Hacienda La Puente Unified School District (PERB 1186E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	HACIENDA
LA PUENTE 	CHAPTER #115,
Charging 	Party,
v.
HACIENDA 	LA 	PUENTE 	UNIFIED
SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3603
PERB Decision No. 	1186
February 27, 	1997
Appearances: 	California School 	Employees Association by Arnie 	R.
Braafladt, 	Attorney, 	for California School 	Employees Association
and 	its 	Hacienda 	La 	Puente 	Chapter #115; 	Wagner & Wagner by
John J. 	Wagner, 	Attorney, 	for Hacienda La Puente Unified School
District.
Before Caffrey, 	Chairman; 	Garcia and Dyer, 	Members.
DECISION
GARCIA, 	Member: 	This 	case is before 	the Public Employment
Relations 	Board 	(PERB 	or Board) 	on appeal 	by the Hacienda
La 	Puente Unified School 	District 	(District) 	of 	an administrative
law judge's 	(ALJ) 	proposed decision 	(attached). 	The ALJ found
that 	the 	District violated Educational 	Employment 	Relations 	Act
(EERA) 	section 3543.5 (a) , 	(b) 	and 	(c)1 when it refused the
1EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against 	employees, 	or otherwise
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California 	School 	Employees Association and 	its 	Hacienda
La 	Puente 	Chapter #115's 	(Association) 	requests 	to negotiate
a unit member's 	change 	in hours. 	After reviewing 	the 	entire
record, 	the Board affirms 	the ALJ's 	decision consistent with the
following 	discussion.
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.
DISCUSSION
After rejecting 	several 	District defenses, 	the ALJ held that
when 	the 	District 	refused 	the Association's 	requests 	to negotiate
the change in Edward Price's 	(Price) 	shift, 	the District breached
its 	obligation 	to negotiate 	in good 	faith 	in violation of 	EERA
section 3543.5(b) 	and 	(c). 	The District 	filed exceptions to the
proposed decision, 	making 	three main arguments.
First, 	the District 	reasserts 	its 	claim that 	the management
rights 	clause in the parties' 	agreement permits 	the District 	to
change Price's 	shift unilaterally. 	It points out 	that 	the 	clause
allows 	the District 	to 	"determine 	staffing patterns" 	and to
"assign employees," 	which 	is precisely what 	the District 	says 	it
did.
As 	the ALJ 	correctly noted, 	to 	establish waiver 	it must 	be
shown 	that 	an employee 	organization waived 	its 	right 	to negotiate
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in 	"clear and unmistakable" 	terms. 	(Amador Valley Joint Union
High School District 	(1978) 	PERB Decision No. 	74; 	Oakland Unified
School District v. 	Public 	Employment 	Relations 	Board 	(1981)
120 Cal.App.3d 1007, 	1011 	[175 Cal.Rptr. 	105].) 	The ALJ's
citation to San Jacinto Unified School 	District 	(1994) 	PERB
Decision No. 	1078 	and the 	subsequent discussion of 	the degree
of 	specificity 	required 	to 	establish waiver 	thoroughly 	explained
the application of 	this 	rule.2 Examining the management 	rights
clause 	in this 	case, 	we do not 	find a clear, 	unmistakable waiver
of 	the Association's 	right 	to negotiate 	shift 	changes and
determine 	there 	is 	no precedential 	support 	for the 	exception.
The District's 	second exception asserts 	that 	the 	decision 	to
change 	Price's 	shift 	was made by an 	isolated site 	administrator
and is not 	indicative of a change 	in policy. 	Therefore, 	says
the District, 	this 	is nothing more 	than a possible 	isolated
breach of 	contract 	and there 	can be 	no unilateral 	change 	since
the 	law requires 	a 	change 	of policy having a generalized effect
or 	continuing 	impact upon bargaining unit members' 	terms 	and
conditions 	of 	employment.3
2See also, 	Barstow Unified School District 	(1996) 	PERB
Decision No. 	113 8 at page 	16 	(reconsideration granted on other
grounds 	in Barstow Unified School District 	(1996) 	PERB Decision
No. 	1138a), 	where the Board held that the employee organization
had validly waived 	the 	right 	to negotiate 	the decision 	to
contract 	out 	transportation 	services 	by agreeing 	to 	district
rights 	language 	expressly permitting 	the 	district 	the 	exclusive- -
right 	to 	"contract 	out work."
3The Board notes 	that 	the ALJ described, 	as 	affirmative
defenses, 	the 	evidence and arguments 	offered by the District
concerning 	the parties' 	collective bargaining agreement 	and past
practice. 	The 	District's 	evidence 	and arguments 	constitute 	an
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attempt 	to 	rebut 	the Association's 	prima 	facie 	case 	rather 	than
affirmative defenses. 	This 	imprecision does not affect 	the
analysis 	in this 	case.
The Association 	responds 	by 	supporting 	the ALJ's 	citation
to Moreno Valley Unified School 	District 	(1995) 	PERB Decision
No. 	1106, 	in which a shift 	change affecting only two employees
was 	found 	to 	have 	a 	generalized and 	continuing 	impact 	upon unit
members' 	terms and conditions 	of 	employment.
We agree with this assessment, 	since 	the District 	took this
action based on 	the belief 	that 	it 	had a 	contractual 	right 	to
make 	shift 	changes 	without 	negotiating, 	and there 	is 	no evidence
to 	suggest 	that 	the District 	would have 	refrained 	from changing
more employees' 	shifts pursuant 	to the management 	rights 	clause.
The ALJ 	correctly 	found 	that 	the District's 	action 	reflects 	a
policy change, 	and the 	fact 	that 	only one 	employee was 	affected
in this 	instance does not 	defeat 	a 	finding that 	the action was
more 	than an 	isolated 	contract 	breach.
In 	its 	third exception, 	the District argues 	that 	the 	issue
as 	stated by 	the ALJ was 	not 	the 	same 	issue 	set 	forth 	in the
complaint 	(reclassification). 	Since 	the ALJ found that 	there was
no reclassification, 	according to the District, 	there 	can be no
violation; 	therefore, 	the District 	concludes that 	the complaint
should be dismissed. 	The Association responds 	that 	the 	issue 	on
which the ALJ decided the 	case 	is 	the 	same 	issue 	that 	was 	raised
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in the Association's demand to negotiate, 	in the 	charge, 	and the
complaint, 	and that 	it was 	fully litigated by the parties.4
We agree, 	since 	it 	is plain that 	from the earliest 	days 	of
the dispute, 	the parties' 	disagreement 	centered on the 	fact 	that
Price 	did not wish 	to 	change 	from the 	night 	shift 	to 	the 	day
shift. 	The main issue has always been the District's 	right 	to
unilaterally make a shift 	change, 	not 	reclassification.
ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law and 	the 	entire 	record in this 	case, 	the 	Public Employment
Relations 	Board 	finds 	that 	the Hacienda 	La 	Puente Unified School
District 	(District) 	violated the 	Educational 	Employment 	Relations
Act 	(EERA), Government Code section 3543.5(a), 	(b) 	and 	(c), by
refusing 	to negotiate 	a unit member's 	shift 	change with 	the
California 	School 	Employees 	Association 	and 	its 	Hacienda
La Puente Chapter #115 	(Association).
Pursuant to EERA section 3541(c), 	it 	is hereby ordered that
the District and its. representatives shall:
A. 	CEASE AND DESIST 	FROM:
4The Association also 	invites 	the Board 	to apply Tahoe-
Truckee Unified School District 	(1988) 	PERB Decision No. 	668,
which discusses 	circumstances 	under which 	an 	"unalleged
violation" 	may be 	entertained by the Board. 	The Board will 	not
decide 	today whether those 	circumstances 	are met 	in 	the 	case 	at
bar 	since 	there 	is 	no 	"unalleged violation." 	The ALJ analyzed
and decided this 	as a unilateral 	change 	case, 	which is 	the 	same
type 	of violation alleged 	in 	the 	charge 	and 	complaint.
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1. 	Failing and refusing 	to negotiate with the
Association about 	changes 	in shifts 	that 	alter hours 	of
bargaining unit 	employees.
2. 	Denying the Association the 	right 	to represent 	its
members 	in their employment 	relations 	with the District.
3. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	the Association 	in 	their 	employment 	relations 	with
the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF 	EERA:
1. 	Upon request by the Association, 	return Edward
Price 	(Price) 	to the position of 	Custodian II 	on the night 	shift
at 	Los Altos High School, 	if 	that has not already occurred.
2. 	Pay to 	Price 	the differential 	he 	lost 	as 	a 	result
of 	the shift 	change.
3. 	Within thirty-five 	(35) 	days 	following the date
this 	decision is no longer subject 	to reconsideration, 	post at
all 	work 	locations 	where 	notices 	to 	employees 	are 	customarily
placed, 	copies 	of 	the Notice attached as an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to 	insure 	that 	this
Notice 	is not 	reduced in size, 	defaced, 	altered or covered by any
material.
4. 	Written notification of 	the actions 	taken 	to
comply with this 	Order shall 	be made 	to 	the 	San Francisco
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Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with her 	instructions.
Member Dyer joined 	in this Decision.
Chairman Caffrey's 	concurrence begins 	on page 	8.
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CAFFREY, 	Chairman, 	concurring: 	I agree with the finding
that 	the 	Hacienda 	La 	Puente Unified School 	District 	(District)
violated 	Educational 	Employment 	Relations 	Act 	(EERA)
section 3543.5 (a), 	(b) 	and 	(c)1 when it refused the requests of
the 	California 	School 	Employees Association and 	its 	Hacienda 	La
Puente 	Chapter #115 	(Association) 	to negotiate a unit member's
change 	in hours. 	I write 	separately to 	respond directly to 	the
issues 	raised by 	the District 	on appeal.
The District 	offers 	three 	exceptions 	to the 	Public
Employment Relations 	Board 	(PERB 	or Board) 	administrative 	law
judge's 	(ALJ) 	proposed decision. 	First, 	the District reasserts
its 	claim that 	the management 	rights 	clause 	of 	the parties'
collective bargaining agreement 	(CBA) 	permits 	the District 	to
change unit members' 	shifts unilaterally. 	It points out 	that 	the
clause allows 	the District 	to 	"determine 	staffing patterns" 	and
1Section 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.
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to 	"assign" 	employees, 	which the District argues 	expressly
address 	its 	authority in 	the area 	of 	shift 	changes.
To prevail 	on 	this 	argument 	the District must 	show 	that 	the
Association, 	in agreeing to the management 	rights 	clause, 	waived
its 	right 	to negotiate over shift 	changes 	in 	"clear and
unmistakable" 	terms. 	(Amador Valley Joint Union High School
District 	(1978) 	PERB Decision No. 	74; 	Oakland Unified School
Dist, 	v. 	Public Employment Relations Bd. 	(1981) 	120 Cal.App.3d
1007, 	1011 	[175 Cal.Rptr. 	105].) 	The ALJ offered numerous
citations 	which 	establish 	the 	rule 	that 	a generally worded
management rights clause, 	such as the clause here, 	is
insufficient 	to 	constitute 	a waiver 	of 	statutory bargaining
rights. 	(San Jacinto Unified School District 	(1994) 	PERB
Decision No. 	1078.) 	The District has presented no convincing
argument 	as 	to why this 	rule 	should not 	apply 	in this 	case.
Therefore, 	the exception is without merit.
Secondly, 	the District asserts 	that 	there 	is no evidence
that 	the 	decision to 	change 	the 	shift 	of 	a bargaining unit member
was 	anything 	other 	than a possible 	isolated breach 	of 	the
parties' 	CBA made by an individual 	site manager. 	Therefore, 	the
Board's 	test 	for 	establishing an unlawful 	unilateral 	change has
not been met.2
2In order to establish an unlawful 	unilateral 	change, 	the
charging party must 	demonstrate 	that: 	(1) 	the employer breached
or altered the parties' 	written agreement 	or established past
practice; 	(2) 	the action was taken without providing the
exclusive 	representative 	with 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 	in policy having a
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This 	exception is also without merit. 	The District's action
was 	based on 	its 	incorrect 	belief 	that 	the management 	rights
clause 	of 	the 	CBA gave 	it 	the 	right 	to unilaterally change 	the
shifts 	of bargaining unit members. 	While 	only one 	employee's
shift was unilaterally changed in this 	case, 	it 	is 	clear that 	the
change 	in policy has 	the 	generalized and 	continuing 	impact 	on
bargaining unit members 	of 	exposing 	them to 	similar unilateral
shift 	changes. 	Therefore, 	the Board's 	test 	for establishing an
unlawful 	unilateral 	change has been met. 	(Moreno Valley Unified
School District 	(1995) 	PERB Decision No. 	1106.)
Finally, 	the District 	argues 	that 	the 	issue as 	stated by the
ALJ in his proposed decision 	is 	not 	the 	issue 	set 	forth 	in the
PERB complaint 	in this 	case. 	Specifically, 	the 	complaint 	alleged
that 	the 	District 	had 	eliminated an 	evening 	Custodian 	II
position, 	established a day Grounds Worker I position, 	and
reassigned an employee 	from the 	former position 	to 	the 	latter.
The District 	asserts 	that 	the ALJ 	found 	this 	allegation 	to be
unproven but 	then proceeded to 	create another 	issue, 	a unilateral
shift 	change, 	and 	found that 	the District 	had committed an unfair
labor practice. 	In objecting to the ALJ's 	statement 	of 	the
issue, 	the District offers 	the following comment at 	footnote 2 	of
its 	statement 	of exceptions:
generalized 	or 	continuing 	impact 	on 	the 	terms 	and 	conditions 	of
employment of bargaining unit members; 	and 	(4) 	the change
involves 	a matter within the 	scope 	of 	representation. 	(Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51; 	Grant
Joint Union High School District 	(1982) 	PERB Decision No. 	196.)
