San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652 (PERB 1270E)

d & Romo by Sherry G. Gordon, Attorney, for San
Appearance§:l; 	Alan S. Hersh and Madalyn J. Frazzini, Attorneys,
Case Nos. LA-CE-3655
CALIFORNIA SCHOOL EMPLOYEES
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Charging 	Party,
.V.
SAN BERNARDINO CITY UNIFIED SCHOOL
DISTRICT,
Respondent.
LA-CE-3682
PERB Decision No. 1270
June 22, 1998
Bernardino City Unified School District.
OVERRULED IN PART by Contra Costa Community College
District (2019) PERB Decision No. 2652
STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION,	ASSOCIATION,
Charging Party,
v.
SAN BERNARDINO 	CITY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
Case Nos. 	LA-CE-3655
LA-CE-3682
PERB Decision No. 	1270
June 	22, 	1998
Appearances ; 	Alan s. 	Hersh and Madalyn J. 	Frazzini, 	Attorneys,
for 	California School 	Employees Association; 	Atkinson, 	Andelson,
Loya, 	Ruud 	& Romo by Sherry G. 	Gordon 1 	Attorney, 	for San
Bernardino 	City Unified School 	District.
for California School Employees Association; Atkinson, Andelson,
JOHNSON, Member: This case comes before the Public
DECISION
Before Johnson, Dyer and Amador, Members.
Loya, Ruu
Employment Relations Board (PERB or Board) on exceptions filed by
the San Bernardino City Unified School District (District) to a
proposed decision of a PERB administrative law judge (ALJ)
(attached) . In his decision, the ALJ held that the District
violated section 3543.5 (a) , (b) , (c) and (d) of the Educational
Employment Relations Act (EERA)' in various ways.
Before Johnson, 	Dyer and Amador, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case 	comes 	before 	the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
the 	San Bernardino 	City Unified School 	District 	(District) 	to 	a
proposed 	decision 	of 	a 	PERB 	administrative 	law 	judge 	(ALJ)
(attached). 	In his 	decision, 	the ALJ held that 	the District
violated section 3543. 5 (a), 	(b), 	(c) 	and 	(d) 	of the Educational
Employment 	Relations Act 	(EERA) 1 	in various ways.
EERA is codified at Government Code section 3540 et seq.
Section 3543.5 states, in pertinent part:
(a)
It shall be unlawful for a public school
employer to do any of the following:
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
1EERA 	is 	codified at 	Government 	Code 	section 	3540 	et 	seq_
Section 3543.5 	states, 	in pertinent part:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to 	do 	any of 	the 	following:
(a) 	Impose 	or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or otherwise
to 	interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
)
)
)
))
)
)
)
) )
)	___________________ ) ·

The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including 	the proposed decision, 	the District's 	exceptions 	and
the 	California 	School 	Employees Association's 	response.2 The
Board concurs 	that 	it 	is 	in the best 	interests 	of 	the parties and
consistent with 	the purposes 	of 	the 	EERA to grant withdrawal,
with prejudice, 	of 	those portions 	of 	the unfair practice 	charge
and complaint 	in Case No. 	LA-CE-3682 	that 	relate 	to the 	commuter
policy allegations. 	The Board finds 	the 	remaining portions 	of
the proposed decision 	to be 	free 	of prejudicial 	error and hereby
adopts 	them as 	the decision of 	the Board 	itself.
ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and upon the entire record in this matter, 	it 	is 	found the
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.
(d) 	Dominate or interfere with the 	formation or
administration of any employee organization, 	or
contribute 	financial 	or other support 	to 	it, 	or 	in any
way encourage 	employees 	to 	join any organization 	in
preference 	to another.
2The parties 	have 	jointly 	informed 	the 	Board 	that 	they have
satisfactorily 	resolved 	their 	dispute 	concerning 	the 	District's
commuter policy, 	and request 	that 	the Board 	issue 	an order
allowing the withdrawal, 	with prejudice, 	of all allegations 	in
Case No. 	LA-CE-3682 	which concern the District's 	commuter policy,
as well 	as 	the 	simultaneous withdrawal 	of 	all 	District 	exceptions
to 	the proposed 	decision based upon 	the 	commuter policy
allegations.
22

San Bernardino 	City Unified School 	District 	(District) 	violated
the 	Educational 	Employment Relations Act 	(EERA), 	Government 	Code
section 3543.5(a), 	(b), 	(c) and (d), by: 	(1) unilaterally
implementing sick leave review policies; 	(2) 	refusing to provide
the 	California School Employees Association 	(CSEA) 	with commuter
agreement 	information; 	(3) 	threatening CSEA; 	(4) 	refusing to
provide CSEA with employee addresses; 	and 	(5) 	engaging 	in bad
faith 	surface 	bargaining 	with 	CSEA.
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. 	Unilaterally 	implementing 	sick 	leave 	review
policies within the 	scope 	of 	representation 	in the absence 	of 	a
waiver of 	CSEA's 	right 	to negotiate.
2. 	Refusing, 	without legal justification, 	to provide
CSEA with 	relevant 	and necessary 	information, 	including but 	not
limited to employee 	addresses, 	upon a proper request by CSEA.
3. 	Threatening 	CSEA for protected activity.
4. 	Engaging 	in bad 	faith bargaining with CSEA.
5. 	Encouraging employees 	in any way to 	join any other
employee 	organization 	in preference 	to 	CSEA.
6. 	By the same conduct, 	denying CSEA its 	rights.
7. 	By the 	same 	conduct, 	interfering with the rights
of 	employees 	to be 	represented by CSEA.
33

B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	If 	requested by CSEA, 	meet and negotiate 	in good
faith with CSEA 	concerning 	sick 	leave 	review policies.
2. 	If 	requested by CSEA, 	reinstate 	the prior leave
policies 	and practices.
3. 	Make whole 	those unit members adversely affected
by the sick leave review policies, 	as 	follows:
a. 	All 	documents placed in unit members'
personnel 	files pursuant 	to the policies, 	including but not
limited to step 2, 	step 3 	and step 4 notices, 	shall be 	removed.
Step 	3 	and 	step 	4 	notices may be 	replaced by the 	documents
previously 	in use 	that 	dealt 	with verification of 	absences 	but
did not 	refer to discipline. 	Disciplinary warnings 	and
reprimands may be 	reimposed only 	on 	the basis 	of 	previous
policies 	and practices.
b. 	Unit members 	who 	received 	substandard
attendance/punctuality evaluations 	pursuant 	to 	the policies 	shall
be 	reevaluated pursuant 	to previous 	policies 	and practices.
c. 	Any docking 	of 	pay or 	suspension 	or dismissal
pursuant 	to 	the policies 	shall 	be 	rescinded. 	Any such docking,
suspension or dismissal 	may be 	reimposed only on 	the basis 	of
previous policies and practices. 	Unless 	the actions 	are 	thus
reimposed, 	the affected employees 	shall 	receive back pay with
interest at 	the 	rate of 	7 percent per annum, 	and the dismissed
employees 	shall 	be 	reinstated.
4. 	Within ten 	(10) 	days 	following the date 	this
4

Decision is 	no 	longer subject 	to appeal, 	post at 	all work
locations 	where 	notices 	to 	classified 	employees 	customarily are
posted, 	copies 	of 	the Notice attached hereto as 	an Appendix. 	The
Notice must be 	signed by an authorized agent 	of 	the District,
indicating 	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 ensure
the Notice 	is not 	reduced in size, 	altered, 	defaced or covered
with any 	other material.
5. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	Sacramento Regional 	Director of 	the
Public 	Employment 	Relations 	Board, 	in accord with the 	regional
director's 	instructions.
It 	is 	further ORDERED 	that 	the portions 	of 	the unfair
practice 	charge and complaint 	in Case No. 	LA-CE-3682 	that 	relate
to 	the District's 	commuter policy allegations 	and 	the 	exceptions
to 	the proposed decision 	regarding 	those 	allegations 	are
WITHDRAWN WITH PREJUDICE. 	Accordingly, 	all 	the portions 	of 	the
proposed decision which 	concern 	the District's 	commuter policy
are VACATED.
Members 	Dyer and Amador 	joined 	in 	this Decision.
55

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. 	LA-CE-3655 	and
LA-CE-3682, 	California School 	Employees Association v.
San Bernardino City Unified School 	District, 	in which all 	parties
had the 	right 	to participate, 	it has been found that 	the
San Bernardino 	City Unified 	School 	District 	violated 	the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b), 	(c) and (d), by: 	(1) unilaterally
implementing sick leave 	review policies; 	(2) 	refusing 	to provide
the 	California School 	Employees Association 	(CSEA) 	with 	commuter
agreement information; 	(3) 	threatening CSEA; 	(4) 	refusing to
provide CSEA with employee addresses; 	and 	(5) 	engaging 	in bad
faith 	surface 	bargaining with CSEA.
As a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	implementing 	sick 	leave 	review
policies within the 	scope 	of 	representation 	in the 	absence 	of 	a
waiver of 	CSEA's 	right 	to negotiate.
2. 	Refusing, 	without legal 	justification, 	to provide
CSEA with 	relevant 	and necessary 	information, 	including but 	not
limited to employee 	addresses, 	upon a proper request by CSEA.
3. 	Threatening 	CSEA for protected activity.
4. 	Engaging 	in bad 	faith bargaining with CSEA.
5. 	Encouraging 	employees 	in any way 	to 	join any 	other
employee 	organization in preference 	to 	CSEA.
6. 	By the same conduct, 	denying CSEA its 	rights.
7. 	By the same 	conduct, 	interfering with the 	rights
of 	employees 	to be 	represented by CSEA.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	If 	requested by CSEA, 	meet and negotiate 	in good
faith with 	CSEA 	concerning 	sick 	leave 	review policies.
2. 	If 	requested by CSEA, 	reinstate 	the prior leave
policies 	and practices.

3. 	Make whole 	those unit members 	adversely affected
by the sick leave review policies, 	as 	follows;
a. 	All 	documents placed in unit members'
personnel 	files pursuant 	to the policies, 	including but not
limited to step 2, 	step 3 	and step 4 notices, 	shall be removed.
Step 	3 	and step 	4 	notices 	may be 	replaced by the 	documents
previously 	in use 	that 	dealt 	with verification of 	absences 	but
did not 	refer to discipline. 	Disciplinary warnings 	and
reprimands may be 	reimposed 	only on 	the basis 	of 	previous
policies 	and practices.
b. 	Unit members 	who 	received 	substandard
attendance/punctuality evaluations 	pursuant 	to 	the 	policies 	shall
be 	reevaluated pursuant 	to previous policies 	and practices.
c. 	Any docking 	of pay or 	suspension or dismissal
pursuant 	to 	the policies 	shall be 	rescinded. 	Any such docking,
suspension or dismissal may be 	reimposed only on 	the basis 	of
previous policies and practices. 	Unless 	the actions are 	thus
reimposed, 	the affected employees 	shall 	receive back pay with
interest at 	the 	rate of 	7 percent per annum, 	and the dismissed
employees 	shall 	be 	reinstated.
DATED: 	SAN BERNARDINO 	CITY 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.
22

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
SAN BERNARDINO 	CITY UNIFIED
SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case Nos. 	LA-CE-3655
LA-CE-3682
PROPOSED 	DECISION
(1/14/98)
Appearances: 	Madalyn J. 	Frazzini and Alan S. 	Hersh, 	Staff
Attorneys, 	for California School Employees Association; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo, 	by Sherry G. 	Gordon, 	Attorney, 	for
San Bernardino 	City Unified School 	District.
Before Thomas J. 	Allen, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
In this case, 	a union of classified employees alleges a
school 	district 	unilaterally 	changed 	sick 	leave 	policy and
committed other unfair practices. 	The 	school district 	denies 	it
committed any unfair practices.
The 	California 	School 	Employees Association 	(CSEA) 	filed an
unfair practice 	charge 	(LA-CE-3655) 	against 	the 	San Bernardino
City Unified School District 	(District) 	on March 26, 	1996,
alleging 	the 	District 	unilaterally 	changed policy by 	implementing
a building 	services 	sick 	leave 	review policy. 	CSEA filed a
second charge 	(LA-CE-3682) 	against 	the District on May 30, 	1996,
alleging the 	District 	committed other unfair practices. 	The
Office 	of 	the 	General 	Counsel 	of 	the 	Public 	Employment 	Relations
Board 	(PERB) 	issued complaints 	against 	the District 	on July 	10
)
)
)
)
)
)
)
)
)
)
)
______________ )

and October 4, 	1996. 	The District 	filed answers to the
complaints on July 19 and October 23, 	1996, 	denying it had
committed any unfair practices. 	PERB held 	informal 	settlement
conferences 	with CSEA and the 	District 	on August 	28 	and October
30, 1996.
PERB consolidated the two cases on November 14, 	1996, 	and
held a 	formal 	hearing on the 	consolidated cases 	on December 	18-
19, 	1996, 	and January 6-9, 	February 3-7, 	and March 10-12, 	1997.
During and after hearing, 	some 	allegations were withdrawn or
dismissed. 	After the 	filing of post-hearing briefs, 	the
remaining allegations were 	submitted 	for decision on August 	12,
1997.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer under 	the
Educational 	Employment 	Relations Act 	(EERA).1 CSEA is 	an
employee 	organization under EERA and 	is 	the 	exclusive
representative 	of 	the 	District's 	classified employee 	bargaining
unit. 	The District 	is the tenth largest 	school 	district 	in
California and has 	some 	2000 	classified employees. 	Of 	those,
some 	200 	work in the building services department 	and some 	3 00
work 	in the 	nutrition 	services 	department.
CSEA and the 	District 	were parties 	to 	a 	collective
bargaining agreement executed on November 17, 	1992 	(Agreement).
According to Article XXIV 	(Term of Agreement), 	Section 1
1EERA is 	codified at 	Government 	Code 	section 3540 	and
following. 	Unless 	otherwise 	indicated, 	all 	statutory references
are to the Government 	Code.
22

(Duration), 	the Agreement was in effect 	"through September 30,
1995, 	and from year to year thereafter, 	unless modified or
amended." 	Article XVIII 	(Grievance 	Procedure) 	provided CSEA
could be 	a grievant 	and could 	submit 	grievances 	to binding
arbitration.
From 1977 on, 	Joseph Woodford 	(Woodford) 	was the District's
employee relations director. 	On November 13, 	1995, 	Julie Kossick
(Kossick) 	became 	the 	CSEA representative with responsibility 	for
the District. 	For the three months before 	Kossick's 	employment,
CSEA representative Don Evans 	(Evans) 	had that 	responsibility.
On March 12, 	1996, 	CSEA informed Woodford a decertification
effort 	was 	being mounted against 	CSEA by 	San Bernardino
Educational 	Support 	Personnel 	(ESP), 	an affiliate of the National
Education Association. 	On June 28, 	1996, 	ESP filed a
decertification petition. 	On November 7, 	1996, 	a PERB agent
determined ESP's 	petition was 	timely and valid but 	the 	election
should be 	stayed 	(at 	CSEA's 	request) 	until 	CSEA's unfair practice
charges could be heard. 	On April 	14, 	1997, 	after the unfair
practice 	hearing was over, 	CSEA withdrew its 	request 	to 	stay the
election.2 Ballots were mailed on May 30, 	1997, 	and counted on
June 24, 	1997. 	CSEA succeeded in remaining the exclusive
representative by receiving 880 	votes, 	while ESP received 307
votes.
2Because of the 	stay, 	I 	had allowed ESP to participate 	in
the 	hearing as 	a 	joined party. 	After CSEA withdrew its 	request
for the 	stay, 	ESP withdrew as a party to this case.
w	
3

Building 	services 	sick 	leave 	review policy
Article 	III 	of 	the Agreement 	(District 	Rights) 	stated in
part as 	follows:
Section 1--District Powers, 	Rights, 	and
Authority. 	It 	is understood and agreed that,
except 	as 	limited by the 	terms 	of 	this
Agreement, 	the District 	retains all of 	its
powers and authority to direct, 	manage, 	and
control 	to 	the 	extent 	allowed by the 	law.
Included in, 	but not 	limited to, 	those duties
and powers 	are 	the 	right 	to: 	Determine 	its
organization; 	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 methods 	and
means 	of providing them; 	establish its
educational policies, 	goals, 	and objectives;
insure 	the 	rights 	and educational
opportunities of 	students; 	determine 	staffing
patterns: 	determine the number and kinds of
personnel 	required; 	maintain the 	efficiency
of District operations; 	determine District
curriculum; 	design, 	build, 	move or modify
facilities; 	establish budget procedures and
determine budgetary allocations; 	determine
the methods of raising revenue; 	contract out
work, 	except where 	specifically prohibited by
the 	Education Code; 	and take 	any action on
any matter in the event of 	an emergency, 	as
provided in Section 3 	herein. 	In addition,
the District retains 	the 	right 	to hire,
classify, assign, evaluate, promote, demote,
----------terminate, 	and discipline employees--. 	This
recital 	in no way limit
----s 	othe-r District
powers 	as 	granted by law.
Section 	2--Limitation. 	The 	exercise 	of 	the
foregoing powers, 	rights, 	authority, 	duties,
and responsibilities by the District, 	the
adoption of policies, 	rules, 	regulations, 	and
practices 	in furtherance 	thereof, 	and the use
of 	judgment 	and discretion 	in connection
therewith, 	shall 	be 	limited only by the
specific 	and express 	terms 	of 	this Agreement,
and then only to 	the 	extent 	such 	specific 	and
express 	terms 	are 	in conformance with 	law.
[Emphasis 	added.]
44

Article XIV of the Agreement 	(Leaves), 	Section 1 	(Sick
Leave), Subsection A(l), stated:
Full-time unit members 	shall 	accrue 	eight 	(8)
hours 	of 	sick 	leave 	for each calendar month
of service.
This 	currently accrued sick 	leave was 	known as 	"earned" 	sick
leave in the District. 	Subsection B(5) 	stated in part:
Sick 	leave of 	no more 	than the 	amount
entitled to per year may be 	granted 	in
advance 	of 	being earned.
This was known as 	"advance" 	sick leave.
Article IV, 	Section 3 	(Verification), 	stated in part:
The District 	shall 	have 	the 	right 	to require
verification 	for 	any 	leave 	taken under 	this
Article XIV as 	a 	condition 	for granting 	the
leave. 	An attending physician's verification
of 	sick 	leave may be 	required 	for good cause
after prior notification to 	the unit 	member.
The 	Rules 	and Regulations 	for 	the 	Classified Service 	adopted by
the 	District's 	Personnel 	Commission 	also 	addressed 	sick 	leave,
but Article XXII of the Agreement 	(Effect of Agreement), 	Section
2 	(Classified Personnel Rules and Regulations), 	stated Personnel
Commission rules 	and regulations 	"shall 	not 	be 	applicable 	to unit
members 	covered by this Agreement."
The 	District's 	Operating Rules 	for Building Services 	set
forth 	the 	following 	Personnel 	Policy on 	Frequent Absences:
The 	Classified Contract 	has 	established 	that
the District has 	the 	right 	to require
verification of 	any leave, 	including sick
leave. 	Good cause exists 	for requiring a
physician's verification 	if 	the employee has:
(1) 	set 	a pattern of 	absences which occurs 	on
certain days 	of 	the week;
5

(2) 	set 	a pattern of 	absences 	which occurs 	on
days preceding or 	following holidays; 	or
(3) 	set 	a pattern of 	excessive 	absences 	on an
annual basis.
If 	one of 	these 	conditions 	exists, 	or other
good 	cause, 	the 	employee will 	be 	counselled
by his/her 	supervisor, 	a 	record of 	the
conference will 	be made, 	and the 	requirement
of 	a 	doctor's 	verification 	of 	illness 	will 	be
enforced.
The 	Operating 	Rules 	otherwise 	noted 	sick 	leave 	was 	governed by
the Agreement.
The 	Operating 	Rules 	stated 	as 	follows 	with 	regard 	to
reporting 	absences:
All 	employees 	must 	notify Building 	Services
that 	they 	are 	going 	to 	be 	absent 	from work,
for 	any reason, 	and when 	they 	are 	ready to---return 	to 	work.
a. 	Maintenance 	employees 	are 	to 	call 	in
prior 	to 	their normal 	reporting 	time.
b. 	Day 	custodians 	must 	call 	in before 	6:45
a.m.
c. 	Night 	custodians 	must 	call 	in before
12:00 	noon.
With 	regard 	to vacation 	leave, 	the 	Operating Rules 	required 	five
days 	prior 	approval.
In June 	1995, 	Ed Norton 	(Norton) 	became 	the District's
building 	services 	director. 	In his 	first 	few weeks 	in 	the
department, 	he 	became 	concerned about 	what 	he 	saw as 	"chronic
sick 	leave 	abuse" 	and 	"non-standard 	application 	of 	discipline."
Norton 	directed 	the 	department's 	managers 	and 	supervisors 	to
develop 	a uniform 	sick 	leave 	review policy. 	He 	appointed
operations 	supervisor William Clayton 	(Clayton) 	as 	facilitator,
6

in part 	because 	Clayton already had 	some 	guidelines 	and 	forms 	for
dealing with 	sick 	leave.
By sometime 	in August 	1995, 	the department 	had a draft
policy, 	and Norton asked employee 	relations 	director Woodford to
meet with department management. 	The 	draft policy was 	reviewed
with Woodford 	item by item, 	to determine 	if 	there were 	conflicts
with the Agreement, 	Personnel 	Commission rules, 	or Board of
Education policies 	and procedures. 	Woodford suggested 	some
changes, 	and Clayton revised the draft. 	Thereafter, 	the policy
was 	explained to 	all 	the 	department's 	supervisors 	and ultimately
disseminated to all 	the 	department's 	employees. 	Norton testified
he 	thought 	the policy was 	disseminated as 	early as August 	1995,
but 	he 	seems 	to have been mistaken; 	all 	the other testimony and
evidence 	indicates 	it was 	disseminated in 	late October 	1995.
The policy as disseminated bore a date of October 26, 	1995,
which was 	apparently its effective date. 	It 	stated in part 	as
follows:
All 	attendance will 	be monitored by
supervisors 	to 	identify potential 	abuse 	of
sick 	leave. 	Conferences 	and progressive
discipline will 	be 	based on 	the 	following 	six
steps 	and the 	"Sick Leave 	Review Policy
Guidelines." 	We will 	begin with the 	first
step, 	listed below, 	and proceed to each
successive 	step 	if 	there 	is no 	improvement 	in
the 	attendance. 	The 	six steps 	are as
follows:
1. 	Identify potential 	abuse of 	sick
leave.
2. 	Conference with employee 	to
determine 	if 	there 	is a verifiable
reason 	for 	the pattern and/or use
of 	sick leave.
7

