San Ysidro School District (PERB 1198E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN YSIDRO
CHAPTER 	#154,
Charging 	Party,
v.
SAN YSIDRO SCHOOL DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
Case No. 	LA-CE-3597
PERB Decision No. 	1198
May 	7, 	1997
)
Appearances: 	California 	School 	Employees 	Association by Ann M.
Smith, 	Labor Relations Representative, 	for California School
Employees Association and 	its 	San Ysidro Chapter #154; 	Wagner 	&
Wagner by John J. 	Wagner, 	Attorney, 	for San Ysidro School
District.
Before Caffrey, 	Chairman; 	Johnson and Dyer, 	Members.
DECISION
JOHNSON, 	Member: 	This 	case comes before the Public
Employment 	Relations 	Board 	(PERB or Board) 	on appeal 	by the
San Ysidro School District 	(District) 	to a proposed decision
(attached) 	in which the administrative law judge 	(ALJ) 	found
that 	the District violated section 3543.5(b) 	and 	(c) 	of 	the
Educational 	Employment Relations Act 	(EERA)1 when it 	reduced the
1EERA is 	codified at Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government Code. 	EERA section 3543.5 provides, 	in
pertinent part:
It 	shall 	be unlawful 	for a public 	school
employer to do any of 	the 	following:
(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.
hours 	for two health clerk positions without 	affording 	the
California 	School 	Employees Association and 	its 	San Ysidro
Chapter #154 	(Association) 	notice 	or opportunity to negotiate
the decision.
The Board has 	reviewed the 	entire 	record, 	including
the proposed decision, 	the District's 	exceptions 	and the
Association's 	response. 	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 	consistent 	with
the 	following 	discussion.
DISTRICT'S 	EXCEPTIONS
The 	District 	raised 	two main exceptions 	to 	the proposed
decision. 	First, 	the District 	excepts 	to the ALJ's 	finding
that 	the 	health 	clerk 	classification 	is 	included 	in 	the unit
represented by the Association. 	That 	classification 	is 	not
listed in the 	recognition article of 	the parties' 	contract,
and 	the 	District 	asserts 	that 	the ALJ 	cannot 	consider outside
evidence 	to interpret 	the 	contract. 	Second, 	the District argues
that 	the 	Education Code permits 	it 	to reduce hours without
bargaining 	and preempts 	any 	EERA bargaining 	obligation.
ASSOCIATION'S 	RESPONSE
The Association 	concedes 	that 	the health 	clerk
classification does 	not 	appear 	in the 	recognition clause 	of 	the
parties' 	contract, 	but asserts 	that all 	classified employees 	in
22

the 	District 	are 	exclusively 	represented by 	the 	Association,
including health 	clerks.
DISCUSSION
Inclusion of 	Health 	Clerk 	Positions 	in Bargaining Unit
The District 	asserts 	that 	the ALJ may not 	look beyond the
record 	for evidence 	that 	the 	health 	clerk positions 	are 	included
in the bargaining unit. 	It 	is well-settled that 	the Board may
take official notice of 	its own records. 	(See, 	e.g., 	El Monte
Union High School District 	(1980) 	PERB Decision No. 	142 at p. 	2.)
Our review of 	the 	representation 	file 	shows 	that 	the April 	19 76
request 	for 	recognition 	contains 	the 	following 	language:
The unit 	for which CSEA requests 	exclusive
representation 	is 	composed 	of 	. . .
classified 	employees 	as 	reflected by 	the
public 	records 	of 	the district. 	We request
that 	all 	of 	the district's 	classified
employees 	be 	designated as 	an appropriate
unit, 	which shall 	INCLUDE but not be 	limited
to the 	following major groupings 	of 	jobs:
[list follows]. 	[Emphasis added.]
The 	District voluntarily 	recognized 	that 	unit 	in May 	1976.
Although 	the 	health 	clerk 	classification was 	not 	created until
1992, 	the emphasized language indicates the parties' 	intent to
include all 	classified employees 	in a single unit, 	with listed
exceptions.2 The ALJ 	correctly 	concluded 	that 	health 	clerks 	are
included 	in the unit 	in question.
Unilateral 	Change 	Issue
The District 	argues 	that 	its 	decision to 	reduce hours 	is
2Certain managerial, 	confidential 	and 	supervisory positions
were 	expressly 	excluded 	from the 	unit.
33

