Cupertino Union School District (PERB 0987E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CUPERTINO
CHAPTER 	13,
Charging Party, 	.
v.
CUPERTINO UNION SCHOOL DISTRICT,
Respondent.
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Case No. 	SF-CE-1528
PERB Decision No. 	987
April 	1, 	1993
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Appearances: 	California 	School 	Employees 	Association by Madalyn
J. 	Frazzini, 	Attorney, 	for California School Employees
Association and its Cupertino Chapter 13; 	Breon, 	O'Donnell,
Miller, 	Brown & Dannis, 	by Laurie S. 	Juengert, 	Attorney, 	for
Cupertino Union School 	District.
Before Blair, 	Chair; 	Caffrey and Carlyle, 	Members.
DECISION
CARLYLE, 	Member: 	This 	case 	is before the Public Employment
Relations 	Board 	(PERB or Board) 	on appeal 	by the 	Cupertino Union
School 	District 	(District) 	to 	the attached proposed decision 	of 	a
PERB administrative 	law judge 	(ALJ). 	The ALJ found that 	the
District 	unilaterally 	reduced 	the work hours 	of 	employee
Stephanie Swensson 	(Swensson) 	in violation of section 3543.5(a),
(b) 	and 	(c) 	of the Educational Employment Relations Act 	(EERA).1
EERA 	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
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.
The 	Board has 	reviewed the 	entire 	record in 	this 	case,
including the proposed decision, 	the District's 	exceptions and
the 	California 	School 	Employees Association and 	its 	Cupertino
Chapter 	13's 	(CSEA) 	response 	thereto. 	The Board finds 	the ALJ's
findings 	of 	fact 	and conclusions 	of 	law to be 	free 	of prejudicial
error and adopts 	them as 	the decision of 	the Board 	itself.
DISTRICT'S 	EXCEPTIONS
On appeal, 	the District 	filed numerous exceptions 	to the
proposed decision 	including: 	(1) 	the ALJ erroneously concluded
that 	the 	reduction of 	Swensson's 	position by one-half 	time 	did
not 	fall 	within the past practice policy of 	the District; 	and 	(2)
the party's 	zipper 	clause 	contained 	in 	the 	Collective 	Bargaining
Agreement 	(CBA) 	precludes negotiations 	of matters which are not
covered by the agreement, 	such as 	reduction in hours.
DISCUSSION
The District 	argues 	that 	it 	has 	had a 	long 	standing practice
of 	reducing hours 	of bargaining unit members 	without 	negotiating
with CSEA. 	The District presented several 	instances where 	it 	had
decreased and 	increased 	the 	hours 	of 	unit members 	without
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bargaining with CSEA. 	However, 	the 	Board has 	determined that
when an employer 	changes 	"the 	quantity and kind" 	of 	its past
practice without negotiation, 	it will violate the duty to
negotiate 	in good 	faith. 	(Oakland Unified School 	District 	(1983)
PERB Decision No. 	367.) 	Although the District may have
established 	a 	past 	practice 	by 	temporarily 	increasing 	and
reducing part-time employee hours, 	the District has 	failed to
demonstrate 	an 	instance where 	a 	full-time 	employee whose 	8-hour
assignment 	in 	one 	classification was 	permanently 	reduced by 	one-
half. 	As 	the District has 	failed to demonstrate 	that 	it has met
the 	"regular and consistent 	past patterns 	of 	changes 	in the
conditions 	of 	employment" 	as mandated by 	Pajaro Valley Unified
School District 	(1978) 	PERB Decision No. 	51, 	this exception is
rejected.
Next, 	the District 	contends 	that 	the parties' 	CBA contains a
zipper 	clause 	which precludes 	negotiations 	of matters 	which are
not 	covered by the agreement, 	such as 	reduction in hours. 	The
District 	relies 	on Sylvan Union Elementary School 	District 	(1989)
PERB Decision No. 	780, 	in which the Board held that 	the District
was 	not 	required 	to 	negotiate 	layoff 	effects 	based on 	the
existence 	of 	an 	extensive 	layoff 	clause 	and 	the 	zipper 	clause.
However, 	as 	the ALJ correctly ruled, 	the Sylvan case 	is
inapposite to the present 	case, 	as 	in Sylvan- , 	the charging party
had not 	alleged 	the District's 	implementation of 	layoffs 	as
constituting a change 	in past practice. 	Additionally, 	although
the parties' 	zipper clause 	forecloses 	further requests 	to
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negotiate 	regarding matters 	not 	covered by 	the 	CBA, 	the District
cannot 	rely 	on 	the present 	zipper 	clause 	to make unilateral
changes 	in policy with regard 	to matters 	within 	the 	scope 	of
representation. 	(Los Angeles 	Community College District 	(1982)
PERB Decision No. 	252.)
Finally, 	having reviewed the record, 	the Board sees no
reason 	to 	disturb 	the ALJ's 	proposed 	remedy.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law
and the entire 	record 	in the 	case, 	the Board finds 	that 	the
Cupertino Union School District 	(District) 	violated 	the
Educational 	Employment Relations Act 	(EERA), 	Government Code
section 3543.5(c). 	The District violated the EERA by
unilaterally 	reducing 	the 	hours 	of 	a unit 	employee 	in a
substantial 	change 	from past practice. 	This 	action also
interfered with the 	right 	of 	the 	California School 	Employees
Association and its 	Cupertino Chapter 13 	(CSEA) 	to represent 	its
members, 	and was 	thus, 	also a violation of EERA section
3543.5(b). 	By this 	same action it also denied employees 	the
right 	to participate 	in employment 	related activities 	in
violation of section 3543.5(a).
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
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faith with 	the 	exclusive 	representative 	by 	taking unilateral
action with 	respect 	to the 	reduction of 	hours 	of unit 	employees;
2. 	Interfering with 	the 	right 	of 	CSEA to 	represent 	its
members; and
3. 	Denying bargaining unit 	employees 	the 	right 	to be
represented 	by 	CSEA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Restore 	the 	status 	quo ante with regard to 	the
reduction of 	hours 	to 	the 	level 	which existed prior 	to 	the
District's 	unilateral 	action on Stephanie 	Swensson's 	position.
2. 	Reimburse Stephanie Swensson for the 	loss 	of pay
from the 	time 	of 	the 	reduction of hours until 	the date 	of 	her
resignation 	from the District. 	The amount 	of 	the 	reimbursement
shall 	be 	augmented by 	interest 	at 	the annual 	rate 	of 	seven 	(7)
percent.
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 employees are 	customarily
placed, 	copies 	of 	the Notice attached as 	an Appendix hereto,
signed by an authorized agent 	of 	the 	employer. 	Such posting
shall be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken to 	insure 	that 	this
Notice 	is 	not 	reduced in size, 	defaced, 	altered or covered by any
material.
4. 	Written notification of 	the actions 	taken to 	comply with
this 	Order 	shall 	be made 	to 	the 	San Francisco Regional 	Director
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of 	the 	Public 	Employment 	Relations 	Board 	in accord with 	the
director's 	instructions.
Chair Blair and Member Caffrey 	joined 	in 	this Decision.
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APPENDIX NOTICE 	TO 	EMPLOYEES
POSTED 	BY ORDER OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
An Agency of 	the 	State of 	California
After a hearing 	in Unfair Practice Case No. 	SF-CE-1528,
California 	School 	Employees 	Association 	and 	its 	Cupertino 	Chapter
13 v. 	Cupertino Union School District, 	in which all parties had
the 	right 	to participate, 	it has been found that 	the Cupertino
Union 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 we will:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and refusing 	to meet 	and negotiate 	in good
faith with 	the 	exclusive 	representative 	by 	taking unilateral
action with respect 	to the 	reduction of 	hours 	of unit 	employees;
2. 	Interfering with the 	right 	of 	CSEA to 	represent 	its
members; and
3. 	Denying bargaining unit 	employees 	the 	right 	to be
represented 	by 	CSEA.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Restore 	the 	status 	quo ante with 	regard to 	the
reduction of 	hours 	to 	the 	level which existed prior to 	the
District's 	unilateral 	action on Stephanie 	Swensson's 	position.
2. 	Reimburse 	Stephanie 	Swensson 	for the 	loss 	of pay
from the 	time 	of 	the 	reduction of 	hours until 	the date 	of 	her
resignation 	from the District. 	The amount 	of 	the 	reimbursement
shall 	be augmented by 	interest 	at 	the annual 	rate 	of 	seven 	(7)
percent.
Dated: 	CUPERTINO UNION SCHOOL DISTRICT
By:
Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(3 0) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY
MATERIAL.

