Eastside Union School District (PERB 0937E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	EASTSIDE
CHAPTER NO. 	779,
Charging 	Party,
v.
EASTSIDE 	UNION SCHOOL DISTRICT,
Respondent.
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) 	Case No. LA-CE-3 101
PERB Decision 	No . 	937
June 2, 1992
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Appearances; 	Harry J. 	Gibbons, 	Staff Attorney, 	for California
School Employees Association and its 	Eastside Chapter No. 	779;
Wagner, 	Sisneros & Wagner by John J. 	Wagner, 	Attorney, 	for
Eastside 	Union School 	District.
Before Hesse, 	Chairperson, 	Camilli and Carlyle, 	Members.
DECISION
HESSE, 	Chairperson: 	This 	case is before the Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on 	exceptions 	filed by
the Eastside Union School 	District 	(District) 	to a PERB
administrative 	law judge's 	(ALJ) 	proposed decision 	(attached)
finding that the District violated 	section 3543.5(b) 	and 	(c) 	of
the Educational 	Employment Relations Act 	(EERA or Act).1 While
J1EERA 	is 	codified at Government Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 provides, 	in pertinent
part:
It 	shall be unlawful 	for a public 	school
employer to do 	any of 	the 	following:
(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.
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EERA

the ALJ 	found 	that 	the District's 	decision to 	contract 	out 	the
satellite 	food 	service 	at 	the Tierra Bonita 	School was 	not 	a
unilateral 	change 	in established policy, 	the ALJ 	found 	that 	the
District was 	obligated 	to 	meet 	and 	negotiate with 	the 	California
School Employees Association and 	its 	Eastside Chapter No. 	779
(CSEA or Association) 	about the 	contracting out of 	the unit work
as 	soon as 	CSEA demanded to negotiate.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the transcript, 	exhibits, 	proposed decision, 	District's
exceptions 	and the Association's 	responses 	thereto. 	The Board
finds 	the ALJ's 	findings 	of 	fact and conclusions 	of 	law to be
free of prejudicial 	error and adopts 	them as 	the decision of 	the
Board 	itself 	consistent with 	the 	following discussion.
DISCUSSION
The 	District's 	exceptions 	focus 	on the 	interpretation
of 	certain provisions 	of 	the 	collective 	bargaining 	agreement
(CBA). 	The District disagrees with the ALJ's 	finding that
subcontracting of 	bargaining unit work 	is 	not 	covered by 	the 	CBA.
The preface to Article XIX, 	District Rights, 	clearly 	states
that:
[a]11 	matters 	not 	specifically 	enumerated 	as
within the 	scope 	of 	negotiations
[representation] 	in Government Code 	Section
3543.2 	are 	reserved to the 	District.
This 	language is not ambiguous, 	but clearly states that only
out-of-scope matters 	are reserved to the 	District. 	PERB 	has 	held
that 	subcontracting of bargaining unit work 	is 	a 	negotiable
subject, 	within the 	scope of representation. 	(Oakland Unified
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School District 	(1983) 	PERB Decision No. 	367; 	State of California
(Dept, 	of Personnel Administration) 	(1986) 	PERB Decision No.
574-S; 	and Beverly Hills Unified School 	District 	(1990) 	PERB
Decision No. 	789.) 	As 	subcontracting of bargaining unit work is
a negotiable 	subject, 	the provisions 	in Article XIX do not
apply.2
Although 	section 	19.4 	states 	that the 	District may
subcontract services, 	including 	"education, 	support,
construction, 	maintenance, 	and repair services," 	this 	section is
limited by the 	introductory language 	in 	section 	19.0. 	Therefore,
this 	section must 	only 	refer to 	the 	subcontracting 	of 	services
not within the 	scope of 	representation.
The 	District also disagrees with 	the ALJ's 	interpretation of
the 	zipper clause 	in Article XXIV. 	The explicit, 	unambiguous
language of 	the 	zipper clause 	limits 	the parties' 	waiver of 	the
right 	to 	meet 	and 	negotiate 	over 	only 	the 	subject 	matter 	covered
by 	the CBA. 	As 	the 	subcontracting 	of bargaining unit work 	is 	not
covered by the CBA, 	the 	zipper clause 	is 	inapplicable.
Finally, 	the District 	asserts 	that the ALJ 	exceeded his
authority when he 	found 	a 	violation based 	on the 	District's
refusal 	to 	negotiate 	the 	subcontracting 	of 	bargaining unit work
upon CSEA's 	demand. 	This 	argument 	is without merit. 	Both the
unfair practice 	charge 	and 	complaint 	include 	an allegation that
the 	District refused to 	negotiate the decision to 	implement 	the
2There 	is 	also 	testimony by the CSEA negotiator that 	CSEA
did 	not 	intend that 	the 	District be 	able 	to unilaterally 	change
matters within the 	scope of 	representation.
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subcontracting of 	the 	satellite 	food 	service program 	and the
effects 	of this decision. 	Specifically, 	the unfair practice
charge 	states:
. . . . ..
Respondent 	violated 	Government 	Code 	Section
3543.5(c) 	when it failed to meet and
negotiate with 	the 	exclusive 	representative
the decision and the 	impacts 	of 	the decision
to contract out 	the work of 	food 	service 	for
the 	Tierra 	Bonita 	facility.
Paragraphs 	3, 	4 and 5 of the complaint state:
3. 	Before June 	17, 	1991, 	Respondent's policy
concerning 	food 	service work was 	that 	all
such work was 	performed by 	Respondent's 	own
classified 	employees.
