Redwoods Community College District (PERB 1242E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case Nos. 	SF-CE-1808
SF-CE-1830
PERB Decision No. 	1242
December 19, 	1997
Appearances: 	Madalyn J. 	Frazzini, 	Attorney, 	for California
School 	Employees Association; 	School 	and College 	Legal 	Services
by Patrick D. 	Sisneros, 	Attorney, 	for Redwoods 	Community College
District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the
Redwoods 	Community College District 	(District) 	to an
administrative law judge's 	(ALJ) 	proposed decision 	(attached).
In the proposed decision, 	the ALJ 	found that 	the District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment Relations Act 	(EERA)
1
1BERA	EERA 	is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	stated, 	all 	statutory references are 	to the
Government Code. 	Section 3543.5 	states, 	in pertinent part:
1 when it 	failed to meet and
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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negotiate with the 	California School 	Employees Association 	(CSEA)
about 	the 	contracting out 	of 	dormitory 	services 	and 	changes 	in
job 	classifications 	at 	the District's 	Child Development 	Center
(CDC).2
The Board has 	reviewed the 	entire 	record, 	including
the proposed decision and hearing 	transcript, 	the District's
exceptions 	and CSEA's 	response. 	The Board 	finds 	the ALJ's
findings 	of 	fact 	and conclusions 	of 	law to be 	free 	of prejudicial
error and adopts 	them as 	the 	decision of 	the Board 	itself
consistent 	with 	the 	following discussion.
DISCUSSION
This discussion relates 	only to 	the District's 	changes 	to
certain positions at 	the District's 	CDC. 	The 	complaint 	in this
case alleged that prior to May 1, 	1995, 	the District maintained
the 	classifications 	of 	Senior Clerk Typist, 	Child Development
Specialist, 	and Child Development Aide. 	The complaint 	further
alleged that 	on or about 	that 	same date, 	the District 	changed 	its
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.
2This appeal 	involves 	two 	consolidated charges. 	Case
No. 	SF-CE-1808 	arose out 	of 	the District's 	subcontracting
dormitory services at one of 	its 	campuses. 	Case No. 	SF-CE-1830
involves 	the District's 	changes 	to job 	classifications 	at 	the
CDC.
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policy by 	eliminating 	those 	classifications 	and 	transferring 	the
duties 	to new classifications 	lower on the 	salary schedule.
Thus, 	the main 	issue 	faced by the ALJ was whether the District
had violated 	EERA by unilaterally 	transferring 	the 	duties 	of
existing 	classifications 	to 	new classifications 	at 	a 	lower
salary, 	without 	affording 	CSEA an 	opportunity 	to negotiate 	the
decision and/or 	its 	effects.
The District's exceptions, 	for the most part, 	represent a
restatement 	of 	arguments 	offered 	to 	and 	rejected by 	the ALJ. 	The
Board 	finds 	the ALJ's 	analysis 	to be 	thorough and 	correct 	and
sees 	no need to address 	the bulk of 	the District's 	exceptions.
With regard to Case No. 	SF-CE-1830 	involving 	changes 	at 	the
District's 	CDC, 	the District argues 	that 	its decision to 	create
or abolish 	job 	classifications 	is 	a non-negotiable matter of
management 	prerogative, 	citing Alum Rock Union Elementary School
District 	(1983) 	PERB Decision No. 	322 	(Alum Rock). 	As the ALJ
noted, 	under Alum Rock and Healdsburg Union High School 	District
and Healdsburg Union School 	District/San Mateo 	City 	School
District 	(1984) 	PERB Decision No. 	375 at p. 	50, 	an employer must
negotiate 	over a 	decision 	to 	replace 	existing 	classifications
with new classifications 	if 	the 	same 	essential 	duties 	continue 	to
be performed under similar circumstances, 	and the 	employer merely
transfers duties 	from one position to another. 	(Proposed dec. 	at
pp. 	27-28.)
Hence, 	the main issue here is a factual one: 	whether the
incumbents 	of 	the new positions 	at 	the 	CDC 	continue 	to perform
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the 	same 	essential 	duties 	as 	the 	former positions. 	A review of
the record reveals 	that, 	while 	the District did change 	its
organizational philosophy at 	the CDC, 	the essential 	functions
performed by 	the 	positions 	in question were 	not 	significantly
different 	after 	the 	new approach was 	implemented.
The District 	asserts 	that 	the 	new Intermediate 	Clerk Typist
position 	has 	significantly 	lowered 	skill 	expectations 	from the
former Senior Clerk Typist position. 	Upon examination of 	the 	job
descriptions, 	however, 	it is clear that both positions are
required 	to perform many of 	the 	same 	essential 	job 	duties,
although 	the 	District 	has 	downgraded 	the 	classification 	level
being 	utilized.
The 	District 	argues 	that 	the 	new Early 	Childhood 	Education
(ECE) 	Program Specialist position is 	significantly different 	from
the 	eliminated 	Child Development 	Specialist 	position because 	the
new position 	is 	now like 	a 	"head teacher" 	position.
Comparing 	the 	job descriptions 	of 	the 	new and 	former
positions, 	we note 	that both require the 	incumbent 	to train and
oversee 	college 	students working in the 	classroom, 	but neither
position 	officially designates 	the 	incumbent 	as 	a 	"head 	teacher."
Both are 	involved 	in planning 	and 	implementing 	the 	curriculum
under the direction of 	the CDC Director, 	as well 	as performing
several 	other core duties. 	After reviewing all 	the 	evidence
presented, 	the Board concludes 	that 	the same essential 	duties
previously performed by 	the 	Child Development 	Specialist 	position
continue 	to be performed by 	the 	new ECE 	Program Specialist
position.
4
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The 	District 	describes 	the new position of 	ECE 	Program
Associate as 	a position 	"like a 	teacher," 	which did not 	exist
before and 	is 	unlike 	the 	eliminated position of 	CDC Aide. 	Again,
a 	review of 	the 	job descriptions 	leads 	to 	the 	conclusion that,
although some 	new duties 	have been assigned, 	the 	same 	essential
job duties 	previously performed by 	the 	CDC Aide 	continue 	to be
performed by 	the 	ECE 	Program Associate 	position.
In summary, 	the District's argument 	that 	the 	changes 	it made
to 	the 	job 	classifications 	and positions 	at 	the 	CDC are not
negotiable 	is 	not 	convincing. 	The District 	has 	transferred
duties 	from one 	classification to another, 	but 	the 	same 	essential
duties 	continue 	to be performed. 	Therefore, 	the District had the
obligation 	to 	negotiate 	its 	decision and violated 	EERA
section 3543.5(a), 	(b) 	and 	(c) 	when it failed to do so.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and the entire 	record in the 	case, 	the Public Employment
Relations 	Board 	(Board) 	finds 	that 	the 	Redwoods 	Community College
District 	(District) 	violated the 	Educational 	Employment 	Relations
Act 	(EERA), Government Code section 3543.5(a), 	(b) 	and 	(c), when
it 	unilaterally 	subcontracted 	the 	operation of 	dormitories.
The 	Board also 	finds 	that 	the District violated EERA section
3543.5(a), 	(b) 	and 	(c), 	when it unilaterally created two new
classifications 	and 	reclassified 	one 	position at 	the 	Child
Development Center 	(CDC).
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Pursuant to EERA section 3541.5(c), 	it 	is hereby ORDERED
that 	the District, 	its 	governing board and 	its 	representatives
shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate with
the California School 	Employees Association 	(CSEA) 	about 	the
contracting 	out 	of 	dormitory operations 	and 	the 	change 	in 	job
classifications 	at 	the CDC.
2. 	Denying CSEA its 	right 	to 	represent bargaining
unit members 	in their employment 	relations with 	the District.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	EERA:
1. 	Within 10 	days 	following service of 	this Decision,
the District 	shall 	offer 	to meet 	and negotiate with CSEA
regarding 	the 	contracting 	out 	of 	dormitory operations 	and
thereafter shall meet 	and negotiate 	in good 	faith. 	If 	these
negotiations 	do not produce agreement 	then, 	upon demand from
CSEA, 	the District 	shall 	restore one dormitory
assistant/custodian 	and 	two 	assistant 	dormitory manager positions
as 	existed prior to June 2, 	1995, 	with accompanying salary and
benefits 	and offer 	the positions 	to 	employees 	incumbent 	at 	the
time 	of 	the unilateral 	action.
2. 	Restore 	the 	following positions 	as 	they existed
prior to June 2, 	1995, 	with accompanying salary and benefits, 	and
offer 	the positions 	to employees 	incumbent 	at 	the 	time 	of 	the
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unilateral 	action: 	one Senior Clerk Typist, 	two Child
Development 	Specialists, 	and one 	Child Development 	Center Aide.
3. 	Make 	adversely affected employees 	whole 	for 	losses
incurred as 	a result 	of 	the District's unlawful 	action, 	including
payment 	of all wages and benefits 	lost by the unlawful 	act, 	with
interest 	on back pay at 	the 	rate 	of 	7 percent per annum.
4. 	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, 	altered, 	defaced or covered by any
other material.
5. 	Written notification of 	the 	actions 	taken to
comply with 	this 	Order shall 	be made 	to 	the 	San 	Francisco
Regional 	Director of 	the 	Public 	Employment 	Relations 	Board 	in
accordance with 	the 	Director's 	instructions.
Chairman 	Caffrey 	and Member Dyer 	joined 	in 	this 	Decision.
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APPENDIX
NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State of 	California
After a hearing 	in Unfair Practice Case Nos. 	SF-CE-1808 	and
SF-CE-1830, 	California School 	Employees Association v. 	Redwoods
---;	Community College District, 	in which all 	parties 	had the 	right 	to
participate, 	it has been found that 	the Redwoods 	Community
College District 	(District) 	violated the 	Educational 	Employment
Relations Act 	(EERA), Government Code section 3543.5(a), 	(b) 	and
(c) 	when it unilaterally subcontracted the operation of
dormitories 	and when 	it 	unilaterally 	created two new
classifications 	and 	reclassified one position at 	its 	Child
Development Center 	(CDC).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate with
the California School 	Employees Association 	(CSEA) 	about 	the
contracting 	out 	of 	dormitory 	operations 	and 	the 	change 	in 	job
classifications at 	the CDC.
2. 	Denying CSEA its 	right 	to 	represent 	bargaining
unit members 	in their employment 	relations with the District.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF 	EERA:
1. 	Within 10 	days 	following service of 	this Decision,
the District 	shall 	offer 	to meet 	and negotiate with CSEA
regarding 	the 	contracting 	out 	of 	dormitory operations 	and
thereafter shall 	meet 	and negotiate 	in good faith. 	If 	these
negotiations 	do not produce agreement 	then, 	upon demand from
CSEA, 	the District 	shall 	restore one dormitory
assistant/custodian 	and 	two 	assistant 	dormitory manager positions
as 	existed prior to June 	2, 	1995, 	with accompanying salary and
benefits 	and offer 	the positions 	to 	employees 	incumbent 	at 	the
time 	of 	the unilateral 	action.
2. 	Restore 	the 	following positions 	as 	they existed
prior to June 2, 	1995, 	with accompanying salary and benefits, 	and
offer the positions 	to employees 	incumbent 	at 	the 	time 	of 	the
unilateral 	action: 	one Senior Clerk Typist, 	two Child
Development 	Specialists, 	and one 	Child Development 	Center Aide.

