Cajon Valley Union School District (PERB 1085E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CAJON
CHAPTER 	#179,
Charging 	Party,
v.
CAJON VALLEY UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3170
PERB Decision No. 	1085
March 1, 	1995
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Appearances: 	John A. 	Baird, 	Senior Labor Relations
Representative, 	for California School 	Employees Association and
its Cajon Chapter #179; 	Worley, 	Schwartz, 	Garfield & Rice by
Timothy K. 	Garfield, 	Attorney, 	for Cajon Valley Union School
District.
Before Blair, 	Chair; 	Garcia and Johnson, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by 	the
California 	School 	Employees 	Association and 	its 	Cajon Chapter
#179 	(CSEA) 	and Cajon Valley Union School District 	(District) 	to
a 	PERB administrative 	law judge's 	(ALJ) 	proposed decision
(attached hereto). 	In the proposed decision the ALJ dismissed
CSEA's 	unfair practice 	charge 	which alleged 	that 	the District
unilaterally 	reduced 	the 	hours 	of 	several 	vacant 	classified
bargaining positions in violation of section 3543.5(a), 	(b) 	and
(c) 	of the Educational Employment Relations Act 	(EERA).1
J1EERA	EERA 	is 	codified at Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government Code. 	Section 3543.5 	states, 	in pertinent part:

It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(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.
The Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcripts, 	exhibits, 	proposed decision, 	CSEA's
exceptions, 	the District's 	exception and response to CSEA's
exceptions. 	The Board finds 	the ALJ's 	findings 	of 	fact and
conclusions 	of 	law to be 	free 	of prejudicial 	error and adopts
them 	in accordance 	with 	the 	following discussion.
BACKGROUND
CSEA is 	the 	exclusive 	representative 	of a unit 	of 	classified
employees 	of 	the District. 	CSEA has 	alleged that 	the District
unilaterally 	reduced hours 	of 	several 	vacant positions 	without
providing CSEA with: 	(1) 	notice, 	(2) 	an opportunity to negotiate
the changes, 	or 	(3) 	a chance to negotiate the effects of 	such
changes. 	The District 	claimed that 	it 	had a longstanding and
uniform past 	practice 	of 	unilaterally modifying 	the 	hours 	of
vacant bargaining unit positions. 	The ALJ determined 	that 	the
changes 	in hours 	of vacant positions 	is 	a matter within the 	scope
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of bargaining as defined in section 3543.2(a).2 Despite 	the
District's 	failure 	to negotiate 	the 	change, 	the ALJ concluded
that 	the District's 	past practice 	and 	waiver defenses 	supported
the dismissal 	of 	CSEA's 	charge.
EXCEPTIONS
CSEA filed numerous 	exceptions 	to 	the ALJ's 	decision
asserting, 	among other things, 	that 	the District 	failed to
establish either a past 	practice 	or a waiver defense 	that
permitted 	the District 	to unilaterally 	change 	the 	hours 	in vacant
positions. 	CSEA also 	contends 	that 	the ALJ erred when 	she 	failed
to 	find 	that 	the 	District 	violated 	EERA by 	failing 	or 	refusing
to 	provide 	relevant 	and necessary 	information.
The District 	excepts 	to 	the ALJ's 	determination 	that 	a
change 	in the hours 	of a vacant position 	is a negotiable 	subject.
The District 	contends that 	it was, 	in effect, 	determining the
level 	of 	service 	to be provided. 	Based on the 	law and 	the 	facts
2Section 3543.2 provides, 	in relevant part:
(a) 	The 	scope of 	representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean health and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment 	policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the layoff of probationary
certificated school 	district 	employees,
pursuant 	to 	Section 44959.5 	of 	the 	Education
Code, . . .
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of 	this 	case, 	the District also argues 	that 	CSEA's numerous 	other
exceptions 	are without merit.
DISCUSSION
The 	District 	repeats 	arguments 	already 	considered by 	the ALJ
when 	it 	excepts 	to 	the ALJ's 	finding 	regarding a 	change 	in hours
of 	a vacant position. 	The Board concurs 	in the ALJ's 	analysis
and determination 	that a 	change 	in 	the hours 	of 	a vacant 	position
is a subject within the 	scope of 	representation, 	and therefore, 	a
negotiable 	subject because 	it 	"impacted the 	numbers 	of 	hours
which had been 	regularly assigned 	to positions 	that 	were
temporarily vacant."
On appeal, 	CSEA argues 	that 	there 	is 	no defense 	to 	the
District's 	action of 	reducing 	the hours 	of vacant positions
without 	notice 	and an 	opportunity 	to negotiate 	the 	reduction. 	As
such, 	the District's 	actions 	constitute a unilateral 	change 	in
the 	terms 	and 	conditions 	of 	employment within the 	scope 	of
representation as defined by section 3543.2 (a).
A past 	practice 	is 	established 	through a 	course 	of 	conduct
or as 	a way of 	doing 	things 	over an extended period of 	time.
(Pajaro Valley Unified School 	District 	(1978) 	PERB Decision
No. 	51.) 	The District unilaterally 	increased and decreased the
number 	of 	hours 	assigned 	to a wide 	spectrum of vacant 	positions
over a 	four-year period 	commencing 	in 	1989. 	This 	established 	the
practice 	in the District. 	Since 	the District's 	changes were made
in 	the usual manner, 	there was no unilateral 	alteration of 	the
past practice.
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CSEA contends 	they did not 	receive 	actual 	notice 	of 	the
change 	in the hours 	of vacant positions. 	Actual 	knowledge 	is not
required. 	(Modesto City Schools 	and High School 	District 	(19 84)
PERB Decision No. 	414; 	Modesto City Schools and High School
District 	(1985) 	PERB Decision No. 	541; 	California State
University 	(San Diego) 	(1989) 	PERB Decision No. 	718-H.) 	The
evidence 	shows 	that, 	going back as 	far as 	four-years before 	the
charge was 	filed,3 the District made numerous 	changes 	in hours 	of
vacant bargaining unit positions. 	These 	changes 	affected every
classification and happened at 	almost 	every 	job 	site. 	The
adjustments 	to 	the hours 	assigned to 	the positions were 	overt 	to
staff 	at 	the 	affected job 	sites. 	Based on 	the 	fact 	that 	the
District 	changed 	the 	hours 	of 	vacant 	bargaining unit 	positions 	in
1991, 	1992, 	and 1993, 	there is sufficient evidence to determine
that 	CSEA had 	constructive knowledge 	of 	the 	change 	in hours 	of
vacant positions.
CSEA asserts 	that during 	the 	1990-1991 	negotiations, 	the
District 	reduced the hours 	of 	13 	bargaining unit positions
without providing CSEA notice. 	However, 	the 	testimony of 	Smith
contradicts 	this 	statement. 	She 	testified that 	during the 	1990-
1991 	negotiations, 	prior notice was 	provided and the parties
3District 	Exhibit 	3 	contains 	a 	summary of 	all vacant
classified positions 	filled from July 1, 	1989 	to June 30, 	1993.
Forty-seven 	separate vacant 	positions 	were 	reduced 	in hours 	prior
to 	Labor Relations 	Representative Ann M. 	Smith's 	(Smith)
November 20, 	1991 demand. 	CSEA did not 	rebut 	the District's
witness 	or documentary 	evidence 	which 	demonstrated 	that 	two 	and
one-half years prior to CSEA's November 20, 	1991, 	demand date,
the 	District 	reduced hours 	in vacant 	instructional 	aide
positions.
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reached an agreement 	to 	reduce 	the hours 	of 	the 	13 	positions 	in
question. 	Thus, 	in this 	instance, 	the change 	in hours of unit
positions 	was 	treated by 	the District 	as 	a negotiable 	subject.
Therefore, 	the Board rejects 	CSEA's 	exception.
CSEA 	introduced 	evidence 	that 	the 	District 	modified 	the
hours 	of 	a position at 	Sevick School 	which was previously
occupied 	by 	a 	six-hour-per-day 	Special 	Education 	Classroom Aide
(SECA). 	This evidence was not disputed. 	In July 1992, 	CSEA was
advised 	of 	the 	SECA's 	transfer and 	the 	subsequent 	reduction 	of
the hours 	of 	that position. 	CSEA's 	failure 	to demand
negotiations 	after 	receiving notice 	of 	the 	District's 	proposed
action 	constitutes 	a waiver 	of 	the 	exclusive 	representative's
right 	to negotiate 	the proposed action. 	Thus, 	the ALJ properly
concluded 	that 	CSEA waived 	its 	right 	to 	negotiate 	concerning 	the
reduction 	in hours 	of 	the 	Sevick School 	position through 	its 	own
inaction.
CSEA claims 	that 	it 	requested 	relevant 	and necessary
information 	from 	the 	District 	which 	the 	District 	refused 	or
failed to provide. 	CSEA contends 	the ALJ erred when she 	failed
to 	find 	that 	the District 	violated 	EERA when 	it 	failed 	or 	refused
to provide 	the 	requested 	information.
The Board may consider unalleged violations when: 	(1) 	the
respondent 	has 	had 	adequate 	notice 	and an 	opportunity 	to 	defend
the charge; 	(2) 	the unalleged act(s) 	should intimately relate to
the 	subject matter of 	the 	complaint 	and 	involve 	the 	same 	course
of 	conduct; 	and 	(3) 	the matter has been fully litigated, 	meaning
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the parties 	have 	had an 	opportunity 	to 	examine 	and 	cross-examine
witnesses 	on the 	issue. 	(Santa 	Clara Unified School 	District
(1979) 	PERB Decision No. 	104.)
CSEA's 	initial 	charge 	did not 	allege 	the District's 	failure
to provide 	requested 	information. 	CSEA did not 	informally or
formally move 	to amend the 	complaint 	before 	the 	close 	of 	the
hearing 	to allege 	such an allegation. 	The Board stated, 	at
page 	6, 	in Tahoe-Truckee Unified School District 	(19 88) 	PERB
Decision No. 	668 	(Tahoe-Truckee) 	that 	"failure 	to meet any of 	the
above 	listed 	requirements 	will 	prevent 	the 	Board 	from 	considering
unalleged conduct as violative of 	the Act 	[EERA]."
While 	the 	information 	requested by 	CSEA was 	discussed as 	an
item of 	evidence at 	the hearing before 	the ALJ, 	the District 	did
not 	have 	adequate notice 	nor an opportunity 	to defend, 	inasmuch
as 	CSEA did not 	inform the ALJ 	or 	the District 	that 	the 	refusal
to 	provide 	the 	requested 	information 	should be 	considered 	a
charge. 	The Board 	in Tahoe-Truckee 	indicated that 	notice 	is 	a
requirement 	whether 	or not 	the unalleged violation 	is 	distinctly
separate 	from the 	charge. 	Therefore, 	the Board rejects 	this
exception.
ORDER
The 	complaint 	and unfair practice 	charge 	in Case
No. 	LA-CE-3170 	are hereby DISMISSED.
Chair Blair 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence begins 	on page 	8.
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GARCIA, 	Member, 	concurring: 	I agree with the majority
decision and wish to add, 	for clarification, 	that 	the evidence
supports 	that 	the 	California School 	Employees Association and 	its
Cajon Chapter #179 	(CSEA) 	had constructive notice 	of 	the 	Cajon
Valley Union School 	District's 	(District) 	changes 	to vacant
position hours. 	The actions 	and decisions 	of 	the District were
open and 	establish 	constructive 	notice 	sufficient 	to 	impute 	the
knowledge 	that 	is 	necessary before 	CSEA could be 	burdened with an
obligation 	to demand negotiations. 	The 	record shows 	that 	CSEA
did not 	timely demand negotiations 	on vacant position hours, 	and
therefore the District was not 	obligated, 	as a legal matter, 	to
discuss 	the changes.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CAJON
CHAPTER #179,
Charging 	Party,
v.
CAJON VALLEY UNION 	SCHOOL
DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3170
PROPOSED 	DECISION
(6/10/94)
Appearances; 	John A. 	Baird, 	Senior Labor Relations
Representative, 	for California School 	Employees Association and
its Cajon Chapter #179; 	Worley, 	Schwartz, 	Garfield & Rice, 	by
Timothy K. 	Garfield, 	Attorney, 	for Cajon Valley Union School
District.
Before W. 	Jean Thomas, 	Administrative Law Judge.
INTRODUCTION
An 	exclusive 	representative 	charges 	the 	employer with
unilaterally 	reducing 	the 	hours 	of 	several 	vacant 	classified
bargaining unit 	positions 	without 	providing 	the 	representative
with 	(1) 	notice, 	(2) 	an opportunity to negotiate the changes,
or 	(3) 	the effects of such changes.
The 	employer believes 	that 	alteration of 	the number of 	hours
assigned 	to a vacant position is 	not 	a mandatory subject 	of
bargaining, 	and that, 	in any event, 	its 	long-standing and
consistent past practice 	of 	altering 	the hours 	of part-time
classified positions 	to meet 	operational 	needs 	is 	dispositive 	of
this charge.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
been
unless the decisions and its rationale have been adopted
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	__________ )

