Jamestown Elementary School District (PERB 0795E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its 	TUOLUMNE
CHAPTER NO. 	276,
Charging 	Party,
v.
JAMESTOWN 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
Case No. 	S-CE-1254
PERB Decision No. 	795
March 20, 	1990
JAMESTOWN TEACHERS ASSOCIATION,
CTA/NEA,
Joined 	Party.
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Appearances: 	Maureen C. 	Whelan, 	Attorney, 	for California School
Employees Association and its Tuolumne Chapter No. 	276; 	A. 	Eugene
Huguenin, 	Jr., 	Attorney, 	for Jamestown Teachers Association,
CTA/NEA.
Before Hesse, 	Chairperson; 	Craib and Camilli, 	Members.
DECISION
CRAIB, 	Member: 	This 	case 	is before the Public 	Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
California 	School 	Employees Association and 	its 	Tuolumne 	Chapter
No. 	2 76 	(CSEA) 	to the attached proposed decision of a PERB
administrative law judge 	(ALJ). 	Allegedly, 	the Jamestown
Elementary School 	District 	(District) 	violated the 	Educational
Employment Relations Act 	(EERA or Act)1 , 	section 3543.5,
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JEERA	EERA 	section 3543.5 	states, 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to:
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subdivisions (a), 	(b), 	(c) and (d) , by making unilateral changes
in the 	computation of 	longevity pay and vacation allotments, 	by
retaliating 	against 	Juanita 	Hoagland because 	of 	her 	support 	of
CSEA, 	and by providing 	support and 	encouragement 	to 	the Jamestown
Teachers Association, 	CTA/NEA 	(JTA) 	in its 	efforts 	to decertify
CSEA.2 The ALJ dismissed the 	complaint 	in its 	entirety. 	CSEA
excepts 	to 	the 	failure to 	find violations 	with 	respect 	to 	all 	of
the allegations.
We have reviewed the entire record 	in this 	case, 	including
the proposed decision, 	CSEA's 	exceptions 	and JTA's 	response
thereto. 	With regard to 	the 	allegations 	that the 	District
retaliated 	against 	Juanita 	Hoagland, 	provided unlawful 	support 	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.
(d) 	Dominate or 	interfere with the 	formation
or 	administration of 	any 	employee
organization, 	or contribute 	financial 	or
other 	support to 	it, 	or 	in any way encourage
employees 	to 	join any 	organization 	in
preference 	to 	another.
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2 JTA participated 	in the hearing before 	the ALJ 	as 	a 	joined
party 	after 	its 	unopposed motion to do 	so was 	granted. 	An
election pursuant 	to 	a decertification petition 	filed 	by 	JTA 	on
September 	16, 	1988 	has been stayed pending the outcome of 	this
charge. 	(Administrative Determination of April 	5, 	1989, 	Case
No. S-D-118.)
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JTA and made 	a 	unilateral 	change 	in the 	computation of 	longevity
pay, 	we 	find the ALJ's 	findings 	of 	fact and conclusions 	of 	law to
be 	free 	of prejudicial 	error and 	adopt 	them as 	our own.3
However, 	as 	discussed below, 	we 	find that the District made an
unlawful 	unilateral 	change 	in the 	computation of vacation
allotments 	for certain part-time 	employees.
DISCUSSION
In its 	initial 	contract proposal 	in 	1986, 	CSEA requested
that 	eight part-time 	instructional 	aides, 	who until 	then had
received no paid vacation time, 	receive vacation allotments 	in
accordance with 	the 	formula provided by 	Education Code 	section
45197. 	All 	other unit members 	had been receiving vacation
allotments 	at 	the 	rate of 	one day per month.5 The 	District
immediately 	agreed 	to 	the proposal 	and made 	it 	retroactive 	for
four years. 	This agreement was, 	however, 	never integrated into
the 	contract 	that was 	eventually 	agreed upon.
There 	is 	no 	evidence 	that 	the parties 	ever discussed the
effect 	of 	the 	agreement 	concerning 	instructional 	aides 	on the
vacation allotments 	of 	other part-time 	employees. 	At 	least 	two
3With regard to these three allegations, 	the arguments
raised by 	CSEA 	in 	its 	exceptions 	were 	also 	raised 	before 	the ALJ
and were 	adequately 	addressed 	in 	the proposed decision;
therefore, 	it 	is unnecessary to address them here.
4Education Code 	section 	45197 	prescribes 	minimum vacation
rates 	for 	classified 	employees 	and 	expressly provides 	that 	the
rates 	may be 	exceeded.
5If 	an employee worked 	less 	than eight hours per day, 	he or
she would receive a proportional 	amount, 	i.e., 	if the employee
worked 	five hours 	a day, 	he or 	she would receive 	five hours 	per
month.
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part-time 	employees who were not 	instructional 	aides, 	Barbara
Coffin and Gertrude 	Daniels, 	had received vacation allotments 	at
the rate of 	one day per month prior to 	1986. 	They continued to
receive 	it at 	that rate during the 	1986-87 	and 	1987-88 	years.
Prior to the 	1988-89 year, 	Superintendent Dan White, 	who was 	new
to 	the position, 	noticed the difference 	in vacation rates 	among
part-time 	employees 	and 	changed Coffin and Daniels' 	vacation
allotments 	to 	coincide with the 	rates 	applied to 	the
instructional 	aides. 	This 	resulted 	in a 	substantial decrease 	in
vacation time 	for Coffin and Daniels. 	White	6 	, 	who testified that
he 	thought negotiations were unnecessary 	in this 	instance,
implemented 	the 	change without providing 	notice 	to 	CSEA.
A breach 	of 	an agreement 	does 	not 	constitute 	an unlawful
unilateral 	change unless 	it amounts 	to a 	change 	in policy which,
by definition, 	has 	a 	generalized 	effect or 	continuing 	impact 	upon
the 	terms 	and 	conditions 	of 	employment 	of bargaining unit
members. 	(Grant Joint Union High School District 	(1982) 	PERB
Decision No. 	196, 	at p. 	9.) 	Citing Grant, 	as well as analogous
precedent arising under the National 	Labor Relations Act7, 	the
66 Coffin, 	who worked 	five 	and one-half hours 	per day 	for 	ten
months 	of the year, 	had her vacation allotment reduced 	from 	55 	to
3 8.92 	hours 	per year. 	While the ALJ 	stated that there was 	no
evidence presented as 	to 	the precise 	effect upon Daniels'
allotment, 	in fact, 	documentary evidence was 	introduced which
allows 	the reduction to be 	calculated. 	This 	evidence 	shows 	that
Daniels, 	who worked five hours per day, 	would have received 	50
hours 	per year under the 	old 	formula, 	but received 	only 	3 5.58
hours 	pursuant 	to the 	Education Code 	formula.
7See, 	e.g., 	Murphy Oil USA. 	Inc. 	(1987) 	286 NLRB No. 	104, 	at- - -
ALJ decision, 	p. 	4 	[127 LRRM 	1111] 	(not every unilateral change
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ALJ 	concluded 	that 	the 	change 	in vacation 	allotments 	was 	not
unlawful because 	it did not amount to a 	change 	in policy. 	This
conclusion appears 	to be based on two grounds: 	one, 	only two unit
members were affected and; 	two, 	the change brought the two
employees' 	vacation allotments 	into 	conformity with those
provided 	to 	other part-time 	employees.
In its 	exceptions, 	CSEA argues 	that the established policies
on vacation allotment were based on classifications, 	and not 	on
part-time versus 	full-time 	status. 	In other words, 	CSEA claims
that 	it was 	the 	District's practice 	to 	apply one vacation 	formula
to 	instructional 	aides 	and another 	to 	all 	other part-time
employees.8 Our reading of 	the 	record 	supports 	CSEA's 	view of
the policies 	in existence prior to 	the disputed 	change 	in 	1988.
As 	the ALJ noted, 	the record 	is 	devoid of 	evidence that the
parties 	ever addressed, 	either at 	the time of 	the negotiations 	in
1986 	or thereafter, 	whether the Education Code 	section 45197
formula would 	be 	applied 	to 	those 	part-time 	employees 	who 	had
previously received vacation pay. 	Indeed, 	the 	evidence 	shows
that those 	employees 	(Coffin and Daniels) 	continued to 	receive
vacation pay at the 	rate 	of 	one day per month until White made
the disputed change 	in 	1988. 	This 	further demonstrates 	that 	the
in work rules 	constitutes 	an unlawful unilateral 	change; 	the
change must be "material, 	substantial, and . 	. 	. 	significant").
8The 	classified 	unit 	has 	approximately 	20 	members 	and 	Coffin
and 	Daniels 	are 	apparently 	the 	only part-time 	employees 	who 	are
not 	instructional 	aides.
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agreement 	in 	1986 was 	intended to 	affect 	only 	the 	instructional
a i d e s .
While 	it may 	seem unusual 	to have 	separate 	vacation
allotment policies 	for different groups 	of 	part-time 	employees,
that 	is 	what the 	record before us 	shows 	to have been the 	status
quo prior to the disputed change 	in 	1988. 	When White made the
change in 	1988, 	a new policy was established, 	i.e., 	that all
part-time 	employees 	would 	receive vacation allotments 	in
accordance with 	the 	Education Code 	formula 	and 	only 	full-time
unit members would continue to receive one day per month. 	Thus,
based 	on the 	record before us, 	we 	cannot 	conclude that White
merely brought Coffin's 	and Daniels' 	vacation allotments 	into
conformity 	with 	established 	policy.
Nor do we 	find that, 	in these circumstances, 	the 	small
number of 	employees 	affected 	is 	probative on the 	issue of whether
there has 	been a 	change 	in policy as 	defined by the 	Board 	in
Grant, 	supra. 	This was not an aberration, 	but a permanent
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arrangement 	that will 	continue 	to 	affect 	all part-time 	employees
who are not instructional aides. 	While, 	in some cases, 	the
number 	of 	employees 	affected might 	be 	indicative 	of whether 	there
has 	been a policy change, 	that is not always true. 	The proper
focus 	must 	be 	on 	identifying 	the 	relevant 	established policies
and determining if, 	under the 	circumstances presented, 	the
disputed action is 	in the nature of 	a policy change.
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.. . 	. 2 .
REMEDY
Where 	an 	employer unilaterally 	changes 	negotiable 	terms 	and
conditions 	of 	employment, 	the Board normally orders 	the 	employer
to 	cease 	and desist 	from 	its 	unlawful 	action and 	comply with 	its
statutory bargaining obligations, 	restore the 	status 	quo 	ante,
and make 	employees 	whole 	for any 	losses 	they 	suffered 	as 	a 	result
of the unlawful unilateral change. 	(See, 	e.g., 	Rio Hondo
Community College District 	(1983) 	PERB Decision No. 	292.) 	All of
these measures 	are appropriate 	in this 	case. 	It 	is 	also
appropriate 	that the 	District be 	required to post 	a 	notice
incorporating the terms 	of 	the Board's 	order. 	The posting
requirement 	serves 	to 	inform employees 	of 	the 	resolution of 	the
controversy 	and 	to 	announce 	the 	District's 	readiness 	to 	comply
with the order. 	It also 	furthers 	the 	central purpose of 	the Act,
namely, 	harmonious 	labor relations, 	by informing all 	concerned,
including management 	and 	supervisory personnel, 	of 	activity 	found
to be unlawful, 	thereby providing guidance 	and preventing a
reoccurrence. 	(See Placerville Union School District 	(1978) 	PERB
Decision No. 	69, 	at pp. 	11-12; 	Los Angeles Unified School
District 	(1988) 	PERB Decision No. 	659, 	at p. 	12.)
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in this 	case, 	it 	is 	hereby ORDERED that 	the
Jamestown 	Elementary 	School 	District 	and 	its 	representatives
shall:
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A. 	CEASE AND DESIST FROM:
"1. 	Refusing to negotiate 	in good faith with the
California 	School 	Employees Association and 	its 	Tuolumne 	Chapter
No. 	276 	(CSEA) 	by unilaterally changing the vacation allotments
of 	part-time 	classified 	employees 	who 	are 	not 	instructional
aides.
2. 	Denying CSEA the 	right to represent members 	of 	the
classified bargaining unit 	by 	the 	conduct 	described 	above.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Absent prior agreement of the parties 	or
negotiation 	through 	the 	completion 	of 	statutory 	impasse
procedures, 	restore the 	status 	quo 	ante by reinstating the
practice 	whereby part-time 	classified 	employees 	who 	are 	not
instructional 	aides 	receive a vacation allotment 	of 	one day 	for
each 	month worked.
2. 	Make 	Barbara Coffin and Gertrude 	Daniels whole by
crediting 	them with 	the 	vacation 	time 	they would 	have 	accrued 	but
for the unlawful 	unilateral 	change 	in their allotments.
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 	customarily 	are placed,
copies 	of 	the Notice 	attached as 	an Appendix hereto, 	signed by an
authorized agent 	of 	the 	District. 	Such posting 	shall 	be
maintained for a period of 	thirty 	(30) 	consecutive workdays.
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Reasonable 	steps 	shall be taken to 	ensure 	that this 	Notice 	is 	not
reduced 	in 	size, 	defaced, 	altered,or covered by any other
material.
4. 	Written notification of 	the actions 	taken to
comply with this 	Order 	shall 	be made 	to 	the 	Sacramento 	Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in 	accordance
with his 	instructions.
It 	is 	further ORDERED that all 	other allegations 	in the
charge 	and 	complaint 	are 	hereby 	DISMISSED.
Chairperson 	Hesse 	and Member Camilli 	joined 	in this 	Decision.
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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. 	S-CE-1254,
California 	School 	Employees 	Association and 	its 	Tuolumne 	Chapter
No. 	2 76 v. 	Jamestown Elementary School District, 	in which all
parties 	had the right to participate, 	it has been found that 	the
Jamestown Elementary 	School 	District 	violated 	section 	3543.5,
subdivisions 	(b) 	and 	(c) 	of the Educational Employment Relations
Act.
As 	a result of 	this 	conduct, 	we have been ordered 	to post
this 	notice 	and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to negotiate 	in good faith with the
California 	School 	Employees 	Association and 	its 	Tuolumne 	Chapter
No. 	276 	(CSEA) 	by unilaterally changing the vacation allotments
of 	part-time 	classified 	employees 	who 	are 	not 	instructional
aides.
2. 	Denying CSEA the 	right 	to 	represent members 	of 	the
classified 	bargaining unit 	by 	the 	conduct 	described 	above.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Absent prior agreement of the parties 	or
negotiation 	through 	the 	completion 	of 	statutory 	impasse
procedures, 	restore the 	status 	quo ante by reinstating the
practice 	whereby part-time 	classified 	employees 	who 	are 	not
instructional 	aides 	receive 	a vacation allotment 	of 	one day 	for
each 	month worked.
2. 	Make 	Barbara Coffin and Gertrude 	Daniels whole by
crediting 	them with 	the 	vacation 	time 	they would 	have 	accrued 	but
for the unlawful unilateral 	change 	in their allotments.
Dated: 	JAMESTOWN 	ELEMENTARY 	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 	and 	its 	TUOLUMNE
CHAPTER NO. 	276,
Charging 	Party,
v.
JAMESTOWN 	ELEMENTARY 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	S-CE-1254
PROPOSED 	DECISION
(8/24/89)
JAMESTOWN 	TEACHERS 	ASSOCIATION,
CTA/NEA,
Joined 	Party.
Appearances; 	Maureen C. 	Whelan, 	Attorney, 	for California School
Employees Association and 	its 	Tuolumne Chapter 276; 	Becker and
Bell by Gene Bell, 	for Jamestown Elementary School District;
A. 	Eugene Huguenin, 	Jr., Attorney, 	for Jamestown Teachers
Association, CTA/NEA.
Before Martha Geiger, 	Administrative Law Judge.
INTRODUCTION
This 	case arose 	out of a dispute between the California
School 	Employees Association 	and 	its 	Tuolumne 	Chapter 	#276 	(CSEA)
and the Jamestown Elementary School 	District 	(the District).
CSEA, 	the 	exclusive representative 	for the District's 	classified
employees, 	alleged the District violated Educational 	Employment
Relations Act section 3543.5(a), 	(b), 	(c) and (d)1 (EERA) when it
1 EERA is 	codified at Government Code 	section 3540 	et. seq.
Section 	3543.5 	reads 	in relevant part:
It 	shall be unlawful 	for a public 	school 	employer to:
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.
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made 	certain changes 	in vacation and 	longevity pay 	and when 	it
took 	adverse 	action 	against 	CSEA member 	Juanita 	Hoaglund.
PROCEDURAL 	HISTORY
On September 16, 	1988, 	the Jamestown Teachers Association,
CTA/NEA, 	(JTA) 	filed a decertification petition with PERB, 	asking
for an 	election to 	determine whether JTA or CSEA 	(or 	no
organization) 	should represent 	the approximately 	22 	classified
employees of the District2. 	On December 14, 	1988, 	the original
unfair practice charge in this 	case was 	filed. 	It was 	amended
twice, 	on January 17, 	1989, 	and January 30, 	1989. 	A complaint
was 	issued on March 21, 	1989, 	by the office of the General
Counsel 	of 	the PERB. 	The Respondent's 	answer was 	filed on April
11, 1989.
CSEA requested on December 	14, 	1988, 	that the election
pursuant 	to 	the decertification petition be 	stayed pending
resolution of 	this 	unfair practice charge. 	This 	request was
(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.
(d) 	Dominate or interfere with the 	formation or
administration of any employee organization, 	or
contribute 	financial or other 	support to it, 	or 	in any
way 	encourage 	employees 	to 	join any 	organization 	in
preference to another.
2 Case No. 	S-D-118
N
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granted 	by 	an administrative decision of 	this 	Agency 	on April 	5,
.1989.
Because the action of this 	charge 	is 	blocking the 	election,
JTA filed an Application for Joinder on April 	13, 	1989, 	pursuant
to PERB Regulation 321643. 	CSEA did not oppose this motion, 	and
it was granted on May 	17, 	1989. 	CSEA, 	JTA, 	and the District
participated in an informal 	conference on April 	18, 	1989, 	in an
attempt 	to 	settle this matter. 	Settlement not being 	successful,
the case was 	set for a formal hearing on May 30 and 31, 	1989, 	in
Sonora, 	California. 	Further testimony was held on June 	13 	and
14, 	1989, also in Sonora.
After presentation of 	CSEA's 	case-in-chief, 	JTA and the
District moved to dismiss 	the 	complaint 	for 	failure of proof 	of 	a
prima 	facie 	case. 	The undersigned granted the motion as 	to
certain paragraphs 	in the complaint, 	and denied it as 	to others.
(Discussion, 	pp. 	16-20 infra). 	After JTA and the District
presented their cases, 	and after rebuttal 	from CSEA, 	JTA and the
District 	renewed 	their Motion to 	Dismiss 	the 	remaining
allegations. 	The Motion was 	argued orally by JTA on June 	14,
1989, 	but CSEA chose to brief the matter. 	Briefs were 	filed by
CSEA and JTA4 on August 	9, 	1989, 	and the matter was 	submitted 	for
decision.
3 PERB 	Regulations 	are 	codified 	at California Administrative
Code, 	title 8, 	section 31001 et seq.
4 The 	District 	chose not to 	filed a written brief.
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FINDINGS OF 	FACT
The District 	is 	an employer under the EERA. 	CSEA has 	been
the 	exclusive 	representative 	for the 	classified 	employees 	for the
District 	since 	1986. 	The 	chapter 	structure 	consists 	of 	employees
from nine 	separate 	school districts, 	all 	belonging to the
Tuolumne Chapter. 	Officers 	are 	elected 	from among the 	chapter
membership, 	and typically are 	representative of 	several
districts.
Although the Chapter consists 	of many districts' 	employees,
negotiations 	between CSEA and the 	various 	districts 	are 	conducted
primarily with 	the 	chapter members 	from the 	district whose
contract 	is under discussion. 	For example, 	only Sonora High
School 	District 	employees 	represent 	the CSEA Chapter when
negotiating with Sonora 	High 	School 	District. 	The 	sole 	exception
to this 	rule 	is 	that, 	on occasion, 	a chapter officer 	(who may or
may not be 	from the target district), 	or a paid CSEA 	staff member
may also 	sit 	on a 	negotiating team. 	The 	contracts 	negotiated 	for
each 	school 	district 	are 	ratified 	only by 	the CSEA members
employed 	in that particular district, 	although the 	collective
bargaining agreement 	typically 	lists 	the 	"Tuolumne Chapter 	#276"
as the employees' 	representative.
The 	first 	contract 	between the 	District and CSEA was
negotiated 	in 	1986 	and 	1987. 	The 	contract was 	signed by the
parties on March 11, 	1987, 	and was effective until June 30, 	1988.
The CSEA bargaining team was 	Sherry Gobel, 	Ruth Howard, 	and
Harvey Uhl. 	The former were employees of the District, 	and Uhl
4

