Moreno Valley Unified School District (PERB 1106E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 410,
Charging 	Party,
v.
MORENO VALLEY UNIFIED SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3345
PERB Decision No. 	1106
May 	19, 	1995
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Appearances: 	California School 	Employees Association by Arnie 	R.
Braafladt, 	Attorney, 	for California School 	Employees Association
and 	its 	Chapter 410; 	O'Melveny and Myers by Todd R. 	Wolffson,
Attorney, 	for Moreno Valley Unified School 	District.
Before Blair, 	Chair; 	Garcia and Johnson, 	Members.
DECISION
BLAIR, 	Chair: 	This 	case 	is before the Public Employment
Relations Board 	(PERB or Board) 	on exceptions 	filed by the
Moreno Valley Unified School 	District 	(District) 	to 	the proposed
decision 	(attached) 	of a PERB administrative law judge 	(ALJ).
In his decision, 	the ALJ found that 	the District violated
section 3543.5(a), 	(b) 	and 	(c) 	of the Educational Employment
Relations Act 	(EERA)1 when it unilaterally changed the 	shift
1EERA is 	codified at 	Government 	Code 	section 	3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	Section 3543.5 	states, 	in pertinent
part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(a) 	Impose 	or threaten to 	impose 	reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise

hours 	of 	two custodians.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	exceptions 	and 	the 	response 	thereto 	filed by 	the
California 	School 	Employees Association and 	its 	Chapter 	410.
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.
DISCUSSION
Among 	the 	exceptions 	raised on appeal,2 the District
contends 	that 	the ALJ failed to 	consider 	that 	the parties'
collective bargaining agreement 	(CBA) 	authorizes 	it 	to transfer
employees. 	The District argues 	that 	the 	change 	in the 	two
custodian's 	shift 	assignments 	from day to night was 	a 	"transfer"
between shifts.
Article 	18 of the parties' 	CBA defines a transfer as 	"a
movement 	of 	a bargaining unit member 	from one position 	or work
site 	to another, 	. . . " 	The 	two custodians 	in question were not
to interfere with, 	restrain, 	or coerce
employees because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse 	or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive 	representative.
2The ALJ properly addressed 	the 	remainder 	of 	the 	issues 	the
District 	raises on appeal. 	Therefore, 	it 	is unnecessary for the
Board to 	restate 	these arguments.
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reassigned 	to 	different 	work 	sites 	and 	there 	is 	no 	indication
that 	they were placed 	in another position 	or 	classification.
Therefore, 	the District's 	contention that 	the 	change 	in the
custodian's 	shift 	assignments 	was 	a 	transfer is 	rejected,
ORDER
Based upon 	the 	findings 	of 	fact 	and 	conclusions 	of 	law,
and the entire 	record in this 	case, 	the Board finds 	that 	the
Moreno Valley Unified School 	District 	(District) 	violated 	the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b) 	and 	(c), 	by its unilateral change of the
shift 	assignments 	of Manuel Mojarro 	(Mojarro) 	and Caroline Gunns
(Gunns), 	and by its 	refusal 	to negotiate the shift 	changes with
the 	California 	School 	Employees Association and 	its 	Chapter 	410
(CSEA).
Pursuant to EERA section 3541.5 (c), 	it 	is hereby ordered
that 	the District, 	its governing board and its 	representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with CSEA, 	the 	exclusive 	representative 	of 	the District's
classified employees, 	by unilaterally 	changing 	shift 	assignments
of employees.
2. 	Refusing to negotiate 	shift 	changes 	of bargaining
unit 	employees 	upon CSEA's 	demand.
3. 	Denying CSEA rights 	guaranteed by EERA, 	including
the right 	to 	represent 	its members.
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4. 	Interfering with employees 	in the 	exercise 	of 	their
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Rescind the unilateral 	change of 	shift assignment
policy 	insofar as 	it 	applies 	to 	incumbent 	employees.
2. 	Upon CSEA's 	request, 	immediately meet and negotiate
with 	CSEA regarding 	involuntary 	shift 	reassignments.
3. 	Upon CSEA's 	request, 	return custodians Mojarro and
Gunns 	to 	the 	shift 	assignments 	they held prior 	to March 	1993.
4. 	Within thirty-five 	(35) 	days 	following the date
this Decision 	is 	no longer subject 	to reconsideration, 	post 	at
all 	work 	locations 	where notices 	to 	employees 	are 	customarily
place, 	copies 	of 	the Notice attached hereto as 	an Appendix. 	The
Notice must 	be 	signed by an authorized agent 	for 	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
insure that 	the Notice is not 	reduced in size, 	defaced, 	altered
or 	covered with any 	other material.
5. 	Written notification of 	the actions 	taken to 	comply
with 	this 	Order shall 	be made 	to 	the 	San Francisco Regional
Director 	of 	the 	Public 	Employment 	Relations 	Board 	in accordance
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with the Director's 	instructions. 	All 	reports 	to the Regional
Director 	shall 	be 	served 	concurrently 	on 	the 	charging party
herein.
