Morgan Hill Unified School District (PERB 1362E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
SERVICE WORKERS LOCAL 715, 	SEIU,
AFL-CIO,
Charging 	Party,
v.
MORGAN HILL UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	SF-CE-2055
PERB Decision No. 	1362
December 	10, 	1999
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Appearance: 	Van Bourg, 	Weinberg, 	Roger & Rosenfeld by-
Vincent A. 	Harrington, 	Jr., 	Attorney, 	for Service Workers
Local 715, 	SEIU, AFL-CIO.
Before Caffrey, 	Chairman; 	Dyer and Amador, 	Members.
DECISION
CAFFREY, 	Chairman: 	This case is before the Public
Employment 	Relations 	Board 	(Board) 	on appeal by the Service
Workers Local 	715, 	SEIU, 	AFL-CIO 	(SEIU) 	of a Board agent's
dismissal 	(attached) 	of SEIU's unfair practice charge. 	In the
charge, 	SEIU alleged that 	the Morgan Hill 	Unified School 	District
(District) 	violated section 3543.5(a), 	(b) 	and 	(c) 	of the
Educational 	Employment Relations Act 	(EERA)1 by refusing 	to pay a
EERA 	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
guaranteed by 	this 	chapter. 	For purposes 	of
______________ )

negotiated 	salary 	increase 	to 	certain bargaining unit 	members.
this subdivision, 	"employee" 	includes an
applicant 	for employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
The 	Board has 	reviewed 	the 	entire 	record 	in this 	case
including 	the unfair practice 	charge, 	the Board agent's warning
and dismissal 	letters 	and SEIU's 	appeal. 	The Board 	finds 	the
warning and dismissal 	letters 	to be 	free 	of prejudicial 	error and
hereby adopts 	them as 	the 	decision 	of 	the 	Board 	itself,
consistent 	with 	the 	following 	discussion.
DISCUSSION
This 	case 	involves 	a dispute 	over the application of 	a wage
increase provision agreed to by the parties. 	In its appeal, 	SEIU
points out that the parties' 	December 17, 	1998, 	tentative
agreement 	clearly 	indicates 	that 	a 	3.95 	percent 	wage 	increase
retroactive to July 1, 	1998, 	is 	to apply to the entire bargaining
unit. 	Therefore, 	SEIU argues 	that 	the District acted unlawfully
when 	it 	refused to grant 	the 	increase 	to 	the 	classification of
Yard Duty Supervisor 	(YDS) 	which 	is 	in the bargaining unit.
However, 	the wage increase provision of the parties' 	final
agreement 	includes 	language which differs 	from that 	of 	the
tentative agreement. 	The 	final 	agreement 	language 	indicates 	that
the 	retroactive 	3.95 	percent 	wage 	increase 	applies 	to 	the 	salary
schedule. 	The YDS 	classification 	is not 	covered by the 	salary
22

schedule.
SEIU asserts 	that 	this 	case presents 	a 	"dispute 	of 	fact"
over 	the meaning of 	the agreement which requires 	a 	full
evidentiary hearing 	to 	examine 	the 	bargaining history and 	the
intent 	of 	the parties 	in agreeing 	to 	the 	language 	of 	the
tentative and final 	agreements. 	However, 	where 	contract 	language
is 	clear and unambiguous, 	it 	is unnecessary to go beyond the
plain language 	to ascertain 	its meaning. 	(Marysville Joint
Unified School District 	(1983) 	PERB Decision No. 	314, 	at p. 	9.)
In 	interpreting 	contract 	language, 	the Board examines bargaining
history to determine 	the 	intent 	of 	the parties 	only if 	the
language 	of 	the 	contract 	is 	found to be ambiguous. 	(Barstow
Unified School District 	(1997) 	PERB Decision No. 	1138b, 	at
pp. 	17-18; 	State of California 	(Department of Corrections) 	(1999)
PERB Decision No. 	1317-S, 	at p. 	8.)
