Barstow Unified School District (PERB 0215E)

STATE
	OF
	CALIFORNIA
DECISION
	OF 	'rHE
PUBLIC
EMPLOY.MENT
	RELATIONS
	BOARD
CALIFORNIA
	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging
	Party,
v.
BARSTOW
	UNIFIED
SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
____________________ ) 
Case
No.
	LA-CE-474
PERB
	Decision
No.
	215
June
	11,
	1982
~pearances:	
Ronald
C. 	Ruud,
	Attorney 	(Atkinson, 	Andelson,
Ruud 	&	
Rano)
	for
	Barstow
	Unified
	School
	District;
	M.
	Susan
Carter,
	Attorney
	for 	California
School
Employees
i~ssociation.
Before 	Gluck,
	Chairperson; 	Jaeger
	and 	Tovar'" 	Members.
DECISION
The
	Barstow
	Unified 	School	
District 	(District)
	excepts 	to
those
	portions
	of 	the 	attached 	hearing
	officer's
	proposed
decision 	finding
	that:
	(1)
	the
	District
	violated 	subsections
354
3.
5
(a)
, 	(b)
	and
	(c)
	of
	the Educational
Employment
	Relations
Act
	(EERA)
	by
	taking
	unilateral
	action
	with
	respect 	to 	leave
policy;
	and
	(2)
	that
	it
	violated 	subsection
	3543.S(a) 	of
	the
Act
	by
	threatening 	to
	suspend 	the 	exclusive
	representative's
organizational 	privileges.l
The
	EERA
	is 	codified 	at
	Government 	Code
	sections
	3540
	et
seq. 	All 	statutory 	references 	are 	to 	the
Government Code
unless 	otherwise 	noted.
l
Subsections 	3543.S(a),
	(b) 	and 	(c)
	state:

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 guaranteed by this chapter.
(b) Deny to employee orga nizations right s
guaranteed to them b y this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclu sive representative.
The Board has considered the entire record in this case,
including the proposed decision and the District's exceptions.
We hereby summarily affirm those portions of the hearing
officer 1 s decision excepted to by the District consistent with
the discussion below.
In affirming the hearing officer's conclusion that
Resolution No. 17 constituted an unlawful unilateral change of
leave policy, we do not, and need not, pa s s on the question of
whether the alleged sickout o f April 2, 1979 was unprotected
activity. Regardless of the unprotected character of employee
conduct, an employer may not unilaterally change matters within
the scope of representation in violation of the duty to
negotiate in good faith.2 Fresno Unified School District
2The scope of representation is set forth in
subsection 3543. 2 (a) .
2

(4/30/82) 	PERB 	Decision No. 	208; 	see 	Chula Vista 	Police
Officers' 	Association 	v. 	Cole 	(1980) 	107 	Cal.App.3d 	242 	[165
Cal.Rptr. 	598].
REMEDY
The 	hearing 	officer 	found 	that 	there 	was 	an 	established
practice 	in 	the 	District 	permitting 	it 	to 	require 	verification
of 	illness 	from 	those 	employees 	"reasonably 	suspected 	of
abusing 	their 	sick 	leave 	benefits." 	Pursuant 	to 	that 	finding,
he 	ordered 	the 	District 	to 	reimburse 	those 	employees 	denied
paid 	sick 	leave 	for 	April 	2, 	1979 	one 	day's 	back 	wages, 	subject
to 	a 	right 	to 	require 	verification 	of 	illness. 	While 	we 	agree
with 	the 	hearing 	officer 	that 	the 	District, 	consistent 	with 	its
past 	practice, 	may 	require 	verification 	of 	illness 	from
employees 	reasonably 	suspected 	of 	abusing 	their 	sick 	leave, 	we
feel 	that 	he 	has 	not 	adequately 	clarified 	those 	conditions 	in
which 	verification 	may 	be 	required.
The 	uncontroverted 	testimony 	of 	District 	Superintendent
Raymond 	Smith 	indicated 	that, 	in 	past 	instances 	in 	which
employees 	had 	been 	reasonably 	suspected 	of 	abusing 	their 	sick
leave, 	the 	District 	had 	required 	them 	to 	turn 	in 	a 	verification
of 	illness. 	However, 	his 	testimony 	also 	clearly 	establishes
that 	the 	verification 	requirements 	contained 	in 	Resolution 	No.
17 	exceeded 	those 	required 	by 	the 	District 	as 	a 	matter 	of 	past
practice. 	Therefore, 	although 	we 	find 	that 	the 	District 	may
require 	verification 	of 	illness 	from 	those 	employees 	it
3

reasonably 	suspected
	of 	abusing
	their
	sick
	leave
	on
	April
	2;
1979,
	it
	may
	not
	exceed
	the
	type
	of
	verification
	required 	of
employees
	in
	past
	circumstances
	where
	suspected
	abuse 	of
	sick
leave 	occurred. 	Consistent
	with
	that
	past
	practice,
	employees
reasonably 	suspected
	of 	abusing
	their
	sick leave
	who
	cannot
produce
	the
	required
	verification
	may 	be	
denied
	paid
	sick
	leave
for
	April 	2,
	1979.
ORDER
Based 	upon
	the 	foregoing
	facts,
	conclusions 	of
	law 	and
	the
entire
	record
	in
	this
	case,
	it
	is
	found
	that
	the
	Barstow
Unified
	School
District
	has
	violated 	subsections 	3543.5
(a),	
(b)
and	
(c)	
of
	the
	Educational
	Employment
	Relations 	Act.
	It
	is
hereby
	ORDERED
	that 	the
District,
	its
	governing 	board
	and
representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
1. 	Failing	
and	
refusing 	to
	meet
	and
	negotiate 	in
	good
faith
	with 	the	
exclusive 	representative
	by
	taking
	unilateral
action
	on
	matters 	within
	the 	scope
	of
	representation,
	as
defined
	by
	section
	3543.2,
	and
	specifically
	with
	respect 	to 	the
alteration
	of
	leave
	policies.
2. 	Denying
	CSEA
	the
	right
	to 	represent 	unit
	members 	by
unilaterally 	altering
	leave
	policies
	without meeting
	and
negotiating 	with 	the 	Association.
3.
	Interfering
	with 	employees 	because 	of
	their 	exercise
of 	the 	right 	to 	select
	an
	exclusive 	representative 	to
	meet 	and
4

negotiate
	with 	the
	employer
	on
	their
	behalf	
by	
unilaterally
changing
	matters
	within 	the
	scope 	of
	representation
	without
meeting
	and
	negotiating
	with 	the
	exclusive
	representative.
4.
	Interfering
	with
	employees
	because 	of
	the
	exercise
	of
their
	right 	to
	participate
	in
	the
	activities
	of
	an
	employee
organization	
by	
threatening 	to
	suspend
	the
	employee
organization's 	rights
	guaranteed
	to
	them 	by
	the
	EERA.
B.
	TAKE 	THE 	FOLLOWING
	AFFIRMATIVE AC'rIONS 	DESIGNED
TO
EFFECTUATE 	THE
	PURPOSES 	OF
	THE
	EERA:
1.
	Rescind
	Resolution
No.
	17,
	adopted
	April
	1,
	1979,
	and
reinstate
	the 	leave
	policy
	in 	effect
	prior
	to
	that
	date 	unless
a 	new
	policy
	has 	been
	lawfully
	adopted 	through
	negotiations.
2.
	Make
	the
	affected
	employees 	whole	
by	
paying
	them
	the
sick leave
	they
	would
	have
	received, 	plus
	interest
	at
	the
	rate
of 	seven
	(7)
	percent
	per
	annum, 	had
	the
	unilateral
	changes 	not
been
made. 	Payment 	need
	not
	be made
	to
	those
	employees
	who
fail
	to 	provide
	verification
	requested 	pursuant 	to
	the
District's
	reasonable
	belief 	that
	such 	employees
	had
	abused
their
	sick 	leave
	benefits.
	The
	verification
	required
	may
	not
exceed 	the 	type 	requested 	of	
employees
	in 	past 	circumstances
whose
	abuse 	of 	sick 	leave
	was
	suspected.
3. 	Within 	seven 	(7) 	workdays	
of 	this 	decision, 	post 	at 	all
school
	sites	
and
	all	
other
	work
	locations
	where
	notices 	to
employees
	customarily 	are 	placed, 	copies 	of 	the 	notice 	attached
as 	Appendix
	1.	
Such	
posting 	shall	
be	
maintained 	for
	a
	period
of 	thirty
	(30)
	consecutive 	workdays. 	Reasonable 	steps 	shall
5

be
	taken 	to 	ensure
	that
	said 	notices
	are
	not
	reduced
	in
	size,
altered,
	defaced
	or 	covered
	by
	any
	other
	material.
4.
	At
	the
	end
	of 	the
	posting
	period, 	notify
	the
Los
	Angeles
	regional
	director
	of 	the
	Public
Employment
Relations
	Board,
	in 	writing,
	of
	the
	action
	taken 	to
	comply
	with
this
	order.
It
	is
	further
	ORDERED
	that
	the
	alleged
	violations
	of
subsection
	3543.S(a)
	and
	(b),
	which
	refer
	to
	the
	payment
	of
increased
	wages
	to
	substitutes
	and
	substitute
	bus
	drivers,
	are
hereby
	DISMISSED.
By:Vjohn
W.
	Jaeger',
'%ember....,
Irene
	Tovar,
	Member
6