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CUPERTINO
CHAPTER 	13,
Charging 	Party,
v.
CUPERTINO UNION SCHOOL DISTRICT,
Respondent.
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) 	Unfair Practice
Case No. 	SF-CE-1528
PROPOSED 	DECISION
(8/27/92)
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Appearances: 	Diana Hull, 	Field Representative, 	for California
School 	Employees Association and 	its 	Cupertino Chapter 	13; 	Breon,
O'Donnell, 	Miller, 	Brown and Dannis, 	by Laurie S. 	Juengert for
Cupertino 	Union School 	District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
INTRODUCTION
The district reduced the hours 	of 	a unit member after
refusing to negotiate with the 	exclusive 	representative. 	The
employer's 	position 	is 	that 	the action was 	consistent with past
practice.
PROCEDURAL 	HISTORY
The 	California 	School 	Employees Association 	and 	its
Cupertino Chapter 	13 	(CSEA) 	initiated this proceeding by filing
an unfair practice charge on February 	10, 	1992, 	against the
Cupertino Union School District 	(District). 	After investigation,
the 	general 	counsel 	of 	the Public 	Employment Relations 	Board
(PERB or Board) 	issued a 	complaint against the District alleging
that prior to January 28, 	1992, 	the District's policy concerning
the hours 	of 	the Typist Clerk 	III 	position was 	eight hours 	per
day. 	It was 	alleged 	that 	on that day the policy was 	changed 	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.
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four hours 	per day without 	notice 	to 	CSEA or affording 	it 	the
opportunity to negotiate the decision or the 	effects 	of 	the
change. 	This 	conduct was 	alleged to have violated 	section
3543.5(0), 	(a) 	and 	(b) 	of the Educational Employment Relations
Act 	(EERA 	or 	Act).1
The District's answer, 	filed on April 	6, 	1992, 	denied any
violations 	of 	EERA and asserted 	that 	it had 	a 	long-standing
practice 	of 	reducing hours without 	negotiating with CSEA.
By written order issued on May 	11, 	1992, 	the caption was
amended to 	include the Cupertino Chapter 	13 	as 	charging party.2
1EERA is 	codified at Government Code 	section 	3540 	et 	seq.
All 	references 	are 	to the Government Code unless 	otherwise
specified. 	Section 3543.5 	states 	in pertinent part:
It 	shall be unlawful 	for a public 	school
employer to:
(a) 	Impose or threaten to impose reprisals
on employees, 	to discriminate or threaten to
discriminate against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees because 	of 	their 	exercise of 	rights
guaranteed by this chapter. 	. 	. 	.
(b) 	Deny to 	employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or fail 	to meet and negotiate 	in
good 	faith with an 	exclusive representative.
2At hearing, 	CSEA's request to amend the 	complaint to
include 	allegations 	of 	direct 	negotiations with an 	employee was
granted. 	Later, 	at hearing, 	the amendment was withdrawn by CSEA,
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An 	informal 	conference did not 	result 	in settlement. 	Formal
hearing was held on June 2 	and 	3, 	1992. 	Post hearing briefs were
filed and the matter submitted on August 	10, 	1992.3
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer within the meaning
of 	section 3540.l(k). 	CSEA is the exclusive representative of a
unit of 	employees 	of the District, 	within the meaning of 	section
3540.l(e). 	The unit represented by CSEA includes 	instructional
aides 	and clerical 	employees.
Dianna Hull 	(Hull) 	has 	been a CSEA field representative
since July of 	1988, 	and has 	served as 	chief negotiator for
Chapter 	13. 	Terry Nolan 	(Nolan) 	served as 	categorical programs
coordinator from 	1973 	to 	1979. 	Then, 	after two years as a
personnel 	technician, 	she became a personnel 	analyst 	for three
years, 	and then assumed her current position as 	supervisor of 	the
office. 	Pat DeMarlo 	(DeMarlo) 	has been director of human
resources 	for the 	13 	months preceding the 	formal hearing.
This 	unfair practice 	complaint 	arises 	from a 	charge 	filed by
CSEA in regards 	to 	Stephanie Swensson 	(Swensson). 	Swensson was
hired on March 4, 	1991, 	as 	an eight-hour Typist Clerk III 	in the
Instructional 	Department. 	The posting 	for the position 	listed 	it
as 	an eight-hour position. 	This was 	in error, 	according to
Nolan, 	as 	the position was 	funded from two different 	sources.
3Pursuant to PERB Regulation section 32168(b), 	the parties
were 	notified 	of 	substitution of 	administrative 	law 	judge 	(ALJ)
for purposes 	of writing the proposed decision. 	No 	objections
were 	filed.
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District documentation indicates 	that 	at 	various 	times 	during her
employment, 	Swensson's position was 	funded 	from 	several 	sources,
and 	then 	from two 	sources.
On January 2, 	1992, 	Hull wrote to DeMarlo requesting
information on proposed 	reductions 	in assigned 	time 	of 	unit
members. 	CSEA 	learned two weeks 	later that 	the 	District was
going to reduce Swensson's hours.
On January 	14, 	1992, 	Hull wrote to DeMarlo regarding the
proposed 	reduction of 	Swensson's 	hours 	from 	eight 	to 	four hours
per day. 	Hull demanded to negotiate the 	decision and the 	effects
of 	the reduction of 	Swensson's 	hours.
According to Hull, 	the District verbally agreed and
scheduled a meeting to negotiate. 	The meeting did not occur,
however. 	DeMarlo 	told Hull 	that 	Swensson was being 	laid off 	the
one 	four-hour position, 	and 	they need only to negotiate 	the
effects. 	DeMarlo 	testified that 	the meeting was 	canceled because
CSEA expected to bargain a decision to 	layoff. 	The District,
said DeMarlo, 	was prepared to bargain only the 	impact of 	the
layoff.
Hull attended a January 28, 	1992, 	school board meeting and
objected 	to 	the 	District's 	proposed 	action on Swensson's 	hours.
Nonetheless, 	the board adopted a resolution to reduce 	Swensson's
hours. 	The resolution provided that the 	elimination of 	.50 	FTE
Typist 	Clerk 	III 	position was 	based upon the 	lack of 	funds
available 	for the Title VII 	- 	Limited English Proficient 	Program.
The 	resolution noted 	the 	reorganization of 	services 	provided 	and
A
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change 	in 	support personnel 	services 	as 	a 	result of 	increased
personnel 	costs 	in the Title VII 	- 	Limited English Proficient
Program. 	This 	necessitated the removal of 	job functions, 	duties
and funds 	for the Typist Clerk III 	position, 	and thus 	eliminated
the position.
According to Nolan, 	this was 	layoff of a half-time position,
and even if 	considered a reduction in time, 	the District would
not have negotiated with CSEA, 	because it 	is not the practice to
negotiate reduction in hours.
On February 	12, 	1992, 	Swensson submitted a letter of
resignation from the 	four-hour position. 	The 	letter 	states 	she
was 	resigning half-time 	"to pursue personal 	interests." 	The
effective date, 	March 2, 	1992, 	was 	"to coincide with the already
scheduled 	layoff 	of 	1/2 	time due 	to 	the 	lack of 	Title VII
funding." 	On May 	14, 	1992, 	Swensson resigned from any employment
with the 	District.
The dispute 	about reduction 	in hours 	is 	preceded by two
other PERB proceedings.
On June 	17, 	1991, 	Hull made a written demand to negotiate
the decision to 	reduce the hours 	of 	employment of 	Instructional
Tutor and School Secretary I positions, 	both, 	she contended, 	were
six-hour positions. 	According to Hull, 	the Secretary I position
was posted for four hours, 	but after the letter from CSEA, 	it was
reinstated to 	the original 	assigned time. 	The tutor position was
completely eliminated. 	Alice Frash 	(Frash), 	whose position was
being 	eliminated, 	wanted 	to 	take 	another tutor position but was
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unable to do 	so. 	She then sought a 	"Itinerant tutor" 	position,
believing it to be a 	six-hour position. 	CSEA learned, 	however,
the 	District had reduced the 	six-hour position by one hour, 	while
the position was vacant. 	After demand by CSEA, 	said Hull, 	the
District 	agreed 	to 	give 	Frash the 	five-hour position and 	to 	add
another hour as 	instructional aide, 	with the tutor 	salary.
The 	District's 	response, 	presented by Nolan's 	testimony 	and
her written response dated July 	1, 	1991, 	to Hull's demand
(Respondent Exhibit 	2) 	was 	a 	firm rejection of any demand to
negotiate 	and 	firm reliance on past practice. 	Said Nolan:
The district 	is 	somewhat 	confused by your
demand. 	For well over a decade, 	this
district has 	had an established and well-
known practice 	of 	reducing bargaining unit
positions without negotiations. 	The
association is 	certainly aware of 	this
practice 	since its utilization has, 	over the
years, 	personally affected association
officers 	and/or negotiation team members.
Nolan and 	DeMarlo 	denied 	there were 	any 	negotiations 	with
CSEA about Frash. 	Frash was 	concerned with her placement 	for 	the
next 	year and the meeting did not 	include 	negotiations, 	but
rather working out personnel matters. 	Both testified that 	these
discussions were done on a regular basis with CSEA. 	DeMarlo
testified 	that 	they have had this 	discussion annually with 	Frash.
Nolan and 	DeMarlo 	both 	testified 	that 	Frash's 	hours 	were
reduced in the 	1991-92 	school year. 	The District did not agree
to bargain with CSEA on that decision. 	The meeting was 	to
resolve 	an 	issue 	regarding where 	Frash would be 	and what 	she
would be doing 	in the 	1992-93 	school 	year. 	According to Nolan,
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Frash's 	position has 	been reduced prior to 	the 	1991-92 	school
year.
CSEA 	filed 	an unfair practice 	charge 	in July 	1991,
complaining 	about 	the 	reduction of 	the 	tutor position hours 	from
six 	to 	five. 	The unfair practice 	charge noted the agreement
reached with 	the 	District with regard 	to 	the 	extra 	hour 	for
Frash, 	but complained about the District's 	stance that the tutor
position was 	only a 	five-hour position. 	During an informal
conference before a PERB ALJ, 	the case 	settled.
On August 8, 	1991, 	Hull demanded to 	"negotiate the decision
and effects 	of any reduction in assigned time, 	including
reductions 	in workday, 	workweek, 	and work year." 	According to
Hull, 	the District did not respond.
The District, 	however, 	submitted a letter from Nolan to Hull
dated August 	13, 	1991. 	Hull did not recall receiving the 	letter.
The District declined to bargain, 	stating:
. 	. 	. 	the District has a consistent and long
standing past practice 	of 	reducing the hours
of 	bargaining unit positions without
implementation of 	formal 	layoff 	proceedings
and without 	any 	consultation, 	or negotiations
with 	C.S.E.A.
Finally, 	some time before the current events, 	in October of
1982, 	CSEA filed an unfair practice 	charge against the District.
Michael Casey 	(Casey), 	then field representative for CSEA, 	wrote
to Frank Brunetti 	(Brunetti), 	then associate 	superintendent with
the District, 	explaining the union's 	intent behind the unfair
practice 	charge. 	That 	intent was 	to 	see that the District did
not bargain with 	individual 	employees 	over reduction 	in hours,
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but would rather approach the 	"bargaining committee." 	Casey
acknowledged 	the difference 	of 	opinion he 	and Brunetti 	had 	on the
negotiability of 	reduction of hours 	of position, 	whether 	filled
or not. 	Casey 	explained that CSEA did not 	challenge 	the
District's 	contention of past practice of 	reduction of hours
without 	negotiating with CSEA. 	Casey 	further announced 	that 	in
the 	event the unfair practice case went to hearing, 	CSEA would
not 	seek a 	compensatory award, 	because 	" . . . 	we do 	not 	feel 	it
is 	fair or appropriate to punish the District 	for action it
committed 	in the past when the 	law was 	unclear and this 	Union did
not make demands 	to negotiate as we did this year."4
A PERB 	conducted 	settlement 	conference 	lead 	to withdrawal 	of
the charge.
There 	is 	a 	District personnel 	committee of which CSEA
representatives 	are members. 	According to Patricia McCrery
(McCrery), 	coordinator for human services since 	1984, 	the
committee meetings 	are 	"meet and confer" 	sessions. 	The committee
meets 	once a month, 	and reduction in hours 	have been discussed.
In the 	spring they discuss 	reduction of hours 	for 	secretaries 	in
the fall. 	The reduction, 	however, 	was the result of a temporary
add-on of 	one hour to the 	secretary's work time. 	CSEA field
4Official notice is given to the PERB file, 	SF-CE-701. 	The
complaint, 	incorporating the allegations 	of 	the underlying unfair
practice charge, 	filed on September 23, 	1982, 	alleges that the
District reduced the hours 	of 	45 	aides, 	after securing
"voluntary" 	requests 	for 	such reduction 	from each 	employee.
CSEA was 	not 	notified 	nor 	given an opportunity to 	negotiate 	the
reduction 	in hours. 	When CSEA did demand 	to 	negotiate 	the
reduction in hours, 	it was alleged, 	the District refused,
claiming the 	employees 	had volunteered to 	reduce 	their hours.
8

