Folsom-Cordova Unified School District (PERB 1712E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 528,

Charging Party, Case No. SA-CE-2132-E
V.

PERB Decision No. 1712

FOLSOM-CORDOVA UNIFIED SCHOOL
DISTRICT, November 23, 2004

Respondent.

FOLSOM-CORDOVA UNIFIED SCHOOL
DISTRICT,

Charging Party, Case No. SA-CO-472-E
Vv.

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 528,

Respondent.

Appearances: California School Employees Association by David J. Dolloff, Attorney, for
California School Employees Association & its Chapter 528; Atkinson, Andelson, Loya, Ruud
& Romo by James Scot Yarnell, Attorney, for Folsom-Cordova Unified School District.
Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION

NEIMA, Member: These consolidated cases come before the Public Employment
Relations (Board) on exceptions filed by the Folsom-Cordova Unified School District
(District) and cross-exceptions filed by the California School Employees Association & its

Chapter 528 (CSEA) to the proposed decision (attached) of the administrative law judge (ALJ).

The underlying issue in this matter involves the District’s proposal to contract out

transportation services to Laidlaw Transportation Services (Laidlaw). CSEA alleged that the
District made a unilateral decision to contract out to Laidlaw prior to the completion of
bargaining. The District counters that CSEA engaged in surface bargaining, thereby waiving
its rights to bargain over the contracting out issue.
In Case No. SA-CE-2132-E, the ALJ found that the District made a decision to
unilaterally contract out prior to exhausting negotiations, thereby violating the Educational
Employment Relations Act (EERA)1.
In Case No. SA-CO-472-E, the ALJ found that CSEA did not engage in surface
bargaining and dismissed that complaint. Both parties filed exceptions.
The Board has reviewed the entire record in this matter, including the ALJ's proposed
decision, the District's exceptions, and CSEA's response and cross-exceptions.2 The Board
finds the ALJ' s findings of fact and conclusions of law to be free of prejudicial error and
adopts them as the decision of the Board itself.
ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in this
case, it is found that the Folsom-Cordova Unified School District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.S(a), (b) and
(c). The District violated EERA on December 30, 2002, by entering into a contract with
Laidlaw Transportation Services (Laidlaw) to provide transportation services for District
students. The District took this action prior to completion of the impasse procedures set out in
EERA. By changing the past practice regarding transportation without first completing
1EERA is codified at Government Code section 3540, et seq.
2The District's motion to exclude CSEA's cross-exceptions on the grounds of
untimeliness is denied.
2

negotiations with the California School Employees Association & its Chapter 528 (CSEA), the
District failed to meet and negotiate in good faith in violation of EERA section 3543.5(c).
Because these actions had the additional effect of interfering with the right of CSEA to
represent its members, the failure to meet and confer in good faith also violated EERA
section 3543.5(b) and the right of employees to be represented by CSEA, the District's actions
also interfered with employee rights in violation of EERA section 3543.5(a).
The complaint in unfair practice Case No. SA-C0-472-E and companion unfair practice
charge filed against CSEA is hereby DISMISSED.
Pursuant to EERA section 3541.5(c), it hereby is ORDERED that the District and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Entering into a contract with Laidlaw, prior to the completion of impasse
resolution procedures, to provide transportation services for District students.
2. 	Interfering with the right of CSEA to represent its members.
3. 	Interfering with the right of individual employees to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Effective immediately upon service of a final decision in this matter,
cancel the contract with Laidlaw to provide transportation services for District students.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to members of the certificated
employee bargaining unit customarily are posted, copies of the Notice attached hereto as an
Appendix. The Notice must be signed by an authorized agent of the District, indicating that
3

the District will comply with the terms of this Order. Such posting shall be maintained for a
period of thirty (30) consecutive workdays. Reasonable steps shall be taken to ensure that the
Notice is not reduced in size, altered, defaced or covered with any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel's designee. The District shall provide reports, in writing, as directed by the General
Counsel or his/her designee. All reports regarding compliance with this Order shall be
concurrently served on CSEA.
Chairman Duncan and Member Whitehead joined in this Decision.
4

