West Covina Unified School District (PERB 0973E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	WEST 	COVINA
CHAPTER 	#91,
Charging 	Party,
v.
WEST 	COVINA UNIFIED 	SCHOOL
DISTRICT,
Respondent.
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) 	Case No. 	LA-CE-3113
PERB Decision No. 	973
February 	9, 	1993
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Appearances: 	Harry J. 	Gibbons, 	Attorney, 	for California School
Employees Association and its West 	Covina Chapter #91; 	Atkinson,
Andelson, 	Loya, 	Ruud & Romo by Robert L. 	Sammis, 	Attorney, 	for
West 	Covina Unified 	School 	District.
Before Hesse, 	Chairperson; 	Caffrey and Carlyle, 	Members.
DECISION
CAFFREY, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on exceptions 	filed by the West
Covina Unified School 	District 	(District) 	to a 	PERB
administrative law judge's 	(ALJ) 	proposed 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
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, 	that a public school 	employer shall not:
(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.

unilaterally 	implemented a decision 	to 	eliminate 	the practice 	of
allowing 	its maintenance 	and 	operations 	leadworkers 	to 	commute 	to
and 	from work 	in District 	vehicles 	without 	providing 	the
California 	School 	Employees Association and 	its 	West 	Covina
Chapter #91 	(CSEA) 	an opportunity to negotiate 	the decision.
(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.
The 	Board has 	reviewed the 	entire 	record 	in this 	case,
including the proposed decision, 	transcript, 	exhibits, 	the
District's 	exceptions and CSEA's 	responses 	thereto. 	The 	Board
finds 	the ALJ's 	findings 	of 	fact 	to be 	free of prejudicial 	error.
The Board affirms 	the ALJ's 	conclusion 	that 	the District violated
EERA section 3543.5(a), 	(b) 	and 	(c) 	in accord with the discussion
below.
FINDINGS 	OF 	FACT
The District 	is 	a public 	school 	employer under the 	EERA.
CSEA is 	the 	exclusive 	representative 	of 	a unit 	of 	classified
employees 	which 	includes 	employees 	in the District's Maintenance,
Operations and Transportation Division 	(MOT).
A. 	Home 	- 	garaging
The 	uncontroverted 	evidence 	established 	that 	at 	least 	as
early as 	1967, 	the District began a practice of allowing MOT
leadworkers 	to 	commute 	to and 	from work 	in District vehicles.
Although 	no written directives 	were 	issued 	in 	conjunction with
the keys 	to the vehicles, 	the recipients 	of 	the benefit
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understood 	that 	the vehicles 	were provided 	to 	employees 	in 	the
leadworker positions 	who were 	on 24-hour 	call-out 	status 	and 	the
vehicles 	were 	available 	only 	for District-related activities.
Richard Sandoval 	(Sandoval) 	has 	been employed by the
District 	for approximately 19 	years. 	Approximately ten years
ago, 	he was 	advanced to a 	combined position of painter and lead
person. 	At 	that 	time, 	although some management and quasi-
supervisory 	employees 	in 	the maintenance 	division 	commuted 	in
District-owned vehicles, 	Sandoval did not. 	Then, 	approximately
three years ago, 	after a study of his position, 	his lead
responsibilities 	became 	full-time 	and his 	manager advised him
"Richard, 	we're giving you a 	truck of your own and you're not
going to be a painter." 	Since 	that 	time, 	until 	the actions
complained of 	herein, 	Sandoval was 	on 24-hour call 	and home-
garaged the District's vehicle.2 It has always been his
understanding 	that 	the vehicle went 	along with 	the position 	of
leadworker who was 	on call 	on a 	24-hour basis. 	When he 	learned
he 	could no 	longer home-garage a District vehicle, 	he purchased a
new vehicle.
Lonnie Stearns 	(Stearns) 	is 	currently the District's
operations 	lead person. 	He has been an employee 	of 	the District
for approximately 25 	years. 	Stearns 	assumed his 	present position
2There was 	a brief period of 	time after he became a 	full-
time 	leadworker when 	Sandoval 	did not 	home-garage 	a vehicle.