a 	nonnegotiable 	layoff 	decision under 	Education 	Code 	section
45101(g),3 which preempts 	its EERA bargaining obligation. 	We
disagree. 	Education Code section 45101(g) 	expressly states 	that
a 	reduction 	in hours 	constitutes 	a 	layoff 	only 	if 	the 	affected
employees voluntarily consent 	to 	the 	reduction in lieu 	of 	layoff.
There 	is 	no 	evidence 	that 	the 	employees 	in this 	case 	consented
to the reduction in hours 	in lieu of 	layoff. 	Therefore, 	the
Education Code 	does 	not 	apply or permit 	the District's 	conduct.
The Board has 	already ruled on this 	issue, 	as 	the ALJ noted.
In North Sacramento School District 	(1981) 	PERB Decision No. 	193
(North Sacramento), 	the Board held that a reduction in hours 	is
different 	from a 	layoff, 	that 	the 	Education Code 	layoff provision
prohibiting bargaining did not 	apply, 	and 	that 	a 	reduction 	in
hours 	falls within the scope 	of 	representation. 	In Healdsburg
Union High School District 	(1984) 	PERB Decision No. 	375, 	at
page 	58, 	the Board expressly applied North Sacramento 	to nonmerit
districts 	such as 	San Ysidro. 	Therefore, 	we 	find that 	the ALJ
in 	the 	case 	at 	bar 	correctly 	concluded 	that 	the District's
unilateral 	reduction 	in hours 	affects 	a negotiable 	subject 	and
that 	a violation 	of 	EERA occurred.
3Education Code section 45101(g) 	provides that:
'Layoff 	for lack of 	funds 	or layoff 	for lack
of work' 	includes any reduction in hours 	of
employment 	. 	. 	. 	voluntarily consented to by
-----·	the employee, 	in order to avoid interruption
of 	employment by layoff. 	[Emphasis added.]
44

Remedy
It 	is necessary to discuss 	one 	remaining 	issue. 	The ALJ
ordered 	that 	back pay and 	the 	out-of-pocket 	expenses 	incurred
by the 	six-hour health clerk, 	as a result 	of 	the 	loss 	of health
coverage, 	be augmented by interest 	at 	the 	rate of 	7 percent per
annum 	(Article XV, 	sec. 	1 	of 	the California Constitution and
San Francisco Unified School Dist, 	v. 	San Francisco Classroom
Teachers Assn. 	(1990) 	222 Cal.App.3d 146 	[272 Cal.Rptr. 	38]).
We 	note 	that 	in The Regents 	of 	the University of 	California
(1997) 	PERB Decision No. 	1188-H, 	this Board recognized the fact
that 	administrative 	agencies 	such as 	PERB are 	not 	bound by 	the 	7
percent 	interest 	rate specified in Article XV, 	section 1 	of 	the
California Constitution. 	In this case, 	however, 	we conclude that
it 	is appropriate 	to award interest at 	the 	rate of 	7 percent per
annum pursuant 	to 	the Board's 	discretion.
ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law, 	and the entire 	record in the case, 	and pursuant 	to the
Educational Employment Relations Act 	(EERA), 	Government Code
section 3541.5(c), 	it 	is hereby ordered that the San Ysidro
School District 	(District) 	and its 	representatives 	shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and 	refusing 	to meet 	and negotiate 	with
the 	California 	School 	Employees Association and 	its 	San Ysidro
Chapter #154 	(Association) 	about 	the reduction of hours 	of
bargaining unit 	employees.
55

2. 	Denying 	the Association 	its 	right 	to 	represent
bargaining unit members 	in 	their employment 	relations 	with 	the
District.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE THE 	FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE 	EERA:
1. 	Restore the health clerks 	to the hours accorded
them prior to June 22, 	1995, 	with accompanying benefits.
2. 	Pay 	to the affected employees 	lost 	earnings 	as 	a
result 	of 	the 	reduction 	in hours. 	Any out-of-pocket 	expenses
incurred by 	the 	six-hour health 	clerk as 	a 	result 	of 	the
termination of 	health 	insurance 	coverage 	shall 	also be 	reimbursed
to 	that 	employee. 	The back pay and out-of-pocket 	expenses 	shall
be 	augmented with 	7 	percent 	per annum interest.
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, 	altered, 	defaced or covered by any
other material.
6
6

4. 	Written notification of 	the actions 	taken to
comply with this 	Order shall 	be made 	to 	the 	Los Angeles 	Regional
Director of 	the 	Public 	Employment 	Relations 	Board 	in accordance
with 	the 	director's 	instructions.
Chairman Caffrey and Member Dyer 	joined 	in 	this 	Decision.
J
	7

