Calexico Unified School District (PERB 0754E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION & 	ITS 	CALEXICO
CHAPTER NO. 	399,
Charging 	Party,
v.
CALEXICO 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
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)
)
) 	Case No. 	LA-CE-24 17
PERB Decision No. 	754
July- 17, 1989
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)
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Appearances: 	Madalyn J. 	Frazzini, 	Attorney, 	for California
School Employees Association & 	its Calexico Chapter No. 	399;
Atkinson, 	Anderson, 	Loya, 	Ruud & Romo by Karen E. 	Gilyard and
James C. 	Romo, 	Attorneys, 	for Calexico Unified School District.
Before Porter, 	Craib and Shank, 	Members.
DECISION
CRAIB, 	Member: 	This 	case is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Calexico Unified School District 	(District) 	to the attached
proposed 	decision of 	a 	PERB 	administrative 	law 	judge 	(ALJ)
finding 	that 	the District violated 	section 	3543.5, 	subdivisions
(a), 	(b) 	and 	(c), 	of the Educational Employment Relations Act
(EERA).1 Specifically, 	the ALJ found that the District
1EERA 	is 	codified at Government Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory 	references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall be unlawful for a public 	school .
employer to:
(a) 	Impose or threaten to 	impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
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unlawfully 	adopted 	and 	implemented 	a 	policy 	of 	contracting 	out
certain transportation 	services 	to private 	carriers 	and
transferred 	other work out 	of 	the 	bargaining unit 	by 	assigning
nonunit 	employees 	to 	transport 	students 	to 	extracurricular
activities.
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise of 	rights
guaranteed by 	this 	chapter.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
We have reviewed the 	entire record 	in this 	case, 	including
the 	District's 	exceptions 	and the response thereto. 	Except as
noted below, 	we 	find the ALJ's 	findings 	of 	fact to be 	free of
prejudicial 	error and adopt 	them as 	the 	findings 	of 	the 	Board
itself. 	We 	also 	affirm and adopt the ALJ's 	conclusions 	of 	law
concerning 	the 	District's 	contracting out 	of 	transportation
services. 	As 	discussed below, 	we reverse the proposed decision
insofar 	as 	it 	finds 	that 	the 	District 	unlawfully 	transferred work
out 	of 	the unit. 	Additionally, 	we 	find that the remedy must be
modified 	to 	cover 	only that period beginning 	six months 	prior 	to
the 	filing of 	the unfair practice 	charge.
22 The 	District's 	exceptions 	to 	the 	contracting 	out 	violation
are based on arguments 	also made 	to the ALJ. 	As 	the ALJ 	fully
addressed and properly rejected those 	arguments, 	there 	is 	no 	need
to address 	them again 	in this 	Decision.
22

DISCUSSION
Transfer 	of 	Work
Prior to 	1984, 	bus drivers, 	in addition to their normal
routes 	driving 	full-size District buses, 	would 	sometimes 	be
assigned to 	transport 	students 	to various 	events 	in District
minibuses. 	Periodically, 	nonunit employees 	(coaches 	and
teachers) 	would also 	transport 	students 	to 	events 	using their
private vehicles. 	Sometime during the 	1985-86 	school year, 	the
District purchased 	a van 	for teachers 	and 	coaches 	to use 	in
transporting students. 	Prior to that time, 	the District would
occasionally rent a 	van 	for the 	coaches 	or teachers 	to drive.
During the 	1986-87 	school year, 	the District purchased a 	second
van. 	The bus 	drivers have not been assigned to drive the vans.
The 	decision to 	transfer work to nonunit 	employees 	is
negotiable 	as 	long as 	it has 	an 	impact on 	subjects within the
scope 	of 	representation. 	(Rialto Unified 	School 	District 	(1982)
PERB Decision No. 	209.) 	In Eureka City School District 	(1985)
PERB Decision No. 	481, 	at page 	15, 	the Board set out the
following 	test 	for the 	evaluation of 	unlawful 	transfer 	of work
claims:
In our view, 	in order to prevail on a
unilateral 	transfer of work theory, 	the
charging party must 	establish, 	as 	a threshold
matter, 	that duties were, 	in fact,
transferred out of the unit; 	that is, 	that
unit 	employees 	ceased 	to perform work which
they 	had previously performed 	or 	that 	nonunit
employees 	began to perform duties 	previously
performed 	exclusively by unit 	employees.
However, where, 	as here, 	unit and nonunit
employees 	have 	traditionally had 	overlapping
duties, 	an employer does 	not violate 	its duty
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to 	negotiate 	in good 	faith merely by
increasing 	the 	quantity 	of 	work which 	nonunit
employees 	perform and decreasing 	the 	quantity
of work which unit 	employees 	perform.
(Footnote omitted. 	Emphasis 	in original.)
Concluding that 	the 	bus 	drivers 	and 	teachers/coaches 	had
overlapping duties 	in the 	transport 	of 	students 	to
extracurricular activities, 	the ALJ noted that, 	in accordance
with Eureka, 	merely increasing the nonunit 	employees' 	share 	of
such duties would not be unlawful. 	Finding that 	the purchase 	of
vans 	for use by nonunit 	employees 	represented 	"a 	significantly
different degree 	of 	commitment 	and kind 	of 	transferring 	out 	of
bargaining unit work," 	the ALJ 	nonetheless 	found a violation,
citing Oakland Unified School 	District 	(1983) 	PERB 	Decision
No. 367.
The District, 	in its 	exceptions, 	argues that Oakland is
factually distinguishable 	and has 	no 	application to 	the 	present
controversy. 	We agree. 	In Oakland. 	supra. 	at page 24, 	the Board
concluded that 	a 	ten-fold 	increase 	in the amount 	of
subcontracting was 	an unlawful 	unilateral 	change 	in past
practice. 	In the present case, 	though the purchase of vans
caused 	some 	increase 	in the 	assignment 	of 	transportation duties
to 	nonunit employees, 	it 	is unclear how significant that 	increase
was. 	There 	is 	certainly no evidence that the 	increase was 	of 	the
magnitude 	found in Oakland. 	Moreover, 	Oakland 	is 	of 	little
relevance 	in transfer of work cases, 	where the Board has 	clearly
stated 	in Eureka 	that a mere 	increase 	in the relative 	amount 	of
overlapping duties 	assigned to 	nonunit 	employees 	is 	not
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unlawful.3 Therefore, 	we 	find Eureka to be 	controlling in this
case 	and 	reverse 	the ALJ's 	finding 	that 	the 	District 	unlawfully
transferred work out of 	the unit.4
Remedy
The ALJ 	ordered 	the 	District 	to 	compensate 	the 	bus 	drivers
for the 	loss 	of 	overtime 	caused by the District's 	unlawful
contracting out, 	beginning 	in 	1984. 	The 	charging party argued
that the remedial period 	should begin in 	1984, 	citing Montebello
Rose Co. 	v. 	Agricultural Labor Relations Board 	(1981) 	119 Cal.
App.3d 	1, 	where the 	court affirmed an award of back pay ante-
dating 	the 	six-month 	statute 	of 	limitations 	period 	in 	a 	surface
bargaining 	case 	to 	cover 	the period when the unlawful 	conduct 	had
been 	concealed 	from 	the 	charging party. 	Acknowledging 	that 	the
facts 	in the 	instant 	case 	are distinguishable 	from those 	in
Montebello. 	the ALJ 	found that 	the 	District had waived the 	right
to 	rely on the 	statute of 	limitations 	by 	failing to 	raise 	the
issue 	in 	its 	answer to the 	complaint or thereafter.5 He,
33The 	Board has 	yet to deal with a 	situation where 	there 	is 	a
severe 	redistribution of 	overlapping duties 	from unit 	to 	nonunit
employees. 	Given the dearth of 	evidence 	in this 	case as 	to 	the
magnitude 	of 	the 	reassignment 	of 	overlapping transportation
duties, 	it is unnecessary to address that issue in this case.
4Unlike 	the ALJ, 	we 	find no 	significance 	in the 	fact that
the 	District purchased vans 	for the use of 	nonunit 	employees,
rather than renting vans 	as 	it had done 	in the past. 	While this
may have precipitated an increase 	in nonunit 	employees' 	share of
overlapping duties, 	as discussed above, 	such an increase is
lawful.
5EERA section 3541.5, 	subdivision 	(a) 	states, 	in pertinent
part: Any employee, 	employee organization, 	or
employer 	shall 	have the 	right 	to 	file 	an
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therefore, 	found 	it appropriate to begin the remedial period 	in
1984, 	the time of the first known instance of 	improper
contracting out.
unfair practice charge, 	except that the board
shall 	not do either of the 	following: 	(1)
issue 	a 	complaint 	in respect of 	any charge
based 	upon 	an 	alleged 	unfair practice
occurring more 	than 	six months 	prior to 	the
filing of the charge; 	. 	. 	.
In its 	exceptions, 	the District asserts that 	it did raise
the 	statute 	of 	limitations 	as 	soon as 	conduct pre-dating the
limitations 	period became 	an 	issue, 	and reiterated that 	argument
in its post-hearing brief. 	The District also argues 	that EERA
section 3541.5, 	subdivision 	(a)(l), 	sets forth a jurisdictional
prerequisite which, 	if not complied with, 	results 	in denial of
access 	to the 	statutory process. 	We 	find that the District 	is
correct 	on both 	counts.
The 	charge 	and 	complaint both 	describe 	the 	allegedly
unlawful act as a memo, 	dated February 26, 	1986, 	that stated the
District's 	intent to 	contract out all 	"out of valley trips." 	It
was 	not until 	the hearing, 	when the 	charging party moved to 	amend
the 	complaint, 	that 	contracting out prior to February 	1986 	became
an 	issue 	in the 	case. 	The 	District 	objected to 	the amendment 	on
statute 	of 	limitations 	grounds 	and 	reiterated 	that 	argument 	in
its post-hearing brief. 	Thus, 	the District raised the 	statute of
limitations 	issue as 	soon as 	it was made aware that 	conduct more
than 	six months prior to the 	filing of 	the 	charge was 	at 	issue.
Consequently, 	assuming arguendo 	that 	the 	statute 	of 	limitations
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may be waived, 	under these 	circumstances, 	the 	District 	could not
have waived 	its 	right to 	assert 	such a defense.
At 	the 	time the ALJ 	issued his 	proposed decision, 	Board
precedent 	treated the 	statute 	of 	limitations 	contained 	in EERA
section 3541.5, 	subdivision 	(a)(l), 	as an affirmative defense
that may be waived by a 	failure to 	assert 	it 	in a 	timely 	fashion.
(See Walnut Valley 	Unified 	School 	District 	(1983) 	PERB Decision
No. 	289.) 	Recently, 	in California State University. 	San Diego
(1989) 	PERB Decision No.718-H, 	the 	Board overruled Walnut Valley
and 	its progeny, 	holding that the 	statute of 	limitations
contained 	in EERA 	section 	3541.5 	(as well 	as 	identical provisions
in the other two 	statutes 	administered by PERB) 	is 	jurisdictional
in nature and, 	thus, 	cannot be waived. 	Accordingly, 	we find that
the 	remedial 	period proposed by 	the ALJ 	must be modified 	to 	begin
six 	months prior to 	the 	filing of 	the unfair practice 	charge,
which the record shows was 	filed on August 	14, 	1986.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire record in this 	case, 	and pursuant to 	section
3541.5, 	subdivision (c), 	of the Government Code, 	it is hereby
ORDERED that the Calexico Unified School District 	(District), 	its
governing board 	and 	its 	representatives 	shall:
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A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet 	and negotiate 	in good
faith with 	the California 	School 	Employees Association 	and 	its
Calexico Chapter No. 	399 	(CSEA) 	as the exclusive representative
of 	a unit 	of 	its 	employees 	by unilaterally contracting out bus
driver work, 	thereby reducing the opportunity 	for overtime pay, 	a
matter within the 	scope 	of 	representation.
2. 	By the 	same conduct, 	denying CSEA its 	statutory
right to represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Prior to contracting out the bus driver work found
to be unlawful 	in the Decision above, 	upon the request of CSEA,
meet 	and 	negotiate with 	CSEA over 	the 	decision and 	effects 	of
contracting 	out 	such work.
2. 	Pay to all bus drivers 	in the bargaining unit an
amount equal 	to the 	income 	lost due to the denial 	of 	overtime
opportunities 	resulting 	from the unlawful 	contracting out 	of 	bus
driver work.
3. 	Within thirty-five 	(35) 	days 	following the date
this 	Decision 	is 	no 	longer 	subject to reconsideration pursuant 	to
PERB Regulation 	32410, 	post at all 	school 	sites 	and all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice attached hereto as 	an Appendix. 	The Notice
must be 	signed by an authorized agent 	of 	the District. 	Such
posting 	shall 	be maintained 	for a period 	of 	thirty 	(30)
8

consecutive workdays. 	Reasonable 	steps 	shall be taken to ensure
that the Notice 	is 	not reduced in size, 	altered, 	defaced or
covered 	by 	any 	other material.
4. 	Written notification of the actions 	taken to 	comply
with this 	Order 	shall be made to 	the 	Los Angeles 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	her 	instructions.
Members 	Porter 	and 	Shank 	joined 	in this 	Decision.
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6