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. SA-CE-2132-E, California School
Employees Association & its Chapter 528 v. Folsom-Cordova Unified School District, in which
all parties had the right to participate, it has been found that the Folsom-Cordova Unified School
District (District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.S(a), (b) and (c). The District violated EERA on December 30, 2002, by entering into
a contract with Laidlaw Transportation Services (Laidlaw) to provide transportation services
for District students. The District took this action prior to the completion of the impasse
procedures set out in EERA. By changing the past practice regarding transportation without first
completing negotiations with the California School Employees Association & its Chapter 528
(CSEA), the District failed to meet and negotiate in good faith in violation of EERA
section 3543.5(c). Because these actions had the additional effect of interfering with the right
of CSEA to represent its members, the failure to meet and confer in good faith also violated EERA
section 3543.5(b) and the right of employees to be represented by CSEA, the District's actions also
interfered with employee rights in violation of EERA section 3543.5(a).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Entering into a contract with Laidlaw, prior to the completion of impasse
resolution procedures, to provide transportation services for District students.
2. 	Interfering with the right of CSEA to represent its members.
3. 	Interfering with the right of individual employees to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
Cancel the contract with Laidlaw to provide transportation services for District
students.
Dated: --------- FOLSOM-CORDOVA 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 & ITS CHAPTER 528,
Charging Party,
v.
FOLSOM-CORDOVA UNIFIED SCHOOL
DISTRICT,
Res ondent.
FOLSOM-CORDOVA UNIFIED SCHOOL
DISTRICT,
Charging Party,
v.
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 528,
Res ondent.
UNFAIR PRACTICE
CASE NO. SA-CE-2132-E
UNFAIR PRACTICE
CASE NO. SA-C0-472-E
PROPOSED DECISION
(8/20/03)
Appearances: David J. Dolloff, Staff Attorney, for California School Employees Association
and its Chapter 528; Atkinson, Andelson, Loya, Ruud & Romo by James Scot Yarnell,
Attorney, for Folsom-Cordova Unified School District.
Before Ronald E. Blubaugh, Administrative Law Judge.
PROCEDURAL HISTORY
In these consolidated cases a union representing school bus drivers and a public school
employer accuse each other of failing to negotiate in good faith during bargaining about the
subcontracting of transportation services to a private company. The union alleges that the
school employer subcontracted bargaining unit work prior to exhaustion of the impasse
procedures in a rush to beat an impending change in the law. The school employer contends

that the union negotiators were frequently unavailable, showed up to meetings unprepared and
otherwise attempted to stall negotiations as long as possible.
This action was commenced on October 15, 2002, when the California School
Employees Association and its Chapter 528 (CSEA or Union) filed an unfair practice charge
against the Folsom-Cordova Unified School District (District). The Union followed with a
first amended charge on December 17, 2002. On December 20, 2002, the general counsel of
the Public Employment Relations Board (PERB or Board) issued a complaint against the
District. The complaint alleges that the District failed to negotiate in good faith in violation of
the Educational Employment Relations Act (EERA or Act)1 when it unilaterally subcontracted
transportation services to a private company. By this act, the complaint alleges, the District
failed to negotiate in good faith and interfered with both employee and Union rights in
violation of section 3543.5(a), (b) and (c).2
1 The EERA is found at Government Code section 3540 et seq. Unless noted otherwise,
all statutory references will be to the Government Code.
2 In relevant part, section 3543.5 provides as follows:
It shall be unlawful for a public school employer to do any of the
following:
(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For
purposes of this subdivision, "employee" includes an applicant
for employment or reemployment.
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(c) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2

The District answered the complaint on January 9, 2003, denying that it had failed to
negotiate in good faith and asserting that the Union had delayed and otherwise obstructed
negotiations, thereby waiving its right to negotiate. The Union filed a second amended charge
on February 6, 2003. This charge was treated as a motion to amendlhe complaint and but
amendment of the complaint was denied by the undersigned on February 24, 2003.
The District filed an unfair practice charge against the Union on December 23, 2002,
and then withdrew a portion of the charge on January 30, 2003. On January 31, 2003, the
general counsel of the PERB followed with a complaint against the Union. The complaint
alleges that the Union failed to negotiate in good faith when Union negotiators refused to meet
during the month of September 2002 and during the last weeks of December. The complaint
alleges further that the Union's chief negotiator said on November 12, 2002, that the Union
had three votes on the District Board of Education and was "not sweating it" and that on the
following day, November 13, the Union refused to negotiate about transportation. By these
acts, the complaint alleges, the Union failed to negotiate in good faith in violation of section
3543.6(c).3 The Union answered the charge on February 21, 2003, denying both the factual
allegations and the legal conclusions.
On March 24, 2003, the Union and District charges were consolidated for hearing. A
hearing was conducted in Sacramento on May 13, 14 and 15, 2003. With the filing of briefs,
the dispute was submitted for decision on July 16, 2003.
3 In relevant part, section 3543.6 provides:
It shall be unlawful for an employee organization to:
(c) Refuse or fail to meet and negotiate in good faith with a
public school employer of any of the employees of which it is the
exclusive representative.
3

