Desert Sands Unified School District (PERB 1682E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,

Charging Party, Case No. LA-CE-4273-E

V. PERB Decision No. 1682

DESERT SANDS UNIFIED SCHOOL DISTRICT, August 25, 2004

Respondent.

Appearances: Madalyn J. Frazzini, Attorney, for California School Employees Association;
Miller Brown & Dannis by David G. Miller and Tam B. Tran, Attorneys, for Desert Sands
Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

WHITEHEAD, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the California School Employees Association (CSEA)
and Desert Sands Unified School District (District) to an administrative law judge’s (ALJ)
proposed decision (attached). The unfair practice charge alleged that the District violated the
Educational Employment Relations Act (EERA)! by unilaterally transferring certain job duties
from one unit classification to another without giving CSEA prior notice or the opportunity to
bargain.

In its post-hearing brief, CSEA moved to amend the charge to include an allegation that

the transfer of work was discriminatory, in retaliation for the union activities of the employee

‘EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

who previously had performed the work. This conduct is alleged to constitute a violation of
EERA section 3543.S(a), (b) and (c).
We have reviewed the entire record, including the hearing transcripts, the hearing
exhibits, the ALJ's proposed decision, the parties' exceptions and responses to exceptions. In
light of our review, the Board finds the ALJ's findings of fact to be free of prejudicial error
and adopts them as findings of the Board itself. The Board affirms in part and reverses in part
the ALJ's conclusions of law, as discussed below.
BACKGROUND
CSEA represents approximately 800 classified District employees including 4
Electronic Repair Technicians (ERT) in the Maintenance Department (Maintenance) and 25
Security Agents (SA) in the Security Department (Security). CSEA and the District are parties
to a collective bargaining agreement (CBA) effective from November 1, 2000 through June 30,
2003. CBA Article 6, District Rights provides, in pertinent part:
It is understood and agreed that the District retains all of its
powers and authority to direct, manage and control to the full
extent of the law. Included in, but not limited to, those duties and
powers are the right to: determine its organization; direct the
work of its employees; determine the kinds and levels of services
to be provided, and the methods and means of providing them; ..
hire, classify, assign, transfer, evaluate, promote, terminate and
discipline unit members. 	[Emphasis added.]
The job description for ERTs reads, in pertinent part:
Installs fire alarms, security systems, intercoms, etc. for the
purpose of providing security of facilities, equipment and
supplies.
SAs are responsible for general District law enforcement services and administration
of first aid. The job description for SA reads, in pertinent part:
2

Investigates campus crimes and/or student related community
incidents for the purpose of resolving conflicts and/or pursuing
further action.
ERT David Hinojosa (Hinojosa) had been the chief job steward since January 1, 2000.
In February, Hinojosa installed a covert camera in the kitchen of the Adams School for
surveillance of a unit employee suspected of food theft. Hinojosa talked to John Gaffney
(Gaffney), assistant superintendent for personnel services, about possible alternative locations
. and informed Gaffney that he may need to defend the accused employee. After this
conversation, Gaffney still wanted Hinojosa to install the camera, which was done. The
suspect was caught on camera, confessed and was discharged. Hinojosa represented the
suspect during the investigation and at the Skelly2 hearing in April. Gaffney was the Skelly
officer. Hinojosa complained to Personnel Manager, Carrie Grence (Grence) that Gaffney had
a conflict of interest in serving as the Skelly officer and as a result, Gaffney recused himself
and another individual was appointed.
Grence and Chief of Security, Michael Bergman (Bergman) talked about revamping the
Security Department to make it more "professional." They discussed Security taking over
camera installation in order to: (1) preserve evidence and increase confidentiality; (2) use
improved and smaller cameras that were easier to install; and (3) eliminate a potential conflict
of interest for Hinojosa in installing cameras and then representing accused employees caught
on camera. Gaffney was also in favor of the proposal because of the Adams School incident
and his desire to serve as a Skelly officer in the future. By work order dated June 12, 2000
from management to Maintenance Supervisor, John Loerke (Loerke), Maintenance was
2Skelly refers to Skelly v. State Personnel Board (1975) 15 Cal. 3d 194
[124 Cal. Rptr. 14], in which the court enunciated certain due process rights for public
employees facing disciplinary action.
3

ordered to collect all surveillance equipment and transfer it to the Security Department. Since
that time, covert camera installation has been performed by SA, Art Enderle (Enderle), chosen
because of his mechanical skills.3
When Hinojosa received a copy of the work order, he talked to Bergman and then, in
his role as a CSEA representative, met several times with Grence and other District managers.
CSEA claimed that the work belonged to the ERTs. The District believed that under the
District Rights clause, the District had the right to assign work and the installation of the
cameras was encompassed within the SA job description. Hinojosa first learned that the
District had actually implemented the transfer of work when Enderle installed a covert camera
at Amistad School on August 24.
When the District had assigned ERT work to non-unit employees in the past, CSEA and
the District had discussed and resolved the matter. However, since informal discussions were
not fruitful, CSEA filed a grievance on September 21 stating that the work belonged to the·
ERTs and not SA's, and therefore, the District violated the CBA District Rights and Safety
clauses. CSEA did not pursue the grievance beyond Step 3 and instead filed the instant charge.
Enderle was the only SA to install covert cameras. In two years, he installed 5 cameras
in a total of 12 to 20 hours of work. Enderle earned overtime due to working off-hours to
ensure that suspects were not on campus during installation. He earned $17 .89 straight time
and $26.84 overtime.
Hinojosa installed approximately 5 cameras at an average of 30 hours time for each
camera. The newer cameras installed by Enderle were easier and took much less time to
install. Hinojosa earned $20.76 straight time and $31.14 overtime.
4
However, covert camera repair work has remained a responsibility of the ERTs.