Appendix 1
NOTICE 	TO CLASSIFIED E.£11PLOYEES
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-474 	in
which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	Barstow 	Unified 	School 	District 	has 	violated
subsection 	3543.S(c) 	of 	the Educational Employment Relations
Act 	(EE.RA) 	by 	refusing 	or 	failing 	to 	meet 	and 	negotiate 	with
the California School Employees Association 	by 	taking
unilateral 	action 	in April 	1979 	with 	respect 	to 	the 	alteration
of 	leave 	policies.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	violated
subsection 	3543.S(b) 	of 	the EERA 	since 	it 	interfered 	with 	the
right 	of 	CSEA 	to 	represent 	its 	members.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	interfered
with 	negotiating 	unit 	members' 	right 	to 	be 	represented 	by 	their
exclusive 	representative, 	thus 	constituting 	a 	violation 	of
subsection 	3543.S(a) 	of 	the EER~.
It 	has 	also 	been 	found 	that 	the District, 	by 	threatening 	to
suspend 	an 	employee 	organization's 	rights 	guaranteed 	to 	them 	by
the EERA 	if 	the 	organization 	advocated 	that 	its 	members
participate 	in 	a 	sickout, or 	other 	form 	or 	work 	stoppage,
interfered 	with 	employees 	because 	of 	their 	exercise 	of 	their
right 	to 	participate 	in 	the 	activities 	of 	an 	employee
organization, 	thus 	constituting 	a 	violation 	of
subsection 	3543.S(a) 	of 	the 	EE.RA.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
this 	Notice, 	and 	we 	will 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to 	meet 	and 	negotiate 	in 	good
faith 	with 	the 	exclusive 	representative 	by 	taldng 	unilateral
action 	on 	matters 	within 	the 	scope 	of 	representation, 	as
defined 	by 	section 	3543.2, 	and 	specifically 	with 	respect 	to 	the
alteration 	of 	leave 	policies.
7

2.
	Denying
	CSEA
	the
	right
	to
	represent 	unit
	members
	by
unilaterally 	altering
	leave
	policies
	without
	meeting
	and
negotiating
	with
	it.
3.
	Interfering
	with
	employees
	because 	of
	their
	exercise
of
	their
	right
	to
	select
	an
	exclusive
	representative 	to
meet
and
	negotiate
	with 	the
	employer
	on
	their
	behalf
	by
	unilaterally
changing
matters
	within 	the
	scope
	of
	representation
	withoutmeeting
	and
	negotiating
	with 	the
	exclusive
	representative.
4.
	Interfering
	with
	employees
	because
	of
	their 	exercise
of
	their 	right
	to
	participate
	in
	the
	activities
	of
	an
	employee
organization
	by
	threatening 	to
	suspend
	an 	employee
organization's
	rights,
	guaranteed
	to
	them 	by
	the
	EERA,
	if
	the
organization
	advocated
	that
	its
	members
	participate
	in
	a
sickout
	or
	other
	form
	of
	work
	stoppage.
B.
	TARE 	THE 	FOLLOWING
	AFFIRMATIVE AC'rIONS 	DESIGNED
	TO
EFFECTUATE
	THE
	POLICIES
	OF
	THE
	EERA:
1.
	Rescind
	Resolution
No.
	17,
	adopted
	April
	1,
	1979,
	and
reinstate
	the 	leave 	policy
	in 	effect 	prior
	to
	that
	date 	unless
and
	until
	the
	parties
	adopt
	a 	new
	policy, 	either
	by
	reaching
	a
negotiated
	agreement 	or
	exhausting
	the
	statutory
	impasse
procedure.
2.
	Make
	the
	affected
	employees 	whole
	by
	paying
	them
	the
sick 	leave
	they
	would 	have
	recieved, 	plus
	interest 	at
	the
	rate
of	
seven
	(7)
	percent
	per
	annum,
	had
	the
	unilateral
	changes 	notbeen made,
	except
	that
	payment 	need
	not
	be
	made
	to 	those
employees
	who
	fail
	to 	provide
	verification
	requested	
by	
the
District
	pursuant
	to
	its
	reasonable
	belief 	that
	such 	employees
had 	abused
	their
	sick
	leave
	benefits.
DATE:
BARSTOW UNIFIED SOIOOL	
DISTRICT
By
Authorized 	Representative
THIS	
IS
	AN
	OFFICIAL 	NOTICE. 	IT	
MUST	
RE.al.IA.IN
	POSTED FOR
THIRI'Y
(
30)
	CONSECUTIVE
	WORK DAYS 	FROM
THE 	DATE 	OF
	POSTING AND
	MUST
NOT BE 	REDUCED	
IN SIZE,
	DEFACED, 	ALTERED 	OR
	COVERED BY ANY
MATERIAL.
8

PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF 	THE
	STATE
	OF
	CALIFORNIA
CALIFORNIA
SCHOOL EMPLOYEES
ASSOCIATION,
Charging
	Party,
v.
BARSTOW
	UNIFIED
	SCHOOL
	DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
___________________ )
Unfair
	Practice
Case
	No.
	LA-CE-474-78/79
PROPOSED
	DECISION
(3/18/80)
Appearances:	
Ronald
	C. 	Ruud
	(Paterson
	&
Taggart), 	Attorney 	for
Barstow
Unified
	School
	District;
	Ruth
	Rokeach 	and
	Michael
Heumann,
	Attorneys 	for
	California
	School
	Employees
	Association.
Before
	Bruce 	Barsook, 	Hearing
	Officer.
PROCEDURAL
	HISTORY
This 	case
	presents
	the 	issue 	of
	what
	actions,
	if
	any,
	a
school
	district
	may
	take 	to 	prepare
	itself
	for 	the
	consequences
of
	an 	imminent
	sickout
	by
	district
	employees.
On May
	16, 	1979,
	the
	California
	School
	Employees
Association 	(hereafter
	CSEA)
	filed
	an
	unfair 	practice
	charge
against 	the
	Barstow
	Unified
	School
	District
	(hereafter
District) 	alleging
	a
	violation 	of 	section
	3543.S(c}
	of 	the
Educational	
Employment	
Relations
	Act
	(hereafter
	EERA)l.
lThe
	EERA
	is 	codified 	at 	section
	3540
	et
	seq. 	of 	theGovernment 	Code.	
All 	statutory 	references 	are 	to 	theGovernment 	Code
	unless 	otherwise 	indicated.

CSEA
	amended
	its
	charge 	to
	include
	allegations
	of
	violations 	of
section
	3543.S(a)
	and 	{b) 	on
	July
	9 	and
	July
	18,
	1979.
After
	an
	informal 	conference
	failed
	to 	resolve
	the
	matter,
a
	formal
	hearing
	was
	held
	on
	July
	26,
	1979.
	Post-hearing
briefs
	were
	filed
	and
	the 	case
	was
	submitted
	on
November
	5,
	1979.
FINDINGS
	OF 	FACT
The
	California
	School
	Employees
	Association
	is
	the
exclusive 	representative
	of
	the
	classified
	employees
	of
	the
Barstow
	Unified
	School
	District.
	In 	October 	1978,
	the
	parties
entered 	into
	a
	collective
	bargaining
	agreement
	for 	the
	term
	of
July
	1978
	to
	June
	30, 	1979.
Negotiations 	for
	a
	successor
	agreement
	began
	in
	March
1979. 	During
	the
	week
	of
	March
	26, 	1979,
	the
	District's
classified
	employees 	engaged
	in 	various 	concerted
	activities,
such
	as
	picketing, 	in
	an
	effort
	to 	put
	negotiating 	pressure
	on
the
	District.
	Rumors
	of
	a
	possible 	sickout
	or
	other 	job
	action
by
	classified
	employees
	were
	circulated.
Although 	impasse 	had
	not
	yet
	been
	declared, 	the
	District,
on
	Saturday,
	March 	31
	received
	word
	that
	a
	sickout
	was
	to 	occur
on
	the 	following
	Monday,
	April 	2,
	1979.2 	In
	an
	effort
	to
2whether 	or 	not
	CSEA
	organized, 	assisted
	or 	condoned
	theplanned 	sickout 	is
	not 	important 	to 	the 	determination 	in 	thiscase.
	However,
	it
	be 	noted
	that 	the 	denial 	by	
CSEA's
business 	agent,
	David 	Dawson, 	any
	sickout 	occurred 	lacks
credibi 	ty 	in 	light 	of 	the 	attendance 	figures 	that
	day 	and
2

prepare 	for 	the
	expected
	disruption 	of 	services,3	
the
District's
	governing 	board, 	without
	notifying
	CSEA, 	met 	on
Sunday,
	April
	1,
	1979
	and
	passed
	an
	emergency
	resolution.
	The
resolution,
	entitled
	Resolution
	17
	(hereafter
	Resolution)
adopted
	various 	provisions
	relating
	to
	(among
	others) 	leave
policy,
	substitute
	pay,
	and
	employee
	organization
	rights.4
With
	respect
	to
	leaves,
	the 	Resolution
	indicated
	that:
(1)
	classified
	employees
	will
	not
	be
	paid
	for
	leaves
	of
	absence
unless 	the
	employee
	worked
	or
	was
	validly
	excused
	from
	work,
both
	the
	workday
	before
	and
	the
	workday
	after
	the 	absence;
(2)
	classified
	employees
	requesting
	sick
	leave
	must
	sign
	an
affidavit
	of
	illness
	and
	submit
	a
	doctor's
	certificate
	of
illness,
	both
	on 	a
	District-approved
	form,
	before
	being
	paid;
and 	(3)
	personal 	necessity
	leaves
	will
	be
	restricted
	during 	the
time
	of 	the
	sickout 	to
	emergencies 	as 	defined
	by
	the 	Education
Code. 	With
	respect
	to
	substitute
	pay,
	the 	Resolution
	gave
	the
indicates
	to 	the 	hearing
	officer 	that
	well
	may
	have
played
	a
	part
	in
	assisting
	the 	planning
	of 	si 	t.
Mr.
	Dawson's
	evasive
	manner
	in
	answering
	questions 	furtherleads
	me
	to 	believe 	in
	CSEA's
	connection 	to 	the 	sickout 	ofApril 	2,
	1979.
3c1assified
	employees
	are 	responsible 	for 	providing
transportation 	services
	(40
	percent	
of	
the 	students 	are
transported
	by
	bus), 	student
	meals
	(delivery
	and
	preparation),supervision 	of 	students 	prior 	to 	their
	first
	class
	and
	atrecess, 	clerical 	staffing
	to 	keep
	track 	of 	attendance,maintenance
	and
	custodial 	services
	and
	instruct
	s 	t
services.
4For 	a 	complete 	copy
	of 	the 	Resolution, 	see 	Appendix
	1.
3