** 	Give 	employee 	the 	"Building Services
Sick Leave Review Policy" 	packet.
3. 	Conference with employee 	and 	issue
printed 	form 	"Dr.'s 	Verification
Warning Notice."
** On Evaluation, 	indicate
"Improvement Needed" 	under 	item 16
[Attendance/Punctuality].
4. 	Conference with employee 	and 	issue
printed 	form 	"Dr.'s 	Verification
Required."
** On Evaluation, 	indicate
"Unsatisfactory" 	under item 16.
5. 	Recommend Suspension.
6. 	Recommend Dismissal.
The policy then stated it was 	"based, 	in part" 	on Article XIV,
Section 3, 	of the Agreement, 	which it quoted.
The policy went 	on to 	set 	forth the 	following guidelines:
A. 	Sick leave use of 	50% or more OR
six 	instances 	of use 	of 	sick 	leave
(in a 12 month period) 	will be used
as 	indicators 	to 	initiate 	a 	"Use of
Sick Leave" 	conference with an
employee.
B. 	We will 	look 	for established
patterns of sick leave use, 	such as
before or after weekends 	and
holidays 	and on or directly
following 	payday.
C. 	A 	"compassion adjustment" 	will be
made 	to give 	credit 	for justifiable
sick leave. 	The percentages
mentioned in guideline 	"A," 	above,
will 	only 	show 	those 	occurrences
that 	weren't 	documented or
credited.
D. 	A Doctor's 	verification will 	be
required 	for 	chronic 	health
conditions.
Co	
8

E. 	Only 	"earned" 	sick 	leave will be
granted for an employee who has
received a 	"Warning Notice" 	(step
3) 	or greater.
F. 	An employee with a positive 	sick
leave balance 	and not 	in 	some phase
of 	conferences 	under 	the 	Sick Leave
Review Policy, 	may use 	sick 	leave
as appropriate.
G. 	Vacation will 	not be 	granted for
sick 	leave use.
H. 	We will uniformly enforce 	the 	"5
days advance notice" 	for vacation.
I. 	Dates placed on forms must
correspond with 	dates 	actually
absent.
J. 	We will 	"dock" 	an employee's pay
when 	justified.
K. 	Each employee must 	call 	"in person"
to report 	any absence 	for 	sick
leave. 	The procedure 	for this is
as follows:
1. 	Maintenance employees 	on
the 	day shift will 	call
388-6100 	between 	6:00
a.m. 	and 	6:30 	a.m. 	to
report 	their absence.
2. 	Operations 	employees 	on
the 	day shift 	will
continue 	to 	call 	388-6104
between 	6:00 	a.m. 	and
6:30 	a.m. 	to 	report 	their
absence.
L. 	NO 	CALL FOR REPORTING AN ABSENCE
WILL BE ALLOWED TO THE ANSWERING
MACHINE. 	[All capital 	letters in
the 	original.]
M. 	All 	documentation will 	be 	sent 	to
the 	Classified 	Personnel 	Department
to be placed 	in employee's
personnel 	record 	commencing with
step #3, 	above 	(we will 	include the
99

"Conference 	Summary--Use 	of 	Sick
Leave" 	IOC 	[inter-office
communication] 	with that
documentation).
There 	followed a 	series 	of 	forms 	related to the policy.
The 	first 	form was 	the 	step 2 	notice. 	It 	took the 	form of
an 	inter-office 	communication 	(IOC) 	on the 	subject 	"Conference
Summary--Use 	of 	Sick Leave" 	and stated 	in part:
This 	IOC 	confirms 	our 	conference 	held on
to discuss your use 	of 	sick
leave. 	During that conference, 	I provided
you with a 	copy of 	the 	Building Services 	Sick
Leave 	Review Policy 	and 	explained 	the
progressive steps, 	including discipline, 	used
to implement this policy. 	In addition, 	I
reminded you that 	sick 	leave 	is 	a 	conditional
paid 	leave 	that 	ensures 	the 	continuance of
your wages when you 	are 	ill 	or 	injured and
are unable to work. 	It 	is 	important 	that you
only use 	sick 	leave when you 	are prevented
from performing the duties of your job, 	as 	a
result 	of 	illness 	or 	injury.
The 	form then quoted Article XIV, 	Section 3, 	of 	the Agreement.
The 	second form was 	the 	step 3 	notice, 	headed 	"Absenteeism
and Doctors' 	Verification Warning Notice." 	It 	took the 	form of 	a
memo on the 	subject 	"Disciplinary Warning 	- 	Use of 	Sick Leave"
and 	stated as 	follows:
On 	a conference was held
regarding your use 	of 	sick 	leave. 	At 	that
time you were 	informed that:
As 	of 	, 	your sick leave
balance was 	.
You 	have 	used 	days 	since
, 	which is sufficiently
excessive 	to 	justify this 	"Warning
Notice."
Of these days, 	have been used
on 	.
10

Of these days, 	have 	been used
before 	or after weekends 	or
holidays.
If this pattern of absence continues, 	you
will 	be 	required to 	furnish a verification
from your doctor or dentist 	each 	time 	you are
absent 	for illness. 	You may also be 	required
to 	furnish a doctor's 	verification when using
Personal Necessity 	[leave] 	for an 	immediate
family member.
Improvement 	in your attendance 	is 	required
and expected. 	Failure 	to 	improve your
attendance 	may 	result 	in 	further 	disciplinary
action.
A copy of 	the 	form was 	directed 	to 	"Personnel."
The 	third form was 	the 	step 4 	notice, 	headed 	"Doctors'
Verification Required." 	It 	took the 	form of 	a memo on the
subject 	"Reprimand 	- 	Use of 	Sick Leave" 	and stated:
This 	notice 	verifies 	that 	on 	a
conference 	was 	held 	at 	regardin	- 	g 	your
use of 	sick leave. 	At 	that 	time you were
notified, 	in accordance with Article XIV,
section 3 	of 	the 	Collective Bargaining
agreement 	between the 	District 	and the
California School 	Employees Association, 	that
you will 	be 	required to 	furnish written
verification by a physician on 	absences
reported as 	illness until 	further notice.
This 	action has been taken because of:
A pattern 	of 	absence 	which occurs
on certain days 	of 	the week.
A pattern 	of 	absence 	which occurs
on days before 	or after weekends 	or
holidays.
A pattern of 	absence 	on 	an annual
basis which is 	inconsistent 	for
classified employees.
* 	You must 	provide 	the 	doctor's
verification 	immediately upon 	your
return to work.
11

* 	Failure 	to provide 	the 	Doctor's
Verification will 	result 	in loss 	of pay
and will 	be 	recorded as AWOL.
* 	The 	cost 	of 	the physician's 	services 	is
borne by you.
Failure 	to 	comply with this 	directive 	and
requirement 	may result 	in 	further
disciplinary action, 	up 	to 	and 	including
dismissal 	from your 	classified position.
Again, 	a copy of 	the 	form was directed to 	"Personnel."
The 	final 	form was 	headed 	"Building 	Services 	Sick Leave
Review Policy Certification of 	Receipt" 	and 	stated:
I 	certify that 	I 	have 	received a 	copy of 	the
Building 	Services 	Sick 	Leave 	Review 	Policy.
This 	form was 	signed and dated by 	individual 	employees 	when 	the
policy was 	disseminated 	to 	them.
CSEA became 	aware of 	the policy after 	it was 	disseminated.
An employee 	faxed a copy to 	CSEA representative 	Evans, 	who
discussed 	it 	with 	the 	chapter president 	and agreed 	to 	send the
District 	a demand to meet 	and negotiate. 	On November 6, 	1995,
Evans 	sent Woodford a 	letter stating 	in part 	as 	follows:
I 	am writing you regarding some 	concerns 	I
have 	regarding 	a published 	"Building 	Services
Sick Leave Review Policy". 	(See Attached)
My concerns are 	as 	follows:
I. 	Items A and C on the policy refer to
some 	numerical 	guidelines 	for discipline
instead of validity of 	absence 	as 	well
as 	some 	sort 	of 	subjective 	"Compassion
Adjustment". 	These 	items 	are changes
that 	exceed or alter 	the 	current
contract, 	Commission Rules and past
practice 	regarding 	sick 	leave 	usage
and/or discipline 	and are 	subject 	to
negotiations.
12

II. 	Item E violates 	the 	employees Education
Code right. 	Education Code, 	Section
45191 	reads 	in part 	"credit 	for leave of
absence need not 	be 	accrued prior to
taking 	such 	leave 	by the 	employee 	and
such leave 	of 	absence may be 	taken at
anytime during the year."
III. 	Item F seems to infer that 	employees who
have 	used all 	available 	regular 	illness
leave will be 	singled out. 	There 	are
established 	and 	agreed 	upon 	guidelines
for usage of 	illness 	leave, 	extended
illness leave, 	as well as other leaves.
Changes are 	subject 	to negotiations.
IV. 	Item G references 	an 	instance when
vacation may not be used. 	In fact 	if 	an
employee 	has 	followed 	the 	contractual
guidelines, 	he/she may use vacation for
whatever 	reason 	they deem appropriate.
V. 	Item J refers 	to 	"docking" 	someone's pay
without due process. 	Except 	for a
couple 	of 	education provisions 	relating
to 	serious 	offenses 	the 	discipline 	and
due process 	guideline 	in both the
Education 	Code 	and 	Personnel 	Commission
Rules 	and Regulations 	must 	be 	followed.
The 	proposed policy 	and 	attached 	forms
clearly are 	a change 	in working conditions,
as well 	as 	in more 	than one 	case a violation
of 	the 	contract 	and 	statutory provisions.
CSEA #183 	respectfully demands 	to meet 	and
negotiate 	the 	changes 	in working 	conditions
outlined 	in 	the 	attached 	sick 	leave 	review
policy. 	Additionally, 	CSEA #183 	respectfully
demands 	that 	the 	district 	cease 	and desist
from unilaterally 	implementing 	said 	policy
until 	a negotiated agreement 	is 	reached or
the 	negotiating process 	is 	concluded up 	to
and 	including 	impasse 	and 	factfinding.
In response 	to this 	letter, 	Woodford's 	secretary called Evans 	and
set up a negotiating session for November 16, 	1995. 	The District
did not put 	the policy on hold, 	however.
13

On November 16, 	1995, 	Evans and the rest of CSEA's usual
negotiating 	team met 	with Woodford 	and other district 	managers,
including building services director Norton. 	Kossick, 	who had
just 	started her employment with CSEA, 	was not present. 	The
parties 	spent 	two 	hours 	going over 	the 	building 	services 	policy,
clarifying 	the 	District's 	intentions 	and airing 	CSEA's 	concerns.
Although 	Evans 	testified 	the 	parties 	did not 	reach 	any agreement
that 	day, 	it 	appears 	the parties did agree at 	least 	two aspects
of 	the policy 	should be 	revised 	to 	conform to 	the Agreement 	and
the District's past practice. 	The parties 	apparently agreed 	step
3 	and 	step 	4 	notices 	should 	include 	language 	informing employees
the notices would be placed 	in their personnel 	files 	and the
employees 	had the 	rights 	to make 	responses 	and to have 	them also
placed in the 	files. 	The parties 	apparently also agreed
Guideline 	"F" 	was 	too restrictive 	in stating, 	"Vacation will not
be 	granted 	for 	sick 	leave 	use." 	Norton 	testified that 	based on
CSEA's 	input 	the 	guideline 	was 	to be 	changed by adding 	"after-
the-fact."
It 	is 	clear the parties did not 	agree on at 	least 	one 	issue,
however: 	whether the policy's 	restriction on the use 	of 	advance
sick leave violated Education Code 	section 45191. 	It was 	agreed
Evans would obtain and share 	a 	legal 	opinion on this 	issue.
It 	is 	otherwise unclear exactly to what 	extent 	the parties
did and did not 	agree 	about 	the policy at 	the November 	16
meeting. 	Evans 	and one 	of 	his 	team members 	testified
negotiations 	on 	the policy were 	not 	concluded that 	day and were
14

to 	continue 	later. 	They testified that when those 	in attendance
put 	their names 	on a 	sign-in sheet 	it 	was made 	clear they were
not 	agreeing to 	anything. 	The minutes 	of 	CSEA's 	executive board
meeting of December 4, 	1995, 	reported as 	follows:
The Negotiations 	Team met 	with the District
on 	11/16/95 	regarding the 	implementation of
the 	new 	"Building Services 	Sick Leave 	Review
Policy." 	Items A, 	C, 	E, 	F, 	G, 	and J of the
policy were 	discussed. 	No 	formal 	agreement
was made on the policy. 	The District 	and
CSEA agreed to meet 	again 	in 	sixty to ninety
days 	for 	further discussions.
Presumably this 	report was made 	by the 	chapter president 	and/or
the 	chapter secretary, 	who attended both the November 	16
negotiations 	meeting and the 	December 	4 	executive 	board meeting.
Woodford testified, 	however, 	there was no agreement 	to
continue 	negotiations 	on the policy other 	than 	to 	"get 	together
after the first of the year and see if there were 	. 	. 	.
problems." 	Woodford testified that 	apart 	from 	"a 	continuing
dispute over Education Code section 45191 	. 	. 	. 	basically we had
an agreement 	at 	the 	end of 	the meeting, 	and that Don Evans would
confirm that 	agreement 	in writing 	to 	the 	District." 	Norton
similarly testified he 	left 	the 	meeting 	"thinking 	that 	everything
was 	acceptable 	with the 	exception of 	the 	one pending 	item."
Woodford 	testified he 	normally took notes 	at 	a 	negotiating
session, 	but he had no notes of the November 16 meeting; 	no one's
notes 	of 	that meeting were 	offered in evidence.
On December 1, 	1995, 	Evans 	sent Woodford the 	following
letter:
15

I 	am writing you 	this 	letter as 	a 	follow-
up/confirmation of 	the 	understanding/
clarifications 	reached between 	CSEA Chapter
183 	and the district on November 16, 	1995,
regarding 	the 	"Building 	Services 	Sick 	Leave
Review 	Policy".
The 	understanding/clarifications 	are:
I. 	Personal 	necessity days 	taken by
employees will 	not 	be used 	in the
formula to 	trigger a 	"use 	of 	sick 	leave"
conference.
II. 	Approved vacation requests may be used
in a manner that 	the 	employee(s) 	deems
appropriate.
III. 	That under certain conditions/
emergencies, 	employees may not be able
to call 	in themselves or during the 	30-
minute 	call 	in window when they are 	ill
or 	injured.
IV. 	Any documentation that 	will 	go 	into an
employee's personnel 	file 	will 	clearly
state so, 	as well as state the
employee's 	right 	to 	respond in writing,
and have 	the 	response placed 	in 	their
personnel 	file.
V. 	That 	the 	intent 	of 	the policy is 	to
reduce 	abuses 	of 	sick 	leave but 	not 	to
restrict 	the 	employee's 	right 	to use
sick 	leave 	when 	ill 	or 	injured.
VI. 	That valid exceptions will be reviewed
and considered on a 	case-by-case basis.
VII. 	That 	this policy will be uniformly and
fairly applied to 	all 	employees 	in
Building 	Services.
I will 	address 	the 	issue 	of 	restricting the
use 	of 	sick 	leave 	in advance 	separately.
CSEA believes 	the 	meeting 	held on November
16, 	1995, 	was both constructive and helpful
in 	clarifying 	concerns 	of 	both 	CSEA Chapter
183 	and the district.
Feel 	free 	to contact me 	if you have any
questions or concerns.
16

This 	letter did not mention 	further negotiations; 	Evans 	testified
Kossick became 	responsible 	for 	such negotiations 	from 	the 	moment
the 	letter went 	out. 	The 	letter also did not 	repeat 	the 	demand
in Evans's November 	6 	letter that 	the 	District 	cease 	and desist
from 	implementing 	the 	building 	services 	policy.
Meanwhile, 	on November 30, 	1995, 	Woodford had received a
rather mysterious 	two-page 	fax, 	sent 	to the District 	from the
CSEA office. 	The cover page, 	in Evans's handwriting, 	indicated
the 	fax was both from Evans 	and to Evans, 	and it bore 	the
---
comment, 	"As 	discussed." 	The 	second page had no heading but
began with 	the 	following paragraph:
On Thursday, 	November 16, 	1995 	CSEA Chapter
183 	and District 	administrators met 	regarding
the Building Services' 	"sick leave review
policy". 	A number of 	clarifying
understandings 	and 	agreements 	were 	reached
regarding this policy. 	The 	specifics will be
published 	and made 	available 	to 	all
bargaining unit 	employees.
The 	second page 	ended with the name 	"CSEA Chapter 	183" 	and the
slogan 	"Working Together, 	Working 	for You." 	Woodford testified
he 	had been expecting Evans 	to 	send him 	"confirmation of 	our
agreement 	and understanding" 	on the 	building services 	policy.
Evans 	testified he 	did 	fax Woodford an advance 	copy of 	the
December 1 	letter, 	but he did not 	recognize 	the 	second page of
the November 30 	fax, 	which also does not 	appear to be what
Woodford would have 	expected 	to 	receive 	from Evans.
The 	District 	apparently did not 	respond to 	the November 	3 0
fax or the December 	1 	letter. 	The District 	did take 	some 	action
on the basis of the November 16 meeting, 	however. 	Under
17

Clayton's 	direction, 	some 	3000 	preprinted step 	3 	and step 4
notices 	were 	stamped with the 	additional 	personnel 	file
information. 	Building services 	supervisors were 	informed of 	that
change and also of 	the 	change 	in Guideline 	F 	(on granting
vacation for sick leave use).
There 	was 	apparently no 	further 	communication between 	the
District 	and 	CSEA on 	the 	building 	services 	policy until 	January
31, 	1996. 	On that date, 	Evans sent Woodford a letter that began
as follows:
During a meeting held in November of 	1995,
CSEA noticed the 	district 	that 	it 	was
violating employees' 	Education Code 	rights
(Section 45191) 	by restricting their advance
use of 	sick leave.
Education Code 	section 45191, 	regarding leave
of 	absence 	for illness or injury, 	states 	in
part:
"Pay 	for any day of 	such absence
shall 	be 	the 	same 	as 	the pay which
would have 	been 	received 	had 	the
employee 	served during 	the 	day.
Credit 	for 	leave 	of 	absence need
not 	be 	accrued prior 	to 	taking 	such
leave 	by the 	employee 	and 	such
leave 	of 	absence may be 	taken at
any time during the year."
The Education Code 	is 	clear that 	it 	is 	the
employee who decides when to 	take 	the 	leave.
The 	collective 	bargaining 	agreement 	also
requires 	the district 	to grant 	advance 	sick
leave. 	The district's belief 	that 	it has
discretion to grant 	the 	advance 	sick 	leave 	is
incorrect under the contract, 	however, 	it 	is
immaterial 	that 	the 	district 	thinks 	it 	has
such discretion under 	the 	collective
bargaining 	agreement.
The 	letter concluded as 	follows:
18