Sandoval 	explained that 	the vehicle assigned to him at 	the 	time
had some 	front-end problems 	and was 	not 	freeway safe. 	He
indicated 	that 	was 	the 	only 	reason he 	did not 	drive 	the 	truck
home 	immediately 	following his 	"reassignment."
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in July of 	1988 	and was 	given a District vehicle 	in 	conjunction
with his promotion to operations 	leadworker. 	His predecessor,
Richard Harshaw, 	also was given a vehicle as part 	of his
leadworker assignment. 	Stearns understood 	that 	the vehicle was
part 	of 	his 	promotion since 	that 	had been 	the 	District's 	practice
since his 	initial 	employment 	in 1967. 	Moreover, 	Stearns noted
that 	there was 	a 	financial 	benefit 	attached to 	the vehicle
because 	it 	constituted a 	savings 	with 	respect 	to household
expenses 	and transportation. 	Stearns 	always understood that 	use
of 	the vehicle was 	necessary and appropriate 	given 	the 	fact 	that
he was 	on call 	to 	the District 	at 	all 	times.
The District presented one witness. 	Mike 	Popoff 	(Popoff) 	is
the District's 	Administrator of 	Human Resources 	and Development
and 	its 	Personnel 	Director. 	Popoff 	has been in his 	current
assignment 	since April 	1990. 	He 	testified 	that 	he had never
personally 	seen 	a policy 	or a 	directive 	which would authorize 	the
home-garaging of District vehicles, 	nor had he heard any
discussion about 	such a policy. 	Popoff also indicated, 	however,
that 	he 	was 	not 	thoroughly 	familiar with 	the policies 	and
procedures 	of 	the MOT. 	Popoff 	did not 	controvert 	testimony
proffered by 	Sandoval 	to 	the 	effect 	that 	when he was 	assigned a
vehicle, 	he was assured that 	the superintendent, 	business manager
and governing board were 	all 	aware 	of 	the 	home-garaging practice.
B. 	The District 	Changes 	its 	Practice
According 	to Popoff, 	the 	impetus 	to eliminate 	the District's
practice 	of 	allowing 	home-garaging 	came 	from the 	new
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superintendent who 	joined the District 	on or about March 	1, 	1991.
Popoff believes 	the 	decision which gave 	rise 	to 	the 	instant
proceeding 	was 	made 	by 	the 	governing board 	during 	an 	executive
session which he 	did not 	attend.
On July 1, 	1991, 	Phil K. 	Urabe, 	Assistant Superintendent for
Business 	Services, 	sent a memorandum to Karl Vacenovsky
(Vacenovsky), 	the MOT manager, 	which set 	forth two fundamental
changes. 	The 	first 	item stated that 	the hours 	of work were being
changed. 	The 	second 	item provided as 	follows:
2. 	Effective July 9, 	1991, 	District vehicles
will 	no 	longer be used 	for home 	to work
transportation by any MOT 	employee.
Neither a 	copy of 	the document 	or any other 	form of 	notice was
provided by the District 	to CSEA. 	On or about 	July 	1 	or July 2,
a 	copy of 	the 	above-quoted memorandum was 	given 	to 	Sandoval 	who
spoke 	to his 	job steward, 	Bill 	Trunnell.
Thereafter, 	on July 2, 	pursuant to CSEA's request, 	a meeting
was 	held 	to discuss 	contracting out 	and the matters 	set 	forth 	in
the 	July 	1 memorandum. 	The meeting was 	attended by Joan Williams
(Williams), 	who was 	then president of 	the 	concerned CSEA chapter,
Richard Mullins 	(Mullins), 	CSEA Field Representative, 	Popoff and
Steven Andelson 	(Andelson), 	the District's legal 	counsel.