PROCEDURAL 	HISTORY
On March 2, 	1992, 	the California School Employees
Association and 	its 	Cajon Chapter #179 	(CSEA) 	filed an unfair
practice 	charge 	against 	the 	Cajon Valley Union School 	District
(District) 	alleging unlawful unilateral 	conduct 	in violation of
the 	Educational 	Employment 	Relations Act 	(EERA or Act).1
The 	charge alleged that 	on or about September 29, 	1991, 	the
District 	unilaterally 	reduced 	the 	hours 	assigned 	to 	a vacant
instructional 	aide 	position at 	Lexington Avenue 	Elementary 	School
(Lexington) 	from three hours 	to two hours.
Based on these allegations, 	the Office of 	the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issued a 	complaint 	on March 19, 	1993, 	alleging that 	the
District's 	conduct 	described above was 	in violation of 	section
3543.5 (a) , 	(b) and (c).2
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to 	the
Government 	Code.
2Section 3543.5 	states, 	in pertinent part:
3543.5. 	INTERFERENCE WITH EMPLOYEES' 	RIGHTS
PROHIBITED
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
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(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.
The District answered the 	complaint 	on April 	8, 	1993,
admitting 	the 	change 	of 	hours 	without 	prior notice 	to 	CSEA and an
opportunity to negotiate 	the decision, 	but denying 	that 	it
refused 	to give 	CSEA an opportunity 	to negotiate 	the 	effects 	of
this 	change. 	The District 	also advanced a number of 	affirmative
defenses.
An informal 	conference on April 	19, 	1993, 	failed to resolve
the dispute.
CSEA filed an amended charge 	on May 3, 	1993, 	alleging nine
additional 	instances 	of unilateral 	reduction of 	hours 	in vacant
bargaining unit positions between June 30, 	1992, 	and February 9,
1993.3 On June 	10, 	1993, 	PERB 	issued an amended complaint
alleging 	that 	the District 	unilaterally 	changed 	the 	hours 	of
vacant bargaining unit positions 	at various 	school 	sites 	on
November 24, 	1992 	(two separate actions); 	January 11, 	1993;
January 22, 	1993; 	and February 9, 	1993. 	These actions were
alleged to be in further violation of section 3543.5(a), 	(b), 	and
(c) .
The 	District 	filed an answer 	to 	the 	amended 	complaint 	on
June 28, 	1993, 	wherein it admitted some, 	but denied most of 	the
material 	allegations. 	Among its assertions, 	the District alleged
30n June 	8, 	1993, 	CSEA withdrew allegations 	in the amended
charge 	that 	the District made unilateral 	changes 	on June 	30,
September 8, 	October 15, 	and October 28, 	1992.
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that 	a vacant unit position at 	Chase Avenue 	Elementary School
(Chase) 	was 	filled as 	a 	six-hour position and a 	three-hour
position 	filled at Anza Elementary School 	(Anza) 	was 	a new
position.
A formal 	hearing was 	held by 	the undersigned 	on July 	13 	and
14, 	1993.4 Post hearing briefs were filed on September 23, 	1993,
and 	the 	case 	was 	thereafter 	submitted.
FINDINGS 	OF 	FACT
Background
The parties 	stipulated, 	and it 	is 	therefore 	found, 	that 	the
District 	is 	a public 	school 	employer and CSEA is 	an exclusive
representative 	as 	defined 	in EERA. 	CSEA represents 	a
comprehensive 	classified unit 	that 	consists 	of 	approximately 	900
employees. 	The unit 	includes 	employees 	in the 	job
classifications 	of 	instructional 	aide 	(IA) 	and special 	education
classroom assistant 	(SECA) 	who work 	in 	the 	instructional 	services
department.
SECAs' 	receive 	special 	training that 	enables 	them to work
with students 	who have multiple 	learning disabilities. 	These
students 	receive 	services 	through 	the District's 	special
education program. 	The 	regular work hours 	of 	IAs 	and SECAs vary
anywhere 	from two 	to six hours per day, 	four to 	five days 	a week.
4At 	the beginning of 	the hearing, 	CSEA withdrew paragraphs
15 	through 26 	of 	the 	complaint, 	based on the assertions made by
the District 	in 	its 	amended answer 	concerning 	the 	six-hour
position at 	Chase 	and 	the 	three-hour position at Anza.
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The District 	has 	31 	school 	sites. 	There 	is a mix of 	sites
on 	the 	traditional 	school 	calendar and year-round programs.
CSEA and 	the District 	are parties 	to a 	collective bargaining
agreement 	(CBA) 	which is in effect until June 30, 	1994.
Change 	in Hours 	of 	Lexington 	IA Position
On September 29, 	1991, 	the District posted a classified
transfer 	opportunity notice 	listing 	an 	IA position 	at 	Lexington
as a two-hour-per-day assignment. 	Prior to September 19, 	1991,
the position was 	occupied by a bargaining unit member as 	a 	three-
hour-per-day position. 	In mid-November 1991, 	the District 	filled
the position at 	two hours 	as posted.5
When Angelina Elias 	(Elias), 	the CSEA chief steward, 	first
became aware 	of 	the 	change 	in hours 	assigned to 	this position,
she verified it by contacting Kathie Hillix 	(Hillix), 	the
District director of personnel, 	on September 30, 	1991. 	Elias
took the position that a 	change 	in hours 	of 	any unit position had
to be 	negotiated with CSEA. 	Hillix disagreed. 	Elias 	and Hillix
then agreed 	"that 	they disagreed" 	on this 	issue and 	it 	remained
unresolved.
Elias next 	contacted Ann Smith 	(Smith), 	the CSEA labor
relations 	representative, 	about 	the matter. 	In a letter, 	dated
November 20, 	1991, 	to Wayne Oetken 	(Oetken), 	assistant
5Respondent exhibit 	3 	shows 	that 	the 	three-hour position was
actually 	replaced by 	two 	two-hour positions 	which were 	filled 	on
November 7 and November 14, 	1991, 	respectively.
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superintendent, 	business 	services and the District's 	chief
negotiator, 	Smith demanded that 	the District negotiate 	its
decision 	to 	reduce 	the hours 	of 	the position in question and
return 	to 	the 	status 	quo until 	a negotiated agreement 	was
reached. 	Additionally, 	Smith requested a list 	of all 	other
vacant 	positions 	which 	the 	District 	had unilaterally 	reduced
during the past year. 	At 	the 	time 	of her letter, 	Smith was
CSEA's 	chief 	negotiator.
When 	the District 	did not 	respond, 	Smith sent 	a 	second
demand letter to Oetken on January 27, 	1992. 	Oetken responded by
letter on February 4, 	1992. 	In his 	letter, 	Oetken stated that
the District 	was 	refusing 	CSEA's 	demand 	to negotiate 	the
reduction in hours 	of any vacant unit position. 	Further, 	he
stated that 	it 	was 	the District's position 	that 	the 	reduction 	in
hours 	of vacant unit 	positions was 	related to management's
prerogative 	to determine 	the 	type and amount 	of 	services 	to be
provided.
The 	District 	did not 	formally 	respond 	to 	CSEA's 	request 	for
information until July 14, 	1993, 	the second day of 	formal
hearing. 	Hillix testified 	that 	the 	information provided 	in 	the
document 	did not 	exist 	in 	the 	summary 	format provided 	to 	CSEA
prior to July 12, 	1993. 	According to her, 	the information
reflected 	in 	the 	document 	was 	retrieved 	from various 	District
6
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records 	and 	compiled 	into 	a 	format 	that 	provided a method of
discerning a 	change 	in hours 	of 	any vacated unit positions.6
The 	District 	conceded 	that 	prior 	to 	the 	receipt 	of 	this
document, 	there was no way for CSEA to determine 	if 	the positions
listed 	on 	the 	transfer 	opportunity bulletins 	reflected a 	change
in hours 	because 	the hours 	assigned to a 	former position are not
shown on the bulletin. 	Also, 	the District board agendas 	listing
classified personnel 	services 	items 	do not 	show a 	change 	of 	hours
with respect to new hires, 	reinstatements, 	reassignments, 	etc.
Prior to Smith's January 27, 	1992 	letter to the District,
she 	spoke 	with Hillix about 	CSEA's 	request 	for 	information and
Hillix told her 	that 	she would 	try 	to put 	the 	information
together. 	Hillix said that 	it was going to take 	some 	time 	to
prepare 	it. 	The District, 	however, 	did not begin to compile 	the
information until 	a 	few months 	before 	the 	hearing.
Change in Hours 	of 	SECA Position 	- - 	Sevick Elementary School
CSEA first became aware 	of possible 	reduction 	in hours 	of
unit positions at 	Sevick Elementary School 	(Sevick) 	in July 	1992.
Elias 	told Smith 	that 	the 	SECAs 	employed at 	Sevick had been 	told
of 	possible 	transfers 	to other school 	sites 	so 	the District 	could
reduce 	the hours 	of 	their positions. 	The 	three SECAs at 	Sevick
6This 	document, 	which 	is 	entitled 	"Classified Employment
History" 	and 	identified as 	respondent 	exhibit 	3, 	was 	prepared by
Hillix's office. 	It 	covers the period from July 1, 	1989, 	through
June 30, 	1993, 	but does not 	indicate whether the employee 	filled
the position as a new hire, 	a transfer, 	a rehire, 	a promotion, 	or
through the exercise 	of 	"bumping rights" 	in lieu of 	layoff.
77

