Antelope Valley Union High School District * * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525 (PERB 1402E)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION AND 	ITS 	CHAPTER
#612,
Charging 	Party,
v.
ANTELOPE 	VALLEY UNION HIGH
SCHOOL DISTRICT,
Respondent.
Case No. 	LA-CE-3865
PERB Decision No. 	1402
September 5, 	2000
Appearances: 	California 	School 	Employees Association by
Maureen C. 	Whelan, 	Staff Attorney, 	for California School
Employees Association and its 	Chapter #612; 	Anthony V. 	Leonis,
Labor Relations 	Consultant, 	for Antelope Valley Union High School
District.
Before Dyer, 	Amador and Baker, 	Members.
DECISION
AMADOR, 	Member: 	This 	case comes before the 	Public
Employment 	Relations 	Board 	(PERB 	or Board) 	on exceptions 	filed by
both 	the Antelope 	Valley Union High 	School 	District 	(District)
and 	the 	California 	School 	Employees 	Association 	and 	its 	Chapter
#612 	(CSEA) 	to a proposed decision 	(attached) 	of a PERB
administrative law judge 	(ALJ). 	In the proposed decision, 	the
ALJ 	dismissed 	CSEA's 	charge 	and complaint 	which 	alleged 	that 	the
District 	unilaterally 	replaced 	a 	full-time 	vacant 	cafeteria
helper position with two part-time 	cafeteria helper positions 	and
refused to negotiate 	the decision or 	its 	effects, 	thereby
OVERRULED IN PART by Huntington Beach Union High School District (2003)
PERB Decision No. 1525, pp. 2-10.

violating section 3 5 4 3 . 5 ( a ) , 	(b) 	and 	(c) 	of 	the Educational
Employment Relations Act 	(EERA) .1
After 	reviewing 	the 	entire 	record 	in 	this 	case, 	including
the 	unfair practice 	charge 	and 	complaint, 	the 	hearing 	transcript,
the 	proposed 	decision 	and 	the 	filings 	of 	the 	parties, 	the 	Board
hereby 	dismisses 	the 	unfair 	practice 	charge 	and 	complaint 	in
accordance 	with 	the 	following 	discussion.
FINDINGS 	OF 	FACT
The 	District 	is 	a 	public 	school 	employer 	and 	CSEA 	is 	the
exclusive 	representative 	of 	an 	appropriate 	unit 	of 	employees,
both 	within 	the 	meaning 	of 	EERA. 	The 	District 	operates 	six 	high
schools: 	Antelope Valley, 	Quartz Hill, 	Palmdale, 	Lancaster,
Desert 	Winds 	and 	Highlands.
1 EERA 	is 	codified at 	Government 	Code 	section 	3 54 0 	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.
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Prior 	to 	1997, 	each 	school 	employed one 	8-hour 	cafeteria
worker, 	except 	for Quartz 	Hill, 	which had two 	8-hour cafeteria
workers. 	Melanie Dohn 	(Dohn), 	a CSEA job steward who was a
longtime 	District 	employee, 	testified that 	the District 	had a
past 	practice 	at 	Quartz 	Hill 	of 	employing workers 	in part-time
cafeteria positions.
Since 	1992, 	the 	food services department 	has 	lost 	a number
of 	8-hour employees. 	Dohn testified that 	the 	District 	has 	a past
practice 	of 	not 	replacing or 	filling vacant 	positions.
Eight-hour positions 	enjoy health 	and welfare 	benefits.
Employees with 	less 	than 	four hours 	do not 	receive 	such benefits.
Teri 	Narveson 	(Narveson) 	was 	employed as 	an 	8-hour per day
cafeteria helper at 	Quartz 	Hill. 	Narveson's duties 	included
stocking the 	snackbar, 	operating a cash register, 	and doing
personnel 	paper work 	for the 	food 	services manager. 	According 	to
Bonita Mendonca 	(Mendonca), 	food services manager at Quartz Hill,
Narveson was 	going to be 	transferred 	to Lancaster High School.
When Narveson 	informed the 	District 	that 	she 	did not 	want 	to
transfer 	to 	Lancaster and would be 	retiring 	soon, 	the 	District
allowed her to 	stay at 	Quartz 	Hill 	until 	she 	retired on
August 2 9, 1997.
Mendonca 	testified that 	Narveson's position 	is 	still 	in
existence but 	remains vacant.
After 	learning about 	an automated pizza machine, 	the
District 	decided to purchase 	one 	and brought 	it 	to Quartz 	Hill
around the 	same 	time Narveson retired. 	According to 	testimony,
33

this 	type 	of pizza machine 	requires 	one person to 	attend to 	it
constantly while 	it 	is being operated. 	At 	least 	one 	other person
must 	be 	available 	to 	run a 	cash register while 	the 	pizza machine
is 	running. 	Thus, 	in order to have 	adequate coverage during
periods 	of peak demand when the pizza machine 	is 	running, 	two
employees 	must 	be 	on 	duty 	from 	approximately one-half 	hour before
snack until 	20 	minutes after 	lunch.
Mendonca 	testified 	that 	Food 	Service 	Director 	Terry 	Custer
(Custer) 	reviewed the 	District's 	staffing 	and 	food 	service
programs 	with 	its 	cafeteria managers. 	Custer determined that
there 	was 	a 	need 	to 	employ 	several 	additional 	part-time 	cafeteria
helpers 	to 	fill 	various positions within the District, 	including
staffing 	the 	new pizza machine 	and cash register at 	Quartz 	Hill.
The 	District 	subsequently posted 	and 	filled 	two 	new 	three
and one-half 	hour 	cafeteria helper positions 	for Quartz 	Hill.2
The 	duties 	described were: 	prepare 	and 	serve 	foods 	in 	cafeteria
or snackbar, 	prepare salads, 	pastries or other foods, 	act as
cashier, 	wash dishes, 	dry, 	sort and put away silver, 	work at
counter 	and 	steam 	tables 	and perform other 	duties 	in 	the
cafeteria as 	required. 	The 	time 	slot 	for the two part-time
positions 	at 	Quartz 	Hill 	was 	designed to cover the 	three 	and one-
half 	hour peak demand time; 	i.e., 	from approximately 	9:15 	a.m. 	to
12:45 	p.m.
2It 	also posted two 	such positions 	at 	Lancaster High School,
and 	one 	each at 	Antelope 	Valley High 	and Highland High 	Schools.
44

