Eureka City School District (PERB 0481E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
EUREKA
	TEACHERS
	ASSOCIATION, 	CTA/NEA,
Charging
	Party,
v.
EUREKA
	CITY
	SCHOOL
	DISTRICT,
Respondent.
\
)
)	
Case
	No.
	SF-CE-773
PERB
	Decision
	No. 	481
January
	15,
	1985
)
)
)
)
)
) .
)
Appearances:	
Ramon
	E.
	Romero,
	Attorney 	for 	the
	Eureka
	Teachers
Association,
	CTA/NEA;
	Harland	
&	
Gromala 	by
	Richard
	A.
	Smith,
Attorney 	for 	the
	Eureka
	City
	School
	District.
Before
	Hesse,
	Chairperson;
	Tovar 	and
	Jaeger,
	Members.
DECISION
JAEGER, 	Member:
	This 	case
	is
	before 	the 	Public
	Employment
Relations
	Board
	(PERB
	or
	Board) 	on
	exceptions
	filed
	by
	the
Eureka
	City
	School
	District
	(District)
	to
	a
	proposed
	decision
of
	an
	Administrative
	Law
	Judge
	(ALJ)
	finding
	that
	it
	violated
section
	3543.S(a), 	(b),
	and 	(c)
	of 	the 	Educational
	Employment
Relations
	Act
	(EERA
	or
	Act)
	by
	unilaterally 	transferring
	work
out 	of 	the
	certificated
	bargaining
	unit.
1
1 The
	EERA
	is 	codified 	at
	Government 	Code
	section
	3540
	et
seq. 	All 	references 	are 	to 	the
	Government 	Code
	unless
otherwise 	indicated.
Section
	3543.5
	provides, 	in 	relevant 	part:
It
	shall
	be 	unlawful 	for
	a
	public 	school
employer
	to:
(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.
(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.
For
	the 	reasons
	set
	forth
	below,
	we
	reverse
	the 	ALJ's
finding
	that
	the
	District
	unlawfully
	transferred
	work
	out
	of
the 	bargaining
	unit 	but, 	nevertheless,
	find
	a
	violation
	based
on
	determination
	that
	it
	unlawfully
	reduced
	the
	hours
	of
	an
employee.
FACTS
The
	District's
	"special
	education"
	program
	provides
assistance
	to
	students
	with
	learning
	disabilities
	and
	to
	other
students
	who
	need
	individualized 	assistance.
	Classroom
teachers·
who
	believe
	a
	student
	might
	benefit
	from
	the
	special
education
	program
	refer
	the
	student 	to 	the
	special
	education
teacher
	assigned
	to
	the 	school.
	That
	teacher
	tests
	the
student, 	evaluates 	the
	test
	results,
	and
	meets 	with
	parents
	and
with
	other
	District 	staff
	when
	necessary.
	The
	District
	then
determines
	whether
	to 	place 	the 	student 	in
	a
	special
	education
program.
The
	special
	education
	program
	includes 	"resource
	specialist
teachers"
	(RST
	teachers)
	and
	"designated
	instructional
services" 	teachers
	(DIS
	teachers).
	Joyce 	Daugherty,
	a
	special
education 	teacher,
	and
	Russell 	Shaddix, 	the
	District's
2

coordinator
	of
	special 	services,
	both
	testified
	that
	the
day-to-day
	responsibilities
	of
	RST
	teachers
	and
	DIS
	teachers
are 	exactly
	the
	same.
	The
	only
	difference
	between
	an
	RST
	and
and
	DIS
	teacher
	is
.that
	an
	RST
	teacher
	is 	entitled
	to 	the
assistance
	of
	an
	instructional
	aide.
2
Daugherty
	was
	first
	employed
	by
	the
	District
	as
	a
	regular
classroom 	teacher 	in
	1962. 	Beginning
	in
	1975, 	she
	was
	employed
as
	a
	special
	education 	teacher
	at
	various 	schools.
	During
	most
of
	the
	time
	from 	1975
	to
	1981, 	Daugherty
	was
	designated
	a
"resource
	specialist
	teacher,"
	and
	had 	an
	aide 	assigned
	to
assist
	her.
	During
	the
	1981-82
	school
	year,
	she
	was
	employed
as
	a
	full-time
	DIS
	teacher
	at
	the
	Grant
	and
	Washington
Elementary 	Schools 	and,
	consistent
	with
	the
	District's
established 	policy,
	did 	not
	have 	an
	aide 	assigned 	to 	her.
The
	District's
	Decision 	to
	Reduce
	the
	Position 	to
	an
	Eighty
Percent 	Position
Early 	in
	1982,
	the
	District
	began
	to
	make
	staffing
projections
	for
	its
	special
	education
	program
	for 	the
	1982-83
school 	year.
	The
	District
	decided 	in
	late
	February 	or
	early
March
	to 	allocate
	an 	80
	percent 	position 	(rather
	than
	a
full-time 	position) 	to 	the 	Grant/Washington 	Schools.
	The
decision
	was
	based
	on
	several 	factors,
	which 	were
	explained
	by
the
	District's
	coordinator 	of
	special 	services, 	Russell 	Shaddix.
2rhere
	was 	no
	evidence 	introduced
	at 	the 	hearing 	as 	to
the 	source 	of
	this 	distinction,
	but
	it
	is
	not 	disputed 	that
such 	a
	distinction 	exists.
3

First,
	Shaddix
	assumed
	that 	at
	the
	end
	of
	the
	1981-82
school
	year
	there
	would
	be
	18-20
	students 	in 	the
	special
education
	program
	at
	the
	two
	schools.
	This 	assumption
	was
based
	on
	the
	December
	count
	of
	18
	students.
Second, 	Shaddix
	knew
	that,
	as
	a
	result
	of 	the
	closing
	of
two
	other
	elementary 	schools
	by
	the
	District,
	five
	or
	six
students
	who
	were
	in
	special
	education
	programs
	in 	those
schools
	would
	transfer
	to
	either
	Grant 	or
	Washington
	Schools
the 	next 	year.
Third, 	the
	District
	knew
	that, 	typically,
	as
	students
	move
out
	of
	the
	District
	or
	progress 	to
	a
	point
	where
	they
	no
	longer
need
	individualized 	assistance, 	there
	is
	a
	drop-off
	rate
	in
	the
program
	of 	about
	25
	percent
	from
	the
	end
	of
	one
	school 	year
	to
the 	beginning 	of 	the 	next.
	Thus,
	the
	District
	concluded
	there
would 	be
	approximately
	20
	students 	in
	the
	special
	education
program
	at
	the
	Grant
	and
	Washington 	Schools
	in
	September 	1982.
Based 	on
	these
	projections,
	the
	District
	decided
	to 	assign
to 	the 	special
	education
	program
	at
	Grant/Washington S.chools,
an 	80
	percent
	RST
	position
	with
	a
	teacher's 	aide.
	On
cross-examination,
	Shaddix 	acknowledged
	that
	the 	decision 	to
establish
	an
	80
	percent
	RST
	position
	was 	made
	at
	the
	same
	time
as
	the 	decision 	to 	assign
	an
	aide 	to 	the
	RST. 	He
	also
testified 	that
	it
	would 	have 	been 	impossible 	for 	the
	District
to 	provide 	the 	desired 	level 	of 	services
	by
	assigning 	to 	the
Grant 	and 	Washington 	Schools 	an
	80
	percent
	DIS
	position 	without
4