ALJ PROPOSED DECISION
Motion to Amend
The ALJ found that the charge was filed February 28, 2001, alleging unilateral transfer
of work in June 2000. CSEA had filed a grievance in September 2001 thus tolling the statute
of limitations pending resolution of the grievance. At the hearing in June 2002, CSEA sought
to amend the charge to allege that the transfer of work was retaliation against Hinojosa because
of his role as job steward and his perceived conflict of interest in installing covert cameras and
duty to represent the accused employees recorded by those cameras. Neither the charge, the
complaint nor the grievance alleged discrimination. Thus, without tolling, the ALJ found this
allegation to be untimely.
In its post-hearing brief, CSEA requested that the Board reexamine the idea that the six-
month limitation period is a jurisdictional bar to presenting claims. Under existing Board
precedent, the limitations period was a jurisdictional bar and the ALJ thus rejected this
argument. The ALJ also evaluated whether the proposed amendment fell within an exception
to the limitations provision, that the untimely unalleged violation is intimately related to the
subject matter of the complaint, is part of the respondent's same course of conduct, and was
fully litigated at the hearing. (Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668.) The ALJ found that the proposed amendment met the first two elements but not the
third; i.e., the allegation was not fully litigated at the hearing because there was insufficient
evidence of nexus and because of the District's contention that it was not prepared to defend a
discrimination allegation at the hearing. CSEA alleged nexus as the perceived conflict of
interest by the District between Hinojosa's duties as a covert camera installer and his role in
representing employees recorded by the camera. But the ALJ concluded that the transfer of
5

unit work would have occurred despite that perceived conflict and so would have dismissed the
allegation of discrimination under EERA section 3543.S(a).
Transfer of Work
The ALJ found some but not all of the elements of a unilateral change. The task of
installing covert cameras was specifically within the ERT job description but not in the SA
description, although a reasonable interpretation of the SA job description could include such
work. Therefore, the ALJ found a change in policy. The ALJ also found that transfer of unit
work from one bargaining unit classification to another is within the scope of representation.
The ALJ further found that there was no proper notice to CSEA. Under Board
precedent, notice must be provided directly to the union, not to an employee. The June 12
work order was addressed to Loerke. A CSEA member's first awareness of the transfer
occurred when Hinojosa received the work order and on August 24, when an SA first installed
a covert camera. The District contends that CSEA waived its right to bargain by the word
"assign" in the CBA District Rights clause. However, the ALJ did not find that the CBA
language did not constitute a "clear and unmistakable" waiver because it did not clearly convey
the right to assign work outside of a job classification. Such a construction of the CBA
language would render the job descriptions meaningless.
The ALJ found however that the transfer of ER T work did not have a "generalized
effect or continuing impact." CSEA argues that the change impacts the overtime hours of
ERTs. But in more than two years since the transfer of work, surveillance cameras were
installed on only five occasions for a total of 12 to 20 hours time. Even if this work were
returned to the ERTs, the District would be able to utilize the small, easier and faster to install
cameras. So, the ALJ concluded that CSEA's contention about overtime hours was
speculative. Neither work hours nor wages of either ERTs or SAs have changed because of the
6

transfer. The ERTs are actually busier than they were before the transfer, so that the impact on
the two classifications is insignificant and de minimis. Although camera installation is listed
as an essential job function, all duties on the ERT job description are so listed. Therefore, the
ALJ concluded that the District did not violate EERA section 3543.S(a), (b) or (c).
DISCUSSION
Motion to Amend Charge
In its motion to amend the charge, CSEA argued that the Board should revisit precedent
that the statute of limitations in EERA is a jurisdictional bar. It is important to note that since
the issuance of the proposed decision and the submission of exceptions and responses, in
Long Beach Community College District (2003) PERB Decision No. 1564, the Board
reexamined this issue and found the six-month limitation period not to be a jurisdictional bar,
but rather an affirmative defense to a charge. In that decision, the Board also reinstated the
doctrine of equitable tolling pending completion of a grievance process. As neither party
challenged the ALJ' s ruling denying the motion to amend the charge, we need not address the
merits here and except as noted above, adopt the ALJ' s findings.
Transfer of Unit Work
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) 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 implemen~ed
before the employer notified the exclusive representative and gave it an opportunity to request
7