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-3597,
California School 	Employees Association and 	its 	San Ysidro 	Chapter
#154 v. 	San Ysidro School District, 	in which all parties 	had the
right 	to participate, 	it has been found that the San Ysidro School
District 	(District) 	violated 	the 	Educational 	Employment 	Relations
Act 	(EERA), 	Government Code section 3543.5(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 with the
California 	School 	Employees Association and 	its 	San Ysidro 	Chapter
#154 	(Association) 	about 	the 	reduction of hours 	of bargaining unit
employees.
2. 	Denying the Association its 	right 	to 	represent
bargaining unit 	members 	in 	their employment 	relations 	with 	the
District.
3. 	Denying bargaining unit members 	their right 	to be
represented by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE THE 	POLICIES 	OF THE 	EERA:
1. 	Restore 	the health clerks 	to the hours accorded them
prior to June 22, 	1995, 	with accompanying benefits.
2. 	Pay to 	the affected employees 	lost 	earnings 	as 	a
result 	of 	the 	reduction 	in hours. 	Any out-of-pocket 	expenses
incurred by 	the 	six-hour health 	clerk as 	a 	result 	of 	the
termination 	of 	health 	insurance 	coverage 	shall 	also be 	reimbursed
to 	that 	employee. 	The back pay and out-of-pocket 	expenses 	shall 	be
augmented with 	7 	percent 	per annum interest.
Dated: 	SAN YSIDRO 	SCHOOL DISTRICT
By: Authorized 	Agent
THIS 	IS AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED 	FOR AT LEAST
THIRTY 	(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE 	OF 	POSTING AND MUST
NOT BE REDUCED IN SIZE, 	DEFACED, 	ALTERED, 	OR COVERED WITH ANY OTHER
MATERIAL.

STATE 	OF CALIFORNIA
PUBLIC 	EMPLOYMENT RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	SAN YSIDRO
CHAPTER 	# 1 5 4 ,
C h a r g i n g P a r t y ,
v.
SAN YSIDRO SCHOOL DISTRICT,
Respondent.
)
)
)
)
) 	Unfair 	P r a c t i c e
Case No. 	LA-CE-3597
PROPOSED DECISION
( 1 0 / 1 / 9 6 )
)
)
)
)
)
)
)
Appearances: 	Ann M. 	Smith, 	Labor Relations Representative, 	for
California 	School 	Employees Association 	and 	its 	San Ysidro
Chapter #154; 	Wagner, 	Sisneros & Wagner, 	by John J. 	Wagner,
Attorney, 	for San Ysidro School District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
This 	proposed 	decision 	results 	from 	an unfair practice
charge 	filed by the 	California 	School 	Employees 	Association and
its 	San Ysidro 	Chapter #154 	(CSEA) 	against 	the 	San Ysidro School
District 	(District) 	on August 11, 	1995. 	After investigation, 	and
on January 3, 	1996, 	the deputy general 	counsel 	of the 	Public
Employment 	Relations 	Board 	(Board or 	PERB) 	issued a 	complaint
against 	the 	District. 	The 	complaint 	alleged that prior to
June 	22, 	1995, 	the District's policy concerning hours worked per
day 	for 	two 	health 	clerks 	was 	that 	one 	worked 	3.75 	hours 	and 	the
other worked 	6 	hours 	per day. 	The 	District 	changed this policy
on June 22, 	1995, 	the complaint alleged, 	by reducing the 	first
position 	from 3.75 	to 	3 	hours 	and the 	6-hour position to 	3 	hours
per day. 	This 	action was 	taken without 	notice 	to CSEA or
affording 	CSEA the 	opportunity to negotiate 	the 	decision 	to
This proposed decision has been appealed to the
Board i t s e l f and may not be cited as precedent
unless the decision and i t s rationale have been
adopted by the Board.

implement 	the 	change 	in policy and/or the 	effects 	of 	the 	change
in policy. 	The District's 	conduct 	was 	alleged to be 	a violation
of 	Educational 	Employment 	Relations Act 	(EERA or Act) 	section
3543. 5(a), 	(b) 	and (c).1
The District's answer, 	filed on January 22, 	1996, 	denied any
violation of 	the Act. 	A PERB 	conducted 	settlement 	conference 	did
not 	resolve 	the 	dispute. 	A formal 	hearing was 	held on March 20,
1996, 	in San Ysidro, 	California. 	With the 	filing of post-hearing
briefs on May 15, 	1996, 	the matter was deemed submitted for
decision.
FINDINGS 	OF 	FACT
The 	District 	is 	an employer and CSEA is 	the 	exclusive
representative 	of 	classified employees within the District, 	both
within the meaning of 	the Act.
1JEERA	EERA is 	codified at 	Government 	Code 	section 3540 	et 	seq.
Unless 	otherwise 	indicated, 	all 	statutory references 	herein are
to the Government 	Code. 	In relevant part, 	section 3543.5 	states
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.
22