superintendent
	authority
	to
	hire 	substitutes
	and
	substitute
	bus
drivers 	at
	a
	rate
	of
	pay
	higher 	than
	that
	paid
	prior
	to 	the
adoption
	of 	the 	Resolution.
	Finally,
	with
	respect
	to
termination 	of
	employee
	organization
	rights
	and
	privileges,
	the
Resolution
	stated 	that
	any
	employee
	organization
	which
	urged
its
	members
	to
	engage
	in
	a
	sickout
	or
	other
	illegal
	work
stoppage
	would 	have
	its
	"privileges"
	as
	a
	"verified
	employee
organization
	withdrawn"
	including 	but 	not
	limited
	to:
	use
	of
District
	mail
	service,
	bulletin
	boards, 	telephones,
	meeting
rooms,
	access 	to 	school
	sites,
	fringe 	benefit
	payments,
	and
dues
	deduction.
In 	his 	testimony, 	Superintendent
	Raymond
	Smith
	admitted
that 	prior
	to 	passage
	of 	Resolution
	No.
	17,
	it
	was
	not
	the
District's
	policy
	to
	deny 	pay
	for 	leaves 	of
	absence
	if
	an
employee
	had
	not
	worked
	or
	was
	not
	validly
	excused
	on
	the
workday
	before
	and
	after
	the 	absence;
	nor
	was
	it
	the
	District's
policy
	to
	require
	either
	a
	doctor's
	excuse 	or
	an
	affidavit
	of
illness
	on 	a
	District
	form.5	
However, 	he
	also 	indicated
	that
it
	had
	been
	the
	District's
	practice
	to 	require
	verification
whenever
	there
	was
	reason 	to 	question 	the 	legitimacy 	of
	a
	leave
application.
	Mr. 	Smith
	further
	testified
	that
	the 	Resolution
changed
	the
	payment 	schedu 	for
	substitute
	employees.
5The
	ective 	barga 	ing 	agreement 	in
	effect
	was
silent
	on
	leave 	veri 	cation 	requirements.
4

On 	April 	2, 	1979, 	182 	out 	of 	211 	unit 	members 	were 	absent
from 	work 	(over 	10 	times 	the 	normal 	number 	of 	absences). 	As 	a
result, 	the 	District 	implemented 	Resolution 	provisions 	relating
to 	leave 	verification 	procedures 	and 	the 	hire 	and 	payment 	of
substitutes 	and 	substitute 	bus 	drivers.
Thereafter, 	CSEA 	and 	the 	District 	met 	on 	several 	occasions
to 	discuss 	the 	District's 	action. 	CSEA made 	several 	attempts
to 	negotiate 	the 	District's 	change 	in 	leave 	policies 	but 	no
agreement 	was 	reached 	(on 	leave 	policies 	or 	any 	other 	aspect 	of
the 	Resolution).
Forty-five 	unit 	members 	(out 	of 	182 	absences) 	were 	granted
paid 	leave 	for 	their 	absence 	on 	April 	2, 	1979. 	The 	District
took 	no 	disciplinary 	action 	against 	CSEA 	or 	any 	individual 	unit
member 	as 	a 	result 	of 	the 	sickout 	of 	April 	2, 	1979.
Although 	the 	District 	superintendent 	testified 	that 	he
thought 	that 	the 	Resolution 	expired 	by 	operation 	of 	law 	at 	the
end 	of 	the 	school 	year, 	the 	Resolution 	has 	never 	been 	rescinded
by 	the 	District 	Board 	of 	Trustees.
ISSUES
1. 	Whether 	the 	District's 	implementation 	of 	leave
verification 	requirements 	and 	other 	leave 	policies 	violates
section 	3543.S(a), 	(b) 	or 	(c) 	of 	the 	EERA.
2. 	Whether 	the 	District's 	payment 	increased 	wages 	to
substitutes 	and 	substitute 	bus 	ivers 	violates 	section
3543 .5 (a) 	or 	(b).
5

3.
	Whether
	the
	District's
	threat
	to
	suspend
	an
	employee
organization's 	rights
	and
	privileges
	for
	its
	advocacy
	of
participation
	in
	a
	sickout
	or
	other
	form
	of
	work
	stoppage
violates
	section
	3543.S(a)
	or
	(b).
DISCUSSION
1.
	Change
	in
	Leave
	Policies
CSEA
	alleges 	that
	the
	District's
	promulgation
	and
implementation
	of
	emergency
	regulations
	changing
	leave
	policies
(i.e.,
	introduction
	of
	verification
	requirements 	for
	sick
	leave
and
	restrictions
	on
	use
	of 	personal 	necessity
	leave)
	constitute
unilateral
	changes
	in
	terms
	and
	conditions 	of
	employment,
	as
defined	
by	
section
	3543.2,
	and
	as 	such,
	constitute 	violations
of 	section
	3543
.5
(a),
	{b}
	and 	(c)
6.
6sec. 	3543.5(a),
	(b) 	and 	(c)
	provide
	as
	follows:
It
	shall
	be
	unlawful
	for
	a
	public
	school
employer
	to:
(a) 	Impose
	or
	threaten 	to
	impose
	reprisals
on
	employees,
	to 	disciminate
	or
	threaten 	todisciminate 	against
	employees, 	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees 	because
	of
	their 	exercise 	of
rights
	guaranteed
	by
	this
	chapter.
(b) 	Deny
	to
	employee
	organizations 	rights
guaran 	to
	them	
by	
chapter.
(c) 	Refuse 	or
	fail
	to
	meet 	and
	negotiate 	in
good
	faith
	with
	an
	exclusive 	resentative.
6

Leave
	policies
	are
	specifically
	included
	in
	section
	3543.2
as
	a
	term
	and
	condition 	of
	employment.?	
The
	evidence
discloses 	that
	the
	District
	promulgated
	these
	changes
	without
notifying
	CSEA
	or
	giving
	it
	the
	opportunity
	to
	meet
	and
negotiate
	on
	them
	before
	they
	were
	passed.
Unilateral
	changes
	by 	an
	employer
	concerning
	matters
	which
are
	proper
	subjects 	of 	negotiating 	are 	generally
	regarded
	as
eer
	se
	refusals
	to
	negotiate.
	San Mateo
	County
	Community
College
	District
	(6/8/79)
	PERB
	Decision
	No. 	94
	at
	p.
	12;
Pajaro Valley 	Unified
	School
	District
	(5/22/78)
	PERB
	Decision
No.
	518. 	Thus,
	in 	the
	absence
	of
	a
	valid
	defense, 	the
District's
	action
	violates 	section
	3543.S(c).
7sec.
	3543.2
	provides:
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 	Sections
35
48.
5,
	35
48.
6,
	35
48.
7,
	and 	35
48.
8,
	and
	the
layoff 	of 	probationa
	certificated
	school
district
	employees,
	pursuant 	to 	Section
449
	of 	the
	ation
	Code
....
Cf. 	Sacramento
	City Unified 	School
	District
	(8/14/79)
	PERB
Dec
	ion
	No.
	100 	(emergency
	regulations 	unilaterally
promulgated
	affecting 	business
	and
	necessity 	leave).
8 	Murehy
	Diesel
	Com!anl 	( 	70) 	4
NLRB
	757 	[
LRRM
	1469], 	enfd. 	(7th 	Cir.
	197
	)54
	F.2d
	303 	[78
	LRRM
	2993]
7

(unilateral
	promulgation
	of 	additional 	rules
	regarding
	employee
absences 	held 	to
	constitute 	violation
	of
	NLRA;
	29
	u.s.c.
	sec.
158{a)
(5)).
A. 	The
	Contract
	Defense
The
	District's
	first
	argument
	is
	that
	the
	terms
	of
	the
agreement 	between
	the
	District
	and
	CSEA
	gave
	the
	District
	the
authority
	to 	take 	the
	action
	it
	did.
	Specifically,
	the
District
	points
	to
	two
	clauses 	in
	the
	article
	on
	"District
Rights":
	One 	empowers
	the
	District
	to
	"take
	action
	on
	any
matter 	in
	the 	event
	of
	an
	emergency;"
	the
	other
	permits 	the
District
	to
	adopt
	policies
	in 	furtherance 	of
	its
	management
prerogatives, 	limited
	"only
	by
	the
	specific
	and
	express
	terms
11
of
	the
	agreement.
	However,
	for 	the 	following 	reasons,
	neither
clause
	constitutes
	a
	valid
	defense.9
The
	District's
	contention
	that
	a
	sickout
	(or
	other
	work
stoppage)
	by
	school
	employees
	constitutes
	an 	emergency
	within
the
	meaning
	of 	the
	District
	Rights
	clause
	and
	thereby
authorizes
	the
	District
	to 	take
	unilateral
	action
	ignores 	the
critical
	question 	of
	whether
	in
	fact
	an 	emergency
	existed
	at
the
	time
	the
	emergency
	resolution
	was
	adopted
	on
9Although
	sec. 	3541.S(b) 	prohibits
	the 	Public
	Emp~oyment
Relat
	Boa 	{
	reafter
	PERB
	or 	Board) 	from 	orc1ng
agreements 	between
	the
	parties,
	by
	analogy 	to 	National
	Labor
Relations
	Act
	(hereafter
	NLRA)
	precedent,
	this
	Board 	may
analyze
	a
	collective 	negotiations
	agreement 	where
	necessary 	to
the 	termination
	an
	unfair 	pract 	charge.
	See
	LRB
	v.C & C Plywood 	Corp~ 	(1967) 	385
	U.S.
	421 	[64
	LRRM
	206
	In
addition,
	it
	should
	be 	noted
	that 	the 	agreement 	tween
parties
	does 	not 	provide 	for 	binding
	arbitration.
8

