PERB Decision No. 0557E•Nevada Joint Union High School District (PERB 0557E)
Nevada Joint Union High School District (PERB 0557E)
PERB Decision No. 0557ECalperb31 déc. 1985
Texte intégral
STATE OF CALIFORNIA DECISION OF THE PUBLIC EMPLOYMENT RELATIONS BOARD CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION AND ITS NEVADA UNION CHAPTER NO. 165, Charging Party, v. NEVADA JOINT UNION HIGH SCHOOL DISTRICT, Respondent. ) ) ) ) ) ) ). ) ) ) ) ) _____________________ ) Case No. S-CE-566 PERB Decision No. 557 December 31, 1985 Appearances: Christopher E. Niehaus, Field Representative for California School Employees Association and its Nevada Union Chapter No. 165; Finkle & Stroup by Robert W. Stroup, Leith B. Hansen and Mary Beth de Goede for Nevada Joint Union. High School District. Before Morgenstern, Burt and Porter, Members. DECISION BURT, Member: This case comes before the Public Employment Relations Board (PERB or Board) on exceptions filed by the Nevada Joint Union High School District (District) to the 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) 1 .by its failure 1EERA is codified at Government Code section 3540 et seq. All statutory references herein are to the Government Code unless otherwise noted. Section 3543.5 provides in pertinent part:
to
negotiate
in
good
faith
over
a
change
in
the
method
of
calculating
monthly
salary
payments.
The
California
School
Employees
Association
and
its
Nevada
Union
Chapter
No.
165
{CSEA
or Association)
except
to the
remedy
proposed
by
the
ALJ.
FACTS
The
parties
here
were
covered
by
a
collective
bargaining
agreement
incorporating
successor
agreements
between
1979
and
June 1982.
Each
year, the
parties
negotiated
salary rates
which were
then
translated
into
monthly
and
hourly
rates in
a
salary
schedule incorporated into
the
agreement.
The
same
rates
applied
whether
employees were 12-month employees
or
less
than
12-month (9,
10
or
11-month) employees.
However.
because
the
pay
rates
did not take
into
account the
variations in
days
worked
per
month
for less-than-12-month
employees,
the
result
was
a
discrepancy
between
the
monthly
and
hourly
rates
for
less-than-12-month
employees. In
other
words,
those
employees
It
shall
be
unlawful
for
a
public
schoolemployer
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 coerceemployees because of
their exercise
of
rights
guaranteed
by
this chapter.
(b)
Deny
to
employee
organizations rightsguaranteed to
them by
this chapter.
(c) Refuse or
fail
to
meet and
negotiate in
good
faith with an exclusive representative.
2actually received a higher salary when calculated monthly than they would have if calculated strictly on an hourly basis. 2 The agreement also provided for paid vacation days for employees, and the monthly salary rate included•pay for these days. Twelve-month employees could take vacation at any time. However, less-than-12-month employees were required to take vacation time on days when school wa~ not in session during the year, during Christmas recess, for example, or have their monthly salary docked accordingly. Any remaining vacation pay was disbursed in a lump sum at the end of the year. As noted by the ALJ, the District explained that it: ... used the vacation deduction procedure as a means to offset its 11 alleged 11 overpayment of less than 12-month employeesdue to the hourly/monthly rate error. In June 1982, June Weatherly, a 10-month employee who was CSEA president, concluded that the District's payment practice was in error, since she believed that she should be paid for vacation days in addition to her monthly salary. Weatherly used a work sheet to demonstrate her actual salary in comparison to the calculated amount she believed to be correct. The following calculations 3 are useful in interpreting her contentions: 2 For example, using a monthly basis, a less-than-12-monthemployee gets paid at the same rate for February as for January. computed on an hourly basis, the February salary would be less. 3The numbers are rounded off. 3
1. Weatherly's actual 1981-82 pay at the ''monthly" rate excluding vacation pay - ($1146 a month x 10 months= $11,460). 2. Weatherly's contention (vacation at the hourly rate of pay was in addition to monthly salary) - ($52.88 a day x 12.5 days= $661. $11,460 + 661 = $12,121). 3. The District's contention (monthly rate plus excess vacation payable at the end of year after 10 nonworking days deducted) - $11,460 +.$132 ($52.88 a day x 2.5 days= $132.) = $11,592. As noted above at point 2, Weatherly originally sought her monthly salary plus vacation pay calculated on an hourly basis. As a compromise, however, she proposed that her salary be increased to reflect the difference between what she was actually paid, her monthly rate with no vacation pay, and what she would have received if her pay had been calculated as follows: Computation of annual wage based on hourly wage rate plus total vacation days earned - ($6.61 an hour x a hours x 209 workdays= $11,051 + $661 (12.S vacation days) = $11,713. The difference between weatherly's first proposal and her compromise position amounted to $253. She also proposed that the salary of other employees be calculated accordingly. Weatherly approached the administration of the District with her calculations. She met with Ty Blount, assistant superintendent, Irene Roath, bookkeeper, and Ruth Watson, CSEA representative. The parties agreed to the settlement as proposed, that is, an annual wage based on an hourly rate plus an hourly rate for 12.5 vacation days. Weatherly and Watson 4
