Santa Maria Joint Union High School District (PERB 0507E)

STATE OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER
#277,
Charging 	Party,
v.
SANTA MARIA JOINT UNION HIGH
SCHOOL DISTRICT,
Respondent.
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) 	Case 	Nos. 	LA-CE-1636
LA-CE-1741
PERB Decision No. 	507
May 	16, 	1985
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Appearance; 	Liebert, 	Cassidy & Frierson by Bruce A. 	Barsook
for 	Santa Maria Joint 	Union High 	School 	District.
Before Hesse, 	Chairperson; Jaeger, Morgenstern, 	Burt and
Porter, Members.
DECISION
HESSE, 	Chairperson: 	This 	case came before the Public
Employment 	Relations 	Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the 	Santa Maria 	Joint 	Union High 	School 	District 	(District
or 	Employer) 	to the decision of 	the administrative 	law 	judge
(ALJ) 	rendered below. 	The hearing arose out of 	two charges
filed 	by 	the 	California 	School 	Employees 	Association 	and 	its
Chapter 	#277 	(CSEA or Association) 	against 	the District.
Charge No. 	LA-CE-1636 was 	filed September 14, 	1982 and amended
January 13, 	1983, 	charging that 	the District violated sections
3543.5(a), 	(b), 	(c); 	3543; 	and 3543.l(a)1 of the Educational
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540 	et
seq. 	Section 3543.5(a), 	(b) and 	(c) 	read as 	follows:
It 	shall be unlawful 	for a public 	school
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Employment 	Relations 	Act 	(EERA) 	by taking unilateral 	action 	in
reducing 	the hours 	of 	employment 	of 	various 	classified
employees. 	Charge No. 	LA-CE-1741 was 	filed March 1, 	1983, 	and
alleged 	that 	the 	Employer 	violated 	the 	same 	sections 	as 	above
when 	it 	laid 	off bargaining 	unit 	employees 	but 	failed 	to meet
and negotiate 	concerning 	the 	effects 	of 	that 	layoff. 	The ALJ
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.
Section 3543 reads, 	in pertinent part, 	as follows:
Public 	school 	employees 	shall have 	the 	right
to form, 	join, 	and participate 	in the
activities 	of 	employee organizations 	of 	their
own choosing 	for 	the purpose of
representation on all 	matters 	of
employer-employee 	relations.
Section 3543.1(a) 	reads as 	follows:
(a) 	Employee organizations 	shall have the
right 	to 	represent 	their 	members 	in their
employment 	relations 	with public 	school
employers, 	except 	that once an employee
organization 	is 	recognized 	or 	certified 	as
the 	exclusive 	representative 	of 	an
appropriate 	unit pursuant 	to 	Section 	3544.1
or 3544.7, 	respectively, 	only that employee
organization may represent 	that 	unit 	in 	their
employment 	relations 	with 	the public 	school
employer.
N	
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consolidated 	the 	two 	cases 	and 	issued 	a proposed decision,
holding 	that 	the 	effects 	of 	the 	layoff decision did not have 	to
be 	negotiated because 	the parties 	had 	adopted a 	collective
bargaining 	agreement 	that provided 	for 	the 	effects 	of
layoff.2 She also ruled, 	however, 	that 	the District 	was
obligated 	to negotiate both 	the decision 	to reduce hours 	and
the 	effects 	of 	that decision. 	As 	the District negotiated
neither, 	she held 	that the District violated section 	3543.5(a),
(b) 	and 	(c) 	of the Act.
STATEMENT 	OF 	FACTS
CSEA is 	the 	exclusive 	representative of 	the 	District's
classified employees, 	and 	is party to a collective bargaining
agreement 	with 	the 	District. 	That 	agreement 	runs 	from July
1982 	through June 	1985.
The District, 	prior to 1982, 	had on several occasions
reduced employees' 	hours, 	without negotiations 	and without a
demand by CSEA to negotiate such reductions. 	In 1982, 	however,
the parties 	were 	negotiating 	for 	a 	new collective bargaining
agreement. 	Because of a PERB ruling that 	the decision 	to
reduce hours 	was 	now clearly negotiable, 	unlike the decision 	to
layoff,3 CSEA's 	representative 	remarked 	in passing 	that 	the
2Because 	no exception was 	filed on 	this 	finding, 	we do
not 	address 	this 	issue on appeal.
3See North 	Sacramento School 	District 	(1981) 	PERB
Decision No. 	193. 	The effects 	of both types of decisions 	were
always 	seen by both sides 	to be 	negotiable. 	(TR 94.)
w	
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layoff provision 	in 	the 	contract 	no 	longer 	included 	reduction
of hours. 	(TR, pp. 	21-22.)