April 	1,
	1979.
	In
	examining
	this
	issue,
	the
	PERB
	has
	indicated
that 	unilateral
	action
	by
	an
	employer
	will
	only
	be
	permitted
	if
an 	emergency
	actually
	exists.
	San
	Francisco
	Community
	College
District
	(10/12/79)
	PERB
	Decision
	No.
	105.
	A
perceived
emergency
	is 	insufficient.
	Furthermore,
	the
	California
	Supreme
Court
	in
	Sonoma Co.
	Organization
	of 	Public
	Employees
	v.
	County
of
	Sonoma,10	
cited
	with 	approval
	by
	PERB
	in
	its
	San
	Francisco
decision,
	states 	that
	not
	only
must
	an
	emergency
	actually
exist,
	it
	must
	also
	be 	shown
	that
	the
	means
	used
	are
"reasonable
	and
	necessary."
In
	this
	case, 	the
	District
	has
	not
	shown
	that
	a
	state
	of
emergency
	was
	in 	existence 	at
	the
	time
	the
	emergency
	resolution
was
	passed.
	What
	the
	District
	has
	shown
	is
	a
	perceived
emergency.
	At
	the
	time
	the 	Resolution
	was
	passed,
	there
	was 	no
way 	a
	determination
	could 	reasonably
	be 	made
	as
	to
	how
effective
	the 	sickout
	would 	be 	and
	thus
	whether
	an 	emergency
would
	result.
	For 	example,
	there
	was	
no	
reliable
	way
	of
determining
	whether
	transportation
	or 	food
	service
	would
	be
affected 	in
	a
	substantial
	way
	or
	in
	an
	insignificant
	way.
	Yet,
the 	language 	of 	the 	Resolution 	provided
	that
	the
	changes
	would
take 	place 	regardless 	of 	the 	impact
	of
	the 	sickout.11
10(
	79) 	23
	Cal.3d
	296 	[152
	Cal.Rptr.
	903; 	1 	P. 2d 	1] •
111n
	fact, 	regardless 	of 	whether 	a
	sickout 	actoccurred.
9

Nor
	were
	the
	means
	used
	both
	reasonable
	and
	necessary.
	The
District
	had
	other
	less 	drastic
	and
	less
	onerous
	alternatives
available
	to
	it.
	For
	instance,
	a
	narrowly
	drawn
	resolution
granting
	the
	superintendent
	the
	authority
	to 	take
	unilateral
action
	if
	an
	emergency
	actually
	developed
	would
	greatly
alleviate
	the 	improprieties 	of
	the
	resolution
	in
	issue.
Furthermore,
	the
	District
	(after
	April
	2)
	could 	have,
	pursuant
to
	its
	past
	practice,
	requested
	verifications
	of
	illness
	for
those
	individuals
	it
	reasonably 	suspected 	of
	abusing
	their
	sick
leave
	benefit.
	The
	present
	Resolution 	placed
	all
	classified
employees,
	the 	innocent
	as
	well 	as 	the
	guilty
	under
	suspicion.
Finally,
	and
	as 	the
	District
	noted
	in
	its
	written
	brief
	in
	this
matter,
	the
	District
	could
	have
	pursued
	its
	legal
	claims
against
	CSEA
	for
	CSEA's
	involvement
	in 	the
	work
	stoppage
	in
another
	forum.12
The
	District's
	contention
	that
	it
	had
	specific 	contract
authority
	to
	adopt
	policies
	in 	furtherance 	of
	its
	management
prerogatives, 	limited
	"only
	by
	the
	specific
	and
	express 	terms"
of 	the
	contract,
	thereby
	justifying
	its
	adoption
	and
implementation 	of 	the 	Resolution 	is 	equally 	without
	merit.
Without
	articulating
	it,
	the
	District
	appears 	to
	be
	arguing
that
	CSEA
	has
	contractually
	waived
	its
	right
	to 	negotiate
	about
12The 	D
	trict's
	brief 	cites
	Pasadena Unified 	School
District
	v. 	Pasadena Feder
	on
	of 	Teachers
	(1977) 	72
Cal.App.3d 	100, 	111 	[140
	Cal.Rptr. 	41].
10

changes 	in 	leave 	policy 	via 	its 	agreement 	to 	the 	District's
Rights 	clause 	in 	the 	1978-79 	agreement. 	While 	it 	has 	been
recognized 	that 	employee 	organizations may 	relinquish 	the
statutory 	right 	to 	negotiate 	if, 	as 	part 	iati
process, 	it 	elects 	to 	do 	so, 	only 	"clear 	and 	unmistakable
language" 	or 	"demonstrative 	behavior 	waiving 	a 	reasonable
opportunity 	to 	bargain 	over 	a 	decision 	not 	already 	firmly 	made
by 	the 	employer" 	will 	warrant 	a 	conclusion 	that 	waiver 	was
intended. 	San Mateo County Community College 	District, 	supr~;
Amador 	Valley 	Joint 	Union 	High 	School 	District 	(10/2/78) 	PERB
Decision 	No. 	74 	at 	p. 	8 	(citing NLRA 	precedent}. 	There 	is 	no
evidence 	that 	the 	parties, 	when 	negotiating 	the 	1978-79
agreement, 	discussed 	or 	contemplated 	District 	authority 	to 	take
unilateral 	action 	with 	respect 	to 	leave 	policies. 	In 	addition,
it 	has 	been 	repeatedly 	found 	that 	the 	existence 	of 	a 	broad,
non-specific 	management 	rights 	or 	zipper 	clause 	does 	not 	give
an 	employer 	the 	right 	to 	act 	unilaterally 	on 	negotiable
subjects 	during 	the 	term 	of 	a 	contract. 	See 	NLRB 	v. 	Auto 	Crane
Co. 	(10th 	Cir. 	1976) 	536 	F.2d 	310 	[92 	LRRM 	2363, 	2364]; 	see
generally, 	Morris, 	ed. 	The 	Developing 	Labor 	Law 	(1971) 	pp.
333-335 	(and 	annual 	supplements). 	For 	these 	reasons, 	the
District's 	argument 	is 	rejected.
B. 	The 	Statutory Right 	Defense
The 	District's 	second 	argument 	that 	it 	had 	statutory
authority 	to 	unilateral 	adopt 	the 	leave 	verif 	at
11

requirements.
	The
	District
	argues
	that
	Education
	Code
	section
45191
	simultaneously 	supersedes
	conflicting
	provisions 	in 	the
EERA
	and
	requires
	school
	districts
	to
	adopt
	sick
	leave
verification
	rules
	and
	procedures. 	Section
	45191
	of
	the
Education
	Code
	provides
	in
	pertinent 	part 	that:
[t]he
	governing
	board
	of
	each
	school
district
	shall
	adopt
	rules
	and
	regulations
requiring
	and
	prescribing
	the
	manner
	of
proof 	of
	illness
	or
	injury
	for 	the 	purpose
of
	this 	section.
While
	it
	is 	true
	that
	section
	3540
	of
	the
	EERA
	provides 	in
pertinent 	part 	that:
	11
[n]othing 	contained
	[in
	the
	EERA]
	shall
be
	deemed
	to 	supersede
	other 	provisions 	of
	the 	Education
Code.
	. 	.
11
	there 	is
	nothing
	in
	the 	nature
	or 	scope
	of
Education
	Code
	section
	45191
	which
	is
	inconsistent
	with
	the
EERA's
	obligation
	to
	meet 	and
	negotiate
	on
	matters 	within 	the
scope
	of 	representation.
	Read
	together, 	sections
	3540 	and
3543.2
	of 	the
	EERA
	and
	section
	45191
	of
	the 	Education
	Code
provide
	that
	a
	school
	district
	shall
	adopt 	leave
	verification
rules
	and
	regulations 	subject
	to
	its
	duty
	to 	negotiate
	any
change 	in
	the
	working
	conditions 	of
	its
	employees.
The
	District's
	ultimate 	authority
	(and
	legal
	duty)
	is
	not
questionea.13	
The
	EERA
	simply
	requires 	that
	the
	District
provide 	the 	exclusive 	representative
	with 	the 	opportunity 	to
negotiate 	the 	proposed
	rules
	and
	regulat 	their
13cf.
	Gov. 	Code
	sec.
	3549.
12

adoption. 	Consequently, 	the 	District's 	argument 	that 	it 	had 	a
statutory 	right 	to 	take 	unilateral 	action 	is 	rejected.
c. 	Insufficient 	Time 	to 	Negotiate 	Defense
The 	District's 	next 	argument 	is 	that 	because 	it 	only 	had
approximately 	30 	hours 	between 	the 	time 	it 	learned 	of 	the
planned 	sickout 	and 	the 	time 	the 	sickout 	was 	to 	begin, 	it 	was
excused 	from 	any 	obligation 	it 	normally 	would 	have 	to 	negotiate
with 	CSEA. 	The 	District 	contends 	that 	it 	was 	placed 	in 	the
untenable 	position 	of 	either 	negotiating 	with CSEA 	as 	to 	how 	it
could 	make 	CSEA 1 s 	sickout 	less 	effective 	or 	being 	left 	helpless
to 	deal 	with 	fraudulent 	leave 	applications 	and 	the 	problems
arising 	from 	an 	illegal 	work 	stoppage. 	Under 	such
circumstances, 	the 	District 	argues, 	it 	should 	be 	excused 	from
its 	negotiating 	responsibility.
However, 	the 	circumstances 	under 	which 	the 	District 	found
itself 	were 	not 	untenable 	as 	the 	District 	alleges. 	As
discussed 	earlier 	in 	this 	decision, 	the 	District 	had 	reasonable
alternatives 	available 	to 	it 	but 	chose 	not 	to 	pursue 	them.14
As 	a 	consequence, 	the 	District's 	failure 	to 	negotiate 	with 	CSEA
is 	not 	excused 	and 	the 	District's 	argument 	is 	therefore
rejected.
14see 	pages 	10-11, 	supra.
13

