Desert Sands Unified School District (PERB 2092E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 106,
Charging Party, Case No. LA-CE-4491-E
Vv. PERB Decision No. 2092
DESERT SANDS UNIFIED SCHOOL DISTRICT, February 1, 2010
Respondent.

Appearances: California School Employees Association by Maureen C. Whelan, Attorney, for
California School Employees Association and its Chapter 106; Miller, Brown & Dannis by
Candace M. Bandoian, Attorney, for Desert Sands Unified School District
Before Dowdin Calvillo, Acting Chair; McKeag and Neuwald, Members.
DECISION

McKEAG, Member: This case comes before the Public Employment Relations Board
(PERB or Board) on appeal by the Desert Sands Unified School District (District) of a
proposed decision by an administrative law judge (ALJ). The unfair practice charge alleged
that the District violated the Educational Employment Relations Act (EERA)' by: (1)
discriminating against a special education health technician (health technician) ? (2)
unilaterally removing health technician work from the bargaining unit; (3) unilaterally
removing school bus driving work from the bargaining unit; (4) unilaterally ceasing bus driver
compensation for behind-the-wheei training needed for license renewals; (5) unilaterally

assigning new duties to bus driver mechanics; and (6) unilaterally implementing a rule for

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

* This allegation was dismissed with prejudice by stipulation of the parties and,
therefore, not considered by the ALJ.

requesting released time. The California School Employees Association and its Chapter 106
(Association) alleged that this conduct violated EERA section 3543.S(a), (b), and (c).
Following three days
of
formal hearing and the submission
of
post-hearing briefs by the
parties, the ALJ ruled that the District unilaterally changed policies by: ( 1) transferring
work
from the health technician positions to other classifications; (2) denying field-trip work to bus
drivers by employing charter buses without regard to the limitations previously in force;
(3) denying bus drivers extra-duty compensation for behind-the-wheel training needed for
license renewals; (4) assigning the duties
of
the former fleet supervisor to bus mechanics; and
(5) requiring released time requests be submitted
on
the personal leave form. 3
We have reviewed the entire record in this matter and find the District: (1) unlawfully
transferred work from the health technician position to other classifications; (2) unlawfully
changed its policies regarding the assignment
of
field-trip work; (3) unlawfully changed its
practice regarding training compensation for bus drivers; but (4) did not unlawfully change the
duties
of
bus mechanics when it assigned the mechanics individual buses to repair and
maintain.
FINDINGS OF FACT
The issues addressed herein concern four unlawful unilateral change allegations, each
of
which is based on a unique set
of
facts. 	For the sake
of
clarity, the following recitation
of
facts is organized with regard to each
of
these allegations.
3 With regard to the released time issue, the ALJ determined that the District:
(1) violated EERA section 3543.S(a), (b), and (c) by unilaterally requiring requests for released
time be submitted on the District's personal leave form, but (2) did not violate EERA by
enforcing a 24-hour prior-notice rule. These findings, however, were not excepted to by either
party. Accordingly, the issue is not squarely before the Board and is not addressed herein.
The Board, therefore, affirms the aforementioned conclusions of the ALJ, but does not adopt
the analysis.
2

A. 	Health Technician Work
The District employs several classifications to assist students with physical disabilities
and monitor the health needs of "medically fragile" students during the school day. They
include the special education paraeducator (paraeducator), health technician, licensed
vocational nurse/special education (L VN), and school nurse. 	School nurses are in the
certificated bargaining unit. The other three classifications are in the Association's unit.
1. 	Range of Duties
All four classifications perform some health-related work. The nature of that work,
however, is based on the skill level of each classification. For instance, administering first aid,
dispensing medications, and assisting in the monitoring of diabetic glucose levels are duties
that may be performed by all the classifications. Catheterizations4 for the purpose of emptying
the bladder, tracheotomy care (suctioning) and tube feedings, on the other hand, are invasive
procedures that may be performed by school nurses, LVN s and health technicians, but not
paraeducators.
Paraeducators are specialized classroom aides who work with handicapped students. 5
Around 1998, the District began to train paraeducators to perform catheterizations. The
employees, through the Association, objected to the duty as being outside their job description.
Consequently, the District agreed not to assign that duty to paraeducators. Instead, the District
4 Catheterizations are sterile procedures that require specialized training to perform.
5 The paraeducator job description describes the position as assisting teachers in
providing instruction and tutorial assistance to handicapped students in a special education
learning environment, monitoring and reporting student progress, and related functions. 	Other
duties include dispensing medication and assisting with non-invasive health treatments for
medically fragile children, and assisting in grooming, dressing and toileting.
3

created the health technician classification to perform catheterizations.6 In addition, there are
numerous special education students who do not need catheterizations but do need assistance
in toileting or diapering. According to their respective job descriptions, both paraeducators
and health technicians may perform these duties.
Based on our review of the classifications, we find both the paraeducator position and
the health technician position perform overlapping health-related duties. Indeed, the District's
Director of Student Support Services and Special Education Elka Kelly-Parker (Kelly-Parker)
testified regarding this overlap, emphasizing that all of the classifications perform toileting
duties because the District has "so many students" with that need.
2. 	Special Education Health Technician Layoffs
In the Summer of 2002, the District issued layoff notices to all eight health technicians
due to lack of work and/or lack of funds. Kelly-Parker, who was promoted to her current
position in the Summer of 2002, supervises the classifications at issue here. However, neither
Kelly-Parker nor any other District witness recalled the precise justification for the layoffs.
In lieu of layoff, two employees were offered demotions to paraeducator positions.
Georgia Maupin (i'v1aupin) was one of them. As a health technician, Maupin's duties in a
typical day included transferring wheelchair-bound students to and from buses, toileting and
catheterizations, tube feedings, skin integrity and wound monitoring, and accompanying a
student on the bus to monitor for seizure disorder or to administer oxygen.
6 The health technician job description describes the position as assisting teachers or
specialists in providing instruction and tutorial assistance to handicapped students in a special
education learning environment and performing "specialized health care activities." Health
care activities include administering medical assistance to medically fragile students under the
supervision of a licensed nurse (e.g., tube feeding, catheterization, tracheotomy care,
colostomy care, administering of oxygen, etc.). Other duties include assisting students with
toileting, feeding, diapering, and transferring students who use lifts, walkers and wheelchairs.
4