APPENDIX NOTICE 	TO EMPLOYEES
POSTED BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
An Agency 	of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-2417,
California 	School 	Employees Association and 	its 	Calexico 	Chapter
No. 	3 99 v. 	Calexico Unified School District, 	in which all parties
had the 	right to participate, 	it has 	been found that the Calexico
Unified 	School District violated 	section 	3543.5, 	subdivisions 	(b)
and 	(c), 	by failing and refusing to meet and negotiate 	in good
faith with 	the 	California 	School 	Employees Association and 	its
Calexico Chapter No. 	399 	(CSEA) 	with respect to the contracting
out of bus 	driver work.
As 	a result of this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate 	in 	good
faith with CSEA as 	the 	exclusive representative of 	a unit 	of
employees 	by unilaterally 	contracting 	out 	bus 	driver work,
thereby 	reducing the 	opportunity 	for overtime pay, 	a matter
within the 	scope 	of 	representation.
2. 	By the 	same conduct, 	denying CSEA its 	statutory
right to represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL
EMPLOYMENT RELATIONS ACT:
1. 	Prior to contracting out the bus 	driver work found
to be unlawful 	in the Decision above, 	upon the request of CSEA,
meet 	and 	negotiate with CSEA over the 	decision and 	effects 	of
contracting 	out 	such work.
2. 	Pay to all bus 	drivers 	in the bargaining unit 	an
amount 	equal 	to the 	income 	lost due to the denial 	of 	overtime
opportunities 	resulting 	from the unlawful 	contracting 	out 	of 	bus
driver work.
Dated: 	CALEXICO 	UNIFIED 	SCHOOL 	DISTRICT
By
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE 	DATE OF 	POSTING AND
MUST NOT BE 	REDUCED IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	& 	ITS 	CALEXICO 	CHAPTER
NO. 	399
Charging 	Party,
v.
CALEXICO UNIFIED 	SCHOOL DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case 	No. 	LA-CE-2417
PROPOSED DECISION
(11/20/87)
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Appearances; 	Madalyn J. 	Frazzini, 	California 	School Employees
Association, 	for California 	School 	Employees Association 	and
its Chapter No. 	399; Atkinson, Anderson, 	Loya, 	Ruud & Romo by
James 	C. 	Romo 	for Calexico Unified 	School 	District.
Before 	Gary Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	case commenced on August 	14, 	1986, 	with the 	filing of
an 	unfair 	practice 	charge 	against 	the Calexico Unified 	School
District 	(District) 	by the California 	School 	Employees
Association and 	its Calexico Chapter No. 	399 	(CSEA). 	The
unfair 	practice 	charge was 	incorporated 	into 	a 	complaint 	issued
by the 	general 	counsel 	of 	the Public Employment Relations 	Board
(PERB or Board) 	on October 30, 	1986. 	As 	incorporated, 	the
complaint 	charges 	the District with violation 	of 	the
Educational Employment 	Relations Act 	(EERA or Act),
sections 3543.5(a), 	(b) and (c).
l
1
EERA 	begins 	at 	section 3540 of 	the Government Code. 	All
references 	are to 	the Government Code unless 	otherwise noted.
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.
______
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Sections 3543.5(a), 	(b) 	and 	(c) 	provide that it is unlawful for
the 	employer 	to:
(a) 	Impose or 	threaten to 	impose 	reprisals
on employees, 	to discriminate or 	threaten to
discriminate 	against 	employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny to 	employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
In essence 	the charge 	is 	that 	the District violated 	a
contract 	provision 	relating 	to 	contracting 	out 	of 	bargaining
unit work as 	it 	relates 	to 	transportation 	of 	students.
The District 	filed 	its 	answer 	on November 	18, 	1986,
admitting 	and 	denying 	factual 	allegations, 	denying 	violations
of 	EERA 	and 	raising 	affirmative defenses 	that 	will 	be
considered 	elsewhere 	in 	this 	proposed 	decision. 	An 	informal
settlement 	conference was 	held 	but 	no 	resolution 	of 	the 	dispute
resulted. 	Formal 	hearing was held on May 11, 	12 	and 27, 	1987,
at Calexico, 	California. 	At 	the commencement of 	the hearing,
CSEA moved 	to 	amend 	the 	complaint 	to 	include 	the 	charge 	that
the District 	has, 	since 	approximately September 	1984,
unilaterally 	transferred 	the 	unit 	work 	of 	bus 	drivers 	to
employees 	of 	the District 	not 	in the 	bargaining 	unit. 	The
amendment was 	granted 	and 	the 	complaint 	was 	amended 	to 	include
this 	new charge. 	Post-hearing 	briefs were 	filed 	and 	the matter
submitted on September 	21, 	1987.
22

FINDINGS 	OF 	FACT
The 	District 	is 	a 	public 	school 	employer within 	the meaning
of 	section 3540.l(k). 	CSEA is 	the exclusive 	representative,
within the meaning of 	section 3540.l(e), 	of 	the classified
employees 	of 	the District.
At 	all 	times 	relevant, 	Gerald Dadey has 	been the District
superintendent. 	James Romo, 	an attorney, 	has been the
District's 	negotiator 	since 	1982. 	Jack Goad 	has 	been 	assistant
superintendent 	for 	business 	services 	since 	1984. 	At 	all 	times
relevant, 	CSEA's 	bargaining 	team has 	included 	Frances 	Felix,
chairperson, 	and Olivia Valenzuela, 	vice-chairperson.
The 	District 	employs 	bus 	drivers 	to 	provide 	home/school
pupil 	transportation. 	Currently, 	the District 	has 	four 	regular
bus 	drivers, 	whose 	classification 	is 	50 	percent 	bus 	driver 	and
50 	percent warehouse delivery man. 	In 	addition 	to 	those 	four,
the District 	also has 	a mechanic/bus driver, 	who 	serves
primarily 	as 	a mechanic 	but 	is 	also 	licensed 	to 	drive 	a 	school
bus. 	Another 	employee 	is 	classified 	as 	a 	food 	services/bus
driver.
2
These 	two 	serve 	as 	bus 	drivers 	on 	an 	"as 	needed"
basis.
2Since 	1981, 	by attrition, 	the number of bus drivers 	has
dropped 	from eight 	to 	four 	full-time 	regular 	drivers. 	It does
not 	appear, 	however, 	that 	the District 	ever utilized eight 	bus
drivers 	for 	regular 	routes 	at 	a given time. 	Some of 	the bus
drivers were 	foremen or 	other 	types 	of 	leadmen.
33

The 	incumbent 	drivers 	are 	40-hour 	employees. 	They work
eight hours 	a day, 	five days 	a week. 	In addition to 	four
regular 	school 	runs, 	there 	is 	a mid-day kindergarten 	run and 	a
mid-afternoon 	to 	5 	p.m. 	Regional 	Occupational 	Program 	run.
Recently the 	District 	has 	started 	a 	special 	education 	route.
As 	the normal workday is 	approximately 7 	a.m. 	to 	4 	p.m., 	that
part 	of 	the ROP 	run that 	extends 	from 4 	p.m. 	to 	5 	p.m. 	is
overtime work. 	For 	a time during 	the 	1986-87 	school year, 	the
District 	had 	a 	part-time driver 	to drive 	the ROP 	run. 	He
resigned, 	however, 	and 	since then the 	regular bus 	drivers 	have
been 	rotating 	the 	assignment 	and 	receiving 	overtime
compensation 	for 	the 	run.
There 	have 	been 	times 	when 	the District 	has 	used 	fewer 	than
four 	drivers 	to 	cover 	the 	four 	regular 	routes. 	According 	to
Frank Herrera, 	manager of 	the transportation department, 	this
occurred when drivers were 	ill 	or when 	one had 	to make 	a 	field
trip. 	Bus 	driver 	Frank Martinez 	testified 	that 	the 	District
assigns 	the mechanic/bus 	driver 	to 	fill 	in when 	a 	regular 	bus
driver 	has 	to 	take on out-of-town trip. 	When there 	is 	a
shortage of 	drivers, 	the District 	gets 	complaints 	from parents
if 	their 	children 	arrive 	late 	at 	a 	stop. 	Herrera 	conceded 	that
the District 	gets 	complaints 	even when there 	is 	a 	full
complement 	of drivers but 	a bus 	is 	a 	few minutes 	late.
State 	law 	precludes 	drivers 	from driving 	more 	than
ten hours 	in a 	sixteen-hour period. 	Thus, 	for 	some trips, 	such
as 	those to Los Angeles, 	the driver will 	have to 	stay overnight
4
4

before 	returning 	students 	to 	Calexico. 	This 	same 	rule 	pertains
to 	drivers 	of 	buses 	secured 	by chartered 	contract.
Prior 	to 	1984, 	The District 	ordinarily 	assigned 	its 	own bus
drivers 	to 	drive 	district-owned 	buses 	for 	field 	trips. 	These
trips 	could be 	for 	athletic events, 	to 	take band members 	to
parades 	at 	other 	towns 	or 	for 	academic 	trips.
The 	timing 	of 	field 	trips 	varies. 	Some 	are on Saturday 	and
do 	not 	interfere with 	regular 	driver 	responsibilities. 	Some
occur 	entirely within the 	regular workday or 	nearly 	so, 	such 	as
when 	the 	trip begins 	at 	6:00 	a.m. 	and 	ends 	at 	5:00 	p.m. 	Some
begin 	at 	noon 	and 	end 	at 	11:00 	p.m.
In 	1984, 	the District 	began chartering buses 	for
out-of-town trips. 	Prior 	to 	that 	time, 	whenever 	the District
used 	a 	private bus 	for 	an out-of-town trip, 	the cost 	of 	the bus
was 	paid by booster clubs 	for, 	for 	example, 	trips 	to divisional
athletic 	games. 	Also 	contracted 	out were 	buses 	for 	"Grad
Night", 	a 	trip to Disneyland. 	This 	and other 	such trips were
paid 	for with 	funds 	raised 	by 	students.
The District 	has 	two mini-buses with 	16 	seats. 	Prior 	to
1984, 	the District 	assigned unit member 	bus drivers 	to 	drive
those vehicles 	to 	events 	such 	as 	basketball 	and 	tennis 	events.
After 	1984, 	however, 	coaches with vans 	and teachers, 	using
their 	own private vehicles, 	would 	transport 	students.
Prior 	to 	1986, 	one coach had a van. 	On occasion, 	the
District would 	rent 	an 	additional 	van. 	In 	1985-86, 	the
5