The parties' 	final 	agreement 	clearly indicates 	that 	the
3.95 percent wage 	increase applies 	to 	the 	salary schedule. 	Since
the YDS 	classification is 	not 	covered by 	the 	salary schedule, 	the
District 	acted 	in accordance with 	the 	final 	agreement when 	it 	did
not 	apply the 	increase 	to 	that 	classification.
ORDER
The unfair practice 	charge 	in Case No. 	SF-CE-2055 	is hereby
DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Amador 	joined 	in 	this 	Decision.
33

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
September 14, 	1999
Vincent 	Harrington
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, Suite 14 00
Oakland, 	CA 94 612
Re: 	Service Workers Local 	715, 	SEIU, 	AFL-CIO v. 	Morgan Hill
Unified 	School 	District
Unfair 	Practice 	Charge No. 	SF-CE-2055
DISMISSAL AND 	REFUSAL 	TO 	ISSUE A 	COMPLAINT
Dear Mr. 	Harrington:
I 	indicated to you, 	in my attached letter dated August 	26, 	1999,
that 	the 	above-referenced charge 	did not 	state 	a prima 	facie
case. 	You were 	advised that, 	if 	there were 	any factual
inaccuracies 	or 	additional 	facts 	which would 	correct 	the
deficiencies 	explained in that 	letter, 	you 	should amend the
charge. 	You were 	further advised that, 	unless you amended the
charge 	to 	state 	a prima 	facie 	case 	or withdrew 	it 	prior to
September 2, 	1999, 	the charge would be dismissed. 	On
September 2, 	1999, 	I 	received a request 	for extension by
facsimile. 	I 	left 	you a voicemail 	message granting 	the 	request,
and extended the 	deadline until 	September 	10, 	1999.
I 	have not 	received either an amended charge or a 	request 	for
withdrawal. 	Therefore, 	I 	am dismissing the 	charge based on the
facts 	and reasons 	contained in my August 	26, 	1999, 	letter.
Right 	to Appeal
Pursuant 	to 	Public 	Employment 	Relations 	Board regulations, 	you
may obtain a 	review of 	this 	dismissal 	of 	the 	charge 	by 	filing
an appeal 	to 	the 	Board itself within 	twenty 	(20) 	calendar days
after service of this dismissal. 	(Cal. 	Code Regs., 	tit. 	8,
sec. 	32635(a).) 	Any document 	filed with the Board must 	contain
the case name and number, 	and the original 	and five 	(5) 	copies of
all 	documents 	must 	be 	provided 	to 	the 	Board.
A document 	is 	considered 	"filed" 	when 	actually 	received before
the 	close of 	business 	(5 p.m.) 	on the 	last 	day set 	for 	filing or
when mailed by certified or Express 	United States 	mail, 	as 	shown
on the postal 	receipt 	or postmark, 	or delivered to 	a 	common
carrier promising overnight 	delivery, 	as 	shown on 	the 	carrier's
receipt, 	not 	later than the 	last 	day set 	for filing. 	(Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32135(a); see also Cal. Code Regs., 	tit. 	8,
sec. 	32130.)
=====-===-===--- 	--

SF-CE-2055
Dismissal 	Letter
Page 2
A document 	is 	also 	considered 	"filed" 	when 	received 	by 	facsimile
transmission before 	the 	close 	of 	business 	on the 	last 	day 	for
filing 	together 	with 	a 	Facsimile 	Transmission 	Cover 	Sheet 	which
meets the requirements of Cal. 	Code Regs., 	tit. 	8, 	sec. 	32135(d),
provided 	the 	filing party also places 	the 	original, 	together with
the 	required number of 	copies 	and proof 	of 	service, 	in the U.S.
mail. 	(Cal. 	Code. 	Regs., 	tit. 	8, 	secs. 	32135(b), 	(c) 	and 	(d);
see also Cal. 	Code Regs., 	tit. 	8, 	secs. 	32090 and 32130.)
The Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals Assistant
1031 	18th Street
Sacramento, 	CA 	95814-4174
FAX: 	(916) 	327-7960
If 	you file 	a 	timely appeal 	of 	the 	refusal 	to 	issue 	a 	complaint,
any other party may 	file 	with 	the 	Board 	an 	original 	and 	five
copies 	of 	a 	statement 	in opposition within twenty 	(20) 	calendar
days 	following the date of 	service of 	the appeal. 	(Cal. 	Code
Regs., tit. 	8, 	sec. 	32635(b).)
Service
All 	documents 	authorized 	to be 	filed herein must 	also 	be 	"served"
upon all 	parties 	to 	the proceeding, 	and a 	"proof 	of 	service"
must 	accompany 	each 	copy of 	a 	document 	served upon 	a 	party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32140 	for the 	required contents 	and a 	sample 	form.) 	The
document 	will 	be 	considered properly 	"served" 	when personally
delivered or deposited in the 	first-class mail, 	postage paid and
properly 	addressed. 	A document 	filed by 	facsimile 	transmission
may be 	concurrently 	served via 	facsimile 	transmission 	on 	all
parties to the proceeding. 	(Cal. 	Code Regs., 	tit. 	8, 	sec.
32135 (c) .)
Extension of 	Time
A request 	for an extension of 	time, 	in which to 	file 	a 	document
with the 	Board 	itself, 	must 	be 	in writing 	and 	filed with 	the
Board 	at 	the 	previously noted 	address. 	A request 	for 	an
extension must 	be 	filed at 	least 	three 	(3) 	calendar days before
the 	expiration 	of 	the 	time 	required 	for 	filing 	the 	document.
The request must 	indicate good cause 	for and, 	if 	known, 	the
position of 	each other party regarding 	the 	extension, 	and 	shall
be 	accompanied by proof 	of 	service 	of 	the 	request 	upon 	each
party. 	(Cal. 	Code Regs., 	tit. 	8, 	sec. 	32132.)

SF-CE-2055
Dismissal 	Letter
Page 3
Final 	Date
If no appeal 	is 	filed within the 	specified time 	limits, 	the
dismissal will 	become 	final 	when the 	time 	limits 	have 	expired.
Sincerely,
ROBERT 	THOMPSON
Deputy General 	Counsel
By TAMMY 	L. 	SAMSEL
Regional 	Director
Attachment
cc: 	Earline Fanklin

STATE OF CALIFORNIA 	GRAY DAVIS, Governor
PUBLIC EMPLOYMENT RELATIONS BOARD
San Francisco Regional Office
177 Post Street, 9th Floor
San Francisco, CA 94108-4737
(415) 439-6940
PER
August 26, 	1999
Vincent A. 	Harrington
Van Bourg, 	Weinberg, 	Roger & Rosenfeld
180 Grand Avenue, 	Suite 	1400
Oakland, 	CA 94612
Re: 	Service Workers Local 	715, 	SEIU, 	AFL-CIO v. 	Morgan Hill
Unified 	School 	District
Unfair 	Practice 	Charge No. 	SF-CE-2055
Warning 	Letter
Dear Mr. 	Harrington:
In 	the 	above-referenced charge 	the 	Service Workers 	Local 	715,
SEIU, 	AFL-CIO 	(SEIU or Association) 	alleges 	the Morgan Hill
Unified School 	District 	(District) 	violated 	the 	Educational
Employment Relations Act 	(EERA or Act) 	§ 3543.5 (a), 	(b) , 	and 	(c)
by 	refusing 	to 	pay 	the 	bargaining 	unit 	a 	negotiated 	salary
increase.
