Bellflower Unified School District (PERB 2544E)

________________________
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, CHAPTER 32,
Charging Party,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-5955-E
PERB Decision No. 2544
December 15, 2017
Appearance: Law Offices of Eric Bathen by Eric Bathen, Attorney, for Bellflower Unified
School District.
Before Gregersen, Chair; Banks and Winslow, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions by the Bellflower Unified School District (District) to the proposed
decision (attached) of a PERB administrative law judge (ALJ). The proposed decision
concluded that the District had acted in derogation of its duty to meet and negotiate in good
faith with the California School Employees Association, Chapter 32 (CSEA), which is the
exclusive representative of the District’s classified employees and to have committed various
other unfair practices in violation of the Educational Employment Relations Act (EERA).1
Specifically, the District was found to have violated EERA section 3543.5, subdivision (c),
by: (1) failing and refusing to respond to CSEA’s requests for necessary and relevant
information regarding the District’s plans to contract out work historically performed by the
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise noted,
all statutory referenced are to the Government Code.

District’s bus drivers; (2) laying off all District bus drivers and unilaterally contracting out
bargaining unit work historically performed by the District’s bus drivers for the regular school
year, starting in 2014-2015; and (3) laying off all District bus drivers and unilaterally
contracting out bargaining unit work historically performed by the District’s bus drivers for the
extended school year (i.e., summer school), beginning in 2014. Each of these violations was
also found to constitute a violation of EERA section 3543, subdivisions (a) and (b), by
interfering with public school employees’ right to be represented by their chosen employee
organization, and by interfering with CSEA’s right to represent employees, respectively.
As a proposed remedy, the ALJ ordered the District to cease and desist from refusing to
respond to CSEA’s requests for necessary and relevant information, from unilaterally changing
policies within the scope of representation, and from interfering with the rights of CSEA to
represent employees and the rights of employees to be represented by their chosen
representative. The proposed remedy also directed the District to take certain affirmative
actions designed to restore the prior status quo. These measures included ordering the District
to rescind its contracts for bus services for the regular school year and the extended school year
and to cease offering parents $25 to transport students to and from school; to reinstate the
District’s prior bidding process for assigning bus services; to reinstate and make affected
employees whole for any financial losses, until such employees are either reinstated or refuse
an offer of reinstatement; and to remit to CSEA the sums equivalent to all dues and agency
fees that CSEA would have received, but for the District’s unilateral changes in policy. As is
customary, the ALJ also ordered that monetary awards be augmented by interest at a rate of
7 percent per annum, and directed the District to post physical and electronic notices advising
employees of their rights and of the District’s readiness to comply with PERB’s order.
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The District has filed with the Board itself four exceptions and a supporting brief,
which focus primarily on the ALJ’s rejection of the District’s contract waiver defense.
According to the District, if the ALJ had interpreted the collective bargaining agreement
(CBA) according to its express terms, he would have concluded that CSEA had waived any
right to negotiate over the District’s decisions to contract out transportation services and layoff
of the District’s bus drivers. The District also excepts to the ALJ’s conclusion that its decision
to pay parents a $25 stipend to transport their special education students in lieu of
transportation on District buses constituted a negotiable decision to contract out bargaining
unit work, and to the ALJ’s proposed remedy. The District argues that, in this regard, the
ALJ’s reasoning and remedy were contrary to special education law and to the District’s
asserted rights, under the parties’ CBA, to contract for services. In addition to issues raised in
its statement of exceptions, the District’s supporting brief also excepts to any finding of
liability for failure to provide information. The District argues that the information requested
by CSEA was either not relevant to negotiations and/or that the District had no obligation to
furnish, as it was already publicly available to CSEA.
The Board has reviewed the entire record, the proposed decision, and the District’s
exceptions and supporting brief in light of applicable law.2 Based on this review, we find that
the ALJ’s findings of fact are adequately supported by the record and his conclusions of law are
well reasoned and in accordance with applicable law. We hereby adopt the proposed decision as
the decision of the Board itself, subject to the following discussion of issues raised in the
District’s exceptions and supporting brief.
2 As determined by the Board in Bellflower Unified School District (2017) PERB Order
No. Ad-447, CSEA’s response to the District’s exceptions was untimely filed without good
cause and was therefore not considered as part of the Board’s deliberations for this decision.
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DISCUSSION
The District’s Waiver-by-Contract Defense
According to the District’s exceptions and supporting brief, the District’s waiver by
contract defense is “the major and dispositive issue in this case.” At issue is the meaning of
Article XVI of the parties’ expired CBA, which provided that the agreement “shall … remain in
full force and effect to and including June 30, 2007[3] or until a successor Agreement is approved
by the Board of Education.” (Emphasis added.) The District reiterates its argument made before
the ALJ that, because its governing board never approved a successor agreement, the CBA’s
management rights clause remained in effect after July 1, 2010. Consequently, according to the
District, it was still authorized to act unilaterally in Summer 2014, when it decided to subcontract
bus operator services.
The ALJ considered but rejected this argument as inconsistent with the testimony of three
members of CSEA’s bargaining team and that of Delgado, who had served as the District’s
chief negotiator for 28 years. In varying degrees of detail, each of these witnesses testified that
the CBA had expired in 2010. The ALJ also rejected the District’s interpretation of
Article XVI as contrary to EERA section 3540.1, subdivision (h), which states that a collective
bargaining agreement between a public school employer and the representative of its employees
“may be for a period of not to exceed three years.” If the CBA remained in effect after 2010,
the ALJ reasoned that its duration would have extended beyond the three-year maximum set by
EERA. Rather than declare the CBA void as contrary to public policy, the ALJ preferred to
3 Associate Superintendent of Business and Personnel Services Marcy Delgado
(Delgado) explained that the dates in Article XVI were typographical errors and had not been
updated from the previous CBA.
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interpret Article XVI in a manner consistent with EERA and thereby preserve the agreement to
the extent possible.
The District’s central argument is that the ALJ erred in finding that the CBA expired in
2010. According to the District, if the ALJ had interpreted the CBA according to its express
terms, he would have found that CSEA had waived its right to negotiate over the District’s
subcontracting decisions and, accordingly, dismissed both the unilateral change allegations and
the failure to provide information allegations on relevance grounds. The District also argues that
the ALJ’s interpretation of Article XVI leads to the absurd conclusion that the parties operated
without an agreement for four years between 2010 and 2014. We disagree. As explained in the
proposed decision, the record evidence in this case, including the admission of the District’s chief
negotiator, supports the ALJ’s finding that the CBA expired in 2010, and the District has pointed
to no persuasive evidence to the contrary. Because uncontradicted, unimpeached testimony is
“certainly sufficient to carry the burden of proof in an unfair practice case,” we deny the
District’s exception. (City of Sacramento (2013) PERB Decision No. 2351-M, p. 32, citing
Mt. Diablo Unified School District (1984) PERB Decision No, 373c, p. 4.)
Alongside its waiver defense, the District also argues that, because the ALJ never advised
the parties at the hearing that he considered the language of Article XVI dealing with successor
language ambiguous, it was reasonable for the District to assume that this language was valid
and enforceable. The District contends that it therefore had no opportunity to offer evidence or
argument on this issue. Again, we disagree.
A PERB hearing officer has the power and the duty to “[i]nquire fully into all issues and
obtain a complete record upon which the decision can be rendered” and to “[r]ender and serve
the proposed decision on each party.” (PERB Reg. 32170, subds. (a), (l); City of Santa Clara
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(2016) PERB Decision No. 2476-M, p. 10.) A hearing officer is not required to advise the
parties of which factual disputes or legal issues may determine the outcome of the case, nor to
make preliminary factual findings at the hearing itself so that the parties may object or offer
additional evidence or argument on the issue.
Regardless of whether the District realized that the ALJ in the present matter considered
the language of Article XVI ambiguous, before submitting its brief, it had notice that the Board
itself had addressed this issue and, indeed, had resolved it in a manner that was inconsistent with
the District’s interpretation. In Bellflower Unified School District (2015) PERB Decision
No. 2455 (Bellflower), an unfair practice case involving the same parties and the same
agreement, an ALJ found that the parties’ CBA had expired on June 30, 2010. Neither party
excepted to that finding, and it was adopted by the Board. (Id. at p. 3.)4 Bellflower issued on
September 30, 2015, one day after the hearing in the present case, but before post-hearing briefs
were due and before this matter was submitted for decision by the ALJ. Despite notice of the
Board’s determination that the parties’ CBA had expired on June 30, 2010, the District’s briefing
before the ALJ and now before the Board make no attempt to explain how the same agreement at
issue in Bellflower could have expired in 2010 but nonetheless remain in effect in the present
case.
The interpretation of a collective bargaining agreement is not simply a factual finding of
the sort which the Board or its agents are free to disregard in a subsequent case involving the
same language. Because of its significance for governing the parties’ ongoing relationship, a
Board finding as to the meaning of a contract term is more akin to a question of law, particularly
4 PERB may take official notice of matters within its own files and records. (Antelope
Valley Community College District (1979) PERB Decision No. 97, p. 23; see also Santa Clara
County Superior Court (2014) PERB Decision No. 2394-C, p. 16.)
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where, as here, the question is whether the contract itself is illegal or void for public policy, as
declared by the three-year limit for collective bargaining agreements set forth in EERA
section 3540.1, subdivision (h). (See, e.g., Kashani v. Tsann Kuen China Enterprise Co., Ltd.
(2004) 118 Cal.App.4th 531, 540.) Moreover, waiver is an affirmative defense as to which the
asserting party has the burdens of production and persuasion. (Regents of the University of
California (1994) PERB Decision No. 1077-H, adopting proposed decision at p. 35;
Long Beach Community College District (2003) PERB Decision No. 1568, p. 14; Evid. Code,
§§ 500, 550.)
Even if the District’s waiver defense had merit, which it does not, under the
circumstances, granting this exception would effectively require the Board to disturb the
unexcepted-to findings and conclusions in Bellflower, supra, PERB Decision No. 2455. Despite
notice that the Board had already made a contrary determination as to the meaning of the CBA’s
duration clause, the District has never requested to reopen the record, to submit additional
evidence or briefing, nor in any other manner contested the Board’s findings and conclusions in
Bellflower that the CBA “expired on June 30, 2010.” Moreover, as indicated above, the
testimony presented in this case further supports a finding that the MOU expired in 2010. In the
absence of any explanation or briefing from the District on this issue, or a request for
reconsideration showing both extraordinary circumstances and that Bellflower included
prejudicial errors of fact, we have no grounds to consider the District’s waiver defense now.
(PERB Reg. 32410, subd. (a); California Nurses Association (Rosa) (2011) PERB Decision
No. 2182a-M, p. 3.)
Additionally, we reject the District’s contention that the ALJ erred in finding the language
of Article XVI ambiguous. The language relied on by the District identifies two alternative
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possibilities as to the status of the CBA after 2010, and, by itself, the language does not answer
the fundamental question posed by the ALJ: whether, in fact, the CBA had expired or whether it
remained in effect during the period when the present dispute arose. The ALJ was thus faced
with two alternative interpretations of Article XVI. One interpretation, the one chosen by the
ALJ, would produce an admittedly unusual, but nevertheless lawful, situation in which parties to a
collective bargaining relationship had been without an agreement for more than four years. The
other interpretation, the one urged by the District, would result in an agreement whose duration in
excess of three years was contrary to public policy as expressed in EERA section 3540.1,
subdivision (h), and PERB decisional law. (County of San Luis Obispo (2015) PERB Decision
No. 2427-M, p. 40, citing City of Torrance (2008) PERB Decision No. 1971-M, p. 27
[“calcification of working conditions” contrary to principles of collective bargaining].)5 We
agree with the ALJ that collective bargaining agreements should be interpreted in a manner that
preserves as much of the parties’ intent as is consistent with applicable law and public policy, and
we therefore reject the District’s exception.
The District’s Exception to the Proposed Remedy
Because the District disagrees with the ALJ’s conclusion that its decision to pay parents
a stipend to transport special education students to school in lieu of using District bus services
5 Under the circumstances, we find it unnecessary to consider whether a labor
agreement whose life exceeds three years is void in its entirety (Civ. Code, §§ 1441, 1608,
1667), or whether, similar to federal law and other PERB-administered statutes, labor contracts
of indeterminate duration or ones that do not provide for a manner for termination are terminable
at will by either party. (See, e.g., City of El Cajon v. El Cajon Police Officers’ Assn. (1996)
49 Cal.App.4th 64, 72-73, and state and federal authorities cited therein; see also Kashani v.
Tsann Kuen China Enterprise Co., supra, 118 Cal.App.4th 531, 541.)
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was negotiable, the District likewise excepts to the proposed remedy as excessive.6 The
District asserts that the remedy effectively “require[s] the District to tell the special education
parents they cannot transport their own children to school.” (District Brief, p. 13.) We reject
this assertion because it mischaracterizes the proposed decision, which states: “Nothing in this
proposed decision precludes parents from voluntarily transporting their own children to and
from school.” (Proposed Decision, p. 41, fn. 22.)
The District’s contention that the proposed remedy is contrary to special education law,
as codified in the federal Individuals with Disabilities Education Act (IDEA),7 is also without
merit. Under PERB’s “supersession” line of cases, which enjoys the approval of the California
Supreme Court, when otherwise negotiable matters are also regulated by external law,
proposals affecting such matters remain negotiable to the extent there is no conflict with any
“inflexible standard[s]” or “immutable provisions” set by the external law. (San Mateo City
School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 864-865; San Mateo
City School District (1984) PERB Decision No. 375, pp. 6-7; Centinela Valley Union High
School District (2014) PERB Decision No. 2378, pp. 6, 8.) Similarly, the Board and its agents
have broad authority to investigate, adjudicate and remedy unfair practice allegations, as the
Board deems necessary to effectuate the policies and purposes of the Act. (EERA, § 3541.3,
subds. (i), (k), (n); Local 21, International Federation of Professional and Technical
6 For reasons adequately set forth in the proposed decision, we reject the District’s
contention that its decision to pay parents a stipend to transport special education students in
lieu of transportation on District buses was a non-negotiable managerial prerogative. Parents
are certainly entitled to transport their students, but the District’s offer of compensation in the
form of a stipend brings this case within the ambit of Fibreboard Corp. v. NLRB (1964) 379
U.S. 203 and similar PERB subcontracting cases. (See, e.g., Lucia Mar Unified School
District (2001) PERB Decision No. 1440; Redwoods Community College District (1997)
PERB Decision No. 1242, proposed decision at p. 22.)
7 IDEA is codified at 20 U.S.C. section 1400 et seq.
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Engineers, AFL-CIO v. Bunch (1995) 40 Cal.App.4th 670, 679; California State Employees’
Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th 923, 946.) In addition to
reinstatement and back pay, the Board has broad discretion to take other actions necessary to
reverse the effects of unfair practices and restore the parties to their respective positions before
the unlawful conduct occurred (City of Palo Alto v. Public Employment Relations Bd. (2016)
5 Cal.App.5th 1271, 1310, review den. (Mar. 15, 2017); City of Pasadena (2014) PERB Order
No. Ad-406-M, pp. 12-13; ), and a reviewing court will not disturb a Board-ordered remedy
“unless it can be shown that the order is a patent attempt to achieve ends other than those
which can fairly be said to effectuate the policies of the Act.” (Santa Monica Community
College Dist. v. Public Employment Relations Bd. (1980) 112 Cal.App.3d 684; J.R. Norton Co.
v. Agricultural Labor Relations Bd. (1987) 192 Cal.App.3d 874.) Unless a remedial measure
positively conflicts with “inflexible standard[s]” or “immutable provisions” set by external
law, the fact that it affects matters normally within the jurisdiction of another tribunal does not,
by itself, make PERB’s remedy improper. (United Teachers of Los Angeles v. Los Angeles
Unified School Dist. (2012) 54 Cal.4th 504, 513–514; McFarland Unified School District v.
Public Employment Relations Bd. (1991) 228 Cal.App.3d 166, 169-170; State of California
(Department of Transportation) (1984) PERB Decision No. 459-S, p. 8; see also San Diego
Unified School District (1980) PERB Decision No. 137, pp. 20-21.)
Here, the District’s statement of exceptions and supporting brief include no citation to
any provision of IDEA nor to any decisional law interpreting it. Nor does the District explain
how the proposed remedy in this case would conflict with IDEA. The District’s filing thus
fails to comply with the requirements of PERB’s Regulation governing exceptions, and we
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therefore consider the issue abandoned and warranting no further consideration. (PERB
Reg. 32300, subds. (a), (c); City of Livermore (2017) PERB Decision No. 2525-M, pp. 11-12.)8
Exceptions Concerning the Relevance and Availability of Information Requested by CSEA
In addition to the four issues identified in its statement of exceptions, the District’s
supporting brief also argues that the ALJ erred in finding that the District unlawfully failed to
provide requested information. Reiterating arguments it made before the ALJ, the District
contends that the requested information was not relevant and/or that it was equally available to
CSEA through public documents, including published agendas and minutes of school board
meetings. Although the Board’s review of exceptions to a proposed decision is de novo, it need
not address arguments that have already been adequately addressed in the same case or that
would not affect the result. (Trustees of the California State University (Culwell) (2014) PERB
Decision No. 2400-H, pp. 2-3; Los Angeles Superior Court (2010) PERB Decision No. 2112-I,
pp. 4-5; Morgan Hill Unified School District (1995) PERB Decision No. 1120, p. 3.) Because
we adopt the proposed decision, which included no fewer than three reasons addressing both of
these contentions (see Proposed Decision, pp. 14-16), they warrant no further discussion here.
The District’s Request for Oral Argument
Concurrent with its exceptions and supporting brief, the District has requested oral
argument pursuant to PERB Regulation 32315. Historically, the Board has denied requests for
oral argument when an adequate record has been prepared, the parties had ample opportunity to
present briefs and have availed themselves of that opportunity, and the issues before the Board
are sufficiently clear to make oral argument unnecessary. (United Teachers of Los Angeles
(Valadez, et al.) (2001) PERB Decision No. 1453, p. 5; City of Modesto (2008) PERB Decision
8 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001, et seq.
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No. 1994-M, pp. 8-9.) Based on our review of the record, all of the above criteria are met in this
case and the Board therefore denies the District’s request for oral argument.
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, the Bellflower Unified School District (District) is found to have violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5, subdivisions (a), (b),
and (c). The District violated EERA by refusing to provide California School Employees
Association, Chapter 32 (CSEA), with requested information necessary and relevant to
representing its members and by unilaterally contracting out bus driver work and laying off all
its bus drivers in Summer 2014. All other claims are hereby dismissed.
Pursuant to EERA section 3541.5, it hereby is ORDERED that the District, its
governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to properly respond to CSEA’s requests for information
necessary and relevant to its representational duties.
2. 	Unilaterally implementing policies within the scope of representation.
3. 	Interfering with employees’ right to be represented by their chosen
employee organization.
4. 	Interfering with the right of CSEA to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	As soon as is practical, but not later than the end of the school year in
which this decision and order becomes final, rescind its contract for bus driver services to
transport students to and from school during the regular school year.
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2. 	Upon completion of (B)(1), offer reinstatement to all bus drivers laid off
in or around June 27, 2014.
3. 	Make whole for any financial losses suffered, including wages, benefit and
extra hours wages, all laid off bus drivers until they are either reinstated or refuse an offer of
reinstatement. These amounts should be augmented by interest at a rate of 7 percent per annum.
4. 	Remit to CSEA the sum equivalent of any dues or agency fees that
CSEA would have received if the District did not unlawfully layoff its bus drivers until each
laid off bus driver is either reinstated or refuses an offer of reinstatement. These amounts
should be augmented by interest at a rate of 7 percent per annum.
5. 	As soon as is practical, rescind the private contract for bus services to
transport students to and from District schools during the Extended School Year and cease
offering parents $25 to transport their own students to and from school during the Extended
School Year.
6. 	Upon completion of (B)(5), reinstitute the bidding process used to assign
Extended School Year work to District bus drivers.
7. 	Make whole for any financial losses any bus driver who lost Extended
School Year bus driving work, during the 2014 Extended School Year and every subsequent
Extended School Year, until the bidding assignment process is reinstated. These amounts
should be augmented by interest at a rate of 7 percent per annum.
8. 	Remit to CSEA the sum equivalent of any dues or agency fees that CSEA
would have received if the District did not unilaterally assign Extended School Year bus driver
work to outside sources, until it reinstitutes the Extended School Year bidding assignment
process. These amounts should be augmented by interest at a rate of 7 percent per annum.
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9. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in CSEA 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 it will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive workdays. The Notice shall also be
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the District to communicate with employees in CSEA’s bargaining unit. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced, or covered
with any other material.
10. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel’s designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on CSEA.
Chair Gregersen and Member Winslow joined in this Decision.
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STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION, & ITS CHAPTER 32,
Charging Party,
v.
BELLFLOWER UNIFIED SCHOOL DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5955-E
PROPOSED DECISION
(February 29, 2016)
Appearances: Brian Lawler, Labor Relations Representative, for California School Employees
Association, and its Chapter 32; Law Offices of Eric Bathen, by Eric Bathen and Marsha P.
Brady, Attorneys, for Bellflower Unified School District.
Before Eric J. Cu, Administrative Law Judge.
In this case, an exclusive representative claims that a public school employer violated
its duty to negotiate in good faith when contracting out bargaining unit work, laying off unit
members, and failing to respond to requests for information. The employer denies any
violations.
PROCEDURAL HISTORY
California School Employees Association, and its Chapter 32 (CSEA) filed the instant
unfair practice charge with Public Employment Relations Board (PERB or Board) on August
22, 2014. CSEA asserted that the Bellflower Unified School District (District) violated its
duty to negotiate in good faith under Educational Employment Relations Act (EERA),1 by
unilaterally contracting out bus driver work to private companies and to District parents.
1 EERA is codified at Government Code section 3540 et seq.