met later in June to calculate the additional payment for all less-than-12-month employees. Although the parties• agreement expired on June 30, 1982, there were no negotiations during the summer because the District was uncertain as to the amount of State funding it would receive. Beginning with the July and August 1982 pay periods. less-than-12-month employees received monthly checks in a lesser amount than the previous year. For example, Weatherly 1 s monthly check was reduced from $1,146 to $1,105. The explanation for the reduction was that the District had begun to calculate monthly salaries using the same hourly rate as was used to settle the vacation question in June. The lower monthly checks were to be offset by a lump sum at the end of the year compensating employees for any unused vacation. In the District•s view, it was discontinuing its practice of "fronting•• vacation pay via the monthly salary and, instead, went to a system by which vacation pay was given entirely in a lump sum at the end of the year. In total, weatherly 1 s yearly compensation was exactly the same in 1982-83 as it was in 1981-82 once the settlement for vacation was credited. No one disputes that there was a change in the method of computing and paying salary. The basic contention by the District is that the change was a negotiated one, made with the agreement of the Association. The Association claims that its 5
agreement went only so far as resolving vacation pay and did not signify its agreement to the hourly computation of monthly pay as was adopted by the District. Blount testified that the outcome of the June meeting and the agreement to recalculate vacation pay also constituted an agreement by CSEA to calculate monthly salaries on an hourly. basis. Weatherly testified that she believed that the subsequent meetings with District Bookkeepers Roath and Watson were only intended to ~esolve the vacation issue and did not constitute agreement to recalculate salaries overall. Roath did not testify. Blount gave hearsay testimony that Roath told him that she explained the full effects of changing to an hourly basis -- including a reduced monthly paycheck -- to Weatherly. 4 Blount testified that he and Weatherly met informally later in June when settlement paychecks were being prepared, and that he expressed concern at that time about the effect of the reduced monthly paychecks. He testified that Weatherly told him she would explain to employees that their checks would be smaller, but that they would receive the same amount overall. Weatherly denied saying that she would explain lower monthly 4The District introduced a document which purported to be Roath's account of these transactions. It was not prepared as an affidavit or deposition, and the ALJ considered it hearsay, to which he accorded no weight. To the extent it was corroborated by Blount's testimony, he discounted it because he considered the testimony suspect. 6
paychecks, claiming that she did not know the amount would be lower. She testified that she did agree to explain to members that the calculations used to recompute the 1981-82 paychecks would be used again in 1982-83. There was vague and inconclusive testimony about a summer meeting where Weatherly allegedly agreed to a separate salary schedule for less-than-12-month employees on an hourly basis. Roath 1 s discounted documents included unsigned. undated notes of a negotiation session between Weatherly and the superintendent. Blount testified that Roath showed him these notes, claiming that she had informed CSEA of the changes to be made. Weatherly denied that there were negotiations in the summer regarding wages, and denied agreeing to the use of an hourly wage for the future. Blount testified that he and Weatherly met briefly after school began and he inquired if she had explained the changes in paychecks to the other employees so that they would not question him. He testified that, after employees began receiving lower paychecks, Weatherly, Watson, and another CSEA representative met with Blount to inquire how the checks were being calculated. He told them to "go do their homework." They then went back to study the pay calculations. Weatherly testified that James Ross, the District accountant, called her to his office between September and early November 1982 to discuss the salary schedule. He showed 7
her schedule A, showing both hourly and monthly rates as in the past, and schedule B showing the hourly rates for less-than-12-month employees. He asked her if she would accept only the hourly schedule and she replied 11 no. 11 Weatherly testified that the first time she had seen the separate schedule for less-than-12-month employees was at that meeting. Wtth regard to the same events, Ross testified that he met with Weatherly and Watson in late November to discuss whether schedules A and B were sufficient, or whether additional schedules were necessary. He testified that Watson agreed that only the hourly B schedule was necessary for less-than-12-month employees. Around the same time, Weatherly indicated that publication of the schedule should not be held up or tied to the continuing dispute about vacation pay. Ross forwarded a memo to Blount on November 18 confirming CSEA's request to publish the schedule with no monthly figures listed for less-than-12-month employees. Weatherly never saw the memo. Watson did not testify. As noted by the ALJ, the record is unc~ear as to whether Ross and Weatherly were describing the same meeting, although the ALJ specifically credited Ross' account. Employee Contracts In the past, employees were requested to sign annual contracts which included salary rate, days to be worked and vacation days. Before 1982-83, these contracts reflected the 8
average monthly salary rate for less-than-12-month employees. In 1982-83, the contracts reflected the hourly wage rate from schedule B rather than the monthly rate. Weatherly signed her contract on October 29. although she stated her disagreement with the payment method. Flores' Grievance On January 10, Blount, Weatherly, and Ross met to discuss the grievance of Kay Flores .. Flores had been erroneously overpaid and the District was seeking to recover the overpayment. The parties agreed to use the hourly wage rate to recompute the wages earned. Weatherly testified that she agreed to this method of settling the grievance since: • They were already computing at that time all the classified 9, 10, and 11 month payment on an hourly basis instead of a monthly basis. I had absolutely no expectation from the District that they would make an exception in this employee's case and put her back on the correct, what I perceived as. the correct monthly adjustment. No CSEA representative requested to negotiate the change after employees began receiving reduced paychecks. Weatherly indicated that the Association had spent time trying to understand why the paychecks were lower and had expressed its concern to the District about the way salaries were being computed. DISCUSSION In order to establish a prima facie case of an unlawful unilateral change, the Association must establish that there 9