D.
	Waiver
	Defense
The
	District's
	final
	argument
	is
	that
	CSEA
	waived
	any
	right
to
	negotiate
	over
	Resolution
	17 	by
	its
	failure
	to
	demand
	to
negotiate.
	Even
	assuming
	that
	CSEA
	did
	not
	demand
	to
	negotiate
matters 	within 	the
	scope
	of 	representation,
	a
	contention
	which
the
	evidence
	belies,
	CSEA
	was
	under
	no
	duty 	to
	demand
	such
negotiations 	since
	it
	was
	presented
	with
	a
	fait
	accompli.
	CSEA
had
	neither
	the
	knowledge 	nor
	the 	opportunity 	to
	demand
negotiations
	before 	the 	Resolution
	was
	adopted
	and
	implemented.
Under
	these 	circumstances,
	any
	request 	to 	negotiate
	would
	have
been
	a
	futile
	act,
	an
	act
	not
	required
	by
	the
	EERA.
	San
	Mateo
County
	Community
	College
	District,
	suF-ra
	at
	p.
	22; 	San
Francisco
	Community
	College
	District,
	Sl!Er~
	at
	p. 	17.
	The
District's
	fourth
	and
	final
	argument
	is
	dismissed
	and
	it
	is
therefore
	found
	that
	the
	District
	committed
	an
	unfair
	practice.
Summary
The
	PERB
	has 	been
	careful 	to 	balance 	the
	interests
	of
employees
	in 	maintaining
	their
	working
	conditions
	with 	those
	of
the
	employer
	to
	make 	what
	it
	considers 	to
	be
	necessary 	changes
to 	preserve 	the
	soundness
	of 	the 	educational
	program. 	While
there 	is
	no
	intention 	to
	inhibit
	school
	districts
	from
maintaining
	their 	educational
	programs
	in 	the 	face 	of
	sickouts,
s
	ikes 	or
	other
	forms 	work
	stoppages, 	the
	emergency
resolut
	,
	based
	on
	speculative 	concern 	for
	e
	eff
	a
sickout
	may 	have 	on
	the 	school
	district
	and
	not 	on
	the 	actu
14

existence 	of
	an 	emergency
	impermissibly
	sweeps
	too
	broadly.
	It
unnecessarily
	punishes 	the 	innocent
	along 	with
	the
	guilty.
	As
a
	result,
	the
	District's
	action
	violates
	the
	EERA. 	The
District
	has
	violated 	section
	3543.S(c} 	because
	it
	has
unilaterally 	altered
	leave
	policies
	without
	meeting
	and
negotiating
	with
	CSEA.
	It
	has
	also
	violated 	section
	3543.S(a)
and
	(b)
	because
	they
	are
	derivative 	violations
	of
	a
	section
3543.S(c)
	violation.
	San
	Francisco
	Community
	College
	District,
supra.
2.
	Payment
	of
	Increased
	Wages
	to
	Substitutes
	and
	Substitute
	Bus
Drivers
CSEA
	contends
	that
	the
	District's
	promulgation
	and
implementation
	of
	an 	emergency
	resolution
	providing 	for
	payment
of
	increased
	wages
	to
	substitutes
	and
	substitute
	bus
	drivers
constitute
	a
	violation
	of
	section
	3543.S(a).
	CSEA
	argues
	that
the 	authorization
	for 	higher
	pay 	amounts
	to
	a
	flaunting 	of
power 	on
	the
	part 	of
	the
	District,
	a
	statement
	that
	the
District,
	not
	CSEA,
	has
	unilateral
	say 	over
	wages. 	such
	a
display 	of
	power,	
CSEA	
contends,
	undermines
	CSEA's
	credibility
by 	making
	it
	appear
	weak 	and
	ineffectual,
	and
	coerces
	employee
support
	away 	from
	the 	organization.
	CSEA's
	argument
	is
	not
convincing.
Substitutes
	and
	subst 	ute 	bus
	drivers
	are 	not
	rt
	of 	the
unit
	which
	CSEA
	represents.
	Thus, 	CSEA	
has
	no
	right 	to
	meet
and
	negotiate 	over 	wages 	pa 	to 	substitutes. 	Furthermore,
15

CSEA
	has
	not
	presented 	persuasive
	evidence
	why 	a
	district,
faced 	with
	an
	imminent
	work
	stoppage,
	is
	precluded
	from
	hiring
substitutes
	and
	paying
	them 	a 	wage
	sufficient
	to 	guarantee
their
	presence 	during 	the
	work
	stoppage.
	If
	employees
	are
going
	to
	stay
	away 	from
	their
	jobs
	to 	press 	negotiating
demands,
	a
	school
	district
	should
	be
	permitted
	to
	take
reasonable
	steps
	to 	ensure
	that
	the
	educational
	program
	is
continued.
	CSEA's
	allegation
	is 	therefore
	dismissed.
3.
	Threats 	to
	Employee
	Organization 	Rights
CSEA
	alleges 	that
	the
	Resolution's
	threat
	to
	suspend
"employee
	organization
	privileges" 	constitutes
	a
	violation
	of
section
	3543.S(a)
	and
	(b).
	CSEA
	argues
	that
	such
	threats
misrepresent 	the
	"power
	relationship"
	between
	a
	school
	district
and 	an 	employee
	organization
	and
	as 	such,
	undermine
	the
credibility
	of
	the
	organization 	in
	the
	eyes
	of
	its
	members.
The
	District
	denies
	that
	it
	violated 	section
	3543.S(a) 	or
(b)
	and
	argues
	that:
	it
	did
	not
	deny
	CSK~
	any
	of
	its
	rights
under
	the
	EERA--the
	Resolution 	provides
	that
	such
	"privileges"
may
	be
	terminated 	but
	no
	action
	was
	taken; 	the
	District
	has 	the
statutory 	right
	to 	adopt 	reasonable 	regulations 	in 	the
governance 	of
	certain
	employee
	organization
	"pr
	leges";
	and
no
	evidence
	was
	introduced 	to
	show 	any
	adverse 	impact
	on CSEA
or 	any
	unit
	members.
Whi
	the
	D
	trict
	has 	the
	d
	cret
	to 	adopt 	re aso
regulations 	in 	the 	governance 	of
	employee
	organization
16

