was 	restored.
On April 	14, 	OSEA 	filed 	a 	grievance 	on behalf of Godfrey
contending, 	among other 	things, 	that 	since 	security watchperson
positions 	are 	in 	the white 	collar 	unit, 	persons 	in 	that 	unit
should 	have 	first 	priority 	for 	weekend 	assignments.
The 	same day 	that 	the 	grievance was 	filed, 	John D. 	Wimberly,
Director 	of Building Operations, 	ordered 	that 	the 	one-half 	hour
overtime 	which 	security watchpersons 	had worked 	daily, 	was 	to
be 	eliminated 	effective 	immediately.
8

On April 	23 	and 	25, 	OSEA 	filed 	additional grievances
charging 	that 	Godfrey's 	regular 	assignment 	was 	reduced 	from
eight 	to 	seven 	and 	one-half 	hours 	per 	day 	in 	retaliation 	for
his 	having 	filed 	the 	first 	grievance, 	and 	that 	the 	elimination
of 	overtime 	for 	all 	security watchpersons 	was 	arbitrary,
discriminatory 	and 	a 	violation 	of 	the 	District's 	duty 	to
negotiate 	with OSEA.
District Business 	Manager 	Lovell 	responded 	on April 	29 	that
the 	District 	board 	had 	eliminated 	all 	overtime 	assignments 	in
September 	1979, 	and 	that overtime hours 	for 	security
watchpersons 	had 	not 	been 	eliminated 	at 	that 	time 	due 	only 	to
"pure 	oversight" 	on his 	part. 	He 	explained 	that Wimberly's
action 	was 	taken 	upon 	his 	orders 	and 	reflected 	District 	board
policy.
On May 	12, 	Freeman wrote 	to 	the 	superintendent 	demanding 	to
bargain over 	the matter. 	There 	is 	no evidence 	of 	a District
response.
The 	current 	collective 	bargaining 	agreement 	for 	the 	unit
contains 	no provisions 	defining 	bargaining 	unit 	work 	or
prohibiting 	or 	restricting 	the 	assignment 	of 	work 	outside 	the
bargaining 	unit. 	Article 	IV of 	the 	contract provides 	that
"Full-time 	assignments 	are 	7.5 	hours 	per 	day" 	and 	that
"Overtime 	. 	. 	. 	may only be performed upon assignment by a
supervisor. 	. . . "
99

Standardization 	of Hours 	of Paraprofessionals
The 	paraprofessional 	unit 	consists 	of 	instructional,
community, 	and 	health 	assistants 	who work 	on 	an 	hourly 	basis
and 	are 	funded 	by 	state 	and 	federal programs. 	When 	these
programs were 	initiated 	in 1964, 	paraprofessionals were hired
by principals 	at 	the 	individual 	school 	sites 	and 	were 	required
to 	live 	in 	the 	surrounding 	community. 	At 	the 	time of 	the
hearing, 	some 	instructional 	aides were 	employed 	at 	schools 	in
communities 	other 	than 	those 	in which 	they 	lived.
Paraprofessionals worked 	a variety of 	hours, 	ranging 	from 2 	to
6 	hours per 	day, 	with 	some paraprofessionals working 	3, 	3-1/2,
4, 	4-1/2, 	5 and 5-1/2 hours.
In April 	1977, Angelo Lievore, 	then District Administrative
Director 	of Personnel, 	initiated 	a policy of 	standardizing 	the
hours 	of 	newly 	hired 	paraprofessional employees 	at 	three 	or 	six
hours 	per 	day 	in order 	to provide 	uniformity 	in 	the 	accrual of
seniority 	and 	to 	avoid 	favoritism 	in hiring 	by 	school
principals. 	Lievore 	communicated 	the policy 	in an
August 30, 	1977 memo 	to all principals 	and 	in May 1980 memos 	to
the 	superintendent 	and 	to Bonnie Crosse, 	a project 	coordinator
at Longfellow School. 	However, 	several District witnesses
testified 	that 	they 	had 	never 	heard 	about 	the 	standardization
policy, 	and 	the 	policy was 	apparently not 	applied 	to 	23
instructional 	aides 	hired 	after March 	1977 	who were 	placed 	in
other 	than 	three-hour 	or 	six-hour 	positions.
10

Each 	school 	site 	draws 	up 	its 	own 	budget 	for 	its 	use 	of
"categorical 	funds" 	based 	on 	its 	total 	allocation of 	funds 	from
the District Office of State 	and Federal Programs. 	In 	the
spring 	of 	1980, 	the Office 	of State 	and Federal Programs
informed 	the 	school 	sites 	that 	budget 	reductions 	would 	be
necessary 	for 	the 	1980-81 	school year. 	School 	sites were
instructed 	to 	draw up 	their 	budgets 	accordingly. 	Attempts 	to
reduce hours 	of paraprofessionals, 	however, 	were 	subject 	to the
District's 	policy 	that 	any 	hours 	reduction 	had 	to be 	to 	a
three-hour 	"slot."
In May 	1980, 	OSEA 	learned 	that 	a number 	of 	unit members 	had
received 	notices 	from 	their 	site 	administrators 	or 	principals
informing 	them 	that 	their 	hours 	had 	been 	reduced 	for 	the
1980-81 	school year. 	On May 	12, 	OSEA wrote Ruth McClanahan
demanding 	that 	the 	District 	bargain 	about 	the 	proposed
reduction 	and 	notify 	the 	school 	sites 	immediately 	that 	there
was 	to be 	no 	reduction 	in hours 	without 	prior 	bargaining 	with
OSEA.
At 	a meeting 	on May 	14, 	the 	District 	assured OSEA 	that 	its
standardization 	policy 	involved 	the 	reduction 	of 	hours 	of
positions 	but 	not 	the 	hours 	of employees. 	Any employee whose
hours 	were 	reduced 	would 	be 	able 	to 	retain 	the 	same 	number 	of
hours 	by 	transferring 	to 	another 	location.2 The 	District
2According 	to District 	policy, 	when 	employees 	could 	not
be 	transferred 	to other 	positions 	with 	the 	same 	number 	of
11

agreed 	to communicate 	this 	policy 	in writing 	to 	the 	site
administrators 	and 	to provide OSEA with 	a 	copy of 	such
correspondence. 	No 	such memo was 	ever 	sent.
At 	a meeting 	during 	late May or 	early June 	1980, 	Sprague
requested 	and 	was 	briefly 	shown 	a 	copy of 	the 	1977
standardization policy. 	Though 	the 	District 	promised 	to
provide OSEA with 	a 	copy 	of 	the 	policy 	and 	OSEA made 	a 	number
of 	requests 	for 	it, 	the policy was 	never 	provided.
Two OSEA polls of 	its members, 	on May 21 and June 	10,
indicated 	that 	18 	and 	21 	paraprofessional 	employees,
respectively, 	had 	been 	informed 	that 	their 	positions 	would 	be
reduced 	to 	three 	hours or 	eliminated. 	On May 	27, 	OSEA again
demanded 	bargaining 	about 	implementation 	of 	the 	policy of 	hours
reduction/standardization.
The 	District made 	no 	reply 	to 	the Association's 	demand 	for
bargaining. 	However, 	on June 	11, 	in the 	course of bargaining
on 	another 	matter, 	McClanahan 	informed OSEA 	that 	the District
had 	decided 	not 	to 	reduce 	the 	hours 	of paraprofessional
employees 	for 	the 	1980-81 	school year. 	Since June 	11 was 	also
the 	last 	day of 	the 	school year, 	OSEA President Sprague 	sent
hours, 	the Office 	of State 	and Federal Programs would pay 	the
difference 	in 	the 	employee's 	salary 	between 	the 	number 	of 	hours
for 	which 	the 	local 	school 	site 	could pay 	and 	the 	number 	of
hours previously worked. 	However, 	to 	avoid 	the hiring of
excess 	personnel, 	site 	administrators 	were 	not 	informed 	about
the 	availability of 	subsidies. 	The policy was 	only
communicated 	to 	the 	District's 	top 	administrative 	personnel 	or
"cabinet."
12

out 	a 	flier 	to members of 	the 	paraprofessional 	unit 	so 	advising
them.
On August 	11, 	employees 	received 	a memo 	from the 	District
telling 	them 	to 	return 	to 	the 	same 	site 	to which 	they 	had 	been
assigned 	in 1979-80, 	for 	the 	same number of hours, 	unless 	they
received 	an 	"official 	notification 	from 	the 	Office 	of
Classified 	Personnel."
The 	first 	day 	of 	school was September 	5. 	In mid-September
1980, 	the Office of Classified Personnel 	sent notices 	to
paraprofessional 	employees 	informing 	them 	that 	the 	hours 	of
their 	positions 	had 	been 	reduced 	to 	three 	hours. 	Employees
with 	more 	seniority were 	given 	the 	option 	of 	transferring 	to
another 	site 	for 	their 	former 	number 	of 	hours. 	Less 	senior
employees 	were 	informed 	that 	they would 	be 	"placed 	in
comparable 	positions 	with 	like 	hours 	to 	the 	extent 	possible."
On September 	15, 	Sprague wrote 	to Robert L. 	Rottman, 	the
new Director 	of Personnel, 	requesting 	that 	the District 	cease
its 	hours 	reduction 	and 	transfer 	of 	employees 	pending 	a meeting
with OSEA. 	The District met 	with OSEA on September 	17 	and
informed 	OSEA 	that 	between 	50 	and 	60 	instructional 	assistants
might 	be 	affected 	by 	the 	transfers. 	It did 	not provide
information 	OSEA 	requested 	concerning 	the 	names 	and 	school
sites 	of 	the 	affected 	employees.
Sprague 	again wrote 	to Rottman 	on September 	25 	requesting
clarification of 	the District's 	actions. 	She 	received 	a 	reply,
dated October 	1, 	indicating 	that 	the District was 	in 	the
13