was indeed a change in established policy which was made without its agreement. Grant Joint Union High School District (1982) PERE Decision No. 196, Pajaro Valley Unified School District (1978) PERB Decision No. 51. It is uncontested that the District departed from its practice of using a monthly payment schedule. The question before us here is whether Weatherly's agreement regarding the vacation pay dispute encompassed an agree~ent to thereafter compute salary on an hourly basis. The District claims it agreed to a "package" in discussions with Weatherly: an added amount to cover vacation pay, with the corollary reduction in monthly pay. The Association claims that it agreed only to the lump-sum payment and not the quid pro quo. The Association conceded that discussions about the vacation issue were instigated by Weatherly on behalf of the Association. using a worksheet which analyzed salary on an hourly basis. From that discussion flowed further meetings by which back pay was calculated for other similarly situated employees. Many of the individuals involved in these meetings (e.g .• Watson for the Association and Roath for the District) did not testify. The document which purports to give Roath's version of the disputed events is pure hearsay. The testimony of Weatherly and Blount is in substantial conflict over many of the particulars involving the negotiation. Blount•s testimony was largely hearsay and consisted of events which he understood to have taken place, although he 10
testified directly that he and weatherly discussed the lower paychecks to come on at least one occasion in June. Weatherly, on the other hand. was present at all of the discussions in question. and testified consistently that she did not agree to an arrangement by which monthly paychecks would be reduced. regardless of the vacation settlement. The ALJ credited Weatherly's testimony over that of Blount 1 s 5 and, after a review of the record as a whole, we find no reason to do otherwise. Further. we do not find that Weatherly's subsequent conduct is inconsistent with this result. She testified that she was initially uncertain about why the paychecks were lower since she had no reason to expect that they would be, and that she, therefore. could not have agreed to explain the discrepency. She protested to Blount, although neither she nor any other CSEA representative specifically requested to negotiate. Although she signed her own contract, she apparently did so after her protest to the District. While her account of her reaction to the "B'' salary was ~irectly contradicted by Ross, whom the ALJ found credible, even her agreement to the B scale, like her settlement of the Flores' grievance, is not 51n finding that Blount's testimony 11 was not more credible than Weatherly's, 11 the ALJ erroneously placed on the District the burden of proving that the agreement permitted thechange. The burden is rather on the Association to prove thatthe change was unilateral. 11
necessarily inconsistent with a conclusion that she did not agree as part of the June negotiations and was proceeding under protest. Having adopted the Association's version of the events in question. we. therefor~. conclude that the established past practice of using a monthly payment schedule was unilaterally altered. We likewise decide that the Association's failure to request to negotiate does not demonstrate a waiver of the right to negotiate over the subject matter of the District's unilateral change. The.District provided no notice and opportunity to negotiate before making the changes, and PERB has previously determined that the failrire to request negotiations over a decision already made does not constitute waiver. Arvin Union School District (1983) PERB Decision No. 300. Remaining at issue is the remedy in this case. The Association argues that a "status quo ante'' remedy would include a return to the previous method of calculating monthly salaries. plus the vacation payment made in 1981-82. The District argues that a true status quo ante remedy would rescind both the vacation payment and the integrally related change in calculating monthly salaries. thus leaving employees with less money than they were receiving before the changes at issue. The District does not argue for total rescission but, rather, makes the argument to oppose a back pay award as computed by the Association. 12
Ordinarily, a return to the status quo ante is the appropriate remedy for an unlawful unilateral change. Rio Hondo Community College District (1983) PERB Decision No. 292. Here, the District is correct that a true status quo ante remedy would be a return to the previous practice regarding the monthly pay schedule, minus the lump-sum payment of vacation. As a result, classified employees would actually receive a reduction in total pay. We find that such a remedy would not effectuate the purposes of EERA and so we decline to order a roll back to the pay status before the vacation payment settlement. We will, however, order the District to negotiate upon request regarding the payment method to be used in the future. If, however, subsequent to the District's unlawful action the parties have, on their own initiative, reached agreement or negotiated through completion of the impasse procedure concerning the subject matter of the unilateral change, further negotiations shall not be required as a result of this Decision. 6 6 The District argues that the parties subsequently reached agreement to ratify the procedure in question here. The Board has previously determined, however, that disagreements about whether subsequent agreements constitute compliance with the Board's order are best left to a compliance hearing. San Mateo City School District (1984) PERB Decision No. 375a. 13