negotiations. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196 (Grant).)
Under Board precedent, "[a] change in policy has, by definition, a generalized effect or
continuing impact upon terms and conditions
of
employment
of
bargaining unit members."
(Grant, at
p.
9.) In Grant, the Board opined:
The evil
of
the employer's conduct
...
is
...
the altering
of
an
established policy mutually agreed upon by the parties during the
negotiation process. [Citations.] By unilaterally altering or
reversing a negotiated policy, the employer effectively repudiates
the agreement. [Citation.]
(Grant, at p. 9.)
The Board has long held the transfer
of
unit work from one group
of
employees to
another to be within the scope
of
representation. (Alum Rock Union Elementary School
District (1983) PERB Decision No. 322, p. 11.) This case can be distinguished from
San Benito High School District (1994) PERB Decision No. 1076 (San Benito) in which the
Board deemed a new assignment to campus supervisors to identify the location
of
weeds on a
form and to turn the form into their supervisors a "function not previously performed" and
thereby within managerial prerogative.4 Here, the installation
of
covert cameras was identified
as an essential job function on the ERT job description, a document negotiated by the parties
and approved by the District's board and personnel commission.
4The dismissal letter in San Benito stated that even
if
the work had been technically
transferred to the campus supervisor, it is not significant enough to make the matter negotiable.
The Board agent cited Rio Hondo Community College District (1982) PERB Decision No. 279
(Rio Hondo) and Mt. San Antonio Community College District (1983) PERB Decision
No. 297 (Mt. San Antonio) in support
of
this concept
of
"significance." Those cases however
are inapposite in their holding that new teaching assignments "'reasonably comprehended' to
be within the scope of their existing job duties" do not constitute an unlawful deviation from
existing policy. (Mt. San Antonio, at p. 11, citing Rio Hondo.) To the extent that this dicta in
San Benito holds to the contrary, it is overturned.
8

CSEA excepts to the
ALJ's
finding that the District's unilateral transfer
of
unit work
did not have such a "generalized effect or continuing impact." It reasons that the transfer
of
covert camera installation affects wages and hours
of
unit members. Testimony showed that
these installations involve, in part, some overtime work. CSEA asserts that such an impact is
neither de minimis nor insignificant as the
ALJ
argues. Alternatively, CSEA argues that the
transfer itself is negotiable and the "generalized effect/continuing impact" analysis is
inapplicable.
Under Eureka City School District (1985) PERB Decision No. 481 (Eureka), the Board
set forth precedent for analyzing the negotiability
of
transfers
of
work. Generally transfers
of
work are negotiable. In Eureka, the Board held that where unit and non-unit employees
perform overlapping duties, "an employer does not violate its duty to negotiate in good faith
merely by increasing the quantity
of
work which non-unit employees perform and decreasing
the quantity
of
work which unit employees perform." However, the above test does not apply
where, as a result
of
the transfer: (1) unit employees cease performing duties that they
previously performed, or (2) non-unit employees begin to perform duties that were previously
exclusively performed by unit employees. (Eureka, at p. 15; Calistoga Joint Unified School
District (1989) PERB Decision No. 744 (Calistoga).)5
The facts in this case are similar to those in Calistoga, in which the employer
eliminated yard duty work from the classified unit and permanently reassigned it to the
certificated unit. The Board found a violation despite the fact that the certificated and
5Eureka and Calistoga involved transfer
of
work out
of
the bargaining unit. Here, the
transfer occurred within the same unit. While these situations are somewhat different, when
this case first came to the Board on appeal, the Board held that these two situations should be
analyzed in the same way. (Desert Sands Unified School District (2001) PERB Decision
No. 1468.)
9

classified units both performed yard supervision duties, finding that these facts fit within the
first prong
of
Eureka. While it is true that, in the past, non-ERTs had occasionally installed
covert cameras, CSEA and the District had always discussed and resolved the disputes over
this work. In this case, the District has now completely removed this function from the ERTs.
Therefore, under Eureka and Calistoga, the transfer
of
the covert camera installation work is
negotiable.
The District next argues that even
if
there were a significant change in policy, CSEA
waived its right to negotiate the policy under the CBA District Rights and Higher
Classification clauses. The Board has long held that a waiver
of
the right to bargain must be
"clear and unmistakable." (Fall River Joint Unified School District (1998) PERB Decision
No. 1259, citing Placentia Unified School District (1986) PERB Decision No. 595.) The
District argues that it can make this assignment because, like Rio Hondo, the installation work
can be "reasonably comprehended" to be within the scope
of
an SA's duties. However,
Rio Hondo does not involve the permanent transfer
of
unit work, but rather the assignment
of
new courses to teachers. With regard to the District Rights clause, we agree with the ALJ that
the word "assign" does not clearly convey the right to permanently transfer work outside
of
the
ERT classification, in which covert camera installation was an "essential job function,"
without first negotiating with CSEA. (State
of
California (Department
of
Corrections) (2000)
PERB Decision No. 1392-S.) We also find that the Higher Classification provision also does
not constitute a waiver by CSEA
of
the right to negotiate transfer
of
covert camera installation
work. That provision merely allows higher pay for an employee temporarily assigned to work
in a higher classification. The SA installing the cameras in this case did not receive higher pay
and the SA job description has not been modified to specify camera installation duties as an

essential
job
function. It is undisputed that the transfer
of
installation work is a permanent
change in policy. This change in policy must be negotiated by the District.
We therefore find a violation
ofEERA
section 3543.S(c), and concurrently, (a) and (b).
We consequently reverse this portion
of
the ALJ's proposed decision. The appropriate remedy
in this instance is to order the status quo and to negotiate with CSEA regarding transfer
of
unit
work. (Mt. Diablo Unified School District (1984) PERB Decision No. 373b; Calistoga.)
ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record in this
case, it is found that Desert Sands Unified School District (District) violated the Educational
Employment Relations Act (EERA), Government Code section 3543.S(c), and concurrently,
Section 3543.S(a) and (b).
Pursuant to EERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Failing to meet and negotiate with the California School Employees
Association (CSEA) concerning the transfer
of
covert camera installation work from the
Electronic Repair Technician classification to the Security Agent classification.
2. 	Denying CSEA the right to represent its members by failing and refusing
to meet and negotiate in good faith over the transfer
of
covert camera installation work from
the Electronic Repair Technician classification to the Security Agent classification.
3. 	Interfering with employees in the exercise ofrights guaranteed to them
by failing and refusing to meet and negotiate in good faith over the transfer
of
covert camera
installation work from the Electronic Repair Technician classification to the Security Agent
classification.
11