an 	aide. 	He 	testified 	that, 	if 	no 	aide 	had 	been 	assigned, 	the
teaching 	position 	would 	have 	had 	to 	have 	been 	a 	100 	percent
position.
In 	late 	March, 	Shaddix 	met 	with 	four 	special 	education
teachers. 	Two 	of 	these 	(Mary 	Seeley 	and 	Alice 	Olson) 	were
assigned 	to 	schools 	which 	were 	to 	be 	closed 	the 	next 	school
year. 	The 	other 	two 	teachers, 	Daugherty 	and 	Gary McConkey,
were 	the 	special 	education 	teachers 	assigned 	to 	schools 	at
which 	the 	full-time 	teaching 	positions 	were 	to 	be 	altered.
At 	the 	meeting, 	Shaddix 	informed 	the 	teachers 	that 	two
schools 	were 	to 	be 	closed 	and 	that 	the 	special 	education
positions 	at 	the 	two 	other 	schools 	were 	to 	be 	altered. 	He 	told
them 	that 	teachers 	from 	the 	closed 	schools 	would 	be 	given
preference 	in 	filling 	special 	education 	positions 	at 	other
schools 	and 	he 	identified 	the 	schools 	at 	which 	there 	were
openings. 3 The 	openings 	identified 	by 	Shaddix 	were:
(1) 	Special 	day 	class, 4 elementary 	(learning-
handicapped)--site 	unknown;
3on 	March 	18, 	1982, 	the 	District 	and 	the 	Eureka 	Teachers
Association 	(Association) 	had 	signed 	an 	agreement 	setting 	out
"guidelines" 	for 	the 	transfer 	of 	personnel 	resulting 	from
school 	closings. 	One 	aspect 	of 	this 	agreement 	gave 	teachers
from 	closed 	schools 	preference 	for 	openings 	sought 	by 	two 	or
more 	qualified 	applicants. 	There 	is 	no 	evidence 	that 	this
agreement 	was 	intended 	to 	cover 	the 	reassignment 	rights 	of
teachers 	like 	Daugherty 	and 	McConkey 	whose 	schools 	had 	not 	been
closed, 	but 	who, 	nevertheless, 	suffered 	a 	reduction 	in 	the
hours 	of 	their 	positions.
4The 	phrase 	was 	not 	clearly 	defined 	during 	the 	hearing.
5

(2) 	Resource 	specialist 	teacher--Marshall;
(3) 	Resource 	specialist 	teacher--Grant/
washington--80 	percent 	assignment;
(4) 	Resource 	specialist 	teacher/DIS 	inst.--Jefferson 	(80
percent 	RST/20 	percent 	DIS);
(5) 	Special 	day 	class--(severely 	handicapped)-- 	Winship
Junior 	High;
(6) 	Special 	day 	class--(severely 	emotionally
disturbed)--Winship 	Junior 	High;
(7) 	Special 	day 	class--(learning-handicapped)--Zane 	Junior
High;
(8) 	Special 	day 	class--(learning-handicapped)--Eureka 	High.
One 	of 	the 	teachers 	to 	be 	displaced 	by 	a 	school 	closing
indicated 	her 	preference 	for 	the 	Marshall 	School 	position; 	the
other 	indicated 	her 	preference 	for 	a 	junior 	high 	school
position 	listed. 	It 	is 	not 	clear 	whether 	the 	third 	teacher
present, 	Gary 	McConkey, 	who 	taught 	at 	Jefferson, 	stated 	his
preference 	at 	the 	meeting. 	Shaddix 	testified 	that 	Daugherty
could 	have 	chosen 	any 	one 	of 	the 	full-time 	positions 	not
selected 	by 	the 	two 	teachers 	who 	had 	been 	displaced 	by 	school
closings.
At 	the 	meeting, 	Daugherty 	did 	not 	indicate 	her 	choice 	of
assignment 	for 	the 	ensuing 	year. 	However, 	several 	days 	later
she 	wrote 	school 	Superintendent Michael 	McManus· and 	applied 	for
the 	80 	percent 	RST 	position 	at 	the 	Grant 	and 	Washington 	Schools.
On April 	5, 	Shaddix 	met 	with 	Daugherty 	and 	the 	principals
of 	the 	Grant 	and 	Washington 	Schools, 	Russ 	Bradford 	(at 	Grant)
and 	Marty Walker 	(at 	Washington). 	According 	to 	a 	memorandum
6

which 	Shaddix
	wrote
	that
	day
	describing
	the
	meeting,
5
its
purpose
	was
	to,
•.•
	clarify
	the
	role
	of 	the 	resource
teacher
	at
	Grant
	and
	Washington
	next 	year
	in
light
	of
	the 	reduction
	of
	certificated 	staff
time
	and
	increased 	student 	enrollment.
Four
	of 	the
	full-time 	positions
	were
	eventually
	filled
	by
new
	employees.
The
	Dutie~ 	of
	Daugherty
	and
	Her
	Aide
As
	both
	an
	RST
	teacher
	and 	a 	DIS
	teacher,
	Daugherty's
day-to-day
	responsibilities
	consisted
	of
	working
	with
	students
several
	times
	a 	week
	either
	on 	a
	one-to-one
	basis
	or 	with
	small
groups.
	She
	taught 	reading,
	writing,
	and
	other
	subjects.
	Some
time
	during
	each
	week 	was
	set
	aside 	for 	planning
	programs
	for
the
	students
	assigned 	to 	her,
	meeting 	with
	parents
	or 	with
teachers,
	grading
	tests,
	or
	administering
	tests
	to
	students
recently 	referred 	to 	the
	program.
During
	the 	years
	that
	Daugherty, 	as
	an
	RST
	teacher,
	had
	a
teacher's
	aide 	assigned 	to 	her,
	the 	aide
	worked
	under
	her
supervision,
	watching
	students 	write
	or
	read,
	listening
	to
students 	read, 	preparing
	work
	for 	the 	next 	day,
	administering
diagnostic 	examinations,
	and 	doing
	clerical
	work
	assigned
	by
5
Although 	the
	memorandum
	does 	not
	identify
	Daugherty
	as
the 	teacher 	to
	be
	assigned 	to 	the 	schools 	the 	next 	year,
	it
	may
be
	inferred
	from
	the 	circumstances
	that 	the 	participants 	in 	themeeting 	assumed
	that
	Daugherty 	would 	have 	the 	job. 	In 	any
event,
	on
	April
	28, 	1982, 	Superintendent
	McManus
	sent
	a
	letter
to 	Daugherty 	informing 	her 	she 	had 	been 	assigned 	to 	the
80
	percent 	Grant/Washington 	position.
7