ORDER Upon the foregoing facts, conclusions of law. and the entire record in this case, and pursuant to Government Code section 3541.S(c), it is hereby ORDERED that the Nevada Joint Union High School District and its representatives shall: A. CEASE AND DESIST FROM: 1. Failing and refusing to meet and negotiate in good faith with the California School Employees Association and its Nevada Union Chapter No. 16S by taking unilateral act~on with respect to the method of computing and paying salaries for less-than-12-month employees. 2. Interfering with the rights of employees to be represented by failing and refusing to meet and negotiate in good faith with the exclusive representative. 3. Denying the California School Employees Association and its Nevada Union Chapter No. 165, the right to represent employees by failing and refusing to meet and negotiate in good faith. B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE POLICIES OF THE ACT: 1. Upon request, meet and negotiate with the exclusive representative concerning the method of computing and paying salaries for less-than-12-month employees. If, however, subsequent to the District's unlawful action the parties have. on their own initiative, reached agreement or negotiated through completion of the impasse procedure 14
concerning the subject matter of the unilateral change, further negotiations shall not be required as a result of this Decision. 2. Within thirty-five (35) days following the date the 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 maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be taken to insure that this Notice is not reduced in size, defaced, altered or covered by any material. 3. Written notification of the actions taken to comply with this Order shall be made to the regional director of the Public Employment Relations Board in accordance with his instructions. This Order shall become effective immediately upon service of a true copy thereof upon the Nevada Joint Union High School District. Members Morgenstern and Porter joined in this Decision. 15
•
Appendix NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
,
After a hearing in Unfair Practice Case No. S-CE-566,
California School Employees Association and its Nevada Union
Chapter No. 165 v. Nevada Joint Union High School District, in
which all parties had the right to participate, it is found
that the Nevada Joint Union High School District violated the
Educational Employment Relations Act, Government Code section
3543.S(a), (b) and (c) by-unilaterally changing the method of
computing and paying salaries for less-than-12-month employees.
As a result of this conduct, we have been ordered to post
this Notice and we will:
A. CEASE AND DESIST FROM:
i. Failing and refusing to meet and negotiate in
good faith with the California School Employees Association and
its Nevada Union Chapter No. 165 with respect to the method of
computing and paying salaries for less-than-12-month employees.
2. Interfering with the rights of employees to be
represented by failing and refusing to meet and negotiate in
good faith with the ~xclusive representative.
3. Denying the California School Employees
Association and its Nevada Union Chapter No. 165 the right to
represent employees by failing and refusing to meet and
negotiate in good faith.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
Upon request, meet and negotiate with the exclusive
representative concerning the method of computing and paying
salaries for less-than-12-month employees.
If, however, subsequent to the District's unlawful action
the parties have, on their own initiative, reached agreement or
negotiated through completion of the impasse procedure
concerning the subject matter of the unilateral change, further
negotiations shall not be required.
Dated: NEVADA JOINT.UNION HIGH 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 ALTERED, REDUCED IN SIZE, DEFACED OR COVERED BY ANY OTHER
MATERIAL.2 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.
OCR transcription for search; preserved printed pages are authoritative
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS NEVADA UNION
CHAPTER NO. 165,
Charging Party, Case No. S$-CE-566
v: PERB Decision No. 557
NEVADA JOINT UNION HIGH SCHOOL
DISTRICT, ; .
December 31, 1985
Respondent.
ee Niet See Se Set et ee et le et ae ee
Appearances: Christopher E. Niehaus, Field Representative for
California School Employees Association and its Nevada Union
Chapter No. 165; Finkle & Stroup by Robert W. Stroup,
Leith B. Hansen and Mary Beth de Goede for Nevada Joint Union .
High School District.
Before Morgenstern, Burt and Porter, Members.
DECISTON
BURT, Member: This case comes before the Public Employment
Relations Board (PERB or Board) on exceptions filed by the
Nevada Joint Union High School District (District) to the
proposed decision of an administrative law judge (ALJ) finding
that it violated section 3543.5(a), (b) and (c) of the
Educational Employment Relations Act (EERA)* by its failure
LEERA is codified at Government Code section 3540
et seq. All statutory references herein are to the Government
Code unless otherwise noted.
Section 3543.5 provides in pertinent part:
to
negotiate
in
good
faith
over
a
change
in
the
method
of
calculating
monthly
salary
payments.
The
California
School
Employees
Association
and
its
Nevada
Union
Chapter
No.
165
{CSEA
or Association)
except
to the
remedy
proposed
by
the
ALJ.
FACTS
The
parties
here
were
covered
by
a
collective
bargaining
agreement
incorporating
successor
agreements
between
1979
and
June 1982.
Each
year, the
parties
negotiated
salary rates
which were
then
translated
into
monthly
and
hourly
rates in
a
salary
schedule incorporated into
the
agreement.
The
same
rates
applied
whether
employees were 12-month employees
or
less
than
12-month (9,
10
or
11-month) employees.