The parties 	dispute what was 	said at 	the meeting. 	Williams
testified that 	after some discussion, 	Andelson asked 	if 	CSEA
wanted 	to negotiate 	regarding 	the matters 	in the 	July 	1
memorandum and 	that 	Mullins 	responded 	"yes." 	According 	to
Williams, 	a date 	for another meeting was 	not 	selected because
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attorney Andelson 	indicated 	that 	he 	had 	just 	received 	the
memorandum himself 	and 	needed 	an 	opportunity 	to 	study 	the
situation before providing a date. 	Popoff 	testified that 	he did
not 	recall 	any demand 	from CSEA to 	negotiate 	the matters 	under
discussion at 	the July 2 	meeting. 	In 	response 	to questioning by
CSEA, 	however, 	Popoff testified that, 	to his knowledge, 	at no
time has 	the District been willing 	to negotiate 	its 	action of
July 	9.
On or about July 11, 	1991, 	after implementation of 	the
action 	complained of 	herein, 	Popoff 	received a 	letter 	from
Mullins, 	dated July 8, 	1991, 	in which Mullins 	indicated that he
was 	confirming 	the meeting 	of 	July 2, 	1991 	and demanding 	to
negotiate. 	A meeting was 	arranged 	for July 19 	at which time CSEA
repeated 	its 	demand to negotiate. 	The District 	found the manner
in which 	the 	demand was made 	offensive and left 	the meeting.
Thereafter, 	this action was 	commenced.
ALJ'S 	PROPOSED DECISION
The 	ALJ applied 	the 	three-prong 	test 	established by 	the
Board in Anaheim Union High School 	District 	(19 81) 	PERB Decision
No. 	177 	(Anaheim), 	to determine whether the practice of home-
garaging District vehicles 	is 	a matter within the 	scope 	of
representation. 	Applying the Anaheim test, 	the ALJ first
determined 	that 	use 	of 	a District vehicle 	had a 	tangible 	dollar
value 	to 	the 	effected 	employees 	and 	thus 	was 	reasonably 	related
to wages. 	Second, 	in reliance on decisions of 	the National 	Labor
Relations Board 	(NLRB), 	the ALJ decided that matters 	relating to
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compensation 	"are precisely 	the 	kind 	of 	dispute 	conducive 	to
resolution 	through 	the 	collective bargaining process." 	Finally,
the ALJ 	concluded 	there was 	no managerial 	prerogative 	"unduly
infringed by 	requiring bargaining 	over 	the 	question 	of 	whether
employees 	are assigned cars 	as part 	of 	their employment." 	The
ALJ 	concluded 	that 	the 	subject 	of 	home-garaging vehicles
satisfied the 	three prongs 	of 	the Anaheim test, 	thus 	the matter
is negotiable.
The ALJ 	then 	considered whether 	the District 	was 	relieved of
its 	obligation 	to negotiate because 	it provided notice 	of 	the
proposed 	change 	and 	CSEA 	failed 	to make 	a 	timely demand 	to
negotiate. 	Based on credibility determinations, 	the ALJ
concluded 	that 	CSEA did demand 	to bargain 	the matter at 	the
July 2 	meeting and 	thus 	CSEA had not 	waived 	its 	right 	to
negotiate 	the matter.
In addition to a 	cease and desist 	order, 	the ALJ ordered the
District 	to 	restore 	the 	home-garaging practice 	and make 	Sandoval
and Stearns 	whole 	for 	the 	reasonable 	losses 	in 	compensation 	they
incurred. 	In a 	footnote, 	the ALJ implied that 	the District may
be 	responsible 	for 	some 	additional 	compensation 	to 	Sandoval
because he purchased a vehicle 	to use 	in his 	commute 	to work
after 	the 	decision was 	implemented.
DISTRICT'S 	EXCEPTIONS
In its 	statement of 	exceptions, 	the District 	contends 	the
superintendent 	and 	the 	governing board 	had no 	knowledge 	of 	the
home-garaging privilege granted to 	the 	two 	leadworkers. 	Because
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the vehicle 	use 	was 	never 	expressly authorized by 	the 	governing
board, 	the District argues 	it never became part 	of 	the employees'
compensation. 	The District 	also asserts 	the ALJ erred when she
relied on decisions 	of 	the NLRB which held 	that 	the use 	of
company vehicles 	is 	related to 	compensation. 	The District 	argues
these 	decisions 	are 	inapplicable 	to public 	school 	districts.