were 	assigned 	to 	the preschool 	program. 	They each had 	six-hour
positions, 	working 30 hours per week, 	five days per week. 	Sevick
operates 	a year-round program.
On October 8, 	1992, 	two of the SECAs 	-- 	Linda Endicott
(Endicott) 	and Nancy Phillips 	(Phillips) 	-- 	along with John
Collier 	(Collier), 	the CSEA site representative, 	met with their
teachers and the site administrator, 	Lois Pastore 	(Pastore), 	to
discuss 	the 	change 	in hours 	issue. 	The 	third SECA, 	Patsy Sarkela
(Sarkela), 	was unable to attend the meeting because of 	jury duty.
At 	that 	time, 	the District was 	considering 	eliminating 	two
six-hour positions 	-- 	those 	occupied by Phillips 	and Sarkela.
The 	employees 	were 	given 	the 	option of 	accepting 	either a
reduction 	in hours 	in 	their 	existing positions 	or 	transferring 	to
other 	school 	sites 	pursuant 	to 	the 	exercise 	of 	their 	seniority
and bumping 	rights. 	The 	outcome of 	the October 8 meeting was
that 	one 	six-hour position would be 	eliminated. 	Seniority
between 	the 	three 	SECAs 	would determine 	which 	employee 	would be
laid off. 	It was 	later determined that 	Sarkela was 	the 	least
senior and would be 	laid 	off.
On October 16, 	1992, 	Hillix sent Sarkela a letter informing
her that 	in lieu of 	issuing her a 	thirty-day layoff 	notice, 	she
was being 	considered for reassignment. 	This decision, 	the 	letter
stated, 	was 	based 	on a negotiated agreement 	between CSEA and 	the
District 	sometime 	in 	1992 	that 	there would be 	"no 	further
reductions 	or eliminations 	for 	the 	remainder of 	this 	school
8

year." 	Hillix's 	letter 	invited Sarkela 	to a meeting at 	Sevick
with 	the 	special 	education administrators 	and Hillix on
October 21, 	1992, 	to discuss her reassignment.
The October 21, 	1992, 	meeting included the three SECAs,
Smith, 	other CSEA chapter representatives, 	Hillix, 	Pastore, 	and
other special 	education District administrators. 	However, 	the
District 	administrators 	present 	could 	not 	provide 	CSEA with
definitive 	answers 	to 	the various 	concerns 	raised about 	the
decision to change the staffing, 	etc., 	of 	the pre-school program.
Although 	CSEA and 	Sarkela 	proposed 	changes 	in her assignment 	to
avoid 	either a 	reduction of 	her assigned hours 	or a 	transfer,
this 	offer was 	rejected and nothing was 	settled during 	the
meeting.
A follow-up meeting was 	suggested with Marge Dean 	(Dean),
the assistant 	superintendent 	of 	instructional 	services, 	but 	the
meeting did not materialize. 	Smith was 	later told that 	Dean
decided against 	another meeting 	because 	a 	decision 	had already
been made 	and 	it 	would not 	be 	changed.
In early November 1992, 	Endicott, 	Phillips and Sarkela met
with Hillix, 	Pastore 	and other special 	education administrators
regarding 	the preschool 	program changes 	at 	Sevick. 	The 	decision
was made 	that 	Phillips 	and Endicott 	would remain at 	Sevick with
no 	reduction 	in 	the 	hours 	assigned 	to 	their positions 	and Sarkela
would 	transfer 	to 	Chase 	to 	a 	30-hour-per-week position.
Sarkela's 	transfer was effected on November 30, 	1992.
9
9