Member Johnson 	joined 	in 	this 	Decision.
Member Garcia's 	concurrence 	and dissent 	begins 	on page 	6.
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GARCIA, 	Member, 	concurring and dissenting: 	I 	concur with
the portion 	of 	the majority opinion affirming a violation 	of
Educational 	Employment Relations Act 	(EERA) 	section 3543.5(b)
and 	(c). 	However, 	I dissent 	from that part of the majority
opinion which affirms a violation of EERA section 3543.5(a). 	The
employees were not parties 	in interest 	to the 	charge, 	complaint
or hearing.
The 	record does 	not 	show that 	the 	employees 	objected 	to 	the
changes 	in their assignments 	or schedules 	or that 	they sought 	the
California 	School 	Employees Association and 	its 	Chapter 410's
(CSEA) 	representation and it was denied. 	There 	is no evidence 	in
the record that 	shows a violation of 	employee 	rights. 	To the
contrary, 	since 	the 	case was 	essentially a contract
interpretation dispute 	that 	was 	not 	deferred to 	the 	grievance
agreement,1 the 	record shows 	that 	CSEA protected only 	its
interests 	before 	the 	Public 	Employment 	Relations 	Board.
1The 	regional 	attorney denied 	the Moreno Valley Unified
School District's 	(District) 	motion to dismiss 	and defer to the
contractual 	grievance procedure 	on 	the 	ground 	that 	CSEA had no
standing as 	a grievant. 	In the District's brief 	in support 	of
exceptions, 	it 	states 	that 	the District 	offered to submit 	the
case to arbitration, 	but CSEA refused. 	Whatever the reason, 	the
case was 	not 	submitted to 	the 	contractual 	grievance procedure.
Although 	individual 	employees 	have 	standing 	to 	file 	grievances
under the 	contract, 	the 	record contains 	no evidence 	that 	any such
grievance was 	filed by the 	employees.
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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-3345,
California 	School 	Employees Association and 	its 	Chapter 410 	v.
Moreno Valley Unified School 	District, 	in which all 	parties
had the 	right 	to participate, 	it has been found that 	the
Moreno Valley Unified School 	District 	(District) 	violated 	the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b) 	and 	(c). 	The District violated EERA by
unilaterally 	reassigning unit members 	to different 	work 	shifts.
As a result 	of 	this 	conduct, 	we have been ordered to post
this 	Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing 	to negotiate 	in good 	faith
with 	the 	California 	School 	Employees Association and 	its 	Chapter
410 	(CSEA), 	the exclusive representative of the District's
classified 	employees, 	by unilaterally 	changing 	shift 	assignments
of employees.
2. 	Refusing 	to negotiate 	shift 	changes 	of bargaining
unit 	employees 	upon CSEA's 	demand.
3. 	Denying CSEA rights 	guaranteed by EERA, 	including
the 	right 	to represent 	its members.
4. 	Interfering with employees 	in the 	exercise 	of 	their
rights 	guaranteed by EERA, 	including 	the 	right 	to be 	represented
by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Rescind the unilateral 	change 	of 	shift 	assignment
policy 	insofar as 	it 	applies 	to 	incumbent 	employees.
2. 	Upon CSEA's 	request, 	immediately meet and negotiate
with 	CSEA regarding 	involuntary 	shift 	reassignments.

3. 	Upon CSEA's request, 	return custodians Manuel
Mojarro 	and Caroline Gunns 	to 	the 	shift 	assignments 	they held
prior 	to March 	1993.
Dated: 	MORENO 	VALLEY UNIFIED 	SCHOOL
DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF 	POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH
ANY OTHER MATERIAL.
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STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER 410,
Charging 	Party,
v.
MORENO VALLEY UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Unfair Practice
Case No. 	LA-CE-3345
PROPOSED DECISION
(10/17/94)
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Appearances: 	California 	School 	Employees Association by Daniel
Torres, 	Jr., 	Labor Relations Representative, 	for California
School 	Employees Association and 	its 	Chapter 410; 	O'Melveny 	&
Myers, 	by Todd R. 	Wulffson, 	for Moreno Valley Unified School
District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
The 	California 	School 	Employees 	Association and 	its 	Chapter
410 	(CSEA) 	filed this unfair practice 	charge on September 1,
1993. 	After investigation, 	and on December 31, 	1993, 	the deputy
general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	issued a 	complaint 	against 	the Moreno Valley Unified
School District 	(District). 	The 	complaint 	alleged the District
violated section 3543.5(a), 	(b) 	and 	(c) 	of the Educational
Employment 	Relations Act 	(EERA or Act) 	from the 	following
conduct.1 It was 	alleged that before March of 	1993, 	custodian
1The Act 	commences with section 3540 	of 	the Government 	Code.
All 	statutory references 	are 	to the Government 	Code, 	unless
otherwise noted. 	Section 3543.5 	provides 	in pertinent part 	that
it 	shall 	be unlawful 	for a public 	school 	employer to:
(a) 	Impose or threaten to 	impose 	reprisals
on employees, 	to discriminate 	or threaten to
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.