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Could 	it be 	that 	the ALJs who 	sit 	for the 	PERB
are biased, 	or at 	least have the appearance
of bias, 	in that 	they have petitioned and
have 	been 	certified as 	a bargaining unit
under 	California 	law as 	an appropriate 	unit
and 	empathize 	with 	the 	employee 	organizations
who 	appear before 	them?
Despite 	the District's 	assertion, 	the 	record in this 	case 	is
clear that 	the 	issue 	in dispute was 	the District's unilateral
change of the shift of a bargaining unit member. 	In fact, 	a
substantial 	portion 	of 	the District's 	post-hearing brief
addresses 	the 	shift 	change 	issue. 	Accordingly, 	the District's
exception 	is 	rejected.
As 	Chairman of 	the 	Public Employment Relations Board, 	I 	find
it 	necessary 	to 	respond 	to 	the District's 	suggestion 	that 	PERB
ALJs 	appear 	to be biased 	in 	favor of 	the 	employee 	organizations
appearing before them. 	First, 	employees 	of 	the Board are
specifically excepted 	from the 	definition of 	"State 	employee"
found in section 3513 (c) 	of the Ralph C. 	Dills Act 	(Dills Act).3
Therefore, 	PERB ALJs are without 	collective bargaining rights 	and
are 	expressly excluded from any bargaining unit. 	Second, 	the
fundamental 	component 	of 	PERB's 	role 	in administering 	the 	EERA
and the 	other collective bargaining 	statutes 	PERB oversees, 	is
its 	neutrality. 	Evidence 	of bias 	or any lack of 	neutrality by
PERB, 	its ALJs 	or any of 	its 	agents 	should be brought 	to the
attention of 	the Board immediately. 	Conversely, 	unsubstantiated
and 	self-serving 	suggestions 	of 	bias 	by a party displeased with
3The Dills Act 	is 	codified at Government 	Code 	section 3512
et 	seq.
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the outcome of a case pending before 	PERB, 	as 	it appears 	has
occurred here, 	do a disservice 	to 	PERB and bring discredit 	to the
party 	offering 	the unfounded 	suggestions.
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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. 	LA-CE-3603,
California 	School 	Employees Association and 	its 	Hacienda
La Puente 	Chapter #115 v. 	Hacienda 	La 	Puente Unified School
District, 	in which all parties had the 	right to participate,
it 	has 	been 	found 	that 	the 	Hacienda La 	Puente Unified School
District 	(District) 	violated 	the Educational 	Employment 	Relations
Act 	(EERA), Government Code section 3543.5(a), 	(b) and 	(c).
As a result 	of 	this 	conduct, 	we have been ordered to post
this 	notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to negotiate with the
Association about 	changes 	in shifts 	that 	alter hours 	of
bargaining unit 	employees.
2. 	Denying the Association 	the 	right 	to 	represent 	its
members 	in their employment 	relations with the District.
3. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	the 	Association 	in 	their 	employment 	relations 	with
the District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF EERA:
1. 	Upon request by the Association, 	return Edward
Price 	(Price) 	to the position of 	Custodian II 	on the night 	shift
at 	Los Altos High School, 	if 	that has not already occurred.
2. 	Pay 	to 	Price 	the differential 	he 	lost 	as 	a 	result
of 	the shift 	change.
Dated: 	HACIENDA LA 	PUENTE 	UNIFIED
SCHOOL 	DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	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 	HACIENDA
LA PUENTE 	CHAPTER #115,
Charging 	Party,
v.
HACIENDA LA 	PUENTE 	UNIFIED
SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. LA-CE-3 6 03
PROPOSED 	DECISION
(7/26/96)
Appearances: 	Genie Lee, 	Labor Relations Representative, 	for
California 	School 	Employees Association 	and 	its 	Hacienda 	La
Puente Chapter #115; 	Wagner, 	Sisneros and Wagner by John J.
Wagner, 	Attorney, 	for Hacienda La Puente Unified School District.
Before 	Fred D'Orazio, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
The 	California 	School 	Employees Association and 	its 	Hacienda
La Puente 	Chapter #115 	(CSEA) 	commenced this 	action on
September 8, 	1995, 	by filing an unfair practice 	charge 	against
the Hacienda La Puente Unified School District 	(District). 	On
January 2, 	1996, 	the Office of General Counsel of the Public
Employment 	Relations 	Board 	(PERB or Board) 	issued a 	complaint
alleging 	the 	District 	unilaterally eliminated a 	Custodian 	II
evening position, 	added a Grounds Worker 	I 	day position, 	and
reassigned employee 	Edward Price 	from the 	Custodian 	II 	evening
position to the new Grounds Worker 	I position. 	The 	complaint
also alleges 	that 	the 	District 	later refused a 	CSEA demand to
negotiate about the 	change. 	This 	conduct, 	the complaint 	alleges
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further, 	violated the Educational 	Employment Relations Act 	(EERA)
section 3543.5(c), 	(a), and (b).1
The District 	answered the complaint on January 22, 	1996,
denying all 	allegations.
An 	informal 	settlement 	conference 	was 	conducted by a 	PERB
agent on February 21, 	1996, 	but 	the dispute was not 	resolved. 	A
formal 	hearing was 	conducted by the 	undersigned 	at 	the 	PERB
regional office 	in Los Angeles, 	California on May 20-21, 	1996.
With the receipt of the 	final brief on July 15, 	1996, 	the case
was 	submitted 	for decision.
FINDINGS 	OF 	FACT
Jurisdiction
Edward Price 	is 	a public 	school 	employee within the meaning
of 	section 3540.1 (j) 	and the District 	is a public 	school 	employer
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	In relevant part, 	section 3543.5 	states
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.
2

within the meaning of 	section 3540.1(k).2 CSEA is 	the 	exclusive
representative 	of 	an 	appropriate 	unit 	of 	classified 	employees
(including Mr. 	Price) 	within the meaning of section 3540.1(e).
Price 	Assignment
Edward Price 	is 	employed by the 	District 	as 	a 	Custodian 	II
at 	Los Altos High School. 	He works 	the 	3:00 p.m. 	to 	11:00 p.m.
shift. 	His 	shift 	is also known as the night 	shift.
In March 	1995,3 Mr. 	Price was 	informed that 	he would be
assigned 	from the night 	shift 	to the 	day shift, 	which runs 	from
7:00 	a.m. 	to 	3:00 	p.m. 	The 	reason 	for 	the 	change 	in assignment,
according to 	Principal Donald White, 	was 	a need on the 	day shift
for an additional 	employee 	to perform grounds 	work.
Mr. 	Price protested the 	assignment 	to 	Principal White
because 	the 	shift 	change 	would 	interfere 	with his 	day job 	at
Levitz 	Furniture. 	Mr. 	Price 	explained that 	he needed the 	day job
for financial 	reasons, 	but Mr. 	White did not alter his decision.
