Colton Joint Unified School District * * * OVERRULED IN PART by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M (PERB 1534E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 244,
Charging Party,
V.
COLTON JOINT UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-4411-E
PERB Decision No. 	1534
June 	23, 	2003
Appearance: California School Employees Association by Denise Williams, Labor Relations
Representative, for California School Employees Association & its Chapter 244.
Before Baker, Whitehead and Neima, Members.
DECISION
BAKER, Member: This case is before the Public Employment Relations Board (Board)
on appeal by the California School Employees Association & its Chapter 244 (CSEA) of a
Board agent's dismissal (attached) of its unfair practice charge. The charge alleged that the
Colton Joint Unified School District violated section 3543(a), (b), (c) and (e) of the
Educational Employment Relations Act (EERA)1 by retaliating against an employee for
1 BERA is codified at Government Code section 3540 et seq. Section 3543.5 states, in
pertinent part:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
* * * OVERRULED IN PART by Culver City Employees Association v. City of
Culver City (2020) PERB Decision No. 2731-M * * *

participating in protected activities, by failing to participate in good faith in impasse
procedures, by bargaining in bad faith, and by denying CSEA rights guaranteed by EERA.
After reviewing the entire record in this case, including the original and amended
charge with attachments, the warning and dismissal letters, and CSEA's appeal, the Board
finds the Board agent's dismissal letter to be free from prejudicial error and adopts it as the
decision
of
the Board itself.
ORDER
The unfair practice charge in Case No. LA-CE-4411-E is hereby DISMISSED
WITHOUT LEA VE TO AMEND.
Members Whitehead and Neimajoined in this Decision.
purposes
of
this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
( e) Refuse to participate in good faith in the impasse procedure
set forth in Article 9 (commencing with Section 3548).
2

.
,[',
_s_T_A_T_I:_o_F_C_A_L_I_FO_R_N_IA
____
..._{
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103 l 18th Street
Sacramento,
CA
95814-4 l 74
Telephone: (916) 327-8384
Fax: (916) 327-63 77
October 25, 2002
Denise Williams, Labor Relations Representative
California School Employees Association
10211 Trademark Street, Unit A
Rancho Cucamonga, CA 91730
GRAY
DA
VIS, Governor
Re: 	California School Employees Association & its Chapter 244
v.
Colton Joint Unified
School District
Unfair Practice Charge No. LA-CE-4411-E
DISMISSAL LETTER
Dear Ms. Williams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 16, 2002. The California School Employees Association & its
Chapter 244 (CSEA) alleges that the Colton Joint Unified School District violated the
Educational Employment Relations Act (EERA)1 by retaliating against a 12-month bus driver,
by failing to participate in good faith in impasse procedures, by bargaining in bad faith and by
denying CSEA rights guaranteed under EERA.
I indicated to you in my attached letter dated September 25, 2002, that the above-referenced
charge did not state a prima facie case. You were advised that
if
there were any factual
inaccuracies or additional facts which would correct the deficiencies explained in that letter,
you should amend the charge. 	You were further advised that unless you amended the charge to
state a prima facie case or withdrew it prior to October 4, 2002, the charge would be dismissed.
Because you were unable to meet that deadline you requested an extension and I received the
amended charge on October 15, 2002.
The District and CSEA had a collective bargaining agreement effective from September 30,
1998 through September 30, 2001.
Article 9 of the expired agreement, Hours, provides in part at 9.2:
Scheduling of Duty Hours - The scheduling of duty hours and
workdays shall be at the discretion of the District and subject to
change, with seven (7) calendar days advance notice except in
case of emergencies. Each unit member shall be assigned a
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4411-E
October 25, 2002
Page 2
. "·
regular minimum number of working hours per day and working
days per year ...
9.16 specifically addresses Bus Driver hours and provides at 9.16.5:
Assigning of Field Trips- The District shall assign field trips to
unit members to maintain the efficiency of the District's
operation. Regardless of any other provisions in this Section, the
District shall retain the right to assign any field trip or extra
assignment on the same basis and for the same reasons as it has in
the past.
Article 13 of the expired agreement, Vacations, provides at 13.3:
Twelve-month unit members will normally take their vacation
during school recesses (winter, spring, and summer recess) as
scheduled and approved by their immediate supervisor. 	At the
discretion of the District, some unit members may be required to
take their vacations at times other than those listed above.
Vacations will be scheduled at the convenience of the District and
as nearly as possible at the convenience of the unit member. All
vacation requests are subject to approval of the unit member's
immediate supervisor, subject to final approval of the Assistant
Superintendent, Personnel. This decision should be given to unit
members within two (2) working days upon receipt of the
vacation request.
The District and CSEA began negotiations for a successor agreement on Juiy 12, 2001. 	On
October 24, 2001, CSEA filed a request for the declaration of impasse regarding one issue,
increasing the number of 12-month bus driver positions. The union wanted to increase the
number of 12-month drivers. PERB detennined that impasse existed and November 26, 2001
was set as the first mediation date.
Prior to December 2001 and for at least the previous five years, bus drivers were offered work
assignments during the winter recess period regardless of whether they were 10 or 12-month
employees. 	During the winter recess, bus drivers provide transportation for field trips.
On December 7, 2001, CSEA distributed a flier addressed to CSEA members. The flier stated
in part "We Want Fairness for our Bus Drivers, NOW!" (emphasis in original) The flier
urged members to attend a School Board meeting scheduled for December 13, 2001.
On December 11, 2001, Director of Employee Relations James Downs called you and stated
that the District was concerned about CSEA's December 7 flier and the planned rally and
presentation at the December 13 School Board meeting.