However.
because
the
pay
rates
did not take
into
account the
variations in
days
worked
per
month
for less-than-12-month
employees,
the
result
was
a
discrepancy
between
the
monthly
and
hourly
rates
for
less-than-12-month
employees. In
other
words,
those
employees
It
shall
be
unlawful
for
a
public
schoolemployer
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 coerceemployees because of
their exercise
of
rights
guaranteed
by
this chapter.
(b)
Deny
to
employee
organizations rightsguaranteed to
them by
this chapter.
(c) Refuse or
fail
to
meet and
negotiate in
good
faith with an exclusive representative.
2
actually
received
a
higher
salary
when
calculated
monthly
than
they
would have
if
calculated
strictly
on
an
hourly
basis.
2
The
agreement
also
provided
for
paid
vacation
days
for
employees,
and
the
monthly
salary rate
included•pay
for
these
days.
Twelve-month employees
could
take
vacation
at
any
time.
However,
less-than-12-month
employees were
required to take
vacation
time
on
days
when
school
wa~
not
in session
during the
year,
during
Christmas
recess, for
example,
or
have
their
monthly
salary
docked
accordingly.
Any
remaining
vacation
pay
was
disbursed in
a
lump
sum
at
the
end
of the year.
As
noted
by
the
ALJ,
the
District
explained
that
it:
...
used
the vacation deduction procedure
as
a
means
to
offset
its
11
alleged
11
overpayment
of
less
than
12-month employeesdue
to the
hourly/monthly
rate error.
In
June
1982,
June Weatherly,
a
10-month employee
who
was
CSEA
president,
concluded
that
the
District's
payment
practice
was
in error,
since
she
believed
that
she should
be
paid
for
vacation
days
in addition to her
monthly
salary.
Weatherly
used
a
work
sheet to demonstrate her
actual salary in
comparison
to the calculated
amount
she
believed to
be
correct.
The
following
calculations
3
are useful in
interpreting
her contentions:
2
For example, using
a
monthly
basis,
a
less-than-12-monthemployee
gets paid
at the
same
rate for February as for
January.
computed on an hourly basis, the February salary
would be
less.
3The numbers are rounded
off.
3
1. Weatherly's
actual
1981-82 pay
at
the
''monthly"
rate
excluding
vacation
pay
-
($1146
a
month
x
10
months=
$11,460).
2.
Weatherly's contention (vacation
at
the hourly
rate
of
pay
was
in addition
to
monthly
salary)
-
($52.88
a
day
x
12.5
days=
$661.
$11,460
+
661
=
$12,121).
3.
The
District's
contention
(monthly
rate
plus excess
vacation
payable
at
the
end
of year
after
10
nonworking days
deducted)
-
$11,460
+.$132
($52.88
a
day
x
2.5
days=
$132.)
=
$11,592.
As
noted
above
at
point
2,
Weatherly
originally
sought her
monthly
salary
plus vacation
pay
calculated
on
an
hourly
basis.
As a
compromise, however,
she proposed
that
her
salary
be
increased
to
reflect
the
difference
between what
she
was
actually
paid,
her
monthly
rate
with
no
vacation
pay,
and
what
she
would have
received
if
her
pay
had
been
calculated
as
follows:
Computation of annual
wage
based
on
hourly
wage
rate
plus
total
vacation
days
earned
-
($6.61
an hour
x a
hours
x
209
workdays=
$11,051
+
$661
(12.S
vacation
days)
=
$11,713.
The
difference
between
weatherly's
first
proposal
and
her
compromise
position
amounted
to
$253.
She
also
proposed
that
the
salary
of other
employees be
calculated accordingly.
Weatherly approached the administration
of the
District
with her calculations.
She met
with
Ty
Blount,
assistant
superintendent, Irene
Roath, bookkeeper, and Ruth Watson,
CSEA
representative.
The
parties
agreed to the settlement as
proposed, that is,
an annual
wage
based on an hourly rate plus
an
hourly rate for 12.5 vacation days. Weatherly and Watson
4
met
later
in
June
to
calculate
the
additional
payment
for
all
less-than-12-month
employees.
Although
the
parties•
agreement
expired
on
June 30,
1982,
there
were
no
negotiations
during the
summer
because
the
District
was
uncertain
as
to the
amount
of
State
funding
it
would
receive.
Beginning
with the
July
and
August
1982
pay
periods.
less-than-12-month
employees
received
monthly checks
in
a
lesser
amount
than the previous
year.
For example,
Weatherly
1 s
monthly check
was
reduced
from
$1,146
to
$1,105.
The
explanation for the reduction
was
that
the
District
had
begun
to
calculate
monthly
salaries
using the
same
hourly
rate
as
was
used
to
settle
the vacation question in
June.
The
lower
monthly checks
were
to
be
offset
by
a
lump
sum
at
the
end
of
the year
compensating employees
for
any unused
vacation. In
the
District•s
view,
it
was
discontinuing
its
practice
of
"fronting••
vacation
pay
via
the
monthly
salary
and,
instead,
went
to
a
system
by
which
vacation
pay
was
given
entirely in
a
lump sum
at
the
end
of
the year.