Finally, 	assuming 	it acted unlawfully, 	the District objects 	to
the proposed remedy, 	contending that at most, 	the employees are
entitled 	only 	to 	an 	order 	restoring 	the 	home-garaging privilege.
DISCUSSION
EERA section 	3543.5(c) 	requires 	an employer 	to meet 	and
negotiate 	in good 	faith with an exclusive 	representative. 	A pre-
impasse unilateral 	change 	in a matter within the 	scope 	of
representation is 	a per se 	refusal 	to negotiate. 	(NLRB v. 	Katz
(1962) 	369 U.S. 	736 	[50 LRRM 2177]; 	Pajaro Valley Unified School
District 	(19 78) 	PERB Decision No. 	51; 	San Mateo County Community
College District 	(1979) 	PERB Decision No. 	94.)
An established policy may be 	embodied 	in 	the 	terms 	of 	a
collective 	bargaining 	agreement 	(Grant 	Joint 	Union 	High 	School
District 	(19 82) 	PERB Decision No. 	196); 	or, 	where a contract is
silent 	or ambiguous, 	it may be determined 	from past practice 	or
bargaining history 	(Rio 	Hondo 	Community 	College 	District 	(1982)
PERB Decision No. 	279).
In 	its 	statement 	of 	exceptions 	the District 	contends 	the
governing 	board 	never 	expressly 	authorized 	the 	home-garaging
practice, 	therefore 	it 	can not be 	construed as 	compensation 	for
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the 	leadworkers. 	The 	record supports 	the 	claim that 	the District
has 	since 	at 	least 	1967 	assigned District vehicles 	to 	employees
in the MOT leadworker positions who are 	on-call 	on a 	24-hour
basis, 	thereby permitting 	them to 	commute 	to and 	from work 	in
those vehicles. 	Vacenovsky assigned District vehicles 	to
Sandoval 	and Stearns 	and authorized home-garaging 	of 	these
vehicles, 	requiring them to be on-call 	to the District 	24-hours a
day. 	While 	this 	practice may not 	have 	been 	expressly adopted by
the governing board, 	by allowing 	the practice 	to 	continue 	for
approximately 25 years, 	the District has 	firmly established 	it as
District 	policy. 	The District 	is 	not 	excused 	from a 	long-
established practice merely because 	it 	did 	not 	formally adopt 	the
policy. 	This 	exception is 	therefore 	rejected.
To 	the 	extent 	that 	the District 	has 	altered this practice,
an unlawful unilateral 	change may have occurred. 	However, 	it
must 	first 	be 	determined whether 	the practice 	of 	permitting 	the
two MOT leadworkers 	to home-garage District vehicles 	is, 	in this
case, 	a subject within the 	scope of 	representation under EERA
section 3543.2.3
3EERA section 3543.2(a) 	states, 	in pertinent part:
(a) 	The 	scope of 	representation shall be
limited to matters 	relating to wages, 	hours
of 	employment, 	and other terms 	and conditions
of 	employment. 	"Terms and conditions 	of
employment" 	mean health and welfare benefits
as defined by Section 53200, 	leave, 	transfer
and reassignment policies, 	safety conditions
of employment, 	class size, 	procedures to be
used 	for 	the evaluation of 	employees,
organizational 	security pursuant 	to 	Section
3546, 	procedures 	for processing grievances
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pursuant to Sections 3548.5, 	3548.6, 	3548.7,
and 3548.8, 	the layoff of probationary
certificated school 	district 	employees,
pursuant 	to Section 44959.5 	of 	the 	Education
Code, 	and alternative 	compensation or
benefits 	for 	employees 	adversely affected by
pension 	limitations 	pursuant 	to 	Section 22515
of 	the Education Code, 	to the extent deemed
reasonable 	and without 	violating 	the 	intent
and purposes 	of 	Section 415 	of 	the 	Internal
Revenue Code. 	. 	. 	. All matters not
specifically enumerated are 	reserved 	to 	the
public 	school 	employer and may not 	be 	a
subject 	of meeting and negotiating, 	provided
that 	nothing herein may be 	construed 	to 	limit
the 	right 	of 	the public 	school 	employer to
consult with any employees 	or 	employee
organization on any matter 	outside 	the 	scope
of 	representation.
