Lucia Mar Unified School District (PERB 1440E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,

Charging Party, Case No. LA-CE-4194-E

V. PERB Decision No. 1440

LUCIA MAR UNIFIED SCHOOL DISTRICT, May 24, 2001

Respondent.

Appearances: Arnie R. Braafladt, Attorney, for California School Employees Association;
Girard & Vinson by Christian M. Keiner, Attorney, for Lucia Mar Unified School District.

Before Amador, Baker and Whitehead, Members.
| DECISION

AMADOR, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on exceptions filed by both parties to an administrative law judge's (ALJ)
proposed decision (attached). The California School Employees Association's (CSEA) unfair
practice charge alleged that the Lucia Mar Unified School District (District) violated the
Educational Employment Relations Act (EERA)’ by unilaterally contracting out the District's
transportation services. The ALJ found a violation and ordered the District to restore all
bargaining unit transportation services positions and to make all affected employees whole for
any loss of wages or benefits due to the District's violation of the EERA, including interest at

7 percent.

'BERA is codified at Government Code section 3540 et seq.

After reviewing the entire record, the Board hereby affirms the proposed decision and
adopts it as the decision of the Board itself, consistent with the following discussion.
DISCUSSION
Both CSEA and the District filed exceptions to the proposed decision. 	The District
takes numerous exceptions to the ALJ's key findings. It repeats most of the arguments it raised
earlier, and essentially urges the Board to reverse the proposed decision.
CSEA also filed exceptions that pertain to the remedy ordered by the ALJ. It
specifically requests the Board to order rescission of the contract between the District and the
contractor, Student Transportation of America (STA).
Unilateral Change Issue
With regard to the merits of this case, the ALJ's finding of a violation is amply
supported by the record. 	There is little dispute as to the key facts, and the ALJ correctly found
that these facts fall squarely within the clear guidelines established by Redwoods Community
College District (1997) PERB Decision No. 1242 and other long-standing precedent. The
Board has considered the District's arguments and is not persuaded by them. 	Accordingly, the
Board affirms the ALJ's conclusions.
Remedy
CSEA filed exceptions to the remedy ordered by the ALJ, and requests that the Board
order rescission of the District's contract with STA. Having considered the particular factors in
the case at bar, the Board finds that the ALJ's remedy is appropriate as written and declines to
modify it.
In making this finding, the Board is mindful of the goals to be achieved when ordering
a remedy in a unilateral change case and finds that the current remedy is well tailored to
achieve these goals. An important goal is to make the affected bargaining unit employees
2

whole for any losses they may have suffered due to the District's unilateral action until such
time as they are restored to their former positions. The ALJ's order
of
lost wages and benefits,
including interest, will achieve that goal.
Another important goal is to compel the District to restore the status quo ante as soon
as
reasonably possible. That does not necessarily mean that the Board must order rescission
of
the STA contract, however. In a case involving transportation
of
public school students, to
order abrupt rescission
of
the District's contract with a third party is almost certain to result in
some disruption in services. Furthermore, there is no reason to presume that the District will
unreasonably delay terminating the STA contract, since, after issuance
of
this Decision, there
will be a strong financial incentive for the District to take prompt steps to terminate its
contractual relationship with STA. Under the ALJ's remedy, the affected bargaining unit
members will not suffer further financial harm in the interim; additionally, those persons are
guaranteed the right to be restored to their former unit positions. In light
of
all these factors,
the Board finds that the ALJ's remedy is appropriate as written.
ORDER
Based upon the entire record at this case, and pursuant to the Educational Employment
Relations Act (EERA), Government Code section 3541.S(c), it is hereby ordered that the Lucia
Mar Unified School District (District) and its representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing and refusing to meet and negotiate with the California School
Employees Association (CSEA) about the decision and effects
of
contracting out the District's
transportation services.
2. 	Denying CSEA its right to represent bargaining unit members in their
employment relations with the District.
3

3.	
Denying bargaining unit members their right to be represented by their
chosen representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
1.	
Upon demand from CSEA, restore all bargaining unit transportation
services positions at the earliest opportunity it can terminate the existing contract with the
contractor. 
2.	
Make all affected employees whole for any loss
of
wages or benefits due
to the District's violation
of
the BERA, including interest at 7 percent per annum.
3.	
Within ten (10) days
of
service
of
this decision, post at all work locations
where notices to employees customarily are placed, copies
of
the notice attached as an
appendix hereto. Such posting shall be maintained for a period
of
thirty (30) consecutive
workdays. Reasonable steps shall be taken to ensure that the notice is not reduced in size,
altered, defaced or covered by any other material.
4.	
Upon issuance
of
a final decision, make written notification
of
the
actions taken to comply with this order to the San Francisco Regional Director
of
the Public
Employment Relations Board in accord with the director's instructions.
Member Whitehead joined in this Decision.
Member Baker's concurrence begins on page 5.
4

BAKER, Member, concurring: 	Although I join the majority opinion, I write separately
because I believe the remedy is inadequate in its goal
of
restoring the status quo. I would
modify the order to provide a portion
of
the "make whole" monetary relief granted to affected
employees be directed to the California School Employees Association (CSEA) in an effort to
more effectively restore the status quo.
The Public Employment Relations Board's (Board) decision found that CSEA was
denied its right to represent bargaining unit members in their employment relations with the
Lucia Mar Unified School District (District). I do not find the Board's cease and desist order
with regard to CSEA sufficient to restore the status quo. The Board's order should return all
parties, including CSEA, to the status quo ante as it existed prior to imposition
of
the unilateral
change.
	If
for example, the Board's order in this case required reinstatement
of
affected
employees, CSEA's entitlement to dues or fees would be addressed in compliance as part
of
the
award
of
back pay.
In this case the employer's violation
of
the Educational Employment Relations Act
(EERA) removed dues and/or fee paying members from the bargaining unit. 	This harms
CSEA's ability to represent these employees and the remaining employees in the unit. 	With
the inadequate remedy provided by the Board, what is to stop an employer from unilaterally
removing every employee from a particular bargaining unit to destroy the union? The
employer could then hope that with virtually no revenue, the employee organization (or at least
its staff and lawyers) would fold up shop and go away, leaving no one to contest the
employers' unlawful action. I therefore would modify the Board's order to effectuate the
policies of the EERA and right the employers' wrong with respect to CSEA.
5

In addition to the individual employees affected, CSEA was affected by the District's
unlawful action and suffered financial losses for which it should be made whole. 	CSEA is
entitled to the difference in membership dues and/or agency fees between that which they
received from the affected employees and that which they would have received in the absence
of the District's unilateral action. This amount should include interest at 7 percent per annum.
The amount should be deducted from the amount provided by the Board's order to affected
employees to make them whole for loss of wages or benefits.
6

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4194-E, California School
Employees Association v. Lucia Mar Unified School District, in which all parties had the right
to participate, it has been found that the Lucia Mar Unified School District (District) violated
the Educational Employment Relations Act (EERA), Government Code section 3543(a), (b)
and (c ), when it unilaterally contracted out the operation of transportation services within the
District.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate with the California School
Employees Association (CSEA) about the decision and effects of contracting out the District's
transportation services.
2. 	Denying CSEA its right to represent bargaining unit members in their
employment relations with the District.
3. 	Denying bargaining unit members their right to be represented by their
chosen representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Upon demand from CSEA, restore all bargaining unit transportation
services positions at the earliest opportunity it can terminate the existing contract with the
contractor.
2. 	Make all affected employees whole for any loss of wages or benefits due
to the District's violation of the EERA, including interest at 7 percent per annum.
Dated: 	LUCIA MAR UNIFIED SCHOOL DISTRICT
By:
Authorized Agent
----------
______________
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED, OR COVERED WITH ANY OTHER
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
V.
LUCIA MAR 	UNIFIED 	SCHOOL 	DISTRICT,
Respondent.
Unfair 	Practice
Case 	No. 	LA~CE-4194
PROPOSED 	DECISION
(1/19/2001)
Appearances: 	Arnie 	Braafladt 	and 	Mary 	Ellen Maldonado, 	Labor
Relations 	Representatives, 	for 	California 	School 	Employees
Association; 	Girard 	& Vinson 	by 	Christian 	Keiner 	and 	Michelle
Cannon, 	Attorneys, 	for 	Lucia 	Mar 	Unified 	School 	District.
Before 	James 	W. 	Tamm, 	Administrative 	Law 	Judge.
PROCEDURAL 	HISTORY
On 	May 	25, 	2000, 	the 	California 	School 	Employees 	Association
(CSEA) 	filed 	this 	unfair 	practice 	charge 	against 	the 	Lucia 	Mar
Unified 	School 	District 	(District). 	After 	an 	investigation, 	a
complaint 	was 	issued by 	the 	general 	counsel's 	office 	of 	the
Public 	Employment 	Relations 	Board 	(PERB 	or 	Board) 	on 	June 	22,
2000. 	The 	complaint 	alleged 	that 	the 	District 	violated
section 	3543.5(a), 	(b) 	and 	(c) 	of 	the 	Educational 	Employment
Relations 	Act 	(EERA 	or Act) 1 by 	unilaterally 	contracting 	out 	the
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	EERA 	section 	3543.5 	states, 	in 	pertinent 	part:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(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

District's 	transportation 	services. 2 	On 	June 	15, 	2000, 	CSEA
filed 	a 	request 	for 	injunctive 	relief 	(California 	School
Employees 	Association v. 	Lucia 	Mar 	Unified 	School 	District,
Injunctive 	Relief 	Request 	No. 	415). 	On 	July 	7, 	2000, 	the 	Board
denied 	that 	request 	without 	prejudice.
The 	parties 	participated 	in 	two 	informal 	settlement
conferences, 	but 	were 	unable 	to 	resolve 	their 	dispute. 	A formal
hearing 	was 	held 	July 	18 	through 	20, 	2000. 	Transcripts 	were
prepared 	and 	briefs 	were 	filed. 	The 	case 	was 	submitted 	for
decision 	on 	October 	30, 	2000.
FINDINGS 	OF 	FACT
The 	District 	is 	an 	employer 	and 	charging 	party 	is 	an
employee 	organization 	within 	the 	meaning 	of 	the 	Act. 	Charging
party 	is 	the 	exclusive 	representative 	of 	the 	District's
classified 	employees. 	The 	parties 	have 	entered 	into 	a 	collective
bargaining 	agreement 	running 	from 	July 	1, 	1998 	through 	June 	30,
2001. 	The 	collective 	bargaining 	agreement 	contains 	a 	grievance
process 	culminating 	in 	binding 	arbitration; 	however, 	the 	contract
does 	not 	arguably 	prohibit 	the 	contracting 	out 	of 	bargaining 	unit
work. 	Deferral 	of 	this 	complaint 	to 	the 	arbitration 	process
guaranteed 	by 	this 	chapter.
(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.
2CSEA withdrew 	allegations 	included 	in 	the 	original 	charge
which 	involved 	the 	effects 	of 	layoff 	of 	the 	transportation
employees.
2

contained
	in
	the
	collective
	bargaining
	agreement
	is
	therefore
	not
appropriate.
The
	District
	is
	located
	in
	southern
	San
	Luis
	Obispo 	County
and
	covers 	approximately
	550
	square
	miles.
	It
	operates
	a
comprehensive
	high 	school,
	a
	continuation
	high 	school,
	three
middle
	schools
	and
	ten
	elementary
	schools.
	A
proposed
	high
school
	and
	two
	new
	elementary 	schools
	are
	expected
	to
	be
completed
	during
	in
	the
	2002-03
	school
	year.
The
	District
	provides
	regular
	home
	to
	school
	transportation
services, 	transportation 	services 	to 	students
	with
	special
	needs
and
	co-curricular 	transportation 	services.
	At
	the
	time
	this
dispute 	arose, 	the
	District
	was
	operating
33
	regular
	home
	to
school
	routes,
	9
	special
	education
	routes,
	and
	transportation
	for
approximately
	5
	to
	10
	co-curricular
	field 	trips
	each 	day.
In
	May
	1994,
	the
	District
	began
	exploring 	the
	possibility
	of
contracting
	out
	its
	transportation 	services.
	When CSEA
	learned
of
	this,
	then
	CSEA
	President
	Mary
	Melton 	wrote
	to
	Juan
	Olivarria,
assistant
	superintendent 	for 	personnel,
	stating 	in 	part:
CSEA
	Chapter
	#275
	would
	like
	to
	re-establish
our 	long 	term
	practice
	of
	no
	surprises
	and
open 	communications 	by
	requesting 	to
negotiate 	both 	the 	decision
	and
	the
	effectsof 	the 	proposed
	layoffs, 	using 	the
	Interest
Based Model.
	We
	firmly 	believe 	that
	both
parties
	have 	mutual
	interests 	that
	can 	be
best
	met
	using
	this
	method.
	Please 	give 	us
	a
written
	response 	as 	soon 	as
	is 	practicable.
On
	June 	14, 	1994,
	Mr.
	Olivarria
	wrote 	back
	stating, 	in part:
[We]
	believe 	your 	formal 	request 	to 	negotiateboth 	the 	decision
	and 	the 	effects 	of 	theproposed 	layoffs' 	is
	premature. 	All 	theBoard 	of 	Education 	has 	authorized, 	and
	all
3

the 	district 	administration 	has 	done, 	is 	to
issue 	a 	request 	for 	proposals 	regarding
transportation 	services. 	No 	decision 	has
been made 	at 	this 	time 	regarding 	possible
layoffs 	of 	classified 	employees.
We 	will 	notify 	CSEA 	Chapter 	#275 	of 	any
potential 	district 	course 	of 	action 	regarding
transportation 	services 	once 	bids 	are
received 	and 	the 	preliminary 	evaluation
process 	is 	concluded. 	I 	anticipate 	a
complete 	formal 	response 	to 	your 	letter 	by
June 	24, 	1994.
On 	June 	27, 	1994, 	Mr. 	Olivarria 	wrote 	CSEA:
I 	am writing 	to 	notify 	you 	the 	district 	will
negotiate 	the 	effects 	of 	any 	decision 	to
utilize 	contract 	transportation 	services.
Similarly, 	the 	district 	will 	negotiate 	the
effects 	of 	any 	reductions 	in 	the 	classified
bargaining 	unit 	resulting 	from 	such 	a
contract. 	The 	district 	believes 	this
response 	meets 	its 	bargaining 	obligations
pursuant 	to 	Public 	Employment 	Relations 	Board
precedent.
I 	want 	to 	emphasize 	no 	decision 	has 	been made
regarding 	contract 	transportation. 	As 	we
informed 	CSEA Labor 	Representative 	Marcie
Bayne, 	the 	decision, 	if 	any, 	will 	be 	made 	at
the 	Board 	of 	Education 	July 	19, 	1994,
meeting, 	after 	input 	from 	CSEA 	Chapter 	275 	on
potential 	transportation 	cost-savings.
On 	July 	14, 	1994, 	CSEA Labor 	Relations 	Representative 	Marcie
Bayne 	wrote 	to 	the 	school 	board 	stating 	in 	part:
This 	letter 	is 	to 	place 	the 	District 	on
prospective 	notice 	that 	California 	School
Employees 	Association 	(CSEA) 	chapter 	#275
demands 	to 	bargain with 	respect 	to 	any
District 	effort 	to 	contract 	out 	bargaining
unit 	work 	in 	the 	Transportation 	Department.
Specifically, 	in 	the 	event 	the 	District
intends 	to 	contract 	out 	the 	work 	performed by
unit 	members, 	CSEA 	demands 	to 	bargain 	over
the 	decisions, 	as 	well 	as, 	11 in-scope II 	effects
of 	any 	decision 	to 	contract 	out 	bargaining
unit 	work.
4