The 	parties 	have 	a 	collective 	bargaining 	agreement 	(CBA)
covering the period July 1, 	1994 	through June 30, 	1997. 	Within
Article 	I 	(Recognition), 	are listed several categories of
employees 	represented by CSEA. 	Included 	is 	a position called
classified registered nurse. 	There 	is no reference 	to health
clerk positions.2 Proviso B of Article 	I 	provides:
The unit 	excludes management, 	supervisory,
and confidential 	employees 	as 	defined by
EERA; 	and all 	substitute, 	temporary and
short-term 	employees.
Article 	I 	also 	includes 	the 	following language:
C. 	Whenever the District 	establishes 	a new
position 	in 	the 	classified 	service 	of 	the
District 	and plans 	to 	designate 	such new
position as management, 	supervisory or
confidential, 	the District will 	notify the
CSEA and give 	the 	CSEA an 	opportunity 	for
input. 	Disputed cases may be 	submitted to
the 	Public 	Employment 	Relations 	Board
pursuant 	to 	applicable 	law and 	regulations.
D. 	The 	six groups 	of 	employees 	in provision
A are 	listed therein 	for 	informational
purposes 	only, 	and these groups 	shall 	not be
interpreted as 	classes 	for purposes 	of 	layoff
or any other change 	in employment 	status.
The 	classified 	salary 	schedule 	includes 	reference 	to 	health
clerks.
Arthur La Cues 	(La Cues) 	is 	the director of personnel
services. 	Lorraine Ramirez 	(Ramirez), 	a classified employee of
the District, 	is president of CSEA. 	Martha Pacheco 	(Pacheco) 	and
Maria Hernandez 	(Hernandez) 	are 	employed at 	the District 	as
2A review of 	PERB's 	representation 	file 	does 	not 	reflect
that 	the 	parties 	intended 	to 	include 	or exclude 	health clerk
positions. 	As noted later, 	the positions were created in 1992.
W
	3

health clerks. 	Both have 	CSEA membership dues 	deducted 	from
their paychecks by the District. 	Both clerks 	obtain vacation
accrual 	in accordance with the 	CBA, 	and both received 	salary
increases 	along with other 	classified 	employees 	as 	a 	result 	of
CSEA bargaining.
Two personnel 	employees 	with 	the 	District 	testified 	they
believed 	the 	health 	clerk positions 	are 	in 	the 	bargaining unit.
Witnesses 	under 	cross-examination 	admitted 	the 	health 	clerks 	were
not 	listed 	in the 	recognition article.
On June 	21, 	1995, 	La Cues 	spoke with Ramirez 	and informed
her that 	the 	school 	board was 	going to 	eliminate 	the 	library
clerks 	and reduce 	the hours 	of health clerks. 	This was 	the 	first
she was 	aware of 	the 	reduction 	in hours of 	the 	health clerks.
The next day, 	June 22, 	1995, 	Ramirez obtained the agenda for
a 	special 	meeting of 	the board on that 	day. 	The 	agenda 	included
proposed personnel 	actions 	eliminating 	several 	classified
positions 	and reducing the 	hours 	of 	the 	health clerks.
Ramirez 	spoke 	at 	the board meeting. 	She 	complained to 	the
board that 	she 	had not 	had the 	opportunity to negotiate 	the
reduction 	in hours. 	She 	had written out 	a 	statement 	the night
before, 	she 	testified, 	to ask that 	CSEA be given an opportunity
to 	negotiate 	on the 	elimination of 	positions 	and reduction of
hours. 	Notwithstanding, 	the board voted to reduce 	the hours 	of
the health clerks.
A
	4

Prior to the board action, 	Ms. 	Hernandez worked 3.75 hours
per day. 	As 	a result of the change, 	she worked 3 	hours per day.
Ms. 	Pacheco 	formerly worked 	6 	hours per day and her hours 	were
reduced to 3 	hours per day as 	a result 	of 	the board's 	action.
She 	spoke 	to 	the board on June 	22. 	Prior to the 	reduction 	in
hours, 	Pacheco received health 	insurance. 	As 	a result 	of 	the
reduction in hours, 	she no 	longer 	is provided health 	insurance.
The 	health 	clerk positions 	were 	created by the 	board 	in
1992. 	CSEA never requested the board to modify the unit 	to
include 	the health clerk positions. 	Nor did. the District 	notify
CSEA that 	the positions were 	to be 	exempt 	under the provision of
Article 	I.B. 	set 	forth above.
On June 23, 	1995, 	Ann Smith 	(Smith), 	labor relations
representative for CSEA, 	wrote to La Cues. 	Ms. 	Smith stated:
It 	has 	come 	to 	the 	attention of 	California
School 	Employees Association 	and 	its 	San
Ysidro 	Chapter 	154 	that 	the District 	intends
to unilaterally reduce 	the 	hours 	of Health
Clerks. 	In North Sacramento School District
(12/31/81) 	PERB Decision No. 	193, 	the PERB
held that 	the 	decision to 	reduce 	hours 	is
within the 	scope on representation, 	and the
employer's 	unilateral 	action on 	such matters
is 	a violation of 	the 	Educational 	Employment
Relations Act subsection 3543.5(c).
CSEA respectfully demands 	that 	the 	San Ysidro
School 	District 	cease 	and desist 	from
unilaterally reducing 	the 	hours 	of 	classified
bargaining unit positions. 	If 	the District
continues 	to persist 	in its unlawful 	action,
CSEA will 	have 	no 	recourse but 	to 	file 	an
unfair 	labor practice 	with the 	Public
Employment 	Relations 	Board.
The 	District 	did not 	respond to 	Smith's 	letter.
s