3. 	Make 	adversely affected employees 	whole 	for 	losses
incurred as 	a result 	of 	the District's unlawful 	action, 	including
payment 	of all wages and benefits 	lost by the unlawful 	act, 	with
interest 	on back pay at 	the 	rate 	of 	7 percent per annum.
Dated: 	REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH
ANY 	OTHER MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
REDWOODS 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Unfair 	Practice
Case Nos. 	SF-CE-1808
SF-CE-1830
PROPOSED 	DECISION
(10/11/96)
Appearances: 	Madalyn J. 	Frazzini, 	Attorney, 	for California
School 	Employees Association; 	School 	and College Legal 	Services
by Patrick D. 	Sisneros, 	Attorney, 	for. Redwoods Community College
District.
Before Bernard McMonigle, 	Administrative 	Law Judge.
PROCEDURAL 	HISTORY
A public 	school 	employer 	is 	accused here 	of 	making
unilateral 	changes 	without 	fulfilling 	its 	obligation 	to 	negotiate
with 	the 	exclusive 	representative.
In one 	case, 	the 	California School 	Employees Association
(CSEA or Union) 	contends 	that 	the 	Redwoods 	Community College
District 	(District) 	illegally subcontracted the 	operation of 	its
campus dormitories. 	In the other case, 	the Union argues 	that 	the
employer 	unilaterally 	changed 	job 	descriptions 	and 	salaries 	at
its Child Development Center 	(CDC) .
The District 	denies 	that 	it 	has 	contracted out 	the 	operation
of 	the 	dormitory services 	and contends 	that 	it 	has 	abandoned the
operation of 	dormitories 	and transferred 	that 	activity 	to 	an
auxiliary organization. 	The 	District 	also argues 	an emergency
need 	for 	food 	service 	and 	student 	housing 	existed 	such 	as 	to
)
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excuse 	any obligation to bargain. 	Additionally, 	the District
contends 	that 	it 	was 	prevented 	from completing 	the 	statutory
impasse 	procedures 	by a mediator's 	refusal 	to 	certify the 	matter
to 	factfinding.
Regarding the positions 	at 	the 	CDC, 	the District 	asserts
there was 	no obligation to bargain because 	the 	decision to 	create
new job classifications 	is 	outside 	the 	scope of bargaining. 	The
District 	also 	contends 	that 	the Union waived any right 	to
negotiate the 	salaries of 	the new positions.
CSEA commenced 	the 	first 	action 	alleging 	subcontracting 	at
the dormitories on June 	5, 	1995, 	by filing unfair practice 	charge
SF-CE-1808 	against 	the District. 	The Office of 	the General
Counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or Board)
issued a 	complaint 	against 	the District 	on June 	28, 	1995. 	A
corrected complaint 	issued on July 3, 	1995.
The 	complaint alleges 	that prior to July 1995, 	it was 	the
policy of 	the 	District 	to provide 	dormitory operation 	services 	at
its 	Eureka 	campus 	and to 	have 	that 	work 	done by District
employees, 	three 	of whom were 	in the bargaining unit 	represented
by CSEA. 	On or about 	that 	time, 	the complaint alleges, 	the
District 	changed 	this 	policy by giving 	the 	operational 	services
work at 	the 	dormitories 	to 	its 	new 	food 	services provider,
Lumberjack Enterprises, 	Inc. 	(Lumberjack). 	The complaint further
alleges 	that 	the 	District 	made 	this 	change without 	having
afforded 	CSEA the 	opportunity 	to negotiate 	through 	impasse,
either over 	the 	decision to 	subcontract 	or 	the 	effects 	of 	the
2
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change 	in 	policy. 	By 	these 	actions 	the 	complaint 	alleges 	the
District 	failed 	to 	negotiate 	in 	good 	faith 	in 	violation 	of 	the
Educational 	Employment 	Relations 	Act 	(EERA or Act) 	section
3 5 4 3 . 5 ( c ) , 	(a) 	and 	( b ) . 1 The District 	answered the 	complaint 	on
July 	19, 	1995, 	denying generally 	the 	operative 	allegations
against 	it.
The 	Union 	commenced 	the 	action 	involving 	the 	changes 	at 	the
CDC 	on 	September 	1, 	1995, 	by 	filing unfair practice 	charge
SF-CE-1830 	against 	the 	District. 	The 	Office 	of 	the 	General
Counsel 	of 	PERB 	issued 	another 	complaint 	against 	the 	District 	on
October 	13, 	1995. 	That 	complaint 	alleges 	that 	prior 	to May 	1,
1995, 	the 	District 	maintained 	the 	classifications 	of 	Senior 	Clerk
Typist, 	Child 	Development 	Specialist, 	and 	Child 	Development 	Aide
at 	CDC. 	On 	or 	about 	that 	same 	date, 	the 	District 	changed 	the
policy 	by 	eliminating 	those 	classifications, 	and 	transferring 	the
•"•Unless 	otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	Section 	3543.5 	states 	in 	relevant 	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.
W	
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duties 	to new classifications 	lower on the 	salary schedule. 	The
complaint 	also 	alleges 	that 	the 	District 	made 	these 	changes
without 	having 	afforded CSEA an opportunity to negotiate 	the
decision 	to 	implement 	the 	change 	in policy and/or the 	effects 	of
that 	change. 	By these actions, 	the complaint alleges, 	the
District 	failed to 	negotiate 	in good 	faith 	in violation EERA
section 3543.5(c), 	(a) 	and 	(b). 	The District answered the second
complaint on November 8, 	1995, 	again denying generally the
operative 	allegations 	against 	it.
On January 10, 	1996, 	CSEA made a motion to consolidate both
cases 	and on January 18, 	1996, 	that motion was granted. 	On
February 14, 	1996, 	CSEA made a motion to amend the 	complaints 	in
both cases 	and that 	motion was 	denied at 	the beginning of 	the
formal hearing. 	The hearing took place on March 5, 	6, 	and 7,
1996, 	at 	the District office 	in Eureka. 	With the 	filing of
briefs, 	the matter was 	submitted for decision on May 17, 	1996.
JURISDICTION
The 	District 	is 	a public 	school 	employer under the 	EERA.
CSEA is 	the 	exclusive 	representative 	of 	a comprehensive 	unit 	of
the 	District's 	classified employees 	within 	the meaning of 	section
3540.l(e) 	and 3540.1(k). 	At all relevant times, 	the District and
CSEA have 	been parties 	to 	a 	collective 	bargaining 	agreement 	with
a 	grievance 	procedure 	which culminates 	in 	advisory arbitration.
Accordingly, 	the 	disputes 	raised in the 	instant 	unfair practice
charges 	are 	not 	subject 	to binding arbitration under 	the
agreement.
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FINDINGS 	OF 	FACT
The 	Dormitories
Prior to June 	2, 	1995, 	the District 	employed individuals 	to
operate 	dormitories 	at 	its 	Eureka campus. 	Those employees
included one management 	employee 	and 	three 	members 	of 	the
classified bargaining unit. 	The 	three 	bargaining unit 	employees
were 	Shari 	Ramirez, 	a dormitory assistant/custodian and two
assistant 	dormitory managers, 	Rodney Carter and Wayne 	Thompson.2
Their primary 	duties 	included planning 	resident 	activities,
performing maintenance, 	and 	insuring 	student 	safety and
discipline.
Prior to 	1987, 	the District 	also employed classified
employees 	to perform food 	service 	activities 	at 	the 	campus. 	At
that 	time, 	CSEA and 	the 	District 	negotiated 	and 	reached an
agreement 	regarding 	the 	contracting out 	of 	food services. 	The
District 	would contract 	out 	the 	food service operation, 	but
existing 	food 	service 	employees 	would 	remain District 	employees
so 	long as 	they remained 	in the 	same position. 	Vacancies
occurring 	during 	the 	first 	year 	of 	subcontracting would 	also 	be
filled by District 	employees. 	After a 	five-month bidding
process, 	the District 	subcontracted the 	food service 	operation to
Professional Food-Service Management, 	Incorporated 	(PFM).
In 1992, 	the District 	again accepted bids 	for the operation
of 	food services. 	The bids 	were 	reviewed by the 	Food Service
2Ramirez 	was 	employed half-time 	for twelve months 	as 	a
custodian and half-time 	for 	ten months 	as 	a 	dormitory assistant.
The 	assistant 	dormitory manager positions 	were 	full-time.
55