process 	of 	compiling 	a 	list 	of 	affected 	positions 	and
employees, 	and 	that 	it would provide OSEA with 	a list of
positions 	to be 	reduced, 	but 	that 	it would provide 	the 	names of
the 	affected 	employees 	only 	after 	obtaining 	the 	employee's
permission.
On October 	8, 	the Association 	received 	a 	list 	of
62 	positions 	to be 	consolidated or 	whose 	hours were 	to be
reduced 	and made 	another 	demand 	to 	bargain over 	the 	hours
reduction 	and 	involuntary 	transfers. 	The District 	did 	not
respond 	to 	this 	demand 	because 	it 	assumed 	that 	transfers 	had
been 	discussed 	and 	dropped 	by OSEA 	during 	contract 	reopener
negotiations 	in August and September 	1980. 	Alternatively, 	the
District 	took 	the 	position 	that 	it was 	under 	no obligation 	to
bargain over 	transfers 	because 	the 	collective 	bargaining
agreement 	already 	covered 	the 	subject.3
3Article 	XIII 	reads as 	follows:
ARTICLE 	XIII 	- TRANSFER
Transfer 	is 	defined 	as 	the movement 	of
employees 	from one 	position 	to 	another
position 	within 	the 	same 	class 	in another
department or work 	site, 	or 	from one class
to 	another 	class 	having 	comparable 	levels 	of
duties 	and 	responsibilities 	and 	the 	same
maximum 	rate 	of pay.
B. 	An 	involuntary 	transfer 	is 	a change 	in
work 	location 	requested 	by 	the 	employee's
principal 	or 	department 	head 	when 	he/she
deems 	a change 	in assignment 	to be 	in the
best 	interests 	of 	the District. 	Before 	any
14
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•

As of 	the 	date of 	hearing, 	19 	employees 	had 	accepted
transfers 	to 	similar 	assignments 	at other 	school 	sites,
effective 	the 	last week 	in October 	or 	the 	first week 	in
November; 	2 	employees 	requested 	reduced 	hours 	at 	their 	original
sites 	in 	lieu 	of 	transferring. 	No 	transfer 	positions 	were
available 	for 	28 	employees, 	a number 	of whom were 	listed 	as
having 	the 	option 	to 	remain 	at 	their 	present 	sites 	at 	reduced
hours.
Adoption of School Calendars 	for 	1980-81, 	1981-82 	and 	1982-83
On March 	17, 	1980, 	the District hired Ruth McClanahan 	as
its 	Chief Negotiator/Director 	of Staff Relations. 	McClanahan
testified 	that 	from the 	time 	she 	was hired, 	she was 	under
pressure 	from her 	superiors 	to adopt 	a 	school calendar. 	The
District maintained 	that 	it 	wanted 	identical 	calendars 	for 	all
bargaining 	units. 	McClanahan, 	therefore, 	intended 	to bargain
the 	calendar 	"collectively" 	with all 	12 	units 	at once. 	On
March 	20, 	McClanahan 	sent 	a memo 	to all 	employee 	organizations
request 	for 	involuntary 	transfer 	is 	acted
upon, 	the employee must be 	advised 	in
writing 	by 	the 	principal or 	department 	head
that 	an 	involuntary 	transfer 	is 	being
recommended 	and 	the 	reasons 	therefor. 	No
such 	transfer 	shall 	be made 	without 	five
work days' 	notice. 	Upon request, 	an
opportunity 	will 	be 	provided 	for 	the
employee 	to meet 	with 	the 	appropriate
division 	administrator 	to discuss 	the
proposed 	transfer.
C. 	A District 	initiated 	transfer 	shall 	not
be 	arbitrary and 	capricious.
15

inviting 	them 	to 	attend 	a meeting 	on April 	8 	"on 	a proposed
80-81 	school calendar."
On April 	3, 	OSEA President Ann Sprague 	sent 	a 	letter 	to
McClanahan 	acknowledging 	receipt 	of 	the March 	20 	memo 	and
stating 	that:
. 	. 	. 	[the April 8] 	meeting does not take
the 	place 	of 	bargaining 	over 	the 	calendar.
The 	calendar 	is 	a negotiable 	item,
therefore, 	bargaining 	over 	this 	issue must
take 	place 	during 	formal 	collective
bargaining 	sessions. 	However, 	I shall be
happy 	to 	attend 	the 	meeting 	on Tuesday,
April 	8th 	for 	informational 	purposes.
On April 	7, 	McClanahan 	sent 	a confidential memo 	to Deputy
Superintendent Charles Mitchell, Jr., 	entitled "Problems 	. 	. 	.
Re: 	Admission Day Holiday Change." 	After 	noting 	that 	the OSEA
contracts 	for 	both 	the 	paraprofessional 	and 	white 	collar 	units
specify September 	9, 	1980 	as 	an Admission Day holiday, 	she
wrote:
If 	we 	get 	agreement 	on 	the 	change 	from 	the
other 	classified 	groups 	and 	OEA 	[Oakland
Education Association] 	in concept 	for 	the
rest of 	that calendar, 	I 	recommend 	that we
go 	ahead 	and 	adopt 	it 	and 	chance 	a 	challenge
from OSEA. 	They will 	still get a 	holiday;
it will 	just be on a different date.
At 	the April 	8th meeting, 	Sprague 	spoke 	with McClanahan
reiterating 	that 	she 	did 	not 	consider 	the meeting 	a 	negotiation
session, 	and 	that OSEA wanted 	a 	formal 	collective 	bargaining
session 	on 	the 	1980-81 	calendar.
On April 	9, 	McClanahan 	sent 	a 	personal 	and 	confidential
16

memo 	to Mitchell 	regarding 	the 	school calendar, 	which 	stated 	in
part 	as 	follows:
I 	believe 	that 	we 	have 	discharged 	our
obligation 	to 	negotiate 	in good 	faith.
However, 	so as 	to 	take every possible
precaution, 	I 	would prefer 	to call one more
formal 	negotiating 	session 	for 	Tuesday,
April 15, 	2 to 4 p.m., 	to deal with the
District's 	alternate 	proposals 	presented
last 	time, 	and make a 	"best 	and 	final offer"
which will 	respond 	to 	the 	specific 	concerns
raised 	by 	the 	representatives 	in 	attendance
today.
After April 	15, 	I 	feel 	that 	the District
will 	have 	no 	other 	alternative 	but 	to
present 	its 	best 	and 	final offer, 	Alternate
Proposal #3, 	to the Board 	for discussion,
and 	then 	for 	action; 	as 	schools,
administration, 	students, 	and community need
to 	know how 	to plan.
On April 	8, 	McClanahan 	sent 	another 	memo 	to each 	employee
organization 	setting 	a 	consolidated 	negotiation 	session 	for
April 	15 	to 	formally negotiate 	the 	1980-81 	school calendar.
Sprague 	responded 	on April 	14 	by delivering 	a 	letter 	to
McClanahan's office 	stating 	that 	she 	could 	not 	attend 	the
negotiation 	session 	set 	for April 	15, 	and 	that OSEA wanted 	to
set 	another 	date 	for 	a negotiation 	session on 	the 	calendar.
After 	unsuccessfully 	attempting 	to 	get 	an OSEA 	representative
to attend 	the April 	15 	negotiation 	session, 	McClanahan
instructed 	her 	secretary 	to 	inform Sprague 	that 	she 	considered
OSEA's 	lack 	of 	representation 	at 	the 	session 	to be 	a 	refusal 	to
negotiate.
On May 	7, 	OSEA Attorney Andrew Thomas Sinclair 	sent 	a
letter 	to McClanahan 	requesting 	a meeting 	on 	the 	calendar. 	The
17
'

issue 	was 	added 	to 	the 	agenda 	of 	the May 	14 	layoff 	negotiation
session.
During 	the May 	14 	session, 	the 	District proposed moving 	the
Admission 	Day holiday 	from September 	9, 	1980 	to February 	13,
1981 or Good Friday, 	1981. 	OSEA was willing 	to bargain with
respect 	to 	the 	placement 	of Admission Day 	and 	the 	rest 	of 	the
calendar 	if 	the 	District was 	willing 	to give 	something 	in
return. 	The 	parties 	closed 	the May 	14 	negotiation 	session with
the 	understanding 	that 	the 	District 	would 	bring 	a draft 	of 	its
latest OEA calendar 	proposal 	to 	the 	next 	negotiation 	session
scheduled 	for 	May 	23, 	that 	the 	parties 	would 	continue 	to
negotiate 	at 	that 	session, 	and 	that OSEA would 	accept 	the
latest 	proposal 	to OEA 	if 	it 	included 	something 	in 	return
acceptable 	to OSEA.
The 	agenda 	handed 	out 	by McClanahan 	at 	the 	May 	23 	session
listed 	the 	school 	calendar 	and 	layoffs 	as 	the 	topics 	for
negotiation. 	OSEA also wanted 	to negotiate 	wages, 	which was
the 	reason 	the meeting 	was 	originally 	set. 	The District
refused 	to negotiate 	wages 	because 	its 	wage 	proposal 	had 	not
been 	sunshined. 	OSEA 	questioned 	whether 	the 	District's
calendar 	proposal 	had 	been 	sunshined. 	The 	District's position
was 	that 	it 	had 	offered 	the 	same 	proposal 	to OEA 	and 	had
sunshined 	the 	proposal 	as 	part 	of 	the OEA package. 	No
proposals 	were 	offered 	by either 	OSEA or 	the District, 	and 	both
parties 	left 	the 	session 	upset 	and 	without 	agreement 	on 	the
1980-81 calendar.
18