Maupin met with Kelly-Parker during the layoff process. According to Maupin,
Kelly-Parker asked Maupin to perform the same duties in the lower paid position, including
riding on the bus with a medically fragile student. Kelly-Parker, on the other hand, denied she
asked Maupin to continue performing the same duties for less pay.
Maupin was concerned with the work of the health technicians being reassigned to
paraeducators. She asserted that in the year prior to the layoff, school nurses began reassigning
toileting duties (but not catheterizations) to paraeducators and other duties not requiring a
physician's order. Maupin also learned from a school nurse that the District was having
difficulty finding someone to continue her role of monitoring the student on the bus and would
ask the County Office of Education (COE) to cover that function. 	On the basis of such reports,
Maupin came to question the justification for the layoffs. 7
3. 	Reinstatement of Health Technicians
Kelly-Parker acknowledged there was sufficient health technician work to retain one
employee during the 2002-2003 year but, in general, the work of the classification was
absorbed by school nurses. The other health technician who was offered reassignment had
LVN credentials and was ultimately restored to her original position in the Fall of 2002. 	She
remained the only health technician employed until 2006. In that year, the District hired a
number of health technicians as a result of a transfer of 194 severely handicapped students
from the COE.
7 According to a memorandum of protest written by Maupin and the other retained
health technician, the District created the position a few years earlier in response to the
objection to catheterization work by paraeducators. Maupin and her co-worker were willing to
do this work, and so Kelly-Parker's predecessor (reluctantly) agreed to the new positions.
Thereafter, the District hired the additional complement of health technicians, but there was
insufficient work at the level at which the position was designed.
5

Michaeleen Prest (Prest) has been the District's lead school nurse since 2002 and a
school nurse since 1986. Prest and Kelly-Parker agreed that health monitoring of students
during transportation (either getting on or off buses or occasionally while on the bus) can be
done by health technicians or paraeducators, depending on the level of need identified for the
student. Prest could recall only one student in the District who required monitoring while on
the bus but conceded there may have been others.
Prest explained that the District's overall need for health services has increased since
1986 due to the increased enrollment of medically fragile students. There are currently 400 to
500 such students in the District. Prest testified, though not specifically on the issue of use of
the health technician position after the layoffs, that the need for catheterizations has increased
over the years as well as, at least recently, the more complicated cases involving G-tube
feedings, tracheal stomas, and permanent shunts. Additionally, the number of school sites
increased from 20 to 33 in the past five years. Prest could not recall any decrease in the
amount of health care work at the time of the layoffs.
4. 	Creation of LVN Position
In 2003, the District created the LVN position in response to difficulty recruiting school
nurses (registered nurses) and because one special education student needed a higher level of
service. The intention was for the LVNs to administer medications and perform physician
prescribed procedures under the supervision of a registered nurse. Prest stated that the District
currently employs only one LVN.
5. 	Allocation of Duties After Layoff
The work performed by health technicians was transferred both to nurses and
paraeducators following the layoffs in 2002. The invasive procedures and more sensitive
medical services were transferred to school nurses or later handled by LVNs or the reinstated
6

health technician. Given the steadily increasing student population in need of services, a
significant amount of personal assistance work (e.g., toileting, personal care, and transferring
handicapped students) was transferred from health technicians to paraeducators.
B. 	Use of Charter Buses
District bus drivers are eligible for extra-duty work assignments in the form of
field-trips, both during the school day and during non-school hours. The parties' 1997-2000
collective bargaining agreement (CBA) contains a section entitled "Special Trip Assignments
(Transportation)." (Art. 12, § 12.2.) These provisions established a system that differentiated
between "local trips" and "out-of-district trips" for distributing the extra-duty work to District
drivers based on seniority. Driver lists were maintained for each type of trip, with priority in
the rotation on the basis of seniority. Local trips were defined as being within the geographical
limits of the District and two adjoining districts.
1. Field-Trip Policies
In 1998, the District governing board adopted Board Policy and Administrative
Regulation (BP/AR) 3541.1 which read as follows:
School buses shall be used to transport students to and from
school, and for other school activities that have approval of the
Governing Board and are permitted by law. Variation from this
policy requires approval of each exception by the Board.
In the Board's effort to maximize safety of students, the district
shall provide transportation in school buses[ 8] or other district
vehicles, as defined in Education Code 39830, for field trips and
excursions in connection v,rith instructional or school-related
social, education, cultural, athletic or school band activities.
8 Education Code section 39830 defines a "schoolbus" as a vehicle used for
transporting 12 th grade and younger students. The definition of a "school bus" does not include
a "school pupil activity bus." 	Education Code section 39830.1 defines a school pupil activity
bus as a motor vehicle, other than a schoolbus, operated by a common carrier, or by and under
the exclusive jurisdiction of a publicly owned or operated transit system, or by a passenger
charter-party carrier, used under a contractual agreement between a school and carrier to
transport school pupils at or below the 12 th grade level.
7

School-related organizations requesting transportation shall be
fully responsible for the costs of their trips unless funding has
been approved by the Board.
In addition, BP/ AR 3 541.1 (b) (Scheduling Procedure) of the 1998 policy provided:
If it is determined that no district vehicles and/or drivers can be
utilized, the following is required if services are provided by
outside carriers:
1. 	School Pupil Activity Bus (SPAB) certification ... for
any driver transporting district students.
2. 	Proof of insurance ...
3. 	The vehicle to be used will be available for inspection ...
4. 	Carrier's driver shall adhere to all regulations of [SPAB]
certification ...
2. 	Modifications to Field-Trip Policies in 2000
The parties' 2000-2003 CBA (2000-2003 CBA) added a provision that
prohibited District drivers from signing up for both the local and out-of-district
lists simultaneously. The 2000-2003 CBA retained the local trip definition of
district boundaries but added, by reference to BP/AR 3 541, "all destinations
within a 50 road-mile radius." An out-of-district trip was defined for the first
time, also by reference to BP/AR 3 541, as one beyond the boundaries of a local
trip. The board policy was attached to the 2000-2003 CBA as an appendix for
"informational purposes. "9
Section 12.2.2 of the 2000-2003 CBA also contained the following
language regarding trips outside the Coachella Valley:
9 The attached policy included a l 00-mile limit and thus the language of the contract
was controlling.
8

School affiliated trips outside the Coachella Valley area or trips
that require transporting of large equipment may also be
considered out of district trips (for determination of appropriate
vehicles to be utilized).
3. 	Prior Association Concerns Regarding the Reduction in Field-Trip Work p
Albert Robinson (Robinson) has been a District bus driver for 14 years. He began
serving on the Association's bargaining team beginning in 1999 or 2000, around the time the
2000-2003 CBA was negotiated. He has also been an Association job steward since
approximately 2000. In the 2000-2001 school year, Robinson believed the number of
out-of-town trip assignments was diminishing, particularly weekend trips, for District drivers
including himself. Fannie Mae Horton (Horton), a special education bus driver for 18 years,
corroborated with Robinson on this point. The drop in trips prompted the Association's first
grievance concerning field-trips, which Robinson coordinated, to address the use of private
charter buses. Robinson attempted without success to arrive at an accommodation with
Associate Superintendent of Business Services Charlene Whitlinger (Whitlinger). The
Association proposed limiting charters to graduation nights and championship athletic events.
Robinson recalled Whitlinger stating that parents were in favor of more charter bus trips.
Charter buses tend to be more luxurious with amenities such as air conditioning.
On February 15, 2002, Association Labor Relations Representative Tim Taggart
(Taggart) sent an e-mail to Whitlinger asserting that the 2000-2003 CBA, by reference to the
board policy, required that school buses be used for all field-trips unless an alternative mode
was approved by the governing board. Association President Rosemary Mindiola (Mindiola)
wrote a follow-up e-mail, adding her concurrence as to the intent of the board policy. The
Association requested that a pending grievance be moved to mediation. There is no evidence
the grievance was ever arbitrated.
9