This 	prospective 	demand 	letter 	is 	exclusively
intended 	to 	insure 	that 	there 	is 	no
misunderstanding 	between 	the 	parties 	in 	the
event, 	at 	some 	point, 	the 	District 	moves 	to
contract 	out 	bargaining 	unit 	work.
This 	letter 	should 	not 	be 	read 	as 	an
indication 	to 	the 	District 	that 	CSEA
encourages 	or 	in 	any 	way 	supports 	the 	notion
of 	subcontracting 	bargaining 	unit 	work.
Rather, 	that 	CSEA 	expects 	the 	District 	to
meet 	its 	legal 	responsibilities 	with 	respect
to 	this 	matter, 	by 	providing 	this 	union 	with
proper 	notice 	and 	a 	full 	opportunity 	to
bargain.
Ms. 	Bayne's 	letter 	also 	outlined 	CSEA's 	arguments 	as 	to 	why 	it
believed 	the 	decision 	to 	contract 	out 	was 	a 	negotiable 	decision.
The 	District 	decided 	that 	rather 	than 	contracting 	out 	the
transportation 	services 	it 	would 	create 	a 	joint 	District/CSEA
Transportation Advisory 	Committee 	(TAC) 	to 	explore 	ways 	of
meeting 	transportation 	needs 	within 	the 	District. 	TAC 	had 	no
independent 	decision-making 	authority. 	If 	suggestions 	for
improvements 	were 	generated 	by 	TAC, 	they would 	be 	referred 	back
to 	the 	negotiating 	team 	for 	negotiations.
The 	parties 	collective 	bargaining 	agreement 	states:
[The 	parties] 	agree 	to 	continue 	the
Transportation Advisory 	Committee 	on 	a
permanent 	basis 	to 	research 	and 	implement 	the
mutual 	interests 	of 	the 	District/Classified
Negotiating 	Team. 	The 	committee 	will 	be
comprised 	of 	four 	classified 	employees 	chosen
by 	CSEA 	and 	two 	management 	employees. 	This
committee 	will 	meet 	regularly as 	needed 	and
make 	the 	record 	of 	its 	meetings 	available 	to
the 	CSEA Executive 	Board 	and 	the 	members 	of
the 	District 	and 	Classified Negotiating
Teams.
If 	there 	need 	[sic] 	to 	be 	any 	procedural
and/or 	contractual 	changes 	to 	this 	agreement,
they may 	be 	brought 	back 	into 	negotiations 	as
5

a 	continuation 	of 	on-going 	negotiations, 	not
a 	part 	of 	reopener 	negotiations.
In 	1995, 	the 	District 	again 	explored 	the 	possibility 	of
contracting 	out 	its 	transportation 	services. 	CSEA Representative
Ellen Maldonado 	wrote 	to 	the 	school 	board, 	the 	superintendent 	and
the 	assistant 	supe 	ntendent 	for 	personnel 	stating 	CSEA's 	adamant
opposition 	to 	contracting 	out 	and 	demanding 	to 	bargain 	both 	the
decision 	to 	contract 	out 	and any 	resulting 	effects. 	Her 	letter
stated 	in 	part:
If 	in 	fact 	this 	is 	your 	intent, 	CSEA 	and 	its
Lucia 	Mar 	Chapter 	#275 	is 	putting 	the
District 	on 	notice 	that 	we 	adamantly 	oppose
any 	decision 	to 	contract 	out 	bargaining 	unit
work 	and 	that 	we 	demand 	to 	bargain 	the
decision 	and 	the 	effects 	of 	contracting 	out
transportation 	services. 	[Emphasis 	in
original.]
CSEA 	lobbied 	board members 	and 	administrators 	and made
presentations 	at 	board meetings 	regarding 	ways 	to 	cut
transportation 	costs 	and 	make 	the 	transportation 	department 	more
effective. 	On November 	7, 	1995, 	the 	school 	board 	decided 	not 	to
contract 	out 	transportation 	services. 	The 	school 	board minutes
reflect 	the 	vote 	as 	follows:
A motion 	was 	passed 	to 	rule 	out 	contract
bussing 	until 	a 	financial 	crisis 	occurs 	in
the 	future. 	Administration 	and 	CSEA will
continue 	to 	work 	on 	cost 	savings.
Following 	the 	vote, 	then 	CSEA 	President 	Reina 	Diaz 	wrote 	to 	the
board 	thanking 	it 	for 	retaining 	transportation 	se 	ces 	within
the 	District. 	She 	also 	stated:
CSEA 	feels 	now 	that 	we 	have 	a 	mandate
from 	the 	school 	board 	to 	work 	with
administration 	(and 	visa 	versa) 	to 	streamline
6

the 	department 	and 	look 	for 	creative 	ways
to 	control 	costs.
The 	TAC 	continued 	to 	meet 	through 	1998-99. 	It 	became
ineffective 	and 	fraught 	with 	conflicts, 	however, 	and 	played 	no
material 	role 	in 	the 	events 	at 	issue 	in 	this 	hearing. 3
In 	July 	1999, 	CSEA 	learned 	that 	the 	District 	was 	again
considering 	contracting 	out 	transportation 	services. 	CSEA
representative 	Maldonado 	wrote 	to 	then 	school 	board 	President
Erik 	Howell 	expressing 	alarm 	that 	the 	contracting 	issue 	was
resurfacing. 	She 	included 	the 	following 	demand 	to 	bargain:
On 	July 	21, 	1999, 	I 	was 	informed 	that 	the
Lucia 	Mar 	Unified 	School 	District 	is 	again
investigating 	the 	possibility 	of 	contracting
out 	student 	transportation. 	This
information, 	if 	correct, 	is 	very 	alarming 	and
disheartening 	to 	CSEA 	and 	its 	Lucia 	Mar
Chapter 	#275.
The 	CSEA 	expects 	that 	if 	this 	is 	the 	case,
that 	the 	District 	will 	provide 	the 	union 	with
proper 	notice 	and 	a 	full 	opportunity 	to
bargain 	the 	decision 	and 	effects 	of 	this
matter. 	[Emphasis 	in 	original.]
Mr. 	Howell 	contacted 	CSEA 	President 	Diaz 	and 	spoke 	for 	about
an 	hour. 	Ms. 	Diaz 	mentioned 	she 	had 	heard 	a 	rumor 	that 	the
District 	might 	issue 	a 	request 	for 	proposal 	(RFP) 	for
transportation 	services. 	Mr. 	Howell 	testified 	that 	he 	replied 	as
follows:
. 	I 	told 	her 	that 	I 	didn't 	think 	that
they 	were 	just 	rumors, 	that 	I 	thought 	there
3The 	TAC 	was 	given 	an 	opportunity 	to 	address 	the 	school
board 	in 	closed 	session prior 	to 	the 	most 	current 	contracting 	out
dispute. 	That 	meeting, 	which 	is 	discussed 	later 	in 	this
decision, 	was 	not 	a 	negotiating 	session.
7

was 	a 	good 	chance 	that 	the 	board would
consider 	looking 	at 	going 	out 	for 	an 	RFP 	for
transportation. 	And 	I 	told 	her 	that 	as 	a
rule 	I'm not 	in 	favor 	of 	contracting 	out
services 	in 	the 	school 	district, 	but 	that
there's 	been 	a 	lot 	of 	problems 	out 	in
transportation 	and 	that 	we 	tried, 	since 	the
day 	I 	got 	on 	the 	board, 	we 	tried 	to 	resolve
the 	problems 	and 	instead 	they 	seemed 	to 	have
really 	gotten worse. 	And 	I 	also 	expressed 	to
her 	my 	frustration 	that 	even 	after 	the 	last
time 	we 	talked 	about 	the 	issue, 	and 	the 	board
voted 	not 	to 	go 	out 	for 	contract
transportation 	on 	the 	promises 	and
representations 	by CSEA 	that 	they 	would 	work
to 	resolve 	the 	problems 	out 	there, 	most
notably 	the 	personnel 	problems, 	I 	didn't 	feel
that 	they 	kept 	up 	their 	end 	of 	the 	bargain.
And 	at 	the 	point 	we 	were 	at 	with 	the
transportation 	department, 	even 	not 	knowing
what 	kind 	of 	services 	we'd 	be 	receiving 	from
a 	contractor, 	I 	was 	inclined 	to 	take 	the
devil 	I 	didn't 	know.
Mr. 	Howell 	also 	contacted Ms. 	Maldonado 	by phone 	and
explained 	that 	an 	RFP 	was 	a 	very 	real 	possibility. 4 	He 	explained
that 	the 	transportation 	department 	had 	a 	huge 	number 	of 	problems
and 	that 	he 	was 	disappointed 	that 	CSEA had 	not 	lived 	up 	to 	its
earlier 	promise 	to 	help 	fix 	the 	problem. 	When 	Ms. 	Maldonado
raised 	her 	demand 	to 	bargain 	over 	the 	District's 	decision 	to
contract 	out, 	Howell 	responded 	that 	he 	did 	not 	think 	the 	District
was 	required 	to 	bargain 	over 	contracting 	out 	decisions.
Ms. 	Maldonado 	disagreed 	with Mr. 	Howell 	and 	they 	agreed 	that 	they
would 	be 	talking 	about 	it 	further 	if 	the 	District 	issued 	an 	RFP. 5
4Ms. 	Maldonado's 	recollection 	of 	this 	conversation was 	very
vague. 	I 	credit 	Mr. 	Howell's 	testimony 	about 	the 	phone
conversation 	where 	it 	conflicts 	with 	Ms. 	Maldonado's.
5 	Q 	[Mr. 	Keiner] 	Do 	you 	recall 	Ms.
Maldonado 	raising 	a 	demand 	to 	bargain 	the
decision 	to 	subcontract?
8

On August 	17, 	1999, 	Assistant 	Superintendent 	for 	Business
Sandra 	Davis 	wrote 	a 	memo 	to 	Superintendent 	Nancy DePue 	which 	was
included 	in 	the 	packet 	of 	information 	distributed 	to 	the 	school
board 	and 	the 	public 	for 	the 	August 	17 	board meeting. 	The 	memo
stated:
A summary 	of 	the 	Transportation 	Department's
revenues, 	expenses, 	and 	the 	cost 	per 	mile 	as
reported 	on 	the 	J-141 	is 	attached. 	It 	is 	not
possible 	to 	determine 	what, 	if 	any, 	cost
savings 	could 	be 	achieved 	by 	contracting
current 	transportation 	services 	whereby 	the
contractor 	is 	responsible 	for 	providing 	all
of 	the 	capital 	equipment.
In 	order 	to 	provide 	the 	information 	requested
by 	the 	Board 	of 	Education, 	it 	would 	be
necessary 	to 	send 	a 	request 	for 	proposal 	for
transportation 	services 	to 	determine 	if 	any
savings 	can 	be 	achieved.
The 	minutes 	of 	the 	board meeting 	that 	night 	reflect 	the
following 	action 	by 	the 	school 	board:
A 	[Mr. 	Howell] 	Yes, 	I 	do.
Q 	And 	what 	was 	your 	response?
A 	I 	want 	to 	say 	it 	was 	pretty 	cursory. 	I
said 	I 	don 1 t 	think we 	have 	to.
Q 	And 	what 	was 	her 	response?
A 	It 	was 	sort 	of 	well, 	you 	now, 	I 	think 	we 	do.
Q 	Okay. 	How 	did 	the 	conversation 	close?
A 	That 	we 	would 	probably 	talk 	about 	this
further 	if 	the 	board 	did 	go 	out 	for 	RFP, 	and
it 	looked 	as 	though 	the 	board 	would 	be
considering 	it 	some 	time 	in 	the 	next 	month 	or
two.
9

Approval, 	Authorization, 	Request 	for
Proposals, 	Transportation 	Services
A motion was 	passed 	to 	authorize 	the 	staff 	to
prepare 	an 	RFP 	for 	transportation 	services 	at
a 	reduced 	cost. 	(Harvey /Howell)
The 	Board 	has 	asked 	for 	a 	committee 	to 	be
formed 	to 	study 	the 	pros 	and 	cons 	of 	contract
bussing. 	The 	committee 	will 	be 	formed 	and
chaired 	by Margie 	Godfrey with 	board 	members
Curtze, 	Soto 	and 	Senna 	on 	the 	committee.
A new Ad 	Hoc 	Transportation 	Committee 	(Ad 	Hoc 	Committee) 	was
formed 	and 	consisted 	of 	12 	individuals, 	only 	2 	of 	whom
represented 	CSEA. 	It 	also 	included 	parent 	representatives,
school 	board members, 	district 	managers, 	transportation 	employees
and 	representatives 	of 	elementary and 	secondary 	schools 	in 	the
District. 	The 	Ad 	Hoc 	Committee 	had 	no 	relationship 	to 	the 	old
TAC 	committee.
The 	charge 	of 	the 	Ad Hoc 	Committee 	was 	to 	review 	the 	current
and 	future 	transportation 	needs 	of 	the 	District 	and 	concerns
about 	the 	transportation 	department. 	The 	Ad 	Hoc 	Committee 	met
several 	times 	between 	October 	1999 	and May 	2000 	and 	played 	a 	role
in 	the 	development 	of 	the 	RFP. 	Once 	the 	RFP 	was 	drafted 	by
District 	officials, 	the 	Ad Hoc 	Committee 	reviewed 	it 	line 	by
line, 	making 	several 	changes. 6
6The 	Ad 	Hoc 	Committee 	was 	also 	surveyed 	to 	prioritize 	the
transportation 	issues/concerns 	from 	a 	list 	of 	16 	items. 	Only 	5
of 	the 	12 	members 	responded 	and 	one 	of 	those 	5 	gave 	a 	number 	one
priority 	to 	each 	of 	the 	items. 	Because 	so 	few 	members 	completed
the 	survey 	and 	they 	were 	not 	identified, 	I 	draw 	no 	conclusions
from 	the 	results 	of 	this 	survey.
10

On April 	26, 	2000, 	Ms. 	Maldonado 	wrote 	to 	the 	Board 	of
Education 	with 	another 	demand 	to 	bargain. 	Her 	letter 	stated, 	in
part:
This 	letter 	is 	to 	put 	the 	District 	on 	notice
that 	the 	California 	School 	Employees
Association 	(CSEA) 	and 	its 	Lucia 	Mar 	Chapter
#275 	respectful 	demand 	to 	meet 	and
negotiate 	the 	decision 	and 	the 	effects 	with
respect 	to 	any 	District 	effort 	to 	contract
out 	bargaining 	unit 	work 	in 	the
Transportation Department.
This 	demand 	letter 	is 	intended 	to 	insure 	that
there 	is 	no 	misunderstanding 	between 	the
parties. 	The 	CSEA 	expects 	that 	the 	District
will 	provide 	the 	union 	with 	proper 	notice 	and
a 	full 	opportunity 	to 	bargain 	the 	decision
and 	effects 	of 	this 	matter 	prior 	to 	any
decision 	by 	the 	Board 	with 	respect 	to
subcontracting 	bargaining 	unit 	work.
Ms. 	Maldonado 	learned 	that 	the 	school 	board 	was 	placing 	the
issue 	of 	contracting 	out 	transportation 	services 	on 	the 	agenda 	as
an 	action 	item 	for 	the 	May 	15, 	2000, 	board meeting. 	She 	left 	a
phone 	message 	for 	Margie 	Godfrey, 	assistant 	superintendent 	for
personnel, 	asking 	if 	the 	item 	could 	be 	taken 	off 	the 	board's
agenda 	as 	an 	action 	item. 	Ms. 	Godfrey 	responded 	that 	it 	would
not 	be 	possible. 	Ms. 	Maldonado 	then 	wrote 	a 	letter 	to 	then 	board
President 	GeeGee 	Soto 	which 	states 	in 	part:
On April 	26, 	2000, 	the 	California 	School
Employees 	Association 	(CSEA) 	and 	its 	Lucia
Mar 	Chapter 	#275 	submitted 	a 	formal 	notice 	to
meet 	and 	negotiate 	the 	decision 	and 	the
effects 	of 	any 	intent 	by 	the 	school 	board 	to
contract 	out 	bargaining 	unit 	work. 	The
union's 	right 	to 	negotiate 	the 	decision 	and
the 	effects 	prior 	to 	any 	action 	by 	the 	school
board 	is 	clearly 	set 	forth 	in 	case 	law.
The 	CSEA 	demand[s] 	that 	the 	school 	board
"cease 	and 	desist" 	any 	decision 	to 	contract
11

out
	bargaining
	unit
	[sic]
	until
	it
	meets
	its
legal 	obligation
	to
	meet
	and
	negotiate
	with
the
	CSEA.
	Failing 	to
	do
	so
	will
	compel
	the
union
	to
	immediately
	file
	a
	grievance
	and
	the
unfair
	labor
	practices.
	[Emphasis
	in
original.]
At
	the
	May
	15
	board 	meeting,
	prior
	to 	consideration
	of
	the
subcontracting 	issue,
	the
	board
	received
	a 	memo
	from Anthony
Bridges,
	interim
	assistant
	superintendent 	of 	business.
	In
	the
memo,
	Mr.
	Bridges
	discussed 	the
	RFP
	and
	safety 	issues, 	cost
issues,
	st
	ct
	control
	of
	contracted 	services
	and 	bus
replacement.
	The
	memo
	stated
	in
	part:
In
	evaluating 	the
	issue
	of 	outsourcing
student
	transportation,
	School
	Districts
	face
the 	constant
	financial
	dilemma
	of 	balancing
limited
	state
	resources
	and
	increasing
community 	demands
	for
	a
	higher
	quality
	of
education.
	Due
	to
	this
	demand
	to
	review
operational
	efficiencies,
	an
	increasing
number
	of 	school
	districts
	nationwide
	areoutsourcing
	home-to-school
	transportation 	in
an
	effort
	to 	control 	cost 	but 	maintain 	the
highest 	level
	of
	safety
	and
	control.
	Nearly
one-third
	of
	school
	districts
	nationwide
	are
contracting 	student
	transportation 	services.
Supporters 	of
	privatization
	or 	contracting
out 	student 	transportation 	services
	claim
	it
will
	save
	money,
	improve
	efficiency,
	provide
specialized 	expertise,
	reduce
	perceived 	labor
issues,
	avoid
	managing
	areas 	that
	school
administrators 	are 	unqualified 	to 	supervise
and
	relieve
	school
	districts
	of 	functions
unrelated 	to
	their
	main
	goal-educating
students. 	Contracting 	out
	also
	has
	its
naysayers,
	and
	there 	are
	many
	in 	the
educational
	field
	who
	maintain
	that
	it
	is
	not
feasible 	for 	contracting 	out 	to
	save
	money
and
	further
	espouse
	that
	government 	does 	nothave
	to 	save
	money.
Regardless 	of 	the 	viewpoint, 	the 	District
1 s
decision 	regarding 	contracting 	student
transportation 	should 	be 	dependent 	upon 	a
12

host 	of 	factors. 	The 	following 	information
is 	provided 	for 	review 	and 	consideration.
Mr. 	Bridges' 	memo 	then 	reviewed 	safety 	issues 	and 	concluded
that 	contractors 	had 	a 	''superb 	safety 	record 	that 	may 	lead 	to
lower 	accident 	and 	insurance 	rates." 	Mr. 	Bridges 	then 	went 	on 	to
review 	other 	factors 	as 	follows:
COST
Many 	educators 	have 	questioned 	the 	logic 	that
contracted 	services 	can 	provide 	the 	same
level 	of 	service 	at 	a 	lower 	cost. 	The 	direct
answer 	is 	that 	they 	are 	more 	cost 	efficient.
This 	is 	the 	industry 	standard 	for 	any 	company
that 	succeeds 	in 	our 	market 	driven 	economy.
Student 	transportation 	contractors 	tend 	to
more 	closely 	track 	and 	manage 	their 	costs,
resulting 	in 	a 	greater 	utilization 	of
resources 	in 	all 	aspects 	of 	their 	operation.
Significant 	cost 	savings 	have 	been 	achieved
by many 	districts 	using 	contracted 	services
for 	student 	transportation.
Based 	on 	current 	year 	projected expenditures,
the 	district 	could 	achieve 	a 	cost 	savings 	of
$634,116 	should 	the 	Board 	elect 	to 	utilize
contracted 	services. 	(Based 	on 	low 	bid 	from
Student 	Transportation 	of 	America 	5.5 	hours.)
CONTROL:
Many 	districts 	have 	found 	that 	the 	level 	of
control 	when 	converting 	to 	contracted 	student
transportation 	is 	actually 	increased. 	Issues
such 	as 	reducing 	the 	budget, 	personnel
problems, 	route 	design, 	regulatory 	compliance
or 	increases 	in 	year 	end 	field 	trips 	can
simply 	be 	delegated 	by 	the 	proper 	authority
without 	surrendering 	accountability. 	One 	of
the 	issues 	currently 	affecting 	the 	district,
is 	the 	lack 	of 	demonstrated 	leadership 	and
operational 	deficiencies 	in 	the 	routing
system. 	Contractors 	have 	become 	increasingly
efficient 	in 	the 	routing 	and 	scheduling 	of
school 	buses 	with 	extremely 	sophisticated
software.
13