On June 29, 	1995, 	the District notified Pacheco, 	in writing
of the reduction in hours effective July 31, 	1995. 	The 	letter
stated, 	"During 	this 	time you will 	have preference 	as provided by
the 	Education 	Code 	and the 	District/Bargaining Unit 	Agreement."
Article VIII 	of 	the 	contract 	covers 	"District 	Rights" 	and
provides 	that 	the board 	"retains 	the 	right 	to hire, 	classify,
layoff, 	evaluate, 	promote, 	terminate, 	and discipline employees."3
This 	article 	further provides:
. 	. 	. 	In addition, 	the Board retains the
right 	to 	take 	action under this Article.
Such 	right 	is 	subject 	to 	any demand by CSEA
to 	negotiate 	any 	impacts 	and effects 	within
the 	scope 	of 	representation. 	Should CSEA
desire 	to exercise 	its 	right 	to negotiate,
the 	CSEA must 	give 	its 	initial 	proposal 	to
the District within ten 	(10) 	calendar days
after 	the 	CSEA knew or 	reasonably 	should have
known of the District's action. 	. 	. 	. 	The
District 	may take 	final 	action 	sixty 	(60)
calendar days 	following 	the 	commencement 	of
negotiations, 	but 	the parties 	still 	shall
attempt 	to 	resolve 	the 	subjects 	in
negotiations.
The 	CBA contains 	no provisions 	on 	the 	District's 	authority
to unilaterally reduce employee hours. 	However, 	Article XVI
covers 	layoff 	for lack of work or lack of 	funds. 	It provides
that 	a 	3 0-day notice 	shall 	be provided and 	that 	CSEA and the
District 	shall 	meet within 	five working days 	after notice 	"to
review the proposed 	layoffs 	under 	the 	provisions 	of 	this
agreement." 	A separate provision 	in 	this 	article provides
3The 	CBA provides 	for binding 	arbitration of 	grievances.
However, 	the 	exercise of Article VIII 	rights 	are not 	subject 	to
the grievance procedures.
66

reinstatement 	to 	full-time 	to 	employees who 	take 	a voluntary
reduction 	in time 	in 	lieu of 	layoff.
La 	Cues 	testified that 	the 	District 	had never negotiated a
reduction in hours with CSEA prior to June 22, 	1995. 	He also
testified, 	however, 	that 	the District 	had not 	reduced hours of
classified employees prior to the June 	1995 	action.
ISSUE
The 	issue 	in this 	case 	is 	whether the 	District 	violated EERA
when 	it 	unilaterally reduced the 	hours 	of 	the 	two 	health 	clerks?
CONCLUSIONS 	OF 	LAW
At 	hearing, 	the 	District 	raised the 	defense 	that 	the 	health
clerk positions were 	not 	part 	of 	the bargaining unit,4 in that
the 	article 	on recognition does 	not 	refer to the 	health clerks
and 	that 	CSEA never 	requested the 	unit 	be 	modified 	to 	include 	the
clerks. 	It 	further argued in its post-hearing brief 	that 	CSEA
witnesses 	admitted that 	the 	recognition article 	did not 	refer to
the 	health clerk positions.
Here, 	the District 	did not 	establish that 	the 	employees were
of 	any other kind, 	other than classified employees.5 The
recognition 	article 	specifically excludes 	management,
supervisory, 	and confidential 	employees 	as 	defined by EERA; 	and
4The 	District 	answer does 	not 	refer to this 	defense.
Failure 	to 	raise 	the 	issue might 	constitute waiver of 	the
contention. 	Nonetheless, 	I 	address the arguments on their
merits.
5Education Code 	sections 	45103 	and 45104 	mandate non-
certificated employees 	of 	the District 	be 	classified as
classified 	employees.
77