shift 	hours 	were 	determined on a voluntary basis, 	and the
District's policy was 	to have 	some 	custodians 	work the day shift.
The 	complaint 	alleged 	this 	policy was 	changed 	in March 	of 	1993 	by
reassigning a number of 	custodians 	from day to 	evenings.
Specifically it was 	alleged that Manuel Mojarro's 	(Mojarro) 	hours
were 	changed 	to 	the 	evening 	shift 	and 	Caroline 	Gunns'(Gunns)
hours 	were 	changed to 	12:00 	p.m. 	to 	8:30 	p.m. 	This 	change was
alleged 	to have been done 	without 	notice 	to 	CSEA or affording
CSEA an opportunity 	to negotiate 	the 	decision 	to 	implement 	the
change or the effects 	of 	the 	change 	in policy. 	The complaint
alleged 	further violations 	of 	the Act 	in 	that 	on March 	10 	and
again April 	29, 	1993, 	CSEA requested that 	the District 	return to
the 	status 	quo until negotiations 	concluded in agreement, 	and
that 	the District 	refused both 	requests. 	The District's 	refusal
to bargain 	the 	shift 	change was 	alleged 	to be a 	further violation
of EERA section 3543.5(a), 	(b) 	and (c) .
discriminate against 	employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their exercise 	of 	rights
guaranteed by this 	chapter. 	For purposes 	of
this 	subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
(b) 	Deny to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
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The District's answer, 	filed on January 31, 	1994, 	made
admissions 	and 	denials 	and 	raised affirmative 	defenses 	that 	will
be 	referenced 	in other parts 	of 	this proposed decision.2
A PERB 	conducted 	settlement 	conference 	did not 	resolve 	the
dispute.
Formal hearing was held on June 30, 	1994, 	in Los Angeles.
The parties 	filed post hearing briefs, 	and the matter was
submitted on August 12, 	1994.
FINDINGS 	OF 	FACT
CSEA is 	the 	exclusive 	representative 	of 	an appropriate unit
of 	employees, 	including custodians within the meaning of 	EERA.
The District 	is 	a public 	school 	employer within 	the meaning 	of
the Act.
By 	resolution adopted 	in February 	1992, 	the District 	laid
off 	six custodians 	effective 	the 	end of March 	1992.
Mojarro 	is 	a 	custodian 	for the District at 	the Butterfield
Elementary School, 	where, 	since 1988, 	he has been assigned the
shift 	of 	6:30 	a.m to 3:00 	p.m.3 On March 	17, 	1993, 	the District
caused a 	change 	in Mojarro's workday. 	His 	new work 	time was
2:30 p.m. 	to 	11:00 p.m. 	The 	reasons 	stated on the 	change 	form,
2Included 	in 	the District 	defenses 	was 	the 	assertion 	that
the 	dispute was 	subject 	to 	final 	and binding arbitration and
should be 	deferred. 	This 	assertion was made during 	PERB's
investigation of 	the unfair practice 	charge 	and was 	rejected by
the 	regional 	attorney on 	the 	grounds 	that 	CSEA did not 	have 	the
right 	to 	grieve 	the 	shift 	change. 	The 	regional 	attorney relied
upon Inglewood Unified School District 	(1991) 	PERB Order No. 	Ad-
222. 	The deferral 	defense 	is 	rejected upon the 	same ground.
3Many 	of 	the 	facts 	set 	forth hereafter were by 	stipulation
of the parties.
33