BUS 	REPLACEMENT 	PROGRAM:
One 	critical 	factor 	in 	the 	Board's 	decision
should 	be 	the 	evaluation 	of 	a 	bus 	replacement
program 	and 	the 	ability 	to 	sustain 	a 	safe 	and
reliable 	fleet. 	In 	1997, 	staff 	presented 	a
Five-Year 	School 	Bus 	Replacement 	Program 	that
estimated 	the 	need 	to 	purchase 	14 	school
buses 	at 	an 	approximate 	cost 	of 	$1,260,000.
During 	that 	time 	frame, 	the 	district
successfully 	secured 	grant 	funds 	from 	the
State 	of 	California 	for 	the 	replacement 	of
four 	buses. 	The 	District 	participated 	in 	the
grant 	program, 	which 	required 	matching 	funds
and 	reduced 	the 	requirements 	for 	an
additional 	10 	buses 	through 	FY 	2001-02.
Similar 	data 	was 	requested 	regarding 	the
evaluation 	of 	the 	district's 	fleet 	from 	each
vendor, 	and 	with 	no 	exception, 	each
respondent 	stated 	that 	a 	minimum of 	one 	bus
and 	a 	maximum of 	four 	buses 	would 	be 	required
to 	be 	purchased 	in 	the 	first 	year.
RECOMMENDATION:
In 	the 	event 	the 	Board 	of 	Trustees 	recommends
contracted 	transportation 	services 	for 	FY
2000-01, 	a 	percentage 	of 	the 	funds 	generated
from 	the 	cost 	savings 	be 	reserved 	in 	a
Special 	Reserve 	Fund 	for 	the 	purposes 	of
establishing 	a 	bus 	replacement 	program.
[Underlining 	and 	bold 	emphasis 	included 	in
original.]
At 	the 	May 	15 	meeting, 	Ms. 	Maldonado 	addressed 	the 	board 	and
made 	another 	demand 	to 	negotiate 	any 	decision 	to 	contract 	out
work. 	The 	board, 	however, 	voted 	to 	contract 	out 	the
transportation 	services. 	Prior 	to 	the 	vote, 	the 	motion 	was
amended 	by Mr. 	Howell 	to 	require 	the 	contractor 	to 	hire 	laid 	off
District 	employees 	and 	to 	pay 	employees 	at 	their 	current 	rate 	of
pay 	up 	to 	the 	number 	of 	hours 	they 	were 	employed 	during 	the 	May
pay 	period. 	The 	increased 	costs 	due 	to 	the 	amendment 	would 	be
paid 	to 	the 	contractor 	by 	the 	District.
14

While 	the 	amendment 	increased 	the 	cost 	of 	the 	contract
considerably, 	it 	did 	not 	guarantee 	that 	employees 	would 	earn 	the
same 	salary. 	For 	example, 	if 	an 	employee 	worked 	for 	the 	District
four 	hours 	a 	day 	during 	the 	May 	pay 	period, 	that 	employee 	would
receive 	the 	same 	rate 	of 	pay 	for 	up 	to 	four 	hours 	per 	day working
for 	the 	contractor. 	If, 	however, 	the 	employee 	worked 	seven 	hours
per 	day, 	the 	employee 	would 	receive 	a 	lower 	rate 	of 	pay 	for 	the
additional 	three 	hours 	working 	for 	the 	contractor. 	Overtime
would 	also 	be 	paid 	at 	a 	lower 	"blended" 	rate 	(i.e., 	a 	rate 	that
was 	a 	blend 	between 	the 	District's 	overtime 	rate 	and 	the
contractor's 	lower 	overtime 	rate). 	Furthermore, 	the 	amendment
made 	no 	guarantee 	of 	any 	benefits, 	nor 	did 	it 	change 	the 	"at
will" 	employment 	status 	of 	former 	District 	drivers 	employed 	by
the 	contractor.
At 	the 	same 	meeting, 	the 	board 	also 	passed 	a 	resolution 	to
lay 	off 	transportation 	employees. 	The 	justification 	for 	the
reduction 	in 	force 	was 	stated 	in 	the 	board's 	motion 	as 	follows:
WHEREAS, 	the 	Governing 	Board 	is 	exploring
alternate 	methods 	to 	maximize 	available
resources 	for 	completing 	ongoing 	school
construction; 	increase 	available 	funds 	when
necessary 	for 	the 	purchase 	of 	school 	buses;
and 	minimize 	transportation 	overruns 	into 	the
general 	fund, 	which may 	lead 	to 	restructuring
or 	elimination 	of 	the 	Transportation
Department;
WHEREAS, 	such 	alternate 	methods, 	including,
but 	not 	limited 	to, 	the 	contracting 	of
transportation 	services 	with 	private 	carriers
pursuant 	to 	Education 	Code 	section 	39830 	et
seq. 	may 	require 	cutbacks 	in 	the
Transportation Department.
15

According 	to 	Mr. 	Howell, 	the 	only 	board member 	to 	testify,
a 	desire 	to 	save 	money 	played 	no 	role 	whatsoever 	in 	his 	decision
to 	vote 	for 	contracting 	out. 	He 	did 	it 	to 	eliminate 	all 	the
problems 	in 	the 	transportation 	department. 7 	Mr. 	Howell 	felt 	that
the 	District 	should 	bring 	in 	a 	contractor 	that 	specialized 	in
transportation 	issues 	to 	address 	the 	problem.
Mike 	Milton, 	the 	current 	CSEA 	chapter 	president, 	testified
that 	CSEA 	lobbied 	five 	of 	the 	seven board 	members 	in 	their
attempt 	to 	avoid 	contracting 	out. 	According 	to 	Mr. 	Milton, 	the
old 	TAC 	was 	allowed 	to 	meet 	with 	the 	board 	once. 	They were 	told
they 	needed 	to 	address 	three 	issues; 	personnel, 	costs, 	and 	the
efficiency 	of 	the 	department. 	Originally, 	the 	TAC 	had 	been 	told
they 	would 	be 	given 	two 	hours 	to 	address 	the 	board 	in 	closed
session. 	However, 	the 	board 	began 	late, 	so 	the 	TAC 	presentation
was 	cut 	short 	by 	the 	board 	after 	about 	30 	minutes.
In 	every 	written 	or 	verbal 	correspondence 	CSEA had 	with 	the
District, 	CSEA 	took 	the 	position 	that 	it 	was 	adamantly 	opposed 	to
contracting 	out. 	CSEA 	also 	argued 	repeatedly 	that 	contracting
out 	the 	work 	would 	not, 	in 	fact, 	save 	the 	District 	any 	money.
CSEA 	provided 	the 	District 	with 	a 	survey 	it 	had 	taken 	of
transportation 	employees, 	indicating 	that 	most 	employees 	believed
7 	Q 	[Mr. 	Keiner] 	Okay. 	So, 	what 	part 	did
cost 	play 	in your 	decision 	that 	evening?
A 	[Mr. 	Howell] 	Cost 	played 	absolutely 	no
part 	of 	my 	decision. 	Given 	the 	problems
we've 	had 	in 	transportation, 	I 	would 	have
gone 	out 	for 	-- 	I 	would 	have 	accepted 	the 	bid
with 	[the 	contractor] 	if 	it 	didn't 	save 	us 	a
dime.
16

the 	District 	was 	contracting 	out 	due 	to 	personnel 	issues 	rather
than 	cost 	savings. 	The 	survey, 	however, 	also 	generated 	at 	least
a 	dozen 	ideas 	for 	saving 	money 	or 	generating 	revenue 	within 	the
department. 8
Mr. 	Milton 	also 	testified 	that 	at 	the 	May 	15 	board meeting
when 	the 	board 	decided 	to 	contract 	out 	the 	transportation
services, 	at 	least 	one 	board 	member 	mentioned 	the 	$600,000 	in
savings 	and 	other 	members 	referred 	to 	"savings" 	in general 	as 	a
way 	the 	District 	could 	purchase 	new 	buses. 	Mr. 	Milton's
testimony was 	supported by 	testimony 	of 	Ms. 	Maldonado, 	who
testified 	that 	the 	board 	discussed 	a 	possible 	$600,000 	savings 	at
the 	meeting.
There 	was 	a 	great 	deal 	of 	testimony 	about 	problems 	the
District 	had 	in 	its 	transportation 	department. 	The 	department
had 	had 	three 	different 	directors 	in 	the 	previous 	five 	years
along 	with 	high 	turnover 	in 	numerous 	bargaining 	unit 	and
management 	positions. 	Costs 	had 	steadily 	increased 	over 	the
previous 	several 	years. 	District 	management 	believed 	the
department 	had 	become 	increasingly 	ineffective, 	absorbing 	scarce
8The 	parties 	place 	more 	credence 	in 	this 	survey 	than 	I 	do.
It 	does 	not 	appear 	to 	me 	to 	be 	unbiased 	or 	independent 	in 	any
way. 	For 	example, 	questions 	were 	posed 	as 	follows: 	Do 	you 	feel
betrayed 	that 	the 	board 	did 	not 	use 	the 	money 	our 	department
saved 	over 	the 	years 	to 	purchase 	new 	buses 	they promised us? 	Do
you 	feel 	betrayed 	knowing 	the 	board 	is 	using 	the 	excuse 	of 	lack
of 	buses 	as 	a 	main 	reason 	to 	look 	into 	contracting? 	Knowing 	the
school 	board 	has 	not 	held 	up 	their 	financial 	responsibility
concerning 	our 	department, 	has 	this 	caused you 	unnecessary 	stress
in your 	job 	and 	family 	life?
17

managerial 	resources 	with 	limited 	benefits. 	Absenteeism was
reported 	as 	high 	as 	20 	percent.
Ms. 	Godfrey 	supervised 	the 	transportation 	department
from 	November 	1999 	to 	the 	date 	of 	the 	layoff. 	According 	to
Ms. 	Godfrey, 	"the 	department 	was 	running 	amok, 	employees 	were
challenging 	management, 	they 	were 	challenging 	each 	other, 	all
kinds 	of 	strange 	and 	counterproductive 	activities 	were 	going 	on,
and 	the 	efficiency 	of 	the 	department 	was 	severely 	impaired."
Ms. 	Godfrey 	also 	testified 	that 	as 	a 	result 	of 	the 	chaos 	in 	the
department, 	she 	received 	numerous 	complaints 	from 	teachers 	about
buses 	being 	late, 	kids 	being 	missed, 	field 	trip 	buses 	not 	showing
up 	on 	time 	and 	similar 	issues. 	Ms. 	Godfrey 	estimated 	that 	over
the 	past 	three 	years 	she 	spent 	between 	30 	and 	50 	percent 	of 	her
time 	on 	transportation 	issues.
Ms. 	Godfrey 	also 	testified 	that 	from what 	she 	observed 	and
heard 	at 	the 	May 	15 	board 	meeting, 	the 	board's 	decision 	was 	based
partially on 	the 	analysis 	and 	recommendation 	of 	Mr. 	Bridges.
According 	to 	Ms. 	Godfrey, 	CSEA never 	sent 	her 	a 	demand 	to 	bargain
the 	decision 	to 	subcontract 	transportation 	services, 	but 	she 	was
aware 	CSEA wanted 	to 	negotiate 	the 	decision 	because 	she 	had 	seen
copies 	of 	letters 	sent 	to 	other 	individuals.
Superintendent 	DePue 	testified 	that 	she 	has 	been 	involved
one 	way 	or 	another 	with 	the 	transportation 	department 	during 	her
30 	years 	of 	employment 	within 	the 	District. 	She 	testified 	about
receiving 	numerous 	complaints 	about 	problems 	in 	the 	department.
She 	was 	aware 	that 	board members 	had 	also 	received 	complaints.
18

According 	to 	Ms. 	DePue, 	the 	department 	has 	a 	current 	need
for 	new 	buses 	because 	the 	District 	has 	not 	replaced 	any 	over 	the
past 	several 	years. 	The 	average 	bus 	costs 	about 	$82,000 	and 	the
District 	needs 	between 	15 	to 	20 	of 	them. 	Ms. 	DePue 	testified
about 	her 	budget 	frustration:
. 	when 	it 	comes 	down 	to 	budget 	time 	and
you're 	looking 	at 	how 	you 	spend your 	money,
that 	once 	we 	did 	everything 	that 	we 	thought
we 	needed 	to 	do 	for 	students, 	as 	far 	as
academically, 	we 	had 	a 	hard 	time 	coming 	up
with 	the 	money 	to 	replace 	buses.
When 	Ms. 	DePue 	was 	asked 	about 	potential 	savings 	from 	the
decision 	to 	contract 	out 	transportation 	services, 	she 	testified
as 	follows:
Q 	[Mr. 	Kiener] 	Okay. 	Is 	there 	going 	to
be 	a 	cost 	savings 	to 	the 	District 	under 	that
contract 	with 	STA?
A 	[Ms. 	DePue] 	I 	believe 	there 	will 	be
some. 	We 	won't 	know 	until 	the 	end 	of 	the
first 	year 	whether 	there 	actually 	are 	cost
savings 	or 	not. 	I 	believe 	that 	there 	will 	be
some.
Q 	Does 	the 	District 	have 	plans 	for 	any
cost 	savings?
A 	If 	we 	have 	cost 	savings, 	our 	plan 	is 	to
the 	first 	thing 	I 	believe 	that 	we 	will 	do
is 	to 	get 	those 	15 	to 	20 	school 	busses 	that
we 	need.
Ms. 	DePue 	also 	testified 	that 	she 	had 	never 	seen 	any 	letters
from 	CSEA 	asking 	to 	negotiate 	the 	decision 	to 	subcontract 	until
the 	day 	the 	board 	was 	meeting 	to 	decide 	the 	issue. 	Ms. 	DePue
recalled 	talking 	to 	board 	President 	Soto 	about 	CSEA's 	letter.
Ms. 	DePue 	testified:
19

. 	I 	talked 	to 	Mrs. 	Soto, 	my 	recollection
was 	that 	she 	talked 	to 	Mary 	Ellen Maldonado
that 	afternoon 	and 	felt 	that 	it 	was 	a 	little
late 	to 	be 	asking 	for 	this 	now, 	and 	that 	they
were 	not 	ready 	to 	negotiate 	the 	decision 	to
contract.
The 	day 	following 	the 	board vote 	to 	subcontract, 	stian
Kiener, 	attorney 	for 	the 	District, 	wrote 	to 	Ms. 	Maldonado. 	This
was 	the 	first 	written 	response 	CSEA had 	received 	from 	the
District 	regarding 	the 	demand 	to 	negotiate 	the 	decision 	to
subcontract. 	In 	his 	letter, 	Mr. 	Kiener 	acknowledged 	receipt 	of
CSEA's 	April 	26, 	2000, 	demand 	to 	negotiate 	and 	stated 	that 	the
District 	was 	under 	no 	obligation 	to 	negotiate 	the 	decision 	to
contract 	out 	work. 	Mr. 	Kiener 	made 	several 	arguments 	in 	his
letter. 	First, 	he 	stated 	that 	the 	Education 	Code 	provided
explicit 	authority 	for 	contracting 	out 	transportation 	services.
He 	also 	claimed 	that 	PERB 	precedent 	and 	private 	sector 	labor 	law
did 	not 	require 	such 	negotiations 	because 	the 	decision 	was 	not
based 	primarily 	upon 	labor 	costs. 	Mr. 	Keiner 	found 	this
particularly 	true 	in 	light 	of 	the 	board's 	mandate 	that 	"the
hourly wage 	[paid 	by 	the 	contractor] 	not 	be 	less 	than 	current
compensation, 	all 	at 	District 	expense." 	Furthermore, 	according
to 	Mr. 	Kiener, 	"Because 	these 	parties 	have, 	for 	several 	years,
already 	exhausted 	all 	opportunities 	for 	meaningful 	restructuring
through 	advisory 	committee, 	the 	basic 	decision 	would 	also 	not 	be
amenable 	to 	collective 	bargaining." 	Mr. 	Kiener's 	last
justification was, 	''Finally, 	as 	a 	practical 	matter, 	CSEA
routinely 	demands 	to 	bargain 	the 	decision, 	but 	instead 	begins
20