In a bulletin to the Sevick staff, 	dated November 14, 	1992,
Pastore 	noted 	that 	future 	Sevick preschool 	program 	changes 	might
require 	staffing with three-hour SECAs, 	rather 	than 	the 	six-hour
positions 	which 	had previously been used.
On or about November 24, 	1992, 	the District advertised the
two 	three-hour positions 	that 	had been created 	from the. position
vacated by Sarkela 	in a 	transfer 	opportunity bulletin. 	One
position was 	advertised as 	12.5 	hours 	per week and 	the 	other as
15 	hours per week, 	each at 	four days per week.
The 	positions 	were 	eventually 	filled 	in January and April
1993, 	respectively, 	at three hours per day, 	four days a week.
The 	employees 	filling 	these positions 	worked with 	the 	same
teacher, 	in the 	same program, 	and during 	the same morning and
afternoon workhours 	as 	did Sarkela.
Other Reductions 	in Hours 	of 	SECA Positions 	in 	1993
On or about January 22, 	1993, 	the District admits that 	it
reduced 	the 	hours 	of 	a vacant 	six-hour SECA position at
Ballantyne 	Elementary School 	(Ballantyne) 	and 	created two 	three-
hour positions. 	Both positions were 	filled 	in February 	1993.
On or about 	February 9, 	1993, 	a 	six-hour SECA position at
Avocado 	Elementary School 	(Avocado) 	was 	reduced to 	two 	three-hour
positions which were 	filled on March 5, 	1993.
In both 	cases, 	CSEA learned about 	the District's 	actions
after 	the 	transfer 	opportunity bulletins 	had been posted.
10

Relevant 	Provisions 	of 	the 	CBA
The 	CBA contains 	three articles 	that 	are 	relevant 	to 	this
case.
Article 	IV, 	which is 	entitled 	"Governing Board Rights,"
reads as 	follows:
Except 	as 	limited by 	the provisions 	of 	this
Agreement, 	the Management 	[sic] 	of the
District 	and 	the 	direction 	of 	the working
force, 	including the right to hire, 	promote,
transfer, 	discharge, 	discipline for proper
cause, 	and to maintain efficiency of 	the
employees, 	is 	the responsibility of 	the
Board. 	In addition, 	the work to be
performed, 	the location of the work, 	the
method and processes, 	and the decision to
make 	or buy are 	solely and 	exclusively 	the
responsibility 	of 	the 	District 	provided 	that
in the exercise of 	such functions, 	the
District 	shall 	not 	discriminate against
employees 	because 	of 	participation 	in
legitimate activities 	on behalf 	of 	the
Association. 	The 	foregoing enumeration of
Board rights 	shall 	not be 	deemed to 	exclude
other 	rights 	of 	the 	Board not 	specifically
set 	forth herein. 	The Board, 	therefore,
retains 	all 	rights 	not 	otherwise 	specifically
limited by 	this Agreement 	and 	the
nonutilization of 	any Board 	right 	does 	not
mean 	that 	the 	Board 	shall 	not maintain 	said
right.
Article V 	(Hours 	of Work) 	reads 	in relevant part:
1. 	Workweek
The District 	workweek 	shall 	begin at 	12:01
a.m. 	on Sunday and end at 	11:59 	p.m. 	the
following 	Saturday. 	This 	is 	established 	for
the purpose of payroll-computation. 	The
individual 	workweek within 	the 	District
workweek shall 	consist of 	forty 	(40) 	hours 	of
five 	(5) 	consecutive days, 	Monday through
Friday. 	However, 	individual workweeks may be
assigned 	other 	than Monday 	through 	Friday
when 	the needs 	of 	the District 	so 	require
with 	the agreement 	of 	an employee.
11

2. 	Workday
Eight 	(8) 	consecutive hours except
for the meal period, 	shall
constitute a normal 	workday.
11. 	Payroll Calculation
For 	the purpose 	of payroll
calculation, 	2080 hours per year
shall 	be used.
Article VI 	(Employee Compensation) 	reads, 	in relevant part:
1. 	The 	1990/91 	salary schedule 	shall
be 	continued 	for 	the 	1991/92 	year
effective July 1, 	1991.
2. 	Longevity: 	+3.5 percent upon
completion of 	each of 	the 	following
years 	of 	service with the District:
8, 12, 16, 20, 24. 	.
3. 	Health and Dental 	Programs
Eight 	hour 	employee 	composite 	coverage:
(Kaiser 	"U" 	or Travelers)
(Delta Dental 	or 	Personal
Dental 	Service)
Part-time 	Employee 	coverage:
Individual 	coverage will 	be
paid by 	the 	District 	for
employees 	working 	4 	through
7.99 	hours 	for Kaiser 	"U" 	or
Travelers 	and Delta Dental
Service 	or Personal 	Dental 	Service.7
7Additional 	language 	concerning 	compensation 	and 	fringe
benefits 	is 	contained in Exhibit 	"B" 	of 	the CBA. 	This amendment,
effective July 1, 	1991, 	states:
A 3 1/2% longevity factor will be added at the
completion of 8, 	12, 	16, 	20 and 24 years of
regularly 	employed 	service 	in 	the District,
irrespective of 	the 	number of 	hours 	served
per day.
12

The District pays 	the 	full 	cost 	of 	the
employee's 	health and dental 	premiums 	for
persons 	assigned 	from 4 	to 	7.99 	hours 	per
day. 	Dependent 	coverage 	is 	available at 	the
employee's 	expense. 	The District pays 	the
full 	cost 	of 	the health and dental premiums
for both 	the 	employee 	and 	employee's
dependents 	for persons 	assigned 	8 	hours per
day.
FRINGE BENEFITS 	(Composite 	coverage 	for 	full-
time employees: 	individual 	coverage 	for 4
hours 	to 	7.99 	hour employees) 	Cajon Health or
Kaiser; 	Cajon Dental or PDS. 	Income
protection 	- 	American Fidelity.
Bargaining 	History
The 	parties 	have 	negotiated many 	times 	over 	the past 	six
years. 	In addition to the 	regular contract 	reopener
negotiations, 	they have 	also 	engaged 	in negotiations 	over matters
not 	specifically 	covered by 	language 	of 	the 	CBA.
For example, 	in 1989, 	they negotiated over the 	result 	of a
classification 	study done 	by 	the 	Personnel 	Commission8 that
impacted job duties, 	classifications, 	and salary schedules of
unit members.
They also negotiated 	implementation 	of 	the 	District's 	year-
round 	school 	program. 	These 	negotiations 	resulted 	in written
contractual 	language.
In the 	spring of 	1990, 	the parties 	negotiated the District's
proposal 	to 	reduce 	the hours 	of 	approximately 55 	occupied unit
positions. 	The majority of 	those positions 	were 	located at
8The 	classified 	employees 	have 	elected 	to be 	governed by a
merit 	system, 	pursuant 	to 	California Education Code 	section 45220
et 	seq. 	The merit 	system is 	administered by the District
Personnel 	Commission.
13