On July 9, 	at 	a District 	board meeting, 	OSEA learned 	that
the District 	intended 	to 	adopt 	school calendars 	for 	1980-81,
1981-82 	and 	1982-83. 	Superintendent Love 	distributed 	a memo 	to
the 	board 	members 	entitled, 	"Negotiated School Calendars" 	which
stated 	that 	the 	"calendars 	do 	not 	violate 	any existing
contractual 	agreements 	and 	have 	been 	negotiated." 	Sprague
asked 	the 	board 	not 	to 	adopt 	the 	calendars 	at 	that 	time 	because
OSEA 	and 	the 	District had 	yet 	to 	conclude 	their 	negotiations 	or
reach 	agreement 	on 	the 	1980-81 	calendar.
Sprague 	then wrote 	to McClanahan 	on July 	14 	complaining
that 	the 	1981-82 	and 	1982-83 	calendars 	had 	never 	been 	brought
up 	by 	the 	District 	and 	demanding 	negotiations 	on 	the 	calendar.
McClanahan 	responded 	by 	letter 	on July 	15 	stating 	that 	"Since
OSEA's 	contract does 	not expire 	until 	1981, 	I would 	submit 	that
it 	[OSEA] 	does 	not 	yet have 	a 	right 	to bargain 	those calendars."
On July 	17 	and 	21, 	OSEA again demanded 	to negotiate 	the
calendar 	issue. 	McClanahan 	responded 	by 	letter 	on July 22
stating 	that 	the 	District 	and 	OSEA had 	reached 	agreement 	on 	the
1980-81 calendar 	at 	the May 14 	negotiation 	session, 	that OSEA
had 	refused 	to 	bargain 	on May 	23 	and 	had 	failed 	to make 	further
demands 	for 	bargaining, 	and 	that 	the District was 	willing 	to
resolve 	all 	unresolved 	issues 	with 	OSEA on 	the 	1980-81 	calendar
and 	would 	schedule 	a 	meeting 	for July 	23.
At 	the July 23 meeting, 	OSEA 	reminded 	the District 	that,
pursuant 	to a 	settlement 	agreement 	between 	the 	parties 	entered
19

into on January 	30, 	1980, 	tentative 	agreements were 	to be
reduced 	to writing 	and 	signed-off. 	OSEA denied 	that 	it 	had
reached 	agreement 	on 	the 	calendar 	issue 	and 	asked 	what 	the
District was 	going 	to offer 	in 	return 	for 	OSEA's 	acceptance 	of
its 	calendar 	proposal. 	The District 	offered OSEA 	nothing 	in
return 	for 	its 	concession. 	OSEA did 	not 	concede 	or 	accept 	the
District's 	calendar 	proposal.
On July 23, 	the 	board 	adopted 	school calendars 	for 	1980-81,
1981-82 	and 	1982-83 	which 	changed 	the 	date 	of 	the Admission Day
holiday 	from September 	9, 	1980, 	as provided 	in both 	collective
bargaining 	agreements 	between 	the 	parties, 	to February 	13,
1981, 	and 	set 	the 	date 	of 	the Admission Day holiday on May 28,
1982 	and May 	27, 	1983. 	McClanahan 	testified 	that 	the board
adopted 	the 	three-year 	calendar 	because 	OEA 	insisted 	upon
having 	the 	three-year 	calendar 	as 	part of 	its 	negotiated
three-year 	contract 	and 	the 	board 	"couldn't 	conceive 	of 	having
separate calendars." 	Nonetheless, 	McClanahan 	informed 	the
board 	that 	she 	would 	go back 	to 	the 	table with OSEA 	as 	soon 	as
possible 	to 	negotiate 	the 	1981-82 	and 	1982-83 	calendars.
McClanahan 	scheduled 	negotiations 	for August 	8 	to discuss
the 	1981-82 	and 	1982-83 	calendars. 	Though McClanahan was
absent on 	bereavement 	leave 	on August 8, 	the parties met on
that 	date 	and discussed 	the 	1980-81 calendar. 	The 	record 	fails
to 	explain why 	the 	1981-82 	and 	1982-83 	calendars 	were 	not
discussed 	on August 8, 	and 	no 	evidence 	was 	presented of 	any
20

subsequent 	request 	to 	negotiate 	or 	any 	subsequent 	negotiations
on 	these calendars.
DISCUSSION
It 	is 	unlawful 	for 	a public 	school 	employer 	to 	"refuse 	or
fail 	to meet 	and 	negotiate 	in good 	faith 	with 	an 	exclusive
representative" 	about a matter 	within 	the 	scope of
representation.4 Moreover, 	a unilateral 	change 	in 	terms 	and
conditions 	of 	employment 	within 	the 	scope 	of 	representation 	is,
absent 	a valid defense, 	a per 	se refusal 	to negotiate. 	Pajaro
4 Section 	3543.2 	provides 	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 employment. 	"Terms 	and
conditions 	of 	employment" 	mean health 	and
welfare benefits 	. 	. 	., leave, transfer and
reassignment policies, 	safety conditions of
employment, 	class size, procedures to be
used 	for 	the 	evaluation of 	employees,
organizational security . 	. 	., procedures
for processing grievances 	. 	. 	., 	and the
layoff 	of 	probationary 	certificated 	school
district 	employees 	. . . .
In addition, 	a 	subject will be 	found 	to be negotiable even
though 	not 	specifically enumerated 	in 	section 3543.2 	if 	(1) 	it
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 	influence of 	collective
negotiations 	is 	the 	appropriate means 	of 	resolving 	the
conflict, 	and 	(3) 	the employer's obligation 	to negotiate would
not 	significantly 	abridge 	the 	employer's 	freedom 	to exercise
those managerial 	prerogatives 	(including 	matters 	of 	fundamental
policy) 	essential 	to 	the 	achievement 	of 	the District's
mission. 	Anaheim Union High School District 	(10/28/81) 	PERB
Decision No. 	177, 	affirmed San Mateo City School District v.
PERB 	(1983) 	33 Cal.3d 850.
21

Valley Unified School District 	(5/22/78) 	PERB Decision No. 	51;
San 	Mateo County Community College District 	(6/8/79) 	PERB
Decision No. 	94; 	NLRB v. Katz 	(1962) 	369 U.S. 	736 	[50 LRRM
2177].
An 	unlawful 	unilateral 	change 	will 	be 	found 	where 	the
charging 	party proves, 	by a preponderance of 	the 	evidence, 	that
an 	employer 	unilaterally 	altered 	an 	established 	policy. 	Grant
Joint Union High School District 	(2/26/82) 	PERB 	Decision
No. 	196. 	The 	nature of existing policy 	is 	a question of 	fact
to 	be 	determined 	from an examination of 	the 	record 	as 	a whole.
It may be 	embodied 	in 	the 	terms 	of 	a collective 	agreement
(Grant, 	supra) 	or, 	where a contract 	is 	silent or ambiguous as
to 	a policy, 	it may be ascertained 	by examining past 	practice
or 	bargaining 	history. 	Marysville Joint 	Unified School
District 	(5/27/83) 	PERB Decision No. 	314; 	Rio Hondo Community
College District 	(12/31/82) 	PERB Decision No. 	279.
An 	employer's 	unlawful 	failure 	and 	refusal 	to 	negotiate
concurrently 	violates 	an 	exclusive 	representative's 	right 	to
represent 	unit 	members 	in 	their 	employment 	relations 	and
interferes 	with 	employees 	because 	of 	their 	exercise of
representational 	rights. 	San Francisco Community College
District 	(10/12/79) 	PERB Decision No. 	105.
We 	apply 	these 	general 	and 	well-established 	principles 	to
the District's 	conduct 	with 	respect 	to 	the 	four 	matters 	alleged
by 	the Association 	to 	constitute 	unlawful 	unilateral 	changes.
22