District purchased 	a van, 	and the next year 	it purchased 	a
second van. 	Teachers 	and other 	employees 	of 	the District, 	but
not 	bus 	drivers, 	were 	and 	are 	assigned to drive the vans.
Since 	the 	District 	purchased 	the vans 	there has 	been 	a 	sizeable
increase 	in 	requests 	for 	their use. 	For example, 	in the 	last
school 	year 	preceding 	the 	formal 	hearing 	(since August 	of
1986), 	there were 	over 	50 	requests 	for 	the 	vans 	— 	mostly by
coaches.
As 	a 	result 	of 	the 	increase 	in both 	the contracting 	out 	for
transportation 	services 	and 	the 	assignment 	of 	teachers 	to 	use
the vans, 	the unit members 	have 	suffered 	a drop 	in overtime
income. 	Frank Martinez's 	overtime 	pay dropped 	from $500 	to
$600 	per month 	(for 	a 	three-month 	average) 	to 	around 	$100 	per
month. 	(He 	received 	$117 	in overtime pay for 	the month
immediately preceding 	the 	hearing.) 	As 	recently 	as 	spring 	of
1986, 	Martinez 	had 	two 	out-of-town trips 	scheduled 	(in 	fact 	he
was 	in his 	bus 	at 	the 	assigned 	school) 	only to 	be 	told 	that 	the
students 	had 	already been 	transported 	by 	chartered 	buses 	hired
by 	the 	District.
The 	District 	submitted 	documentary evidence 	that 	shows 	that
from 1980 	to the present, 	except 	1983 	and 	1984, 	there has been
a 	rather 	consistent 	pattern 	of 	overtime 	earnings 	for 	individual
bus drivers. 	In 1981, 	Mr. 	Martinez earned $3,229 	overtime. 	In
1982, 	he earned $2,862. 	In 1985, 	he earned $2,850 	and 	in 1986
his 	overtime 	earnings were 	$2,134.
6
6

This 	documentary evidence 	does 	not 	rebut 	Martinez's
contention 	about 	loss 	of 	overtime, 	however. 	The District
figures, 	although 	showing 	relatively constant 	annual 	overtime
earnings, 	are obscured by the 	fact 	that 	the drivers 	have
received 	an 	eight-percent 	increase 	in 	salary 	for 	each 	of 	the
last 	three years.
There 	has 	been no 	reduction 	in 	the 	regular 	hours 	or 	regular
salary of 	the bus 	drivers 	as 	a 	result 	of 	the District's 	use of
outside 	charter 	companies 	or 	assignment 	of 	other 	District
employees 	to 	drive 	the 	District-owned 	vans.
The 	Collective 	Bargaining 	Agreement 	and 	Bargaining 	History
In the 	fall 	of 	1983, 	CSEA advanced 	a 	package proposal 	for 	a
one-year 	agreement 	that 	included 	a 	provision 	on 	contracting 	out.
The 	provision was 	a 	ban on contracting 	out work 	"which has
been 	customarily 	and 	routinely performed 	or 	is 	performable 	by
employees 	in 	the 	bargaining 	unit 	. . . " 	unless 	specifically
permitted 	by the Education Code. 	The 	proposal 	further
contained 	a 	ten-day 	notice 	requirement 	to 	CSEA 	before 	any
contract 	could 	be 	let 	"for 	services which might 	affect
employees 	in 	the 	bargaining unit."
The parties met 	on December 	7, 	1983, 	and discussed CSEA's
proposal.
Romo 	conveyed 	a 	counterproposal 	that 	added 	to 	the 	first
paragraph, 	dealing with the 	restriction on contracting out, 	the
following:
77

This 	section 	shall 	not 	be 	interpreted 	as
prohibiting 	the 	District 	from 	contracting
out work under 	this 	section 	if 	such work can
not 	be 	performed 	by unit members 	because 	of
current 	departmental 	work demands 	or 	because
of 	the 	compelling 	nature 	of 	the 	situation.
The 	District 	shall 	notify CSEA of 	this
decision 	as 	soon 	as 	administratively
possible.
In 	response 	to 	the notice 	provision offered by CSEA, 	the
District 	countered:
No 	contract 	for 	services 	which might 	affect
employees 	in 	the bargaining unit 	in the way
of wages 	and/or 	hours 	shall 	be 	let until
CSEA has 	been given notice 	of 	the District's
proposed 	action no 	less 	than 	20 	days 	in
advance. 	After notice has 	been given, 	the
Association 	shall 	immediately 	present 	any
demand 	to 	bargain 	over 	this 	decision 	and 	its
effect.
Doyle Newell, 	CSEA bargaining 	specialist, 	was 	advising 	the
CSEA 	in 	these 	negotiations. 	He 	countered 	Romo's 	hand-written
draft with 	additional 	language. 	He 	added, 	"or 	other 	terms 	and
conditions 	of 	employment" 	to Romo's 	first 	sentence. 	He 	further
added 	at 	the 	end 	of 	the 	District's 	proposal 	the 	following:
After notice has been given, 	CSEA shall, 	as
soon as 	administratively possible, 	present
any demand 	to 	bargain over 	this 	decision 	and
its 	effect.3 This 	section 	shall 	be
subject 	to 	the 	provisions 	of 	the grievance
3 The 	precise 	source 	of 	this 	sentence 	cannot 	be
established 	from the 	record. 	Romo's 	handwritten draft 	as
reflected 	in District's 	Exhibit 	7, 	and 	purportedly presented 	at
the 	table on December 	7, 	contains 	the 	sentence. 	Yet CSEA's
Exhibit 	3, 	the 	same document 	but with Newell's 	handwritten
modifications, 	does 	not 	contain the 	sentence 	in Romo's
handwriting, 	but 	rather 	in Newell's handwriting.
Co	8

procedures, 	set 	forth 	in the Personnel
Commission Rules 	and Regulations. 	Nothing
in 	this 	section 	shall 	be 	constructed 	as 	a
waiver 	of 	the Association's 	right 	to 	pursue
rights 	set 	forth 	in 	section 	(Sic) 	10.7 	of
the Government Code 	(SB 	160).
As 	revised 	by Newell's 	counterproposal, 	the Romo 	proposal
was 	agreed to by the parties on. December 7, 	1983, 	Thus, 	the
parties 	agreed 	to 	the 	following 	language:
Section 9
A. 	During 	the 	term of 	this 	agreement 	the
District 	agrees 	that 	it will 	not 	contract
out work which 	has 	been 	customarily 	and
routinely performed 	or 	is 	performable 	by
employees 	in 	the 	bargaining 	unit 	covered 	by
this 	agreement 	unless 	the 	contracting
proposed 	is 	specifically 	permitted 	by 	the
Education Code. 	This 	section 	shall 	not 	be
interpreted 	as 	prohibiting 	the 	District 	from
contracting 	out work under 	this 	section 	if
such work 	cannot 	be 	performed 	by unit
members 	because 	of 	current 	departmental 	work
demands 	or 	because 	of 	the 	compelling 	nature
of 	the 	situation. 	The District 	shall 	notify
C.S.E.A. 	of 	this 	decision 	as 	soon as
administratively 	possible.
B. 	Notice to C.S.E.A. 	- No 	contract 	for
services which might 	affect 	employees 	in 	the
bargaining unit 	in the way of wages, 	hours,
or 	other 	terms 	and 	conditions 	of 	employment
shall 	be 	let until 	C.S.E.A. 	has 	been given
notice 	of 	the 	District's 	proposed 	action no
less 	than twenty 	(20) 	days 	in advance.
After notice has 	been given, 	C.S.E.A. 	shall
as 	soon 	as 	administratively possible 	present
any demand 	to 	bargain over 	this 	decision 	and
its 	effects. 	This 	section 	shall 	be 	subject
to 	the provision of 	the grievance 	procedure,
set 	forth 	in the 	Personnel 	Commission Rules
and Regulations. 	Nothing 	in 	this 	section
shall 	be 	construed 	as 	a waiver 	by C.S.E.A.
to 	pursue 	rights 	set 	forth 	in 	section 	10.7
of 	the Government Code 	(SB 	160).
9
9

This 	provision has 	not 	been modified 	since 	agreed 	to 	on
December 	7, 	1983, 	despite 	annual 	reopeners 	and new collective
bargaining 	agreements.
At 	the December 	7 meeting, 	in conjunction with his
counter-proposal, 	Romo 	explained 	to 	the CSEA bargaining 	team
representatives 	that 	the 	contracting 	out 	provision was 	to meet
an overload 	situation due 	to 	an emergency or when, 	because 	of
the 	circumstances, 	needed work could 	not 	be 	performed 	by 	the
current 	complement 	of 	employees. 	The 	intent was 	not 	to 	allow
the 	District 	to 	contract 	out work 	in order 	to 	reduce 	the 	hours
of 	employees. 	Romo 	told 	the CSEA bargaining 	team that when 	the
decision would 	impact 	upon wages 	or 	hours 	the 	District would
have 	to 	negotiate 	the decision 	and 	the 	impact with CSEA.
Romo's 	understanding was 	that 	Section 	9A was 	designed 	to
allow 	the 	District 	flexibility 	to 	contract 	out 	either where
departmental 	work demands 	would 	not 	allow 	for 	the 	current
complement 	of 	employees 	to 	perform the 	project 	in 	a 	timely
fashion, 	or 	in 	an emergency situation.
On 	the 	notice 	provision, 	the 	District was 	concerned 	about
what 	CSEA meant 	by 	"might 	effect 	employees 	in 	the 	bargaining
unit". 	For 	that 	reason 	the District 	proposed, 	"No 	contract 	for
services 	which might 	affect 	employees 	in 	the 	bargaining 	unit 	in
the way of wages 	and hours 	shall 	be 	let until 	CSEA had been
given notice 	of 	the District's 	proposed 	action."
Because 	of 	CSEA's 	concern 	about 	monitoring 	how 	the 	District
would 	implement 	section 	9A, 	it 	proposed 	and 	the District 	agreed
10

to 	place 	the 	notice 	and monitoring 	provision within 	the
contractual 	grievance 	machinery.
CSEA 	negotiating 	committee 	vice-chairperson 	Valenzuela
testified 	that 	at 	the December 	7 	bargaining 	session 	the 	parties
discussed what was 	to 	be 	considered 	an 	emergency. 	The 	term was
defined 	as 	a 	threat 	to 	the health or 	safety of 	students 	or
staff. 	The discussion of 	department 	needs 	as 	used 	in 	Section
9A was 	focused 	on maintenance 	and 	grounds 	such 	as 	paving 	of 	the
basketball 	court, 	setting up 	fences 	or 	pruning 	trees.
CSEA was 	also 	concerned 	about 	field 	trips. 	It 	felt 	the 	new
language 	would 	protect 	the 	staff 	from having 	duties 	withdrawn
from them. 	Prior 	to 	the dispute's 	arising, 	the 	staff 	always
performed 	those 	duties. 	Valenzuela 	testified 	that 	extra 	trips
were mentioned. 	CSEA's 	big 	concern was 	to 	protect 	the members
of 	the 	bargaining 	unit. 	They were 	afraid 	of 	the 	elimination
of 	positions 	because 	of 	the 	District's 	contracting 	out 	for
services. 	They were 	aware of 	such events 	happening 	in other
school 	districts. 	Reduction of 	hours was 	discussed but,
according 	to Valenzuela, 	there was 	no 	specific 	reference 	to
"regular" 	hours. 	Rather, 	just 	"hours" were mentioned.
Newell 	said 	the 	December 	7 	negotiating 	session 	discussion
centered 	on 	limiting 	the 	District's 	ability to 	contract 	out 	for
any 	service 	which would 	adversely 	impact 	upon 	the 	employees 	in
the 	unit. 	They 	also 	discussed 	avoiding 	impediments 	to 	the
District's 	right 	to 	contract 	out 	matters when 	necessary 	for 	the
District 	to 	conduct 	its 	business. 	There was 	a general
11