Pursuant 	to Education Code 	section 45191,
employees 	have 	the 	right 	to 	take 	advance 	sick
leave 	and the district 	does 	not 	have 	the
authority nor discretion 	to 	deny such 	leave.
While 	the 	district 	has 	the 	right under the
limits 	specified 	in the 	Education 	Code 	and
collective 	bargaining 	agreement 	to 	request
verification of illness, 	it 	is a separate
issue 	and result.
In closing, 	CSEA Chapter 183 	respectfully
demands 	that 	the 	district 	comply with
Education Code 	section 45191, 	and cease 	and
desist 	from restricting 	the 	advance 	use 	of
sick 	leave 	by classified 	employees.
Please 	notify me 	in writing of 	the 	district's
requested compliance, 	and the notification of
the 	appropriate manager/supervisors.
Like 	the December 	1 	letter, 	this 	letter did not mention further
negotiations, 	nor did it 	demand the 	District 	cease 	and desist
from 	implementing 	the building 	services 	policy generally. 	Again,
the 	District 	apparently did not 	respond.
A meeting between the 	District 	and 	CSEA was 	set 	for
February 27, 	1996, 	to discuss the wearing of 	shorts by warehouse
employees. 	Kossick 	testified 	she 	initially requested 	the 	meeting
to discuss 	the building services policy as well; 	Woodford
testified 	Kossick 	added 	that 	topic 	after 	the meeting was 	already
set. 	On February 27, 	1996, 	Kossick and part of CSEA's
negotiating 	team met 	with Woodford 	and 	the 	warehouse 	manager;
Evans was 	also present, 	as 	an observer. 	According to Kossick and
Evans, 	Woodford stated the building 	services policy was 	not
legally negotiable, 	while Kossick insisted it was. 	Eventually,
Woodford asked Kossick to outline 	her concerns, 	for discussion at
a 	separate meeting. 	According to Kossick, 	Woodford also 	stated
19

the 	District 	intended to 	apply the 	building 	services 	policy
district-wide 	eventually.
On March 1, 	1996, 	Kossick sent Woodford a letter confirming
a March 	8 	appointment 	for a meeting to discuss 	the building
services policy. 	The 	letter stated in relevant part:
The purpose 	of 	this meeting 	is 	to address
concerns 	of 	the 	sick 	leave policy such as:
Sick 	leave 	formula/adjustments
Morale
Inequitable 	application
According to Kossick, 	when the March 8 	meeting occurred Woodford
stated he 	had no 	intention 	of 	negotiating 	the 	building 	services
policy, 	which he 	said was not negotiable, 	and CSEA should contact
Norton if 	it wanted to do anything further.
On March 13, 	1996, 	Evans 	sent Woodford the 	following letter:
As of today's date, 	I have not 	received from
you a response 	to my letter of 	January 31,
1996 	requesting the 	district's 	compliance
with Education 	Code 	Section 45191 	and cease
restricting classified employees' 	use of
advance 	sick leave.
Unfortunately, 	if 	I don't receive your
written response by March 22, 	1996 	CSEA will
have 	to assume 	the 	district 	is 	not 	going to
comply with Education Code 	Section 45191.
CSEA Chapter #183 	will 	have no choice but 	to
seek other 	formal 	remedies 	to 	this 	issue.
I 	am looking forward to your 	response.
Two days later, 	on March 15, 	1996, 	Kossick sent Woodford the
following 	letter:
As 	a 	result 	of 	the 	district 	and CSEA Chapter
#183 	being unable 	to 	reach a negotiated
agreement 	regarding 	the 	"Building 	Services
Sick Leave Review Policy", 	as well 	as your
response to me on March 8, 	1996, 	that the
20

district 	now considered 	the 	policy non-
negotiable, 	CSEA respectfully demands 	the
following:
A. 	The 	district 	cease 	and desist 	from
unilaterally 	implementing 	said 	policy
until 	a negotiated agreement 	is 	reached
on 	[sic] 	the negotiating process 	is
concluded up 	to 	and 	including 	impasse
and 	fact 	finding.
B. 	To meet 	and negotiate 	the 	changes 	in
working conditions 	outlined 	in 	the 	above
referenced 	and 	attached 	policy.
C. 	The 	district 	respond 	in writing within
five 	(5) 	business days, 	complying with
our legal demands.
If 	the 	above 	referenced demands 	and requests
are not 	complied with, 	CSEA Chapter #183 	will
have 	no alternative 	but 	to 	seek any and all
available 	legal 	remedies.
Feel 	free to call me 	if you have any
questions or concerns.
The 	District 	apparently did not 	respond to 	either 	letter.
In May 1996, 	the District printed a revised version of 	the
building 	services policy. 	Step 	1 was 	revised by adding language
indicating how potential 	sick 	leave 	abuse 	would be 	identified:
"through review of employee 	attendance 	records." 	Steps 	3 	and 4
were 	revised to 	refer to 	item 9 	on a new evaluation 	form, 	which
was 	the 	renumbered 	"Attendance/Punctuality" 	item. 	Guideline 	C
was 	revised to 	state as 	follows:
A 	"compassion adjustment" 	may be made 	to give
credit 	for 	long-term, 	(usually a minimum of
two weeks of 	illness or injury) 	justifiable
use 	of 	sick leave 	as part 	of 	the 	employee
conference.
Guideline 	E was 	rephrased to 	state, 	"Unearned sick 	leave will 	not
be granted" 	(rather than, 	"Only 	'earned' 	sick leave will be
21

granted") 	for an employee at 	step 3 	or higher. 	Guideline F was
dropped altogether; 	Guideline G became 	the new Guideline 	F and
was revised with the 	addition of 	"after-the-fact." 	Finally, 	the
step 	3 	and step 4 	notices were printed with the 	following
language:
A Copy of 	this 	Document 	Will 	Be 	Placed 	in
Your 	Personnel 	File 	at 	the 	End of 	Five 	(5)
Days. 	You Have the Right 	to Respond to this
Document and Have Your Response, 	If Any,
Placed 	in Your Personnel 	File.
This 	language 	and the 	"after-the-fact" 	language 	in the new
Guideline 	F appear to have 	come out 	of 	the negotiations 	on
November 16, 	1995, 	but the other changes apparently did not.
Prior 	to 	the 	dissemination of 	the building 	services 	policy
in October 1995, 	there was no 	formal 	six-step process 	for dealing
with excessive use of 	sick 	leave, 	and there was 	no 	form like 	the
step 2 notice. 	There was a form comparable to the step 3 	notice,
warning 	employees 	they would be 	required 	to 	furnish verification
if 	their pattern of 	absence continued, 	but unlike 	the 	step 3
notice 	it 	was 	not 	labeled a 	"disciplinary warning" 	and did not
state 	failure 	to 	improve might 	result 	in 	"further disciplinary
action." 	There was 	also a 	form comparable to the 	step 4 	notice,
requiring verification, 	but unlike 	the 	step 4 notice 	it was not
labeled a 	"reprimand" 	and did not 	state 	failure 	to provide
verification would 	"result 	in 	a 	loss 	of pay and will 	be 	recorded
as AWOL" 	and 	failure 	to comply might 	result 	in 	"further
disciplinary action, 	up to and including dismissal."
22

The 	attendance 	of 	employees 	had previously been monitored,
and employees 	had been counseled, 	evaluated and disciplined 	(up
to and including dismissal) 	for excessive 	absenteeism. 	There was
no policy, 	however, 	dictating when these actions would be 	taken.
There was, 	for example, 	no policy dictating an employee being
required 	to 	furnish verification would at 	the 	same 	time 	receive 	a
reprimand 	and an 	"unsatisfactory" 	attendance 	evaluation 	and would
be 	recommended 	for 	suspension 	if 	there was 	no 	improvement 	in
attendance. 	An employee 	who was 	required to 	furnish verification
in 1981 	testified he was 	not 	told he 	could also be 	disciplined.
Prior to dissemination of 	the 	building 	services 	policy,
there 	was 	also 	no 	generally established definition 	of 	excessive
use 	of 	sick 	leave. 	Operations 	supervisor Clayton testified he
employed 	50 	percent 	usage 	of 	earned sick 	leave 	as 	an 	indication
an employee 	should be 	counseled, 	but 	he 	also testified there were
only 	"two or 	three 	of 	us 	that 	had pretty rigorously applied" 	such
a policy. 	Retired carpentry supervisor Bill 	Stevenson
(Stevenson) 	was 	apparently one of 	the 	less 	rigorous 	supervisors
in this 	regard: 	he 	testified he 	counseled employees 	only when
they had 	"pretty much used up" 	earned 	sick 	leave.3 Stevenson was
not 	unique: 	a building 	services 	employee 	not 	supervised by
Stevenson testified that 	in 	1993 	he 	completely used up 	his 	sick
3The 	District 	argues 	Stevenson's 	testimony should not 	be
credited, 	because 	Stevenson was upset 	about 	being written up
under the building 	services policy himself, 	and because
(according to Norton) 	Stevenson 	initially had problems 	explaining
the policy to employees. 	I 	nonetheless 	found Stevenson to be a
credible witness, 	especially as 	to his own past practices 	as 	a
supervisor.
23

leave without 	being 	counseled or written up. 	Stevenson
acknowledged some other 	supervisors were 	"a 	little more 	strict,"
but 	there 	was 	evidently no 	established policy 	stating 	their
approach was 	right 	and Stevenson's 	approach was wrong.
Even Clayton, 	the stricter supervisor, 	did not 	testify he
employed 	six 	instances 	of 	sick 	leave 	use 	as 	an alternative
indication 	an 	employee 	should be 	counseled.
There was 	also no previous 	District 	policy 	forbidding any
employee 	from using unearned 	(advance) 	sick leave. 	In 1993,
Clayton 	issued 	the 	following criteria 	for approving the 	use 	of
unearned 	sick 	leave 	by employees 	he 	supervised:
Option A:
1. 	A minimum of 	5 	consecutive years of
full-time 	service with the 	district.
2. 	A minimum of 	3 	of 	the most 	recent years
of 	full-time 	consecutive 	service must 	be
free of the abusive use of 	sick-leave.
Option B:	-1. 	The employee may submit 	a Dr.'s 	"Off-
Work" 	notice 	for the time requested.
Option B 	appears 	to 	indicate 	even an employee with a history of
sick 	leave 	abuse 	could use 	unearned 	sick 	leave 	by 	submitting 	an
"Off-Work" 	notice 	from a physician, 	while Guideline E of 	the
building 	services policy offers 	no 	such option. 	Furthermore,
there 	is 	no evidence other supervisors were 	even as 	strict 	as
Clayton 	in this 	regard.
There were 	also no policies prohibiting the granting of
vacation for sick leave use 	(Guideline G ) , 	requiring employees 	to
call 	"in person" 	between 	6:00 	and 6:30 	a.m. 	to report 	absences
(Guideline K ) , 	or prohibiting the use of the answering machine
24

for that purpose 	(Guideline L ) . 	Stevenson testified the building
services policy changed prior practice 	in these 	areas. 	One
employee 	testified he used vacation 	for 	sick 	leave 	purposes 	in
1993, 	when he had used up all 	his 	sick leave. 	Another employee
testified he had been able 	to have his wife call 	in for him, 	to
call 	in himself before 	6:00 	a.m., 	or to 	call 	in to the 	answering
machine, 	until 	the building services policy went 	into effect.
Nutrition 	services 	sick 	leave 	review policy
In 1996, 	the management of the District's nutrition services
department 	also became concerned about 	attendance. 	The
department 	director talked to Woodford, 	who 	recommended
discussing the 	issue with building services management.
Ultimately, 	Nutrition Program Manager Jill Ross 	(Ross) 	and the
nutrition 	services 	supervisors 	developed 	their own 	sick 	leave
review policy based on the 	building 	services 	policy. 	Ross 	did
not 	notify CSEA of 	the nutrition 	services policy before 	it 	was
implemented, 	although she understood building services 	management
had worked with CSEA. 	There 	is 	no 	evidence Woodford was 	involved
in developing or 	implementing the 	nutrition 	services 	policy.
The 	nutrition 	services 	policy was 	implemented 	effective
July 1, 	1996. 	This policy included some parts of the original
building services policy of October 1996, 	some parts of 	the
revised policy of May 1996, 	and some parts 	that were unique.
Step 1 was the 	same as in the October policy; 	steps 	3 	and 4 	were
like 	those 	in the May policy in referring to 	item 	9 	of 	the new
evaluation 	form. 	The 	related 	forms 	were 	substantively the 	same
25

as 	those 	in the May policy, 	except 	that 	a 	copy of 	the 	step 	2 , 3
and 4 	forms was 	directed to 	the 	"Nutrition Program Manager"
(Ross) 	instead of to 	"Personnel." 	Guidelines C, 	E, 	F and G were
the 	same 	as 	in the October policy, 	and thus were different 	from
those 	in the May policy.
Guideline 	H 	in 	the 	nutrition 	services policy stated:
We will 	uniformly enforce 	the 	"10-day advance
notice" 	for vacation.
The 	corresponding building 	services 	guidelines 	had required 	"5
days 	advance notice."
Guideline 	K of 	the nutrition services policy stated in 	full:
Each employee must 	call 	"in person" 	to report
any absence 	for sick leave. 	The procedure
for this 	is as follows:
1. 	Nutrition Services employees will 	call
881-8000 	between 	6:00 	a.m. 	and 	6:30 	a.m.
to report 	their absence.
a. 	Nutrition Services 	employees 	assigned
to 	secondary sites will 	also call
their 	site 	Manager between 	6:00 	a.m.
and 	7:00 	a.m. 	to 	report 	their
absence.
b. 	If your arrival 	time at your
secondary 	site 	coincides 	with your
Manager's arrival 	time, 	you must 	call
your Manager at 	his/her home 	between
5:00 	a.m. 	and 	6:00 	a.m.
2. 	Food Production Workers 	reporting to work
prior to 	6:00 	a.m. 	will 	call 	872-7455
between 	5:00 	a.m. 	and 5:30 	a.m. 	to report
their absence.
The 	corresponding building 	services 	guidelines 	had 	required
employees 	to 	call 	"in person" 	between 	6:00 	a.m. 	and 	6:30 	a.m. 	but
not 	to call 	their managers.
26

Guideline 	L of 	the 	nutrition 	services policy 	stated:
NO 	CALL 	FOR REPORTING AN ABSENCE WILL 	BE
ALLOWED TO THE ANSWERING MACHINE.
This 	guideline was 	identical 	to 	the 	corresponding building
services 	guideline 	in both content 	and capitalization.
In late June 	1996, 	Ross explained the nutrition services
policy to 	12-month employees, 	at a meeting of 	several 	dozen such
employees. 	In late August 	1996, 	Ross also explained the policy
to 	9-month employees, 	at 	a meeting of 	several 	dozen such
employees. 	Copies 	of 	the policy were 	distributed at 	both
meetings.
A nutrition 	services 	employee 	testified that 	in past 	years
she 	had exhausted all 	her earned 	sick 	leave 	and carry over 	sick
leave; 	she 	testified she was 	not 	counseled or written up but
continued to 	received 	"wonderful" 	evaluations 	and even 	an
exemplary employee 	award. 	She 	further 	testified Guidelines 	K and
L of 	the 	nutrition 	services 	policy were 	changes 	in District
practice, 	in that 	her husband had previously called 	in 	for her,
she had not been told to call 	at 	a certain time, 	and she had
been able 	to 	leave messages 	on the 	answering machine. 	On
September 17, 	1996, 	this employee received an inter-office
communication from her supervisor, 	with a copy sent 	to Ross, 	for
reporting her 	absence 	at 	6:45 	that 	morning 	instead of 	between
6:00 	and 	6:30. 	She had called at 	5:55, 	6:30 	and 6:40, 	but was
unable 	to 	reach the 	right 	person until 	6:45.
Ross acknowledged the 	"6 	to 	6:30 	timeframe" 	was new;
apparently so was 	the prohibition on using 	the 	answering machine.
27

The most 	recent 	version of 	the Nutrition Services 	Employee
Handbook 	stated 	in part:
If you are 	ill 	or cannot make your assigned
work hours, 	call 	in as soon as possible.
Employees 	scheduled 	to work before 	7:00 	a.m.
can call 	the 	Senior Food 	Production Worker on
her/his pager. 	To contact 	this person: 	dial
872-7455, 	listen for tone, 	then dial your
phone number, 	followed by "#", 	leave the
appropriate message. 	If you are 	scheduled to
work 	after 	7:00 	a.m., 	you may leave 	a message
on the answering machine 	(881-8000). 	Give
your name, 	date absent, 	hours you work, 	and
reason 	for absence.
An old Cafeteria Handbook, 	apparently from the 	1980's, 	had stated
in part:
Absences 	- 	You must 	do your own calling 	for
any absence giving your name, 	phone number,
----·date, 	why you will be 	absent 	and when you
will 	return. 	Also 	state your school
location, 	job and hours.
The more 	recent 	Nutrition Services 	Employee 	Handbook did not
specifically require employees 	to do their own calling, 	however.
A nutrition 	services 	supervisor 	testified 	the 	practice 	of 	someone
else 	calling did occur before 	the nutrition 	services policy, 	but
"wasn't 	supposed to," 	and was 	supposed to 	stop with the policy.
The 	Nutrition 	Services 	Employee 	Handbook did not 	otherwise
address 	sick leave. 	With regard to vacation leave, 	it 	required
ten days prior request.
In the 	latter part 	of 	1996, 	many nutrition services
employees 	received one or more 	inter-office 	communications 	for
not 	calling 	in between 	6:00 	and 	6:30 	a.m., 	for using 	the
answering machine, 	or for not 	calling 	"in person." 	Copies 	of
these 	communications were generally sent 	to Ross, 	but 	they were
28

not 	step 2 	notices. 	One employee did receive a 	step 2 	notice 	for
exhausting all 	her sick leave 	for the 	1996-97 	school year, 	but
the notice 	stated 	"a compassion [sic] 	adjustment will be made
because 	it was 	one 	instance due 	to broken arm."
Another employee 	received both a 	step 	2 	notice 	and a 	step 4
notice 	for a 	"pattern of 	absence 	on an annual basis." 	Both
notices gave a conference date of July 26, 	1996.4 The employee
had 	already been 	required 	to 	obtain verification 	of 	absences 	due
to 	illness 	by an 	inter-office 	communication dated October 	12,
1994. 	He had also been reprimanded for excessive 	absences,
mostly just before or after a weekend, 	on October 20, 	1993. 	An
evaluation 	from June 	1995 	stated his 	"attendance/punctuality"
needed improvement, 	citing 	in part 	his 	complete 	exhaustion of 	his
allowed sick time. 	In October 1995, 	he was 	recommended for a
three-day suspension, 	due 	in part 	to a history of 	absences. 	A
May 	1996 	evaluation 	stated his 	"attendance/punctuality" 	still
needed 	improvement.
A nutrition 	services 	supervisor 	testified 	that 	prior 	to 	the
nutrition 	services 	policy 	she 	had monitored 	employee 	attendance,
counseled employees about 	their use of 	sick leave, 	and
recommended the 	suspension or 	termination of 	employees 	for
excessive 	absenteeism. 	She 	also 	testified to 	"using compassion
adjustments 	long before 	I 	ever heard the word," 	by sometimes
4For some unexplained reason, 	the 	step 2 notice was dated
August 8, 	1996, 	and the step 4 notice was dated August 	6, 	1996.
There was apparently no 	step 3 	notice.
29

adjusting documentation 	for employees with personal, 	family or
chronic problems.
Alleged denial 	of 	representation
On January 31, 	1996, 	building services employee Ron Wilson
(Wilson) 	was 	called into a conference with his 	supervisor,
Stevenson, 	concerning Wilson's use of 	sick leave. 	Wilson
testified Stevenson 	told him he was 	a 	sick 	leave 	abuser according
to the building 	services policy. 	Stevenson asked Wilson to 	sign
a copy of 	the 	step 2 	notice, 	but Wilson, 	who had heard from the
CSEA chapter president 	the policy was 	on hold, 	refused to 	sign.
Wilson and Stevenson arranged to meet 	the 	next 	day with
Stevenson's supervisor, 	operations manager Jim Lewis 	(Lewis).
On the next day, 	February 1, 	1996, 	Wilson and Stevenson
arrived outside 	Lewis's 	office. 	Wilson was 	accompanied by
Kossick and the 	CSEA chapter president. 	Lewis 	came 	out 	of 	his
office 	and was 	introduced to Kossick. 	He 	questioned why Kossick
was 	there; 	she 	explained she would be 	representing Wilson at 	the
meeting because 	of 	the potential 	for discipline.
Kossick 	and 	the 	chapter president 	testified 	this
conversation was 	courteous 	and in 	"normal voices." 	Operations
supervisor Clayton, 	whose office was nearby, 	testified he heard
the 	loud voice 	of Wilson, 	who he 	said normally had a 	loud voice.
Clayton was 	concerned 	about 	possible 	disruption 	and 	started 	to
come out 	of his office. 	Building services director Norton, 	whose
office was 	also nearby, 	testified he 	heard 	"commotion and noise"
and came 	out 	of 	his 	office 	to 	find out what was 	going on. 	Under
30

the circumstances, 	it seems likely the conversation, 	which
involved five people, 	was 	in fact 	fairly noisy, 	and it was
evidently 	loud 	enough to 	attract 	the 	attention 	and 	concern of
Clayton 	and Norton.
Norton approached the 	group. 	He 	testified he 	questioned
whether 	they had an 	appointment; 	Clayton confirmed he 	heard
Norton ask 	that 	question. 	Norton 	further 	testified he 	understood
the 	group thought 	they had an appointment 	with him, 	and he 	told
them he had no notice of 	such an appointment. 	Norton went 	on to
testify he 	asked who Kossick was, 	told her he did not 	think 	she
had a 	right 	to 	represent Wilson at 	"just 	an 	interview," 	said he
would schedule 	a 	formal 	appointment 	if 	she 	did have 	that 	right,
and 	told everyone 	he 	needed to have 	them leave.
The 	testimony of other witnesses, 	although consistent with
Norton's 	testimony as 	to 	the general 	content of what 	he 	said,
gives 	a much different 	sense of how Norton said it. 	Wilson,
Kossick, 	and the 	chapter president 	all 	testified Norton shouted
at 	Kossick while 	she 	tried to explain her presence, 	and Wilson
and the 	chapter president 	testified Norton ultimately 	shouted 	at
Kossick to 	"get 	the 	hell 	out." 	Norton did not 	directly
contradict 	this 	testimony, 	which I 	credit.5 There was no
testimony Norton 	said 	anything 	against 	Kossick 	personally or 	CSEA
generally; 	Wilson and Kossick 	testified Norton 	said he 	did not
5The 	chapter president 	testified Norton 	and Kossick were
"maybe two inches apart, 	nose to nose" 	when he 	shouted at her,
but no one else 	testified to his particular detail, 	and I 	do not
credit it.
31

care who Kossick was. 	Norton shouted at 	Kossick in the presence
of 	unit members, 	including not 	only Wilson and the 	chapter
president but 	also the clerical 	employees working in the 	area.
Wilson told several 	other unit members 	about 	the 	incident, 	which
he 	testified 	left 	him with 	"mixed 	feelings" 	about 	Kossick 	(how
she would be 	able 	to 	stand up 	to Norton) 	and CSEA 	(whether 	it
would give him a 	"fair shake").
Norton 	later 	contacted Woodford and was 	told 	CSEA did have 	a
right 	to 	represent 	Wilson. 	A meeting was 	then 	scheduled 	for
February 7, 	1996. 	On that day, 	Norton, 	Lewis and Stevenson met
with Wilson and Kossick. 	They discussed Wilson's 	use 	of 	sick
leave 	and the building services policy; 	when Wilson seemed not 	to
understand the policy, 	Norton 	said Wilson's 	"toggle 	switch was
not 	in the 	on position." 	Wilson ultimately signed a 	copy of 	the
step 	2 	notice, 	which stated in part Norton had 	"explained the
progressive steps, 	including discipline, 	used to implement 	this
policy." 	Norton had added to 	the 	form the note, 	"Ron 	[Wilson]
stated he 	strained his back 	and needed to 	see 	a 	chiropractor over
a 	3 	day period on 	9/13/95 	to 	9/15/95."
On March 27, 	1996, 	Wilson filed an unfair practice charge
against 	CSEA, 	alleging a violation of 	the duty of 	fair
representation. 	In the 	charge, 	Wilson mentioned Kossick was
"thrown out" 	by Norton on February 1, 	1996, 	but his complaints
were 	(1) 	CSEA had allowed the building 	services policy to take
effect 	and 	(2) 	Kossick had allowed Wilson to be 	"verbally abused"
by Norton at 	the meeting of 	February 7, 	1996. 	A known ESP
32

supporter offered to help Wilson 	file 	the 	charge, 	but Wilson
declined the offer. 	PERB dismissed the 	charge on July 24, 	1996.
Alleged 	cancellation 	of 	commuter 	agreement
CSEA and the 	District 	entered 	into 	a 	commuter 	agreement 	on
September 21, 	1993.6 The 	introduction to the commuter agreement
stated:
WHEREAS, 	Regulation XV of 	the South Coast Air
Quality Management 	District 	(SCAQMD) 	requires
the District 	to prepare and submit 	a 	Commuter
Program Trip-Reduction Plan 	(Plan);
WHEREAS, 	the South Coast Air Quality
Management 	District 	approved 	the 	District's
Plan on September 19, 	1990;
WHEREAS, 	the District's 	Plan has an impact
upon wages, 	hours, 	and other negotiable terms
and conditions of employment; 	and
WHEREAS, 	the District 	and the Association
have 	met 	and negotiated 	and have 	reached
agreement 	on the 	implementation of 	the 	Plan;
The 	stated purpose 	of 	the 	commuter agreement was 	as 	follows:
The 	sole purpose of 	this Agreement 	is 	to
encourage unit 	members 	to participate 	in the
Plan by using 	an alternate 	mode 	of
transportation 	to 	and 	from 	their work
location. 	The goal 	is to increase average
vehicle 	ridership.
The 	commuter 	agreement went 	on to provide 	certain 	incentives
(including cafeteria discounts 	and extra vacation days) 	to
employees 	using alternative modes 	of 	transportation 	(such as
buses and car pools). 	The 	incentives were 	subject 	to the
following 	limitation:
6This was 	the 	successor to a commuter agreement 	dated
October 15, 	1990.
33