CSEA further asserted that the District failed to respond to requests for information about the
Transportation Department and private transportation contracts.
On November 10, 2014, the PERB Office of the General Counsel issued a complaint
alleging violations of EERA section 3543.5, subdivisions (a), (b), and (c). On December 1,
2014, the District filed its answer to the PERB complaint, denying the substantive allegations
and asserting multiple affirmative defenses. PERB held an informal settlement conference on
February 19, 2015, but the matter did not settle. PERB held the formal hearing on September
28-29, 2015. The parties filed closing briefs on December 11, 2015. At that point, the record
was closed and the matter was considered submitted for decision.
FINDINGS OF FACT
The Parties
The District is a “public school employer” within the meaning of EERA section 3540.1,
subdivision (k). CSEA is an “exclusive representative” within the meaning of EERA
section 3540.1, subdivision (e), and represents the District’s classified bargaining unit. Prior to
Summer 2014, the bargaining unit included bus drivers.
The Expired Collective Bargaining Agreement
The most recent Collective Bargaining Agreement (CBA) between the parties during
the times relevant to this case was negotiated in 2007 remained in effect until June 2010.
Article XVI of that CBA contained a “DURATION AND RENEGOTIATION,” provision
stating in pertinent part “This Agreement shall become effective July 1, 2004 and remain in
full force and effect to and including June 30, 2007 or until a successor Agreement is approved
by the Board of Education.” That language conflicts with the cover page of the CBA which
states an effective term of “July 1, 2007 – June 30, 2010.” Associate Superintendent of
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Business and Personnel Services Marcy Delgado explained that the dates in Article XVI were
typographical errors and had not been updated from the prior iteration of the CBA. Delgado
has been the District’s chief negotiator for 28 years. As to the expiration date of the CBA,
three members of CSEA’s bargaining team testified that the CBA had expired in 2010.
Delgado agreed, testifying as follows:
[QUESTION]: I think this contract was effective July 1st, 2007,
until June 30th, 2010.
[DELGADO]: I believe so, yeah.
Article III, Section A, contains a “RETAINED DISTRICT RIGHTS” clause, listing 13
enumerated items over which the District retained “the exclusive right and power to determine,
implement, supplement, change, modify or discontinue, in whole or in part, temporarily or
permanently[,]” including “the lawful subcontracting of services to be rendered and functions
to be performed, including services, subject to the consultation rights of CSEA under Article
XV, Miscellaneous.”
Article XV, Section A includes a “Contracting Out” provision, stating:
In the event that the District contemplates the contracting out of
work which has been performed by unit members, and thereby
adversely affecting the hours or continued employment of current
unit members, it shall give notice to the Association and upon
request meet and consult regarding the decision and its effects,
and give good faith consideration to the Association’s objectives,
if any. In the absence of an emergency need, such notice shall be
given not less than 45 days prior to the Board action.
The Transportation Department
Prior to Summer 2014, the District’s Transportation Department employed both
mechanics and bus drivers. The primary job of bus drivers was, naturally, to transport students
to and from schools using District buses. Most of the students requiring District transportation
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services also use special education services. Accordingly, the location of those students
largely determines the Transportation Department’s 11 bus routes. At one point, the District
employed as many as 17 bus drivers. But more recently, the District had 11 regular drivers and
2 substitutes.
Mechanics’ primary job was to maintain the school buses and other District vehicles.
This work also included ensuring that the buses were ready for State-required inspections. In
addition, mechanics were sometimes called upon to drive buses when drivers were absent and
there was insufficient drivers to cover all the routes.
The District’s History of Using Outside Transportation Services
The District occasionally used a private bus company, Ryan’s Express Transportation,
to transport students to events that could not be completed by District drivers. This occurred
either when District drivers were unavailable or when the circumstances of the trip required a
fuller-featured bus. For example, Delgado said that the District used air-conditioned and well-
cushioned buses for a student-athletics trip to Sacramento that would have been less
comfortable in a District school bus. There was no evidence that this practice changed at any
time relevant to this case.
During the District’s Summer school program, called the Extended School Year (ESY),
the District historically reimbursed mileage expenses for parents of students using special
education services when transporting their own students to school in lieu of District
transportation services.2 According to Assistant Superintendent of Special Education and
Support, Tracy McSparren, this practice was advantageous for the District because the District
2 At the times relevant to this case, the only students requiring special education
services used District transportation during the ESY.
4