In Anaheim, 	the Board established a 	three-prong 	test 	to
determine 	whether matters 	not 	specifically 	enumerated under 	EERA
section 3543.2 	are negotiable. 	Under the Anaheim test, 	the Board
determined a matter 	is within the 	scope 	of 	representation 	if:
(1) 	it 	is 	logically and reasonably related to
hours, 	wages or an enumerated term and
condition of employment, 	(2) 	the subject 	is
of 	such 	concern 	to both management 	and
employees 	that 	a 	conflict 	is 	likely 	to 	occur
and the mediatory 	influence 	of 	collective
negotiations 	is 	the appropriate means 	of
resolving the conflict, 	and 	(3) 	the
employer's 	obligation 	to negotiate would not
significantly 	abridge 	his 	freedom to 	exercise
those 	managerial 	prerogatives 	(including
matters of 	fundamental policy) 	essential 	to
the achievement 	of 	the District's mission.
[Fn. omitted.]
The 	California 	Supreme 	Court 	approved 	this 	test 	in San Mateo
City School 	District v. 	Public 	Employment 	Relations 	Board 	(1983)
33 Cal.3d 850 	[191 Cal.Rptr. 	800].
In this 	case, 	the use 	of District vehicles by Sandoval 	and
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Stearns 	is 	reasonably related 	to wages 	and compensation. 	The
authorization 	to use 	the vehicles 	to 	commute 	to 	and 	from work had
a 	tangible 	dollar value 	to 	these 	employees, 	saving 	them the
maintenance and commuting 	costs 	for 	their own vehicles. 	By
specifically providing 	each 	of 	them with 	a vehicle 	when 	they
assumed 	the 	leadworker positions 	and 	the 	responsibility 	to be
available 	on a 24-hour basis, 	the District 	included the value 	of
the use 	of 	the vehicle as 	part 	of 	their compensation.
Further, 	although PERB's 	only decision 	in this 	area was
vacated based upon a 	settlement 	(Office 	of 	the 	Santa 	Clara 	County
Superintendent of Schools 	(1982) 	PERB Decision No. 	233), 	the
issue 	of 	the negotiability of 	the use 	of 	company vehicles 	has
previously been 	considered by the NLRB. 	Under 	the National 	Labor
Relations Act 	(NLRA), 	the NLRB has 	found that use of a company
car 	for purposes 	of 	commuting 	to and 	from work 	is 	an 	emolument 	of
employment. 	Where 	the scope 	language of 	the NLRA is 	similar to
that 	of 	the 	EERA, 	the Board has viewed the decisions 	of 	the NLRB
as persuasive.
In Seafarers. 	Local 777 v. 	NLRB 	(D.C. 	Cir. 	1978) 	603 F.2d
862 	[99 	LRRM 2903] 	enforced in part by 229 	NLRB 	1329 	[95 	LRRM
1249], 	the 	court upheld the NLRB's 	finding that 	the employer's
unilateral 	imposition of 	a 	$10 	fee 	on cab drivers 	who wished to
take 	their 	cab home 	at 	night violated 	its 	duty 	to 	negotiate 	since
the matter was 	a mandatory subject 	of bargaining. 	In Wil-Kil
Pest Control Company 	(1970) 	181 NLRB 749 	[73 	LRRM 1556], 	enforced
(7th Cir. 	1971) 	440 	F.2d 371 	[76 LRRM 2735], 	the NLRB found a
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seven-year use 	of 	company vehicles 	to be 	a 	"valuable 	term and
condition of 	employment" 	and the NLRB 	ordered a 	return 	to 	the
status 	quo ante 	and a make-whole 	remedy.
The 	facts 	in 	this 	case 	clearly establish that 	the District
has 	converted 	the 	home-garaging practice 	into an 	element 	of
compensation 	for the 	two 	leadworker positions. 	This 	satisfies
the 	first prong of 	the Anaheim test. 	Further, 	matters 	relating
to wages 	or 	compensation are 	precisely 	the kind 	of 	dispute
conducive 	to 	resolution 	through 	the 	collective bargaining
process, 	meeting the 	second prong of 	the Anaheim test.
