Los Rios Community College District (PERB 0499E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
LOS 	RIOS 	CLASSIFIED EMPLOYEES
ASSOCIATION. 	AFSCME LOCAL 	3149.
Charging 	Party.
v.
LOS RIOS 	COMMUNITY COLLEGE DISTRICT.
Respondent.
)
)
) 	Case No. 	S-CE-695
PERB Decision No. 	499
March 21, 1985
)
)
)
Appearances; 	Kathy Felch. 	Attorney for 	the Los Rios 	Classified
Employees Association. 	AFSCME Local 	3149; 	John L. 	Bukey,
General 	Counsel 	for 	the 	Los 	Rios 	Community College District.
Before Hesse, 	Chairperson; 	Jaeger and Burt, Members.
DECISION
BURT. 	Member: 	This 	case 	is 	before the Public Employment
Relations Board 	(PERB or 	Board) 	on exceptions 	filed 	by the
Los 	Rios 	Classified Employees Association, 	AFSCME 	Local 	3149
(Association or 	Charging Party) 	to 	the attached 	proposed decision
of an administrative 	law judge 	(ALJ), 	dismissing charges 	that 	the
Los 	Rios 	Community College District 	(District) 	violated 	section
3543.5(c) 	of 	the Educational Employment Relations Act 	(EERA)l
1The 	EERA 	is 	codified 	at 	Government 	Code 	section 	3540
et 	seq. 	All 	references 	are 	to 	the Government Code unless
otherwise 	indicated.
Section 3543.5 	provides, 	in relevant part:
It 	shall 	be unlawful 	for 	a 	public 	school
employer 	to:
)
)
'
)
_______________ )

by unilaterally altering 	the 	operating 	procedures 	of 	an
advisory 	board 	to 	review 	job 	classifications.
(c) 	Refuse or 	fail 	to meet and negotiate 	in
good 	faith with 	an 	exclusive 	representative.
The 	Board 	has 	carefully 	reviewed 	the 	entire 	record 	in 	this
case, 	and we affirm the ALJ's 	finding 	that 	there was 	no
violation for 	the 	reasons 	set 	forth below.
DISCUSSION
We 	find 	that 	the ALJ's 	findings 	of 	fact 	are 	free 	from
prejudicial 	error 	and we 	adopt 	them as 	the 	findings 	of 	the
Board 	itself.
The Association excepts, 	claiming 	that 	the 	conclusions
reached 	by 	the ALJ 	are 	not 	supported 	by 	the 	evidence 	and 	his
credibility 	resolutions 	are 	not 	adequately 	justified. 	It
excepts 	particularly 	to 	the ALJ's 	crediting 	the 	testimony of
John Bukey 	and 	Jimmy Mraule 	over 	that 	of 	Ann Lynch 	and
Warren Nelson 	regarding what was 	said 	at 	the March 	18 	meeting.
In Santa Clara Unified 	School District 	(9/26/79) 	PERB
Decision No. 	104, 	the Board 	considered 	the 	standard 	of 	review
applied 	to 	credibility determinations 	of 	its ALJs. 	It 	rejected
the 	suggestion 	that 	determinations 	rendered 	by 	the 	agency's
ALJs 	based 	on 	the 	observation of 	witnesses would 	be 	upheld 	and
affirmed unless 	such findings were 	"clearly erroneous." 	It
decided 	instead 	that.
N	
2

. 	. 	. 	while the Board will afford deference
to 	the 	hearing officer's 	findings 	of 	fact
which 	incorporate 	credibility 	determinations,
the 	Board 	is 	required 	to 	consider 	the 	entire
record, 	including 	the 	totality of 	testimony
offered, 	and 	is 	free 	to draw its 	own and
perhaps 	contrary 	inference 	from 	the 	evidence
presented.
See 	also Anaheim City School 	District 	(5/14/84) 	PERB Decision
No. 364a.
Here 	the ALJ 	considered 	testimony 	of 	all 	four 	witnesses 	who
were 	participants 	to 	the March 18 	meeting, 	and 	concluded 	that
Bukey had 	indeed 	remarked 	that 	voting might 	be 	necessary 	to
resolve 	conflicts 	in the decision making 	of 	the 	review board.
In 	so 	concluding, 	the ALJ 	considered 	the 	conflicting 	testimony
in 	light 	of 	the 	history of 	negotiations 	between the 	parties.
While 	he 	found 	that 	Bukey 	initially mentioned 	decision making
by consensus, 	he found as well 	that 	the 	negotiations 	had
progressed 	considerably 	by 	the 	time 	of 	the March 	18 	meeting
when agreement was 	reached. 	The ALJ 	relied 	on Bukey's 	direct
testimony about what was 	said 	and 	on 	the 	notes 	taken by
Mraule. 	While Mraule 	testified 	that 	she 	did not 	know exactly
who 	typed 	the 	notes 	or 	exactly when, 	she 	testified 	that 	they
were 	a 	typed version of 	her 	own notes, 	typed within a 	day of
the meeting, 	with minor 	corrections 	by her 	to make 	sure 	they
were 	accurate. 	She also 	testified 	that when the 	issue was
raised 	at 	the 	first 	review board meeting, 	she 	indicated 	that
she 	did 	not 	interpret 	the 	negotiations 	to 	require 	consensus.
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We 	find 	the ALJ's 	findings 	of 	fact here, 	based 	on his
credibility resolutions 	and 	the record as a whole, 	are entitled
to the deference contemplated 	by Santa Clara, 	supra, 	and we
reject 	the 	Association's 	argument 	that 	the ALJ's conclusions
are 	illogical 	in 	light of 	the 	record. 	There 	is 	ample 	evidence
in 	the 	record 	to conclude 	that, 	while 	the Association may have
wished 	to obtain agreement 	to 	a consensus 	voting procedure, 	no
such agreement was 	reached. 	In the 	absence of 	a change 	in an
established 	policy 	embodied 	in 	the 	contract 	or 	evident 	by 	past
practice, 	an unlawful unilateral change will not be 	found.
Grant 	Joint Union High 	School 	District 	(2/26/82) 	PERB Decision
No. 196.
The Charging 	Party 	further 	excepts 	to 	the ALJ's decision,
claiming 	that 	the 	ALJ 	erred 	in 	finding 	that 	the 	Association
waived 	its 	right to negotiate, 	arguing 	that there 	is no duty to
request 	negotiations 	after 	an unlawful 	unilateral change. 	As
noted above, 	however, 	we 	find that no unilateral change
occurred. 	Further, 	the Association mischaracterizes 	the
finding 	of 	the ALJ. 	He 	did not 	find 	that 	the Association
waived 	its 	right to negotiate, 	but rather 	that 	there was no
refusal on 	the District's part.
ORDER
The 	unfair practice charges 	in Case No. 	S-CE-695 	are
DISMISSED.
Chairperson Hesse 	and Member 	Jaeger 	joined 	in 	this 	Decision.
44