could avoid any financial responsibility for ensuring the student arrived on time. She said that
if District-provided transportation was late, then the District would be responsible for making
up the costs of educational services lost during that time by either by paying a District teacher
additional hours for delivering extra instruction to the student or by reimbursing parents to
receive special education services from another facility. In recent years, fewer parents were
willing to take part in the mileage reimbursement program.
The February 27, 2014 Notice
On February 27, 2014, the parties’ bargaining teams met to negotiate a successor to the
expired CBA. During that meeting, Delgado, delivered a document stating in its entirety:
NOTICE
Bellflower Unified School District
To
CSEA
Article XV
MISCELLANEOUS
Contracting Out, Transportation
The District is considering contacting out transportation services
for the 2014-2015 school year.
Since the consideration of contracting out transportation services
may have an adverse impact on the hours and/or continued
employment of current unit members, the District is providing the
Association with the required 45-day notice.
If the Association exercises its right to meet and consult, the
District proposes that this take place at the next scheduled
bargaining session. At that time, the District will give good faith
consideration to the Association’s objectives if any.
5

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No one from the District informed CSEA that it had finalized any decision to either use
contractors for transportation services or to lay off and unit members working in
transportation. Indeed, no recommendation had been made to the District’s governing board
and no official governing board action had been agendized or taken. The parties did not
discuss the District’s reference to Article XV of the expired CBA and did not discuss what
would happen after the referenced 45-day period elapsed. Nor did the parties discuss the
District’s student transportation plans for the 2014 ESY scheduled to take place between the
2013-2014 and the 2014-2015 school years.
During the discussion, Delgado stated the District was interested in using contractors
for bus driving services due to concerns over District drivers’ excessive absences and timecard
“padding,” presumably, artificially inflating the number of hours worked. CSEA’s chief
negotiator, Donald Lockwood, asserted that driver misconduct should be handled using
existing discipline procedures.3 Delgado responded that the District lacked the resources to
“run around checking on people who should be doing their job.” CSEA requested proof of any
excessive absenteeism or timecard padding. The District responded that it would provide the
requested information, but it never did so.
Over the following months, the parties continued discussing transportation issues
during ongoing successor CBA negotiations. In around March 2014, Delgado informed
CSEA’s negotiating team that the District was considering contracting with Hemet Unified
School District (Hemet USD) for bus driving services because Hemet USD provided driving
services for other school districts and had a good reputation. At hearing, Delgado testified that
Lockwood asked for anticipated costs relating to the District’s contracting plans. According to
3 Lockwood did not testify.
6

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Delgado, Lockwood said “how could we give you a proposal unless we know what it [would]
cost?” Delgado responded by stating that CSEA’s costs requests were premature because the
District had not yet finalized its contracting plans.
In around early April 2014, CSEA requested a meeting between the bus drivers and
Delgado to suggest alternatives to the District’s contemplated contracting plans. Delgado
agreed but CSEA cancelled the meeting and it was never rescheduled. Instead, on or around
April 10, 2014, CSEA President Diane St. Clair committed to meeting with the bus drivers and
providing a proposal during ongoing successor negotiations. Among the suggestions
eventually discussed during this period were to redesign the District’s driving routes; add new
routes; install tracking equipment to monitor employee activity; and to have drivers perform
additional job duties, such as washing buses, to reduce the need for the District to pay for those
services elsewhere. The District opposed the idea of investing additional resources to, in
Delgado’s words “protect [bus drivers] from themselves. They ought to be doing their jobs.”
The May 1, 2014 Meeting
During a bargaining session on May 1, 2014, Delgado informed CSEA’s negotiating
team that 45 days had passed and that the District intended on contracting out bus driver work
for the 2014-2015 school year. He also said that the District would begin using contractors
during the 2014 ESY as a “trial” for the 2014-2015 school year.4 Finally, Delgado explained
that the District would offer parents $25 per day to transport their own children to and from
4 CSEA disputes that the District discussed contracting for the 2014-2015 school year
during the meeting. The District’s version of events is credited here. Delgado testified
confidently about the what occurred at the May 1, 2014 meeting and was able to recall specific
events with clarity. His account was also supported by other witnesses and by the bargaining
notes of another District negotiating team member.
7

school during the ESY. 	Delgado stated that this decision was non-negotiable. CSEA did not
immediately respond to the District’s statements. Layoffs were not discussed.
On May 15, 2014, Lockwood sent Delgado a pair of letters with the subject line “Cease
and Desist.” In one letter, Lockwood demanded that the District cease its unilateral decision to
use contractors for transporting students during the 2014 ESY asserting that CSEA had no
notice of those plans. In the second letter, Lockwood demanded that the District cease its
plans to offer parents $25 for transporting students to and from school during the 2014 ESY.
The District did not respond directly to either letter.
On or around May 21, 2014, the District entered into a contract with American
Logistics Company, LLC, to transport District students to and from school during the 2014
ESY (American Logistics Contract). Around the same time, the District revised the forms sent
to parents about the ESY. The revisions include adding the following:
Transportation (Initial One)
*If my student is eligible for transportation
__ I want to transport my own child to and from school for the
Extended School Year session and be paid $25 per child per day
of actual attendance. A copy of my current car insurance is
attached.
__ I want my child to use District provided transportation to and
from school for the Extended School Year session.
Delgado explained that the District did a cost analysis and determined that it cost the
District between $35 and $50 per student for transportation. The District determined that
offering parents $25 would result in substantial savings. McSparren said that the District paid
parents the money owed upon confirmation that the student at issue attended school that day.
The District’s goal was to eliminate the need for District bus drivers during the ESY.
8

Around the same time, the District finalized its agreement with Hemet USD for an
“AGREEMENT FOR PUPIL TRANSPORTATION SERVICES” (the Hemet Contract).
Under the terms of the agreement, the District paid Hemet USD approximately $1 million per
year to service 12 regular bus routes and 1 special route and transport District students to and
from District schools. The Hemet Contract was effective starting in the 2014-2015 school
year. Delgado testified about the Hemet Contract as follows:
[QUESTION] So, Hemet performed in 2014-’15 the work that
bus drivers had performed in previous years.
[DELGADO] Correct.
[QUESTION] And is Hemet still performing those services?
[DELGADO] They are.
In addition, Hemet USD agreed to reimburse the District for approximately $175,000 annually
for using District buses for the transportation services in the contract, for maintaining those
buses, and for maintaining certain of Hemet USD’s own buses. The District’s governing board
approved the Hemet Contract and the American Logistics Contract at the same meeting on
June 12, 2014.
Transportation During the 2014 ESY
The District did use American Logistics Company, LLC, to transport students to and
from school during the 2014 ESY. It also began paying parents $25 per day to transport their
own children. The District paid parents around $24,000 under that program. No CSEA unit
member provided transportation services during the 2014 ESY. Both programs continued in
subsequent Summers.
9

CSEA’s June 23, 2014 Proposal
On June 23, 2014, CSEA presented a counterproposal to the District’s then-pending
offer concerning both successor negotiations and settlement talks for a pending unfair practice
charge. As relevant to this case, CSEA’s proposal included the following item:
The District shall not contract out classified work for all
classifications within the bargaining unit, including transportation
and summer work during the term of the contract.
CSEA’s proposal included an effective term of July 1, 2014, until June 30, 2017. The District
did not agree to the proposal and the contract negotiations ultimately reached impasse.
The Bus Driver Layoffs
On June 27, 2014, the District notified all of its bus drivers that they were being laid
off, effective August 27, 2014. St. Clair learned of the layoff directly from bus drivers. Those
layoffs were later officially approved by the District’s governing board at a public meeting. St.
Clair attended the meeting along with some bus drivers. Several drivers appealed that
decision, but the District’s Personnel Commission denied those appeals.
The Parties’ Subsequent Communications
On July 10, 2014, in an e-mail to Delgado entitled “Transportation,” St. Clair
demanded negotiations over the District’s decision to use “a non bargaining unit group to
perform work that has been traditionally performed by members of the bargaining unit.” She
further stated that “CSEA proposes that the District cease and desist from using the non
bargaining group and offer the summer work to the bargaining unit members.”
On July 29, 2014, St. Clair e-mailed District counsel Eric Bathen protesting the
District’s decision to enter into the American Logistics Contract for ESY transportation work.
She demanded that the District return that work to District bus drivers for the remainder of the
10