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES
OF
THE EERA:
1.	
Upon request, meet and negotiate with CSEA within thirty-five (35) days
after this Decision is no longer subject to appeal, regarding the transfer
of
covert camera
installation work from the Electronic Repair Technician classification to the Security Agent
classification. 
2.	
Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices are customarily posted, copies
of
the
notice attached hereto as an Appendix.
3.	
Written notification
of
the actions taken to comply with this Order shall
be made to the Sacramento Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on CSEA.
It is further Ordered that the administrative law judge's proposed decision in Case No.
LA-CE-4273-E is hereby AFFIRMED IN PART and REVERSED IN PART as discussed
herein.
This order shall become effective immediately upon service
of
a true copy thereof on
the parties.
Chairman Duncan and Member Neima joined in this Decision.
12

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-4273-E, California School
Employees Association v. Desert Sands Unified School District in which all parties had the
right to participate, it has been found that the Desert Sands Unified School District (District)
violated the Educational Employment Relations Act (EERA), Government Code section
3543.S(a), (b) and (c).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing to meet and negotiate with the California School Employees
Association (CSEA) concerning the transfer of covert camera installation work from the
Electronic Repair Technician classification to the Security Agent classification.
2. 	Denying CSEA the right to represent its members by failing and refusing
to meet and negotiate in good faith over the transfer of covert camera installation work from
the Electronic Repair Technician classification to the Security Agent classification.
3. 	Interfering with employees in the exercise of rights guaranteed to them
by failing and refusing to meet and negotiate in good faith over the transfer of covert camera
installation work from the Electronic Repair Technician classification to the Security Agent
classification.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Upon request, meet and negotiate with CSEA regarding the transfer of
covert camera installation work from the Electronic Repair Technician classification to the
Security Agent classification.
Dated: 	Desert Sands 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, DEF ACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION,
Charging Party,
V.
DESERT SANDS UNIFIED SCHOOL DISTRICT,
Res ondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4273-E
PROPOSED DECISION
(9/23/02)
Appearances: Tim Taggart, Labor Relations Representative, for California School Employees
Association; Miller, Brown & Dannis by David G. Miller, Attorney, for Desert Sands Unified
School District.
Before Ann L. Weinman, Administrative Law Judge.
PROCEDURAL HISTORY
A union representing a unit of classified employees claims that the employer, a school
district, unilaterally transferred certain job duties from one unit classification to another
without giving the union prior notice or opportunity to bargain. The district contends that it
was privileged to make the transfer under both the terms of the parties' collective-bargaining
agreement and the job description of the classification to which the work was transferred.
On February 28, 2001, the California School Employees Association (CSEA or Union)
filed an unfair practice charge against the Desert Sands Unified School District (District)
alleging the District's unlawful transfer of bargaining unit work. The San Francisco office of
the Public Employment Relations Board (PERB or Board) dismissed the charge. CSEA
appealed the dismissal, and PERB granted the appeal (Desert Sands Unified School District
(2001) PERB Decision No. 1468). On January 16, 2002, the Office of the General Counsel of
PERB issued a complaint alleging that by unilaterally transferring bargaining unit work, the

District violated the Educational Employment Relations Act (BERA) section 3543.5(a), (b) and
(c).1
An informal settlement conference was held in the PERB Los Angeles office on
March 28, 2002, but the matter was not resolved.
A formal hearing was conducted in La Quinta on June 20 and 21, 2002, before
Administrative Law Judge Ann L. Weinman. At the hearing, CSEA moved to amend the
charge to include an allegation that the transfer
of
work was discriminatory, in retaliation for
the Union activities
of
an employee who formerly performed the work. CSEA claimed it had
raised its intent to amend at the settlement conference. The District contended it had no prior
understanding
of
CSEA's intent to amend, and was not prepared to defend against the new
allegation. The motion to amend was denied as untimely. In its post-hearing brief, CSEA
presents a motion to amend to conform to proof, and requests that the motion it presented at
the hearing be reconsidered.
After the filing
of
post-hearing briefs, the matter was submitted for decision on
September 13, 2002.
FINDINGS OF FACT
The District is a public school employer as defined in BERA section 3540.l(k). CSEA
is an employee organization as defined in section 3540.1 (d) and at all times relevant has been
the exclusive representative, as defined in section 3540.1 (e ),
of
an appropriate unit
of
the
District's classified employees.
Since 1977, CSEA has represented a unit
of
approximately 800 employees in various
classifications, including approximately 4 Electronic Repair Technicians (ERT) in the
BERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.
2