In 	response 	to 	questions 	from CSEA job 	steward Dohn,
Mendonca 	told her 	that 	the 	postings 	were 	for two 	new part-time
positions 	at Quartz Hill, 	and that 	the District was not 	filling
the 	8-hour position vacated by Narveson. 	On September 	10, 	1997,
Dohn wrote 	to 	CSEA Labor Relations 	Representative 	Carol 	Finck
(Finck) 	regarding the 	flyer 	she 	saw concerning the 	two
three 	and one-half 	hour vacancies 	at 	Quartz 	Hill 	School.
Finck wrote 	to Director of 	Personnel 	Jan Medema 	(Medema) 	on
September 12, 	1997, 	asserting that the District was reducing the
hours 	of 	an 	8-hour position. 	Finck 	contended 	that 	the 	reduction
in hours 	was 	within 	the 	scope 	of 	negotiations 	and demanded to
bargain 	the 	reduction.
Medema responded on September 16, 	1997. 	She 	stated that 	the
District 	had not 	changed the 	hours 	of 	an existing position, 	but
had decided not 	to 	fill 	the vacancy. 	She 	also 	stated that 	should
an 	8-hour position be 	needed, 	the 	District 	would 	fill 	it.
Mendonca, 	the 	food services manager at Quartz Hill, 	had
worked as 	a 	three 	and one-half 	hour 	food 	service 	worker 	for
several years prior to her 1993 	promotion. 	During that 	time 	she
also 	held the position of 	chief 	job 	steward 	for 	CSEA. 	Prior 	to
receiving her promotion 	to 	the 	food 	services 	manager position,
she 	investigated 	the 	District's 	practices 	with 	respect 	to 	food
service workers. 	She 	found that 	the 	District 	had a past 	practice
of 	eliminating bakers 	and cooks 	through attrition. 	Four 	to 	six
positions 	were vacated and never 	filled. 	She 	also 	found that
food 	inventories 	contained many pre-baked 	or prepackaged goods.
5
5

Because of 	these 	trends, 	she noted that 	the District needed more
cashiers 	and 	fewer 	food preparers.
Mendonca 	also 	testified 	that 	the 	decision not 	to 	fill
Narveson's position at Quartz Hill was not 	related to costs, 	but
rather, 	because that 	site was overstaffed. 	In addition, 	Mendonca
testified that when she became manager at Quartz Hill, 	it was 	the
only 	school 	with 	two 	full-time 	food 	service 	workers.
Mendonca 	further testified 	that 	even 	if Narveson 	had not
retired, 	the 	District 	would 	still 	have 	employed 	two 	three 	and
one-half 	hour positions 	for the 	peak 	time 	slot 	due 	to 	the
purchase 	of 	the pizza machine. 	This 	is because 	a cashier must be
available 	at 	the 	same 	time 	the 	other worker 	is 	operating 	the
pizza machine.
The parties' 	current 	collective bargaining agreement 	title
page 	denotes 	the 	agreement 	as 	covering 	the 	period 	from January 	1,
1997 	to June 	30, 	1999.3 Several provisions 	are relevant 	to this
case.
Article XII, 	"Transfer Policy", 	provides as follows:
12.0 	The 	District 	shall 	have 	the 	sole
authority 	to 	determine when 	and where 	an
opening exists within 	the unit 	of 	classified
unit 	members 	described 	in Article 	I,
Certification of Representative, 	of this
agreement. 	The Superintendent, 	or his
designee, 	shall 	have 	the power to transfer
unit 	members 	from one 	work 	site 	to 	another
work 	site, 	subject 	to the provisions 	set
forth in this Article.
3However, 	the 	"Durations" 	language of the agreement
(Article XXIII) 	provides 	that 	the 	agreement became 	effective upon
board adoption on October 1, 	1997.
66

Article XVII, 	"District Rights", 	provides:
17.0 	All 	matters 	not 	specifically enumerated
as within the 	scope 	of negotiations 	in
Government 	Code 	Section 	3543.2 	are 	reserved
to the District. 	It 	is 	agreed that 	such
reserved rights 	include, 	but 	are not 	limited
to, 	the exclusive 	right 	and power to
determine, 	implement, 	supplement, 	change,
modify, 	or discontinue, 	in whole or in part,
temporarily or permanently, 	any of 	the
following:
Among the 	sections 	is 	17.6 	which provides:
The selection, 	classification, 	direction,
promotion, demotion, discipline, and
termination of 	all personnel 	of 	the District;
affirmative 	action 	and 	equal 	employment
policies 	and programs 	to 	improve 	the
District's 	utilization of 	women 	and
minorities; 	the assignment of unit members 	to
any location 	(subject 	to 	the 	express 	terms 	of
this agreement regarding transfers), 	and also
to any facilities, 	classrooms, 	functions,
activities, 	academic subject matters, 	grade
levels, 	departments, 	tasks or equipment; 	and
the determination as 	to whether, 	when and
where 	there 	is 	a 	job opening.
Section 17.14 provides 	(in part):
In addition to 	it's 	statutory reserve 	rights,
the District 	also 	retains 	within 	its 	sole
discretion all 	rights 	and powers 	not
expressly 	limited by 	the 	clear 	and 	explicit
language of this agreement, 	including but not
limited to 	the 	exclusive 	right 	and power 	to
determine, 	implement, 	supplement, 	change,
modify, 	or discontinue 	in whole or in part,
temporarily or permanently, 	any of 	the
following:
17.14.1 	The 	rate 	of pay 	for any
classifications 	implemented 	during
the 	term of 	this 	agreement.
17.14.2 	Security 	and 	safety measures 	and
rules 	for unit members.
17.14.3 	The 	transfer of 	unit 	members
District-wide.
77

17.14.4 	Staffing patterns.
Finally, 	section 21.1 provides:
It 	is 	agreed that 	during 	the 	term of 	this
agreement, 	the parties waive 	and relinquish
the 	right 	to meet 	and negotiate 	and agree
that 	the parties 	shall 	not be obligated to
meet 	and negotiate with respect 	to any-
subject 	or matter 	covered 	in 	this 	agreement
even 	though 	such 	subjects 	or matters 	were
proposed 	and 	later 	withdrawn.
Both parties 	filed exceptions 	to 	the ALJ's 	proposed
decision.
ISSUE
Did 	the 	District 	fail 	to meet 	and negotiate 	in good 	faith
when 	it 	posted and 	filled two part-time positions 	at 	Quartz 	Hill?
DISCUSSION
An 	employer's 	unilateral 	change 	in 	terms 	and conditions 	of
employment within the 	scope of 	representation 	is, 	absent 	a valid
defense, 	a per se 	refusal 	to negotiate 	and violative 	of 	EERA
section 3543.5 (c) . 	(Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51 	(Pajaro Valley.)
To prevail 	on a 	complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that
(1) 	the 	employer breached or altered the party's written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or 	an
opportunity to bargain over the 	change; 	(3) 	the 	change 	is not
merely an isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of policy 	(i.e., 	having a generalized effect 	or continuing
88

impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change in policy concerns a matter
within 	the 	scope 	of 	representation. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196; 	Pajaro Valley;
Davis Unified School District, 	et al. 	(1980) 	PERB Decision
No. 	116.)
In Arcata Elementary School 	District 	(1996) 	PERB Decision
No. 	1163 	(Arcata), 	PERB addressed the question of the
negotiability of 	an employer's 	decision 	to 	change 	the 	hours 	of 	a
vacant 	position. 	PERB's 	analysis 	included 	finding a balance
between the 	right 	of management 	to 	"run the business" 	against 	the
obligation of 	the 	employer to negotiate 	about 	matters 	within 	the
scope 	of 	representation. 	Drawing on 	federal 	precedent4 and PERB
cases, 	the 	Board concluded that 	contracting out 	decisions 	based
upon 	labor costs 	are 	subject 	to negotiation. 	Relating to
changing vacant positions, 	the Board held that:
Such a 	decision which reflects 	a 	change 	in
the nature, 	direction or level 	of 	service
falls 	within management's 	prerogative 	and 	is
4In Arcata, 	PERB 	relied on 	Fibreboard Paper 	Products 	Corp.
v. 	NLRB 	(1964) 	379 U.S. 	203 	[57 LRRM 2609] 	(Fibreboard), 	Otis
Elevator Co. 	(1984) 	269 NLRB 	891 	[116 LRRM 1075] 	and First
National Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666 	[107 LRRM
2705] 	in defining managerial 	decisions 	that 	"lie 	at 	the 	core 	of
entrepreneurial 	control" 	and are 	excluded 	from the 	scope 	of
representation, 	unless based upon 	labor costs. 	As 	the Board
noted 	in Arcata, 	PERB 	has 	specifically applied the 	Fibreboard
standard 	to 	conclude 	that 	various 	employer 	decisions 	fall 	within
management 	prerogative 	and are 	outside 	the 	scope 	of
representation. 	These 	included the 	employer's 	decisions 	to
create and abolish job classifications; 	contracting out;
assignment 	of 	non-unit work to volunteers; 	the 	decision to 	cease
operation of 	a 	child care 	center; 	and the decision to create 	an
employee assistance program. 	(Arcata at p. 	5, 	fn. 	4.)
9