Committee 	(FSC). 	That committee consisted of Gary Poertner, 	the
vice-president of business services; 	Bill Conners, 	dormitory
manager; 	the. college president's secretary; 	two students; 	and the
head 	football 	coach. 	The 	committee was 	advisory to 	Poertner.
The 	number one 	choice 	of 	the 	FSC was 	Lumberjack Enterprises,
Inc.3 However, 	prior to the awarding of the contract,
Lumberjack withdrew 	from the process. 	The District 	then renewed
its 	contract with PFM.
During the 	fall 	of 	1994, 	District 	administrators 	received
numerous 	student 	complaints 	regarding 	the 	quality of 	food
service. 	At 	that 	time, 	Poertner called PFM officials 	regarding
the 	complaints. 	He 	indicated that 	the 	PFM campus manager was 	not
performing 	satisfactorily and that 	the 	District 	was 	generally
displeased with the 	quality of 	food 	service. 	He 	informed 	PFM
that 	changes 	needed to be 	made 	quickly or 	the 	District 	would be
reluctant 	to 	renew the 	contract 	at 	expiration. 	Poertner also
called Bert 	Nordstrom 	the 	executive 	director of 	Lumberjack 	and
informed him of 	the problems. 	He 	asked 	if 	Lumberjack would be
willing to 	step 	in and help 	the District. 	Nordstrom indicated
that 	Lumberjack would do what 	it 	could to help 	in the 	short 	term
and that 	Poertner 	should 	let 	him know 	if 	the 	situation
deteriorated.
Dormitory Manager Bill 	Conners 	was 	also aware 	of 	problems
with the 	PFM delivery of 	food services. 	According 	to 	Conners,
3Lumberjack Enterprises, 	Incorporated is a part 	of 	the
Humboldt 	State 	University 	Foundation which operates 	residence
halls 	and 	food operations 	at 	Humboldt 	State University.
66

the problems 	had been ongoing 	for 	several 	years. 	By the 	fall 	of
1994, 	District 	staff was very concerned with PFM's 	service and
the 	dissatisfaction 	that 	resident 	students 	had with their meal
plans. 	At 	that 	time, 	Conners 	also contacted an acquaintance at
Lumberjack, 	to 	find out 	if 	Lumberjack would be 	interested 	in
providing 	food 	services. 	After 	learning 	that 	Lumberjack was
indeed 	interested 	in providing 	food services, 	Conners 	shared the
information with Poertner and the 	other members 	of 	the 	FSC. 	At 	a
November 	1994 	staff meeting, 	Conners 	informed the 	dormitory staff
of 	his 	impression and hope 	that 	Lumberjack would 	soon be
providing 	food 	services. 	While 	it 	would be 	difficult 	to make 	the
transition over the 	Christmas break, 	Conners was 	hopeful 	that 	the
transition would take place 	in the 	near 	future.
In December 	1994 	PFM assigned a new manager to 	its 	food
service 	operations 	at 	the District 	and some positive 	changes were
made. 	The 	FSC negotiated 	in 	January and February with 	PFM with
regard 	to 	the 	rates 	that 	would be 	charged 	for the 	1995/9G 	school
year. 	The 	FSC 	recommended accepting a 	PFM offer 	for the
following year.
However, 	by letter dated March 22, 	1995, 	Poertner was
informed by PFM that 	it 	was 	operating at 	a 	loss 	at 	the District
and changes 	were 	necessary. 	PFM requested that 	the 	District 	make
certain guarantees 	and financial 	concessions. 	Poertner 	forwarded
this 	letter 	to 	other 	FSC members 	and noted that 	he 	had contacted
Lumberjack Enterprises 	for possible 	services. 	He 	also 	told them
that 	he 	had 	contacted 	PFM and was 	told that 	if 	the 	District 	did
7
7

not 	agree 	to 	the 	financial 	concessions, 	PFM would send the
District 	a 	90-day notice of 	cancellation. 	By letter of March 30,
PFM 	served 	the 	90-day notice 	to 	cancel 	the 	food 	services
agreement.
Poertner 	contacted 	Bert 	Nordstrom 	of 	Lumberjack 	after
receiving each of 	the 	March 	letters 	from PFM. 	Nordstrom asked
for 	certain 	financial 	information 	and 	informed 	Poertner 	that
Lumberjack 	would only be 	interested 	in 	operating 	the 	food
services 	if 	the 	contract 	also 	included operation of 	the
dormitories. 	Poertner was 	aware 	that 	contracting out 	the
dormitory operations 	would 	involve 	some 	issues 	that 	were 	going 	to
have 	to be worked out 	with CSEA. 	He began discussing the matter
with Nancy Yagi, 	the director of human resources.
On April 	26, 	Yagi met with Carol 	Polasek, 	the 	local 	CSEA
chapter president, 	and Diane Wolf, 	a union member who assisted
Polasek. 	They reviewed a 	list 	of 	14 	classified positions which
District 	staff 	was 	planning 	to 	recommend 	for 	layoff 	at 	the
District's 	Board of 	Trustees meeting on May 1st. 	The 	list
included 	the 	three 	classified unit 	dormitory employees.
On April 	30, 	1995, 	Polasek sent 	a letter to the Board of
Trustees 	demanding to 	negotiate 	the 	effects 	of 	any proposed
layoffs 	and 	"the 	determination 	regarding 	the 	bargaining unit 	work
done by the 	14 	employees." 	The 	letter asserted that 	the
contracting out 	of 	dormitory work was 	illegal. 	The 	letter also
complained 	that 	CSEA had not 	been 	involved 	in 	the 	dormitory
8
a

subcontracting as 	it 	had been when 	the 	District 	considered 	the
contracting out 	of 	food services 	in 	1987.
By letter of April 	27, 	1995, 	Poertner informed the
Lumberjack 	Board of 	Directors 	that 	"following discussions 	over
the past 	few weeks 	with executives 	of 	your 	dining and residence
hall programs, 	College of 	the Redwoods hereby expresses our
sincere 	interest 	in beginning earnest 	negotiations 	concerning
your 	organization providing 	dining 	and housing 	services 	for 	our
college." 	The 	District 	contacted no other prospective vendors.
On May 	1st 	at 	the board meeting, 	Poertner 	informed the 	board
that 	Lumberjack would be 	the 	District's 	new 	food 	service 	provider
effective 	approximately July 1st. 	Also at 	that meeting, 	the
board approved the 	resolution 	laying off 	the 	14 	classified
bargaining 	unit 	members 	and 	the 	dormitory manager 	effective
June 	2nd.4
The 	first 	negotiation 	session 	regarding 	the 	proposed 	layoffs
took place 	on May 4th.5 District 	representatives 	discussed 	the
background 	regarding 	the 	changes 	in 	the 	dormitory operation 	and
the 	sudden notice 	from PFM to 	cancel 	the 	contract 	for 	food
services. 	They asserted that, 	because of 	the need for food
service 	to be 	in place by mid-June 	for summer classes, 	there was
4The dormitory manager, 	Conners, 	actually worked at 	the
dormitories until 	July 1st, 	when he became 	the 	coordinator for
environmental 	health 	and 	safety.
5Gary 	Poertner 	testified 	that 	he 	thought 	conversations 	were
begun with CSEA in early April. 	However, 	from the 	testimony of
other participants 	as well 	as 	Poertner's 	description of 	the
content 	of 	the meetings, 	he 	appears 	to have been referring to the
negotiations 	that 	began 	in May.
9

insufficient 	time 	to go 	through a bid process. 	Poertner also
contended 	that 	Lumberjack's 	connection 	to 	Humboldt 	State
University would benefit 	students 	because 	activities 	at 	Humboldt
State 	would become 	available 	to District 	dormitory residents.
CSEA reiterated 	its position, 	which had first 	been voiced 	in
Polasek's April 	30 	demand to bargain, 	that dormitory
subcontracting be 	subject 	to 	the 	same 	conditions 	negotiated 	for
food service workers 	in the 	1987. 	Under such an agreement,
dormitory employees 	would 	remain 	employed by 	the 	District 	but
work with 	Lumberjack 	staff.
Negotiations 	resumed on May 8th. 	Nancy Yagi 	began 	the
meeting by explaining 	that 	the 	dormitory 	issue 	was 	of 	primary
importance 	to 	the 	District 	because 	of 	the 	need to have 	food
service 	in place. 	The District 	discussed the possibility of
offering 	custodial 	jobs 	to 	the 	three 	bargaining unit 	employees
currently assigned 	to 	the 	dormitories. 	CSEA questioned whether
the 	two 	assistant 	dormitory managers 	were physically capable 	of
performing 	custodial 	jobs. 	Both employees were 	on disability or
sick 	leave 	and were not 	working at 	the 	time. 	No 	agreement 	was
reached.
The parties met 	again on May 	10th. 	The 	District 	reiterated
the 	importance 	of 	settling 	the 	dormitory 	issue 	and having 	food
service 	in place by mid-June. 	CSEA would not 	agree 	to 	the
subcontracting. 	At 	that meeting, 	the District 	also 	indicated
that 	it 	had 	five 	and a half 	clerical 	positions 	to 	offer 	if 	the
Union would agree 	to 	the 	subcontracting of 	the 	dormitories.
10
.