4. 	On or about June 	17, 	1991, 	Respondent
changed 	this 	policy by 	contracting out 	food
service work at 	Tierra 	Bonita 	Elementary
School.
5. 	Respondent 	engaged 	in the 	conduct
described 	in paragraph 	4 without prior notice
to 	Charging Party 	and without 	having 	afforded
Charging 	Party 	an opportunity 	to 	negotiate
the decision to 	implement the 	change 	in
policy and/or the 	effects 	of 	the 	change 	in
policy.
Clearly, 	the District was put on notice that 	its 	refusal 	to
negotiate 	the decision and 	effects 	of 	its 	subcontracting of 	the
satellite 	food 	service program was 	to be 	litigated 	in the 	PERB
hearing. 	In its 	opening 	statement, 	the CSEA representative
stated that 	it would 	show that 	"the 	District 	acted unilaterally
when 	it 	failed 	to 	negotiate 	on a mandatory 	subject of bargaining,
specifically, 	the 	contracting out of bargaining unit work."
(Vol. 	I, 	p. 	4.) 	Further, 	during its opening statement and in
response 	to 	the ALJ, 	CSEA 	stated that 	its 	requested remedy
included 	a 	cease and desist order to prevent the 	District 	from
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contracting out bargaining unit work until 	the parties 	had an
opportunity 	to meet 	and negotiate 	as well 	as 	an order that 	the
District actually meet and negotiate. 	(Vol. 	I, 	p. 	3.) 	There was
also 	testimony regarding CSEA's 	demand to negotiate, 	and 	the 	lack
of any District response. 	(Vol. 	I, pp. 	55, 	118, 	133 and 135.)
As 	the unfair practice 	charge, 	complaint 	and testimony put the
District on notice 	that 	its 	refusal 	to meet 	and negotiate
concerning 	the 	contracting out 	of 	the 	satellite 	food 	service
program could constitute 	a violation of 	section 	3543.5(c) 	of
EERA, 	the District's 	exception is 	rejected.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire record in this 	case, 	the Board 	finds 	that the
Eastside 	Union School District violated 	section 	3543.5(c) 	of 	the
Educational 	Employment 	Relations Act. 	The 	District 	violated 	the
Act 	by refusing 	to meet 	and negotiate with 	the 	exclusive
representative 	about the contracting out of unit work, 	a matter
within the 	scope of 	representation. 	Because the action had 	the
additional 	effect 	of 	interfering with the right 	of 	the 	California
School Employees Association and 	its 	Eastside Chapter No. 	779 	to
represent its members, 	the refusal 	to negotiate also was 	a
violation of section 3543.5(b).
The 	allegation that 	the 	District's 	conduct 	violated 	section
3543.5(a) 	is hereby DISMISSED.
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Pursuant to 	section 3541.5(c) 	of the Government Code, 	it
hereby 	is 	ORDERED that the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and negotiate upon proper request
of 	the 	exclusive 	representative 	about 	the 	contracting 	out 	of 	unit
work, 	a matter within the 	scope of representation.
2. 	By the 	same conduct, 	interfering with the right of
CSEA to 	represent 	its members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Effective 	immediately upon service of 	a 	final
decision in this matter, 	meet and negotiate upon request of 	the
California 	School 	Employees 	Association and 	its 	Eastside 	Chapter
No. 	779 	about the 	subject of 	contracting out of unit work.
2. 	Within thirty five 	(35) 	days 	following the date
this 	Decision is 	no 	longer subject to reconsideration, 	post 	at
all work 	locations 	where 	notices 	to 	classified 	employees
customarily are posted, 	copies 	of 	the Notice attached hereto 	as
an appendix. 	The 	notice must be 	signed by an authorized 	agent 	of
the 	District, 	indicating 	that the District will 	comply with 	the
terms 	of 	this 	Order. 	Such posting 	shall be maintained 	for a
period of 	thirty 	(30) 	consecutive workdays. 	Reasonable 	steps
shall be taken to 	ensure that the Notice 	is 	not reduced 	in 	size,
altered, 	defaced or 	covered with any other material.
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3. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order 	shall be made 	to the 	Los Angeles 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accord with
the director's 	instructions.
Members 	Camilli 	and Carlyle 	joined 	in this 	Decision.
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APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State 	of 	California
After a hearing in Unfair Practice Case No. 	LA-CE-3101,
California 	School 	Employees 	Association and 	its 	Eastside 	Chapter
No. 	779 v. 	Eastside Union School District, 	in which all parties
had the right to participate, 	it has been found that the Eastside
Union School 	District 	(District) 	has 	violated 	section 	3543.5(b)
and 	(c) 	of the Educational Employment Relations Act 	(Act). 	The
District 	violated the Act by refusing to 	meet 	and negotiate 	upon
proper request 	of 	the California 	School 	Employees Association and
its Eastside Chapter No. 	779 	(CSEA) 	about the 	subcontracting of
unit work, 	a matter within the 	scope of representation.
As 	a result of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to meet and 	negotiate upon proper request
of 	the 	exclusive 	representative 	about 	the 	contracting out 	of 	unit
work, 	a matter within the 	scope of 	representation.
2. 	By the 	same 	conduct, 	interfering with the right of
CSEA to represent 	its members.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Effective immediately upon 	service of 	a 	final
decision in this 	matter, 	meet and negotiate upon request of 	the
California 	School 	Employees Association and 	its 	Eastside 	Chapter
No. 	779 	about the 	subject of 	contracting out of unit work.