Maintenance Department and approximately 25 Security Agents (SA) in the Security
Department (Security). The most recent collective bargaining agreement (Agreement) is
effective November 1, 2000, through June 30, 2003. Article 6 of the Agreement, entitled
"District Rights," reads in part:
It is understood and agreed that the District retains all of
its powers and authority to direct, manage and control to the full
extent of the law. Included in, but not limited to, those duties and
powers are the right to: determine its organization; direct the
work of its employees; ... hire, classify, assign, transfer,
evaluate, promote, terminate and discipline unit members.
(Emphasis added.)
The parties have also negotiated job descriptions for the various unit classifications, and
unless required by a change in the Education Code or some other statute, the District may not
change a job description unilaterally without first notifying CSEA. The current job description
for ER Ts reads in part:
Essential Job Functions:[2]
• 	Installs fire alarms, security systems, intercoms etc. for the
purpose of providing security of facilities, equipment and
supplies.
• 	Maintains fire alarms, security systems, video systems,
intercoms, and other electronic equipment for the purpose of
ensuring proper, safe and efficient operation of equipment.
(Emphasis added)
The current job description for SAs reads in pertinent part:
Essential Job Functions:
• 	Investigates campus crimes ... for the purpose of resolving
conflicts and/or pursuing further action.
2 In the ERT job description, all duties are listed as "Essential Job Functions" except
for providing support to other staff, completing work efficiently, and attending training
programs, etc., which are listed as "Other Job Functions." In the SA job description, all duties
are listed as "Essential Job Functions."
3

• 	Monitors student conduct during school activities ... for
the purpose of ensuring safety of students, personnel and
property.
On occasion, the District uses a covert surveillance camera to investigate suspected
wrongdoing or criminal behavior by students or employees. Historically, until approximately
June 2000,3 installation of these cameras was authorized by John Gaffney (Gaffney), assistant
superintendent, personnel services, and performed by an ERT.
ERT David Hinojosa (Hinojosa) testified on behalf of CSEA. He had been chief job
steward since January 1, and described his union duties as "protect[ing] the rights of members
[of the] bargaining unit," participating in investigations, and intervening on behalf of unit
employees in potential disciplinary actions. As to his ERT duties, Hinojosa had, inter alia,
installed 5 or 6 covert cameras and assisted in the installation of approximately 10. Each
installation took approximately 30 hours. In early February, Hinojosa was assigned to install a
covert camera in the kitchen of Adams School because the District suspected a unit employee
of food theft. Hinojosa testified that he met with Gaffney to discuss possible alternatives to the
camera, and told Gaffney that as job steward, he might have to defend the accused. Gaffney,
in his testimony, concurred that he and Hinojosa discussed alternatives, but did not recall
whether Hinojosa spoke of having a possible conflict. Accordingly, I credit Hinojosa's clear
recollection over Gaffney's failure to recall the entire conversation. After discussing
alternatives, Gaffney still wanted Hinojosa to install the camera, which was done. The suspect
was caught on camera, confessed, and was discharged. Hinojosa represented the suspect
4
All references are to the year 2000, unless otherwise specified.

during the investigation, and also at the Skelly hearing4 in April. Hinojosa did not believe he
had a conflict
of
interest
by
serving as both the camera installer and the employee's
representative. However, he believed that Gaffney had a conflict
of
interest, as Gaffney gave
the order for the camera installation and was also appointed to serve as the Skelly hearing
officer. Hinojosa expressed his concern to Personnel Manager Carrie Grence (Grence); as a
result, Gaffney recused himself as Skelly hearing officer and another individual was appointed.
For some time prior to the Adams School incident, Grence
had been talking with
Chief
of
Security Michael Bergman (Bergman) about revamping and upgrading the Security
Department. Bergman, who had served with the Los Angeles Police Department for 23 years
and then operated a private investigation agency, came to the District in late 1998. From the
beginning, he felt the need to make the Security Department more "professional." Among
other possibilities, he and Grence discussed Security taking over installation
of
the covert
cameras. Bergman testified that he advocated this for the following reasons:
(1) 	To preserve evidence and increase confidentiality. Bergman testified
this was his principal concern, although he was not aware
of
any previous problems in that
regard. He explained that in the then-current system, the chain
of
command went from
Gaffney to the maintenance manager to the ERT supervisor to an ERT; four individuals were
involved.
If
Security handled the installation, only Bergman and one SA would be involved,
thereby enhancing the covertness
of
the operation;
(2) 	Technology. Bergman noted that by the year 2000, smaller cameras
which were easier to install became available. While Bergman did not doubt the ERTs' ability
4 Discharge hearings are named with reference to Skelly v. State Personnel Board
(1975) 15 Cal.3d 194 [124 Cal.Rptr. 14], wherein the court declared that public employees
facing discipline or discharge are entitled to due process.
5

to install the new cameras,5 he knew that technology now made it possible for SAs to install
them as.well;
(3) 	Conflict
of
interest. Bergman acknowledged that he was concerned
about Hinojosa's potential conflict
of
interest
if
he should again install a covert camera and
then represent the accused employee; Bergman believed this was not a professional way to
conduct a covert operation. He testified that this was not his principal concern, however.
6
Grence and Berman brought to Gaffney a proposal to transfer the covert camera
installation and he agreed. Gaffney testified that, because
of
the Adams School incident, and
given his desire to serve as a Skelly hearing officer in the future, he decided he should not be
involved at all with covert camera installation. Rather, authority for this work should come
directly from Bergman, on his own judgment that such an operation was needed.
By
work
order dated June 12 from management to Maintenance Supervisor John Loerke (Loerke), the
Maintenance Department was ordered to collect all surveillance equipment and transfer it to
the Security Department. Since that time, covert camera installation throughout the District
has been performed by SA Art Enderle (Enderle), chosen by Bergman because
of
his prior
mechanical experience and skills.
CSEA first learned
of
the transfer
of
work when Loerke gave Hinojosa a copy
of
the
June 12 work order and instructed him to comply with it. Shortly thereafter, Hinojosa went to
Bergman's office to find out why this was happening. Bergman said it was to avoid
Hinojosa's conflict
of
interest, to have a smaller number
of
individuals involved, and to take
Bergman testified that if a covert camera installed by one of his SAs were to fail, he
would take it to the ERT department for repair.