Again 	the 	Union demanded 	that 	the 	dormitory employees 	remain
employed by the 	District. 	District 	representatives 	explained
that 	Lumberjack was 	not 	interested 	in using 	the 	District
employees 	and preferred 	to use 	graduate 	students 	and a 	live-in
manager.
Another bargaining 	session 	took place 	on May 	12th 	and 	again
discussions 	centered on 	the 	subcontracting of 	the 	dormitories.
The District 	indicated that 	it 	was willing to offer alternate
placements6 as 	custodians 	to 	the 	two 	assistant 	dormitory
managers 	as 	well 	as 	the 	five 	and a half 	full-time 	clerical
positions 	for other 	laid off 	employees 	in 	exchange 	for 	agreement
on the 	dormitories. 	The 	District 	also 	took 	the position that 	the
emergency clause 	of 	the 	contracting out 	provision 	of 	the
collective 	bargaining 	agreement 	would permit 	them 	to 	move 	forward
without 	first 	completing 	the 	bargaining obligation.7 The
6Under the parties' 	understanding of 	alternate placements,
an 	employee 	would keep his/her old 	salary 	level 	for 	two years.
7Section 	14.2 	of 	the 	collective 	bargaining 	agreement 	between
the parties states, 	in relevant part, 	the following:
Contracting out: 	The District 	agrees 	it will
notify the 	CSEA Chapter President, 	or 	in the
President's absence, 	the Vice President, 	in
writing 	in 	the 	event 	the District 	is
considering 	contracting 	out 	any bargaining
unit 	work. 	CSEA will 	respond within 	five
working days 	of 	receipt 	of 	notification 	from
the District 	as 	to whether or not 	it 	desires
to negotiate. 	When CSEA requests 	to bargain,
the 	District will 	not 	contract 	the work until
the bargaining obligation 	is 	satisfied. 	Once
a demand to negotiate 	is 	issued, 	CSEA shall
meet 	with 	the 	District 	within a 	reasonable
period of 	time.
11

District 	based this 	position 	on 	short 	notice 	that 	it 	had 	received
from PFM and the need to 	have 	replacement 	services. 	There was 	no
agreement 	on the 	dormitories. 	The 	District 	asked whether the
Union would agree 	to 	jointly 	submit 	the 	matter to 	PERB's 	impasse
procedures. 	The Union declined because 	there 	had been no
discussion of 	the 	layoff 	of 	the 	CDC employees 	or other positions.
The College of the Redwoods Foundation 	(Foundation) 	is a
separate, 	non-profit 	corporation 	founded pursuant 	to Education
Code 	section 	72670. 	That 	section provides 	that 	a community
college 	district 	may establish 	an 	auxiliary 	organization 	for 	the
purpose 	of 	providing 	support 	services 	and 	specialized programs,
including commercial 	services. 	Under its master agreement 	with
the District, 	the 	Foundation may engage 	in those 	services 	agreed
upon by the 	District.
•
Individuals 	employed by the 	District 	are 	on 	the 	Foundation's
Board of 	Directors. 	The District's president/superintendent 	is
on the 	Foundation board, 	as 	is Gary Poertner. 	Poertner serves
the 	Foundation as 	its 	secretary/treasurer.
At 	the May 10, 	1995, 	meeting of the Foundation's board,
Poertner gave 	an overview of 	the 	situation 	regarding the 	food and
The 	District may contract 	out 	work without
prior notification or bargaining due 	to 	an
emergency 	situation 	as 	emergency 	is 	defined
in Article XIV of 	this Agreement. 	Within
five 	working days 	of 	contracting out 	work due
to an emergency, 	the District will 	notify the
CSEA Chapter President 	in writing 	that 	it 	has
done 	so 	and state 	the 	facts 	upon which the
District 	determined 	that 	an 	emergency
existed.
12

dormitory services. 	He 	reported that 	the District 	was 	interested
in entering 	into 	a 	contract 	with Lumberjack. 	Poertner 	indicated
that 	if 	the District 	was 	not 	able 	to 	come 	to an agreement with
CSEA, 	the 	District 	would have 	the 	Foundation contract 	with
Lumberjack 	to provide 	food 	and housing 	service. 	The 	Foundation's
board 	authorized 	contracting with 	Lumberjack 	to 	provide 	food 	and
housing 	services 	for the 	College 	of 	the 	Redwoods by
July 1, 	1995.
On June 	14, 	1995, 	the District 	and the Foundation executed
an amendment 	to their master agreement which, 	in relevant part,
provides 	that 	the 	Foundation may provide 	food 	services 	and
residence 	hall 	programs 	and 	that 	the 	Foundation may contract 	with
third parties 	for operational 	and management 	services. 	The
Foundation did contract 	with Lumberjack 	for the 	services. 	The
contract 	is 	signed by two witnesses, 	Gary Poertner 	signed as 	the
witness 	for the 	Foundation. 	The 	contract 	provides 	that 	with
regard to any notices pursuant 	to the 	contract, 	notification to
the 	Foundation shall 	be 	directed to Gary Poertner. 	Lumberjack
began providing 	for 	the 	operation of 	the 	dormitories 	on July 	1,
1995.
On June 27, 	1995, 	PERB notified the parties of 	its
determination 	that 	an 	impasse 	did 	exist 	regarding 	the 	dormitory
subcontracting. 	A mediator was 	appointed. 	The mediation 	session
took place on August 	31, 	1995. 	The mediator was 	informed that
the 	subcontracting 	of 	the 	dormitories 	had already 	taken place.
The 	mediation 	session was 	brief 	and no 	agreement 	was 	reached.
13

The mediator 	denied 	CSEA's 	request 	that 	the 	parties 	proceed to
factfinding.
The 	Child Development 	Center
The District's 	layoff 	resolution of May 1, 	1995, 	also
included 	four 	classified bargaining unit 	positions 	at 	the 	CDC.
These positions 	included one 	full-time 	Senior 	Clerk Typist, 	one
full-time 	Child Development 	Specialist, 	one 	Child Development
Specialist 	employed 25 	hours per week, 	and one 	Child Development
Center Aide, 	a 	3 0-hour per week position 	for 10 months per year.
CSEA and 	the 	District 	engage 	in what 	both refer 	to 	as
informal 	problem-solving meetings. 	Neither 	side 	considers 	these
meetings 	to be 	formal 	negotiations. 	Rather, 	the meetings are
held every two 	to 	three weeks 	on an 	informal 	basis 	to discuss
matters of mutual 	concern and potential problems. 	Generally, 	the
Union 	is 	represented by the 	chapter president 	and one 	of 	the
stewards, 	and the District 	is 	represented by Nancy Yagi, 	the
director of 	human resources. 	Sometime 	during the 	1994/95 	school
year, 	the parties 	discussed the 	fact 	that 	there would be 	changes
made 	at 	the 	CDC. 	Polasek asked Yagi 	for more 	information about
the 	changes at 	several 	subsequent 	informal meetings. 	Yagi
generally 	responded 	that 	nothing 	had been 	submitted 	to 	her 	office
but 	she 	would keep 	CSEA informed.
At 	an early April 	1995 	informal meeting, 	CSEA
representatives 	were 	advised 	that 	there 	would be 	some 	layoffs.
Yagi 	did not 	then know how many 	individuals 	or what 	positions
would be 	involved. 	As previously discussed, 	on April 	26 	Yagi
14

gave 	CSEA the 	list 	of 	proposed 	layoffs 	to be 	submitted to 	the
District's board on May 	1st. 	The 	list 	included all 	four of 	the
classified bargaining unit positions 	at 	the 	CDC.
At 	the 	first 	negotiation 	session on May 4th, 	the parties
discussed the 	fact 	that 	there were 	rumors 	that 	the 	District was
going 	to 	close 	the 	CDC. 	The 	District 	responded that 	it 	would not
have 	a 	CDC 	summer program, 	but 	that 	the 	CDC would reopen 	in the
fall. 	At 	that meeting, 	and the 	subsequent negotiations on May
8th and 	10th, 	the parties 	concentrated their discussions 	on the
subcontracting of 	the 	dormitories. 	At 	the May 10th negotiations,
the Union asked to discuss 	the 	CDC positions. 	District
negotiators 	stated 	that 	they were 	not 	willing to 	discuss 	those
positions at 	that 	time. 	Rather, 	they wanted to settle the
dormitory issue before proceeding to other issues. 	Again, 	at 	the
May 	12th meeting, 	the parties 	concentrated primarily on the
dormitory 	issue.
At 	some point prior to the May 12th meeting, 	the parties had
scheduled 	a May 	15th meeting 	specifically to 	discuss 	the 	issues
regarding 	the 	CDC positions 	that were 	scheduled 	for 	layoff. 	When
the 	May 	12th meeting 	concluded without 	an 	agreement 	on 	the
dormitories, 	the May 15th meeting was 	cancelled. 	CSEA
representatives 	recall 	Nancy Yagi 	cancelling 	the 	May 	15th
meeting. 	Yagi 	recalls 	the 	meeting being mutually cancelled.
At 	a June 	12th informal 	meeting, 	the parties 	discussed the
CDC. 	Yagi 	again confirmed that 	the 	CDC would reopen 	for 	the 	fall
semester. 	She 	also 	indicated that 	the 	clerical 	position would be
15

a 	10-month 	Intermediate 	Clerk 	Typist 	and 	there 	would be 	academic
requirements 	for other positions. 	Polasek responded that 	CSEA
reserved 	its 	right 	to negotiate 	over changes.
On June 	18th, 	the District 	advertised in a 	local 	newspaper
for 	five permanent, 	10-month classified positions 	in the Early-
Childhood Education 	(ECE) 	program at 	the 	CDC. 	The positions
included one 	full-time ECE 	Program Specialist, 	one 	Intermediate
Clerk Typist, 	and three ECE Program Associates 	in 3 0-hour, 	10-
month per year 	jobs.
On June 	21, 	Polasek 	sent 	Yagi 	a 	letter demanding to
negotiate 	over the 	changes being made 	at 	the 	CDC, 	including
changes 	in the positions 	and the 	salary schedule. 	Yagi 	responded
that 	she 	would meet 	with 	Polasek 	informally to 	discuss 	the
positions. 	They met 	on July 20th and Yagi 	stated that 	because
thirty days 	had passed 	since 	the 	CDC 	layoffs 	had been 	announced,
CSEA had waived 	its 	right 	to negotiate 	over 	the 	layoffs 	under 	the
language 	of 	the 	collective bargaining agreement. 	Polasek
responded 	that 	the 	Union 	had never been given 	complete
information 	enabling 	it 	to 	formulate proposals 	with 	regard 	to 	the
CDC.
On August 	11, 	Polasek made 	another demand to negotiate 	over
the 	changed positions 	and the 	salary schedule placement. 	On
August 	22, 	Yagi 	sent 	Polasek a memorandum asserting that
bargaining over 	the 	effects 	of 	layoff 	had been waived, 	that 	job
descriptions 	were 	a management prerogative, 	and that placement 	on
the 	salary schedule 	had never been negotiated at 	the 	District.
16