Mr. 	Price's 	assignment 	to 	the 	day shift 	became 	effective 	on or
about March 23, 	1996.
Mr. 	Price's night 	shift position was 	not 	eliminated as part
of 	the assignment, 	nor was 	a new position created on the day
2The District 	is 	a so-called 	"merit 	system" 	district. 	In
essence, 	the merit 	system is tantamount 	to a civil 	service 	system
covering the 	District's 	classified employees. 	Pursuant 	to
Education Code 	section 45240 	et 	seq., 	a merit 	system requires 	the
creation of 	a personnel 	commission, 	which is granted authority
over 	certain employment 	conditions 	of 	classified employees. 	(See
Personnel 	Commission v. 	Barstow Unified School District 	(1996) 	43
Cal.App.4th 	871 	[50 	Cal.Rptr.2d 	797].)
3Unless otherwise noted, 	all dates 	refer to 	1995.
33

shift 	at 	that 	time. 	Mr. 	Price's Custodian II position was merely
transferred from the 	night 	shift 	to the day shift. 	Accordingly,
because 	there was no vacant 	night 	shift position remaining, 	Mr.
White did not 	fill 	in behind Mr. 	Price.
Mr. 	Price was 	never 	officially reclassified 	from Custodian
II 	to Grounds Worker I as part of the reassignment. 	However, 	his
duties 	changed 	significantly. 	While 	working the 	night 	shift
prior to the reassignment, 	Mr. 	Price performed primarily
custodial duties. 	After he was assigned to the day shift, 	his
work 	shifted 	to primarily grounds 	work.
The 	position description 	for 	the 	Custodian 	II 	classification
requires 	the 	incumbent 	to perform a number of 	"essential 	duties."
In addition to 	the 	duties 	traditionally recognized as 	custodial,
the 	incumbent 	is 	also 	required 	to 	"perform routine 	groundsman
duties 	[including] 	watering, 	trimming, 	and hoeing." 	Thus, 	the
Custodian 	II 	position and the Grounds Worker 	I position have
overlapping duties.
According 	to 	Director of 	Maintenance 	and Operations 	George
Cota, 	employees 	in the Custodian II 	classification 	"routinely"
perform the 	groundsworker duties 	reflected 	in the 	Custodian 	II
position description. 	Mr. 	Cota also testified that 	it 	has 	never
been 	the 	District's 	practice 	to 	restrict 	custodians 	to working
indoors.
The 	District 	did not 	give 	CSEA notice 	of Mr. 	Price's
reassignment 	prior to 	its 	effective 	date 	on or about 	March 23.
In a March 29 	letter, 	CSEA Labor Relations Representative Genie
4

Lee 	demanded 	to 	negotiate 	about 	"the 	elimination of 	a 	Custodian
II 	night 	position at 	Los Altos High School 	and the 	creation of 	a
Groundsworker 	I 	position on days." 	In a 	similar 	follow-up letter
on July 21, 	Ms. 	Lee again asked to negotiate about 	the 	change 	in
Mr. 	Price's hours, 	as well as what 	she described as a change 	in
his 	classification 	from Custodian 	II 	to Grounds Worker 	I. 	The
District 	rejected 	these 	demands 	to negotiate.
About ten months 	later, 	at 	Principal White's request, 	the
personnel 	commission created a new Grounds Worker 	I 	position.
The 	District 	filled that 	position on 	the 	day shift 	and 	reassigned
Mr. 	Price back to the night 	shift, 	where he currently works.
(Mr. 	Price's 	reassignment back to the night 	shift 	is not part 	of
this unfair practice proceeding.) 	Once again, 	at no time did Mr.
Price's 	classification change, 	nor was 	the Custodian 	II
classification ever eliminated at 	Los Altos High School.
It 	is 	apparent 	that 	CSEA filed this 	unfair practice 	charge
under 	the belief 	that 	not 	only had Mr. 	Price's 	hours been
unilaterally changed by his 	assignment 	to 	the day shift, 	but 	also
a 	new Grounds 	Worker 	I 	classification had been 	created on 	the 	day
shift, 	Mr. 	Price had been assigned to the new position, 	and his
former Custodian 	II 	position on the night 	shift 	had been
eliminated. 	For the 	following reasons, 	it 	is 	found that 	CSEA's
belief 	that 	the 	District 	changed Mr. 	Price's 	classification as
part 	of 	his 	reassignment 	was 	due 	to 	a 	faulty conclusion reached
by 	CSEA Chapter 	President 	Vern Wallery.
s

As 	a 	clerk/typist 	in the 	District's 	operations 	department,
Ms. 	Wallery tracks 	employee movement 	in the 	Custodian 	I,
Custodian II, 	and Grounds Worker I 	classifications. 	The main
reason 	for tracking employees 	is 	to 	assist 	in the process 	of
providing 	substitutes when needed. 	This process 	is primarily
based on 	information 	(an 	"action sheet") 	Ms. 	Wallery receives
from the personnel 	office 	during the 	normal 	course 	of 	her duties,
Ms. 	Wallery testified that 	on those occasions when she does not
timely receive 	an action sheet, 	she prepares 	the 	appropriate
document 	tracking 	employees 	based on 	"word of mouth or per 	[her]
supervisor's 	instructions."
Relying on conversations 	with Mr. 	Price 	and her 	supervisor,
Rudy Chavarria, 	Ms. 	Wallery erroneously concluded that Mr.
Price's 	classification had been 	changed 	from Custodian 	II 	on 	the
night 	shift 	to Grounds Worker 	I 	on the day shift, 	and the night
Custodian II position had been eliminated. 	Accordingly, 	Ms.
Wallery 	included 	this 	incorrect 	information on 	the 	document 	she
prepared to 	track employee movement.4 It was 	this 	document 	upon
which at 	least part 	of 	the present 	unfair practice 	charge was
based. 	As more 	fully explained elsewhere, 	however, 	Mr. 	Price's
classification 	remained unchanged at 	all 	times.
Past 	Practice
Assistant 	Superintendent 	of 	Personnel 	Services 	Barbara
Koehler testified that what 	happened to Mr. 	Price was 	"a 	shift
change 	only" 	and was 	"not 	a 	classification or reclassification
4See Charging Party Exhibit No. 	5.
6

change." 	Ms. 	Koehler 	further 	testified on direct 	examination
that, 	during her seven-year tenure as 	assistant 	superintendent,
site 	administrators 	and 	other management 	representatives
throughout 	the 	District 	have 	frequently made 	such 	changes.
On cross-examination, 	however, 	Ms. 	Koehler was unable to
offer 	testimony about 	any specific 	incidents where 	employees'
shifts were 	changed unilaterally. 	Asked at 	the 	hearing 	for
"documentation here today to prove" 	this practice existed, 	Ms.
Koehler 	responded 	"my testimony is 	that 	happened. 	Do 	I 	have 	on
hand documentation or proof? 	No, 	I 	do not."