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS 	RIOS 	CLASSIFIED EMPLOYEES
ASSOCIATION, 	AFSCME, 	LOCAL 	3149,
Charging 	Party,
v.
LOS 	RIOS 	COMMUNITY COLLEGE DISTRICT,
Respondent.
)
)
) 	Unfair 	Practice
Case No. 	S-CE-695
PROPOSED 	DECISION
(6/5/84)
)
•
(
)
)
)
)
)
)
Appearances: 	Kathy Felch, 	Attorney, 	for 	the Los Rios
Classified Employees Association, AFSCME, Local 3149; 	John
Bukey, 	General Counsel, 	for 	the Los Rios Community College
District.
Before Ronald E. 	Blubaugh, 	Hearing Officer.
PROCEDURAL 	HISTORY
During 	a 	1983 	negotiations 	reopener, 	a union consented 	to
the 	creation of 	an 	advisory board 	to 	review 	job
reclassifications. 	The 	union 	contends 	that 	it consented 	to 	the
plan 	only because 	decisions 	of 	the 	review board 	were 	to be made
by 	consensus. 	When 	the 	review 	board 	subsequently 	adopted 	a
procedure 	to decide 	issues 	by majority vote, 	the 	union 	alleged
that 	the 	employer 	had 	made 	a 	unilateral 	change 	and 	filed 	this
charge.
The 	employer 	does not deny 	that 	the word, 	"consensus," 	was
used 	in 	a 	negotiator's 	description of 	how 	the 	board 	would 	reach
decisions. 	However, 	the employer 	responds, 	the possibility of
voting 	was 	held 	out 	at 	the 	time of 	agreement. 	In 	any event,

the 	employer 	continues, 	the 	parties 	agreed 	that 	the policies
and 	procedures 	of 	the 	board 	would 	be 	subject 	to 	further
discussion. 	The 	employer 	argues 	that 	by 	scheduling 	and 	then
cancelling 	a meeting 	to discuss policies 	and procedures, 	the
union waived 	any 	complaint 	it might 	have.
The 	alleged 	understanding 	that 	the 	reclassification 	review
board 	would 	act 	by consensus was 	not 	placed 	in writing.
This 	charge was 	filed on October 	27, 	1983, 	by the Los Rios
Classified 	Employees Association/American Federation 	of 	State,
County 	and Municipal 	Employees 	Local 	3149 	(hereafter 	AFSCME 	or
Union). 	The 	charge 	alleged 	that 	the Los Rios Community College
District 	(hereafter 	District) 	had 	failed 	to meet 	and 	negotiate
in good 	faith, 	a violation of Educational Employment Relations
Act 	subsection 	3543.5(0).1 On November 	29, 	1983, 	the
Sacramento 	regional 	attorney of 	the 	Public Employment 	Relations
Board 	(hereafter 	PERB) 	issued 	a complaint 	against 	the 	District
for 	the 	conduct 	described 	in 	the Union's 	charge. 	The 	District
1Unless 	otherwise 	indicated, 	all 	references 	are 	to 	the
Government Code. 	The Educational Employment 	Relations Act
(hereafter EERA) 	is 	found 	at 	section 3540 	et 	seq. 	In 	relevant
part, 	section 3543.5 provides 	as 	follows:
It 	shall be unlawful 	for 	a public 	school
employer 	to:
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
N
• 	• 	• 	• 	• 	• 	• 	•
• 	• 	• 	• 	• 	• 	• 	• 	•
2