outside 	the 	scope 	of 	representation.
[footnote omitted] 	Conversely, 	a decision to
change 	the 	hours 	of 	a vacant 	position which
is based on labor cost 	considerations 	and
does not 	reflect 	a change 	in the nature,
direction or level of 	service, 	is directly-
related to 	issues 	of 	employee wages 	and hours
and 	is within the 	scope 	of 	representation.
(Id. 	at p. 	8.)
The 	Board also 	emphasized 	the 	following 	language 	from State 	of
California 	(Department of 	Personnel Administration) 	(1987) 	PERB
Decision No. 	648-S:
If 	the 	decision to be made 	by this 	employer
. 	. 	. 	is based upon considerations other than
labor costs, 	it 	is difficult 	to see how the
decision would be 	amenable 	to 	collective
bargaining. 	The unions would, 	of necessity,
be 	involved 	in decision making beyond their
own 	interests 	of 	employee wages 	and hours.
But 	such 	is 	not 	the 	function of 	an exclusive
representative, 	it 	is the function of
management 	to 	be 	concerned with 	the 	running
of 	the business. 	[Arcata 	at pp. 	7-8.]
Recently, 	in East 	Side Union High School 	District 	(1999)
PERB Decision No. 	1353 	(East Side), 	the Board clarified that
employers 	may adjust 	the 	hours 	of vacant 	positions 	unilaterally
when 	"legitimate 	changes 	in the nature, 	direction or 	level 	of
service 	have 	occurred, 	changes which are 	not 	based primarily on
wage 	and benefit 	cost 	considerations." 	(East 	Side 	at p. 	9.)
The 	Board 	continued:
The 	employer may not 	unilaterally convert 	a
vacant 	full-time, 	full-benefit position to
multiple part-time, 	reduced-benefit positions
at 	substantial 	labor cost 	savings, 	and
justify the 	action 	simply because 	the
resulting part-time 	positions 	will 	provide 	a
changed level 	of 	service.
(Id. 	at p. 	10.)
10

The 	Board concluded that, 	based on 	the 	facts presented 	in
East 	Side, 	the District's 	decision represented a 	"cost 	driven
redeployment 	of 	its 	labor resources" 	and that 	labor cost
considerations, 	rather than a change 	in the nature, 	direction or
level 	of 	service, 	formed the primary basis 	of 	the District's
decision 	to 	convert 	vacant 	full-time 	positions 	to multiple 	three
and one-half hour positions. 	(Id. 	at p. 	11.) 	Thus, 	it concluded
that 	the 	decision was 	negotiable.
Under this 	line of 	cases, 	the 	issue 	is whether the
employer's 	decision not 	to 	fill 	a vacant 	full-time position 	and
to 	create multiple 	new part-time positions 	constitutes 	a
legitimate 	change 	in the nature, 	direction or level 	of 	service or
whether 	the 	decision 	is 	primarily driven by 	labor 	cost
considerations. 	This 	approach 	is 	necessary to 	avoid undermining
the 	Board's 	longstanding 	recognition 	that 	the 	employer's
decisions 	involving 	the 	level 	of 	services 	are within management
prerogative 	and outside 	the 	scope 	of 	representation. 	(Arcata 	at
p. 	5.) 	In weighing these questions, 	the Board must 	rely on
objective 	evidence.
Applying 	this 	line 	of 	precedent 	and 	comparing 	relevant 	facts
to those 	in the 	case 	at bar, 	the Board is persuaded that 	the
District's 	decision does 	represent 	a 	legitimate 	change 	in 	the
nature, 	direction or level 	of 	service 	and is non-negotiable.
Several 	factors 	lead us 	to this 	conclusion.
First, 	there 	is evidence that 	the District's decision to
phase 	out 	the 	full-time position at 	Quartz 	Hill 	was 	made well
11

before 	its 	decision to create 	and 	fill 	part-time positions 	at
that 	school. 	Having decided to 	transfer Narveson's 	full-time
position 	to 	another 	school 	because 	of 	overstaffing at 	Quartz
Hill, 	the District 	informed her of 	the 	impending transfer.
However, 	once 	the District 	learned of Narveson's 	intention to
retire 	in the near 	future, 	it 	refrained 	from implementing the
transfer out 	of 	respect 	for a 	longtime 	employee's personal 	wishes
and retirement 	timetable. 	There 	is 	no 	evidence whatsoever 	that
the District 	intended to 	fill Narveson's position at 	Quartz 	Hill
once 	she 	retired. 	In fact, 	the District's past practice 	is 	to
the contrary, 	as there was a pattern of 	several years' 	duration
of 	leaving 	full-time 	food 	service 	positions 	vacant 	when 	the
incumbent 	retired.
Second, 	it 	is 	clear that 	the District made the decision not
to 	fill 	the 	full-time position at 	Quartz 	Hill 	after Narveson's
retirement 	independently of 	its 	decision 	to 	add 	a pizza machine
and 	staff 	it 	appropriately. 	CSEA has 	not 	successfully rebutted
the 	District's 	substantial 	testimony that 	its 	decision 	to 	create
the 	two new part-time positions 	at 	Quartz 	Hill was made
subsequent 	to 	and 	independently of 	its 	decision not 	to 	fill
Narveson's 	former 	full-time position. 	This 	evidence 	supports 	a
conclusion 	that 	the 	decision was 	not 	based on projected 	labor
cost 	savings 	which would be 	achieved by 	converting 	a 	full-time
full-benefit 	position to 	two part-time 	no-benefit 	positions.
Third, 	the 	decision to add the part-time positions was made
in order 	to 	implement 	the 	District's 	non-negotiable 	decision 	to
12