The 	District 	contends 	the NLRB 	decisions 	are 	inapplicable 	to
public 	school 	districts. 	The District argues 	that 	the 	same
"unique 	statutory and 	constitutional 	issues" 	governing public
school 	districts 	do not 	apply 	to private 	companies 	and thus 	the
ALJ erred in relying on the decisions 	of 	the NLRB. 	In fact, 	the
District 	received 	some benefit 	from having 	the 	leadworkers
available 	to 	respond promptly 	to emergencies 	on a 	24-hour basis.
Similarly in the decisions 	of 	the NLRB, 	the private 	companies
receive 	a benefit 	from their 	employees 	having 	immediate 	access 	to
company owned vehicles. 	The District provides 	no 	further
explanation 	to 	overcome 	the 	similarity of 	the use 	of 	company 	cars
from district-owned vehicles 	as 	an aspect 	of 	compensation. 	Thus,
this 	exception 	is 	rejected.
Finally, 	the 	facts 	of 	this 	case 	establish that 	the District
has 	sanctioned the practice 	of 	allowing 	the 	leadworkers 	to home-
garage District vehicles 	for approximately 25 	years. 	Maintaining
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the practice 	for this 	extended period of 	time 	suggests 	the
obligation to negotiate 	any 	change 	in the practice. 	That
obligation would not 	significantly 	abridge 	the 	District's
management prerogative with 	regard 	to 	the 	assignment 	of 	District
vehicles 	to MOT Division leadworkers. 	Thus, 	in this case, 	the
third prong 	of 	the Anaheim test 	is 	satisfied and 	the home-
garaging 	of District vehicles 	is 	found to be a negotiable
subject. 	This 	determination does not prohibit 	change 	in the
home-garaging practice. 	It merely requires 	the District 	to
provide 	the 	exclusive 	representative with notice 	and 	the
opportunity 	to negotiate 	any proposed 	changes 	to 	the practice.
The Board emphasizes 	in this decision, 	however, 	that a
policy governing 	the 	assignment 	of 	school 	district vehicles 	may
not 	in all 	cases 	constitute a negotiable 	subject. 	We 	find 	it
appropriate 	to decide the 	issue 	on a case-by-case basis. 	There
may well 	be 	circumstances 	where vehicle 	assignment 	represents 	a
clear management prerogative. 	However, 	no evidence 	is presented
in 	the 	case before 	the Board on which to base 	such a 	finding.
Prior 	to 	implementing 	a proposed 	change 	in a negotiable
subject, 	an employer must provide notice 	to 	the 	exclusive
representative 	sufficiently 	in advance 	of 	a 	firm decision 	to
allow a 	reasonable 	amount 	of 	time 	to decide whether to make 	a
demand 	to negotiate. 	(Victor Valley Union High School 	District
(1986) 	PERB Decision No. 	565.) 	An exclusive representative 	can
be 	found 	to have waived 	the 	right 	to bargain where 	the 	employer
shows 	that 	the 	exclusive 	representative 	failed 	to 	demand 	to
13

negotiate, 	despite 	having 	received 	sufficient 	notice 	of 	the
proposed 	change. 	(Cloverdale Unified School District 	(1991) 	PERB
Decision No. 	911.)
Based on 	credibility determinations, 	the ALJ 	found that 	CSEA
did make 	a demand 	to bargain at 	the meeting between 	the District
and CSEA representatives 	on July 2, 	1991. 	Joan Williams
testified 	that 	the 	attorney 	for 	the 	District 	asked 	CSEA's
representatives 	if 	they wanted 	to 	negotiate 	the matters 	covered
in 	the July 	1 memorandum and they said 	"yes."
Assuming 	arguendo 	that 	negotiations 	were 	not 	discussed 	on
July 2, 	we 	find that 	CSEA made a 	timely demand to negotiate.
Following 	the July 2 	meeting, 	CSEA Field Representative Mullins
wrote a 	letter dated July 	8, 	formalizing 	the demand 	to negotiate.