Beginning 	in July 1982, 	the District 	adopted a series 	of
resolutions 	calling 	for 	some employees 	to be 	laid 	off 	and
others 	to have 	their hours 	reduced. 	In the 	fall of 	1982, 	CSEA
demanded 	to bargain with the District 	(1) 	over 	the effects 	of
the 	layoff decision and 	(2) 	over both 	the 	decision and 	the
effects 	of 	the decision 	to reduce employee hours. 	The
District's 	response 	to the demand 	to negotiate 	was 	that 	the
parties 	had 	completed 	negotiations 	on 	effects 	of 	layoffs 	and
reductions 	in hours 	and had 	embodied 	their 	agreement 	on 	these
matters 	in Article XVIII 	- Effect of Layoffs 	and Article 	II 	-
Hours 	of 	Employment 	of 	their 	collective 	bargaining 	contract.
In the 	following months, 	CSEA made 	several 	attempts 	to
negotiate 	the above, 	but 	was 	rebuffed by the 	District 	on 	the
grounds 	that 	the parties 	had already negotiated 	those 	subjects
in 	talks 	leading to the current 	collective bargaining agreement,
Article 	II 	reads 	in part as 	follows:
ARTICLE 	II 	- HOURS OF EMPLOYMENT
Hours 	The 	regular 	work 	week 	of 	a 	full-time
unit member shall be 	forty 	(40) hours, 	and
the 	regular work day shall be eight 	(8) 	hours
exclusive of 	duty-free 	meal period 	of no 	less
than thirty 	(30) 	minutes 	as 	assigned by the
District.
Nothing 	in 	this 	Agreement 	or 	in District
Policies 	or 	regulations 	shall 	be 	construed 	to
constitute 	a 	guarantee of 	a 	minimum number 	of
hours 	of work per day or per week, 	or of days
of work per week, 	per month, 	or per year.
• 	• 	• 	• 	• 	•
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Adjustment 	of Work 	Day 	Prior 	to 	a permanent
change 	in work days or working hours, 	a
conference 	will 	be held 	with 	the 	unit member,
and, 	at the request of 	the unit member, 	a
representative of CSEA, 	in order 	to discuss
the change.
Call 	Back 	Time 	Whenever 	a 	unit 	member has
left 	the 	work 	site and 	is 	called back 	to work
when not 	regularly scheduled 	to be 	on duty,
compensation will 	be 	for 	a minimum of 	two 	(2)
hours.
Bargaining 	History
Paragraph 3 of Article 	II, 	the 	"no guarantee of minimum
hours" provision, 	was added to the parties' 	contract 	in 1979
upon the proposal of the District. 	In 1982, 	CSEA proposed
deletion 	of 	this 	language 	but 	the 	District 	refused 	on 	the
ground 	that 	it 	needed 	flexibility to 	increase or 	decrease
employees' 	hours. 	CSEA's 	representative 	testified that he
believed 	this 	provision merely provided 	the 	District 	the
authority to 	employ part-time 	employees 	but 	not 	to authorize 	it
to reduce hours 	of 	employees, 	but he offered no explanation 	for
this 	restrictive 	interpretation of Article 	II.
The 	District's 	representative 	testified 	further 	that 	the
District had 	instituted 	layoffs 	and 	reductions 	in hours 	on
several 	occasions 	each year prior 	to 	the 	summer 	of 	1982 but
that 	CSEA had 	never 	previously 	demanded 	mid-term negotiations
regarding 	either 	the decision or 	effects 	thereof. 	Layoffs 	and
reductions 	in hours 	instituted 	without 	any 	request 	to negotiate
by CSEA occurred as 	late as 	February 23 and June 	17, 	1982,
respectively.
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THE 	DISTRICT'S 	EXCEPTIONS
The 	District 	excepted 	to only one 	factual 	finding by 	the
ALJ, 	that 	the 	District did not 	rely on certain 	contractual
provisions 	in an 	effort 	to demonstrate 	that 	the Association
waived 	its 	right 	to bargain over 	the 	reductions 	in hours. 	As
to the ALJ's 	legal 	conclusions, 	the District argued 	that 	the
ALJ erred when 	she 	concluded 	that 	CSEA did not 	waive 	its 	right
to 	demand mid-term negotiations 	concerning 	the 	reduction 	in
hours.
DISCUSSION
The parties 	do not dispute 	that 	the 	District 	did not
negotiate 	the decision to reduce hours 	and 	the 	effects 	of 	that
decision. 	The District, 	however, 	argues 	that the language of
the 	collective 	bargaining 	agreement 	and 	the 	established policy
of 	the 	District 	relieve 	it 	of 	any 	further bargaining 	under 	this
agreement 	concerning 	reduction 	in hours.