provide 	a different 	type 	of 	service 	to patrons 	by opening a pizza
parlor. 	Due 	to 	the 	operating requirements 	of 	the pizza machine,
a particular 	staffing 	configuration was 	needed 	in 	order 	to
appropriately serve 	customers, 	i.e., 	one person was 	needed to run
the machine 	and another 	to 	run 	the 	cash register 	for 	the 	same
three 	and one-half 	hour time 	slot.
Both parties 	offer 	compelling arguments, 	but 	CSEA has 	failed
to 	support 	its 	allegations with convincing evidence. 	The
District, 	by contrast, 	as discussed above, 	offers several 	forms
of 	evidence 	in support of 	its position which were not
successfully 	rebutted 	by 	CSEA.
After careful 	consideration of 	the 	facts 	in this 	case, 	we
conclude 	that 	when 	the District 	decided 	to begin 	selling 	freshly-
made 	pizza 	to 	cafeteria 	diners 	and made 	related hiring 	decisions,
it made a legitimate, 	actual 	change 	in the existing nature and
level 	of 	service. 	Under the Arcata 	line of 	cases 	discussed
above, 	this 	decision 	falls within management prerogative 	and 	is
not negotiable.5
Since 	there was 	no duty to negotiate, 	CSEA's 	allegation that
the 	District's 	action 	constituted an unlawful 	unilateral 	change
fails 	under the Board's Grant 	standard.6
5Since 	the 	Board 	finds 	that 	the 	District 	acted within 	its
management prerogative, 	it 	is unnecessary to deal with the
District's 	waiver by 	contract 	argument 	or 	any of 	the 	District's
other 	legal 	theories.
6With 	regard 	to 	the 	allegation 	that 	the 	District 	failed 	to
bargain over the negotiable effects of 	its decision, 	the 	record
contains 	very 	little 	evidence 	or 	argument 	from 	CSEA to 	support
that 	claim. 	Consequently, 	any effects 	resulting 	from the
13

ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and conclusions 	of
law and the 	entire 	record in this matter, 	the unfair practice
charge and complaint 	in Case No. 	LA-CE-3865, 	California School
Employees Association and 	its 	Chapter #612 	v. 	Antelope Unified
School 	District 	is 	hereby DISMISSED WITHOUT LEAVE 	TO AMEND.
Members 	Dyer and Baker joined 	in 	this 	Decision.
District's 	action 	are 	largely 	speculative 	and the 	evidence 	is
insufficient 	to 	sustain 	a 	finding of 	an unlawful 	refusal 	to
negotiate effects.
14

STATE 	OF 	CALIFORNIA
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
CALIFORNIA 	SCHOOL 	EMPLOYEES
ASSOCIATION,
Charging 	Party,
v.
ANTELOPE 	VALLEY 	UNION HIGH
SCHOOL DISTRICT,
Respondent.
Unfair 	Practice
Case No. 	LA-CE-3865
PROPOSED 	DECISION
(6/8/99)
Appearances: 	Keith Pace, 	Senior Labor Relations Representative,
and Melanie 	Shafer, 	Labor Relations Representative, 	for
California School 	Employees Association; 	Schools 	Legal 	Service,
by Anthony V. 	Leonis, 	Labor Relations Consultant, 	for Antelope
Valley Union High 	School 	District.
Before Gary M. 	Gallery, 	Administrative Law Judge.
PROCEDURAL 	HISTORY
A union 	representing 	cafeteria 	workers 	contends 	the 	employer
split 	an 	existing 	8-hour position 	and 	reduced 	the 	hours 	to 	two
3 	1/2-hour positions 	without 	giving 	the 	union 	an 	opportunity 	to
negotiate 	the 	change.
This case commenced on November 19, 	1997, 	when the
California 	School 	Employees Association 	(CSEA) 	filed an unfair
practice 	charge 	against 	the Antelope 	Valley Union High 	School
District 	(District). 	The matter was placed into 	abeyance until
July 23, 	1998. 	After investigation, 	and on October 29, 	1998, 	the
general 	counsel 	of 	the 	Public 	Employment 	Relations 	Board 	(PERB 	or
Board) 	issued a 	complaint 	against 	the District. 	The 	complaint
alleges that before September 5, 	1997, 	the District's policy
concerning 	the 	hours 	worked per day 	for 	a vacant 	Cafeteria
)
)
)
)
)
)
)
)
)
)
)
______________ )
~

Helper I position at Quartz Hill High School 	(Quartz Hill) 	was
that 	it 	was 	an 	8-hour per day position held by Teri 	Narveson
(Narveson) 	who had resigned. 	The 	complaint 	alleges 	that 	on
September 5, 	1997, 	the District 	changed this policy by splitting
the 	Quartz 	Hill 	position 	into 	two positions 	and reducing 	the
hours 	for the positions 	to 3 	1/2 	hours per day. 	It 	is 	further
alleged that 	on or about 	September 5, 	1997, 	the District
advertised 	to 	fill 	these 	positions 	and 	subsequently 	filled 	the
positions 	over CSEA's 	objections. 	This 	conduct 	is 	alleged to
have 	been done 	without 	notice 	to 	CSEA or 	affording 	CSEA an
opportunity to negotiate 	the decision or 	the 	effects 	of 	the
change 	in policy. 	This 	action it 	is alleged, 	constitutes 	failure
and refusal 	to bargain 	in good 	faith 	in violation 	of 	the
Educational 	Employment Relations Act 	(EERA), 	section 3543.5(c)
and 	further, 	denied CSEA its 	right 	to 	represent 	members 	in
violation of 	section 3543.5 (b) 	and interfered with rights 	of unit
employees 	to 	be 	represented by CSEA 	in violation of 	section
3543.5(a).1 The 	complaint 	further alleges 	that 	on September 	12,
1Unless otherwise 	indicated, 	all 	statutory references 	are 	to
the 	Government 	Code. 	EERA 	is 	codified at 	Government 	Code 	section
3540 	et 	seq. 	In relevant part, 	section 3543.5 provides 	that 	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. 	For purposes 	of
this subdivision, 	"employee" 	includes an
applicant 	for 	employment 	or 	reemployment.
22

(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.
1997, 	CSEA objected 	to 	the 	reduction 	in hours 	in 	the 	cafeteria
position 	and 	demanded 	to 	bargain 	the 	reduction. 	The 	District, 	on
September 16, 	1997, 	and again on September 	19, 	1997, 	denied 	it
had 	reduced 	the 	hours 	of 	the 	position. 	This 	conduct 	was 	also
alleged to violate section 3543.5(a), 	(b) 	and 	(c).
The 	District 	filed 	its 	answer on November 	13, 	1998, 	denying
any 	violation 	of 	the 	EERA.
A 	settlement 	conference 	did 	not 	resolve 	the 	dispute. 	Formal
hearing was 	held on 	February 	19, 	1999, 	in Los Angeles,
California. 	The 	parties 	submitted post-hearing 	briefs 	on
April 	2, 	1999. 	Thereafter, 	my 	review of 	the 	record 	led me 	to 	a
concern 	about 	whether 	the 	part-time 	employees 	were 	in 	the 	unit
represented by CSEA. 	On May 2, 	1999, 	I 	wrote 	to 	the 	parties
asking 	for 	their positions. 	They both 	responded 	on May 	24, 	1999,
with 	opposite 	positions; 	CSEA 	asserting 	the 	position 	that 	part-
time 	employees 	were 	in 	the 	unit, 	and 	the 	District 	contending 	they
are not. 	Thus, 	as of May 24, 	1999, 	the matter was 	submitted 	for
decision.
I 	conclude 	the 	part-time 	positions 	are 	in 	the 	bargaining
unit 	represented by 	CSEA. 	This 	is 	based upon 	the 	following: 	the
original 	petition 	for 	certification 	and 	the 	certification 	by 	PERB
in November 	of 	1977 	lists 	"all 	regular 	classified 	employees" 	and
"other unclassified 	employees" 	as 	within 	the 	unit. 	The 	rather
33

