Pleasant Valley School District (PERB 0488E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION 	AND 	ITS 	PLEASANT
VALLEY 	CHAPTER 	#504,
Charging 	Party,
v.
PLEASANT VALLEY 	SCHOOL 	DISTRICT,
Respondent.
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) 	Case 	No. 	LA-CE-1706
PERB 	Decision 	No. 	488
February 	2 7, 	1985
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Appearances: 	Patricia 	L. 	Roy, 	Field 	Representative, 	for
California 	School 	Employees 	Association 	and 	its 	Chapter 	#504;
The 	Negotiation 	Center, 	Edward 	M. 	Jones, 	for 	Pleasant 	Valley
School 	District,
Before 	Hesse, 	Chairperson; 	Tovar 	and 	Jaeger, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case 	is 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	exceptions 	filed
by 	the 	Pleasant 	Valley 	School 	District 	(District) 	to 	the
proposed 	decision, 	attached 	hereto, 	of 	a 	PERB 	administrative
law 	judge 	(ALJ). 	The 	ALJ 	found 	that 	the 	District 	had 	violated
section 	3543.S(c) 	and, 	derivatively, 	section 	3543.5(a) 	and 	(b)
of 	the 	Educational 	Employment 	Relations 	Act 	(EERA) 1 by
lEERA 	is 	codified 	at 	Government 	code 	section 	3540 	et
seq. 	All 	statutory 	references 	herein 	are 	to 	the 	Government
Code.
Section 	3543.5 	reads, 	in 	pertinent 	part, 	as 	follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals 	on

unilaterally 	changing 	the 	hours 	of 	work 	for 	instructional 	aides
in 	November 	1982, 	without 	negotiating 	with 	the 	c~lifornia
School 	Employees 	Association 	and 	its 	Pleasant 	Valley 	Chapter
#504 	(CSEA).
emplorees, 	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
The 	Board 	has 	reviewed 	the 	ALJ's 	proposed 	decision 	in 	light
of 	the 	District's 	exceptions 	and 	the 	entire 	record 	in 	this
matter. 	Finding 	it 	free 	from 	prejudicial 	error, 	we 	adopt 	the
ALJ's 	findings 	of 	fact 	and 	conclusions 	of 	law, 	consistent 	with
the 	discussion 	below.
DISCUSSION
The 	Pleasant 	Valley 	School 	District's 	sole 	exception 	to 	the
ALJ's 	proposed 	decision 	is 	to 	the 	finding 	that 	its 	duty 	to
bargain 	reduction 	in 	hours 	was 	not 	excused 	by 	business
necessity. 	The 	District 	bases 	this 	exception 	on 	three 	grounds:
1. 	Because 	the 	District 	was 	denied 	the 	opportunity 	to 	file
a 	reply 	brief 	to 	the 	Association's 	post-hearing 	brief, 	it
was 	unable 	to 	rebut 	inaccurate 	evidence 	crucial 	to 	the
proposed 	decision;
2. 	Because 	of 	this 	denial, 	the 	ALJ 	was 	unable 	to 	fully
comprehend 	the 	District's 	financial 	situation 	or 	the
requirement 	for 	it 	to 	provide 	comparable 	services 	to 	its
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students; 	and
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	rregotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
3. 	The 	ALJ 	"only 	marginally 	applied" 	NLRB 	v. 	Katz 	(1962)
369 	U.S. 	736 	to 	the 	case 	and 	that 	Carlsbad 	Unified 	School
District 	(1/30/79) 	PERB 	Decision 	No. 	89 	was 	not 	applied 	at
The 	District 	also 	requests 	oral 	argument 	before 	the 	Board
itself 	to 	further 	explain 	its 	business 	necessity 	defense.
We 	find 	no 	merit 	to 	the 	District's 	exception 	and 	arguments.
Reply 	Brief
PERB 	Regulations 	32170(j) 	and 	32212 	require 	the 	ALJ 	to 	set
a 	briefing 	schedule 	prior 	to 	the 	close 	of 	the 	formal
2	hearing. 	The 	District 	admits 	that 	the 	parties 	agreed 	reply
briefs 	would 	not 	be 	filed, 	although 	the 	ALJ 	gave 	them 	that
option. 	The 	parties 	were 	then 	given 	35 	days 	after 	the 	receipt
of 	the 	transcript 	to 	file 	their 	briefs. 	Nothing 	in 	the
regulations 	provides 	a 	right 	to 	unilaterally 	repeal 	such 	an
agreement.
2PERB 	Regulations 	are 	codified 	at 	California
Administrative 	Code, 	title 	8, 	sections 	31001 	et 	seq.
PERB 	Regulation 	32170 	provides 	in 	relevant 	part:
The 	Board 	agent 	conducting 	a 	hearing 	shall
have 	the 	powers 	and 	duties 	to:
(j) 	Authorize 	the 	submission 	of 	briefs 	and
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set 	the 	time 	for 	the 	filing 	thereof.
PERB 	Regulation 	32212 	provides, 	in 	relevant 	part:
Before 	the 	close 	of 	the 	hearing, 	the 	Board
agent 	shall 	rule 	on 	any 	request 	to 	make 	oral
argument 	or 	to 	file 	a 	written 	brief. 	The
Board 	agent 	shall 	set 	the 	time 	required 	for
the 	filing 	of 	briefs.
The 	District 	contends 	that 	the 	CSEA 	brief 	contained
•inaccuracies 	and 	distortions 	of 	facts 	and 	evidence 	that 	were
perceived 	by 	the 	Respondent 	at 	the 	time 	of 	the 	pre-hearing 	to
be 	incontrovertible." 	Although 	the 	District 	may 	not 	have 	liked
CSEA's 	position, 	CSEA 	merely 	advocated 	its 	view 	of 	the 	facts
and 	evidence. 	The 	District 	had 	the 	same 	right, 	which 	it,
indeed, 	took 	full 	advantage 	of. 	The 	ALJ 	was 	not 	required 	to
overturn 	the 	parties' 	previous 	agreement, 	and 	her 	refusal 	to
accept 	the 	District's 	reply 	brief 	was 	not 	improper. 	This
portion 	of 	the 	District's 	exception 	is, 	therefore, 	dismissed.
Business 	Necessity 	Defense
In 	asserting 	that 	its 	business 	necessity 	defense 	should 	be
honored, 	the 	District 	states 	it 	had 	to 	change 	the 	hours 	of
instructional 	aides 	because 	it 	had 	a 	$10,000 	shortfall 	and
because 	it 	had 	to 	provide 	comparable 	services 	to 	its 	students.
In 	this 	case, 	two 	aides 	had 	their 	daily 	work-time 	reduced
by 	two 	hours. 	Whatever 	savings 	this 	might 	have 	created 	does
not 	excuse 	the 	District's 	failure 	to 	negotiate 	its 	proposed
change 	in 	hours. 	The 	District, 	in 	its 	fiscal 	hardship
discussion, 	overlooks 	that 	other 	employees 	had 	their 	hours
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increased 	from 	one-half 	to 	one 	and 	one-half 	hours 	per 	day. 	As
the 	ALJ 	pointed 	out, 	a 	unilateral 	increase 	in 	hours 	is 	also 	a
per 	se 	violation 	of 	the 	duty 	to 	bargain. 	San 	Mateo 	County
Community 	College 	District 	(6/8/79) 	PERB 	Decision 	No. 	94; 	NLRB
v. 	Katz 	(1982) 	369 	U.S. 	736 	(50 	LRRM 	2177]. 	This 	portion 	of
the 	District's 	exception 	is 	dismissed.
To 	excuse 	its 	failure 	to 	notify 	and 	negotiate 	with 	the
exclusive 	representative, 	the 	District 	claims 	that 	it 	was 	not
until 	September 	1982, 	that 	it 	became 	aware 	that 	aides 	were
working 	between 	two 	and 	five 	hours 	a 	day. 	The 	District's
ignorance 	of 	its 	own 	operations, 	however, 	is 	no 	ground 	for
exonerating 	it 	from 	its 	bargaining 	duties. 	Once 	the 	schedules
were 	established, 	the 	District 	should 	have 	known 	the 	hours
these 	aides 	would 	be 	working. 	At 	this 	point, 	the 	District 	was
obligated 	to 	notify 	CSEA 	of 	its 	dilemma 	and 	begin
negotiations. 3
The 	District 	further 	urges 	that, 	because 	of 	the 	requirement
that 	it 	provide 	comparable 	services 	to 	all 	students, 	it 	had 	to
equalize 	the 	aide's 	hours. 	Every 	teacher 	had 	an 	aide 	and,
because 	of 	the 	disparate 	number 	of 	hours 	being 	worked, 	some
students 	received 	more 	time 	with 	an 	aide 	than 	did 	other
students. 	The 	District 	and 	the 	El 	Rancho 	School 	Site 	Council
3Even 	if 	we 	were 	to 	find 	that 	the 	District's 	ignorance 	is
a 	valid 	excuse, 	there 	was 	still 	sufficient 	time 	to 	confer 	with
CSEA 	before 	issuing 	the 	October 	13 	notices. 	Failure 	to 	use
this 	period 	for 	negotiations 	should 	not 	be 	excused 	by 	use 	of
the 	business 	necessity 	defense. 	Sutter 	Union 	High 	School
District 	(10/7/81) 	PERB 	Decision 	No. 	175.
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were 	concerned 	that 	this 	inequity 	would 	jeopardize 	the
District's 	program 	because 	comparable 	services 	were 	not 	being
provided 	to 	all 	the 	students. 	This 	belief 	is 	based 	on 	the
assurances 	the 	District 	was 	required 	to 	make 	when 	it 	applied
for 	the 	School 	Improvement 	Program. 4
The 	aides' 	hours, 	however, 	were 	not 	equalized. 	While 	most
aides 	worked 	three 	and 	one-half 	hours, 	others 	had 	three-hour
workdays. 	Also, 	the 	El 	Rancho 	School 	Site 	council 	and 	the
District 	considered 	other 	options 	for 	providing 	comparable
services 	besides 	the 	restructuring 	of 	hours. 	Thus, 	the
District 	admits, 	in 	effect, 	that 	it 	was 	not 	absolutely
necessary 	to 	equalize 	hours 	of 	these 	aides.
Sufficient 	evidence 	was 	presented 	at 	the 	formal 	hearing 	to
support 	the 	ALJ's 	finding 	that 	the 	District 	unlawfully 	changed
the 	hours 	of 	work 	of 	its 	aides, 	and 	to 	find 	that 	a 	business
necessity 	defense 	was 	not 	present.
Katz 	and 	Carlsbad
The 	District 	bases 	its 	business 	necessity 	defense 	on 	NLRB
v. 	Katz 	(1962) 	369 	U.S. 	736 	[50 	LRRM 	2177] 	and 	Carlsbad 	Unified
School 	District 	(1/30/79) 	PERB 	Decision 	No. 	89. 	In 	doing 	so,
it 	misreads 	both 	cases.
4The 	assurance 	is 	as 	follows:
The 	district 	provides 	instructional 	materials
for 	all 	students 	on 	an 	equitable 	per-pupil
basis. 	(District's 	Exhibit 	N, 	item 	10.)
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The 	District 	relies 	on 	the 	following 	dictum 	to 	allow 	it 	to
make 	unilateral 	changes 	in 	conditions 	of 	employment:
While 	we 	do 	not 	foreclose 	the 	possibility
that 	there 	might 	be 	circumstances 	which 	the
Board 	could 	or 	should 	accept 	as 	excusing 	or
justifying 	unilateral 	action, 	no 	such 	case 	is
presented 	here. 	(NLRB 	v. 	Katz, 	supra, 	at 	p.
748.) 	-- 	--
Katz 	does 	not 	give 	the 	District 	license 	to 	make 	unilateral
changes. 	The 	District 	overlooks 	the 	court 1 s 	holding 	and
admonition 	against 	making 	such 	unilateral 	changes.
Unilateral 	action 	by 	an 	employer 	without
prior 	discussion 	with 	the 	union 	does 	amount
to 	a 	refusal 	to 	negotiate 	about 	the 	affected
conditions 	of 	employment 	under 	negotiation,
and 	must 	of 	necessity 	obstruct 	bargaining,
contrary 	to 	the 	congressional 	policy. 	It
will 	often 	disclose 	an 	unwillingness 	to 	agree
with 	the 	union. 	It 	will 	rarely 	be 	justified
by 	any 	reason 	of 	substance. 	It 	follows 	that
the 	Board 	may 	hold 	such 	unilateral 	action 	to
be 	an 	unfair 	labor 	practice 	in 	violation 	of
section 	8(a)(5), 	without 	also 	finding 	the
employer 	guilty 	of 	overall 	subjective 	bad
faith. 	(Katz, 	supra, 	p. 	747.) 	(Emphasis
added.) 	--
The 	ALJ 	properly 	cited 	Katz 	for 	the 	proposition 	that 	a
unilateral 	increase 	in 	working 	hours 	is 	a 	per 	se 	violation 	of
EERA. 	Further, 	the 	ALJ 	properly 	relied 	on 	Board 	precedent 	in
her 	determination 	of 	this 	issue. 	This 	argument 	is 	also
dismissed.
The 	District 	next 	argues 	that 	it 	"took 	pains 	to 	describe
the 	logic 	of 	utilizing 	the 	Carlsbad 	test 	for 	a 	3543.S(c)
allegation 	and 	the 	administrative 	law 	judge 	failed 	to 	make
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mention 	of 	that 	logic." 	The 	District 	relies 	on 	part 	four 	of
the 	Carlsbad 	test 	which 	states:
4. 	Where 	the 	harm 	is 	inherently 	destructive
of 	employee 	rights, 	the 	employer's 	conduct
will 	be 	excused 	only 	on 	proof 	that 	it 	was
occasioned 	by 	circumstances 	beyond 	the
employer's 	control 	and 	that 	no 	alternative
course 	of 	action 	was 	available •.
(Carlsbad, 	supra, 	at 	pp. 	10-11.)
Carlsbad, 	however, 	is 	an 	"interference" 	case 	and 	inapposite
to 	a 	"failure 	to 	negotiate" 	case. 	By 	contrast, 	the 	cases 	cited
by 	the 	ALJ 	are 	more 	appropriate 	to 	the 	instant 	case 	than
Carlsbad. 	Those 	cases 	also 	involved 	an 	employer's 	failure 	to
negotiate 	unilateral 	changes; 	moreover, 	those 	cases 	recognized
and 	discussed 	the 	business 	necessity 	defense. 	The 	ALJ
adequately 	researched 	and 	applied 	the 	appropriate 	law 	in· this
area. 	Therefore, 	this 	portion 	of 	the 	District's 	exception 	is
also 	dismissed.
In 	sum, 	we 	find 	that 	the 	District's 	exception 	and 	arguments
are 	without 	merit.
The 	District 	also 	requested 	oral 	argument 	to 	explain 	its
"business 	necessity" 	defense. 	Because 	the 	record 	before 	the
Board 	is 	neither 	incomplete 	nor 	ambiguous, 	further
presentations 	on 	the 	subject 	are 	not 	in 	order. 	As 	we 	see 	no
point 	in 	delaying 	this 	matter 	further, 	the 	District's 	request
for 	oral 	argument 	is 	denied.
ORDER
The 	Board 	hereby 	AFFIRMS 	the 	proposed 	decision 	in 	case 	No.
LA-CE-1706 	and 	ADOPTS 	its 	remedy 	and 	order 	as 	that 	of 	the 	Board
itself.
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Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	it 	is 	found 	that 	the
Pleasant 	Valley 	School 	District 	violated 	section 	3543.S(a), 	(b)
and 	(c) 	of 	the 	Educational 	Employment 	Relations 	Act. 	Pursuant
to 	section 	3541.S(c) 	of 	the 	Government 	Code, 	it 	is 	hereby
ORDERED 	that 	the 	District, 	its 	governing 	board 	and 	its
representatives 	shall:
1. 	CEASE 	AND 	DESIST 	FROM:
(a) 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	the 	California 	School 	Employees 	Association 	and 	its
Pleasant 	Valley 	Chapter 	#504 	as 	the 	exclusive 	representative 	of
its 	classified 	employees 	by 	taking 	unilateral 	action 	on 	matters
within 	the 	scope 	of 	representation, 	as 	defined 	in 	section
3543.2, 	specifically 	with 	reference 	to 	the 	decision 	to 	change
the 	hours 	of 	work 	of 	employees.
(b) 	By 	the 	same 	conduct, 	denying 	to 	the 	California 	School
Employees 	Association 	and 	its 	Pleasant 	Valley 	Chapter 	J504
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to 	represent 	unit 	members.
(c) 	By 	the 	same 	conduct, 	interfering 	with 	employees 	in 	the
exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
2. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
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(a) 	Upon 	request 	of 	CSEA, 	meet 	and 	negotiate 	with 	CSEA 	over
the 	decision 	and 	the 	effects 	thereof 	of 	the 	change 	in 	hours 	of
the 	aides.
(b) 	Unless 	the 	parties 	reach 	a 	contrary 	agreement, 	the 	two
employees 	whose 	hours 	were 	reduced 	should 	be 	made 	whole 	for 	any
loss 	of 	economic 	benefits 	suffered 	as 	a 	result 	of 	the
District's 	reduction 	iri hours, 	with 	interest 	at 	the 	rate 	of 	10
percent 	per 	annum 	from 	the 	date 	of 	the 	unilateral 	change
(November 	15, 	1982) 	until 	the 	occurrence 	of 	the 	earliest 	of 	the
following 	conditions:
(1) 	the 	date 	the 	District 	and 	CSEA 	reach 	agreement;
(2) 	completion 	of 	the 	statutory 	impasse 	procedures;
(3) 	the 	failure 	of 	CSEA 	to 	request 	bargaining 	within 	10
days 	following 	service 	of 	this 	Decision; 	or
(4) 	the 	subsequent 	failure 	of 	CSEA 	to 	bargain 	in 	good
faith.
(5) 	the 	point 	at 	which 	the 	parties 	have 	previously
reached 	agreement 	or 	negotiated 	through 	the 	statutory
impasse 	proceedings 	concerning 	the 	unilateral 	change 	in
hours.
(c) 	Within 	35 	days 	following 	the 	date 	this 	Decision 	is 	no
longer 	subject 	to 	reconsideration, 	post 	at 	all 	work 	locations
where 	notices 	to 	employees 	customarily 	are 	placed, 	copies 	of
the 	Notice 	attached 	as 	an 	Appendix 	hereto, 	signed 	by 	an
authorized 	agent 	of 	the 	employer. 	such 	posting 	shall 	be
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maintained 	for 	a 	period 	of 	30 	consecutive 	workdays. 	Reasonable
steps 	shall 	be 	taken 	to 	insure 	that 	this 	Notice 	is 	not 	reduced
in 	size, 	defaced, 	altered 	or 	covered 	by 	any 	material.
(d) 	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.
Members 	Tovar 	and 	Jaeger 	joined 	in 	this 	Decision.
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STATE 	OF 	CALIFORNIA
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL EMPLOYEES
ASSOCIATION 	AND 	ITS 	CHAPTER 	#504,
Charging 	Party,
v.
PLEASANT 	VALLEY SCHOOL 	DISTRICT,
Respondent.
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Unfair 	Practice
Case 	No. 	LA-CE-1706
PROPOSED 	DECISION
(l/25/84)
Appearances: 	Patricia L. 	Roy 	and 	Judith 	Locklair, 	Field
Representatives, 	California School Employees 	Association, 	for
California School Employees 	Association 	and 	its 	Chapter 	#504,
Edward 	M. 	Jones 	and 	Anita 	J. 	Johnson, 	The 	Negotiation 	Center,
for 	Pleasant Valley 	School 	District.
Before: 	Barbara 	E. 	Miller, 	Administrative 	Law 	Judge.
I. 	PROCEDURAL 	HISTORY
On 	December 	20, 	1982, 	the 	California School 	Employees
Association 	and 	its 	Chapter 	#504 	(hereinafter 	Charging 	Party 	or
CSEA) 	filed 	an 	Unfair 	Practice 	Charge 	against 	the 	Pleasant
Valley 	School 	District 	(hereinafter 	Respondent 	or 	District)
alleging 	certain 	violations 	of 	the 	Educational Employment
Relations 	Act 	(hereinafter 	EERA) .1
The 	Charge 	alleges 	that 	in 	September 	1982, 	and 	again 	in
November 	1982, 	the 	District 	unilaterally 	modified 	the 	hours 	of
instructional 	aides. 	By 	such 	conduct, 	CSEA 	alleges 	that
lThe 	Educational 	Employment 	Relations 	Act 	is 	codified 	at
California Government 	Code 	section 	3540, 	et 	seq. 	Unless
otherwise 	indicated, 	all 	code 	references 	will 	be 	to 	the
California Government 	Code.