was 	"due 	to program needs, 	employee's 	hours have been changed to
the 	evening shift. 	Employee 	is 	therefore now eligible 	for the 	9%
shift 	differential 	pay."
Caroline Gunns 	(Gunns), 	a custodian at Valley View High
School 	since 	1991, 	worked the 	8:30 	a.m. 	to 5:00 p.m. 	shift.
Gunns was notified on March 26, 	1993,4 that her route assignment
and hours were 	to be 	changed effective March 1, 	1993. 	Her new
hours were 	12:00 p.m. 	to 	8:30 	p.m. 	The 	reason 	for the 	change was
stated:
This 	change 	is 	required due 	to the 	loss 	of 	a
half 	custodian and 	the 	addition of 	new
portables 	to our campus. 	The work load 	is
much heavier 	in 	the 	afternoon/evening 	than 	it
formally was prior to 	these 	changes.
Both Mojarro and Gunns, 	received the 	contractual
entitlement 	of 	9 	percent 	shift 	differential 	pay upon their
reassignment.
Prior notice 	of 	either action was 	not 	given 	to 	CSEA.
CSEA wrote 	to 	the District 	on March 	10 	complaining 	that 	the
District 	had 	changed 	the 	shift 	assignment 	of 	three 	custodians
from day 	to night 	without 	notice 	to 	CSEA or 	the 	opportunity 	for
CSEA to negotiate 	over the 	decision or 	its 	effects.5 CSEA
demanded 	that 	the District 	cease 	and desist 	such action and
return to 	the 	status 	quo until 	the parties 	reached agreement
through negotiations.
4A11 	calendar references are to 1993, 	unless noted
otherwise.
5There 	is no evidence 	of 	a third shift 	change. 	The
complaint 	noted only 	the 	two named employees, 	Mojarro and Gunns
4

The District, 	through Patricia Hogan-Newsome 	(Newsome),
responded on April 	20. 	Newsome wrote:
I 	direct 	your attention 	to Article 	3 	of 	the
Collective Bargaining Agreement, 	which
provides 	that 	the District 	has 	the 	"exclusive
right and power to discontinue, 	in whole 	or
in part, 	temporarily or permanently, 	without
further bargaining 	as 	to 	the 	decision or 	the
effects 	thereof. 	. . . 	to determine 	the
method, 	means, 	and services provided, 	to
determine 	the 	staffing patterns 	and 	the
number and kinds of personnel required, 	. 	. 	.
to assign . 	. 	. employees." 	. 	. 	.
CSEA responded on April 	29 	and cited Article 	3 	in part 	by
stating:
Let me 	direct 	your attention 	to Article 	3 	of
the 	Collective 	bargaining Agreement 	which
states 	in pertinent part: 	"All matters 	not
within the 	scope 	of 	representation as 	set
forth in the Government 	Code, 	Section 3543.2,
or not 	limited by the 	express 	terms 	of 	this
Agreement, 	are 	reserved by the District."
CSEA noted 	that 	section 	3543.2 	provides 	in part 	that 	the
"scope 	of 	representation 	shall 	be 	limited 	to matters 	relating 	to
wages, 	hours 	of 	employment 	and other terms and conditions 	of
employment."
CSEA further 	cited Article 	13 	which provides:
A classified 	employee 	shall 	be 	given 	annual
notice 	of 	his/her assignment 	for 	the
forthcoming year by July 	1. 	In the 	event
that 	changes 	in such assignment 	are proposed,
the 	employee 	affected 	shall 	be 	notified
promptly. 	Any 	change 	shall 	be 	in accordance
with applicable 	law.
The District 	responded on May 	10. 	It 	cited provisions 	of
the 	collective bargaining agreement 	giving 	the District 	the 	right
to 	"'determine 	the 	staffing patterns 	and 	the number and kinds 	of
55