In
total,
weatherly
1 s
yearly
compensation
was
exactly the
same
in
1982-83 as
it
was
in
1981-82 once
the settlement for vacation
was
credited.
No
one
disputes that there
was a
change
in the
method
of
computing and
paying
salary.
The
basic contention
by
the
District is that the change was a
negotiated one,
made
with the
agreement of the Association.
The
Association claims that its
5
agreement went only so far as resolving vacation pay and did
not signify its agreement to the hourly computation of monthly
pay as was adopted by the District.
Blount testified that the outcome of the June meeting and
the agreement to recalculate vacation pay also constituted an
agreement by CSEA to calculate monthly salaries on an hourly.
basis. Weatherly testified that she believed that the
subsequent meetings with District Bookkeepers Roath and Watson
were only intended to ~esolve the vacation issue and did not
constitute agreement to recalculate salaries overall. Roath
did not testify. Blount gave hearsay testimony that Roath told
him that she explained the full effects of changing to an
hourly basis -- including a reduced monthly paycheck -- to
Weatherly. 4
Blount testified that he and Weatherly met informally later
in June when settlement paychecks were being prepared, and that
he expressed concern at that time about the effect of the
reduced monthly paychecks. He testified that Weatherly told
him she would explain to employees that their checks would be
smaller, but that they would receive the same amount overall.
Weatherly denied saying that she would explain lower monthly
4The District introduced a document which purported
to be Roath's account of these transactions. It was not
prepared as an affidavit or deposition, and the ALJ
considered it hearsay, to which he accorded no weight. To
the extent it was corroborated by Blount's testimony, he
discounted it because he considered the testimony suspect.
6
paychecks, claiming that she did not know the amount would be
lower. She testified that she did agree to explain to members
that the calculations used to recompute the 1981-82 paychecks
would be used again in 1982-83.
There was vague and inconclusive testimony about a summer
meeting where Weatherly allegedly agreed to a separate salary
schedule for less-than-12-month employees on an hourly basis.
Roath 1 s discounted documents included unsigned. undated notes
of a negotiation session between Weatherly and the
superintendent. Blount testified that Roath showed him these
notes, claiming that she had informed CSEA of the changes to be
made. Weatherly denied that there were negotiations in the
summer regarding wages, and denied agreeing to the use of an
hourly wage for the future.
Blount testified that he and Weatherly met briefly after
school began and he inquired if she had explained the changes
in paychecks to the other employees so that they would not
question him. He testified that, after employees began
receiving lower paychecks, Weatherly, Watson, and another CSEA
representative met with Blount to inquire how the checks were
being calculated. He told them to "go do their homework."
They then went back to study the pay calculations.
Weatherly testified that James Ross, the District
accountant, called her to his office between September and
early November 1982 to discuss the salary schedule. He showed
7
her
schedule
A,
showing
both
hourly
and
monthly
rates
as
in
the
past,
and
schedule
B
showing
the hourly
rates
for
less-than-12-month
employees.
He
asked her
if
she
would
accept
only
the
hourly schedule
and
she
replied
11
no.
11
Weatherly
testified
that
the
first
time she
had
seen
the
separate
schedule for
less-than-12-month
employees
was
at
that
meeting.
Wtth
regard to the
same
events,
Ross
testified
that
he
met
with Weatherly
and Watson
in
late
November
to discuss
whether
schedules
A
and
B
were
sufficient,
or whether
additional
schedules
were
necessary.
He
testified
that
Watson
agreed
that
only
the
hourly
B
schedule
was
necessary for less-than-12-month
employees.
Around
the
same
time, Weatherly
indicated
that
publication
of
the schedule should not
be
held
up
or
tied
to
the continuing dispute
about
vacation
pay.
Ross
forwarded
a
memo
to
Blount
on
November 18
confirming
CSEA's
request to
publish the schedule with
no
monthly
figures
listed
for
less-than-12-month
employees. Weatherly never
saw
the
memo.
Watson
did not
testify.
As
noted
by
the
ALJ,
the record
is
unc~ear as to whether
Ross and
Weatherly
were
describing the
same
meeting, although the
ALJ
specifically credited
Ross'
account.
Employee
Contracts
In the past,
employees were
requested to sign annual
contracts
which included salary rate,
days to
be worked and
vacation days. Before 1982-83, these contracts reflected the
8
average monthly salary rate for less-than-12-month employees.
In 1982-83, the contracts reflected the hourly wage rate from
schedule B rather than the monthly rate. Weatherly signed her
contract on October 29. although she stated her disagreement
with the payment method.
Flores' Grievance
On January 10, Blount, Weatherly, and Ross met to discuss
the grievance of Kay Flores .. Flores had been erroneously
overpaid and the District was seeking to recover the
overpayment. The parties agreed to use the hourly wage rate to
recompute the wages earned. Weatherly testified that she
agreed to this method of settling the grievance since:
•
They were already computing at that time
all the classified 9, 10, and 11 month
payment on an hourly basis instead of a
monthly basis. I had absolutely no
expectation from the District that they
would make an exception in this employee's
case and put her back on the correct, what
I perceived as. the correct monthly
adjustment.