was the Chapter President. 	Prior to the agreement's 	signing, 	Jan
Dole 	had 	also 	been on the negotiation team while 	employed by 	the
District. 	However, 	by the time the contract was 	signed, 	Dole had
left 	the District and the area. 	(She 	later returned to 	the
Tuolumne County area as 	a CSEA 	staff 	field representative.) 	The
CSEA 	field 	staff 	member assigned 	to 	the 	Tuolumne 	Chapter 	in 	1986,
1987 	and the 	first part of 	1988 was 	Jack Casey. 	Dole testified
that, 	when negotiations 	on the contract commenced in 	1986, 	the
Jamestown Chapter 	chose 	to have 	Harvey 	Uhl 	rather than Jack Casey
sit at the 	table because 	there were 	"hard feelings" 	toward Casey.
. . .
The 	CSEA 	Policy Manual 	and 	the 	CSEA Constitution 	and 	By-laws
prohibit 	any non-member 	from 	sitting as 	a member of 	a bargaining
team. 	A member is 	one who has paid established dues 	and 	fees. 	A
member's 	resignation becomes 	effective 	only when he 	or 	she
notifies 	the 	responsible person to halt 	any automatic 	dues
deduction.
In the Summer of 	1988, 	two 	significant personnel 	changes
were made: 	CSEA 	field representative Joan Grace 	assumed Jack
Casey's 	assignment 	to the Tuolumne County Chapter, 	and Dan White
became 	superintendent 	for the 	Jamestown District.
Grace contacted Howard and Gobel 	in August 	1988, 	to
ascertain the 	status of 	negotiations, 	the contract having expired
at the end of 	June. 	She 	learned that no proposal had been
submitted to the 	District. 	Grace did not 	contact the 	District 	to
introduce herself 	to White 	or any other administrators.
5