FINDINGS OF FACT
The District is a public school employer as defined in section 3540.l(k) of the EERA.
The Union is an employee organization as defined in section 3540.l(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 transportation employees. The Union also
represents a second unit of District employees composed of maintenance, custodial, clerical
and technical employees. Throughout the relevant period, the parties were engaged in
collective bargaining for successor agreements in both units. 	The parties ultimately reached
agreement on a successor contract that expires in July of 2005, but the record does not reflect
the date that agreement was reached.
In March of 2002,4 the District identified a need to make a reduction of$4 million in its
budget. District administrators charged each department with responsibility for proposing a
way to cut their operational costs by 15 percent. For the transportation department, this
amounted to a cut of $430,000. 	CSEA was alerted by discussion at a school board meeting on
April 18 to the possibility that the District might consider contracting out transportation
services as a means to reduce the budget. On May 1, CSEA Labor Relations Representative
Diana Criddle wrote to the District superintendent setting forth a demand to bargain "the
decision and effects of any decision to contract out bargaining unit work." The District did not
respond to Ms. Criddle's letter for more than six weeks.
On June 17, District Director of Classified Personnel Mindi F. Nunes replied that the
District was interested in entering negotiations with CSEA about the subjectof contracting out
transportation. In her letter, Ms. Nunes stated that "contracting out of transportation services
4 Unless otherwise indicated, all subsequent dates will be to the year 2002.
4

has been determined to be a potential cost-saving measure." She also stated that in order to
determine whether there would be cost savings for contracting out transportation, the District
would issue a Request for Proposal (RFP) from companies that might wish to supply
transportation services for District students. She enclosed a draft of the RFP and invited
Ms. Criddle to provide input by July 12. She also assured that the District would take no
action "on any data received through the RFP process until the conclusion of negotiations with
CSEA." Ms. Nunes proposed that the parties meet on August 9, 15 and 29. Ms. Nunes
testified that she did not propose any meeting dates in July because it is hard to get people
together during that month.
The plan to issue an RFP drew a July 3 letter from Ms. Criddle in which she demanded
to bargain about the issuance of the RFP. She also expressed a concern that the District was
reverting to adversarial bargaining rather than the interest-based bargaining that the parties had
employed in the prior three years. She said it would be counter-productive to return to
adversarial bargaining and urged that the parties employ the interest-based process during
bargaining about contracting out of transportation. Ms. Criddle agreed to meet with the
District on August 15 and 29.
In the years they have been conducting interest-based bargaining, CSEA and the
District have developed fairly extensive ground rules. Neither team has a chief spokesperson.
Instead, they have a facilitator and a recorder. When they begin a round of bargaining, each
side tells a story about the problem that side wants to solve in negotiations. They identify a
question that has to be answered and each side lists the interests it wants to protect in resolving
the problem. All participants from both sides list options which are recorded on a flip chart.
The options are discussed and either accepted or rejected by consensus. Proposals that are
neither accepted nor rejected are placed in the "parking lot" where they remain until one side
5

wishes to return to them. It is also a ground rule that tentative agreements are to be signed by
all representatives of both sides. The parties also have a practice called "elephants on the
table" under which either side can raise any issue it wants for a full discussionin order to clear
the air.
The parties held their first negotiating session about contracting out transportation on
August 15. The bargaining did not get off to a smooth start. 	CSEA opened the meeting with a
statement that it had to throw some elephants on the table. Ms. Criddle then complained that
CSEA first learned about some layoffs of classified employees the prior spring when the issue
came up at a meeting of the school board. Ms. Nunes challenged the statement that CSEA did
not know about the layoffs and provided the CSEA team with copiesof minutes from prior
negotiating sessions where the layoffs were discussed. 	There followed a debate about the
financial condition of the District and a CSEA information request about the operation,
revenue and expenditures of the District transportation department. By the time the meeting
was adjourned neither side had told its story and there had been no brainstorming or
presentation of ideas for how to deal with a reduction in transportation costs.
The second negotiating session took place on August 29. At the start of the meeting,
Ms. Nunes provided to CSEA a stack of materials in response to CSEA's information request
made at the previous meeting. District Chief Financial Officer Debbie Bettencourt made a
lengthy presentation about the District budget. The District then told its "story" about the
negotiations which was to reduce the transportation budget by $500,000. 	Some participants
offered options in a first brainstorming session. Ms. Nunes complained about what she
perceived as CSEA's lack of readiness for negotiations. 	She asserted that after two days there
had been no participation from CSEA.
6