Dated: 	EASTSIDE 	UNION SCHOOL 	DISTRICT
By: Authorized 	Representative
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 BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION 	and 	its 	EASTSIDE
CHAPTER No. 	779,
Charging 	Party,
v.
EASTSIDE 	UNION 	SCHOOL 	DISTRICT,
R e s p o n d e n t .
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) 	Unfair Practice
Case No. 	LA-CE-3101
PROPOSED 	DECISION
( 1 / 1 0 / 9 2 )
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Appearances: 	Jim Walker, 	Senior Field Representative, 	for the
California 	School 	Employees 	Association 	and 	its 	Eastside 	Chapter
No. 	779; 	Wagner, 	Sisneros & Wagner by John J. 	Wagner, 	Attorney,
for the 	Eastside 	Union School 	District.
Before Ronald E. 	Blubaugh, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union representing 	a 	unit 	of 	classified 	employees 	here
challenges 	a 	school 	district's 	decision to 	contract 	out 	the 	food
service program at a new school 	site. 	The union contends 	that
the 	employer was 	obligated 	to 	bargain with 	the 	union prior 	to
making 	the decision to 	contract 	out 	the work. 	The 	school
district 	replies 	that 	contracting 	out 	the 	food 	service 	program
was 	consistent with past practice 	and permissible 	under 	the
agreement between the parties.
The 	California 	School 	Employees 	Association 	and 	its 	Eastside
Chapter No. 	779 	(CSEA or Union) 	commenced this 	action on July 	1,
1991, 	by 	filing an unfair practice 	charge against the Eastside
Union School District 	(District). 	The general 	counsel 	of 	the
Public 	Employment 	Relations 	Board 	(PERB 	or Board) 	followed 	on
August 	9 with a 	complaint 	against the 	District.
This proposed decision has been appealed to the
Board itself and may not be cited as precedent
unless the decision and its rationale have been
adopted by the Board.

The 	complaint 	alleges 	that under the past practice 	all 	food
service work was 	performed by District 	employees. 	The 	complaint.,
alleges 	that on or about June 	17, 	1991, 	the District changed this
practice 	by 	contracting 	out 	the 	food 	service 	operation at 	the
Tierra 	Bonita 	School. 	This 	action was 	alleged to be 	in violation
of 	Educational 	Employment 	Relations Act 	(EERA) 	section 	3543.5(c)
and 	(a) 	and 	(b).1
The District answered the complaint on August 	15, 	1991,
denying 	any wrong-doing. 	A hearing was 	conducted 	in Van Nuys 	on
October 	30, 	1991. 	With the filing of briefs, 	the matter was
submitted for decision on December 26, 	1991.
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under the EERA.
CSEA, 	since its certification on June 4, 	1990, 	has been the
exclusive 	representative 	of 	a 	comprehensive unit 	of 	the
1Unless otherwise 	indicated, 	all 	statutory 	references 	are 	to
the Government Code. 	The EERA is 	codified at Government Code
section 3540 	et 	seq. 	In relevant part, 	section 3543.5 provides
as follows:
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 organizations 	rights
guaranteed 	to 	them by this 	chapter.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
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District's 	classified employees. 	The parties 	currently 	are
working 	under an 	initial 	agreement which 	extends 	from July 	1,
1990, 	through June 30, 	1993.2
There are three 	schools 	in the District, 	the Eastside
Elementary 	School 	and the 	Gifford C. 	Cole Middle 	School which 	are
on one campus 	(Eastside), 	and the Tierra Bonita School which 	is
on a 	site approximately 	seven miles 	away. 	Until 	the 	fall 	of
1991, 	all three 	schools were 	located on the Eastside campus.
For many years, 	the District has 	operated a 	full 	service
cafeteria 	at the 	Eastside 	campus. 	Food 	is 	both prepared and
served at 	the 	facility. 	When all 	three 	schools were 	located 	at
the 	same 	site, 	all 	District 	students were 	served by the
cafeteria. 	In recent years, 	the District has 	employed 	six 	food
service workers 	at Eastside. 	There continue to be 	six 	food
service workers 	at 	the 	Eastside 	cafeteria during 	the 	1991-92
school year.3
On August 	26, 	1991, 	the Tierra Bonita School was 	opened 	in
temporary buildings 	at the more distant 	site. 	The temporary
buildings 	have 	no 	kitchen or 	food preparation 	facilities.
2The 	effective date 	of 	the agreement was 	retroactive 	and 	it
is 	not 	clear 	from the record 	on which date 	the 	initial 	agreement
actually was 	entered. 	One page of 	the agreement 	is 	signed and
dated November 	1, 	1990. 	Two 	other pages 	are 	signed and dated 	in
March of 	1991.
3One 	food 	service worker was 	laid off 	at the 	end of 	the
1990-91 	school 	year as part of 	a budgetary problem apparently
unrelated 	to 	the 	contracting 	out 	at 	the 	Tierra 	Bonita 	School.
However, 	the worker was 	rehired in the fall of 	1991 	and, 	as of
the date 	of 	the hearing, 	continued to be 	employed at 	the Eastside
cafeteria.
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L. . . .
Students 	are 	served 	in a multi-purpose 	room where 	the 	only
food-related 	facilities 	are 	a 	chest 	to 	keep milk cool 	and 	a 	hot
line 	to 	keep 	food warm. 	A permanent 	facility 	for the 	Tierra
Bonita 	School 	is 	currently under 	construction on the 	same 	site 	as
the 	temporary buildings. 	The permanent 	facility 	is 	scheduled 	for
completion by the 	fall 	of 	1992.