representatives attended committee meetings. 	CSEA, 	to her
recall, 	has never demanded to negotiate reduction in hours.
Nolan 	testified 	extensively 	about past practice with 	regard
to reduction in hours of instructional aides, 	clerks and
secretaries. 	School 	site council's 	determine how funds will be
spent. 	The decisions 	on hours of employment are 	functions 	of,
among other things, 	money, 	pupil enrollment, 	and movement of
special programs. 	While 	she was 	the District's 	categorical
program coordinator, 	instructional 	aide 	and 	clerk position hours
were 	reduced.
The 	District 	offered documentary 	evidence 	of 	reductions 	in
hours. 	Nolan described these as 	examples 	and that there were
other reductions 	in hours without negotiations with CSEA.
Arlyne Craighead was 	employed with 	the 	District 	as 	a 	school
clerk 	from 	1976 	to 	1978. 	She would work an additional 	half 	hour
on 	early 	childhood 	education projects 	and would 	be 	paid 	from 	that
program account 	for the work on the project. 	Record 	evidence
demonstrates 	that 	at various 	times 	she was 	given 	short-term
assignments 	and then her hours were 	reduced by one-half 	hour.
Doris 	Irwin, 	an Instructional Aide II, 	had her hours
increased and decreased 	several 	times 	from 	1983 	to 	1991. 	These
changes 	consisted of movement of hours 	from 	.188 to 	.125 	(1983),
to 	.375 	(1986), 	reduced to 	.188 	(1987), 	then reduced from 	.375 to
.188 	(1988), 	increased to 	.250 	(1990), 	then reduced to 	.188 	(June
1990). 	In June of 	1991, 	the hours were reduced from 	.250 to 	.188
hours. 
9