all 	substitute, 	temporary and short-term employees. 	The 	health
clerk positions 	fit 	none of 	those 	exemptions. 	It 	can be 	assumed
that 	if 	the 	District 	intended to exclude 	the health clerk
positions, 	it would have 	listed the positions 	as 	excluded.
(See El Monte Union High School District 	(1980) 	PERB Decision
No. 	142.)
The 	health clerk positions 	were 	listed on 	the 	classified
salary schedule, 	the 	employees 	received raise 	increases 	along
with other 	classified employees 	as 	a 	result 	of 	CSEA bargaining,
and accrued vacation benefits pursuant 	to 	the 	CBA. 	The 	District
deducted dues 	for CSEA at the employees' 	request. 	Finally, 	the
District 	referred to 	the 	bargaining unit 	agreement 	in 	the 	notice
to 	the 	employees 	that 	their hours were 	to be 	reduced.6
I 	conclude 	that 	the 	health clerk positions 	are within the
bargaining unit 	represented by 	CSEA.
A public 	school 	employer's 	flat 	refusal 	to negotiate 	a
matter within the 	scope 	of 	representation 	is 	a per 	se violation
of 	its 	obligation to meet 	and negotiate 	in good 	faith.
(Sacramento 	City Unified School 	District 	(1979) 	PERB Decision No.
100; 	Sierra Joint Community College District 	(1981) 	PERB Decision
No. 	179; 	Pajaro Valley Unified School District 	(1978) 	PERB
Decision No. 	51.)
6Also 	noteworthy 	is 	Ramirez's 	uncontradicted 	testimony 	that
La 	Cues 	approached her the 	day before 	the 	scheduled board action
and 	informed her 	that 	the 	health clerk hours 	were 	to be 	reduced.
If 	the positions were not 	in the bargaining unit, 	why would he
relate 	that 	scheduled action 	to 	the 	chapter president?
8

While 	the 	decision to 	lay off 	employees 	is 	outside 	of 	the
scope 	of 	representation,7 the 	decision and the 	effects 	of 	the
decision 	to 	reduce 	employees 	hours 	are within the 	scope 	of
representation. 	(North Sacramento School 	District 	(1981) 	PERB
Decision No. 	193.)
The 	District 	argues 	that Article VIII 	of 	the 	CBA:
affirms the parties 	. 	. 	. 	understanding that
the 	District 	retained all 	of 	its power and
authority to the 	full 	extent 	of 	the 	law to
direct, 	manager 	[sic] 	and control 	its
operations 	limited 	only by 	express
provisions 	of 	the 	contract. 	These 	retained
rights 	are 	those 	set 	forth in the Education
Code which permit 	layoffs 	for 	lack of 	work 	or
lack of 	funds. 	[Emphasis 	in original.]
Under the Education Code, 	urges 	the District, 	layoff 	for
lack of work or lack of 	funds 	includes 	a 	reduction 	in hours.
PERB 	has 	distinguished between 	layoffs 	and 	reduction 	in
hours. 	As noted, 	decisions 	to layoff are outside of the 	scope of
representation, 	but 	the decision to reduce hours 	is within scope.
Here, 	contends 	the District, 	CSEA never demanded to
negotiate 	the 	effects 	of 	the 	reduction 	in hours 	as 	required by
Article VIII. 	The 	June 	letter from CSEA is 	not 	a demand to
negotiate the effects of 	the reduction in hours, 	but 	rather a
threat 	to 	file 	an unfair practice 	charge.
The 	argument 	overlooks 	the 	fact 	that 	Ramirez 	asked the 	board
that 	CSEA be 	given 	the 	opportunity to negotiate 	the 	reduction 	in
hours before 	the board took action on June 	22, 	1995. 	Moreover,
7Newman-Crows 	Landing Unified School 	District 	(1982) 	PERB
Decision No. 	223 	(Newman-Crows Landing).
99

Article VIII 	clearly contemplates 	that 	the District 	would delay
action to allow CSEA to make 	its 	request 	known. 	That 	is not what
happened 	in this 	case. 	The District 	took action, 	adopting the
resolution to reduce 	the health clerk hours, 	in the 	face of
CSEA's 	request 	to negotiate 	that 	reduction.
The 	District 	argues 	that Article XVI 	covers 	layoff 	and
reemployment with written notice 	of 	layoff. 	Here 	the District
gave notice on June 	29, 	1995. 	Under the provisions of Article
XVI, 	CSEA had 	five 	days 	to 	review the proposed layoff 	under the
provisions 	of 	the 	agreement. 	The meeting did not 	take place.
The CSEA then, 	under the provisions of the CBA, 	had 20 	days 	to
file 	a grievance 	on 	the 	alleged violation of Article 	XVI. 	No
such grievance 	was 	ever 	filed.
The 	argument 	is not persuasive. 	The District 	is not 	charged
with not 	meeting with CSEA to review the 	layoff. 	Rather, 	the
District 	is 	charged with unilaterally reducing 	the 	hours 	of 	the
health clerks. 	This it did on June 22, 	1995, 	when the board of
trustees 	adopted 	the 	resolution 	calling 	for 	the 	reduction 	in
hours 	in the 	face of 	CSEA's 	request 	to negotiate 	the 	issue.
Finally, 	the District 	argues 	that 	it 	had a past practice 	of
never negotiating with CSEA over 	reduction 	in hours.
This 	argument 	is 	rejected. 	The 	testimony of 	La 	Cues 	is
clear 	that 	the 	District 	had never 	reduced hours 	prior 	to 	the
June 	1995 	incident. 	Accordingly, 	no practice of 	reducing hours
without 	negotiating with 	CSEA could 	have 	been established.
10
'