At the end of the August 29 meeting, Ms. Nunes and Ms. Criddle opened their palm
pilots and Ms. Criddle stated that she could not meet until October. The first day in October
that both had available was October 18. Ms. Criddle testified that she has 10 CSEA chapters to
service over a geographical area that extends from Folsom to South Lake Tahoe. She said
September is her busiest month of the year because of the start of school. In addition, she
testified, CSEA conducted mandatory staff training from September 23 through 27, making
one week of the month unavailable.
Ms. Nunes testified that after the meeting of August 29, District administrators
concluded that CSEA was not serious about negotiating cost savings for transportation.
Therefore, Ms.Nunes testified, "[w ]e decided we needed to look at the option of contracting
out." At that point, she said, the District did not know whether contracting out actually would
save money and so District management decided to go forward with the RFP. The District
published advertisements for the RFP on September 22 and 29. 	On October 8, the District held
a pre-bid conference with potential bidders. Ms. Criddle and Debbie Jeffrey, president of
CSEA chapter 528, attended the pre-bid conference.
All participants agreed that the meeting of October 18 went much better. At the start,
Ms. Jeffrey stated that CSEA wanted to begin the transportation negotiations with a clean slate.
Patti Abdo, a CSEA team member employed in the transportation department, presented
CSEA's "story" to begin the interest-based negotiations. The Union's story was that the
District had put out an RFP to obtain information on contracting out but the Union does not
want transportation contracted out. The participants then identified and discussed 26 options
for cutting transportation costs. Ms. Nunes testified that she felt frustrated that they had started
over but at the end of the session she "was glad that they were finally willing to participate"
7

which, she said, "probably outweighed any frustration." She said she "felt very positive about
the progress being made" and "it looked like we were on the right track."
At the end of the meeting, there was a discussion about future negotiations sessions for
transportation. The minutes reflect that transportation negotiations were scheduled for
November 13, December 5 and December 10. The November 13 date previously had been
scheduled for negotiations in the re-opener on the comprehensive contract, not for
transportation. However, Ms. Nunes testified, there was an agreement to use that
already-scheduled date for transportation.
The bids from transportation contractors were opened on November 12. There were
two bidders, the lowest bid coming from Laidlaw Education Services. District administrators
concluded that the potential savings from the Laidlaw bid would be $750,000 a year, although
$250,000 of this amount would be from Laidlaw's use of District-owned school busses.
CSEA Chapter President Jeffrey attended the bid opening. According to
Ms. Bettencourt, at the bid opening Ms. Jeffrey leaned over to District Transportation Director
Darren Salo and said, "[W]e don't have to sweat this. We've got three votes on the board."
Ms. Bettencourt said she understood the reference to be to a recent school board election after
which two new members joined the five-member board. Ms. Nunes testified that she had been
out of the room during this conversation but when she returned, Mr. Salo predicted that she
would not get anywhere at negotiations the following day, quoting Ms. Jeffrey's comment.
Ms. Jeffrey testified that one of the bidders, who was sitting across from her, asked her
how it worked out with the new school board. She said the bidder was facing toward Mr. Salo
and herself. She said she replied that "we do have three board members potentially against
contracting out."
8