the 	District 	violated 	sections 	3543.S(a), 	(b), 	and 	(c).2
On 	February 	11, 	1983, 	the 	General 	Counsel 	for 	the 	Public
Employment 	Relations 	Board 	(hereinafter 	PERB) 	issued 	a 	Complaint
and, 	thereafter, 	on 	March 	11, 	1983, 	Respondent 	filed 	an 	Answer 	to
the 	Charge. 	The 	Answer 	denies 	that 	an 	unfair 	practice 	was
committed 	and 	alleges 	that 	at 	all 	times 	relevant 	hereto 	the
Respondent 	was 	ready 	and 	willing 	to 	meet 	and 	negotiate 	with 	CSEA,
but 	that 	CSEA 	was 	either 	not 	available 	or 	by 	its 	bargaining
position 	complicated 	the 	negotiations 	so 	that 	meaningful
negotiations 	could 	not 	take 	place.
The 	record 	does 	not 	indicate 	whether 	an 	informal 	conference
was 	ever 	conducted. 	Nevertheless, 	settlement 	proposals 	were
exchanged 	and 	when 	the 	parties 	were 	unable 	to 	resolve 	their
differences, 	on 	May 	23, 	1983, 	the 	Charging 	Party 	requested 	a
formal 	hearing. 	A pre-hearing 	conference 	was 	conducted 	on
August 	23, 	1983, 	and 	the 	formal 	hearing 	was 	conducted 	on
August 	29, 	30, 	and 	31.
The 	parties 	filed 	briefs 	and 	on 	November 	7, 	1983, 	the 	case 	was
submitted 	for 	decision.3
2For 	reasons 	set 	forth 	in 	greater 	detail, 	infra, 	at 	the
hearing 	CSEA 	indicated 	that 	it 	was 	not 	contesting 	the 	modification
of 	hours 	which 	took 	place 	in 	September.
3Although 	the 	parties 	agreed 	not 	to 	file 	reply 	briefs, 	the
Respondent 	filed 	a 	reply 	brief 	on 	or 	around 	November 	16, 	1983.
Since 	the 	Respondent 	was 	unable 	to 	secure 	the 	Charging 	Party's
agreement 	to 	the 	filing 	of 	reply 	briefs, 	the 	Respondent's 	filing
was 	not 	reviewed 	and 	was 	rejected 	by 	the 	undersigned.
2

II. 	FINDINGS 	OF 	FACT
CSEA 	is 	an 	employee 	organization 	and 	the 	District 	is 	a
public 	school 	employer 	as 	those 	terms 	are 	defined 	by 	the
Educational 	Employment 	Relations 	Act.4 	CSEA 	is 	the 	exclusive
representative 	of 	the 	bargaining 	unit 	comprised 	of 	certificated
employees 	in 	the 	District. 	The 	parties 	were 	signators 	to 	a
collective 	bargaining 	agreement 	in 	effect 	from 	July 	1, 	1981
through 	June 	30, 	1984. 	The 	contract 	provides 	that 	by April 	1
of 	each 	year 	either 	party 	could 	give 	notice 	of 	its 	intent 	to
reopen 	negotiations 	on 	salary 	and 	fringe 	benefits 	and 	one
additional 	article.
A. 	Outline 	of 	the 	District's 	Programs 	and 	Changes 	in 	its
Schools 	in 	1982-83
The 	Pleasant Valley 	School 	District 	is 	made 	up 	of 	seven
kindergarten 	to 	sixth 	grade 	elementary 	schools, 	two 	seventh 	to
eighth 	grade 	junior 	high 	schools 	and 	three 	kindergarten 	to
eighth 	grade 	schools 	maintaining 	alternative 	programs.5 	In
fulfilling 	its 	mission 	with 	respect 	to 	the 	education 	of 	the
students 	in 	those 	schools, 	the 	District 	participates 	in 	special
education 	programs 	funded 	at 	the 	federal 	and 	state 	level.
In 	terms 	of 	federal 	aid, 	since 	1981, 	the 	District 	has
received 	Chapter 	1 	funds 	pursuant 	to 	the 	Educational
Consolidated 	Improvement 	Act 	(ECIA). 	The 	Chapter 	1 	funds 	are
4By 	stipulation 	of 	the 	parties.
5By 	stipulation 	of 	the 	parties.
3

allocated 	to 	the 	one 	school 	in 	the 	District 	which 	has 	the
highest 	welfare 	count 	and 	are 	intended 	to 	provide 	assistance
for 	those 	students 	who 	are 	below 	the 	40th 	percentile 	in 	reading
and 	mathematics. 	In 	Pleasant Valley, 	the 	target 	school 	is 	the
El 	Rancho 	Elementary 	School, 	which 	received 	$76,024 	for 	the
1981-82 	school 	year, 	but 	only 	received 	$66,442 	for 	the 	1982-83
school 	year. 	The 	District 	also 	receives 	funds 	pursuant 	to 	the
the 	School 	Improvement 	Program 	(SIP), 	which 	is 	a 	state
legislated, 	categorically 	funded 	program 	which 	applies 	to
target 	schools 	in 	each 	school 	district. 	At 	the 	time 	of 	the
formal 	hearing, 	the 	target 	schools 	in 	the 	District 	were 	Los
Altos 	Junior 	High 	School, 	Santa 	Rosa 	Elementary 	School, 	El
Rancho 	Elementary 	School, 	Dos 	Caminos 	Elementary 	School, 	and
Las 	Colinas 	Elementary School.6
The 	allocation 	of 	SIP 	funding 	to 	a 	school 	district 	for 	a
particular 	year 	is 	determined 	by 	multiplying 	the 	prior
December's 	average 	daily 	attendance 	by 	the 	per 	pupil 	allotment
authorized 	by 	the 	Legislature. 	In 	the 	Pleasant Valley 	School
District, 	the 	actual 	SIP 	funding 	for 	the 	1981-82 	school 	year
was 	$191,740, 	the 	estimated 	SIP 	funding 	for 	the 	1982-83 	school
year 	was 	$179,368, 	although 	in 	fact 	the 	funding 	was 	$210,951.
6 	During 	the 	1981-82 	school 	year, 	Pleasant Valley
Elementary 	School 	was 	a 	target 	school 	receiving 	SIP 	funding.
However, 	beginning 	in 	1982-83, 	Pleasant Valley 	Elementary
School 	was 	closed 	and 	Las 	Colinas 	Elementary 	School 	was 	opened,
but 	not 	yet 	eligibile 	for 	SIP 	funding.
4