Roberta 	Zentner is 	an Instructional Aide 	I. 	The record
evidence 	shows that yearly, 	from 	1987 	to as 	late as 	school year
1990-91, 	her hours were 	increased at the 	commencement of 	the
school year, 	and then decreased in June by 	.125. 	In the
1990-91 	school year the 	increase and decrease was 	.063 	hours.
The 	documentation often 	indicated 	that 	the 	elimination was
related 	to 	completion of 	temporary assignment.
Dorothy Batie, 	a school 	secretary from 	1988 to 	1991,
generally had her hours 	increased at 	the 	beginning of 	the 	school
year by 	.062 	and decreased by that amount 	at 	the 	end of 	the
school 	year. 	Documentation 	initiating the reduction 	indicated
that 	the 	temporary assignment 	had been 	completed.
Margaret Urquhart, 	a Typist Clerk III 	or Secretary I, 	had
her hours 	increased by 	.500 	in August of 	1989, 	and reduced by
that amount 	in June of 	1990. 	The documentation notes 	that the
reduction was 	because 	the 	typist 	clerk assignment 	had 	been
completed.
Some 	of 	these 	exhibits 	referred to 	"temporary hours." 	Nolan
explained that this was 	so because of 	the unstable 	funding
source. 	The 	school 	site councils who make the decision of how
many hours 	go to 	instructional 	assistant time, 	want people to
know that 	funding may not be 	available.
Nolan 	further 	testified 	that positions 	vacant 	by 	retirement
or by 	resignation have also been reduced or 	split 	into 	two 	fewer-
hour positions.
. . .
10
.