At the start of the negotiating session on November 13, District team members began
putting up the flip charts and other paperwork that were used in bargaining about
transportation. The CSEA team took a brief caucus and when they returned, Ms. Jeffrey told
District negotiators that CSEA had expected the negotiating session to be about the re-opener
of the comprehensive contract and CSEA was not prepared to negotiate about transportation.
Ms. Jeffrey testified that she had brought her negotiating folder for comprehensive negotiations
as had other members of the team. Ms. Criddle testified that she also was ready to bargain
about the comprehensive contract and the first she knew the District wanted to talk about
transportation was when she saw District negotiators putting up the transportation paperwork.
Ms. Nunes testified that she reminded the CSEA team about the agreement at the end of
the last negotiating session to devote the November 13 meeting to transportation. She
acknowledged, however, that Ms. Criddle may not have been present at the end of the meeting
when the change was made. Ms. Nunes testified that she was not able to negotiate about the
re-opener of the comprehensive contract because she had not brought those materials. She said
she was frustrated by CSEA's refusal to negotiate about transportation and concluded that the
process had stopped again. Nevertheless, the meeting continued for about an hour and 45
minutes during which time Marsha Wilson, of the District special education office, explained
the rules pertaining to special education and transportation of special education students.
The parties next met on December 5. They generated and discussed some additional
options and discussed the state budget and potential cuts that would affect the public schools.
For the first time, the parties also discussed an across-the-board $1 an hour salary cut for
transportation employees. Ms. Nunes put the value of such a reduction at $79,000 a year.
Although a salary cut was discussed, there was no agreement that it should take place.
9

The parties met again on December 10. More options were raised and discussed. At
the end of the meeting, CSEA and the District had agreed upon transportation reductions that
totaled approximately $228,000. No salary reduction was included in this amount. Ms. Nunes
told the CSEA team that a small salary reduction would go "a long way with the board in
indicating their seriousness in actually negotiating contract language changes," but according
to Ms. Nunes, Ms. Criddle replied that CSEA was not interested in discussing a salary cut.
According to the District-prepared minutes, CSEA negotiating team member Ms. Abdo
explained that with other decreases a salary cut would amount to a 4 percent decrease and that
employees could not afford to lose that much. Ms. Nunes told the CSEA team that she would
take the proposed $228,000 in cuts to the school board but did not believe that number would
be sufficient because it was too far from the $430,000 goal assigned by the District for
transportation cuts. The next negotiating session was scheduled for January 14, 2003.
Both sides were well aware during these negotiations of a significant change in state
law pertaining to subcontracting by school districts that would take effect on January 1, 2003.
Under the new law,5 school districts are required to meet certain conditions before they can
enter contracts for personal services. This change in law, both sides knew, would affect the
ability of the District to subcontract transportation services. The new statute would be
applicable only to those personal service contracts entered after January 1, 2003, and would
not pertain to contracts or the renewal of contracts entered prior to that date.6
District administrators acknowledged during cross-examination that the District wanted
the issue resolved under the law that existed prior to January 1, 2003. Ms. Nunes testified:
5 Chapter 894, Stats. 2002. This law added section 45103.1 to the Education Code.
When they did discuss the change, the parties referred to the law by its bill number, SB 1419.
6 See Education Code section 45103.l(d).
10

We weren't trying to rush ahead to contract for transportation
services. What we were trying to do was take advantage of what
[the] law was at that particular point in time. We knew how that
operated. We knew what the boundaries were. 	[if] 	The new law
was - had too many questions for us. Primarily, whether it even
pertained to transportation contracting out.
Ms. Bettencourt testified:
... we at least knew in December what the existing law was
regarding contracting out for transportation services. It was still a
gray area as to whether [SB] 1419 applied to transportation. 	But
at least for, yeah, for after January 1.
On December 12, the District school board voted unanimously to direct "staff to enter
into a contract with Laidlaw and bring that item back for action no later than the endof
December 31 of this year." While the school board was considering this action, Ms. Criddle
rose in the audience and began addressing the board. According to the minutesof the meeting,
the president of the school board recessed the meeting "due to incessant interruptions by CSEA
Labor Relations Representative Diana Criddle." The minutes state that the District
superintendent requested the Folsom Police Department to send an officer to restore order.
Ms Criddle testified that she was "totally shocked" when the school board directed that a
contract be entered by December 31. She said she believed that with all the effort they had put
she believed Ms. Nunes would convince the school board to put off a decision.
The morning after the school board meeting, December 13, Ms. Criddle called
Ms. Nunes to get the exact wording of the resolution adopted by the school board the previous
evening. The Union at that time was working on a request that the PERB obtain injunctive
relief against any action by the District to contract out transportation services. During the
course of that conversation, Ms. Nunes offered to meet and negotiate prior to a school board
meeting then scheduled for December 19 during which meeting the board was expected to take
final action on the contracting out issue. Ms. Criddle responded that she would be on vacation
11