answered 	the charge on December 	19, 	1983, 	denying 	that 	it had
made 	a 	unilateral 	change 	and 	asserting 	affirmatively 	that 	the
Union had waived 	its 	right 	to bargain 	through 	inaction.
A hearing was 	conducted 	on February 	21, 	1984. 	The 	final
brief 	in 	the case was 	filed on April 	26, 	1984, 	on which day 	the
case 	was 	submitted 	for 	decision.
FINDINGS 	OF FACT
The 	Los 	Rios 	Community College District, 	a public 	school
employer 	under 	the EERA, 	operates 	three 	community colleges 	in
Sacramento. 	At 	all 	times 	relevant, 	AFSCME has been 	the
exclusive 	representative 	of 	a 	unit 	comprised of 	the 	District's
approximately 	645 	office, 	technical 	and 	food 	service
employees.2 Also at all 	times 	relevant, 	Local 	22 	of 	the
Service 	Employees 	International 	Union 	has 	been 	exclusive
representative 	of 	the 	District's 	297-member 	operations 	support
services 	unit 	and 	the Los 	Rios Supervisors Association 	has 	been
exclusive 	representative 	of 	a 	31-member 	classified 	supervisors
unit.
For 	some 	time prior 	to 	the 	dispute 	at 	issue, 	the parties
had 	been 	troubled 	by 	the 	lack 	of 	an 	efficient 	method 	for
resolving 	disputes 	about 	job 	classifications. 	AFSCME 	business
agent Warren Nelson 	testified 	that 	the 	Union was 	dissatisfied
with 	the 	absence 	of 	a procedure 	for 	an 	employee 	to 	secure 	a 	job
2The 	unit 	descriptions 	and 	number 	of members 	are 	drawn
from PERB 	representation 	records 	on 	units 	in place.
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reclassification or 	have 	an 	audit of 	job duties. 	District
negotiator 	John Bukey 	testified 	that 	the 	District 	also 	wanted 	a
procedure, 	at 	least 	in part 	to curtail 	"creeping
reclassification." 	He 	described 	"creeping 	reclassification" 	as
employee 	assumption 	of 	unassigned 	duties 	followed 	by 	a 	claim
that 	the 	employee 	had 	performed 	out-of-class 	work.
Coincidental 	with 	the 	increasing 	awareness 	of 	the
reclassification 	problem, 	the 	District 	commissioned 	an outside
consultant 	to 	study certain clerical positions. 	The 	consultant
recommended 	massive 	classification 	changes 	which 	the 	District
was 	not prepared 	to 	implement. 	However, 	the 	report provided
the 	District with 	an 	incentive 	to 	establish 	a 	system to 	resolve
reclassification 	disputes.
In January of 	1983, 	the parties 	commenced 	a mid-term
reopener 	in 	their 	three-year 	contract. 	By mutual 	agreement,
the 	issue 	of 	reclassification was 	brought 	to 	the 	table. 	The
District made 	the 	first proposal on 	the 	subject 	at 	a
March 	3, 	1983, 	negotiation 	session. 	The essence of the
District's proposal 	was 	for 	the 	creation of 	a 	reclassification
review 	board 	composed 	of 	five 	representatives 	of 	the 	District
and 	one 	representative 	each 	from AFSCME 	and 	the 	other 	two
exclusive 	representatives, 	Local 22 	of 	the Service Employees
International 	Union 	and 	the 	Los 	Rios 	Supervisors Association.
Under 	the 	District proposal, 	the 	reclassification 	review board
would 	be 	an 	advisory body 	to 	the 	individual 	campus 	presidents
4