When White began his 	new job in July 	1988, 	he asked to meet
with the various 	employee 	organization representatives. 	Gobel
and 	Howard 	introduced themselves 	to White, 	and the three had an
introductory meeting5. 	White 	asked Gobel 	and Howard to 	submit a
contract proposal. 	White 	also 	asked whether Howard and Gobel
would do 	the 	negotiations 	for CSEA, 	or whether they would use
"outside" 	negotiators 	(i.e., 	paid CSEA staff). 	By letter to the
school 	board on July 	28, 	Howard and Gobel 	indicated they would be
doing 	the 	negotiating 	for 	CSEA.
On or about Wednesday, 	August 24, 	White met with all the
classified 	employees. 	The 	meeting was 	called by Howard 	and Gobel
at White's 	request. 	The purpose of the meeting was 	to talk about
assignments 	for the coming year, 	to discuss hours of work, 	and to
explain the 	schedule of payroll payments. 	Also 	in attendance at
the meeting 	in order to meet 	the 	employees was 	the Jamestown
Elementary School principal, 	Randy Panietz.6 After White
concluded his 	introductions and his remarks to the employees, 	he
and Panietz 	left the meeting. 	Howard and Gobel 	continued meeting
with the 	employees, 	discussing CSEA matters.
. . .
A 	few days 	after the 	meeting with 	the 	classified 	employees,
White 	met with 	Howard and Gobel 	concerning 	longevity payments.
Longevity pay was 	earned by employees who had worked 	15, 	18 	or 	21
years 	for the 	District. 	Longevity pay was 	not 	referenced 	in the
collective bargaining agreement per 	se, 	but was 	listed as part of
5 Employee Gib Miller was 	also 	in attendance.
6 Like White, 	Panietz was 	new to the District.
66