CSEA received board 	reports 	mailed to 	the 	field
representative. 	These reports would 	include the personnel 	action
report, 	reflecting changes 	in any employee's personnel history.
In 	some 	instances, 	the reporting documents went to the board 	for
action after the 	effective date of the 	change. 	While CSEA was 	to
get notice of these transactions, 	it may be that the notice 	came
after the 	effective date of 	the 	change.
Nolan has 	been 	in the personnel 	office 	since 	1979 	and,
according to her, 	the District has 	never agreed to negotiate
reduction in hours 	of CSEA positions. 	The District has 	never
given CSEA advance 	notice of 	reduction in hours 	of bargaining
unit positions. 	Even if 	the Swensson change had been a reduction
in hours, 	the District would not have negotiated because it was
not the practice to bargain the decision to reduce hours.
The parties 	have 	included 	in the 	collective bargaining
agreement 	a 	so-called 	zipper clause 	that has 	been in the
contract, 	unchanged, 	since 	1979.5 Article 20, 	called 	"Entirety
of Agreement" 	provides in relevant part:
20.1 	Extent of Negotiation. 	The parties
acknowledge 	that 	during the 	negotiations
which resulted 	in this Agreement, 	each had
the unlimited right 	to make demands 	and
proposals with respect to 	all 	matters 	subject
to collective negotiations. 	They, 	therefore,
voluntarily 	and without 	qualifications 	waive
the right 	for the 	life of the Agreement to
negotiate 	collectively with respect to 	any
subject 	or matter not 	specifically referred
to 	or covered by this Agreement.
. . .
SCSEA has 	been the exclusive representative 	since 	1977.
11
'