4. 	The District's Revision of BP/AR 3541.1
In October 2002, the District proposed to revise BP/AR 3541.1 as set forth below.
School buses shall be used to transport students to and from
school, and for other school activities that have approval of the
Governing Board and are permitted by lw.v. Variation from this
policy requires approval of each e)cception by the Board.
In the Board's effort to maximize safety of students, the district
shall provide transportation in with school buses, school pupil
activity bus (SPAB) certified carriers, or other appropriate district
vehicles, as defined in Education Code 39830 for authorized field
trips and excursions in connection with instructional or school
related social, education educational, cultural, athletic or school
band activities. Variation from this policy requires approval of
each exception by the Superintendent or designee.
The underlined language signified the proposed additions to the policy, and the strike
out language signified the proposed deletions. In addition, under BP/AR 3541.l(a) describing
requirements for field-trips, the distance defining a local trip was changed from a 100 road
mile radius to a 50 road-mile radius. There were no material changes to the section describing
the "scheduling procedure." According to Assistant Superintendent of Personnel Jon Gaffney
(Gaffney), the purpose of the revision was to make the written policy consistent with actual
practice, as vvell as the language of the Association contract.
On October 15, 2002, there was a first reading of the proposed revision to
BPIAR 3541.1. A second reading, together with vote for approval, was calendared for the
November 19, 2002, governing board meeting. In her capacity as Association President,
}v1indiola received a copy of the board agenda and noticed the proposed policy revision.
Robinson also noticed the proposed change.
By e-mail dated November 18, 2002, Mindiola notified Whitlinger and Gaffney that the
Association objected to implementation of the new board policy and demanded to negotiate

over the matter. Mindiola noted that the matter had been the subject of "several grievances."
The governing board approved the revisions to BP/AR 3541.1 on November 19, 2002.
5. 	Use of Charter Buses
Robinson described the historical practice of the District regarding use of charter buses
in relation to the policy revision. He indicated that at one time only District buses were used
for out-of-town trips. The out-of-town list had about eight drivers. Prior to the policy
revision, if the out-of-town list was exhausted, the District reverted to the local trip drivers'
list. District buses had been able to accommodate band trips which had unusual equipment
carriage requirements. Robinson noticed an increase in use of charter buses at Palm Desert
High School over time.
Horton has done long trips in District buses in the past, up to 19 hours in duration. 	She
also noticed that the number of charter buses used for field-trips increased over time,
particularly for out-of-town trips, on the basis of which she believed she was losing trip
opportunities. District bus driver Cynthia Tucker (Tucker), a 27-year driver, saw the number
of charter buses increase gradually over the years.
District bus driver Mario Gutierrez (Gutierrez) testified that his own trip opportunities
had increased, although he joined the District more recently than either Horton or Tucker.
The District's Director of Maintenance Operations and Transportation Terry Parker
(Parker) testified that charter buses had been used for a number of years and that discretion to
use a non-District bus had been vested in the transportation department manager. Parker was
unaware of an instance in which the governing board acted to approve use of a charter bus. In
addition, Parker testified that charter buses were permitted upon request when a parent booster
club sponsoring the trip had raised funds for it.
11

Transportation Department Manager Blanca Cervantes (Cervantes) assumed her
position beginning on an interim basis in 1999. She oversaw the procedure for assigning
field-trip buses. Her office receives requests from the school sites. According to Cervantes,
the requesting party is permitted to request either a District or charter bus. Cervantes did not
claim that the District driver lists needed to be exhausted before resorting to charter buses. She
did, however, acknowledge that the language of the board policy on "scheduling procedure" -
which provides that she or her designee is to "schedule the appropriate district vehicle" -- did
set forth the requirement that District vehicles be exhausted before utilizing SP AB vehicles.
Regardless of the exhaustion requirement, Cervantes testified that District drivers were rarely
available for weekday trips because of their regular schedule driving duties.
Gaffney testified that charter buses had been used for many years, typically in cases of
long trips, trips with equipment capacity issues, championship athletic events, and when
District drivers were not available. As noted above, Gaffney believed that the language of
section 12.2.2 referencing "appropriate vehicles," which was the same in both the 2000-2003
and 2003-2005 agreements, authorized the use of charter buses without regard to exhausting
District buses.
C. 	Behind-the-Wheel Training, Extra-Duty Compensation
To operate District-owned school buses, District bus drivers must be licensed with a
special certification provided by the California Highway Patrol (CHP). (See Ed. Code,
§§ 40082 A0083 ;1(\(IQ,;: 4(\(\QQ, Uah 0
	, 	~r1"' ~~ ,A, 	1 2,;: 17 \	I 	, IVVU.J, 	VVUU, V \..11. VVU.\,..,, ':j~ .J-r...J, l 	.J .i. I •j nnc"'	'-' i. V ~ert1'fi1ed	\,,, 	'- ..1.. 	, dr1'vers are
required to renew their certificate every five years. The renewal consists of a written test and a
hands-on driving test. Ten hours of classroom instruction are required in the year of renewal.
In non-renewal years, 10 hours of classroom, behind-the-wheel, or in-service training are
required. 	(Ed. Code, § 40085.) The District employs a driver trainer to provide behind-the
12

wheel training time so as to ensure that the drivers can execute the skills required by the CHP.
The trainer advises the drivers of what will be required for the recertification test. The District
provides the bus for this training. A number of the drivers testified that when the behind-the
wheel training could not be completed during their regularly scheduled hours, they claimed the
time on their timesheets as extra-duty time.
1. 	Compensation for Behind-the-Wheel Training
Robinson renewed his certificate in 1997. At that time, the 10 hours he spent for
behind-the-wheel training was treated as extra-duty work and compensated as such. Robinson
believes he designated the time as "driver's training" on his timesheet. Robinson understood
other drivers were treated similarly for their behind-the-wheel training. Robinson could not
recall using the phrase "behind-the-wheel" for this training time but, because the claims were
never questioned, he assumed the District was aware of the practice of compensating such
time. When Robinson renewed his certificate in 2002, he attempted to claim the same 10
hours. 	However, Cervantes returned Robinson's timesheet to him, advising him the hours
would not be compensated.
Tucker and Gutierrez experienced the same change in practice \Vith Cervantes and were
denied compensation for their behind-the-wheel training time. Tucker testified that she
denoted the extra-duty time as either "behind-the-wheel training" or "training" on her
time sheet.
Horton last renevved her certificate in 2002. She received compensation for the behind-
the-wheel training in each of her previous four renewals. 	She, too, claimed the behind-the
wheel time as extra-duty work on her timesheet. Since she normally drives a small bus
transporting special needs students, Horton spent her behind-the-wheel time working on
maneuvers in a long bus which is the type used in the test. Consistent with Robinson's
13