LA-CE-4411-E
October 25, 2002
Page 3
. .,_
On December 13, 2001, CSEA representatives and members, including bus drivers,
participated in an informational picket and presentation at the School Board Meeting. 	When
Carmen Lozolla, a 12-month driver arrived at the site of the picketing, she explained to you
that she had been told on December 11, 2001 that she would not be allowed to work during the
winter recess. Instead she would be on vacation. Ms. Lozolla worked during winter break for
at least the past three years. 	CSEA subsequently learned that the District intended to end the
practice of allowing all 12-month bus drivers to work during the winter break. She had been
told that she would not be allowed to work because she was a 12-month employee. 	Other 12-
month employees in the District's maintenance and data processing departments were allowed
to work during winter break.
On January 23, 2002, CSEA filed a grievance on behalf of Ms. Lozolla citing violations of
Articles 9 (Hours) and 25 (Discrimination) of the expired collective bargaining agreement. 	On
February 6, 2002, Assistant Superintendent Danny Carrasco denied the grievance in part
because the "[g]rievance filed and grievable event occurred long after September 30, 2001,
when the contract expired."
Discussion
You have not demonstrated that the District violated EERA by retaliating against Ms. Lozolla,
by failing to participate in good faith in the impasse procedure, by bargaining in bad faith or by
denying CSEA rights guaranteed to the under BERA.
First, as I explained in the September 25, 2002 letter, there cannot be a discrimination/
retaliation violation of BERA where the adverse action taken against an employee occurs prior
to his/her exercise of protected conduct. (Rio Hondo Community College District (1982)
PERB Decision No. 279.) Here Ms. Lozolla learned on December 11 that she would not be
able to work during winter recess, but she did not participate in protected activity until the
picket of December 13, and the grievance of January 23. Because you have not demonstrated
that Ms. Lozolla exercised protected rights prior to the adverse action, this allegation is
dismissed.
Second, you allege that the District refused to participate in good faith in the impasse
procedure in violation of Government Code section 3543.5(e) and failed to bargain in good
faith in violation of 3543.5(c) when in December 2001 it refused to allow 12-month bus drivers
. 	. 	. 	. 	. 	. 'to work ctunng wmter break.~
A unilateral change regarding a subject within the scope of bargaining before the exhaustion of
impasse procedures has been found to be a per se unfair labor practice. 	(Moreno Valley
As noted in the September 25 letter, that for conduct occurring during the statutory
impasse procedure Government Code section 3543.5(e) is applicable. Such conduct cannot
also be the basis for a violation of Government Code section 3543 .5(c ). (Ventura County
Community College District (1998) PERB Decision No. 1264.) The unilateral change analysis
is the same for violations of either section of the Government Code.