Ms. 	Koehler also conceded that 	the District 	has never
notified 	CSEA of 	changes 	in 	shift 	assignments 	and has 	never
negotiated 	such 	changes 	with 	CSEA.
On 	the 	other hand, 	CSEA President 	Wallery testified 	about
her understanding of 	the 	District's practice. 	Under her version
of 	the practice, 	a District 	form entitled 	"Classified Request 	for
Transfer 	and/or Change 	in Assignment"5 is 	the 	appropriate
document 	to be 	used 	in implementing a 	shift 	change. 	That 	form
was 	not 	used 	in the 	assignment 	of Mr. 	Price 	from the night 	shift
to the day shift at Los Altos High School, 	Ms. 	Wallery testified.
In contrast, 	Ms. 	Koehler testified that 	Charging Party
Exhibit No. 	6 	is used only when an employee 	requests 	a transfer
from one 	site to another, 	and/or a change 	in assignment. 	Ms.
Koehler defined a request 	for change 	in assignment 	as 	a 	request
for more 	or 	fewer hours. 	The 	form is 	never used to request 	a
5Charging Party Exhibit No. 	6.
7

change 	in a shift 	assignment, 	according to Ms. 	Koehler's
testimony.
This 	conflict 	in testimony 	is 	resolved 	in 	favor of Ms.
Koehler 	for 	the 	following reasons. 	The 	form itself 	expressly
provides 	for only certain types 	of 	requests. 	These 	are 	requests
to be considered for more 	(or less) 	hours 	(or months) 	in
"positions within 	[the applicant's] 	classification." 	No where
does 	the 	form expressly refer 	to 	a 	shift 	change.
If 	the 	intended use 	of 	the 	form had 	included a 	request 	to
change 	shifts, 	it would have been easy to make 	that 	clear.
Moreover, 	it 	is possible 	that 	the 	form is 	simply unartfully
drafted and 	in actual 	practice 	has 	been used to 	implement 	a 	shift
change. 	However, 	there 	is no evidence that 	ever occurred.
The 	foregoing reasons, 	especially the 	lack of 	any examples
where 	the 	form has been used to 	implement 	a 	shift 	change, 	points
to 	the 	conclusion that 	the 	form has 	not been used as part 	of 	an
established practice 	covering 	shift 	changes.
The 	only other 	testimony about 	the 	District's 	practice 	was
provided by Mr. 	Price 	in describing his 	employment 	history. 	He
said he was 	first 	employed by the District 	in the 	1970s 	as 	a
Custodian 	II 	at 	Valley Vocational Adult 	Education Center. 	After
one year working 	the 	"graveyard 	shift" 	from 11:30 	p.m. 	to 	7:00
a.m., 	he 	applied 	for an open position as 	a Laundry Worker 	I 	at
the 	request of Mr. 	Cota, 	who was 	then his 	supervisor. 	The 	reason
for 	this 	change was 	that 	his position on the 	graveyard shift 	was
being 	eliminated.
CO
	8

Mr. 	Price 	later returned to a Custodian 	II position on the
day 	shift 	at 	California 	Elementary School 	for 	reasons 	not
contained in 	the 	record. 	He 	later 	traded positions 	with another
Custodian 	II 	and did 	"roving" 	custodial 	work on 	the 	day shift 	at
Grazide 	Elementary School. 	This move was 	accomplished by
applying to 	the 	District 	for a 	change 	in assignment. 	When the
roving positions 	were 	closed, 	the 	District placed 	incumbent
custodians 	in then-existing openings. 	It was 	at 	that 	time 	that
Mr. 	Price moved to the position he 	currently holds 	at 	Los Altos
High School.6
ISSUE
Whether 	the 	District 	breached 	its 	obligation 	to negotiate
when 	it 	unilaterally reassigned Mr. 	Price 	from the 	night 	shift 	to
the 	day 	shift?
CONCLUSIONS 	OF 	LAW
CSEA argues 	in 	its 	brief 	that 	classification 	and hours 	are
negotiable 	topics 	and 	the 	District 	unilaterally 	changed both when
it 	reassigned Mr. 	Price 	from the night 	shift 	to the day shift.
The District, 	in response, 	contends that 	it did not change Mr.
Price's 	classification; 	and, 	if 	it had unlawfully changed Mr.
Price's 	classification, 	his 	remedy would lie with the personnel
commission, 	not PERB. 	In addition, 	the District argues, 	its
action with respect 	to Mr. 	Price was merely a 	shift 	change 	that
6During his tenure 	in these various positions, 	Mr. 	Price has
held a number of 	"moonlighting" 	jobs, 	including the one 	at 	Levitz
Furniture. 	He 	has 	never 	secured District permission before
accepting 	employment 	outside 	the 	District.
9

is permitted by the management 	rights 	clause 	in the 	collective
bargaining 	agreement 	and a well 	established past 	practice.
It 	is 	important 	to clarify, at 	the outset what 	this case 	is
not 	about. 	Contrary to 	the position adamantly staked out 	by
CSEA, 	the 	core 	issue presented here does not 	concern the
District's 	right 	to 	set 	classifications 	or 	its 	obligation 	to
negotiate 	about 	classifications. 	It 	is 	clear that 	the District
did not 	intend to 	reclassify Mr. 	Price 	and he was 	not
reclassified. 	It 	is the personnel 	commission, 	not 	the District,
that 	retains 	the 	broad right 	to 	establish 	classifications 	in 	the
first place. 	(See e.g., 	Sonoma County Board of Education v.
Public Employment 	Relations Board 	(1980) 	102 	Cal.App.3d 689 	[163
Cal.Rptr. 	464]; 	Personnel Commission v. 	Barstow Unified School
District, 	supra, 	43 	Cal.App.4th 871.) 	PERB has 	similarly
recognized 	a personnel 	commission's 	authority to 	set
classifications. 	(See e.g., 	San Bernardino City Unified School
District 	(1989) 	PERB Decision No. 	723 	(Education Code 	section
45268 	does 	not 	limit 	a merit 	system district's 	authority to
negotiate 	changes 	in 	salary differentials 	between 	classifications
within an occupational 	group as 	long as 	the 	relative 	ranking of
the 	classification 	"as 	set 	by the personnel 	commission" 	remains
undisturbed).)
Nor did the unilateral 	change 	in Mr. 	Price's 	actual 	duties
from 	custodial 	to 	groundskeeping 	effectively 	circumvent 	the
classification 	function of 	the 	commission, 	as 	CSEA also argues.
Because 	the 	groundskeeping duties 	assigned Mr. 	Price 	squarely
10

fell 	within 	those 	listed on his 	Custodian 	II position
description, 	the District was 	free 	to make 	those 	assignments
without 	running afoul 	of 	its 	obligation to negotiate. 	(See 	e.g.,
Rio Hondo 	Community College 	District 	(1982) 	PERB Decision
No. 	279, 	pp. 	16-19 	(assignment of classroom teaching
responsibilities 	to 	instructors 	who 	had not 	previously performed
such 	duties 	permissible 	as 	"reasonably 	comprehended within 	the
scope of 	their existing job duties," 	where employees' 	position
description 	required 	instructors 	to 	"perform such duties 	as 	may
be 	assigned").)