discussion of 	other 	District's 	contracting 	out, 	pursuant 	to 	the
Education 	Code 	and 	about 	CSEA's 	concern 	about 	elimination 	of
positions.
Newell's 	understanding was 	that 	section 	9B was 	a 	specific
limit 	on 	anything 	that would 	impact 	on wages, 	hours 	and 	other
conditions 	of 	employment. 	CSEA wanted 	available 	both 	the
grievance mechanism 	to 	check 	any District 	contracting 	out 	and
the 	right 	to 	file 	an unfair 	practice charge.
Based upon 	the 	foregoing 	testimony, 	and 	in particular 	the
unrebutted 	testimony of 	Valenzuela, 	that 	the 	parties 	did 	not
talk about 	"regular" 	hours, 	as opposed to hours 	in general, 	it
is 	found 	that 	the parties did not discuss 	the 	impact- of
section 	9B upon overtime hours.
The 	1983-1987 	collective 	bargaining 	agreement 	(the 	parties
originally 	signed 	a 	three year 	agreement 	and 	it 	has 	been
extended 	each 	subsequent 	year) 	contained 	a 	provision on
overtime 	(Section 	5 ) . 	It provided 	for 	assignment 	of 	overtime
on 	a 	rotation based 	on 	seniority, 	but 	the 	provision 	applied
only to maintenance 	and operation employees, 	not bus 	drivers.
In 	1984, 	for the 1984-85 	school year, 	the parties
negotiated 	an 	amendment 	to 	the overtime provision, 	adding
transportation employees, 	meaning 	bus 	drivers.
In 	negotiations 	for 	the 	1986-87 	school year, 	CSEA proposed,
among others, 	a provision on overtime. 	The proposal was 	as
follows:
When 	overtime work 	is 	required 	in 	any
classification, 	the 	regular 	employees
12

working within 	that 	classification 	shall 	be
given 	the 	option 	to work overtime 	instead 	of
hiring 	temporary 	help.
Romo 	understood 	the 	proposal 	as 	a 	guarantee 	of 	overtime.
He originally testified 	that 	CSEA was 	trying, 	by 	this 	proposal,
to 	get 	transportation employees 	into 	the 	contractual 	overtime
provision 	providing 	for 	assignment 	by 	rotation 	based 	on
seniority. 	However, 	Romo 	later 	conceded 	the 	1984 	amendment 	had
already 	achieved 	that 	result. 	What 	prompted 	CSEA's 	1986
proposal 	on 	overtime were 	complaints 	by clerks 	that 	the
District was 	going 	to 	reduce 	their 	overtime 	opportunities 	by
hiring 	temporary 	help.
The parties 	met on July 22 	and 	23, 	1986 	and 	language was
finally 	agreed 	upon. 	A 	rewording 	of 	the 	existing 	contract
language, 	without 	substantive change, 	and the following
addition became 	the new provision on overtime. 	Sections 	5B 	and
C were 	added 	to 	read:
B. 	Nothing 	in 	this 	section 	shall 	be
interpreted 	as 	guaranteeing 	any 	employee 	or
group 	of 	employees 	the 	assignment 	of
overtime 	as 	a 	condition of 	their
employment. 	Nor 	shall 	this 	section be
interpreted 	as 	prohibiting 	the 	District 	from
assigning 	extra 	time 	to 	employees 	on 	a
seniority 	basis 	within 	that 	class 	whose 	last
evaluation was 	satisfactory or 	better 	who
are not 	in working 	status 	or 	hiring
temporary help when 	it 	is 	necessary 	to
complete 	a 	project 	that 	a 	unit member 	could
not 	complete during 	the 	unit 	member's 	normal
workday.
C. 	During 	the 	school 	year 	the District 	may
hire 	extra 	help 	using 	the 	eligibility 	list.
13

Romo 	testified 	that 	he 	had discussed with Felix, 	in
conversations 	at 	the 	conclusion of 	the 	July 22 	meeting 	but 	not
in 	the 	presence 	of 	other 	CSEA bargaining 	team members, 	the
impact 	of 	the no-guarantee 	provision on bus 	drivers.. 	He 	told
her 	that 	it was 	the District's 	position 	that 	there was 	no
guarantee 	of 	overtime 	in 	the 	District 	and 	that 	the 	next 	day he
was 	going 	to 	present 	a 	proposal 	that 	addressed 	that 	issue 	and
that 	it would 	"naturally 	impact 	upon 	some 	other 	things 	that
they were 	talking 	about 	beforehand 	relative 	to 	the 	bus 	driver
situation." 	The 	impact 	upon 	bus 	drivers 	was 	not 	ever 	discussed
at 	the bargaining 	table, 	however.
Oftentimes, 	he 	and Felix, 	have 	stepped out 	of 	negotiating
sessions 	and 	have worked 	out 	issues 	that 	were 	holding 	up 	the
process.
The 	District's 	Contracting 	Out 	of 	Transportation 	Services
Sometime 	in 	late 	spring of 	1984, 	in 	response 	to 	a 	request
from Goad, 	her 	supervisor, 	Valenzuela 	undertook 	a 	cost 	analysis
of 	all contracted services, 	including 	leases, 	rents,
et 	cetera. 	She 	discovered 	that 	the 	District 	had 	spent 	over
$5,000 	that 	school year 	to 	rent 	vans 	and 	charter 	buses. 	She
told 	Goad 	that 	the 	District was 	not 	complying 	with 	the
contract.4 Goad 	said 	he would 	look 	into 	it.
4Valenzuela 	was 	under 	the 	impression 	that 	the 	contracting
out 	provision was 	not 	to 	be 	operative 	until 	the 	1984-85 	school
year. 	Romo 	also 	testified 	to 	that 	belief. 	There 	is 	no
language 	in 	the 	contractual 	provision 	setting 	forth 	such 	a
beginning date, 	however.
14

In the 	fall 	of 	1984, 	Valenzuela noticed purchase orders 	for
vehicle 	rentals 	had 	increased 	in number 	and 	frequency. 	She
again 	spoke 	to 	Goad who 	again 	said 	he would 	look 	into 	it.
In 	January of 	1985 	Valenzuela 	noted 	the 	problem was 	still
occurring. 	At 	a negotiating 	session on March 25, 	1985, 	she
spoke 	to Romo 	about 	it, 	who 	said he would 	speak to
Superintendent 	Dadey.
Neither 	Valenzuela 	nor 	CSEA 	heard 	anything 	from 	the
District. 	In the 	fall 	of 	1985, 	she 	again noticed purchase
agreement 	orders 	to 	rent 	buses 	and vans. 	She 	spoke with Felix,
and 	a 	meeting was 	arranged with Dadey 	in November 	of 	1985. 	At
the meeting, 	Felix 	asked Dadey about 	the 	District's 	contracting
out 	chartered 	buses 	or 	vans 	to 	transport 	students 	out 	of 	the
valley. 	Felix 	told Dadey 	that 	the 	District was 	in violation of
the 	contract. 	Dadey told 	her 	that 	he 	had 	been 	thinking 	of
having 	part-time drivers 	to 	alleviate 	the 	problem. 	No
indication was 	provided 	how 	soon 	the 	drivers 	would 	be 	hired.
There was 	no 	further 	contact 	or 	comment 	on 	the 	subject 	from
Dadey.
Valenzuela was 	aware 	that 	teachers were driving 	vans 	as 	she
was 	processing 	the purchase order 	invoices. 	Margarita Matus, 	a
bargaining 	team member, 	processed 	over 	50 	requests 	for 	coaches
or 	teachers 	to 	drive 	the vans 	in the 	1986-87 	school year.
On February 26, 	1986, 	Goad wrote to 	CSEA on the 	subject 	of
outside transportation. 	"Pursuant to section 9 of the 	. 	. 	.
15

contract," wrote Goad, 	"the . 	. 	. District proposes that 	. 	. 	.
[it] 	. . . 	be 	allowed 	to 	contract with 	private 	carriers 	and/or
rent 	vans 	for 	the 	purpose 	of 	transporting 	students 	out 	of
Imperial 	County." 	Goad 	noted 	that 	it was 	cheaper 	to 	use
outside 	carriers 	than District 	vehicles 	and 	staff, 	and 	further,
that 	the 	District was 	"short-handed 	in 	relationship 	to 	the
number 	of 	licensed 	drivers 	for 	the 	home-to-school 	trips."
Goad 	told Romo 	of 	the 	letter. 	Romo 	did 	not 	feel 	the
District 	was 	obligated 	to 	negotiate 	contracting 	out. 	He
suggested, 	however, 	that 	the District meet with CSEA.
Meanwhile, 	in early spring of 	1986, 	Valenzuela noticed 	a
series 	of 	invoices 	for 	chartered buses 	for 	athletic 	events
scheduled 	in March.5 She 	took the 	invoices 	to 	Goad 	and
described 	the 	problem. 	Goad's 	secretary 	returned 	the 	invoices
later, 	with directions 	to Valenzuela 	to 	cancel 	the 	trips. 	The
secretary 	told Valenzuela 	that 	Goad 	did 	not want 	to 	violate 	the
collective 	bargaining 	agreement. 	Valenzuela 	cancelled 	the
orders.
5
A week 	later Valenzuela 	was 	told 	to 	reinstate 	the 	orders
and 	that 	if 	she had 	a problem, 	she was 	to 	see Dadey.66
5Valenzuela 	is 	an 	account 	clerk 	in 	the 	accounts 	payable
department.
6One 	effect 	of 	the 	reinstatement was 	that, 	as 	noted
above, 	Martinez drove a bus 	to 	school 	and waited. 	After 	a
while 	he was 	told 	that 	a 	chartered 	bus 	had 	already taken 	the
students 	on 	a 	trip. 	Another bus 	driver 	also 	lost 	an
out-of-town trip 	as 	a 	result 	of 	this 	reinstatement.
16

A meeting 	was 	held 	in April with Dadey. 	He was 	charged 	by
CSEA with violating 	the contract. 	He 	replied, 	"I 	know 	it 	- 	so
what." 	He 	told CSEA that 	he 	had 	the 	comfort 	of 	the 	children 	in
mind 	and 	that 	if 	the trip was 	out 	of 	the valley, 	then he wanted
the children 	to 	go 	in comfort.
CSEA offered 	to 	take 	three 	of 	the 	five 	trips 	remaining.
Dadey 	said 	no. 	CSEA said 	it would 	file 	an unfair 	practice
charge. 	Dadey 	invited 	CSEA 	to 	sue 	him.
Thus, 	Goad's 	letter of 	February 26 	and Dadey's 	notice to
CSEA 	that 	out-of-valley trips were 	to 	be 	contracted 	out 	is 	the
first 	CSEA 	knew of 	the 	District's 	plan 	for 	a 	systematic
contracting 	out 	on 	the 	basis 	of 	the 	"out-of-valley" 	criteria.
A meeting 	between 	Romo 	and 	CSEA's 	bargaining 	team was 	held
on April 	23, 	1986, 	where 	the parties 	discussed the District's
plans 	to 	use 	outside carriers 	to 	transport 	students 	to 	athletic
events 	remaining 	for 	the 	1985-86 	school year. 	The 	parties
discussed 	the 	possibility of 	the District's 	contracting 	out 	for
three of 	the 	five 	remaining 	trips 	for 	the 	school year. 	No
agreement was 	reached 	at 	that 	session. 	In 	response to 	a
request 	from Felix 	at 	the 	conclusion of 	the meeting, 	Romo wrote
to Felix on April 	30, 	1986, 	regarding 	"a written proposal 	from
the 	District 	regarding 	transportation of 	student/athletes 	for
the 	1986-87 	school 	year." 	The 	proposal was 	that 	the District
could 	contract 	out up 	to 	three 	trips 	for 	each major 	sport
event, 	with major 	sport 	defined. 	Romo 	also 	stated 	that 	the
17

current 	practice 	of 	contracting 	out 	transportation 	for 	playoffs
competition was 	to 	continue. 7
By 	letter 	dated May 	9, 	1986, 	Felix demanded 	of 	Dadey
"officially 	. 	. 	. 	to negotiate the decision to contract out any
and 	all 	transportation trips 	as well 	as 	the effects 	of 	such
decision, 	if 	any." 	Felix noted the District's 	failure to give
CSEA 20 	days' 	notice per 	the collective bargaining 	agreement
and 	announced 	CSEA's 	intention 	to 	file 	an 	unfair 	practice
charge 	(no 	later 	than May 14, 	1986) 	on the District's
contracting 	out 	transportation 	from 	September 	of 	1985.
On May 14, 	1986, 	Romo wrote to Valenzuela, 	confirming 	a
conversation wherein 	he 	had 	informed 	her 	of 	the 	District's
interest 	in discussing 	the 	contracting 	out 	of 	transportation
services. 	He 	confirmed 	his 	understanding 	that 	CSEA would 	delay
legal 	action pending 	their 	discussions. 	This 	lead 	to 	a meeting
on May 23,1986.
On May 23, 	1986, 	the parties met 	and CSEA made proposals
that were unacceptable 	to 	the District. 	CSEA had 	apparently
offered 	to 	give up half 	of 	the 	trips 	to 	charter. 	CSEA
announced 	its 	intention 	to 	file 	an unfair 	practice 	charge.
7The 	only 	evidence 	on past 	practice with 	respect 	to
chartering 	transportation 	for 	divisional 	or 	championship 	games
was 	the 	testimony of Martinez. 	He 	said that 	prior 	to 	1984 	the
chartering 	of 	buses 	for 	games 	was 	paid 	for 	by the 	booster
club. 	After 	1984, 	he 	said, 	the District began paying 	for 	the
chartering 	of 	buses 	for 	these 	games.
18