Chase. 	Near the conclusion of 	these negotiations, 	which
continued 	through 	1991, 	the District 	introduced a 	three-year
approach 	to 	effecting a budgetary 	reduction at 	this 	site 	through
the 	reduction 	in hours 	of 	existing positions 	and attrition. 	CSEA
took 	the 	position 	that 	no unit 	position 	should be 	reduced below
four hours 	because 	of 	the 	loss 	of 	health and welfare benefits 	to
the 	affected 	employees.
The 	parties 	went 	to 	impasse 	and mediation during 	these
negotiations. 	They eventually reached an 	interim agreement 	to
reduce 	the hours 	of 	13 vacated positions provided that 	the
previous 	incumbents 	suffered no 	loss 	of 	salary or benefits.
During the 	1991-92 	school year, 	the parties again negotiated
the District's 	proposed 	reduction 	in hours 	of 	a 	few occupied
positions; 	however, 	their primary focus was negotiating the
effects 	of 	layoffs. 	These negotiations also went 	to 	impasse
before agreement 	was 	reached. 	The 	agreement 	led to written
language pertaining 	to layoffs 	and a verbal 	agreement 	that 	there
would be 	no 	further 	reduction 	in hours 	of 	occupied unit 	positions
for the balance 	of 	the school 	year.
CSEA and 	the 	District 	have 	never 	negotiated 	over a 	decision
to 	reduce hours 	of vacant unit positions. 	The District has 	never
given CSEA notice 	of 	such 	intended actions, 	and prior to 	CSEA's
November 	1991 	demand 	to bargain, 	CSEA had never demanded to
bargain with the District 	over 	this 	subject. 	CSEA's 	first 	notice
that 	the 	District 	would not 	bargain 	such a decision was 	in
February 	1992, 	when Oetken responded to Smith's 	letter.
14

When the parties met on October 21, 	1992, 	regarding the
Sevick situation, 	CSEA did not 	renew 	its 	demand 	to bargain
because, 	according to Smith, 	CSEA felt 	it was 	"pointless" 	in view
of 	the District's 	stated position. 	Instead, 	CSEA preferred to
allow 	the 	issue 	to be addressed 	through 	its pending unfair
practice 	charge 	and 	the 	PERB process.
In a letter to Hillix, 	dated October 23, 	1992, 	Smith
challenged 	the District's 	reduction 	of 	a 	six-hour vacant 	position
to 	two 	three-hour positions 	at 	Greenfield Junior High School 	as
an 	alleged unlawful 	action. 	Smith's 	letter also demanded a 	list
of 	all vacant unit positions 	reduced 	in hours 	since 	January 	1992.
This 	letter, 	however, 	contained no reference to the Sevick
matter.
No 	evidence 	was 	presented about 	the bargaining history 	of
Article 	IV.
District's 	Past 	Practice
There 	is 	evidence 	that 	the District 	has had a past practice
of 	altering 	the hours 	of various vacant unit positions without
providing notice 	to 	or negotiating with CSEA over 	such decisions.
As mentioned earlier, 	the District 	offered documentary
evidence which summarized the history of 	all vacant 	unit
positions filled between July 1, 	1989, 	through June 30, 	1993.
Hillix arbitrarily selected 	the 	dates 	included 	in 	this 	summary,
based 	on 	CSEA's 	November 	1991 	request 	for 	such 	information
regarding 	the preceding 	(1990) 	year. 	During the period between
July 1, 	1989, 	and October 31, 	1991, 	which is the approximate time
15

that 	CSEA first 	demanded 	to bargain 	the 	reduction 	in hours 	of 	the
Lexington IA position, 	this 	evidence 	shows 	that 	the District had
reduced 	the 	hours 	assigned 	to 	47 	separate 	positions 	before 	they
were 	filled. 	The 	reductions 	ranged from 	.5 	to 	5.0 	hours, 	with an
overall 	average 	of 	1.4 	hours per position.
The 	reductions 	included 23 	separate 	IA and SECA positions.
Within these 	classifications, 	one 	IA position was 	reduced one
hour 	in both November 	1989 	and March 	1990, 	and one position was
reduced 4.5 	hours 	in August 	1990. 	A SECA position was 	reduced
from six to three hours 	in September 1989, 	April 	1990, 	and May
1990 	(two 	positions).
During the 	same period of 	time, 	i.e., 	July 1989 	through
October 1991, 	the number of hours assigned to 32 unit positions
were 	increased before 	being 	filled. 	These modification 	in hours
were made 	to 	eleven 	IA or SECA positions. 	The average 	increase
per position was 	1.3 	hours.
Oetken has 	served 	on 	the 	District's 	negotiating 	team since
1976 	and as 	its 	chief 	negotiator 	for 	the past 	ten years.
According 	to him, 	although the District 	has 	never given CSEA
formal 	notice 	of 	its 	changes 	in the hours 	assigned 	to vacant
positions, 	the District has 	routinely made 	such modifications
whenever 	it 	deemed 	it 	necessary 	for budgetary or program needs.
Inasmuch as 	the 	changes 	have 	occurred 	in every unit 	job 	class 	and
job 	family at 	one 	time or another, 	Oetken believes 	that 	CSEA
should have been aware of 	such 	changes. 	Oetken also 	said 	that
the District 	has 	never questioned 	its 	right 	to unilaterally
16

modify hours 	of 	any vacant 	classified unit 	position 	to
accommodate 	its 	staffing needs.
All 	determinations 	about 	the 	level 	of 	classified 	staffing,
except 	for 	clerical 	positions 	which are 	determined by a District
board 	formula, 	are delegated to the 	school 	site administrators 	or
department heads. 	This 	includes 	decisions 	to 	fill 	or not 	fill
vacant positions 	or 	to modify 	the 	number 	of 	hours 	assigned 	to
each position.
Once 	the 	hiring process 	is 	initiated by 	the 	site
administrator or department head, 	the personnel 	department
handles 	the processing, 	including 	the preparation and
distribution of vacancy notices, 	until 	the 	site or department
head selects 	the 	employee 	to 	fill 	the position. 	If 	the employee
selected 	involves 	a new hire, 	a 	reinstatement 	or 	the 	transfer of
a 	current 	employee with a 	change 	of 	classification, 	this 	action
goes 	to 	the District board for approval. 	If 	the action involves
a 	lateral 	transfer, 	no board action 	is 	required.
According to the District, 	CSEA has access 	to 	this
information 	through 	its 	regular 	receipt 	of 	the District 	board
agenda.
ISSUES
Whether 	the 	District 	violated 	EERA by 	its 	failure 	and
refusal 	to negotiate 	the 	reduction 	in hours 	assigned 	to 	several
vacant 	classified bargaining unit positions 	in 1991, 	1992, 	and
1993?
17

DISCUSSION
I. 	Positions 	of 	the Parties
CSEA contends 	that 	the 	District 	implemented 	a unilateral
change 	in a mandatory subject 	of 	bargaining without 	an 	excusable
defense. 	The unilateral 	action of 	reducing 	the hours 	assigned to
a vacant position, 	it argues, 	has a direct 	impact 	on bargaining
unit members' 	wages, 	hours, 	and other terms and conditions of
employment. 	For example, 	CSEA asserts, 	it adversely impacts 	the
rights 	of 	the 	bargaining unit 	regarding 	transfer 	and promotional
opportunities, 	health benefits, 	retirement benefits and the leave
benefit 	accrual 	rate.
CSEA further argues 	that 	if 	the 	employer 	is 	allowed 	to
unilaterally 	reduce 	hours 	in vacant 	positions 	without
negotiations, 	the 	employer could ultimately reduce 	the 	entire
bargaining unit 	to part-time 	status 	by waiting 	until 	vacancies
occur 	and 	filling 	them with part-time 	employees 	without 	ever
negotiating 	the 	subject 	with 	CSEA.
The 	District 	admits 	that 	it 	unilaterally 	changed 	the 	hours
of 	the 	IA and SECA positions 	at 	issue 	without 	providing 	CSEA with
a prior opportunity to bargain such actions. 	However, 	it 	insists
that 	the 	alterations 	of 	the number of 	hours 	assigned 	to vacant
unit positions 	is 	not within the 	scope 	of 	representation under
EERA. 	While 	it 	concedes 	that 	the number of hours assigned to a
position are 	logically related to wages 	and hours, 	it 	argues 	that
under 	the 	test 	for negotiability set 	forth 	in Anaheim Union High
School District 	(1981) 	PERB Decision No. 	177, 	(Anaheim) 	the
18