privileges,
	many
	of 	the
	so-called 	"privileges"
	enumerated
	in
the 	Resolution
	are 	not
	privileges
	but
	rather
	are
	statutory
rights
	accorded
	to
	employee
	organizations
	by
	the
	EERA.15 	The
District
	offers
	no
	support
	for
	an
	argument
	that
	a
	school
district
	has
	a
	right
	to
	rescind
	statutory 	rights
	nor
	can
	one
reasonably
	be
	made. 	Even
	though 	employees
	or
	their
	union
	may
be
	engaged
	in
	unprotected
	activity,
	an
	employer 	does
	not
correspondingly
	obtain
	a
	right
	to
	act 	in
	a 	way
	which
	infringes
on
	protected
	rights.
	No
	right
	should
	arise
	to
	commit
reciprocal 	violations
	of 	the 	law.
	Such
	behavior
	does
	not
promote
	effective
	employer-employee
	relations.
	If
	the 	school
district
	believes
	that
	it
	has
	been
	harmed 	by
	the
	actions 	of 	the
employee
	organization,
	it
	has
	a 	remedy
	in
	another
	forum.16
With
	respect 	to 	the
	section
	3543e5(a)
	allegation,
	the
District's
	misrepresentation 	of
	its
	authority 	interferes
	with
the
	right
	of
	employees
	to
	participate
	in
	the
	activities
	of
	an
15sec. 	3543.l(b) 	provides:
Employee
	organizations
	shall
	have
	the
	right
of
	access
	at
	reasonable 	times 	to 	areas
	in
which 	employees 	work,
	the
	right
	to
	use
institutional 	bulletin
	boards, 	mailboxes,
and
	other
	means
	of
	communication,
	subject 	to
reasonable 	regulation,
	and
	the
	right
	to
	use
ti~t1t~t~i~p1s~a~~l~~~t1n~~	
~~~~~~~~~ewtt~es
the 	exercise 	of 	the
	rights
	guaranteed
	by
th is 	chapter.
16see 	note 	accompanying
	text, 	ante.
17

employee
	organization.
	The
	false
	implication
	that
	the
	District
has
	the
	unilateral
	authority
	to 	punish
	CSEA
	for
	its
	advocacy
	of
a
	sickout
	or
	other
	form
	of
	work
	stoppage
	by
	suspending
statutorily
	guaranteed
	rights
	tends 	to
	undermine
	the
	status
	of
CSEA
	as
	exclusive
	representative
	and
	creates
	a
	chilling
	effect
on 	employee
	activity.
	It
	instills
	a
	fear
	that 	participation
	in
employee
	organization
	activities
	might
	lead 	to
	the
	lost
	of
benefits
	normally 	enjoyed
	(e.g.,
	fringe
	benefits).
	In 	the
absence
	of
	a
	reasonable
	justification
	for
	making
	such
	a
	threat,
it
	is
	found
	that
	the
	District's
	threat
	to
	suspend
	employee
organization
	rights 	is
	unlawful
	and 	a
	violation
	of
	section
35
43
. 5
(a)
• 17
Examining
	the
	section
	3543.S(b)
	allegation,
	the
	facts
indicate
	the
	District
	threatened 	to
	suspend
	employee
organization 	rights
	but 	did 	not
	actually
	do
	so. 	Section
3543.S(b)
	unlike 	section
	3543.S(a),
	does 	not
	make
	it
	an
	unfair
practice
	to
	threaten 	to
	deny 	employee
	organizations
	rights
guaranteed 	to
	them	
by	
the
	EERA.
	Consequently,
	no
	violation	
of
section
	3543.S(b)
	is
	found.
17cf. 	Oceanside-Carlsbad Unified 	School
	District
(1/30/79)
	PERB
	Decision
	No.
	89.
Significantly, 	this
	case 	is 	not
	one
	in
	which 	one
	party
during 	the 	course 	of 	discussion 	at
	the 	negotiating 	table
threatens 	the 	other 	party
	with
	a
	particular
	course
	action,but
	r 	r 	a
	situation
	where
	school
	district
	has, 	by
pass
	a
	resolution, 	taken
	act
18

REMEDY
Under
	Government
	Code
	section
	3541.S(c),
	the
	Public
Employment
	Relations
	Board
	is
	given:
.••
the
	power
	to
	issue
	a
	decision
	and
	order
directing
	an
	offending
	party
	to 	cease
	and
desist
	from
	the
	unfair
	practice
	and
	to 	take
such
	affirmative 	action,
	••.
	as
	will
effectuate
	the
	policies
	of
	this
	chapter.
In 	the
	present 	case, 	the
	District
	has
	unilaterally
disrupted
	the
	status
	quo,
	causing
	economic
	losses
	to
	employees
in 	the
	unit.
	A remedy
	requiring
	the
	District
	to 	return 	to 	the
status
	quo
	ante
	is
	appropriate
	to
	effectuate
	the
	policies
	of
the
	EERA
	because
	it
	restores,
	to 	the
	extent 	possible,
	the
positions
	the
	parties
	occupied
	prior
	to
	the
	unilateral
	change
in 	the
	status
	quo. 	Plycoma Veneer
	Co.
	(1972) 	196
	NLRB
	1009 	[80
LRRM
	1222]. 	Consequently,
	the
	District 	shall
	be
	ordered
	to
restore
	the 	leave
	policies
	as 	they
	existed
	on
March
	31,
	1979
unless
	and
	until
	the
	parties
	have
	exhausted 	the
	statutory
impasse
	procedures
	or 	agree 	otherwise 	by 	the 	adoption
	of
	a
negotiating
	agreement. 	In
	furtherance 	of
	this
	goal, 	the
District 	shall
	also
	be
	ordered 	to
	make
	the 	affected
	employees
whole 	by
	paying
	them
	the
	wages
	(i.e.
	sick
	leave) 	they
	would
have
	received
	had
	the
	unilateral
	changes 	out
	ned
	the
decision 	not 	been 	made,
	plus
	interest 	at
	the
	rate 	of
	seven 	(7)
percent per
	annum.18	
Notwithstanding 	the 	above,
	the
18cf.
	San Mateo 	County Community
	College
	District,
	su~.
19

District,
	pursuant
	to
	its
	past
	practice,
	may
	require
verification
	of
	illness
	if
	it
	reasonably
	suspects
	that
	an
individual
	employee
	has
	abused
	his 	sick
	leave.
This
	remedy
	is
	consistent
	with
	NLRA
	precedent. 	Section
lO(c)
	of
	the
	NLRA
	is 	similar
	to
	section
	3541.S(c)
	of 	the
Government 	Code,
	and
	has
	been
	interpreted
	to 	provide
	for 	such
	a
remedy. 	See
	NLRB
	v.
	Allied
	Products
	Corp.
	(1975) 	218
	NLRB
	1246
[89
	LRRM
	1441]
	enforced 	as 	modified 	(6th
	Cir.
	1977)
	548
	F.2d
644 	[94
	LRRM
	2433]
	where
	a
	similar
	remedy 	was
	granted
	as
	a
result
	of 	the
	employer
	unilaterally
	changing
	the
	status
	quo.
Furthermore, 	the 	record
	discloses
	no
	evidence
	that
	an
	order
restoring
	the
	status
	quo
	ante 	here
	would 	impose 	an
	unfair
burden
	on
	the
	District.
	NLRB
	v.
	Allied
	Products 	Corp.,	
~~E~·
The
	District
	will 	also
	be
	ordered
	to 	rescind 	Resolution
	17
because
	it
	interferes
	with
	rights
	guaranteed
	by
	the
	EERA
CSEA's
	request 	for
	litigation
	expenses
	is
	denied.
	The
District
1 s
	arguments
	were
	not
	frivolous,
	but
	rather
	were
	at
least
	"debatable."
	See 	Heck 1 s
	Inc.
	(1974) 	215
	NLRB
	765
	[88
LRRM
	1049].
It
	is
	also 	appropriate
	that
	the
	District
	be
	required 	to
post
	a
	notice 	incorporating 	the
	terms
	of 	the 	order. 	Posting
such
	a
	notice
	wi
	provide
	employees 	with
	notice 	that
	the
District
	has 	acted 	in
	an
	unlawful
	manner 	and
	is
	being 	requi
to 	cease 	des
	t 	from
	activi
	and
	to 	restore 	the
status
	quo.
	It
	effectuates 	the 	purposes 	of 	the
	EERA
	that
20

employees
	be
	informed
	of
	the
	resolution
	of 	the 	controversy
	and
will
	announce
	the
	District's
	readiness
	to
	comply
	with
	the
ordered
	remedy. 	See
	Placerville
	Union
	School
	District
(9/18/78)
	PERB
	Decision
	No.
	69.
	In
	Pandol
	and 	Sons
	v.
	ALRB
	and
UFW
	(1979) 	98
	Cal.App.3d
	580, 	587,
	the
	California
	District
Court
	of
	Appeal 	approved
	a
	posting
	requirement.
	The
	U.S.
Supreme
	Court
	approved
	a
	similar
	posting
	requirement
	in
	NLRB
	v.
Express
	Publishing
	Co. 	(1941) 	312
	U.S.
	426 	[8
	LRRM
	415].
PROPOSED
	ORDER
Upon
	the 	foregoing 	findings 	of
	fact
	and
	conclusions 	of
	law,
and
	the
	entire
	record 	in
	this
	case,
	and
	pursuant 	to
	Government
Code
	section
	3541.S(c),
	it
	is
	hereby
	ordered
	that
	the
	Barstow
Unified
	School
	District,
	its
	governing
	board
	and
	its
representatives
	shall:
A.
	CEASE
	AND
	DESIST
	FROM:
1. 	Failing
	and
	refusing 	to
	meet 	and
	negotiate 	in
	good
faith
	with
	the 	exclusive 	representative
	by
	taking
	unilateral
action
	on
	matters 	within 	the
	scope
	of 	representation,
	as
defined
	by
	section
	3543.2,
	and
	specifically
	with
	respect 	to 	the
alteration
	of 	leave
	policies.
2.
	Denying
	the
	California
	School
	Employees
	Association
	its
right
	to 	represent 	unit
	members	
by	
failing
	and
	refusing 	to
	meet
and	
negotiate 	about 	matters 	within 	the 	scope
	of 	representation.
3. 	Interfering
	with 	employees 	because 	of 	their 	exercise
their 	right 	to 	select
	an
	exclusive 	representative 	to 	meet 	and
21

negotiate
	with 	the
	employer
	on
	their
	behalf
	by
	unilaterally
changing
	matters
	within 	the
	scope
	of
	representation
	without
meeting
	and
	negotiating
	with 	the
	exclusive
	representative.
4.
	Interfering
	with
	employees
	because
	of
	their
	exercise 	of
their 	right
	to
	participate
	in
	the
	activities
	of
	an
	employee
organization
	by
	threatening