The 	Plan 	incentives 	set 	forth in this
Agreement 	shall 	apply only to 	those 	unit
members 	who 	regularly report 	to work 	at 	a
site 	governed by a 	Plan and have 	filed a
Clean Air 	Corps 	initial 	entry and have
maintained participation by 	filing 	a 	monthly
Clean Air 	Corps 	update 	entry.
In addition to the 	incentives, 	the 	commuter agreement provided
the District would 	"encourage" 	flexible work hours 	and
alternative work 	schedules, 	and CSEA would have 	one position on
the 	District 	Clean Air Corps Advisory Committee.
The 	commuter 	agreement 	included 	the 	following provision 	on
grievances:
Unit 	members who 	have 	been 	adversely affected
by misapplication 	or 	incorrect 	interpretation
of 	a 	specific provision of 	this Agreement may
file 	a grievance 	as provided 	for 	in Article
XVIII 	of 	the Collective Bargaining Agreement.
The 	commuter 	agreement 	stated 	it 	could be 	amended by mutual
agreement and would "remain in full force and effect 	. 	. 	.
through 	the 	duration of 	the 	Collective 	Bargaining Agreement
between 	the 	District 	and the Association."
In connection with the 	dispute 	over the 	commuter agreement,
there was 	a dispute 	in the 	testimony at 	hearing over the duration
of 	the Agreement. 	Article XXIV of 	the Agreement 	(Term of
Agreement), Section 1 	(Duration), stated:
Except 	as 	otherwise provided herein and 	in
Section 2 below, 	this Agreement 	shall 	remain
in 	full 	force 	and effect 	from November 	17,
1992, 	through September 30, 	1995, 	and from
year to year thereafter, 	unless modified or
amended pursuant 	to 	the 	following provisions.
Section 2 	(Renegotiation of Wages) 	provided for reopeners 	after
July 1, 	1993, 	and July 1, 	1994. 	Section 3 	(Renegotiations)
34

provided 	for negotiation of 	a 	successor agreement, 	if 	CSEA made
an 	initial proposal 	between May 1 	and June 	1 preceding expiration
of 	the Agreement. 	Section 4 	provided the Agreement 	could also be
reopened 	"by specific written mutual 	consent 	of 	the 	Parties."
CSEA failed to make 	an 	initial 	proposal 	between May 	1 	and
June 	1, 	1996, 	and as a result 	the Agreement was 	to be extended
"in full force and effect 	. 	. 	. 	from year to year" beyond
September 30, 	1995, 	pursuant to Article XXIV, 	Section 1. 	The
District 	nonetheless 	offered 	to 	negotiate 	with 	CSEA 	solely on 	the
issue of wages. 	On October 17, 	1995, 	the District and CSEA
entered 	into what 	they called an 	"Amendment 	to 	the Agreement"
providing a 4 	percent 	salary increase.
At 	hearing Woodford testified 	the 	final phrase 	of Article
XXIV, 	Section 	1 	("unless 	modified or amended pursuant 	to 	the
following provisions") 	meant 	any modification or amendment 	that
did not 	extend 	the 	term of 	the Agreement 	automatically 	terminated
the Agreement. 	Thus 	in Woodford's view the 	1995 	"Amendment 	to
the Agreement," 	which did not 	mention the 	term of 	the Agreement,
terminated the Agreement, 	and with it 	the commuter agreement,
which was 	to have 	the 	same 	duration as 	the Agreement.
Woodford's reading of Article XXIV, 	Section 1, 	although not
necessarily contrary to the 	literal 	language, 	is not 	a plausible
interpretation of 	the parties' 	intent. 	Under his 	reading of the
language, 	the parties 	could not 	negotiate 	any modification or
amendment 	to 	the Agreement 	without 	also negotiating an extension
of 	the Agreement, 	or else 	the 	entire Agreement would terminate.
35

There 	is 	no apparent 	reason why the parties would want 	to bind
themselves 	in this peculiar way. 	The more plausible 	reading of
Article XXIV, 	Section 1, 	is that 	the Agreement would remain 	"in
full 	force and effect" 	through September 30, 	1995, 	and year to
year thereafter, 	except 	to the extent 	it was actually 	"modified
or amended" 	by the parties.
Woodford's 	implausible reading of Article XXIV, 	Section 1,
was 	not 	supported by any evidence 	of 	past 	practice 	or bargaining
history. 	The 	CSEA spokesperson at 	the 	negotiations 	on the 	1995
"Amendment 	to 	the Agreement" 	testified there was 	no discussion
about 	the Agreement 	expiring, 	as one might 	expect 	if 	CSEA was 	in
fact 	giving up all 	its other rights 	under the Agreement 	in
exchange 	for the 	salary increase.
Prior to the 	hearing 	in this matter, 	Woodford apparently
never 	told CSEA of 	his view the Agreement 	had terminated 	in 	1995.
On the contrary, 	on May 7, 	1996, 	Woodford sent 	a letter to CSEA
acknowledging receipt 	of 	"your 	initial 	contract 	proposal 	for
modifications 	to 	the 	current 	bargaining agreement 	which expires
on September 30, 	1996," 	apparently acknowledging a one-year
extension of the Agreement beyond September 30, 	1995, 	despite
the 	intervening 	"Amendment 	to the Agreement." 	Furthermore, 	on
July 12, 	1996, 	Woodford sent 	PERB a letter in connection with the
decertification petition 	stating 	in part, 	"The District's 	records
indicate 	. 	. 	. 	[t]he current collective bargaining agreement will
expire on September 30, 	1996."
36

Woodford also did not 	tell 	CSEA the 	commuter agreement 	had
terminated in 1995. 	On March 13, 	1996, 	he sent 	CSEA a letter on
the 	subject 	"Cancellation 	of 	Commuter 	Program Trip-Reduction 	Plan
Agreement," 	stating as follows:
Prior to 	the 	conclusion of 	the 	1995-96 	school
year, 	the District will become exempt 	from
all 	of 	the 	elements of 	the 	South Coast Air
Quality Management 	District 	trip 	reduction
program. 	This means 	that 	the District will
no 	longer be 	required to participate 	in car
pooling 	and 	other 	related programs 	included
in 	the 	Commuter 	Program Trip-Reduction 	Plan.
Therefore, 	effective July 1, 	1996, 	the
agreement 	between 	the 	District 	and the 	CSEA
implementing the 	Commuter 	Program Trip-
Reduction 	Plan will 	be 	cancelled.
If 	you have 	any questions 	or wish additional
information, 	please do not hesitate to
contact me.
Kossick 	testified 	she 	then discussed 	the 	cancellation with
Woodford, 	who told her it was 	a District 	decision that 	had
already been made and implemented. 	On May 7, 	1996, 	it was
formally 	resolved that 	"the 	Board of 	Education 	abolishes 	the
Commuter Program Trip Reduction Policy, 	Policy No. 	4145 	a-b."
There 	was 	no 	evidence 	the 	Board of 	Education took 	any 	separate
formal 	action on 	the 	commuter agreement 	with CSEA.
Woodford 	testified 	he 	had 	anticipated 	CSEA would 	ask 	to
negotiate 	the 	effects 	of 	the 	cancellation of 	the 	commuter
agreement. 	CSEA did not request any negotiations, 	however, 	nor
did it 	file a grievance.
37

Alleged denial 	of 	information 	and 	threat 	to 	retaliate
On March 12, 	1996, 	Kossick sent 	the District 	the 	following
"Discovery Request 	for 	Identity of Witnesses and Documents" 	in
connection with a unit member's 	dismissal 	hearing:
In preparation 	for the 	Commission Hearing on
Respondent's recommended dismissal, 	the
California 	School 	Employees Association 	is
hereby requesting disclosure 	of 	the 	name,
residence, 	and telephone number of the
witnesses you 	intend to 	call 	at 	the 	scheduled
Board Hearing of March 28, 	1996 	and March 29,
1996, 	as well as copies of all documents the
district plans 	on using 	in 	the 	scheduled
appeal 	hearing.
Kossick testified 	she 	thought 	there was 	a due process 	right 	to
receive 	the witness 	list, 	and she 	had heard the District 	had a
past 	practice 	of providing 	such a 	list. 	Woodford 	testified there
was 	no 	such right 	or practice, 	although CSEA had once before
requested 	such a 	list.
Around the 	same 	time, 	Kossick asked the District 	for a 	copy
of 	the 	commuter agreements between CSEA and the District. 	CSEA's
copies 	of 	the 	commuter agreements were 	in 	its 	archives 	rather
than 	in the 	appropriate master 	file.
On March 15, 	1996, 	Woodford and Kossick had a grievance
meeting, 	after which Kossick 	followed Woodford to his 	office 	for
a 	separate meeting. 	Kossick 	testified as 	follows 	about 	the
conversation 	that 	ensued: 	Woodford told Kossick he 	had been
going to give 	her everything, 	including the witness 	list 	and the
commuter agreements, 	but now he was going to give her nothing.
Woodford threw a document 	at 	her and said 	"since 	I 	got 	this, 	I'm
not 	going 	to give you anything and 	I'm going 	to make 	it 	hard on
38

you." 	The document was Evans's letter of March 13, 	1996, 	stating
in part:
Unfortunately, 	if 	I don't receive your
written response by March 22, 	1996, 	CSEA will
have 	to 	assume 	the 	district 	is 	not going to
comply with Education Code 	Section 45191.
CSEA Chapter #183 	will 	have no 	choice but 	to
seek other 	formal 	remedies 	to 	this 	issue.
Woodford 	testified he 	had understood 	this 	letter 	to 	be 	an
indication CSEA would 	file 	an unfair practice 	charge.
According 	to 	Kossick's 	testimony, 	Woodford 	then 	said he
hoped ESP would come 	in 	(through its 	decertification efforts) 	and
Kossick would be 	gone. 	When Kossick 	told him CSEA would need to
go 	to arbitration on the grievance 	they had discussed, 	Woodford
told her 	to 	"do whatever you're 	going 	to do because 	I'll 	just
take 	it 	out 	on you 	in contract 	negotiations." 	When Kossick also
told him 	it 	looked 	like 	she 	would have 	to 	file 	an unfair practice
charge 	about 	the building 	services policy, 	Woodford told her to
"do whatever you want to do, 	I'll just take it out on 	. 	. 	. 	CSEA
in contract negotiations." 	Shortly after the meeting, 	Kossick
made notes of 	the 	conversation; 	these 	notes generally corroborate
her 	testimony.
Woodford testified about 	the 	same 	meeting. 	He 	acknowledged
there was 	discussion of 	the 	requests 	for 	information but 	did not
say what 	that 	discussion was. 	He 	also acknowledged 	saying
something to 	the 	effect 	"it might be better 	if 	the 	other
organization 	[ESP] 	prevailed" 	in its decertification attempt. 	He
remembered telling Kossick about 	the grievance, 	"Do what 	you got
to do," 	but he testified, 	"I'm not 	sure 	I 	recall 	any discussion
39

specifically about 	bargaining." 	He 	acknowledged he was 	upset,
partly by Evans's March 13 	letter, 	and he 	remembered expressing
irritation about 	receiving 	it 	when he 	"thought 	we'd had an
agreement" 	on the building 	services policy. 	He 	did not make
notes 	of 	the 	conversation, 	and he acknowledged that his anger and
the passage 	of 	time may have 	decreased his 	ability to 	remember
what 	occurred.
I 	credit 	Kossick's 	testimony that Woodford said 	(1) 	he would
not 	provide 	the witness 	list 	and the 	commuter agreements 	because
of Evans's March 13 	letter, 	(2) 	he hoped ESP would prevail 	in its
decertification attempt 	and 	(3) 	he would 	"take 	it 	out 	on" 	CSEA in
contract 	negotiations 	if 	CSEA sought 	arbitration or 	filed an
unfair practice 	charge. 	Kossick's 	testimony was 	generally
corroborated by her notes. 	She 	had good reason 	to 	remember 	the
conversation, 	while Woodford, 	who had evidently lost his temper,
had good reason to 	forget 	it. 	Woodford confirmed some 	of
Kossick's version of 	events 	and did not 	really deny the 	rest
other than to 	say, 	"I'm not 	sure 	I 	recall 	any discussion
specifically about 	bargaining." 	This 	was 	not 	a persuasive
denial.
Woodford never provided the 	requested witness 	list. 	He
testified he 	did mail 	CSEA the 	commuter 	agreements 	"sometime
later," 	probably after his 	secretary returned to work 	after 	an
illness. 	Kossick did not 	deny receiving the 	commuter agreements.
40

Kossick 	discussed Woodford's 	statements 	with various 	unit
members. 	CSEA went 	ahead and pursued 	the 	grievance 	and 	filed the
unfair practice 	charge.
Alleged refusal 	to provide 	employee 	addresses
On or about April 	14, 	1996, 	CSEA representative Liz 	Stephens
(Stephens) 	called Woodford and requested the home 	addresses 	of
CSEA bargaining unit employees. 	On April 	24, 	1996, 	she followed
up with a written request 	for 	"mailing 	labels 	(with home
addresses) 	for the entire bargaining unit," 	saying these were
"urgently needed." 	When Woodford 	received 	the 	written 	request 	he
marked it 	"approved" 	and took 	it 	to Carol 	Haley 	(Haley) 	in
Personnel 	Services. 	Haley marked it 	"OK to run" 	and gave 	it 	to a
clerk, 	who used the District's 	computer system to produce 	labels
for Stephens.
On April 29, 	1996, 	Stephens again wrote Woodford, 	thanking
him 	for 	the 	labels 	that 	had been produced but 	stating they were
"incomplete" 	and requesting additional 	labels. 	Stephens 	and
Woodford then had a 	telephone 	conversation, 	in which Woodford
stated he 	had 	furnished what 	he 	thought 	CSEA was 	entitled to.
Woodford 	further 	stated he 	had 	cards 	from employees 	requesting
their addresses not be given out. 	On April 	30, 	1996, 	Stephens
requested 	in writing 	"the 	addresses 	for those 	employees 	you 	do
not 	have 	a 	formal 	written request 	from not 	to release 	their
address 	to this union." 	On the 	same day, 	Woodford sent 	Stephens
the 	following 	fax message:
The 	CSEA has 	received mailing 	labels 	for 	all
classified bargaining unit 	members 	except
41

those who 	have 	indicated not 	to 	release 	the
information to 	the 	employee 	organization or
to give 	their home 	addresses 	to no one. 	The
form below 	is 	the 	one used by employees 	to
restrict 	release of 	their home 	addresses 	and
telephone numbers.
The 	form referred to was District 	form BU-224, 	as 	revised in
August 1994.
Form BU-224 	was 	completed by employees 	when 	they were 	hired
and, 	apparently, 	when they changed their names, 	addresses or
telephone numbers. 	The 	form, 	as 	it had existed since at 	least
1989, 	offered employees 	the 	following options 	to mark regarding
their addresses 	and telephone 	numbers:
RESTRICTIONS: 	MAY RELEASE TO
* 	EMPLOYEE 	ORGANIZATIONS 	ONLY
* 	DISTRICT DIRECTORY
* 	GIVE 	TO NO ONE
* 	NO RESTRICTIONS
An older version of 	the 	form, 	however, 	did not 	offer these
options 	to mark, 	nor did 	it 	say anything about 	restricting the
release of addresses to others.
The 	District 	kept 	the 	completed 	forms 	on file 	in the payroll
office, 	although not 	in particularly good order. 	They were 	the
only written 	documents maintained by the 	District 	restricting 	the
release of employee 	addresses. 	The District 	entered other
requests 	to 	restrict 	the 	release 	of 	addresses 	into 	its 	computer
system, 	but 	it 	did not maintain any documentation to verify those
requests.
In producing labels 	for CSEA in April 	1996, 	Woodford and
Haley relied on 	the 	District's 	computer 	system, 	and 	they did not
check whether 	the 	restrictions 	in the 	computer 	system were
42

supported by written documentation. 	They testified this 	was 	how
they normally produced addresses 	for CSEA, 	which the Agreement
required be 	done 	annually, 	and CSEA had not 	previously
complained. 	Woodford testified he 	did not 	knowingly deny CSEA
addresses 	to which it was 	entitled, 	but 	he acknowledged the
District's 	system needed 	to be 	revised.
CSEA filed 	its 	unfair practice 	charge 	on this 	issue 	on
May 30, 	1996. 	After the informal conference on October 30, 	1996,
CSEA was 	allowed to 	review the 	forms 	on 	file 	in 	the 	District's
payroll 	office. 	CSEA identified over 400 	employees whose
addresses 	had been withheld even 	though the 	forms 	on 	file 	did not
restrict 	the 	release of 	their addresses 	to CSEA. 	The 	forms 	on
file 	for these 	employees 	had no options marked; 	or they were
marked 	"employee 	organizations 	only," 	"district 	directory" 	or 	"no
restrictions;" 	or they were 	old forms 	on which no options were
offered. 	For some employees there were no 	forms on file at 	all.
The 	District 	ultimately provided CSEA the 	employees' 	addresses.
Alleged 	refusal 	to bargain
Article XXIV of the Agreement 	(Term of Agreement), 	Section 3
(Renegotiations), 	stated in part:
No 	sooner than May 	1 	and no 	later 	than June
1, 	preceding expiration of 	this Agreement,
the Association shall present 	its 	initial
proposals. 	No later than June 	1, 	the Parties
shall 	commence meeting and negotiating 	for 	a
successor Agreement.
On May 3, 	1996, 	CSEA sent the District 	its 	initial proposal. 	In
a letter dated May 7, 	1996, 	Woodford responded as 	follows:
43

I 	have 	received your 	initial 	contract
proposal 	for modifications 	to 	the 	current
bargaining 	agreement 	which 	expires 	on
September 30, 	1996. 	At this time, 	the
District 	has a good 	faith doubt 	as 	to the
CSEA's 	majority 	support 	among 	classified
employees 	in the bargaining unit. 	This good
faith doubt 	is based upon the 	current
decertification 	campaign 	and 	the 	substantial
decline 	in CSEA membership within the
bargaining unit. 	At the present 	time, 	less
than 20% 	of 	eligible bargaining unit members
are 	CSEA members.
The District will maintain existing wages,
hours, 	and other legally negotiable terms 	and
conditions 	of 	employment 	until 	the 	issue of
majority status 	is 	resolved. 	In addition,
the 	District will 	continue 	to 	recognize 	the
CSEA as 	the exclusive representation 	[sic] 	of
classified unit 	members 	for purposes 	of
grievance 	processing 	and 	contract
administration.
As 	soon as 	the 	issue 	of majority support 	is
resolved, 	the District will be prepared to
meet 	and negotiate with 	the prevailing
employee organization, 	if any.
On May 20, 	1996, 	CSEA filed a grievance, 	alleging the District
violated Article XXIV, 	Section 3, 	"when 	it 	refused to meet 	and
negotiate a successor agreement prior to June 	1, 	1996." 	On
May 24, 	1996, 	Woodford responded to the grievance as 	follows:
The 	CSEA's 	initial 	contract 	proposal will 	be
presented to the 	Board of 	Education at 	its
regular meeting on June 4, 	1996. 	The Board
of 	Education will 	adopt 	its 	initial proposal
for a 	successor agreement 	at 	its 	regular
meeting on June 25, 	1996.
Woodford explained 	that 	after he 	received the grievance 	he 	"went
back and researched the 	issue 	and came 	to 	the 	conclusion 	that 	my
initial 	position was 	incorrect."
44