and 	the 	District 	executive 	vice 	chancellor. 	Recommendations
approved 	by 	the 	reclassification 	board 	would 	be 	forwarded 	to
the 	cabinet 	of 	the 	District 	chancellor 	for 	review prior 	to
presentation 	to 	the 	chancellor 	and 	ultimately, 	the 	board 	of
trustees.
Notes 	taken 	at 	the 	March 	3 	negotiating 	session 	by Union
team member 	Jean 	Kovak 	describe 	most 	of 	the 	discussion 	about
the proposal. 	According 	to her 	notes, 	District negotiator
Bukey stated 	that, 	"agreement by 	[the] 	board must be 	[by]
consensus." 	He 	also 	stated 	that, 	"grievance procedure 	and
legal 	rights will be 	[an employee's] 	recourse 	if 	this 	is not
workable." 	Ms. 	Kovak 	credibly 	testified 	that 	the 	notes
accurately 	reflect 	the 	statements made 	at 	the 	meeting. 	No
commitment was made 	by 	the Union 	at 	the March 	3 	meeting.
At 	the next negotiating 	session, 	held on March 	10, 	the
Union 	proposed 	that 	the 	reclassification 	review 	board 	be
supplemented 	by a panel 	which 	would meet 	once 	a year 	to 	review
appeals 	from board 	actions. 	Under 	the Union's proposal, 	the
three-member 	panel 	would 	be 	composed 	of 	a 	representative 	from
the District, 	a 	representative 	from the Union and 	a neutral
third party 	to break 	a tie. 	Decisions of 	the 	appeals panel
would 	be 	binding.
On March 	18, 	1983, 	the parties met again and 	it was at 	the
March 	18 	session 	that 	an 	agreement 	was 	reached on 	the
reclassification 	board. 	The 	District 	rejected 	the AFSCME
UT
'
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proposal 	to 	create 	a 	binding 	appeals 	panel 	to 	review decisions
of 	the 	reclassification 	board. 	However, 	the District did make
some 	modifications of 	its proposal 	in 	an effort 	to win union
acceptance. 	Mr. 	Bukey 	testified 	that Union 	representatives
asked 	him a 	series 	of questions 	about 	the 	operation of 	the
proposed 	reclassification 	board. 	In 	answer 	to 	a question 	about
how 	the 	board would 	reach 	decisions, 	Mr. 	Bukey 	testified 	that
he 	told 	the 	Union 	he 	"saw 	the 	board 	as 	a consensus 	group, 	but
that 	should 	an 	issue 	come down to 	the wire, 	it may require a
vote." 	He 	also 	testified 	that 	the 	parties 	agreed 	that 	the
reclassification 	review 	board 	"would 	make 	up 	its 	own 	operating
rules."
AFSCME 	negotiator 	Nelson 	testified 	that 	he 	complained 	that
composition of 	the 	board 	was 	"stacked" 	in 	favor 	of management
and 	that 	on 	any 	issue 	the 	Union 	representative would 	be 	out
voted. 	Mr. 	Nelson 	testified 	that 	in 	response 	to his 	complaint
Mr. 	Bukey 	replied 	that 	decisions 	of 	the 	review 	board would 	be
by consensus. 	Mr. 	Nelson 	said 	he 	understood consensus 	to mean
by mutual 	agreement. 	If 	there 	were 	one 	board member 	opposed 	to
a proposal, 	Mr. 	Nelson said, 	he believed 	there would be no
consensus. 	In 	the 	absence 	of 	unanimity on 	the 	review board,
under Mr. 	Nelson's 	understanding of 	the 	agreement, 	an
employee's 	only 	recourse 	would 	be 	through 	the 	grievance
process. 	Mr. 	Nelson said 	it was Mr. 	Bukey's 	statement 	that
decisions would 	be made 	by 	consensus 	that 	"allowed 	us 	to 	reach
6
6

a conclusion 	and 	a 	settlement 	on 	the 	issue of 	a
reclassification 	board."
Ann Lynch, 	AFSCME chapter 	president 	and 	a participant 	at
the March 	18 	negotiating 	session, 	also 	testified 	about
Mr. 	Bukey's 	statement on 	that day. 	She 	recalled Mr. 	Bukey
saying, 	"that 	decisions would 	be 	reached 	by a consensus 	and
that 	there 	would not 	be 	voting." 	She 	said 	that 	the Union agreed 	to
the 	composition of 	the 	board 	despite 	its 	management majority
because 	it 	knew decisions would 	be 	reached 	by consensus. 	She
said 	that 	as 	she 	understood 	the 	agreement, 	an employee 	seeking
reclassification 	would 	have 	to win 	100 	percent 	concurrence 	of
reclassification 	board members. 	It 	was 	her 	understanding 	that
one 	dissenting 	opinion would 	kill 	a 	reclassification.
The 	fourth 	witness 	to 	the 	March 	18 	negotiating 	session 	to
testify 	at 	the PERB 	hearing was Jimmy Mraule, 	the District's
classified personnel manager. 	Ms. 	Mraule 	took 	notes 	at 	the
negotiating 	session 	which within 	a 	day or 	so after 	the 	meeting
she 	transcribed 	into 	typewritten 	notes. 	Her 	transcribed 	notes,
which were 	received 	into 	evidence, 	contain 	the 	following
description of Mr. 	Bukey's 	remarks 	about 	the 	reclassification
review 	board:
It 	was 	agreed 	that 	the 	Reclassified Review
Board 	would 	make 	up 	its 	own operating
rules. 	John Bukey 	indicated 	he 	saw 	this
Board 	as 	a 	consensus 	group but 	that 	should
an 	issue come down to the wire, 	it may
require 	a vote. 	At 	the 	request of 	the Board
an 	employee whose 	position 	is 	up 	for
7

reclassification may 	be 	called 	to 	testify 	in
his/her 	behalf. 	Union 	representation would
be 	allowed 	to present 	a 	case 	for 	members of
their 	union with 	concurrence 	by members 	of
Board.
Despite 	the 	varying 	versions 	of Mr. 	Bukey's 	remarks 	on
March 	18, 	it 	is 	agreed 	that on 	that date 	the parties 	reached 	an
understanding 	that 	a 	classification 	review 	board 	would 	be
created. 	The 	board 	would 	be 	established 	through 	District
regulations, 	the 	exact 	text of which 	the 	parties 	agreed 	upon 	at
the March 	18 	meeting. 	The 	District 	further 	agreed 	that
reference 	to 	the 	board 	would 	be 	included 	in 	the 	contract 	but
the 	wording of 	that 	reference 	was 	left 	to 	subsequent
discussion. 	The 	purported 	agreement 	that 	the 	review 	board
would 	not 	engage 	in voting 	was 	not placed 	in writing.
At 	the Union's 	insistence, 	the 	parties on April 7 	entered a
written 	"understanding 	concerning 	Union 	participation 	in 	the
District 	classification 	review 	board."3 	AFSCME 	negotiator
3The 	text of the April 7, 	1983, 	understanding 	reads 	as
follows:
In the March 18, 	1983, 	negotiations session
held 	between 	the 	District 	and AFSCME/LRCEA
Local 	3149, 	an 	understanding was 	reached 	by
the parties on 	the 	issue of union
participation 	in 	the 	proceedings 	of District
Reclassification 	Review Board. 	While 	not
specifically 	enumerated 	in 	Section 	3.4 	of
the Permanent 	Reclassification Procedure,
the 	above 	parties 	agree 	that 	the Union
appointed 	board member, 	who shall be 	a
District 	employee 	and 	member 	of 	the
bargaining 	unit, 	may 	have 	a Union 	staff
person 	accompany 	him/her 	to 	the Board
88