In 	order 	to 	receive 	the 	state 	and 	federal 	funds, 	the
District 	must 	make 	certain 	assurances 	to 	the 	agency
distributing 	those 	funds. 	The 	schools 	receiving 	either 	SIP 	or
Chapter 	1 	funds7 	must 	have 	a 	site 	council, 	a 	quasi-governing
body 	comprised 	of 	parents 	and 	staff 	which 	must 	approve 	a 	master
plan 	and 	program 	modifications. 	The 	District 	must 	also 	promise
that 	categorical 	funds 	will 	not 	be 	used 	to 	supplant 	general
funds 	distributed 	to 	other 	schools 	not 	receiving 	the
categorical 	funding. 	Moreover, 	the 	District 	must 	guarantee
that 	the 	programs 	will 	be 	of 	sufficient 	size, 	scope 	and 	quality
to 	have 	an 	educational 	impact 	on 	the 	students 	and 	that 	the
services 	rendered 	to 	children 	within 	a 	recipient 	school 	will 	be
comparable; 	i.e., 	some 	targeted 	students 	will 	not 	receive 	a
disportportionate 	share 	of 	assistance.
B. 	Layoffs 	and 	Reductions 	in Hours 	effective 	September 	19828
Late 	in 	June 	1982, 	certain 	instructional 	and 	bilingual
aides 	in 	the 	District 	were 	informally 	advised 	that
organizational 	changes 	within 	the 	District 	would 	have 	an 	impact
7At 	El 	Rancho 	Elementary 	School, 	the 	one 	school 	in 	the
District 	which 	receives 	SIP 	and 	Chapter 	1 	funds, 	the 	funds 	are
comingled, 	so 	that 	instructional 	and 	bilingual 	aides 	have
particular 	children 	for 	a 	certain 	portion 	of 	their 	workday, 	and
all 	children 	for 	the 	remainder 	of 	their 	day.
8A 1 j.,l-,,...,,,..l-, 	th1's 	,,,..,f=a1'r 	O>""' rd	.J-1...,J.lVY';:1!.J 	U.lJ.J... 	J,; J..\,.,l,._t,..,..i.	
•ice 	l:".l...._,._.,_.._'-"..t..	r\>"t""\,-,oo~ing 	..._.'-''-""""	~t""\OC! 	not
challenge 	the 	September 	personnel 	actions, 	in 	order J.
to 	properly
address 	the 	District's 	defenses 	to 	the 	personnel 	actions 	taken
later 	in 	the 	year, 	this 	background 	information 	is 	set 	forth.
5

on 	their 	employment 	status. 	A new 	school, 	Las 	Colinas
Elementary School 	was 	to 	open 	in 	the 	fall 	of 	1982 	and 	students
ana 	teachers 	were 	to 	be 	transferred 	to 	Las 	Colinas 	from 	El
Rancho 	Elementary School 	and 	Pleasant 	Valley Elementary 	School,
which 	was 	to 	be 	closed. 	As 	a 	consequence 	of 	those 	actions, 	the
SIP 	funding 	for 	Pleasant Valley 	School 	would 	be 	terminated 	and
the 	SIP 	funding 	for 	the 	El 	Rancho 	School 	would 	be 	reduced.
Because 	Las 	Colinas 	was 	a 	new 	school 	without 	an 	established
program 	or 	a 	site 	council, 	it 	would 	not 	be 	eligible 	for 	SIP
funding 	at 	the 	beginning 	of 	the 	1982-83 	year. 	Because 	of 	the
reduction 	in 	funding, 	the 	aides 	were 	advised 	that 	either 	their
hours 	would 	be 	reduced 	or 	they 	would 	be 	laid 	off.
On 	June 	28, 	1982, 	aides 	were 	formally 	advised 	of 	the
changes 	which 	were 	anticipated 	at 	the 	beginning 	of 	the 	1982-83
school 	year. 	In 	letters 	signed 	by 	Respondent's 	Classified
Personnel 	Director, 	Kenneth 	Marshick, 	the 	aides 	were 	advised 	of
a 	variety 	of 	options, 	including, 	but 	not 	limited 	to, 	their
bumping 	rights. 	According 	to 	the 	testimony 	of Alice 	Richards,
President 	of 	Charging 	Party's 	Chapter 	1504, 	she 	did 	not 	receive
notice 	from 	the 	District 	of 	its 	proposed 	layoffs 	or 	reductions
in 	hours, 	but 	learned 	of 	them 	from 	a 	unit 	member. 	Upon
learning 	of 	the 	District's 	proposed 	action, 	Richards 	contacted
Marshick 	and 	requested 	copies 	of 	the 	letters 	sent 	to 	the
members. 	Richards 	received 	a 	copy 	of 	the 	form 	letter 	sent 	to
the 	aides 	but 	had 	to 	contact 	Marshick 	again 	to 	ascertain 	the
6

names 	of 	the 	employees 	affected 	by 	the 	District's 	action.9
While 	awaiting 	word 	on 	the 	specifics 	of 	the 	District's
proposed 	actions, 	Richards 	contacted 	Patricia 	(Pat) 	Roy, 	the
CSEA 	Field 	Representative. 	Roy, 	in 	turn, 	contacted 	Dr. 	Edward
Jones, 	the 	District's 	designated 	bargaining 	representative 	and
requested 	a 	meeting 	to 	begin 	negotiations 	concerning 	the
effects 	of 	the 	layoff 	and 	the 	decision 	to 	reduce 	hours. 	A
meeting 	was 	arranged 	for 	July 	28, 	1982.
On 	that 	date, 	the 	CSEA 	bargaining 	committee 	met 	with 	Jones
to 	discuss 	the 	proposed 	changes 	in 	hours 	for 	instructional 	and
bilingual 	aides. 	Jones 	indicated 	any 	bargaining 	sessions 	would
be 	limited 	to 	negotiations 	over 	the 	impact 	of 	the 	reduction 	in
hours; 	according 	to 	Jones 	the 	obligations 	which 	arose 	when
there 	was 	a 	reduction 	in 	hours 	were 	analogous 	to 	those 	arising
when 	there 	was 	a 	layoff. 	Roy 	advised 	Jones 	that, 	pursuant 	to
PERB's 	decision 	in North 	Sacramento,10 	the 	decision 	to 	reduce
hours 	was 	negotiable, 	not 	just 	the 	impact. 	Jones 	indicated
that 	he 	would 	have 	to 	look 	into 	the 	status 	of 	the 	law 	on 	that
issue, 	but, 	in 	any 	event, 	the 	District's 	financial 	condition
9The 	letters 	actually 	received 	by 	the 	aides 	reflect 	that
a 	carbon 	copy 	was 	sent 	to 	CSEA 	and 	Marshick 	and 	his 	secretary
testified 	that 	it 	was 	their 	custom 	and 	practice 	to 	send 	copies
of 	such 	correspondence 	to 	CSEA. 	The 	District 	acknowledged,
however, 	that 	Richards 	was 	not 	working 	at 	that 	time 	and 	the
correspondence, 	if 	sent, 	was 	sent 	to 	her 	work 	location, 	not 	her
home 	or 	a 	CSEA 	office.
l0North 	Sacramento 	School District 	(12/31/81) 	PERB
Decision 	No. 	193.
7

necessitated 	reducing 	aide 	hours. 	Moreover, 	Jones 	indicated
that 	negotiations 	would 	have 	to 	proceed 	as 	soon 	as 	possible 	so
that 	the 	matter 	could 	be 	resolved 	prior 	to 	the 	beginning 	of 	the
1982-83 	school 	year.
According 	to 	Roy, 	at 	that 	meeting 	she 	advised 	Jones 	that
CSEA 	would 	not 	require 	rescission 	of 	the 	proposed 	reduction 	in
aide 	hours 	because 	notices 	had 	already 	been 	sent 	out 	and
bumping 	or 	displacement 	arrangements 	were 	in 	the 	process 	of
being 	made. 	In 	other 	words, 	it 	would 	be 	disruptive 	to 	rescind
the 	actions 	at 	that 	time 	and 	CSEA 	would 	allow 	them 	to 	stand
pending 	the 	outcome 	of 	negotiations.
On August 	6, 	1982, 	Roy 	sent 	a 	letter 	to 	Jones 	confirming
that 	understanding. 	She 	wrote:
In 	our 	negotiation 	session 	of 	Wednesday,
July 	28, 	regarding 	proposed 	reduction 	in
hours 	for 	three 	aides 	at 	the 	Pleasant Valley
School 	District, 	it 	was 	agreed 	that 	because
of 	the 	shortness 	of 	time 	to 	the 	start 	of
school 	the 	notice 	already 	sent 	to 	the 	aides
would 	be 	allowed 	to 	stand 	pending 	the
outcome 	of 	negotiations. 	This 	letter
confirms 	that 	agreement.
The 	letter 	sent 	by 	Roy 	refers 	to 	three 	aides. 	At 	the 	hearing,
however, 	Roy 	indicated 	that 	CSEA 	intended 	that 	all 	the 	reductions
forecast 	in 	June 	and 	July 	could 	take 	effect 	in September 	pending
the 	outcome 	of 	negotiations.
In 	August 	1982, 	the 	aides 	who 	had 	previously 	been 	notified
that 	their 	hours 	would 	be 	changed, 	received 	specific 	information
regarding 	their 	status. 	The 	actions 	projected 	in 	the 	August
8

notification 	letters 	were 	implemented 	and 	effective 	in
September 	of 	the 	1982-83 	school 	year.
C. 	Negotiations 	and 	Additional 	Changes 	in 	Hours
Notwithstanding 	the 	fact 	that 	Roy 	and 	Jones 	each 	expressed
an 	interest 	in 	commencing 	and 	concluding 	negotiations 	as 	soon
as 	possible, 	between July 	28 	and 	August 	25 	the 	parties 	did 	not
meet. 	The 	apparent 	explanation 	for 	this 	delay 	was 	that 	members
of 	CSEA's 	bargaining 	team 	were 	attending 	a 	statewide 	CSEA
convention.11
The 	parties 	did 	meet 	on August 	25, 	and 	there 	is 	some
disagreement 	as 	to 	what 	took 	place 	at 	that 	meeting. 	According
to 	Roy, 	she 	presented 	a 	fairly 	detailed 	written 	proposal 	to 	the
District 	regarding 	the 	reduction 	in 	hours 	and 	the 	effects 	of
layoffs. 	According 	to 	Jones, 	CSEA 	presented 	nothing 	in
writing, 	and 	only 	spent 	approximately 	20 	minutes 	discussing
those 	issues; 	he 	understood 	CSEA's 	position 	to 	be 	that 	no
reductions 	or 	layoffs 	would 	be 	acceptable. 	Jones' 	recollection
was 	that 	most 	of 	the 	time 	was 	spent 	discussing 	the 	"reopener"
proposals 	submitted 	by 	the 	parties. 	Although 	the 	District
suggests 	in 	its 	Post 	Hearing 	Brief 	that 	the 	inclusion 	of
proposals 	on 	the 	reopeners 	hampered 	negotiations 	on 	the 	more
pressing 	issue 	of 	the 	reduction 	in 	hours, 	Jones 	testified 	that
llAt 	the 	formal 	hearing, 	however, 	no 	evidence 	was 	offered
to 	support 	a 	finding 	that 	an 	insufficient 	number 	of
representatives 	were 	available 	to 	continue 	negotiations.
9