________________________
Summer. Bathen responded that day asserting that the District had the authority to contract out
bargaining unit work without negotiations subject only to the notice provisions in Article XV,
Section A, of the expired CBA. He then stated that, if CSEA sought to negotiate over the
impacts of the District’s contracting decision, that St. Clair should identify the asserted impacts
and provide the District with a proposal.
On August 5, 2015, Lockwood sent District Superintendent Brian Jacobs a letter
demanding that “the District cease and desist from actions taken by the District on June 27,
2014, to layoff all 11 Bus Driver positions and that the District meet and negotiate both the
decision and the effects of contracting-out transportation services.” The parties stipulated that
Jacobs received the letter on or around the time it was sent. That same day Lockwood sent a
written request for information to Delgado about whether the District had contracted with any
entities for transportation services. CSEA requested that the District identify the companies
hired, the bidding process used, if any, any projected savings from the contract(s), the wages
and benefits paid by the contractors, the legality of the contracts under the Education Code, the
reasoning behind the contracting decision(s), whether unit members were displaced by the
contract(s), the qualifications of the contractor(s) employees, and the expected economic
benefit of the contract(s). There is no evidence that the District responded to either letter.
On August 8, 2014, CSEA representative Jason Ter Keurst sent the District another
information request, largely reiterating the request made three days earlier.5 Ter Keurst added
a request for the American Logistics Contract and the Hemet Contract. On August 12, 2014,
Bathen sent CSEA a copy of the Hemet Contract, along with documents indicating that the
5 Ter Keurst was Lockwood’s supervisor at CSEA and became involved in the
negotiations with the District in June 2014.
11

District’s governing board approved the Hemet Contract, the American Logistics Contract, and
a transportation contract with Ryan’s Express. There is no evidence that either party
communicated further regarding this information request.
In or around August 2014, Ter Keurst and Delgado had been corresponding via e-mail
over the successor negotiations and the layoff of District bus drivers. On August 12, 2014,
Delgado stated the District’s willingness to bargain over the negotiable impacts of its decision
to lay off its bus drivers. Ter Keurst replied the next day, stating that because the layoff
decision was made in conjunction with its decision to contract out bus driving services, CSEA
believed that both the decision and the impacts of the layoff were negotiable. Ter Keurst
inquired as to whether the District was willing to negotiate over both. There is no record of
Delgado’s response to Ter Keurst’s e-mail, but it was generally understood that the District
consistently maintained that only the effects of the layoff decision was negotiable.
The Successor Agreement
On October 1, 2014, the parties reached a tentative agreement in both their successor
CBA negotiations and their settlement negotiations in PERB case numbers LA-CE-1509-E and
LA-CE-5707-E. Relevant to this case is the fact that the tentative agreement did not change
the language in either Article III (Retained District Rights) or Article XV, Section A
(Contracting Out). The tentative agreement also did not include CSEA’s earlier proposal that
the District not contract out any bargaining unit work for the duration of the contract. The
term of the contract was October 1, 2014, through September 30, 2017, with reopeners limited
to health care providers and other items by mutual agreement. It is undisputed that both parties
ratified and/or approved the tentative agreement.
12

ISSUES
1. 	Did the District violate the duty to negotiate in good faith by failing to respond
to CSEA’s information requests made on either: (a) February 27, 2014, or (b) August 8, 2014?
2. 	Did the District violate the duty to negotiate in good faith by unilaterally
changing any existing policy either by: (a) laying off all bus drivers and subcontracting all bus
driver work for the regular school year, starting in 2014-2015; or (b) subcontracting all bus
driver work during the ESY, starting in 2014?
CONCLUSIONS OF LAW
1. 	The Information Request Allegations
CSEA accuses Bellflower of failing or refusing to respond to two requests for
information during the course of negotiations. EERA entitles exclusive representatives to all
information “necessary and relevant” to the discharge of their duty of representation.
(Santa Monica Community College District (2012) PERB Decision No. 2303 (Santa Monica
CCD), proposed dec., p. 6, citing Stockton Unified School District (1980) PERB Decision No.
143 (Stockton USD).) Failure to provide such information upon request is a breach of the duty
to bargain in good faith and violates EERA sections 3543.5, subdivisions (a), (b), and (c).
(Santa Monica CCD, p. 3; Compton Community College District (1990) PERB Decision
No. 790, p. 6.) PERB uses a liberal standard, similar to a discovery-type standard, to
determine relevance of requested information. (Santa Monica CCD, proposed dec., p. 6, citing
Trustees of the California State University (1987) PERB Decision No. 613-H.) Requests for
information relating to issues within the scope of representation are considered presumptively
relevant. (Saddleback Valley Unified School District (2013) PERB Decision No. 2333
13

(Saddleback Valley USD), proposed dec., p. 22, citing Ventura County Community College
District (1999) PERB Decision No. 1340.)
An employer’s duty to furnish otherwise “relevant and necessary” may be fully or
partially excused under certain circumstances, such as where production will impose
burdensome costs on the employer, or the release will compromise employee privacy rights.
(Los Rios Community College District (1988) PERB Decision No. 670, p. 13 (Los Rios CCD);
Modesto City Schools and High School District (1985) PERB Decision No. 479, p. 11.)
However, the employer must explain why it will not comply and has the burden of establishing
that production is inappropriate under the circumstances. (San Bernardino City Unified School
District (1998) PERB Decision No. 1270, pp. 69-70 (San Bernardino City USD), citing
Stockton USD, supra, PERB Decision No. 143; NLRB v. Borden (1st Cir. 1979) 600 F.2d 313;
The Kroger Co. (1976) 226 NLRB 512.) If the employer affirmatively asserts its concerns,
then both parties must bargain in good faith to ameliorate those concerns. (See, e.g., Los Rios
CCD, supra, PERB Decision No. 670, pp. 10-12 [employer bargained in good faith by offering
to delete social security numbers from requested document].) An employer may not simply
ignore a union’s information request. (Saddleback Valley USD, supra, PERB Decision No.
2333, proposed dec., 21-22, citing Chula Vista City School District (1990) PERB Decision
No. 834 (Chula Vista CSD); see also Los Angeles Superior Court (2010) PERB Decision
No. 2112-I, partial dismissal, p. 6 (LA Superior Court).)
a. 	The February 27, 2014 Information Request
In this case, the District acknowledges never responding to the February 27, 2014
request but asserts that CSEA failed to prove that the requested information is necessary and
relevant to the representation of the bargaining unit. I find this argument unpersuasive for at
14

least three reasons. First, CSEA’s information request for the District’s records of excessive
bus driver absenteeism, incorrect timekeeping, and other misconduct was made in direct
response to the District’s own assertions about inefficiency and cost overruns in the
transportation department. CSEA only sought those documents to test the veracity of the
District’s claims regarding the need to subcontract bus driver work. CSEA’s request was made
contemporaneous to the District’s own invitation to meet and consult over the matter. The
requested information is plainly relevant to that discussion and, under the circumstances, I find
that the District’s assertions to the contrary lack sincerity.
Second, CSEA’s request touches upon several negotiable subjects. EERA section
3543.2, subdivision (a)(1), expressly includes both hours and leave policies as within the scope
of representation. Accordingly, CSEA’s request for information relating to alleged
misreporting of time and leave abuse involves presumptively relevant matters. Likewise,
CSEA’s request for employee discipline records concerns matters within the scope of
representation. (See Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262,
pp. 12-13 (Fairfield-Suisun USD), citing San Bernardino City USD, supra, PERB Decision
No. 1270, Healdsburg Union High School District and Healdsburg Union School
District/San Mateo City School District (1984) PERB Decision No. 375, San Bernardino City
Unified School District (1982) PERB Decision No. 255.) Thus, an employer’s duty to furnish
information includes the obligation to provide records of disciplined employees where those
records have a representational purpose. (Mt. San Antonio Community College District (1982)
PERB Decision No. 224, pp. 10-11.) Therefore, the District was required to respond to the
request for presumptively relevant information.
15

________________________
Third, even if the District had legitimate questions about the relevancy of the
information requested, it was still not privileged to simply ignore CSEA’s request entirely. In
Chula Vista CSD, supra, PERB Decision No. 834, the Board held that an employer who
disagrees with the relevancy of requested information was obligated to raise those issues to the
union in a timely manner. (Id. at p. 53.) The District failed to do so in this case. Instead, the
District acknowledges receiving the request, stated it would respond, and then failed to do so.
This conduct violates EERA section 3543.5, subdivision (c), with derivative violations of
subdivision (a) and (b). (Santa Monica CCD, supra, PERB Decision No. 2303, p. 3.)
b. 	The August 8, 2014 Information Request
CSEA also alleges that the District refused to respond to its August 8, 2014 request
regarding the District’s private transportation contracts. The record shows that the District did
respond to this request on August 12, 2014. The question here, therefore, is whether the
District’s response violated the duty to negotiate in good faith. PERB generally finds no
violation where the employer responds, at least partially, to an information request and the
union fails to either communicate its dissatisfaction with the response, clarify the information
needed, or reassert its request. (LA Superior Court, supra, PERB Decision No. 2112-I, partial
dismissal, p. 6, citing State of California (Department of Personnel Administration) (2009)
PERB Decision No. 2013-S, State of California (Departments of Personnel Administration and
Transportation) (1997) PERB Decision No. 1227-S, Oakland Unified School District (1983)
PERB Decision No. 367; but see Los Angeles Unified School District (2015) PERB Decision
No. 2438,6 pp. 16-18 [finding no requirement to reassert an information request where the
parties discussed the appropriate response beforehand and the union raised its “unequivocal
6 Appeal pending, July 24, 2015 B265626.
16

objection” to the response contemplated by the employer].) In Trustees of the California State
University (2004) PERB Decision No. 1732-H, a union requested information relating to the
representation of a unit member seeking reinstatement to her prior position. (Id. at pp. 2-3.)
The union’s request included seven separate items, but the employer only responded to five of
those items. There was no further contact between the parties about the request. The Board
dismissed the union’s information request claim, reasoning that “the lack of reassertion for
information not provided in the response from [the employer] creates a situation where there is
no violation.” (Id. at. pp. 6-7.)
In the present case, the District responded to CSEA’s information request within four
days, providing a copy of the Hemet Contract as well as other information about other
contracts. Although this complied with only a portion of CSEA’s lengthy information request,
CSEA never expressed its dissatisfaction with the response, reasserted the request, or clarified
that it sought additional or different records. Nor is this the case where the parties had already
discussed the request and where CSEA clearly objected to the District’s planned response
beforehand. Based on these facts, this allegations does not demonstrate a violation of the duty
to bargain in good faith and it is therefore dismissed.
2. 	The Unilateral Change Allegations
CSEA maintains that the District’s decision to offer or assign transportation work to
non-unit members starting in the 2014 ESY and in the 2014-2015 school year were unilateral
policy changes. Unilateral changes violate the duty to bargain in good faith where: (i) the
employer took action to change existing policy; (ii) the policy change concerned a matter
within the scope of representation; (iii) the action was taken without giving the exclusive
representative notice or opportunity to bargain over the change; and (iv) the change has a
17

