Sylvan Union Elementary School District (PERB 0780E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SYLVAN
CHAPTER 	73,
Charging 	Party,
v.
SYLVAN UNION ELEMENTARY SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	S-CE-1246
PERB 	Decision No. 	780
December 	5, 	1989
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Appearances: 	Nancy Brasmer, 	Field Representative, 	for California
School Employees Association and its 	Sylvan Chapter 	73; 	Pinnell 	&
Kingsley by Ann M. 	Freers, 	Attorney, 	for Sylvan Union Elementary
School District.
Before Hesse, 	Chairperson; 	Craib and Camilli, Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the California
School 	Employees Association and 	its 	Sylvan Chapter 	73
(Association) 	of a Board agent's dismissal 	(attached hereto) 	of
its 	charge 	that 	the 	Sylvan Union Elementary 	School 	District
(District) 	violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational Employment Relations Act by: 	(1) 	unilaterally
eliminating instructional aide positions; 	(2) 	refusing to
negotiate the effects of 	its 	layoff of 	instructional aides; 	and
(3) 	transferring bargaining unit work to 	non-bargaining unit
employees. 	We have reviewed the Board agent's dismissal, 	the
Association's 	appeal, 	and the District's 	response, 	and affirm the
dismissal 	in accordance with the discussion below.
__)

The Association's 	allegation that 	the 	District's 	conduct
constituted a unilateral action when it 	"negotiate[d] 	with 	school
site 	advisory 	councils 	regarding 	the 	elimination of 	Instructional
Aide positions" 	was 	properly dismissed by the Board agent 	as
there were 	no 	facts 	presented 	that 	the 	District 	negotiated with
the 	school 	site 	advisory 	councils.1 The unfair practice 	charge
states 	only that 	the District discussed the 	layoff 	of 	the
instructional 	aides 	and hiring of 	supplemental 	teachers 	with 	the
school 	site advisory councils, 	and that the District's 	curriculum
coordinator 	recommended 	that 	the proposals 	submitted 	by 	the
school 	site 	advisory 	council 	be 	implemented.
In dismissing 	the 	allegation that 	the 	District 	refused 	to
negotiate over the 	effects 	of 	its 	layoff of 	instructional 	aides,
the 	Board 	agent 	noted that 	the 	collective 	bargaining 	agreement
between 	the 	District 	and Association 	contained 	an 	extensive
provision addressing the 	effects 	of 	a 	layoff. 	(Article XVI.)
The 	Board has 	held 	that 	neither party has 	a duty 	to 	negotiate
over a matter 	covered by the 	express 	terms 	of 	an existing
collective bargaining agreement. 	(See, 	e.g., 	Placentia Unified
School District 	(1986) 	PERB Decision No. 	595.) 	Thus, 	the
District had no duty to 	negotiate over those matters 	covered by
the 	layoff provision of the parties' 	collective bargaining
agreement.
1In its 	appeal of the dismissal, 	the Association does 	not
address 	the 	Board agent's 	dismissal 	of 	this 	allegation regarding
the 	school 	site 	advisory councils.
22

The Association also 	alleged 	that 	its 	request 	to 	bargain 	the
effects 	of 	the 	layoff 	included 	effects 	not 	covered by the 	layoff
provision of 	the 	collective bargaining agreement. 	Even assuming
this 	allegation is 	true, 	the Board nonetheless 	finds 	that this
allegation was properly dismissed. 	In addition to 	the 	layoff
provision, 	the 	collective bargaining agreement 	contained a 	zipper
clause 	(Article XVI), 	wherein the parties mutually waived the
right 	to meet and negotiate on all 	matters within the 	scope 	of
representation during the 	term of 	the 	collective 	bargaining
agreement. 	This provision afforded both parties 	the right to
refuse 	to 	negotiate 	changes 	in the 	status 	quo 	as 	to 	negotiable
terms 	and 	conditions 	of 	employment during the 	term of 	the
agreement, 	whether 	such 	terms 	and 	conditions were 	established by
contract 	or past practice. 	The provision covers 	all 	negotiable
subjects, 	even if they were not within the 	contemplation of 	the
parties 	at the time 	they negotiated the 	agreement. 	(Los 	Rios
Community College District. 	(1988) 	PERB Decision No. 	684.)
Consistent with the Board's 	decision in Los 	Rios, 	the Board
concludes 	that 	the parties waived any duty 	to 	bargain the 	effects
of 	the 	layoff 	not 	covered by the 	collective bargaining 	agreement.
Furthermore, 	the Association has 	not alleged that the District's
implementation of 	the 	layoffs 	constituted a 	change 	in past
practice. 	Accordingly, 	the 	Board agent properly dismissed this
allegation.
As 	to 	the Association's 	allegation that 	the 	District
transferred bargaining unit work out 	of 	the unit, 	the 	Board 	finds
33