personnel 	required' 	without bargaining about 	either 	the decision
or 	the 	effects 	of 	the 	decision to 	change 	such staffing patterns."
The District went 	on to 	state:
Moreover, 	the District has 	the 	right 	to move
"a bargaining unit 	member 	from one position
or work site to another" 	in order 	"to
establish 	or maintain necessary 	capabilities
at any school." 	See Agreement, 	Article 3 	and
18. 	While we do not agree 	that 	shift 	changes
are 	transfers 	and/or subject 	to Article 	18 	of
the Agreement, 	the District has 	in fact
complied with Article 	18 	(and all 	other
applicable sections 	of 	the Agreement) 	in
making 	changes 	of 	shift 	assignments.
Thus, 	on two occasions 	of CSEA's 	request 	to bargain the
change 	in shift assignments, 	the District 	refused.
Article 	3 	of 	the agreement provides 	in part:
Section 1. 	All matters not within the 	scope
of 	representation as 	set 	forth 	in 	the
Government Code, 	Section 3543.2, 	or not
limited by 	the 	express 	terms 	of 	this
Agreement, 	are 	reserved by the District.
Except 	as 	limited by the 	express 	terms 	of
this Agreement, 	it 	is agreed that such
reserved rights 	include, 	but are not 	limited
to 	the 	exclusive 	right 	and power 	to
discontinue, 	in whole or in part, 	temporarily
or permanently, 	without 	further bargaining as
to the decision or the effects 	thereof, 	any
of 	the 	following: 	the Board's 	sole right 	to
manage 	the District 	and direct 	the work of
its employees, 	to determine the method,
means, 	and services provided, 	to determine
the 	staffing patterns 	and 	the 	number and
kinds 	of personnel 	required, 	to determine 	the
assignment 	goals, 	objectives and performance
standards, 	to decide on the building,
location, 	or modification of a facility, 	to
determine 	the 	budget 	and methods 	of 	raising
revenue, 	to subcontract work or operations
except where 	expressly 	forbidden by law, 	to
maintain order and efficiency, 	to hire,
assign, 	to evaluate, promote, 	discipline,
discharge 	for cause, 	layoff 	for lack of work
or lack of 	funds, 	and transfer employees.
6
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The 	foregoing 	rights 	of management are not
intended to be an all 	inclusive 	list, 	but 	do
indicate 	the 	type 	of matters 	which are
inherent 	to management.
Article 	18 	defines 	transfers as:
. 	. 	. 	a movement of a bargaining unit
employee 	from one position or work site 	to
another, 	but shall not 	include any
redistribution 	of 	work 	consistent 	with
Article 	14, 	Subsection 	( 1 ) . . . .
The 	District 	has 	never moved an 	employee 	involuntarily 	from
one 	shift 	to another. 	All 	previous vacancies 	have been 	filled by
inside promotions, 	voluntary transfers, 	or new hire employees.
The 	1992 	lay off 	of 	employees 	and the need 	for 	reallocation
of 	custodial 	resources at particular school 	sites 	in 	1993 	was
unprecedented.
Charles 	Sheppard, 	CSEA representative, 	testified that at a
reopener negotiations 	session where 	some 	changes 	to Article 	18 	on
transfers 	were 	negotiated 	there 	may have 	been 	conceptual
discussions 	of 	shift 	changes, 	although no proposals were made.
At 	the 	time 	he believed 	that 	shift 	changes 	could be 	a 	form of
transfer.
ISSUES
The 	issues 	in this 	case are: 	1) 	whether the District's
unilateral 	alteration of 	the work 	shift 	of Mojarro and Gunns 	was
a violation 	of 	its 	duty 	to bargain 	in good 	faith 	required by 	the
EERA; 	and 2) 	whether the District violated 	its 	obligation to
negotiate 	in good 	faith by 	its 	refusal 	to negotiate 	the 	shift
changes 	of 	the 	two 	custodians?
77

CONCLUSIONS 	OF 	LAW
An 	employer's 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment within the 	scope 	of 	representation is, 	absent a valid
defense, 	a per se 	refusal 	to negotiate and violative 	of 	EERA
section 3543.5(c). 	(Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that
(1) 	the employer breached or altered the party's written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or an
opportunity to bargain over the change; 	(3) 	the change 	is not
merely an 	isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of 	policy 	(i.e., 	having a generalized effect 	or 	continuing
impact upon bargaining unit members' 	terms and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196 	(Grant); 	Pajaro
Valley Unified School District, 	supra. 	PERB Decision No. 	51;
Davis Unified School District, 	et al. 	(1980) 	PERB Decision
No. 	116.)
Reviewing the 	forgoing 	criteria 	in reverse order, 	it 	is 	not
disputed that hours 	of work, 	including the time 	of 	day the hours
are 	to be worked, 	are negotiable. 	A change 	in hours 	occurs when
there 	is a change 	in work shift, 	and such is negotiable. 	(Los
88

Angeles 	Community College District 	(1982) 	PERB Decision No. 	252
(Los Angeles).)
The 	reassignment 	of Mojarro 	and Gunns 	to 	different 	shifts
was 	a permanent 	change, 	having a generalized and 	continuing
impact upon 	their terms 	and 	conditions 	of 	employment. 	The 	fact
that 	only 	two 	employees 	were 	affected does 	not mitigate 	against
this 	finding. 	(Jamestown Elementary School District 	(199 0) 	PERB
Decision No. 	795.)
The 	record 	is 	undisputed 	that 	the District 	did not 	give
notice 	to 	CSEA of 	its 	intent 	and execution of 	the 	reassignment
order to Mojarro and Gunns. 	Indeed, 	after demand by CSEA, 	the
District 	refused 	to 	negotiate 	the 	ordered 	changes.
The District's 	first 	line 	of 	defense 	is waiver by CSEA of
the 	right 	to negotiate the 	shift 	change.
A waiver of 	the 	right 	to bargain a matter within 	the 	scope
of 	negotiations must be 	"clear and unmistakable." 	The 	evidence
must 	indicate an 	intentional 	relinquishment 	of 	the union's
rights. 	(Amador Valley Joint 	Union High School 	District 	(1978)
PERB Decision No. 	74; 	San Francisco Community College District
(1979) 	PERB Decision No. 	105.) 	Contract 	terms will not 	justify a
unilateral 	management 	act 	on a mandatory 	subject 	of 	bargaining
unless 	the 	contract 	expressly 	or by necessary 	implication 	confers
such a right. 	(Los Angeles.)
The District 	argues 	that 	the management 	rights 	clause
(Article 	3) 	grants 	it 	full 	authority to direct 	the work of 	its
employees, 	to determine 	the 	staffing patterns and the number and
99