A comparison of 	the 	new 	job 	descriptions 	for 	the 	CDC with
the 	classifications 	which had existed prior 	to 	July 	1995,
indicates 	that 	the 	District 	transferred 	existing 	functions 	and
duties 	to 	retitled classifications. 	The 	Child Development
Specialist 	classification was 	subsumed by 	the 	ECE 	Program
Specialist 	classification. 	Both 	report 	directly 	to 	the 	director
of 	the 	CDC. 	Both plan and conduct 	early childhood 	education 	and
daily curriculum 	in accordance with CDC policies. 	Both supervise
and direct 	the 	work 	of 	college 	laboratory 	students 	and evaluate
the 	students participating 	in the program. 	Both require 	an
education the 	equivalent 	to 	a Bachelor's 	degree 	in Child
Development, 	Early Childhood Education, 	or a related field. 	The
working environment 	is the 	same 	for both, 	the CDC.
. .
Similarly, 	the 	classification of 	Child Development 	Center
Aide 	has 	had 	its 	functions 	and duties 	included 	in the 	new
classification of 	ECE 	Program Associate. 	Under both
classifications, 	the 	job requires 	an individual 	to assist 	other
staff 	members 	in providing 	instructional 	presentations 	and
educational 	programs 	to 	children, 	to work 	cooperatively with work
study and work experience 	students, 	to provide 	guidance 	in
meeting 	the 	appropriate 	educational 	and 	emotional 	needs 	of 	the
children, 	to 	assist 	in maintaining recognized health and 	safety
practices 	and 	in stimulating a 	learning environment. 	Both 	jobs
require 	the 	knowledge 	of 	current 	concepts 	used 	in 	early childhood
education. 	The 	new classification requires 	an Associate's 	degree
17

while 	the 	prior one 	required certain units 	in 	childhood 	education
and staff 	relations.
The 	Senior 	Clerk Typist 	position at 	the 	CDC was 	eliminated.
No new classification was 	created. 	Rather, 	the District merely
reclassified the position. 	The 	same 	individual 	who had been 	laid
off 	as 	a 	Senior 	Clerk Typist 	in May, 	was 	hired as 	an 	Intermediate
Clerk 	Typist 	in August 	at 	a 	reduced 	salary and 	as 	a probationary
employee 	with 	fewer benefits. 	Her 	job duties 	remained the 	same
as 	those performed prior to the May layoff. 	That 	employee,
Glenda Ashburn, 	had been aware of 	the possibility of 	layoffs 	at
the 	CDC. 	Shortly after 	Sydney Fisher Larson accepted the
position as 	the new director of 	the 	CDC 	in the March 1994, 	Larson
discussed the 	possibility of 	layoffs 	with her 	staff. 	According
to Ashburn and Lisa Lachnicht, 	a 	Child Development 	Specialist,
Larson 	stated that 	the 	current 	salaries 	were 	too high. 	Ashburn
testified 	that 	Larson made 	similar mention of 	staff 	salaries 	over
the 	coming months. 	Larson recalled discussing 	the 	CDC budget
with the 	staff 	but 	stated that 	there was 	no 	discussion of
salaries.
Director Larson's 	hire 	reflected a 	change 	in direction 	for
the 	CDC. 	Just prior to her hire, 	the 	CDC had been moved 	from
student 	services 	to 	the 	academic 	side. 	The 	director of 	the 	CDC
would no 	longer 	report 	to 	the 	vice 	president 	of 	student 	services
but 	to the dean of 	humanities. 	This 	change 	reflected a decision
to 	strongly 	integrate 	the 	curriculum 	for 	early 	childhood
education 	coursework 	and 	the 	curriculum 	followed at 	the 	CDC. 	The
18

most 	recent 	coursework was 	based on 	the 	child-centered 	emergent
approach. 	Also to 	facilitate 	that 	integration, 	a decision was
made 	that 	the 	director would be 	half-time 	at 	the 	CDC and a half-
time 	instructor of 	early childhood education.
THE 	ISSUES
1. 	Did the District 	violate 	the 	EERA by unilaterally
contracting out 	bargaining unit 	work 	at 	the 	dormitories?
2. 	Did the 	District 	violate 	the 	EERA by unilaterally
transferring the 	duties 	of 	existing classifications 	to 	new
classifications 	at 	a 	lower 	salary?
ANALYSIS AND 	CONCLUSIONS 	OF LAW
An 	employer 	commits 	an unfair practice 	in violation 	of 	its
duty to bargain 	in good 	faith when 	it 	unilaterally makes 	a 	change
in matters within 	the 	scope 	of 	representation without 	notifying
and 	affording 	the 	exclusive 	representative 	an opportunity 	to
bargain. 	(Pajaro Valley Unified School 	District 	(1978) 	PERB
Decision No. 	51; 	San Mateo 	County Community College District
(1979) 	PERB Decision No. 	94; 	San Francisco Community College
District 	(1979) 	PERB Decision No. 	105 	(San Francisco).)
The 	Dormitories
The 	complaint 	in SF-CE-1808 	alleges 	that 	the 	District
contracted out 	the 	job duties 	of 	the 	classified employees
operating campus dormitories. 	PERB, 	following the United States
Supreme 	Court's 	rulings 	in 	Fibreboard 	Paper 	Products 	Corporation
v. 	NLRB 	(1964) 	379 U.S. 	203 	[57 LRRM 2609] 	(Fibreboard); 	First
National Maintenance Corporation v. 	NLRB 	(1981) 	452 U.S. 	666 	[107
19

LRRM 2705]; 	and the National 	Labor Relations Board's 	(NLRB)
decision 	in Otis 	Elevator 	Company, 	a wholly owned 	subsidiary of
United Technologies 	(1984) 	269 NLRB 891 	[116 LRRM 1075], 	has held
that 	subcontracting decisions which are based, 	at 	least 	in part,
on 	labor 	costs 	are 	negotiable 	providing 	that 	the 	decision 	is
otherwise 	amenable 	to 	collective 	bargaining.8 (State 	of
California 	(Department of 	Personnel Administration) 	(1987) 	PERB
Decision No. 	648-S.)
Labor costs 	appear to have 	been at 	least 	one 	factor
considered 	in the 	decision to 	subcontract. 	The 	layoff 	resolution
adopted by the 	Governing Board 	relied on 	lack 	of 	funds 	as 	an
independent 	reason 	for the 	layoff. 	District 	administrators 	were
faced with 	a 	choice 	between monetary 	concessions 	to 	PFM 	or
bringing 	in 	a 	new 	subcontractor. 	They effectively determined
that 	the 	cost 	of 	subsidizing the 	food 	service made 	it 	too
expensive 	to 	continue 	using their 	own 	employees 	to 	operate 	the
dormitories. 	In negotiations, 	they stated that 	if 	PFM had been
retained, 	it would lead to more layoffs. 	Accordingly, 	labor
costs 	were 	a 	factor 	considered.
Recently, 	the NLRB 	had occasion to 	revisit 	subcontracting of
the 	type 	discussed by the 	Supreme 	Court 	in Fibreboard. 	In Mid-
8In Fremont Union High School 	District 	(1987) 	PERB Decision
No. 	651, 	the Board adopted the definition of the term
"subcontracting" 	from Justice 	Stewart's 	concurring opinion 	in
Fibreboard 	in which he 	defines 	subcontracting as:
. 	. 	. 	substitution of one group of workers 	for another
to perform the 	same 	task 	in the 	same 	[location] 	under
the ultimate control 	of 	same 	employer.
20

State Ready Mix, 	a Division of Torrinqton Industries, 	Inc. 	(1992)
307 NLRB 	809 	[140 	LRRM 1137], 	two employees were replaced with
nonunit 	employees 	and those 	of 	an 	independent 	contractor 	to 	do
the 	same work under 	similar conditions. 	The NLRB 	stated:
. 	. 	. 	Such decisions, 	as the Court in First
National Maintenance agreed, 	do not 	involve
"a change 	in the 	scope and direction of 	the
enterprise" 	and thus 	are not 	core
entrepreneurial 	decisions 	which 	are 	beyond
the 	scope 	of 	the 	bargaining obligation
defined in the Act. 	452 U.S. 	at 	667, 	citing
Fibreboard, 	379 U.S. 	at 223 	(Stewart, 	J.,
concurring). 	Thus, 	when the record shows
that 	essentially 	that 	kind 	of 	subcontracting
is 	involved, 	there 	is no need to apply any
further 	tests 	in order to determine whether
the 	decision 	is 	subject 	to 	the 	statutory duty
to bargain. 	The 	Supreme 	Court 	has already
determined that 	it 	is. 	....
Similarly, 	in this 	case, 	the District dormitory employees
were 	simply 	replaced with 	independent 	contractor 	employees 	to do
the 	same work. 	Their layoff was 	not 	the 	result 	of 	an elimination
of 	the 	type 	of 	work they performed. 	The work 	is 	being done 	and
the District 	continues 	to make 	dormitories 	available 	to 	students.
The 	decision 	to 	subcontract 	did not 	turn upon a 	change 	in the
nature and direction of 	the District's operation. 	Therefore, 	the
decision to 	subcontract 	is 	negotiable. 	(Arcata Elementary School
District 	(1996) 	PERB Decision No. 	1163.)
The 	District 	contends 	that 	it 	did not 	contract 	out 	for
dormitory services. 	Rather, 	it has abandoned the dormitory
operation business. 	It 	has delegated to 	the 	Foundation the
responsibility 	for 	dormitory operation 	as 	well 	as 	food 	services.
21