The 	issue 	presented here 	is 	whether 	the 	District 	breached
its 	obligation 	to 	negotiate 	in good 	faith with 	CSEA when 	it
changed Mr. 	Price's 	hours 	by unilaterally reassigning him 	from
the night 	shift 	to the 	day shift.
An employer's unilateral 	change 	in 	terms 	and conditions 	of
employment within the 	scope of 	representation is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate and violative of EERA
section 3543.5(c). 	(Pajaro Valley Unified School 	District 	(1978)
PERB Decision No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that 	(1)
the 	employer breached or 	altered the party's 	written 	agreement 	or
own established 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.,
11

having a 	generalized 	effect 	or 	continuing 	impact 	upon bargaining
unit members' 	terms and conditions of employment); 	and 	(4) 	the
change 	in policy concerns 	a matter within the 	scope 	of
representation. 	(Grant 	Joint 	Union High School 	District 	(1982)
PERB Decision No. 	196; 	Pajaro Valley Unified School District,
supra, 	PERB Decision No. 	51; 	Davis Unified School District, 	et
al. 	(1980) 	PERB Decision No. 	116.)
Because 	the District's 	change 	in Mr. 	Price's 	shift 	affected
his hours, 	it 	is a matter within the 	scope of representation
under 	the Act. 	(Los Angeles 	Community College 	District 	(1982)
PERB Decision No. 	252.) 	In addition, 	although the District's
action in this particular case concerns only Mr. 	Price, 	the
general 	authority to unilaterally change 	shifts 	involves 	a policy
having 	a 	generalized 	effect 	or 	continuing 	impact 	on bargaining
unit members 	into 	the 	future. 	(Jamestown Elementary School
District 	(1990) 	PERB Decision No. 	795, 	p. 	6; 	Moreno Valley
Unified School District 	(1995) 	PERB Decision No. 	1106, 	adopting
proposed decision of 	administrative 	law judge 	at 	18 	PERC 	^25134,
p. 	458.)
It 	is 	undisputed that 	the District 	refused CSEA's 	requests
to negotiate 	about 	the change 	in Mr. 	Price's 	shift. 	The
District, 	however, 	advances two affirmative defenses. 	First, 	the
District 	claims 	it 	retained the 	right 	to make 	shift 	changes 	under
the 	collective bargaining agreement and, 	second, 	the change 	in
Mr. 	Price's 	shift was 	in line with years of past practice. 	In
12

neither of 	these 	affirmative 	defenses 	has 	the 	District 	met 	its
burden of proof.
The 	record here 	simply does 	not 	establish a past 	practice 	of
unilateral 	shift 	changes. 	It 	is widely recognized that 	a binding
past practice must be 	(1) 	unequivocal; 	(2) 	clearly enunciated and
acted upon; 	and 	(3) 	readily ascertainable over a reasonable
period of 	time 	as 	a 	fixed 	and 	established practice 	accepted by
both parties. 	(Elkouri 	and Elkouri, 	How Arbitration Works,
4th Edition, 	p. 	439.) 	The Board has 	long taken a similar
approach. 	It has described a valid past practice 	as 	one 	that 	is
"regular 	and 	consistent" 	or 	"historic 	and accepted." 	(Pajaro
Valley Unified School District, 	supra, 	PERB Decision No. 	51,
- -
pp. 	6, 	10.) 	In a more recent 	case 	it 	found a past practice
existed 	on 	the 	strength 	of 	concrete 	evidence 	establishing 	twelve
incidents 	over a 	seven year period with union knowledge. 	(Temple
City Unified School District 	(1989) 	PERB Decision No. 	782,
pp. 	13-14.)
As 	CSEA points out, 	the evidence 	in this 	case does not meet
these 	standards. 	Although Ms. 	Koehler testified that 	the
District 	had 	a practice 	of 	making 	shift 	changes 	during her 	seven
year tenure, 	she was unable to cite a single 	specific example.
Moreover, 	she 	conceded in her 	testimony that 	the 	District 	never
notified 	CSEA of 	the 	shift 	assignments 	and thus 	never 	subjected
the 	decisions 	to the negotiating process. 	Under these
circumstances, 	there 	is 	insufficient evidence to conclude 	that
13

the 	District 	had the 	right 	to unilaterally make 	shift 	assignments
on the basis of 	an open past practice.
The 	only specific 	examples 	of 	such changes 	came 	from Mr.
Price 	himself. 	His 	employment 	history dating 	from the 	late 	1970s
indicated that 	his 	shift 	was 	changed on 	several 	occasions.
However, 	the 	record is 	less 	than clear concerning the 	reasons 	for
his 	various 	movements 	and whether 	the 	changes 	were voluntary or
involuntary. 	On one 	occasion he 	said he 	applied 	for a 	change
from a Custodian 	II 	to a Laundry Worker 	I 	at 	the 	request 	of Mr.
Cota because 	his 	position on 	the 	graveyard 	shift 	was 	being
eliminated. 	He 	later 	returned to 	a 	Custodian 	II 	position 	for
undisclosed 	reasons 	and 	then voluntarily 	traded 	for 	a 	roving
custodial 	assignment. 	After the 	roving positions were 	closed, 	he
was placed at Los Altos High School. 	Plainly, 	some of these
assignments 	were voluntary, 	while 	some were 	involuntary or
dictated by District needs. 	In any event, 	the 	evidence
surrounding each move 	is 	extremely sparse.
This 	brief 	summary of 	a 	single 	employee's 	approximately
15-year 	journey 	through 	the 	District's 	classified 	ranks 	hardly
qualifies 	as 	the 	kind of past 	practice necessary to 	support 	the
District's defense here. 	More importantly, 	it bears repeating
that 	CSEA was 	never given notice 	of 	these 	events 	by the 	District,
nor 	is 	there 	evidence 	in the 	record to base 	a 	conclusion that
CSEA otherwise 	knew or 	should have 	known 	of 	the 	existence 	of 	a
practice 	the District 	now claims as 	a defense. 	Under these
circumstances, 	the District violated the Act when it 	refused
14

CSEA's 	request 	to negotiate 	in March 1995. 	(San Jacinto Unified
School District 	(1994) 	PERB Decision No. 	1078, 	adopting proposed
decision of administrative law judge at 	18 	PERC 1)25059, 	pp. 	182,
188 	(even 	if 	the 	District 	had a practice 	of 	unilaterally changing
shifts in the past, 	"[a] 	union's acquiescence 	in previous
unilateral 	changes 	does not 	operate 	as 	a waiver of 	the 	right 	to
bargain 	for all 	times").) 	Therefore, 	the District's past
practice 	defense 	is 	rejected.