Nelson 	testified 	that 	the 	Union 	believed 	the 	separate 	agreement
was 	necessary 	"(b)ecause 	the 	parties 	had 	not worked 	out 	a
number 	of 	the 	mechanics 	of mechanical 	workings of 	the 	board
itself." 	The April 7 	agreement 	specifies 	that 	the
Union-appointed 	member 	of 	the 	board 	would 	be 	entitled 	to 	have
the 	assistance 	of 	a Union 	staff 	person 	during 	board meetings.
The 	agreement 	further 	specifies 	that 	employees 	may 	appear 	with
witnesses 	at 	board 	meetings 	where 	their 	reclassification
requests will be 	considered. 	Finally, 	the 	agreement provides
that,
meetings 	when 	classifications 	pertaining 	to
that bargaining 	unit 	are 	to be 	heard. 	That
staff 	person may 	fully 	participate 	in 	the
deliberations of 	the Board. 	Additionally,
those 	classified 	employees 	whose
reclassification 	requests 	are 	slated 	for
Board 	review may 	appear 	in 	accordance 	with
procedures 	established 	by 	the Board, 	along
with 	employees 	who might 	give 	testimony on
their 	behalf, 	before 	the Reclassification
Board.
It 	is 	also 	understood 	by both 	parties 	that
the 	policies 	and procedures pertaining 	to
functioning 	of 	the 	Reclassifiction Board
will be 	subject 	to 	further 	discussions
between 	the 	District 	and 	the 	Union.
It 	is 	with 	these 	understandings 	that
AFSCME/LRCEA Local 	3149 	agrees 	to accept,
without 	revision, 	the draft or 	the Permanent
Reclassification 	Procedure 	dated
March 21, 	1983, 	submitted by the District.
. 	. 	. 	the policies and procedures pertaining
to 	functioning 	of 	the 	reclassification 	board
will 	be 	subject 	to 	further 	discussions
between 	the 	District 	and 	the 	Union.
9

Mr. 	Nelson 	testified 	that when he 	entered 	the April 7
understanding 	he 	believed 	that 	the 	provision 	for 	further
discussions 	pertained 	to 	"the mechanics of, 	and 	the 	scheduling
of meetings, 	things 	like 	that, 	how many witnesses could
come 	. 	. 	. 	would they get release time from their work 	. 	. 	.
the 	mechanics 	of presenting 	a case." 	He 	said 	he 	did 	not 	think
of 	voting 	because 	he 	did 	not 	believe 	there 	was 	to be 	any voting,
.
On September 	16, 	1983, 	Union President Lynch wrote 	a memo
to District 	negotiator Bukey 	requesting 	that 	the 	District
"negotiate 	the 	policies 	and 	procedures 	for 	the 	functioning 	of
the 	reclassification 	review board." 	Mr. 	Bukey 	testified 	that
he 	made 	no 	response 	to 	the 	letter, 	although 	he 	had 	some doubts
about 	a 	demand 	to 	negotiate 	over 	what 	he 	saw as 	a 	"consensual
matter." 	He 	said 	the 	parties 	earlier 	had 	scheduled 	a meeting
for 	September 	19 	to discuss 	a 	factfinding 	matter 	and 	he 	decided
to 	raise 	the 	demand 	at 	that meeting.
Mr. 	Bukey 	testified 	that 	at 	the September 	19 	meeting 	the
parties 	briefly discussed 	the 	demand 	to negotiate. 	By 	that
date, 	the 	reclassification 	review board 	had 	not 	yet 	held 	its
first meeting. 	Mr. 	Bukey 	suggested 	to 	the Union
representatives 	that 	the 	parties 	should 	wait 	to 	see 	what
procedures 	the 	board 	adopted 	before 	conducting 	discussions
about 	them.
The 	first 	meeting 	of 	the 	reclassification 	board 	was 	held 	on
September 	29, 	1983. 	The meeting 	commenced with 	the nomination
10