that 	the Association has 	failed 	to present 	any 	facts 	supporting
its 	allegation. 	In Eureka City School District 	(1985) 	PERB
Decision No. 	481, 	the Board established the test for proving an
unlawful 	transfer of bargaining unit work. 	Specifically, 	the
Board 	stated 	that:
. 	. 	. 	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 	m e m b e r s . . . .
(Id. 	at p. 	15; 	emphasis in original.)-
In its 	unfair practice 	charge, 	the Association simply 	states 	that
the 	District posted a District-wide 	notice 	of 	employment 	for
supplemental 	teachers 	to replace 	laid-off 	instructional 	aides.
Without 	facts 	establishing that 	the duties 	were 	actually
transferred out of the bargaining unit, 	the Association's
allegation does 	not 	state 	a prima 	facie 	case.
ORDER
For the 	foregoing reasons, 	the unfair practice 	charge 	in
Case No. 	S-CE-1246 	is hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Craib and Camilli 	joined 	in this 	Decision.
4

STATE Of CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
April 28, 	1989
Nancy Brasmer, 	Field Representative
California 	School 	Employees 	Association
1240 North Main Street, 	Suite 	194
Manteca, 	CA 	95336
Re: 	California School Employees Association, 	Chapter 	73 	v.
Sylvan Union School 	District. 	Unfair Practice Case
No. 	S-CE-1246
Dear Ms. 	Brasmer:
The 	above-referenced 	charge 	alleges 	that 	Sylvan 	Union 	School
District violated Government Code 	section 	3543:5(c) 	by
unilaterally eliminating instructional 	aide positions, 	by
refusing to negotiate 	effects 	of 	the 	layoff 	of 	instructional
aides, 	and by transferring bargaining unit work to nonbargaining
unit employees.
I 	indicated to you 	in my attached 	letter dated April 	14, 	1989
that 	the 	above-referenced 	charge did 	not 	state 	a prima 	facie
case. 	You were advised that 	if 	there were 	any 	factual
inaccuracies 	or additional 	facts 	that would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge 	accordingly. 	You were 	further advised 	that 	unless 	you
amended the charge to 	state a prima 	facie case, 	or withdrew it
prior to April 21, 	1989, 	the charge would be dismissed.
I 	have 	not 	received 	either 	a 	request 	for withdrawal 	or an 	amended
charge. 	I 	am therefore dismissing 	the 	charge based 	on the 	facts
and reasons 	contained in my April 	14, 	1989 	letter.
Right 	to Appeal
Pursuant to Public 	Employment Relations 	Board 	regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing 	an

Nancy 	Brasmer
April 28, 	1989
Page 	2
appeal 	to 	the 	Board 	itself within twenty 	(20) 	calendar days 	after
service 	of 	this dismissal 	(California Administrative Code, 	title
8, 	section 32635(a)). 	To be timely filed, 	the original and five
copies 	of 	such 	appeal 	must 	be 	actually 	received 	by 	the 	Board
itself before 	the 	close of business 	(5:00 p.m.) 	or sent by
telegraph, 	certified 	or Express 	United 	States 	mail postmarked 	no
later 	than 	the 	last date 	set 	for 	filing 	(California
Administrative Code, 	title 8, 	section 32135). 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	The Board's 	address 	is:
Public 	Employment 	Relations 	Board
1031 	18th Street
Sacramento, 	CA 95814
If 	you 	file 	a 	timely appeal 	of 	the refusal 	to 	issue a 	complaint,
any 	other party may 	file with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty calendar 	days
following the 	date 	of 	service 	of 	the 	appeal 	(California
Administrative Code, 	title 8, 	section 32635(b)).
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be 	"served"
upon all parties 	to 	the proceeding, 	and a 	"proof of 	service" 	must
accompany 	each 	copy 	of 	a document 	served 	upon 	a 	party 	or 	filed
with 	the 	Board 	itself. 	(See 	California Administrative Code,
title 	8, 	section 	32140 	for the 	required contents 	and a 	sample
form.) 	The 	document will 	be 	considered properly 	"served" 	when
personally 	delivered 	or deposited 	in 	the 	first-class 	mail 	postage
paid 	and 	properly 	addressed.
Extension of 	Time
A 	request 	for 	an 	extension 	of time 	in which to file 	a 	document
with 	the 	Board 	itself 	must 	be 	in writing 	and 	filed with 	the 	Board
at 	the previously 	noted address. 	A request 	for an 	extension must
be 	filed 	at 	least 	three 	calendar days 	before 	the 	expiration of
the 	time required 	for 	filing 	the document. 	The request must
indicate good cause 	for and, 	if known, 	the position of 	each other
party 	regarding 	the 	extension, 	and 	shall 	be 	accompanied 	by proof
of 	service 	of 	the 	request 	upon each party 	(California
Administrative Code, 	title 8, 	section 32132).