The parties' 	added the 	Yard Duty Supervisors 	into 	the 	bargaining
unit 	represented by 	SEIU. 	The 	parties 	also 	negotiated 	a 	salary
increase 	in their reopener agreement. 	The 	dispute 	centers 	on
the 	District's 	refusal 	to 	implement 	the 	salary 	increase 	for 	the
Yard Duty 	Supervisors. 	My 	investigation 	revealed 	the 	following
information.
In December 	1998, 	the parties were 	in reopener negotiations. 	On
December 	17, 	1998 	SEIU made 	the 	following proposal 	for wages:
Article 	4 	Wages-3.95% wage 	increase 	for
bargaining unit, 	retroactive to 	7/1/98. 	Add,
"At P-2, 	taken in April of 	1999, 	if the ADA
is greater than the 	1997-98 	P-2 	of 	8794, 	a
percentage 	amount 	of 	the 	additional 	revenue
(equivalent 	to 	1% 	of 	the 	SEIU salary
schedule) 	will 	be 	allocated on the 	Service
Employee's 	International Union, 	Local 	715
basic 	salary 	schedules. 	Payment 	will 	be 	made
on the June 	10, 	1999 payroll. 	This 	increase
shall 	apply exclusively 	to 	SEIU Local 	715
basic 	salary 	schedule."
The parties 	adopted this proposal 	as 	a Tentative Agreement. 	In
its 	final 	form, 	Article 4 of the parties' 	1998-1999 Reopener
Agreement states :
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SF-CE-2055
Warning 	Letter
Page 2
The 	salary 	schedule 	will 	reflect 	a 	3.95% 	wage
increase, 	retroactive to July 1, 	1998. 	At 	P-
2, 	taken in April of 	1999, 	if 	the ADA is
greater than the 	1997-1998 	P-2 	of 	8794, 	21%
of 	the 	additional 	revenue 	will 	be 	allocated
on the 	SEIU basic 	salary schedule. 	Payment
will 	be made on the June 	10, 	1999 payroll.
This 	increase 	shall 	apply exclusively 	to 	SEIU
Local 	715 	basic 	salary schedule.
On January 7, 	1998, 	the parties 	agreed to 	include 	the Yard Duty
Supervisors 	in 	the 	bargaining 	unit 	exclusively 	represented by
SEIU. 	The 	agreement 	adding 	the Yard Duty Supervisors 	to 	the
unit, 	indicates 	that 	only some of 	the articles of 	the parties'
collective 	bargaining 	agreement 	would be 	applicable 	to 	the 	Yard
Duty Supervisors. 	The 	agreement 	adding 	the 	Yard Duty 	Supervisors
to 	the 	unit 	indicates 	that 	the 	collective 	bargaining 	agreement's
wage provision, 	Article 4, 	is not 	applicable to the Yard Duty
Supervisors. 	Instead, 	the 	agreement 	to 	include 	the Yard Duty
Supervisors provides, 	in pertinent part:
The 	hourly rate 	of 	pay 	for 	the 	Yard Duty
Supervisor 	category 	for 	the 	1997-98
school/year 	and 	thereafter 	until 	changed 	with
the mutual 	assent 	of 	the parties 	shall 	be
$7.20.
The 	agreement 	to 	include 	the Yard Duty Supervisors 	in 	the 	unit
also 	indicates:
All 	other 	terms 	and conditions 	of 	employment
for workers 	employed 	in 	the 	category of 	Yard
Duty 	Supervisors 	shall 	be 	governed by 	this
Article 	and District 	rules. 	Terms 	and
conditions 	of 	employment 	other 	than those
listed 	[herein] 	shall 	be 	inapplicable 	to 	the
category of 	Yard Duty 	Supervisor.
The 	Yard Duty Supervisors 	are 	not 	on 	the 	salary schedule. 	The
District 	refuses 	to give 	the 	Yard Duty 	Supervisors 	the 	3.95%
increase. 	SEIU alleges 	the District 	has 	bargaining 	in bad 	faith
by refusing 	to 	implement 	the 	wage 	increase 	for 	the 	Yard Duty
Supervisors. 	SEIU alleges 	the 	bargaining history and 	the
language 	of 	the 	tentative 	agreement 	reflect 	the mutual 	intent 	of
the parties 	to grant 	the 	salary 	increase 	to 	all 	represented
employees, 	including the Yard Duty Supervisors.