it 	was 	his 	understanding 	that 	there 	were 	"two 	sets 	of
negotiations 	on 	the 	same 	day. 	I 	never 	received 	the 	impression
from 	CSEA 	that 	one 	was 	contingent 	on 	another."
The 	parties 	did 	not 	meet 	again 	until 	September 	20, 	1982,
and 	no 	testimony 	was 	offered 	to 	explain 	the 	delay 	of 	nearly 	one
month 	between 	negotiation 	sessions. 	At 	the 	September 	meeting,
the 	District 	was 	represented 	by 	Anita 	Johnson, 	a 	colleague 	of
Jones. 	Johnson 	testified 	that 	CSEA's 	written 	proposals 	were
submitted 	at 	that 	session. 	Although 	she 	was 	familiar 	with 	the
proposals 	because 	they 	were 	the 	same 	as 	those 	CSEA 	had
submitted 	in 	Santa 	Paula, 	another 	district 	for 	which 	she
negotiates, 	this 	was 	the 	first 	time 	they 	had 	been 	presented 	on
behalf 	of 	the 	employees 	in 	Pleasant Valley. 	In 	essence, 	the
CSEA 	proposal 	provided 	that 	a 	reduction 	in 	hours 	could 	only
take 	place 	voluntarily 	and, 	if 	there 	were 	no 	volunteers,
layoffs 	would 	have 	to 	take 	place. 	Johnson 	indicated 	that 	such
a 	proposal 	was 	not 	acceptable 	to 	the 	District 	and 	that 	it 	would
work 	a 	hardship, 	particularly 	in 	the 	areas 	serviced 	by
instructional 	aides 	and 	cafeteria 	workers.
The 	parties 	again 	met 	on 	September 	29, 	1982. 	Johnson
testified 	that 	at 	that 	meeting 	she 	formed 	the 	impression 	that
negotiations 	regarding 	a 	reduction 	in 	hours 	and 	layoffs 	could
not 	be 	separated 	from 	the 	reopener 	proposals 	concerning 	salary,
fringe 	benefits, 	and 	a 	grievance 	procedure. 	The 	District
argues 	that 	combining 	the 	reopener 	issues 	with 	the 	layoff 	and
reduction 	issues 	hampered 	reaching 	an 	expeditious 	agreement 	on
10

the 	matters 	at 	issue 	in 	this 	proceeding 	and 	that 	since 	the
District 	did 	not 	require 	consolidated 	negotiations, 	it 	was 	not
responsible 	for 	the 	delay 	and 	was 	not 	bargaining 	in 	bad 	faith.
Roy 	testified 	that 	CSEA 	dealt 	with 	the 	issues 	on 	a 	consolidated
basis 	because 	that 	was 	consistent 	with 	the 	ground 	rules 	Johnson
had 	laid 	in 	other 	districts 	in 	which 	Roy 	sat 	across 	the 	table.
In 	any 	event, 	the 	parties 	did 	not 	reach 	agreement 	on 	September
29, 	and 	CSEA 	verbally 	declared 	impasse. 	Notwithstanding 	the
declaration 	of 	impasse, 	CSEA 	did 	not 	ask 	for 	an 	official
declaration 	of 	impasse 	by PERB 	and 	the 	parties 	again 	met 	to
negotiate 	on 	November 	2, 	1982.
Before 	that 	meeting, 	however, 	on 	October 	13, 	1982, 	the
District 	sent 	notices 	to 	seven 	aides 	advising 	them 	that 	their
hours 	of 	work 	were 	being 	changed 	effective 	November 	15. 	Isabel
Morales 	and 	Esther 	Duncan, 	whose 	hours 	had 	previously 	been
reduced, 	were 	increased 	to 	three 	hours 	and 	three 	and 	one-half
hours 	per 	day, 	respectively. 	Both 	aides 	worked 	at 	El 	Rancho
School 	and 	the 	increase 	in 	hours 	consitituted 	a 	complete
restoration 	of 	the 	number 	of 	hours 	by 	which 	they 	had 	been
reduced 	in 	the 	fall. 	Dorothy Ewing, 	who 	was 	also 	working 	at El
Rancho 	School, 	was 	offered 	an 	increase 	in 	hours 	from 	two 	to
three 	and 	one-half 	per 	day 	to 	be 	accomplished 	by 	transferring
her 	to 	Las 	Colinas 	School. 	Ms. 	Ewing 	did 	transfer 	to 	Las
Colinas 	School 	but, 	apparently 	at 	her 	option, 	continued 	to 	work
only 	two 	hours 	per 	day. 	Ann 	Robillard 	was 	increased 	from 	two
hours 	per 	day 	to 	three 	and 	one-half 	hours 	per 	day 	and
11

transferred 	to 	El 	Rancho 	School. 	Nora 	Fede, 	who 	worked 	at 	El
Rancho 	for 	three 	hours 	per 	day, 	was 	increased 	to 	three 	and
one-half 	hours 	per 	day 	and 	Nellie 	Santos 	and 	Tillie 	Nunez, 	who
also 	worked 	at El 	Rancho, 	were 	both 	reduced 	from 	five 	and
one-half 	hours 	per 	day 	to 	three 	and 	one-half 	hours 	per 	day
which 	resulted 	in 	a 	loss 	of 	fringe 	benefits. 	Overall, 	with
respect 	to 	the 	aides 	who 	received 	notices 	dated 	October 	13,
1982, 	the 	District's 	actions 	contemplated 	an 	increase 	in 	aide
time 	by 	two 	and 	one-half 	hours 	per 	week. 	Because 	Ewing 	did 	not
accept 	the 	increase 	in 	hours, 	in 	fact, 	overall 	aide 	time 	was
reduced 	by 	five 	hours. 	At 	El 	Rancho 	School, 	aide 	time 	was
reduced 	by 	five 	hours.
According 	to 	the 	testimony 	of 	Alice 	Richards 	and 	Pat 	Roy,
CSEA 	received 	no 	notification 	of 	the 	proposed 	personnel
transactions 	described 	above 	on 	or 	before 	October 	13, 	1982.
Sometime 	after 	October 	13, 	Richards 	was 	notified 	by 	Esther
Duncan 	that 	a 	second 	set 	of 	personnel 	actions 	involving 	a
reduction 	in 	hours 	were 	about 	to 	take 	place. 	Richards
testified 	that 	she 	again 	had 	to 	contact Marshick 	in 	order 	to
get 	the 	information 	and 	on 	this 	occasion, 	after 	her
conversation 	with Marshick, 	she 	received 	letters 	specifically
setting 	forth 	those 	employees 	involved 	and 	their 	changes 	in
hours.12
12The 	letters 	actually 	received 	by 	CSEA 	reflect 	that 	a
carbon 	copy 	was 	sent 	to 	CSEA 	and 	again 	Marshick 	and 	his
secretary 	testified 	that 	it 	was 	their 	custom 	to 	send 	copies 	of
12

such 	materials 	to 	the 	Association. 	However, 	in 	this 	instance,
the 	letter 	actually 	received 	by 	Esther 	Duncan, 	several 	days
prior 	to 	that 	requested 	and 	received 	by 	CSEA, 	does 	not 	reflect
that 	a 	carbon 	copy 	was 	sent 	to 	CSEA. 	This 	is 	circumstantial
evidence 	that 	the 	letters 	were 	not 	initially 	sent.
Accordinqly, 	the 	testimony 	of 	Richards 	is 	credited 	that 	the
District-fa1led 	to 	give 	advance 	notice 	or 	even 	simultaneous
notice 	to 	CSEA.
According 	to 	the 	testimony 	of 	Roy, 	she 	was 	contacted 	by
Richards 	and 	advised 	of 	the 	announced 	changes. 	In 	turn, 	Roy
contacted 	Anita Johnson 	by 	telephone 	and 	advised 	her 	that 	the
October 	13 	notices 	had 	been 	sent. 	According 	to 	Roy, 	she 	told
Johnson 	that 	the 	actions 	were 	unilateral 	and 	would 	constitute
an 	unfair 	labor 	practice. 	Again, 	according 	to 	Roy, 	Johnson
indicated 	she 	had 	no 	knowledge 	of 	the 	proposed 	action 	and 	would
check 	into 	it. 	Roy 	testified 	that 	she 	again 	called 	Johnson
around 	October 	20, 	1982, 	to 	determine 	what, 	if 	anything, 	had
been 	done. 	Roy 	testified 	that 	Johnson 	said 	she 	had 	verified
the 	information 	and 	she 	would 	take 	care 	of 	it. 	Johnson
testified 	that 	based 	on 	her 	recollection 	and 	a 	telephone 	log
which 	she 	keeps 	of 	contacts 	regarding 	Districts 	she 	represents,
she 	had 	no 	phone 	conversations 	with 	Roy 	regarding 	the 	October
13 	notices 	sent 	to 	employees. 	Johnson 	testified 	that 	she 	did
have 	a 	telephone 	conversation 	with 	Roy 	regarding 	the 	subject 	of
a 	decision 	to 	reduce 	hours 	and 	the 	issuance 	of 	notices 	to
employees, 	but 	that 	conversation 	pertained 	to 	the 	Santa 	Paula
School 	District, 	not 	to 	Pleasant Valley.13
13rn 	its 	brief, 	the 	Respondent 	argues 	that 	CSEA 	never
independently 	challenged 	the 	reductions 	in 	hours 	for 	which
13

notices 	were 	sent 	on 	October 	13, 	1982. 	Resolution 	of 	that
issue 	or 	defense 	is 	not 	contingent 	upon 	whether 	or 	not 	the
telephone 	conversations 	took 	place 	in 	October 	1982 	and,
accordingly, 	no 	credibility 	determination 	is 	made 	in 	that
regard.
The 	parties 	again 	met 	and 	negotiated 	the 	question 	of 	the
decision 	to 	reduce 	hours 	and 	contract 	reopeners 	on November 	2,
1982. 	The 	Respondent 	does 	not 	dispute 	that 	the 	issue 	of 	the
October 	13 	letters 	and 	the 	modification 	in 	working 	hours 	to 	be
effective 	on November 	15, 	1982, 	were 	discussed 	at 	that
negotiation 	session. 	According 	to Johnson, 	Esther 	Duncan, 	who
was 	part 	of 	the 	negotiation 	team, 	stated 	that 	she 	was
embarrassed 	by 	the 	reduction 	in 	hours 	of 	her 	colleagues 	while
her 	hours 	were 	increased 	and 	that 	she 	thought 	it 	wasn't 	fair.
It 	is 	Johnson's 	testimony 	that 	she 	first 	learned 	of 	the
proposed 	personnel 	actions 	at 	the 	November 	2 	negotiation
meeting 	and 	then 	said 	that 	she 	would 	look 	into 	it. 	The 	parties
again 	met 	on November 	15, 	1982, 	at 	which 	time 	the 	District 	for
the 	first 	time 	presented 	CSEA 	with 	a 	written 	counterproposal
incorporating 	the 	positions 	it 	had 	taken 	during 	bargaining
sessions 	in September 	and 	on November 	2. 	CSEA 	was 	insistent
that 	the 	District 	accept 	a 	worksharing 	programl4 	and 	a
continuation 	of 	fringe 	benefits 	for 	employees 	whose 	hours 	were
reduced. 	When 	those 	proposals 	were 	rejected 	by 	the 	District,
14According 	to 	the 	testimony, 	a 	worksharing 	program 	is
one 	which 	results 	in 	employees 	whose 	hours 	have 	been 	reduced
being 	entitled 	to 	some 	proportionate 	share 	of 	unemployment
compensation.
14

CSEA 	declared 	impasse 	and 	filed 	the 	appropriate 	papers 	with
PERB. 	Although 	Respondent 	did 	not 	join 	in 	CSEA's 	declaration
of 	impasse, 	on November 	23, 	1983, 	PERB 	certified 	that 	an
impasse 	existed. 	As 	of 	the 	date 	of 	the 	formal 	hearing 	the
parties 	had 	not 	yet 	resolved 	their 	differences.
D. 	Evidence 	Relating 	to 	the 	District's 	Rationale 	for
the 	November 	Changes 	in 	Hours
During 	the 	course 	of 	the 	hearing, 	Floyd 	Davis, 	the
Superintendent 	of 	the 	Pleasant Valley 	School 	District,
testified 	that 	the 	District 	had 	experienced 	financial
difficulties 	for 	quite 	some 	time, 	probably 	dating 	back 	to 	the
passage 	of Proposition 	13. 	Pursuant 	to 	Davis' 	uncontroverted
testimony 	the 	District 	was 	required 	to 	cut 	back 	on 	its 	capital
outlay 	program, 	charge 	for 	bus 	rides 	and 	reduce 	some 	of 	its
educational 	programs. 	Moreover, 	the 	District 	was 	required 	to
terminate 	an 	earlier 	practice 	of 	subsidizing 	categorically
funded 	programs 	from 	the 	general 	fund. 	Accordingly, 	the
District 	no 	longer 	absorbed 	deficiencies 	which 	might 	arise 	in
Chapter 	1 	or 	SIP 	programs.
Eric Anders 	provided 	more 	specific 	information 	on 	the
District's 	financial 	condition 	with 	respect 	to 	the 	categorical
programs 	in 	the 	school 	year 	1982-83. 	As 	previously 	noted, 	the
Chapter 	1 	funding 	to 	the 	District 	decreased 	from 	$76,024 	to
$66,442. 	In 	terms 	of 	SIP 	funding, 	the 	evidence 	indicates 	that
for 	school 	year 	1982-83, 	the 	projected 	income 	was 	$179,368.
The 	amount 	actually 	received, 	however, 	was 	$210,951.
15