various 	salary 	schedules as 	far back as 	1979. 	Employees who were
eligible received the pay 	continuously 	since then, 	even when a
particular 	salary 	schedule 	did not 	reference the 	longevity
payments. 	After 	15 years, 	the employee was paid $350 on top of
his 	or her regular wages. 	An additional 	$350 was paid after 	18
years of 	service, 	and another $350 	after 21 years of 	service.
White 	told Gobel 	and 	Howard 	that 	he 	believed the 	longevity
pay 	should be prorated 	according 	to 	the hours 	worked by 	the
affected employee. 	Thus, 	an employee who had worked more than 21
years 	for the District, 	but who worked only 	7 hours 	a day as
opposed to the 	full-time 	8 	hours per day, 	would receive 	($1050 	x
7/8), 	or $918.75 	for the year, 	in addition to the regular salary
earned. 	It is undisputed that, 	in the past, 	at least some of the
part-time 	employees 	received 	longevity pay that was 	not prorated.
Howard and Gobel 	told White 	that 	they 	agreed with him, 	but 	that
he 	should 	speak to the affected employees. 	Once he did that, 	he
should 	"do what was 	fair for the whole entire 	staff." 	White
also 	requested 	that 	Howard 	and Gobel 	confirm 	in writing 	their
agreement, 	but Howard did not do so until October 	10, 	1988. 	That
confirmation/summary 	reads 	in 	its 	entirety:
7
We 	as 	representative of 	the 	classified 	staff
at Jamestown School District, 	were contacted
by the 	Superintendent 	on the week of August
29, 	1988 	regarding the 	"increment problem".
We 	told 	the Superintendent 	to 	contact 	the
employees 	involved. 	We did not 	attempt 	to
interpret the provision of the agreement as
to whether 	the 	District or the 	employee was
7 It 	is 	unclear 	exactly how many 	employees were 	affected by
the proration, 	but White estimated 	five or 	six.
77

correct 	in the matter. 	We gave the
Superintendent 	the 	opportunity 	to 	fully
explain his 	position 	and 	told 	him 	that we
wanted to 	see what was 	correct 	and 	fair to be
done 	in this matter, 	and that we would
support the decision made to prorate the
longevity pay based on 8 	hours 	being 	full
time 	and any 	less 	hours 	being prorated.
Sincerely,
/s/
Ruth 	Howard
/ s /
Sherry 	Gobel
10/10/88 rh
White met with 	the 	affected 	employees 	shortly after his
meeting with the two CSEA representatives, 	and then instituted
the pro-rating 	of 	longevity pay. 	Howard 	testified 	similarly 	to
White as to the content of the August meeting. 	She, 	however,
said that 	she and Gobel 	"directed Mr. 	White to talk to the 	staff
that it 	[the proration] 	involved 	. 	. 	. 	that if they agreed to it
and didn't have 	any objections 	then to do what was 	fair 	for 	the
whole entire 	staff." 	This 	testimony 	is 	somewhat 	equivocal 	as 	to
whether Howard and Gobel 	agreed to White's 	proposal, 	or whether
they merely 	agreed he 	should poll 	the 	affected 	employees.
To resolve the ambiguity, 	the undersigned has 	examined
White's 	testimony, 	along with Howard's 	testimony and the document
signed by Howard and Gobel 	in October, 	1988. 	Howard and Gobel
themselves 	did not conduct a vote as 	to the proration, 	nor did
they themselves 	poll 	the 	employees. 	Such behavior 	indicates
their approval 	of 	the Superintendent's proposal was 	given at
their August meeting, 	and not withheld pending approval 	of 	the
8

affected employees 	or the unit. 	Thus, 	White's 	testimony that he
had the agreement of Howard and Gobel 	in August 	is 	credited, 	and
he was 	permitted by 	them to make 	the 	change 	once 	he 	had 	explained
what he was 	doing to 	the 	affected 	employees.
•
CSEA's 	constitution, 	bylaws 	and policy manual 	require that
any 	collective bargaining agreement 	or modification of 	a
collective 	bargaining 	agreement 	be 	ratified 	formally 	by 	the
chapter membership. 	The 	ratification 	is preceded by a 	review of
the 	tentative 	agreement 	by the 	CSEA 	field director 	assigned 	to
the Chapter, 	who gives 	a written recommendation to the Chapter to
approve 	or disapprove the 	tentative 	agreement. 	This 	procedure
was 	not 	followed 	in the 	longevity matter. 	White 	implemented 	the
proration at 	the beginning of 	the 	1988-89 	school 	year.
A 	second 	change 	in practice 	that 	occurred 	at 	the 	beginning
of 	the 	1988-89 	school year was 	how vacation time was 	allotted.
Prior to 	1986, 	most part-time classified employees did not
receive 	any vacation pay. 	At 	least two part-time 	employees,
however, 	had received vacation allotment as 	far back as 	1981. 	In
its 	initial proposal 	for a 	contract 	in 	1986, 	CSEA requested
vacation pay 	for the part-time 	employees who had 	never 	received
it, 	to be paid 	in accordance with Education Code 	section 451978.
The District not only agreed to 	such payments, 	but also made the
8
9
8 Education Code 	section 45197 	reads 	in pertinent part:
(c) 	For all 	employees 	regularly 	employed 	for 	fewer
than 35 hours 	a week, 	regardless of the number of hours
or days worked per week, 	the vacation credit 	shall be
computed 	at the rate of 	0.03846 	for each hour the
employee 	is 	in paid status, 	not including overtime.