CSEA's proposal 	was 	in 	fact presented to the Board of
Education on June 4, 	1996, 	although it could have been presented
at meetings on May 14 and May 21, 	1996. 	On June 7, 	1996, 	Kossick
took the 	grievance 	to Level 	II 	"to keep 	the grievance 	alive until
we were actually at 	the 	table with the District." 	On June 	14,
1996, 	the District 	sent 	CSEA the District's own 	initial proposal,
which the Board of Education adopted on June 	25, 	1996.
Negotiations 	actually began on July 3, 	1996. 	CSEA apparently did
not pursue 	its 	grievance 	any further; 	Woodford had responded at
Level 	II, 	"Grievance was granted at 	level 	one along with all
remedies 	sought at 	level."
Alleged 	surface 	bargaining
CSEA's 	initial proposal of May 3, 	1996, 	proposed amendments
to 21 	of 	the 	24 	articles of 	the Agreement. 	CSEA proposed some 	85
sections or subsections be amended, 	some 	10 be added, 	and some 	10
be deleted. 	Among other things, 	CSEA proposed Article V
(Association Security) 	be 	replaced with 	"Full 	agency shop." 	CSEA
also proposed a 	salary increase 	"to be 	determined through the
negotiations process."
The District's initial proposal of June 14, 	1996, 	proposed
amendments to 	9 	articles, 	with some 	13 	sections to be amended and
some 	13 	to be deleted. 	Among other things, 	the District proposed
deleting Article V 	(Association Security) 	in its 	entirety. 	It
also proposed deleting three parts of Article 	IX 	(Hours):
Section 14 	(Changes 	in Assigned Time), 	Section 15 	(Calendar
Adjustment), 	and Subsection B of Section 12 	(Compressed
45

Workweek), 	which allowed a 	"9/80" work schedule. 	The District
also proposed 	"a 	salary 	increase 	that 	will 	recruit 	and retain
qualified bargaining unit 	members."
An Association 	Security article 	had been part 	of 	the
parties' 	collective bargaining agreement 	since 	1979, 	with a
limited service 	fee provision 	in effect 	since 	1990. 	A section on
Changes 	in Assigned Time 	had also been part 	of 	the parties'
agreement 	since 	1979, 	and a 	section on Calendar Adjustment 	had
been part 	of 	their agreement 	since 	1982. 	The 	subsection allowing
a 	"9/80" 	work schedule 	apparently dated 	from 1992.
The 	section on Changes 	in Assigned Time was 	at 	issue 	in the
grievance Woodford and Kossick discussed on March 15, 	1997. 	It
was 	this 	grievance 	Kossick 	said CSEA would 	take 	to 	arbitration,
causing Woodford to 	tell 	her 	to 	"do whatever you're 	going 	to 	do
because 	I'll 	just 	take 	it 	out 	on you 	in contract 	negotiations."
The 	section on Calendar Adjustment was 	at 	issue 	in a grievance
CSEA filed on June 	10, 	1996. 	An alleged repudiation of a
settlement 	of 	that 	grievance was 	added by amendment 	to 	CSEA's
second unfair practice charge on July 15, 	1996.7 The 	subsection
allowing a 	"9/80" 	work schedule was 	related to the 	commuter
agreement, 	the 	alleged cancellation of which was part 	of 	CSEA's
second unfair practice 	charge when 	it 	was 	originally 	filed on
May 30, 	1996.
7The 	repudiation 	allegations 	were 	ultimately dismissed
during the hearing, 	for CSEA's 	failure 	to make a prima 	facie
showing of 	an EERA violation.
46

When 	CSEA's 	negotiating 	team 	reviewed the 	District's 	initial
proposal, 	they were upset and thought 	it was 	"a bunch of
nonsense." 	They were 	particularly upset 	by the 	proposed 	deletion
of 	the Association Security article, 	the 	sections on Changes 	in
Assigned Time 	and Calendar Adjustment, 	and the 	subsection
allowing a 	"9/80" 	work schedule.
Negotiations began on July 3, 	1996, 	with Kossick speaking
for CSEA and Woodford speaking 	for the 	District. 	At 	the 	first
session, 	Woodford 	stated CSEA would have 	to 	accept 	the 	District's
proposal 	on Association Security 	(deleting the 	entire 	article) 	or
there 	would be 	no way the parties 	would reach an agreement.
Woodford 	also 	stated CSEA would have 	to 	agree 	to 	the 	District's
proposed deletions 	from the 	Hours 	article 	or there would be 	no
contract. 	Woodford made 	similar statements 	at 	the 	second session
on July 11, 	1996.8
At the 	sixth session on August 	14, 	1996, 	the District's
position 	on 	the 	Hours 	article 	apparently 	softened 	somewhat.
Woodford 	had offered 	a 	4 	percent 	salary 	increase 	and 	told 	CSEA
"if you want more you'll 	find that 	the grievable portions 	of 	your
contract 	will 	drop out 	of 	that 	contract." 	Kossick understood
Woodford was 	referring to 	the 	proposed deletions 	from the 	Hours
article. 	Woodford was 	apparently indicating he would 	insist 	on
those 	deletions 	only 	if 	CSEA wanted more 	than a 4 	percent 	salary
increase.
8Kossick's 	testimony with regard to 	these 	statements 	was 	not
contradicted by Woodford and, 	as to July 3, 	1996, 	was
corroborated by Kossick's 	bargaining notes.
47

The 	District 	remained 	adamant 	on Association 	Security,
however. 	At 	the conclusion of the August 	14 	session, 	CSEA stated
it was unwilling to accept 	the deletion of 	the Association
Security article. 	Kossick described Woodford's 	response 	as
follows:
Mr. 	Woodford said that basically if you, 	if
that's what you're going, 	if that's going to
be 	CSEA's position that 	then we wouldn't
reach an agreement 	and that, 	but 	that's okay
because 	no 	one 	ever 	said we 	had to 	reach an
agreement 	but 	we 	tried and that's 	all 	that
the 	law required us 	to do was 	try.
At 	that point, 	Woodford closed his 	notebook and left 	the 	room,
followed by the 	rest 	of 	the District's 	negotiating team. 	The
District 	team left without 	scheduling the 	next 	session, 	as 	the
parties 	had normally done 	at 	the 	conclusion of 	each session.
Kossick ultimately called the 	District 	to 	schedule 	the 	next
session.
The 	seventh, 	eighth, 	and ninth sessions took place 	in
September 	and October 	1996. 	A tenth 	session scheduled 	for
October 21, 	1996, 	was cancelled and rescheduled for November 7,
1996, 	at Kossick's request. 	At the beginning of the November 7
session, 	Kossick outlined CSEA's position, 	which then included
accepting the deletion of 	the 	subsection allowing a 	"9/80" 	work
schedule. 	After some discussion, 	the parties 	found themselves 	in
agreement 	on all 	issues 	except 	salary, 	Association Security,
Changes 	in Assigned Time, 	and Calendar Adjustment. 	The parties
had reached tentative 	agreements 	on the 	dozens 	of 	other 	issues,
through a process 	of give 	and take 	that 	began in the 	summer.
48

At 	the end of 	the November 7 	session, 	Woodford made 	to CSEA
the 	following 	trial 	proposal 	(which he 	later confirmed 	in
writing):
1. 	6% salary increase, 	effective January 1, 	1997.
2. 	Allow CSEA a mailed ballot 	agency 	shop 	election
conducted by 	PERB 	during 	the 	term of 	the
agreement.
3. 	Deletion of Article IX, 	Section 14, 	Changes in
Assigned Time.
4. 	Deletion of Article 	IX, 	Calendar Adjustment.
The 	District 	apparently was 	no 	longer 	insisting on 	the 	deletion
of 	the 	entire Association 	Security article 	and was willing 	to
give 	CSEA a 	chance 	to get 	the 	agency shop CSEA had sought. 	The
District was, 	however, 	still 	seeking the deletion of 	the sections
on Changes 	in Assigned Time and Calendar Adjustment, 	if 	there was
to be 	a 	6 percent 	salary increase.
Kossick 	said 	she 	needed time 	to 	consider Woodford's 	trial
proposal 	and requested another 	session on December 4, 	1996;
Woodford said the District was 	available 	to meet 	earlier, 	but
Kossick 	said her calendar was 	jammed. 	At 	the December 4 	session
(the eleventh and final 	session), 	Kossick stated CSEA would not
agree 	to deleting the provisions 	on Association Security, 	Changes
in Assigned Time, 	and Calendar Adjustment, 	but would agree to
maintaining the 	status 	quo on those 	issues. 	Woodford's 	initial
response was 	that 	the parties 	had no agreement 	and were 	at
impasse; 	Kossick then agreed the parties were at 	impasse. 	Later,
however, 	Woodford asked Kossick 	if 	she 	could commit 	to an
agreement 	with a 	6 	percent 	salary increase 	and the 	status 	quo on
49

Association Security, 	Changes 	in Assigned Time, 	and Calendar
Adjustment. 	Kossick said 	she 	thought 	she 	could 	if 	she 	talked to
the 	rest 	of 	the 	CSEA negotiating team. 	Ultimately, 	CSEA and the
District 	reached a verbal 	tentative 	agreement 	that 	day on 	the
basis 	outlined by Woodford, 	and the 	tentative agreement was 	later
ratified by both parties.
Woodford had drafted the 	District's 	initial 	proposal. 	He
testified as 	follows 	about 	which issues 	in the 	initial proposal
were most 	important 	to the District:
I would say the three, 	if 	I 	could pick three
issues, 	the most important would be, 	one, 	the
agreement 	within 	the 	economic 	parameters
given 	to me 	by the 	Board of 	Education and the
budget 	they gave me 	for negotiations;
secondly would be 	a 	term of 	three 	years 	with
as 	few reopeners as possible; 	and then
finally, 	we were under some pressure 	to
implement 	a 	settlement 	agreement 	reached with
the 	Department 	of 	Fair Employment 	and
Housing, 	known as the Ruderman Case
[involving health and welfare benefits].
Woodford did not 	testify how deletion of 	the provisions 	on
Association Security, 	Changes 	in Assigned Time, 	and Calendar
Adjustment 	related 	to 	these 	or any other 	concerns 	of 	the
District.
Kossick 	testified 	she 	thought 	Woodford had made 	good 	his
threat 	to 	"take 	it 	out on" 	CSEA in contract negotiations 	if 	CSEA
sought 	arbitration or 	filed an unfair practice 	charge, 	both of
which 	CSEA did. 	Woodford never 	admitted making 	those 	specific
threats. 	Woodford admitted telling Kossick 	it 	might 	be better 	if
ESP prevailed 	in 	its 	decertification attempt, 	but 	he 	denied doing
anything to put 	that 	idea 	in motion.
50

ISSUES
1. 	Did the 	District 	unilaterally change 	policy by
implementing 	the 	sick 	leave 	review policies?
2. 	Did the 	District 	deny CSEA's 	right 	to represent
employee 	Ron Wilson?
3. 	Did the 	District 	unilaterally change 	policy by
cancelling 	the 	commuter 	agreement 	with CSEA?
4. 	Did the District 	unlawfully refuse 	to provide
information 	requested by 	CSEA?
5. 	Did the District 	threaten to retaliate against 	CSEA?
6. 	Did the 	District unlawfully refuse 	to provide 	employee
addresses 	requested by 	CSEA?
7. 	Did the District 	unlawfully refuse 	to negotiate with
CSEA?
8. 	Did the District 	engage 	in surface bargaining with
CSEA?
CONCLUSIONS 	OF 	LAW
1. 	Alleged unilateral 	implementation of 	sick 	leave 	review
policies
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, 	in violation of EERA
section 3543.5 (c) . 	(Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	a charging
party must 	establish by a preponderance of 	the 	evidence 	(1) 	the
employer breached or altered the parties' 	written agreement 	or
51

its own established past practice; 	(2) 	such action was taken
without 	giving 	the 	exclusive 	representative 	notice 	and
opportunity to bargain over the change; 	(3) 	the change was not
merely an 	isolated breach of 	the 	contract 	but 	amounted to 	a
change of policy 	(that 	is, 	had a generalized effect 	or continuing
impact on bargaining unit members' 	terms 	and conditions of
employment); 	and 	(4) 	the change in policy concerned 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 	(1980) 	PERB Decision No. 	116.)
In the present 	case, 	there appears 	to be no dispute the 	sick
leave 	review policies 	concerned matters 	within 	the 	scope 	of
representation. 	EERA section 3543.2(a) 	specifically lists both
"leave" 	and 	"procedures 	to be used 	for the 	evaluation of
employees" 	as 	terms 	and conditions of 	employment within scope.
Furthermore, 	PERB has held 	"rules of 	conduct which subject
employees 	to 	disciplinary action are 	subject 	to negotiation 	[that
is, 	are within scope] 	both as to criteria for discipline and as
to procedure 	to be 	followed." 	(San Bernardino 	City Unified
School District 	(1982) 	PERB Decision No. 	255.)
There 	is 	some 	dispute 	in the briefs 	about whether the 	sick
leave 	review policies 	had a generalized effect 	on 	the 	members 	of
the bargaining unit. 	The District 	asserts 	they did not 	have 	such
an effect, 	but 	this assertion is contrary to the evidence. 	The
District 	itself 	used the word 	"policy" 	in 	the 	documents
52

themselves, 	indicating they were 	to have 	a generalized rather
than 	isolated effect. 	In the building services 	department 	at
least, 	the policy was 	explained to all 	supervisors 	and
disseminated to all 	employees. 	In the nutrition services
department, 	a similar effort was made, 	and the policy was
disseminated to 	at 	least 	several 	dozen 	12-month employees 	and
several 	dozen 	9-month employees. 	Although only one 	nutrition
services 	employee 	testified at 	hearing, 	several 	other employees
also 	received 	inter-office 	communications 	for not 	following 	the
policy on 	reporting 	absences.
There 	appears 	to be no real 	dispute 	CSEA did not 	receive
prior notice 	and opportunity to negotiate 	the 	sick 	leave 	review
policies. 	Without prior notice and opportunity to negotiate, 	a
change 	in policy tips 	the balance of negotiations, 	undermining
the 	exclusive 	representative 	and 	forcing 	it 	to 	try to 	talk 	the
employer back 	into 	the previously established policy. 	(San Mateo
County Community College District 	(1979) 	PERB Decision No. 	94.)
That 	is 	the position 	in which CSEA found itself. 	CSEA became
aware 	of 	the building 	services policy only after 	it was 	already
disseminated 	to 	the 	building 	services 	employees 	and 	apparently 	in
effect. 	In Evans's 	letter of November 6, 	1995, 	CSEA demanded the
District 	cease 	and desist 	from 	implementing 	the 	policy pending
negotiations, 	but 	the District did not do so.
Similarly, 	CSEA was 	not 	given prior notice 	and opportunity
to negotiate with regard to 	the nutrition 	services policy. 	CSEA
had been told 	(at 	the meeting of February 27, 	1996) 	the District
53

intended 	to 	apply 	the 	building 	services 	policy district-wide
eventually, 	but 	CSEA was 	also 	told 	(at 	the 	same meeting and also
at 	the meeting of March 1, 	1996) 	the District 	regarded the policy
as non-negotiable. 	In Kossick's letter of March 15, 	1996, 	CSEA
again 	demanded 	the 	District 	cease 	and desist 	from 	implementing
the building services policy pending negotiations, 	but 	again the
District 	did not do so. 	Instead, 	the District went 	ahead and
adapted 	the 	building 	services 	policy 	into 	the 	nutrition 	services
policy, 	without 	giving CSEA prior notice 	and opportunity 	to
negotiate.
There 	is 	significant 	dispute 	in this 	case 	about whether the
sick 	leave 	review policies 	altered the parties' 	Agreement 	or the
District's 	established past practice. 	I 	conclude one 	aspect 	of
the 	policies 	was 	fully consistent 	with 	and 	supported by 	the
Agreement. 	Article XIV, 	Section 3, 	gave the District 	"the right
to require verification" 	for sick 	leave 	"for good cause 	after
prior notification to the unit member." 	To 	the 	extent 	the 	sick
leave 	review policies 	required such verification, 	and to 	the
extent 	the 	step 	3 	and step 4 	notices gave notification of 	that
requirement, 	they were 	specifically authorized by the Agreement.
It 	would not 	matter 	if 	the 	District 	had not 	previously required
verification on a consistent basis, 	because a party's 	choice not
to enforce 	a 	specific 	right 	in the past 	does not preclude 	it 	from
doing 	so 	in the 	future. 	(Marysville 	Joint Unified School
District 	(1983) 	PERB Decision No. 	314.)
54

One 	other aspect 	of 	the policies was 	supported by a
combination of 	the Agreement 	and 	formal 	District 	policies.
Article XIV, 	Section 16, 	Subsection C, 	required vacation leave to
be 	"arranged 	in advance." 	In the building services 	department,
the 	operating rules 	had required vacation be 	approved at 	least
five days 	in advance. 	In the nutrition services department, 	the
employee 	handbook 	had required vacation 	requests 	be 	submitted 	at
least 	ten days 	in advance. 	The District 	thus did not 	change
established policy merely by 	stating 	in 	the 	sick 	leave 	review
policies 	that 	it would 	"uniformly enforce" 	these 	established
advance notice 	requirements.
The 	District 	generally argues 	that 	in 	fashioning 	the 	sick
leave 	review policies 	it 	merely 	"pulled together practices,
policies, 	rules 	and regulations 	that 	had been in existence both
informally and 	formally." 	The 	District 	made 	a 	similar argument
in San Bernardino City Unified School District, 	supra, 	PERB
Decision No. 	255. 	In that case, 	PERB acknowledged the District
had a 	legitimate 	interest 	in having 	its policies 	and rules 	set
forth 	clearly 	in written 	form. 	PERB nonetheless 	found an
unlawful 	unilateral 	change, 	because 	the evidence 	showed there had
been no uniform past 	practice 	but 	rather one 	that 	varied 	from
supervisor to supervisor. 	In the present case, 	the evidence
again shows variety rather than uniformity of past practice. 	It
is 	clear 	the past 	sick 	leave 	review practices of 	supervisors 	like
Stevenson were 	quite 	different 	from those 	of 	supervisors 	like
Clayton. 	Furthermore, 	the new sick 	leave 	review policies varied
55

at 	least 	in significant 	detail 	even 	from the practices 	of
Clayton, 	who 	led the 	development 	of 	the building services policy.
The 	burden was 	on CSEA to 	establish 	the 	sick 	leave 	review
policies 	altered 	the 	District's 	previous 	policy or practice.
Based on the 	findings 	of 	fact 	and the 	entire 	record 	in 	this
matter, 	I 	conclude CSEA has met 	its burden with respect 	to the
following significant 	aspects 	of 	the policies:
1. 	The 	six-step process.
2. 	The 50%-or-six-instances 	formula 	(Guideline A ) .
3. 	The 	restriction on using advance 	sick 	leave
(Guideline E ) .
4. 	The restriction on using vacation leave 	(Guideline G ) .
5. 	The restrictions on exactly when, 	how and by whom
absences are to be reported 	(Guidelines K and L ) .
6. 	The step 2 notice.
7. 	The 	step 3 	notice, 	to the extent 	it 	is a disciplinary
warning.
8. 	The 	step 4 	notice, 	to the extent 	it 	is a disciplinary
reprimand.
Although 	I 	have 	thus 	found all 	the 	elements 	of 	a unilateral
change, 	there 	remains 	a question whether CSEA waived 	its 	right 	to
negotiate with regard to the 	sick 	leave 	review policies. 	One way
such 	a waiver may be 	established 	is 	by 	clear 	and unmistakable
contractual 	language. 	(Amador Valley Joint Union High School
District 	(1978) 	PERB Decision No. 	74.)
56