extensive 	list 	of 	excluded employees 	does 	not 	refer 	to 	the part-
time 	employees.2 Subsequent 	modifications 	of 	the 	unit
description have not 	touched this 	description. 	Moreover, 	Bonita
Mendonca 	(Mendonca), 	the District's own witness, 	testified that
as 	a part-time 	employee prior to her appointment 	as 	a manager,
she was 	in the unit. 	Indeed, 	she 	served as 	chief 	job steward,
just prior to her appointment 	as 	a manager. 	It 	is 	clear,
therefore, 	that 	the parties 	have 	treated part-time 	employees 	as
being within the unit, 	consistent 	with the 	original 	unit
description.
FINDINGS 	OF 	FACT
The 	District 	is 	a public 	school 	employer and CSEA is 	the
exclusive 	representative 	of 	an appropriate 	unit 	of 	employees,
both within 	the 	meaning 	of 	EERA.
The 	District 	operates 	six high schools, 	Antelope Valley,
Quartz Hill, 	Palmdale, 	Lancaster, 	Dessert Winds and Highlands.
Prior to 	1997, 	each school 	employed one 	8-hour cafeteria
worker 	except 	for 	Quartz 	Hill 	which 	had 	two 	8-hour 	cafeteria
workers. 	The 	District 	has 	also had part-time positions prior to
1997. 	There have been vacancy announcements 	in the past 	for
part-time positions 	in the 	food 	service 	program.
Since 	1992, 	the 	food services 	department 	has 	lost 	a number
of 	8-hour employees 	(pastry cook, 	cook and 	cafeteria 	helper)
2PERB make 	take 	official 	notice of 	its 	own records. 	(El
Monte Union High School 	District 	(1980) 	PERB Decision No. 	142;
San Ysidro School District 	(1997) 	PERB Decision No. 	1198.
44

through retirement. 	The District 	has 	not 	replaced or 	filled the
vacant positions.
Eight-hour positions 	enjoy health 	and welfare 	benefits.
Employees 	with 	less 	than 	four hours 	do not 	receive 	such benefits.
Teri 	Narveson was 	employed 	as 	an 	8-hour per 	day 	cafeteria
helper at 	Quartz 	Hill. 	Narveson's 	duties 	included 	stocking the
snackbar, 	operating a cash register, 	and doing personnel 	paper
work for the 	food services manager. 	According to Mendonca, 	food
services manager at Quartz Hill, 	Narveson was going to be
transferred to Lancaster High School. 	She 	responded 	that 	she 	did
not 	want 	to 	transfer 	to 	Lancaster 	and would be 	retiring 	soon.
Thus, 	the District 	allowed her to 	stay at 	Quartz Hill 	until 	she
retired on August 29, 	1997.
CSEA job 	steward Melanie 	Dohn 	(Dohn) 	testified 	that 	CSEA
looked 	for a posting of Narveson's vacant 	position as 	it 	was
interested 	in having 	other 	less 	than 	full-time 	cafeteria 	workers
realize 	an opportunity 	for 	full-time 	work. 	The 	position was
never posted.3 Rather, 	two 	3 	1/2-hour positions 	were posted 	for
3CSEA's 	curiosity about 	the 	8-hour position 	is 	somewhat
undercut 	by Mendonca's 	unrebutted 	testimony 	that 	Dohn 	knew 	that
Narveson was 	to be 	transferred 	to 	another 	school 	well 	before
September of 	1997. 	Mendonca testified that 	she 	and Dohn had
several 	conversations 	about 	the possible 	transfer. 	Under 	these
circumstances, 	CSEA's 	anticipation of 	a posting of 	the 	8-hour
position at 	Quartz Hill was 	suspect. 	Why would the District 	post
an 	8-hour position 	at 	Quartz 	Hill 	when 	it 	had already determined
to 	transfer 	the position to another 	school 	when 	it 	was 	filled by
Narveson? 	Her retirement 	brought 	about 	the 	same profile 	of 	full-
time 	cafeteria workers 	at 	Quartz 	Hill 	as 	existed at 	the 	other
five schools.
5

Quartz Hill, 	along with two at Lancaster High School, 	and one
each 	at Antelope 	Valley High 	and Highland High 	Schools.4
Dohn 	testified 	that 	she 	saw the 	posting 	for 	two 	3 	1/2-hour
positions 	and went 	to Mendonca. 	Dohn testified that 	in response
to her questions 	regarding the 	two posted positions, 	Mendonca
told her 	that 	the 	District 	was 	not 	filling 	two 	existing positions
but 	that 	they were new positions, 	and that 	the District was not
filling 	the 	8-hour 	position vacated 	by Narveson.5
On September 10, 	1997, 	Dohn wrote to CSEA Labor Relations
Representative 	Carol 	Finck 	(Finck) 	regarding 	the 	flyer 	she 	saw
concerning 	the 	two 	3 	1/2-hour vacancies 	at 	Quartz 	Hill 	School.
Dohn wrote 	that 	the 	cafeteria manager had 	told her 	that 	District
Director of 	Food Services 	Terry Custer 	(Custer), 	had decided to
split 	the Narveson 	8-hour position 	into 	two.6
4The 	duties 	described were: 	prepare 	and serve 	foods 	in
cafeteria or snackbar, 	prepare salads, 	pastries or other foods,
act as cashier, 	wash dishes, 	dry, 	sort and put away silver, 	work
at 	counter 	and 	steam tables 	and perform other duties 	in 	the
cafeteria 	as 	required.
5Dohn 	testified 	that 	Mendonca 	said 	the 	school 	only 	needed
one 	8-hour position. 	This 	is 	consistent 	with Mendonca's 	later
testimony about 	the profile 	for 	each 	school 	having 	only one
cafeteria worker, 	but 	for Quartz Hill, 	prior to Narveson's
retirement, 	with two cafeteria workers.
6Dohn's 	testimony at 	hearing 	did not 	clarify her written
statement 	in this memo to Finck, 	that 	she 	asked Mendonca 	if 	the
positions posted were 	"2 	old vacancies 	of hers 	she was 	filing".
On cross-examination, 	Dohn's 	response 	to use 	of 	the word
"elimination" 	in reference 	to 	the Narveson position was 	that 	they
would not 	be 	filling 	that 	position 	and were 	substituting 	it 	with
the 	two 	3 	1/2-hour positions.
6