Both 	CSEA and 	the 	District 	rely on 	San 	Diego 	Community
College District 	(1988) 	PERB Decision No. 	662 	(San Diego), 	rev.
in part 	sub. 	nom. 	San Diego Adult Educators v. 	PERB 	(1980) 	223
Cal.App.3d 1124 	[273 	Cal.Rptr. 	53]. 	In San Diego the college
district 	offered non-credit 	classes 	in several 	languages. 	In
March 	1983, 	the 	district 	decided to discontinue 	non-credit
classes 	in German, 	French and Spanish for economic 	reasons.
After pressure 	from the public to reinstate 	the classes, 	in May
1993 	the 	trustees 	directed the 	staff 	to 	restore 	the 	language
classes. 	The 	result 	was 	that 	the 	San Diego 	Community College
District 	Foundation, 	Inc. 	was asked to offer the 	language
classes. 	In June 	1983 	a contract was entered into between the
foundation 	and 	the 	college 	district 	providing 	for 	the 	class
offerings by the 	foundation. 	In August 	1993, 	the district
discontinued 	the 	remaining non-credit 	language 	classes 	and
subcontracted those 	to the 	foundation.
The 	Court 	of Appeal 	determined that 	because 	the 	district 	had
clearly discontinued the German, 	French, 	and Spanish language
courses 	at 	an earlier date, 	the 	subsequent 	arrangement with the
foundation was not 	a matter within the 	scope of bargaining.
However, 	the 	court 	upheld PERB's 	determination that 	there 	had
been 	illegal 	unilateral 	subcontracting of 	the 	remaining 	classes
in August 	1983. 	At 	that 	time, 	there was a contemporaneous
determination to terminate 	the 	jobs 	of 	district 	employees 	and
transfer the work to an outside 	contractor. 	As 	to that 	decision,
an unfair practice 	was 	established.
22

In this 	case, 	there was 	a 	contemporaneous 	decision by the
District 	to 	terminate 	the 	duties 	of 	bargaining members 	and
transfer their work 	to an outside 	contractor. 	At 	no point 	was
there 	a determination that 	the 	dormitories would not 	continue 	in
operation. 	As 	the 	Board and the 	court 	determined 	in San Diego.
such a decision 	is negotiable.
Also 	in San Diego, 	the Board addressed the 	relationship
between 	a 	college 	district 	and a 	foundation 	created pursuant 	to
Education Code 	section 72760. 	Where 	there 	is no 	showing that 	the
foundation is 	an alter ego of 	the 	college district, 	that 	the 	two
entities 	are 	a 	single 	employer or 	that 	third parties 	changed
position based on ostensible 	agency relationship, 	the 	foundation
is 	a 	separate 	entity and not 	subject 	to 	PERB's 	jurisdiction. 	As
in that 	case, 	herein there has been no 	such showing. 	Accordingly,
the 	Foundation must 	be 	considered a 	separate 	entity. 	Therefore,
the District 	is 	correct when it 	argues 	that 	it 	is 	the 	Foundation
and not 	the 	District 	which 	contracted with Lumberjack 	for 	the
operation of 	the dormitories. 	However, 	such a determination does
not 	absolve 	the 	District 	of 	its 	obligation to bargain with CSEA.
As 	did the 	college 	district 	in San Diego, 	the District 	agreed to
contract 	out part 	of 	its 	operations 	to 	its own 	foundation. 	This
agreement was 	formalized by the 	June 	14, 	1995 	amendment 	to 	the
master agreement 	between the 	District 	and the 	Foundation. 	Since
that 	time, 	work previously performed by bargaining unit 	members
has 	been performed by outside 	employees 	at 	the 	behest 	of 	the
District. 	Using nonunit 	employees, 	the District 	continues 	to
23

offer 	the 	same 	service 	to 	students 	through 	its 	contracting out 	to
the 	Foundation. 	That 	the 	Foundation 	fulfills 	its obligation to
the 	District 	by again 	contracting out 	to 	Lumberjack 	does 	not
excuse 	the 	District's 	bargaining obligation 	to 	CSEA. 	Nor does
the 	District's 	compliance 	with Education 	Code 	requirements 	in 	its
dealings 	with the 	Foundation.
The 	District 	next 	argues 	that 	it 	was 	prevented 	from
completing 	impasse 	procedures 	because 	the 	mediator did not
certify the matter to 	factfinding at 	the 	end of August 	1995.
While 	that may be true, 	it 	is no defense 	to a unilateral 	action
taken three months prior, 	on May 1. 	A unilateral 	change 	occurs
at 	the 	time 	an employer takes 	any action 	to 	change 	the 	status 	quo
on a matter within 	the 	scope 	of 	bargaining without 	having given
the 	exclusive 	representative 	notice 	and 	an 	opportunity 	to 	bargain
prior 	to 	implementing 	the 	change. 	(Pajaro Valley Unified School
District 	, 	supra, 	PERB Decision No. 	51.) 	Agreeing to negotiate
after 	the 	change 	is made 	does 	not 	negate 	the unlawfulness 	of 	the
unilateral 	change. 	(San Francisco.) 	In this case, 	the
District's 	Governing Board approved the 	layoff 	of 	the 	dormitory
employees 	at 	its May 1 meeting. 	The minutes of 	that meeting
reflect 	Gary 	Poertner 	informing 	the 	board 	that 	Lumberjack would
be 	the 	food 	services 	provider effective 	July 	1.9 By May 	1,
Poertner was 	well 	aware 	that 	Lumberjack would not 	provide 	food
services without 	the dormitories. 	Once bargaining began, 	the
9Lumberjack 	did 	take 	over 	the 	operation of 	food 	services 	and
residence halls effective July 1, 	1995.
24

District 	never wavered 	from 	its 	position 	that 	Lumberjack 	operate
the dormitories. 	With regard to the decision to contract 	out,
CSEA was 	presented with a 	fait 	accompli 	on May 	1.
The 	District 	also contends, 	that 	CSEA made no proposals
regarding the 	dormitory positions. 	To the 	contrary, 	the Union
proposed 	several 	times 	that 	the workers 	at 	the 	dormitories be
treated 	in a 	similar 	fashion to the 	food 	service workers when the
contracting out 	of 	that 	service was 	begun 	several 	years 	earlier.
However, 	CSEA need not 	have made 	any proposals. 	A union 	is under
no 	obligation 	to make 	any proposal 	in 	response 	to 	a unilaterally
changed working 	condition. 	(Cloverdale 	Unified 	School 	District
(1991) 	PERB Decision No. 	911.) 	As the Board has stated, 	to do so
"would be 	tantamount 	to 	requiring 	it 	to recoup 	its 	losses 	at 	the
negotiations 	table." 	(San Francisco.) 	Instead, 	a union may
vindicate 	its 	rights 	through PERB's unfair practice procedures.
According 	to 	the 	District 	there was 	no 	time 	for 	lengthy
negotiations 	because 	it 	needed a 	contractor 	in place by the 	time
PFM 	departed. 	A compelling 	operational 	necessity may 	justify 	an
employer's unilateral 	action prior to 	the 	completion of
negotiations 	if 	the 	necessity results 	from a 	sudden unforeseen
occurrence beyond the 	employer's 	control, 	the 	timing precludes
negotiations, 	and there 	is no alternative 	to the 	action taken.10
10Article XIV of 	the 	collective bargaining agreement, 	which
permits 	the 	District 	to 	"contract 	out 	work without 	prior
notification, or bargaining due 	to an emergency situation." 	That
article 	also 	defines 	emergency as 	a 	sudden 	serious 	development
"resulting 	in a 	relatively temporary change 	in 	circumstances 	and
demanding 	immediate 	action." 	The 	article was not 	meant 	to be 	a
waiver of 	CSEA's 	bargaining 	rights 	when a 	long-term or permanent
25

(Calexico Unified School District 	(1983) 	PERB Decision No. 	357;
San 	Francisco.)
The 	District 	has 	not 	demonstrated a 	compelling operational
necessity. 	The 	sudden occurrence 	on which the 	District 	relies 	is
the 	loss 	of 	PFM as 	the 	food service provider, 	an event 	neither
unforeseen nor out 	of 	the District's 	control. 	Administrators had
been considering a 	change 	at 	least 	since November of 	1994.
Additionally, 	since 	1987 	the 	District 	had agreed to 	a 	90-day
cancellation clause 	in the 	PFM contract. 	If 	that 	clause 	resulted
in serious 	time 	constraints, 	they were 	self-imposed.
Nor 	did 	the 	timing preclude 	negotiations. 	Gary Poertner
knew during 	discussions 	with Lumberjack, 	immediately after
receiving PFM's March 30 	cancellation, 	that 	there were 	"problems
we 	had to work out 	internally with CSEA" 	because 	of 	the
dormitories. 	A month passed before 	the Union was 	given notice
and an opportunity to bargain; 	meaningful 	negotiations 	could have
taken place 	in the 	interim.
Nor 	has 	the 	District 	established 	that 	no 	real 	alternatives
existed, 	only that 	there was but 	one 	alternative preferred. 	No
other options were 	seriously explored 	(e.g., 	other 	food
contractors or self-operation). 	In sum, 	the District was not
excused 	from 	its 	duty to 	negotiate 	and 	free 	to 	take 	unilateral
action by 	its 	claim of 	operational 	necessity.
change 	is made 	and time 	is 	available 	for negotiations.
Accordingly, 	applicable 	labor law principles, 	rather than Article
XIV, 	are used to assess 	to 	the District's business necessity
defense.
26