Subcontracting 	of White 	Collar 	Unit Work
Though 	not 	expressly 	alleged 	in 	the 	charge, 	the ALJ 	found
that 	the District violated subsections 3543.5(a), 	(b) 	and 	(c)
of EERA 	by 	failing 	to 	provide 	information 	sought 	by OSEA
concerning 	the 	subcontracting 	of 	white 	collar 	unit work. 	The
District does 	not 	except, 	and 	the Board 	affirms 	this 	finding,
pro 	forma.
As 	to 	the 	alleged 	unilateral 	change, 	the ALJ 	initially
determined 	that 	subcontracting 	is 	within 	scope, 	citing
Fibreboard Paper Products Corp. 	v. 	NLRB 	(1964) 	379 U.S. 	203 	[57
LRRM 2609] 	and Rialto Unified School District 	(4/30/82) 	PERB
Decision No. 	209, rev. den. 	(9/13/82) 	2 Civ. No. 	27991, and
found 	that 	the 	volume of 	the District's 	subcontracting
increased 	substantially during 	the 	1979-80 	school 	year.
Nonetheless, 	she dismissed 	this portion of 	the 	charge, 	finding
no "adverse 	impact" 	on wages, 	hours or other 	terms 	and
conditions 	of 	employment, 	as 	required 	in 	federal 	subcontracting
cases 	decided 	subsequent 	to Fibreboard. 	Westinghouse Electric
Corp. 	(Mansfield Plant) 	(1965) 	150 NLRB 1574 	[58 LRRM 1257];
Equitable Gas Co. 	v. 	NLRB 	(3rd Cir. 	1981) 	637 F.2d 980 	[106
LRRM 2201, 	2206]; Olinkraft, Inc. v. NLRB 	(5th Cir. 	1982) 	666
F.2d 	302 	[109 	LRRM 2573]; 	Park-Ohio Industries 	(1981) 	257 NLRB
No. 	44 	[107 LRRM 1498] ; 	Puerto Rico Telephone Co. 	v. 	NLRB 	(1st
Cir. 	1966) 	359 	F.2d 983 	[62 	LRRM 2069, 	2072].
We 	affirm 	the ALJ's 	finding 	that 	the 	subject 	of
subcontracting 	unit work 	is 	negotiable. 	The Board 	has 	recently
23

so held 	in Arcohe 	Union School District 	(11/23/83) 	PERB
Decision No. 	360.5 	We 	also 	affirm 	the ALJ's 	finding 	that 	the
extent 	of 	the 	District's 	subcontracting 	increased 	substantially
during 	the 	1979-80 	school year. 	The 	evidence 	indicates 	that
expenditures 	for 	subcontracting 	increased 	almost 	tenfold 	during
this 	period. 	We 	find 	that 	an 	increase 	of 	this magnitude
evidences 	a 	change 	in 	the 	quantity 	and 	kind 	of 	subcontracting
in 	the District and 	constitutes 	a unilateral change 	in
established 	policy. 	Grant Joint Union High 	School 	District,
supra; 	Howmet Corporation 	(1972) 	197 NLRB No. 	91 	[80 LRRM 1555]
enf. 	(7th 	Cir. 	1974) 	495 	F.2d 	1375 	[86 	LRRM 	2572].6
5In 	Arcohe, 	supra, 	we noted 	that 	section 45103 of 	the
Education Code, 	by 	its 	flat prohibition 	against 	the 	contracting
out of custodial 	services, 	supersedes 	the 	negotiation of
contravening 	proposals. 	See 	California School Employees
Association v. 	Willits 	Unified School District 	(1966) 	243
Cal.App.2d 776 	[52 Cal.Rptr. 	765]; 	San Mateo City School
District v. 	PERB, 	supra. 	However, 	we concluded 	that 	a proposal
intended 	to 	prohibit 	unlawful 	contracting 	out 	— 	and 	thus
essentially 	to 	incorporate 	the 	Education Code 	provision 	in 	the
negotiated 	agreement 	— 	would 	be 	within 	scope. 	Thus, 	the
employer's 	unilateral 	change 	which 	precluded 	consideration 	of
any valid proposal violated 	subsection 3543.5(c).
Here, 	whether 	the work 	affected 	by 	the District's
subcontracting 	practice 	falls 	within 	the 	Education Code's
proscription, 	was 	not 	litigated 	below 	and 	consequently 	cannot
be 	determined 	from 	the 	record. 	Whether 	or 	not 	the District's
practice 	is permissible 	under 	the Education Code, 	its
unilateral change, 	as 	found 	infra, 	unlawfully precluded
consideration 	of 	any 	valid 	proposal 	on 	the 	subject.
6We 	are 	unpersuaded 	by 	the 	District's 	attempt 	to
distinguish Howmet, 	supra, 	on the grounds 	that anti-union
animus was 	present 	in 	that 	case. 	The NLRB did 	not predicate
its 	finding 	of 	a 	refusal 	to bargain on 	its 	independent 	finding
of 	unlawful 	discrimination 	relating 	to 	the 	same 	conduct.
24
----------------------------

Westinghouse, 	supra, 	relied on 	by 	the ALJ, 	holds 	that 	an
employer 	may 	lawfully 	subcontract 	where 	the 	following
conditions 	exist:
(1) 	the 	recurrent 	subcontracting 	is
motivated 	solely 	by 	economic 	considerations;
(2) 	it 	comports with 	the company's
traditional 	methods 	of 	conducting 	its
business operations; 	(3) 	it does not vary
significantly 	from 	prior 	established
practices; 	(4) 	it does not have a
demonstrable 	adverse 	impact 	on 	employees 	in
the 	unit; 	and 	(5) 	the 	union had 	the
opportunity 	to 	bargain 	about 	changes 	in
existing 	subcontracting 	practices 	at 	general
negotiating 	meetings.
OSEA argues, 	and we 	agree, 	that 	these 	conditions 	are 	not
present 	in 	the 	instant 	case. 	We 	have 	found 	that 	the
subcontracting 	engaged 	in 	by 	the 	District 	in 	the 	1979-80 	school
year 	varied 	significantly 	from prior 	established 	practices; 	and
the 	record 	contains 	no 	evidence 	that 	the 	parties 	had 	ever
bargained 	about 	the 	subject.
Moreover, 	the 	fact 	that 	employees, 	their 	representative,
and 	employer-employee 	relations 	are 	adversely 	affected 	by 	the
District's 	action 	is 	inherent 	in our 	findings 	that
subcontracting 	is 	a 	subject 	within 	the 	scope 	of 	representation
and 	that 	established 	policy 	with 	regard 	to 	that 	subject 	was
unilaterally changed. 	In Arcohe, 	supra, 	we 	found
subcontracting 	to be negotiable, 	in part, 	because 	"actual or
potential 	work 	is 	withdrawn 	from 	unit 	employees, 	and 	wages 	and
hours 	associated 	with 	the 	contracted 	out 	work 	are 	similarly
25

withdrawn. 	Further, 	such diminution of 	unit work 	weakens 	the
collective 	strength 	of 	employees 	in 	the 	unit 	and 	their 	ability
to deal effectively with 	the 	employer." 	In 	addition, 	an
employer's 	unilateral change 	has 	a 	destabilizing 	and
disorienting 	impact 	on 	employer-employee 	relations, 	derogates
the 	exclusive 	representative's 	negotiating 	power 	and 	ability 	to
perform 	as 	an 	effective 	representative 	in 	the 	eyes 	of
employees, 	inherently 	tips 	the 	delicate 	balance 	structured 	by
the Act, 	and may 	unfairly 	shift 	community 	and 	political
pressure 	to 	employees 	and 	their 	organizations 	and 	reduce 	the
employer's 	accountability 	to 	the 	public. 	San Mateo County
Community College District, 	supra. 	Thus, 	adverse 	impact on
employees 	in 	the 	unit 	is 	demonstrated 	here.
With 	regard 	to cases 	purportedly 	following Westinghouse, 	we
agree with Professor Gorman, 	who 	states 	as 	follows:
The 	decisions 	in 	this 	area 	produce 	no 	firm
or 	readily 	applicable guidelines. 	The
Board's 	decisions 	appear 	inconsistent 	with
one 	another, 	in spite of 	its 	attempt to
articulate 	relevant 	distinctions. 	The 	same
is 	true of 	the 	decisions of 	the 	courts of
appeals, 	. 	. 	. 	Any more detailed attempt at
synthesis 	is 	hazardous 	. . . .
Gorman, Labor Law 	(1976) 	p. 	514.
Finding 	that 	these 	cases 	provide 	no 	consistent 	analysis 	or
rationale, 	we 	expressly disavow 	the ALJ's 	reliance 	on 	them as
authority 	for 	finding 	no 	adverse 	impact 	in 	this 	situation.
Because 	the 	factors 	specified 	in Westinghouse 	are 	not
present 	here, 	that 	case 	does 	not 	support a 	finding 	that 	the
26

subcontracting 	engaged 	in 	by 	the District 	here 	was 	lawful.
Rather, 	having 	found 	a 	unilateral 	change 	in established 	policy
affecting a matter 	within 	the 	scope of 	representation, 	a
violation 	is established. 	We, 	therefore, 	reverse the ALJ's
dismissal of 	this 	charge.
Security Watch 	Work
The ALJ 	found 	that 	the 	assignment 	and 	allocation 	of 	unit
work 	between 	unit 	and 	nonunit 	employees 	are matters 	within 	the
scope of 	representation. 	Nonetheless, 	the ALJ dismissed 	the
charge, 	finding 	that 	there 	had 	been 	no change 	in 	the District's
22-year 	practice 	of 	assigning 	both 	security watchpersons 	and
custodians 	to 	overtime 	watch 	assignments on weekends 	and
holidays, 	and 	that OSEA had 	acquiesced 	to the practice. 	In
addition, 	the ALJ 	found 	that 	any change 	in Godfrey's 	hours of
work was de minimis. 	OSEA excepts.
We 	agree 	with 	the ALJ 	that 	the 	practice 	of 	assigning
custodians 	to 	do overtime 	watch 	work was 	such 	a pervasive 	and
longstanding 	practice 	that OSEA must 	have 	known 	or 	be 	deemed 	to
have 	known of 	its existence. 	We, 	therefore, 	affirm the ALJ's
dismissal 	as 	to 	this 	allegation. 	We also 	reject OSEA's
contention 	that 	the 	District 	failed 	to 	provide 	requested
information 	regarding 	security 	watch 	work. 	OSEA requested 	such
information only once, 	on April 8, 	and 	received 	a 	response 	on
April 	14. 	Though 	the 	response might 	not have been fully
responsive 	to OSEA's questions, 	OSEA never 	reasserted 	or
27