and that they already had a meeting scheduled for January 14, 2003. Ms. Nunes testified that
she then told Ms. Criddle that she would call Ms. Jeffrey and make the same offer to negotiate.
Ms. Nunes quoted Ms. Criddle as telling her "I needed to do what I needed to do."
Ms. Criddle denied that Ms. Nunes told her that she would attempt to negotiate with the
chapter officers and said she would have been there.
Ms. Nunes then called Ms. Jeffrey. She said she told Ms. Jeffrey that she had offered
to negotiate with Ms. Criddle and she wanted to make the same offer to her. Ms. Nunes said
Ms. Jeffrey began to ask her many questions including how great a salary reduction would
be required to make the District's goal of a $430,000 reduction in transportation expenses.
Ms. Nunes said she told Ms. Jeffrey it would require a cut of $2.00 to $2.50 an hour.
Ms. Nunes said that a reduction of that amount would put drivers at a lower salary than what
Laidlaw would be paying and that was a concern. Ms. Nunes said Ms. Jeffrey then asked a
number of questions about the Laidlaw contract and what the District would require the
contractor to pay in salaries and benefits. Following that discussion, Ms. Nunes testified,
Ms. Jeffrey said she would contact her negotiating team. An hour later, Ms. Nunes said,
Ms. Jeffrey called back and asked if Ms. Nunes would meet with her and bus driver
representatives on the Union's negotiating team. She agreed.
On the morning of December 16, Ms. Nunes met with Ms. Jeffrey and Patti and Dyarl
Abdo, a married couple who were both District bus drivers. Ms. Criddle was not present. The
meeting was not conducted in accord with any of the ground rules to which the parties had
agreed for interest-based bargaining. Both Ms. Nunes and Ms. Jeffrey agree that the purpose
of the meeting was to be for Ms. Nunes to answer questions about the potential contract with
Laidlaw. However, Ms. Nunes testified, when they began to talk she realized "[t]hey were
interested in reaching settlement and asked me what it would take to do so." She said she
12

replied that it would take an across-the-board pay cut of $2.00 to $2.50. Ms. Nunes said they
asked if such a cut would stop the contracting out issue on the December 19 school board
agenda and she assured them it would.
Ms. Nunes said they then discussed the drafting of a tentative agreement and a special
meeting with transportation employees to go over the draft. Ms. Nunes testified that she got
the "impression" from Ms. Jeffrey and Ms. Abdo that CSEA state headquarters was opposed to
a salary reduction and chapter officers would have to go the local and state headquarters of
CSEA to get such a cut approved. 	At that point, Ms. Nunes testified, she believed she had a
tentative agreement with the chapter officers. She later typed up the agreement and faxed
copies to the CSEA members who had met with her. She acknowledged that the agreement
was not reached with the entire CSEA bargaining team and had not been signed by all
members of that team as required under the ground rules to which both sides had agreed. Ms.
Nunes said she received a call later that day from Mr. Abdo who said "he was having difficulty
getting support for the agreement and that there would be no need for a meeting." She said
Debbie Jeffrey called her the next day with the same message.
Ms. Jeffrey testified that the meeting on December 16 was not a negotiating session and
that neither she nor the Abdos ever considered it to be one. She said that during the meeting
Ms. Nunes told them about the salary and benefits that the contractor would be paying to
drivers if transportation was contracted out. She said what she had expected Ms. Nunes to fax
was the information she had provided to them. Ms. Jeffrey said that Ms. Abdo might have
asked a question about the amount of a pay cut that would be required to remove contracting
out from the school board's agenda. However, she said, she did not agree to such a cut and she
was offended when she received a tentative agreement from Ms. Nunes because she had not
made any tentative agreement with the District.
13