The 	first public 	discussion of 	the possible 	contracting 	out
of 	food 	services 	took place at a May 	13, 	1991, 	meeting of the
District 	school 	board. 	A representative of 	the Antelope Valley
Union 	High 	School 	District 	appeared 	and 	described 	the 	services 	it
could provide 	in 	food preparation. 	After the presentation, 	CSEA
chapter 	President 	Judy 	Liebling 	told 	the 	school 	board 	that
contracting 	out 	food 	service would 	violate 	the 	agreement 	between
the 	District 	and CSEA. 	She 	asked 	that 	the 	subject be 	tabled 	so
CSEA 	could 	negotiate with 	the 	District 	about the 	issue. 	Her
request was 	declined by 	the president 	of 	the 	school 	board who
told her 	that CSEA 	could 	file 	a 	grievance 	if 	it believed 	the
District was 	violating the 	contract.
On May 	17, 	1991, 	District Superintendent Robert Wakeling
assembled the 	six 	cafeteria workers 	for 	a meeting. 	Kathy
Schwartz, 	a 	cafeteria worker who attended the meeting, 	quoted the
superintendent 	as 	telling 	them that 	they would be 	given 	the
opportunity 	"to prove" 	themselves 	by providing 	food 	service 	on a
trial 	basis 	for 	students 	at 	the 	relocated Tierra 	Bonita 	School
between August and December. 	Ms. 	Schwartz 	said the
superintendent 	said 	that 	"if we 	could prove 	that we 	could 	run
4
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both 	schools, 	that we would have Tierra Bonita." 	In order to
prove themselves, 	she said, 	they would have to 	serve 	food to both
schools 	on a 	self-supporting basis.
However, 	on or about June 5, 	1991, 	Ms. 	Schwartz 	saw and gave
to 	CSEA 	field 	representative 	Donna 	Lehto 	a 	newspaper 	article
which 	suggested 	that 	food 	service 	for 	Tierra 	Bonita 	might 	be
subcontracted, 	after all. 	The article 	stated that 	the 	District
was 	examining 	the possibility 	of 	contracting out 	the work 	to 	the
Antelope Valley Union High School 	District. 	On June 	7, 	the
superintendent 	again met with 	the 	food 	service workers 	and
confirmed what was 	in the 	article, 	telling them that 	food 	service
for 	Tierra 	Bonita would be provided by the 	high 	school 	district.
On June 	13, 	Ms. 	Lehto wrote a 	letter to Superintendent
Wakeling 	repeating CSEA's 	demand to 	negotiate 	about 	"the 	decision
and 	the 	impact" 	of 	contracting out 	food 	service 	for the 	Tierra
Bonita 	School. 	She 	asked that the proposed vote on the 	issue,
scheduled for June 	17, 	be tabled until 	after negotiations.
Ms. 	Lehto received no response 	from the 	District. 	She repeated
her demand at a 	school board meeting on June 	17. 	The 	school
board, 	however, 	rejected her request and voted to 	enter a
contract with 	the Antelope Valley 	District 	for 	food 	service 	at
Tierra 	Bonita.
Under 	the 	contract 	between 	the 	Eastside District 	and
Antelope Valley, 	Antelope Valley 	is paid a 	fixed price 	for
providing 	food 	service to 	students 	at 	the Tierra 	Bonita 	School.
Antelope Valley 	employees 	prepare 	the 	food 	at 	an Antelope Valley
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kitchen 	and 	transport 	the 	food 	in Antelope Valley 	food 	containers
carried 	on Antelope Valley vehicles. 	Employees 	of Antelope
Valley 	serve 	the 	food to 	the 	students 	at 	Tierra 	Bonita.
Leland Doughty, 	a member of 	the 	school board, 	testified that
the 	District 	contracted with Antelope Valley 	to 	avoid 	"tremendous
additional 	expenses." 	He 	said the 	District had 	never operated 	a
satellite 	food 	service program and 	did 	not have 	the 	vehicles 	or
equipment needed to deliver 	food to 	Tierra 	Bonita. 	He 	testified
that 	vehicles 	used 	for 	food delivery must 	contain 	expensive
containers 	to 	keep 	food 	sanitary and 	at 	a proper temperature.
Mr. 	Doughty testified that 	the 	school 	board 	concluded that 	the
expense 	of 	purchasing 	and 	equipping 	delivery vehicles 	was
prohibitive. 	For this reason, 	he 	said, 	the 	school board voted to
contract 	out with Antelope 	Valley which 	already 	had 	the 	vehicles
and 	equipment 	to 	operate 	a 	satellite 	food program.
The 	contracting out 	of 	classified 	employee work 	is 	not 	an
unprecedented 	event 	in the District. 	Mr. 	Doughty testified that
the 	District 	long has 	subcontracted 	certain types 	of work.
Typically, 	he 	said, 	the District has 	contracted out work
overloads 	beyond 	the 	ability 	of 	the 	existing 	staff 	to 	complete 	in
a timely manner, 	work that was 	beyond the 	skill 	level 	of 	the
staff, 	and work that would require 	equipment 	the 	District did not
possess.
1 . ...
He 	cited 	automotive 	repair work as 	an example 	of work that
is 	regularly 	contracted out 	at 	times 	of work overload. 	He 	said
that while 	District 	mechanics 	regularly 	repair vehicles,
6

including engines, 	this work will 	be 	contracted out 	if 	several
vehicles 	need major repairs 	at 	the 	same 	time. 	He 	said that
certain repairs 	are 	too 	important 	to wait until 	District
mechanics 	have 	time 	to perform them.