Dohn 	testified 	she 	could not 	find 	any board 	action
reflecting 	elimination of 	the Narveson position.
Mendonca 	testified 	that 	she 	did not 	tell 	Dohn 	that 	the
District 	used 	the 	8-hour position 	to 	support 	the 	two 	3 	1/2-hour
positions 	that were posted in 	1997. 	The position 	is 	still 	in
existence but 	remains vacant, 	she 	said.7
The 	school 	site 	opened up 	a pizza parlor 	and 	it 	needed one
person to 	run the machine 	and the 	other 	to 	run the 	register. 	The
time 	slot 	was 	from 	9:15 	a.m. 	to 	12:45 	p.m.
Finck wrote 	to Director of 	Personnel 	Jan Medema 	(Medema) 	on
September 12, 	1997, 	asserting that 	the District was 	reducing the
hours 	of 	an 	8-hour position. 	Finck 	contended the 	reduction 	in
hours 	was 	within 	the 	scope 	of 	negotiations 	and demanded to
bargain 	the 	reduction.
Medema responded on September 	16, 	1997. 	She 	stated that
Custer had not 	changed the 	hours 	of 	an 	existing position but 	had
decided not 	to 	fill 	the vacancy. 	She 	concluded that 	should an
8-hour position be 	needed, 	the 	District 	would 	fill 	it.
Mendonca was 	a 	3 	1/2-hour 	food 	service 	worker 	for 	eleven
years 	prior 	to 	her appointment 	as 	food 	service manager. 	During
this 	time 	she 	held the position of 	chief 	job 	steward 	for CSEA.
In 1993, 	she was appointed food service manager at Quartz Hill.
Prior 	to 	her 	appointment 	she 	had 	investigated the 	District's
practices with respect 	to 	food 	service workers. 	Mendonca 	found
7CSEA 	stipulated 	that 	the 	eight 	positions 	from which
employees 	had 	retired 	still 	exist 	and remain vacant.
7

that 	the District, 	through attrition was 	eliminating bakers 	and
cooks. 	Four to 	six positions were vacated and never 	filled. 	She
found 	food 	inventories 	contained pre-baked 	or prepackaged goods.
The 	District 	needed more 	cashiers 	because 	there 	were 	more
students, 	but 	fewer food preparers.
Mendonca 	testified 	that 	the 	decision not 	to 	fill 	Narveson's
position at Quartz Hill was not 	related to costs, 	but 	rather,
because 	of 	lack of 	work. 	This 	is 	supported by the 	fact 	that
Narveson was 	asked 	to 	transfer 	to 	Lancaster prior 	to 	her
announcement 	of 	retirement 	plans.
Mendonca 	further 	testified 	that 	when 	she 	became 	manager 	at
Quartz Hill, 	it was 	the only school with two full-time 	food
service workers, 	the cook and Narveson, 	the 	cafeteria helper.
Even 	if Narveson had not 	retired, 	the District 	would 	still 	have
employed 	two 	3 	1/2-hour positions 	because 	the machine 	was 	run
only at peak hours, 	about 	a half-hour before 	snack until 	2 0
minutes 	after 	lunch.8 It 	required 	the 	machine 	operator 	and 	the
cashier.
The parties' 	current 	collective bargaining 	agreement 	title
page 	denotes 	the 	agreement 	as 	covering 	the period January 	1,
1997, 	to June 30, 	1999. 	However, 	the 	"Durations" 	language of the
8Narveson had an 	"aversion" 	to machines 	said Mendonca. 	She
would not 	have 	operated the machine. 	This 	does 	not 	explain why
Narveson could not 	have 	operated the 	register, 	however.
Nonetheless, 	the District had already, 	independent 	of 	the pizza
enterprise, 	determined to 	shift 	Narveson's 	8-hour position 	to
another school.
8

agreement 	(Article XXIII) 	provides 	that 	the agreement became
effective upon board adoption on October 	1, 	1997.
The 	District 	relies 	on 	several 	provisions 	in defense 	of 	its
action.
Article XII, 	"Transfer Policy", 	provides as 	follows:
12.0 	The 	District 	shall 	have 	the 	sole
authority 	to determine 	when 	and where 	an
opening 	exists 	within the 	unit 	of 	classified
unit members described 	in Article 	I,
Certification of Representative, 	of 	this
Agreement. 	The Superintendent, 	or his
designee, 	shall 	have 	the power to transfer
unit 	members 	from one work 	site 	to 	another
work site, 	subject 	to the provisions 	set
forth 	in this Article.
Article XVII, 	"District Rights", 	provides:
17.0 	All 	matters 	not 	specifically enumerated
as within the 	scope 	of 	negotiations 	in
Government 	Code 	Section 	3543.2 	are 	reserved
to the District. 	It 	is 	agreed that 	such
reserved rights 	include, 	but 	are not 	limited
to, 	the exclusive 	right 	and power to
determine, 	implement, supplement, 	change,
modify, 	or discontinue, 	in whole or in part,
temporarily or permanently, 	any of 	the
following:
Among the 	sections 	is 	17.6 which provides:
The selection, 	classification, 	direction,
promotion, 	demotion, 	discipline, 	and
termination of 	all personnel 	of 	the District;
affirmative 	action 	and 	equal 	employment
policies 	and programs 	to 	improve 	the
District's 	utilization of 	women and
minorities; 	the assignment 	of unit members 	to
any location 	(subject 	to 	the 	express 	terms 	of
this agreement 	regarding transfers), 	and also
to any facilities, 	classrooms, 	functions,
activities, 	academic subject matters, 	grade
levels, 	departments, 	tasks or equipment; 	and
the determination as 	to whether, 	when and
where there 	is 	a job opening.
99

Section 	17.14 provides:
In addition to 	its 	statutory reserve 	rights,
the District 	also 	retains within 	its 	sole
discretion all 	rights 	and powers 	not
expressly 	limited by 	the 	clear 	and 	explicit
language of 	this 	agreement, 	including but not
limited 	to 	the 	exclusive 	right 	and power 	to
determine, 	implement, 	supplement, 	change,
modify, 	or discontinue 	in whole 	or 	in part,
temporarily or permanently, 	any of 	the
following:
and refers to, 	among others, 	subsection 17.14.4, 	"Staffing
patterns."
Finally, 	section 21.1 provides:
It 	is 	agreed that 	during 	the 	term of 	this
agreement, 	the parties waive 	and relinquish
the 	right 	to meet 	and negotiate 	and agree
that 	the parties 	shall 	not 	be 	obligated 	to
meet 	and negotiate 	with 	respect 	to 	any
subject 	or matter 	covered 	in 	this 	agreement
even 	though 	such 	subjects 	or matters 	were
proposed 	and 	later withdrawn.
These provisions 	have been 	in agreements 	going back to 	1990,
without 	change. 	In negotiations between 1990 	and 	1997, 	these
provisions were 	open 	for negotiations 	but 	no 	changes 	were made.
Apparently, 	there have been no grievances 	filed relating 	to
the 	filing of 	the part-time positions.
ISSUE
Did 	the 	District 	fail 	to meet 	and negotiate 	in good 	faith
when 	it 	posted and 	filled two part-time positions 	at 	Quartz 	Hill?
CONCLUSIONS 	OF 	LAW
An employer's 	unilateral 	change 	in 	terms 	and 	conditions 	of
employment within the 	scope of 	representation is, 	absent 	a valid
defense, 	a per 	se 	refusal 	to negotiate 	and violative of 	EERA
10