testimony, she testified that the District trainer explains what is needed to pass the test when
the two get together to discuss the renewal process. Payment for the behind-the-wheel training
has always been approved by her supervisor. Her 10 hours of classroom time was
compensated time in 2002, in addition to the 10 hours of behind-the-wheel training. As to her
claiming both the classroom time and the training time, Horton conceded she might not have
clearly denominated the behind-the-wheel time in such a manner as to distinguish between the
two. She stated, "I'd either put classroom or I'd just put training." Horton was due for
renewal in 2007. In March 2007, Parker informed her that the District only paid for classroom
time.
Bus Driver Joey Quintana (Quintana) spent time with the District trainer in a bus and
was compensated for the time. He did not claim it as extra-duty time because he completed the
training during his regular hours.
2. 	Bargaining Efforts
In June 2002, the parties were renegotiating the language of Article 14 ("Training and
Tools"). Section 14.1 of the parties' 2000-2003 agreement provided that the District could "in
its sole discretion, authorize or assign a bargaining unit employee or employees to attend in-
service training," and that such attendance will be without loss of compensation. The
Association proposed to include language requiring the District to provide the physical
examination for the driver's license.
According to the contemporaneous bargaining notes taken by Gaffney on June 24,
2002, the District's bargaining chair prefaced the District's response to the proposal on
physicals by asking Parker to describe the District's then-current practice. Parker responded
that the District provided new hires with assistance "to get certified." For "ongoing"
requirements, specifically the "SP AB certification," the District provided 10 hours of
14

classroom training as well as use of a District bus for licensing purposes. (See Ed. Code,
§ 39830.1; Yeh. Code,§ 546.) Parker added that the District did not pay for "time to brush
up."
Taggart responded that the Association wanted to change the contract to reflect all
"mandated hours" as opposed to the "ten hours." Mindiola asserted that the District was
required to pay for the Class B special certification as well as the SP AB certification. A
person with the initials "AR," not specifically identified by Gaffney (but probably Robinson),
then asserted that the District had been paying for behind-the-wheel training "plus l 0 hours
driver training on time sheet - working [with the] driver trainer." "AR" notes that different
CHP examiners "want different things." Whitlinger responded that she would verify if this
was a uniform practice in the District. The remaining exchanges indicate that the Association
wanted to make the practice explicit and uniform, while the District was interested in agreeing
only to what was required for the job.
3. 	The District's Practice Regarding Compensation for Behind-the-Wheel Training
Robinson confirmed that the practice of paying for behind-the-wheel training time was
discussed in the 2002 negotiations. He recalled that a soft agreement to grant four hours for
such time was reached, but the District withdrew from that, asserting that the Association had
not sunshined the matter. The District claimed that since the law did not require District
coverage for behind-the-wheel training, it was not interested in providing compensation for it
through the agreement.
Parker confirmed this, testifying that the Education Code only requires 10 hours of
classroom time for renewals. He claimed the District's policy was not to compensate for
behind-the-wheel time. If drivers had been paid for behind-the-wheel time in the past, it was
not the result of any conscious decision to do so. Parker also asserted that the timesheets were
15

reviewed during the negotiations, and they failed to demonstrate that the time was clearly
designated as behind-the-wheel time. 10
Cervantes' testimony, however, was not entirely consistent with Parker. Cervantes, a
former driver herself, signed the timesheets. She agreed that behind-the-wheel training was
compensated at the time of initial application and denied that she received compensation for
subsequent renewals. In addition, she acknowledged that if the CHP trainer directed the
training for renewal purposes, such time would be compensated.
Cervantes testified that she was unaware whether the department had a practice of
compensating the training time prior to her assuming the position of manager. However, when
she became the manager, it was her policy to compensate classroom time only. She also
testified that when the matter came to her attention, she consulted with Parker. Parker asked
what training was required, and she answered only classroom training.
D. 	Bus Mechanic Duties
Danny Pizan (Pizan) held the position of lead vehicle equipment mechanic in the
transportation department until approximately 2001. His duties included reviewing the bus
drivers' daily reports and assessing their notations of mechanical failures. 	From these
reports -- which amount to approximately 60 per day -- and his own diagnoses of the problem,
Pizan would determine the mechanic to whom the work should be assigned. Pizan would
prioritize the repairs and prepare work orders for the mechanics. He would then assign the
work orders to mechanics based on their level and/or area of expertise. The mechanics would
perform the repairs and complete the paperwork to document the repairs made and parts
installed.
10 The timesheets themselves, however, were not admitted into evidence.
16

In 2001, Pizan was demoted to regular mechanic and the duties
of
reviewing and
assessing mechanical failures and assigning repair work were taken over by an incoming
transportation fleet supervisor.
11
In October 2003, the transportation fleet supervisor left the
District.
On October 14, 2003, a meeting
of
the mechanics was convened. Both Parker and
Cervates were present at the meeting. The mechanics were informed that the fleet supervisor
position would not be filled, and those duties would be reassigned to the mechanics as a group.
The work was redistributed by assigning each mechanic responsibility for the maintenance and
repair
of
a group
of
the District's 65 vehicles.
Currently, approximately
11
to
12
buses are assigned to each mechanic. Each
mechanic is required to maintain the maintenance logs for their buses. The log documents the
maintenance history
of
the bus required by the CHP for the recurring certification
of
the bus,
and records the dates and mileages at points when the inspections and servicings occur. The
CHP requires inspection and servicing at mileage intervals or time intervals, whichever occur
first. 	A bus that fails to have timely inspection or servicing must be removed from service.
Criminal sanctions may result from CHP inspections
of
the vehicle logs. The mechanics are
responsible for monitoring the logs so as to keep maintenance current and the vehicle in
service at all times. Also, the ordering
of
parts which had typically been handled by the fleet
supervisor was now the responsibility
of
each mechanic.
As an aid to the mechanics, Cervantes began preparing and distributing a "cheat sheet,"
listing the buses with their respective last-service dates, next-service dates, and mileage counts.
11 The job description of the fleet supervisor position identifies the functions oflong
term and short-term planning, preparing documentation, supervising personnel for the purpose
of ensuring efficient operation of the department, and overseeing fleet maintenance.
17