The 	District's 	decision 	to 	contract 	out 	the 	operation of 	the
dormitories 	was within the 	scope 	of 	bargaining. 	For the 	reasons
discussed, 	the 	District's 	defenses 	are 	not 	supported by the
evidence or the applicable 	law. 	Accordingly, 	it 	is 	concluded
that 	the District violated subdivision 	(c) 	of 	section 3543.5 	of
the 	EERA. 	This 	same 	conduct 	interfered with CSEA's 	right 	to
represent 	employees 	in the bargaining unit 	in violation 	of
section 3543.5(b).
The 	District's 	failure 	to negotiate 	in good 	faith
concurrently interfered with 	individual 	employees' 	rights 	to be
represented by CSEA, 	a right guaranteed by EERA. 	Therefore, 	it
is 	found that 	the District violated subdivision 	(a) 	of 	section
3543.5 of 	that Act.
The 	Child Development 	Center
The 	second 	complaint 	alleges 	that 	the 	District 	unilaterally
eliminated 	the 	classifications 	of 	Child Development 	Specialist,
Child Development Aide 	and Senior Clerk Typist 	at 	the 	CDC and
replaced 	them with ECE 	Program Specialist, 	ECE 	Program Associate
and 	Intermediate 	Clerk Typist 	at 	lower 	salaries. 	Two
classifications 	were 	eliminated and 	replaced by new ones. 	The
change 	in 	the 	typist 	position 	involved 	a 	decision 	to 	reclassify a
position. 	The 	District 	argues 	that 	neither decision required
negotiations.
In Alum Rock Union Elementary School 	District 	(1983) 	PERB
Decision No. 	322 	(Alum Rock), 	the Board recognized that a public
school 	employer has 	an overriding 	interest 	in determining which
27

functions 	are 	necessary and which 	functions 	are 	not 	necessary to
accomplish its mission. 	Accordingly, 	when management 	creates 	a
new classification 	to perform 	a 	function 	not 	previously performed
or 	to 	abolish 	a 	classification 	and 	cease 	engaging 	in 	the 	activity
previously performed by employees 	in 	that 	classification, 	it 	need
not negotiate 	that 	decision.11 However, 	the mere 	transfer of
existing 	functions 	from one 	classification 	to 	another 	involves 	no
overriding management 	prerogative. 	To 	require 	negotiations 	of
such a decision does 	not 	significantly diminish 	an 	essential
managerial 	control. 	Thus, 	where an existing classification is
merely replaced by a. new classification to do the 	same work under
similar conditions, 	the decision to transfer duties 	is
negotiable.
Based on 	its 	holding 	in Alum Rock, 	the 	Board has 	also held
that 	an employer has 	a duty to negotiate over the 	rights 	of
incumbent 	employees 	in existing 	classifications 	which 	are
eliminated 	and 	replaced by newly 	created 	classifications.
(Healdsburg Union School District 	(1984) 	PERB Decision No. 	375.)
This 	case 	falls 	squarely under 	the 	case 	law of Alum Rock 	and
its progeny. 	As discussed, 	the duties of 	Child Development
Specialist 	and 	Child Development 	Aide 	were 	incorporated 	into 	the
new classifications 	of 	ECE 	Program Specialist 	and ECE 	Program
Associate. 	This 	conclusion 	is 	supported by the 	clear 	language 	of
•"••"•Management 	remains 	obligated to negotiate 	the 	effects 	of
its 	decisions 	which 	fall 	within the 	scope 	of 	representation.
(Solano 	County Community College District 	(1982) 	PERB Decision
No. 	219.)
28

the 	job 	specifications 	and 	the 	testimony of 	the 	replaced
incumbents. 	There 	are 	some 	additional 	and different 	duties
listed in the new classifications. 	However, 	all 	of 	the duties
considered essential 	on 	the previous 	duty 	statements 	remain.
There 	has 	been 	some 	reorganization and 	change 	in curriculum
at 	the CDC. 	The director of 	the CDC reports 	to the dean of
humanities, 	integrating the program more with the 	academic 	side.
However, 	that 	change was made 	in early 1994. 	There 	is an
emphasis 	on 	child-centered and emergent 	curriculum. 	However, 	CDC
Director 	Larson 	had been making 	this 	change 	with 	incumbent 	staff
during the 	1994-95 	school year. 	Accordingly, 	neither the
reorganization 	nor 	the 	changing 	curriculum excuse 	the 	District
obligation 	to bargain over 	the 	new 	job 	classifications 	created 	in
June 	of 	1995. 	Because most 	of 	the primary duties 	and job
conditions 	remain, 	the action taken at 	the 	CDC 	in the 	summer of
1995 	was 	primarily a 	transfer of 	existing 	functions 	and duties
from one 	classification to another. 	The 	creation of 	the 	two new
classifications was 	within the 	scope 	of bargaining. 	(Alum Rock.)
The 	change 	in the 	typist 	job at 	the 	CDC did not 	involve 	a
new classification. 	The 	District 	simply reclassified 	the
position 	downward and paid 	less 	money 	for performance 	of 	the 	same
duties. 	Such a decision is 	also clearly within the 	scope of
bargaining. 	(Healdsburg, 	supra, 	PERB Decision No. 	3 75; Alum
Rock.)
The 	District 	makes 	two 	arguments 	that 	CSEA waived 	its 	right
to bargain CDC 	issues. 	Neither argument 	is based on the
29

contractual 	waiver 	originally 	asserted when 	the 	District 	first
refused to negotiate.12 The District 	first 	argues 	that 	CSEA
made 	no proposals 	regarding the 	CDC 	and 	ignored 	the 	District's
request 	for proposals 	at 	the May 4, 	May 8 	and May 10
negotiations. 	However, 	those negotiations were devoted to the
dormitory 	issue 	and 	a 	review of 	the 	testimony 	cited by 	the
District makes no reference to the 	CDC. 	Further, 	the Union had
no notice 	regarding 	the 	decision 	to 	create 	two 	new
classifications 	at 	the CDC until 	it was made aware 	of 	the
newspaper advertisement 	of 	June 	18. 	Yagi 	informed CSEA of 	the
reclassification 	of 	the 	clerical 	position and possible 	changes 	in
other positions only days earlier, 	on June 	12. 	Accordingly, 	no
waiver of 	bargaining 	rights 	was 	demonstrated during 	the 	May
negotiations.
The 	District 	also contends 	that, 	based on a 	"long-standing
practice", 	CSEA has waived any right 	to negotiate 	the 	salaries of
new positions.13 A waiver defense 	requires 	that 	an 	employer
demonstrate by clear and unmistakable 	contract 	language 	or '
behavior 	that 	a union has 	waived a 	reasonable 	opportunity 	to
12Within 3 	days of the newspaper advertisement, 	CSEA made a
demand to bargain over 	the 	position 	changes 	and 	salaries.
Because 	the 	issue was 	not 	limited to 	layoffs 	and because 	3 0 	days
had not passed there 	appears 	to be 	no 	real 	argument 	for
contractual 	waiver under Article 	XV.
13The 	new 	classification 	of 	ECE 	Program 	Specialist 	was
assigned a 	salary of 	$1626 	per month, 	less 	than any of 	the 	salary
steps 	for 	the 	replaced Child Development 	Specialist 	under 	the
collective bargaining agreement. 	The 	ECE 	Program Associate 	was
assigned an hourly wage 	of 	$7.36, 	compared to a 	top 	step of 	$7.62
for 	Child Development 	Aide.
30

bargain over 	a 	decision not 	firmly made. 	(Los Angeles 	Community
College District 	(1982) 	PERB Decision No. 	252.) 	To establish a
practice, 	the District primarily relies 	on 	two 	statements 	by
Yagi., 	who has been the director of human resources 	since November
1992. 	The 	first 	is 	her statement 	that placement 	on the 	salary
schedule 	has 	never been negotiated. 	That 	statement 	is 	not
supported by any examples 	of 	past 	actions 	which 	could establish a
fixed practice 	readily ascertainable 	by both 	sides. 	Accordingly,
it 	cannot 	be 	the basis 	for a 	finding of 	a 	"long-standing
practice."
The 	second statement 	is 	that 	it was Yagi's 	"understanding"
that 	negotiations 	did not 	take place 	regarding 	the 	Ewing 	&
Company classification and 	salary study of 	January 30, 	1989,
nearly four years prior 	to Yagi's 	employment 	at 	the 	college. 	No
background for the 	"understanding" 	was given. 	However, 	Carole
Polasek, 	who had become 	the 	CSEA chapter president 	thirty days
prior 	to 	the 	delivery of 	the 	study recalls 	meeting with 	the
employer 	regarding 	recommended 	changes 	of 	placement 	on 	the 	salary
schedule. 	The Union then 	ratified those 	recommendations.
Polasek 	stated 	that 	there 	were 	no 	negotiations 	because 	the
parties 	agreed on the 	study's 	recommendations. 	Accordingly, 	the
actions 	of 	the 	parties 	regarding 	the 	Ewing 	study do not 	evidence
a bargaining waiver.
Additionally, 	CSEA Labor Representative 	David Young 	credibly
testified 	that 	the 	parties 	had negotiated over 	the 	salary
placement 	for 	a new 	classification 	in 	1992 	and two 	reclassified
31