[sic] 	effects, 	in 	the 	transportation 	area. 	There 	is 	no 	reason 	to
change 	that 	approach 	in 	this 	District."
The 	letter 	concluded 	with 	an 	invitation 	to 	negotiate 	the
negotiable 	effects 	of 	the 	District's 	decision 	to 	subcontract.
Although 	the 	parties 	did 	meet 	and 	reach 	agreement 	about 	the
layoff 	procedures 	to 	be 	used, 	CSEA maintained 	its 	position 	that
it 	would 	not 	negotiate 	about 	effects 	until 	the 	District 	was
willing 	to 	negotiate 	the 	decision 	itself.
CSEA 	filed 	this 	unfair 	practice 	charge 	on May 	25, 	2000. 	On
June 	8, 	2000, 	the 	District 	signed 	a 	contract 	with 	the 	Student
Transportation 	of 	America 	(STA) 	for 	transportation 	services, 	and
laid 	off 	its 	transportation 	employees. 	The 	contract 	is 	for 	a
term of 	5 	years. 	As 	part 	of 	the 	agreement, 	the 	District 	also
agreed 	to 	lease 	the 	District's 	maintenance 	and 	refueling
facilities 	to 	the 	contractor 	for 	one 	dollar 	per 	year.
The 	collective 	bargaining 	agreement 	includes 	a 	management
rights 	clause 	which 	states:
District 	Rights
It 	is 	understood 	and 	agreed 	that 	the 	District
retains 	all 	of 	its 	powers 	and 	authority 	to
direct, 	manage, 	and 	control 	to 	the 	full
extent 	of 	the 	law. 	Included 	in, 	but 	not
limited 	to, 	those 	duties 	and 	powers 	are 	the
exclusive 	rights 	to: 	determine 	the 	times 	and
hours 	of 	operation; 	determine 	the 	type 	and
level 	of 	service 	to 	be 	provided 	and 	the
method 	and 	means 	of 	providing 	them; 	establish
is 	educational 	policies, 	goals, 	and
objectives; 	insure 	the 	rights 	and 	educational
opportunities 	of 	students; 	determine 	staffing
patterns; 	determine 	the 	number 	and 	types 	of
personnel 	required; 	maintain 	the 	efficiency
of 	District 	operation; 	determine 	the
curriculum; 	build, 	move 	or 	modify 	facilities;
21

establish 	budget 	procedures 	and 	determine
budgetary 	allocations; 	determine 	the 	methods
of 	raising 	revenue; 	and 	take 	action 	on 	any
matter 	in 	the 	event 	of 	an 	emergency. 	In
addition, 	the 	District 	retains 	the 	right 	to
hire, 	assign, 	classify, 	evaluate, 	promote,
terminate, 	and 	discipline 	employees.
A. 	The 	exercise 	of 	foregoing 	powers,
rights, 	authority, 	duties 	and
responsibilities 	by 	the 	District, 	the
adoption 	of 	policies, 	rules, 	regulations
and 	practices 	in 	furtherance 	thereof,
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 	the 	law.
ISSUE
Did 	the 	District 	violate 	section 	3543.S(a), 	(b) 	and 	(c)
of 	the 	EERA 	by 	taking 	unilateral 	action 	to 	contract 	out 	the
District's 	transportation 	services?
DISCUSSION
Jurisdiction 	Issues
The 	District 	argues 	that 	PERB 	has 	no 	jurisdiction 	to 	hear
this 	matter 	because 	the 	charge 	is 	barred by 	the 	statute 	of
limitations. 	Section 	3541.S(a) (1) 	states:
(a) 	Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the 	board
shall 	not 	do 	either 	of 	the 	following:
(1) 	Issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six months 	prior 	to 	the
filing 	of 	the 	charge.
In 	California 	State 	University 	(San 	Diego) 	(1989) 	PERB
Decision No. 	718-H, 	the 	Board determined 	that 	the 	six-month
statute 	of 	limitations 	is 	jurisdictional. 	Thus, 	if 	this 	charge
22

is 	untimely, 	the 	Board 	is 	without 	jurisdiction 	to 	decide 	the
merits 	of 	the 	complaint.
The 	District's 	argument 	regarding 	the 	statute 	of 	limitations
is 	rather 	novel. 	It 	argues 	that 	because 	the 	District 	was
unwilling 	to 	negotiate 	the 	decision 	to 	contract 	out 	work 	in
1994-95, 	CSEA was 	on 	notice 	since 	that 	time 	regarding 	the
District's 	position 	on 	the 	subject. 	Therefore, 	according 	to 	the
District, 	CSEA had 	knowledge 	that 	the 	District 	would 	continue 	to
refuse 	to 	negotiate 	its 	decision, 	thus 	the 	statute 	of 	limitations
ran 	several 	years 	earlier.
The 	District 	also 	argues 	that 	at 	the 	very 	least 	the 	statute
of 	limitations 	began 	to 	run 	in August 	1999, 	when 	Mr. 	Howell 	"once
again 	informed 	Ms. 	Maldonado 	and Ms. 	Ruiz 	that 	the 	District 	would
not 	bargain 	the 	decision."
PERB 	has 	dealt 	with 	statute 	of 	limitations 	issues 	on
numerous 	occasions 	and 	the 	law 	is 	very 	clear. 	In 	Regents 	of 	the
University 	of 	California 	(1990) 	PERB 	Decision No. 	826 	H, 	the
Board 	stated 	the 	following 	rule:
. 	The 	statute 	of 	limitations 	begins 	to
run 	on 	the 	date 	the 	charging 	party has 	actual
or 	constructive 	notice 	of 	the 	respondent's
clear 	intent 	to 	implement 	a 	unilateral 	change
in 	policy, 	providing 	that 	nothing 	subsequent
to 	that 	date 	evinces 	a 	wavering 	of 	that
intent.
"Actual 	knowledge" 	must 	clearly 	inform 	the 	charging 	party 	of
the 	allegedly 	unlawful 	act. 	(Victor 	Valley Union 	High 	School
District 	(1986) 	PERB 	Decision No. 	565.) 	In 	Riverside 	Unified
23

School 	District 	(1985) 	PERB 	Decision No. 	522, 	the 	Board 	adopted
the 	following 	view 	of 	constructive 	notice:
. 	Absent 	actual 	notice, 	the 	limitations
period 	begins 	to 	run 	when 	the 	persons
affected 	have 	constructive 	notice 	of 	the
violation. 	They 	are 	aware 	of 	the 	events
which 	manifest 	change 	and 	should 	reasonably 	be
aware 	of 	the 	s 	ficance 	of 	the 	events.
Events 	in 	1994-95 	offer 	no 	actual 	or 	constructive 	knowledge
about 	the 	May 	2000 	decision 	by 	the 	board. 	If 	anything, 	they 	do
exactly 	the 	opposite. 	In 	1994-95, 	the 	District 	changed 	its
position 	and 	decided 	not 	to 	contract 	out 	after 	lobbying 	from
CSEA. 	In 	1999-2000, 	CSEA 	continued 	to 	lobby 	the 	board 	to
convince 	it 	that 	the 	District 	would 	not 	save 	money 	and 	that
contracting 	out 	was 	not 	an 	appropriate 	action. 	Up 	until 	the
May 	15 	board 	meeting, 	CSEA had 	hopes 	that 	the 	District 	would 	not
contract 	out 	transportation 	services.
Thus, 	it 	is 	not 	even 	a 	slightly plausible 	argument 	that 	the
statute 	of 	limitations 	for 	the 	May 	15, 	2000, 	board 	decision 	began
running 	five 	years 	prior 	to 	consideration 	of 	that 	decision 	by 	the
school 	board.
The 	Dist 	ct 	also 	places 	great 	weight 	on Mr. 	Howell's
statement 	to 	Ms. 	Maldonado 	and Ms. 	Ruiz 	about 	the 	District's
position 	in August 	1999. 	However, 	even 	discounting
Ms. 	Maldonado's 	account 	of 	the 	conversation, 	and 	crediting
Mr. 	Howell's 	testimony 	in 	the 	strongest 	light 	possible 	for 	the
District, 	it 	falls 	far 	short 	of 	providing 	actual 	or 	constructive
notice 	to 	CSEA 	of 	a 	clear 	intent 	to 	subcontract. 	At 	most,
Mr. 	Howell's 	testimony 	reflects 	that 	he 	told Ms. 	Ruiz 	that 	he
24

"thought" 	there 	was 	a 	"good 	chance" 	the 	board would 	"consider" 	an
RFP 	and 	he 	was 	"inclined 	to 	take 	the 	devil" 	he 	didn't 	know. 	When
asked 	about 	his 	response 	to 	Ms. 	Maldonado's 	request 	to 	negotiate
the 	decision 	to 	contract 	out 	the 	work, 	Mr. 	Howell 	gave 	a 	cursory
response, 	saying 	that 	he 	didn't 	think 	they 	had 	to. 	According 	to
Mr. 	Howell, 	Ms. 	Maldonado 	said 	that 	she 	thought 	they 	did 	have 	to
negotiate, 	and 	then they 	agreed 	that 	they 	"would probably 	talk
about 	this 	further 	if 	the 	Board 	did go 	out 	for 	an 	RFP, 	and 	that
it 	looked 	as 	though 	the 	Board would 	be 	considering 	it 	sometime
within 	the 	next 	month 	or 	so."
The 	District 	simply 	overstates 	Mr. 	Howell's 	testimony. 	It
appears 	to 	be 	the 	speculative 	opinion 	of 	one 	board member 	at
best, 	and 	did 	not 	put 	CSEA 	on 	notice 	about 	a 	definite 	course 	of
action 	by 	the 	District.
Even 	CSEA's 	knowledge 	of 	the 	RFP 	does 	not 	start 	the 	statute
of 	limitations 	running. 	The 	August 	17, 	1999, 	administrative 	memo
asked 	the 	board 	to 	authorize 	an 	RFP 	to 	determine 	what, 	if 	any,
cost 	savings 	would 	be 	achieved 	by 	contracting 	out 	transportation
services. 	At 	the 	same 	time, 	the 	board 	approved 	the 	RFP, 	it 	also
created 	the 	new Ad 	Hoc 	Committee 	"to 	study 	the 	pros 	and 	cons 	of
contract 	busing."
This 	was 	mere 	the 	start 	of 	the 	fact-finding 	process, 	not
an 	indication 	of 	a 	final 	decision made 	by 	the 	board. 9 	Thus, 	the
9This 	was 	identical 	to 	1994 	when 	the 	District 	issued 	an 	RFP.
At 	that 	time, 	Assistant 	Superintendent 	Olivarria 	informed CSEA
that 	all 	the 	District 	had 	done 	was 	issue 	a 	request 	for 	proposals
for 	transportation 	services, 	and 	no 	decision 	had 	been 	made.
25

statute 	of 	limitations 	in 	this 	case 	began 	running 	on May 	15,
2000, 	when 	the 	board voted 	to 	contract 	out 	transportation
services 	and 	lay 	off 	all 	employees. 	Therefore, 	the 	charge 	was
timely 	filed 	and 	PERE 	has 	jurisdiction 	to 	consider 	the 	merits 	of
the 	complaint.
Negotiability 	Issue
It 	is 	well 	settled 	that 	an 	employer's 	unilateral 	change 	in
terms 	and 	conditions 	of 	employment 	within 	the 	scope 	of
representation 	is, 	absent 	a 	valid 	defense, 	a 	per 	se 	refusal 	to
negotiate 	and 	a 	violation 	of 	EERA 	section 	3543.5(c). 	(Pajaro
Valley 	Unified 	School 	District 	(1978) 	PERE 	Decision No. 	51.)
To 	prevail 	on 	a 	complaint 	of 	unilateral 	change, 	a 	charging
party must 	establish 	a 	preponderance 	of 	the 	evidence 	that 	(1) 	the
District 	breached 	or 	altered 	a 	written 	agreement 	or 	an
established past 	practice; 	(2) 	such 	action was 	taken 	without
giving 	the 	exclusive 	representative 	notice 	or 	an 	opportunity 	to
bargain 	over 	the 	change; 	(3) 	the 	change 	is 	not 	merely 	an 	isolated
breach 	of 	the 	contract, 	but 	amounts 	to 	a 	change 	of 	policy 	(i.e.,
having 	a 	generalized 	effect 	or 	continuing 	impact 	upon 	bargaining
unit 	members' 	terms 	and 	conditions 	of 	employment); 	and 	(4) 	the
change 	in 	policy 	concerns 	a 	matter 	within 	the 	scope 	of
representation. 	(Grant 	Joint 	Union High 	School 	District 	(1982)
PERE 	Decision No. 	196; 	see 	also 	Pajaro 	Valley 	Unified 	School
District, 	supra, 	PERE 	Decision No. 	51; 	Davis 	Unified 	School
District, 	et 	al. 	(1980) 	PERE 	Decision No. 	116.)
26

Here 	there 	is 	no 	question 	that 	the 	District 	changed 	the
terms 	and 	conditions 	of 	employment 	of 	its 	transportation 	services
bargaining 	unit 	employees. 	It 	is 	also 	clear 	that 	it 	did 	so
without 	first 	giving 	CSEA 	proper 	notice 	and 	an 	opportunity 	to
negotiate 	over 	its 	decision 	to 	implement 	those 	changes. 	The
District, 	however, 	argues 	that 	the 	decision 	to 	contract 	out 	the
District's 	transportation 	services 	is 	not 	within 	the 	scope 	of
representation.
The 	scope 	of 	representation 	under 	the 	EERA 	is 	set 	forth 	in
section 	3543.2, 	which 	states, 	in 	pertinent 	part:
(a) 	The 	scope 	of 	representation 	shall 	be
limited 	to 	matters 	relating 	to 	wages, 	hours
of 	employment, 	and 	other 	terms 	and 	conditions
of 	employment. 	"Terms 	and 	conditions 	of
employment" 	mean 	health 	and 	welfare 	benefits
as 	defined 	by 	Section 	53200, 	leave, 	transfer
and 	reassignment 	policies, 	safety 	conditions
of 	employment, 	class 	size, 	procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for 	processing 	grievances
pursuant 	to 	Sections 	3548.5, 	3548.6, 	3548.7,
and 	3548.8, 	the 	layoff 	of 	probationary
certificated 	school 	district 	employees,
pursuant 	to 	Section 	44959.5 	of 	the 	Education
Code, 	and 	alternative 	compensation 	or
benefits 	for 	employees 	adversely 	affected 	by
pension 	limitations 	pursuant 	to 	Section 	22316
of 	the 	Education 	Code, 	to 	the 	extent 	deemed
reasonable 	and 	without 	violating 	the 	intent
and 	purposes 	of 	Section 	415 	of 	the 	Internal
Revenue 	Code.
In Anaheim Union 	High 	School 	District 	(1981) 	PERB 	Decision
No. 	177 	(Anaheim), 	the 	Board determined 	that 	a 	subject 	which 	was
not 	enumerated 	in 	EERA 	section 	3542.2 	is 	negotiable 	if: 	(1) 	it
is 	logically 	and 	reasonably 	related 	to 	wages, 	hours, 	or 	an
enumerated 	term 	and 	condition 	of 	employment; 	(2) 	the 	subject 	is
27

of 	such 	concern 	to 	both management 	and 	employees 	that 	conflict 	is
likely 	to 	occur 	and 	the 	mediatory 	influence 	of 	collective
negotiation 	is 	an 	appropriate 	means 	of 	resolving 	the 	conflict;
and 	(3) 	the 	employer's 	obligation 	to 	negotiate 	would 	not
significantly 	abridge 	its 	freedom 	to 	exercise 	those 	managerial
prerogatives 	(including 	matters 	of 	fundamental 	policy) 	essential
to 	the 	achievement 	of 	the 	district's 	mission.
This 	test 	was 	approved 	by 	the 	California 	Supreme 	Court 	in
its 	decision 	in 	San 	Mateo 	City 	School 	District 	v. 	PERB 	(1983)
33 	Cal.3d 	850 	[191 	Cal.Rptr. 	800] 	(San Mateo), 	and 	was
subsequently 	applied 	by 	the 	Board 	in 	its 	decision 	in Healdsburg
Union High 	School 	District 	and 	Healdsburg 	Union 	School
District/San Mateo 	City 	School 	District 	(1984) 	PERB 	Decision
No. 	375 	(Healdsburg).
Using 	this 	test, 	the 	Board 	found 	that 	the 	decision 	to
subcontract 	was 	thin 	the 	scope 	of 	representation 	under 	the
EERA, 	and 	that 	the 	employer 	must 	therefore 	negotiate 	over
proposals 	concerning 	that 	decision. 	(See 	Arcohe 	Union 	School
District 	(1983) 	PERB 	Decision No. 	360 	(Arcohe); 	Oakland Unified
School 	District 	(1983) 	PERB 	Decision No. 	367; 	Healdsburg 	at
pp. 	85-87.)
In Arcohe, 	the 	Board 	stated:
Subcontracting 	custodial 	work 	formerly
performed by 	unit 	employees 	is 	a 	subject
logically 	and 	reasonably 	related 	to 	wages,
hours, 	and 	transfer 	and promotional
opportunities 	for 	incumbent 	employees 	in
existing 	custodial 	classifications. 	Actual
or 	potential 	work 	is 	withdrawn 	from 	unit
employees, 	and 	wages 	and 	hours 	associated
28