Cervantes testified that she was harshly criticized by a CHP inspector for not having a system,
whereby the driver bus reports were reviewed on a daily basis.
DISCUSSION
In its appeal, the District challenges the ALJ' s findings that the District unilaterally
changed policies within the scope of representation in violation of EER.ii,. when it:
( 1) transferred work from the special education health technician positions to other
classifications; (2) denied field-trip work to bus drivers by employing charter buses without
regard to the limitations previously in force; (3) denied bus drivers extra-duty compensation
for behind-the-wheel training needed for license renewals; and (4) assigned the duties of the
former fleet supervisor to bus mechanics.
The four findings appealed by the District involve alleged unlawful unilateral changes
in policies within the scope of representation. 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 breached or altered the parties' written agreement or past practice; (2) the
action was taken without giving the exclusive representative notice or an opportunity to
bargain over the change; (3) the action is not merely an isolated incident, but amounts to a
\,.;1.1	nha~n-=	1.lfS\..I ~+pol1'cy	VJ.. 	(1'"'	•'-'•, J....,n,;ng	1..iU.. V .l.l.l 	a general;,,,,c,,-l	.l 	.1L.,\,,,'U c,ff,,ct	V .l.'-' l, or V"Ont1'n	J.. 	.1..1.-Y..L.l.	
111 no-E, ,mn<>ct	A.i..J....l..1-J'1,..-1, 	on tPrm,;;,	'°'.1...1. ..u..,; ~.=...;._-.	<'lnrl 0...., ond1't1'ons	i.a.
of employment); and (4) the change in policy concerns a matter within the scope of
representation. (Walnut Valley Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196; San Francisco Unified
School District (2009) PERB Decision No. 2057.)
18

A. 	Health Technician Work
In general, a transfer of work from employees in one bargaining unit to employees in
another is negotiable. (Rialto Unified School District (1982) PERB Decision No. 209 (Rialto);
Solano County Community College District (1982) PERB Decision No. 219.) 	In addition,
under Desert Sands Unified School District (2001) PERB Decision No. 1468, the transfer of
work from one classification to another within the same bargaining unit is also negotiable.
(See also Desert Sands Unified School District (2004) PERB Decision No. 1682
(Desert Sands 11).)
Notwithstanding the general rule, not all transfers of work are negotiable. In Eureka
City School District (1985) PERB Decision No. 481 (Eureka), the Board set forth precedent for
analyzing the negotiability of transfers of work. 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." (Eureka.)
Based on our review of the record, we find the health technician classification shared
duties with both the nurse classification and the paraeducator classifications. Not surprisingly,
the duties of the health technician were split following the layoff, with some duties transferred
to positions within the bargaining unit and other duties to positions outside the bargaining unit.
Specifically, there was a transfer of toileting and other personal assistance duties from the
health technicians to the paraeducators, and a transfer of catheterizations and other invasive
procedures to school nurses outside the bargaining unit (and in 2003 to the LVNs within the
unit). Under Desert Sands 11 and Rialto, those transfers were negotiable unless the Eureka
exception applies.
19

The District argues that, pursuant to Eureka, it was not obligated to negotiate a transfer
of
work because the health technician position had overlapping duties with the other
classifications. The test set forth in Eureka, however, 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; Calistoga Joint Unified School District (1989) PERB Decision
No. 744.) Since we agree that the health technician classification shared duties with both the
nurse and the paraeducator classifications, the critical issue in this case is whether the health
technician duties "ceased" to be performed by health technicians.
As stated above, the District laid
off
all eight
of
its health technicians. In so doing, the
health technician duties "ceased" to be performed by health technicians. Accordingly, Eureka
does not apply in this case. Therefore, the District breached its duty to bargain by failing to
negotiate the transfer
of
work.
In reaching this conclusion, we acknowledge that there was sufficient health technician
work to reinstate one employee during the 2002-2003 school year as a special education health
technician following the layoff. However, the Board has held that a later reversal or rescission
of
a unilateral action or subsequent negotiation on the subject
of
a unilateral action does not
excuse a violation. (County
of
Sacramento (2008) PERB Decision No. 1943-M; Amador
Valley Joint Union High School District (1978) PERB Decision No. 74.) Thus, the subsequent
reinstatement of a health technician did not cure the District's breach
of
the duty to bargain or
otherwise revive the applicability of the Eureka exception in this case.
Based on the foregoing, we find the District violated EERA section 3543.S(c) when it
unilaterally transferred work from the special education health technician classification without
first affording the Association adequate notice or an opportunity to bargain over the change.
20

B. 	Use of Charter Buses
The Association contends that the District's November 2002 revision of BP/AR 3541.1,
without bargaining and over the union's objection, constituted a unilateral change in policy
which extended its use of charter buses for field-trips. 	The District counters that the policy
revision changed nothing and simply conformed the written policy to the language of the 2000
2003 agreement and existing practice.
I. 	Policy Regarding Use of Charter Buses Prior to 2002
At the time of the 2000 contract amendment, BP/AR 3541.1 expressed the general rule
that District school buses as defined by reference to Education Code section 39830 would be
used for transporting students. That general rule, however, was not absolute. Under
BPIAR 3541.1, the use of charter buses was permitted if it was determined that no District
vehicles and/or drivers could be used.
According to Gaffney, Section 12.2.2 of the 2000-2003 CBA authorized, for the first
time, the use of charter buses when it was determined such would be the "appropriate" vehicle
under the language of Section 12.2.2. The District, however, offered no bargaining history to
corroborate this interpretation of the language so as to permit charter buses without regard to
the governing board policy exceptions. We disagree.
We find that Section 12.2 of the 2000-2003 CBA governs the assignment of bus drivers
for either local trips or out-of-district trips. When read in conjunction with BP/AR 3541.1, it is
clear that the determination of the "appropriate" vehicle under Section 12.2.2. is first made by
reference to the District's buses and drivers. 	Said another way, under Section 12.2.2, the
District, in response to a request for transportation, first determines which District vehicle is
appropriate for the trip. In the event that there is either no available District driver or no
21

available District bus that can accommodate the transportation needs for the trip, the District
may then consider the use of a charter bus. 12
In our view, the fundamental problem with the District's interpretation of
Section 12.2.2 is that it ignores the requirement that District buses and drivers be used unless
none were available. Clearly, the board policy contemplated exhausting District vehicles
before considering charter buses. Therefore, we find the use of a charter bus when an
appropriate District bus and driver was available would constitute a variation of BPIAR 3 541.1
and require Board approval.
2. 	2002 Changes To BP/AR 3541.1
As indicated above, the District, in November 2002, adopted the following revision to
BP/AR 3541.1:
School buses shall be used to transport students to and from
school, and for other school activities that have approval of the
Governing Board and are permitted by lav1. Variation from this
policy requires approval of each exception by the Board.
In the Board's effort to maximize safety of students, the district
shall provide transportation in with school buses, school pupil
activity bus (SP AB) certified carriers, or other appropriate district
vehicles, as defined in Education Code 39830 for authorized field
trips and excursions in connection with instructional or school
related social, education educational, cultural, athletic or school
band activities. Variation from this policy requires approval of
each exception by the Superintendent or designee.
Clearly, this amendment constitutes a significant departure from the pre-2002 policy
regarding the District's use of buses. First, the deletion of the initial paragraph eliminated both
the general rule requiring the exhaustion of appropriate District vehicles and/or drivers prior to
12 The parties dispute whether the District's buses were equally capable of
accommodating large equipment loads. Notwithstanding this dispute, we find that the District
retained the discretion under the pre-2002 policy to consider whether the District's buses had
sufficient capacity for purposes of determining whether a District bus was "available."
22