decision 	to alter 	the number of 	hours 	for a position that 	is
vacant 	is 	not 	a matter within the 	scope 	of bargaining.
Next, 	the District 	states 	that 	it has had a long-established
and 	consistent past 	practice 	of 	altering 	the hours 	of vacant
part-time 	classified positions, 	based on its 	operational 	needs,
without 	negotiating 	with 	CSEA.
With 	respect 	to 	the 	transfer of 	Sarkela and 	the 	subsequent
modification in the hours 	of her SECA position, 	the District
contends 	that 	CSEA waived any 	right 	it 	had 	to negotiate by
failing 	to 	demand negotiations 	after 	receiving notice 	of 	the
proposed 	action.
Finally, 	the District asserts 	that 	the management 	rights
clause 	of 	the 	CBA authorizes 	the District 	to unilaterally modify
the hours 	of vacant unit positions.
II. 	Legal 	Principles 	Relevant 	to Unilateral Actions
To establish a prima 	facie 	case 	of a unilateral 	change, 	the
charging party must 	demonstrate 	facts 	sufficient 	to 	establish:
(1) 	the employer breached or altered the parties' 	written
agreement 	or previous understanding, 	whether that understanding
is 	embodied 	in a 	contract 	or evidenced 	from the parties' 	past
practice; 	(2) 	such action was 	taken without giving the exclusive
representative notice 	or an 	opportunity 	to bargain 	over 	the
change; 	(3) 	the 	change is not merely an isolated breach of 	the
contract, 	but amounts 	to a change of policy 	(i.e., 	has a
generalized 	effect 	or 	continuing 	impact 	upon bargaining 	unit
member's 	terms and conditions of employment); 	and 	(4) 	the change
19

in policy 	concerns 	a matter within 	the 	scope 	of 	representation.
(Grant Joint Union High School District 	(Grant) 	(1982) 	PERB
Decision No. 	196 	(Grant); 	Pajaro Valley Unified School District
(1978) 	PERB Decision No. 	51 	(Pajaro); 	Davis Unified School
District, 	et al. 	(1980) 	PERB Decision No. 	116.)
- -
However, 	an employer's unilateral 	action may not be unlawful
where 	the 	action taken does 	not 	alter 	the 	status 	quo. 	"[T]he
'status 	quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into account 	the 	regular and 	consistent 	past 	pattern 	of
changes 	in employment." 	(Pajaro.) 	In determining whether an
employer's 	action constituted a unilateral 	change, 	the 	trier of
fact may 	interpret 	terms 	of 	a 	collective 	agreement 	or examine 	the
established practice. 	(Pajaro; 	Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	279.)
- -
Absent 	a valid defense, 	unilateral 	actions 	taken by an
employer without 	providing 	the 	exclusive 	representative 	with
notice 	and an 	opportunity 	to 	negotiate 	the 	proposed 	changes 	in
matters 	within 	the 	scope 	of 	representation 	constitutes 	a 	refusal
to negotiate 	in good 	faith 	in violation of 	section 3543.5(c).
(San Mateo County Community College District 	(1979) 	PERB Decision
No. 	94 	(San Mateo).)
III. 	Scope of Representation Defense
In a series 	of 	cases, 	the Board has 	adopted a test 	for
interpreting 	the 	scope 	of 	representation 	for 	enumerated 	subjects
20

of bargaining 	found in section 3543.2(a).9 In addition to those
topics 	specifically 	listed within the 	scope 	section, 	the Board
has 	held 	that 	subjects 	not 	enumerated will 	nevertheless 	be
negotiable, 	if 	(1) 	the subject 	is 	logically and reasonably
related to hours, 	wages 	or an enumerated 	term and 	condition 	of
employment; 	(2) 	the subject 	is of 	such concern to both management
and employees 	that 	conflict 	is 	likely to 	occur and the mediatory
influence 	of 	collective negotiations 	is 	the appropriate means 	of
resolving the 	conflict; 	and 	(3) 	the employer's 	obligation to
negotiate 	would 	not 	significantly 	abridge 	its 	freedom to 	exercise
those managerial 	prerogatives 	essential 	to 	the achievement 	of 	its
mission. 	(Anaheim)10 Applying this test, 	PERB has held that a
reduction 	in hours 	of 	occupied positions 	is 	within 	the 	scope 	of
bargaining. 	(See, 	e.g., 	North Sacramento School District 	(1981)
9Section 	3543.2 	provides 	in relevant part:
(a) 	The 	scope 	of 	representation shall be
limited to matters 	relating 	to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms and conditions 	of
employment" 	mean health and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the layoff of probationary
certificated school 	district 	employees,
pursuant 	to Section 44959.5 	of 	the Education
Code, . . .
10This 	test 	was 	approved by 	the 	California 	Supreme 	Court 	in
San Mateo 	City 	School 	District/Healdsburg 	Union High 	School
District v. 	Public Employment Relations Board 	(1983) 	33 	Cal.3d
850 	[191 Cal.Rptr. 	800].
21

PERB Decision No. 	193; 	Pittsburg Unified School District 	(1983)
PERB Decision No. 	318; 	Oakland Unified School District 	(1983)
PERB Decision No. 	367 	(Oakland); 	Healdsburg Union High School
District 	(1984) 	PERB Decision
No. 3 75 (Healdsburg).)
In a number of 	decisions, 	PERB has 	held that 	the 	level 	of
services 	that 	an employer decides 	to provide 	is 	not 	a negotiable
subject. 	This 	includes 	the 	creation of 	new positions 	and a
determination of 	the number of hours 	to be assigned. 	(See, 	e.g.,
Mt. 	San Antonio Community College District 	(1983) 	PERB Decision
No. 	297 at p. 	3; 	Davis Joint Unified School District 	(1984) 	PERB
Decision No. 	393, 	at pp. 	26-27.) 	However, 	the effects of these
actions 	may be 	negotiable 	if 	they 	impact 	matters 	within 	the 	scope
of 	representation. 	(Alum Rock Union Elementary School 	District
(1983) 	PERB Decision No. 	322 	(Alum Rock).)
In the present 	case, 	the District's unilateral 	actions
impacted 	the 	number 	of 	hours 	which had been 	regularly assigned 	to
positions 	that were 	temporarily vacant. 	The District made no
changes 	in 	the 	duties 	or 	took 	other action which would 	indicate
the 	creation of 	new positions. 	It 	simply opted to modify the
hours 	assigned 	to 	existing positions 	and 	fill 	them at 	a 	lesser
number 	of 	hours 	based upon 	its 	program or 	funding needs.
It 	is undisputed that 	the District 	took these actions
without prior notice 	to CSEA. 	Even 	in the 	face 	of 	CSEA's 	demand
to negotiate 	the 	change 	of 	hours 	of 	the 	IA position at 	Lexington,
22

the District 	refused 	to negotiate 	the 	subject 	or 	rescind 	its
action.
PERB has 	not 	yet 	directly decided 	the 	issue 	of 	whether an
employer's modification of 	the hours 	of a vacant unit position is
within the 	scope 	of bargaining.11 Therefore, 	the 	relationship of
this 	subject 	to 	other PERB decisions 	addressing 	"unit 	work" 	as 	a
scope 	of 	representation 	issue 	will 	be 	examined.
PERB 	has 	held 	that 	an 	employer decision to 	abolish a
position 	in order to discontinue a 	service 	is 	a management
prerogative not 	subject 	to bargaining. 	(Alum Rock.) 	The 	effects
of 	such a decision, 	however, 	are subject 	to negotiation.
(Healdsburg.) 	As noted above, 	the Board has also held that an
employer may unilaterally determine 	the 	level 	of 	services 	to be
provided, 	although any impact 	of 	such a decision on matters
within scope must be negotiated. 	(Mt. 	San Antonio Community
College District, 	supra. 	PERB Decision No. 	297.)
11In Oakland, 	the 	Board 	rejected 	the 	employer's 	contention
that 	a 	reduction 	in the hours 	of positions was 	distinguishable
from the 	effects 	on 	employees 	by 	finding 	that 	incumbent 	employees
were 	affected by 	the 	decision.
In South San Francisco Unified School District 	(19 83) 	PERB
Decision No. 	343, 	the Board found a violation for the 	employer's
unilateral 	change 	in hours 	of 	a position based upon a 	contract
prohibition against 	such 	change.
In Eureka City School District 	(1985) 	PERB Decision No. 	481
(Eureka), 	the employer contended that because the affected
employee had the option of 	transferring to other positions, 	it
had 	reduced the 	hours 	of 	the 	"position" 	rather than the hours 	of
the 	"employee." 	The Board 	rejected 	this 	argument 	and 	found a
violation based 	on 	the unilateral 	reduction 	in hours 	of 	an
incumbent 	employee.
23