Nevertheless, 	despite 	the 	fact 	that 	Anders 	testified 	that
Chapter 	1 	and 	SIP 	funds 	are 	comingled, 	the 	Respondent
maintained 	that 	there 	was 	a 	$10,000 	shortfall 	in 	El 	Rancho's
categorical 	funding 	for 	the 	1982-83 	school 	year.15
Regardless 	of 	the 	actual 	financial 	condition 	or 	funding 	for
categorical 	programs 	at 	El 	Rancho, 	decisions 	were 	made 	based 	on
a 	perception 	that 	there 	was 	a 	$10,000 	shortfall. 	That,
according 	to 	the 	District, 	created 	certain 	programatic 	problems
and 	required 	an 	adjustment 	not 	only 	in 	the 	number 	of 	aide
hours, 	but 	in 	the 	way 	in 	which 	those 	hours 	were 	distributed.
Prior 	to 	the 	opening 	of 	the 	Las 	Colinas 	School, 	there 	were 	15
teachers 	at 	El 	Rancho; 	afterward 	there 	were 	only 	11. 	Prior 	to
the 	reduction 	in 	teaching 	staff, 	according 	to 	the 	testimony 	of
Liane 	Adamske, 	the 	Program Coordinator 	for 	SIP 	and 	Chapter 	1 	at
El 	Rancho School, 	there 	were 	more 	teachers 	than 	instructional
aides; 	after 	the 	reduction 	in 	the 	size 	of 	the 	teaching 	staff,
every 	teacher 	had 	an 	aide.
Several 	weeks 	after 	the 	beginning 	of 	the 	1982-83 	school
year, 	in 	order 	to 	equalize 	the 	amount 	of 	aide 	time 	given 	to
each 	teacher, 	Nunez 	and 	Santos 	would 	spend 	approximately 	three
and 	one-half 	hours 	per 	day 	in 	one 	classroom 	and 	during 	the
course 	of 	the 	week 	their 	additional 	two 	hours 	each 	day 	would
15The 	disparity 	in 	figures 	resulted 	from 	a 	failure 	to
include 	carry-over 	funds 	from 	a 	previous 	year. 	There 	was 	no
testimony 	elicited, 	however, 	regarding 	the 	District's 	ability
to 	use 	those 	funds 	to 	supplement 	El 	Rancho's 	budget.
16

be 	distributed 	to 	other 	teachers 	within 	the 	school. 	Adamske's
testimony 	appears 	to 	indicate 	that 	this 	transition 	was 	made
several 	weeks 	into 	the 	school 	year 	in 	order 	to 	equalize 	the
delivery 	of 	services 	to 	students. 	In 	the 	previous 	years,
Santos 	and 	Nunez 	had 	spent 	three 	and 	one-half 	hours 	in 	a
morning 	classroom 	and 	then 	two 	hours 	in 	the 	classroom 	of 	an
afternoon 	teacher 	who 	did 	not 	have 	the 	services 	of 	an 	aide.
Adamske 	further 	testified 	that 	the 	rotation 	of 	the 	services
of 	Nunez 	and 	Santos 	seemed 	unsatisfactory 	and 	the 	fact 	that
some 	aides 	were 	teaching 	two 	hours 	or 	three 	hours 	per 	day 	as
compared 	to 	the 	five 	and 	one-half 	hours 	of 	Nunez 	and 	Santos
seemed 	inequitable. 	Moreover, 	Adamske 	had 	some 	concern 	that
the 	uneven 	distribution 	of 	hours 	was 	not 	only 	inequitable 	in
terms 	of 	services 	rendered 	to 	teachers, 	but 	it 	was 	unfair 	to
the 	aides 	themselves 	and 	perhaps, 	most 	importantly, 	could
potentially 	jeopardize 	the 	District's 	program, 	because
comparable 	services 	were 	not 	being 	provided 	to 	all 	the 	students.
In 	order 	to 	address 	what 	she 	perceived 	to 	be 	the
deficiencies 	or 	problems 	in 	the 	Chapter 	1 	and 	SIP 	programs 	at
El 	Rancho, 	Adamske 	met 	with 	"staff" 	and 	the 	site 	council. 	Upon
questioning 	by 	the 	administrative 	law 	judge, 	Adamske 	testified
that 	by 	staff 	she 	meant 	faculty 	and 	the 	principal. 	It 	was
clear 	that 	she 	did 	not 	mean 	representatives 	from 	CSEA 	or
classified 	personnel. 	According 	to 	Adamske, 	staff 	considered
alternatives 	to 	the 	distribution 	of 	aide 	hours 	for 	a 	number 	of
weeks. 	She 	testified 	that 	staff 	considered 	the 	possibility 	of
17

allowing 	either 	Santos 	or 	Nunez 	to 	work 	with 	one 	of 	the
kindergarten 	teachers 	who 	taught 	first 	graders 	in 	the
afternoon, 	but 	that 	option 	was 	rejected 	because 	the 	teacher
only 	had 	10 	first 	graders 	and 	it 	was 	felt 	that 	she 	could
provide 	enough 	instructional 	assistance 	without 	the 	use 	of 	an
aide. 	Adamske 	also 	testified 	that 	staff 	rejected 	the 	idea 	of
rearranging 	the 	school 	program 	so 	that 	classes 	for 	which 	aide
assistance 	was 	required 	could 	be 	taught 	in 	the 	afternoon
because 	the 	school 	children 	were 	more 	receptive 	to 	learning 	the
solid 	subjects 	in 	the 	morning.
Essentially, 	Adamske 	testified 	that 	the 	option 	selected,
that 	of 	equalizing 	aide 	hours, 	was 	the 	only 	alternative
considered 	acceptable. 	Accordingly, 	after 	spending 	several
weeks 	considering 	the 	alternatives, 	staff 	presented 	its
solution 	to 	the 	site 	council, 	which 	discussed 	the 	matter 	for
approximately 	one 	hour. 	Thereafter, 	it 	was 	determined 	that
aide 	hours 	should 	be 	equalized 	and, 	without 	prior 	notice 	or
discussion 	with 	CSEA, 	employees 	were 	notified 	of 	the 	decision
to 	modify 	their 	hours.
III. 	ISSUES
~- 	Did 	the 	District 	have 	a 	duty 	to 	bargain 	about 	the
decision 	to 	change 	hours 	effective 	November 	15, 	1983?
B. 	Did 	CSEA 	waive 	its 	right 	to 	bargain 	by 	any 	of 	the
following: 	(1) 	its 	letter 	of 	August 	6, 	1982; 	(2) 	its 	failure
to 	make 	a 	clear 	and 	timely 	demand 	to 	bargain; 	or 	(3) 	its
failure 	to 	bargain 	expeditiously 	or 	efficiently?
18

C. 	Was 	the 	District's 	duty 	to 	bargain 	excused 	by 	business
neccessity?
IV. 	CONCLUSIONS 	OF 	LAW
A. 	Unilateral 	Chanqes 	in 	Hours
It 	is 	well 	settled 	that, 	absent 	special 	circumstances, 	an
employer's 	unilateral 	action 	on 	a 	matter 	within 	the 	scope 	of
representation 	is 	a 	per 	se 	violation 	of 	the EERA. 	(San 	Mateo
Community 	College 	District 	(6/8/79) 	PERB 	Decision 	No. 	94: 	San
Francisco 	Community 	College 	District 	(10/12/79) 	PERB 	Decision
No. 	105.) 	It 	is 	also 	well 	settled 	by 	PERB 	precedent 	that 	a
school 	district 	is 	required 	to 	bargain 	with 	the 	exclusive
representative 	of 	its 	employees 	regarding 	the 	decision 	to
reduce 	hours. 	(North 	Sacramento 	School 	District 	(12/31/81)
PERE 	Decision No. 	193: 	Pittsburg 	Unified 	School 	District
(6/10/83) 	PERB 	Decision 	No. 	318.)
In 	the 	instant 	case, 	effective November 	15, 	1983, 	the
employer 	unilaterally 	decreased 	the 	hours 	of 	two 	employees 	and
unilaterally 	increased 	the 	hours 	of 	four 	others. 	As 	noted 	by
the 	precedents 	set 	forth 	above, 	absent 	a 	viable 	defense, 	the
unilateral 	decrease 	in 	working 	hours 	without 	bargaining 	is 	a
per 	se 	violation 	of 	the 	EERA. 	Similarly, 	the 	increase 	in 	the
working 	hours 	of 	four 	instructional 	aides 	was 	also 	unlawful;
unilaterally 	conferring 	benefits 	on 	employees 	can 	undermine 	the
role 	of 	the 	exclusive 	representative 	as 	effectively 	as
unilaterally 	reducing 	them. 	(NLRB 	v. 	Katz 	(1962) 	369 	U.S. 	736
[50 	LRRM 	2177] .)
19

In 	addition 	to 	the 	various 	waiver 	and 	business 	necessity
defenses 	raised 	by 	the 	District, 	which 	will 	be 	discussed 	below,
the 	District 	argues 	that 	it 	did 	not 	commit 	an 	unfair 	labor
practice 	because, 	at 	all 	times 	relevant 	hereto, 	it 	was
bargaining 	in 	good 	faith; 	it 	wanted 	to 	reach 	agreement.
Nevertheless, 	if 	the 	District 	does 	not 	sustain 	its 	burden 	with
respect 	to 	the 	defenses 	it 	raises, 	the 	unilateral 	modification
in 	the 	hours 	of 	instructional 	aides 	prior 	to 	the 	conclusion 	of
bargaining 	constitutes 	a 	per 	se 	violation 	of 	the 	Act.
B. 	The 	Waiver 	Defenses
The 	District 	takes 	the 	position 	that 	the 	Association 	waived
its 	right 	to 	bargain 	about 	the 	November 	15, 	1982, 	change 	in
hours. 	The 	waiver 	defense 	has 	three 	facets. 	First, 	the
Respondent 	argues 	that 	Roy's 	letter 	of 	August 	6, 	1982, 	gave 	the
District 	permission 	to 	reduce 	hours 	as 	needed 	pending 	good
faith 	negotiations 	between 	the 	parties. 	Next, 	the 	District
argues 	that 	CSEA 	failed 	to 	make 	a 	timely 	demand 	or, 	in 	fact,
any 	demand 	to 	bargain 	about 	the 	changes 	which 	were 	announced 	in
October 	and 	made 	effective 	in 	November. 	Finally, 	the 	District
argues 	that 	CSEA's 	dilatory 	bargaining 	strategy 	is 	evidence
that 	there 	was 	no 	intent 	to 	reach 	agreement 	with 	Respondent 	and
constitutes 	a 	waiver 	by 	inaction. 	To 	sustain 	each 	of 	the
defenses 	the 	PERB 	requires·clear 	and 	unmistakable 	evidence 	that
an 	organization 	has 	waived 	its 	statutory 	right 	to 	bargain 	about
a 	specific 	subject. 	(Amador 	Valley 	Joint 	Union 	High 	School
District 	(10/2/78) 	PERB 	Decision 	No. 	74.)
20