Here, 	CSEA conveyed 	its 	desire 	to be 	involved 	in 	the 	action
the board was 	considering. 	Ramirez 	addressed the board and
stated 	that 	CSEA had not 	had an opportunity to 	discuss 	the 	matter
with the District. 	In Newman-Crows Landing. 	PERB held:
. . . 	While 	it 	is 	not 	essential 	that 	a
request 	to negotiate be 	specific 	or made 	in a
particular form, 	[citations] 	it 	is important
for 	the 	charging party to 	have 	signified 	its
desire 	to 	negotiate 	to 	the 	employer by 	some
m e a n s . . . .
The 	Board 	further 	stated:
In other words, 	a valid request will be
found, 	regardless 	of 	its 	form or the words
used, 	if 	it 	adequately signifies a desire to
negotiate 	on a 	subject 	within 	the 	scope 	of
bargaining. . . .
Ramirez 	spoke 	to the board prior to the adoption of 	the
resolution reducing 	the 	hours 	of 	the 	health clerks. 	She 	asked to
have 	an opportunity to negotiate 	the 	issue. 	The board refused.
It 	is 	concluded that 	the District violated 	its 	obligation
to negotiate 	in good 	faith with CSEA, 	as 	required by section
3543.5(c) 	of EERA, 	when it unilaterally reduced the hours of 	the
two 	health 	clerks 	without 	providing 	CSEA an 	opportunity 	to
negotiate 	the 	decision and the 	effects 	of 	the 	decision to 	reduce
the 	hours. 	This 	same 	conduct 	interfered with CSEA's 	right 	to
represent 	employees 	in the bargaining unit 	for which it 	was
the 	exclusive 	representative 	and therefore 	a violation of
section 3543.5(b). 	This 	same 	conduct 	interfered with bargaining
unit members' 	right 	to have 	CSEA represent 	them in their
relations with the District, 	and hence 	constitutes 	a violation of
section 3543. 5 (c) .
11

REMEDY
Under section 354.1.5 (c) 	PERB is empowered 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.
Here 	it 	has 	been 	found that 	the 	District 	violated EERA when
it 	unilaterally reduced the 	hours 	of 	the 	health clerk positions.
This 	same 	conduct 	was 	found to 	interfere with CSEA's 	rights 	to
represent 	bargaining unit 	members, 	and constituted 	interference
with bargaining unit 	members' 	right 	to be 	represented by CSEA.
It 	is 	appropriate 	to order the 	District 	to 	cease 	and desist 	from
such activity in the 	future. 	It 	is 	further appropriate 	to order
the District 	to restore 	the 	status quo ante, 	that 	is, 	return the
conditions 	of 	employment 	for 	the 	health 	clerk positions 	to 	that
existing prior to 	the unlawful 	act. 	(See 	Compton Unified School
District 	(1989) 	PERB Decision No. 	784.) 	The District will be
ordered to 	return the 	two positions 	to 	the 	hours 	worked prior 	to
the unlawful 	change. 	It 	is 	further appropriate 	to pay to 	the
employees 	all 	wages 	lost 	by the unlawful 	act. 	Health coverage
will be provided to 	the 	6-hour position as well, 	and any out 	of
pocket 	expenses 	incurred by 	the 	employee 	holding 	the 	6-hour
position as 	a result 	of 	loss 	of 	health coverage will be
reimbursed by the 	District. 	(See 	Temple 	City Unified School
12