In the present 	case, 	the District points to Article 	III 	of
the Agreement 	(District Rights). 	Section 1 of that article
states 	the District 	retains 	the 	rights 	to 	"maintain the
efficiency of District operations" and to "evaluate, 	. 	. 	.
terminate, 	and discipline employees," 	among other rights.
Section 2 	states 	in part 	"the adoption of policies, 	rules,
regulations, 	and practices 	in furtherance" 	of the exercise of
those 	rights 	"shall 	be 	limited only by the 	specific 	and express
terms of 	this Agreement."
A clear 	and 	explicit 	management 	rights 	clause 	may 	constitute
a 	clear 	and unmistakable 	waiver. 	(Barstow Unified 	School
District 	(1996) 	PERB Decision No. 	1138.) 	A generally-worded
management 	rights clause, 	however, 	will not be construed as 	such
a waiver. 	(Norris School District 	(1995) 	PERB Decision No. 	1090,
citing Dubuaue Packing Co. 	(1991) 	303 NLRB No. 	66 	[137 LRRM
1185] .)
I 	find the 	District 	Rights 	article 	in the Agreement 	to be
generally worded rather than clear and explicit. 	It 	does 	not
mention 	sick 	leave 	review policies 	specifically 	(or 	leave
policies generally), 	and the language on the right to 	"maintain
the 	efficiency of District operations" 	is 	too general 	to 	indicate
a specific waiver. 	Furthermore, 	even as 	to the subjects the
article does more specifically mention 	(such as discipline), 	it
does not 	indicate the District 	is 	to have 	"exclusive" 	(that 	is,
non-negotiable) 	rights. 	(Compare Barstow Unified School
District, 	supra, 	PERB Decision No. 	1138.) 	The article is thus
57

not 	a 	clear and unmistakable waiver of 	CSEA's 	right 	to 	negotiate
with regard to 	the 	sick 	leave 	review policies.
In San Bernardino City Unified School District, 	supra. 	PERB
Decision No. 	255, 	the District 	argued it 	could unilaterally adopt
rules 	of 	conduct 	pursuant 	to 	the 	then-existing contractual
language 	in which it 	retained the 	right 	to 	terminate 	and
discipline 	employees. 	PERB nonetheless 	found an unlawful
unilateral 	change. 	The District 	has 	not produced evidence 	the
contractual 	language has 	changed in 	such a way as 	to 	lead to 	a
different 	result 	in the present 	case.
Waiver may also be 	established by demonstrative 	behavior,
waiving a 	reasonable 	opportunity to negotiate 	over a 	decision not
already firmly made by the 	employer. 	(Los Angeles 	Community
College District 	(1982) 	PERB Decision No. 	252.) 	Such a waiver
must 	be 	an 	intentional 	relinquishment 	of 	statutory rights.
(Ibid.) 	An employee 	organization does 	not waive 	its 	rights 	to
negotiate by failing to 	request 	negotiations 	after a 	firm
decision has 	already been made by the 	employer. 	(Morgan Hill
Unified School District 	(1986) 	PERB Decision No. 	554a).
Because 	(as 	I 	have 	already concluded) 	CSEA did not 	receive
prio
- r 	notice 	and opportunity 	to negotiate 	with 	regard 	to 	the
building 	services policy, 	it 	cannot 	be 	said CSEA waived 	its
rights 	to negotiate 	before 	the 	policy was 	disseminated and made
effective. 	Once 	CSEA was 	aware of 	the policy, 	CSEA promptly
demanded to negotiate about 	it, 	by Evans's 	letter of November 6,
1995. 	The only real 	question is whether CSEA's 	conduct 	at 	and
58

after the negotiating session of November 16, 	1995, 	waived CSEA's
rights 	to 	further negotiations 	on the 	issue. 	Such a waiver would
not 	excuse the District's 	initial unilateral 	action, 	but 	it might
at 	least 	limit 	CSEA's 	remedy.
The 	evidence 	as 	to what 	happened at 	the November 	16 	meeting
is 	divided. 	Woodford and Norton 	testified they thought 	the
parties 	reached agreement 	on the policy, 	except 	as 	to the one
Education Code 	question. 	Evans 	and one 	of 	his 	negotiating team
members 	testified negotiations 	were 	not 	concluded but 	were 	to
continue, 	and this 	is what was 	reported to CSEA's executive
board.
The 	overall 	evidence 	shows 	both 	sides 	acted 	inconsistently
with regard to negotiating the 	building 	services policy. 	The
District 	initially disseminated 	the 	policy 	(and preprinted 	some
3000 	forms) 	without 	any notice to CSEA, 	as 	if the policy were
entirely non-negotiable. 	In response to CSEA's demand, 	however,
the 	District promptly set 	up 	the November 	16 	negotiating 	session.
Still, 	the District 	did not put 	the policy on hold, 	and Woodford
did not 	even keep notes of 	the November 16 meeting, 	as he would
normally do 	in negotiations.
After the November 16 meeting, 	someone at 	the 	CSEA office
faxed Woodford 	a 	document 	referring 	to 	"clarifying understandings
and agreements" 	concerning the policy, 	but 	Evans's more 	formal
letter to Woodford 	(dated December 1, 	1995) 	referred only to
"understanding/clarifications," 	avoiding any use 	of 	the word
"agreement." 	Woodford did not 	question this 	ambiguity 	in 	the
59
'

letter, 	nor did he 	seek written confirmation of 	an actual
agreement. 	On the other hand, 	Evans's December 1 	letter did not
refer to any further negotiations, 	nor did it 	repeat 	Evans's
earlier demand the 	District 	"cease 	and desist."
In some ways 	the 	District 	acted as 	if 	it had reached an
actual 	agreement with CSEA: 	it 	added the 	agreed language 	on
personnel 	files to the step 3 	and step 4 	notices, 	and it 	informed
supervisors 	of 	the 	agreed 	change 	on granting vacation 	for 	sick
leave 	use. 	When the 	District 	formally revised the building
services policy in May 1996, 	these changes were 	included, 	but
then 	so were 	other 	changes 	that 	apparently had not 	been
negotiated with CSEA. 	Furthermore, 	when the 	District 	adapted the
building 	services 	policy 	for use 	in 	the 	nutrition 	services
department, 	it 	did not 	include 	the 	change on granting vacation
for sick 	leave use, 	as 	if 	there had been no agreement with CSEA
even on this 	issue.
On January 31, 	1996, 	when Evans wrote Woodford about 	the
Education Code issue, 	he addressed it as a legal 	issue, 	not as a
negotiating 	issue. 	Evans 	again did not mention 	further
negotiations 	or ask the District 	to 	cease 	and desist. 	According
to Evans, 	Kossick was by then responsible 	for further
negotiations, 	but 	Kossick does not 	appear to have been giving
that 	responsibility much attention. 	Kossick 	did not 	attempt
further negotiations until 	February 27, 	1996, 	and the outline of
"concerns" 	in her letter of March 1, 	1996, 	was 	skimpy and vague
(especially 	in 	comparison with Evans's 	initial 	demand 	letter of
60

November 6, 	1995). 	Woodford's response to Kossick, 	at the
meeting of March 8, 	1996, 	was that he had no intention of
negotiating the policy in any case, 	because 	in his view it was
not negotiable.
How to explain the 	apparent 	inconsistencies 	in the parties'
behavior? 	Were 	they both uncertain as 	to what 	extent 	the 	policy
was 	negotiable? 	Were 	they both hoping 	to 	avoid what 	seemed
likely to be 	difficult 	negotiations 	on 	the policy as 	a whole?
Did CSEA enter the negotiating 	session on November 	16, 	1995,
knowing 	the 	policy as 	a whole was 	firmly decided 	(and might
require 	the 	filing of 	an unfair practice 	charge) 	but 	hoping 	some
of 	the 	details 	could 	still 	be 	ameliorated by negotiation?9 Did
the 	District 	open up 	the policy 	for 	full 	negotiation and 	then
later 	change 	its 	mind 	about 	negotiability? 	Did 	CSEA consciously
acquiesce 	in the policy as 	a whole 	and later change 	its mind?
Given the record in this 	case, 	any of these explanations 	is
speculation. 	Speculation will 	not 	support 	the 	finding of 	a
waiver. 	Given the ambiguities 	in the evidence, 	I 	cannot 	find
CSEA intentionally relinquished 	its 	statutory rights. 	I 	conclude
CSEA did not 	waive 	its 	rights 	to negotiate 	the 	sick 	leave 	review
policies.
For the 	foregoing reasons, 	I 	conclude the District's
implementation of 	the 	sick 	leave 	review policies 	was 	an unlawful
9If 	so, 	this 	case would be 	comparable 	to Morgan Hill Unified
School District, 	supra, 	PERB Decision No. 	554a, 	in which the
union negotiated the 	timing of 	an employee's 	bid after 	the
employer 	had already made 	a 	firm decision 	about 	the 	employee's
seniority.
61

unilateral 	change 	that violated 	its 	duty to bargain 	in good 	faith
with CSEA, 	in violation of EERA section 3543.5(c). 	This conduct
also denied CSEA its 	right 	to represent unit members, 	in
violation of EERA section 3543.5(b). 	This conduct also
interfered with the 	right 	of 	unit 	members 	to be 	represented by
CSEA, 	in violation of EERA section 3543.5(a).
2. 	Alleged denial 	of representation
In NLRB v. 	J. 	Weingarten, 	Inc. 	(1975) 	420 U.S. 	251 	[88 LRRM
2689] 	(Weingarten), 	the court held an employee has a right to
union 	representation 	at 	an 	investigatory 	interview 	the 	employee
reasonably believes may result 	in disciplinary action. 	In
Redwoods 	Community College Dist. v. 	Public 	Employment 	Relations
-Bd. 	(1984) 	159 Cal.App.3d 617 	[205 Cal.Rptr. 	523], 	the court
extended 	the 	Weingarten 	right 	of 	representation under 	EERA to 	an
interview with 	"highly unusual 	circumstances" 	even 	if 	the 	element
of discipline 	is absent.
CSEA argues 	the 	District 	violated the Weingarten right 	to
representation on February 1, 	1996, 	when employee Wilson was
scheduled to have 	a 	step 	2 	sick leave 	interview, 	and building
services 	director Norton ordered Wilson's 	CSEA representative 	to
"get 	the hell 	out." 	The problem with CSEA's argument 	is 	the
interview did not 	take place 	at 	all 	that 	day 	(with Norton
ordering Wilson out 	too), 	and when the 	interview finally did take
place 	(on February 7, 	1996) 	CSEA was allowed to represent Wilson.
One 	element 	of 	a Weingarten violation 	is 	the 	employer's
persistence 	in 	conducting 	an 	interview without 	representation.
62

(California State University, 	Long Beach 	(1991) 	PERB Decision No.
893-H.) 	Faced with an assertion of 	the Weingarten right, 	the
employer may 	(as 	one 	option) 	dispense with or discontinue 	the
interview. 	(Ibid.) 	The Weingarten rule 	requiring representation
is 	inapplicable 	if no meeting or interview takes place. 	(Placer
Hills Union School District 	(1984) 	PERB Decision No. 	377.) 	There
appears 	to be no 	reason to 	find a Weingarten violation 	in the
present 	case, 	where 	the District merely 	(though rudely) 	cancelled
one 	interview with 	representation 	and 	then 	scheduled 	another.10
CSEA also argues Norton's conduct on February 1, 	1996,
"encouraged employees 	to 	support 	one 	employee 	organization over
another, 	in violation of 	[EERA] 	section 3543.5(d)." 	In Santa
Monica Community College District 	(1979) 	PERB Decision No. 	103,
PERB stated, 	"The 	simple threshold test of 	[EERA] 	section
3543.5(d) 	is whether the employer's 	conduct 	tends 	to 	influence
that 	choice 	[between employee 	organizations] 	or provide 	stimulus
in one direction or the other." 	This 	threshold test 	is
objective; 	it does not depend on what 	the 	employer subjectively
intended or how employees 	actually responded. 	(Ibid.)
I 	find in the present 	case 	this 	threshold test 	has not 	been
met. 	Although he publicly and rudely told the 	CSEA
representative 	to 	"get 	the 	hell 	out," 	Norton did not 	say anything
against her personally or against 	CSEA generally; 	in fact, 	he
10Under the circumstances, 	there appears 	to be no need to
conclude 	whether or not Wilson actually had a right 	to
representation at 	a 	step 2 	sick leave 	interview. 	The District
does not dispute he had such a right, 	however.
63

said he 	did not 	care who 	she was. 	Norton also did not 	say
anything about CSEA's rival, 	ESP, 	and there 	is no apparent 	reason
to believe 	he would have 	treated an ESP 	representative
differently. 	Furthermore, 	there 	is nothing about 	the context of
Norton's 	conduct 	to demonstrate 	a 	stimulus 	or tendency to
influence 	the 	choice between CSEA and ESP; 	there 	is 	no 	evidence
ESP's 	decertification campaign, 	about which CSEA first 	informed
the District on March 12, 	1996, 	was even under way on February 1,
1996.
I 	do not believe 	every act 	of public 	rudeness 	to 	a union
representative 	is 	a 	threshold violation of 	EERA section
3543.5(d). 	By an objective standard, 	Norton's public rudeness to
the 	CSEA 	representative 	did not 	become 	something more 	merely by
virtue 	of 	Wilson's 	resulting 	"mixed 	feelings" 	about 	CSEA and his
later charge 	against 	CSEA, 	with which an ESP 	supporter offered to
help. 	I 	conclude Norton's conduct of February 1, 	1996, 	did not
violate EERA section 3543.5(d).
3. 	Alleged cancellation of 	commuter 	agreement
In its post-hearing brief, 	the District 	argues 	the 	commuter
agreement 	"contained an arbitration clause" 	but 	CSEA did not 	file
a grievance 	over 	its 	cancellation. 	Although the 	District 	does
not press 	the 	issue, 	this argument 	raises 	a question about 	PERB's
jurisdiction.
EERA section 3541.5(a) 	states, 	in part, 	PERB shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by the provisions 	of 	the 	agreement
between the parties until 	the grievance
machinery of the agreement, 	if 	it exists and
64

covers the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
In Lake Elsinore School District 	(1987) 	PERB Decision No. 	646,
PERB 	held 	this 	section established 	a non-waivable 	jurisdictional
rule 	requiring a charge be dismissed and deferred 	if 	(1) 	the
grievance machinery of 	the 	agreement 	covered the matter 	at 	issue
and culminated 	in binding arbitration and 	(2) 	the 	conduct
complained of 	in the 	unfair practice 	charge 	was 	prohibited by the
provisions of 	the 	agreement.
In Inglewood Unified School 	District 	(1991) 	PERB Order No.
Ad-222, 	PERB held the grievance machinery of 	an agreement 	covered
a matter 	for deferral 	purposes 	only if 	the 	agreement 	itself 	gave
the charging party the right 	to grieve 	the matter. 	In the
present 	case, 	Article XVIII 	of 	the Agreement 	(Grievance
Procedure), 	Section 1 	(Definitions), 	gave 	"any unit member or the
Association" 	the 	right 	to grieve 	concerning 	"a 	specific provision
of 	this Agreement." 	The grievance provision of 	the 	commuter
agreement, 	in contrast, 	gave the right to grieve concerning the
commuter 	agreement 	only to 	"[u]nit 	members 	who 	have 	been
adversely affected." 	Because 	CSEA itself 	was 	not 	given a
contractual 	right 	to grieve with regard to 	the 	commuter
agreement, 	the 	grievance machinery did not 	cover CSEA's 	dispute
with the 	District 	about 	the 	commuter agreement. 	Deferral 	is
therefore 	inappropriate, 	and PERB has 	jurisdiction.
As 	stated above 	(in 	connection with the 	sick 	leave 	review
policies), 	an employer's unilateral change in terms and
65

conditions 	of 	employment within the 	scope 	of 	representation 	is,
absent a valid defense, 	a per se refusal to negotiate, 	in
violation of 	EERA section 3543.5(c). 	A charging party must
establish by a preponderance of 	the evidence 	(1) 	the employer
breached or altered the parties' 	written agreement 	or 	its 	own
established past practice, 	(2) 	such action was taken without
giving 	the 	exclusive 	representative 	notice 	and 	opportunity 	to
bargain over the change, 	(3) 	the change was not merely an
isolated breach of 	contract 	but 	amounted 	to 	a 	change 	in policy
(that 	is, 	had a generalized effect 	or continuing 	impact 	on
bargaining unit members' 	terms and conditions of employment), 	and
(4) 	the 	change 	in policy concerned a matter within the 	scope of
representation.
In the present 	case, 	the District does not dispute the
commuter agreement was a policy within scope. 	The District 	does
not 	argue 	the 	commuter agreement 	terminated in 	1995, 	as Woodford
testified; 	such an argument would not be plausible, 	for the
reasons 	indicated in the 	findings of 	fact. 	I 	conclude 	the
commuter 	agreement 	was by 	its 	terms 	in effect 	through 	September
30, 	1996, 	and was thus in effect both on March 13, 	1996, 	when the
District 	told CSEA it would be 	cancelled, 	and on July 1, 	1996,
when the 	cancellation was 	effective.
The District 	argues, 	"Despite having three and one-half
months advance notice, 	the Association did not make 	a request 	to
negotiate 	the 	effects 	of 	the 	termination of 	the 	agreement." 	This
argument 	raises 	the 	question of whether CSEA's 	inaction 	in this
66

regard waived its 	right 	to negotiate. 	Such a waiver must be 	an
intentional 	relinquishment 	of 	an employee 	organization's 	rights
under EERA. 	(Los Angeles Community College District, 	supra, 	PERB
Decision No. 	252.) 	An employee organization does not waive 	its
rights 	to negotiate 	by failing to 	request 	negotiations 	after 	a
firm decision has 	already been made 	by the 	employer. 	(Morgan
Hill Unified School District, 	supra, 	PERB Decision No. 	554a). 	An
employee 	organization does 	not waive 	its 	rights 	to negotiate 	the
effects 	of 	a decision within scope where 	it 	has 	not 	had notice
and an opportunity to negotiate prior to the 	decision. 	(Arcohe
Union School District 	(1983) 	PERB Decision No. 	360.)
In the present case, 	the District's 	letter of March 13,
1996, 	presented the 	cancellation of 	the 	commuter agreement 	as 	a
firm decision of 	the District. 	The 	letter stated without
qualification that 	"effective July 1, 	1996, 	the agreement 	. 	. 	.
will 	be 	cancelled," 	and 	it 	invited contact 	from CSEA only 	for
"questions" 	or 	"information," 	not negotiations. 	According to
Kossick's 	uncontradicted 	testimony, 	when 	she 	discussed the
cancellation with Woodford he 	told her 	it 	was 	a District 	decision
that 	had already been made 	and 	implemented. 	Woodford testified
he 	anticipated CSEA would ask 	to negotiate 	the 	effects 	of 	the
cancellation, 	but 	there 	is no evidence he 	communicated to CSEA
any willingness 	to negotiate. 	Since 	the ultimate 	question 	is
whether 	CSEA 	intentionally 	relinquished 	its 	rights 	to 	negotiate,
the 	District's 	unexpressed willingness 	to 	negotiate 	would not
negate 	its 	express 	indications 	the decision was 	already 	firmly
67

made. 	I 	conclude 	CSEA did not waive 	its 	right 	to negotiate 	the
decision and effects 	of 	the 	cancellation of 	the 	commuter
agreement.
The 	District 	also argues:
Clearly the 	agreement 	was put 	in place 	only
to satisfy SCAQMD requirements. 	. 	. 	. 	Even
in the absence of notice, 	at 	the point that
the 	SCAQMD Plan was no longer 	in place,
bargaining unit 	employees 	no 	longer had an
expectation 	that 	the 	incentives 	would
continue.
It 	is 	true the 	stated purpose of the commuter agreement was 	"to
encourage unit members 	to participate 	in the 	Plan," 	and the
incentives were 	limited to 	"those 	unit 	members 	who 	regularly
report 	to work at 	a 	site 	governed by a 	Plan." 	There 	is 	no
allegation 	the 	District 	did not 	have 	the 	right 	to 	abolish the
plan itself, 	thus making the 	incentives 	inoperative. 	The
commuter agreement 	did more 	than provide 	the 	incentives, 	however;
it 	also provided the District would 	"encourage" 	flexible work
hours 	and 	alternative work 	schedules 	and 	CSEA would have 	one
position on 	the 	District 	Clean Air 	Corps Advisory Committee.
There 	is 	no 	evidence 	that 	abolishing the plan would necessarily
make 	these other provisions 	inoperative.11 Furthermore, 	the
commuter 	agreement 	did not 	state 	it 	would 	automatically change 	or
end if the plan changed or ended. 	Instead, 	it 	only said it 	could
be 	amended by mutual 	agreement 	and would remain 	in 	full 	force 	and
effect 	for the 	duration of 	the Agreement 	(which 	I 	have 	concluded
was through September 30, 	1996). 	I conclude the District's right
11The plan itself 	is not 	in evidence.
68

to abolish the plan did not 	automatically give 	it 	the 	right 	to
cancel 	the 	entire 	commuter agreement unilaterally, 	and the 	stated
purpose of the commuter agreement, 	in context, 	was not a clear
and unmistakable 	waiver of 	CSEA's 	right 	to negotiate 	concerning
cancellation of 	the 	agreement.
For the 	foregoing reasons, 	I 	conclude the District's
cancellation of 	the 	commuter agreement 	was 	an unlawful 	unilateral
change 	that 	violated 	its 	duty to bargain 	in good 	faith with CSEA,
in violation of EERA section 3543.5 (c) . 	This conduct also denied
CSEA its 	right 	to represent unit members, 	in violation of 	EERA
section 3543.5(b). 	This 	conduct 	also 	interfered with the 	right
of unit members 	to be 	represented by CSEA, 	in violation of 	EERA
section 3543.5(a).
4. 	Alleged denial 	of 	information
It 	has 	long been held by the National 	Labor Relations 	Board
(NLRB) 	and by PERB 	that 	the duty to bargain 	in good faith
requires 	an employer 	to provide 	information 	requested by a union
that 	is 	necessary and relevant 	to the union's 	duty as 	exclusive
representative 	to represent unit members. 	(NLRB v. 	Acme
Industrial Company 	(1967) 	385 U.S. 	432 	[64 LRRM 2069]; 	Procter &
Gamble Manufacturing Company v. 	NLRB 	(8th Cir. 	1979) 	603 	F.2d
1310 	[102 	LRRM 2128]; 	Stockton Unified School District 	(1980)
PERB Decision No. 	143 	(Stockton).) 	Certain information is
presumed to be 	relevant, 	but 	if 	the employer questions 	the
relevance 	the union must 	give 	the 	employer an explanation.
(Modesto City Schools and High School 	District 	(1985) 	PERB
69