On 	the 	other hand, 	the 	Board has 	required bargaining over
decisions 	involving 	the 	"preservation of unit work" 	in cases
where 	the 	employer plans 	to 	continue 	providing 	similar 	services.
In 	transfer of work and subcontracting 	cases, 	the Board has
required 	negotiation without 	finding 	a 	direct 	impact 	upon 	the
wages and hours of incumbent employees. 	(Healdsburg, 	at p. 	42;
Solano County Community College District 	(1982) 	PERB Decision No.
219; 	Arcohe Union School District 	(1983) 	PERB Decision No. 	360.)
In Rialto Unified School District 	(1982) 	PERB Decision No.
209, 	a 	case 	involving the 	transfer of unit work to non-unit
employees, 	the Board indicated that 	the withdrawal 	of
. 	. 	. 	actual or potential work from the unit
is 	a withdrawal 	of 	hours 	associated with the
work, 	affects 	the potential 	for promotion for
unit employees, 	. 	. 	. weakens the collective
strength 	in 	dealing with 	the 	employer, 	. . .
and 	can affect 	the viability of 	the 	unit
itself. . . .
In balancing 	the 	employee's 	interest 	against management
prerogative, 	the Board observed that 	negotiations with 	the union
could have 	allowed 	for 	the 	possibility 	of 	trade-offs 	and
concessions, 	as well as 	suggestions 	of alterative means 	of
accomplishing 	the 	employer's 	cost-reduction 	objectives 	in 	that
case, 	and may have provided an opportunity 	for 	the 	interests 	of
the 	employer and 	the 	employees 	to be 	accommodated. 	Additionally,
it 	observed that 	the diminution of 	the unit 	had a destabilizing
influence 	on labor relations 	in the district because 	of 	the 	loss
of 	the 	employee 	organization's 	credibility and effectiveness.
24

Finally, 	the Board 	found that 	this 	type of 	decision was 	non-
essential 	to 	the 	employer's mission 	in that 	it 	involved economic
considerations 	without 	significant 	change 	in the 	level 	or kinds
of 	services 	to be performed.
Relying upon the precedent 	cited above, 	by analogy 	it 	is
concluded 	that 	a 	reduction or other 	change 	in hours 	of 	a vacant
position 	is 	a matter within the 	scope 	of bargaining as 	defined 	in
section 3543.2(a), 	inasmuch as 	it affects the 	"collective
interests" 	of 	bargaining unit members 	in preserving work 	to 	the
unit. 	In this 	case, 	the net 	effect of 	the District's 	reduction,
was a diminution of workhours, 	wages, 	and other terms and
conditions 	of 	employment 	specifically 	listed as 	within 	the 	scope
of 	representation.
Unless 	other viable 	defenses 	have been presented, 	the
District's unilateral 	change 	in a matter within 	the 	scope 	of
representation without 	prior 	notification 	to 	CSEA and 	an
opportunity 	to bargain 	the proposed 	changes 	will 	amount 	to 	a
violation of section 3543.5(c).
IV. 	Other District 	Defenses
A. 	Past 	Practice
The 	District 	asserts 	as 	a 	secondary defense 	to 	the 	complaint
that 	its modification of 	hours 	of vacant unit positions 	without
negotiations 	with CSEA is 	consistent 	with a 	long-standing
practice 	of 	taking 	such action unilaterally whenever 	necessary.
The District 	further argues 	that 	its 	established past 	practice 	is
25

the 	"status 	quo" 	against which the 	conduct 	at 	issue 	should be
evaluated, 	citing 	the 	standard mandated by 	Pajaro.	-- ----
In addition 	to 	the 	testimony of 	its 	witnesses 	regarding 	this
past practice, 	the District points 	to 	the documented evidence 	of
changes 	in hours 	that 	it made 	over the approximate 	two and one-
half 	year period prior 	to 	CSEA's 	November 	1991 	demand 	to bargain
regarding 	the 	Lexington 	IA position.
CSEA did not 	rebut 	the 	evidence 	of 	the District's 	past
practice. 	However, 	it argues, 	in its brief, 	that the quantity
and kind 	of 	documented reductions 	did not 	result 	in 	the
elimination 	of 	benefits 	for 	the 	employees 	subsequently 	filling
the positions 	as 	resulted 	from the 	hours 	reductions 	complained 	of
in November 1991, 	and thereafter.
The 	record 	shows 	that 	the District 	has 	increased and
decreased 	the numbers 	of 	hours 	assigned 	to a wide 	spectrum of
vacant unit positions 	over a number of years. 	During 	the period
from July 	1989 	to October 1991, 	the 	changes 	in hours 	included IA
and SECA positions. 	While 	the 	reduction 	in hours 	for most 	IA
positions during this period was 	.5 	hours, 	three positions were
decreased 	1.0 	or more hours, 	excluding 	the 	one-hour reduction
that occurred at Lexington in October 1991. 	Additionally, 	it 	is
noted 	that 	an 	IA position at 	one 	site 	was 	reduced 4.5 	hours 	in
August 	1990 before being 	filled. 	During this 	same period, 	two
SECA positions 	at 	Sevick were 	reduced 	from 	five 	and 	four 	hours
respectively, 	to three-hour positions 	in October 1989. 	Four
26

other SECA positions at other sites were reduced from six to three
hours 	in 1989 	and 	1990.
Given this 	evidence, 	it 	is 	concluded that 	the District 	has
demonstrated a past 	practice 	of modifying hours 	of 	vacant 	IA and
SECA positions 	at 	sites 	throughout 	the District. 	Additionally,
the 	evidence 	shows 	that 	the hour reductions 	of 	the 	Lexington 	IA
position and 	the 	SECA positions 	at 	Ballantyne 	and Avocado 	that
occurred between September 	1991 	and 	February 	1993 	were 	similar 	to
the 	type 	of 	hour reductions made 	in the past.
For this 	reason, 	it 	is 	concluded that 	the District's actions
at 	issue here 	(1) 	were not 	inconsistent with prior hour
reductions 	in vacant positions, 	(2) 	did not 	represent an
alteration of 	the 	"status quo," 	and 	(3) 	were not an unlawful
unilateral 	change 	in hours. 	It 	is 	thus 	concluded that 	the
District 	did not 	breach 	its 	negotiating 	obligation under 	section
.3543.5(c) 	before taking such actions.
B. 	Waiver by 	Inaction
The District's past practice defense, 	however, 	is not
applicable 	to 	the 	reduction 	in hours 	of 	the 	six-hour SECA
position at 	Sevick previously 	occupied by 	employee 	Sarkela.
Although 	the 	complaint 	did not 	allege 	that 	this 	position was
occupied prior to the 	reduction in hours, 	or that 	the 	incumbent
was 	transferred to avoid an hours 	reduction, 	evidence was
presented as 	to a 	concurrent 	transfer/reduction 	in this 	instance.
27

PERB precedent 	is 	clear 	that 	a 	reduction 	in hours 	in a
situation where 	an 	incumbent 	transfers 	to 	avoid 	the 	reduction 	is
a negotiable matter. 	(See 	Oakland and Eureka.)
The District 	here does not 	claim, 	nor 	is 	there any evidence
of, 	an established past 	practice 	of 	transferring an 	incumbent 	to
avoid a subsequent hours' 	reduction of 	the position.
By way of 	defense, 	the District 	contends 	that 	its 	action in
this 	situation was 	excused by CSEA's 	failure 	to 	demand
negotiations 	concerning 	the 	transfer of 	Sarkela 	and 	the
subsequent 	reduction 	in hours 	of her position. 	The District
maintains 	that 	CSEA had prior knowledge 	of 	the 	District's
proposed actions 	at 	least 	four months 	before 	the 	reduction 	in
hours 	of 	her vacated position actually 	took place.
The 	evidence 	shows 	that 	Smith 	first 	learned of 	the proposed
changes 	at 	Sevick 	from CSEA's 	chief 	steward Elias 	sometime 	in
July 1992. 	It 	is undisputed that when the parties met 	on October
21, 	1992, 	regarding this matter, 	Smith did not demand to bargain
Sarkela's 	proposed 	transfer. 	Nor was 	such a demand made 	any 	time
prior to November 30, 	1992, 	when Sarkela was transferred.
PERB 	has 	consistently held 	that 	the waiver 	of 	bargaining
rights by a union will 	not be 	lightly 	inferred; 	it must be
clearly 	and 	unequivocally 	conveyed 	(Amador Valley 	Joint 	Union
High School District 	(1978) 	PERB Decision No. 	74 	(Amador)) 	or
demonstrated by behavior waiving 	a 	reasonable 	opportunity 	to
bargain over a 	decision not 	already 	firmly made 	by 	the 	employer.
(San Mateo.) 	In San Francisco Community College District 	(1979)
28