The 	above-stated 	information 	fails 	to 	state 	a prima 	facie
violation 	for 	the 	reasons 	that 	follow.
i

SF-CE-2055
Warning 	Letter
Page 3
In 	determining 	whether 	a 	party 	has 	violated 	EERA 	section
3543.5 (c), 	PERB utilizes either the 	"per se" 	or 	"totality of
the 	conduct" 	test, 	depending on the 	specific 	conduct 	involved
and 	the 	effect 	of 	such 	conduct 	on 	the 	negotiating process.
(Stockton Unified School 	District 	(1980) 	PERB Decision No. 	143.)
Unilateral 	changes 	are 	considered 	"per 	se" 	violations 	if 	certain
criteria are met. 	Those criteria are: 	(1) 	the employer
implemented 	a 	change 	in policy 	concerning 	a 	matter within 	the
scope of 	representation, 	and 	(2) 	the 	change was 	implemented
before 	the 	employer 	notified 	the 	exclusive 	representative 	and
gave 	it 	an opportunity to 	request 	negotiations. 	(Walnut Valley
Unified School 	District 	(1981) 	PERB Decision No. 	160; 	Grant 	Joint
Unified High School 	District 	(1982) 	PERB Decision No. 	196.)
In 	the 	instant 	charge 	the 	language 	of 	the 	tentative 	agreement
indicates 	that 	the 	salary 	" 	increase 	shall 	apply exclusively to
SEIU Local 	715 	basic 	salary schedule." 	The 	Reopener Agreement
includes 	the 	same 	language. 	Thus, 	it 	appears 	the parties did not
intend to 	increase 	the 	salaries 	of 	employees 	not 	on the 	salary
schedule. 	Moreover, 	the agreement 	to 	include 	the Yard Duty
Supervisors 	in 	the 	bargaining unit 	also 	excludes 	them 	from the
wage provisions 	covering 	the 	other bargaining unit 	members.
Finally, 	the 	agreement 	to 	include 	the 	Yard Duty Supervisors 	in
the 	bargaining 	unit 	indicates 	the 	Yard Duty Supervisors 	will 	be
paid 	$7.2 0 	per hour until 	changed by mutual 	assent 	of 	the
parties. 	No 	such mutual 	assent has occurred. 	Thus, 	it 	appears
the District 	is 	acting 	in accord with the parties' 	Reopener
Agreement, 	and this 	charge 	fails 	to 	state 	a prima 	facie
violation.
For these reasons 	the charge, 	as presently written, 	does not
state 	a prima 	facie 	case. 	If 	there 	are any factual 	inaccuracies
in 	this 	letter 	or 	additional 	facts 	which would correct 	the
deficiencies 	explained above, 	please 	amend the 	charge. 	The
amended 	charge 	should be 	prepared on 	a 	standard 	PERB 	unfair
practice 	charge 	form, 	clearly 	labeled 	First 	Amended Charge,
contain all 	the 	facts and allegations you wish to make, 	and
be 	signed under penalty of 	perjury by 	the 	charging party. 	The
amended 	charge 	must 	have 	the 	case 	number written on 	the 	top 	right
hand corner 	of 	the 	charge 	form. 	The 	amended charge must 	be
served on 	the 	respondent's 	representative 	and 	the 	original 	proof
-

SF-CE-2055
Warning Letter
Page 4
of 	service must be filed with PERB. 	If 	I do not receive an
amended charge or withdrawal 	from you before September 2, 	1999, 	I
shall dismiss your charge. 	If you have any questions, 	please
call me at 	(415) 	439-6944.
Sincerely,
Tammy L. 	Samsel
Regional Director