Daugherty.
	Daugherty
	testified
	that
	there
	were
	certain 	duties
that
	she
	would
	not
	assign 	to
	an
	aide.
	These
	included
evaluation
	of
	testing,
	conducting 	meetings 	with
	parents,
explaining
	legal
	forms
	to
	parents,
	coordinating
	with
	other
special
	education 	personnel,
	and
	being
	responsible
	for
	a
	child
who
	was
	injured 	in
	the 	classroom.
While
	the 	aide 	did 	not
	work
	at
	a
	separate
	facility,
	he
	or
she
	did, 	at
	times,
	work
	out 	of 	Daugherty's
	earshot.
As
	school
	started
	in
	September 	1982,
	the
	District
	allocated
work
	assignments 	to.Daugherty
	and
	to
	the 	aide 	assigned
	to
	work
with
	her,
	Georgine
	Corsetti.
	Daugherty
	worked
	at
	the
Washington 	School
	from
	9
	a.m.
	to
	noon,
	and
	at
	the 	Grant 	School
from
	1
	p.m.
	to
	3
	p.m.,
	Mondays
	through 	Thursdays.
	A
	full-time
position 	entailed
	seven
	and
	one-quarter
	hours 	per 	day.
Corsetti
	worked
	at
	the 	Grant 	School
	from
	9
	a.m.
	to
	noon
	and
	at
the
	Washington 	School
	from
	1
	p.m.
	to
	2
p.m.,
	Mondays
	through
Thursdays.
Twenty
	students
	were
	assigned 	to
	Daugherty
	and
	Corsetti 	in
September 	1982. 	Half 	of 	these
	were
	at
	the
	Washington
	School,
half
	were
	at
	Grant. 	Daugherty,
	who
	worked 	more
	hours 	than
Corsetti,
	saw
	slightly
	more
	than
	10
	students; 	Corsetti
	saw
slightly 	less
	than 	10. 	Daugherty 	did 	not, 	as
	a
	routine 	matter,
see 	any 	of 	the 	students 	with
	whom
Corsetti
	worked 	and
	Corsetti
did 	not, 	as
	a
	routine 	matter, 	see
	any
	of 	the 	students 	with
	whom
Daugherty 	worked.
8

On 	Fridays, 	Daugherty 	and 	Corsetti 	were 	able 	to 	work
together. 	In 	a 	September 	15, 	1982 memorandum 	sent 	by 	Shaddix
to 	the 	principals 	of 	the 	Grant 	and 	Washington 	Schools, 	Shaddix
outlined 	the 	duties 	Daugherty 	and 	Corsetti 	would 	be 	expected 	to
perform 	on 	Fridays:
Fridays 	will 	be 	devoted 	to 	planning 	and
organizing 	the 	following 	week's 	work
schedule 	of 	instructional 	activities.
Mrs. 	Daugherty 	will 	be 	responsible 	for 	the
instructional 	obj~ctives 	and 	curricular
planning 	to 	meet 	the 	objectives. 	Fridays
will 	be 	used 	for 	contact 	with 	parents 	and
agencies, 	meetings, 	teacher 	contacts,
student 	assessment 	and 	completing 	any
required 	paper 	work.
It 	is 	understood 	that 	a 	certain 	amount 	of
preparation 	and 	planning 	is 	needed 	before
such 	a 	schedule 	can 	be 	effectively
implemented; 	the 	first 	two 	weeks 	of 	school
will 	be 	utilized 	in 	organizing 	the 	program
for 	delivery 	of 	services.
Shaddix' 	description 	of 	the 	Friday 	work 	assignment 	was
generally 	corroborated 	by 	Daugherty, 	who 	testified 	that, 	on
Fridays,
Mrs. 	Corsetti 	and 	I 	would 	meet 	and 	discuss
our 	material, 	discuss 	the 	work 	the 	children
were 	doing, 	what 	we 	wanted 	to 	do 	for 	the
next 	week, 	if 	there 	were 	problem 	areas, 	she
would 	inform 	me 	or 	I 	would 	give 	her 	things 	I
wanted 	her 	to 	do 	and 	follow 	through.
Sometimes 	we 	did 	testing.
At 	another 	point 	in 	the 	hearing, 	Daugherty 	testified 	that 	"the
purpose 	for 	Friday 	was 	for 	my 	aide 	and 	I 	to 	meet 	together, 	to
plan 	programs, 	for 	testing 	"
Daugherty 	and 	Corsetti 	did 	not 	normally 	communicate 	during
the 	remaining 	four 	days 	of 	the 	week 	with 	the 	exception 	of
9

occasional
	phone
	calls
	when
	problems
	arose.
	Corsetti
	testified
that,
	from
	Monday
	through 	Thursday, 	she
	implemented
	lesson
plans
	developed
	by
	Daugherty
	on
	Fridays.
	She
	also 	indicated
that 	this
	was
	basically
	the
	same
	pattern
	of
	duties
	that
	she
	had
followed
	in 	previous
	years,
	except
	that
	now
	she 	performed
	those
duties
	when
	Daugherty
	was
	not
	present
	at
	the
	work
	location.
When
	questioned
	closely
	about 	the
	difference
	between
	her
	duties
in
	the
	fall
	~f
	1982 and
	in
	previous
	years,
	Corsetti
	testified
that,
	rather
	than 	being
	supervised
	by
	the
	special
	education
teacher,
	she
	received
	more
	supervision
	from
	the
	principals
	at
the
	Grant
	and
	Washington
	Schools.
	She
	also
	testified
	that
	she
"did
	a
	little
	more
	testing"
	and
	seemed
	to
	have
	more
"responsiblity"
	than
	in
	previous
	years.
Shaddix
	testified
	that
	the
	District's
	decision 	to 	arrange
the
	Monday-Thursday
	split
	schedule 	for
	Daugherty
	and
Corsetti--which
	placed
	them
	at 	different
	schools
	at
	all
	times,
Monday
	through 	Thursday--was 	based
	on 	two
	factors.
	First,
	the
District
	wanted
	to 	spread 	the 	"contact
	time" 	for 	the
	student
and
	the 	teacher
	(or
	the 	aide) 	over 	four 	days.
	Second,
	there
was
	limited
	classroom 	space
	at
	the 	Grant
	and 	Washington
Schools. 	Apparently 	as
	a
	result
	of 	the 	closing 	of
	two
elementary 	schools, 	the
	room
	which 	had
	previously
	been
	set
aside 	for 	use
	by
	the 	special 	education
	program
	in
	at 	least
	one
of 	the 	schools
	had 	become
	very 	crowded 	with
	tables
	and
	files.
10

The
	first
	two
	weeks
	of 	the
	new
	semester
	were
	set
	aside 	for
organizing 	the
	program,
	preparation
	and
	planning. 	After
	that
initial
	period,
	Daugherty
	and
	Corsetti
	began
	carrying
	out
	the
schedule 	described
	above,
	which 	had
	been
	drawn
	up
	by
	Shaddix.
Shaddix
	and
	Marty
	Walker,
	Washington
	School
	principal
	and
	a
former
	special
	education
	teacher,
	testified
	that
	it
	was
	not
unusual, 	in
	special
	education
	generally,
	for
	an
	instructional
aide, 	at
	times, 	to
	work
	independently 	of 	the 	teacher 	to
	whom
she
	or.he
	was
	assigned
	while 	remaining
	under
	the
	teacher's
general 	supervision.
	Indeed 	both
	Walker
	and
	Shaddix
	indicated
that 	at 	least
	once
	in
	the
	past 	there
	had
	been
	a
	split
assignment
	between
	a
	teacher
	and 	an
	aide
	similar
	to
	that
	which
occurred 	in 	the
	fall
	of
	1982
	at
	the
	Grant
	and
	Washington
Schools.
The
	Department
	of
	Education
	Investigation
In
	February 	1983, 	Bruce 	Lindskog~ 	on
	behalf 	of 	the
Association,
	wrote
	to 	the
	State
	Department
	of 	Education,
accusing 	the
	District
	of 	four 	misdeeds
	related
	to 	the
	special
education
	program,
	including 	the
	use
	of 	aides 	to 	provide
	the
services
	normally 	provided 	to 	students
	by
	a
	Resource
	Specialist
Teacher.
	The
	Department 	of 	Education
	investigator
	concluded
that
	by
	the
	split
	assignment 	arrangement
	at
	the
	Washington 	and
Grant 	Schools, 	the
	District
	had
	assigned
	responsibilities 	to
the 	teacher's 	aide
	which
	should 	have 	been
	that
	of 	the 	teacher
(Daugherty).
11