The 	letter was 	written before 	implementation of 	the 	change 	in 	the
home-garaging practice on July 9, 	but 	it was not 	received by 	the
District until July 11. 	Nevertheless, 	the District was 	on notice
that 	CSEA was 	concerned with the proposed change. 	Further, 	the
District 	arguably did not 	provide 	reasonable notice 	of 	a 	change
of 	this magnitude. 	Indeed, 	there was no evidence regarding how
much 	time 	elapsed 	from the 	time 	the District made 	its 	decision
and the 	time 	it 	communicated 	it 	to the employees.
CSEA, 	through its members, 	obtained notice on or about
July 2 	and attended a meeting 	late 	that 	afternoon. 	Thursday,
July 4 was 	a holiday. 	July 6 	and July 7 	fell 	on a weekend and
the 	change was 	implemented the 	following Tuesday. 	This means
CSEA had, 	at best, 	three working days. 	Alleged failure to
14

communicate 	a 	demand under 	those 	circumstances 	would 	not
constitute a waiver of 	the 	right 	to bargain.
Based upon the 	findings 	of 	fact 	and 	conclusions 	of 	law and
all 	the 	evidence 	in the 	record, 	we 	find that 	the District
violated EERA section 3543.5(a), 	(b) 	and 	(c) 	when it unilaterally
implemented a 	decision to 	eliminate 	the benefit 	previously
granted 	to 	its maintenance and operations 	leadworkers, 	allowing
them to home-garage District vehicles. 	The practice 	of 	home-
garaging was 	eliminated without 	first 	giving adequate 	notice 	and
a 	reasonable 	opportunity 	to bargain and 	the 	elimination 	of 	the
practice 	directly 	impacted 	employees 	represented by 	CSEA.
REMEDY
In its 	statement 	of 	exceptions 	the District 	objects 	to 	the
ALJ's 	proposed remedy, 	contending 	that 	at most 	the 	employees 	are
entitled 	only 	to 	an 	order 	restoring 	the 	home-garaging privilege.
The District 	contends 	that 	because 	the 	employees 	were 	reimbursed
for driving 	their 	own vehicles 	on 	those 	occasions 	they 	responded
to 	emergency 	call-backs, 	CSEA has 	failed to 	establish any actual
loss 	suffered by Sandoval 	and Stearns.
The 	Board 	is 	authorized to 	remedy violations 	of 	the 	EERA.
Section 3541.5(c) 	grants 	the Board 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 	with or without
back pay, 	as will 	effectuate the policies 	of
this 	chapter.
In this 	case, 	it has been established that home-garaging the
15

District 	vehicles 	provided a 	financial 	benefit 	to 	Sandoval 	and
Stearns 	in 	the 	form of 	reduced maintenance 	and 	commuting 	costs
for their own vehicles. 	Therefore, 	the decision to eliminate
home-garaging 	resulted in a 	loss 	of 	compensation to 	the 	two
leadworkers. 	Accordingly, 	it is appropriate to require the
District 	to 	restore 	the 	home-garaging privilege 	and make 	the
employees 	whole 	for 	the 	reasonable 	losses 	they 	incurred.
However, 	the Board 	finds 	that 	the District's make whole
obligation does 	not 	include 	the 	duty 	to 	compensate 	Sandoval 	for
the new vehicle he acquired 	to use 	in his 	commute 	to work.
It 	is 	also appropriate 	that 	the District be 	ordered to 	cease
and desist 	from such 	conduct 	and 	it 	is 	appropriate 	that 	the
District 	be 	required to post 	a notice 	incorporating 	the 	terms 	of
this 	order. 	The 	notice 	should be 	subscribed by an authorized
agent 	of 	the 	employer indicating 	that 	it will 	comply with the
terms 	thereof. 	The notice 	shall not be reduced in size, 	defaced,
altered or covered by any other material. 	Posting such a notice
will 	provide 	employees with notice 	that 	the 	employer has 	acted 	in
an unlawful 	manner and 	is 	being 	required 	to 	cease 	and desist 	from
this activity. 	It 	effectuates 	the purposes 	of 	the EERA that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	employer's 	readiness 	to 	comply with 	the 	ordered
remedy. 	(See Placerville Union School District 	(1978) 	PERB
Decision No. 	69.) 	In Pandol and Sons v. 	Agricultural 	Labor
Relations Board 	(1979) 	98 	Cal.App.3d 580, 	587 	[159 	Cal.Rptr.