1. 	Roy's 	August 	letter
As 	noted 	above, 	supra, 	at 	page 	8, 	on August 	6, 	1982, 	Roy
sent 	a 	letter 	to 	Jones 	confirming 	an 	understanding 	reached 	by
them 	on 	July 	28, 	1982. 	In 	that 	letter, 	and 	indeed 	throughout
the 	course 	of 	the 	formal 	hearing, 	Roy 	indicated 	that 	because
aides 	had 	already 	been 	notified 	regarding 	a 	reduction 	in 	hours
and 	because 	there 	was 	very 	little 	time 	to 	negotiate 	before 	the
beginning 	of 	the 	school 	year 	"the 	notice 	already 	sent 	to 	the
Aides 	would 	be 	allowed 	to 	stand 	pending 	the 	outcome 	of
negotiations." 	In 	Respondent's 	Post 	Hearing 	Brief 	the
following 	argument 	is 	set 	forth:
[T]he 	letter 	of August 	6, 	1982 	(Charging
Party 	Exhibit 	8) 	represents 	a 	clear 	and
unmistakable 	waiver 	by 	the 	Charging 	Party 	to
allow 	the 	reduction 	of 	hours 	as 	needed 	while
simultaneously 	negotiating 	in 	good 	faith.
The 	Respondent 	lived 	up 	to 	the 	verbal
agreement 	between 	the 	parties 	reflected 	in
that 	letter. 	The 	evidence 	presented 	by 	the
Charging Party 	was 	absent 	of 	proof 	that 	the
waiver 	letter 	did 	not 	apply 	to 	October 	13,
1982 	reductions.
The 	letter 	sent 	by 	Roy 	to Jones 	essentially 	speaks 	for
itself 	and 	the 	argument 	advanced 	by 	the 	Respondent 	for 	the
first 	time 	in 	its 	Post 	Hearing 	Brief 	is 	disingenuous. 	Roy's
letter 	references 	notices 	already 	set 	and 	cannot 	reasonably 	be
construed 	to 	embrace 	changes 	in 	hours 	for 	which 	notices 	were
sent 	more 	than 	two 	months 	later 	and 	which 	CSEA 	did 	not
contemplate. 	Moreover, 	the 	District 	presented 	no 	evidence 	that
it 	was 	acting 	in 	reliance 	upon 	CSEA's 	August 	6 	letter 	when 	it
effectuated 	the 	changes 	in 	hours 	on November 	15, 	1982. 	Based
21

upon 	the 	evidence 	submitted, 	it 	is 	concluded 	that 	the
Respondent's 	position 	is 	without 	merit 	and, 	accordingly, 	it 	is
rejected.
2. 	CSEA's 	Alleged 	Failure 	to 	Demand 	to Bargain
The 	Respondent 	takes 	the 	position 	that 	at 	no 	time 	did 	CSEA
demand 	a 	rescission 	of 	the 	notices 	proposing 	to 	change 	the
hours 	of 	aides 	which 	were 	sent 	on 	October 	13, 	1982. 	The
Respondent 	alleges 	that 	no 	demand 	was 	made 	to 	the 	board, 	to
Johnson, 	or 	to 	Superintendent 	Davis. 	With 	respect 	to 	the 	board
and 	Davis, 	there 	is 	no 	evidentiary 	dispute. 	Roy 	admits 	that
she 	made 	no 	demand 	to 	Davis, 	but 	testified 	that 	it 	would 	be
inappropriate 	to 	do 	so 	because 	her 	bargaining 	contacts 	were
with 	the 	Negotiation 	Center 	and 	Johnson. 	For 	similar 	reasons,
Roy 	had 	no 	contact 	with 	the 	Board 	of Education. 	Moreover,
Roy's 	failure 	to 	contact 	or 	complain 	to 	the 	board 	about 	the
proposed 	action 	can 	easily 	be 	explained 	by 	the 	fact 	that 	the
item 	was 	not 	placed 	on 	the 	board's 	agenda 	until 	several 	months
after 	the 	effective 	date 	of 	the 	personnel 	transactions
complained 	of 	in 	this 	proceeding.
An 	evidentiary 	dispute 	does 	exist 	with 	respect 	to 	the
question 	of 	whether 	CSEA made 	an 	effective 	demand 	to 	Johnson 	to
bargain 	about 	the 	decision 	to 	modify 	aide 	hours 	in 	October 	or
November 	of 	1982. 	Roy 	testified 	that 	she 	contacted 	Johnson
twice 	to 	inquire 	about 	the 	changes 	and 	that 	Johnson 	stated 	"she
would 	take 	care 	of 	it." 	Johnson, 	on 	the 	other 	hand, 	testified
that 	no 	such 	telephone 	conversations 	took 	place 	and 	that 	she
22

only 	learned 	of 	the 	changes 	during 	the 	course 	of 	the 	bargaining
session 	on November 	2, 	1982.
In 	a 	number 	of 	cases 	PERB 	has 	addressed 	the 	question 	of
whether 	a 	bargaining 	agent 	waives 	its 	right 	to 	bargain 	by
failing 	to 	make 	an 	appropriate 	demand. 	In 	Newman-Crows 	Landing
Unified 	School 	District 	(6/30/82) 	PERB 	Decision 	No. 	223, 	the
Board 	noted:
.. 	while 	it 	is 	not 	essential 	that 	a
request 	to 	negotiate 	be 	specific 	or 	made 	in
a 	particular 	form 	... 	it 	is 	important 	for
the 	Charging 	Party 	to 	have 	signified 	its
desire 	to 	negotiate 	to 	the 	employer 	by 	some
means. 	In Al 	Landers 	Dump Truck, 	Inc.
(1971) 	192 	NLRB 	207 	[77 	LRRM 	1729], 	the
Board 	said 	"[a] 	valid 	request 	to 	bargain
need 	not 	be 	made 	in 	a 	particular 	form, 	or 	in
haec 	verba, 	so 	long 	as 	the 	request 	clearly
indicates 	a 	desire 	to 	negotiate 	and 	bargain
on 	behalf 	of 	the 	employees 	in 	the
appropriate 	unit 	concerning 	wages, 	hours 	and
other 	terms 	and 	conditions 	of 	employment."
In 	other 	words, 	a 	valid 	request 	will 	be
found, 	regardless 	of 	its 	form 	or 	the 	words
used, 	if 	it 	adequately 	signifies 	a 	desire 	to
negotiate 	on 	a 	subject 	within 	the 	scope 	of
bargaining. 	(Id., 	at 	7-8.) 	(Citations
omitted.) 	--
In 	Newman-Crows 	Landing, 	the 	Board 	held 	that 	the 	Union 	had
made 	a 	demand 	to 	bargain 	about 	the 	decision 	to 	lay 	off
employees 	and 	not 	the 	effects 	of 	the 	layoffs 	on 	matters 	within
the 	scope 	of 	representation. 	Accordingly, 	the 	Board 	held 	that
no 	appropriate 	demand 	to 	negotiate 	had 	been 	made.
In 	Los 	Angeles 	Community 	College 	District 	(10/18/82) 	PERB
Decision 	No. 	the 	Board 	again 	considered 	the 	question 	of
whether 	or 	not 	the 	union 	waived 	its 	right 	to 	bargain 	by 	failing
23

to 	request 	negotiations. 	In 	that 	case, 	the 	employer 	alleged
that 	even 	though 	it 	had 	failed 	to 	formally 	notify 	the 	union 	of
its 	intended 	change, 	the 	union 	knew 	or 	should 	have 	known 	of 	the
employer's 	intentions. 	PERB 	held 	"that 	a 	union 	does 	not 	waive
its 	right 	to 	negotiate 	by 	failing 	to 	request 	negotiations 	where
it 	had 	no 	notice 	of 	the 	intended 	change 	before 	the 	decision 	had
been 	firmly 	made. 11 	(Id., 	at 	16-17.) 	Similarly, 	in Arvin 	Union
School 	District 	(3/30/83) 	PERB 	Decision 	No. 	300, 	the 	Board
considered 	the 	question 	of 	whether 	an 	employee 	organization 	had
a 	reasonable 	opportunity 	to 	negotiate 	before 	the 	school
district 	adopted 	a 	policy 	pertaining 	to 	discipline. 	In 	that
case, 	the 	union 	did 	not 	formally 	protest 	the 	adoption 	of 	the
disciplinary 	policy 	which 	had 	been 	adopted 	in August 	until 	the
following 	December. 	Even 	though 	PERB 	found 	that 	the 	union 	had
notice 	of 	the 	new 	disciplinary 	procedure 	sometime 	in August, 	it
nevertheless 	held 	that 	the 	union 	had 	not 	waived 	its 	right 	to
bargain 	because 	it 	did 	not 11 have 	a 	reasonable 	opportunity 	to
negotiate 	prior 	to 	the 	adoption 	of 	the 	policy." 	(Id., 	at 	11.)
In 	Delano 	Joint 	Union 	High 	School 	District 	(5/5/83) 	PERB
Decision 	No. 	307, 	the 	Board 	again 	considered 	the 	question 	of
whether 	the 	union's 	communications 	with 	the 	school 	district
constituted 	a 	proper 	request 	to 	negotiate 	the 	impact 	of 	the
district's 	decision 	to 	lay 	off 	employees. 	The 	first
communication 	was 	"a 	prioritized 	list 	of 	events 	that 	should
occur 	before 	dismissal 	of 	any 	teaching 	personnel 	or 	disruption
of 	any 	program." 	The 	Administrative 	Law 	Judge 	and 	the 	Board
24

found 	that 	that 	communication 	was 	political 	in 	nature 	or 	could
be 	characterized 	as 	a 	protest 	and 	did 	not 	constitute 	a 	demand
to 	bargain. 	The 	Board 	noted:
Our 	finding 	is 	consistent 	with 	the 	position
of 	the 	National 	Labor 	Relations 	Board, 	which
has 	long 	held 	that 	a 	union 	waives 	its 	right
to 	bargain 	where 	it 	merely 	"protests" 	an
employer's 	contemplated 	unilateral 	actions,
but 	makes 	no 	meaningful 	attempt 	to 	request
negotiations .•. 	As 	the 	NLRB 	stated 	in
Clarkwood 	Corp. 	(1977) 	233 	NLRB 	1172 	[97
LRRM 	1034] 	[233 	NLRB 	at 	1172]: 	"[a] 	union
which 	receives 	timely 	notice 	of 	a 	change 	in
conditions 	of 	employment 	must 	take 	advantage
of 	that 	notice 	if 	it 	is 	to 	preserve 	its
bargaining 	rights 	and 	not 	be 	content 	in
merely 	protesting 	an 	employer's 	contemplated
action. 	Such 	lack 	of 	diligence 	by 	a 	union
amounts 	to 	a 	waiver 	of 	its 	rights 	to
bargain 	.. 	" 	(Id., 	at 	8-9.) 	(Citations
omitted.) 	-
In 	Delano, 	PERB 	also 	found 	that 	the 	union's 	request 	to 	meet
with 	the 	school 	board 	and 	a 	meeting 	between 	the 	president 	of
the 	union 	and 	the 	superintendent 	wherein 	they 	discussed 	the 	day
negotiations 	would 	begin, 	did 	not 	constitute 	a 	demand 	to
bargain 	because 	no 	specific 	reference 	was 	made 	to 	the 	imminent
layoffs.
The 	circumstances 	surrounding 	the 	instant 	case 	are
analogous 	to 	Los 	Angeles 	Community 	College 	District 	described
above. 	CSEA 	found 	out 	about 	the 	changes 	after 	a 	decision 	had
been 	made. 	Thus, 	according 	to 	that 	authority, 	CSEA 	would 	not
have 	waived 	its 	right 	to 	bargain 	by 	failing 	to 	request
bargaining. 	Moreover, 	Roy 	testified 	that 	she 	demanded 	that 	the
District 	rescind 	the 	actions 	noticed 	on 	October 	13 	and
25

effective 	on 	November 	15. 	As 	previously 	noted, 	Johnson 	denies
that 	CSEA 	made 	a 	demand 	that 	the 	notices 	be 	rescinded. 	Unlike
the 	cases 	described 	above 	in 	this 	case, 	CSEA 	had 	previously
made 	a 	demand 	to 	negotiate 	the 	District's 	decision 	to 	reduce
hours 	and 	at 	the 	very 	time 	the 	District 	issued 	the 	October
notices 	the 	parties 	were 	in 	the 	process 	of 	negotiating 	the
District's 	obligations.
In 	addition, 	Johnson 	testified 	that 	during 	the 	bargaining
session 	on 	November 	2, 	1982, 	Esther 	Duncan 	complained 	about 	the
changes 	in 	hours 	and 	said 	that 	the 	District's 	actions 	were
unfair. 	If 	that 	statement 	is 	taken 	out 	of 	context, 	it 	might 	be
considered 	a 	mere 	protest 	and 	not 	a 	demand 	to 	negotiate 	as 	was
the 	case 	in 	Delano, 	supra. 	However, 	when 	viewed 	in 	its 	proper
context, 	it 	is 	difficult 	to 	conclude 	that 	a 	statement 	made
during 	the 	course 	of 	negotiations 	about 	the 	very 	matter 	being
protested 	did 	not 	constitute 	a 	demand 	to 	negotiate 	before
action 	was 	taken. 	Furthermore, 	the 	testimony 	is 	unrebutted
that 	on November 	15, 	1982, 	CSEA 	demanded 	that 	if 	the 	District
reduced 	the 	working 	hours 	of 	instructional 	aides, 	fringe
benefits 	would 	have 	to 	be 	continued. 	Since 	Santos 	and 	Nunez
were 	the 	only 	employees 	whose 	fringe 	benefits 	were 	impacted 	by
the 	District's 	actions, 	it 	is 	clear 	that 	CSEA 	was 	protesting
and 	bargaining 	not 	merely 	about 	the 	decision 	to 	reduce 	hours,
but 	about 	the 	impact 	of 	that 	decision 	upon 	the 	employees 	it
represented. 	In 	short, 	the 	District's 	argument 	that 	CSEA
failed 	to 	make 	an 	appropriate 	demand 	or 	failed 	to 	put 	the
26