payments 	retroactive. 	Indeed, 	the District agreed immediately to
CSEA's 	proposal 	and 	implemented 	it 	long before 	a written
collective 	bargaining agreement was 	signed 	and 	ratified. 	Since
vacation pay 	had been 	implemented prior 	to 	any 	actual
negotiations, 	it was 	never 	integrated 	into the 	final 	collective
bargaining 	agreement.
Prior to the beginning of the 	1988-89 	school year, 	there-
fore, 	the majority of part-time 	employees 	received vacation pay
according to 	Education Code 	section 45197. 	Two 	employees,
however, 	Barbara Coffin and Gert Daniels, 	received vacation pay
in 	1986-87 	and 	1987-88, 	paid at the rate of one day per month, 	a
formula 	that was used for full-time employees, 	and the 	formula
under which they had received vacation allotment prior 	to 	1986.
When White 	noted the discrepancy between the 	calculations 	(i.e.,
the 	majority 	of 	part-timers 	receiving 	vacation pay 	under
Education Code 	section 45197, 	and two part-time employees
receiving vacation pay at the rate of one day per month), 	he
changed the 	calculations 	so 	that 	all part-time 	employees 	received
vacation pay 	according 	to 	the 	Education Code 	formula.
On September 8, 	1988, 	Howard and Gobel called a meeting of
all 	classified 	employees 	for 	9:00 	a.m. 	The 	employees 	generally
were 	given release 	time, 	although Hoaglund testified that 	shortly
after arriving 	at the meeting 	she was 	required to 	return to 	her
job by Principal 	Randy Panietz 	and 	she did not return to 	the CSEA
meeting until 	it was 	nearly ended. 	The 	full agenda of 	the
meeting 	is 	not known, 	but evidently the employees 	discussed,
10

among other things, 	the 	status 	of negotiations 	and the bargaining
unit's 	dissatisfaction with CSEA. 	The unit members 	requested
Howard 	and Gobel 	do 	no 	further negotiating with 	the 	District
until 	the 	representation 	issue 	could be 	sorted out. 	Further,
Gobel 	and 	Howard were 	instructed 	to 	investigate 	affiliation with
other unions.
Immediately after the meeting, 	Howard and Gobel 	revoked
their CSEA dues deduction authorization. 	By this 	action, 	they no
longer were members 	of CSEA, 	and had no 	authority to negotiate
for CSEA. 	Most, 	but not all, 	of the remaining bargaining unit
members 	also 	resigned 	from CSEA 	in the days 	that 	followed.
On September 	14, 	the classified employees met again, 	this
time after 	school 	so release time was 	not needed. 	The 	employees
heard a presentation 	from a CTA organizer. 	Hoaglund testified
that 	Howard told her 	(Hoaglund) 	that Panietz wanted all 	employees
to 	attend.
During September, 	White began to hear rumors 	that the
classified 	employees were 	not happy with CSEA's 	representation,
but White 	never 	attended 	any 	meeting where 	employees 	discussed
changing 	representatives. 	Although 	Hoaglund testified 	that 	White
and Panietz were 	in the room for the September 	8 	meeting, 	there
is 	no other evidence to 	support this. 	CSEA witness 	Barbara
Coffin, 	White and Panietz deny that the 	latter were present 	at
either meeting 	in September. 	White 	and Panietz 	did attend part
of the August 	24 meeting, 	and it 	is possible that Hoaglund has
confused 	the meetings. 	Hoaglund's 	own testimony concerning 	the
11

September 	8 meeting, 	that 	she received a message 	from Panietz 	to
leave the meeting to register 	students, 	tends 	to prove the 	exact
opposite of her belief that Panietz was 	in attendance. 	Thus 	it
is 	found that 	neither White 	or 	Panietz 	had 	any direct 	knowledge
of 	the 	subject matter of the September meetings.
White's 	statement 	that he 	had 	only heard 	rumors 	about 	the
dissatisfaction with 	CSEA 	is 	bolstered by 	Hoaglund's 	testimony
concerning a 	form, 	received from Howard and Gobel, 	during
September or 	October. 	The 	form 	evidently 	asked 	the 	bargaining
unit 	employees 	whether they wished 	for Howard and Gobel 	to
"represent" 	the unit. 	Hoaglund received the 	form in the morning.
She was 	then approached 	several 	times 	by Howard asking 	if 	she had
completed the 	form. 	Irritated at 	the pressure put 	on her,
Hoaglund gave the 	form to White to 	read and asked him, 	in effect,
"Don't 	I 	have until the 	end of my workshift to complete this?"
White 	read 	it, 	and 	indicated 	that 	the 	form did 	indeed give 	the
employee until 	the 	end of 	the day. 	Hoaglund then requested 	that
White 	"keep those 	ladies 	off my back, 	they've been here 	five
times 	asking 	for it." 	White's response, 	according to Hoaglund,
was 	"Maybe 	it's 	because you're not 	going with the 	flow."
In mid-September, 	CSEA Field Representative Joan Grace
learned 	at 	a 	Tuolumne Chapter meeting 	(though 	not 	from a
Jamestown employee) 	that 	the 	Jamestown employees were unhappy
with CSEA, 	and that there might be a decertification attempt.
Very 	shortly thereafter, 	Grace 	contacted Gobel 	by telephone 	and
was 	informed that 	the 	latter had dropped her CSEA membership, 	and
12

that 	the 	employees 	were 	looking 	into 	affiliation with 	another
union. 	Grace 	indicated 	she would 	like 	to 	meet with 	the
bargaining unit, 	but Gobel, 	after checking with the employees,
said 	such a meeting would not be worth Grace's 	time because 	the
employees 	had 	"decided to 	go with 	another union."
Grace traveled to Jamestown on September 	22, 	both in an
effort to meet with Gobel 	as well 	as 	investigate 	a possible
grievance. 	Grace was confronted by Panietz, 	Howard, 	and Gobel
and 	told that 	the 	employees 	had 	filed 	a 	decertification petition.
The 	four then went to Panietz' 	office and placed a telephone 	call
to White. 	White inquired as 	to who Grace was. 	Grace informed
all 	of 	them that, 	since 	Howard and Gobel had resigned 	from CSEA,
the District 	could no 	longer negotiate with the two, 	and 	instead
should deal 	only with a CSEA representative. 	After the
conference call with White, 	Grace again told Howard and Gobel
they were not authorized to 	speak for CSEA on any matters, 	nor
were they permitted to represent the bargaining unit. 	Grace 	then
left 	the meeting and met with 	the 	employee who had 	expressed
interest 	in filing a grievance.
Shortly before Grace's 	trip to Jamestown, 	CSEA
representative 	Jan Dole was 	also 	assigned to 	Jamestown because
she 	at one 	time had been an employee 	of 	the Jamestown District
and knew most of 	the 	employees 	very well. 	Grace did 	no more
representation of 	the Jamestown unit after the September 	22 	trip.
On October 22, 	1988, 	Dole went to Jamestown and met with
White, 	Howard, 	Gobel and Gib Miller, 	a custodian for the
13