________________________
generalized effect or continuing impact on terms and conditions of employment. (Fairfield-
Suisun USD, supra, PERB Decision No. 2262, p. 9, citing Grant Joint Union High School
District (1982) PERB Decision No. 196, p. 10; Walnut Valley Unified School District (1981)
PERB Decision No. 160, p. 5.) The allegations concerning the 2014 ESY and the 2014-2015
school year will each be discussed separately below.
a. 	Contracting Out Bus Driver Work During the 2014-2015 School Year
CSEA alleges a unilateral change when the District laid off all its bus drivers and
concurrently entered into the Hemet Contract for all or most of its bus driving services starting
in the 2014-2015 school year.7
i. 	Alleged Policy Change
The record shows that prior to entering into the Hemet Contract, District bus drivers
performed the large majority of all work involving transporting students to and from District
schools during the regular school year. Starting in the 2014-2015 school year, all District bus
drivers were laid off and Hemet USD drivers transported District students to and from school.
Delgado unequivocally confirmed these facts during his testimony. This satisfies the first
element of the unilateral change analysis.
ii. 	Scope of Representation
The District is correct that not all subcontracting decisions are subject to negotiations.
This is because some contracting decisions “lie at the core of entrepreneurial control or change
the nature and direction of an operation [and are therefore] not automatically subject to
7 To the extent that CSEA also asserts that the District contracted out unit member work
through its Ryan’s Express Transportation contracts, those claims are rejected as lacking proof.
Delgado explained that the District used Ryan’s Express mainly for trips that could not be done
by District drivers and/or buses. There was no evidence that the District used Ryan’s Express
to perform work normally done by the bargaining unit.
18

collective bargaining even though such decisions may well impact employment security.”
(Oakland Unified School District (2005) PERB Decision No. 1770, proposed dec., pp. 25-26
(Oakland USD), citing Fibreboard Corp. v. NLRB (1964) 379 U.S. 203, p. 223; Stanislaus
County Department of Education (1985) PERB Decision No. 556.) The Board has identified
two instances where an employer’s contracting decision is negotiable:
(1) where the employer simply replaces its employees with those
of a contractor to perform the same services under similar
circumstances; or (2) where the decision was motivated
substantially by potential savings in labor costs.
(State of California (Department of Veterans Affairs) (2010) PERB Decision No. 2110-S, p. 6
(Veterans Affairs), citing Lucia Mar Unified School District (2001) PERB Decision No. 1440
(Lucia Mar USD); Oakland USD, pp. 25-27; Redwoods Community College District (1997)
PERB Decision No. 1242, proposed dec., p. 22.) In addition, “when layoffs result from a
decision to contract out bargaining unit work, ‘the decision to subcontract and layoff
employees is subject to bargaining.’” (Id., citing Fire Fighters Union v. City of Vallejo (1974)
12 Cal.3d 608, p. 621.) Using these definitions, the District’s decision to lay off all its bus
drivers and then continue providing substantially similar bus services to its students via a
private contractor falls under the scope of representation.
The District also acknowledges that cost savings was its primary reason for moving
away from using its own bus drivers for transportation work. Delgado explained that
“expenses were getting out of control” in the transportation department, and that the District
thought that could provide more effective and cost-efficient transportation services through
private contractors. McSparren, another member of the District’s negotiating team, echoed
that sentiment, stating that whenever a District bus was late and students lost special education
services, the District was required to pay to recoup those services.
19

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The District maintains that the contracting decisions here were non-negotiable service
level changes part of its managerial prerogative because its own bus drivers were ineffective.
PERB rejected a nearly identical argument in Oakland USD, supra, PERB Decision No. 1770.
In that case, the employer argued that it subcontracted police services to the local police force
after concluding that its own officers provided insufficient coverage after school and during
weekends. PERB concluded that those issues could potentially be addressed through
negotiations, such by bargaining over shifts and wages during the times in question. (Id. at
proposed dec., pp. 29-30.); see also Long Beach Community College District (2008) PERB
Decision No. 1941, pp. 13-14 (Long Beach CCD) [holding that employer’s decision to contract
with local police department to perform the same basic services was not a “fundamental
change” in operations].) I reach the same conclusions here as well. The District’s concerns
about bus driver efficiency and services levels could have been addressed through negotiations.
In fact, CSEA offered solutions to the District at the negotiating table that could have
addressed the District’s efficiency concerns. Thus, I decline to find that the contracting
decisions here were made for a non-negotiable change in service level.8
iii. 	Notice and Opportunity to Request Negotiations
The next issue is whether the District provided CSEA with adequate notice and the
chance to request bargaining before subcontracting all of its bus driver work, starting in the
2014-2105 school year. This element is satisfied where the respondent fails to provide
8 The Hemet Contract was not merely one where the District agreed to compensate
Hemet USD in exchange for providing bus driving services. In addition, Hemet USD also
compensates the District for bus maintenance. I decline to conclude that this fact renders the
District’s decision to replace its own drivers with Hemet USD’s a non-negotiable service-level
change. Both before and after the Hemet Contract, the District still offered a similar level of
bus transportation services to approximately the same number of students. The main change in
that regard effectuated by the Hemet Contract was the personnel who performed those services.
20

reasonable advance notice and opportunity for bargaining before reaching a firm decision to
enact a negotiable policy change. (City of Sacramento (2013) PERB Decision No. 2351-M, p.
28, citing PERB v. Modesto City Schools (1982) 136 Cal.App.3d 881, p. 900; Trustees of the
California State University (2012) PERB Decision No. 2287-H, pp. 10-11.) The District
maintains that it informed CSEA of its intent to contract out bus driver work through the
February 27, 2014 Notice. That document stated that the District was “considering”
contracting out transportation work in a way that could impact CSEA’s unit. Pursuant to
Article XV, Section A of the expired CBA, the District gave CSEA 45 days from which to
“meet and consult” over the matter before the District finalized its contracting out plans. The
District now contends that, because CSEA never made a formal demand to bargain, the District
was entitled to move forward with its subcontracting plans. It argues, essentially, that CSEA
has waived any right to negotiate over the decision to contract out bus driver work by its
silence.
An exclusive representative may waive its right to bargain over an issue “where the
employer shows that the exclusive representative failed to demand to negotiate, despite having
received sufficient notice of the proposed change.” (West Covina Unified School District
(1993) PERB Decision No. 973, pp. 13-14, citing Cloverdale Unified School District (1991)
PERB Decision No. 911.) However, “[s]ilence, by itself is never clear and unambiguous.”
(Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 7.) Thus, to find
a waiver, there must be other indicators that the union intentionally relinquished its right to
bargain. (Ibid.) Although an unreasonable delay in making a bargaining demand may be
evidence of a waiver, the reasonableness of the delay turns on the specific facts of each case.
(Id., citing Compton Community College District (1989) PERB Decision No. 720; Victor
21

Valley Union High School District (1986) PERB Decision No. 565.) Moreover, such a waiver
cannot be found absent proper notice, which necessarily includes both advance knowledge and
the opportunity to demand bargaining. (County of Santa Clara (2013) PERB Decision
No. 2321-M, pp. 27-29.) In the present case, I decline to find that CSEA waived its bargaining
rights because the District never offered a meaningful opportunity to bargain and because the
District also ignored CSEA’s efforts to engage in negotiations.
(a) 	Lack of Opportunity to Request Negotiations
The February 27, 2014 Notice did not provide CSEA with any opportunity for
meaningful negotiations. An employer does not satisfy the notice requirement by informing a
union of a contemplated change that it has no intent of bargaining over. (City of Sacramento,
supra, PERB Decision No. 2351-M, p. 33, citing Lost Hills Union Elementary School District
(2004) PERB Decision No. 1652, Arcohe Union School District (1983) PERB Decision
No. 360 (Arcohe USD), San Francisco Community College District (1979) PERB Decision
No. 105, Ciba-Geigy Pharmaceuticals (1982) 264 NLRB 1013, p. 1017, Mercy Hosp. of
Buffalo (1993) 311 NLRB 869, p. 873, S&I Trans., Inc. (1993) 311 NLRB 1388, p. 1390.) In
those situations, unions are not required to demand bargaining because doing so, in light of the
employer’s fait accompli, would be futile. (Arcohe USD, p. 11; Fall River Joint Unified
School District (1998) PERB Decision No. 1259, p. 28.) A union does not waive any right to
bargain where it only learned of the changes after the employer already finalized its decision.
(Id. at p. 28.) And it is not required to put forth proposals in light of the employer’s refusal to
acknowledge any bargaining obligation. (Gonzales Union High School District (1984) PERB
Decision No. 410, p. 25.)
22

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Here, the District had not yet finalized its contracting-out plans at the time of its
February 27 2014 Notice. But I nevertheless find the futility line of cases instructive to the
extent that they recognize that it is fruitless to require a union to demand negotiations from an
unwilling employer. The February 27, 2014 Notice specifically references the District’s
perceived authority under CBA Article XV, Section A, to contract out unit work subject only
to a “meet and consult” requirement. By citing to that section, the District communicated to
CSEA that it did not intend on negotiating over its subcontracting plans and that any
discussions between the parties on the subject would not constitute formal bargaining. District
counsel Bathen confirmed that position in an e-mail from July 29, 2014, where the he informed
CSEA president St. Clair that the Article XV of the expired CBA authorized the District to
contract out unit work without negotiations. Bathen reiterated that position in a letter dated
August 12, 2014, informing CSEA, that the District was only obligated to “meet and consult”
over the subcontracting plans.9 Because the District consistently took the position that it could
contract out bus driver work without negotiations, I conclude that any demand to negotiate
9 Bathen was the District’s counsel on this matter. Delgado explained that he referred
communications from CSEA to Bathen for response. As such, Bathen was acting as an agent
of the District and the statements made in his e-mails qualify as agency admissions.
(Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 9-11; Gonzales
Union High School District (1993) PERB Decision No. 1006, proposed dec., p. 15.)
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over the change would have been a meaningless exercise.10 Under the circumstances, CSEA
was not required to demand negotiations.11
(b) 	Adequacy of CSEA’s Statements Concerning Negotiations
I also conclude that CSEA had adequately informed the District that it desired
negotiations over any proposed subcontracting of bus driver work. A bargaining demand does
not require any specific format or language, so long as the union adequately demonstrates a
desire to negotiate a matter within the scope of representation. (Sylvan Union Elementary
School District (1992) PERB Decision No. 919, pp. 11-12, citing Newman-Crows Landing
Unified School District (1982) PERB Decision No. 223, pp. 7-8.) Mere protests or “heated
discussions” about a planned change are insufficient to notify the employer that the union
desires bargaining. (Pasadena Area Community College District (2011) PERB Decision
No. 2218, proposed dec., pp. 5-6, citing County of Riverside (2010) PERB Decision No. 2097-
M; Santee Elementary School District (2006) PERB Decision No. 1822, p. 5, citing Delano
Joint Union High School District (1983) PERB Decision No. 307.)
10 The District argues in its closing brief that the “meet and consult” language in the
expired CBA “obviously” means that it had an obligation to negotiate over the contracting out
decision. I reject that argument as contrary to both the position it took in its communications
directly with CSEA and existing interpretations of EERA. (Allan Hancock Community College
District (1989) PERB Decision No. 768, warning ltr., p. 5; see also El Centro Elementary
School District (2006) PERB Decision No. 1863, p. 3, citing Eureka City School District
(1992) PERB Decision No. 955.)
11 But see Metropolitan Water District of Southern California (2009) PERB Decision
No. 2055-M, where the Board rejected a union’s argument that an employer’s statement that it
was willing to “meet and discuss” a policy change implied that it was unwilling to meet and
confer over that change. The Board reasoned that the employer was under no obligation to
invite bargaining. Here, by contrast, the District affirmatively communicated its unwillingness
to engage in formal negotiations due to the authority it believed it possessed under the expired
CBA.
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In this case, upon receiving the February 27, 2014 Notice, CSEA requested proof of
cost-overruns and employee misconduct in the Transportation Department. Delgado also
acknowledged in his testimony that CSEA requested cost information and that CSEA’s chief
negotiator at the time, Lockwood, said that “how could we give you a proposal unless we know
what it [would] cost?” The District admitted to never providing any information in response to
either request. Delgado also testified that CSEA’s negotiators committed to putting forward a
proposal on the contracting issue in or around April 2014. The District argues that CSEA
never followed through with an actual proposal. Even if the District were correct, its
admission that CSEA expressed interest in submitting a proposal is sufficient to indicate a
desire to engage in bargaining over the subcontracting issue.
Furthermore, witnesses from both parties stated that CSEA offered alternatives that
could have addressed the District’s asserted transportation concerns and possibility eliminated
or reduced the need to use a private contractor or layoff bus drivers. Among the alternatives
explored were redrawing or increasing the number of bus routes to improve effectiveness,
adding job duties for bus drivers to reduce the need to go elsewhere for those services, adding
tracking equipment, and changing current disciplinary practices. On June 23, 2014, CSEA
gave its clearest indication of its desire to negotiate this matter, proposing in successor CBA
bargaining that the District not contract out any bargaining unit work for the life of the new
contract.12 Although the District may not have agreed with CSEA’s proposed solutions, the
12 At hearing the District highlighted the fact that CSEA later withdrew this proposal
before the parties reached their tentative agreement in October 2014. The District also notes
that, under the tentative agreement, the District retains its authority to contract out under
Articles III and XV. It appears to argue that by reaching the tentative agreement, CSEA
implicitly acquiesced to the contracting decisions made in this case. I reject that argument for
at least two reasons. First, waivers must be express, not implicit, and the tentative agreement
made no mention of resolving the instant dispute. Second, the term of the new agreement was
25