By letter of December 17, Ms. Nunes complained to Ms. Jeffrey about her "lack of
follow through" after the meeting at which they had reached a tentative agreement. She said
she had made three telephone calls to Ms. Jeffrey that had not been returned. She said that
since there were no other items to discuss the District was declaring impasse in the
negotiations with CSEA and would file the necessary paperwork with the PERB.
On December 19, the school board voted to authorize the superintendent to sign a
contract with Laidlaw. The motion considered to authorize contracting out as originally made
stated:
... Moved to authorize Superintendent to enter a contract for
transportation services with Laidlaw when he deems it necessary,
for cost containment.
The motion was amended to remove the words "for cost containment" and then adopted on a
vote of 3-2. The agenda materials prepared for the school board by the District administration
state that the approval of a contract with Laidlaw has a "[p ]otential savings" of $750,000.
District Superintendent Norman Siefkin signed the agreement with Laidlaw on
December 30. The contract contains provisions permitting termination for failure to perform
or because of any judicial or administrative determination against the District. The contract
also permitted a permissive termination without cost to the District by May 1, 2003. The
superintendent was not a witness at the hearing. However, regarding the timing of the
agreement, Ms. Bettencourt testified:
We knew what the existing law was in December, and it seemed
prudent to protect the District and sign a contract under the
existing law because we didn't know what effect [SB] 1419 could
have on the District.
The parties negotiated again on January 14, 2003. At that meeting, the CSEA team was
joined by Jack Metcalf, a senior labor relations representative for the Union. During the
negotiating session, Mr. Metcalf stated "unequivocally" that CSEA was willing to look at a
14

reduction in salaries. The parties met again on January 21, 2003. At that meeting, CSEA
agreed to accept a salary reduction of 1.6 percent for bus drivers. Together with other cuts
proposed that day and those agreed upon earlier, CSEA had agreed to transportation cost
reductions totaling $350,129. The District made no counteroffer. Ms. Nunes testified that the
District goal was $430,000 and nothing else would do.
Following the meeting of January 21, 2003, the PERB certified the dispute for impasse.
The mediation had not yet been completed as of the conclusion of the hearing in these
consolidated unfair practice cases.
District witnesses testified throughout the hearing that the District had made no
irrevocable commitment to the contracting out of transportation services. Ms. Nunes testified
that no irrevocable decision had been made as of the negotiating session of August 15.
Ms. Bettencourt testified that no irrevocable decision had been made as of October 8, the date
of the pre-bid conference. Ms. Bettencourt testified that no irrevocable decision had been
made as of December 19, when the staff prepared the materials for the school board meeting of
that night. Finally, Ms. Bettencourt testified that even as of May 14, 2003, the date she was a
witness at the hearing,
... Our preference is to reach a settlement with CSEA. And if
we're able to do that, then we will not contract out.
She said that as of the completion of the hearing, nothing had been done to implement the
contracting out of transportation services.
ISSUES
1. 	Did the District make a unilateral change by contracting out transportation and
thereby fail to meet and negotiate in good faith?
2. 	Did the Union waive its right to bargain by delays and other obstructionist conduct
during negotiations over contracting out?
15

3. 	Did the Union fail to meet and negotiate in good faith about the contracting outof
transportation by:
A. 	On or about August 29, 2002, refusing to schedule negotiating sessions
during the month of September?
B. 	On or about November 13, 2002, refusing to negotiate about transportation
when that subject previously had been scheduled for that date?
C. 	On December 10, 2002, refusing to discuss a District proposal to reduce
the salaries of bus drivers?
D. 	On or about December 13, 2002, refusing to meet and negotiate about
contracting out prior to the close of school for the holidays?
CONCLUSIONS OF LAW
If an employer makes a pre-impasse unilateral change in an established, negotiable
practice that employer violates its duty to meet and negotiate in good faith. (filRB v. Katz
(1962) 369 U.S. 736 [50 LRRM 2177].) Such unilateral changes are inherently destructive of
employee rights and are a failure per se of the duty to negotiate in good faith. 	(Davis Unified
School District, et al. (1980) PERB Decision No. 116; State of California (Department of
Transportation) (1983) PERB Decision No. 361-S.)
To prevail on a complaint of unilateral change, the exclusive representative must
establish by a preponderance of the evidence that (1) the employer breached or altered the
parties' written agreement or own established past practice; (2) such action was taken without
giving the exclusive representative notice or an opportunity to bargain over the change; (3) the
change was not merely an isolated breach of the contract, but amounts to a change of policy
(i.e., has a generalized effect or continuing impact upon the terms and conditions of
employment of bargaining unit members); and (4) the change in policy concerns a matter
16