LA-CE-4411-E
October 25, 2002
Page 4
. "'·
Unified School District v. Public Employment Relations Board (1983) 142 Cal.App. 3d 191.)
Unilateral changes are considered "per se" violations if certain criteria are met. Those criteria
are: 	(1) the employer implemented a change in policy concerning a matter within thescope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. 	(Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint UnionHigh School District (1982)
PERB Decision No. 196.)
A policy may be established by past practice or may be contained in an agreement between the
parties. An employer does not commit an unlawful unilateral change in policy when its actions
are consistent with a previously unenforced provision of the collective bargaining agreement.
(Marysville Joint Unified School District (1983) PERB Decision No. 314.)
As explained in the September 25 letter, the District was permitted to make the decisionnot to
allow 12-month bus drivers to work during winter recess based on the policies established in
Articles 9 and 13 of the Agreement. 	Article 9.2 provides that the "scheduling of duty hours
and workdays shall be at the discretion of the District ... " Article 13 provides in part:
Twelve-month unit members will normally take their vacation
during school recesses (winter, spring, and summer recess) as
scheduled and approved by their immediate supervisor. At the
discretion of the District, some unit members may be required to
take their vacations at times other than those listed above.
Vacations will be scheduled at the convenience of the District and
as nearly as possible at the convenience of the unit member. ..
Based on Marysville the District followed the policy established in the above articles when it
used its discretion to determine that 12-month bus drivers wouid be on vacation during winter
break. You have not shown that the District's decision not to allow Ms. Lozallo and the other
12-month bus drivers to work during winter recess was a unilateral change in violation of
Government Code section 3543.S(e).
In the amended charge you did not address the above analysisof the unilateral change during
impasse. 	Instead you assert that not allowing the 12-month drivers to drive field trips during
winter break is a unilateral change in the policy established in Article 9 .16.5 of the Agreement.
I spoke with you by phone on October 24, 2002 at which time you asserted that 9 .16.5
established a policy by which the District shall assign filed trips on the same basis and for the
same reasons as it has in the past. 	However, that is not what the plain language of the Article
provides. 	Instead 9 .16.5 states that the District "shall assign field trips to unit members to
maintain the efficiency of the District's operation." Thus the District has the discretion to
assign filed trips to drivers in order to maintain the efficiency of the District's operation. 	In
addition, the Article provides, "the District shall retain the right to assign any field trip or extra
assignment on the same basis and for the same reasons as it has in the past." Despite your
contention, this sentence does not compel the District to assign field trips on the same basis as
it has in the past. 	Instead the District has the right to do so.

LA-CE-4411-E
October 25, 2002
Page 5
(
.
,('.
(
As such you have not demonstrated that the District made a unilateral change in terms and
conditions
of
employment in violation
of
its good faith obligation to participate in impasse
procedures in violation
of
Government Code section 3543.5(e). This allegation must be
dismissed.
Third, because as stated in the warning letter the obligation
to
meet and confer is dormant
while parties are participating in impasse procedures, there was no duty to meet and confer in
good faith in December 2001. Thus the allegation that the District violated Government Code
section 3543.5(c) is also dismissed.
Finally, as stated in the September 25 letter, you allege that the District denied CSEA rights
guaranteed to them under Government Code section 3543.1 and in violation
of
Government
Code section 3543.5(b ). However, you do not explain in the original or amended charge how
the District denied CSEA any
of
the rights found under Government Code section 3543.1. As
such this allegation is dismissed.
Right to Appeal
Pursuant to PERB Regulations,3 you may obtain a review
of
this dismissal
of
the charge by
filing an appeal to the Board itself within twenty (20) calendar days after service
of
this
dismissal. 	(Regulation 32635(a).) Any document filed with the Board must contain the case
name and number, and the original and five (5) copies
of
all documents must be provided to
the Board.
A document is considered "filed" when actually received before the close
of
business (5 p.m.)
on the last day set for filing or when mailed by certified or Express United States mail, as
shown on the postal receipt or postmark, or delivered to a common carrier promising overnight
delivery, as shown on the carrier's receipt, not later than the last day set for filing.
(Regulations 32135(a) and 32130.)
A document is also considered "filed" when received by facsimile transmission before the
close
of
business on the last day for filing together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
Regulation 32135(d), provided the filing party also places the
original, together with the required number
of
copies and proof
of
service, in the U.S. mail.
(Regulations 32135(b), (c) and (d); see also Regulations 32090 and 32130.)
The Board's address is:
Pubiic Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
3 PERB's Regulations are codified at California Code of Regulations, title 8, section
31001 et seq.