positions 	in 	1995. 	The District's burden to establish a 	clear
and unmistakable 	bargaining waiver 	has 	not 	been met.
The 	District's 	decision 	to 	create 	two 	new 	job 	classifications
and 	salary levels 	and to 	reclassify one 	typist 	position 	at 	the
CDC were within the 	scope of bargaining. 	As determined, 	the
District's 	defenses 	to 	its 	refusal 	to bargain are 	not 	supported
by the evidence and the applicable 	law. 	Therefore, 	it 	is
concluded that 	the District 	violated subdivision 	(c) 	of 	section
3543.5 	of 	the 	EERA. 	This 	same 	conduct 	interfered with CSEA's
right 	to 	represent 	employees 	in the 	bargaining unit 	in violation
of section 3543.5(b).
The 	District's 	failure 	to 	negotiate 	in good 	faith
concurrently 	interfered with 	individual 	employees' 	right 	to be
represented by CSEA, 	a right 	guaranteed by the 	EERA. 	Therefore,
it 	is 	found that 	the District violated subdivision 	(a) 	of 	section
3543.5 	of that Act.
REMEDY
Under section 3541.5(c), 	PERB is empowered to:
. 	. 	. 	issue a decision and order directing an
offending party 	to 	cease 	and desist 	from 	the
unfair practice 	and 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.
Here 	it 	has 	been 	found 	that 	the 	District 	violated EERA when
it 	unilaterally 	subcontracted the 	operation of 	the 	dormitories 	to
the 	Foundation. 	This 	same 	conduct 	was 	found to 	interfere with
CSEA's 	rights 	to 	represent 	bargaining unit 	members 	and
32

constituted 	interference with bargaining unit members' 	right 	to
be 	represented by CSEA. 	It 	is 	appropriate 	to order 	the 	District
to 	cease 	and desist 	from such activity in the 	future. 	It 	is
further 	appropriate 	to order 	the 	District 	to 	restore 	the 	status
quo ante, 	that 	is, 	to rescind any current arrangement with the
Foundation 	to provide 	for dormitory operations 	as 	were 	agreed
upon in June 	of 	1995. 	(See 	San Diego Community College District
(1988) 	PERB Decision No. 	662.)
In this 	case, 	the parties 	did meet 	after the unilateral
change 	and 	attempt 	to 	reach 	an 	accommodation 	regarding
contracting out 	of 	dormitory operations. 	An agreement 	in this
area 	could well 	be 	in the 	best 	interests 	of both parties 	and
avoid the necessity of a return to the 	status quo. 	Therefore, 	it
shall 	be ordered that, 	within 	10 	days 	of 	service 	of 	this proposed
decision, 	the 	District 	offer to meet 	and negotiate with CSEA
regarding changes 	at 	the 	dormitories 	and 	to 	thereafter meet 	and
negotiate 	in good faith. 	If 	these negotiations 	do not produce
agreement 	then, 	upon demand from CSEA, 	the District will 	be
ordered 	to 	reinstate 	the 	three 	bargaining unit 	employees 	to 	the
positions which existed prior to the unlawful 	change. 	It 	is
further 	appropriate 	to pay the 	employees 	all 	wages 	and benefits
lost by the unlawful 	act, 	interest 	on back pay shall 	be 	awarded
at 	the 	rate of 	7 percent per annum.14
14PERB 	last 	considered the 	appropriate 	amount 	of 	interest 	to
award with back pay in the 	case of Mt. 	San Antonio Community
College District 	(1988) 	PERB Decision No. 	691 	(Mt. 	San Antonio).
There, 	the 	Board adopted the 	California 	Code 	of 	Civil 	Procedure
(CCP) 	section 685.010 	for determining the 	rate of 	interest.
33

It 	is 	also been 	found that 	the 	District 	violated EERA when
it 	unilaterally 	created 	two 	new 	classifications 	and 	reclassified
one position at 	the 	CDC. 	This 	same 	conduct was 	found to
interfere 	with 	CSEA's 	rights 	to 	represent 	bargaining unit 	members
and 	constituted 	interference 	with bargaining unit 	members' 	rights
to be 	represented by CSEA. 	It 	is 	appropriate 	to order the
District 	to 	cease 	and desist 	from 	such activity 	in the 	future.
It 	is 	further appropriate, 	to order the District 	to restore the
status quo ante, 	that 	is, 	to return the conditions of employment
for bargaining unit 	employees 	at 	the 	CDC 	to 	that 	which existed
prior 	to 	the unlawful 	act. 	(Rio Hondo 	Community College 	District
(1983) 	PERB Decision No. 	292.) 	The District will be ordered to
reinstate 	those 	employees 	who were 	laid off 	as 	a result 	of 	the
June 	decision and make 	these 	affected employees 	whole 	for 	any
wages 	or other benefits 	lost 	as 	a 	result 	of 	the 	unlawful
unilateral 	change. 	It 	is 	further appropriate to restore 	to the
employees 	all 	wages 	and benefits 	lost 	by the unlawful 	act.
Interest 	on 	such back pay shall 	be 	awarded at 	the 	rate 	of 	7
percent 	per 	annum.15
Currently, 	that 	section sets the rate at 	10 percent. 	However,
subsequent 	to the Board's decision in Mt. 	San Antonio, 	an
appellate 	court 	concluded 	that 	local 	government 	entities,
including public 	school 	districts, 	are 	exempted 	from CCP 	section
685.010. 	Therefore, 	the rate 	for a public 	school 	employer is 	7
percent, 	as 	specified in California Constitution Article XV,
section 	1. 	(See 	San Francisco Unified School District v. 	San
Francisco 	Classroom Teachers Association 	(1990) 	222 	Cal.App.3d
146 	[272 Cal.Rptr. 	38].)
15CSEA requests that, 	regarding positions at the CDC, 	the
cease 	and desist 	order run 	the 	length of 	the 	current 	collective
bargaining agreement 	between the parties. 	Such request 	appears
34

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. 	Posting 	such a notice will 	provide 	employees
with notice 	that 	the 	District 	has 	acted 	in an unlawful 	manner and
is 	being 	required 	to 	cease 	and desist 	from this 	activity and will
comply with that 	order. 	It 	effectuates 	the purposes 	of 	EERA that
employees 	will 	be 	informed of 	the 	resolution of 	the 	controversy
and will 	announce 	the 	readiness 	of 	the 	District 	to 	comply with
the ordered remedy. 	(Davis Unified School District, 	et 	al.
(1980) 	PERB Decision No. 	116; 	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 3541.5(c), 	it 	is hereby ordered that the Redwoods
Community College 	District 	(District) 	and 	its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate 	with
the 	California School 	Employees Association 	(CSEA) 	about 	the
to mirror 	CSEA arguments 	in 	its motion to 	amend the 	complaint.
Therein, 	CSEA argued that 	the 	subject 	unilateral 	actions
constitute 	a repudiation of 	the 	current 	agreement, 	specifically
the 	zipper clause. 	The 	remedy request 	is 	denied based on the
reasons 	given 	for the 	earlier denial 	of 	CSEA's motion.
35

contracting out 	of 	dormitory 	services 	and 	the 	change 	in 	job
classifications 	at 	the 	Child Development 	Center.
2. 	Denying CSEA its 	right 	to 	represent 	bargaining
unit members 	in 	their employment 	relations with the 	District.
3. 	Denying bargaining unit 	members 	their right 	to be
represented 	by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES OF THE ACT:
1. 	Within 10 	days 	of 	service of 	this proposed
decision, 	the District 	shall 	offer to meet 	and negotiate with
CSEA regarding 	the 	contracting 	out 	of 	dormitory operations 	and
thereafter 	shall 	meet 	and negotiate 	in good 	faith.
2. 	Upon demand from CSEA, 	restore one dormitory
assistant/custodian 	and 	two 	assistant 	dormitory manager 	positions
as existed prior to June 	2, 	1995, 	with accompanying salary and
benefits 	and offer the positions 	to employees 	incumbent 	at 	the
time of 	the unilateral 	action.
3. 	Restore one 	Senior Clerk Typist, 	two Child
Development 	Specialist, 	and one 	Child Development 	Center Aide
positions as 	existed prior to June 	2, 	1995, 	with accompanying
salary and benefits 	and offer 	the 	positions 	to 	employees
incumbent 	at 	the 	time of 	the unilateral 	action.
4. 	Pay to the affected employees 	lost 	earnings 	as 	a
result 	of 	the 	eliminated jobs. 	The back payment 	shall be
augmented with 	7 	percent 	per 	annum 	interest.
5. 	Within 	10 	days of 	service of 	this proposed
decision, 	post 	at 	all work 	locations where notices 	to employees
36

customarily are placed, 	copies 	of 	the notice attached as 	an
appendix hereto. 	Such posting 	shall 	be maintaine	
. d 	for a period
of thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken to 	ensure 	that 	said notices 	are not 	reduced 	in 	size,
altered, 	defaced or 	covered by any other material.
6. 	Upon issuance of 	a final 	decision, 	make written
notification 	of 	the 	actions 	taken to 	comply with the 	Order to 	the
San Francisco Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in 	accord with the 	director's 	instructions.
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 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 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
" . . . 	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 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
37

accompany each 	copy 	served on 	a party or 	filed with 	the 	Board
itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs. 	32300, 	32305 and
32140.)
mighe
I\ 	I 	I 	- 	~
'-'-)!'::\--'-i/1"--l:,t_"'--
Bernard 	McMonigle
Administrative 	Law 	Judge
38
--