PERB Decision No. 	105, 	the Board stressed that 	a waiver will be
found only when there 	is 	an 	intentional 	relinquishment 	of 	rights,
expressed 	in 	clear and unmistakable 	terms.
For the 	reasons 	set 	forth below, 	it 	is 	concluded that 	CSEA
waived 	its 	right 	to bargain 	the 	decision 	to 	transfer 	Sarkela 	to
avoid a 	reduction 	in hours 	of 	the position she previously-
occupied by 	failing 	to make 	a 	demand 	to negotiate 	the 	subject.
While 	it 	is 	not 	essential 	that 	a 	request 	to negotiate be 	specific
or made 	in a particular 	form, 	it 	is 	important 	for the union to
have 	signified 	its 	desire 	to 	negotiate 	with 	the 	employer by 	some
means. 	(Newman-Crows 	Landing Unified School District 	(1982) 	PERB
Decision No. 	223.) 	In other words, 	a valid request will be
found, 	regardless of 	its 	form or the words used, 	if 	it adequately
signifies 	a desire 	to negotiate 	on a subject within 	the 	scope 	of
bargaining.
It 	is 	clear that 	CSEA demanded to negotiate 	the 	decision and
effects 	of 	the District's 	action to 	reduce 	the hours 	of 	the
vacant 	Lexington 	IA position 	in November 	1991 	and January 	1992,
and 	that 	the 	District 	refused 	those 	requests 	in 	February 	1992.
However, 	it 	is 	clear that 	CSEA never provided any 	indication 	to
the District 	between July 	1992 	and November 	1992 	that 	it 	desired
to negotiate 	the 	decision or the 	effects 	of 	the 	concurrent
transfer and 	reduction of 	hours 	of 	the position occupied by
Sarkela.
Smith 	testified 	that 	she 	did not 	demand to bargain 	the 	issue
because 	she 	felt 	it was 	"pointless" 	in view of 	the District's
29

stated position. 	However, 	the District had only refused
negotiations 	over modifications 	in hours 	of vacant positions, 	but
not 	with 	regard 	to 	the 	reduction 	in hours 	of 	an occupied position
concurrent 	with 	the 	transfer of 	the 	incumbent 	to 	retain 	that
employee's hours.
Apparently, 	CSEA erroneously assumed that 	a 	request 	to
negotiate 	regarding this 	issue would be 	futile. 	However, 	the
District's 	final 	decision 	regarding 	Sarkela's 	position had not
been made when the October 21, 	1992 meeting occurred. 	Thus, 	the
failure 	of 	CSEA to 	demand bargaining precludes 	a 	finding 	that 	the
District 	refused to negotiate 	this 	matter.
This 	conclusion 	is 	underscored by 	the 	evidence 	of 	Smith's
October 23, 	1992 	letter to Hillix, 	again protesting the
District's 	reduction 	in hours 	of 	another vacant 	unit position and
demanding 	that 	the 	District 	cease 	and desist 	from such action.
However, 	no mention was made 	in this 	letter that 	the union was
protesting 	or demanding 	to 	negotiate 	with 	the 	District 	regarding
Sarkela's position.
C. 	Contractual 	Waiver
The District's 	argument 	of 	contractual 	waiver 	is 	based upon
its 	interpretation 	of 	the management 	rights 	language 	found 	in
Article 	IV of the CBA. 	(See text, 	at p. 	11.) 	The District
insists 	that 	the 	terms 	in that provision
. 	. 	. 	the work to be performed . 	. 	. 	[is]
solely 	and 	exclusively 	the 	responsibility 	of
the 	District 	. . . .
30

should be 	read as 	giving 	the District 	sole 	authority 	to 	determine
the number of 	hours 	of 	daily 	service which will 	be 	required 	for a
given vacant position that 	it 	intends 	to 	fill. 	The District
equates 	its 	interpretation 	of 	this 	language 	with 	PERB precedent
holding 	that 	decisions 	about 	staffing 	levels 	are matters 	left 	to
management 	prerogative 	since 	they 	reflect 	managerial 	decisions
regarding 	the 	level 	of 	service 	to be provided by the 	employer.
This argument 	is not 	convincing.
The management 	rights 	language 	in Article 	IV does 	not
specifically address unit employees' 	hours of work. 	Nor, 	in the
absence 	of 	evidence 	regarding 	the bargaining history 	of 	this
provision, 	can it be 	concluded that 	the general provisions 	of
this 	clause 	authorize 	the District 	to unilaterally adjust 	hours
of vacant positions 	to suit 	its 	operational 	needs. 	Additionally,
Article V, 	which covers unit members' 	hours of work, 	does not
address 	the 	subject.
Federal 	courts 	and 	the National 	Labor Relations 	Board have
traditionally 	said 	that 	"only 	clear and unmistakable 	language
will 	warrant 	a 	conclusion that waiver was warranted." 	(See NLRB
v. 	Auto Crane Co. 	(10th Cir. 	1976) 	536 	F.2d 310 	[92 	LRRM 2363,
2364] 	and cases 	cited therein.) 	PERB will 	find a waiver of
bargaining 	rights 	only where 	the 	employer 	shows 	either 	clear and
unmistakable 	language 	or demonstrative 	behavior 	amounting 	to
waiver. 	(Amador; 	Placentia Unified School District 	(19 86) 	PERB
Decision No. 	595.) 	The burden is 	thus 	on the District 	to show
that 	CSEA clearly and unmistakably waived 	its 	rights 	to 	negotiate
31

the decision to 	reduce 	the number of 	hours 	assigned 	to vacant
bargaining unit 	positions.
The 	District 	has 	only pointed 	to 	the management 	rights
clause. 	A generally-worded management 	rights 	clause 	will 	not 	be
construed as 	a waiver of 	statutory bargaining 	rights. 	(See
Dubuque Packing Co. 	(1991) 	303 NLRB No. 	66 	[137 LRRM 1185].) 	It
is 	thus 	concluded 	that 	the 	language 	of Article 	IV does 	not
constitute a 	"clear and unmistakable" 	waiver of 	CSEA's 	right 	to
bargain the 	subject 	at 	issue here.
CONCLUSION
For all 	the 	reasons 	discussed above, 	it has been concluded
that 	although 	the District 	took unilateral 	action upon 	several
matters within the 	scope 	of 	representation when 	it 	reduced the
number of hours assigned to vacant unit positions, 	such actions
did not 	alter 	the 	"status 	quo" 	when evaluated against 	a 	regular
and consistent past pattern of 	similar reductions 	in hours. 	It
has 	also 	been 	concluded 	that 	although 	the 	District 	transferred 	an
incumbent 	to another position 	concurrent 	with the 	reduction 	in
hours 	of 	the 	employee's vacated position, 	CSEA waived 	its 	right
to bargain 	these 	actions 	by 	failing 	to make 	a demand 	to
negotiate.
Therefore, 	it 	is determined that 	the District has not
violated 	the 	EERA by 	taking unilateral 	action upon matters 	within
the scope of 	representation, 	namely, 	a reduction in the number of
hours assigned to vacant bargaining unit positions. 	Thus, 	the
charge 	and 	its 	accompanying 	complaint 	must 	be 	dismissed.
32

PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact, 	conclusions 	of 	law and
the entire 	record in this 	case, 	it 	is 	ordered that 	the 	complaint
and 	the 	underlying unfair practice 	charge 	are 	hereby DISMISSED.
Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	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
2 0 	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 Cal. 	Code of Regs.,
tit. 	8, 	sec. 	323 00.) 	A document is considered 	"filed" 	when
actually received before 	the 	close 	of business 	(5:00 	p.m.) 	on the
last day set 	for filing 	". 	. 	. 	or when sent by telegraph or
certified or Express United States mail, 	postmarked not 	later
than 	the 	last 	day 	set 	for 	filing 	. . . " 	(See Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	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 Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
W. JEAN THOMAS
Administrative Law Judge
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