While 	District 	mechanics 	repair 	grass 	mowers 	and 	other
maintenance equipment, 	repair of these machines 	also 	is
contracted out 	if 	beyond 	the 	ability of 	mechanics. 	Similarly,
while 	District 	employees 	can do 	certain types 	of 	electrical work,
any 	substantial wiring 	or 	electrical 	jobs 	are 	routinely
contracted out. 	District 	employees perform minor repairs 	on air
conditioners 	but 	the District 	contracts 	out major 	repairs.
Work contracted out 	because 	of 	a 	lack of 	District 	equipment
has 	included the 	trimming of 	tall 	trees, 	large asphalt repair
jobs 	and deep trenching work. 	Mr. 	Doughty testified that 	the
District 	does 	not possess 	the 	lifts 	and 	saws 	needed 	for high 	tree
trimming. 	Nor does 	it have 	asphalt paving machines 	or trenchers.
He 	said 	the 	amount 	of use 	the 	District 	could give 	such 	equipment
does 	not 	justify the cost of 	a purchase.
Student 	transportation was 	contracted 	out 	long prior 	to 	the
time 	CSEA became 	the 	exclusive 	representative 	of 	classified
employees. 	In 	1984, 	the District contracted with the Antelope
Valley Transportation Agency 	to 	transport 	its 	students. 	The
District 	retained 	several 	mini-vans 	to 	transport 	students 	for
certain purposes, 	but the bulk of all 	student transportation
continues 	to 	be provided 	by 	the 	transportation agency.
7

The 	contract between the parties 	contains 	a 	reference 	to
subcontracting 	in the 	District Rights 	article.4
. . . 	The 	article 	is
composed of 	a preface 	followed by 	a 	series 	of 	specific 	clauses.
The preface 	and relevant 	clause 	read as 	follows:
19.0 	All 	matters 	not 	specifically 	enumerated
as within the 	scope of 	negotiations 	in
Government Code 	Section 	3543.2 	are reserved
to the District. 	It 	is 	agreed that 	such
reserved rights 	include, 	but are not 	limited
to, 	the exclusive right and power to
determine, implement, supplement, change,
modify, 	or discontinue 	in whole or in part,
temporarily or permanently, 	any of 	the
following:
19.4 	All 	services 	to be 	rendered to 	the
public 	and to 	District personnel 	in 	support
of the 	services 	rendered to the public, 	the
nature, methods, quality, quantity,
frequency, 	and standards of 	service, 	and the
personnel, facilities, vendors, supplies,
materials, 	vehicles, 	equipment, 	and tools to
be used 	in connection with 	such 	services, 	the
subcontracting 	of 	services 	to 	be 	rendered 	and
functions 	to be performed, 	including
education, 	support, construction,
maintenance, 	and repair services.
The 	contract was 	negotiated 	by 	CSEA 	field 	representative
Carol 	Finck 	and 	school 	board 	member 	Doughty.5 Both 	testified 	and
both 	agree 	about 	the origin of 	the 	District 	rights 	article. 	When
it was 	time 	for the parties 	to discuss 	District rights,
Mr. 	Doughty discovered that 	he had 	forgotten to 	bring his
proposal. 	He asked Ms. 	Finck if 	she happened to have with her a
4Article XIX.
5Mr. 	Doughty had been 	superintendent of 	the 	District 	from
1978 	through 	1981 	and had previously 	negotiated 	labor 	agreements
both 	at 	Eastside 	and 	other 	Southern California 	school 	districts.
8

copy 	of 	CSEA's 	contract with 	the Antelope Valley 	Union 	High
School 	District. 	She retrieved 	the 	contract 	from her 	automobile
and gave 	it 	to Mr. 	Doughty. 	He 	copied the relevant 	language and
submitted 	it as 	the 	District proposal.
Negotiating 	table 	discussion 	about 	the 	District 	rights
article was 	not 	lengthy. 	Ms. 	Finck testified that 	she noted the
reference to 	subcontracting 	and 	emphasized to Mr. 	Doughty 	that 	it
referred 	only to matters 	outside the 	scope 	of 	representation.
She quoted Mr. 	Doughty as 	saying the District had no 	intention of
subcontracting unit work. 	Mr. 	Doughty recalled that he read
through the 	District rights provision and asked Ms. 	Finck 	if 	she
had 	any questions 	about 	it. 	He 	quoted her as 	saying 	that 	she was
familiar with 	the Antelope Valley 	language 	and was 	comfortable
with 	it.
One 	other 	relevant provision 	is 	the 	entire 	agreement 	clause
of 	the contract.6 That clause reads 	as 	follows:
24.0 	This Agreement 	shall 	supersede 	any
rules, 	regulations 	or practices of the
District which 	shall 	be 	contrary 	or
inconsistent with 	its 	terms. 	The provisions
of the Agreement, 	shall be considered part of
the 	established policies 	of 	the 	District.
24.1 	This Agreement 	shall 	constitute 	the
full 	and 	complete 	commitment between both
parties 	and 	shall 	supersede 	and cancel 	all
previous 	agreements, 	both oral 	and written.
This Agreement may be altered, 	changed, 	added
to, 	deleted from, 	or modified only through
the voluntary, 	mutual consent of the parties,
in a written and 	signed 	amendment 	to 	this
Agreement.
6Article XXIV.
9

24.2 	It 	is 	agreed 	that during 	the 	term of
this Agreement, 	the parties waive and
relinquish the 	right 	to 	meet 	and 	negotiate
over 	the 	subject 	matter 	covered by 	this
Agreement. 	Nothing herein 	shall 	preclude 	the
parties 	from mutually 	agreeing 	to 	reopen
negotiations 	on any of these matters.