clarified 	its 	request. 	Therefore, 	no failure 	to provide
information 	is 	established. 	See 	Stockton Unified School
District 	(11/3/80) 	PERB Decision No. 	143.
We 	further 	reject OSEA's 	contention 	that 	the ALJ 	erred 	in
failing 	to 	conclude 	that 	the District 	violated 	the Act 	by
unilaterally 	eliminating 	one-half 	hour 	of 	daily 	overtime.
It 	is well 	established 	that 	overtime 	is 	directly 	related 	to
wages 	and 	hours 	of 	employment 	and 	is 	a negotiable 	subject.
Jefferson School District 	(6/19/80) 	PERB Decision No. 	133, 	rev.
den. 	(9/23/83) 	1 Civ. 	50225; 	Walnut Valley Unified School
District 	(3/30/81) 	PERB Decision No. 	160; 	Pittsburg Unified
School District 	(3/15/82) 	PERB Decision No. 	199; 	Willamette
Industries, 	Inc. 	(1975) 	220 NLRB 707 	[90 LRRM 1478].
Here, 	the 	parties had 	negotiated 	on 	the 	subject 	and 	agreed
to provisions 	which 	stated 	that, 	"Full-time 	assignments 	are 	7.5
hours per day," 	and 	that 	"overtime 	. 	. 	. 	may only be performed
upon 	assignment 	by 	a 	supervisor." 	These 	provisions 	are 	clear
and 	unambiguous on 	their 	face, 	and 	by 	their 	terms permit 	the
District 	to 	assign or 	not 	assign overtime 	in 	its discretion.
Neither 	the 	evidence 	of 	bargaining 	history 	nor 	the 	actual
practice 	in 	the District 	provides 	any 	basis 	for 	interpreting
the 	provisions 	contrary to their plain meaning. 	Thus, 	the
evidence 	indicates 	that 	the 	fact 	that 	watchpersons 	regularly
worked 	eight 	hours 	per 	day 	was 	specifically within 	the
contemplation 	of 	the 	negotiators 	for 	both 	parties when 	these
28

provisions were 	agreed 	to. 	Yet, 	nothing 	in 	the contract
excepts 	watchpersons 	from 	the 	7.5 	hour 	provision. 	Moreover,
the 	practice 	of 	assigning 	and 	paying 	watchpersons 	for 	7.5 	hours
of 	regular 	time 	plus 	one-half 	hour 	of overtime daily 	is
entirely consistent with 	the 	terms of 	the 	contract. 	Thus, 	the
practice 	neither 	modifies 	nor 	supersedes 	the 	contractual
language. 	Accordingly, 	the 	fact 	that 	the District 	had 	assigned
overtime 	on 	a daily 	basis 	for 	several years 	does 	not 	diminish
its 	contractual 	right 	to decline 	to assign overtime, 	as 	it did
here, 	and does 	not 	render 	its 	action a unilateral change. 	In
essence, 	OSEA had, 	by contract, 	waived 	its 	right 	to negotiate
over 	the 	District's 	decision 	to 	assign or 	not 	assign overtime.
See, 	e.g., 	Grossmont Union High School District 	(5/26/83) 	PERB
Decision No. 	313; 	Marysville Joint Unified School District
(5/27/83) 	PERB Decision No. 	314.
However, 	we conclude, 	contrary to the ALJ, 	that 	the
District 	violated 	the Act 	by 	unilaterally 	changing 	its
established 	procedures 	for 	assigning 	weekend 	and 	holiday
overtime 	watch 	work.
We 	have 	held 	that 	the 	method 	used 	to 	assign work 	is
negotiable 	in 	general 	(Mt. 	San Antonio Community College
District 	(3/24/83) 	PERB Decision No. 	297; Jefferson, 	supra) 	and
specifically 	with 	respect 	to 	the 	assignment 	of 	overtime 	(Walnut
Valley, 	supra; Pittsburg, supra). 	Here, the collective
bargaining 	agreement 	does 	not 	specify 	any procedure 	for 	making
29

overtime assignments but 	simply provides 	that 	"overtime 	. 	. 	.
may 	only 	be 	performed 	upon 	assignment 	by 	a 	supervisor."
However, 	the 	record 	indicates 	that 	procedures 	for 	assigning
overtime 	watch 	work 	had 	been 	established 	in 	the 	District 	which
limited 	supervisors' 	discretion 	in making 	such 	assignments.
Specifically, 	weekend 	and 	holiday 	overtime 	watch 	work 	was
assigned 	from a 	list of 	volunteers 	each 	week, 	and 	employees 	at
a 	particular 	site 	had 	first 	choice 	of 	working 	overtime 	at 	that
site. 	The 	evidence 	further 	demonstrates 	that, 	as a 	result of
these 	procedures, 	Joe Godfrey had 	been 	assigned 	the 	same
overtime 	shift 	for 	four 	years.
However, 	in March 1980, Godfrey was 	informed by his
supervisor 	that 	custodians 	had 	priority 	for 	selecting 	weekend
assignments 	and 	that, 	henceforth, 	such 	assignments were 	to be
on a 	rotating 	basis. 	This 	rotation system was 	used 	for 	the
months of April, 	May and June 	1980. 	After 	this 	time, 	Godfrey's
usual 	overtime 	shift 	was 	restored. 	Because 	only 	three 	security
watchpersons 	and 	almost 	one 	hundred 	custodians 	performed
overtime 	security 	watch 	work, 	a 	single 	rotation 	system
including 	both 	groups 	of 	employees 	inevitably 	disadvantaged
security 	watchpersons 	and 	reduced 	the 	amount of 	overtime
available 	to 	them, 	affecting 	both 	their 	wages 	and 	hours.
Contrary 	to 	the ALJ, 	we 	do 	not 	consider 	such change 	to be 	a
de minimis 	or 	technical 	violation. 	See Muroc Unified School
District 	(12/15/78) 	PERB Decision No. 	80.
30

Rather, 	we 	find 	that 	the District violated 	the Act 	by
unilaterally 	changing 	its 	established 	method 	for 	assigning
overtime 	watch 	work 	without 	providing OSEA with 	notice 	and 	an
opportunity to negotiate. 	Walnut Valley, 	supra; 	Pittsburg,
supra.
Standardization 	of 	Hours 	of Paraprofessionals
The ALJ 	determined 	that 	the District's 	application 	of 	its
standardization 	of 	hours 	policy 	to 	incumbent 	employees 	in
September 	and 	October 	1980 	resulted 	in 	the 	creation of 	four
categories 	of 	affected 	employees:
1. 	Those 	who were 	notified of 	hours
reduction 	without 	any 	guarantee 	that 	they
would 	be 	able 	to maintain equivalent 	hours
by 	transferring 	to 	another 	location;
2. 	Those 	who 	accepted 	the District's
proffered 	hours 	reductions 	in 	lieu 	of
transfer;
3. 	Those who had worked 	at 	a school 	in the
district 	in which 	they 	resided, 	and who
accepted 	transfer 	for 	an 	equivalent 	number
of 	hours 	to a 	school 	site 	not 	in 	their
residential 	neighborhood, 	thereby 	incurring
additional 	transportation 	expenses 	which
effectively 	reduced 	their 	wages; 	and
4. 	Those 	who were 	notified 	that 	they would
be 	transferred 	to 	an 	equivalent 	position 	in
terms of 	hours, 	and 	for whom the 	acceptance
of 	such 	a 	transfer 	entailed 	no 	additional
expenses.
The ALJ 	found 	unlawful 	unilateral 	changes 	with 	respect 	to
employees 	in categories 	1, 	2 	and 	3. 	As 	to categories 	1 	and 	2,
the District's 	action had 	the 	effect of 	reducing 	hours.
Employees 	in 	category 	3 	incurred 	additional 	transportation
31

expenses equivalent 	to a 	reduction in wages. 	However, 	the ALJ
found 	no violation 	in 	the 	transfer 	of employees 	in group 	4
because 	the 	transfers 	were 	consistent 	with 	the 	transfer
provision 	of 	the 	parties' 	collective 	bargaining 	agreement 	(see
footnote 3, supra, p. 14).
Both 	parties 	take 	issue 	with 	the ALJ's 	characterization of
four 	categories of 	affected employees. 	In addition, 	the
District 	excepts 	to 	the ALJ's 	findings with 	respect 	to groups
1, 	2 	and 	3. 	The Association excepts 	to her 	findings 	as 	to
group 	4.
Contrary 	to 	the District's protestations, 	the 	record 	amply
supports 	the ALJ's 	factual 	findings 	that 	the District 	did
indeed 	implement 	its 	standardization 	of 	hours 	policy 	and 	that,
as 	a 	result, 	some 	incumbent 	employees 	suffered a 	reduction 	in
hours 	while 	others 	were 	transferred. 	We 	also 	reject 	the
District's 	contention, 	reasserted on appeal, 	that a 	reduction
in 	the 	hours 	of positions 	is 	distinguishable 	from a 	reduction
in 	the hours of employees. 	Inasmuch as 	the positions were
occupied 	by 	incumbent 	employees, 	the ALJ properly 	characterized
the District's 	argument 	as 	"a distinction without 	a difference."
However, 	we 	agree with 	the 	parties 	that 	the ALJ erred 	in
considering 	the 	particular 	character 	of 	the 	effects 	on 	various
categories 	of 	employees 	as 	determinative 	of 	the 	issues 	in this
case. 	The Board 	has 	previously 	determined 	that 	a 	reduction 	in
hours 	is 	a matter 	within 	the 	scope of 	representation. 	North
Sacramento School District 	(12/31/81) 	PERB Decision No. 	193.
32