kinds 	of personnel 	required, 	and to assign employees. 	Therefore,
it has 	the right, 	without bargaining, 	to assign employees 	to
particular shifts 	and to move 	them to different 	shifts 	if 	the
need arises, 	especially 	if 	the health and safety of 	the 	students
is 	the 	reason for the 	reassignment.
The 	District 	contends 	that 	the 	right 	to determine 	"staffing
patterns" 	cannot 	have 	any 	reasonable 	interpretation other 	than
allowing 	the District 	to 	determine 	how many employees 	will 	work
at a particular school 	site, 	how many shifts 	there will be at 	a
site, 	and how many employees will 	work each 	shift.
In making 	these arguments, 	the District 	stretches 	conceded
powers 	to 	cover 	the 	issue at 	hand. 	Staffing patterns 	no doubt
includes 	the number of employees 	at a particular site, 	the number
of 	shifts 	and the 	number of 	employees 	on each shift. 	Staffing
pattern determinations are managerial prerogatives, 	not 	subject
to negotiations with CSEA. 	Such determinations, 	however, 	do not
embrace 	changes 	of 	the 	shift 	of 	individual 	employees 	once 	the
initial 	assignment has been made by 	the 	employer. 	The 	right 	to
set 	staffing patterns 	is 	not 	a 	clear and unmistakable waiver of
the 	right 	to negotiate shift 	changes.
The 	District 	relies 	heavily 	on 	CSEA witness's 	testimony 	that
agreed 	that 	the 	District 	had 	the 	right 	to 	initially assign 	shifts
to employees. 	Such agreement, 	contrary to the District's
argument, 	does not 	constitute 	concurrence 	in the District's
authority to 	change a shift assignment, 	once 	it has been made.
That 	is 	the question in this 	case.
10

The 	right 	to 	"assign" 	employees 	does not 	carry with it 	the
inherent 	right 	to 	change 	a 	shift 	assignment 	after 	it 	has 	been
made. 	There 	is no 	evidence offered by the District, 	other than
its assertion, 	that 	the 	right 	to 	"assign" 	employees 	includes 	the
right 	to 	change 	the 	shift assignment 	of an employee. 	There 	is 	no
evidence 	of 	what 	the parties meant 	by the 	term 	"assign," 	when 	it
was 	negotiated.
The right 	to assign employees, 	within Article 3, 	does not
constitute 	a 	clear and unmistakable waiver of 	CSEA's 	right 	to
negotiate about 	changes 	in employees 	shifts, 	once 	they are
assigned a 	shift.6
The District 	also argues 	that 	it 	has 	authority 	for 	shift
changes 	from Article 	13, 	section 1, 	which provides 	that 	"[i]n the
event 	that 	changes 	in such assignment are proposed, 	the employee
affected 	shall 	be 	notified promptly." 	Here 	the 	affected
employees were notified promptly, 	and 	in accordance with section
9 	of Article 	13, 	they were paid the shift differential. 	Thus,
6See 	Independent Union of 	Public 	Service 	Employees 	v.
Sacramento County 	(1983) 	147 Cal.App.3d 482 	[195 Cal.Rptr. 	206].
There 	the management rights 	clause 	included 	the 	exclusive 	right
to assign its 	employees, 	however, 	the court 	found that possession
of 	the power to assign employees 	did not 	constitute 	a 	clear and
unmistakable 	relinquishment 	of 	the union's 	right 	to meet 	and
confer.
The 	court 	said:
. 	. 	. 	The power to 	"assign" 	employees is not
inconsistent 	with 	the meet 	and 	confer
requirement. 	As 	long as 	the County meets 	and
confers 	in good faith, 	it may assign 	its
employees 	however it 	sees 	fit.
11