	to
	suspend
	an 	employee
organization's
	rights,
	guaranteed 	to
	them 	by
	the
	EERA,
	if
	the
organization
	advocated
	that
	its
	members
	participate
	in
	a
sick-out
	or
	other
	form
	of
	work
	stoppage.
B.
	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED
	TO
EFFECTUATE 	THE PURPOSES 	OF THE 	EERA:
1.
	Rescind
	the
	unilateral
	changes
	in 	the
	leave
	policies
and
	return
	to 	the
	status
	quo
	ante 	in
	effect
	in 	that
	area
	prior
to 	the
	illegal 	unilateral
	change
	unless
	and
	until
	the
	parties
exhaust 	the
	statutory
	impasse
	procedures
	or
	agree
	otherwise
	by
their
	adoption
	of
	a
	negotiating
	agreement.
2. 	Subject 	to 	the
	right
	to
	require
	verification 	outlined
earlier
	in
	this 	decision,
	make
	the 	affected
	employees 	whole 	by
paying
	them
	the
	wages
	{i.e.,
	sick
	leave) 	they
	would 	have
received
	had
	the
	unilateral
	changes
	referred 	to
	above
	not
	been
made,
	plus
	interest 	at
	the 	rate 	of
	seven 	(7)
	percent
	per
	annum.
3.
	Rescind 	Resolution
	No.
	17,
	adopted
	April 	1,
	1979.
4.
	Within
	five
	(5) 	days
	of 	the 	date 	of 	this
	proposed
dee 	ion 	becomes 	f i 	,
	post 	at 	school
	s
	s,
	and 	o 	r
work
	locations
	where
	notices 	to 	employees 	customarily 	are
22

placed,
	copies
	of
	the
	notice 	attached
	as
	Appendix
	2.
	Such
posting
	shall
	be
	maintained 	for
	a
	period
	of
	thirty
	(30)
consecutive
	work
	days.
	Reasonable
	steps
	shall
	be
	taken
	to
ensure
	that
	said 	notices
	are 	not
	altered,
	defaced 	or 	covered
	by
any
	other
	material.
5.
	At
	the
	end
	of
	the
	posting 	period,
	notify
	the
	Los
Angeles 	Regional
	Director 	of
	the
	Public
	Employment
	Relations
Board,
	in
	writing, 	of
	the
	action
	taken 	to
	comply
	with
	this
order.
It
	is 	further
	ordered
	that
	the 	alleged
	violations
	of
section
	3543.5(a)
	and 	(b)
	which
	refer
	to 	the
	payment
	of
increased
	wages
	to
	substitutes
	and
	substitute
	bus
	drivers
	are
hereby
	dismissed.
Pursuant
	to
	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	April
	7,
	1980
	unless
	a
	party
	files
	a
timely 	statement
	of
	exceptions.
	See
	California 	Administrative
Code,
	title
	8,
	part
	III,
	section
	32300. 	Such
	statement
	of
exceptions
	and
	supporting
	brief
	must 	be
	actually
	received
	by
the 	Executive
	Assistant
	to 	the
	Board
	at
	the 	headquarters
	office
of 	the 	Public
	Employment
	Relations
	Board
	in
	Sacramento
	before
the 	close 	of 	business
	(5:00 	p.m.)
	on
	April
	7, 	1980
	in 	order 	to
be
	timely
	filed.
	See
	California Administrative
	Code,
	title
	8,
part
	III,
	section
	32 	Any
	statement 	except
23

supporting
	brief
	must
	be
	served
	concurrently
	with
	its
	filing
upon
	each
	party
	to
	this
	proceeding. 	Proof
	of
	service
	shall
	be
filed
	with
	the
	Board
	itself.
	See
	California
	Administrative
Code,
	title
	8,
	part
	III,
	sections
	32300 	and
	32305,
	as
	amended.
Dated:
	March
	18,
	1980
Bruce
	Barsook, 	Hearing
	Officer
24

APPENDIX
	1
BEFORE
	THE
	BOARD
	OF
	EDUCATION
OF
	THE 	BARSTOW
	UNIFIED
	SCHOOL
	DISTRICT
Resolution
	#17
	1978-79
WHEREAS,
	this
	Board
	finds
	that
	there 	is
	reasonable
	cause 	to
believe
	that
	a
	substantial
	number
	of
	classified
	employees
	are
about
	to
	become
	engaged
	in
	a
	strike,
	work
	slow
	down,
	sick
	in,
or
	work
	stoppage
	against
	the
	Barstow
	Unified
	School
	District
and
	that
	great
	and
	irreparable
	damage
	will 	result
	therefrom
	to
the
	schools
	and
	pupils
	of
	said
	district
	unless 	the
	provisionsof
	this
	resolution
	are
	made
	effective
	immediately;
NOW,
	THEREFORE,
	BE
	IT
	RESOLVED 	AS
	FOLLOWS:
1. 	Effective
	immediately,
	all
	classified
	employee
	absences
must
	be
	substantiated
	by
	written
	proof
	of
	the
	need
	for
	the
leave.	
Pay	
will
	not
	be
	granted 	for
	leaves 	of
	absence
	of
	anykind
	unless 	the
	employee
	worked
	or
	was
	validly
	excused
	fromwork
	both
	the
	work 	day
	before 	the
	absence
	and
	the
	work
	day
after
	the 	absence.
a)
	Sick
	Leave
	-
	Classified
	employees
	requesting
	pay
	for
sick
	leave
	must 	complete
	a
	signed
	affidavit
	of
	illness
	and
provide
	a
	doctor's
	certificate
	of
	illness.
	Both 	documents 	mustbe
	in
	a 	form
	approved 	by	
the
	district
	superintendent
	and
	be
presented 	to 	the
	district
	by
	April
	11, 	1979.
b)
	Personal 	Necessity
	Leave 	- 	Employees
	requesting
personal 	necessity
	leave
	must 	do 	so
	in
	advance,
	in
	writing,
	and
must
	receive 	permission 	to 	take 	the 	leave
	from
	their
supervisor.
	In 	the 	event 	of
	an 	emergency 	where
	advance
	notice
cannot
	be
	obtained, 	the
	employee 	must 	complete
	a
	signed
affidavit
	in
	form
	approved 	by 	the 	school
	district
superintendent
	and
	present 	written
	documentation
	of 	the
personal 	necessity
	as 	required 	by	
him.
	During
	the 	period 	of
	a
strike,
	work
	stoppage,
	work 	slow 	down, 	walk
	out 	or
	sick 	in,
personal 	necessity 	leaves
	wi
	only
	be 	allowed 	emergency
reasons 	as 	defined 	in 	the 	Education
	Code.
c)
	Other 	Leaves 	-
	Permission 	to 	take 	other 	leaves
	must 	be
received 	in
	advance 	the 	leave.
	No
	personal
	aves 	11 	be
granted 	except 	for
	emergency
	reasons, 	with 	prior 	approval.
d)
	Unauthorized 	Leave 	-
25

1)
	Unauthorized
	leave
	is
	defined
	as 	non-performance
	of
those
	duties
	and
	responsibilities
	assigned
	by
	the
	district
	and
its
	representatives
	including
	all
	duties
	and
	responsibilities
as
	defined
	by
	the 	Education
	Code,
	rules
	and
	regulations 	of
	the
State
	Board
	of
	Education
	Code,
	rules
	and
	regulations
	of 	the
Board
	of
	Education
	of 	the
	Barstow
Unified
	School
	District.
Such
	unauthorized 	leave
	may
	include 	but
	is
	not
	limited
	to
collective 	refusals
	to 	provide
	service,
	unauthorized
	use
	of
sick
	leave,
	unauthorized
	use
	of 	other 	leave
	benefits,
non-attendance
	at
	required
	meetings
	and
	failure
	to 	perform
supervisory 	functions
	at
	school 	sponsored
	activities.
2)
	An
	employee
	is
	deemed
	to
	be
	on
	unauthorized
	leave
at	
such	
time
	and 	on
	such
	occasions
	as 	the
	employee
	may
	absenthimself
	from
	required
	duties.
3)
	Unauthorized 	leave
	shall 	constitute
	a
	breach
	ofcontract
	and,
	therefore,
	may
	result
	in
	the
	initiat
dismissal
	procedures,
	loss
	of
	salary
	or 	such
	disciplinary 	action
as
	may 	be 	deemed
	appropriate.
4)
	Beginning
	on
	the
	first
	day
	of
	unauthorized
	leave,
no
	warrant
	shall
	be 	drawn
	in 	favor
	of
	any 	employee
	for 	the
	days
which
	he/she
	has
	not
	faithfully
	performed
	all
	duties 	prescribed.
2.
	Each
	single
	day
	of 	unauthorized 	leave
	is
	deemed
	to
	be
	a
distinct
	and
	separate
	willful 	refusal
	to
	perform
	regular
assignments 	without 	reasonable 	cause
	in
	violation
	of
	both
	theEducation
	Code 	and 	Board
	rules
	and
	regulations.
3.
	Throughout
	the 	period 	of
	any
	strike,
	work
	slow 	down,
sick 	in,
	work
	stoppage 	or 	walk-out, 	the
	district
	superintendent
is
	authorized 	to
	hire
	such
	substitute 	classified
	employees
	in
compliance 	with
	and
	pursuant 	to
	all
	applicable
	laws 	as 	he 	deems
necessary
	and
	to
	pay 	them
	in
	accordance 	with 	the 	attached
emergency
	substitute 	classified
	employee
	schedule,
	E-1
	[not
included].
	The
	superintendent
	shall
	be
	authorized 	to
	pay
	forthe 	cost 	of 	obtaining
	substitute
	bus
	drivers
	according 	to 	the
attached 	schedule,
	E-2
	[not
	included].
4. 	In 	the 	event
	any 	employee
	organization
	engages
	in
	anyi
	egal
	activity
	against 	this
	school
	district
	or 	encou
	sits
members
	to
	engage
	in
	strikes,
	withholding 	of 	services,unauthorized 	shortened 	days,
	sick-in, 	professional
	days, 	or 	any
other
	euphemism
	for 	withholding 	of 	contract 	services
	from
	this
school
	district,
	the 	rights
	and
	leges 	previously 	extend
to 	the 	organization 	by 	this
	Boa 	may
	termi
5. 	Suspension 	of
	Employee
	Organization 	Privileges.
	Any
employee
	organization
	which 	urges
	its
	members
	to 	participate 	in
26

a 	work
	stoppage
	or
	any
	other
	activity
	as
	outlined
	above
	shall
have
	its
	privileges
	as
	a
	verified
	employee
	organization
withdrawn
	including
	but
	not
	limited
	to:
a) 	Use
	of
	school
	district
	mail
	service.