The
	investigator
	concluded
	that
	the
	District
	was
	out
	of
compliance 	with 	Education
	Code
	section
	45344.
6
His
	report
states,
	in
	pertinent
	part:
Although
	Education
	Code
	Section
	45344
	allows
an
	aide 	to
	work"
•••
	beyond
	the
	physical
presence 	of 	the 	teacher
•.••
",
	assigning
an
	aide
	a
	totally
	separate
	caseload
	at
	a
different
	school
	site
	for 	the
	whole
	year
	is
clearly
	beyond
	the
	intent
	of 	the
	section.
A.
certificated 	staff
	member 	may
	not
	delegate
"his
	responsibility
	for 	the
	instruction
	and
supervision 	of 	the
	pupils
	in
	his
	charge"
(Education
	Code
	section
	45344).
	By
assigning 	the 	aide
	to
	a
	removed
	school
	site
to
	perform
	as 	the
	Resource
	Specialist
	would
perform
	in
	delivering 	instruction
	and
providing
	supervision, 	the
	district 	is
requiring
	the
	Resource
	Specialist
	to
delegate
	some
	of 	those
	responsibilities
	to
another 	person,
	which
	Education
	Code
	section
45344
	contraindicates.
. . 	. 	. 	. 	. 	. 	. 	. . 	. 	. 	. 	. 	. 	. 	. 	. 	. . 	. 	.
By
	assigning 	the
	Resource
	Specialist
	and
	the
aide 	to
	different
	school
	sites
	and
	to
separate
	and
	distinct
	groups
	of
	students,
the
	district
	is
	requiring 	the
	certificated
staff
	member
	to 	relinquish 	to
	the 	aide
6Education
	Code
	section
	45344
	provides, 	in 	relevant
	part:
An
	instructional
	aide
	shall
	perform 	only
such
	duties 	as, 	in 	the
	judgment
	of 	the
certificated
	personnel 	to
	whom
	the
instructional
	aide
	is
	assigned,
	may
	be
performed 	by	
a
	person 	not 	licensed 	as
	a
classroom 	teacher.
	These
	duties 	shall
	not
include 	assignment 	of 	grades 	to 	pupils.
	An
instructional 	aide
	need 	not 	perform 	such
duties 	in 	the 	physical 	presence 	of 	the
teacher 	but 	the 	teacher 	shall 	retain 	his
responsibility 	for 	the 	instruction
	and
supervision 	of 	the 	pupils 	in 	his 	charge.
12

nearly
	total
	responsibility
	for
	instruction
and
	supervision
	of 	the
	pupils
	in 	her
charge.
	• 	• 	•
There
	is
	no
	indication
	in 	the
	report
	itself
	about
	the
manner
	in
	which
	the
	investigation
	was
	conducted.
	Nor 	was
	any
other
	evidence
	presented
	on
	this
	point.
	Because
	of
	the
uncertainty
	concerning 	the
	manner
	in
	which
	evidence
	was
gathered,
	and
	the 	standards 	for
	drawing
	the 	conclusions,
	the
ALJ
	concluded,
	and
	we
	agree,
	that
	neither
	the
	factual 	findings
nor
	the 	conclusions
	are
	binding
	upon
	this
	Board
	in 	the
	instant
case.
7 The
	report
	is,
	however,
	admissible
	as 	evidence 	of
	the
relationship
	between
	teachers
	and
	aides.
The
	Spring
	Semester
By
	the
	end
	of
	December
	1982,
	the
	number
	of
	students 	in 	the
two
	schools
	had
	increased
	from
	the
	20
	who
	were
	enrolled 	in
September,
	to
	24.
	Several
	more
	were 	added
	at
	the
	Washington
School
	in
	January.
	By
	late
	January, 	the
	District
	converted 	the
80
	percent 	position
	held
	by
	Daugherty
	to
	a
	full-time 	position.
The
	District
	continued 	to
	employ 	a
	teacher's
	aide 	to
	assist
Daugherty, 	although 	Georgine
	Corsetti
	was
	replaced
	by
	Beverly
Thompson. 	The
	reason 	for
	this
	personnel
	change 	does 	not 	appear
in 	the 	record.
Shaddix
	testified 	that
	the
	District
	decided 	to
	expand
Daugherty's 	position 	to
	a
	full-time 	position
	because
	there
	had
7
see 	Overnite 	Transportation
	Company 	(1966) 	157
	NLRB
	1185
[61
	LRRM
	1520}; 	Yellow Cab,
	Inc.
	(1969) 	179
	NLRB
	No. 	148 	[7 2
LRRM
	1514].
13

been
	an
	increase
	in 	the
	number
	of
	students
	and
	additional
	state
funds
	for
	special
	education
	had
	become
	available.
The
	split
	assignments 	continued
	after
	Daugherty's
	position
became
	fulltime;
	it
	was
	not
	until
	mid-April
	that
	the
assignments
	were
	revised
	so
	that
	Daugherty
	and
	her
	aide
	were
working
	together,
	morning 	and
	afternoon.
	There
	is
	no
	evidence
concerning 	the
	work
	of 	Daugherty's
	aide,
	Beverly
	Thompson,
	in
the
	period
	from
	January
	31
	until
	mid-April.
After
	Daugherty
	and
	her
	aide
	were
	reunited 	in
	April, 	there
were
	times
	when
	the
	two
	worked
	independently,
	each 	with
	a
different
	student,
	while
	in
	a
	single
	room.
DISCUSSION
The ALJ
	found
	that
	the
	District's
	conduct
	amounted
	to
	an
unlawful
	transfer
	of
	work
	out 	of 	the
	certificated
	bargaining
unit.
	See
	Rialto
	Unified
	School
	District
	(4/30/82)
	PERB
Decision
	No. 	209;
	Solano
	County
	Community
	College
	District
(6/30/82)
	PERB
	Decision
	No. 	219; 	Mt. 	San
	Antonio
	Community
College
	District
	(8/18/83)
	PERB
	Decision
	No.
	334.
	The
	ALJ
reasoned
	that,
	because 	the
	District
	did 	not 	reduce 	the
	amount
of
	special
	education 	services
	which
	it
	was
	providing
	at
Grant/Washington
	but, 	nevertheless,
	reduced 	the
Grant/Washington
	special 	education 	teaching 	position
	from 	100
per 	cent 	to
	80
	percent
	and
	transferred
	some
	teaching 	functions
to
	a
	certificated 	aide, 	the
	District
	had
	acted 	unlawfully.
The
	District 	excepts 	to 	this 	determination, 	asserting 	that
it
	did 	not 	transfer 	teacher
	work
	to 	aides 	but 	simply 	assigned
14