20.2 	Entirety of Agreement. 	This 	contract
represents 	the 	entire Agreement between the
parties 	and 	no 	other agreement 	or practices
are binding upon either party hereto with
respect to wages, 	hours, 	or working
conditions 	of the 	employees 	covered.
Other relevant provisions 	of 	the 	contract are:
7.2 	Workday. 	The hours 	of 	the workday 	shall
be 	designated by 	the 	District 	for 	each
classified assignment, 	in accordance with the
provisions 	set 	forth 	in this Agreement. 	Each
employee 	shall be assigned a fixed, 	regular,
and ascertainable number of hours 	of work.
7.3.1 	The 	District 	and 	its 	employees 	shall
comply with all 	legal 	requirements 	and
guidelines 	relating to reduction in hours.
Article 23 	addresses 	layoff. 	Section 23.1 provides, 	among other
things, 	that 	classified employees 	shall be 	subject 	to 	layoff 	for
lack of work or 	lack of 	funds. 	Section 23.2.1 provides 	for
30 	days 	notice when the termination date of 	a 	specially 	funded
program is 	other than June 	30.
In August 	1989, 	during negotiations 	for the agreement
covering the period 	1989 	through 	1992, 	the District 	submitted a
proposal 	to redefine 	layoff as 	". 	. 	.a 	separation from 	service
or any reduction in assigned time, 	including work day, 	work week,
or work year."
Nolan testified that the 	District's proposal was 	to
memorialize what had been the practice.
According to Hull, 	CSEA interpreted the proposal 	to
eliminate 	the District's 	obligation to negotiate reduction of
hours, 	and objected on that ground. 	The proposal was 	dropped by
the District.
12

ISSUE
The 	issue 	in this 	case 	is whether the 	District violated 	EERA
by 	its 	refusal 	to negotiate 	either the 	layoff 	or reduction of
hours 	of 	Stephanie 	Swensson 	in January 	1992?
CONCLUSION
An employer violates 	EERA 	if 	it 	refuses 	or 	fails 	to meet 	and
negotiate 	in good 	faith about 	a matter within the 	scope 	of
representation. 	(Section 3543.5(c).) 	PERB has determined that
an 	employer 	retains 	the 	right 	to unilaterally determine when
layoff 	is 	appropriate. 	(Newman-Crows 	Landing Unified 	School
District 	(1982) 	PERB Decision No. 	223.) 	It must, 	however,
bargain the 	effects 	of 	the decision to 	layoff. 	(Oakland 	Unified
School District 	(1983) 	PERB Decision No. 	326.) 	The employer has
an obligation to negotiate both the decision and the 	effects 	of 	a
reduction 	in hours. 	(North Sacramento School District 	(1981)
PERB Decision No. 	193.)
The 	employer does not violate EERA, however, 	where the
action in question does 	not altar the 	status 	quo. 	"[T]he 	'status
quo' 	against which an employer's 	conduct 	is 	evaluated must take
into 	account 	the 	regular and 	consistent past patterns 	of 	changes
in the 	conditions 	of 	employment." 	(Pajaro Valley Unified 	School
District 	(1978) 	PERB Decision No. 	51.)
Established practice may be 	expressed 	in a 	collective
bargaining 	agreement 	(Grant 	Joint 	Union High 	School 	District
(1982) 	PERB Decision No. 	196) 	or where the agreement is vague or
ambiguous, 	it may be determined by an examination of bargaining
13

history 	(Colusa Unified School 	District 	(1983) 	PERB Decision Nos.
296 	and 	296(a)) 	or the past practice 	(Rio Hondo Community College
District 	(1982) 	PERB Decision No. 	279; 	Pajaro Valley Unified
School District, 	supra. PERB Decision No. 	51).
CSEA argues 	that past practice 	is 	not relevant. 	It argues
that, 	under the authority of 	Lake Elsinore 	School 	District 	(1986)
PERB Decision No. 	563, 	the employer may not rest on past practice
where the contract terms 	are unambiguous. 	Here, 	contends CSEA,
the contract 	is 	unambiguous. 	Under 	section 7.3.1 	of the
agreement, 	"The District and 	its 	employees 	shall 	comply with all
legal 	requirements 	and guidelines 	relating to reduction 	in
hours." 	This 	section, 	coupled with 	section 7.2 	on workday6
contends 	CSEA, 	is manifestation of CSEA's right to bargain
reduction in hours. 	In this 	regard, 	CSEA does not find the
contract 	"silent or ambiguous."
Contrary to CSEA's views 	on the contract provisions, 	the
mandate 	that 	the 	District 	comply with 	"legal 	requirements 	and
guidelines" 	is not free of ambiguity. 	Uncertain are what 	legal
requirements 	or guidelines 	are referred to: 	PERB case 	law,
mandating negotiations 	on reduction in hours; 	Education Code
provisions 	on reduction in hours? 	What 	guidelines 	are 	intended
to play a 	role 	in reduction 	in hours? 	No 	evidence was 	offered by
66 Section 7.2 	provides: 	"The hours 	of the workday 	shall be
designated by the District 	for 	each classified assignment, 	in
accordance with the provisions 	set 	forth 	in this 	agreement. 	Each
employee 	shall be assigned a fixed, 	regular, 	and ascertainable
number of hours 	of work."
14