and 	election of 	a 	chairperson. 	The 	board 	then voted 	on 	a
series 	of 	internal 	procedures 	without 	any 	significant
disagreement. 	Among 	the 	procedures 	to which 	the 	board members
agreed 	were 	for 	the 	creation 	of 	a 	consent 	agenda 	for 	approval
of 	reclassifications 	about which 	there 	was 	no opposition. 	The
board 	members 	also 	agreed 	that 	an 	employee 	requesting
reclassification would 	have 	10 	minutes 	to make 	a presentation
either 	personally or 	by 	a 	representative. 	A procedure 	for
scheduling 	presentations 	was 	approved 	as 	was 	the method of
recording 	minutes.
Following 	the 	series 	of votes, 	AFSCME President Lynch
objected 	to 	the process of voting. 	Ms. 	Lynch 	told 	board
members 	that 	during 	negotiations AFSCME 	had 	been 	"told 	and
promised 	[that] 	it would not be a voting process, 	that
decisions 	reached 	by 	this 	board 	would 	be 	by 	consensus 	and 	it
was 	not 	a voting 	type body." 	She 	said 	she 	had 	understood 	that
the 	reclassification 	review 	board 	"would 	be 	an 	advisory 	body
and 	. 	. 	. 	all decisions would be made a consensus." 	Classified
Personnel manager 	Mraule 	challenged 	the 	contention 	that 	it 	had
been 	agreed 	in negotiations 	that 	there would 	be 	no voting. 	The
matter 	was 	resolved 	by 	a vote 	with 	the 	majority voting 	to
resolve 	non-consent 	items 	by vote.
Following 	the 	reclassification 	review 	board 	meeting, 	AFSCME
business 	agent Kathy Felch, 	the successor 	to Mr. 	Nelson, 	and
Ms. 	Lynch 	encountered District 	representative Bukey 	in 	the
11

hallway. 	Mr. 	Bukey was 	not 	a member of 	the classification
review board 	and 	had 	not 	attended 	the meeting. 	Ms. 	Felch
testified 	that 	she 	said 	to Mr. 	Bukey, 	"We 	have a problem with
what happened 	in 	there 	today." 	She 	quoted his 	response 	as, 	"I
don't want 	to hear 	about 	it." 	In his 	testimony, 	Mr. 	Bukey
recalled 	the 	hallway 	encounter 	and 	remembered 	only 	telling 	the
AFSCME 	representatives 	that 	the 	appropriate 	way 	to discuss 	the
issue was 	to 	set 	up a meeting.
Subsequently, 	at 	the 	request of Ms. 	Felch 	a meeting was
scheduled 	for October 	13, 	1983, 	to discuss 	the operation of 	the
reclassification 	review board. 	However, 	the meeting was
cancelled 	at 	the 	request of Ms. 	Felch 	and 	had 	not been
rescheduled 	as of 	the date 	of the hearing. 	Ms. 	Felch 	testified
that 	she 	cancelled 	the 	meeting 	because 	the 	scheduled 	date 	was
in conflict with other obligations of Mr. 	Nelson, 	the 	former
business 	agent. 	Ms. 	Felch did not 	attempt 	to 	reschedule 	that
meeting 	because,
. . . 	in 	further 	consultation 	with 	other
members of 	the Union 	it was 	felt 	that 	the
meeting 	would 	not 	resolve 	the 	only 	issue
outstanding 	with 	regard 	to 	the
reclassification 	review 	board 	and 	that 	was
the 	voting 	procedure 	. . . .
LEGAL 	ISSUE
Did 	the District 	violate 	section 3543.5(c) 	by making 	a
unilateral 	change 	in 	the 	decision-making 	process 	of 	the
reclassification 	review 	board?
12

CONCLUSIONS 	OF 	LAW
The 	Union 	argues 	that 	the 	District made 	an 	unlawful
unilateral 	change 	by 	instituting 	a 	process 	of 	decision-making
by 	voting 	within 	the 	reclassification 	review 	board. 	The 	Union
contends 	that 	the 	institution of 	voting 	was 	contrary 	to 	an
explicit 	commitment 	made 	by 	the 	District 	during 	negotiations
and 	that 	the 	change 	was 	accomplished 	over 	Union objection. 	The
Union 	argues 	that 	the 	procedure 	for 	decision 	by 	the
classification 	review board 	is 	a matter 	within 	the 	scope 	of
representation 	and 	that 	the 	change 	could 	not 	be made
unilaterally. 	Citing both PERB 	and 	federal precedent, 	the
Union 	argues 	that 	the District's 	action was per 	se 	a 	failure 	to
negotiate 	in good 	faith.
The 	District 	asserts 	first 	that 	the 	subject 	is 	not 	ripe 	for
adjudication 	because 	there 	is 	no 	showing of 	harm by 	the 	Union.
The 	District 	contends 	that 	the 	Union 	has made 	no 	showing 	that
decisions of 	the 	board were 	not by consensus. 	In addition, 	the
District continues, 	there was no unilateral change. 	The
District 	argues 	that 	at 	the March 	18 	meeting, 	where 	agreement
was 	reached, 	the District negotiator 	made 	it clear 	that 	the
board 	would 	use 	a 	voting 	procedure 	as 	the 	ultimate
determinant. 	Alternatively, 	the District concludes, 	the Union
waived 	any 	right 	it may 	have 	had 	to 	negotiate 	about 	the 	issue
of 	voting 	when 	it 	cancelled 	a meeting 	scheduled 	to discuss 	the
question.
13