to
	Corsetti
	more
	duties
	of 	the
	sort
	which
	she
	had
	previously
performed.
In 	Rialto
	Unified
	School
	District,
	supra, 	the
	Board
	held
that
	the
	decision 	to
	transfer
	work
	from
	bargaining
	unit 	to
nonbargaining
	unit
	employees
	is
	negotiable
	so 	long 	as
	the
transfer
	impacts
	upon 	a
	subject
	within 	the
	scope
	of
representation.
	Solano
	County
	Community
	College
	District,
supra;
	Goleta
	Union
	School
	District
	{8/1/84)
	PERB
	Decision
	No.
391.
We
	find
	that,
	in
	this
	case, 	the Association
	has
	failed
	to
prove
	that
	the
	District
	unlawfully
	transferred
	work
	out 	of
	the
certificated
	unit.
	In 	our 	view,
	in
	order 	to
	prevail
	on 	a
unilateral
	transfer
	of
	work
	theory,
	the 	charging
	party
	must
establish,
	as
	a
	threshold 	matter,
	that 	duties
	were,
	in
	fact,
transferred
	out 	of 	the
	unit; 	that
	is,
	that 	unit
	employees
ceased 	to
	perform
	work
	which
	they
	had
	previously
	performed
	or
that
	nonunit
	employees 	began
	to
	perform
	duties 	previously
performed
	exclusively
	by
	unit
	employees.
	However,
	where,
	as
here, 	unit
	and
	nonunit
	employees 	have
	traditionally
	had
overlapping
	duties,
	an 	employer 	does 	not
	violate
	its
	duty
	to
negotiate 	in
	good
	faith
	merely 	by	
increasing 	the 	quantity 	of
work 	which
	nonunit
	employees 	perform
	and
	decreasing 	the
quantity 	of
	work 	which
	unit
	employees 	perform.
8
8
Thus, 	in
	a
	case 	such 	as
	this, 	in 	order 	to 	establish
	a
prima 	facie 	violation 	of 	the Act 	based 	on 	an 	unlawful
	transfer
15

There
	is
	no
	evidence
	that
	Daugherty
	ceased
	to
	perform
duties
	which 	had
	previously
	been
	assigned
	to
	her
	in
	the
	past.
Her
	teaching
	duties
	in
	the
	fall
	of
	1982
	were
	no
	different
	from
her
	duties
	in 	previous
	years--except
	that
	she
	now
	had
day-to-day
	contact
	with
	fewer
	students. 	Similarly,
	the
	record
establishes 	that
	Corsetti's
	duties
	in
	the
	fall
	of
	1982 were
indistinguishable
	from
	those
	which
	she
	had
	performed
	in
	the
past.
	The
	only
	difference
	between
	her 	assignment 	in
	the
	fall
of
	1982
	and
	in 	previous 	years
	was
	that
	she
	now
	performed
	her
duties 	at
	a
	different
	work
	site
	than 	her
	supervising
	teacher,
Daugherty,
	and
	thus 	spent
	more
	time
	in
	direct
	contact
	with
students.
	Repeatedly,
	however,
	when
	questioned 	as
	to
	whether
Corsetti
	had
	been
	assigned
	duties
	which,
	in 	the
	past,
	had
	been
or
	lawfully
	could
	have 	been
	performed
	only
	by
	teachers,
Daugherty 	answered
	in 	the 	negative.
9
Hence,
	we
	conclude
	that
of
	unit
	work
	theory, 	the Association
	should
	have
	filed
	its
charge
	at
	the 	time
	that
	nonunit
	employees
	first
	began
performing
	unit
	work,
	not 	long
	after
	such
	a
	practice
	became
established.
9we
	are
	aware
	that
	the 	investigator
	from
	the
	Department
of 	Education 	reached
	a
	contrary 	conclusion
	based
	on
	his
investigation
	of 	the
	District's
	conduct 	and, 	indeed,
	found
	that
the
	District
	was
	not 	in 	compliance 	with 	Education
	Code
	section
45344,
	supra.
	For
	several 	reasons,
	however,
	we
	find
	that 	the
investigator's
	conclusions 	are 	insufficient 	to 	convince 	us
	to
depart
	from
	our 	determination
	that
	the
	District
	did 	not
transfer
	work 	from
	the
	certificated 	unit. 	First,
	as 	noted
above,
	from
	the 	face 	of 	the 	Department 	of 	Education
	report,
	it
is
	probable 	that
	its
	investigatory 	procedures
	do
	not 	involve
	a
formal 	hearing 	and 	thus 	provide
	no 	due
	process 	protections 	in
the 	gathering 	of 	evidence. 	Second,
	it
	is
	unclear
	upon 	what
evidence 	the 	investigator 	based 	his 	determination 	that 	the
16

the 	evidence 	establishes 	no 	more 	than 	the 	fact 	that, 	in 	the
fall 	of 	1982, 	Corsetti 	was 	assigned 	to 	perform 	more 	work 	of 	the
sort 	which 	she 	had 	previously 	performed.
We 	do, 	however, 	find 	that 	the 	District's 	conduct 	herein
constituted 	an 	unlawful 	unilateral 	reduction 	in 	Daugherty's
hours 	of 	employment. 10 The 	Board 	has 	long 	held 	that 	both 	the
decision 	to 	reduce 	hours 	of 	employment 	and 	the 	effects 	of 	that
decision 	are 	negotiable 	and 	that 	management 	may 	not
unilaterally 	reduce 	hours 	without 	affording 	the 	exclusive
representative 	notice 	and 	an 	opportunity 	to 	negotiate. 	North
Sacramento 	School 	District 	(12/31/81) 	PERB 	Decision 	No. 	193;
Pittsburg 	Unified 	School 	District 	(6/10/83) 	PERB 	Decision 	No.
318; 	Oakland 	Unified 	School 	District 	(12/16/83) 	PERB 	Decision
District 	violated 	the 	Education Code. 	Perhaps 	such 	a
conclusion 	was 	based 	on 	different 	evidence 	than 	that 	presented
in 	the 	record 	before 	us. 	Finally, 	we 	note 	that 	this 	Board 	is
not 	charged 	with 	enforcing 	the 	Education 	Code 	and, 	while 	the
District 	may 	have 	violated 	the 	Education 	Code, 	such 	a
determination 	must 	be 	made 	in 	another 	forum.
lOAt 	the 	hearing, 	the 	Association 	moved 	to 	amend 	its
complaint 	to 	allege 	that, 	as 	well 	as 	transferring 	work 	out 	of
the 	bargaining 	unit, 	the 	District 	unlawfully 	reduced 	Joyce
Daugherty's 	hours 	of 	employment. 	The 	District 	objected 	to 	this
amendment 	as 	being 	untimely. 	In 	his 	proposed 	decision, 	the 	ALJ
found 	that, 	irrespective 	of 	whether 	the 	amendment 	was 	timely,
the 	issue 	could 	be 	ajudicated 	by 	the 	Board 	as 	an 	unalleged
violation 	since 	it 	had 	been 	fully 	litigated, 	was 	related 	to 	the
subject 	matter 	of 	the 	charge, 	and 	the 	parties 	had 	the
opportunity 	to 	examine 	and 	be 	cross-examined 	on 	the 	issue.
Santa 	Clara 	Unified 	School 	District 	(9/26/79) 	PERB 	Decision 	No.
104. 	We 	agree 	with 	the ALJ 	that 	the 	reduction 	of 	hours 	issue
falls 	within 	the 	Santa Clara 	test. 	Accordingly, 	we 	need 	not
reach 	the 	question 	of 	whether 	the 	amendment 	at 	the 	hearing 	was
timely 	filed.
17