In 	support 	of 	its 	claim that 	it 	retained the 	right 	to 	change
shifts under the 	collective bargaining agreement, 	the District
relies 	on a broadly worded 	"Management 	Rights" 	clause 	in the
agreement. 	In relevant part, 	that provision states
It 	is 	understood and agreed that 	the 	district
retains 	all 	of 	its powers 	and authority to
direct, 	manage, 	and control to the full
extent 	of 	the 	law. 	Included in but not
limited to 	those duties 	and powers 	are 	the
exclusive right to: 	. 	. 	. 	direct the work of
its employees; 	determine the times and hours
of 	operation; 	determine 	the kinds 	and levels
of 	services 	to be provided, 	and the method
and means of providing them; 	. 	. 	. 	determine
staffing patterns; 	determine 	the number and
kinds 	of personnel 	required; 	maintain the
efficiency of district 	operations; 	. . . 	In
addition, 	the board retains the 	right 	to
hire, transfer, assign, evaluate, promote,
terminate, 	and discipline employees.
The 	same 	clause 	also provides 	that 	these 	enumerated rights 	"shall
be 	limited only by the 	specific 	and 	express 	terms 	of 	this
agreement."
The 	District 	argues 	that 	the management 	rights 	clause
encompasses 	the 	authority to change 	shifts, 	and that 	nothing 	in
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the agreement 	limits that right. 	Therefore, 	it was 	free to
unilaterally change Mr. 	price's 	shift.
For the District 	to prevail 	on this 	argument, 	it must 	show
that 	CSEA waived 	its 	right 	to negotiate 	about 	shift 	changes 	in
"clear and unmistakable" 	terms. 	(Amador Valley Joint 	Union High
School District 	(1978) 	PERB Decision No. 	74; 	Oakland Unified
School 	District 	v. 	Public 	Employment 	Relations 	Board 	(1981)
120 Cal.App.3d 1007, 	1011 	[175 Cal.Rptr. 	105].) 	A review of
applicable 	precedent 	leads 	to 	the 	conclusion that 	the 	District
has not 	done 	so.
It 	is well 	established under the National 	Labor Relations
Act 	that 	general 	language 	in a management 	rights 	clause 	to 	the
effect 	that 	the 	employer retains 	the 	right 	to take 	more 	specific
actions 	affecting negotiable 	terms 	and 	conditions 	of 	employment
falls 	short 	of 	being a clear and unmistakable waiver. 	In the
private 	sector, 	when a management 	rights 	clause 	is 	the 	source of
the 	asserted waiver, 	it 	is normally scrutinized to determine
whether 	it 	affords 	justification for the 	"specific" 	unilateral
action at 	issue. 	(See Hardin, 	Developing Labor Law, 	Third
Edition, Vol. I, pp. 703-704.)
The 	same 	rationale 	is 	followed by California courts. 	In
Independent 	Union of 	Public 	Service 	Employees v. 	County of
Sacramento 	(1983) 	147 Cal.App.3d 482 	[195 Cal.Rptr. 	206], 	a case
similar to 	the 	instant 	dispute, 	a 	county employer unilaterally
changed the 	shifts 	of 	several 	custodians. 	In defending against
the union's 	complaint, 	the 	county argued that 	the 	"county rights"
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provision 	in 	its 	memorandum of 	understanding giving 	it 	the 	right
to 	"direct 	and assign" 	its 	employees permitted the 	shift 	change.
The 	appellate 	court 	disagreed, 	concluding that 	the 	contract
language 	giving the 	county the 	right 	to 	"direct 	and assign"
employees 	did not 	constitute 	a 	"clear and unmistakable" 	waiver
of 	the right 	to negotiate about 	the 	shift 	changes. 	(id., 	at
pp. 	487-488.)
PERB has 	taken a 	similar approach in a number of 	cases. 	In
San Jacinto Unified School District, 	supra, 	PERB Decision No.
1078, 	the district unilaterally changed the 	shifts 	of 	classified
employees who worked athletic events. 	In doing so, 	the district
relied on 	a broadly worded management 	rights 	clause 	giving 	it 	the
authority to 	"determine 	the 	times 	and hours 	of 	operation 	. . . 	to
assign 	. 	. 	. 	employees" 	and to 	"determine the kind and levels of
services 	to be provided." 	This general 	language 	in the
management 	rights clause 	--which, 	incidentally, 	is virtually
identical 	to 	the 	clause 	in the 	instant 	case 	-- 	did not 	give 	the
employer the 	right 	to unilaterally change 	employee 	shifts, 	the
Board found, 	because 	it 	did not 	address 	the more 	specific 	change
in 	shifts 	worked by classified employees 	during 	athletic 	events.
"A generally-worded management 	rights 	clause 	will 	not 	be
construed as a waiver of 	statutory bargaining rights." 	(.Id. , 	at
18 	PERC H25059, 	p. 	188; 	see also Moreno Valley Unified School
District, 	supra, 	PERB Decision No. 	1106, 	adopting proposed
decision of 	administrative 	law judge at 	18 	PERC 	(25134,
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pp. 	458-459 	(management 	rights 	clause 	giving employer authority
to determine 	"staffing patterns" 	and to 	"assign" 	employees 	does
not 	also confer the right 	to change 	shifts); 	State of 	California
(Department of Mental Health) 	(1990) 	PERB Decision No. 	840-S,
p. 	2, 	fn. 	2, 	adopting proposed decision of administrative law
judge at 	14 	PERC 	21103, 	p. 	406 	(broadly worded management 	rights
clause giving employer the 	right 	to determine 	"scheduling" 	does
not 	constitute waiver of 	union right 	to negotiate 	about 	change 	in
nurses' 	rotating workweek schedule).)
In contrast, 	PERB will 	find a waiver of bargaining rights
when a management 	rights 	clause 	reserves 	to 	the 	employer 	the
right 	to 	take 	action 	in the 	specific 	area 	contested by the 	union.
(See 	e.g., 	Mammoth Unified School 	District 	(1983) 	PERB Decision
NO. 	3 71 	(union waived its 	right 	to negotiate about 	employee
suspensions 	under 	a management 	rights 	clause 	that 	reserved 	to 	the
employer 	"the 	right 	to 	. . . 	suspend 	and 	terminate 	employees").)
The management 	rights 	clause 	relied upon by the 	District 	in
this 	case 	does 	not 	contain the 	level 	of 	specificity required
under 	PERB 	law to 	constitute 	a 	clear 	and unmistakable 	waiver 	of
CSEA's 	right 	to negotiate 	about 	shift 	changes. 	While 	the 	clause
admittedly gives 	the 	District 	exclusive 	authority 	in 	a 	number of
broadly described areas 	-- 	e.g., 	directing the work of 	employees,
determining 	staffing patterns 	and 	the 	kinds/levels 	of 	services,
assigning and transferring employees, 	etc. 	-- 	it does not
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expressly address 	the 	District's 	authority 	in 	the 	area of 	shift
changes.7
In 	the 	absence 	of bargaining history or other 	evidence 	that
compels 	a different 	interpretation, 	it 	is 	concluded that 	the
District 	did not 	retain the 	right 	to 	change 	hours 	of 	unit
employees 	under 	the 	management 	rights 	clause 	in the 	current
agreement. 	Accordingly, 	the District 	had an obligation to
negotiate with CSEA about 	the 	change 	in Mr. 	Price's 	hours
occasioned by his 	shift 	change. 	When 	it 	refused CSEA's 	request
to negotiate, 	it breached its 	obligation to negotiate 	in good
faith, 	in violation of section 3543.5 (c).