Nancy 	Brasmer
April 28, 	1989
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal 	will 	become 	final when the 	time 	limits 	have 	expired.
Sincerely,
CHRISTINE A. 	BOLOGNA
General 	Counsel
By
Bernard 	McMonigle
Staff 	Attorney
Attachment

STATE OF CALIFORNIA 	GEORGE DEUKMEJIAN, Governor
PUBLIC 	EMPLOYMENT 	RELATIONS BOARD
Sacramento Regional Office
1031 18th Street, Room 102
Sacramento, CA 	95814-4174
(916) 322-3198
April 	14, 	1989
Nancy 	Brasmer, 	Field 	Representative
California 	School 	Employees 	Association
1240 North Main Street, 	Suite 	194
Manteca, 	CA 	95336
Re: 	California School Employees Association. 	Chapter 73 	v.
Sylvan Union School 	District. 	Case No. 	S-CE-1246
WARNING 	LETTER.
Dear Ms. 	Brasmer:
The 	above-referenced 	charge 	alleges 	that 	Sylvan 	Union 	School
District 	violated Government Code 	section 	3543.5(c) 	by
unilaterally 	eliminating 	instructional 	aide positions, 	by
refusing 	to 	negotiate 	effects 	of 	the 	layoff 	of 	instructional
aides, 	and by 	transferring 	bargaining 	unit work to 	nonbargaining
unit employees.
My 	investigation revealed 	the 	following. 	The 	Sylvan Union 	School
District 	has 	traditionally 	employed 	both 	instructional 	aides 	and
supplemental 	teachers 	to work with 	elementary 	school 	children
with remedial 	needs 	in such areas as reading, 	mathematics, 	and
the 	language 	arts. 	Each 	elementary 	school was 	free 	to use
instructional 	aides, 	supplemental teachers, 	or a mixture of both.
There was 	at 	least one 	school 	in the district 	in each 	of 	these
categories. 	In mid-June of 	1988 	the 	school 	site advisory
committees 	at 	Coleman F. 	Brown and 	Sylvan Elementary 	Schools 	made
a 	recommendation, 	to the Board of Education, 	for a 	change 	in
their Chapter 	1 programs 	for the 	1988-89 	school year. 	This
change 	would 	create 	a 	lack of work 	for 	instructional 	aides 	at 	the
two 	schools. 	On June 29, 	1988, 	the district board passed a
resolution 	implementing 	the 	program 	change 	and 	directing 	that
Chapter 	1 	instructional aides 	at 	the 	two 	schools 	be 	notified 	of
their resulting 	layoff. 	July 	21 	the 	union met with 	the 	district
representatives 	regarding 	the 	layoff. 	At 	that meeting, 	counsel
for 	the 	District 	advised 	the 	union 	that 	the 	district 	was 	under 	no
obligation 	to bargain over 	the 	effects 	of 	the 	layoff 	as 	the
collective bargaining 	agreement 	covered 	the 	subject. 	On August 	1
the 	union 	sent 	a 	bargaining proposal 	to 	the district 	over 	the
effects 	of 	the 	layoff, 	which 	included 	subjects 	that were 	not
covered by 	the 	collective 	bargaining 	agreement. 	To 	date 	the
district 	takes 	the position that 	it 	is 	under no obligation to
bargain over the 	effects 	of 	the 	layoff. 	On or about October 	20,
1988, 	the district 	began the 	employment process 	for hiring
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Nancy 	Brasmer
April 	14, 	1989
Page 	2
supplemental 	teachers 	to 	take 	over the work that 	had previously
been performed by 	instructional 	aides 	at Coleman F. 	Brown and
Sylvan 	Elementary 	Schools.
Based 	on 	the 	facts 	above 	this 	charge 	does 	not 	charge 	a prima
facie 	violation of 	EERA 	for the 	reasons 	that 	follow. 	The 	first
allegation 	is 	that 	it was 	an 	illegal 	unilateral 	action 	for 	the
district 	to 	"negotiate with 	the 	school 	site 	advisory 	councils
regarding 	the 	elimination of 	instructional 	aide 	positions."
Under Grant 	Joint 	Union High 	School 	District 	(1983) 	PERB 	Decision
No. 	1976, 	to establish unilateral action, 	the charging party must
establish 	that 	the 	employer breached 	or 	otherwise 	altered 	the
parties' 	written agreement or 	its 	own established past practice.
Investigation 	has 	revealed 	that 	school 	site 	advisory 	councils
make 	only 	recommendations 	to 	the 	Board 	of 	Education regarding 	the
conduct 	and design of programs within the 	schools. 	There 	is 	no
negotiations 	between the 	councils, 	consisting of 	a 	cross-section
of 	the 	school 	community, 	and the board. 	Further, 	no 	showing has
been made 	that 	accepting 	the 	recommendation of 	the 	school 	site
advisory 	council 	to 	eliminate 	instructional 	aide positions 	either
alters 	the written agreement 	of 	the parties 	or changes 	an
established past practice. 	Therefore 	this 	allegation must 	be
dismissed.
Your 	second 	allegation 	is 	that 	the district violated 	EERA when 	it
refused 	to 	negotiate 	over 	the 	effects 	of 	the 	layoff 	of 	the
instructional 	aides. 	My 	investigation reveals 	that 	the 	contract
between the 	parties 	contains 	an extensive 	effects 	of 	layoff
clause, 	Article XVI 	in the contract. 	In addition, 	Article XV,
titled 	"Miscellaneous," 	contains what 	is 	traditionally referred
to as 	a 	zipper clause. 	In Los 	Rios 	Community College 	District
(1988) 	PERB Decision No. 	684 	the Board reviewed the 	impact of
zipper clauses. 	In that case the Board 	stated,
Here, 	the 	zipper clause purports 	to mutually
waive 	the 	right 	to 	negotiate 	over any
"subject 	matter" 	for the 	term of 	the
agreement, 	whether or not 	such 	subject 	or
matter was 	"within 	the 	knowledge 	or
contemplation" 	of the parties 	at 	the time 	the
agreement was 	negotiated. 	There 	is 	no
language 	which 	could 	be 	construed 	as 	limiting
the 	effect 	of 	the 	clause 	as 	affording both
parties 	the 	right 	to refuse 	to 	negotiate
changes 	in the 	status 	quo as 	to otherwise
negotiable 	terms 	and 	conditions 	of 	employment
for 	the duration of 	the 	agreement 	(subject 	to