The District's 	standardization of 	hours 	policy 	is 	also 	a matter
within 	the 	scope 	of 	representation 	because 	it 	is directly
related 	to wages, 	hours 	and 	transfers 	and 	involves 	no 	essential
managerial 	prerogative. 	Anaheim Union High 	School District,
supra. 	Therefore, 	by unilaterally 	reducing 	hours 	and
implementing 	the 	policy 	in 	the 	face 	of 	OSEA's 	repeated 	requests
for 	information 	and 	negotiations, 	the District 	violated 	the Act
as 	to 	all 	employees 	adversely 	affected 	thereby.
Moreover, 	the District 	compounded 	its 	unlawful 	conduct 	by
committing 	a 	series 	of 	independent 	violations 	of 	the Act 	in 	the
course 	of 	implementing 	the 	unilateral 	change. 	We 	affirm 	the
findings of 	the ALJ, 	which 	are 	not 	excepted 	to by 	the District,
that 	the 	District 	unlawfully 	refused 	to provide OSEA with 	the
names 	of 	affected 	employees 	and 	unlawfully 	bypassed 	OSEA 	and
dealt 	directly 	with 	employees, 	individually 	negotiating 	changes
in 	their 	work 	assignments 	and 	work 	hours.
Through 	such 	individual 	negotiations, 	by 	the 	time of
hearing, 	19 employees had accepted 	transfers, 	while only 2
agreed 	to a 	reduction 	in 	hours 	at 	their 	current 	school 	sites.
We 	cannot 	agree 	with 	the 	ALJ 	that 	transfers 	effected 	through
such 	coercive 	means 	are 	protected 	by 	the 	language 	of 	the
collective 	bargaining 	agreement.
Therefore, 	seeing 	no 	reason why employees 	transferred
should 	be 	treated 	differently 	than 	employees 	whose 	hours 	were
reduced, 	we 	find 	a violation 	as 	to all 	employees 	adversely
33

affected 	by 	the policy, 	including 	those 	whose 	hours 	were
reduced 	and 	those 	who were 	transferred 	in 	order 	to 	avoid 	such
reduction.
Adoption 	of 	School 	Calendars
The ALJ 	found 	that: 	the 	school calendar 	is 	a mandatory
subject 	of 	negotiations; 	the 	parties 	had 	negotiated 	regarding
the 	1980-81 	calendar 	but 	failed 	to 	reach 	agreement; 	and 	the
adoption 	of 	the 	calendar 	was 	neither 	justified 	by operational
necessity 	nor 	excused 	by 	the 	fact 	that 	OSEA's 	contract 	covered
only 	the 	first of 	the 	three calendar 	years. 	She, 	therefore,
concluded 	that 	the 	District's 	adoption 	of 	a 	three-year 	calendar
on July 	23 	constitutes 	an 	unlawful 	unilateral 	change.
In 	its 	exceptions, 	the District merely 	reasserts 	its
arguments 	raised 	at 	hearing 	and 	rejected 	by 	the ALJ.
We 	affirm 	the ALJ's 	finding 	of 	violation 	as 	to 	the 	1980-81
calendar. 	However, 	we 	reverse 	the ALJ's 	finding with 	respect
to 	the 	1981-82 	and 	1982-83 	calendars 	and 	dismiss 	that 	portion
of 	the 	charge.
In Palos Verdes 	Peninsula Unified School District/Pleasant
Valley School District 	(7/16/79) 	PERB Decision No. 	96, 	the
Board 	held 	that 	the 	dates 	on which 	employees 	begin 	and 	end
work, 	their 	vacation 	and 	holiday dates 	are 	all matters 	within
scope. 	The Board 	clearly 	distinguished 	between 	student
attendance dates 	and employee work dates, 	stating at pp. 	31-32:
Now, 	ideally, 	the dates of both 	should
coincide. 	However, 	in reality, 	even now,
the 	beginning 	of 	teacher 	service 	does 	not
34

precisely 	coincide 	with 	the 	date 	scheduled
for 	instruction given 	the 	fact 	that 	the
initial 	days 	of 	certificated 	service 	are
spent 	in orientation or 	pre-service
activities. 	Moreover, 	it would be
presumptuous 	to 	assume 	that 	the
professionalism of 	both 	sides 	at 	the
negotiating 	table will 	not 	prevail 	in 	the
interest of 	the 	students. 	It 	seems possible
that 	some 	accommodation 	can 	be made 	to
insure 	the maintenance 	of 	the 	student 	school
year 	by 	innovative planning, 	and 	at 	the 	same
time 	extend 	to 	certificated 	employees 	the
opportunity 	to promote 	a 	fundamental
employment 	interest, 	their 	hours of
employment.
In San Jose Community College District 	(9/30/82) 	PERB
Decision No. 	240, 	the Board 	reaffirmed 	the 	negotiability of 	an
employee 	calendar 	but 	found 	no 	violation 	because 	there 	the
District 	had 	adopted 	only 	a 	tentative 	student 	calendar
unrelated 	to dates 	of 	employee 	service 	and 	had 	subsequently
continued 	to 	negotiate.
Here, 	the 	collective 	bargaining 	agreements 	in effect
between 	the 	parties 	established September 	9, 	1980 	as 	an
Admission Day employee 	holiday. 	On July 23, 	1980, 	the District
adopted 	a 	calendar 	which 	substituted 	an 	"In Lieu 	of Admission
Day" 	holiday on February 13, 	1981.
Though 	the 	parties met 	and 	negotiated 	regarding 	the 	1980-81
calendar 	on May 14, 	May 	23 	and July 23, 	the 	record 	is
abundantly clear, 	and 	the ALJ correctly 	found, 	that 	no
agreement 	was 	reached on May 	14 or 	at 	any other 	time. 	The
District's 	claim 	that 	negotiations 	occurred 	on April 	8 	is
totally unsupported 	by 	the 	record. 	Neither 	is 	there 	sufficient
35

evidence 	to 	find 	that OSEA prevented 	negotiations 	on May 	23 	and
thereby 	demonstrated 	such 	bad 	faith 	as 	to 	excuse 	the 	District's
unilateral 	change.
It 	is 	clear 	from 	the 	District's 	testimony 	that 	the 	1980-81
calendar 	was 	intended 	to 	govern 	both 	student 	attendance 	and
employee 	workdays. 	The 	District's 	insistence 	on 	identical
calendars 	for 	all 	bargaining 	units 	prompted McClanahan 	to
attempt 	coordinated 	bargaining. 	The 	District 	took 	the 	position
that, 	by sunshining 	its proposal 	to OEA, 	it effectively
sunshined 	its 	proposal 	to OSEA. 	And 	because 	the 	board
"couldn't 	conceive 	of having 	separate calendars," 	it 	adopted
the 	calendar 	negotiated with OEA. 	In addition, 	the 	calendars
adopted 	by 	the 	board 	were 	presented 	as 	"Negotiated 	School
Calendars."
The 	District 	argues 	that 	its 	unilateral 	action was
justified 	by operational 	necessity, 	namely 	community pressure
and 	potential 	confusion 	in 	the 	educational program. 	In Palos
Verdes, 	supra, 	Member Gonzales expressly noted 	that 	such
considerations 	do 	not 	constitute 	operational 	necessity. 	As 	he
stated, 	"the public's 	interest 	at 	large would 	appear 	to be only
one 	of convenience 	in contrast 	to 	that of 	the 	employees, 	which
is 	one of 	necessity." 	Further, 	the problem of 	coordination
among 	employee 	units 	"is 	a matter 	inherent 	in 	the 	collective
negotiations 	process 	whenever 	an 	employer 	must 	deal 	with more
than one negotiating unit." 	Palos Verdes, 	supra, 	pp. 	33-34.
36

For 	the 	same 	reasons, 	we 	reject 	the District's proffered
defense 	here.
We 	also 	reject 	the 	District's 	claim 	that OSEA 	suffered 	no
or 	de minimis 	harm as 	a 	result of 	the 	change. 	The Board 	has
previously 	indicated 	that 	we 	will 	consider 	a violation 	to 	be
de minimis 	or 	technical 	only where 	it 	is 	promptly 	rescinded 	and
without affect on employees. 	Muroc, 	supra. 	That 	is not 	the
case here.
We, 	therefore, 	affirm the ALJ's conclusion 	that 	the
District violated subsections 3543.5(a), 	(b) 	and 	(c) 	by
adopting 	a 	1980-81 	calendar 	which 	unilaterally 	changed 	the 	date
of 	the Admission Day holiday 	as provided 	by 	contract.
With 	regard 	to 	the 	adoption 	of 	the 	1981-82 	and 	1982-83
calendars, 	however, 	we 	reverse 	the ALJ. 	Though McClanahan
initially 	took 	the 	position 	that 	OSEA had 	no 	right 	to 	bargain
about 	these calendars 	until 	its 	contracts expired, 	she
subsequently 	informed 	the 	board, 	which 	in 	turn 	informed OSEA,
that McClanahan 	"would 	go 	back 	to 	the 	table 	as 	soon 	as possible
to 	negotiate 	on 	the 	81-82 	and 	82-83 	calendars." 	Based 	on 	the
District's 	expressed 	willingness 	to 	negotiate 	these 	calendars
with OSEA, 	we find 	that, 	by 	its action on July 23, 	the board
intended 	only 	to 	adopt 	a 	student calendar 	and 	not 	an 	employee
calendar 	governing 	employees 	represented 	by OSEA. 	San Jose,
supra.
37