advantage of new technology. 6 Subsequently, Hinojosa, on behalf of CSEA, had a number of
meetings with Grence and other District personnel to discuss the issue. In these meetings,
CSEA claimed the work belonged to the ER Ts and should not have been transferred. 	The
District argued that it was privileged by the word "assign" in the District Rights clause of the
Agreement, and that the work was encompassed by the SA job description. Hinojosa
characterized these discussions as "negotiations," but the parties never changed their respective
positions. Hinojosa first learned of the implementation of the transfer when Enderle installed a
covert camera at Amistad School on August 24.
In the past, the District had occasionally assigned unit work to non-unit employees,
CSEA had objected, the District argued its right to make the assignment, negotiations took
place, and the matters were resolved. · After months of discussion, however, the instant matter
showed no sign of moving toward resolution. 	CSEA, then opting for a more "formal"
procedure, filed a grievance on September 21, complaining that the work properly belonged to
the ER Ts rather than the SAs, and alleging violations of the District Rights clause and the
Safety clause. CSEA did not pursue the grievance beyond Step 3, where it was denied.7
Instead, CSEA filed the instant charge.
Enderle, the only SA to have installed covert cameras, testified that in the two years
since the transfer, he installed approximately 5 cameras in a total of approximately
6 Hinojosa testified that Bergman's secretary told him the transfer was because of his
conflict of interest and that other ER Ts could do the work. However, there is no evidence that
the secretary participated in the transfer decision. Accordingly, I place no weighton her
op1mon.
7 More recently, CSEA filed a grievance objecting to the assignment of covert camera
installation on school buses to Security; at the time of the hearing, that grievance was pending.
7

12-20 hours' work. 8 Some
of
this work was done during off-hours to ensure that suspects were
not on campus, thus Enderle earned overtime wages.
The parties stipulated, and I find, that Hinojosa's current salary grade is 83, Step
E,
and his hourly wages are $20. 76 straight time, $31.14 overtime; Enderle's salary grade is 75,
Step F, and his hourly wages are $17.89 straight time, $26.84 overtime. There was no evidence
that Hinojosa or any other ERT lost any wages or hours since the transfer.9 To the contrary,
ERTs have continued to perform all
of
their other functions, including maintenance
of
surveillance cameras and installation
of
non-surveillance cameras, and they have more work
now due to the construction and opening
of
new District schools.
ISSUES
1.	
Should the motion to amend be granted?
2. 	Did the District unlawfully transfer the installation
of
covert surveillance
cameras from the classification
of
Electronic Repair Technician to the classification
of
Security Agent?
CONCLUSIONS OF LAW
Motion to Amend
BERA section 3541.5(a)(l) prohibits PERB from issuing a complaint with respect to
"any charge based upon an alleged unfair practice occurring more than six months prior to the
filing
of
the charge." The limitations period begins to run once the charging party knows, or
should have known,
of
the conduct underlying the charge. (Gavilan Joint Community College
8 As noted above, Hinojosa testified that he spent an average
of
30 hours' work on each
installation. Noting that the new cameras are smaller, easier, and take less time to install, I
credit the testimony of both witnesses.
9 CSEA claims that Hinojosa may have lost overtime hours. As this is speculative, I do
not credit it.
8

District (1996) PERB Decision No. 1177.) However, the limitations period is "tolled during
the time it takes the charging party to exhaust the grievance machinery." (Sacramento City
Unified School District (2001) PERB Decision No. 1461.)
The instant charge was filed on February 28, 2001, alleging the District's unilateral
transfer of unit work in June 2000. CSEA had filed a grievance raising this issue in September
2000; thus, the limitations period was tolled during the processing of the grievance, and the
charge was timely filed. 	CSEA now alleges that the transfer of work was also discriminatory,
motivated by the District's desire to retaliate against Hinojosa because of his CSEA
stewardship and the perceived conflict of interest between his installation of covert cameras
and his duty to represent accused employees recorded by those cameras. Discrimination was
not alleged in the charge or the complaint, however, nor was it part of CSEA's grievance.
Thus, the limitations period cannot be tolled for this allegation, and it is untimely.
CSEA does not dispute that the discrimination allegation is statutorily untimely.
Rather, in its post-hearing brief, CSEA argues that "it is time to re-examine the idea that the
six-month statute oflimitation ... is a jurisdictional bar to presenting any claim." In support,
CSEA cites the absence of limitations language in the Meyers-Milias-Brown Act, as well as
the requirement in the various statutes of limitations set forth in the California Code of Civil
Procedure that they be raised as affirmative defenses. 	CSEA also contends that the parties
"agreed to hold the timelines" during the District's summer vacation. However, I am without
authority to defy the precedent set forth in The Regents of the University of California (1990)
PERB Decision No. 826-H. In that case, PERB held that "all three of the statutes which it
administers," including EERA, contain statutes of limitations which cannot be waived by the
parties and need not be raised by affirmative defense; if a charge is untimely, the Board "has
9