It 	is well 	established 	that 	an employer 	that makes 	a
pre-impasse 	unilateral 	change 	about 	a matter 	within 	the 	scope
of 	representation 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. 	See 	generally, 	Davis 	Unified School District
(2/22/80) 	PERB Decision No. 	116, San Francisco Community
College District 	(10/12/79) 	PERB 	Decision No. 	105 	and San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94.
At 	issue 	here 	is 	the 	procedure 	by which 	the 	District will
review 	the 	classification of employee 	jobs. 	Inherent 	in 	the
classification process 	is 	the 	potential 	for 	the 	transfer 	of
work among positions, 	the 	establishment of new classes, 	the
reclassification of 	existing 	jobs 	and 	the 	designation 	of 	job
titles. 	These 	are 	subjects 	within 	the 	scope of 	representation
under Alum Rock Elementary School District 	(6/27/83) 	PERB
Decision No. 	322. 	It follows 	that 	if 	the work of the
reclassification 	review board 	is 	within 	the 	scope 	of
representation 	then 	the 	manner 	of 	the 	review 	board's 	operation
is 	itself within scope.
The 	key question, 	of course, 	is whether 	or 	not 	the decision
of 	the 	reclassification 	review board 	to 	vote 	on 	contested
issues 	amounted 	to a unilateral change. 	The 	parties 	have
highly conflicting versions of 	the March 	18, 	1983, 	negotiating
14

session 	at 	which 	the 	alleged 	agreement 	to 	act 	by 	consensus
purportedly was 	reached. 	All 	witnesses 	agree 	that Mr. 	Bukey
stated 	that 	the 	reclassification 	review 	board 	would 	make
decisions by "consensus." 	However, 	Mr. 	Bukey and Ms. 	Mraule
testified 	that 	the 	statement 	was 	accompanied 	by 	the 	caveat 	that
"should 	an 	issue 	come down 	to 	the 	wire, 	it may 	require 	a
vote." 	In his 	testimony, 	Mr. 	Nelson made no mention of 	such 	a
caveat. 	Ms. 	Lynch 	testified 	that Mr. 	Bukey 	specifically 	said,
"there 	would 	not be 	voting."
The 	Union's 	version of 	the 	agreement 	is 	undercut by 	its
improbability. 	According 	to 	the Union, 	it was only because of
the 	District's 	commitment 	that 	decisions 	would 	be made 	by
consensus 	that 	the 	Union 	agreed 	to 	the 	creation of 	the
reclassification 	review 	board. 	Yet 	the 	Union's 	own 	witnesses
testified 	that Mr. 	Bukey 	first 	suggested 	that 	decisions 	would
be made 	by consensus on March 	3 	when he 	initially 	raised 	the
idea of 	a 	reclassification 	review board. 	If decision 	by
consensus was 	the 	key 	factor 	in 	the Union's 	decision 	to accept
the 	proposal 	the Union could 	have 	accepted 	it on March 	3 	rather
than 	at 	the 	negotiating 	session 	two weeks 	later. 	The 	Union
rejected 	that 	initial 	District 	proposal.
It 	also 	is 	difficult 	to 	understand 	how 	the 	Union 	failed 	to
secure 	in 	writing 	the 	supposed 	commitment 	that 	there 	would 	be
no voting. 	If, 	as Mr. 	Nelson testified, 	the promise 	that there
would 	be 	no voting 	was 	the 	crucial 	factor 	in 	reaching 	agreement
15

one would 	expect 	the Union 	to have 	demanded 	it 	in writing.
Other 	elements 	of 	the 	agreement 	which 	the 	Union 	considered
essential 	were 	secured 	in 	writing.4 Failure 	of 	the 	Union 	to
secure 	in writing 	the 	supposed 	commitment 	that 	there would 	be
no 	voting 	erodes 	the 	persuasive 	character 	of 	testimony 	that 	the
March 	18 	agreement 	was premised 	on 	the 	absence 	of 	voting.
While 	it 	is 	clear 	that 	the District's March 	3 offer
contained 	an 	unqualified 	promise 	that 	the 	board 	would 	act 	by
consensus, 	the Union 	rejected 	that offer 	when 	it made 	its March
10 	counteroffer. 	The District, 	in turn, 	rejected the Union's
counteroffer 	and 	on March 	18 	reinstituted 	its 	original 	offer,
with one 	significant 	variation. 	That variation, 	Mr. 	Bukey and
Ms. 	Mraule credibly 	testified, 	was 	the 	addition of 	the 	caveat
that 	decisions 	would 	be 	by 	consensus 	except 	that 	"should 	an
issue come down 	to the wire, 	it may require 	a vote."
At 	this 	point, 	Union 	negotiators 	apparently 	realized 	that
the 	District would 	not 	agree 	to creation 	of 	any 	type 	of 	review
panel 	over 	which 	the 	District 	could 	not 	retain 	control. 	The
option presented 	to 	the 	Union 	on March 	18 	was 	the District
4The April 7 	sideletter, 	footnote no. 	3, 	supra,
specifically provides, 	for example, 	that 	the Union
representative 	to 	the 	reclassification 	review 	board 	would 	be
entitled 	to 	have 	a 	"Union 	staff person 	accompany him/her 	to 	the
(b)oard 	meeting." 	The 	sideletter 	also 	provides 	that 	the 	staff
person 	"may 	fully participate 	in 	the 	deliberations 	of 	the
(b)oard" 	even 	though he/she will 	not 	be 	able 	to vote. 	The
Union 	considered 	this 	element 	to be 	essential 	and 	secured 	it 	in
writing.
16