Moreover, 	though 	negotiations 	to discuss 	the 	1981-82 	and
1982-83 	calendars 	were 	scheduled 	for August 	8, 	only 	the 	1980-81
calendar 	was 	discussed 	at 	that 	time. 	OSEA 	introduced 	no
evidence 	that 	it 	requested 	or 	that 	the 	District 	refused 	to
bargain 	regarding 	the 	1981-82 	and 	1982-83 	calendars 	on August 	8
or 	at any subsequent 	time. 	We, 	therefore, 	find 	that OSEA
failed 	to 	sustain 	its 	burden of proving, 	by a preponderance of
the 	evidence, 	that 	the District violated 	the Act 	by 	its 	conduct
with 	respect 	to 	the 	1981-82 	and 	1982-83 calendars. 	We,
therefore, 	dismiss 	this portion of 	the charge.
REMEDY
Subsection 	3541.5(c) 	gives PERB 	the 	following 	remedial
powers:
. 	. 	. 	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.
In 	the 	instant 	case, 	we 	have 	found 	that 	the District
violated subsections 3543.5(a), 	(b) 	and 	(c) 	by:
(1) 	unilaterally 	changing 	its 	established policy with 	regard 	to
subcontracting of white collar 	unit work; 	(2) 	unilaterally
changing 	its 	established 	method 	for 	assigning 	overtime 	security
watch work; 	(3) 	unilaterally reducing 	the 	hours 	and
transferring 	paraprofessional 	employees; 	and 	(4) 	unilaterally
adopting 	a school calendar 	for 	1980-81.
38

In 	addition, 	the District violated 	these 	same 	sections of
the Act 	by: 	(1) 	refusing 	to provide 	information 	regarding 	the
District's 	subcontracting 	of 	white 	collar 	unit 	work 	and 	its
standardization 	policy 	as 	applied 	to 	employees 	of 	the
paraprofessional 	unit; 	and 	(2) 	directly negotiating with
paraprofessional 	employees 	over 	a 	change 	in 	their 	hours 	and
bypassing OSEA, 	the 	exclusive 	representative.
Absent 	unusual circumstances, 	where 	an employer 	has made 	an
unlawful 	unilateral 	change, 	a 	remedy requiring 	the 	restoration
of 	the 	status quo 	is 	appropriate 	to effectuate 	the 	policies 	of
EERA because 	it 	restores, 	to the extent possible, 	the positions
the 	parties 	occupied prior 	to 	the 	unilateral change. 	Rio Hondo
Community College District 	(3/8/83) 	PERB Decision No. 	292;
Plycoma Veneer Co. 	(1972) 	196 NLRB 1009 	[1008 LRRM 1222]. 	In
addition, 	it 	is 	generally appropriate 	to order 	the 	employer 	to
make 	affected 	employees 	whole 	for 	any wages 	or 	other 	benefits
lost 	as 	a 	result of 	the 	unlawful 	unilateral change, 	with
interest, 	from 	the 	date of 	the 	unilateral change 	until 	the
status quo 	is 	restored or 	the 	parties 	reach 	agreement or
exhaust 	the 	statutory 	impasse 	procedures. 	Rio Hondo Community
College District 	(No. 	292) , 	supra; 	NLRB v. Allied Products
Corp. 	(1975) 	218 NLRB 1246 	[89 	LRRM 1441] 	enforced as modified
(6th Cir. 	1977) 	548 	F.2d 	644 	[94 LRRM 	2433].
To 	remedy 	the 	violations 	found 	with 	respect 	to 	the
subcontracting of white 	collar 	unit 	work, 	we 	find 	it
39

appropriate 	to 	order 	the District 	to 	restore 	the 	status 	quo
ante 	as 	it existed 	in June 	1979, 	prior 	to the District's
unilateral 	increase 	in 	subcontracting 	activity.
Because 	the 	District 	employed 	its 	rotation 	system 	for
assigning 	overtime 	watch 	work 	for 	a 	period 	of 	only 	three 	months
and 	subsequently 	restored 	its 	previous 	system 	for 	making 	such
assignments, 	our 	order 	with 	respect 	to 	this violation 	is
limited 	to back 	pay 	for 	this 	period. 	The 	District will 	be
ordered 	to 	pay 	to 	affected 	security 	watchpersons 	any 	overtime
they would 	have 	received 	during April, 	May 	and June 	1980 	but
for 	the District's 	unlawful 	action.
With 	regard 	to 	the 	unlawful 	reduction 	in hours 	and
involuntary 	transfers of paraprofessional employees, 	it 	is
appropriate 	to order 	a 	return 	to 	the 	status quo ante 	as of
September 	1980, 	the 	date 	that 	the District 	acted 	to apply 	the
hours 	standardization/reduction 	policy 	to 	incumbent 	employees
in 	the 	paraprofessional 	unit. 	Specifically, 	we order 	that all
employees 	adversely 	affected 	by 	the 	policy, 	including 	those
whose 	hours 	were 	reduced 	and 	those who were 	transferred, 	be
reinstated 	to 	their 	former 	positions 	and 	made 	whole 	for 	any
wages 	or 	benefits 	lost 	as 	a 	result of 	the District's 	unlawful
action, 	retroactive to September 	1980. 	If an equivalent
position no longer 	exists 	at 	the 	former 	school 	site, 	the
affected 	employee 	should 	be 	transferred 	to 	a 	location 	in 	the
vicinity of 	the 	former 	site 	as 	soon 	as 	a position 	is
40
.

available. 	All 	transfers 	should 	be 	effectuated 	without
prejudice 	to 	the 	seniority or 	other 	rights 	and 	privileges 	of
the 	respective 	employees.
With 	regard 	to 	the 	change 	in 	the 	1980-81 	school calendar,
we 	find 	that 	the ALJ's 	proposed 	order 	is 	inadequate 	to 	remedy
the 	violation. 	Employees 	were 	required 	to work on September 	9,
1980, 	a 	contractually designated 	employee 	holiday. 	Both
collective 	bargaining 	agreements 	provide 	for 	overtime 	at 	the
rate 	of 	1.5 	times 	the 	straight 	rate 	of 	pay 	for 	"time 	required
to 	be worked 	in 	excess 	of 	the 	normal 	full-time work day or 	work
week." 	When 	a 	normal work 	week 	contains 	a 	designated 	holiday,
work 	performed 	on 	the 	holiday 	constitutes 	work 	"in 	excess 	of
the normal . 	. 	. work week" and, 	pursuant to the contract, 	is
properly 	compensated 	as 	overtime 	at 	a 	rate 	of 	time 	and
one-half. 	We, 	therefore, 	order all employees who worked on
September 	9, 	1980 	to 	be 	compensated 	at 	a 	rate 	of 	1.5 	times
their 	straight pay. 	However, 	since 	employees 	were provided 	a
holiday at 	straight pay on February 13, 	1981, 	we will 	set off
the 	payment 	received 	on 	that 	day, 	resulting 	in 	net 	compensation
due 	of 	one-half 	day.
Such 	remedy 	is 	consistent 	with 	that 	ordered 	in Colusa
Unified School District 	(3/21/83) 	PERB Decision No. 	296 	and
Lodi Unified School District 	(9/29/82) 	PERB Decision No. 	239
and 	is 	justified 	by 	the District's 	bad 	faith 	regarding 	this
matter, 	especially as 	indicated 	in McClanahan's memos 	of
41

April 	7 	and 	9 	and Superintendent Love's 	misrepresentation of
the 	calendars 	as 	"Negotiated 	School Calendars" 	which 	"do 	not
violate 	any 	existing 	contractual 	agreements 	and 	have 	been
negotiated."
In addition, 	as 	requested by OSEA, 	we order 	payment of any
other provable damages 	(e.g., 	deposits on vacations) 	resulting
from 	the 	change 	of 	the Admission Day 	holiday.
All payments 	ordered 	above 	shall 	include 	interest 	at 	a 	rate
of 	7 percent 	per 	annum and 	shall continue 	in effect 	until 	the
status 	quo 	ante 	is 	restored or 	the 	parties 	reach 	agreement 	or
exhaust 	the 	statutory 	impasse 	procedures.
It 	is 	also appropriate 	to order 	the District 	to cease 	and
desist 	from all 	of 	the 	conduct 	found 	violative of 	the EERA, 	and
to post 	a 	notice 	incorporating 	the 	terms of 	this 	order,
indicating 	that 	it will 	comply with 	the 	terms 	thereof. 	Posting
such 	a 	notice 	will provide 	employees 	with 	notice 	that 	the
District 	has 	acted 	in an 	unlawful manner 	and 	is 	being 	required
to 	cease 	and 	desist 	from 	this 	activity 	and 	to 	restore 	the
status quo. 	It 	effectuates 	the 	purposes 	of 	the EERA that
employees 	be 	informed 	of 	the 	resolution of 	the 	controversy 	and
the 	District's 	readiness 	to comply with 	the 	ordered 	remedy.
See Placerville Union School District 	(9/18/78) 	PERB 	Decision
No. 	69; 	Pandol and Sons v. ALRB and UFW 	(1979) 	98 Cal.App.3d
580.
42