LA-CE-4411-E
October 25, 2002
Page 6
( 	(
FAX: (916) 327-7960
If
you file a timely appeal
of
the refusal to issue a complaint, any other party may file
with
the
Board an original and five copies
of
a statement in opposition within twenty (20) calendar days
following the date
of
service
of
the appeal. 	(Regulation 32635(b ).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the
proceeding, and a "proof
of
service" must accompany each copy
of
a document served upon a
party or filed with the Board itself. (See Regulation 32140 for the required contentsand a
sample form.) 	The document will be considered properly "served" when personally delivered
or deposited in the first-class mail, postage paid and properly addressed. A document filed by
facsimile transmission may be concurrently served via facsimile transmission on all parties to
the proceeding. 	(Regulation 32135(c).)
Extension
of
Time
A request for an extension
of
time, in which to file a document with the Board itself, must be
in writing and filed with the Board at the previously noted address. A request for an extension
must be filed at least three (3) calendar days before the expiration
of
the time required for
filing the document. The request must indicate good cause for and,
if
known, the position
of
each other party regarding the extension, and shall be accompanied
by proof
of
service
of
the
request upon each party. 	(Regulation 32132.)
Final Date
If
no appeal is filed within the specified time limits, the dismissal will become final when the
time limits have expired.
Sincerely,
ROBERT THOMPSON
General Counsel
B~2::...:~lr:+r"'s;r----
Marie A. Nakamura
Regional Attorney
Attachment
cc: Ronald C. Ruud

P.E.R.B
STATE OF CALIFORNIA 	(
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
l
031
I 8th Street
Sacramento, CA 95814-4174
Telephone: (9 I 6) 327-8384
Fax: (916) 327-6377
September 25, 2002
Denise Williams, Labor Relations Representative
California School Employees Association
10211 Trademark Street, Unit A
Rancho Cucamonga, CA 91730
GRAY
DA
VIS, Governor
Re: 	California School Employees Association & its Chapter 244
v.
Colton Joint Unified
School District
Unfair Practice Charge No. LA-CE-4411-E
WARNING LETTER
Dear Ms. Williams:
The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on May 16, 2002. 	The California School Employees Association & its
Chapter 244 (CSEA) alleges that the Colton Joint Unified School District violated the
Educational Employment Relations Act (EERA)1 by retaliating against a 12-month bus driver,
by failing to participate in good faith in impasse procedures, by bargaining in bad faith and by
denying CSEA rights guaranteed under EERA.
The District and CSEA had a collective bargaining agreement effective from September 30,
1998 through September 30, 2001.
Article 9
of
the expired agreement, Hours, provides in part at 9.2:
Scheduling of Duty Hours - The scheduling
of
duty hours and
workdays shall be at the discretion
of
the District and subject to
change, with seven (7) calendar days advance notice except in
case
of
emergencies. 	Each unit member shall be assigned a
regular minimum number
of
working hours per day and working
days per year.
..
Article
13
of the expired agreement, Vacations, provides at
13
.3:
Twelve-month unit members will normally take their vacation
during school recesses (winter, spring, and summer recess) as
scheduled and approved by their immediate supervisor. 	At the
EERA is codified at Government Code section 3540 et seq. 	The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4411-E
September 25, 2002
Page 2
. "·
(
discretion of the District, some unit members may be required to
take their vacations at times other than those listed above.
Vacations will be scheduled at the convenience of the District and
as nearly as possible at the convenience of the unit member. All
vacation requests are subject to approval of the unit member's
immediate supervisor, subject to final approval of the Assistant
Superintendent, Personnel. This decision should be given to unit
members within two (2) working days upon receipt of the
vacation request.
The District and CSEA began negotiations for a successor agreement on July 12, 2001. 	On
October 24, 2001, CSEA filed a request for the declaration of impasse regarding one issue,
increasing the number of 12-month bus driver positions. When impasse was declared there
were approximately 48 bus drivers in the District, only two of which were 12-month driver.
Those two drivers wdrked 12 months a year. 	The other 43 drivers, were 10-month drivers.
Despite their designation as 10-month drivers at least half of the drivers regularly worked 12
months a year, but were not guaranteed to work more than 10 months per year. 	The union
wanted to increase the number of 12-month drivers. PERB determined that impasse existed
and November 26, 2001 was set as the first mediation date.
Prior to December 2001 and for at least the previous five years, bus drivers were offered work
assignments during the winter recess period regardless of whether they were ro or 12-month
employees. During the winter recess, bus drivers provide transportation to and from field trips.
On December 13, 2001, CSEA representatives and members, including bus drivers,
participated in an informational picket and presentation at the School Board Meeting. 	When
Carmen Lozolla, a 12-month driver arrived at the site of the picketing, she explained to you
that she had been told earlier that day that she would not be allowed to work during the winter
recess. 	Instead she would be on vacation. Ms. Lozolla worked during winter break for at least
the past three years. 	CSEA subsequently learned that the District intended to end the practice
of allowing all 12-month bus drivers to work during the winter break.
On January 23, 2002, CSEA filed a grievance on behalf of Ms. Lozolla citing violations of
Articles 9 (Hours) and 25 (Discrimination) of the expired collective bargaining agreement. On
February 6, 2002, Assistant Superintendent Danny Carrasco denied the grievance for the
following reasons:
1. 	Grievance filed and grievable event occurred long after
September 30, 2001, when the contract expired.
2. 	The grievant failed to meet informally with the immediate
supervisor as required by the contract.
3. The grievant failed to file a grievance under level one of the
grievance procedure as required by the contract.