no subject matter jurisdiction over the case and may not issue a complaint under any
circumstances." (Emphasis added.) Accordingly, I reject CSEA's arguments in this regard.
However, there is an exception to the six-month limitation which must be considered,
i.e., an untimely, unalleged violation may be found provided it is intimately related to the
subject matter of the complaint, part of the respondent's same course of conduct, and was fully
litigated at the hearing. (Tahoe-Truckee Unified School District (1988) PERB Decision
No. 668.)
The instant discrimination allegation is certainly intimately related to, and part of the
same course of conduct as, the original allegation of unilateral transfer of work. As to whether
the new allegation was fully litigated, PERB has held that the elements of a discrimination
claim are that: (1) the employee exercised rights under EERA; (2) the employer had
knowledge of the exercise of those rights; and (3) the employer discriminated or threatened to
discriminate against the employee 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.) One important factor in showing unlawful motivation is the
timing of the employer's conduct in relation to the employee's protected activity. (North
Sacramento School District (1982) PERB Decision No. 264.) 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.); (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
10

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.)
Although Hinojosa testified generally regarding his duties as chief job steward for
CSEA, there is no evidence of when or how often he engaged in Union activities, whether the
District ever attempted to limit those activities, whether the District had ever expressed any
anti-union sentiments with regard to those activities, or whether the District had treated non-
Union employees differently. Further, the District contended at the hearing that it was not
prepared to defend against an allegation of discrimination. Thus, I do not find that the issue
was fully litigated, and I deny the motion to amend .
Even if the motion were granted and the complaint amended, however, I would not find
a violation based on the new allegation, for the following reasons: CSEA contends that the
District's concern over Hinojosa's dual role as camera installer and accused-employee
representative in the Adams School incident is evidence of its anti-union motivation.
However, it was Hinojosa who first raised a "conflict of interest" claim against Gaffney, with
which both Gaffney and the District agreed. Thus, I find the District holding Hinojosa to the
same standard was not an expression of anti-union animus, but was rather a legitimate business
effort to sanitize the covert surveillance process. CSEA also points to Bergman's testimony
that his prior negotiations with CSEA had been "difficult" because the Union disagreed with
every point he raised. But there is no evidence showing a causal connection between
11

Bergman's opinion of Union negotiations and his desire for SAs to perform covert camera
installations rather than ERTs. Bergman's principal motivation, which he had consistently
expressed in conversations with Grence, Gaffney, and Hinojosa, as well as at the hearing, and
which I credit, was to protect confidentiality.
I do not find that the transfer of work would not have occurred "but for" Hinojosa's
perceived conflict of interest, but rather that it "would have occurred in any event,"
notwithstanding the conflict. (Novato; Wright Line, Inc. (1980) 251 NLRB 1083 [105 LRRM
1169], enf. in rel. part (1 st Cir. 1981) 662 F.2d 899 [108 LRRM 2513].) Accordingly, I would
find insufficient evidence of discrimination in violation of EERA section 3543.5(a).
Transfer of Work
In determining whether a party has violated EERA section 3543.5(c), PERB utilizes
either the "per se" or "totality of the conduct" test, depending on the specific conduct involved
and the effect of such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations if the
following criteria are met: (1) the employer implemented a change in policy; (2) the change
concerns a matter within the scope ofrepresentation; (3) the change was implemented without
giving the exclusive representative prior notice and an opportunity to bargain; and (4) the
change was not merely an isolated breach of the parties' agreement, but has a "generalized
effect or continuing impact" on the terms and conditions of employment of bargaining unit
members. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant Joint
Union High School District (1982) PERB Decision No. 196; Klamath-Trinity Joint Unified
School District (1993) PERB Decision No. 1003.)
12

As to the first criteria, a change in policy, the Board stated in Rio Hondo Community
College District (1982) PERB Decision No. 279, at p. 17:
... The nature of existing policy is a question of fact to be
determined from an examination of the record as a whole. It may
be embodied in the terms of a collective [bargaining] agreement
[citation]. In the absence of such a contract provision, existing
policy may be ascertained by examining past practice [citation] or
such other evidence as the job description ....
The District contends that it did not change any existing policy, as covert camera
installation is reasonably contemplated within the job descriptions of either classification. In
San Benito High School District (1994) PERB Decision No. 1076 (San Benito), at issue was
the assignment of identifying weeds on school lawns. PERB upheld the dismissal of an unfair
practice charge on the basis that this task was not specified in the job description of either
classification involved, but could have been contemplated by both. Here, I do not dispute that
covert camera installation could be considered part of the SAs' job to "investigate campus
crimes" and "monitor student conduct." However, unlike San Benito, the ERT job description
specifically assigns the installation of security systems to them, and it is they alone who
performed this work until June 2000. Thus, I do not find that transferring this work away from
them is a reasonable interpretation of the negotiated job descriptions. I reject the District's
contention in this regard, and find that the District did make a change in policy.
As to negotiability, PERB has held that a transfer of work from one bargaining unit
classification to another is a negotiable subject within the scope of representation. (Desert
Sands Unified School District, supra, PERB Decision No. 1468, citing Alum Rock Union
Elementary School District (1983) PERB Decision No. 322 and Anaheim Union High School
13