No. 	367; 	Azusa 	Unified 	School 	District 	(12/30/83) 	PERB 	Decision
No. 	374; 	Healdsburg 	Union 	High 	School 	District/San 	Mateo 	City
School 	District 	(1/5/84) 	PERB 	Decision 	No. 	375. 11 Here, 	it
is 	undisputed 	that, 	without 	providing 	notice 	and 	an 	opportunity
to 	negotiate 	to 	the 	Association, 	the 	District 	approached
Daugherty 	in 	the 	spring 	of 	1982 and 	indicated 	to 	her 	that 	her
special 	education 	position 	at 	the 	Grant/Washington 	Schools 	was
going 	to 	be 	reduced 	from 	full-time 	to 	80 	percent, 	thus
decreasing 	her 	hours 	of 	employment 	from 	seven 	and 	one-quarter
to 	six 	hours 	per 	day. 	Absent 	a 	valid 	defense, 	such 	conduct
would 	violate 	the 	District's 	obligation 	not 	to 	make 	unilateral
reductions 	in 	hours 	of 	employment.
By 	way 	of 	defense, 	the 	District 	contends 	that 	Daugherty's
hours 	were 	not 	reduced, 	since 	she 	was 	offered 	a 	full-time
position 	in 	another 	school 	and 	she 	"voluntarily" 	accepted 	the
80 	percent 	Grant/Washington 	position. 	In 	Oakland 	Unified
School 	District, 	supra, 	the 	Board 	expressly 	rejected 	this 	very
argument. 	In 	that 	case, 	a 	school 	district 	employed
instructional 	aides 	who 	worked 	a 	variety 	of 	hours, 	ranging 	from
11Negotiations 	over 	reduction 	in 	hours 	are 	to 	be
distinguished 	from 	those 	concerning 	layoffs. 	Thus, 	unlike 	the
right 	to 	negotiate 	reductions 	in 	hours, 	the 	Board 	has 	held 	that
the 	right 	to 	negotiate 	the 	decision 	to 	lay 	off 	is 	superseded 	by
specific 	provisions 	of 	the 	Education Code. 	See 	section 	3540;
Newman-Crows 	Landing 	Unified 	School 	District 	(6/30/82) 	PERB
Decision 	No. 	223 	(classified 	employees); 	Mt. 	Diablo 	Unified
School 	District 	(12/30/83) 	PERB 	Decision 	No. 	373 	(certificated
employees). 	The 	effects 	of 	a 	layoff 	decision 	are, 	of 	course,
always 	negotiable.
18

two 	to 	six 	hours 	per 	day. 	As 	part 	of 	a 	newly-instituted
standardization 	of 	hours 	policy, 	the 	District 	notified 	certain
employees 	in 	the 	spring 	of 	1980, 	that, 	for 	the 	1980-81 	school
year, 	their 	hours 	of 	employment 	would 	be 	reduced. 	However, 	it
indicated 	to 	the 	affected 	employees 	that, 	if 	they 	desired 	to
retain 	their 	former 	hours, 	they could 	transfer 	to 	another 	work
location. 	Before 	the 	Board, 	the 	employer 	contended 	that,
because 	employees 	eould 	transfer 	to 	other 	positions, 	it 	had
reduced 	the 	hours 	of 	"positions" 	rather 	than 	the 	hours 	of
"employees." 	The 	Board 	rejected 	this 	contention, 	reasoning
that, 	since 	the 	positions 	were 	occupied 	by 	incumbent 	employees,
the 	District's 	argument 	could 	be 	characterized 	as 	"a
distinction 	without 	a 	difference." 	Oakland 	Unified 	School
District, 	supra, 	at 	p. 	32.
In 	this 	case, 	it 	is 	undisputed 	that 	the 	Grant/Washington
position 	was 	occupied 	by 	an 	incumbent 	employee, 	Joyce
Daugherty, 	when 	the 	District 	made 	the 	unilateral 	determination
to 	reduce 	her 	hours 	of 	employment. 	While 	the 	District 	may 	have
offered 	her 	the 	opportunity 	to 	transfer 	rather 	than 	suffer 	a
reduction 	in 	hours, 	such 	an 	offer 	does 	not 	excuse 	the 	District
from 	its 	legal 	obligation 	to 	provide 	to,the 	exclusive
representative 	notice 	and 	an 	opportunity 	to 	negotiate 	the
proposed 	reduction 	in 	hours. 12 In 	sum, 	as 	we 	stated 	in
12we 	note 	that 	the 	subject 	of 	transfers 	is 	within 	the
scope 	of 	representation. 	At 	the 	time 	of 	this 	case, 	Article
21.5 	of 	the 	parties' 	collective 	agreement 	provided:
19

The
	District,
	following
	an
	assessment 	of
	its
educationally 	related
	needs,
	shall
administratively 	transfer 	teachers 	to
positions
	to
	meet 	needs
	considering
credintials,
	major
	and
	minor, 	enrollment
changes
	leading 	to
	staff
	imbalances, 	or 	any
specialized 	lay 	and/or 	teaching 	experience
to 	perform 	the 	required 	services.
There
	was 	no
	evidence
	at
	the 	hearing 	as 	to 	the
	meaning
	of
Article
	21.5 	or 	the 	application 	of
	that 	provision 	to 	the
	facts
of
	this 	case.
	It
	is 	clear,
	however,
	that 	the
	District
	never
attempted 	to 	transfer
	Daugherty
	involuntarily 	to 	another
position.
Oakland,
	the
	District's
	argument
	that
	it
	reduced
	the
	hours
	of
the
	Grant/Washington
	"position"--as
	opposed
	to 	those
	of
	the
employee
	occupying
	that 	position--is
	a
	distinction
	without
	a
difference.
Accordingly,
	we
	find
	that
	the
	District
	violated
	its
	duty
	to
negotiate
	in
	good
	faith
	by
	unilaterally
	reducing
	the
	hours
	of
~mployment
	of
	Joyce 	Daugherty
	without
	offering
	the
	Association
notice
	and
	the 	opportunity 	to 	negotiate 	in
	good
	faith.
We
	note
	that
	our
	dissenting
	colleague
	argues
	that
	the
decision
	to
	reduce
	Daugherty's 	hours
	was
	nonnegotiable 	because
it
	was
	motivated
	by
	a
	desire
	to
	alter
	the
	level
	of
	service
provided. 	In 	the
	first
	place, 	there
	is
	no
	evidence
	in
	this
case
	that
	management
	altered
	the
	level
	of
	special
	education
services
	it
	intended 	to 	provide.
	On
	the
	contrary,
	the
	level
	of
services
	remained 	unchanged
	after
	the
	unilateral
	change--only
the
	identity
	of
	employees
	providing
	that
	service
	was
	altered.
Secondly, 	while
	we
	agree
	that,
	generally
	speaking, 	the
	decision
20