LA-CE-4411-E
September 25, 2002
Page 3
. "·
4. The grievance was not timely filed.
(
During mediation on February 14, 2002, a tentative agreement for a successor contract was
reached by the parties. 	Shortly thereafter the parties ratified the agreement.
Discussion
You allege that the District violated EERA by retaliating against 12-month bus drivers, by
failing to participate in good faith in impasse procedures, by bargaining in bad faith and by
denying CSEA rights guaranteed under EERA. Based on the following analysis, this charge
fails to establish a prima facie violation of EERA.
First, you allege that the District discriminated/retaliated against 12-month bus drivers for
engaging in protected activity. To demonstrate a violation of EERA section 3543.5(a), the
charging party must show that: (1) the employee exercised rights under EERA; (2) the
employer had knowledge of the exercise of those rights; and (3) the employer imposed or
threatened to impose reprisals, discriminated or threatened to discriminate, or otherwise
interfered with, restrained or coerced the employees because of the exercise of those rights.
(Novato Unified School District (1982) PERB Decision No. 210 (Novato); Carlsbad Unified
School District (1979) PERB Decision No. 89.)
Although the timing of the employer's adverse action in close temporal proximity to the
employee's protected conduct is an important factor (North Sacramento School District (1982)
PERB Decision No. 264), it does not, without more, demonstrate the necessary connection or
"nexus" between the adverse action and the protected conduct. 	(Moreland Elementary School
District (1982) PERB Decision No. 227.) Facts establishing one or more of the following
additional factors must also be present: (1) the employer's disparate treatment of the employee
(State of California (Department of Transportation) (1984) PERB Decision No. 459-S); (2) the
employer's departure from established procedures and standards when dealing with the
employee (Santa Clara Unified School District (1979) PERB Decision No. 104.); (3) the
employer's inconsistent or contradictory justifications for its actions (State of California
(Department of Parks and Recreation) (1983) PERB Decision No. 328-S; (4) the employer's
cursory investigation of the employee's misconduct; (5) the employer's failure to offer the
employee justification at the time it took action or the offering of exaggerated, vague, or
ambiguous reasons; (6) employer animosity towards union activists (Cupertino Union
Elementary School District) (1986) PERB Decision No. 572.); or (7) any other facts which
might demonstrate the employer's unlawful motive. (Novato; North Sacramento School
District, supra, PERB Decision No. 264.)
The nexus between an employee's protected activity and an employer's adverse action can not
established where the adverse action precedes the protected conduct. (Rio Hondo Community
College District (1982) PERB Decision No. 279.)
Here, you allege that the District retaliated against 12-month bus drivers for engaging in
protected activities. Ms. Lozolla is the only 12-month driver identified during this