with 	the 	contracted-out 	work 	are 	similarly
withdrawn. 	Further, 	such 	diminution 	of 	unit
work 	weakens 	the 	collective 	strength 	of
employees 	in 	the 	unit 	and 	their 	ability 	to
deal 	effective 	with 	the 	employer. 	Such
impact 	affects 	work 	hours 	and 	conditions, 	and
thus 	is 	logically 	and 	reasonably 	related 	to
specifically 	enumerated 	subjects 	within 	the
scope 	of 	representation. 	[Ci tat ions.]
Management 	considerations 	are 	also 	raised 	by
subcontracting 	decisions. 	The 	public 	school
employer 	may 	determine 	that 	an 	outside 	firm
can 	perform a 	particular 	task 	at 	a 	lower
labor 	cost 	than 	can 	unit 	personnel.
It 	is 	apparent 	that 	subcontracting 	the 	work
of 	unit 	employees 	is 	of 	great 	concern 	to
employees 	and 	management, 	and 	their 	interests
will 	naturally 	be 	opposed 	on 	the 	subject 	so
as 	to 	make 	it 	likely 	that 	conflict 	will
occur. 	Such 	conflict 	might 	well 	be
ameliorated 	by 	the 	mediatory 	influence 	of
collective 	negotiating.
The 	decision 	to 	subcontract 	the 	work 	of 	unit
custodians 	did 	not 	involve 	the 	exercise 	of
any 	essential 	managerial 	prerogative. 	The
District, 	by 	such 	conduct, 	did 	not 	determine
that 	custodial 	services 	would 	no 	longer 	be
provided. 	Rather, 	it 	sought 	to 	transfer
existing 	functions 	and 	duties 	from 	unit
employees 	to 	persons 	who 	are 	not 	employees 	of
the 	District. 	No 	decision 	as 	to 	what
functions 	were 	essential 	to 	management 1 s
mission 	was 	involved. 	The 	same 	functions
were 	still 	being 	performed, 	albeit 	by persons
not 	employed by 	the 	District. 	While 	sound
fiscal 	management 	is 	a 	significant 	concern,
such 	concern 	is 	properly 	addressed 	at 	the
bargaining 	table 	and 	is 	not 	"an 	excuse 	to
avoid 	the 	negotiating 	obligation 	entirely."
San Mateo 	County 	Community 	College 	District
(6/8/79) 	PERB 	Decision No. 	94, 	p. 	13. 	The
requirement 	that 	the 	District 	negotiate 	prior
to 	subcontracting 	unit 	work 	does 	not 	abridge
the 	District's 	freedom 	to 	exercise 	any
essential 	managerial 	prerogative.
29

The 	Board 	revisited 	the 	issue 	of 	subcontracting 	in 	State 	of
California 	(Department 	of 	Personnel 	Administration) 	(1986) 	PERE
Decision No. 	574-S 	(DPA-574-S) 	and 	State 	of 	California
(Department 	of 	Personnel 	Administration) 	(1987) 	PERE 	Decision
No. 	648-S 	(DPA 	648-S).
Both 	of 	these 	Department 	of 	Personnel 	Administration 	(DPA)
cases 	relied 	heavily 	upon 	federal 	precedent, 	beginning 	with 	the
U.S. 	Supreme 	Court 1 s 	decision 	in 	Fibreboard 	Paper 	Products
Corporation V. 	NLRB 	(1964) 	379 	U.S. 	203 	[57 	LRRM 	2609]
(Fibreboard). 	The 	facts 	in 	Fibreboard 	are 	remarkably 	similar 	to
both Arcohe 	and 	Lucia 	Mar. 	In 	Fibreboard, 	the 	employer 	had
performed 	maintenance 	work 	at 	its 	business 	by 	utilizing 	its 	own
employees. 	Estimating 	that 	it 	could 	save 	$225,000 	per 	year 	by
using 	an 	outside 	contractor, 	the 	employer 	unilaterally 	decided 	to
contract 	out 	the 	maintenance 	work. 	The 	maintenance 	work
continued 	to 	be 	performed 	within 	the 	plant 	using 	the 	contractor 1 s
employees. 	The 	nature 	of 	the 	work 	did 	not 	change. 	The
anticipated 	savings 	in 	cost 	came 	primarily 	from 	the 	reduction 	in
fringe 	benefits, 	adjustments 	in 	work 	scheduling, 	employment 	of
stricter 	work 	quotas, 	more 	effective 	supervision 	of 	scheduling
and 	more 	effective 	supervision 	of 	the 	contractor 1 s 	employees.
In 	Fibreboard, 	the 	court 	stated:
The 	facts 	of 	the 	present 	case 	illustrate 	the
propriety 	of 	submitting 	the 	dispute 	to
collective 	negotiation. 	The 	Company's
decision 	to 	contract 	out 	the 	maintenance 	work
did 	not 	alter 	the 	Company's 	basic 	operation.
The 	maintenance 	work 	still 	had 	to 	be
performed 	in 	the 	plant. 	No 	capital
investment 	was 	contemplated; 	the 	Company
30

merely 	replaced 	existing 	employees 	with 	those
of 	an 	independent 	contractor 	to 	do 	the 	same
work 	under 	similar 	conditions 	of 	employment.
Therefore, 	to 	require 	the 	employer 	to 	bargain
about 	the 	matter 	would 	not 	significantly
abridge 	his 	freedom 	to 	manage 	the 	business.
The 	Company was 	concerned with 	the 	high 	cost
of 	its 	maintenance 	operation. 	It 	was 	induced
to 	contract 	out 	the 	work 	by 	assurances 	from
independent 	contractors 	that 	economies 	could
be 	derived 	by 	reducing 	the 	work 	force,
decreasing 	fringe 	benefits, 	and 	eliminating
overtime 	payments. 	These 	have 	long 	been
regarded 	as 	matters 	peculiarly 	suitable 	for
resolution 	within 	the 	collective 	bargaining
framework, 	and 	industrial 	experience
demonstrates 	that 	collective 	negotiation 	has
been 	highly 	successful 	in 	achieving 	peaceful
accommodation 	of 	the 	conflicting 	interests.
Yet, 	it 	is 	contended 	that 	when 	an 	employer
can 	effect 	cost 	savings 	in 	these 	respects 	by
contracting 	the 	work 	out, 	there 	is 	no 	need 	to
attempt 	to 	achieve 	similar 	economies 	through
negotiation 	with 	existing 	employees 	or 	to
provide 	them with 	an 	opportunity 	to 	negotiate
a 	mutually 	acceptable 	alternative. 	The 	short
answer 	is 	that, 	although 	it 	is 	not 	possible
to 	say whether 	a 	satisfactory 	solution 	could
be 	reached, 	national 	labor 	policy 	is 	founded
upon 	the 	congressional 	determination 	that 	the
chances 	are 	good 	enough 	to 	warrant 	subjecting
such 	issues 	to 	the 	process 	of 	collective
negotiation.
We 	are 	thus 	not 	expanding 	the 	scope 	of
mandatory 	bargaining 	to 	hold, 	as 	we 	do 	now,
that 	the 	type 	of 	11 contracting 	out 11 	involved
in 	this 	case--the 	replacement 	of 	employees 	in
the 	existing 	bargaining 	unit 	with 	those 	of 	an
independent 	contractor 	to 	do 	the 	same 	work
under 	similar 	conditions 	of 	employment 	-is 	a
statutory 	subject 	of 	collective 	bargaining
under§ 	8(d). 	Our 	decision 	need 	not 	and 	does
not 	encompass 	other 	forms 	of 	'contracting
out' 	or 	'subcontracting' 	which 	arise 	daily 	in
our 	complex 	economy. 	[Fn. 	omitted.]
31

The 	court 	then 	affirmed 	the 	National 	Labor 	Relations 	Board's
(NLRB) 	remedy 	which 	included 	an 	order 	to 	resume 	the 	employer's
own maintenance 	operation 	along 	with 	making 	employees 	whole 	for
all 	their 	losses.
A second 	case 	relied 	upon 	by 	PERB 	is 	First 	National
Maintenance 	Corporation 	v. 	NLRB 	(1981) 	452 	U.S. 	666 	[107 	LRRM
2705] 	(First 	National). 	In 	that 	case, 	the 	employer 	was 	in 	the
business 	of 	supplying 	customers 	with 	housekeeping 	and 	maintenance
services 	at 	the 	customer's 	location using 	contract 	employees.
The 	employer 	determined 	that 	operations 	with 	one 	particular
customer 	were 	not 	profitable 	and 	decided 	to 	terminate 	the
contract, 	close 	down 	the 	operation 	at 	that 	location 	and 	lay 	off
all 	the 	employees.
In 	its 	decision, 	the 	court 	noted 	three 	types 	of 	issues
against 	which 	the 	obligation 	to 	negotiate 	must 	be 	measured.
Some 	management 	decisions, 	such 	as 	choice 	of
advertising 	and promotion, 	product 	type 	and
design, 	and 	financing 	arrangements, 	have 	only
an 	indirect 	and 	attenuated 	impact 	on 	the
employment 	relationship. 	[Ci tat ion.] 	Other
management 	decisions, 	such 	as 	the 	order 	of
succession 	of 	layoffs 	and 	recalls, 	production
quotas, 	and 	work 	rules, 	are 	almost
exclusively 	"an 	aspect 	of 	the 	relationship"
between 	employer 	and 	employee. 	[Citation.]
The 	present 	case 	concerns 	a 	third 	type 	of
management 	decision, 	one 	that 	had 	a 	direct
impact 	on 	employment, 	since 	jobs 	were
inexorably 	eliminated by 	the 	termination, 	but
had 	as 	its 	focus 	only 	the 	economic
profitability 	of 	the 	contract 	with 	Greenpark,
a 	concern 	under 	these 	facts 	wholly 	apart 	from
the 	employment 	relationship. 	This 	decision,
involving 	a 	change 	in 	the 	scope 	and 	direction
of 	the 	enterprise, 	is 	akin 	to 	the 	decision
whether 	to 	be 	in 	business 	at 	all,
32

The 	first 	category 	of 	issues 	would 	not 	be 	subject 	to
mandatory 	negotiations. 	The 	second 	category would 	be 	subject 	to
mandatory 	negotiations. 	Regarding 	the 	third 	category, 	the 	court
stated:
in view 	of 	an 	employer's 	need 	for
unencumbered 	decisionmaking, 	bargaining 	over
management 	decisions 	that 	have 	a 	substantial
impact 	on 	the 	continued 	availability 	of
employment 	should 	be 	required 	only 	if 	the
benefit, 	for 	labor-management 	relations 	and
the 	collective 	bargaining 	process, 	outweighs
the 	burden 	placed 	on 	the 	conduct 	of 	the
business.
The 	court 	in 	First 	National 	referred 	to 	the 	application 	of
the 	same 	analysis 	in 	the 	Fibreboard 	decision:
The 	Court 	in 	Fibreboard 	implicitly 	engaged 	in
this 	analysis 	with 	regard 	to 	a 	decision 	to
subcontract 	for 	maintenance 	work 	previously
done 	by 	unit 	employees. 	Holding 	the
employer's 	decision 	a 	subject 	of 	mandatory
bargaining, 	the 	Court 	relied 	not 	only 	on 	the
"literal 	meaning" 	of 	the 	statutory words, 	but
also 	reasoned:
The 	Company's 	decision 	to 	contract 	out
the 	maintenance 	work 	did 	not 	alter 	the
Company's 	basic 	operation. 	The
maintenance 	work 	still 	had 	to 	be
performed 	in 	the 	plant. 	No 	capital
investment 	was 	contemplated; 	the 	Company
merely 	replaced 	existing 	employees 	with
those 	of 	an 	independent 	contractor 	to 	do
the 	same 	work 	under 	similar 	conditions
of 	employment. 	Therefore, 	to 	require
the 	employer 	to 	bargain 	about 	the 	matter
would 	not 	significantly 	abridge 	his
freedom 	to 	manage 	the 	business.
The 	court 	then 	distinguished 	Fibreboard 	from 	First 	National,
which 	involved 	an 	employer's 	decision 	to 	shut 	down 	part 	of 	its
business.
33

In 	order 	to 	illustrate 	the 	limits 	of 	our
holding, 	we 	turn 	again 	to 	the 	specific 	facts
of 	this 	case. 	First, 	we 	note 	that 	when
petitioner 	decided 	to 	terminate 	its 	Greenpark
contract, 	it 	had 	no 	intention 	to 	replace 	the
discharged 	employees 	or 	to 	move 	that
operation 	elsewhere. 	Petitioner's 	sole
purpose 	was 	to 	reduce 	its 	economic 	loss, 	and
the 	union made 	no 	claim of 	anti-union 	animus.
In 	addition, 	petitioner's 	dispute 	with
Greenpark 	was 	solely 	over 	the 	size 	of 	the
management 	fee 	Greenpark was 	willing 	to 	pay.
The 	union 	had 	no 	control 	or 	authority 	over
that 	fee. 	The 	most 	that 	the 	union 	could 	have
offered 	would 	have 	been 	advice 	and
concessions 	that 	Greenpark, 	the 	third 	party
upon whom 	rested 	the 	success 	or 	failure 	of
the 	contract, 	had 	no 	duty 	even 	to 	consider.
These 	facts 	in 	particular 	distinguish 	this
case 	from 	the 	subcontracting 	issue 	presented
in 	Fibreboard.
(See 	also 	Otis 	Elevator 	Company, 	a 	Wholly Owned 	Subsidiary 	Of
United 	Technologies 	(1984) 	269 	NLRB 	891 	[116 	LRRM 	1075], 	where
the 	NLRB 	determined 	that 	the 	employer 	did 	not 	need 	to 	negotiate 	a
decision 	to 	terminate 	part 	of 	its 	research 	operation, 	thus
distinguishing 	the 	facts 	from 	Fibreboard.)
It 	is 	based 	upon 	this 	background 	of 	federal 	cases 	that
PERB 	analyzed 	the 	DPA 	cases 	mentioned 	earlier 	(DPA 	574 	Sand
DPA 	648-S). 	The 	DPA 	cases 	analyze 	contract 	language 	proposed 	at
the 	bargaining 	table 	rather 	than 	unilateral 	changes.
In 	DPA 	574-S, 	the 	Board 	analyzed 	the 	proposed 	contract
language 	using 	the 	scope 	test 	adopted 	in Anaheim, 	which
recognizes 	that 	essential 	management 	prerogatives 	are 	outside 	the
scope 	of 	representation. 	In 	applying 	the 	test, 	the 	Board 	found
the 	subcontracting 	proposal 	to 	be 	directly 	related 	to 	terms 	and
conditions 	of 	employment 	and 	that 	likely 	conflict 	over 	the
34

subject 	would 	benefit 	from 	the 	mediatory 	influence 	of 	collective
bargaining. 	The 	Board 	acknowledged 	that 	some 	managerial
decisions 	are 	so 	fundamental 	to 	the 	direction 	of 	the 	enterprise
that 	they 	would 	not 	need 	to 	be 	negotiated. 	However, 	the 	Board
still 	found 	a 	violation 	because 	the 	employer 	flatly 	refused 	to
discuss 	proposals 	concerning 	the 	decision 	to 	subcontract, 	never
acknowledging 	in 	negotiations 	that 	some 	decisions 	might 	be 	within
scope 	or 	that 	union 	proposals 	might 	contain 	some 	negotiable
elements. 	The 	Board 	decision 	cited 	Fibreboard 	for 	support:
This 	conclusion 	is 	the 	same 	as 	that 	reached
by 	the 	National 	Labor 	Relations 	Board 	(NLRB)
in 	private 	sector 	cases, 	finding 	that
subcontracting 	is 	a 	mandatory 	subject 	of
bargaining. 	See 	Fibreboard 	Paper 	Products
Corporation v. 	NLRB 	(1964) 	379 	U.S. 	203 	[57
LRRM 	2609]. 	In 	Fibreboard, 	the 	NLRB 	and 	the
U.S. 	Supreme 	Court 	found 	that 	the 	employer
was 	required 	to 	negotiate 	over 	the 	decision
to 	contract 	out 	maintenance 	work 	which 	had
previously been 	done 	by 	the 	employer 1 s 	own
employees.
In 	DPA 	648 	S, 	the 	Board 	came 	to 	a 	different 	conclusion. 	The
decision, 	however, 	in 	no 	way 	signalled 	a 	departure 	from 	the
reasoning 	set 	forth 	in 	Fibreboard:
The 	decision 	of 	the 	NLRB 	in 	Otis 	Elevator,
relying 	upon 	the 	decision 	of 	the 	Supreme
Court 	in 	First 	National 	Maintenance
Corporation, 	does 	not 	disturb 	the 	Fibreboard
ruling. 	Indeed, 	it 	reinforces 	it. 	But
the 	later 	two 	decisions 	reemphasize 	that
Fibreboard 	is 	dependent 	upon 	certain 	factors,
specifically, 	a 	savings 	in 	labor 	costs 	being
the 	motivat 	factor 	for 	the 	decision 	to
subcontract.
In 	DPA 	648-S, 	the 	Board based 	its 	decision 	upon 	the 	specific
contract 	language 	before 	the 	Board:
35