the use
of
charter buses, and the rule requiring governing-board-approval
of
exceptions to the
policy. Next, in the second paragraph, the District added non-District-owned vehicles ("school
pupil activity bus (SPAB) certified carriers") to the list
of
"appropriate district vehicles" for the
purposes
of
field trip-vehicle assignments and also authorized the superintendent (as opposed
to the governing board) to approve exceptions to the policy.
The District claims that the amendment simply conformed the written policy to the
language
of
the 2000-2003 agreement and existing practice. However, these language changes
were clearly more than mere clean-up language. Accordingly, we find the amendment
constituted a change in policy regarding the District's assignment
of
buses for field-trips.
3.
	The Change In Policy Impacted A Matter Within The Scope
Of
Representation
EERA section 3543.2 imposes a duty upon public school employers to meet and confer
with exclusive representatives on matters within the scope
of
representation. EERA
section 3543.2 provides that the scope
of
representation is limited to matters relating to wages,
hours
of
employment, and other terms and conditions
of
employment.
In the instant case, the change in policy permitted the District to assign charter buses
without first considering the availability
of
District buses and drivers. As a result, the District
may have booked charter buses even
if
District buses and drivers were available. In so doing,
District drivers would have been deprived
of
work contemplated by both pre-2002 board
policy and the parties' 2000-2003 CBA. This reduction in work opportunities clearly
constitutes a reduction in vvages and is, therefore, a matter within the scope
of
representation.
4. 	The Association Did Not Waive Its Right To Bargain The Change In Policy
The District argues that the Association acquiesced in the practice of using charter
buses on a regular basis because it had become an existing practice known to the Association.
Acquiescence, however, involves the issue of waiver of the right to bargain through inaction,
23

assuming notice of a change in practice has been given. (See Santee Elementary School
District (2006) PERB Decision No. 1822 [adequate notice through proposed change to board
policy]; see also Diablo Water District (2003) PERB Decision No.1545-M.) Bargaining
waivers of any sort are not lightly inferred. (Amador Valley Joint Union High School District
(1978) PERB Decision No. 74.)
Though it is true that Association representatives noticed the increased level of charter
bus use, the existing policy allowed for deviation from the District vehicle-first policy where
the governing board had granted an exception or where no District buses and/or drivers were
available. The Association had no duty to ascertain whether these exceptions were
legitimately invoked; and the District offers no theory for constructive notice, establishing on
this basis that the Association would have known these restrictions were being ignored
pursuant to policy. Although the filed grievances demanded adherence to the prior practice,
and the Association offered to reach an accommodation expanding the exceptions to
graduation events and championship athletic events on a regular basis, the Association never
acquiesced in the practice of using charter buses under the District's expanded list of
exceptions.
5. 	The District Breached Its Duty To Bargain
The adoption of the revision to BP/AR 3 541.1 in 2002 constituted a change in policy
concerning a matter within the scope of representation. Moreover, because the District
adopted the revision over the Association's prntest, the District clearly failed to afford the
Association sufficient notice and opportunity to bargain the change. Accordingly, we find the
District violated EERA section 3543.5(c) when it amended BP/AR 3541.1 in November of
2002.
24

C. 	Behind-the-Wheel Training, Extra-Duty Compensation
The Association contends that the District unlawfully changed a policy when it stopped
paying for behind-the-wheel training time. The District, on the other hand, argues there is
neither a contractual obligation nor a binding past practice that obligated it to pay for behind
the-wheel training.
Based on our review of the 2000-2003 CBA, we find there was no contractual
obligation requiring the District to pay for behind-the-wheel training. Therefore, the issue to
be resolved in connection with this charge is whether the District had an unwritten past
practice of compensating bus drivers for such training. For a past practice to be binding, it
must be: ( 1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable
over a reasonable period of time as a fixed and established practice accepted by both parties.
(Riverside Sheriff's Assn. v. County of Riverside (2003) 106 Cal.App.4 th 1285, 1291.) PERB
has also described an enforceable past practice as one that is "regular and consistent" or
"historic and accepted." (Hacienda La Puente Unified School District (1997) PERB Decision
No. 1186, adopting proposed dee. of the ALJ, at p. 13.)
1. 	The Association Established a Past Practice
Although the District contends that there was, at best, an inconsistent or unauthorized
practice of paying for behind-the-wheel training, it failed to rebut the Association's witnesses
who consistently testified that they were compensated for the IO hours of training, in addition
to the 10 hours of classroom instruction required for the license renewal examination. The
District cites testimony of Gutierrez, Horton, and Robinson that Cervantes informed the drivers
that it did not pay for the behind-the-wheel time. But this testimony relates to Cervantes'
enforcement of the new policy of denying payment for such time. The District also contends
that the training claims could have been overlooked or misconstrued as claims for classroom
25

time. However, since these claims would have been for
10
hours
of
compensation in addition
to
10
hours
of
classroom time, we reject the District's assertion.
We find that the District had a history
of
compensating the drivers for the behind-the
wheel training. Consistent with the language
of
the contract, Cervantes agreed minimally that,
if
directed by the trainer to put in behind-the-wheel training time, the hours were compensated.
The drivers themselves, as opposed to Parker, were the more percipient witnesses on this point,
and they consistently testified that the claims were approved without exception until shortly
after the matter was brought to the District's attention in the 2002 negotiations. We, therefore,
conclude that the District compensated drivers for both
10
hours
of
behind-the-wheel time in
addition to 10 hours
of
classroom time.
Common sense also favors the Association's claims. Horton noted that the practice
driving that takes place is training prescribed by the District trainer. Because the District both
employs a CHP trainer and provides a bus for training purposes, it would have been aware
of
cases when the bus was being used for such purposes and whether the trainer had instructed
employees that they needed particular training to pass the test, as opposed to the driver seeking
training on his/her own volition. There was no evidence presented by the District that drivers
engaged in unsupervised, purely voluntary, behind-the-wheel training. Finally, since some
drivers like Quintana completed the training during their regular work schedule, those hours
would have been treated as compensable.
It
is not plausible that the District was unaware
of
its
own practice.
The evidence here clearly establishes that the compensation practice was "fixed and
established," "regular," "consistent," and "historic."
It
was "accepted" by the District and,
thus, "acted upon." The practice was not varied, vague, ambiguous, or inconsistent. By virtue
of it having been a regular and historic practice in this sense, it was "clearly enunciated."
26