On May 23, 	Felix requested 	from Goad, 	in writing, 	copies of
all 	purchase 	orders 	or 	pay vouchers 	reflecting 	District-paid
chartered buses 	or vehicles 	from September 	1985, 	"to 	resolve
the 	issue of 	contracting 	out."
Felix 	also 	wrote 	the 	board 	president 	complaining 	that 	the
negotiating 	session 	of 	May 23 	was 	"most 	unsatisfactory." 	Felix
charged 	that 	the District was 	in 	"direct" 	violation of 	the
agreement 	and 	that 	"Dadey 	refuses 	to 	compensate 	our 	employees
affected 	by 	the District's 	illegal 	activities."
While 	the 	parties met 	during 	the 	summer 	on other 	issues, 	no
discussion 	of 	contracting 	out 	took place 	until 	the 	following
September. 	The unfair 	practice 	charge was 	filed 	on
August 14, 	1986.
In advance of 	a meeting 	set for September 	12, 	1986, 	the
District 	submitted 	a 	schedule 	to 	CSEA 	for 	trips 	by District
buses 	and 	by chartered 	buses 	for 	the 	1986-87 	school 	year.
Planned were 	some 	49 	trips 	by District 	buses 	and 	27 	trips 	by
chartered buses. 	Listed 	by sports, 	the 	schedule planned
chartered 	buses 	through May of 	1987. 	No 	such 	schedule 	had
been 	transmitted 	to 	CSEA 	by 	the District 	before.
g
g
8 In 	a memo dated September 	5, 	1986 	to Dadey, 	Principal
John Anderson 	stated 	that 	the 	use 	of 	chartered 	buses 	were 	for
"out-of-valley 	travels."
9 Romo 	conceded, 	while 	testifying 	at 	the 	formal 	hearing,
that 	the 	District 	could 	not 	anticipate 	emergency 	conditions 	or
departmental 	demands 	that 	far 	in 	advance.
19

At 	the 	September 	12 	meeting, 	CSEA proposed 	to 	allow one
trip 	per 	sport 	to 	be 	chartered. 	CSEA would 	not 	agree 	to 	the
use 	of 	District 	vans 	to 	transport 	students/athletes 	unless 	the
vehicle was 	driven by a 	District 	bus 	driver.
Romo wrote to Felix on September 22, 	1986, 	characterizing
the September 	5 	(the 	1986-87 	schedule) 	memo 	as 	the 	"District's
proposal" 	and 	stating 	that 	CSEA had 	rejected 	the 	proposal.
ISSUES
The 	issues 	in 	this 	case 	are whether 	the District 	violated
sections 3543.5(a), 	(b) or (c) by:
1. 	Contracting with private 	charter 	companies 	for 	the
transportation of 	students, 	or
2. 	Transferring 	to 	nonunit 	District 	employees 	the
transportation of 	students.
CONCLUSIONS 	OF 	LAW
A public 	school 	employer 	is 	obligated 	to 	meet 	and 	negotiate
with the exclusive 	representative, 	upon 	request, 	with 	regard 	to
matters within the 	scope of 	representation. 	See 	section
3543.3. 	Under section 3543.5(c), 	it 	is expressly unlawful 	for
the employer 	to 	refuse or 	fail 	to meet 	and negotiate 	in good
faith with 	the 	exclusive 	representative. 	In Modesto 	City
Schools 	and High School District 	(1984) 	PERB Decision No. 	414,
PERB 	stated:
An 	employer violates 	its 	duty 	to 	negotiate
in 	good 	faith when 	it 	unilaterally changes
an 	established 	policy 	affecting 	a 	matter
within 	the 	scope 	of 	negotiations 	without
affording 	notice 	and 	an 	opportunity 	to
20

negotiate 	to 	the 	exclusive 	representative.
Grant 	Joint Union 	High 	School 	District
(1982) 	PERB Decision No. 	196; 	Pajaro Valley
Unified 	School District 	(5/22/78) 	PERB
Decision No. 	51; 	NLRB v. 	Katz 	(1962) 	369
U.S. 	736 	[50 LRRM 2177].
Established 	policy may 	be 	reflected 	in 	a
collective 	agreement, 	Grant, 	supra, 	or where
the 	agreement 	is vague or 	ambiguous, 	it may
be 	determined 	by 	examining 	the 	past 	practice
or 	relevant bargaining 	history, 	Rio Hondo
Community College District 	(12/31/82) 	PERB
Decision No. 	279; 	Pajaro Valley, 	supra.
PERB 	precedent makes 	it 	clear 	that 	both decisions, 	and 	the
effects 	of decisions, 	to 	contract 	out 	services 	performed by
bargaining 	unit members 	are matters within 	the 	scope 	of
representation. 	Arcohe Union School 	District 	(1983) 	PERB
Decision No. 	360. 	The unilateral decision to 	implement
subcontracting 	as 	a means 	to maintain 	a 	certain 	level 	of
services 	is 	a 	per 	se 	refusal 	to 	negotiate 	in good 	faith.
San Francisco 	Community College District 	(1979) 	PERB Decision
No. 105.
Likewise, 	numerous 	PERB cases 	have held that 	the decision
to 	transfer work out 	of 	the 	bargaining 	unit 	is 	negotiable 	so
long 	as 	it 	impacts upon 	a 	subject within the 	scope of
representation. 	Rialto Unified 	School 	District 	(1982) 	PERB
Decision No. 	209; 	Solano 	County Community College District
(1982) 	PERB Decision No. 	219. 	Absent 	a valid defense, 	the
District 	violates 	section 	3543.5(c) 	when 	it unilaterally
transfers 	unit work 	to 	employees 	outside 	the unit without 	first
negotiating 	with 	the 	exclusive 	representative 	for 	the 	unit
21

employees. 	Goleta Union 	School District 	(1984) 	PERB 	Decision
No. 391.
Here 	the 	contracting 	out 	and 	the 	transfer 	of 	field 	trip
assignments 	affected 	the 	overtime 	earnings 	of 	unit 	employees.
The diminution of 	overtime 	opportunity constitutes 	a 	change 	in
wages, 	an enumerated scope 	item, 	and is 	subject 	to
negotiations. 	State of 	California 	(Dept. 	of 	Transportation)
(1983) 	PERB Decision No. 	333-S.
The 	District 	advances 	essentially 	three 	arguments 	in 	its
defense 	to 	the charge.10 It urges 	that 	the CSEA has	10
10Two 	additional 	affirmative 	defenses 	were 	raised 	in 	the
answer. 	One 	defense 	is 	that 	PERB 	lacks 	jurisdiction over 	the
matter 	in 	that 	Charging 	Party 	is 	attempting 	to 	enforce 	the
terms 	of 	a 	contract. 	In Grant Joint Union High School District
(1982) 	PERB Decision No. 	196, 	the Board held that 	the statutory
prohibition 	against 	PERB's 	enforcement 	of 	contracts
(section 3541.5(b)) 	does 	not preclude 	a 	finding 	of 	an unfair
practice where 	the District's 	conduct 	amounts 	to 	a 	change 	in
established 	policy, 	whether 	embodied 	in 	an 	agreement 	or 	past
practice, 	and 	the 	change has 	a 	generalized 	effect 	or 	continuing
impact 	upon 	terms 	and 	conditions 	of 	bargaining 	unit members.
This 	case meets 	both criteria. 	The 	practice was 	to 	allow unit
member 	bus 	drivers 	to make 	field 	trips. 	The District 	agreed
not 	to 	contract 	out 	services 	except 	for 	the provisions 	of
section 	9. 	The change 	in policy, 	to contract out 	for
out-of-valley trips, 	had generalized 	impact 	on 	the 	overtime
opportunities 	of bus drivers.
The 	other 	affirmative defense 	raised 	in 	the 	answer 	is 	that
the 	charging 	party has 	failed 	to 	exhaust 	the 	internal 	complaint
procedures 	contained within the 	bargaining 	agreement. 	This 	is
in the nature of 	a deferral. 	PERB 	regulation section 32646,
(Cal. Admin. 	Code, 	title 8, 	part III, 	section 32646) 	requires
the 	respondent 	to 	"move to dismiss 	the complaint, 	specifying
fully the 	legal 	and 	factual 	reasons 	for 	its 	motion." 	The
respondent 	did 	not 	so move, 	either 	before or 	during 	the
hearing. 	In 	addition, 	no 	such argument was 	advanced 	in 	its
post-hearing 	brief. 	It 	is 	concluded 	that 	the 	respondent 	has
abandoned 	this 	claim.
22

contractually waived 	its 	right 	to 	negotiate 	the 	contracting 	out
of 	transportation services 	and, 	separately, 	that 	CSEA
acquiesced 	in 	the District's 	action. 	It 	also urges 	that 	the
District 	did 	in 	fact 	comply with 	the 	notice 	provisions 	and 	did
meet 	and 	negotiate with 	CSEA 	to 	the 	extent 	required 	by 	the
collective 	bargaining 	agreement.
At 	the outset 	of 	these conclusions, 	it must 	be observed
that 	the 	contracting 	out 	provisions 	do 	not 	apply 	to 	transfer 	of
work 	from unit 	employees 	to 	other 	employees 	of 	the District.
Goleta Union School District 	(1984) 	PERB Decision No. 	391.
Thus, 	whatever 	authority the District 	had under 	section 	9 	of
the 	agreement, 	that 	authority does 	not 	give the District 	the
right 	to 	transfer 	bargaining 	unit work 	to 	District-employed
teachers 	or 	coaches. 	This will 	be discussed 	infra.
Waiver 	by 	Contract
The 	District 	finds 	"clear 	and unmistakable waiver" 	by CSEA
of 	the 	right 	to 	negotiate 	in the 	following 	three 	respects: 	the
District 	is 	not 	obliged 	to 	negotiate with CSEA when 	its
contracting 	of 	services 	is 	to meet 	an emergency 	(Section 	9A);
secondly, 	when the work demands 	of 	the unit 	employees 	are 	such
that 	they cannot 	meet 	the 	District's 	transportation 	needs
(Section 9A); 	third, 	and in effect an umbrella waiver, 	is
claimed whenever 	the contracting 	out will 	have 	no 	effect 	on 	the
"regular" 	hours 	of 	the unit 	employees 	(Section 	9B.)
This 	interpretation, 	contends 	the District, 	is based on the
23