. r.
(
LA-CE-4411-E
September 25, 2002
Page 4
investigation and you have not established that the District retaliated against her because of her
protected conduct. Ms. Lozolla participated in protected activity when she took part in the
informational picketing on December 13, 2001 and when CSEA filed a grievance on her behalf
in January 2002. However, both protected activities occurred after Ms. Lozo Ila was told on
December 13, 2001 that she was not going to be allowed to work during the winter recess.
Thus it is not possible that the District prohibited her from working during the winter recess
because of her exercise of protected conduct.
Second, you allege that the District refused to participate in good faith in the impasse
procedure in violation of Government Code section 3543.5(e) and failed to bargain in good
faith in violation of 3543.5 (c) when in December 2001 it refused to allow 12-month bus
drivers to work during winter break.2
A unilateral change regarding a subject within the scope of bargaining before the exhaustion of
impasse procedures has been found to be a per se unfair labor practice. (Moreno Valley
Unified School District v. Public Employment Relations Board (1983) 142 Cal.App. 3d 191.)
Unilateral changes are considered "per se" violations if certain criteria are met. Those criteria
are: (1) the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982)
PERB Decision No. 196.)
A policy may be established by past practice or may be contained in an agreement between the
parties. An employer does not commit an unlawful unilateral change in policy when its actions
are consistent with a previously unenforced provision of the collective bargaining agreement.
(Marysville Joint Unified School District (1983) PERB Decision No. 314.)
Here, you allege that the District made a unilateral change when it refused to allow 12-month
bus drivers to work during the 2001-2002 winter break. However, the District was permitted
to make this decision based on the policies established in Articles 9 and 13 of the Agreement.
Article 9.2 provides that the "scheduling of duty hours and workdays shall be at the discretion
of the District. .. " Article 13 provides in part:
It should be noted that for conduct occurring during the statutory impasse procedure
Government Code section 3543.5(e) is applicable and cannot also be the basis for a violation
of Government Code section 3543.5(c). (Ventura County Community College District (1998)
PERB Decision No. 1264.) This is because the duty to bargain is dormant while the parties are
participating in impasse procedures. (Victor Valley Union High School District (1986) PERB
Decision No. 565.) Here, the District determined during impasse in December 2001 that 12-
month bus drivers were not allowed to work winter break. As such you may allege a violation
of Government Code section 3543.5(e), rather than 3543.5(c). However, the unilateral change
analysis is the same for violations of either section of the Government Code.

LA-CE-4411-E
September 25, 2002
Page 5
( . "·
(
Twelve-month unit members will normally take their vacation
during school recesses (winter, spring, and summer recess) as
scheduled and approved by their immediate supervisor. At the
discretion
of
the District, some unit members may be required to
take their vacations at times other than those listed above.
Vacations will be scheduled at the convenience
of
the District and
as nearly as possible at the convenience
of
the unit member
...
Based on Marysville the District followed the policy established in the above articles when it
used its discretion to determine that 12-month bus drivers would be on vacation during winter
break. Thus you have not shown that the District's decision not to allow Ms. Lozallo and the
other 12-month bus drivers to work during winter recess was a unilateral change in violation
of
Government Code section 3543.5(e).
Finally, you allege that the District denied CSEA rights guaranteed to them under Government
Code section 3543.1 and in violation
of
Government Code section 3543.5(b).3 However, you
3 Government Code section 3543.1 sets forth the right
of
employee organizations under
EERA:
(a) Employee organizations shall have the right to represent their
members in their employment relations with public school
employers, except that once an employee organization is
recognized or certified as the exclusive representative
of
an
appropriate unit pursuant to Section 3544.1 or 3544.7,
respectively, only that employee organization may represent that
unit in their employment relations with the public school
employer. 	Employee organizations may establish reasonable
restrictions regarding who may join and may make reasonable
provisions for the dismissal
of
individuals from membership.
(b) Employee organizations shall have the right
of
access at
reasonable times to areas in which employees work, the right to
use institutional bulletin boards, mailboxes, and other means
of
communication, subject to reasonable regulation, and the right to
use institutional facilities at reasonable times for the purpose
of
meetings concerned with the exercise
of
the rights guaranteed by
this chapter.
(c) A reasonable number ofrepresentatives of an exclusive
representative shall have the right to receive reasonable periods
of released time without loss of compensation when meeting and
negotiating and for the processing of grievances.

LA-CE-4411-E
September 25, 2002
Page 6
do not explain in the charge how the District denied CSEA any
of
the rights found under
Government Code section 3543.1. You provide no facts which indicate that the District denied
CSEA the right to represent its members; denied CSEA access; denied CSEA release time or
organizational security. As such you have not established a violation
of
Government Code
section 3543.5(b).
For these reasons the charge, as presently written, does not state a prima facie case.
If
there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
explained above, please amend the charge. The amended charge should be prepared
on
a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty
of
perjury
by
the
charging party. The amended charge must have the case number written on the top right hand
comer
of
the charge form. 	The amended charge must be served on the respondent's
representative and the original proof
of
service must be filed with PERB.
If
I do not receive an
amended charge or withdrawal from you before Friday, October 4, 2002, I shall dismiss your
charge.	
If
you have any questions, please call me at the above telephone number.
Sincerely,
//Y7
~~-+,IV
Marie A. Nakamura
Regional Attorney
MAN
( d) All employee organizations shall have the right to have
membership dues deducted pursuant to Sections 13532 and
13604.2
of
the Education Code, until such time as an employee
organization is recognized as the exclusive representative for any
of the employees in an appropriate unit, and then such deduction
as to any employee in the negotiating unit shall not be
permissible except to the exclusive representative.