District 	on 	notice 	that 	it 	was 	protesting 	and 	wanted 	to 	bargain
about 	the 	decision 	to 	change 	hours 	is 	rejected.
3. 	CSEA's 	Alleged 	Failure 	to 	Effectively Bargain
In 	its 	Post 	Hearing 	Brief, 	the 	Respondent 	argues 	as 	follows:
The 	Respondent 	will 	demonstrate 	that 	it 	took
every 	possible 	opportunity 	to 	negotiate 	a
reduction 	in 	hours 	agreement 	prior 	to 	taking
such 	action 	and 	that 	the 	Charging 	Party
failed 	to 	avail 	itself 	in 	a 	timely 	manner 	to
reach 	such 	an 	agreement.
Although 	the 	parties 	failed 	to 	bargain 	frequently 	and 	failed 	to
reach 	agreement, 	no 	evidence 	was 	introduced 	to 	support 	the
Respondent's 	position 	that 	CSEA 	alone 	bears 	the 	responsibility.
The 	Charging 	Party 	first 	learned 	of 	the 	Respondent's 	intent
to 	reduce 	aide 	hours 	for 	September 	1982 	sometime 	late 	in 	June
of 	1982. 	Despite 	the 	fact 	that 	both 	sides 	said 	that 	they 	were
interested 	in 	expediting 	bargaining 	on 	the 	issue 	of 	the
proposed 	reductions, 	the 	first 	meeting 	did 	not 	take 	place 	until
July 	28, 	1982, 	at 	which 	time 	meaningful 	negotiations 	could 	not
take 	place 	because 	the 	District 	disputed 	the 	fact 	that 	it 	had 	a
duty 	to 	bargain 	about 	the 	decision 	to 	reduce 	hours. 	The 	next
bargaining 	session 	did 	not 	take 	place 	until 	August 	25, 	1982.
That 	delay 	may 	be 	attributable 	to 	CSEA 	because 	several 	members
of 	its 	bargaining 	team 	were 	attending 	a 	statewide 	CSEA
convention.
Thereafter, 	however, 	there 	is 	no 	explanation 	for 	the 	long
delays 	in 	bargaining 	between 	the 	parties. 	Although 	the
District 	seems 	to 	argue 	that 	progress 	was 	not 	made 	because 	CSEA
27

combined 	reopener 	negotiations 	with 	negotiations 	regarding 	the
decision 	to 	reduce 	hours, 	even 	if 	that 	were 	relevant, 	that
argument 	or 	allegation 	is 	not 	supported 	by 	the 	record. 	Jones
testified 	that 	he 	considered 	the 	negotiations 	to 	be 	separate,
and 	agreement 	on 	one 	issue 	was 	not 	contingent 	upon 	agreement 	on
the 	other. 	Although 	Johnson 	may 	have 	had 	a 	different
perception 	of 	CSEA's 	position, 	there 	is 	no 	evidence 	that 	CSEA
insisted 	that 	the 	issues 	be 	combined. 	In 	fact, 	Roy 	credibly
testified 	that 	the 	only 	reason 	she 	combined 	or 	scheduled
sessions 	on 	both 	issues 	on 	the 	same 	dates 	was 	because 	Johnson
herself 	had 	insisted 	on 	that 	practice 	in 	other 	school 	districts.
It 	should 	also 	be 	noted 	that 	CSEA 	was 	not 	contesting 	or
seeking 	to 	set 	aside 	the 	reductions 	which 	took 	place 	in
September 	and 	therefore 	did 	not 	know 	that 	it 	was 	under 	the
serious 	time 	constraints 	perceived 	by 	the 	District. 	Although
the 	District 	contemplated 	changing 	hours 	for 	several 	weeks
before 	the 	notices 	went 	out 	in 	October 	1982, 	CSEA 	had 	no 	notice
of 	that 	fact. 	Thus, 	since 	CSEA 	did 	not 	anticipate 	a 	change 	in
the 	status 	quo, 	it 	would 	have 	no 	reason 	to 	deem 	it 	necessary 	to
expedite 	negotiations.
Moreover, 	whether 	or 	not 	we 	accept 	Roy's 	version 	or
Johnson's 	version 	of 	the 	contacts 	they 	had 	after 	the 	October
13, 	1982, 	notices 	were 	sent, 	CSEA 	did 	not 	sit 	on 	its 	rights.
Even 	according 	to 	Johnson, 	the 	issue 	was 	raised 	on 	November 	2,
and 	again 	on 	November 	15. 	Accordingly, 	CSEA 	did 	move 	rapidly
28

to 	try 	to 	resolve 	the 	issue 	complained 	of 	herein. 	Finally,
although 	the 	District 	accuses 	CSEA 	of 	being 	dilatory, 	the
testimony 	of 	the 	District 	is 	unrebutted 	that 	its 	first 	written
counterproposal 	was 	presented 	on November 	15, 	1982.
Accordingly, 	since 	there 	is 	no 	evidence 	to 	support 	the
District's 	allegation 	that 	CSEA 	failed 	to 	properly 	exercise 	its
right 	to 	bargain 	about 	the 	decision 	to 	reduce 	hours, 	the 	waiver
defense 	of 	the 	District 	is 	rejected.
C. 	The Business 	Neccessity 	Defense
The 	District 	argues 	that 	fiscal 	constraints 	and 	program
guarantees 	necessitated 	the 	changes 	in 	hours 	which 	were 	made
effective 	on November 	15, 	1982. 	More 	specifically, 	the
District 	contends 	that 	it 	was 	precluded 	by 	the 	equivalence 	and
comparability 	requirements 	of SIP 	and 	Chapter 	1, 	as 	well 	as 	the
procedural 	restrictions 	imposed 	through 	the 	site 	council, 	from
maintaining 	Nunez 	and 	Santos 	at 	their 	previous 	levels 	of 	five
and 	one-half 	hours.
The 	District 	claims 	that 	it 	reviewed 	and 	rejected 	various
alternatives 	to 	the 	reduction 	in 	hours 	of 	Nunez 	and 	Santos,
including 	laying 	off 	other 	aides, 	maintaining 	the 	status 	quo
until 	funding 	ran 	out 	and 	then 	laying 	off, 	distributing 	the
aides' 	additional 	hours 	equally 	amongst 	the 	teachers, 	and 	using
general 	fund 	dollars 	to 	maintain 	the 	additional 	hours. 	The
District 	argues 	that 	the 	decision 	to 	reduce 	hours 	was 	not
capriciously 	made, 	that 	it 	took 	weeks 	before 	the 	school 	site
29

council 	and 	the 	school 	staff 	at 	El 	Rancho 	School 	could 	make 	the
determination 	that 	an 	equalization 	in 	hours 	was 	the 	only
possible 	course 	of 	action.
Regardless 	of 	the 	District's 	position 	on 	the 	requirements
of 	the 	categorical 	funding 	programs, 	its 	financial 	limitations,
and 	the 	alleged 	absence 	of 	palatable 	alternatives, 	the
District's 	business 	necessity 	defense 	does 	not 	justify 	its
unilateral 	changes 	in 	hours. 	In 	San 	Mateo 	County 	Community
College 	District, 	(6/8/79) 	PERB 	Decision 	No. 	94, 	the 	District
had 	argued 	that 	its 	adoption 	of 	new 	policies 	on 	wages 	and 	other
terms 	of 	employment 	was 	compelled 	by 	the 	business 	and 	legal
necessity 	created 	by 	the 	passage 	of Proposition 	13. 	The
District 	claimed 	that 	it 	was 	required 	to 	take 	prompt 	cost
reduction 	measures 	in 	response 	to 	information 	it 	was 	receiving
about 	anticipated 	revenues 	for 	the 	coming 	year 	because 	Article
XIII, 	Section 	40 	of 	the 	California 	Constitution 	prohibits
public 	agency 	operations 	on 	a 	deficit 	budget. 	The 	Board 	held,
however, 	that 	the 	need 	for 	a 	balanced 	budget 	and 	debt
limitation 	is 	only 	a 	general 	directive 	and 	may 	not 	be 	asserted
to 	avoid 	a 	mandatory 	obligation 	imposed 	by 	law.
In 	its 	discussion, 	the 	Board 	pointed 	out 	that 	one 	reason
peculiar 	to 	the 	public 	sector 	that 	unilateral 	changes 	are
disfavored 	is 	that 	"when 	carried 	out 	in 	the 	context 	of
declining 	revenues, 	an 	employer's 	unilateral 	actions 	may 	also
unfairly 	shift 	community 	and 	political 	pressure 	to 	employees
30

and 	their 	organizations, 	and 	at 	the 	same 	time 	reduce 	the
employer's 	accountability 	to 	the 	public."
The Board 	was 	again 	faced 	with 	a 	business 	necessity 	defense
in 	light 	of 	the 	passage 	of Proposition 	13 	in 	San Francisco
Community 	College 	District 	(10/12/79) 	PERB _Decision 	No. 	105.
There 	the 	District 	argued 	that 	its 	cancellation 	of 	summer
school, 	deferral 	of 	all 	sabbatical 	leaves, 	and 	passage 	of
resolutions 	freezing 	certificated 	salaries 	and 	yearly 	and
career 	increments 	was 	in 	response 	to 	the 	emergency 	created 	by
the 	initiative. 	The Board 	did 	not 	accept 	the 	District's
defense, 	holding:
Even 	when 	a 	District 	is 	in 	fact 	confronted
by 	an 	economic 	reversal 	of 	unknown
proportions, 	it 	may 	not 	take 	unilateral
action 	on 	matters 	within 	the 	scope 	of
representation, 	but 	must 	bring 	its 	concerns
about 	these 	matters 	to 	the 	negotiating
table. 	An 	employer 	is 	under 	no 	obligation
at 	any 	time 	to 	reach 	agreement 	with 	the
exclusive 	representative. 	The 	duty 	imposed
by 	the 	statute 	is 	simply--but
unconditionally--the 	duty 	to 	meet 	and
negotiate 	in 	good 	faith 	on 	matters 	within
the 	scope 	of 	representation. 	(Id., 	at
10-11.) 	-
The 	Board 	cited 	to 	the 	above 	holding 	in Sutter 	Union 	High
School 	District 	(10/7/81) 	PERB 	Decision 	No. 	175, 	finding 	that
the 	district's 	assertion 	of 	business 	necessity 	is 	a 	position
for 	the 	negotiating 	table 	rather 	than 	an 	excuse 	for 	refusing 	to
negotiate. 	In 	Sutter 	the 	district 	had 	defended 	its 	imposition
of 	a 	sixth 	period 	on 	the 	basis 	that 	it 	was 	obligated 	to 	do 	so
by 	the 	minimum 	requirements 	of 	the 	Education 	Code, 	the
31

admission 	requirements 	of 	the 	University 	of 	California, 	and 	its
own 	self-imposed 	requirements. 	The 	Board 	particularly
criticized 	the 	district's 	failure 	to 	negotiate 	in 	light 	of
advance 	knowledge 	that 	changes 	would 	be 	made. 	It 	stated:
A school 	board 	which 	knows 	it 	must make 	a
decision 	that 	will 	have 	impact 	on 	employee
working 	conditions 	cannot 	sit 	back 	until 	the
eleventh 	hour, 	make 	a 	unilateral 	decision
and 	then 	plead 	business 	necessity 	as 	a
defense. 	(Id., 	at 	7.)
The 	facts 	represented 	by 	the 	District 	in 	the 	present 	case
fail 	to 	demonstrate 	that 	the 	emergency 	nature 	of 	the 	reduction
in 	hours 	of Nunez 	and 	Santos 	precluded 	the 	possibility 	of
negotiations. 	The 	District 	states 	in 	its 	brief 	that 	it 	became
aware 	of 	its 	fiscal 	and 	program 	restraints 	as 	early 	as 	spring
1982 	and 	testimony 	by Anders 	would 	seem 	to 	confirm 	this.
Clearly, 	the 	District 	had 	found 	the 	time 	to 	take 	the 	question
of 	reducing 	the 	aides' 	hours 	before 	the 	site 	council 	and 	the
staff, 	which 	pondered 	the 	question 	of 	what 	to 	do 	for 	a 	period
of 	weeks. 	The Board's 	criticism 	in 	Sutter, 	supra, 	should 	apply
here 	where 	the 	District 	had 	adequate 	time 	and 	knowledge 	to
negotiate 	the 	decision 	to 	reduce 	hours 	of 	Nunez 	and 	Santos.
Also, 	it 	is 	not 	necessary 	to 	reach 	a 	decision 	as 	to 	whether
the 	District 	was 	legitimately 	limited 	by 	program 	and 	fiscal
limitations 	posed 	by 	categorical 	funding 	programs, 	its
financial 	situation, 	or 	the 	administrative 	policies 	it 	adheres
to. 	PERB 	has 	clearly 	held 	that 	business 	necessity 	is 	a
position 	for 	the 	bargaining 	table 	and 	does 	not 	create 	the 	right
32