. 	a 	blanket 	proposal 	that 	prohibits
subcontracting, 	and 	severely 	limits 	the
number 	of 	reasons 	why 	an 	employer 	may
subcontract, 	such 	as 	the 	one 	we 	have 	here, 	is
outside 	the 	scope 	of 	negotiation 	because 	it
of 	necessity 	impinges 	upon 	management's 	right
to 	manage, 	and 	does 	not 	present 	a 	concomitant
ability 	of 	the 	union 	to 	influence 	a 	decision
that 	is 	not 	based 	upon 	labor 	costs.
Two 	more 	recent 	cases 	also 	give 	clear 	guidance 	about 	the
negotiability 	of 	the 	decision 	to 	contract 	out 	work 	previously
done 	by 	District 	employees. 	In 	San Diego 	Community 	College
District 	(1988) 	PERB 	Decision No. 	662 	(San 	Diego), 	rev. 	in 	part
sub. 	nom. 	San 	Diego 	Adult 	Educators 	v. 	PERB 	(1990) 	223 	Cal.App.3d
1124 	[273 	Cal.Rptr. 	53], 	the 	district 	offered non-credit 	classes
in 	several 	languages. 	In March 	1983, 	the 	district 	decided 	to
discontinue 	non-credit 	classes 	in 	German, 	French 	and 	Spanish 	for
economic 	reasons. 	After 	pressure 	from 	the 	public 	to 	reinstate
the 	classes, 	in May 	1983 	the 	trustees 	directed 	the 	staff 	to
restore 	the 	language 	classes. 	The 	result 	was 	that 	the 	San 	Diego
Community 	College 	District 	Foundation, 	Inc., 	was 	asked 	to 	offer
the 	language 	classes. 	In 	June 	1983 	a 	contract 	was 	entered 	into
between 	the 	foundation 	and 	the 	district 	providing 	for 	the 	class
offerings 	by 	the 	foundation. 	In August 	1983, 	the 	district
discontinued 	the 	remaining 	non-credit 	language 	classes 	and
subcontracted 	those 	to 	the 	foundation.
The 	Board 	found 	that 	because 	the 	district 	contracted with
the 	foundation, 	it 	tacit 	admitted 	that 	it 	wished 	to 	offer
classes 	despite 	its 	earlier 	position 	that 	it 	was 	discontinuing
those 	services. 	Thus, 	it 	was 	not 	trying 	to 	halt 	the 	work 	but
36

rather 	simply 	transferring 	the 	work 	to 	a 	subcontractor 	in
violation 	of 	its 	obligation 	to 	first 	negotiate 	such 	a 	decision.
The 	Court 	of 	Appeal 	determined 	that 	because 	the 	district 	had
clearly 	discontinued 	the 	German, 	French, 	and 	Spanish 	language
courses 	at 	an 	earlier 	date, 	the 	subsequent 	arrangement 	with 	the
foundation 	was 	not 	a 	matter 	within 	the 	scope 	of 	bargaining 	as
subcontracting. 	However, 	the 	court 	upheld 	PERB 1 s 	determination
that 	there 	had 	been 	illegal 	unilateral 	subcontracting 	of 	the
remaining 	classes 	in August 	1983. 	There 	was 	no 	interest 	to
discontinue 	the 	service 	altogether. 	Rather, 	there 	was 	a
contemporaneous 	determination 	to 	terminate 	the 	jobs 	of 	district
employees 	and 	transfer 	the 	work 	to 	an 	outside 	contractor; 	a
situation 	identical 	to 	Fibreboard.
The 	final 	case 	not 	only 	is 	the 	most 	recent, 	but 	also 	the
case 	most 	directly 	on point. 	In 	Redwoods 	Community 	College
District 	(1997) 	PERE 	Decision No. 	1242 	(Redwoods), 	the 	charging
party 	claimed 	that 	the 	District 	had 	unilaterally 	contracted 	out
the 	operation 	of 	its 	campus 	dormitories. 	The 	district 	denied
that 	it 	contracted 	out 	the 	operation 	of 	the 	dormitory 	services
and 	contended 	that 	it 	had 	abandoned 	the 	operation 	of 	its
dormitories 	and 	transferred 	that 	activity 	to 	an 	auxiliary
foundation.
In 	adopting 	the 	decision 	of 	the 	administrative 	law 	judge
(ALJ), 	the 	Board 	held:
. 	PERE, 	following 	the 	United 	States
Supreme 	Court 1 s 	rulings 	in 	Fibreboard 	Paper
Products 	Corporation v. 	NLRB 	(1964) 	379 	U.S.
203 	[57 	LRRM 	2609] 	(Fibreboard); 	First
37

National 	Maintenance 	Corporation v. 	NLRB
(1981) 	452 	U.S. 	666 	[107 	LRRM 	2705]; 	and 	the
National 	Labor 	Relations 	Board's 	(NLRB)
decision 	in 	Otis 	Elevator 	Company, 	a 	Wholly
Owned 	Subsidiary of 	United 	Technologies
(1984) 	269 	NLRB 	891 	[116 	LRRM 	1075], 	has 	held
that 	subcontracting 	decisions 	which 	are
based, 	at 	least 	in 	part, 	on 	labor 	costs 	are
negotiable 	providing 	that 	the 	decision 	is
otherwise 	amenable 	to 	collective 	bargaining.
(Fn. 	omitted; 	citation.)
Redwoods 	also 	cites 	as 	authority 	Mid-State 	Ready-Mix, 	a
Division 	of 	Torrington 	Industries, 	Inc. 	(1992) 	307 	NLRB 	809 	[140
LRRM 	1137] 	(Mid-State) 	where 	the 	NLRB 	considered 	a 	fact 	pattern
in which 	an 	employer 	replaced 	bargaining 	unit 	employees 	with
those 	of 	an 	independent 	contractor 	to 	do 	the 	same 	work 	under
similar 	conditions. 	In 	its 	decision 	the 	NLRB 	stated:
. 	Such 	decisions, 	as 	the 	Court 	in 	First
National 	Maintenance 	agreed, 	do 	not 	involve
"a 	change 	in 	the 	scope 	and 	direction 	of 	the
enterprise" 	and 	thus 	are 	not 	core
entrepreneurial 	decisions 	which 	are 	beyond
the 	scope 	of 	the 	bargaining 	obligation
defined 	in 	the 	Act. 	452 	U.S. 	at 	667, 	citing
Fibreboard, 	379 	U.S. 	at 	223 	(Stewart, 	J.,
concurring). 	Thus, 	when 	the 	record 	shows
that 	essentially 	that 	kind 	of 	subcontracting
is 	involved, 	there 	is 	no 	need 	to 	apply 	any
further 	tests 	in 	order 	to 	determine 	whether
the 	decision 	is 	subject 	to 	the 	statutory 	duty
to 	bargain. 	The 	Supreme 	Court 	has 	already
determined 	that 	it 	is.
Redwoods 	held 	that 	the 	dormitories 	were 	still 	being 	operated
for 	the 	benefit 	of 	the 	students 	and 	the 	district, 	and 	that 	the
work 	had 	not 	been 	eliminated. 	The 	decision 	to 	contract 	out 	the
work 	therefore 	did 	not 	turn 	upon 	a 	change 	in 	the 	nature 	and
direction 	of 	the 	district's 	operation. 	Rather, 	it 	was 	a
contemporaneous 	decision 	by 	the 	employer 	to 	terminate 	bargaining
38

unit 	employees 	and 	contract 	out 	their 	work 	to 	a 	subcontractor
which 	continued 	to 	perform 	the 	work 	in 	a 	similar 	manner 	under
similar 	circumstances. 	The 	district's 	failure 	to 	negotiate 	its
decision 	to 	contract 	out 	the 	operation 	of 	the 	dormitory 	services
was 	a 	violation 	of 	the 	Act.
The 	facts 	at 	hand 	in 	Lucia 	Mar 	are 	almost 	identical 	to 	a
long 	list 	of 	precedential 	cases 	spanning 	almost 	35 	years 	from
Fibreboard 	up 	to 	Redwoods. 	The 	District 	did 	not, 	as 	it 	argues 	in
its 	briefs, 	make 	a 	"core 	restructuring" 	decision 	to 	no 	longer
provide 	student 	transportation 	services. 	The 	District 	continued
to 	offer 	transportation 	services 	to 	students 	that 	were 	almost
identical 	to 	those 	offered 	prior 	to 	the 	subcontracting. 	The 	same
drivers 	were 	driving 	the 	same 	District 	buses 	over 	the 	same
routes, 	picking 	up 	the 	same 	students 	and 	then 	taking 	them 	to 	the
same 	District's 	schools. 	The 	buses 	were 	even 	maintained 	in 	the
same 	District 	facilities, 	rented 	to 	the 	contractor 	for 	a 	token
$1 	per 	year. 	What 	was 	different 	was 	that 	under 	the
subcontracting 	provision 	the 	drivers 	were 	working 	with
significantly 	reduced 	fringe 	benefits, 	lower 	salaries 	and 	without
any 	job 	security, 	subject 	to 	termination 	at 	the 	will 	of 	the
contractor.
Under 	these 	circumstances, 	where 	the 	employer 	simply
replaces 	its 	employees 	with 	those 	of 	a 	contractor 	to 	perform 	the
same 	services 	under 	similar 	circumstances, 	there 	is 	no 	need 	to
apply 	any 	further 	test 	about 	labor 	costs 	in 	order 	to 	determine
whether 	the 	decision 	is 	subject 	to 	the 	statutory 	duty 	to 	bargain.
39

The 	Supreme 	Court, 	the 	NLRB, 	and 	PERB 	have 	all 	concluded 	that 	it
is.
Even 	though 	it 	is 	unnecessary 	in 	order 	to 	find 	a 	violation
in 	this 	case, 	I 	note 	that 	the 	record 	also 	clearly 	supports 	a
finding 	that 	the 	District 	was 	motivated 	substantially by
potential 	savings 	in 	labor 	costs. 	When 	contracting 	out 	was 	first
raised 	in 	1994-95, 	the 	motivation was 	cost. 	Ms. 	Maldonado's
November 	1995 	letter 	made 	clear 	references 	to 	the 	District's
motivation 	of 	efficiency and 	cost 	savings. 	The 	school 	board
minutes 	even 	reflect 	that 	the 	board 	"ruled 	out 	contract 	bussing
until 	a 	financial 	crisis 	occurred 	in 	the 	future" 	and 	states 	that
the 	District 	and 	CSEA would 	continue 	to 	work 	on 	cost 	savings.
The 	CSEA 	letter 	in 	response 	to 	the 	District's 	decision 	also 	spoke
about 	the 	mandate 	to 	"control 	costs."
When 	the 	District 	again 	considered 	contracting 	out 	the 	work
in 	1999, 	much 	of 	the 	key 	communication on 	the 	issue 	made 	clear
references 	to 	controlling 	costs. 	For 	example, 	the 	District 	memo
which 	initiated 	the 	RFP 	stated:
In 	order 	to 	provide 	the 	information 	requested
by 	the 	Board 	of 	Education, 	it 	would 	be
necessary 	to 	send 	the 	request 	for 	proposal
for 	transportation 	services 	to 	determine 	if
any 	savings 	can be 	achieved. 	[Emphasis
added.]
The 	board minutes 	reflecting 	the 	vote 	to 	authorize 	the 	RFP
state:
A motion 	was 	passed 	to 	authorize 	the 	staff 	to
prepare 	an 	RFP 	for 	transportation 	services 	at
a 	reduced 	cost. 	(Harvey /Howell) 	[Emphasis
added.]
40

The
	supporting
	documentation
	provided
	by
	the
	administration 	to
the
	Board
	of 	Education
	the 	night
	they 	voted
	to 	contract
	out
	the
work
	clearly
	contemplated
	a
	savings 	of
	$634,000 	and
	recommended
that
	a
	portion
	of 	the
	cost
	savings
	be
	reserved
	to
	buy
	new
	school
buses
	which 	would 	be
	operated
	by
	the
	contractor's
	employees.
The
	Board
	of 	Education's
	motion
	to 	lay 	off
	all
	the
transportation
	employees
	clearly 	states
	its
	motivation
	to:
.
	increase 	available
	funds
	where
necessary 	for 	the
	purchase 	of 	school 	buses;
and 	minimize
	transportation
	overruns
	into
	the
general
	fund.
The
	board's
	motion
	stated
	unequivocally
	that
	one 	method
	of
maximizing
	resources
	and
	increasing 	available
	funds
	was:
.
	the 	contracting
	of
	transportationservices
	with
	private
	carriers
Before
	its
	vote, 	the
	board
	had
	a
	discussion 	of 	the
	$600,000
potential
	savings.
	District
	administrators 	also
	acknowledged
that
	the
	District
	had
	failed
	to
	budget
	money
	for
	buses
	and
	that
savings
	were 	needed
	for 	the 	purchase 	of 	those 	buses.
The
	District
	argues
	that
	cost 	savings
	was
	not
	its
	motivation
and
	that
	CSEA
	understood
	that
	and
	also 	believed 	there
	would 	be
	no
cost 	savings.
	The
	District
	claims
	that:
CSEA
	has 	always
	taken 	the 	position 	that 	there
will
	be 	no
	cost 	savings
	at 	all
	from
subcontracting 	transportation.
The
	District 	also 	refers 	to 	the 	survey 	of 	transportation
employees 	conducted 	by
	CSEA,
	and 	claims
	that:
Not 	even
	transportation
	employees
	believe 	the
school
	district
	RFP
	decision 	turned 	upon
	or
was
	solely motivated 	by 	labor 	costs.
41

Of
	course,
	CSEA's
	argument
	that
	the
	District
	would
	not 	save
money
	is
	a
	natural
	and
	logical
	response
	to
	a
	District
	motivated
by
	exactly
	that.
	If
	CSEA
	had
	not
	believed 	the
	District
	was
motivated
	by
	savings
	in
	labor 	costs,
	it
	is
	unlikely
	it
	would 	have
spent
	so
	much
	energy
	trying
	to
	convince
	the
	District
	that
potential
	savings
	were
	illusory.
10
Mr.
	Howell's 	claim
	that
	cost
	savings
	had
	absolutely
	nothing
to
	do
	with
	his
	decision
	is
	unpersuasive
	in
	light
	of
	all
	the
evidence
	to 	the 	contrary.
	His
	credibility 	is
	compromised
	by
	the
fact 	that
	he
	was
	one
	of 	the
	sponsors 	of 	the
	motion
	authorizing
	an
RFP
	"for
	transportation 	services 	at
	a
	reduced
	cost."
	Even
	taking
Mr.
	Howell's 	testimony
	that
	he
	was
	not
	personally
	motivated
	by
cost
	savings
	at
	face 	value,
	I
	cannot
	impute
	that
	same
	motivation
to 	the
	board 	as
	a
	whole,
	in
	light
	of
	all
	the
	evidence
	from
	the
District
	itself
	that 	costs
	were
	a
	principal
	motivating
	factor.
The
	argument
	that
	the
	District's
	decision 	to 	subcontract
transportation 	services 	did 	not
	turn
	upon
	labor 	costs
	is
	simply
not 	supported
	by
	the 	record
	in 	this
	case.
	The
	District's
interest 	in
	reducing 	labor 	costs
	by
	contracting
	out
	services
	is
evident 	throughout
	its
	unilateral
	process.
Clearly, 	the
	District
	was
	also 	frustrated
	with 	personnel
problems 	and
	inefficiency within 	the 	transportation
	department.
No
	doubt
	these 	frustrations 	contributed 	to 	the
	District's
10As
	stated 	earlier,
	the 	survey 	of 	transportation
	employees
has
	little
	evidentiary value.
	However, 	even 	though 	the 	employees
may
	not 	have 	believed
	what
	the 	District
	was
	telling
	them,
	the
survey 	clearly 	reflects 	that 	the 	District
	was
	telling
	employees
they 	were
	cutting 	jobs 	to 	save 	money
	to 	buy 	buses.
42

willingness 	to 	replace 	the 	entire 	department 	with 	a 	contractor.
However, 	frustration 	about 	personnel 	issues 	and 	inefficiency 	do
not 	establish 	an 	employer's 	right 	to 	unilaterally 	replace
employees 	with 	those 	of 	a 	contractor. 	Employers 	have 	unfettered
decision-making 	rights 	over 	entrepreneurial 	and 	policy matters
because 	unions 	lack 	the 	ability 	to 	impact 	entrepreneurial 	issues.
Under 	the 	cases 	discussed 	above, 	entrepreneurial 	issues 	are
therefore 	not 	amenable 	to 	resolution 	through 	the 	collective
bargaining 	process. 	Personnel 	problems, 	however, 	such 	as
absenteeism, 	low 	efficiency 	and 	high 	turnover 	are 	among 	the
issues 	that 	are 	most 	suitable 	for 	negotiations 	between 	an
employer 	and 	a 	union. 	This 	was 	demonstrated 	in 	1994-95 	when 	CSEA
had 	more 	input 	into 	the 	process 	and 	impact 	over 	the 	results 	at
the 	time.
The 	District 	now 	clearly 	believes 	that 	its 	efforts 	to
resolve 	these 	problems 	collaboratively with 	CSEA 	have 	failed. 	As
Mr. 	Keiner 	stated 	in 	his 	May 	16 	letter, 	the 	District 	believed 	it
had 	exhausted 	all 	opportunities 	for 	meaningful 	restructuring
through 	the 	advisory 	committee 	process. 	The 	District 	may, 	in
fact, 	be 	entirely 	correct. 	It 	may 	not 	have 	been 	able 	to 	gain 	any
concessions 	improving 	the 	underlying 	problem. 	The 	bargaining
obligation, 	however, 	is 	not 	eliminated 	by 	speculation 	about 	the
failure 	of 	future 	negotiations. 	A union 	need 	not 	demonstrate
that 	it 	is 	able 	to 	solve 	every problem 	raised 	by 	the 	employer
before 	it 	has 	the 	opportunity 	to 	negotiate. 	As 	the 	Supreme 	Court
stated 	in 	Fibreboard:
43