District 	(1990) 	PERB Decision No. 	841.) 	Interest on such back
pay shall 	be 	awarded at 	the 	rate 	of 	7 	percent per annum.8
It 	is 	also appropriate 	that 	the District be 	required to post
a notice 	incorporating the 	terms 	of 	the 	order. 	The 	notice 	should
be 	subscribed by an 	authorized agent 	of 	the 	District, 	indicating
that 	it will 	comply with the 	terms 	thereof. 	The notice 	shall 	not
be 	reduced in 	size. 	Posting 	such a notice will 	provide 	employees
with notice 	that 	the 	District 	has 	acted 	in an unlawful 	manner and
is 	being 	required 	to 	cease 	and desist 	from this 	activity and will
comply with the order. 	It 	effectuates 	the purposes 	of 	EERA that
employees 	be 	informed of 	the 	resolution of 	the 	controversy and
will 	announce 	the 	readiness 	of 	the 	District 	to 	comply with the
ordered remedy. 	(Davis Unified School District, 	et al.. 	(1980)
PERB Decision No. 	116; 	Placerville Union School District 	(1978)
PERB Decision No. 	69.)
8PERB 	last 	considered the 	appropriate 	amount 	of 	interest 	to
award with back pay in the 	case 	of Mt. 	San Antonio 	Community
College District 	(1988) 	PERB Decision No. 	691 	(Mt. 	San Antonio).
There, 	the Board adopted California Code of 	Civil 	Procedure 	(CCP)
section 	685.010 	for determining the 	rate 	of 	interest. 	Currently,
that 	section sets 	the rate at 	10 percent. 	However, 	subsequent 	to
the Board's decision in Mt. 	San Antonio, 	an appellate court
concluded that 	local 	government 	entities, 	including public 	school
districts, 	are exempted from CCP section 685.010. 	Therefore, 	the
rate 	for a public 	school 	employer is 	7 percent, 	as 	specified in
California Constitution Article XV, 	section 1. 	(See 	San
Francisco Unified School 	District 	v. 	San Francisco 	Classroom
Teachers Association 	(1990) 	222 	Cal.App.3d 146 	[272 	Cal.Rptr.
38].)
13

PROPOSED 	ORDER
Upon the 	foregoing 	findings 	of 	fact 	and conclusions 	of 	law,
and the 	entire 	record in the 	case, 	and pursuant 	to the
Educational Employment Relations Act 	(Act), 	Government Code
section 3541.5 (c), 	it 	is hereby ordered that the San Ysidro
School 	District 	(District) 	and its 	representatives 	shall:
A. 	CEASE AND DESIST 	FROM:
1. 	Failing and refusing to meet 	and negotiate with
the 	California 	School 	Employees Association 	and 	its 	San Ysidro
Chapter #154 	(CSEA) 	about 	the 	reduction of hours 	of bargaining
unit 	employees.
2. 	Denying CSEA its 	right 	to 	represent 	bargaining
unit 	members 	in their employment 	relations with the 	District.
3. 	Denying bargaining unit 	members 	their right 	to be
represented 	by 	their 	chosen 	representative.
B. 	TAKE 	THE 	FOLLOWING AFFIRMATIVE ACTIONS 	DESIGNED TO
EFFECTUATE 	THE 	POLICIES 	OF THE ACT:
1. 	Restore 	the health clerks 	to the hours 	accorded
them prior to June 22, 	1995, 	with accompanying benefits.
2. 	Pay to the affected employees 	lost 	earnings 	as 	a
result 	of 	the 	reduction 	in hours. 	Any out-of-pocket 	expenses
incurred by the 	6-hour health 	clerk 	as 	a 	result 	of 	the
termination of 	health 	insurance 	coverage 	will 	be 	reimbursed 	to
that 	employee. 	The 	back payment 	and out-of-pocket 	expenses 	shall
be 	augmented with 	7 	percent 	per 	annum 	interest.
3. 	Within 10 	days of 	service of this proposed
decision, 	post 	at 	all work 	locations where notices 	to employees
14

customarily are placed, 	copies 	of 	the notice 	attached as 	an
appendix hereto. 	Such posting 	shall 	be maintained 	for a period
of thirty 	(30) 	consecutive workdays. 	Reasonable 	steps 	shall be
taken 	to 	ensure 	that 	said notices 	are 	not 	reduced 	in 	size,
altered, 	defaced or 	covered by 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
2 0 	days of 	service of this Decision. 	In accordance with PERB
regulations, 	the 	statement 	of 	exceptions 	should 	identify by page
citation or exhibit 	number the portions of 	the 	record, 	if 	any,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	32300.) 	A document 	is 	considered 	"filed" 	when actually
received before the close of business 	(5 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 Regs., 	tit. 	8,
sec. 	32135; 	Code Civ. 	P r o c , 	sec. 	1013 shall apply.) 	Any
statement 	of 	exceptions 	and 	supporting brief 	must 	be 	served
concurrently with 	its 	filing upon 	each party to 	this 	proceeding.
15

Proof 	of 	service 	shall 	accompany each 	copy 	served on a party or
filed with the Board itself. 	(See Cal. 	Code Regs., 	tit. 	8, 	secs
32300, 	32305 and 32140.)
Gary 	M. 	Gallery
Administrative Law Judge
16