The District argues that the practice of only compensating for mandatory training hours
was consistent with the contract language on training assignments. Section 14.1 gives the
District the right to "authorize or assign" employees to attend training but also states that such
time will be without loss of compensation. This simply begs the question whether training was
"authorized" or "assigned." Section 12.3.4, cited by the District, addresses payment for
mandatory training and in-service meetings but simply disavows any duty to compensate
training for which attendance is voluntary. As explained above, the evidence establishes that
behind-the-wheel training was accomplished with the knowledge of the District's trainer and
was not "voluntary."
2. 	The Association's Claim Was Timely Filed
The District contends that the charge was untimely because Parker informed the
Association during the negotiations in June 2002 of his understanding that the District's policy
was not to pay for behind-the-wheel training.
EERA section 3541.S(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
District (1996) PERB Decision No. 1177.) A charging party must file a charge when it has
actual or constructive notice of the respondent's clear intent to implement a unilateral change
in policy. (Regents of the University of California (1990) PERB Decision No. 826.) Thus, a
charging party that rests on its rights until actual implementation of the change bears the risk of
running afoul of the statute of limitations. (South Placer Fire Protection District (2008) PERB
Decision No. 1944-M.)
27

The issue regarding this charge is whether Parker's statements during negotiations
constituted notice of a clear intent to change policy. Here, Parker's discussion at the table
elicited Whitlinger's promise to verify Parker's description of the policy, but there is no
evidence to suggest she actually reported her findings to the Association. Moreover, Parker
testified that there was a review of timesheets; however, like the policy validation, there is no
claim these findings were reported to the Association. In addition, Cervantes noted that Parker
asked her what was required for license renewals, suggesting he was less than sure of policy
himself. We, therefore, find Parker's statements during negotiations did not constitute notice
of a clear intent to change policy.
The evidence establishes that the drivers were paid for the time through 2002, and that
the policy changed sometime after the negotiations had occurred but no earlier than August 26,
2002. We, therefore, find the charge timely filed.
D. 	Bus Mechanic Duties
The Association contends that there was a change in the policy as to how work was
assigned to bus mechanics, that the change was implemented over its objection, and that the
change impacted the employees' hours of work. The District, on the other hand, contends that
the only change imposed upon the mechanics was the method of assigning job duties.
According to the District, the duties themselves did not change because mechanics have always
been expected to diagnose mechanical problems. Moreover, since the assignment of duties
contemplated by a job description is a managerial prerogative, the District claims the change is
not negotiable.
The Board has generally recognized that the direction of the work force and the
determination of the work to be performed by employees is a managerial prerogative and not
subject to bargaining. (Davis Joint Unified School District (1984) PERB Decision No. 393
28

(Davis).) Consequently, it has been long held that the assignment of duties reasonably
comprehended within an existing job description is not an unfair labor practice, even if such
duties have never been performed. (Rio Hondo Community College District (1982) PERB
Decision No. 279.) Managerial prerogative, however, is not unlimited. The employer's
discretion to unilaterally assign tasks applies only to those tasks that are reasonably understood
to be among the duties of the classification as established in the job description. (Davis.)
Moreover, if an employer's decision regarding the management of its services and utilization
of its staff has an impact on the amount of work performed by represented employees, that
decision falls within the scope ofrepresentation and is subject to bargaining. (Ibid.)
In the instant case, the District assigned each mechanic a "fleet" of buses to maintain
and repair. In so doing, the District changed the manner in which the duties of the bus
mechanics were assigned. As a result, the mechanics likely took a more active role in
reviewing daily bus reports, diagnosing and prioritizing bus repairs, writing up work orders,
and ordering the parts for their assigned buses. The record suggests that the mechanics
performed some of these duties prior to the change. However, assuming arguendo, these
additional duties were new, they were clearly contemplated by the mechanics' job descriptions
and, therefore, not within the scope of representation.
The Association, on the other hand, claims that the change was negotiable because it
imposed additional work on the mechanics and impacted the nature of how they went about
performing their duties. We find, and the parties do not dispute, that the mechanics worked a
considerable amount of overtime. Thus, the question in this case is whether the change in the
method of assigning the duties to the bus mechanics contributed to this overtime.
Where, as here, it is claimed that a non-negotiable decision has an effect on work hours,
the Board has held that the charging party bears the burden of alleging facts establishing an
29

actual impact on employees' work hours. (Salinas Union High School District (2004) PERB
Decision No. 1639.) The impact must be "reasonably certain to occur and causally related to
the nonnegotiable decision." (Fremont Union High School District (1987) PERB Decision
No. 651.) PERB will not find an unlawful unilateral change when the alleged effect on terms
and conditions
of
employment is "indirect and speculative." (Lake Elsinore School District
(1987) PERB Decision No. 646.)
In the instant case, the parties acknowledge that due to a shortage
of
bus drivers,
mechanics who are qualified to drive school buses have been assigned by the District to drive
bus routes several hours per week. Pizan testified that he was driving buses two and a
half
to
three hours per day. Mechanic Kurt Jandt (Jandt) testified that he was driving afternoons as
well as some mornings. Jandt also testified that the number
of
hours he spends driving has
increased. Office Specialist Lora Lee (Lee) confirmed that the mechanics were working more
hours because their driving duties were increasing. According to Lee, the mechanics' overtime
would be minimal
if
they were not assigned driving duties.
Based on the foregoing, we find that the mechanics' overtime was primarily due to a
shortage
of
bus drivers. With regard to the change in the method
of
assigning duties, we find
the evidence is, at best, indirect and speculative that the change actually increased the amount
of
work performed by the mechanics and, therefore, is insufficient to support a finding
of
a
unilateral change. Accordingly, we find that the District did not violate its duty to bargain
when it assigned individual buses to the mechanics.
REMEDY
EERA section 3541.S(c) provides PERB with:
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
30

of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
In this case, it has been determined that the District unilaterally changed policies by:
(1) transferring work from the health technician positions to other classifications; (2) denying
field-trip work to bus drivers by employing charter buses without regard to the limitations
previously in force; and (3) denying bus drivers extra-duty compensation for behind-the-wheel
training needed for license renewals. The traditional remedy in such cases is to order the
District to rescind its changed policies and cease making unilateral changes in negotiable
matters from that point forward. 	Thus, it is appropriate to order the District to rescind its
decisions to implement said policy changes.
In addition, it is appropriate to order that the District be ordered to make all employees
affected by its unlawful actions whole. All such retroactive awards shall include interest at the
legal rate
of
seven (7) percent per annum. (Calexico Unified School District (1983) PERB
Decision No. 357.) This affirmative action is necessary to effectuate the purposes
of
EERA,
which imposes a duty on the public school employer to meet and negotiate in good faith and
refrain from taking unilateral action on matters within the scope ofrepresentation. (California
State Employees' Assn.
v.
Public Employment Relations Bd. ( 1996)
51
Cal.App.4th 923, 946.)
With regard to the make whole remedy for the loss
of
field-trip work, we find the
District's conduct likely resulted in a reduction
of
work for the bus drivers. The record,
however, does not contain sufficient evidence to establish actual lost wages by the impacted
employees. The Board encountered a similar situation in Rialto, wherein the Board determined
that the employer violated its duty to bargain when it unilaterally transferred work out
of
a
bargaining unit without first negotiating the transfer with the union. With regard to the
remedy, the Board in Rialto explained:
31