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issue at this stage is whether CSEA signaled the intent to negotiate over with the District.13
CSEA requested information about the District’s subcontracting plans, committed to
presenting proposals to the District, and then followed through with that commitment. All of
these actions are inconsistent with a party who has intentionally relinquished its right to
negotiate. To the contrary, CSEA’s conduct conclusively shows its desire to negotiate over the
subcontracting of bus driver work.
On the whole, I conclude that the District did not provide CSEA with an opportunity for
good faith negotiations. In addition, CSEA also demonstrated its interest in negotiating with
the District over any subcontracting plans. For all these reasons, CSEA has established this
element of its prima facie case.
iv. 	Generalized Effect
The record shows that the District, through the Hemet Contract, removed work from
CSEA’s bargaining unit starting in the 2014-2015 school year and continuing up until the
present. Nor is there any dispute that the District permanently laid off all of its bus drivers and
no longer employs them. This is sufficient to establish the final element of CSEA’s prima
facie case.
October 1, 2014, through September 2017. Thus, any authority given to the District under the
tentative agreement did not apply to June 2014, when the District began subcontracting 2014
ESY bus driver work, or to August 2014, when the District began subcontracting bus driver
work for the regular school year.
13 There is some indication that the District did, in fact, agree with some of CSEA’s
positions. The District agreed in the Hemet Contract to increase the number of existing bus
routes from 11 to 12 regular routes and one special route.
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v. 	The Contract Waiver Defense
The District’s principal defense in this case is that it was permitted to contract out
based on the language in Articles III and XV of the expired CBA. Evaluating the merit of this
argument requires me to interpret the terms of the parties’ agreement. PERB may review
parties’ contracts only to the extent necessary to decide issues within its jurisdiction, such as
unfair practice charges. (County of Sonoma (2012) PERB Decision No. 2242-M, pp. 15-16.)
An exclusive representative may “waive its right to negotiate a matter within the scope
of representation by consciously yielding that right in a management rights clause.” (Berkeley
Unified School District (2004) PERB Decision No. 1729, warning ltr., p. 3.) This sets a high
bar. To meet it, the contract language must “specifically reserve for management the right to
take certain action or implement changes regarding the issues in dispute.” (Id., citing CSEA v.
PERB (1996) 51 Cal.App.4th 923, pp. 938-940.) A generally worded management rights
clause will not be construed as a waiver. (Rocklin Unified School District (2014) PERB
Decision No. 2376, proposed dec., pp. 39-40.) Moreover, any waiver of the right to bargain
contained in a contract does not remain in effect after the negotiated term of that agreement.
(Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M, pp. 14-
15 (Stanislaus CFPD), citing Antelope Valley Union High School District (1998) PERB
Decision No. 1287; see also Regents of the University of California (2004) PERB Decision
No. 1689-H, proposed dec., p. 25 (UC Regents I), citing Blue Circle Cement Co. (1995) 319
NLRB 954 [“a contractual reservation of managerial discretion does not extend beyond the
expiration of the contract unless the contract provides for it to outlive the contract.”].)14
14 The Board in Antelope Valley Union High School District, supra, PERB Decision
No. 1287, actually found that provision in the parties’ CBA granting the employer authority
over selection and promotion processes remained in effect even after the agreement expired.
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The District in this case relies heavily on Barstow Unified School District (1996) PERB
Decision No. 1138 (Barstow USD). In that case, the parties entered into an agreement
retaining for the employer “all powers and authority to direct, manage and control to the full
extent of the law. Included but not limited to those duties and powers are the exclusive right to
. . . contract out work which may be lawfully contracted for[.]” The contract further specified
that the union waived the right to negotiate over any subjects (except for limited reopeners) for
the term of the contract. (Id. at pp. 6-7.) The Board interpreted that language as follows:
“[t]he clear and explicit meaning of this contract language is that the District has the right to
make the decision to contract out a specific area of work, transportation services, without
engaging in negotiations with [the charging party] over that decision.” (Id. at p. 14.)15
In this case, CSEA appears to concede that the language in CBA Article III, Section A,
operated as a waiver of the right to negotiate over contracting out bargaining unit work so long
as the District satisfied the notice and meet and consult requirements of Article XV, Section A.
CSEA instead argues that the District’s authority under the CBA expired along with the
(Id. at pp. 6-7.) In doing so, the Board at the time appears to have drawn some kind of
distinction between contract-based waivers of the duty to bargain, which it acknowledged
expired with the contract, and contract-based managerial rights clauses. I note that the Board’s
later decisions, including Stanislaus CFPD, supra, PERB Decision No. 2231-M and UC
Regents I, supra, PERB Decision No. 1689-H, make no such distinction and unambiguously
hold that neither contractual waivers nor reservation of managerial discretion over negotiable
subjects survive expiration of the parties’ agreement. (See also Los Angeles Unified School
District (2014) PERB Decision No. 2390, p. 40 [holding that an employer may not unilaterally
impose a reservation of rights clause which operates as a waiver of a union’s right to negotiate
matters within the scope of representation].)
15 The Barstow USD, supra, PERB Decision No. 1138 decision was later overruled by
the Board in Long Beach Community College District (2003) PERB Decision No. 1568, p. 21.
That decision was, itself overruled in Long Beach CCD, supra, PERB Decision No. 1941 in
order to reinstate the above-described rule in Barstow USD. (Id. at p. 21.)
28

contract in 2010. The District maintains that the CBA remains in effect under the terms of the
CBA’s duration provision, Article XVI.
Traditional principles of contract determination dictate that PERB first examine the
plain meaning of the language in the parties’ agreement to ascertain its meaning. (County of
Sonoma, supra, PERB Decision No. 2242-M, pp. 15-16) Extrinsic evidence is relevant in
those cases where the language of the agreement itself is not clear and unambiguous. (Ibid.)
I find that CBA Article XVI is ambiguous on its face. It states “This Agreement shall
become effective July 1, 2004 and remain in full force and effect to and including June 30,
2007 or until a successor Agreement is approved by the Board of Education.” This contradicts
the cover page of the CBA, which states its effective term as “July 1, 2007 – June 30, 2010.”
Moreover, it is undisputed that the contract was negotiated in 2007. I find it highly unlikely
that the parties would would negotiate a CBA with a term that started three years before
negotiations even commenced. Relying then on extrinsic evidence, the District’s chief
negotiator, Delgado, testified that the dates in the duration clause were typographical errors
and that the contract listed dates should have been 2007 through 2010. Delgado further
testified that the CBA expired in 2010. Multiple CSEA witnesses agreed. I find this testimony
persuasive.
The District argues that the “until a successor Agreement is approved by the Board of
Education,” clause in Article XVI, should be interpreted to mean that the CBA remained in
effect after July 1, 2010, because the District’s governing board did not approve a successor
agreement until after October 2014. I decline to adopt that interpretation because doing so
conflicts with the undisputed testimony about the contract’s expiration date. Furthermore,
contracts should be read in a manner “‘which gives a reasonable, lawful, and effective meaning
29

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to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or
of no effect.’” (Long Beach CCD, supra, PERB Decision No. 1941, p. 17, quoting Riverside
Community College District (1992) PERB Order No. Ad-229, pp. 3-4.) Here, the District’s
proffered interpretation would extend the term of the CBA beyond three years. Such an
interpretation is inconsistent with EERA, Section 3540.1, subdivision (h), which defines the
parties’ meet and confer obligations. That section contemplates entering into a binding written
agreement ratified by both parties, and that “[t]he agreement may be for a period of not to
exceed three years.” The Board has, unsurprisingly, interpreted this language to mean “[t]he
language of EERA is clear. A contract’s duration cannot exceed three years.” (San Benito
Joint Union High School District (1984) PERB Decision No. 406, p. 5.) The District’s
interpretation would extend the terms of the parties’ CBA several years beyond the three-year
maximum duration under EERA, Section 3540.1, subdivision (h). I cannot ascribe such an
interpretation to the parties’ contract because doing so would conflict directly with EERA.
(See Long Beach CCD , supra, PERB Decision No. 1941, p. 17.) Rather, I find it more likely
that the parties intended the term of the CBA to be three years (from July 1, 2007, through
June 30, 2010), unless succeeded earlier by a new agreement that is approved by the District’s
governing board. This interpretation is more consistent with both the requirements of EERA
as well as with witnesses’ own description of the CBA.16
16 I note that the language of the duration clause in Barstow USD, supra, PERB
Decision No. 1138 contained a duration clause that is similar to Article XVI, Section A, in this
case. (Id. at p. 2.) That language included both a fixed three-year term and language
specifying that the agreement would continue “until such time as a new or modified agreement
is reached by the parties.” However, the Board did not review the duration clause in that case
because the employer made its subcontracting decisions within the three-year term of the
agreement. (Id. at pp. 3-5.)
30

Based on the above, I conclude that the CBA had expired in 2010, and the District’s
authority to unilaterally contract out bargaining unit work expired with it. Thus, the CBA
offers no valid defense for the District’s unilateral subcontracting decision.
CSEA has satisfied all the elements of its prima facie case for a unilateral change. The
District did not persuasively establish any defenses for failing to bargain with CSEA before
laying off all its drivers and subcontracting out that work. Therefore, the District’s decisions
lay off all its drivers and to contract with Hemet USD for bus driver work starting in the 2014-
2015 school year violated the duty to negotiate in good faith under EERA, Section 3543.5,
subdivision (c). This conduct also derivatively violated EERA, Section 3543.5, subdivisions
(a) and (b). (Lucia Mar USD, supra, PERB Decision No. 1440, appendix.)
b. 	Contracting Out Bus Driver Work During the 2014 ESY
The PERB also complaint alleges that the District unilaterally decided to offer parents
$25 per day to transport their own children to and from school during the ESY. In addition,
CSEA also asserts that the District unilaterally contracted with an outside company, American
Logistics for bus driving services during the 2014 ESY. The Board addresses claims not raised
in the complaint using its so-called “unalleged violation” doctrine, which states:
The Board has authority to review unalleged violations where the
following criteria are met: (1) adequate notice and opportunity to
defend has been provided the respondent; (2) the acts are
intimately related to the subject matter of the complaint and are
part of the same course of conduct; (3) the unalleged violation
has been fully litigated; and (4) the parties have had the
opportunity to examine and be cross-examined on the issue.
(Lake Elsinore Unified School District (2012) PERB Decision No. 2241, p. 8, citations
omitted; see also Jurupa Unified School District (2015) PERB Decision No. 2420, p. 16.) As a
31