to 	make 	unilateral 	changes 	involving 	subjects 	within 	the 	scope
of 	representation. 	As 	demonstrated 	in San 	Mateo, 	supra, 	the
Board 	has 	a 	particular 	concern 	that 	the 	District 	use 	the
negotiating 	process 	and 	not 	public 	pressure 	as 	the 	tool 	for
determining 	the 	allocation 	of 	understandably 	scarce 	economic
resources. 	As 	was 	pointed 	out 	in 	San 	Francisco, 	supra, 	the
District 	need 	not 	reach 	agreement 	with 	the 	CSEA, 	but 	it 	must
negotiate 	those 	matters 	within 	scope 	regardless 	of 	whether 	it
believes 	that 	its 	actions 	were 	mandated. 	If 	indeed 	there 	were
no 	other 	alternatives 	available 	to 	the 	District, 	then 	that 	is 	a
conclusion 	to 	be 	reached 	at 	the 	bargaining 	table.
V. 	CONCLUSION
Based 	upon 	the 	foregoing, 	it 	is 	found 	that 	the 	District
violated 	section 	3543.S(c) 	in 	failing 	to 	give 	CSEA 	a 	meaningful
opportunity 	to 	meet 	and 	negoitate 	regarding 	the 	decision 	to
change 	the 	hours 	of 	work 	for 	instructional 	aides 	in 	November
1982. 	In 	taking 	action 	in 	violation 	of 	section 	3543.S(c), 	the
District 	concurrently 	violated 	sections 	3543.S(a) 	and 	(b). 	San
Francisco 	Community 	College 	District 	(10/12/79) 	PERB 	Decision
No. 	105.
VI. 	REMEDY
In 	a 	unilateral 	change 	case, 	it 	is 	appropriate 	to 	order 	the
employer 	to 	restore 	the 	status 	quo 	ante. 	In 	the 	instant 	case,
the 	Charging 	Party 	primarily 	complains 	about 	the 	decrease 	in
hours 	for 	Nunez 	and 	Santos 	and 	undoubtedly 	would 	find 	it
preferable 	for 	an 	order 	to 	issue 	which 	simply 	restored 	the
33

hours 	to 	those 	two 	employees. 	However, 	based 	upon 	the
rationale 	set 	forth 	by 	the 	Board 	in Alum 	Rock 	Union Elementary
School 	District 	(6/27/83) 	PERB 	Decision 	No. 	322, 	I 	find 	that 	a
partial 	restoration 	of 	the 	status 	quo 	would 	not 	be 	equitable
and 	would 	not 	restore 	the 	parties 	to 	the 	positions 	they 	held
prior 	to 	the 	unlawful 	unilateral 	action. 	Moreover, 	given 	the
passage 	of 	time, 	it 	is 	unclear 	whether 	the 	position 	of 	the
parties 	has 	changed 	such 	that 	even 	complete 	restoration 	of 	the
status 	quo 	would 	be 	desirable 	or 	feasible.
In 	balancing 	the 	interests 	of 	the 	parties 	I 	find 	that 	the
best 	remedy 	is 	that 	which 	puts 	the 	parties 	in 	a 	position 	to.
ensure 	that 	meaningful 	bargaining 	will 	take 	place 	and 	also
makes 	whole 	those 	employees 	who 	suffered 	an 	economic 	loss 	as 	a
result 	of 	the 	District's 	actions. 	Accordingly, 	unless 	the
parties 	reach 	a 	contrary 	agreement, 	the 	two 	employees 	whose
hours 	were 	reduced 	should 	be 	made 	whole 	for 	any 	loss 	of
economic 	benefits 	suffered 	as 	a 	result 	of 	the 	District's
reduction 	in 	hours, 	with 	interest 	at 	the 	rate 	of 	7 	percent 	per
annum 	from 	the 	date 	of 	the 	unilateral 	change 	(November 	15,
1982) 	until 	the 	occurrence 	of 	the 	earliest 	of 	the 	following
conditions:
(1) 	the 	date 	the 	District 	and 	CSEA 	reach 	agreement;
(2) 	completion 	of 	the 	statutory 	impasse 	procedures;
(3) 	the 	failure 	of 	CSEA 	to 	request 	bargaining 	within 	10
days 	following 	service 	of 	this 	decision; 	or
34

(4) 	the 	subsequent 	failure 	of 	CSEA 	to 	bargain 	in 	good
faith.
It 	is 	also 	appropriate 	to 	order 	the 	District 	to 	cease 	and
desist 	from 	refusing 	to 	bargain 	with 	CSEA 	regarding 	any
decision 	to 	change 	the 	hours 	of 	work 	of 	employees.
Additionally, 	the 	District 	will 	be 	required 	to 	post 	a 	notice
incorporating 	the 	terms 	of 	the 	order. 	The 	notice 	should 	be
subscribed 	by 	an 	authorized 	agent 	of 	the 	District 	indicating
that 	it 	will 	comply 	with 	the 	terms 	thereof. 	The 	notice 	shall
not 	be 	reduced 	in 	size, 	defaced, 	altered 	or 	covered 	by 	any
material. 	Posting 	such 	notice 	will 	inform 	employees 	that 	the
District 	has 	acted 	in 	an 	unlawful 	manner 	and 	is 	being 	required
to 	cease 	and 	desist 	from 	this 	activity. 	It 	effectuates 	the
purposes 	of 	the 	EERA 	that 	employees 	be 	informed 	of 	the
resolution 	of 	the 	controversy 	and 	will 	announce 	the 	District's
readiness 	to 	comply 	with 	the 	ordered 	remedy. 	(See 	Placerville
Union 	School 	District 	(9/18/78) 	PERB 	Decision 	No. 	69.) 	In
Pandol 	and 	Sons 	v. 	ALRB 	and 	UFW 	(1979) 	98 	Cal.App.3d 	580, 	589,
the 	California 	District 	Court 	of 	Appeal 	approved 	a 	posting
requirement. 	The 	U.S. 	Supreme 	Court 	approved 	a 	similar 	posting
requirement 	in NLRB 	v. 	Express 	Publishing 	Co. 	(1941) 	312 	U.S.
426 	[8 	LRRM 	415].
PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	this 	case, 	and 	pursuant 	to 	California
Government 	Code 	Section 	3541.S(c), 	it 	is 	hereby 	ordered 	that
35

the 	Pleasant Valley 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 	of 	its 	classified 	employess
by 	taking 	unilateral 	action 	on 	matters 	within 	the 	scope 	of
representation, 	as 	defined 	in 	section 	3543.2 	specifically 	with
reference 	to 	the 	decision 	to 	change 	the 	hours 	of 	work 	of
employees.
2. 	Denying 	the 	California 	School Employees 	and 	its 	Chapter
#504 	their 	right 	to 	represent 	unit 	members 	by 	failing 	and
refusing 	to 	meet 	and 	negotiate 	about 	matters 	within 	the 	scope
of 	representation.
3. 	Interfering 	with 	employees 	because 	of 	the 	exercise 	of
their 	right 	to 	select 	an 	exclusive 	representative 	to 	meet 	and
negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
changing 	matters 	within 	the 	scope 	of 	representation 	without
first 	providing 	notice 	and 	the 	opportunity 	to 	meet 	and
negotiate 	with 	the 	exclusive 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTION 	DESIGNED TO
EFFECTUATE 	THE 	PURPOSES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT!
1. 	Unless 	the 	parties 	reach 	a 	contrary 	agreement, 	the 	two
employees 	whose 	hours 	were 	reduced 	should 	be 	made 	whole 	for 	any
loss 	of 	economic 	benefits 	suffered 	as 	a 	result 	of 	the
District's 	reduction 	in 	hours, 	with 	interest 	at 	the 	rate 	of 	7
percent 	per 	annum 	from 	the 	date 	of 	the 	unilateal 	change
36

(November 	15, 	1982) 	until 	the 	occurrence 	of 	the 	earliest 	of 	the
following 	conditions:
(a) 	the 	date 	the 	District 	and 	CSEA 	reach 	agreement;
(b) 	completion 	of 	the 	statutory 	impasse 	procedures;
(c) 	the 	failure 	of 	CSEA 	to 	request 	bargaining 	within
10 	days 	following 	service 	of 	this 	decision; 	or
(d) 	the 	subsequent 	failure 	of 	CSEA 	to 	bargain 	in 	good
faith.
2. 	Within 	five 	(5) 	days 	after 	this 	decision 	becomes
final, 	prepare 	and 	post 	copies 	of 	the 	NOTICE 	TO 	EMPLOYEES
attached 	as 	an 	appendix 	hereto, 	for 	at 	leat 	30 	consecutive
working 	days 	at 	its 	headquarters 	office 	and 	in 	conspicuous
places 	at 	the 	locations 	where 	notices 	to 	classified 	employees
are 	customarily 	posted. 	The 	Notice 	shall 	be 	taken 	to 	see 	that
it 	is 	not 	defaced, 	altered 	or 	covered 	by 	any 	material.
3. 	Within 	20 	working 	days 	from 	service 	of 	the 	final
decision 	herein, 	given 	written 	notification 	to 	the 	Los 	Angeles
Regional 	Director 	of 	the 	Public Employment 	Relations 	Board 	of
the 	actions 	taken 	to 	comply 	with 	this 	order. 	Continue 	to
report 	in 	writing 	to 	the 	Regional 	Director 	thereafter 	as
directed. 	All 	reports 	to 	the 	Regional 	Director 	shall 	be
concurrently 	served 	on 	the 	Charging 	Party 	herein.
Pursuant 	to 	the 	California Administrative 	Code, 	title 	8,
part 	III, 	section 	32305, 	this 	Proposed 	Decision 	and 	Order 	shall
become 	final 	on 	February 	14, 	1984, 	unless 	a 	party 	files 	a
37

timely 	statement 	of 	exceptions. 	(See 	California Administrative
Code, 	title 	8, 	part 	III, 	section 	32300.) 	Such 	statement 	of
exceptions 	and 	supporting 	brief 	must 	be 	actually 	received 	by
the 	Public Employment 	Relations 	Board 	itself 	at 	the
headquarters 	office 	in 	Sacramento 	before 	the 	close 	of 	business
(5:00 	p.m.) 	on February 	14, 	1984, 	or 	sent 	by 	telegraph 	or
certified 	United 	States 	Mail, 	postmarked 	no 	later 	than 	the 	last
day 	for 	filing 	in 	order 	to 	be 	timely 	filed. 	(See 	California
Administrative 	Code, 	title 	8, 	part 	III, 	section 	32135.) 	Any
statement 	of 	exceptions 	and 	supporting 	brief 	must 	be 	served
concurrently 	with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	(See 	California Administrative 	Code, 	title 	8, 	part
III, 	sections 	32300 	and 	32305.)
DATED: 	January 	25, 	1984
38
Barbara 	E. 	Miller
Administrative Law Judge

APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY 	NOTICE 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An 	Agency 	of 	the 	State 	of 	California
After 	a 	hBaring 	in 	Unfair 	Practice 	case 	No. 	LA-CE-1706,
California 	School 	Employees 	Association 	and 	its 	Chapter 	#540 	v.
Pleasant 	Valley 	School 	District, 	in 	which 	all 	parties 	had 	the
right 	to 	participate, 	it 	has 	been 	found 	that 	the 	Pleasant
Valley 	School 	District 	violated 	Government 	Code 	section
3543.S(a), 	(b), 	and 	(c) 	by 	taking 	action 	to 	modify 	the 	hours 	of
employees 	in 	November 	1982 	before 	completing 	the 	meet 	and
negotiation 	process 	with 	CSEA.
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 	California 	School 	Employees 	Association 	and 	its
Pleasant 	Valley 	Chapter 	#504 	as 	the 	exclusive 	representative 	of
its 	classified 	employees 	by 	taking 	unilateral 	action 	on 	matters
within 	the 	scope 	of 	representation, 	as 	defined 	in 	section
3543.2, 	specifically 	with 	reference 	to 	the 	decision 	to 	change
the 	hours 	of 	work 	of 	employees.
2. 	By 	the 	same 	conduct, 	denying 	to 	the 	California 	School
Employees 	Association 	and 	its 	Pleasant 	Valley 	Chapter 	#504
rights 	guaranteed 	by 	the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to 	represent 	unit 	members.
3. 	By 	the 	same 	conduct, 	interfering 	with 	employees 	in 	the
exercise 	of 	rights 	guaranteed 	by 	the 	Educational 	Employment
Relations 	Act, 	including 	the 	right 	to 	be 	represented 	by 	their
chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
1. 	Upon 	request 	of 	CSEA, 	meet 	and 	negotiate 	with 	CSEA 	over
the 	decision 	and 	the 	effects 	thereof 	of 	the 	change 	in 	hours 	of
the 	aides.
2. 	Unless 	the 	parties 	reach 	a 	contrary 	agreement, 	the 	two
employees 	whose 	hours 	were 	reduced 	should 	be 	made 	whole 	for 	any
loss 	of 	economic 	benefits 	suffered 	as 	a 	result 	of 	the

District's 	reduction 	in 	hours, 	with 	interest 	at 	the 	rate 	of 	10
percent 	per 	annum 	from 	the 	date 	of 	the 	unilateral 	change
(November 	15, 	1982) 	until 	the 	occurrence 	of 	the 	earliest 	of 	the
following 	conditions:
(a) 	the 	date 	the 	District 	and 	CSEA 	reach 	agreement;
(b) 	completion 	of 	the 	statutory 	impasse 	procedures;
(c) 	the 	failure 	of 	CSEA 	to 	request 	bargaining 	within 	10
days 	following 	service 	of 	this 	Decision; 	or
(d) 	the 	subsequent 	failure 	of 	CSEA 	to 	bargain 	in 	good
faith;
(e) 	the 	point 	at 	which 	the 	parties 	have 	previously
reached 	agreement 	or 	negotiated 	through 	the 	statutory
impasse 	proceedings 	concerning 	the 	unilateral 	change 	in
hours.
DATED: 	PLEASANT 	VALLEY 	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.
2