District. 	At that meeting, 	Dole explained to all 	concerned that,
until 	a 	decertification 	election was 	held 	and 	the 	results
certified, 	CSEA would continue to act as 	the exclusive
representative. 	Further, 	Howard and Gobel 	could not negotiate
for 	the 	bargaining unit without CSEA's 	consent 	and without 	their
re-joining 	CSEA.9
After the meeting, 	Dole 	sent 	letters 	demanding bargaining on
the 	issues 	of vacation allotment and 	longevity pay. 	At 	least 	two
sessions were 	scheduled but never held. 	The first one, 	scheduled
in March 	1989 was 	not held because 	Hoaglund by now was 	part 	of
the 	CSEA 	negotiating 	team 	and 	the 	District 	refused 	to 	negotiate
with her. 	Hoaglund was 	absent 	from work because 	of 	stress 	from
January through the 	end of 	the 	school year, 	and the District
believed 	that 	having 	her 	at 	the 	bargaining 	table would 	exacerbate
her 	stress. 	CSEA apparently concurred, 	because 	it 	scheduled
another bargaining 	session for March 	16, 	1989. 	That 	session was
also postponed because Jan Dole was 	injured 	in a 	car accident.
No 	further bargaining has 	been requested or 	scheduled, 	and no
contract 	covers 	the bargaining unit at 	this 	time.
Hoaglund, 	who opposed the 	efforts 	of 	Gobel 	and Howard to
decertify CSEA worked as 	a 	secretary to 	Panietz. 	In the 	Fall 	of
1988 	she 	received reprimands 	from him on 	several 	occasions. 	She
went on medical 	leave in November 	1988, 	returning in January
9 Dole 	also 	erroneously told the 	group that the 	fate 	of 	CSEA
would be 	determined 	in a decertification election by 	a 	majority
of 	the unit 	(not a majority of those voting) 	and that 	if CSEA
lost 	the decertification election, 	a 	second election would be
needed 	to 	select 	a 	new representative.
14

1989. 	She again received reprimands 	from Panietz, 	as well as
from White. 	Hoaglund took another medical 	leave 	in January 	1989,
and had 	not 	returned 	to work as 	of 	the dates 	of 	this 	hearing.
CSEA 	filed 	an unfair practice 	charge 	alleging 	that 	the
District 	refused 	to 	bargain 	in 	good 	faith when 	it 	changed 	the
vacation and 	longevity benefits. 	Further, 	CSEA alleges 	that 	the
District 	discriminated 	against 	Hoaglund 	when 	it 	reprimanded 	her
on October 27, 	1988, 	January 10, 	1989, 	January 16, 	1989, 	January
24, 	1989 	and January 25, 	1989. 	CSEA alleges that these
reprimands 	occurred because 	of 	Hoaglund's 	opposition to 	the
effort to decertify CSEA. 	Finally, 	CSEA alleges 	that 	the
District 	interfered with CSEA's 	rights, 	and unlawfully 	favored
CTA, 	by 	giving release 	time 	to 	employees 	to attend meetings 	on
September 	8 	and 	14, 	1988, 	and by bargaining directly with Howard
and Gobel. 	Further, 	the totality of 	the District's 	conduct 	is
alleged by CSEA 	to 	show unlawful 	support 	and 	encouragement 	for
CTA by 	these 	unit 	employees.1010
ISSUES
(1) 	Did the 	District's 	conduct 	regarding 	longevity 	and
vacation benefits 	constitute 	a 	unilateral 	change 	and 	thus 	violate
EERA section 3543.5(c), 	and derivatively 3543.5(b)?
(2) 	Was 	Juanita Hoaglund discriminated against because 	of
her exercise of protected activity, 	specifically, 	her right 	to
support 	CSEA, 	causing the 	District 	to violate 	EERA 	§3543.5(a)?
10 Paragraphs 	18-22 	of 	the Complaint 	allege discrimination
against 	employee Gert Daniels. 	At the hearing, 	no 	evidence was
presented on this 	matter, 	and CSEA withdrew those 	allegations.
15

(3) 	Did the District unlawfully 	support or encourage JTA 	in
an effort to 	interfere with CSEA's 	representation, 	thus 	violating
§3543.5(b)?
CONCLUSIONS 	OF 	LAW
The Motion to Dismiss
At 	the 	conclusion of 	the hearing, 	JTA and the 	District
jointly moved to dismiss 	the 	complaint 	in 	its 	entirety.
Specifically, 	they 	argued 	that 	paragraphs 	3 - 7 	concerning 	the
longevity pay, 	and paragraphs 	8 - 1 2 	concerning 	the 	vacation pay,
were 	not proven by CSEA. 	Essentially, 	JTA argued CSEA did not
prove 	that 	it was 	denied notice 	and 	an opportunity 	to bargain
about the 	changes. 	Further, 	JTA argued that CSEA never 	showed
there was 	a unilateral change. 	Instead, 	the testimony was 	that
some 	employees 	had 	some 	change 	in vacation and 	longevity
benefits, 	but not that those 	changes 	affected the remainder or
even a majority of 	the bargaining unit.
As 	to paragraphs 	3 - 1 2 , 	the Motion to 	Dismiss 	was 	denied
because 	CSEA had 	established 	a prima 	facie 	case 	that 	a 	change 	had
occurred and CSEA 	(not merely Gobel 	and 	Howard) 	did not have
notice 	and an opportunity 	to bargain.11
The 	Motion to 	Dismiss 	also 	encompassed 	the 	allegation 	in
paragraphs 	13 	- 	17 	alleging retaliation against Hoaglund. 	JTA
and 	the 	District 	argued 	that 	Hoaglund 	never 	exercised 	any
protected rights, 	that Hoaglund never denied the District was
inaccurate 	in its 	assessment of 	her performance, 	and that the
11 	However, 	see discussion on p. 	21-25.
16

reprimands were given for 	legitimate business 	reasons. 	JTA and
the District 	argued that there was 	no nexus 	or connection between
any 	activity by 	Hoaglund 	in 	support 	of 	CSEA 	in 	September 	and
October 	and 	the 	adverse 	treatment 	received 	by 	Hoaglund 	in
January.
1
Finally, 	JTA and the 	District moved to dismiss 	paragraphs
2 3 	- 	25, 	wherein the District was 	alleged to have favored JTA at
the expense of CSEA by 	(1) 	the totality of 	its 	conduct 	in August
through October; 	(2) 	by the specific 	acts of giving release time
for the purpose of attending meetings 	in September; 	and 	(3) 	by
negotiating with 	Howard 	and Gobel 	at 	a 	time 	they were 	no 	longer
CSEA 	representatives.
.
The 	undersigned heard oral 	argument 	from JTA 	(on 	its 	own
behalf 	and on the behalf of 	the 	District) 	and 	from CSEA 	in
opposition to the Motion. 	After the argument, 	and after a recess
to 	study the 	record, 	the undersigned 	granted the Motion to
Dismiss as to paragraphs 	13 - 	17 	(the Hoaglund retaliation) 	and
paragraphs 23 - 	25 	(the interference/support allegation). 	The
Motion to 	Dismiss 	was 	denied 	as 	to 	paragraphs 	3 - 1 2 	(the 	changes
in vacation and longevity benefits).
Although the transcript 	contains 	the actual ruling, 	the
undersigned will restate the 	reasons 	for 	the dismissal 	here 	for
purposes 	of making a 	complete record 	for the parties.
Discrimination 	charges 	must be upheld when an employee 	(1)
engages 	in protected activity; 	(2) 	the employer knows of this
activity; 	(3) 	the employer takes adverse action against the
17