CSEA as 	to 	the proper 	reference 	such 	language was 	intended 	to
incorporate.
Nor 	is 	this 	ambiguity 	clarified by 	looking at 	section 	7.2.
The 	section does not, 	by mandating fixed regular hours, 	shore up
an otherwise ambiguous 	reference to 	"legal 	requirements 	and
guidelines." 	Clearly 	section 	7.3.1 	does 	anticipate 	a 	reduction
in hours, 	but the 	language does 	not ascertain within what
framework.
CSEA 	further 	argues 	that 	the 	District 	has 	negotiated 	an
agreement 	that past practice 	is 	not binding on either party.
Pursuant to 	section 20.2, 	the 	"Entirety of Agreement" 	provision,
the 	parties 	have 	agreed 	that practices 	are 	not binding on either
party.
The 	District 	counters 	that CSEA offered 	no 	evidence
regarding the 	intent of this 	language, 	and Nolan testified that
the 	District 	never 	intended to waive 	its past practices 	by
agreeing to this 	language. 	The District then cites 	a number of
arbitrator decisions 	that 	suggest 	only 	strong 	language 	evidencing
intent 	to 	eliminate 	existing practices will 	have that 	effect.
While 	I 	am not persuaded by the arbitrator decisions, 	the meaning
of 	the elimination of practices 	is 	troublesome. 	Its 	consequence
is 	to eliminate 	status quo. 	If the contract does not cover the
issue 	in question, 	what is 	to govern the resolution of a dispute
in 	issue?
Even 	if 	the 	exclusion of past practices were 	not 	found 	to be
within the purview of this 	section, 	the result would be the 	same.
15

The 	District's 	primary defense to the 	complaint 	is 	that 	the
past practice of 	the District has 	been to 	reduce hours without
negotiations with CSEA. 	It also asserts 	that the 	zipper 	clause
in 	its 	agreement with CSEA precludes 	negotiations 	of matters 	not
covered by the 	agreement 	and 	includes 	an 	express 	waiver by 	both
sides.
The District contends 	that the record evidences 	that 	it has,
for the 	last 20 years, 	undertaken reduction in hours without
negotiating with CSEA, 	and that CSEA has 	failed to 	show any
unilateral 	change 	in the 	District's practices with respect 	to
reduction in hours.
As 	the 	findings 	have 	established, 	the 	District did 	increase
and 	correspondingly decreased hours 	of 	secretaries 	and
instructional aides. 	These actions, 	typified by Nolan's 	examples
and 	testimony was 	that hours were 	increased 	and decreased,
without bargaining with CSEA. 	Some 	changes were discussed 	in
"meet and confer" 	sessions, 	described by McCrery, 	and which were
attended by CSEA representatives. 	At 	these 	sessions 	there was
discussion of 	temporary add on or reduction of 	one hour of
secretary time. 	Thus 	the record 	shows 	some practice of
unilaterally 	increasing and 	reducing hours 	of unit 	employees.
Yet, 	it is noteworthy that 	in only one instance was 	there a
change 	in the magnitude of 	Swensson's 	reduction of 	one-half 	of
her 	full 	days work. 	Typist-clerk Margaret Urquhart had the hours
of 	her workday 	increased by one-half, 	and then at 	the 	end of 	the
year, 	decreased by that amount. 	In all the other examples, 	hours
16

were 	increased, 	and then decreased, 	sometimes upon action 	simply
following the 	initial determination. 	None of the examples 	sets 	a
precedent 	for reduction of 	a 	full-time 	employee's 	hours 	by one-
half.
In Oakland Unified School 	District 	(1983) 	PERB 	Decision
No. 	367, 	PERB addressed a contention of past practice in regard
to 	subcontracting by the 	employer. 	PERB held that an 	increase 	of
almost tenfold to be an increase 	in 	such 	"magnitude 	evidences 	a
change 	in the 	quantity and kind of 	subcontracting as 	to
constitute 	a 	unilateral 	change 	in established policy."
Here, 	record evidence 	shows 	that 	several unit members hours
were 	routinely 	increased 	or reduced during the 	school 	year,
without negotiations between the parties. 	Those changes, 	in
addition to being unlike 	a 	straight reduction of hours,
exemplified 	temporary 	increases 	and 	corresponding decrease 	in
hours, 	and only once met the magnitude of the Swensson action.
Even then, 	the evidence shows 	the reduction followed an increase
in the employee's hours. 	This 	evidence does not meet the
"regular and consistent past patterns 	of changes 	in the
conditions of employment" 	mandated by Pajaro Valley, 	supra. 	It
is 	concluded that 	the District did not 	show a regular and
consistent 	past 	practice 	of 	unilaterally 	reducing 	full-time
positions by one-half, 	without giving notice to and affording
CSEA an opportunity to negotiate the 	reduction 	in hours.
The 	District 	further argues 	that the 	"zipper clause"
precludes 	negotiations 	of 	matters 	not 	covered by the 	agreement
17

and therefore 	CSEA 	is 	precluded 	from negotiating 	the 	decision 	to
reduce hours 	since 	it 	is not covered by the contract, 	citing
Sylvan Union Elementary School 	District 	(1989) 	PERB 	Decision
No. 	780. 	I reject this argument. 	Sylvan is inapposite, 	as PERB
expressly 	noted 	that 	the 	charging party had 	not 	alleged 	the
employer's 	action constituted a 	change 	in past practice.
Moreover, 	while a 	"zipper clause" 	does bar negotiations 	on
matters 	subject to the clause, 	it does 	not enable the 	employer to
take unilateral 	action on matters within the 	scope 	of
representation. 	(Los Angeles 	Community College District 	(1982)
PERB Decision No. 	252.)
It 	is 	concluded that the District's 	action 	in reducing
Swensson's 	hours 	by 	one-half 	represents 	an 	increase 	in magnitude
evidencing a 	change 	in the quantity of 	reduction of hours 	and
constitutes 	a unilateral 	change 	in terms 	of 	employment. 	The
District's 	action was 	inconsistent with 	established past
practice, 	and constitutes 	a violation of 	it's duty to bargain 	in
good 	faith. 	This 	same action has 	denied CSEA and 	its 	Chapter 	13
rights guaranteed to it by EERA. 	Thus, 	the District's action
violated section 3543.5(b). 	This 	same action also denied
employees 	their 	rights 	to 	be 	represented by the 	exclusive
representative, 	thus a violation of section 3543.5(a).
REMEDY
PERB is empowered to direct 	". 	. 	. 	an offending party to
cease 	and desist 	from the 	unfair practice 	and to 	take 	such
18