Decision No. 	479.) 	Once relevant 	information is requested, 	the
employer must provide 	it 	or adequately set 	forth the 	reasons why
it 	is unable to comply. 	(The Kroger Company 	(1976) 	226 NLRB 512
[93 	LRRM 1315]; 	Stockton.) 	The employer may be excused if
compliance would be burdensome, 	but 	the burden of proving this
defense is on the employer. 	(NLRB v. 	Borden, 	Inc. 	(1st Cir.
1979) 	600 F.2d 313 	[101 LRRM 2727]; 	Stockton.)
Information 	immediately pertaining 	to mandatory 	subjects 	of
bargaining is presumptively relevant. 	(State of 	California
(Departments 	of 	Personnel 	Administration 	and Transportation)
(1997) 	PERB Decision No. 	1227-S.) 	Other information is not
presumed relevant, 	and the 	requestor must 	show the 	information 	is
relevant 	and necessary to 	its 	representational 	duties. 	(Ibid.)
The 	duty of 	fair 	representation under EERA extends 	to
grievance handling 	(Fremont 	Teachers Association 	(King) 	(1980)
PERB Decision No. 	125), 	and information relating to grievance
processing 	is 	deemed to be 	relevant 	(Modesto 	City Schools 	and
High School District, 	supra, 	PERB Decision No. 	479). 	The duty of
fair representation does not 	extend, 	however, 	to an extra-
contractual 	forum. 	(San Francisco 	Classroom Teachers
Association. 	CTA/NEA 	(Chestanque) 	(1985) 	PERB Decision No. 	544.)
In the present 	case, 	the requested witness 	list 	apparently
did not 	immediately pertain to 	a mandatory 	subject 	of 	bargaining,
nor did it 	relate to grievance processing. 	On the 	contrary, 	it
related to an extra-contractual 	forum, 	outside 	CSEA's
representational 	duty under EERA. 	The burden was 	therefore 	on
70

CSEA to 	show the witness 	list 	was 	nonetheless 	relevant 	and
necessary to 	its 	representational 	duties. 	CSEA did nothing to
meet 	this burden.
The requested commuter agreements, 	in contrast, 	did
immediately pertain to mandatory subjects 	of bargaining; 	the
commuter agreements 	stated as much on their 	face.12 It 	is 	true
CSEA had the commuter agreements 	in its 	archives, 	but 	this 	in
itself 	does 	not 	establish a 	recognized 	justification 	for 	the
District 	to refuse 	to provide 	them, 	nor does 	the District 	argue
it 	should.
It 	is 	apparently also 	true 	the District 	did provide 	the
commuter agreements 	"sometime 	later," 	as Woodford testified. 	The
District 	asserts 	in its post-hearing brief, 	"The 	slight 	delay was
due 	to the 	absence 	of Woodford's 	secretary." 	The 	evidence 	does
not 	support 	this assertion, 	however; 	Woodford did not 	testify the
delay was 	"slight" 	or due 	solely to his 	secretary's 	absence. 	I
have 	credited Kossick's 	testimony that 	Woodford said on March 	15,
1996, 	he would not provide the commuter agreements. 	This was a
refusal on its 	face. 	It may have been a short-lived refusal, 	but
it was nonetheless 	a refusal when it 	occurred.
I 	therefore 	conclude 	CSEA requested 	relevant 	information
(the commuter agreements), 	the District 	refused to provide that
information, 	and the District 	established no 	justification 	for
its 	refusal. 	Under PERB precedent, 	the District's refusal
12The 	commuter 	agreements 	specifically referred to 	"an 	impact
upon wages, 	hours, 	and other negotiable terms and conditions of
employment."
71

violated 	its 	duty to bargain 	in good 	faith with CSEA, 	in
violation of EERA section 3543.5(c). 	This 	conduct 	also denied
CSEA its 	right 	to represent 	unit members, 	in violation of EERA
section 3543.5(b). 	This 	conduct 	also 	interfered with the 	right
of 	unit members 	to be 	represented by CSEA, 	in violation of 	EERA
section 3543.5(a).
5. 	Alleged threat 	to retaliate
A threat 	to 	retaliate 	against 	an 	employee 	organization 	for
protected 	activity 	interferes 	with 	the 	organization's 	statutory
rights. 	(State 	of 	California 	(California Department 	of 	Forestry
and Fire Prevention) 	(1989) 	PERB Decision No. 	734-S.) 	Filing an
unfair practice 	charge 	or 	a 	grievance 	is 	protected activity.
(California State Employees Association 	(1993) 	PERB Decision No.
1014-S; 	North Sacramento School District 	(1982) 	PERB Decision No.
264.) 	Employee organizations 	as well 	as 	employees 	have 	statutory
rights to 	file unfair practice 	charges 	and grievances. 	(EERA Sec.
3541.5(a); 	South Bay Union School Dist. 	v. 	Public Employment
Relations Bd. 	(1991) 	228 Cal.App.3d 502 	[279 Cal.Rptr. 	135].)
In the present case, 	I have credited Kossick's 	testimony
that Woodford told her he would 	"take 	it 	out on" 	CSEA in contract
negotiations 	if 	CSEA sought 	arbitration of 	a grievance 	or 	filed
an unfair practice charge. 	I 	conclude 	this 	threat 	interfered
with CSEA's rights, 	in violation of EERA section 3543.5(b). 	This
conduct 	also 	interfered with the 	right 	of unit members 	to be
represented by CSEA, 	in violation of EERA section 3543.5 	(a).
72

CSEA argues Woodford's 	statements 	to Kossick, 	and in
particular his 	statement 	he 	hoped ESP would prevail 	in 	its
decertification attempt, 	also violated EERA section 3543.5(d),
which makes 	it 	unlawful 	for an employer to 	"in any way encourage
employees 	to 	join any organization 	in preference 	to 	another."
The 	test 	is 	"whether the 	employer's 	conduct 	tends 	to 	influence
that 	choice 	[between employee organizations] 	or provide 	stimulus
in one direction or the 	other." 	(Santa Monica 	Community College
District, 	supra, 	PERB Decision No. 	103.)
Given Woodford's position of 	authority in the District, 	and
the 	retaliatory content of his 	statements as a whole, 	I would
have 	little 	difficulty 	in 	finding his 	statements 	violated EERA
section 3543.5(d) 	if. he had made them within the hearing of unit
members 	who 	could have been 	influenced by them. 	The 	difficulty
is Woodford made his 	statements only to Kossick, 	and there 	is no
evidence 	any unit 	member heard them. 	Woodford's 	statements 	thus
could have 	a 	tendency to 	influence 	unit 	members 	only to 	the
extent 	Kossick, 	an agent 	of 	the 	charging party, 	repeated them.
CSEA cites El 	Torito-La Fiesta Restaurants v. 	NLRB 	(9th Cir.
1991) 	136 LRRM 2908, 	2912 	[929 F.2d 490], 	for the proposition "a
statement made 	to an agent 	of 	the employees' 	representative
should be 	considered as 	having been made 	to 	the 	employees." 	The
case 	is not on point, 	however, 	because 	it addressed whether laid-
off 	employees 	had a 	reasonable 	expectation of 	recall 	based 	in
part 	on what 	the 	employer told a union business 	agent. 	The 	case
did not 	address 	whether the 	employer's 	statements 	had an unlawful
73

tendency to 	influence 	employees 	where 	that 	influence 	could be
felt 	only 	if 	the 	charging party repeated the 	statements.
CSEA also 	cites 	Manton 	Joint 	Union 	Elementary 	School
District 	(1992) 	PERB Decision No. 	960, 	but 	I do not 	find the case
analogous. 	In that 	case, 	the employer made statements of 	support
to the 	leader of an employee organization; 	the 	leader was herself
a unit 	member, 	and her employee 	organization was 	the 	rival 	of 	the
charging party. 	The 	charging party thus 	could not 	control 	the
influence 	the 	employer's 	statements might 	have 	on unit 	members.
CSEA argues 	it was 	"appropriate" 	and, 	by implication,
predictable 	for 	Kossick 	to 	repeat 	Woodford's 	statements 	to 	at
least 	some of 	the unit members 	she 	represented. 	I 	do not
disagree. 	There was 	apparently nothing personal 	or confidential
about 	the 	meeting between Kossick 	and Woodford; 	they apparently
discussed various 	issues 	between CSEA and the District 	solely 	in
their representative capacities. 	Nonetheless, 	it 	seems
inappropriate 	to 	hold Woodford's 	statements 	had an unlawful
tendency to 	influence unit 	members 	when that 	influence 	depended
entirely on whether or not 	Kossick, 	an agent of 	the 	charging
party, 	repeated the 	statements. 	Kossick had complete 	control
over whether the 	statements 	would be 	communicated to unit 	members
at all and, 	if so, 	how. 	If she was concerned about the
statements' 	influence on unit members, 	she did not have to file
an unfair practice 	charge 	about 	them; 	she 	only had to 	refrain
from 	repeating 	them.
74

I 	conclude 	that 	although Woodford's 	statement 	violated EERA
section 3543.5(a) 	and 	(b), 	as previously discussed, 	they did not
in themselves violate EERA section 3543.5(d). 	I 	shall, 	however,
consider 	those 	statements, 	and the possibility of 	a 	3543.5(d)
violation, 	in connection with the District's alleged surface
bargaining with 	CSEA.
6. 	Alleged refusal 	to provide 	employee 	addresses
As 	stated above, 	it 	has 	long been held by the NLRB 	and PERB
that 	the 	duty to bargain 	in good 	faith requires 	an 	employer 	to
provide 	information 	requested by a union 	that 	is 	necessary and
relevant 	to 	the union's 	duty as 	exclusive 	representative 	to
represent 	unit members. 	Certain 	information 	is presumed to be
relevant, 	but 	if 	the 	employer questions 	the 	relevance 	the union
must 	give 	the 	employer an explanation. 	Once 	relevant 	information
is 	requested, 	the 	employer must provide 	it or adequately set
forth the 	reasons why it 	is unable 	to comply. 	The 	employer may
be excused if 	compliance would be burdensome, 	but 	the burden of
proving this 	defense 	is 	on the 	employer.
The NLRB has held unit members' 	home addresses 	are
presumptively relevant. 	(See, 	e.g., 	Harco Laboratories, 	Inc.
(1984) 	271 NLRB No. 	220 	[117 LRRM 1232].) 	In Prudential
Insurance Co. 	v. 	NLRB 	(2d Cir. 	1969) 	412 F.2d 77, 	84 	[71 LRRM
2254] 	(Prudential), 	the Court of Appeals stated the following
about 	a union's 	request 	for the addresses 	of unit members:
The 	kind of 	information requested by the
Union 	in this 	case 	has 	an even more
fundamental 	relevance 	than 	that 	considered
presumptively relevant. 	The 	latter is needed
75

by the 	union 	in order 	to bargain
intelligently on 	specific 	issues 	of 	concern
to the employees. 	But data without which a
union 	cannot 	even 	communicate 	with employees
whom it represents 	is, 	by its very nature,
fundamental 	to the entire expanse of 	a
union's 	relationship with the employees. 	In
this 	instance 	it 	is urgent 	so that 	the
exclusive 	bargaining 	representative 	of 	the
employees 	may perform 	its 	broad range 	of
statutory duties 	in 	a 	truly representative
fashion and 	in harmony with the 	employees'
desires 	and interests. 	Because 	this
information 	is 	therefore 	so basically related
to 	the proper performance 	of 	the union's
statutory duties, 	we believe any special
showing 	of 	specific 	relevance 	would be
superfluous.
With regard to 	requests 	for addresses 	(as well 	as with regard to
other requests 	for information), 	PERB has generally followed NLRB
precedent. 	(See, 	e.g., 	Mt. 	San Antonio Community College
District 	(1982) 	PERB Decision No. 	224, 	citing Prudential.)
In 1992, 	the 	California State Legislature amended section
6254.3 	of 	the California Public Records Act 	(PRA).13 This
section previously applied to 	the 	home 	addresses 	of 	state
employees 	only. 	As 	amended, 	the 	section states 	in relevant part
as 	follows 	(with the new language underlined):
(a) 	The home addresses 	and home telephone
numbers 	of 	state 	employees 	and employees 	of 	a
school 	district 	or 	county office- -of 	education
shall 	not 	be deemed to be public 	records 	and
shall not be open to public 	inspection,
except 	that 	disclosure 	of 	that 	information
may be made as 	follows:
(3) 	To an employee organization pursuant 	to
regulations 	and decisions 	of 	the 	Public
Employment Relations Board, 	except 	that 	the
home 	addresses 	and home 	telephone 	numbers 	of
13The 	PRA is 	codified at 	section 	6250 	and 	following.
76

employees 	performing 	law 	enforcement-related
functions 	shall 	not 	be 	disclosed.
(b) 	Upon written request 	of 	any employee, 	a
state 	agency, 	school 	district, 	or county
office 	of 	education 	shall 	not 	disclose 	the
employee's 	home 	address 	or 	home 	telephone
number pursuant 	to paragraph 	(3) 	of
subdivision 	(a) 	and 	an 	agency 	shall 	remove
the 	employee's 	home 	address 	and 	home
telephone 	number 	from 	any mailing 	list
maintained by 	the 	agency, 	except 	if 	the 	list
is 	used 	exclusively by 	the 	agency 	to 	contact
the 	employee.
In 	1986, 	prior 	to 	the 	1992 	PRA amendment, 	PERB 	issued 	specific
regulations 	with 	regard 	to 	the 	provision 	of 	the 	home 	addresses 	of
employees 	under 	the 	Ralph C. 	Dills Act 	(Dills Act) 	and 	the 	Higher
Education Employer-Employee 	Relations Act 	(HEERA).14 The 	Dills
Act 	regulation 	is 	PERB 	Regulation 	4016515 and 	states 	in 	relevant
part 	as 	follows:
(a) 	Except 	as prohibited by law, 	the 	state
employer 	shall 	release 	to 	an 	exclusive
representative 	a 	mailing 	list 	of 	home
addresses 	of 	state 	employees 	it 	represents
pursuant 	to 	a 	written 	request 	by 	the
exclusive 	representative.
(c) 	As 	provided by Government 	Code 	Section
6254.3, 	and upon written 	request 	of 	a 	state
employee, 	the 	state 	employer 	shall 	remove 	the
state 	employee's 	home 	address 	from the
mailing 	lists 	referenced 	in 	subsection 	(a)
and 	(b) 	prior to 	the 	release 	of 	such 	lists.
The 	HEERA regulation 	is 	PERB 	Regulation 	51027 	and 	is 	parallel 	to
the 	Dills 	Act 	regulation.
14The 	Dills Act 	is 	codified 	at 	section 	3512 	and 	following,
HEERA 	is 	codified 	at 	section 	3560 	and 	following.
15PERB 	regulations 	are 	codified 	at 	California 	Code 	of
Regulations, 	title 	8, 	section 31001 	and following.
77

When 	the 	Dills Act 	and HEERA regulations were 	issued 	in
1986, 	PRA section 6254.3 	applied to the home addresses of 	state
employees 	only. 	Now that 	the 	1992 	amendment to the 	Public
Records Act 	has made 	section 	6254.3 	applicable 	to 	the 	addresses
of public 	school 	employees 	as well, 	there 	appears 	to be no reason
why the principles 	embodied 	in these 	regulations 	should not 	also
apply under EERA, 	which in all 	relevant 	respects 	is parallel 	to
the Dills Act 	and HEERA.
I 	conclude 	that under EERA unit members' 	addresses 	are
presumptively relevant 	information. 	The burden thus 	shifts 	to
the District 	to 	justify its 	refusal 	to provide 	over 400 	such
addresses 	in April 	1996, 	when CSEA requested them. 	The District
has 	not 	rebutted the presumption 	those 	addresses 	were 	relevant
information, 	nor has 	the District 	argued or proved it would have
been burdensome to provide 	them. 	Furthermore, 	the District 	has
not 	argued or proved those 	addresses were 	withheld pursuant 	to
written requests 	by the 	employees 	under 	PRA section 	6254.3.
The 	District 	instead argues 	CSEA is 	"estopped" 	from claiming
the withholding of 	the 	addresses was wrongful because 	the
District 	followed the 	same procedure 	it 	had always 	followed 	in
producing addresses 	for CSEA. 	There is, 	however, 	no evidence
CSEA was 	previously aware 	of 	the 	inadequacies 	of 	that procedure.
Furthermore, 	a party does not 	lose a legal 	right 	(in this case,
the 	right 	under EERA to 	receive 	relevant 	information) 	merely by
not 	enforcing that 	right 	on prior occasions. 	(Cf. 	Marysville
Joint Unified School District, 	supra, 	PERB Decision No. 	314.)
78

The 	District 	also argues 	its withholding of 	the 	addresses
"was 	based upon 	an honestly held 	legal 	position 	regarding
employees' 	rights." 	This 	argument 	is not 	supported by the
evidence. 	Woodford did not 	testify he 	held any particular 	legal
position; 	it 	appears 	from the 	evidence 	he 	simply and mistakenly
believed 	the 	District 	had written requests 	on 	file 	for all 	the
employees whose 	addresses were withheld. 	This mistaken belief
could have 	been corrected 	(and ultimately was 	corrected) 	by a
review of 	the District's own 	files. 	There 	is no apparent 	reason
why 	such 	a mistaken belief 	should 	justify 	the 	District's 	refusal
to provide 	information that 	CSEA had a 	right 	to 	receive.
I 	therefore 	conclude 	the 	employee 	addresses 	CSEA requested
in April 	1996 	were 	relevant 	information and 	the 	District
established no defense 	for 	its 	refusal 	to provide over 400 	of 	the
requested addresses. 	Under PERB precedent, 	the District's
refusal 	violated 	its 	duty to bargain 	in good faith with CSEA, 	in
violation of EERA section 3543.5(c). 	This 	conduct 	also denied
CSEA its 	right 	to represent unit members, 	in violation of 	EERA
section 3543.5(b). 	This 	conduct 	also 	interfered with the 	right
of unit members 	to be 	represented by CSEA, 	in violation of 	EERA
section 3543.5(a).
7. 	Alleged refusal 	to bargain
As noted above 	(in connection with the 	commuter agreement),
EERA section 3541.5(a) 	states, 	in part, 	PERB shall not:
Issue 	a 	complaint 	against 	conduct 	also
prohibited by the provisions 	of 	the 	agreement
between the parties until 	the grievance
machinery of the agreement, 	if 	it exists and
79

covers 	the matter at 	issue, 	has been
exhausted, 	either by settlement 	or binding
arbitration.
In Lake Elsinore School District, 	supra, 	PERB Decision No. 	646,
PERB 	held 	this 	section established 	a 	non-waivable 	jurisdictional
rule 	requiring a charge be 	dismissed and deferred 	if 	(1) 	the
grievance 	machinery of 	the 	agreement 	covered the matter 	at 	issue
and culminated in binding arbitration and 	(2) 	the 	conduct
complained of 	in 	the unfair practice 	charge was 	prohibited by the
provisions of 	the 	agreement.
These 	standards 	are met 	in this 	case with respect 	to the
allegation that 	the 	District 	refused to negotiate with CSEA in
May 1996. 	First, 	the grievance machinery of the Agreement
covered 	the 	dispute 	raised by 	this 	allegation 	and 	culminated 	in
binding arbitration. 	Second, 	the 	conduct 	complained of 	in this
allegation was 	arguably prohibited by Article XXIV, 	Section 	3,
which 	required 	the 	parties 	to 	commence 	meeting 	and negotiating no
later than June 	1. 	This allegation, 	to the extent 	it 	alleges an
independent EERA violation, 	must 	therefore be dismissed. 	The
evidence will be considered, 	however, 	in connection with the
District's 	alleged 	surface 	bargaining with 	CSEA.
8. 	Alleged 	surface bargaining
EERA section 3543.5(c) 	makes 	it unlawful 	for a public 	school
employer to 	refuse or 	fail 	to meet 	and negotiate 	"in good 	faith"
with an exclusive 	representative. 	An 	employer must 	negotiate
with a good 	faith intent 	to reach agreement. 	(Pajaro Valley
Unified School District, 	supra. 	PERB Decision No. 	51.)
80