employee 	that 	it would not have done but 	for the protected
activities. 	Novato Unified School 	District 	(1982) 	PERB Decision
No. 210.
Concerning Hoaglund, 	there was 	evidence of protected
activity in that 	she attended, 	albeit briefly, 	the August and
September meetings. 	Further, 	Hoaglund was 	asked 	in September
whether 	she wished Gobel 	and Howard to 	represent her. 	Although
not a 	formal decertification vote, 	Hoaglund's 	right to express
support 	or non-support 	for CSEA, 	CTA, 	or Howard and Gobel 	is
protected.
There is 	little or no evidence, 	however, 	that the District
knew of 	Hoaglund's 	activities 	or her position on the CSEA
decertification. 	Neither White nor Panietz were 	at the CSEA
meetings. 	The 	sole 	comment 	of White to Hoaglund 	("I 	guess 	you're
not 	going with 	the 	flow") 	occurred only after Hoaglund 	showed
White 	a paper 	she had received 	from Howard and Gobel 	asking
whether 	Hoaglund wanted 	Howard 	and 	Gobel 	to 	continue 	representing
the 	employees. 	Although Hoaglund 	testified 	she 	interpreted
White's 	statement 	to 	mean 	she 	should 	support JTA and 	abandon
CSEA, 	there is 	no rationale for this 	interpretation. 	According
to testimony, 	the document 	itself 	referred neither to JTA nor
CSEA but only to Howard and Gobel. 	Further, 	White's 	comment 	is
reasonably 	interpreted to be 	an accurate 	statement. 	Hoaglund was
feeling pressured by Howard 	and Gobel 	to 	complete 	the 	form. 	Her
tone 	indicated 	she was 	angry at Howard and Gobel. 	White
supported Hoaglund's 	belief 	that 	she had until 	the 	end of 	the day
18

to 	complete the 	form. 	When she 	expressed 	frustration, 	White's
comment 	could 	reasonably be 	said 	to 	explain 	that 	evidently 	other
employees were 	responding more 	quickly than Hoaglund. 	I 	find no
reasonable 	interpretation of 	the 	statement 	to mean that White
wanted 	Hoaglund 	to 	support 	CTA or CSEA or 	Howard and 	Gobel. 	He
was 	merely 	trying 	to 	explain why Howard and Gobel 	seemed 	to 	be
pressuring 	her.
The Motion to Dismiss was 	also granted as 	to paragraphs
23 	- 	25. 	The District neither 	supported nor encouraged an effort
to 	unseat CSEA. 	The August meeting 	called by White was 	nothing
more 	than an 	introductory 	staff meeting. 	When his 	business 	was
completed, 	White 	(and Panietz) 	left. 	There is no evidence he
took any 	interest 	or 	notice 	in any CSEA business 	discussed 	after
he left.
Furthermore, 	the District did not 	sanction a decertification
meeting 	on September 	8. 	The meeting was 	called by Howard and
Gobel. 	Although it was held during the workday, 	CSEA's 	own
witnesses 	testified 	that 	employees 	had to 	leave 	at various 	times
to perform their duties. 	Thus, 	the meeting was 	not mandatory in
any 	sense of 	the word. 	The meeting on September 	14 was 	held
after work. 	In neither 	case was 	there 	credible 	evidence 	that 	any
District representative 	had knowledge 	of 	the purpose 	of 	the
meetings, 	the content of the meetings, 	or who attended.
Hoaglund's 	testimony 	that 	Howard 	told 	Hoaglund 	that 	Panietz
wanted everyone to 	attend on September 	14 	is 	attenuated hearsay,
and no proof 	at all of what Panietz 	actually said.
19

There was 	no 	evidence that JTA was 	given access 	denied to
CSEA, 	or that the District 	favored JTA over CSEA, 	impliedly or
explicitly.
Finally, 	White's own statement that he was 	aware generally
of 	dissatisfaction with CSEA 	is 	not 	enough 	to 	connect 	him with
any 	effort to 	favor one 	group over another. 	White's 	comments 	at
the October 	22 	meeting with Dole 	indicate 	that he 	(like Howard,
Gobel) 	had 	little knowledge of the 	consequences 	of 	a
decertification petition. 	But once the process was 	explained, 	he
willingly continued to 	negotiate with CSEA, 	not 	Howard and Gobel.
Indeed, 	the 	only time he 	negotiated with the 	latter two was 	in
August, 	when they were the CSEA representatives.
Thus, 	paragraphs 	13 	- 	17 and 23 	- 25 were dismissed by the
undersigned, 	and paragraphs 	18 	- 	22 were withdrawn by CSEA. 	The
undersigned denied the 	Motion to 	Dismiss 	as 	to the 	unilateral
changes 	(3 	- 	12) 	because CSEA had presented a prima 	facie case
that a 	change had been made 	in two negotiable 	subjects, 	vacation
and longevity benefits. 	At the 	conclusion of the hearing, 	and
after testimony presented by JTA and the 	District, 	the Motion to
Dismiss was 	renewed. 	JTA orally argued the Motion to Dismiss
paragraphs 	3 - 1 2 , 	but CSEA requested 	it 	be permitted 	to 	brief
the 	issues. 	That request was 	granted, 	along with JTA's 	request
that it be permitted to restate 	its motion in writing, 	concurrent
with CSEA's 	written response.
20

The 	Longevity 	Pay
A unilateral 	change 	in a 	mandatory 	subject 	of 	bargaining 	is
a violation of the duty to bargain in good faith. 	NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]; 	Pajaro Valley Unified School
District 	(1978) 	PERB Decision No. 	51. 	This 	is 	so even when the
contract has 	expired. 	Pittsburg Unified 	School 	District 	(1982)
PERB Decision No. 	199. 	Only after the parties have negotiated
and 	reached 	impasse 	may 	the 	employer 	unilaterally 	implement 	its
last best offer. 	Modesto City Schools 	(1983) 	PERB Decision No.
291.
Here, 	the parties were without a contract. 	Thus, 	until
bargaining had occurred and the parties 	reached 	agreement, 	or
completion of 	impasse, 	the District was 	required to maintain the
status 	quo 	in regards 	to mandatory 	subjects 	and bargaining.
The 	issue 	of 	longevity pay 	is 	a mandatory 	subject 	of
bargaining as 	it is wages, 	an item specifically denoted as within
the 	scope of bargaining in EERA §3543.212.
In the 	specific 	case here, 	the District changed the method
of 	paying 	longevity pay to part-time 	employees 	by prorating 	the
amount owed 	in a ratio 	identical 	to 	the part-time hours worked
per day. 	More than one employee was 	affected by this 	change,
resulting 	in a 	reduction of 	longevity pay.
12 Section 3543.2(a) 	reads 	in relevant part:
The 	scope 	of 	representation 	shall be 	limited
to matters relating to wages, 	hours of
employment, 	and other terms 	and conditions of
employment.
21

Thus, 	a change was made in a mandatory 	subject of
bargainings 	The change, 	however, 	was not unilateral. 	Rather, 	it
occurred with 	the 	consent 	of 	the 	representatives 	of 	the
bargaining unit. 	Testimony 	established 	that 	the 	change 	occurred
in late August, 	after White met with Howard and Gobel. 	The
latter two agreed to the change, 	as 	evidenced by their oral
statements 	and 	the memorialization of 	that meeting.
Whether White was 	entitled to 	rely upon the 	authority
manifested by Howard 	and Gobel 	is 	dependent upon principles 	of
agency, 	set 	forth by the United States 	Supreme Court 	in
'International Association of Machinists v. 	NLRB 	(1940) 	311 	U.S.
72, 	and 	specifically adopted by PERB 	in Antelope Valley Community
College District 	(1979) 	PERB Dec. 	No 97. 	The standard set forth
in those cases 	is whether one party 	(here, 	the employer) 	had 	just
cause to believe the other party 	(Howard and Gobel) 	was 	acting
with the 	apparent authority of 	CSEA. 	At 	the time White met with
Howard and Gobel, 	the two were 	still CSEA members, 	and had the
authority to negotiate 	for the unit. 	Indeed, 	CSEA field
representative 	Joan Grace 	communicated with 	them 	in August
concerning negotiations, 	consistent with her belief 	that 	they
were 	empowered to negotiate 	for CSEA. 	Thus 	White was 	justified
in relying upon the representations 	of Gobel and Howard, 	as well
as 	the 	evidence of 	their participation in the 	negotiations 	for
the recently expired collective bargaining agreement, 	as
witnessed by their 	signatures 	on the document, 	in concluding that
the 	two had 	the 	authority 	to 	speak 	for CSEA.
22