affirmative 	action 	. . . 	as will 	effectuate 	the polices 	of 	this
chapter."7
It 	is 	appropriate to order the District to cease and desist
its 	violation of the obligation to bargain reduction in hours 	to
the 	extent 	such reduction represents 	a 	change from its prior
practice. 	It 	is 	customary to order return to the status 	quo
ante. 	Thus, 	Swensson's hours 	should be restored to 8 hours per
day, 	and 	she 	should be awarded back pay 	for the time 	lost as 	a
result of 	the unlawful 	reduction. 	The award 	should be 	limited to
the 	time 	from reduction to her ultimate 	resignation 	from the
District. 	Interest at 	seven 	(7) 	percent per annum shall 	also be
included.
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 purpose 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 	(1978)
PERB Decision No. 	69.)
PROPOSED 	ORDER
Upon the 	forgoing 	findings 	of 	fact 	and 	conclusions 	of 	law
and the entire record 	in the case, 	it is 	found that the Cupertino
7Section 3541.5(c).
19

Union School 	District 	(District) 	violated Government Code 	section
3543.5(c) 	of the Educational Employment Relations Act 	(Act). 	The
District 	violated 	the Act 	by unilaterally 	reducing 	the 	hours 	of 	a
unit 	employee 	in a 	substantial 	change 	from past practice. 	This
action 	also 	interfered with 	the 	right 	of 	the 	California 	School
Employees Association and its Cupertino Chapter 	13 	(CSEA) 	to
represent its members, 	and was thus, 	also a violation of 	section
3543.5(b). 	This 	same action also denied employees the right to
participate 	in employment related activities, 	a violation of
section 3543.5(a).
Pursuant to section 3541.5(c) 	of the Government Code, 	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 	the 	exclusive 	representative 	by 	taking unilateral
action with respect to reduction of hours 	of unit 	employees.
2. 	By this 	same conduct, 	interfering with the right of
CSEA to represent 	its 	members.
3. 	By this 	same conduct, 	denying bargaining unit
employees 	the 	right to be 	represented by CSEA.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICES OF THE ACT:
1. 	Restore the 	status 	quo ante with regard to the
reduction of hours 	to 	the 	level which 	existed prior to the
District's 	unilateral 	action on 	Stephanie 	Swensson's 	position.
20

2. 	Reimburse Stephanie Swensson for loss 	of pay 	from
the time of the reduction of hours 	until 	the date of her
resignation 	from the District. 	The amount of 	the reimbursement
shall be 	augmented by 	interest 	at 	the 	annual 	rate 	of 	seven 	(7)
percent.
3. 	Within ten 	(10) 	workdays of the service of a 	final
decision in this matter, 	post at all work locations where notices
to 	classified 	employees 	customarily are posted, 	copies 	of 	the
Notice 	attached hereto 	as 	an Appendix. 	The Notice must be 	signed
by an authorized agent of the District, 	indicating that the
District will 	comply with the terms 	of 	this 	Order. 	Such posting
shall be maintained 	for a period of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be taken to 	ensure that the
Notice 	is 	not reduced in size, 	altered, 	defaced or covered with
any other material.
4. 	Upon issuance of a final decision, 	make written
notification of 	the actions 	taken to 	comply with 	the Order to 	the
San 	Francisco 	Regional 	Director of 	the 	Public 	Employment
Relations 	Board 	in accord with 	the director's 	instructions.
Pursuant to California Code of Regulations, 	title 	8,
section 32305, 	this 	Proposed Decision and Order 	shall become
final 	unless 	a party files 	a 	statement 	of 	exceptions with 	the
Board 	itself 	at 	the headquarters 	office 	in Sacramento within
20 days 	of 	service of this Decision. 	In accordance with PERB
Regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit number the portions 	of 	the record, 	if any,
21

relied upon for such exceptions. 	(See Cal. 	Code of Regs.,
tit. 	8, 	sec. 	32300.) 	A document is considered 	"filed" when
actually received before the 	close of business 	(5:00 	p.m.) 	on the
last day set for filing 	". 	. 	. o r when sent by telegraph or
certified or Express 	United States 	mail, 	postmarked not 	later
than the 	last day 	set 	for 	filing 	. . . " 	(See Cal. 	Code of 	Regs.,
tit. 	8, 	sec. 	32135; 	Code Civ. 	Proc., 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon 	each party 	to 	this 	proceeding.
Proof 	of 	service 	shall 	accompany 	each 	copy 	served 	on a party 	or
filed with the Board itself. 	(See Cal. 	Code of Regs., 	tit. 	8,
secs. 	32300, 	32305 and 32140.)
GARY M. GALLERY
Administrative Law 	J u d g e
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