urges 	the District, 	CSEA waived its 	right 	to negotiate 	shift
changes.
In Los Angeles, 	the District 	eliminated a 	custodian third
shift 	and transferred the 	incumbents, 	involuntarily, 	to a second
shift. 	This was done unilaterally, 	without notice 	to the
employee's 	exclusive 	representative. 	While 	there was 	no
management 	clause 	in the 	collective bargaining agreement, 	there
was 	a 	so 	called 	"zipper" 	clause and provisions 	for automatic pay
differentials 	for the 	second and third 	shifts. 	PERB held that
the 	absence 	of 	a management 	rights 	clause 	or provision 	expressly
reserving 	to 	the District 	the 	right 	to unilaterally 	change 	or
eliminate 	shifts 	did not 	give 	the District 	the 	right 	to 	eliminate
the 	third 	shift. 	Nor did 	PERB 	find 	such 	right 	necessarily
implied.
Article 	13 	appears 	to cover reassignment, 	but does not
clearly give 	the District 	the 	right 	to 	change 	shift 	assignments.
The Article mandates 	the District 	to 	give 	each 	classified
employee 	annual 	notice 	of 	his/her assignment by July 	1 	of 	each
year. 	Notice 	of proposed changes 	are 	to be 	given to affected
employees 	promptly. 	The 	section 	further provides 	that 	"[a]ny
change 	shall 	be 	in accordance with applicable 	law."
The 	provision 	expressly 	requires 	notice 	of 	proposed 	changes,
- -
not 	actual 	changes. 	The 	change 	itself must be done 	"in
accordance with applicable 	law." 	The applicable 	law is 	that
changes 	in shift 	assignment 	is 	a matter within 	the 	scope 	of
negotiations, 	and 	the 	employer must 	give notice 	and provide 	the
12

- -
exclusive 	representative 	with 	an 	opportunity 	to 	negotiate
proposed 	changes. 	(Los Angeles.)
Article 	13 	does 	not present 	a 	clear and unmistakable
expression of 	authority 	for 	the District 	to unilaterally make
shift 	changes after an assignment has been made. 	I 	conclude 	that
there 	is 	no waiver by CSEA of 	the 	right 	to negotiate 	changes 	in
shift 	assignment.7
The 	District 	further argues 	that 	charging party has 	failed
to meet 	the Grant 	requirement 	that 	there be 	shown a breach of 	an
established past practice 	or 	that 	the 	District's 	action would
have 	a 	generalized 	or 	continuing 	impact 	upon unit members 	terms
and conditions 	of 	employment. 	The 	second 	contention has 	already
been addressed 	in 	this discussion. 	There was 	a 	continuing 	impact
on Mojarro's and Gunns' 	hours 	of employment, 	from the 	time 	they
were 	reassigned 	the 	new 	shifts.
There 	is 	no past practice about 	involuntary shift 	changes.
All 	shift 	changes 	that 	took place before 	the District 	imposed
changes 	upon Mojarro 	and Gunns 	were 	accomplished by voluntary
transfers, 	promotions or new hires.
Thus, 	when the District did change Mojarro's 	and Gunns'
shifts, 	involuntarily, 	it 	instituted a new policy on shift
changes. 	The 	involuntary shift 	change was 	a policy never used
before, 	and a policy not 	the 	result 	of 	an agreement 	with CSEA.
7Charles 	Sheppard's 	failure 	to pursue amendments 	to 	enlarge
the 	application of 	the 	transfer provision does 	not 	constitute
waiver. 	(Beacon Piece Dyeing and Finishing Co. 	(1958) 	121 NLRB
953 	[42 LRRM 1489]; 	Los Angeles.)
13

The District 	unilaterally added a 	new policy 	in violation 	of 	its
duty to bargain in good faith. 	(See The Regents 	of 	the
University of California 	(1991) 	PERB Decision No. 	907-H.)
Inasmuch as 	the 	obligation 	to negotiate 	in good 	faith
includes 	the 	obligation to negotiate 	shift 	changes, 	the
employer's 	absolute 	refusal 	to negotiate 	the 	issue upon CSEA's
demands, 	constitutes a violation of EERA. 	(Sierra Joint
Community College District 	(1981) 	PERB Decision No. 	179.)
Here, 	CSEA demanded, 	on two separate occasions, 	to negotiate
the 	shift 	changes 	implemented by the District. 	The District
refused. 	The 	refusal was a violation of 	section 3543.5(c). 	This
same 	conduct 	also denied CSEA its' 	rights under EERA to 	represent
its members 	in violation of section 3543.5(b). 	In addition, 	the
conduct 	interfered with employee 	rights 	to be 	represented by
CSEA, 	a violation of section 3543.5(a).
CONCLUSIONS
Based upon the 	entire 	record in this 	case, 	it has been 	found
that 	the 	District 	breached 	its 	obligations 	under EERA to
negotiate 	with 	CSEA when 	it 	unilaterally 	changed 	the 	shift
assignments 	of Mojarro and Gunns.
As a result of 	this 	conduct, 	it 	is 	found that 	the District
violated section 3543.5(c). 	This 	conduct also 	interfered with
CSEA's 	right 	to 	represent 	its members 	in their employment
relations with the District 	in violation of 	section 3543.5(b).
In addition, 	the 	same 	conduct 	interfered with individual 	unit
members' 	rights 	to be 	represented by their 	chosen representative
14