LEGAL 	ISSUE
Did 	the 	District unilaterally 	change 	the past practice
regarding 	the 	subcontracting 	of 	unit work and 	thereby 	fail 	to
meet 	and 	negotiate 	in good 	faith?
CONCLUSIONS 	OF 	LAW
It 	is well 	settled that 	an employer that makes 	a pre-impasse
unilateral 	change 	in an 	established, 	negotiable practice violates
its 	duty to meet and negotiate 	in good faith. 	(NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177].) 	Such unilateral changes are
inherently destructive of 	employee 	rights 	and are 	a 	failure per
se 	of 	the duty 	to 	negotiate 	in good 	faith. 	(Davis 	Unified 	School
District, 	et al. 	(1980) 	PERB Decision No. 	116; 	State of
California 	(Department of Transportation) 	(1983) 	PERB Decision
No. 	361-S.)
An 	established 	negotiable practice 	may be 	reflected 	in 	a
collective 	bargaining agreement 	(Grant 	Joint 	Union 	High 	School
District 	(1982) 	PERB Decision No. 	196) 	or where the agreement is
vague 	or ambiguous, 	it may be determined by an examination of
bargaining history 	(Colusa 	Unified 	School 	District 	(1983) 	PERB
Decision Nos. 	296 	and 296(a)) 	or the past practice 	(Rio Hondo
Community College District 	(1982) 	PERB Decision No. 	279; 	Pajaro
Valley Unified School District 	(1978) 	PERB Decision No. 	51).
10

An employer makes 	no unilateral 	change, 	however, 	where an
action the 	employer takes does 	not alter the 	status 	quo. 	"[T]he
'status 	quo' 	against which an employer's 	conduct 	is 	evaluated
must 	take 	into 	account 	the 	regular 	and 	consistent past patterns
of 	changes 	in the conditions 	of 	employment." 	(Pajaro Valley
Unified School District, 	supra, 	PERB Decision No. 	51.) 	Thus,
where 	an 	employer's 	action was 	consistent with 	the past practice,
no 	violation was 	found 	in a 	change 	that 	did not 	affect 	the 	status
quo. 	(Oak Grove School 	District 	(1985) 	PERB Decision No. 	503.)
The 	subject of 	this 	dispute, 	the 	contracting out of 	unit
work, 	has 	several 	times 	been found by the 	PERB to be a negotiable
subject.7 Where 	there has 	been a past practice 	of 	contracting
out, 	a 	challenged action will 	constitute 	a 	failure 	to negotiate
in good 	faith 	only 	if 	it 	"evinces 	a 	change 	in the 	quantity and
kind of subcontracting 	. 	. 	. 	and 	[thereby] 	constitutes a
unilateral 	change 	in 	established policy." 	(Oakland 	Unified
School District, 	supra. 	PERB Decision No. 	367.)
-
The 	Union argues 	that 	the 	District 	changed the past
practice. 	Previously, 	the Union argues, 	all 	food 	served 	in the
District was 	prepared by 	District 	employees. 	The 	Union 	argues
that 	the 	subcontracting of 	food 	service 	at 	Tierra 	Bonita was 	a
change 	in this 	status 	quo. 	The Union argues 	that 	its
representatives 	made 	three 	separate 	demands 	to 	meet 	and 	negotiate
7See Oakland Unified 	School 	District 	(1983) 	PERB 	Decision
No. 	3 67; 	State of California 	(Department of Personnel
Administration) 	(1986) 	PERB Decision No. 	574-S; 	Beverly Hills
Unified School District 	(1990) 	PERB Decision No. 	789.
11

about 	the 	change 	but were 	rebuffed 	on each occasion. 	Because 	the
District 	refused to negotiate, 	the 	Union concludes 	that 	the
District 	therefore 	failed 	to 	negotiate 	in good 	faith.
The 	District 	argues 	that 	the 	contracting 	out 	of 	food 	service
is 	permitted 	both by 	specific 	contract 	language 	and 	by 	the past
practice. 	The District rights 	article, 	which contains 	the
applicable contract 	language, 	authorizes 	the 	subcontracting of
certain 	specified 	activities 	"including 	education, 	support,
construction, 	maintenance 	and repair 	services." 	The past
practice, 	as the District 	sees 	it, 	permits the contracting out of
work 	District 	employees 	are 	unable 	to perform and work which
would require 	expensive 	equipment purchases. 	In 	the District's
view, 	this would 	include 	the 	satellite 	food 	service program.
Contrary to the District's 	argument, 	I 	do not 	find that the
negotiated 	agreement 	either prohibits 	or permits 	the 	contracting
out 	of 	unit work. 	The only 	contractual 	reference 	to 	contracting
out 	is 	in the District rights provision. 	This 	section, 	by 	its
introductory 	language, 	reserves 	to 	the District only those
"matters 	not 	specifically 	enumerated as 	within the 	scope 	of
negotiations 	in Government Code 	Section 	3543.2." 	Since
contracting 	out 	of 	unit work 	is 	by 	PERB decision a 	negotiable
subject, 	the 	contractual 	reference 	to 	subcontracting must be read
as 	a 	reservation of 	District 	rights 	to 	subcontract 	non-unit work.
The 	language that 	follows 	is 	a recitation of various 	examples 	of
out-of-scope, 	non-unit work that would ordinarily be 	reserved 	to
an employer, 	supporting the 	limited 	interpretation of 	the 	clause.