section 3543.5 (c) . 	(Pajaro Valley Unified School District 	(1978)
PERB Decision No. 	51.)
To prevail 	on a complaint 	of unilateral 	change, 	the 	charging
party must 	establish by a preponderance 	of 	the 	evidence 	that
(1) 	the 	employer breached or altered the party's written
agreement 	or own established past practice; 	(2) 	such action was
taken without 	giving 	the 	exclusive 	representative 	notice 	or 	an
opportunity to bargain over the 	change; 	(3) 	the 	change 	is not
merely an isolated breach of 	the 	contract, 	but 	amounts 	to a
change 	of policy 	(i.e., 	having 	a generalized effect 	or continuing
impact upon bargaining unit members' 	terms 	and conditions 	of
employment); 	and 	(4) 	the change 	in policy concerns a matter
within the 	scope 	of 	representation. 	(Grant 	Joint 	Union High
School District 	(1982) 	PERB Decision No. 	196; 	Pajaro Valley
Unified School District, 	supra, 	PERB Decision No. 	51; 	Davis
Unified School District, 	et al. 	(1980) 	PERB Decision No. 	116.)
In Arcata 	Elementary School 	District 	(1996) 	PERB Decision
No. 	1163 	(Arcata), 	PERB visited the question of the negotiability
of 	an employer's 	decision to change 	the hours of 	a vacant
position. 	PERB's 	analysis 	included 	finding a balance between the
right 	of management 	to 	"run the business"9 against 	the
obligation of 	the 	employer 	to negotiate 	about 	matters 	with 	the
scope 	of 	representation. 	Drawing on 	federal 	precedent 	and PERB
9This means 	issues 	relating to 	level 	of 	services 	to be
provided, 	decisions 	to create new positions, 	to determine the
number of 	hours 	to be 	assigned 	to 	new positions 	or 	to 	discontinue
a 	service 	by abolishing 	a position 	and 	to 	lay off 	employees.
11

cases 	dealing with contracting out 	decisions, 	PERB 	concluded that
contracting 	out 	decisions 	based upon 	labor 	costs 	would be 	subject
to negotiation responsibilities. 	Relating 	to changing vacant
positions, 	PERB said:
. 	. 	. 	Such a decision which reflects a change
in the nature, 	direction or level 	of 	service
falls 	within management's 	prerogative 	and 	is
outside 	the 	scope 	of 	representation.
Conversely, 	a decision to change the hours of
a vacant 	position which 	is 	based on 	labor
cost 	considerations 	and does 	not 	reflect 	a
change 	in the nature, 	direction or level 	of
service, 	is directly related to 	issues of
employee wages 	and hours 	and 	is within the
scope 	of 	representation.
(Fn. 	omitted.)10
CSEA recognizes 	that 	the 	level 	of 	services 	that 	an employer
decides 	to provide 	is not 	a negotiable 	subject 	of bargaining. 	It
contends, 	however, 	that 	the District 	created the two 	3 	1/2-hour
positions 	out 	of 	the 	8-hour position vacated by Narveson. 	It
contends 	there was no change 	in the duties of 	the position, 	and
hence, 	because of 	the reduction in costs, 	as the new positions do
not 	enjoy benefits, 	the 	change was 	driven by labor costs.
CSEA rejects 	the 	proffered explanation 	that 	purchase 	of 	the
pizza machine 	with 	the 	limited usage 	during 	the 	lunch period
justified the new positions. 	It 	contends 	that 	the machine had
been purchased the year before 	the 	creation of 	the 	new positions,
10See 	also 	San Ysidro 	School 	District 	(1997) 	PERB Decision
No. 1206.
12

and 	that 	the 	District 	waited until 	Narveson 	retired before
filling 	the 	new positions.11
The 	District 	contends 	that 	it 	merely 	created new positions
pursuant 	to 	its 	contractual 	authority and 	consistent 	with past
practice. 	It 	contends CSEA failed to establish that 	the part-
time 	positions 	were 	created out 	of 	the 	8-hour position 	formerly
held by Narveson.
In 	San Jacinto Unified School 	District 	(1994) 	PERB Decision
No. 	1078 	(San Jacinto), 	the Board adopted an administrative law
judge's 	(ALJ) 	decision which 	specifically held 	that 	the 	District
did not 	carry 	its 	burden of 	showing 	that 	it 	established either a
new librarian technician or a health clerk position. 	Rather, 	the
ALJ 	found 	the 	district 	had unilaterally 	changed 	the 	hours 	of 	the
positions 	which were 	temporarily vacant. 	The 	finding 	that 	the
district 	had 	changed the 	hours 	of 	the 	vacant 	position was
predicated upon 	findings 	that 	there was 	no 	change 	in the 	title,
duties, 	or salaries 	of 	the 	employees 	appointed to the 	"new"
positions. 	There was 	no District 	action 	(by the board or
administration) 	indicating the 	creation of 	new positions.
Finally, 	there was 	no corroboration of 	the 	district's witness's
mere 	testimony of 	creation of 	a new position.
11In this 	regard, 	the 	record is not 	clear when the machine
was purchased. 	Conversely, 	the part-time positions were 	clearly
posted 	in September 	1997, 	and 	filled sometime 	after 	that 	posting.
CSEA did not 	establish when 	the 	machine 	was 	purchased.
13

In this 	case, 	there was no change 	in the title of the
position. 	Narveson's 	title was 	cafeteria helper. 	The new
positions 	were 	titled the 	same.
There was, 	at most, 	a partial 	change in the duties of the
new positions. 	Narveson ran a 	cash register, 	and one of 	the new
part-time positions was 	to run a cash register. 	Thus, 	here there
was no change.
The 	other part-time 	position was 	to 	run 	the 	new pizza
machine.12 While 	the District 	considers 	this 	operation to be 	a
new enterprise, 	thus 	a change 	in service, 	the operation certainly
consists 	of 	food preparation, 	which duty was 	contained 	in
Narveson's 	job description, 	and which was 	repeated 	in the 	new
part-time 	cafeteria 	helper's 	job description. 	From this
perspective, 	the District's argument has 	little 	credence. 	Food
preparation 	is 	food preparation, 	whether by stocking pre-made
sandwiches 	or operating a pizza machine, 	both of 	which provide
for 	the 	delivery of 	food to 	students.
Finally, 	the 	District 	administration did not 	take 	any action
other 	than promulgating 	the 	new job 	announcements 	for 	the 	part-
time positions. 	The District's 	evidence 	consisted only of 	the
testimony of 	Mendonca 	and Medema.
I 	think application of 	the 	burden of 	proof 	rule 	in 	San
Jacinto, 	shows 	the District 	has 	failed to carry 	its 	burden of
12That Narveson had an 	"aversion" 	to 	running machines would
not, 	in my judgment, 	preclude 	finding the operation of 	the pizza
machine 	consistent 	with the 	duties 	of 	the 	cafeteria helper.
14

proof 	that 	it 	did not 	create 	the 	two new half-time 	positions 	out
of Narveson's 	full-time, 	but vacant position.
Further, 	under Arcata, 	there 	is no showing of a change 	in
the 	level 	of 	service, 	rendering the District's 	decision to 	start
up 	a pizza 	operation 	and employ 	two part-time positions 	in 	lieu
of 	a full-time position, 	to be outside the 	scope of negotiations.
The 	District 	clearly 	established 	that 	Narveson's 	8-hour
position was 	going 	to be 	eliminated at 	Quartz Hill. 	She was 	to
be 	transferred to 	another 	school. 	This 	decision preceded any
notion of 	two new part-time positions 	being created at 	Quartz
Hill. 	Only because Narveson was 	retiring 	at 	the 	end of 	the 	next
year, 	did the District 	allow her to remain at 	Quartz Hill. 	But
the 	part-time 	positions 	were 	not 	posted until 	after Narveson's
retirement. 	There 	is no evidence 	that Narveson's position was
transferred to 	another school. 	There was 	not 	a 	decided 	change 	in
the 	duties 	of 	the 	new positions versus what Narveson did. 	She
performed cashiering 	functions 	just 	as 	one 	of 	the 	two new part-
time employees was 	expected to do. 	As noted above, 	the 	level 	of
service 	changed only 	in 	the 	manner 	of 	what 	food product 	the
District 	was providing 	for 	students.
In Arcata, 	PERB relied on Fibreboard Paper Products 	Corp. 	v.
NLRB 	(1964) 	379 U.S. 	203 	[57 LRRM 2609] 	(Fibreboard), 	Otis
Elevator Co. 	(1984) 	269 NLRB 891 	[116 LRRM 1075] 	(Otis Elevator),
and First National Maintenance Corp. 	v. 	NLRB 	(1981) 	452 U.S. 	666
[107 	LRRM 2705] 	(First National) 	in defining managerial 	decisions
that 	"lie 	at 	the 	core of 	entrepreneurial 	control" 	and are
15