in 	their 	employment 	relations with the District 	in violation of
section 3543.5(a).
Further, 	it has been found that 	the District violated the
EERA by 	its 	absolute 	refusal 	to bargain 	the 	change 	in 	shift
assignments. 	This 	refusal 	constitutes a violation of 	section
3543.5(c). 	Violation of section 3543.5(b) 	also occurred, 	as the
refusal 	denied CSEA its 	rights under EERA. 	Finally, 	the
District, 	by its 	refusal 	to negotiate the shift 	changes,
interfered with 	employee's 	right 	to 	be 	represented by 	CSEA,
violated section 3543.5(a).
REMEDY
PERB 	is 	empowered to 	issue 	a decision and 	order directing
the 	offending party 	to 	cease 	and desist 	from an unfair practice
and 	to 	take 	such affirmative 	action as 	will 	effectuate 	the
policies 	of 	EERA. 	(See 	section 3541.5(c).)
It 	is 	appropriate 	to 	order 	the District 	to 	cease and desist
from making unilateral 	changes 	on matters within 	the 	scope 	of
negotiations. 	It 	is appropriate 	in this 	case 	to order the
District 	to return to the 	status quo ante, 	the 	conditions
prevailing prior to its unlawful 	conduct. 	Here, 	the District
should be 	ordered 	to 	rescind any unilateral 	change 	of 	shift
policy, 	and at 	CSEA's 	request, 	return Mojarro and Gunns 	to the
shifts 	they held before 	the District's 	action. 	The District
should 	further be 	ordered 	to bargain with CSEA, 	upon CSEA's
request, 	any new policy on shift 	changes 	of 	incumbent 	employees.
15

Because 	the District 	has 	been 	found 	to 	have 	denied CSEA its
right 	to 	represent 	its bargaining unit 	employees, 	and to have
interfered with employees 	rights 	to be 	represented by CSEA, 	it 	is
also appropriate 	to 	order 	the District 	to 	cease 	and desist 	such
denial 	and 	interference.
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 	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 	(19 78)
PERB Decision No. 	69.)
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law, 	and the entire 	record in the 	case, 	the Moreno Valley Unified
School District 	(District) 	has been 	found to have violated the
Educational 	Employment Relations Act 	(Act), 	Government Code
section 3543.5 (a), 	(b) 	and 	(c), 	by its unilateral change of shift
assignments 	of Manuel Mojarro and Caroline Gunns, 	and by its
absolute 	refusal, 	upon the California School 	Employees
Association and 	its 	Chapter 410's 	(CSEA) 	demand to negotiate 	the
shift 	changes.
16

Pursuant 	to section 3541.5(c) 	of the Government Code, 	it 	is
hereby 	ordered 	that 	the 	District 	and 	its 	governing board and 	its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate 	in good
faith with 	CSEA as 	the 	exclusive 	representative 	of 	the District's
classified 	employees 	by unilaterally 	changing 	shift 	assignment 	of
employees.
2. 	Refusing, 	upon CSEA's demand, 	to negotiate shift
changes 	of 	bargaining unit 	employees.
3. 	By the 	same 	conduct, 	denying 	to CSEA rights
guaranteed by the Act, 	including 	the 	right 	to 	represent 	its
members.
4. 	Further, 	by the same conduct, 	interfering with
employees 	in 	the 	exercise 	of 	their rights 	guaranteed by the Act,
including 	the 	right 	to be 	represented by 	their 	chosen
representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE ACT:
1. 	Rescind the unilateral 	change 	of 	shift 	assignment
policy 	insofar as 	it 	applies 	to 	incumbent 	employees.
2. 	Upon CSEA's 	request, 	immediately meet 	and negotiate
with 	CSEA regarding 	involuntary 	shift 	reassignments.
3. 	Upon CSEA's 	request, 	return custodians Mojarro and
Gunns 	to 	the 	shift 	assignments 	they held prior to March 	1993.
4. 	Within ten 	(10) 	workdays of 	the 	service of a 	final
decision 	in this matter, 	post 	at 	all 	school 	sites and all 	work
17

locations 	where 	notices 	to 	employees 	are 	customarily placed,
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 	(3 0)
consecutive workdays. 	Reasonable 	steps 	shall 	be 	taken to ensure
that 	the Notice 	is not reduced in size, 	altered, 	defaced, 	or
covered by any 	other material.
5. 	Upon issuance of a final decision, 	submit written
notification 	of 	the 	action 	taken 	to 	comply with 	the 	Order 	to 	the
Sacramento Regional 	Director 	of 	the 	Public 	Employment 	Relations
Board 	in accord with 	the Regional 	Director's 	instruction. 	All
reports 	to 	the 	Regional 	Director 	shall 	be 	served 	concurrently 	on
the 	charging party herein.
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
2 0 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
18

than the 	last 	day set 	for 	filing 	. . . " 	(See 	Cal. 	Code 	of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	P r o c , 	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.)
Gary M. Gallery
Administrative Law Judge	Judge
19