No CSEA representative requested to negotiate the change
after employees began receiving reduced paychecks. Weatherly
indicated that the Association had spent time trying to
understand why the paychecks were lower and had expressed its
concern to the District about the way salaries were being
computed.
DISCUSSION
In order to establish a prima facie case of an unlawful
unilateral change, the Association must establish that there
9
was
indeed
a
change
in established
policy
which
was
made
without
its
agreement. Grant
Joint
Union High
School
District
(1982)
PERE
Decision
No.
196,
Pajaro Valley Unified
School
District
(1978)
PERB
Decision
No.
51.
It
is
uncontested
that
the
District
departed
from
its
practice
of
using
a
monthly
payment
schedule.
The
question before
us
here
is
whether
Weatherly's
agreement
regarding the vacation
pay
dispute
encompassed an
agree~ent to
thereafter
compute
salary
on
an
hourly
basis.
The
District
claims
it
agreed
to
a
"package"
in
discussions
with
Weatherly:
an added
amount
to
cover
vacation
pay,
with
the
corollary
reduction in
monthly pay.
The
Association
claims
that
it
agreed only to the
lump-sum
payment
and
not the
quid pro
quo.
The
Association
conceded
that
discussions
about
the
vacation issue
were
instigated
by
Weatherly
on
behalf
of
the
Association. using
a
worksheet which
analyzed
salary
on
an
hourly
basis.
From
that discussion
flowed
further
meetings
by
which back pay
was
calculated for other similarly situated
employees.
Many
of the individuals
involved
in these meetings
(e.g .•
Watson
for the Association
and Roath
for the
District)
did not
testify.
The document which
purports to give Roath's
version
of the disputed events
is
pure hearsay.
The
testimony
of Weatherly
and
Blount
is in substantial conflict
over
many
of
the particulars involving the negotiation.
Blount•s testimony
was
largely hearsay and
consisted of
events which he understood to have taken place, although he
10
testified
directly that
he
and
weatherly discussed the
lower
paychecks
to
come
on
at least
one
occasion
in
June. Weatherly,
on
the other
hand.
was
present
at
all
of
the discussions
in
question.
and
testified
consistently that
she
did not agree to
an
arrangement
by which monthly paychecks
would
be
reduced.
regardless
of
the vacation settlement.
The
ALJ
credited
Weatherly's
testimony
over
that
of Blount
1 s 5
and,
after
a
review of the record
as
a
whole,
we
find
no
reason to
do
otherwise.
Further.
we
do
not
find
that
Weatherly's
subsequent conduct
is inconsistent
with
this result.
She
testified
that
she
was
initially
uncertain
about
why
the
paychecks
were lower
since
she had
no
reason to expect
that
they
would
be,
and
that
she,
therefore.
could not
have
agreed to explain the discrepency.
She
protested
to Blount, although
neither
she nor any
other
CSEA
representative specifically
requested to negotiate.
Although she signed her
own
contract,
she
apparently did
so
after
her
protest
to the
District.
While
her account of her
reaction
to the
"B''
salary
was
~irectly
contradicted
by
Ross,
whom
the
ALJ
found
credible,
even her agreement to the
B
scale,
like her settlement of the Flores' grievance,
is
not
51n
finding that Blount's testimony
11
was
not
more
credible than Weatherly's,
11
the
ALJ
erroneously placed
on
the
District
the burden of proving
that the agreement permitted thechange.
The
burden
is rather
on
the Association to prove
thatthe change was
unilateral.
11
necessarily inconsistent
with
a
conclusion
that
she
did
not
agree as
part
of
the
June
negotiations
and
was
proceeding
under
protest.
Having
adopted
the
Association's version
of
the events
in
question.
we.
therefor~.
conclude
that
the
established past
practice
of
using
a
monthly
payment
schedule
was
unilaterally
altered.
We
likewise
decide
that
the
Association's
failure
to
request
to
negotiate
does
not demonstrate
a
waiver of
the
right
to
negotiate
over
the
subject
matter
of
the
District's
unilateral
change.
The.District
provided
no
notice
and
opportunity to
negotiate
before
making
the
changes,
and
PERB
has
previously
determined
that
the
failrire
to request
negotiations
over
a
decision already
made
does
not
constitute
waiver.
Arvin
Union
School
District
(1983)
PERB
Decision
No.
300.
Remaining
at
issue
is
the
remedy
in
this
case.
The
Association
argues
that
a
"status
quo
ante''
remedy would
include
a
return to the previous
method
of
calculating
monthly
salaries.
plus the vacation
payment made
in
1981-82.
The
District
argues
that
a
true status
quo
ante
remedy would
rescind
both the vacation
payment and
the
integrally related
change
in calculating
monthly
salaries.
thus leaving
employees
with
less
money
than they were
receiving before the changes
at
issue.