proposal 	or 	no 	review panel 	at 	all 	and 	a 	continuation 	the
process 	of 	review of 	reclassification 	requests 	by 	grievance
only. 	Apparently 	believing 	that 	something 	was 	better 	than
nothing, 	the Union 	accepted 	the District proposal. 	By
accepting 	the District proposal, 	the 	Union 	implicitly 	accepted
the 	District's 	ultimate 	retention 	of control.
At 	its 	first meeting, 	the 	reclassification 	review board
proceeded 	exactly 	as outlined 	by Mr. 	Bukey 	at 	the March 	18
negotiating 	session. 	The 	panel 	established a process 	for
approval 	of 	certain 	classification 	changes 	by 	unanimous
consent, 	i.e., 	"consensus." 	As 	to 	reclassifications over 	which
a member 	or members 	had 	doubts, 	full presentations were
scheduled 	for 	later 	consideration presumably 	including, 	if
necessary, a vote.
To a 	substantial degree, 	the 	dispute 	over 	voting 	vs.
consensus 	is 	an 	argument 	over 	a gossamer. 	Evidence 	introduced
at 	the 	hearing 	established 	that 	the 	essential purpose 	of 	the
reclassification 	review 	board 	would 	be 	to 	review 	employee
requests 	for 	reclassifications. 	Under 	the Union's 	version of
the 	agreement, 	no employee 	could 	obtain a 	reclassification
unless 	there 	were 	a consensus 	among 	the members 	of 	the 	board.
The 	Union 	witnesses 	interpreted 	consensus 	to be 	"unanimous
agreement." 	Thus, 	if one District-appointed member 	of 	the
review 	board 	opposed 	a 	proposed 	reclassification 	it would 	be
defeated. 	Under 	a voting 	procedure, 	at 	least 	four 	negative
17

votes 	would 	be 	required 	to 	defeat 	a 	reclassification 	request.
Either 	way, 	the 	District holds 	the 	power 	to decide whether 	a
proposed 	reclassification has merit. 	In addition, 	under 	either
consensus or 	voting, 	the 	decision of 	the 	review panel 	is 	not
final. 	It 	is merely a recommendation 	to 	the District
administration and 	ultimately, 	to 	the 	board of 	trustees. 	Thus,
even under 	the Union's 	reading of 	the 	agreement, 	the District
maintains 	ultimate 	control over 	all 	reclassifications.
It 	is 	concluded 	that 	the 	District made 	no 	unilateral 	change
by 	instituting 	a process 	of voting 	over 	disputed matters 	before
the 	reclassification 	review board. 	The 	practice 	adopted 	by 	the
board 	was 	precisely 	that 	outlined 	by 	the 	District 	negotiator
during 	the 	March 	18 	negotiating 	session where 	agreement 	was
reached. 	It 	likewise 	is 	concluded 	that 	the 	District has 	not
failed 	to 	negotiate with 	the 	Union 	about 	the voting 	procedure.
At 	the Union's 	request, 	a meeting 	to negotiate 	about 	the 	voting
procedure was 	scheduled 	for October 	13, 	1983. 	Again, 	at 	the
Union's 	request, 	the meeting was 	subsequently cancelled. 	There
is 	no basis 	for 	the Union's 	argument 	that 	it would 	have 	been
futile 	for 	the Union 	to go 	forward 	with 	the 	negotiations
session.
PROPOSED 	ORDER
Based 	upon 	the 	foregoing 	findings of 	fact, 	conclusions of
law 	and 	the 	entire 	record 	in 	this matter, 	unfair 	practice
charge 	S-CE-695; 	filed 	by 	the 	Los 	Rios 	Classified 	Employees
18

Association, AFSCME Local 3149, 	against 	the Los Rios Community
College 	District 	and 	the 	companion PERB 	complaint 	are 	hereby
DISMISSED.
Pursuant 	to California Administrative Code, 	title 	8,
part III, 	section 32305, 	this Proposed Decision and Order 	shall
become 	final on June 	25, 	1984, 	unless 	a party 	files a timely
statement of exceptions. 	In accordance with 	the 	rules, 	the
statement 	of 	exceptions 	should 	identify 	by 	page 	citation 	or
exhibit 	number 	the 	portions of 	the 	record 	relied 	upon 	for 	such
exceptions. 	See California Administrative Code, 	title 8,
part 	III, 	section 32300. 	Such 	statement of 	exceptions 	and
supporting 	brief must be 	actually 	received 	by 	the Public
Employment 	Relations Board 	itself 	at 	the 	headquarters 	office 	in
Sacramento before 	the close of business 	(5:00 	p.m.) 	on June 	25,
1984, 	or 	sent 	by 	telegraph or 	certified 	United States mail,
postmarked 	not 	later 	than 	the 	last 	day 	for 	filing 	in order 	to
be 	timely 	filed. 	See 	California Administrative Code, 	title 8,
part III, 	section 32135. 	Any 	statement of exceptions 	and
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, 	section 32300 	and 32305 	as amended.
Dated: 	June 5, 	1984 Ronald E. 	Blubaugh
Hearing 	Officer
19