. 	although 	it 	is 	not 	possible 	to 	say
whether 	a 	satisfactory 	solution 	could 	be
reached, 	national 	labor 	policy 	is 	founded
upon 	the 	congressional 	determination 	that 	the
chances 	are 	good 	enough 	to 	warrant 	subjecting
such 	issues 	to 	the 	process 	of 	collective
negotiation.
In 	this 	regard, 	it 	is 	very 	difficult 	to 	predict 	what
concessions 	might 	have 	been 	generated 	by 	the 	very 	realistic
potential 	that 	employees 	might 	lose 	their 	livelihood, 	including
health 	benefits 	and 	pension 	rights. 	Here, 	the 	issue 	of 	wages 	and
fringe 	benefits 	were 	obvious 	places 	to 	search 	for 	cost 	savings.
Similarly, 	absenteeism 	is 	another 	area 	where 	CSEA may 	have 	been
able 	to 	influence 	creative 	solutions.
No 	doubt, 	the 	District 	was 	also 	frustrated 	by 	its 	own
managerial 	failures 	in 	the 	transportation 	department. 	High
managerial 	turnover 	and 	ineffective 	supervision 	was 	crippling 	the
department. 	The 	District 	was 	forthright 	in 	its 	assessment 	that
it 	did 	not 	know 	how 	to 	run 	an 	efficient 	transportation
department. 	To 	the 	extent 	that 	it 	was 	seeking 	to 	remedy 	only 	its
managerial 	failure, 	it 	was 	free 	to 	act, 	even 	if 	that 	meant
contracting 	out 	the 	management 	structure 	of 	the 	transportation
system. 	The 	District 	actions 	went 	beyond management, 	however,
and 	started 	impacting 	bargaining 	t 	employees, 	it 	should 	have
negotiated 	its 	decision 	and 	the 	effects 	of 	its 	decision 	before
proceeding.
The 	District 	argues 	that 	its 	subcontracting 	decision was 	not
amenable 	to 	collective 	barga 	because 	CSEA was 	unalterably
opposed 	to 	contracting 	out 	any 	work. 	Therefore, 	according 	to 	the
44

District, 	"what 	CSEA wants 	to 	do 	is 	create 	alternatives 	to
subcontracting, 	thereby 	blocking 	it." 	It 	is 	very 	important 	to
note 	that 	if 	negotiations 	had 	not 	given 	the 	District 	what 	it
believed 	it 	needed, 	it 	was 	still 	free 	to 	contract 	out 	the 	work 	at
the 	completion 	of 	the 	impasse 	procedures. 	The 	law 	does 	not
mandate 	success, 	but 	only 	requires 	a 	"good 	faith" 	effort 	by 	the
parties 	to 	reach 	agreement. 	A willingness 	to 	negotiate 	will, 	by
itself, 	never 	guarantee 	success. 	A refusal 	to 	negotiate,
however, 	will 	almost 	always 	guarantee 	failure, 	and 	circumvent
what 	legally 	and 	rightfully 	should be 	a 	mutual 	effort 	to 	find
solutions 	to 	mutual 	problems.
The 	District 	believes 	that 	the 	decision 	to 	contract 	out 	work
is 	not 	amenable 	to 	collective 	bargaining 	because 	it 	could 	not 	be
accomplished 	within 	practical 	time 	lines. 	The 	District 	argues:
As 	the 	record 	established, 	transportation
RFPs 	typically must 	be 	responded 	to 	within 	30
days, 	and 	the 	School 	District 	then 	has 	a
window 	period 	to 	accept 	a 	RFP 	for 	only
approximately 	30 	to 	60 	days. 	This 	legal
timeline 	does 	not 	fit 	within 	the 	practical
framework 	of 	collective 	bargaining, 	and 	CSEA
never 	argues 	in 	its 	brief 	that 	it 	does.
Maldonado 	herself 	admitted 	that 	EERA 	impasse
and 	factfinding 	procedures 	take 	approximately
6 	months 	to 	one 	year 	to 	complete. 	It 	is
impossible 	as 	a 	practical 	matter 	for 	any
School 	District 	to 	issue 	a 	RFP 	for
transportation 	services 	and 	complete
negotiations, 	mediation, 	and 	factfinding
within 	30 	to 	60 	days 	after 	the 	bids 	are
closed 	and 	potential 	bidders 	become 	known.
A compelling 	operational 	necessity 	can 	sometimes 	justify an
employer's 	unilateral 	action prior 	to 	completion 	of 	bargaining.
In 	San 	Francisco 	Community 	College 	District 	(1979) 	PERB 	Decision
45

No. 	105, 	the 	Board 	first 	dealt 	with 	this 	type 	of 	defense
regarding 	the 	district's 	unilateral 	change 	in 	response 	to
Proposition 	13 	tax 	cuts. 	The 	Board 	held:
Even when 	a 	District 	is 	in 	fact 	confronted 	by
an 	economic 	reversal 	of 	unknown 	proportions,
it 	may 	not 	take 	unilateral 	action 	on 	matters
within 	the 	scope 	of 	representation, 	but 	must
bring 	its 	concerns 	about 	these 	matters 	to 	the
negotiating 	table.
Under 	Calexico 	Unified 	School 	District 	(1983) 	PERB 	Decision
No. 	357, 	an 	employer 	adopting 	an 	operational 	necessity 	defense
must 	show 	"an 	actual 	financial 	emergency which 	leaves 	no 	real
alternative 	to 	the 	action 	taken 	and 	allows 	no 	time 	for 	meaningful
negotiations 	before 	taking 	action." 	(Oakland 	Unified 	School
District 	(1994) 	PERB 	Decision No. 	1045.)
In 	Compton 	Community 	College 	District 	(1989) 	PERB 	Decision
No. 	720, 	PERB 	held 	that 	severe 	financial 	difficulties 	of 	the
district 	did 	not 	prevent 	the 	possibility 	of 	formulation 	of 	a
budget 	without 	unilateral 	cuts, 	therefore, 	the 	district 	had 	not
established 	a 	necessity 	defense. 	In 	Regents 	of 	the 	University 	of
California 	(1998) 	PERB 	Decision No. 	1255-H, 	the 	Board 	adopted 	a
decision 	that 	a 	devastating 	earthquake 	in West 	Los 	Angeles 	did
not 	create 	an 	emergency 	sufficient 	to 	justify bypassing
bargaining 	obligations.
These 	cases 	establish 	that 	an 	employer 	must 	demonstrate 	that
the 	necessity 	is 	the 	unavoidable 	result 	of 	a 	sudden 	change 	in
circumstances 	beyond 	the 	employer's 	control 	in 	order 	to 	justify
unilateral 	action. 	The 	timing 	of 	the 	emergency must 	preclude 	the
46

opportunity 	for 	negotiation, 	and 	there 	must 	be 	no 	alternative
course 	of 	action 	available 	to 	the 	employer.
Lucia 	Mar 	meets 	none 	of 	these 	standards. 	The 	District's
action was 	not 	the 	unavoidable 	result 	of 	sudden 	changes 	in
circumstances. 	This 	issue 	had 	been 	brewing 	within 	the 	District
for 	at 	least 	six 	years. 	Any 	difficult 	time 	deadlines 	were
created 	by 	the 	District 	itself. 	It 	chose 	when 	to 	issue 	the 	RFP,
to 	include 	a 	30-day 	response 	time, 	and 	dictated 	the 	deadline 	for
making 	a 	final 	decision. 	Even 	assuming, 	arguendo, 	that 	the
situation 	was 	created 	by 	a 	sudden 	change 	and 	that 	the 	deadlines
were 	imposed 	externally 	(which 	is 	not 	true) 	the 	timing 	would
still 	have 	allowed 	30 	to 	90 	days 	for 	negotiations. 	Clearly,
there 	were 	ample 	opportunities 	for 	notice 	and 	negotiations 	prior
to 	any 	unilateral 	action 	by 	the 	District, 	and 	there 	were 	other
alternatives 	available 	to 	the 	District 	besides 	the 	unilateral
action 	that 	it 	chose.
Waiver 	Defenses
The 	District 	argues 	that 	Article 	II, 	section 	3, 	District
Rights, 	in 	the 	parties 	collective 	bargaining 	agreement 	sets 	forth
a 	complete, 	albeit 	general, 	management 	rights 	clause. 	Within
that 	article, 	according 	to 	the 	District, 	it 	has 	retained 	all
rights 	to 	manage 	the 	work 	place, 	except 	as 	limited 	by 	the 	express
terms 	of 	the 	collective 	bargaining 	agreement, 	so 	long 	as 	those
provisions 	conform 	to 	the 	law. 	Because 	there 	is 	nothing 	in 	the
agreement 	that 	restricts 	the 	right 	of 	the 	District 	to 	contract
work 	to 	outside 	vendors 	and 	because 	Education 	Code 	section 	39800
47

et
	seq. 	allows
	districts
	to 	contract
	out
	work,
	the
	District
believes
	that
	CSEA
	has
	waived
	bargaining
	rights
	over
	the
	decision
to 	contract
	out
	transportation 	services.
The
	Board
	has
	dealt
	with
	management
	rights
	clauses
	on
	many
occasions.
	A
union
	may
	waive
	its
	right
	to 	negotiate
	a
	matter
within 	the
	scope
	of
	representation
	by
	consciously
	yielding
	that
right
	in
	a
	management
	rights
	clause.
	(Mammoth
	Unified
	School
District
	(1983)
	PERB
	Decision
	No.
	371)
	A
waiver 	of
	a
	right
	to
bargain
	will
	not,
	however, 	be
	lightly
	inferred.
	Absent
	clear
	and
unequivocal 	language 	waiving
	a
	bargaining
	right,
	PERB
	will
	not
infer 	that
	a
	party
	has
	waived
	a
	statutory 	right.
	(Amador
	Valley
Joint
	Union 	High
	School
	District
	(1978)
	PERB
	Decision
	No.
	74;
San 	Mateo
	City
	School
	District
	(1980)
	PERB
	Decision
	No.
	129).
The
	evidence
	must
	demonstrate
	the
	intentional
	relinquishment 	of
	a
statutory 	right.
	(San
	Francisco
	Community
	College
	District,
supra,
	PERB
	Decision
	No.
	105).
	The
	waiver
	must
	specifically
reserve 	for
	management
	the
	right 	to
	take
	certain 	action 	or
implement
	unilateral
	changes
	regarding 	issues 	in 	dispute.
(Barstow
	Unified
	School
	District
	(1997)
	PERB
	Decision
	No.
	1138(b)
(Barstow)
. )
In 	Barstow,
	the
	parties
	included 	language
	in
	the
	management
rights 	clause 	that 	specifically
	reserved 	to 	the
	district
	the
"exclusive 	right" 	to 	"contract 	out
	work, 	which
	may
	be
	lawfully
contracted 	for.
	II
	The 	Board
	held 	that
	language
	clearly
	and
unmistakably 	waived 	the 	union's 	right 	to 	negotiate 	over 	any
district 	decision 	to 	contract 	out 	transportation 	services.
48

In 	Lucia 	Mar, 	however, 	there 	was 	no 	evidence 	that 	the
parties 	negotiated 	regarding 	the 	District's 	right 	to 	contract 	out
work. 	There 	is 	no 	evidence 	that 	CSEA 	explored 	the 	issue 	and 	then
consciously yielded 	its 	right 	to 	negotiate 	over 	the 	District's
decision 	to 	contract 	out 	work. 	There 	was 	no 	clear 	and
unmistakable 	waiver 	of 	that 	right 	included 	in 	the 	management
rights 	clause 	of 	the 	collective 	bargaining 	agreement. 	Therefore,
the 	management 	rights 	clause 	of 	the 	agreement 	does 	not 	provide
the 	District 	with 	a 	defense.
It 	is 	also 	possible 	for 	a 	union 	to 	waive 	its 	right 	through
inaction 	or 	acquiescence. 	Here, 	the 	District 	argues 	that 	CSEA
should 	be 	estopped 	from 	asserting 	any 	bargaining 	rights 	because
it 	fully 	participated 	in 	the 	TAC 	in 	1994 	95 	and 	the 	Ad 	Hoc
Committee 	in 	1999-2000 	and 	because 	it 	failed 	to 	challenge 	the
District's 	bargaining 	position. 	In 	1994, 	according 	to 	the
District:
CSEA 	chose 	to 	proceed 	solely by working 	with
the 	school 	district's 	governing 	board, 	and
repeatedly 	thanked 	the 	governing 	board 	for
the 	RFP 	consultative 	processes, 	instead 	of
simultaneously pursuing 	unfair 	labor 	practice
charges 	to 	enforce 	its 	multiple 	demands 	to
bargain.
This 	defense 	is 	based 	on 	incorrect 	assertions 	of 	fact 	and
law 	and 	has 	no 	merit. 	First, 	the 	record 	does 	not 	reflect 	that
CSEA 	chose 	to 	proceed 	solely by working 	through 	the 	RFP
consultative 	process. 	It 	simultaneously 	and 	repeatedly 	demanded
to 	bargain 	the 	decision. 	On 	July 	22, 	1999, 	Ms. 	Maldonado 	wrote
to 	Mr. 	Howell 	stating 	that 	if 	the 	District 	was 	going 	to 	contract
49

out 	work, 	CSEA 	expected, 	"that 	the 	District 	will 	provide 	the
union 	with 	proper 	notice 	and 	a 	full 	opportunity 	to 	bargain 	the
decision 	and 	the 	effects 	of 	this 	matter.'' 	A short 	time
thereafter, 	Ms. 	Maldonado 	again 	put 	the 	District 	on 	notice 	when
she 	raised 	a 	demand 	to 	bargain verbally 	with Mr. 	Howell.
On April 	26, 	2000, 	Ms. 	Maldonado 	gave 	the 	District 	a 	third
demand 	to 	bargain. 	It 	stated 	in 	part:
This 	demand 	letter 	is 	intended 	to 	ensure 	that
there 	is 	no 	misunderstanding 	between 	the
parties. 	The 	CSEA 	expects 	that 	the 	District
will 	provide 	the 	union 	with 	proper 	notice 	and
a 	full 	opportunity 	to 	bargain 	the 	decision
and 	effects 	of 	this 	matter 	prior 	to 	any
decision 	by 	the 	Board with 	respect 	to
subcontracting 	bargaining 	unit 	work.
On May 	15, 	2000, 	Ms. 	Maldonado 	made 	another 	verbal 	demand 	to
bargain when 	she 	contacted Ms. 	Godfrey 	about 	taking 	the
contracting 	issue 	off 	the 	board's 	agenda 	as 	an 	action 	item. 	When
that 	request 	was 	denied, 	Ms. 	Maldonado 	wrote 	a 	fifth 	demand 	to
bargain 	which 	she 	delivered 	to 	board 	President 	Soto 	prior 	to 	the
board meeting. 	In 	it, 	CSEA 	demanded:
The 	school 	board 	cease 	and 	desist 	any
decision 	to 	contract 	out 	bargaining 	unit
[work] 	until 	it 	meets 	its 	legal 	obligation 	to
meet 	and 	negotiate 	with 	CSEA.
Ms. 	Maldonado 	also 	put 	the 	District 	on 	notice 	that, 	"failing 	to
do 	so 	will 	compel 	the 	union 	to 	immediately 	file 	a 	evance 	and
the 	unfair 	labor 	practices." 	Finally, 	at 	the 	board 	meeting, 	CSEA
made 	a 	sixth 	demand 	to 	bargain prior 	to 	the 	board vote. 	This
record 	hardly 	reflects 	a 	union proceeding 	solely 	through 	the 	RFP
consultative 	process.
50

The 	fact 	that 	CSEA 	also 	took 	every 	opportunity 	to
participate 	in 	the 	"consultative 	process" 	is 	no 	basis 	for 	a
waiver 	argument. 	The 	law 	does 	not 	require 	a 	union 	to 	abandon 	all
efforts 	of 	persuasion 	or 	possible 	settlement 	in 	favor 	of 	a 	single
unfair 	practice 	path. 	To 	force 	a 	union 	to 	choose 	between 	an
unfair 	practice 	proceeding, 	which 	could 	take 	years 	to 	resolve, 	or
continuing 	settlement 	efforts 	by whatever 	other 	possibilities
existed would 	be 	completely 	contrary 	to 	the 	purposes 	of 	the 	Act.
If 	CSEA's 	goal 	was 	to 	stop 	the 	contracting 	out, 	fully
participating 	in 	the 	RFP 	consultative 	process 	was 	at 	least 	as
likely 	to 	produce 	results 	as 	filing 	an 	unfair 	practice 	charge,
which 	could 	well 	have 	been 	dismissed 	as 	premature. 	As 	this 	case
well 	demonstrates, 	an 	unfair 	practice 	charge 	can 	produce 	years 	of
costly 	litigation 	before 	it 	has 	any 	impact. 	Furthermore, 	CSEA's
informal 	efforts 	did 	work 	in 	1994-95.
The 	fact 	that 	CSEA 	"repeatedly thanked 	the 	governing 	board
for 	the 	RFP 	consultative 	process" 	is 	also 	no 	evidence 	of 	any
intent 	to 	waive 	its 	negotiating 	rights. 	Attempts 	to 	persuade
through 	cordial 	collaborative 	efforts, 	rather 	than 	hostile
threats, 	should 	be 	encouraged 	by 	the 	law.
Thus, 	CSEA has 	not 	waived 	its 	right 	to 	negotiate 	the
District's 	decision 	to 	contract 	out 	transportation 	services
either 	through 	inaction 	or 	the 	management 	rights 	clause 	of 	the
collective 	bargaining 	agreement.
51