District (1981) PERB Decision No. 177; Rialto Unified School District (1982) PERB Decision
No. 209.)10
As to notice, PERB has consistently held that an employer must provide notice directly
to the union, not merely to a unit member or other employee. (Fall River Joint Unified School
District (1998) PERB Decision No. 1259 [letters to two teachers advising of a swap program
does not constitute notice to the union].) Here, the first awareness by any CSEA member of
the transfer decision was when Hinojosa saw the June 12 work order, and of its implementation
on August 24 when Security performed its first installation. However, the June 12 work order
was addressed to Maintenance Supervisor Loerke, not to the Union. Further, the District's
decision had already been made by that time, and CSEA was not notified in advance of either
the June 12 work order or the August 24 installation. Accordingly, I conclude that the District
unilaterally transferred its covert camera installation without affording CSEA prior notice or
opportunity to bargain.
The District contends that CSEA waived its right to negotiate by the word "assign" in
the District Rights clause of the Agreement. However, it is well settled that a waiver must be
"clear and unmistakable." (Fall River Joint Unified School District, supra, PERB Decision
No. 1259, citing Placentia Unified School District (1986) PERB Decision No. 595.) Here, the
10 In its post-hearing brief, the District contends that there is no duty to bargain where
the decision is not based on labor cost, citing First National Maintenance Corp. v. NLRB
(1981) 452 U.S. 666 [107 LRRM 2705]. However, that case as well as related decisions dealt
with partial shutdowns, relocations, and subcontracting of unit work resulting in the layoffs of
substantial numbers of unit employees. That is not the situation here. Further, in Fibreboard
Corp. v. NLRB (1964) 379 U.S. 203 [57 LRRM 2609], the Court held that where unit work
was taken from one group of employees and given to another group, who performed the work
under similar conditions of employment, there is a duty to bargain regardless of the basis for
the employer's decision. Accordingly, I reject the District's argument in this regard.
14

District Rights clause appears to give the District the right to assign work specified in a job
description to anyone in that classification. But I do not find it clear or unmistakable that the
District may unilaterally assign work outside of the classification, notwithstanding that this has
.been done occasionally on a limited-time basis. If the District had this discretion, the job
descriptions which the parties negotiated for the various classifications, including ERT and
SA, would be meaningless. Thus, I cannot conclude that CSEA waived its right to bargain
regarding the transfer of work.
As stated above, to be considered an unlawful change in policy, a change in job duties
must have a "generalized effect or continuing impact" on unit employees. (Grant Joint Union
High School District, supra, PERB Decision No. 196; Klamath-Trinity Joint Unified School
District, supra, PERB Decision No. 1003.) PERB has held that there is no presumption in
favor of the charging party in that regard. Rather, the charging party has the burden to
substantiate this element of the violation. (Modesto City Schools (1983) PERB Decision
No. 291 (Modesto).) In Modesto as well as in Imperial Unified School District (1990) PERB
Decision No. 825, the Board refused to find a violation because charging parties had not
sustained their burdens of showing that class schedule changes had an impact on teachers'
working conditions. 	And in San Benito, PERB stated that, even assuming arguendo that work
had been transferred from one unit classification to another, it was not "significant enough to
make the matter negotiable."
Here, CSEA claims that ER Ts have been impacted by the potential loss of overtime
hours. However, in the two-plus years since the transfer, surveillance cameras were installed
on only five occasions, in a total of only 12-20 hours' time. Even if this work were to be given
back to the ERTs, the District would be privileged to continue using the smaller, faster
15

cameras. 11 I therefore find that CSEA's contention regarding overtime is unlikely as well as
speculative.
Neither the work hours nor the wages of either the ERTs or the SAs have changed
because of the transfer. To the contrary, the ERTs are busier than they were before the
transfer, and there is no evidence that wages or any other working condition was impacted.
Notwithstanding the permanency of the transfer, I find that its impact and effect on the two
classifications of employees is de minimis and insignificant. The fact that the ERT job
description lists the installation of security systems as "Essential Job Functions" does not alter
this finding, as virtually all of the ERT duties are so listed.
I therefore conclude that CSEA has not sustained its burden of showing that the
unilateral transfer of covert camera installation from the Maintenance Department to the
Security Department was an unlawful change in policy. Accordingly, I find that the District
did not violate BERA section 3543.S(a), (b) or (c).
PROPOSED ORDER
Based upon the foregoing findings of fact and conclusions of law and the entire record
in this matter, the complaint and underlying unfair practice charge in Case No. LA-CE-4273-E,
California School Employees Association v. Desert Sands Unified School District, are hereby
dismissed.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
II The District Rights clause of the Agreement gives the District the right to determine
the "methods and means" of providing services, which would include the choice of camera
used for surveillance.
16

Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
FAX: (916) 327-7960
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, sec. 32300.)
A document is considered "filed" when actually received before the close of business
(5 p.m.) on the last day set for filing 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.
(Cal. Code Regs., tit. 8, secs. 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 California Code of Regulations, title 8,
section 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. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 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, secs. 32300, 32305,
32140, and 32135(c).)
QMAA 	l 	1110,rQM .
17
Ann L. Weinman
Administrative Law Judge