excluded 	from the 	scope 	of 	representation, 	unless 	based upon
labor costs. 	Fibreboard was 	a decision to 	contract 	out 	services,
Otis 	was 	a 	decision 	to 	relocate 	bargaining unit 	work and 	First
National 	related to 	termination of 	a 	contract 	as 	a part 	of 	the
employer's business. 	In Arcata, 	PERB 	further cited its 	own cases
flowing 	from Fibreboard 	finding 	certain 	decisions 	outside 	the
scope 	of 	negotiations. 	These 	included the 	employer's 	decisions
to create 	and abolish job classifications, 	contracting out, 	non-
unit 	work performed by volunteers, 	to 	cease 	operation of 	a 	child
care 	center 	and 	to 	create 	an employee 	assistance 	program.
Adding 	a pizza machine 	to 	the 	food production 	is 	not 	a
change 	in 	level 	of 	service 	akin to 	changes 	made 	by management 	in
those 	cases 	cited by 	PERB 	in Arcata 	to 	justify 	removing 	the
decision 	from the 	bargaining 	table.13
The 	District 	should have 	put 	CSEA on notice 	that 	it 	intended
to 	replace 	the 	full-time 	position vacated by Narveson with 	two
part-time 	positions 	and provided 	CSEA with 	an opportunity 	to
negotiate 	the 	decision.
The 	parties 	dispute 	whether 	the 	contract 	authorizes 	the
District's 	action. 	CSEA contends 	the 	contract 	contains 	no
language 	that 	allows 	the 	District 	to 	split 	an existing vacant
position. 	It 	further contends 	that 	the 	event 	complained of 	here,
the 	splitting of 	the Narveson position and 	filing 	it 	with the 	two
13See 	also 	State 	of 	California 	(Department 	of
Transportation) 	(1983) 	PERB Decision No. 	361-S.
16

part-time positions, 	occurred at 	a time 	(September) 	preceding the
operative date of the agreement 	(October).
I 	reject 	CSEA's 	contention as 	to 	the 	operative 	date 	of 	the
agreement 	argument 	as 	all 	of 	the provisions 	in question were 	the
same 	from at 	least 	1990, 	and would have 	continued 	in 	force under
status 	quo 	ante principles. 	(See Marysville Joint 	Unified School
District 	(1983) 	PERB Decision No. 	314 	(Marysville) 	and State of
California 	(Employment Development Department) 	(1998) 	PERB
Decision No. 	1247-S.)
The 	District 	contends 	that 	each of 	the 	cited provisions 	of
the 	agreement 	give 	it 	authority to post 	and hire persons 	in 	the
3 	1/2-hour positions.
PERB 	requires 	a 	showing of 	waiver by contract 	to be 	"clear
and unmistakable,"14 indicating 	"an 	intentional 	relinquishment
of 	rights."15 The 	employer's 	contention of 	contract 	authority
will 	be 	sustained only when 	the 	contract 	expressly or by
necessary 	implication confers 	such a 	right. 	(Los Angeles
Community College District 	(1982) 	PERB Decision No. 	252.)
Article XII 	relates 	to 	transfer rights. 	The District's
action complained of 	here 	is 	not 	related to 	transfer. 	Nothing 	in
the 	article 	implies 	the 	right 	to 	create 	two part-time positions
out 	of 	a vacant 	full-time position.
14Amador Valley Joint 	Union High School 	District 	(1978) 	PERB
Decision No. 	74.
15San Francisco 	Community College 	District 	(1979) 	PERB
Decision No. 	105.
17

Nor does Article XVII, 	section 17.6, 	District 	reserved
rights, 	contain any reference by implication, 	to the District's
action on conversion of 	a vacant 	position 	into 	two 	separate
positions. 	A generally-worded management 	rights 	clause 	will 	not
be 	construed as 	a waiver of 	statutory bargaining 	rights. 	(Norris
School District 	(1995) 	PERB Decision No. 	1090.)
However, 	within this 	same article, 	relied upon by the
District, 	is 	section 	17.14 	which reserves 	to the District 	the
"exclusive 	right 	and power 	to 	. . . 	change, 	modify, 	. . . " 	among
others, 	"[s]taffing patterns" 	(sec. 	17.14.4).
"Staffing patterns" 	includes 	the number of 	employees 	at 	a
particular site, 	the number of 	shifts, 	and the number of
employees 	on 	each 	shift. 	(Moreno Valley Unified School 	District
(1995) 	PERB Decision No. 	1106.) 	Thus, 	the parties had negotiated
an agreement 	ceding 	to 	the 	District 	the 	power 	to 	change 	or modify
the 	composition and number of 	employees 	at 	each 	school 	site.
Here, 	the District 	changed the profile of 	employees 	at
Quartz Hill 	(no 	incumbent 	employee was 	affected) 	consistent with
its 	authority to 	change 	staffing patterns. 	The 	action was 	also
consistent 	with the 	District's past 	practice 	of 	not 	filling 	full-
time positions 	of 	cooks 	and bakers 	because 	of 	the 	change 	in the
production of 	foods 	stuffs 	for students. 	The workers were no
longer preparing 	food, 	but 	rather 	selling pre-packaged 	foods
prepared at 	another facility. 	Further, 	the District 	had a
standing practice 	of 	hiring part-time 	employees 	with 	the
cafeteria work 	force.
18

As 	the 	change 	in 	staffing pattern was 	authorized by 	the
agreement 	(which 	authority 	carried 	forward 	despite 	the 	expiration
of 	the 	agreement 	(Marysville)) 	and was 	consistent 	with past
practice, 	the posting 	and 	filling of 	the part-time 	positions 	was
not 	a violation of 	the 	EERA. 	The 	charge 	and complaint 	should
therefore 	be 	dismissed.
PROPOSED 	ORDER
Based upon 	the 	foregoing 	findings 	of 	fact 	and 	conclusions 	of
law and the 	entire 	record 	in this matter, 	the unfair practice
charge 	in Case No. 	LA-CE-3865, 	California School Employees
Association v. 	Antelope Unified School 	District, 	and companion
PERB 	complaint 	are 	hereby Dismissed.
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,
relied upon for such exceptions. 	(See Cal. 	Code Regs., 	tit. 	8,
sec. 	323 00.) 	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. 	3213 5; 	Code Civ. 	Proc., 	sec. 	1013 shall apply.) 	Any
19

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 Regs., 	tit. 	8, 	secs
32300, 	32305 and 32140.)
GARY M. GALLERY
Administrative Law Judge
20