Negotiating without 	such an 	intent 	is 	called 	"surface 	bargaining"
because 	of 	its 	superficiality. 	A surface 	bargaining violation 	is
determined by a 	"totality of 	conduct" 	test 	that 	"looks 	to 	the
entire 	course 	of 	negotiations 	to determine whether 	the 	employer
has 	negotiated with 	the 	requisite 	intention of 	reaching
agreement." 	(Ibid.)
Surface 	bargaining 	is 	indicated by a 	course 	of 	conduct 	that
delays 	or 	thwarts 	the 	bargaining process 	and 	for which 	there 	is
no reasonable explanation or rationale. 	(See, 	e.g., 	Stockton
Unified School District, 	supra. 	PERB Decision No. 	143.) 	The duty
to negotiate 	in good faith does not, 	however, 	require parties to
reach agreement, 	make concessions on every proposal, 	or yield
positions 	fairly maintained. 	(Oakland Unified School 	District
(1982) 	PERB Decision No. 	275.)
In the present 	case, 	the 	course of 	the negotiations between
CSEA and the District was 	in 	some ways 	unremarkable. 	The parties
met 	eleven times 	on a 	fairly regular basis 	for a 	little 	over 	five
months. 	They started with dozens 	of 	issues 	and eventually worked
their way through them, 	apparently resolving easier 	issues 	first
and harder issues 	last. 	Ultimately, 	they reached agreement
without 	resorting to 	the 	statutory procedures 	for resolving 	an
impasse 	(under EERA section 3548 	and following).
Some 	remarkable 	things 	occurred before 	the parties 	began
negotiating, 	however. 	First, 	ESP launched its decertification
effort 	against 	CSEA; 	CSEA informed Woodford of 	this 	effort 	on
March 12, 	1996. 	Then, 	on March 15, 	1996, 	Woodford told Kossick
81

he hoped ESP would prevail, 	and he 	threatened to 	"take 	it 	out on"
CSEA in contract 	negotiations 	if 	CSEA sought 	to arbitrate 	a
grievance 	or 	filed an unfair practice 	charge, 	both of which CSEA
did. 	Then, 	on May 7, 	1996, 	Woodford responded to CSEA's 	initial
proposal 	by refusing 	to bargain on the basis 	of 	an asserted 	"good
faith doubt 	as 	to the 	CSEA's majority support." 	Woodford
testified he 	researched 	this 	matter only after 	CSEA 	filed 	a
grievance on May 20, 	1996; 	Woodford then concluded his 	initial
position was 	incorrect, 	and he granted the grievance on May 24,
1996.16 Negotiations 	therefore did not begin until 	July 4, 	1996,
although 	the 	Agreement 	had 	stated 	CSEA and 	the 	District 	"shall
commence meeting and negotiating" 	no 	later than June 	1.
Woodford 	testified he 	never 	did anything 	to put 	in motion
his 	expressed hope 	ESP would prevail 	over CSEA. 	Under the
circumstances, 	I 	do not 	credit this testimony.17 CSEA's 	initial
proposal 	gave Woodford his 	first 	opportunity to 	"take 	it 	out 	on"
CSEA in contract negotiations, 	as he had threatened to do. 	It
also gave 	him an opportunity to 	assist 	ESP's 	decertification
efforts, 	since 	a delay in negotiations would tend to undermine
16Woodford did not 	explain why he 	ever 	thought 	his 	initial
position was 	correct.
17Woodford's 	self-serving 	testimony on 	this 	point 	was
elicited by a 	leading question and was 	thus 	less 	credible 	than 	it
otherwise might 	have been. 	Also, 	Woodford undermined his own
credibility generally by 	testifying 	the 	Agreement 	(and 	the
commuter agreements) 	terminated in 1995, 	an implausible position
that 	was 	also 	inconsistent 	with 	letters 	Woodford 	sent 	to 	CSEA and
PERB. 	Furthermore, 	although surface bargaining is a question of
subjective 	intent, 	it 	is generally to be determined by objective
evidence.
82

CSEA and encourage 	support 	for 	its 	rival. 	Woodford took 	the
opportunity.
As 	the District's employee relations 	director, 	Woodford
presumably knew 	the Agreement 	required negotiations 	to 	begin 	no
later than June 	1. 	As 	an experienced labor relations
professional, 	he presumably also knew a refusal 	to bargain is 	a
serious matter. 	Woodford nonetheless 	responded to CSEA's 	initial
proposal 	by refusing to bargain, 	apparently without 	researching
the 	matter beforehand. 	When 	CSEA challenged Woodford by 	filing 	a
grievance, 	it did not 	take Woodford long to change his position,
but his refusal 	still 	had its 	effect, 	and negotiations were
delayed until 	July 4, 	1996.
I 	conclude Woodford's 	statements of March 15, 	1996, 	and his
refusal of May 7, 	1996, 	are 	strong evidence Woodford intended to
and did retaliate 	against 	CSEA and 	support 	ESP 	by delaying 	the
bargaining process. 	The next 	question 	is whether 	such an 	intent
and 	such conduct 	continued 	in the 	course 	of 	the 	negotiations 	with
CSEA.
One 	indication of 	surface bargaining 	is 	the making of
predictably unacceptable proposals. 	(Redwood City School
District 	(1980) 	PERB Decision No. 	115; 	Oakland Unified School
District 	(1983) 	PERB Decision No. 	326.) 	Woodford drafted the
District's initial proposal of June 14, 	1996, 	which CSEA's
negotiating 	team found an unacceptable 	"bunch of 	nonsense." 	Was
this 	reaction predictable? 	As 	to 	the Association Security
article, 	I 	conclude 	it was. 	An Association Security article had
83

been part of 	the parties' 	collective bargaining agreement 	since
1979. 	By its nature, 	the 	article helped secure the viability of
the 	CSEA chapter. 	Woodford did not 	testify the 	District 	had any
problems with the article, 	and yet 	he proposed to delete 	it
entirely. 	This was 	a predictably unacceptable proposal, 	and was
presumably 	intended 	to be.
As 	to the deletions 	from the Hours 	article, 	the question is
closer. 	Sections 	on Changes 	in Assigned Time 	and Calendar
Adjustment 	had been part 	of 	the Hours 	article 	since 	1979 	and 	1982
respectively; 	they had also been at 	issue 	in recent grievances.
The 	existence 	of 	the 	grievances would tend to 	indicate 	these 	two
sections were of 	some 	importance 	to CSEA; 	this 	is 	especially true
of 	the grievance 	on Changes 	in Assigned Time, 	which CSEA decided
to take 	to arbitration. 	On the other hand, 	the grievances would
also 	indicate 	these 	sections were 	a 	source 	of 	some 	disagreement,
which 	the 	District 	could 	reasonably 	seek 	to 	resolve 	in
negotiations. 	If 	there was a problem with the 	language of 	these
sections, 	however, 	one might expect 	the District 	to propose 	some
clarifying changes 	in that 	language. 	The District 	never did so,
but 	only proposed the 	sections 	be 	deleted entirely. 	Especially
in the 	light of Woodford's 	threat 	to 	"take 	it out 	on" 	CSEA if 	it
sought 	arbitration of 	the grievance 	on Changes 	in Assigned Time,
I 	conclude 	the District's proposal 	to delete the 	two 	sections was
intended 	to be 	and 	actually was 	predictably unacceptable.18
18I do not conclude, 	however, 	the District's proposal to
delete 	the 	subsection allowing a 	"9/80" 	work schedule was
predictably unacceptable. 	That 	subsection apparently dated 	from
84

Another 	indication of 	surface bargaining is 	taking an
inflexible position. 	(Fremont 	Unified School 	District 	(1980)
PERB Decision No. 	13 6.) 	The District 	took an inflexible position
on Association Security for over 	four months. 	At 	the 	first 	and
second negotiating 	sessions, 	Woodford 	stated there would be 	no
agreement 	unless 	the 	entire 	article was 	deleted. 	At 	the 	sixth
session, 	Woodford made a 	similar statement, 	then emphasized the
point 	by walking out, 	without 	scheduling the next 	session as
normal. 	Walking out 	is 	itself evidence of 	surface bargaining.
(San Ysidro School District 	(1980) 	PERB Decision No. 	134.) 	The
District 	apparently 	remained 	inflexible 	on 	the Association
Security 	issue until 	the 	tenth session, 	when it 	offered CSEA a
mailed agency 	shop 	election.
In its post-hearing brief, 	the District argues 	it was 	simply
engaging 	in 	lawful 	"hard bargaining." 	The 	essence 	of 	lawful 	hard
bargaining, 	however, 	is insistence on positions 	fairly
maintained. 	(Oakland Unified School District, 	supra, 	PERB
Decision No. 	275.) 	Woodford never testified to any legitimate
reason for deleting the 	entire Association Security article. 	For
the 	same 	reasons 	I 	have 	concluded the District's 	initial proposal
on this 	issue was 	intentionally predictably unacceptable, 	I 	also
conclude 	the 	District's 	position was 	not 	fairly maintained.
The 	District 	also took 	an 	inflexible position on 	the 	Hours
article. 	At 	the 	first two 	sessions, 	Woodford stated there would
be no 	agreement unless 	the 	sections 	on Changes 	in Assigned Time
only 	1992, 	and CSEA ultimately accepted 	its 	deletion.
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and Calendar Adjustment were deleted. 	At 	the 	sixth session,
Woodford 	softened his 	position 	somewhat 	and 	indicated he 	would
insist 	on those 	deletions 	only 	if 	CSEA wanted more 	than a
4 	percent 	salary 	increase. 	Conditioning agreement 	on economic
matters upon agreement on non-economic matters, 	however, 	is also
an 	indication of 	surface bargaining. 	(Fremont 	Unified School
District, 	supra, 	PERB Decision No. 	13 6.) 	Woodford never proposed
any change 	in the two Hours 	sections 	short 	of total 	deletion, 	and
he 	continued 	to propose 	their deletion until 	the parties 	appeared
to reach impasse 	at 	the eleventh session, 	after over five months
of negotiations. 	Woodford never testified as 	to 	any legitimate
reason for deleting the two sections. 	For the 	same 	reasons 	I
have 	concluded the 	District's 	initial 	proposal 	on 	these 	issues
was 	intentionally predictably unacceptable, 	I 	also conclude 	the
District's 	position was 	not 	fairly maintained.19
For all 	the 	foregoing reasons, 	I 	conclude that 	in the course
of 	negotiations 	the 	District 	continued 	its 	intent 	and conduct 	to
delay the bargaining process, 	as 	initially evidenced by
Woodford's 	statements of March 15, 	1996, 	and his refusal to
bargain on May 7, 	1996. 	I 	therefore conclude the District
engaged 	in bad 	faith surface bargaining, 	in violation of 	EERA
section 3543.5(c). 	This conduct also tended to undermine CSEA
and support 	ESP 	in the pending decertification election, 	in
violation of EERA section 3543.5(d). 	This conduct 	also denied
19I do not conclude, 	however, 	the District's position on
deleting the 	subsection allowing a 	"9/80" 	work 	schedule was 	not
fairly 	maintained.
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CSEA's rights, 	in violation of EERA section 3543.5(b). 	This
conduct 	also 	interfered with the 	right 	of 	employees 	to be
represented by CSEA, 	in violation of EERA section 3543.5(a).
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REMEDY
EERA section 3541.5 (c) 	gives PERB:
. 	. 	. 	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 	[EERA].
In the present 	case, 	the District 	has been found to have violated
EERA section 3543.5(a), 	(b), 	(c) 	and (d), by (1) unilaterally
implementing sick leave review policies, 	(2) 	unilaterally
cancelling a commuter agreement, 	(3) 	refusing to provide CSEA
with commuter agreement 	information, 	(4) 	threatening CSEA, 	(5)
refusing to provide 	CSEA with employee 	addresses 	and 	(6) 	engaging
in bad faith surface bargaining with CSEA. 	It 	is 	therefore
appropriate 	to direct 	the 	District 	to 	cease 	and desist 	from 	such
conduct. 	In connection with some violations, 	it 	is also
appropriate 	to direct 	the 	District 	to 	take 	certain affirmative
actions, 	as discussed below.
Sick 	leave 	review policies
I 	have 	concluded the 	District 	violated 	its 	duty to negotiate
with 	CSEA by unilaterally 	implementing 	sick 	leave 	review
policies. 	It 	is 	therefore appropriate 	to direct 	the District 	to
meet 	and negotiate 	about 	sick 	leave 	review policies, 	if 	CSEA so
requests.
In California State Employees' 	Association v. 	Public
Employment Relations Bd. 	(1996) 	51 Cal.App.4th 923, 	946
[59 Cal.Rptr.2d 488], 	the court stated in part:
88

Restoration of the 	status quo is the
normal 	remedy for a unilateral 	change 	in
working 	conditions 	or 	terms 	of 	employment
without 	permitting bargaining members'
exclusive 	representative 	an opportunity to
meet 	and 	confer over 	the 	decision and 	its
effects. 	(See, 	e.g., 	Oakland Unified School
Dist. 	v. 	Public Employment Relations Bd.
(1981) 	120 Cal.App.3d 1007, 	1014-1015 	[175
Cal.Rptr. 	105].) 	This is usually
accomplished by requiring 	the 	employer 	to
rescind the unilateral 	change 	and to make
employees 	"whole" 	from losses 	suffered as 	a
result 	of 	the unlawful 	unilateral 	change.
It 	is 	therefore 	appropriate 	to direct 	the District 	to 	rescind the
sick 	leave 	review policies 	and reinstate 	the District's previous
policies and practices, 	if CSEA so requests. 	It 	is also
appropriate 	to direct 	the District 	to make whole 	those 	employees
who 	have 	been 	adversely affected by 	the 	sick 	leave 	review
policies, 	due to documents placed in their personnel 	files,
substandard evaluations, 	dockings of pay, 	suspensions and
dismissals pursuant 	to those policies. 	The District will
therefore be 	directed to rescind such adverse 	actions, 	although
it may reimpose 	them on the basis 	of 	the previous policies 	and
practices. 	To the 	extent 	employees 	have 	lost pay due 	to actions
that 	are 	rescinded and not 	reimposed, 	the 	employees 	shall 	receive
back pay with interest at 	the 	rate of 	7 percent per annum. 	(See
Regents of 	the University of 	California 	(1997) 	PERB Decision
No. 	1188-H.)
I 	recognize 	it may be difficult, 	at 	least 	in some 	instances,
for 	the 	District 	to determine 	whether actions 	taken under 	the
sick 	leave 	review policies, 	which therefore must 	be 	rescinded,
would also 	have 	been 	taken under 	the previous policies 	and
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practices, 	and therefore may be reimposed. 	Part of 	the
difficulty arises 	from the variety of 	past 	practices 	that
existed, 	at 	least 	in the building services department. 	This
difficulty does 	not 	justify denying 	the 	affected employees 	a
remedy, 	however. 	On the other hand, 	it would not be appropriate
to prevent 	the 	District 	from reimposing 	actions 	it would have
taken even 	if 	it 	had not 	implemented the 	new sick 	leave 	review
policies.
Commuter 	agreement
I 	have 	concluded the 	District 	violated 	its 	duty to negotiate
with CSEA by unilaterally cancelling a 	commuter agreement. 	It 	is
therefore 	appropriate 	to direct 	the 	District 	to meet 	and
negotiate about 	commuter policies, 	if CSEA so requests.
As noted above, 	the normal 	remedy for a unilateral 	change 	is
restoration of the 	status quo. 	In the present 	case, 	there are
two obvious 	objections 	to 	restoring the 	status 	quo by reinstating
the policies 	in the commuter agreement: 	(1) 	the 	stated duration
of the commuter agreement, 	which I 	have concluded was through
September 30, 	1996, 	has passed, 	and 	(2) 	the stated purpose of the
commuter agreement, 	"to encourage unit members 	to participate 	in
the 	Plan," 	can no 	longer be 	carried out, 	because 	the plan 	itself
has been abolished. 	In California State Employees' 	Association
v. 	Public Employment Relations 	Bd., 	supra, 	51 Cal.App.4th 923,
however, 	the 	court 	held duration language 	in an agreement 	did not
authorize 	unilateral 	termination of 	the 	agreement 	and did not
make restoration of 	the 	status quo 	inappropriate. 	In the present
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case, 	I 	have 	concluded the 	stated purpose of the 	commuter
agreement 	also did not 	authorize unilateral 	termination, 	and 	I
further 	conclude 	the 	stated purpose 	and the 	duration 	language 	do
not make 	restoration of 	the 	status 	quo 	inappropriate. 	The
District 	will 	therefore 	be 	directed to 	reinstate 	the 	policies 	in
the commuter agreement, 	if CSEA so requests.
CSEA also 	asks 	the 	District 	be 	required to 	credit 	"employees
who use alternative methods of commuting 	. 	. 	. 	with additional
vacation 	time 	and meal 	vouchers which they would have 	received
but 	for the 	employer's 	illegal 	conduct." 	In the present 	case,
however, 	this make-whole remedy is 	inappropriate. 	The commuter
agreement 	specifically limited 	its 	incentives 	to 	"unit 	members
who 	regularly report 	to work at 	a 	site governed by a 	Plan."
There 	is 	no allegation the District 	did not 	have 	the 	right 	to
abolish the plan itself, 	making the 	incentive provisions of 	the
commuter agreement 	inoperative. 	There 	is 	thus no evidence 	any
employees 	lost 	incentives 	due 	to the 	District's unlawful 	conduct
(cancelling the 	commuter agreement) 	that 	they would not 	have
already lost 	due 	to 	the 	District's 	lawful 	conduct 	(abolishing the
plan).
Posting
It 	is 	also 	appropriate 	the 	District 	be 	directed to post 	a
notice 	incorporating the 	terms of 	the order in this 	case.
Posting of 	such a notice, 	signed by an authorized agent 	of 	the
District, 	will provide employees with notice the District 	has
acted in an unlawful manner, 	is being required to cease 	and
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desist 	from 	this 	activity 	and 	take 	affirmative 	remedial 	actions,
and will 	comply with 	the 	order. 	It 	effectuates 	the 	purposes 	of
EERA 	that 	employees 	be 	informed 	both 	of 	the 	resolution 	of 	this
controversy 	and 	of 	the 	District's 	readiness 	to 	comply with 	the
ordered 	remedy. 	(Placerville 	Union 	School 	District 	(1978) 	PERB
Decision No. 	69.)
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and upon 	the 	entire 	record 	in 	this matter, 	it 	is 	found the
San 	Bernardino 	City 	Unified 	School 	District 	(District) 	violated
the 	Educational 	Employment 	Relations 	Act 	(EERA or A c t ) ,
Government Code section 3543.5(a), 	(b), 	(c) 	and 	(d), 	by
(1) 	unilaterally 	implementing 	sick 	leave 	review policies,
(2) 	unilaterally cancelling a commuter agreement, 	(3) 	refusing to
provide 	the 	California 	School 	Employees 	Association 	(CSEA) 	with
commuter 	agreement 	information, 	(4) 	threatening 	CSEA,
(5) 	refusing 	to 	provide 	CSEA with 	employee 	addresses 	and
(6) 	engaging 	in 	bad 	faith 	surface 	bargaining with 	CSEA.
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. 	Unilaterally 	implementing 	sick 	leave 	review
policies 	within 	the 	scope 	of 	representation, 	in 	the 	absence 	of 	a
waiver 	of 	CSEA's 	right 	to 	negotiate.
2. 	Unilaterally 	cancelling 	commuter 	agreements.
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3. 	Refusing without 	legal 	justification to provide
CSEA with relevant 	and necessary 	information, 	including but 	not
limited 	to 	commuter 	agreement 	information 	and employee 	addresses,
upon a proper request 	by CSEA.
4. 	Threatening CSEA for protected activity.
5. 	Engaging 	in bad 	faith bargaining with CSEA.
6. 	Encouraging employees 	in any way to 	join any other
employee 	organization 	in preference 	to 	CSEA.
7. 	By the 	same conduct, 	denying CSEA its rights.
8. 	By the 	same 	conduct, 	interfering with the rights
of 	employees 	to be 	represented by CSEA.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES OF THE ACT:
1. 	If 	requested by CSEA within 	10 	days 	of 	this
proposed decision becoming 	final, 	meet 	and negotiate 	in good
faith with CSEA concerning 	sick 	leave 	review policies 	and
commuter policies.
2. 	If 	requested by CSEA, 	reinstate 	the prior leave
policies 	and practices 	and prior 	commuter policies.
3. 	Make whole 	those unit members 	adversely affected
by the 	sick leave 	review policies, 	as 	follows:
a. 	All 	documents placed in unit members'
personnel 	files pursuant 	to the policies, 	including but not
limited to step 2, 	step 3 	and step 4 notices, 	shall be removed.
Step 	3 	and step 4 	notices may be 	replaced by the 	documents
previously 	in use 	that 	dealt 	with verification of 	absences 	but
did not 	refer to discipline. 	Disciplinary warnings 	and
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reprimands 	may be 	reimposed only on 	the 	basis 	of 	previous
policies 	and practices.
b. 	Unit 	members 	who 	received 	substandard
attendance/punctuality evaluations 	pursuant 	to 	the 	policies 	shall
be 	reevaluated pursuant 	to previous policies 	and practices.
c. 	Any docking of pay or 	suspension or dismissal
pursuant 	to 	the policies 	shall 	be 	rescinded. 	Any such docking,
suspension or dismissal 	may be 	reimposed only on the 	basis 	of
previous policies 	and practices. 	Unless 	the actions 	are 	thus
reimposed, 	the 	affected employees 	shall 	receive back pay with
interest 	at 	the rate of 	7 percent per annum, 	and the dismissed
employees 	shall 	be 	reinstated.
4. 	Within ten 	(10) 	workdays of the service of 	a final
decision 	in this matter, 	post 	at 	all work locations where notices
to 	classified employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto as 	an Appendix. 	The Notice must be 	signed
by an authorized agent 	of 	the District, 	indicating 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 ensure 	the Notice 	is 	not
reduced in size, 	altered, 	defaced or covered with any other
material.
5. 	Upon issuance of a final 	decision, 	make written
notification of 	the 	actions 	taken 	to 	comply with the 	Order to 	the
Sacramento Regional 	Director of 	the 	Public 	Employment 	Relations
Board, 	in accord with the 	regional 	director's 	instructions.
94
.

Pursuant 	to California Code of Regulations, 	title 	8,
section 323 05, 	this 	Proposed Decision and Order shall become
final 	unless 	a party files 	a 	statement 	of 	exceptions 	with the
Board 	itself 	at 	the 	headquarters 	office 	in 	Sacramento within
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 of 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 of
Regs., 	tit. 	8, 	sec. 	32135; Code of Civ. 	Pro. 	sec. 	1013 shall
apply.) 	Any statement 	of 	exceptions 	and supporting brief must 	be
served 	concurrently with 	its 	filing upon 	each party to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany each copy 	served on
a party or filed with the Board itself. 	(See Cal. 	Code of Regs.,
tit. 	8, 	secs. 	32300, 	32305 and 32140.)
THOMAS J. 	ALLEN
Administrative 	Law Judge
95