12

Similarly unhelpful 	is 	the 	entire agreement 	clause. 	This
section provides 	that 	specific 	contract provisions 	"shall
supersede any rules, 	regulations 	or practices 	of 	the District
which 	shall 	be 	contrary 	or 	inconsistent with 	its 	terms." 	But
since 	the 	contract 	contains 	no provision which 	establishes 	new
rules 	regarding the 	contracting out of unit work, 	the 	contract
cannot 	supersede 	the past practice.
Because the 	contract 	is 	silent on the 	issue 	of 	the
contracting out of unit work, 	the past practice here 	exists 	only
in the prior conduct 	in the District. 	The prior conduct 	in this
District 	is 	that 	the 	employer has 	contracted out work which would
require 	the purchase 	of 	expensive 	equipment 	if performed by
District 	employees.
The 	District 	had never previously operated 	a 	satellite 	food
service program. 	To begin one, 	the 	District would have been
required 	to purchase 	a 	vehicle 	and 	expensive 	equipment 	required
to 	keep 	food 	sanitary 	and 	at 	the proper 	temperature 	for
transport. 	The 	school board 	concluded that 	such an 	expense was
not 	justified. 	This 	decision was 	consistent with past 	District
practice 	to 	subcontract 	limited 	amounts 	of work to 	avoid
substantial 	capital outlays. 	The 	contracting out of 	the
satellite 	food 	service program resulted 	in no 	reduction 	in the
number of 	food 	service workers 	employed by 	the 	District.
The 	subcontracting 	of 	the 	satellite 	food 	service program did
not, 	therefore, 	constitute 	"a change in the quantity and kind of
subcontracting." 	For this 	reason, 	I 	conclude that the District's
13

decision to 	contract 	out 	the 	satellite 	food 	service 	to 	the 	Tierra
Bonita 	School was 	not a unilateral 	change 	in established policy.
Accordingly, 	no violation 	can be 	found on the 	theory that 	the
District 	made 	a unilateral 	change when 	it 	subcontracted the
satellite 	food 	service 	program.88
However, 	the 	conclusion that the 	District did not 	change 	the
past practice does 	not 	fully resolve the 	issues 	at dispute. 	It
is 	quite 	clear that the Union made 	three 	explicit demands 	to
negotiate about the 	subcontracting of unit work. 	Ordinarily, 	an
employer 	is 	relieved 	from 	the 	obligation 	to 	negotiate 	during 	the
contract 	term by 	an 	appropriately drawn 	zipper 	or 	entire
agreement 	clause. 	Although a 	zipper' clause will 	not allow an
employer to make unilateral 	changes, 	"it may provide 	the
privilege 	of 	maintaining 	existing policies 	for 	the 	term 	of 	the
contract." 	(Placentia Unified School 	District 	(1986) 	PERB
Decision No. 	595.) 	Such a 	clause can even protect the 	employer
from 	the 	obligation 	to 	negotiate 	about 	matters 	not 	discussed 	in
bargaining.9
But 	in order to 	insulate 	an employer 	from negotiations 	about
matters 	not discussed, 	a 	zipper clause must 	explicitly or by
implication waive the right 	to 	negotiate 	about 	all 	bargainable
8 This 	conclusion 	is 	based 	solely on the 	operation of 	a
satellite 	food 	service program at Tierra 	Bonita. 	It 	should 	not
be 	read 	as 	applicable to 	the 	subcontracting of 	food 	service 	at
any other District 	school 	or to 	the 	operation of 	any kitchen
constructed 	at Tierra Bonita 	as part of 	the permanent building.
9See Morris, 	The Developing Labor Law. 	1983, Vol. 	1, 	p. 	674
14
8

subjects.10 Plainly, 	it must do more than waive the right, 	as
here, 	"to meet 	and negotiate 	over the 	subject matter 	covered by
this Agreement." 	On its 	face, 	the 	clause 	in the contract between
these parties 	blocks 	mid-term 	negotiations 	only 	about 	matters
covered by its 	specific provisions. 	As 	noted above, 	the
subcontracting of unit work is 	not 	such a 	subject.
. 3 .
Accordingly, 	I 	conclude 	that the District was 	obligated to
meet 	and 	negotiate with 	the 	Union about 	the 	contracting 	out 	of
unit work as 	soon as 	the 	Union raised that demand. 	Because 	the
District 	refused, 	it 	failed to 	negotiate 	in good 	faith and
thereby violated EERA section 	3543.5(c). 	The District's 	failure
to 	negotiate 	in good 	faith also had the 	effect 	of denying 	the
Union the 	right 	to 	represent 	its 	members 	in violation of 	EERA
section 	3543.5(b). 	In the absence of a 	showing that the 	failure
to 	negotiate 	somehow impacted 	an 	individual 	unit member, 	the
alleged 	violation of 	section 	3543.5(a) 	must be dismissed.
REMEDY
The PERB in section 3541.5(c) 	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, 	including but not
limited 	to 	the 	reinstatement 	of 	employees
10See, 	for example, 	the zipper clause at issue in American
League of Professional Baseball Clubs 	(1978) 	Case No. 	4-CA-9586
[99 	LRRM 	1724] 	discussed 	in Morris 	at p. 	764. 	That 	zipper clause
provided:
The parties 	agree 	that 	they have bargained
fully with respect 	to 	all proper 	subjects 	of
collective 	bargaining 	and 	have 	settled 	all
such matters 	as 	set 	forth 	in this 	agreement.
15

with or without back pay, 	as will 	effectuate
the policies 	of this 	chapter.