to 	reduce 	services 	is 	a 	mangerial 	prerogative, 	that 	does 	not
automatically 	render 	any 	and 	all 	means 	chosen 	to 	carry 	out 	such
a 	reduction 	lawful 	or 	remove 	an 	entire 	subject 	of 	bargaining
from 	the 	scope 	of 	representation. 	Under 	our 	dissenting
colleague's 	approach, 	management 	is 	free 	to 	alter 	employees'
terms 	and 	conditions 	of 	employment 	in 	any 	way 	it 	sees 	fit, 	so
long 	as 	its 	motivation 	is 	tied 	to 	a 	"managerial 	prerogative."
Were 	this 	the 	case, 	management 	could 	unilaterally 	double
employees 	hours 	of 	employment 	because 	it 	intended 	to 	increase
the 	level 	of 	services 	which 	it 	offered 	to 	the 	public. 	Or,
perhaps, 	management 	would 	be 	free 	to 	reduce 	wages 	at 	any 	time
because 	"budget 	allocations" 	are 	within 	management's 	exclusive
prerogative. 	Such 	a 	view 	undermines 	the 	very 	purpose 	of 	a
collective 	bargaining 	statute 	such 	as 	EERA. 	Finally, 	we 	note
that 	the 	Dissent 	suggests 	that 	the 	District 	did 	not 	violate 	its
duty 	to 	negotiate 	in 	good 	faith 	because 	Daugherty 	"voluntarily"
chose 	to 	remain 	in 	the 	reduced 	position 	rather 	than 	transfer 	to
a 	full-time 	position 	at 	another 	school 	and 	that, 	therefore, 	the
District's 	actions 	had 	no 	"effect" 	on 	Daugherty's 	terms 	and
conditions 	of 	employment. 	In 	response 	to 	this 	position, 	we 	can
only 	remind 	our 	dissenting 	colleague 	that 	the 	District's 	offer
of 	an 	"alternative" 	of 	its 	own 	construction--however 	much
motivated 	by good 	faith--does 	not 	relieve 	the 	District 	of 	its
duty 	to 	negotiate 	in 	good 	faith.
21

REMEDY
Section 	3541.S(c) 	grants 	the 	Board 	broad 	authority 	to
fashion 	remedies 	which 	will 	effectuate 	the 	policies 	of 	the
Act. 	In 	this 	case, 	it 	has 	been 	found 	that 	the 	District
unilaterally 	reduced 	Joyce 	Daugherty's 	hours 	of 	employment
without 	affording 	the 	Association 	notice 	and 	an 	opportunity 	to
negotiate. 	Normally, 	in 	such 	a 	circumstance, 	it 	would 	be
appropriate 	to 	order 	the 	District 	to 	restore 	the 	status 	quo
ante. 	However, 	the 	record 	reflects 	that 	in 	the 	spring 	semester
of 	1983, 	the 	District 	restored 	the 	Grant/Washington 	special
education 	position 	to 	its 	former 	full-time 	status. 	Therefore,
it 	is 	unnecessary 	for 	the 	Board 	to 	order 	a 	restoration 	of 	the
hours. 	However, 	we 	shall 	order 	the 	District 	to 	cease 	and
desist 	from 	making 	unlawful 	unilateral 	changes 	and 	to 	make
Joyce 	Daugherty 	whole 	for 	any 	financial 	losses 	she 	suffered 	as
a 	result 	of 	the 	District's 	unlawful 	conduct. 	We 	shall 	also
order 	the 	District 	to 	post 	the 	customary 	notice 	to 	employees.
The 	District's 	request 	for 	oral 	argument 	is 	denied.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and 	the 	entire 	record 	in 	this 	case 	and 	pursuant 	to 	section
3541.S(c), 	it 	is 	found 	that 	the 	Eureka 	City 	School 	District
violated 	Government 	Code 	section 	3543.S(a), 	(b), 	and 	(c).
It 	is 	hereby 	ORDERED 	that 	the 	Eureka 	City 	School 	District,
its 	governing 	board, 	and 	its 	representatives 	shall:
22

A.
	CEASE
	AND
	DESIST
	FROM:
1.
	Interfering
	with
	Joyce
	Daugherty's
	exercise
	of
rights
	guaranteed
	by
	the 	Educational
	Employment
	Relations
	Act
by
	unilaterally
	reducing 	her 	hours
	of
	employment
	without
negotiating
	in
	good
	faith;
2.
	Denying
	the
	Eureka
	Teachers
	Association,
	CTA/NEA
rights
	guaranteed 	to
	it
	by
	the 	Educational
	Employment
	Relations
Act
	by
	unilaterally
	reducing
	Joyce
	Daugherty's
	hours
	of
employment
	without
	negotiating
	in
	good
	faith;
	and
3.
	Failing
	and
	refusing 	to
	meet 	and
	negotiate
	in
	good
faith
	with
	the 	exclusive
	representative
	by
	unilaterally
reducing 	Joyce 	Daugherty's
	hours
	of
	employment.
B.
	TAKE 	THE 	FOLLOWING
AFFIRMATIVE ACTIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
	RELATIONS
ACT:
1.
	Make
	Joyce 	Daugherty
	whole
	for
	any
	loss
	in
compensation 	she
	suffered
	as
	a
	result
	of 	the
	District's
unlawful 	reduction 	in
	her
	hours.
	Such 	payment
	shall
	include
interest 	at
	a
	rate
	of
	10
	percent 	per
	annum.
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 	to
	Employees
	attached 	as 	an
appendix
	hereto, 	signed
	by 	an
	authorized 	agent 	of 	the
employer.
	Such
	posting 	shall
	be
	maintained 	for
	a
	least 	thirty
{30)
	consecutive 	workdays. 	Reasonable 	steps 	shall
	be
	taken 	to
23

insure
	that
	the
	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
	regional
	director
	of
	the
Public
	Employment
	Relations
	Board
	in
	accordance 	with
	his/her
instructions.
Member
	Tovar
	joined 	in
	this
	Decision.
Chairperson 	Hesse's
	concurring
	and
	dissenting
	opinion 	begins
	on
p.
	25.
24

Hesse,
	Chairperson, 	concurring
	and
	dissenting:
	Although
	I
concur
	with
	my
	colleagues
	that
	the
	District
	did 	not
unilaterally
	transfer
	work
	from
	the 	bargaining
	unit,
	I
respectfully 	dissent
	from
	that
	portion
	of 	the
	Decision
	that
finds
	a
	violation
	of
	Government
	Code
	section
	3543.S(c)
	based
upon
	the
	District's
	alleged 	reduction
	of
	hours
	of
	employee
Joyce
	Daugherty.
	The
	majority
	holds
	that
	Daugherty's 	hours
were
	reduced
	unilaterally
	from 	100
	percent 	to
	80
	percent.
	As
Daugherty
	was
	given
	the 	option 	of 	taking
	one
	of
	several 	other
full-time 	positions,
	I
	must
	disagree
	that
	the
	District
	was
guilty
	of 	reducing 	her 	hours.
This
	Board,
	in
	a
	number
	of
	decisions,
	has
	held
	that
	the
level
	of
	service 	to
	be
	provided
	by 	an
	employer
	is
	not
	a
negotiable 	subject
	of 	bargaining.
	(See,
	e.g.,
	Mt. 	San
	Antonio
Community
	College
	District
	(3/24/83)
	PERB
	Decision
	No. 	297
	at
p. 	3; 	Davis
	Joint
	Unified
	School
	District
	(8/2/84)
	PERB
Decision
	No. 	393
	at
	pp.
	26-27.) 	Ergo,
	the 	decision
	by
	the
District
	was
	to
	reduce 	the
	level
	of
	certificated
	services
	at
the
	Grant/Washington 	Schools
	by
	20
	percent,
	and
	it
	was
	not
	a
negotiable 	decision.~
Having 	found
	that 	there
	was 	a
	decision 	to 	reduce 	the
	level
of
	certificated 	service,
	I
	must
	disagree
	with 	the 	majority
	that
1
That 	the 	aide
	was
	capable,
	and
	arguably 	authorized, 	toperform
	many
	of 	the
	same
	services 	is 	irrelevant.
	The
	aide
	is
an
	adjunct 	of
	a
	certificated
	person,
	and
	the
	latter's
	time 	with
the 	students
	was
	reduced.
25