REMEDY
The PERB in section 3543.1 (c) 	is given:
. 	. 	. 	the power to issue a decision and order
directing 	an offending party 	to 	cease 	and
desist 	from the 	unfair practice 	and to 	take
such affirmative 	action, 	including but 	not
limited 	to 	the 	reinstatement 	of 	employees
with or without back pay, 	as will 	effectuate
the policies of 	this 	chapter.
It 	has been 	found that 	the 	District 	breached 	its 	obligation
to negotiate 	about 	a 	shift 	change 	that 	altered the 	hours 	of Mr.
Price, 	a bargaining unit employee, 	in violation of 	section
3543.5(c). 	By the 	same conduct, 	the District denied CSEA the
right 	to represent 	its members, 	in violation of 	section
3543.5(b). 	The conduct also denied Mr. 	Price the right to be
7I 	note 	that Article VII 	of 	the 	agreement 	expressly defines
a 	"transfer" 	as 	"a change of 	job location." 	Therefore, 	the
District's 	reserved right 	to 	transfer 	employees 	has 	no
application here.
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represented by his 	chosen 	representative 	in his 	employment
relations with the District, 	in violation of section 3543.5(a).
It 	is 	therefore 	appropriate 	to order the District 	to cease 	and
desist 	from 	such activity in 	the 	future.
As a remedy, 	CSEA also seeks 	(1) 	Mr. 	Price's return to the
night 	shift 	at Los Altos High School 	as a Custodian II; 	(2)
reimbursement 	for lost 	shift 	differential pay; 	and 	(3)
reimbursement 	for 	"secondary pay" 	associated with 	the 	loss 	of
employment 	with Levitz 	Furniture.
The 	record 	indicates 	that Mr. 	Price 	has 	already returned to
his position as 	Custodian 	II 	on the night 	shift. 	However, 	if
that 	has not occurred, 	the District 	is hereby ordered, 	upon
request by CSEA, 	to return Mr. 	Price to the night 	shift 	at Los
Altos 	High School. 	The 	District 	shall 	also be 	ordered to make
Mr. 	Price whole for any losses, 	financial and otherwise, 	he
incurred as 	a result 	of 	the unlawful 	unilateral 	change.
However, 	the make whole 	remedy granted here 	shall 	not 	extend
to 	reimbursement 	for 	lost 	"secondary pay" 	from Levitz 	Furniture.
While 	PERB 	is given broad remedial power, 	its 	authority typically
runs 	to 	remedies 	that 	address 	rights 	guaranteed by the 	EERA. 	Not
every 	individual 	monetary or other personal 	loss 	related to 	a
violation of 	EERA is 	compensable under PERB 	law. 	(Cf. 	State of
California 	(Secretary of State) 	(1990) 	PERB Decision No. 	812-S
(PERB 	lacks 	authority to 	award punitive 	damages 	or damages 	for
emotional 	or psychological 	injuries).) 	Indeed, 	CSEA has 	cited no
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legal 	authority, 	and I am aware of none, 	that 	supports 	the novel
remedy the union 	seeks here.
It 	is 	also 	appropriate 	that 	the 	District 	be 	required to post
a notice 	incorporating the 	terms 	of 	the 	Order. 	The Notice 	should
be 	subscribed by an authorized agent 	of 	the 	District, 	indicating
that 	it will 	comply with the 	terms 	thereof. 	The Notice 	shall 	not
be 	reduced 	in 	size 	and reasonable 	effort 	will 	be 	taken 	to 	insure
that 	it 	is 	not 	altered, 	covered by any material 	or defaced and
will 	be 	replaced 	if 	necessary. 	Posting 	such a notice will 	inform
employees 	that 	the 	District 	has 	acted 	in an unlawful 	manner and
is 	being 	required to 	cease 	and desist 	from this 	activity and will
comply with the order. 	It 	effectuates 	the purposes 	of EERA that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	District's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Davis Unified School District, 	et al., 	supra, 	PERB
Decision No. 	116; 	see 	Placerville Union School District 	(1978)
PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in the 	case, 	and pursuant 	to the
Educational Employment Relations Act 	(Act), 	Government Code
section 3541(c), 	it 	is hereby ordered that 	the Hacienda La Puente
Unified School 	District 	(District) 	and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to negotiate 	with the
California 	School 	Employees Association and 	its 	Chapter 	#115
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(CSEA) 	about 	changes 	in shifts 	that 	alter hours of bargaining
unit employees.
2. 	Denying CSEA the 	right 	to represent 	its members 	in
their 	employment 	relations 	with 	the 	District.
3. 	Denying bargaining unit 	employees 	the 	right 	to be
represented by 	CSEA 	in 	their 	employment 	relations 	with 	the
District.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	Upon request by CSEA, 	return Mr. 	Edward price 	to
the position of 	Custodian 	II 	on the night 	shift 	at 	Los Altos High
School.
2. 	Consistent with this proposed decision, 	make Mr.
Edward Price whole 	for losses, 	financial 	and otherwise, 	he
incurred as 	a 	result 	of 	the District's unlawful 	action.
3. 	Within ten 	(10) 	workdays of 	service of a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites 	and all 	other
work 	locations 	where 	notices 	to 	employees 	are 	customarily placed,
copies 	of 	the Notice 	attached hereto as 	an Appendix. 	The Notice
must 	be 	signed by an 	authorized agent 	of 	the 	District 	indicating
that 	the District will 	comply with the terms of 	this Order. 	Such
posting 	shall 	be 	maintained 	for 	a period of 	thirty 	(30)
consecutive workdays. 	Reasonable 	steps 	shall be 	taken to 	insure
that 	the Notice 	is not reduced in size, 	altered, 	defaced or
covered by any other material.
4. 	Within five 	(5) 	workdays of 	service of a final
decision in this matter, 	notify the 	Los Angeles Regional 	Director
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of the Public Employment Relations Board, 	in writing, 	of 	the
steps 	the 	employer has 	taken to 	comply with the 	terms 	of 	this
Order. 	Continue 	to report 	in writing to the Regional 	Director
periodically thereafter as 	directed. 	All 	reports 	to 	the Regional
Director 	shall 	be 	served 	concurrently on 	the 	charging party.
Pursuant 	to California Code of Regulations, 	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 Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before 	the close of business 	(5 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 	than the 	last
day set for filing 	. 	. 	. 	." 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	3213 5; 	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 Regs., 	tit. 	8, 	secs.
32300, 	32305 and 32140.)
FRED 	D'ORAZIO
Administrative 	Law Judge
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