CSEA argues 	that, 	since 	Howard and Gobel did not 	follow
CSEA's internal policies 	for negotiations 	(i.e., 	having the
tentative 	agreement 	reviewed by CSEA 	staff 	and 	having 	the 	entire
unit ratify the agreement), 	White's action was unilateral. 	This
argument is 	rejected, 	however. 	Not only did White rely
reasonably 	on 	Howard 	and 	Gobel's 	representations 	of 	authority
(bolstered by their history as 	negotiators), 	even Howard and
Gobel believed they had the 	authority to negotiate. 	Their
ignorance 	of CSEA's 	internal procedures 	cannot 	be 	used by CSEA to
shield 	itself 	from complying with an agreement 	it disapproves 	of.
Therefore, 	while the agreement by Howard and Gobel 	to the
District's 	proration of 	longevity was 	not 	reduced 	in writing 	at
the August meeting, 	nor was 	it 	submitted to CSEA or the
membership. :
, 	it was 	concurred with by the agents 	of 	the 	exclusive
representative, 	who had the opportunity to object 	if they
disagreed. 	Thus 	the District did not violate 	§3543.5(c) 	when it
prorated 	the 	longevity pay.
The Vacation Formula
As with the 	longevity pay, 	the payment of vacation pay 	is 	a
term of 	condition of employment within the 	scope 	of 	negotiations.
Since the method of 	calculating the 	vacation allotment 	affects
how large the benefit is, 	the manner of calculation is 	just as
negotiable as 	the 	fact of the payment of the benefit.
Here, 	testimony established that the vast majority of part-
time 	employees 	received vacation pay as 	calculated by 	a 	formula
found in Education Code 	section 45197. 	However, 	two unit
23

employees 	(Coffin and Daniels), 	until school year 	1988-89, 	had
received vacation at the rate of one day per month. 	That 	is, 	if
the employee worked a five-hour day, 	he or 	she received a
vacation day of 	five-hours 	for every month worked. 	In September
1988, 	however, 	all part-time employees were given vacation pay
according to the Education Code formula. 	For Coffin, 	the
different 	formula 	application meant 	a 	reduction of 	vacation hours
from 	55 	to 	38.92 	for the 	1988-89 	school year. 	There was 	no
testimony as to the effect on Daniels' 	vacation allotment.
Unlike 	the 	longevity benefit, 	no discussion occurred with
Gobel 	and Howard 	concerning the vacation 	formula. 	The past
practice was 	not written 	into 	the 	collective bargaining
agreement, 	either, 	evidently because the vacation pay had already
been 	implemented prior to the 	start 	of 	negotiations 	for the 	1986-
88 contract.
Thus, 	the parties, 	neither in contract negotiations nor
there-after, 	ever addressed the issue of whether the two part-
time 	employees 	who had been receiving vacation allotment prior 	to
1986 	should continue receiving 	it under the old formula, 	or
whether 	they 	should be paid under the 	Education Code 	formula.
This 	failure to address 	this 	issue resulted 	in the dual
method of payment 	in 	1987-88. 	Is 	the District's 	action to bring
the 	part-time 	employees who 	received the 	one day per month
allotment 	into 	conformity with 	the 	remainder of 	the part-time
employees 	a 	unilateral 	change?
24

PERB has previously ruled 	that 	a 	unilateral 	change 	can be
found even where only one 	employee was 	affected. 	Pittsburg.
supra. 	However, 	that case 	(in which an employee's hours were
changed) 	differed significantly from this 	case, 	i.e., 	the change
here resulted 	in uniformity within the unit. 	This 	distinction 	is
crucial 	because PERB will 	not 	find a unilateral 	change 	that does
not 	(1) 	violate the past practice of the District and 	(2) 	amount
to a change 	in policy, 	having a generalized effect or continuing
impact upon the terms and 	conditions 	of 	employment of 	the
bargaining unit. 	Grant 	Joint Union High 	School 	District 	(1982)
PERB Decision No. 	196; 	Lake Elsinore School District 	(1988) 	PERB
Decision No. 	666.
The NLRB has 	established a 	standard which holds 	that when a
change 	in terms 	and conditions 	of 	employment affects 	only one or
two employees, 	the change will not be 	considered a breach of 	the
duty to bargain unless 	the 	change reflects 	a 	change 	in policy
with respect to 	employees 	generally. 	Santa Rosa 	Blueprint
Service. 	Inc. 	(1988) 	288 NLRB No.88 	[130 LRRM 1403], 	Mike
O'Connor Chevrolet-Buick-GMC Co. 	Inc.. 	et. 	al. 	(1974) 	209 NLRB
701 	[85 	LRRM 	1419]. 	In one case where the employer changed a
condition of 	employment 	that had existed 	for thirteen years, 	the
NLRB 	ruled that the 	change did not 	affect 	the 	employees 	in
general, 	and thus 	did not violate the duty to bargain.
Advertiser's Manufacturing Company. 	(1986) 	280 NLRB 	128
[124 LRRM 	1017]. 	The NLRB's general rule is that an employer
violates 	the duty to bargain only if the change 	is 	"material,
25

substantial, 	and . 	. 	. 	significant." 	Murphy Oil USA, 	Inc. 	(1987)
,286 NLRB No. 	104 	[127 LRRM 1111].
While 	the 	vacation 	formula 	change 	for Daniels 	and Coffin may
have violated past practice, 	it does 	not have any generalized
effect on the unit as a whole. 	Nor is 	there any evidence that
the 	employer refused 	to 	bargain generally about vacation
allotment. 	The change itself, 	while it affected two members of
the bargaining unit, 	reinforced the bargained-for benefit 	enjoyed
by the bulk of the part-time employees. 	Hence, 	the vacation
allotment 	change was 	not an unfair 	labor practice, 	and 	is
dismissed.
ORDER
Pursuant to California Administrative Code, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall become
final unless 	a party files 	a 	statement of 	exceptions with the
Board 	itself 	at the headquarters 	office 	in Sacramento within 	20
days 	of 	service of this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of the record, 	if 	any,
relied upon 	for 	such 	exceptions. 	See California Administrative
Code, 	title 8, 	section 32300. 	A document is considered 	"filed"
when actually 	received before 	the 	close 	of 	business 	(5:00 	p.m.)
on the 	last day set 	for filing 	". 	. 	. o r when sent by telegraph
or 	certified or Express 	United States 	mail, 	postmarked not 	later
26
IThe charge and complaint 	in Case No. 	S-CE-1254 	is 	hereby
DISMISSED.

than the last day set for filing 	. 	. 	. 	." 	See California
Administrative Code, 	title 8, 	section 32135. 	Code of Civil
Procedure 	section 	1013 	shall 	apply. 	Any 	statement 	of 	exceptions
and 	supporting brief 	must 	be 	served 	concurrently with 	its 	filing
upon 	each party to 	this 	proceeding. 	Proof 	of 	service 	shall
accompany 	each 	copy 	served on a party or 	filed with 	the 	Board
itself. 	See California Administrative Code, 	title 8, 	sections
32300, 	32305 and 32140.
Dated: 	August 24, 	1989
MARTHA 	GEIGER
Administrative 	Law Judge
27