Although there was no evidence presented at the hearing proving
that any certificated employees suffered loss
of
wages, we note
that the Association requested PERB to reopen the record to take
new evidence regarding adverse impact
of
the unilateral action on
unit employees. Such evidence may be appropriately presented at
a compliance proceeding,
if
the Association wishes to prove that
the District's unilateral action resulted in loss
of
compensation to
unit employees.
Thereafter, the Board ordered the employer to make impacted employees whole for lost
compensation due to the unlawful transfer
of
work.
As indicated above, the record in the instant case fails to establish actual lost wages by
the impacted drivers. Notwithstanding this deficiency, we find the employees should not be
deprived
of
a remedy. Accordingly, it is appropriate for the Board to order the District to
compensate impacted drivers for actual wages lost as proven by the Association during
compliance proceedings.
13
However, given the complexity
of
establishing such damages, the
Board will stay its order for 60 days from the date
of
this decision to afford the parties an
opportunity to negotiate over a mutually acceptable remedy.
14
In the event the parties do not
reach such an agreement within 60 calendar days from the date
of
this decision, the District
13
It should be noted that the mere fact that a charter bus was used on any given trip is
insufficient, standing alone, to establish damages in this case. Rather, in order to prove actual
damages, it must be demonstrated that a charter bus was used, despite the fact that both a
District driver and an appropriate District-owned bus was available. Therefore, evidence
of
the
unavailability
of
either drivers or vehicles is relevant to the calculation
of
damages. For
instance, the record contains evidence that, due to a shortage
of
drivers, the District rarely had
drivers available for field trips immediately before or after school because the drivers were
performing their normal bus routes and were, therefore, not otherwise available for field trip
assignments. In addition, the record contains evidence that certain District buses were either
unavailable due to repair/maintenance issues or not appropriate due to a lack
of
storage
capacity to accommodate certain trips. Because they go directly to the issue of bus and/or
driver availability, we find these facts (and any other facts regarding unavailability) relevant to
the computation
of
damages in this case.
14
Sixty days should be sufficient to complete negotiations. If, however, additional time
is required by the parties, the stay may be extended by the Office of the General Counsel upon
a showing of good cause.
32

shall immediately notify the General Counsel
of
the Public Employment Relations Board, or
the General Counsel's designee, so that compliance proceedings may be initiated.
It
is also appropriate that the District be required to post a notice incorporating the
terms
of
this order. The notice should be signed by an authorized agent
of
the District
indicating that it will comply with the terms thereof. The notice shall not be reduced in size.
Posting
of
such notice will provide employees with notice that the District has acted in an
unlawful manner and is being required to cease and desist from this activity and will comply
with the order.
It
effectuates the purposes
of
the EERA that employees be informed
of
the
resolution
of
the controversy and the District's readiness to comply with the ordered remedy.
(Davis Unified School District (1980) PERB Decision No. 116.)
CONCLUSION
We find the District violated EERA section 3543.S(c) when it unilaterally transferred
work from the health technician classification without first affording the Association adequate
notice or an opportunity to bargain over the change. We further find the District violated
Section 3543.S(c) when it amended BP/AR 3541.1, changing the manner in which field-trip
buses were assigned. In addition, ,ve find the District violated EERA section 3543.S(c) when
it unilaterally stopped paying bus drivers for behind-the-wheel training. Last, we find that the
District did not violate its duty to bargain when it assigned the mechanics individual buses to
maintain and repair.
33

ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, and pursuant to Educational Employment Relations Act (EERA) section 3541.S(b), it is
hereby ordered that the Desert Sands Unified School District (District) and its representatives
shall:
A. 	CEASE AND DESIST FROM:
Unilaterally changing policies by: (1) transferring work from the special
education health technician positions to other classifications; (2) denying field-trip work to bus
drivers by employing charter buses without regard to the limitations previously in force; and
(3) denying bus drivers extra-duty compensation for behind-the-wheel training needed for
license renewals.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Rescind the policies of: (1) transferring work from the special education
health technician positions to other classifications; (2) denying field-trip work to bus drivers by
employing charter buses without regard to the limitations previously in force; and (3) denying
bus drivers extra-duty compensation for behind-the-wheel training needed for license
certificate renewals.
2. 	Restore bargaining unit employees to their status prior to the unilateral
changes and restore them and make them whole for lost benefits, monetary and otherwise, plus
interest at the rate of seven (7) percent per annum. With regard to the make whole remedy for
the loss of field-trip work, this order shall be stayed for 60 days to provide the parties an
opportunity to meet and negotiate over a mutually acceptable remedy. If, however, the parties
are unable to reach an agreement within 60 days, this order shall take effect. In such a case,
34

the District shall immediately notify the General Counsel of the Public Employment Relations
Board, or the General Counsel's designee, so that compliance proceedings may be initiated.
3. 	Within ten (10) workdays of service of a final decision in this matter,
post at all locations where notices to employees are customarily posted, copies of the Notice
attached hereto as an appendix. The Notice must be signed by an authorized agent for the
District, indicating that the District will comply with the terms of this Order. Such posting
shall be maintained for a period of thirty (30) consecutive calendar days. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered by
any other material.
4. 	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 the Association.
Acting Chair Dowdin Calvillo and Member Neuwald joined in this Decision.
35

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-4491, California School Employees
Association and its Chapter I 06 v. Desert Sands Unified School District, in which the 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 3540, et seq., when it unilaterally changed policies by: (1) transferring work from the
special education health technician positions to other classifications; (2) denying field-trip
work to bus drivers by employing charter buses without regard to the limitations previously in
force; and (3) denying bus drivers extra-duty compensation for behind-the-wheel training
needed for license renewals.
As a result of this conduct, the District has been ordered to post this Notice and will:
A. 	CEASE AND DESIST FROM:
Unilaterally changing policies by: (1) transferring work from the special
education health technician positions to other classifications; (2) denying field-trip work to bus
drivers by employing charter buses without regard to the limitations previously in force; and
(3) denying bus drivers extra-duty compensation for behind-the-wheel training needed for
license renewals.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Rescind the policies of: (1) transferring work from the special education
health technician positions to other classifications; (2) denying field-trip work to bus drivers by
employing charter buses without regard to the limitations previously in force; and (3) denying
bus drivers extra-duty compensation for behind-the-wheel training needed for license renewals.
2. 	Restore bargaining unit employees to their status prior to the unilateral
changes and restore them and make them whole for lost benefits, monetary and otherwise, plus
interest at the rate of seven (7) percent per annum. With regard to the make whole remedy for
the loss of field-trip work, this order shall be stayed for 60 days to provide the parties an
opportunity to meet and negotiate over a mutually acceptable remedy. If, however, the parties

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cannot reach an agreement within 60 days, this order shall take effect. In such a case, the
District shall immediately notify the General Counsel of the Public Employment Relations
Board, or the General Counsel's designee so that compliance proceedings may be initiated.
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, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.
2