The
District
does not argue for
total rescission but,
rather,
makes
the argument to oppose a back pay award as
computed by the Association.
12
Ordinarily, a return to the status quo ante is the
appropriate remedy for an unlawful unilateral change.
Rio Hondo Community College District (1983) PERB Decision
No. 292. Here, the District is correct that a true status quo
ante remedy would be a return to the previous practice
regarding the monthly pay schedule, minus the lump-sum payment
of vacation. As a result, classified employees would actually
receive a reduction in total pay. We find that such a remedy
would not effectuate the purposes of EERA and so we decline to
order a roll back to the pay status before the vacation payment
settlement.
We will, however, order the District to negotiate upon
request regarding the payment method to be used in the future.
If, however, subsequent to the District's unlawful action the
parties have, on their own initiative, reached agreement or
negotiated through completion of the impasse procedure
concerning the subject matter of the unilateral change, further
negotiations shall not be required as a result of this
Decision. 6
6 The District argues that the parties subsequently
reached agreement to ratify the procedure in question here.
The Board has previously determined, however, that
disagreements about whether subsequent agreements constitute
compliance with the Board's order are best left to a compliance
hearing. San Mateo City School District (1984) PERB Decision
No. 375a.
13
ORDER
Upon
the foregoing
facts,
conclusions
of
law.
and
the
entire
record
in
this
case,
and
pursuant to
Government
Code
section
3541.S(c),
it
is
hereby
ORDERED
that
the
Nevada
Joint
Union High
School
District
and
its
representatives
shall:
A.
CEASE
AND
DESIST
FROM:
1.
Failing
and
refusing to
meet
and
negotiate in
good
faith
with the
California
School
Employees
Association
and
its
Nevada Union
Chapter
No. 16S
by
taking
unilateral
act~on
with
respect
to the
method
of
computing
and
paying
salaries
for
less-than-12-month
employees.
2.
Interfering
with the
rights
of
employees
to
be
represented
by
failing
and
refusing
to
meet and
negotiate in
good
faith
with the exclusive
representative.
3. Denying
the
California
School
Employees
Association
and
its
Nevada Union
Chapter
No.
165,
the
right
to
represent
employees
by
failing
and
refusing to
meet and
negotiate in
good
faith.
B.
TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED
TO
EFFECTUATE
THE
POLICIES
OF THE
ACT:
1.
Upon
request,
meet and
negotiate with the
exclusive representative
concerning the
method
of computing and
paying
salaries for less-than-12-month employees.
If,
however, subsequent to the
District's
unlawful
action
the parties
have. on
their
own
initiative,
reached agreement or
negotiated through completion of the impasse procedure
14
concerning the
subject
matter
of
the
unilateral
change,
further
negotiations
shall
not
be
required
as
a
result
of
this
Decision.
2.
Within
thirty-five
(35) days
following the
date
the 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
maintained
for
a
period
of
thirty
(30)
consecutive
workdays. Reasonable
steps
shall
be
taken to insure
that
this
Notice
is
not
reduced
in
size,
defaced,
altered
or covered
by
any
material.
3.
Written
notification
of
the
actions
taken to
comply
with
this
Order
shall
be
made
to the regional
director
of
the Public
Employment
Relations
Board
in
accordance
with
his
instructions.
This
Order
shall
become
effective
immediately
upon
service
of
a
true
copy
thereof
upon
the
Nevada
Joint
Union High
School
District.
Members
Morgenstern
and
Porter joined in this
Decision.
15
Appendix NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
,
After a hearing in Unfair Practice Case No. S-CE-566,
California School Employees Association and its Nevada Union
Chapter No. 165 v. Nevada Joint Union High School District, in
which all parties had the right to participate, it is found
that the Nevada Joint Union High School District violated the
Educational Employment Relations Act, Government Code section
3543.S(a), (b) and (c) by-unilaterally changing the method of
computing and paying salaries for less-than-12-month employees.
As a result of this conduct, we have been ordered to post
this Notice and we will:
A. CEASE AND DESIST FROM:
i. Failing and refusing to meet and negotiate in
good faith with the California School Employees Association and
its Nevada Union Chapter No. 165 with respect to the method of
computing and paying salaries for less-than-12-month employees.
2. Interfering with the rights of employees to be
represented by failing and refusing to meet and negotiate in
good faith with the ~xclusive representative.
3. Denying the California School Employees
Association and its Nevada Union Chapter No. 165 the right to
represent employees by failing and refusing to meet and
negotiate in good faith.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTION DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
Upon request, meet and negotiate with the exclusive
representative concerning the method of computing and paying
salaries for less-than-12-month employees.
If, however, subsequent to the District's unlawful action
the parties have, on their own initiative, reached agreement or
negotiated through completion of the impasse procedure
concerning the subject matter of the unilateral change, further
negotiations shall not be required.
Dated: NEVADA JOINT.UNION HIGH 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 ALTERED, REDUCED IN SIZE, DEFACED OR COVERED BY ANY OTHER
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