history of 	bargaining 	of 	section 	9. 	Section 	9 	was 	negotiated
at CSEA's 	insistence, 	in an effort 	to prevent 	loss 	of
bargaining 	unit 	positions. 	At 	that 	time, 	the District 	raised
its 	concern 	for 	the 	need 	to 	respond 	to 	emergency conditions 	or
a 	situation 	in which 	the 	current 	staff 	could 	not 	meet 	the
District needs. 	The 	intent of 	the 	language was 	to 	prevent
impacts 	upon 	"regular" 	hours 	of 	unit 	employees. 	CSEA failed 	to
protect 	overtime hours, 	argues 	the District, 	and by 	"negative
inference" 	hours 	other 	than 	regular 	hours 	did 	not 	fall within
the protection of 	section 	9B.
In order 	to 	demonstrate 	that 	CSEA waived 	its 	right 	to
negotiate, 	the 	District must 	show either 	clear 	and unmistakable
language 	or 	demonstrable 	behavior waiving 	a 	reasonable
opportunity 	to 	bargain 	over 	a 	decision 	not 	already 	firmly made
by 	the 	employer. 	Amador Valley 	Joint 	Union High 	School
District 	(1978) 	PERB Decision No. 	74. 	San Mateo County
Community College District 	(1979) 	PERB Decision No. 	94. 	In
Los Angeles 	Community College District 	(1982) 	PERB 	Decision
No. 	252, 	the Board 	adopted the policy of 	the National Labor
Relations Board, 	as follows:
Under 	the 	National 	Labor 	Relations 	Act 	(NLRA
or Act), 	union conduct 	in negotiations will
make 	out 	a waiver 	only 	if 	a 	subject was
"fully discussed" 	or 	"consciously 	explored"
and 	the 	union 	"consciously yielded" 	its
interest 	in the matter. 	Press Co. 	(1958)
121 NLRB 976. 	Moreover, 	where a provision
would 	normally be 	implied 	in 	an 	agreement 	by
operation of 	the Act 	itself, 	a waiver 	should
be express, 	and a mere inference, 	no matter
24

how 	strong, 	should be 	insufficient. 	NLRB v.
Perkins Machine 	(1st Cir. 	1964) 	326 	F.2d
488, 	[55 LRRM 2204]; 	and see American
Telephone 	and Telegraph Co. 	(1980)
250 NLRB 47.
Here 	the 	evidence does 	not 	justify 	a 	conclusion that 	CSEA
has 	"consciously yielded" 	its 	limitation 	on 	the District's
right 	to 	contract 	to 	only the 	"regular" 	hours 	of 	the employees
workday. 	Section 	9B was 	originally 	a 	notice 	provision offered
by CSEA 	to 	check the District's 	contracting 	out 	in either 	of
the 	authorized 	circumstances 	of 	section 	9A. 	The 	District 	added
the 	language 	affecting 	hour 	or wages. 	It 	provided 	no 	evidence
that 	the 	parties 	discussed 	that 	language 	to mean 	only 	"regular"
hours 	or wages. 	There was 	no 	discussion of whether 	the parties
were 	talking 	about 	regular 	hours 	or 	all 	hours 	of 	the unit
employees. 	It 	cannot 	be concluded 	that 	the 	impact 	of 	the
provision was 	fully discussed 	by the 	parties. 	PERB will 	not
infer 	a waiver 	of 	the 	statutory 	right 	to 	negotiate 	a matter
within 	scope. 	Palo Verde Unified 	School 	District 	(1983) 	PERB
Decision No. 	321. 	The District's contention that 	a 	"negative"
inference 	should 	serve 	as 	a 	basis 	for 	finding 	CSEA has 	waived
its 	right 	to 	bargain contracting 	out when 	it 	affects 	overtime
hours 	by 	its 	agreement 	to 	section 	9B 	is 	rejected.
Next, 	the District 	argues 	that 	CSEA waived 	its 	right 	to
negotiate when 	it 	agreed 	to 	contractual 	language, 	which gave
the 	District 	the 	right 	to 	contract 	out 	unit work when 	the
departmental 	work demands 	did 	not 	permit 	the 	performance 	of
25

work by unit members. 	Section 9A provides, 	in pertinent part,
that 	the 	District 	is 	not 	prohibited 	from contracting 	out 	unit
work 	"if 	such work 	can 	not 	be 	performed 	by unit 	members 	because
of current departmental demands 	. 	. 	. 	." 	The District argues
that 	the 	current 	daily 	route 	requirements 	necessitate 	four 	bus
drivers. 	It 	is 	necessary to maintain these 	routes 	on 	a 	timely
basis 	in order 	to 	avoid 	students' 	returning home 	late, 	thereby
avoiding 	phone calls 	from anxious 	parents. 	The 	limitation on 	a
driver's workday of 	10 	hours' 	driving 	in 	a 	16-hour period 	and
longer 	trips, 	such as to Los Angeles or 	San Diego, 	present
additional problems. 	Further, 	on occasion, 	the District had
had more than one driver 	absent due to 	illness, 	injury or 	B .
vacation. 	Thus 	contends 	the District, 	when department work
demands 	preclude use of 	the District drivers, 	it 	has 	no duty to
bargain with 	CSEA.
The 	provision clearly contemplates 	exceptions 	on 	a
trip-by-trip 	basis 	(because 	of 	"current" 	departmental 	work
demands) 	and does 	not 	constitute 	a 	blanket 	authorization to
develop 	a 	policy that 	all 	out-of-valley 	trips would 	be 	by
private 	carrier.
The 	District's 	contention makes 	sense 	only 	if 	one were 	to
apply the 	argument 	to 	specific 	instances 	of 	contracting 	out
where 	a 	determination was 	made 	that 	the 	departmental work
demands 	were 	such 	that 	unit 	members 	could 	not 	provide 	the
additional 	trips 	desired 	by 	the District. 	The 	record 	presented
26

in this 	case was 	not 	that 	the District 	made 	individual
assessments 	that 	student 	transportation 	could 	not 	be met 	by 	the
unit members 	because of 	the unit members' 	regular duties.
Rather, 	the evidence shows 	that 	the District made 	a policy,
unilaterally, 	without 	notice 	to 	CSEA 	(or 	the 	opportunity to
negotiate 	that 	policy) 	that 	all 	out-of-valley bus 	trips were to
be handled 	through contracted 	services. 	This 	decision was made
and 	implemented without 	regard 	to 	whether 	departmental 	needs
precluded 	use 	of 	the unit 	members 	for 	the 	out-of-town 	trips.
In the 	spring of 	1986, 	the District was 	proposing 	to 	schedule a
number 	of 	trips 	by chartered 	transportation. 	During meetings
on this 	proposal 	there was 	no discussion of 	the 	needs 	of 	the
transportation 	department 	that would 	preclude 	unit members 	from
driving 	a 	school 	bus 	for 	the 	trips. 	This 	is 	also demonstrated
by the 	proposed 	schedule 	for 	the 	1986-87 	school 	year, 	for
contracting 	services 	for 	the whole year, 	predicated upon 	the
sole 	criteria 	that 	trips 	out 	of 	the valley would 	be 	contracted
out. 	As 	of 	the time that 	schedule was 	promulgated, 	there was
no manner 	in which the District 	could 	foresee, 	through the
whole 	school year, 	whether departmental 	demands 	precluded use
of unit members.
There 	may have 	been 	instances 	where 	the 	District 	could
establish, 	during 	the 	1985-86 	school year, 	that departmental
demands 	were 	such 	that 	it 	could 	not 	use 	unit members 	for 	the
trips 	otherwise 	serviced by private carriers. 	There 	is 	no
27

evidence, 	however, 	that 	the District 	otherwise complied with
the 	contract 	provision 	requiring 	that 	it 	give CSEA notice 	as
soon 	as 	administratively possible.
Goad's 	letter of 	February 26, 	1986, 	did not 	cite 	specific
planned 	trips 	that 	required 	contracted 	services 	because 	the
work demands 	of 	the unit 	precluded use 	of 	unit members. 	Nor
were 	the 	planned 	trips 	unavailable 	to members 	because 	of 	the
department's 	requirements. 	In March 	1986 	Goad 	cancelled 	all
private 	charter 	purchase 	orders, 	presumably because 	the
District's 	bus 	drivers 	could 	handle 	the 	assigned 	trips. 	There
was 	no 	issue 	of 	departmental 	needs 	raised 	by Goad. 	At 	the
time, 	Romo's 	position was 	that 	the District did not 	need 	to
negotiate with 	CSEA because 	Section 	9B 	authorized 	contracting
out whenever 	such 	contracting 	out 	did 	not 	effect 	the 	regular
hours 	of 	the unit members. 	The proposal made by the District
at 	the May 23 	meeting was 	for 	a 	standard policy of 	up 	to 	three
trips 	per 	sport, 	as defined, 	to be made by chartered buses.
There was 	no 	stated 	connection 	to 	the work demands 	of 	the unit
employees. 	Dadey's 	basis 	for 	refusing 	to 	cease using 	the
chartered 	buses 	was 	because 	he 	had 	the 	comfort 	of 	the 	children
in mind 	for 	trips 	out 	of 	the valley.
Finally, 	the District did 	not 	have 	just 	four 	bus 	drivers,
but 	rather 	it 	had 	six drivers. 	The 	assistant mechanic held 	a
bus 	driver 	license 	and was 	assigned 	bus 	driving 	duties 	when
needed. 	The 	food 	services/bus 	driver was 	also 	available 	to
28

accept 	bus 	driving 	duties. 	The District 	had used 	the
mechanic/bus 	driver 	to 	take 	the 	place 	of 	the 	regular 	bus 	driver
when 	the 	latter was 	transporting 	students 	on 	a 	field 	trip. 	The
evidence 	also 	shows 	that 	the District was 	not 	precise 	in 	its
determination 	that 	unit 	members 	could 	not 	accommodate 	the 	added
busing needs. 	On two 	occasions, 	during 	the 	1985-86 	school
year, 	Mr. 	Martinez was 	assigned to 	cover extra driving
assignments. 	He 	appeared with the bus 	at 	the 	location to
commence 	a 	trip. 	Obviously, 	the department 	had determined 	that
its 	own 	needs 	did 	not 	preclude Martinez 	from driving 	the 	added
assignment. 	Yet, 	for unexplained reasons, 	the District
chartered 	a 	private 	carrier 	for 	the 	trip 	and 	cancelled
Martinez's 	assignment.
Thus, 	the District's 	contention that 	it was 	justified 	in
making 	the 	contracts 	for 	bus 	services 	on 	the 	basis 	of 	work
demands 	of 	the unit members 	is 	rejected.
The 	District 	next 	contends 	that 	the 	negotiated 	overtime
provision constitutes 	a waiver 	of 	CSEA's 	bargaining 	rights.
Article 	III, 	section 5 	contains 	a provision requiring 	rotation
of 	overtime 	based upon 	seniority. 	According 	to 	the District,
the 	language 	"Nothing 	in 	this 	section 	shall 	be 	interpreted 	as
guaranteeing 	any 	employee 	or 	group 	of 	employees 	the 	assignment
of 	overtime 	as 	a 	condition of 	their 	employment," 	means
precisely that 	the 	bus 	drivers 	do 	not 	have 	a 	guarantee of
overtime. 	Because 	Romo 	told 	Felix 	that 	this 	provision would
29

have 	an 	impact 	on bus 	drivers, 	it 	is 	the District's 	contention
that 	CSEA has 	negotiated 	away 	its 	rights 	to 	negotiate 	the
impact 	of 	the 	contracting 	out 	provision 	on 	overtime
opportunities.
This 	argument 	is 	rejected. 	Romo did tell 	Felix, 	outside of
the 	presence 	of 	the 	other 	bargaining 	team members, 	on July 22
that 	he 	intended 	to 	submit 	a 	proposal 	on overtime 	to 	the 	team
on the 	next 	day 	(July 23) 	that would 	"naturally 	impact 	upon
some 	other 	things 	that 	they were 	talking 	about 	beforehand
relative 	to 	the 	bus 	driver 	situation." 	Such 	information,
addressed 	to 	a 	single bargaining 	team member, 	is 	not 	a
discussion of 	the 	impacts 	of 	the proposal, 	nor does 	it evidence
concurrence 	by Felix 	in whatever 	impacts 	there were 	to 	be.
There was 	no 	discussion of 	those 	impacts 	when 	the 	proposal 	was
made 	the 	next 	day. 	Such evidence does 	not 	constitute 	full
discussion or 	conscious 	exploration of 	the matter 	so 	as 	to
justify 	finding 	a waiver 	of 	the 	right 	to 	bargain 	the 	impact 	of
contracting 	out upon unit members' 	wages 	and hours.
Los Angeles Community College District, 	supra.
The 	proposal 	to 	modify 	the 	contractual 	provision 	on
overtime was 	initiated 	by CSEA to 	resolve 	the clerks' 	concerns
about 	the 	District's 	hiring 	temporary help 	and 	therefore
denying 	the 	clerks 	overtime 	opportunities. 	It 	is 	highly
unlikely 	that 	CSEA would 	have 	agreed 	to 	a 	provision which would
allow 	the District 	to 	cease 	its 	practice 	of 	using 	unit members
for 	field 	trips.
30