Nancy 	Brasmer
April 	14, 	1989
Page 	3
reopener provisions), 	whether such terms and
conditions 	are 	established by 	contract 	or 	by
past practice.
The 	zipper 	clause 	in your agreement 	is 	similar to 	that 	described
by the 	Board 	in Los 	Rios. 	Accordingly, 	this 	allegation must 	be
dismissed.
Your 	last 	allegation was 	that 	the 	District 	Board 	violated 	EERA 	by
transferring bargaining unit work out of 	the unit. 	In Eureka
School 	District 	(1985) 	PERB Decision No. 	481, 	the Board held that
where 	unit 	and 	nonunit 	employees 	previously perform 	some 	overlap
of 	the 	same 	duties 	the 	employer does 	not violate 	the duty 	to
bargain by merely 	increasing 	the 	quantity of work 	that 	the
nonunit 	employees 	perform. 	That 	is 	true 	even if 	the amount 	of
work performed 	by 	unit 	employees 	is 	decreased. 	The 	Board 	further
stated 	that, 	"in order to prevail 	in a unilateral 	transfer of
work 	theory, 	the 	charging party must 	establish as 	a 	threshold
matter that 	the duties were 	in 	fact 	transferred 	out 	of 	the 	unit;
that 	is, 	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." 	You
have 	indicated 	that 	the work has 	traditionally been done 	by 	unit
and 	nonunit 	employees. 	You have 	further indicated 	that the
District 	has 	maintained 	at 	least 	one 	instructional 	aide
performing these duties. 	Accordingly, 	under Eureka 	School
District, 	this 	allegation must 	also be dismissed.
For these 	reasons, 	the 	charge 	as presently written does 	not 	state
a prima 	facie 	case. 	If there 	are any factual 	inaccuracies 	in
this 	letter or 	any 	additional 	facts 	that would 	correct 	the
deficiencies 	explained above, 	please amend the charge
accordingly. 	The 	amended 	charge 	should be prepared 	on a 	standard
PERB 	unfair practice 	charge 	form 	clearly 	labeled 	First 	Amended
Charge. 	contain all 	the 	facts 	and allegations 	you wish 	to make,
and 	must 	be 	signed 	under penalty 	of 	perjury 	by 	the 	charging
party. 	The 	amended 	charge 	must 	be 	served on the 	respondent 	and
the 	original proof 	of 	service must be filed with 	PERB. 	If 	I 	do
not 	receive 	an 	amended 	charge 	or withdrawal 	from 	you 	before
April 21, 	1989, 	I 	shall dismiss your charge. 	If you have any
questions, 	please call me at 	(916) 	322-3198.
Sincerely,
Bernard 	McMonigle
Staff 	Attorney