there 	was 	a 	concomitant 	decision 	to 	reduce 	Daugherty's 	hours.
The 	majority 	holds, 	relying 	upon 	Oakland 	Unified 	School
District 	(12/16/83) 	PERB 	Decision 	No. 	367, 	that 	the 	decision 	to
reduce 	the 	hours 	of 	the 	position 	(or 	the 	level 	of 	service),
vis-a-vis 	the 	decision 	to 	reduce 	the 	hours 	of 	a 	particular
employee 	is 	"a 	distinction 	without 	a 	difference." 	(Majority
opinion, 	p. 	20.) 	I 	cannot 	agree. 	Here 	Daugherty 	was 	given 	the
option 	of 	a 	full-time 	position 	at 	several 	other 	schools 	for
which 	she 	was 	credentialed 	and 	qualified. 	The 	District 	was
under 	no 	obligation 	to 	"recreate" 	for 	her 	a 	full-time 	position
at 	Grant/Washington 	merely 	because 	she 	preferred 	to 	stay 	at
those 	schools. 	There 	is 	no 	indication 	that 	a 	transfer 	would
have 	placed 	Daugherty 	in 	a 	school 	far 	removed 	from 	her 	home,
and 	resulting 	in 	a 	long 	commute, 	or 	that 	a 	transfer 	would 	place
her 	in 	a 	school 	with 	a 	dramatically 	different 	student
composition 	than 	she 	was 	qualified 	to 	teach. 	The 	plain 	truth
of 	the 	matter 	is 	that 	the 	employer, 	recognizing 	its 	obligation
to 	Daugherty 	and 	the 	other 	special 	education 	teachers, 	offered
a 	position 	that 	would 	have 	resulted 	in 	no 	loss 	of 	pay.
Daugherty 	rejected 	this 	option 	for 	unknown 	reasons, 	but 	that
rejection 	did 	not 	give 	birth 	to 	an 	obligation 	by 	the 	District
to 	keep 	her 	position 	at Grant/Washington 	open 	for 	her 	at 	100
percent. 2
2Ironically, 	the 	District 	probably 	had 	the 	authority 	to
transfer 	Daugherty, 	unilaterally 	and 	involuntarily, 	under 	the
collective 	bargaining 	agreement. 	I 	cannot 	condone 	the 	finding
26

of
	a
	violation
	of
	EERA
	when
	the 	employer, 	seeking 	to
	mitigate
an
	employee's 	unhappiness
	at
	being
	legitimately 	transferred,permits 	the
	employee
	to
	choose 	an
	alternate
	assignment
	that
involves
	a
	reduction 	in 	hours 	due
	to 	the 	decision 	to 	reduce
services.
I
	recognize
	that 	this
	Board
	has
	held,
	on
	several 	occasions,
that
	the
	decision 	to
	reduce
	the
	hours
	of
	work
	is
	negotiable.
But
	I
	am
	not
	willing
	to
	rule
	that
	all
	reductions 	in 	hours,
especially
	those
	that
	are
	the
	result
	of
	a
	purely 	managerial
decision, 	are 	negotiable,
	even
	if
	the
	effects
	of
	the
	decision
are 	negotiable.
3	
This
	is 	especially 	true
	when
	the 	the
employer
	presents 	to
	an
	affected
	employee
	a
	reasonable
alternative
	that
	would
	provide 	the
	employee
	with
	working
conditions
	nearly
	identical
	to
	her
	former
	situation.
	Thus,
even 	though
	management
	may
	have
	to
	negotiate
	the
	effects
	of
	any
particular
	decision 	to
	reduce
	services
	that 	result
	in
	a
reduction 	of 	hours,
	I
	would
	find 	here
	that
	the
	"effect"
	on
Daugherty's
	hours
	were
	self-induced.
	That
	is,
	but 	for 	the
	fact
that
	Daugherty 	chose
	to
	remain
	at
	Grant/Washington,
	there
	would
have 	been
	no
	effects
	of 	the
	decision 	to
	reduce
	services
	over
which
	the
	employer
	had
	to 	bargain.
31
	find
	no
	evidence 	in
	this
	record 	to 	support
	any
	of 	the
scenarios 	envisioned
	by
	the 	majority
	at
	p. 	21. 	Not
	only
	was
the 	decision 	to 	reduce
	services,
	and
	consequently 	hours
	of 	the
position,
	a
	legitimate 	managerial 	decision
	under 	our 	case 	law,
as 	applied 	to 	the 	specific 	facts 	of 	this 	case, 	as 	the 	majority
notes, 	the 	contract 	specifically 	permitted 	the 	decision 	to 	bemade 	by 	management.
27

APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of 	the
	State
	of
	California
After
	a
	hearing 	in
	Eureka
	Teachers
	Association,
	CTA/NEA
	v.
Eureka
	City
	School
	District,
	Case
	No.
	SF-CE-773,
	in
	which
	all
parties
	had
	the
	right
	to
	participate,
	it
	is
	found
	that
	the
	Eureka
City
	School
	District
	violated
	the 	Educational
	Employment
	Relations
Act,
	Government
	Code
	sections
	3543.S(a), 	(b),
	and
	(c) 	by
	reducing
the
	hours
	of
	employment
	of
	Joyce 	Daugherty
	without
	affording
	the
Eureka 	Teachers
	Association 	notice
	and 	an
	opportunity	
to	
negotiate.
As
	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered 	to	
post
	this
Notice
	and
	we
	will:
A.
	CEASE
	AND
	DESIST
	FROM:
1.
	Interfering
	with 	Joyce
	Daugherty's
	exercise 	of
	rights
guaranteed
	by
	the 	Educational
	Employment
	Relations
	Act
	by
unilaterally
	reducing 	her 	hours
	of
	employment
	without
	negotiatingin
	good
	faith;
2.
	Denying
	the
	Eureka
	Teachers
	Association
	rights
guaranteed 	to
	it
	by
	the 	Educational
	Employment
	Relations
	Act
	by
unilaterally
	reducing 	Joyce
	Daugherty's 	hours
	of
	employment
without 	negotiating 	in
	good
	faith;
	and
3.
	Failing
	and
	refusing 	to
	meet 	and
	negotiate	
in	
good
faith
	with
	the 	exclusive 	representative
	by
	unilaterally
	reducing
Joyce 	Daugherty's 	hours 	of
	employment.
B.
	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED
	TO
EFFECTUATE 	THE
	POLICIES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
	RELATIONS
ACT:
1.
	Make
	Joyce 	Daugherty 	whole
	for
	any
	loss 	in
compensation 	she
	suffered 	as
	a
	result
	of 	the
	District's
	unlawful
reduction 	in 	her 	hours.
	Such 	payment
	shall
	include
	interest 	at
	a
rate
	of
	10
	percent 	per
	annum.
Dated	
EUREKA
	CITY 	SCHOOL 	DISTRICT
By:
Authorized 	Representative
THIS 	IS
	AN
	OFFICIAL 	NOTICE.
	IT
	MUST 	REMAIN 	POSTED 	FOR THIRTY 	(30)
CONSECUTIVE 	WORKDAYS 	FROM THE 	DATE OF 	POSTING AND 	MUST 	NOT 	BE
DEFACED, 	ALTERED, 	REDUCED 	IN 	SIZE
	OR COVERED 	BY ANY 	OTHER MATERIAL.