Finally, 	as CSEA argues, 	the contractual 	overtime provision
does 	not 	contradict 	the practice of 	the District. 	What 	CSEA
seeks 	is 	not 	a 	guarantee of 	overtime, 	but 	only that when field
trips 	are undertaken, 	the District 	respect 	the contractual
rights 	of 	bargaining unit members. 	There 	is 	no 	contention that
the District must 	undertake 	the 	field 	trips.
The District 	argues 	that 	it 	cannot 	have 	committed 	an unfair
practice 	in 	this 	case because 	it 	complied with 	the 	negotiated
contracting 	out procedures. 	The 	argument 	is 	as 	follows:
Section 	9 	creates 	a 	procedure 	that 	requires 	the District 	to
give 	notice 	of 	intent 	to 	contract 	out. 	The CSEA 	is 	then 	to
demand 	to 	negotiate. 	The District 	gave 	notice 	on February 26
that 	the District wanted 	to 	contract 	out. 	The parties 	met 	on
April 	23 	and May 23 	and were unable 	to 	reach 	agreement. 	The
parties 	met 	in 	September 	to 	review the 	1986-87 	proposal 	and 	the
CSEA presented 	its 	last 	and 	final 	offer. 	Since 	the 	contract
requires 	only notice 	and 	negotiation by the parties, 	and does
not 	require 	that 	the parties 	bargain to 	impasse, 	all 	the
contracts 	after 	September 	of 	1986 were 	lawful.
This contention, 	if 	it has 	any merit 	at all, 	does not 	apply
to 	the 	activities 	of 	the District where 	it 	did 	not 	provide CSEA
with notice 	of 	its 	actions. 	Valenzuela 	observed 	contracts 	for
services 	in 	1984-85 	school year, 	in the 	fall 	of 	1985 	and 	again
in March of 	1986, 	where 	the District was 	contracting 	out 	for
transportation 	services 	and 	no 	notice was 	given 	to 	CSEA.
31

It was 	not 	until 	February that 	the District 	gave CSEA
indication of 	its 	intended 	action. 	Thus 	contracting 	out 	prior
to 	the 	time 	the 	parties 	attempted 	to 	reach 	agreement was 	not
justified 	by 	the 	provisions 	of 	Section 	9B. 	Nor 	does 	the
evidence 	justify construction of 	section 	9B 	in 	the manner 	the
District 	attributes 	to 	it.
There was 	no 	testimony offered 	at 	the 	hearing 	as 	to 	the
precise 	scope 	of 	bargaining 	that 	was 	intended 	by 	the 	language
"After 	notice has 	been given, 	CSEA shall 	as 	soon 	as
administratively 	possible 	present 	any demand 	to 	bargain 	over
this 	decision 	and 	its 	effect." 	The documentary evidence 	is
imprecise 	as 	to which of 	the 	parties 	drafted 	the 	bargaining
provision. 	If 	the 	provision were 	the District's 	proposal 	as
suggested by District Exhibit No. 	7 	(see footnote 3 ) , 	then the
District 	should 	have 	made 	clear 	the 	limited 	notion 	of
bargaining 	it 	contends 	should be 	read 	into 	the 	provision.
There 	is 	no 	evidence 	offered 	by 	the District 	to 	support 	this
limited 	nature 	of 	bargaining. 	Apparently, 	the 	parties 	did 	not
even discuss 	the 	scope 	of 	bargaining 	that was 	required 	by the
language. 	If 	it were CSEA's proposal, 	it 	is unreasonable to
attach 	an 	interpretation to 	a CSEA proposal 	for 	a 	contractual
right 	that would provide 	it with 	less 	than 	the EERA guarantees,
the 	right 	to 	bargain 	on 	any matter within 	scope 	to 	impasse 	and
through 	the 	statutory 	impasse 	procedures, 	before 	the District
may take 	action. 	See Modesto 	City Schools 	(1983) 	PERB Decision
No. 	291. 	CSEA was 	concerned 	about 	preserving 	its unit members'
32

positions. 	In the 	absence of 	express 	language 	to 	the contrary,
it 	is 	not 	reasonable 	to 	believe 	that 	CSEA would 	have 	agreed 	to
allow 	the District 	an unlimited 	right 	to 	contract 	out 	unit work
with only a 	right 	to notice 	and 	a meeting. 	It 	is 	therefore
concluded 	that 	the 	District's 	construction of 	the 	provision 	is
not 	justified 	by 	the 	evidence.
The 	District 	contends 	that 	CSEA 	acquiesced 	to 	the
District's 	practice 	and 	thus 	waived 	any 	right 	to 	negotiate 	the
District's 	action, 	relying 	on 	San Mateo 	County Community
College District 	(1979) 	PERB Decision No. 	94. 	(1979) 	PERB
Decision No. 	94. 	The Association, 	it insists, 	was 	required to
demand 	to 	negotiate 	and 	failed 	to 	do 	so. 	Newman-Cross 	Landing
Unified 	School District 	(1982) 	PERB Decision No. 	223. 	Further,
the District 	contends, 	long 	periods 	of 	acquiescence constitute
waiver, 	citing Modesto 	City 	School 	District 	(1983) 	PERB
Decision No. 	347 	and Oakland Unified 	School 	District 	(1983)
PERB Decision No. 	367. 	Finally, 	CSEA's 	"mere protest" was 	not
sufficient, 	relying 	on Citizens National 	Bank of Wiltmar.
245 NLRB 47 	[102 LRRM 1467]; 	American Bus Lines. 	Inc.. 	164 NLRB
No. 	136 	[65 LRRM 1245]. 	CSEA did not 	formally demand 	to
negotiate until May of 	1986, 	two years 	after 	it 	knew of 	the
actions. 	This, 	urges the District, 	indicates 	that 	it did not
believe 	it 	had demanded 	to 	bargain before 	that 	time.
I 	do 	not 	find 	sufficient 	acquiescence 	to 	constitute waiver
in 	CSEA's 	conduct. 	Valenzuela 	contacted 	Goad 	on different
33

occasions 	throughout 	the 	period 	from early 	1984 	to 	fall 	of 	1986
when 	she 	suspected 	the 	District was 	not 	conforming 	to 	the
contract. 	He 	assured her 	he would 	look into 	it. 	When
confronted 	by Felix, 	Dadey offered 	a 	solution 	that 	assuaged
CSEA 	for 	the moment. 	Romo 	told 	the 	bargaining 	team members
that he would 	look into 	the matter. 	Thus, 	if 	anything, 	CSEA
was 	being 	lead 	astray by 	representations 	made 	by 	the 	District.
It was 	not 	until 	February of 	1986 	that 	the District 	put 	CSEA on
notice 	of 	its 	desire to 	have 	a 	policy on contracting
transportation 	services 	for 	out-of-valley trips. 	This 	new
criteria 	was 	confirmed 	in April 	when Dadey 	told 	the 	CSEA
representatives 	that 	he 	intended 	to 	contract 	out 	any 	time 	a
trip was 	out of 	the valley. 	Thus, 	It was not until 	1986 	that
CSEA was 	alerted 	to 	a 	new criteria 	for 	trips 	when contracted
transportation would be used. 	Moreover, 	this was 	a 	significant
change 	in the District's 	position. 	In the 	spring 	of 	1986, 	the
District was 	attempting 	to 	contract 	out 	all 	of 	the
out-of-valley trips. 	Likewise, 	for 	the 	1986-87 	school year,
the 	schedule 	for 	the 	entire 	year 	anticipated 	contracting 	out
for 	all 	out-of-valley field trips. 	This 	is 	a 	significant
change 	from the District's 	past 	practice, 	i.e., 	allowing 	the
booster 	clubs 	to 	finance 	private 	transportation 	for 	divisional
games. 	The change was 	an 	increase 	in magnitude evidencing 	a
change 	in 	the 	quantity 	and 	kind 	of 	subcontracting 	that
constitutes 	a 	change 	in 	established 	policy. 	Oakland Unified
School District 	(1983) 	PERB Decision No. 	367. 	Even then the
34

District was 	taking 	the position 	that 	it 	did 	not 	have 	to
negotiate 	the matter.
CSEA had 	a 	right 	to 	insist 	that 	the 	District 	not 	contract
out unit work, 	save 	for 	the 	circumstances 	set 	forth 	in
section 	9 	of 	the collective bargaining 	agreement. 	The
restrictions 	were 	that 	the 	District 	contract 	out 	only when
there was 	an emergency, 	or when the work demands 	of 	the unit
members 	was 	such 	that 	they could 	not 	perform the 	needed
service, 	or 	that 	the wages 	and/or 	hours 	of 	the unit members
would 	not 	otherwise 	be 	affected. 	Valenzuela 	and 	Felix 	reminded
the 	District 	of 	its 	obligation 	to 	notify CSEA. 	They did 	not
have 	to 	demand 	to 	bargain 	at 	that 	time. 	Once 	the District did
give 	notice 	of 	its 	intention 	to 	contract 	out 	transportation
services, 	CSEA did demand 	to 	negotiate. 	Their 	formal 	demand to
negotiate 	followed 	a meeting 	in April with Dadey, 	who 	refused
to 	consider 	a 	proposal 	by CSEA to 	resolve 	the 	issue. 	Goad had
cancelled 	a 	number 	of 	trips 	in March 	at Valenzuela's request.
These 	circumstances 	show 	that 	CSEA was 	concerned 	about 	the
District's 	action 	and was 	not 	acquiescing 	in 	the 	District's
practice 	of 	contracting 	out. 	See 	Goleta Unified 	School
District, supra.
These 	facts 	are 	similar 	to 	those 	presented 	in Victor Valley
Community College District 	(1986) 	PERB Decision No. 	570. 	The
charge 	in that 	case was 	that 	the district was 	construing 	a
contractual 	provision 	in 	a manner 	inconsistent with 	the
35

agreement 	of 	the 	parties. 	PERB held 	that 	the 	limitations
period 	began 	from the 	time 	the 	association 	is 	deemed 	to 	have
knowledge 	of 	the district's 	intent 	to 	implement 	the 	provision
in 	a 	manner 	inconsistent with the 	association's 	construction of
such 	provision.11 This 	case does 	not 	involve 	the 	statute 	of
limitations 	(the 	District 	did 	not 	raise 	the 	limitations 	period
in 	its 	answer 	or 	at 	any time during 	the hearing 	or 	in 	its
post-hearing brief); 	however, 	the contention of 	acquiescence is
essentially 	the 	same. 	CSEA could 	not 	have 	acquiesced 	in 	a
policy 	that 	was 	not 	pronounced 	by 	the 	District 	until 	the 	spring
of 	1986.
11
It 	is 	concluded 	that 	the District violated 	section
3543.5(c) 	by 	adopting 	and 	implementing 	a 	policy of 	contracting
transportation 	services 	to 	private 	charter 	companies 	for 	all
12 This 	is 	concurrently a 	violation
of 	section 3543.5(a) 	and 	(b). 	San Francisco Community College
District 	(1979) 	PERB Decision No. 	105.
out-of-valley bus 	trips.
11See 	also 	Fairfield-Suisun Unified 	School 	District
(1985) 	PERB Decision No. 	547. 	The statute of 	limitations does
not 	begin to 	run until 	the charging 	party has 	actual 	or
constructive notice of 	the 	act 	alleged 	to 	be unlawful.
1 2 An 	exception 	to 	this 	finding 	is 	contracting 	out 	that 	is
consistent with past 	practice. 	The 	evidence 	suggest 	that with
respect 	to divisional 	or 	championship games, 	the trips 	have
been 	contracted 	out 	to 	charter 	companies 	paid 	for 	either 	by 	the
booster 	club or 	by the District. 	If 	so, 	then that contracting
out would not 	be violative of 	the Act. 	The District 	did 	not
present 	any 	substantive 	evidence 	of 	the 	extent 	of 	the 	past
practice, 	however, 	nor did 	it 	argue this 	point 	in its
post-hearing 	brief.
36