b) 	Use
	of 	school
	district
	bulletin
	boards.
c) 	use
	of
	school
	district
	telephone
	facilities
	for
	employee
organization
	purposes.
d) 	Use
	of
	school
	district
	premises 	for
	meeting
	purposes.
e}	
Privilege 	of
	employee
	organization
	officers
	and
representatives
	to
	visit
	school
	sites
	or
	property 	other
	than
where
	regularly
	assigned.
f)	
Fringe
	benefit
	payment.
g)	
Professional 	organization 	deduction.
6.
	The
	district
	superintendent
	or
	his 	designee
	shall
	be
the 	only
	district
	employee
	authorized 	to
	close
	any
	school
facility.
	Such
	facility
	will
	only
	be
	closed
	when
	in 	the
opinion 	of
	the
	district
	superintendent
	or
	his
	designee 	the
health
	or
	safety
	of 	students
	or
	staff
	is
	in 	jeopardy.
7.
	The
	district
	superintendent
	or
	his
	designee
	shall
	have
the
	authority
	to 	take
	such 	immediate 	emergency
	steps
	as 	he
deems
	necessary 	to
	insure 	the 	physical
	and
	educational 	wellbeing
	of 	the 	students
	of 	the
	Barstow
	Unified
	School
	District.
The
	superintendent
	shall
	also
	have
	full
	authority
	to 	take 	such
steps
	as
	he
	deems
	necessary 	to 	insure
	and
	protect
	the 	physical
well 	being
	of
	all
	employees
	of 	the
	Barstow
	Unified
	School
District,
	as 	well 	as
	all
	properties
	owned 	by
	the
	District
	and
supervised
	by
	this
	Board 	or
	its
	agents.
8.
	Employment
	of
	Legal 	Counsel. 	Following 	the
	provisions
of
	Education
	Code
	Section
	35041.5, 	the	
superintendent 	ofschools
	is 	authorized 	to
	employ 	a
	private 	attorney	
and
	obtainsupplementary
	County Counsel
	services 	for 	the 	purposes
	ofadvising 	the
	board	
of	
education
	and
	dealing
	with 	the	
employee
strike.
9.
	The 	County Counsel
	of 	the
	County
	of
	San
	Bernardino
and/or 	special
	counsel
	employed 	by
	the 	school
	district
	arehereby 	authorized
	and
	directed
	upon
	prior 	approval 	by 	the
district
	superintendent
	or
	his 	designee 	to 	take
	all
	necessary
legal 	action 	to 	prevent 	or 	terminate 	the 	withholding 	of
contract 	services
	by 	employees
	of 	this 	school
	district
	and
	to
27

incur 	on 	behalf 	of 	the 	district 	such 	expenses 	as 	are 	necessary
in 	pursuit 	thereof.
BE 	IT 	FURTHER RESOLVED 	AS 	FOLLOWS:
1. 	Effective 	immediately, 	all 	classified 	employees may 	be
worked 	out 	of 	classification 	without 	prior 	approval. 	When 	a
classified 	employee 	is 	working 	out 	of 	classification, 	the
supervisor 	shall 	notify 	the 	Classified 	Personnel 	Director 	who
shall 	ensure 	that 	all 	Personnel 	Commission 	rules 	and
regulations 	are 	met 	with 	regards 	to 	compensation 	for 	the
employees.
2. 	Personnel Commission 	form 	108 	shall 	be 	completed 	for
all 	employees 	who 	are 	required 	to 	work 	out 	of 	their 	assigned
classification 	for 	more 	than 	five 	(5) 	working 	days 	in 	any
fifteen 	(15) 	calendar 	day 	period.
3. 	The 	Board 	hereby 	suspends 	the 	minimum 	qualifications,
in 	compliance 	with 	and 	pursuant 	to 	the 	rules 	and 	regulations 	of
the 	Personnel Commission 	for 	hiring 	of 	classified 	employees
except 	in 	those 	classifications 	having 	requirements 	mandated 	by
law.
BE 	IT 	FURTHER RESOLVED 	that 	the 	provisions 	of 	this
resolution 	shall 	prevail 	over 	any 	pre-existing 	prov1s1ons 	of
policies, 	rules 	or 	regulations 	of 	this 	school 	district 	to 	the
contrary, 	and 	if 	any 	section, 	sentence, 	clause 	or 	phrase 	of
this 	resolution 	is 	for 	any 	reason 	held 	by 	a 	court 	of 	competent
jurisdiction 	to 	be 	invalid, 	such 	decision 	shall 	not 	affect 	the
validity 	of 	the 	remaining 	portions 	of 	this 	resolution.
BE 	IT 	FURTHER RESOLVED 	that 	this 	resolution 	is 	an 	urgency
measure 	within 	the 	meaning 	of 	Policy# 	Pl004 	of 	the 	Policies 	of
the 	Bar stow Unified 	School 	District, 	and 	is 	necessary 	for 	the
immediate 	welfare 	of 	the 	schools 	and 	the 	pupils 	thereof.
Consequently, 	this 	Resolution 	shall 	become 	effective
immediately 	upon 	the 	adoption 	hereof, 	and 	shall 	remain 	in
effect 	until 	repealed 	except 	as 	otherwise 	stated 	herein.
Adopted 	this 	1st 	day 	of 	April 	1979.
BOARD OF 	TRUSTEES
BARSTOW UNIFIED SCHOOL 	DISTRICT
28

APPENDIX 	2
NOTICE 	TO 	CLASSIFIED 	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-474-78/79
in 	which 	all 	parties 	had 	the 	right 	to 	participate, 	it 	has 	been
found 	that 	the 	Barstow Unified 	School 	District 	has 	violated
section 	3543.S(c) 	of 	the 	Educational 	Employment 	Relations 	Act
(EERA) 	by 	refusing 	or 	failing 	to 	meet 	and 	negotiate 	with 	the
California 	School 	Employees 	Association 	by 	taking 	unilateral
action 	in 	April 	1979 	with 	respect 	to 	the 	alteration 	of 	leave
policies.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	violated
section 	3543.S(b) 	of 	the 	EERA 	since 	it 	interfered 	with 	the
right 	of 	CSEA 	to 	represent 	its 	members.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	interfered
with 	negotiating 	unit 	members' 	right 	to 	be 	represented 	by 	their
exclusive 	representative, 	thus 	constituting 	a 	violation 	of
section 	3543.S(a) 	of 	the 	EERA.
It 	has 	also 	been 	found 	that 	the 	District, 	by 	threatening 	to
suspend 	an 	employee 	organization's 	rights, 	guaranteed 	to 	them
by 	the 	EERA, 	if 	the 	organization 	advocated 	that 	its 	members
participate 	in 	a 	sick-out 	or 	other 	form 	of 	work 	stoppage
interfered 	with 	employees 	because 	of 	their 	exercise 	of 	their
right 	to 	participate 	in 	the 	activities 	of 	an 	employee
organization, 	thus 	const 	uting 	a 	violation 	of 	section
3543.S(a) 	of 	the 	EERA.
As 	a 	result 	of 	this 	conduct, 	we 	have 	been 	ordered 	to 	post
th is 	Notice, 	and 	we 	wi 11 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	ng 	and 	refusing 	to 	meet 	a 	tiate 	good
faith 	with 	the 	exclusive 	representative 	by 	taking 	unilateral
action 	on 	matters 	within 	the 	scope 	of 	representation, 	as
defined 	by 	section 	3543.2, 	and 	specifically 	with 	respect 	to 	the
alte 	ion 	of 	leave 	po 	cies.
2. 	Denying 	e 	California School Employees 	Associat 	its
right 	to 	represent 	unit 	members 	by 	failing 	and 	refusing 	to 	meet
and 	negotiate 	about 	matters 	within 	the 	scope 	of 	representation.
29

3. 	Interfering 	with 	employees 	because 	of 	their 	exercise 	of
their 	right 	to 	select 	an 	exclusive 	representative 	to 	meet 	and
negotiate 	with 	the 	employer 	on 	their 	behalf 	by 	unilaterally
changing 	matters 	within 	the 	scope 	of 	representation 	without
meeting 	and 	negotiating 	with 	the 	exclusive 	representative.
4. 	Interfering 	with 	employees 	because 	of 	their 	exercise 	of
their 	right 	to 	participate 	in 	the 	activities 	of 	an 	employee
organization 	by 	threatening 	to 	suspend 	an 	employee
organization's 	rights, 	guaranteed 	to 	them 	by 	the 	EERA, 	if 	the
organization 	advocated 	that 	its 	members 	participate 	in 	a
sick-out 	or 	other 	form 	of 	work 	stoppage.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE 	ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE POLICIES 	OF THE 	EERA:
1. 	Revoke 	the 	unilateral 	changes 	in 	the 	leave 	policies 	and
return 	to 	the 	status 	quo 	ante 	in 	effect 	in 	that 	area 	prior 	to
the 	illegal 	unilateral 	change 	unless 	and 	until 	the 	parties
exhaust 	the 	statutory 	impasse 	procedures 	or 	agree otherwise 	by
their 	adoption 	of 	a 	negotiating 	agreement.
2. 	Subject 	to 	the 	right 	to 	require 	verification 	as
outlined 	in 	the 	hearing 	officer's 	decision, 	make 	the 	affected
employees 	whole 	by 	paying 	them 	the 	wages 	(i.e., 	sick 	leave)
they 	would 	have 	received 	had 	the 	unilateral 	changes 	referred 	to
above 	not 	been made, 	plus 	interest 	at 	the 	rate 	of 	seven 	(7)
percent per 	annum.
3. 	Rescind 	Resolution No. 	17, 	adopted 	April 	1, 	1979.
DATED: BARSTOW UNIFIED 	SCHOOL DISTRICT
B Super in tendent
y--------.--,--~____,,------
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT MUST 	REMAIN 	POSTED 	FOR 	THIRTY
(30) 	CONSE 	WORK 	DAYS 	FROM THE DATE OF 	AND 	MUST
NOT 	BE 	DEFACED, 	AUrERED OR COVERED BY ANY MATERIAL.
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