For 	the Association to prevail 	in 	its 	complaint 	against 	the
employer, 	it must 	show that 	the 	latter not 	only took 	unilateral
action on a matter 	within the scope of representation, 	but 	that
the action resulted 	in a change 	in the status 	quo. 	(See
generally Gorman, 	Labor Law 	(1976), 	pp. 	450-454. 	See also Los
Angeles 	Community College District 	(1982) 	PERB Decision No.
252.) 	As 	recently stated by this 	Board,
having established 	[a] 	"status 	quo ante,"
the 	Charging 	Party must 	then 	show 	that 	the
employer has, 	without 	first providing an
opportunity to negotiate, 	departed 	from that
prevailing policy or practice 	in a way which
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evidences 	the adoption of 	a 	new policy
having 	a 	generalized 	effect 	or 	continuing
impact 	upon 	the bargaining unit 	members."
(Oak Grove School 	District 	(1985) 	PERB
Decision No. 	503 at p. 	7.)
The parties 	do not dispute 	that, 	virtually every year 	since
1978, the 	District 	implemented 	layoffs 	and 	reductions 	in hours
in a similar 	fashion pursuant 	to 	their 	mutual belief 	at 	that
time 	that 	the 	two actions 	were 	both 	non-negotiable 	subjects
within 	the 	District's 	prerogative. 	Consistent 	with 	this
belief, 	the parties' 	1979 and 1981 collective bargaining
agreements 	established 	a 	clear 	policy granting 	the 	District
authority to reduce hours, 	subject 	only to the 	requirement 	that
it 	discuss 	the 	change 	with 	the 	affected 	employee.4 Testimony
established 	that 	the procedures 	specified 	in an 	"Effects 	of
Layoff" 	provision added 	to the 	contract 	in 	1981 	were 	intended
to apply to both layoffs 	and reductions 	in hours.
4Article 	II of both 	the 	1979 and 	1981 	contracts provided
that, 	notwithstanding 	the 	specification of a 	"regular" 	8-hour
day and 	40-hour 	week:
Nothing 	in 	this 	Agreement 	or 	in District
Policies 	or 	regulations 	shall 	be 	construed
to constitute a guarantee of 	a minimum
number 	of hours 	of 	work per 	day or per week,
or of days 	of work per week, 	per month, 	or
per 	year.
Adjustment 	of Work 	Day
Prior 	to a permanent 	change 	in work days 	or
working hours, 	a conference will be held
with the unit member 	in order 	to discuss 	the
change. . . .
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A
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In November 	1981, 	PERB 	issued 	its 	decision 	in North
Sacramento School District 	(1981) 	PERB Decision No. 	193,
holding that, 	unlike 	the decision to lay off, 	the decision to
reduce hours 	is 	negotiable. 	Shortly thereafter, 	during
contract 	negotiations 	in spring 1982, 	CSEA served notice on the
District 	that 	it 	would no 	longer 	consider 	reductions 	in hours
to be 	covered by the 	layoff provision 	in the contract. 	CSEA
proposed, 	inter alia, 	to amend Article 	II to require 	"mutual
agreement" 	between 	the parties prior 	to any change 	in workdays
or working hours, 	and to delete 	the 	language 	referring 	to 	"no
minimum guarantee of hours." 	Neither 	of 	these proposals 	was
adopted. 	Instead, 	the parties 	agreed 	to continue 	the 	"no
minimum guarantee" 	language. 	The only change with respect 	to
reduction 	in hours 	contained 	in 	the 	1982 	contract 	as 	adopted
granted CSEA a right 	to 	"discuss" 	the change, 	at 	the request of
the 	affected 	employee.
On these 	facts, 	we cannot agree with the ALJ that 	the 1982
negotiations 	broke 	the policy authorizing 	the 	District 	to
reduce hours. 	Both orally and by its 	written proposals, 	CSEA
clearly 	indicated 	its 	desire 	to change 	District policy on 	the
subject. 	CSEA, 	however, 	did not succeed 	in obtaining agreement
to 	its proposals. 	Rather, 	the existing policy was 	left
substantially 	intact.
Because 	the 	reduction 	in hours 	announced 	in July 	1982 was
consistent 	with 	established 	District policy, 	it 	did not 	amount
to 	a 	unilateral 	change and did not 	violate 	EERA. 	(Oak 	Grove
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School District 	(1981) 	PERB Decision No. 	503.
ORDER
Case 	Numbers 	LA-CE-1636 	and 	LA-CE-1741 	are hereby DISMISSED
in 	their 	entirety.
Members Jaeger, 	Morgenstern, 	Burt and Porter 	joined 	in this
Decision.
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