This 	case presents 	unusual 	facts. 	The theory of 	the 	case
contained 	in 	the 	complaint 	and 	underlying 	unfair practice 	charge
is 	that of a unilateral 	change. 	In keeping with that theory, 	the
Union 	seeks 	an order that 	the 	District 	cease and desist 	the
subcontracting 	of 	the 	satellite 	food 	operation 	at 	the 	Tierra
Bonita 	School. 	But 	such an order is 	inappropriate because, 	as
found above, 	the District 	in 	subcontracting the 	satellite 	food
operation did not 	change 	the past practice. 	The 	District 	retains
the 	right 	to 	continue the past practice until 	such time 	as 	it may
be 	changed 	through 	agreement between the 	parties 	or 	the parties
complete 	the 	impasse 	resolution procedure.
Instead of 	a unilateral 	change, 	the violation is 	an unusual
finding 	that 	the 	employer 	failed 	to 	negotiate 	during 	the 	contract
term about 	the 	contracting out of 	unit work, 	a matter within the
scope 	of 	representation. 	A comprehensive 	zipper 	clause would
have 	excused 	the 	District 	from negotiating 	about 	the 	issue 	during
the 	life of 	the agreement. 	However, 	the 	zipper clause to which
these parties 	agreed does 	not preclude 	the 	exclusive
representative 	from demanding 	to 	negotiate 	about 	any 	negotiable
subject 	not 	covered by the 	agreement.
Accordingly, 	it 	is 	appropriate that the District be required
to meet 	and negotiate about 	the 	contracting out 	of 	unit work 	if
the 	Union requests 	it. 	During the 	course of the negotiations,
the 	past 	practice 	on 	the 	subcontracting 	of 	unit work will 	remain
in effect.
16

It 	is 	further 	appropriate 	that 	the 	District 	be directed 	to
post 	a notice 	incorporating the terms 	of the order. 	Posting of
such a 	notice, 	signed by an authorized agent of the District,
will 	provide 	employees with 	notice 	that 	the 	District has 	acted 	in
an unlawful 	manner, 	is 	being required to 	cease and desist 	from
this 	activity, 	and will 	comply with the order. 	It 	effectuates
the purposes 	of 	the 	EERA that 	employees 	be 	informed of 	the
resolution 	of 	this 	controversy 	and 	the 	District's 	readiness 	to
comply with 	the 	ordered 	remedy. 	(Placerville 	Union 	School
District 	(1978) 	PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the 	entire 	record in the 	case, 	it 	is 	found that the Eastside
Union School 	District violated 	section 	3543.5(c) 	of 	the
Educational 	Employment Relations Act. 	The 	District violated 	the
Act 	by 	refusing 	to 	meet 	and 	negotiate with 	the 	exclusive
representative 	about the 	contracting out 	of unit work, 	a matter
within the 	scope of 	representation. 	Because the 	action had 	the
additional 	effect 	of 	interfering with the 	right 	of 	the California
School 	Employees Association and 	its 	Eastside Chapter No. 	779 	to
represent 	its members, 	the refusal 	to negotiate also was 	a
violation of 	section 3543.5(b). 	The allegation that the
District's 	conduct violated 	section 	3543.5(a) 	is 	hereby
DISMISSED.
17

Pursuant to 	section 3541.5(c) 	of the Government Code, 	it
hereby 	is 	ORDERED that the District, 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND 	DESIST FROM:
1. 	Refusing 	to meet 	and 	negotiate upon proper 	request
of 	the 	exclusive 	representative 	about 	the 	contracting 	out 	of 	unit
work, 	a matter within the 	scope of representation.
2. 	By the same conduct, 	interfering with the right of
the Union to 	represent 	its 	members.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	POLICIES 	OF 	THE 	EDUCATIONAL 	EMPLOYMENT
RELATIONS ACT:
1. 	Effective 	immediately upon 	service of 	a 	final
decision in this 	matter, 	meet 	and negotiate upon request 	of 	the
California 	School 	Employees 	Association 	and 	its 	Eastside 	Chapter
No. 	779 	about the 	subject of 	contracting out of unit work.
2. 	Within ten 	(10) 	workdays 	of the 	service of 	a 	final
decision 	in this 	matter, 	post at all work locations where notices
to 	classified 	employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto 	as 	an Appendix. 	The Notice 	must be 	signed
by 	an authorized agent 	of 	the 	District, 	indicating that 	the
District will 	comply with the 	terms 	of 	this 	Order. 	Such posting
shall 	be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	ensure that 	the
Notice 	is 	not 	reduced in 	size, 	altered, 	defaced or covered with
any other material.
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3. 	Upon issuance of a 	final decision, 	make written
notification of 	the actions, taken to 	comply with the Order to the
Los Angeles 	Regional 	Director of 	the 	Public 	Employment 	Relations
Board 	in accord with 	the 	director's 	instructions.
r l . . .
Pursuant to California Code of Regulations, 	title 	8,
section 	32305, 	this 	Proposed Decision and Order 	shall 	become
final 	unless 	a party 	files 	a 	statement 	of 	exceptions 	with 	the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within 	20
days 	of 	service of 	this 	Decision. 	In accordance with PERB
Regulations, 	the 	statement of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before 	the 	close 	of 	business 	(5:00 	p.m.) 	on the
last day 	set 	for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United 	States 	mail, 	postmarked not 	later
than the 	last day 	set 	for 	filing 	. . . " 	(See Cal. 	Code of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc. 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on 	a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
Dated: 	January 	10, 	1992
Ronald E. 	Blubaugh
Administrative 	Law 	Judge
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