The 	notice 	shall 	be 	mailed 	to 	persons 	employed 	on or 	after
April 	1980 	who 	are 	no 	longer 	employed 	by 	the 	District 	to 	insure
that 	they 	are 	informed 	of 	their 	rights 	under 	the 	order. 	See
Santa 	Monica Community College 	District 	(9/21/79) 	PERB 	Decision
No. 	103; 	Oakland Unified School District 	(4/23/80) 	PERB
Decision No. 	126, 	aff. 	120 Cal.App.3d 1007.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	subsection
3541.5(c), 	it 	is 	found 	that 	the Oakland Unified School District
has violated Government Code subsections 3543.5(a), 	(b) 	and 	(c)•
It 	is 	hereby ORDERED 	that 	the 	Oakland 	Unified 	School
District, 	its 	governing 	board 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	with 	respect 	to 	the 	subcontracting 	of 	white
collar 	unit 	work, 	the 	method 	of 	assigning 	overtime 	security
watch 	work, 	the 	reduction 	in 	hours 	and 	transfers 	of
paraprofessionals, 	and 	the 	1980-81 	school calendar;
(2) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	refusing 	to
provide 	information 	regarding 	the 	subcontracting 	of 	white
collar 	unit 	work 	and 	the 	standardization 	of 	hours 	of
paraprofessional 	unit 	employees;
43

(3) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	bypassing 	the
exclusive 	representative 	and 	negotiating 	directly 	with
paraprofessional 	employees 	with 	respect 	to 	reduction 	of 	their
hours, 	involuntary 	transfers 	or 	any 	other 	mandatory 	subject 	of
negotiations;
(4) 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	the 	Educational Employment
Relations Act, 	including 	the 	right 	to 	select 	an 	exclusive
representative 	to 	negotiate 	on 	their 	behalf; 	and
(5) 	Denying 	to 	the Oakland School Employees
Association 	rights 	guaranteed 	by 	the Educational 	Employment
Relations Act, 	including 	the 	right 	to 	represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
(1) 	Restore 	the 	status 	quo 	ante 	with 	regard 	to 	the
subcontracting 	of 	white 	collar 	unit 	work 	to 	the 	level 	which
existed 	in June 	1979 	prior 	to 	the District's 	unilateral
increase 	in 	subcontracting 	activity.
(2) 	Pay 	to 	affected 	security watchpersons 	any
overtime 	they 	would 	have 	received 	during April, 	May 	and
June 	1980, 	but 	for 	the District's 	unilateral change of 	the
method 	of 	assigning 	overtime.
(3) 	Reinstate, 	upon request, 	all paraprofessional
employees 	to 	their 	former 	positions 	and 	full 	hours 	of
employment 	prior 	to September 	1980, 	and 	make 	affected 	employees
44

whole 	for 	any 	loss 	of 	pay 	or 	benefits 	which 	they 	suffered
because 	of 	the 	unilateral 	reduction 	in hours 	and 	transfers. 	If
such 	former 	position 	no 	longer 	exists, 	reinstate 	the 	affected
employee 	to 	an 	equivalent 	position 	as 	soon 	as 	one 	is 	available
at 	a 	school 	site 	in 	the 	vicinity of 	the 	employee's 	former 	work
site.
(4) 	Pay 	to 	all 	employees 	in 	the 	white 	collar 	and
paraprofessional 	unit who worked 	on September 	9, 	1980, 	a
designated 	employee 	holiday, 	compensation 	of 	one-half 	day 	at
their 	regular 	rate 	of 	pay 	and 	any 	other 	provable 	damages 	which
resulted 	from 	the 	unilateral 	change 	of 	the 	date 	of 	the 	holiday.
(5) 	All payments 	ordered 	above 	shall 	include 	interest
at 	a 	rate 	of 	7 	percent 	per 	annum and 	shall 	continue 	in 	effect
until 	the 	status 	quo 	ante 	is 	restored 	or 	the 	parties 	reach
agreement 	or 	exhaust 	the 	statutory 	impasse 	procedures.
(6) 	Within 	thirty-five 	(35) 	days 	after 	the 	date of
service 	of 	this Decision, 	post 	copies 	of 	the Notice 	to
Employees 	attached 	as 	an 	appendix 	hereto. 	Such 	posting 	shall
be 	maintained 	for 	at 	least 	thirty 	(30) 	consecutive 	workdays 	at
the 	District's 	headquarters 	offices 	and 	in 	conspicuous 	places
at 	the 	locations 	where 	notices 	to classified 	employees 	are
customarily 	posted. 	Reasonable 	steps 	shall 	be 	taken 	to 	insure
that 	the 	notice 	is 	not 	reduced 	in size, 	defaced, 	altered or
covered 	by 	any material.
45

Mail 	copies 	of 	the Notice 	to Employees 	to all persons
employed 	on or 	after April 	1980 	who 	are 	no 	longer 	employed 	by
the District.
(7) 	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 	her 	instructions..
Chairperson Gluck 	and Member 	Tovar 	joined 	in 	this 	Decision.
46
-

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. 	SF-CE-469,
Oakland 	School 	Employees 	Association 	v. 	Oakland 	Unified 	School
District, 	in which 	all parties 	had 	the 	right 	to participate, 	it
has 	been 	found 	that 	the 	Oakland 	Unified 	School 	District
violated 	the 	rights 	of 	the 	Oakland 	School Employees Association
and 	its members 	as 	guaranteed by subsections 	3543.5(a), 	(b)
and 	(c) 	of 	the Educational Employment Relations Act.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been ordered 	to post
this Notice 	and 	will 	abide 	by 	the 	following. 	We 	will:
A. 	CEASE 	AND DESIST 	FROM:
(1) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	with 	respect 	to 	the 	subcontracting 	of 	white
collar 	unit 	work, 	the 	method 	of 	assigning 	overtime 	security
watch 	work, 	the 	reduction 	in hours 	and 	transfers 	of
paraprofessionals, 	and 	the 	1980-81 	school calendar;
(2) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	refusing 	to
provide 	information 	regarding 	the 	subcontracting 	of 	white
collar 	unit 	work 	and 	the 	standardization 	of 	hours 	of
paraprofessional 	unit 	employees;
(3) 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	bypassing 	the
exclusive 	representative 	and 	negotiating 	directly 	with
paraprofessional 	employees 	with 	respect 	to 	reduction 	of 	their
hours, 	involuntary 	transfers 	or 	any 	other 	mandatory 	subject 	of
negotiations;
(4) 	Interfering 	with 	employees 	because 	of 	their
exercise 	of 	rights 	guaranteed 	by 	the Educational Employment
Relations Act, 	including 	the 	right 	to 	select 	an 	exclusive
representative 	to 	negotiate 	on 	their 	behalf; 	and
(5) 	Denying 	to 	the Oakland School Employees
Association 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations Act, 	including 	the 	right 	to 	represent 	its members.
•

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
(1) 	Restore 	the 	status 	quo 	ante 	with 	regard 	to 	the
subcontracting 	of 	white 	collar 	unit 	work 	to 	the 	level 	which
existed 	in June 	1979 	prior 	to 	the 	District's 	unilateral
increase 	in 	subcontracting 	activity.
(2) 	Pay 	to 	affected 	security watchpersons 	any
overtime 	they 	would 	have 	received 	during April, 	May 	and
June 	1980, 	but 	for 	the District's 	unilateral 	change 	of 	the
method 	of 	assigning 	overtime.
(3) 	Reinstate, 	upon request, 	all paraprofessional
employees 	to 	their 	former 	positions 	and 	full 	hours 	of
employment 	prior 	to September 	1980, 	and 	make 	affected 	employees
whole 	for 	any 	loss 	of 	pay 	or 	benefits 	which 	they 	suffered
because 	of 	the 	unilateral 	reduction 	in 	hours 	and 	transfers. 	If
such 	former 	position 	no 	longer 	exists, 	reinstate 	the 	affected
employee 	to 	an 	equivalent 	position 	as 	soon 	as one 	is 	available
at 	a 	school 	site 	in 	the 	vicinity of 	the 	employee's 	former 	work
site.
(4) 	Pay 	to 	all 	employees 	in 	the 	white 	collar 	and
paraprofessional 	unit 	who worked 	on September 	9, 	1980, 	a
designated 	employee 	holiday, 	compensation 	of 	one-half 	day 	at
their 	regular 	rate 	of 	pay, 	and 	any 	other 	provable 	damages 	which
resulted 	from 	the 	unilateral 	change 	of 	the 	date 	of 	the 	holiday.
(5) 	All payments 	ordered 	above 	shall 	include 	interest
at 	a 	rate 	of 	7 	percent per 	annum, 	and 	shall 	continue 	in effect
until 	the 	status 	quo 	ante 	is 	restored 	or 	the 	parties 	reach
agreement 	or 	exhaust 	the 	statutory 	impasse 	procedures.
DATED: 	OAKLAND 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN POSTED FOR AT 	LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE 	OF POSTING AND
MUST 	NOT 	BE 	REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.
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By'_______ _
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