The 	Transfer 	of 	Bargaining 	Unit Work 	to 	Other 	District 	Employees
The evidence 	shows 	that 	prior 	to 	1984, 	coaches 	and/or
teachers would 	drive 	students 	to 	events 	in 	their 	private
vehicles. 	Occasionally after 	1984, 	the District would 	rent 	a
van for either 	a coach or 	teacher to drive. 	Then, 	in 	1986, 	the
District 	purchased 	a 	van 	and 	used 	nonunit 	personnel 	to 	drive
the van for 	transportation of 	students. 	Finally, 	in 	1986-87
school 	year, 	the District 	purchased 	a 	second van 	and 	again
assigned nonunit 	personnel 	to 	drive 	the van 	for 	the 	purpose 	of
transportation of 	students. 	In the 	last 	school year, 	the
District 	has 	received 	over 	50 	requests 	for 	transportation 	of
students with the vans. 	The District does 	not 	assign unit
members 	to drive 	the vans.
As 	noted, 	the decision to 	transfer work to 	other 	employees,
but not members of 	the unit, 	is bargainable as 	long 	as 	it
affects 	terms 	and conditions 	of employment. 	Rialto, 	supra. 	In
Eureka City School District 	(1985) 	PERB Decision No. 	481, 	the
Board 	held 	that 	where unit 	and 	nonunit 	employees 	have
traditionally had 	overlapping 	duties, 	an 	employer 	does 	not
violate 	its 	duty 	to 	negotiate 	in 	good 	faith merely by
increasing 	the 	quantity of 	work which 	nonunit 	employees 	perform
and 	decreasing 	the 	quantity 	of 	work which unit 	employees
perform.
Here, 	it 	is 	found that prior to 	1984, 	coaches 	and teachers
would use 	their 	private vehicles 	to 	transport 	students. 	Thus,
37

it would 	not 	be unlawful 	for 	the District 	to 	increase 	such
practice at 	the expense of unit members. 	In this case,
however, 	the District did not 	continue 	that practice to 	a
greater degree; 	rather, 	it 	purchased 	a van with the 	intention
of 	assigning 	nonunit members 	to drive 	and 	then, 	the 	following
year, 	it purchased 	a 	second van 	for nonunit members 	to drive to
transport 	students. 	This was 	a 	significantly different 	degree
of 	commitment 	and 	kind 	of 	transferring 	out 	of 	bargaining 	unit
work. 	Oakland Unified School District, 	supra. 	Thus, 	it 	is
concluded 	that 	the 	District 	violated 	its 	duty 	to 	bargain 	in
good 	faith when 	it 	commenced 	assigning 	bargaining 	unit 	work 	to
other 	employees 	of 	the District, 	to 	be performed 	by driving
District-owned 	vehicles.
REMEDY
Section 3541.5(C) 	provides:
The Board 	shall 	have 	the power 	to 	issue 	a
decision 	and 	order 	directing 	an 	offending
party 	to 	cease 	and 	desist 	from the 	unfair
practice 	and 	to 	take 	such 	affirmative
action, 	including 	but 	not 	limited 	to 	the
reinstatement 	of 	employees 	with 	or without
back pay, 	as will effectuate the policies 	of
this 	chapter.
It 	is 	appropriate to 	order 	the District 	to 	cease 	and desist
from taking 	unilateral 	action 	on matters 	within 	the 	scope 	of
representation without 	first 	notifying 	the 	exclusive
representative 	and 	providing 	an 	opportunity to 	negotiate. 	It
is 	also 	generally appropriate, 	in unilateral 	conduct 	cases 	to
require 	the 	restoration of 	the 	status 	quo. 	Rio 	Hondo Community
38

College District 	(1983) 	PERB Decision No. 	292. 	In addition, 	it
is 	appropriate 	to 	order 	the 	employer 	to make 	affected 	employees
whole 	for 	any wages 	or 	other 	benefits 	lost 	as 	a 	result 	of 	the
unlawful unilateral 	change, 	with 	interest, 	from the date of 	the
unilateral 	change 	until 	the 	status 	quo 	is 	restored 	or 	the
parties 	reach 	agreement 	or 	exhaust 	the 	statutory 	impasse
procedures. 	Rio Hondo Community College District, 	supra. 	This
remedy has 	been 	ordered 	in unilateral 	subcontracting 	cases; 	see
for example, 	Oakland Unified School District 	(1983) 	PERB
Decision No. 	367. 	A similar 	remedy is 	ordered where 	the
employer 	has 	transferred work out 	of 	the 	unit. 	Rialto Unified
School District 	(1982) 	PERB 	Decision No. 	209.Lincoln Unified
School District 	(1984) 	PERB Decision No. 	465.
CSEA contends 	that 	a 	remedy 	in 	this 	case 	should 	provide
back pay 	for 	affected 	employees 	prior 	to 	the 	six-month 	period
before 	the unfair 	practice charge was 	filed, 	based upon
Montebello Rose Co. 	v. 	Agricultural Labor Relations 	Board
(1981) 	119 	Cal.App.3d 1. 	In that case, 	the ALRB had granted 	a
back-pay 	order 	antedating 	the 	six month 	period 	preceding 	the
filing 	of 	the unfair 	practice 	charge. 	The 	appellate 	court
sustained 	that 	order 	on 	the 	ground 	that 	the 	employer's 	bad
faith 	bargaining 	precluded 	the 	employee 	organization 	from
discovering 	the 	violation 	any time 	earlier 	than 	it 	did. 	The
District 	argues 	that Montebello 	is 	not 	appropriate 	to 	this 	case
because 	here 	the 	employees 	have 	known 	about 	the 	District's
39

practices 	since 	1984. 	The District 	further 	argues 	that 	PERB
cannot 	award 	a 	remedy 	in excess 	of 	six months 	prior 	to 	the 	time
the 	charge was 	filed.
The 	gravamen of 	the District's wrong 	is 	twofold. 	First,
the 	District 	contracted 	out 	transportation 	services 	without
regard 	to whether 	an 	emergency existed 	or whether 	departmental
demands 	precluded use of 	unit members 	for 	such trips. 	The
District never 	notified CSEA, 	as 	required by the contract, 	that
it had made 	administrative decisions 	to 	that 	effect. 	The
District 	further 	did 	not 	determine 	that 	chartered
transportation 	services 	would 	have 	no 	effect 	on overtime 	hours
or overtime wages 	of unit members. 	Secondly, 	the District
transferred 	bargaining 	unit 	work 	to 	other 	employees 	when 	it
purchased 	vans 	and 	assigned 	nonunit 	employees 	to 	drive 	such
vans 	for 	student 	transportation purposes. 	As 	noted, 	the
contract 	provisions 	on contracting 	out 	do 	not 	pertain 	to
transferring 	out 	bargaining 	unit 	work.
CSEA did 	establish 	that 	beginning 	in 	the 	spring 	of 	1984,
Valenzuela, 	a bargaining team member, 	was 	aware of 	and
complained 	to 	the 	District 	about 	contracting 	transportation
services out 	to private carriers. 	Thus, 	as 	the District
argues, 	the 	facts 	in this 	case are different 	from Montebello.
On the 	other 	hand, 	the District's 	reliance on the 	statute 	of
limitation 	is 	disposed 	of 	by 	its 	failure 	to 	raise 	the 	defense
of 	the 	statute of 	limitations. 	It 	argues 	that because of 	the
40

operation of 	the 	limitation, 	conduct 	prior 	to 	the 	six month
period 	cannot 	be 	the basis 	of 	an unfair 	practice 	charge13 and
it 	logically 	follows 	that 	such conduct 	cannot 	be 	the 	basis 	for
a remedy. 	The statute of 	limitations, 	however, 	is 	a defense
that must be 	asserted, 	or 	it 	is waived. 	Walnut Valley Unified
School District 	(1983) 	PERB Decision No. 	289. 	PERB 	regulation
32646 	provides 	that 	if 	the 	respondent 	believes 	the charge 	is
untimely, 	it 	"shall 	assert 	such a defense 	in 	its 	answer 	and
shall move to dismiss the complaint 	. 	. 	. 	." 	Absent an
assertion of 	the 	statute-of-limitations 	defense, 	conduct
antedating 	the 	six-month 	period may be 	the 	basis 	of 	a
PERB-issued complaint. 	Likewise, 	remedies 	covering 	periods
beyond 	the 	limitations 	period may be 	issued 	in 	the 	absence 	of
the defense. 	Here 	the District did 	not 	raise 	the 	statute 	of
limitations 	as 	a defense. 	It 	has waived 	the defense 	as 	to 	both
the parameters 	of 	the charge, 	and of 	any 	remedy.
..
Thus, 	the District 	should be 	ordered 	to 	compensate 	regular
bus drivers, 	who 	are unit members, 	that 	amount of overtime
wages 	lost 	as 	a 	result 	of 	the District's 	contracting 	out 	of
transportation 	services. 	Trips 	that were 	chartered 	through
private 	transportation companies 	on 	the 	basis 	of 	an 	emergency,
or 	as 	a 	result 	of 	a 	specific determination 	that 	the
departmental 	demands 	precluded 	the use 	of 	a 	regular 	bus 	driver,
13Section 3541.5(a)(l) 	provides 	in part 	that 	the board
shall 	not, 	"issue 	a 	complaint 	in 	respect 	of 	any charge based
upon 	an 	alleged 	unfair 	practice 	occurring 	more 	than 	six months
prior 	to 	the 	filing 	of 	the charge."
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or 	that 	would 	not 	have 	affected 	overtime 	hours 	or wages 	shall
not 	be 	included 	in 	computing 	the 	overtime 	entitlements 	ordered
here. 	In addition, 	overtime 	loss 	as 	the 	result of 	assignment
of 	other 	District 	employees 	to 	drive 	District-owned vans 	should
be 	reimbursed. 	All 	such 	sums 	shall 	be 	augmented 	by 	interest 	at
the 	rate of 	10 	percent.
PROPOSED 	ORDER
Pursuant 	to 	section 3541.5(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 Calexico Chapter No. 	399 	as 	the exclusive 	representative of
its 	employees 	by unilaterally contracting 	out 	or 	transferring
bus 	driver work out 	of 	the 	unit 	and 	thereby 	reducing 	the
opportunity for 	overtime pay, 	a matter within the 	scope 	of
representation.
(b) 	By the same conduct, 	denying 	the California
School 	Employees Association 	and 	its 	Calexico 	Chapter No. 	399
rights 	guaranteed 	by the 	Educational 	Employment 	Relations 	Act,
including 	the 	right 	to 	represent 	its 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.
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2. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT 	RELATIONS
ACT:
(a) 	Upon 	request of CSEA, 	meet 	and negotiate with
CSEA over 	the 	decision 	and 	the 	effects 	thereof 	of 	contracting
out 	and 	transferring 	bus 	driver work 	out 	of 	the 	classified
employee unit.
(b) 	Pay to 	all bus drivers 	in the unit 	income 	lost
due 	to 	the 	District's 	unlawful 	contracting 	out 	or 	transferring
of bus 	driver work with 	interest 	at 	the 	rate of 	10 	percent per
annum.
(c) 	Within 35 days 	following 	the date 	this 	Decision
becomes 	final, 	post 	at 	all 	school 	sites 	and 	all 	other work
locations where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice 	attached hereto 	as 	an Appendix. 	The
Notice must 	be 	signed by 	an 	authorized 	agent 	of 	the 	District,
indicating 	that 	the District will 	comply with 	the 	terms 	of 	this
Order. 	Such posting 	shall 	be maintained 	for 	a 	period 	of
thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall 	be
taken to 	insure 	that 	the Notice 	is 	not 	reduced 	in size,
altered, 	defaced 	or 	covered 	by 	any other material.
(d) 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order 	shall 	be made 	to 	the Los Angeles
Regional Director of 	the Public Employment Relations 	Board, 	in
accordance with his 	instructions.
Dated: 	November 20, 	1987 Gary M. 	Gallery
Administrative 	Law Judge
43 •