584], 	the California District Court of Appeal 	approved a similar
16

posting requirement. 	(NLRB v. 	Express Publishing Co. 	(1941) 	312
U.S. 	426 	[8 LRRM 415].)
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in this 	case, 	and pursuant 	to 	the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3541.5(c), 	it is hereby ORDERED that the West Covina
Unified School District 	(District), 	its governing board, 	and its
representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally eliminating benefits 	logically and
reasonably 	related 	to wages 	without 	first 	giving 	the 	California
School 	Employees Association and 	its West 	Covina 	Chapter 	#91
(CSEA) 	notice and an opportunity to negotiate.
2. 	Denying to CSEA rights 	guaranteed by 	the 	EERA,
including its 	right 	to represent 	its members.
3. 	Denying to 	employees 	the 	right 	to be 	represented by
an 	exclusive 	representative 	before making 	significant 	changes 	in
compensation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Restore 	the 	status 	quo ante by granting Richard
Sandoval 	and Lonnie Stearns, 	or whoever occupies 	the positions 	of
maintenance 	leadworker and operations 	leadworker, 	District
vehicles 	to use 	in 	their 	commute 	to and 	from work 	or when
recalled 	to 	the District 	outside 	their normal 	workday, 	and
continue 	such benefit until 	the 	parties 	reach agreement 	or
17

exhaust 	the 	impasse provisions 	set 	forth 	in the 	EERA.
2. 	Compensate Richard Sandoval 	and Lonnie 	Stearns 	for
the 	losses 	reasonably incurred as 	a 	result 	of 	the District's
unlawful 	action.
3. 	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 	are
customarily 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.
4. 	Make written notification of 	the actions 	taken to
comply with 	this 	Order to 	the 	Los Angeles 	Regional 	Director of
the 	Public 	Employment 	Relations 	Board 	in accord with 	the
director's 	instructions.
Chairperson Hesse 	and Member Carlyle 	joined 	in 	this 	Decision.
18

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-3113,
California 	School 	Employees Association and 	its West 	Covina
Chapter #91 v. 	West 	Covina Unified School 	District 	in which all
the parties had the 	right 	to participate, 	it has been found that
West 	Covina Unified School 	District 	(District) 	violated the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3543.5(a), 	(b) and (c).
As 	a result 	of 	this 	conduct, 	we have been ordered to post
this Notice and will 	abide by the 	following. 	We will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally 	eliminating benefits 	logically and
reasonably 	related 	to wages 	without 	first 	giving 	the
California 	School 	Employees Association and 	its 	West 	Covina
Chapter #91 	(CSEA) 	notice and an opportunity to negotiate.
2. 	Denying to 	CSEA rights 	guaranteed by 	the 	EERA,
including 	its 	right 	to represent 	its members.
3. 	Denying to 	employees 	the 	right 	to be 	represented by
an 	exclusive 	representative 	before making 	significant
changes 	in compensation.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Restore 	the 	status 	quo ante by granting Richard
Sandoval 	and Lonnie 	Stearns, 	or whoever occupies 	the
positions 	of 	maintenance 	leadworker 	and operations
leadworker, 	District vehicles 	to use 	in their commute 	to and
from work or when recalled 	to 	the District 	outside 	their
normal 	workday, 	and 	continue 	such benefit until 	the parties
reach agreement 	or 	exhaust 	the 	impasse provisions 	set 	forth
in the EERA.
e

2. 	Compensate 	Richard Sandoval 	and Lonnie 	Stearns 	for
the 	losses 	reasonably 	incurred as 	a 	result 	of 	the District's
unlawful 	action.
Dated: 	WEST 	COVINA 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 BY ANY
MATERIAL.
22