Preemption by 	the 	Education 	Code
The 	District 	argues 	that 	California 	Education 	Code 	section
39800 	et 	seq. 	supersedes 	any 	bargaining 	obligation 	of 	the
District. 	EERA 	section 	3540 	provides 	in 	relevant 	part:
This 	chapter 	shall 	not 	supersede 	other
provisions 	of 	the 	Education 	Code 	and 	the
rules 	and 	regulations 	of 	public 	school
employers 	which 	establish 	and 	regulate 	tenure
or 	a 	merit 	or 	civil 	service 	system or 	which
provide 	for 	other 	methods 	of 	administering
employer-employee 	relations, 	so 	long 	as 	the
rules 	and 	regulations 	or 	other 	methods 	of 	the
public 	school 	employer 	do 	not 	conflict 	with
lawful 	collective 	agreement.
The 	test 	for 	resolving 	conflicts 	between 	the 	EERA 	and 	the
Education 	Code 	is 	found 	in 	San Mateo:
"Unless 	the 	statutory 	language 	[of 	the
Education 	Code] 	clearly evidences 	an 	intent
to 	set 	an 	inflexible 	standard 	or 	insure
immutable 	provisions, 	the 	negotiability 	of
a 	proposal 	should 	not 	be 	precluded."
(San Mateo 	at 	pp. 	864 	865; 	see 	also
Healdsburg 	at 	pp. 	6-7.)
Thus, 	the 	Education 	Code 	will 	preempt 	collective 	bargaining
only 	if 	mandatory 	provisions 	of 	the 	Code 	would 	be 	"replaced, 	set
aside 	or 	annulled 	by 	the 	agreement." 	(San 	Mateo 	at 	pp. 	864-866.)
In 	Mt. 	Diablo 	Unified 	School 	District 	(1983) 	PERB 	Decision
No. 	373, 	the 	Board 	reviewed 	a 	long 	list 	of 	precedential 	cases,
then 	stated:
. 	the 	Board 	has 	previously held 	that 	an
Education 	Code 	provision 	will 	not 	limit 	the
scope 	of 	representation 	so 	long 	as 	it 	merely
"authorizes 	a 	certain policy but 	falls 	short
of 	[creating 	an] 	absolute 	obligation."
(See 	also 	Holtville 	Unified 	School 	District 	(1982) 	PERB 	Decision
No. 	250; 	San 	Bernardino 	City Unified 	School 	District 	(1982) 	PERB
52

Decision No. 	255; 	Mt. 	San Antonio 	Community 	College 	District
(1983) 	PERB 	Decision No. 	297; 	Brawley Union 	High 	School 	District
(1982) 	PERB 	Decision No. 	266; 	and 	Calexico 	Unified 	School
District 	(1982) 	PERE 	Decision No. 	265, 	where 	the 	Board 	declined
to 	find 	issues 	pre-empted 	by permissive 	or 	discretionary
Education 	Code 	provisions 	which gave 	districts 	discretion 	and
flexibility 	to 	act.)
In 	Fremont 	Unified 	School 	District 	(1997) 	PERE 	Decision
No. 	1240, 	in 	adopting 	the 	ALJ 	decision, 	the 	Board 	stated:
In 	conclusion, 	it 	bears 	repeating 	that
mandatory 	statutory 	language 	will 	remove 	a
subject 	from 	EERA's 	bargaining 	obligation,
while 	permissive 	or 	discretionary 	language
will 	have 	the 	opposite 	result, 	provided 	the
subject 	is 	otherwise 	negotiable.
Education 	Code 	section 	39800 	et 	seq. 	permits 	but 	does 	not
mandate 	a 	district 	to 	contract 	out 	transportation 	services.
Rather, 	as 	noted 	below, 	it 	permits 	a 	district 	latitude 	and
discretion 	in 	designing 	its 	transportation 	program:
§ 	39800. 	Power 	of 	governing 	board 	to 	provide
transportation 	of 	pupils
(a) 	The 	governing 	board 	of 	any 	school
district 	may 	provide 	for 	the 	transportation
of 	pupils 	to 	and 	from 	school 	whenever 	in 	the
judgment 	of 	the 	board 	the 	transportation 	is
advisable 	and 	good 	reasons 	exist 	therefor.
The 	governing 	board 	may purchase 	or 	rent 	and
provide 	for 	the 	upkeep, 	care 	and 	operation 	of
vehicles, 	or 	may 	contract 	and 	pay 	for 	the
transportation 	of 	pupils 	to 	and 	from 	school
by 	common 	carrier 	or 	municipally 	owned
transit 	system, 	or may 	contract 	with 	and 	pay
responsible 	private 	parties 	for 	the
transportation. 	These 	contracts 	may 	be 	made
with 	the 	parent 	or 	guardian 	of 	the 	pupil
being 	transported. 	A governing 	board 	may
allow 	the 	transportation 	of 	preschool 	or
53

nursery 	school 	pupils 	in 	schoolbuses 	owned 	or
operated 	by 	the 	district. 	A state
reimbursement 	may 	not 	be 	received 	by 	a
district 	for 	the 	transportation 	of 	preschool
or 	nursery 	school 	pupils.
Being 	permissive 	rather 	than 	mandatory, 	Education 	Code
section 	39800 	et 	seq. 	does 	not 	pre-empt 	the 	District's 	obligation
to 	negotiate 	over 	its 	decision 	to 	subcontract 	its 	transportation
services.
The 	District 	also 	argues 	regarding 	pre 	emption 	that 	"CSEA
was 	not 	demanding 	to 	negotiate 	just 	the 	overall 	decision 	to
subcontract, 	but 	the 	specific 	selection 	of 	a 	carrier, 	e.g., 	the
successful 	bidder 	STA." 	Therefore, 	according 	to 	the 	District,
charging 	party 	sought 	to 	intrude 	on 	the 	District's 	obligation 	to
make 	a 	decision 	based 	upon 	statutory 	criteria. 11
This 	is 	not 	a 	persuasive 	argument 	because 	prior 	to 	the
selection 	of 	STA by 	the 	District 	on May 	15, 	CSEA 	never 	mentioned
STA. 	Its 	repeated 	demands 	were 	simply 	to 	negotiate 	over 	the
District's 	decision 	to 	contract 	out 	the 	work. 	It 	was 	not 	until
the 	board 	selected 	the 	STA bid 	on May 	15 	that 	CSEA mentioned 	the
particular 	STA 	contract, 	because 	it 	believed 	the 	contract
violated 	the 	District's 	obligation 	to 	first 	negotiate 	the
decision.
In 	summary, 	when 	the 	District 	replaced 	its 	transportation
employees 	with 	those 	of 	a 	contractor, 	keeping 	the 	same 	basic
11 The 	District 	claims 	that 	it 	"is 	not 	in 	a 	position 	to 	avoid,
ignore, 	bend 	or 	modify 	the 	statutory 	restrictions." 	However, 	the
District 	never 	specified 	just 	how 	CSEA's 	demand 	to 	negotiate 	the
contracting 	decision 	would 	have 	done 	that.
54

transportation 	system 	in 	place 	and 	offering 	the 	same 	basic
transportation 	services 	to 	students 	of 	the 	District, 	it 	violated
the 	law 	by 	failing 	to 	negotiate 	over 	that 	decision. 	There 	was 	no
change 	in 	the 	scope 	and 	direction 	of 	the 	enterprise 	and 	thus
entrepreneurial 	decisions 	were 	not 	at 	stake. 	Furthermore, 	the
District 1 s 	decision 	was 	based 	upon 	potential 	savings 	in 	labor
costs 	so 	that 	it 	could 	fund 	the 	purchase 	of 	additional 	buses.
CSEA 	did 	not 	waive 	its 	right 	to 	negotiate 	the 	District 1 s 	decision
either 	by 	the 	management 	rights 	clause 	or 	by 	failing 	to 	pursue
collective 	bargaining 	rights 	while 	participating 	in 	a
consultative 	committee 	process. 	Nor 	does 	the 	Education Code
preempt 	the 	District 1 s 	bargaining 	obligation 	in 	this 	case 	because
its 	language 	is 	permissive, 	not 	mandatory. 12
CONCLUSION
The 	District 1 s 	unilateral 	action 	to 	contract 	out 	its
transportation 	services 	violated 	EERA 	section 	3543.5(c). 	This
same 	conduct 	interfered with 	CSEA 1 s 	right 	to 	represent 	employees
in 	the 	bargaining 	unit 	in 	violation 	of 	section 	3543.5(b). 	The
District 1 s 	failure 	to 	negotiate 	concurrently 	interfered with
individual 	employees 1 	rights 	to 	be 	represented 	by 	CSEA 	in
violation 	of 	section 	3543.5(a).
12 In 	correspondence 	with 	CSEA, 	and 	at 	the 	unfair 	practice
hearing, 	the 	District 	raised 	as 	a 	defense 	the 	claim 	that
throughout 	California 	CSEA 	always 	demands 	to 	bargain 	over 	the
decision 	to 	subcontract, 	but 	then 	always 	settles 	for 	negotiating
over 	the 	effects. 	Because 	the 	District 	did 	not 	brief 	this 	as 	a
separate 	defense 	I 	consider 	the 	argument 	waived. 	Furthermore,
the 	record 	does 	not 	support 	such 	a 	claim, 	and, 	that's 	not 	what
happened 	this 	time.
55

REMEDY
Section
	3541.S(c)
	empowers
	PERB
	to:
.
	issue
	a
	decision
	and
	order
	directing
	an
offending
	party 	to
	cease
	and
	desist
	from
	the
unfair 	practice
	and
	to
	take
	such
	affirmativeaction,
	including
	but 	not
	limited 	to
	the
reinstatement
	of
	employees
	with
	or
	without
back pay, 	as
	will 	effectuate
	the
	policies
	of
this
	chapter.
Here,
	the
	District
	has 	been 	found
	to
	have
	violated
	the
	EERA
when
	it
	unilaterally
	contracted
	out
	the
	District's
	transportation
services.
	The 	same
	conduct
	was
	found
	to
	interfere
	with
	CSEA's
right 	to 	represent 	bargaining
	unit
	members
	and
	constituted
interference
	with 	bargaining
	unit
	members'
	rights
	to
	be
represented
	by
	CSEA.
	It
	is,
	therefore, 	appropriate 	to 	order 	the
Dist
	ct 	to
	cease
	and
	desist
	from
	such
	activities
	in
	the
	future.
In 	cases 	of
	unilateral
	action,
	PERB
	generally 	orders
employers
	to 	restore
	the
	status
	quo
	as
	it
	existed 	prior
	to 	the
violation.
	(Santa
	Clara 	Unified
	School
	District
	(1979)
	PERB
Decision
	No.
	104.)
	By
	contracting
	out 	the
	transportation
services,
	the
	District
	has 	not 	only
	harmed
	the
	employees
	who
	were
terminated, 	but
	also
	weakened
	the
	collective 	strength 	of 	the 	unit
by
	diminishing 	the 	unit
	work. 	(Arcohe.)
	It 	is,
	therefore,
appropriate 	to 	order 	the
	District
	to 	restore,
	as 	soon 	as
practical,
	the
	District's
	transportation 	services 	bargaining 	unit
positions.
	Because
	the
	District
	has
	entered 	into
	a
	binding
contract 	with
	STA,
	it
	will 	not 	be
	ordered 	to 	restore 	the
terminated 	bargaining 	unit 	positions 	until 	the
	earliest
56

opportunity 	the 	District 	can 	lawfully 	terminate 	the 	contract 	with
STA.
It 	is 	also 	appropriate, 	however, 	that 	the 	District 	be
ordered 	to 	make 	bargaining 	unit 	employees 	whole 	for 	any 	losses
they may 	have 	suffered 	due 	to 	the 	District's 	unilateral 	action,
along 	with 	interest 	at 	the 	rate 	of 	7 	percent 	per 	annum until 	such
time 	as 	they 	are 	restored 	to 	their 	former 	positions. 	(Mt. 	San
Antonio 	Community 	College 	District 	(1988) 	PERB 	Decision No. 	691.)
It 	is 	also 	appropriate 	that 	the 	District 	be 	required 	to 	post
a 	notice 	incorporating 	the 	terms 	of 	the 	Order. 	The 	notice 	should
be 	subscribed 	by 	an 	authorized 	agent 	of 	the 	District, 	indicating
that 	it 	will 	comply with 	the 	terms 	thereof. 	The 	notice 	shall 	not
be 	reduced 	in 	size 	and 	reasonable 	effort 	will 	be 	taken 	to 	insure
that 	it 	is 	not 	altered, 	covered by 	any 	material 	or 	defaced 	and
will 	be 	replaced 	if 	necessary. 	Posting 	such 	a 	notice 	will 	inform
employees 	that 	the 	District 	has 	acted 	in 	an 	unlawful 	manner 	and
is 	being 	required 	to 	cease 	and 	desist 	from 	this 	activity 	and 	will
comply with 	the 	order. 	It 	effectuates 	the 	purposes 	of 	EERA 	that
employees 	be 	informed 	of 	the 	resolution 	of 	the 	controversy 	and
will 	announce 	the 	Dist 	ct's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(Davis 	Unified 	School 	District, 	et 	al., 	supra, 	PERB
Decision No. 	116; 	see 	Placerville 	Union 	School 	District 	(1978)
PERB 	Decision 	No. 	69.)
57

PROPOSED 	ORDER
Upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of 	law,
and 	the 	entire 	record 	in 	the 	case, 	and 	pursuant 	to 	the
Educational 	Employment 	Relations 	Act 	(Act), 	Government 	Code
section 	3541.S(c), 	it 	is 	hereby 	ordered 	that 	the 	Lucia 	Mar
Unified 	School 	District 	(District) 	and 	its 	representatives 	shall:
A. 	CEASE AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	with
the 	California 	School 	Employees 	Association 	(CSEA) 	about 	the
decision 	and 	effects 	of 	contracting 	out 	the 	District's
transportation 	services.
2. 	Denying 	CSEA 	its 	rights 	to 	represent 	bargaining
unit 	members 	in 	their 	employment 	relations 	with 	the 	District.
3. 	Denying 	bargaining 	unit 	members 	their 	right 	to 	be
represented 	by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	ACT:
1. 	Upon 	demand 	from 	CSEA, 	restore 	all 	bargaining 	unit
transportation 	services 	positions 	at 	the 	earliest 	opportunity 	it
can 	terminate 	the 	existing 	contract 	with 	the 	contractor.
2. 	Make 	all 	affected 	employees 	whole 	for 	any 	loss 	of
wages 	or 	benefits 	due 	to 	the 	District's 	violation 	of 	the 	Act,
including 	interest 	at 	7 	percent 	per 	annum.
3. 	Within 	ten 	(10) 	days 	of 	service 	of 	this 	proposed
decision, 	post 	at 	all 	work 	locations 	where 	notices 	to 	employees
customarily 	are 	placed 	copies 	of 	the 	notice 	attached 	as 	an
Appendix 	hereto. 	Such 	posting 	shall 	be 	maintained 	for 	a 	period 	of
58

thirty 	(30) 	consecutive 	workdays. 	Reasonable 	steps 	shall 	be
taken 	to 	insure 	that 	said 	notices 	are 	not 	reduced 	in 	size,
altered, 	defaced 	or 	covered 	by 	any 	material.
4. 	Upon 	issuance 	of 	a 	final 	decision, 	make 	written
notification 	of 	the 	action 	taken 	to 	comply 	with 	the 	order 	to 	the
San 	Francisco 	regional 	director 	of 	the 	Public 	Employment
Relations 	Board, 	in 	accord 	with 	the 	director's 	instructions.
Pursuant 	to 	California 	Code 	of 	Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision 	and 	Order 	shall 	become
final 	unless 	a 	party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	within 	20 	days 	of 	service 	of 	this 	Decision. 	The
Board's 	address 	is:
Public 	Employment 	Relations 	Board
Attention: 	Appeals 	Assistant
1031 	18th 	Street
Sacramento, 	CA 	95814 	4174
FAX: 	(916) 	327-7960
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.
(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32300.)
A document 	is 	considered 	"filed" 	when 	actually 	received
before 	the 	close 	of 	business 	(5 	p.m.) 	on 	the 	last 	day 	set 	for
filing 	or 	when 	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.
59

(Cal. 	Code 	Regs., 	tit. 	8, 	sec. 	32135(a) 	see 	also 	Cal. 	Code
Regs., 	tit. 	8, 	sec. 	32130.)
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 	California 	Code 	of 	Regulations,
title 	8, 	section 	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.)
Any 	statement 	of 	exceptions 	and 	supporting 	brief 	must 	be
served 	concurrently with 	its 	filing 	upon 	each 	party 	to 	this
proceeding. 	Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on
a 	party 	or 	filed 	with 	the 	Board 	itself. 	(See 	Cal. 	Code 	Regs.,
tit. 	8, 	secs. 	32300, 	32305, 	32140, 	and 	32135(c) .)
60
·,,,)-vvme,, 	w 	I a~.James 	W. 	Tamm
Administrative 	Law 	Judge