threshold matter, the unalleged allegations must be timely. (Fresno County Superior Court
(2008) PERB Decision No. 1942-C, pp. 14, 17.)
I conclude that all of the elements from the unalleged violation analysis are satisfied in
this case. CSEA first raised its claims about contracting out 2014 ESY bus driver work in its
original unfair practice charge. Those claims were timely as of the date the charge was filed.
(Fresno Superior Court, supra, PERB Decision No. 1942-C, pp. 14, 17.) In addition, the
District had ample notice that CSEA would be challenging the legality of all the District’s
contracting out of bus driver work. Before the hearing, CSEA subpoenaed records of the
District’s Summer 2014 transportation contracts and introduced documents produced from
those subpoenas as exhibits at hearing. In addition, CSEA questioned each of its witnesses
about either the District’s decision to contract out 2014 ESY bus driver work or about work
lost as a result of the contracting decisions. The parties submitted as a joint exhibit CSEA’s
May 15, 2014 written demand for the District to cease and desist from contracting out bus
driver work during the 2014 ESY. Both parties addressed the lawfulness of the District’s 2014
ESY contracting decisions in their closing briefs. These facts all demonstrate that the District
had adequate notice of the previously unalleged claim.
It is also clear from the record that the previously unalleged contracting out claims arise
from the same basic cluster of facts as those expressly stated in the PERB complaint. District
witnesses claim that the District announced all of its subcontracting decisions at the same time
on May 1, 2014. Both the Hemet Contract and the American Logistics Contract were approved
by the District’s governing board at the same time. The District furthermore asserts that the
same document, i.e., the February 27, 2014 Notice, informed CSEA of all its contracting
decisions. The District also relies on the same provisions of the expired CBA as its primary
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justification for all its subcontracting decisions. These facts satisfy the second element of the
unalleged violation test.
The substantial overlap between the alleged and unalleged violations also demonstrates
that the previously unalleged matters were fully litigated at hearing. Both sides present nearly
identical factual claims and legal positions in support of the alleged and unalleged violations.
Both had ample opportunity to establish those positions at hearing and in closing argument.
Therefore, I conclude that the previously unalleged claims were fully litigated.
Finally, both parties had and took the opportunity to question witnesses and present
other evidence in support of their respective positions about the District’s decision to enter into
2014 ESY transportation contracts. Accordingly, I will consider whether the District
unilaterally changed existing policy by offering parents money to transport students or by
contracting with a private bus company.
i. 	Alleged Policy Change
The record shows that District bus drivers historically performed most, if not all, of
student transportation services during the District’s ESY. Multiple drivers credibly testified
that this practice had been going on for more than 10 years and that multiple District bus
drivers consistently received Summer driving assignments during the ESY through a seniority-
based bidding process. Delgado also acknowledged that, prior to 2014, District drivers
performed the “majority” of this work. No District bus driver was offered an ESY assignment
during 2014.17 These facts are sufficient to establish the first element of CSEA’s prima facie
case for a unilateral change violation. In its brief, the District argues that no evidence
17 At that point, all District bus drivers had been notified had been notified of their
layoff but that layoff was not effective until August 27, 2014, which is after the 2014 ESY
concluded.
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established that District drivers performed the Summer transportation work, but this assertion
misstates the undisputed evidence presented by both parties. For that reason, the argument is
rejected.
ii. 	Scope of Representation
As explained above, the decision to contract out work is negotiable when: (1) the
employer merely replaces its own employees for contractors performing similar services; or (2)
where the contracting decision was based substantially on potential labor cost savings.
(Veterans Affairs, supra, PERB Decision No. 2110-S, p. 6.)
Similarly to above, the District’s decision to use contractors for the 2014 ESY also
satisfies both of the above alternatives that make subcontracting decisions negotiable. It is
clear that the District completely ceased assigning any transportation work to bus drivers
during the 2014 ESY and instead offered that work to either parents or to American
Logistics.18 In cases where the employer fully replaces its own employees with contractors
who perform the same services under similar conditions, the Board has found that decision is
18 For this reason, the District’s argument that the decision to use contractors in this
instance was non-negotiable because it had an existing past practice of using contractors for
transportation is rejected. The record showed that the District had historically used private
companies for transporting students that drivers could not cover or where District busses would
have been inadequate to the task. Furthermore, the District previously offered to reimburse
District parents for mileage costs associated with transporting their own students to school, but
that practice waned over the years because, in Delgado’s words “[m]any parents were not
doing it anymore for the mileage.” There was no dispute that District drivers performed most
of the transportation work during prior ESYs. In contrast with these practices, the District
supplanted its own drivers in total, and reassigned all 2014 ESY driving work to outsiders. An
employer’s “significant increase in subcontracting constituted an unlawful ‘change in quantity
and kind,’ even where the same type of duties had been contracted out in the past.” (Beverly
Hills Unified School District (1990) PERB Decision No. 789, pp. 15-16, citing Oakland
Unified School District, supra, PERB Decision No. 367; see also California State University
(San Diego) (2008) PERB Decision No. 1955-H, proposed dec., pp. 7-8.)
34

subject to negotiations without any further consideration as to whether the decision was based
on labor costs. (Lucia Mar USD, supra, PERB Decision No. 1440, proposed dec., pp. 39-40.)
The District argues that parents transporting their own children to school cannot
properly be characterized as “contracting out.” While I recognize the intuitive force behind
this argument, the mere involvement of parents does not automatically preclude finding a
subcontracting relationship. The Education Code, expressly contemplates school districts
entering into private contracts with the parents of the students being transported. (Educ. Code,
§ 39800.) In Lincoln Unified School District (1984) PERB Decision No. 465, PERB found
that an employer violated the duty to negotiate in good faith by eliminating all special event
bus driving assignments for its own employees, instead assigning that work to parent
volunteers who were part of the local “booster club.” (Id. at pp. 2-3, proposed dec., pp. 10-11.)
The Board opined that if the employer simply discontinued all transportation services and the
booster club independently volunteered to fill the gap, there would likely have been no
violation. But, because the employer sought to continue bus service through a means other
than its regular employees, that decision was subject to negotiations. (Id. at p. 3; see also
Ocean View School District (1999) PERB Decision No. 1320, partial dismissal, p. 2 [holding
employer’s decision to hire a private company employing parent volunteers was considered
contracting out].) Moreover, the Board defines “independent contractor” broadly. When
discussing the difference between an “employee” and a “contractor,” the Board found:
“Where the one for whom the services are performed retains the
right to control the manner and means by which the result is to be
accomplished, the relationship is one of employment; while, on
the other hand, where control is reserved only as to the result
sought, the relationship is that of an independent contractor.”
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(Ventura County Community College District (2003) PERB Decision No. 1547, pp. 21-22
(Ventura County CCD) (emphasis supplied, quoting NLRB v. United Insurance Co. (1968) 390
U.S. 254, p. 256.)
In this case, I conclude that the District’s offer to pay parents for transporting students
to school on the District’s behalf qualifies as “contracting out” under the above-cited authority.
This is not the situation where the District has decided to discontinue transportation services
during the ESY. To the contrary, the District continues to offer those services, but has agreed
to compensate District parents for providing that service in place of its own employees.
Payment is contingent upon an outcome determined by the District, i.e., District verification
that the student attended school during the relevant time period. In that sense, this
arrangement fits the classic definition of “contracting out.” (Ventura County CCD, supra,
PERB Decision No. 1547, pp. 21-22.)
The District once again argues that the decision to use a private contractor for bus
driving services during the 2014 ESY was part of a non-negotiable decision to change the
direction and level of its bus driving services. I once again find the argument unpersuasive
based on Long Beach CCD , supra, PERB Decision No. 1941, pp. 13-14 and Oakland USD,
supra, PERB Decision No. 1770, proposed decision, pp. 29-30. As in those cases, the District
here has not shown that its concerns about student transportation service levels could not have
been adequately addressed through productive negotiations.19
19 There was also limited evidence that a benefit derived from contracting with parents
to transport their own children to school was that there was greater parent-teacher interaction.
However, there is insufficient evidence in the record to conclude that this was a primary
motivation, if any motivation at all, for the decision to enter into transportation contracts with
parents.
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iii. 	Notice and Opportunity to Request Negotiations
As stated above, an employer is obligated to provide reasonable advance notice and the
opportunity to request bargaining before reaching a firm decision to enact a negotiable policy
change. (City of Sacramento, supra, PERB Decision No. 2351-M, p. 28.)
The District argues that it notified CSEA of its intent to discontinue using bus drivers
for ESY transportation work through the February 27, 2014 Notice. That document stated that
the District was “considering contracting out transportation services for the 2014-2015 school
year.” It made no reference to the 2014 ESY. Nothing in the record states or suggests that the
ESY was considered part of the following school year. In fact, the evidence suggests that this
is not the case. The District’s document supplied to parents for signing up for the ESY refers
to the preceding, not the following school year.20 In addition, McSparren explained that, for
students requiring special education services, the ESY was designed to extend educational
services for students who experienced regression from the immediately preceding school year.
These facts both imply that the ESY bears a closer relationship to the preceding school year
than it does to the following year. I find that the February 27, 2014 Notice did not clearly
inform CSEA that the District was contemplating any changes for the 2014 ESY. The record
shows that CSEA did not learn of the District’s plans for the 2014 ESY until May 1, 2014,
after the District had already finalized its subcontracting decision. The District never
expressed any willingness to equivocate from that position. Because the District had already
made up its mind on contracting out the work, there was no opportunity to request or engage in
good faith negotiations at that point.
20 The form used for the 2014 ESY was submitted as an exhibit at hearing. Its heading
read “EXTENDED YEAR PROGRAM [SPECIAL DAY CLASS] 2013-2014.”
37

iv. 	Generalized Effect or Continuing Impact
The final element of CSEA’s prima facie case is whether the change at issue was an
isolated breach or incident or is representative of an ongoing practice. It is undisputed that the
District’s practice of both offering parents $25 for transportation services and its use of
American Logistics for students transportation continued not only throughout the 2014 ESY
but also into subsequent ESYs. It is further undisputed that, because of this change, District
bus drivers no longer perform any ESY driving work. This is sufficient to satisfy the final
element of the unilateral change test.
v. 	Contract Waiver
The District reasserts its belief that it was entitled to contract out work under Articles
III and XV of the expired CBA. I reject those arguments for this claim for the same reasons as
stated above. The parties’ CBA expired in 2010 and the District’s authority to contract out
bargaining unit work without providing notice and opportunity for bargaining expired along
with it. In addition, because the District never notified CSEA of its intent to contract out ESY
work, it never satisfied the requirements of Article XV. Thus, even if the contract were in
effect, the District’s defense would fail for that reason.
CSEA has satisfied all the elements of its prima facie case for a unilateral change. The
District did not persuasively establish any defenses for failing to notify and bargain with
CSEA. Therefore, the District’s decision to contract out ESY bus driver work starting in 2014
violated the duty to negotiate in good faith under EERA, Section 3543.5, subdivision (c). This
conduct also derivatively violated EERA, Section 3543.5, subdivisions (a) and (b). (Lucia Mar
USD, supra, PERB Decision No. 1440, appendix.)
38

REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA. EERA
section 3541.5, subdivision (c), states:
The board shall have the power to issue a decision and order
directing an offending party to cease and desist from the unfair
practice and to take such affirmative action, including but not
limited to the reinstatement of employees with or without back
pay, as will effectuate the policies of this chapter.
1. 	Remedy for the Information Request Violation
In Santa Monica CCD, supra, PERB Decision No. 2303, PERB held that an appropriate
remedy in cases involving the failure to provide requested information include an order to
cease and desist from violating EERA, to provide the requested information, and to post a
notice of the violation. (Id. at p. 3.) Those are appropriate remedies here as well. The notice
posting shall include both a physical posting of paper notices at all places where certificated
bargaining unit members are customarily placed, as well as a posting by “electronic message,
intranet, internet site, and other electronic means customarily used by the District to
communicate with its employees in the bargaining unit.” (Centinela Valley Union High School
District (2014) PERB Decision No. 2378, pp. 11-12, citing City of Sacramento, supra, PERB
Decision No. 2351-M.)
2. 	Remedies for the Unilateral Change Violations
The District unlawfully contracted out bus driver work without satisfying its bargaining
obligations to CSEA. Appropriate remedies in such cases include an order to cease and desist
from violating EERA and to return the parties and affected individuals to the status quo that
existed before the unlawful acts. A notice posting specifying the employer’s misconduct and
the remedies ordered is also appropriate. (Desert Sands Unified School District (2010) PERB
39

________________________
Decision No. 2092, pp. 30-35.) All of these remedies are appropriate here as well, subject to
the following discussion about returning the parties to the status quo that existed before the
violations.
In cases involving unlawful decisions to contract out bargaining unit work, the Board
recognized that an abrupt rescission of the contract may unduly disrupt student services.
(Oakland USD, supra, PERB Decision No. 1770, proposed dec., p. 55; Lucia Mar USD, supra,
PERB Decision No. 1440, pp. 2-3, proposed dec., pp. 56-57.) Thus, in Lucia Mar USD, PERB
directed the employer to restore the contracted out work to the bargaining unit “at the earliest
opportunity it can terminate the existing contract with the contractor.” (Id. at p. 4.) In the
interim, the Board ordered the employer to make whole, with interest, any employees who
suffered financial losses from the unlawful contracts until the employees were either restored
to their positions or until they rejected an offer of employment to their prior positions. (Ibid.)
Those remedies are appropriate for the District’s unilateral decision to layoff all its bus drivers
and contract out all of that work to Hemet USD. The District is accordingly ordered to rescind
its agreement with Hemet USD for bus driving services as soon as is reasonably possible, but
no later than the end of the school year in which this order becomes final and effective.21
Upon rescission, the District is also ordered restore bus driver work to CSEA’s bargaining unit
and to offer reinstatement to all bus drivers who were laid off on or around June 27, 2014.
The District is further ordered to make all those laid off drivers whole for lost wages
and benefits, including any extra hours, starting from the date of their layoff until they are
either reinstated or until they reject an offer of reinstatement. These amounts should be
21 Nothing in this proposed decision precludes the District from continuing to contract
with Hemet USD to maintain Hemet USD’s buses.
40

________________________
augmented by interest at a rate of 7 percent per annum and are subject to reasonable mitigation.
(Lucia Mar USD, PERB Decision No. 1440, p. 4.) For any bus driver entitled to back pay,
CSEA is entitled to agency fees or union dues that would have been remitted but for the
District’s unlawful action. (Regents of the University of California (2014) PERB Decision
No. 2398-H, p. 37 (UC Regents II); City of Sacramento, supra, PERB Decision No. 2351-M, p.
49; Ventura County CCD, supra, PERB Decision No. 1547.) Payment of fees/dues shall be
augmented by interest at a rate of 7 percent per annum and shall be made by the District as
individual employees who lost the benefits of union representation during their layoff should
not be penalized for the District’s unlawful acts. (Ibid.)
Regarding the District’s unilateral decision to contract out ESY bus driving work, the
District is similarly ordered to rescind its American Logistics Contract for ESY transportation
work and to cease its practice of offering District parents $25 to transport their own children to
and from school during the ESY at the soonest practical time.22 Upon satisfaction of these two
components of the order, the District is further ordered to reinstitute its practice of assigning
ESY bus driving work to its own drivers by bid as it existed prior to May 1, 2014. (See
Anaheim City School District (1983) PERB Decision No. 364, p. 31.)
Regarding employees’ financial losses, employees in non-permanent or non-regular
assignments who would have received such an assignment but for the employer’s unilateral act
should be made whole. (San Jacinto Unified School District (1994) PERB Decision No. 1078,
proposed dec., pp. 38-39; Lincoln USD, supra, PERB Decision No. 465, proposed dec., pp.
14-16; Los Gatos Joint Union High School District (1980) PERB Decision No. 120, p. 5.)
22 Nothing in this proposed decision precludes parents from voluntarily transporting
their own children to and from school.
41

Thus, the District is ordered to calculate the amount of bus driver work it needed during the
2014 ESY and then, assuming that those drivers who had previously bid on Summer
assignments would continue to do so, determine which of the laid off bus drivers would have
been awarded a 2014 ESY bid. Each of those identified employees is entitled to lost wages
and benefits for work he or she would have performed had the District not unilaterally
contracted out the ESY work. These amounts should be augmented by interest at a rate of 7
percent per annum and are subject to reasonable mitigation. This same process is to be
followed for every subsequent ESY until the District restores the ESY assignments bidding
process and actually reemploys District drivers during its ESY. For any bus driver entitled to
back pay under this portion of the order, CSEA is entitled to agency fees or union dues that
would have been remitted but for the District’s unlawful action. (UC Regents II, supra, PERB
Decision No. 2398-H, p. 37.) Payment of these fees/dues shall be augmented by interest at a
rate of 7 percent per annum and shall be made by the District. (Ibid.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in the
case, it is found that the Bellflower Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.5, subdivisions (a), (b),
and (c). The District violated EERA by refusing to provide California School Employees
Association & its Chapter 32 (CSEA) with requested information necessary and relevant to
representing its members and by unilaterally contracting out bus driver work and laying off all
its bus drivers, starting in Summer 2014. All other claims are hereby dismissed.
Pursuant to EERA section 3541.5, it hereby is ORDERED that the District, its
governing board and its representatives shall:
42

A. 	CEASE AND DESIST FROM:
1. 	Refusing to properly respond to CSEA’s requests for information
necessary and relevant to its representational duties.
2. 	Unilaterally implementing policies within the scope of representation.
3. 	Interfering with employees’ right to be represented by their chosen
employee organization.
4. 	Interfering with the right of CSEA to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	As soon as is practical, but not later than the end of the school year in
which this decision and order becomes final, rescind its contract for bus driver services to
transport students to and from school during the regular school year.
2. 	Upon completion of (B)(1), offer reinstatement to all bus drivers laid off
in or around June 27, 2014.
3. 	Make whole for any financial losses suffered, including wages, benefit
and extra hours wages, all laid off bus drivers until they are either reinstated or refuse an offer
of reinstatement. These amounts should be augmented by interest at a rate of 7 percent per
annum.
4. 	Remit to CSEA the sum equivalent of any dues or agency fees that
CSEA would have received if the District did not unlawfully layoff its bus drivers until each
laid off bus driver is either reinstated or refuses an offer of reinstatement. These amounts
should be augmented by interest at a rate of 7 percent per annum.
5. 	As soon as is practical, rescind the private contract for bus services to
transport students to and from District schools during the Extended School Year and cease
43

offering parents $25 to transport their own students to and from school during the Extended
School Year.
6. 	Upon completion of (B)(5), reinstitute the bidding process used to assign
Extended School Year work to District bus drivers.
7. 	Make whole for any financial losses any bus driver who lost Extended
School Year bus driving work, during the 2014 Extended School Year and every subsequent
ESY, until the bidding assignment process is reinstated. These amounts should be augmented
by interest at a rate of 7 percent per annum.
8. 	Remit to CSEA the sum equivalent of any dues or agency fees that
CSEA would have received if the District did not unilaterally assign Extended School Year bus
driver work to outside sources, until it reinstitutes the Extended School Year bidding
assignment process. These amounts should be augmented by interest at a rate of 7 percent per
annum.
9. 	Within ten (10) workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in CSEA 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 it will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive workdays. The Notice shall also
posted by electronic message, intranet, internet site, and other electronic means customarily
used by the District to communicate with employees in CSEA’s bargaining unit. Reasonable
steps shall be taken to ensure that the Notice is not reduced in size, altered, defaced, or covered
with any other material.
44

10. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board (PERB or Board),
or the General Counsel’s designee. Respondent shall provide reports, in writing, as directed by
the General Counsel or his/her designee. All reports regarding compliance with this Order
shall be concurrently served on CSEA.
Right to Appeal
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 Public
Employment Relations Board (PERB or Board) itself within 20 days of service of this Decision. The
Board’s address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95811-4124
(916) 322-8231
FAX: (916) 327-7960
E-FILE: PERBe-file.Appeals@perb.ca.gov
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. (Cal.
Code Regs., tit. 8, § 32300.)
A document is considered “filed” when actually received during a regular PERB business
day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 32130; see also Gov. Code, § 11020, subd. (a).)
A document is also considered “filed” when received by facsimile transmission before the close of
business together with a Facsimile Transmission Cover Sheet or received by electronic mail before
the close of business, which meets the requirements of PERB Regulation 32135(d), provided the
filing party also places the original, together with the required number of copies and proof of service,
45

in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135, subds. (b), (c) and (d); see also Cal. Code Regs.,
tit. 8, §§ 32090, 32091 and 32130.)
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 Regs., tit. 8, §§ 32300, 32305, 32140, and 32135, subd.
(c).
46

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-5955-E, California School
Employees Association, Chapter 32 v. Bellflower Unified School District, in which all parties
had the right to participate, it has been found that the Bellflower Unified School District
violated the Educational Employment Relations Act (EERA), Government Code section 3540
et seq., by refusing to provide California School Employees Association, Chapter 32 (CSEA),
with requested information necessary and relevant to representing its members and by
unilaterally contracting out bus driver work and laying off all its bus drivers, starting in
Summer 2014. All other claims were dismissed.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Refusing to properly respond to CSEA’s requests for information
necessary and relevant to its representational duties.
2. 	Unilaterally implementing policies within the scope of representation.
3. 	Interfering with employees’ right to be represented by their chosen
employee organization.
4. 	Interfering with the right of CSEA to represent its members.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	As soon as is practical, but not later than the end of the school year in
which this decision and order becomes final, rescind the contract for bus driver services to
transport students to and from school during the regular school year.
2. 	Upon completion of B.1. above, offer reinstatement to all bus drivers laid
off in or around June 27, 2014.
3. 	Make whole for any financial losses suffered, including wages, benefit
and extra hours wages, all laid off bus drivers until they are either reinstated or refuse an offer
of reinstatement. These amounts should be augmented by interest at a rate of 7 percent per
annum.
4. 	Remit to CSEA the sum equivalent of any dues or agency fees that
CSEA would have received if the District did not unlawfully layoff its bus drivers until each
laid off bus driver is either reinstated or refuses an offer of reinstatement. These amounts
should be augmented by interest at a rate of 7 percent per annum.

5. 	As soon as is practical, rescind the private contract for bus services to
transport students to and from District schools during the Extended School Year and cease
offering parents $25 to transport their own students to and from school during the Extended
School Year.
6. 	Upon completion of B.5. above, reinstitute the bidding process used to
assign Extended School Year work to District bus drivers.
7. 	Make whole for any financial losses any bus driver who lost Extended
School Year bus driving work, during the 2014 Extended School Year and every subsequent
Extended School Year, until the bidding assignment process is reinstated. These amounts
should be augmented by interest at a rate of 7 percent per annum.
8. 	Remit to CSEA the sum equivalent of any dues or agency fees that
CSEA would have received if the District did not unilaterally assign Extended School Year bus
driver work to outside sources, until it reinstitutes the Extended School Year bidding
assignment process. These amounts should be augmented by interest at a rate of 7 percent per
annum.
Dated: _____________________ 	BELLFLOWER UNIFIED SCHOOL DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST
THIRTY (30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND
MUST NOT BE REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH
ANY OTHER MATERIAL.
2