within the scope of representation. (Grant Joint Union High School District (1982) PERB
Decision No. 196 (Grant); State of California (Department of Forestry and Fire Protection)
(1993) PERB Decision No. 999-S.)
The Board long ago held that the subject of contracting out of unit work was within the
scope ofrepresentation. (Archoe Union School District (1983) PERB Decision No. 360
(Archoe).) At first, the Board required no showing that in order for contracting out to be
negotiable, its purpose had to be to save labor costs. (See generally, Oakland Unified School
District (1983) PERB Decision No. 367.) Where the employer "sought to transfer existing
functions and duties from unit employees to persons ... not employees of the District," the
Board held that the decision to subcontract was not at the core of entrepreneurial control and
was therefore negotiable. (Archoe.)
This policy changed in State of California (Department of Personnel Administration)
(1987) PERB Decision No. 648-S (State of California). In State of California, the Board
adopted the rule from Otis Elevator Company, a wholly owned subsidiary of United
Technologies (1984) 269 NLRB 891 [116 LRRM 1075] and First National Maintenance
Corporation v. NLRB (1981) 452 U.S. 666 [107 LRRM 2705]. Under State of California
contracting out is not automatically negotiable. Rather, it becomes negotiable only when the
decision to contract out turns on labor costs. If the decision turns instead on a "change in the
nature and direction of a significant facet" of the employer's business, it is not negotiable.
This rule was reaffirmed in Redwoods Community College District (1997) PERB Decision
No. 1242.
However, the Board changed directions again in Lucia Mar Unified School District
(2001) PERB Decision No. 1440 (Lucia Mar), basically reaffirming the Archoe rule but not
displacing the rule from State of California. Thus under Lucia Mar contracting out is
17

negotiable in either of two circumstances: (1) where the employer simply replaces its
employees with those of a contractor to perform the same services under similar circumstances,
and (2) where the decision was motivated substantially by potential savings in labor costs.
Unlike the employer in Lucia Mar, the District had not put its subcontracting plan into
operation as of the conclusion of the hearing. Although the plan calls for the private contractor
to use District buses and hire many of the former District drivers, the record closed prior to
Laidlaw assuming control over student transportation within the District. It appears probable
that the employer will simply replace its employees with those of a contractor to perform the
same services under similar circumstances and thus meet the first test for negotiability under
Lucia Mar. However, since the plan was not yet in operation at the close of the hearing, I will
not attempt to determine negotiability under this standard but will, instead, apply the labor
costs standard.
It is abundantly clear from the evidence that cost savings is the single reason the
District entered a contract with Laidlaw to provide transportation service for District students.
The issue first arose in March of 2002 when the District was reviewing how to cut $4 million
from its budget. Transportation was assigned a $430,000 share of the District-wide cut. In a
letter to CSEA dated June 17, Ms. Nunes stated that "contracting out transportation services
has been determined to be a potential cost-saving measure." At the negotiating meeting of
August 29, the District "story" under the interest-based process was about the need to reduce
transportation costs by $500,000. The District issued an RFP on September 22 soliciting
proposals from transportation suppliers for the stated purpose of determining whether
contracting out would save money. Negotiations at virtually every meeting from August
through December dealt with the issue of cutting transportation costs. In its original version,
the motion to authorize contracting out explicitly stated its purpose as being "for cost
18

containment." Although those words were dropped from the motion prior to the vote, it is
clear that cost containment was the reason that the District entered into the contract with
Laidlaw. I conclude that the District's decision to contract out transportation services was not
to change the basic direction of how the District operated but to save money. The decision was
therefore a negotiable decision for the reasons set out in Lucia Mar.
The District argues that it has made no unilateral change that had a "generalized effect
or continuing impact upon the terms and conditions of employment of CSEA unit members."
The District argues that it has not implemented the proposed contract with Laidlaw and has
continued to pursue its bargaining obligations with CSEA. Although the superintendent signed
a contract with Laidlaw, the District continues, it has done nothing to implement "the proposed
contract with Laidlaw." The District observes that unit members are still driving District buses
and transportation continues to operate as before. The bargaining obligation arises only when
an employer has made a "firm decision" to make a change, something that has not occurred
here, the District concludes.
CSEA rejects this rationale, arguing that the District's failure to implement its contract
with Laidlaw does not detract from what obviously is a decision that already has been made.
Citing PERB cases, the Union observes that the six months statute of limitations under the
EERA begins to run on the date that the charging party has actual or constructive knowledgeof
respondent's clear intent to implement a unilateral change. Thus, CSEA continues, if it waited
until the District actually implemented the contracting out its unfair practice charge would be
time barred. CSEA argues that the District's failure to disclose to CSEA that it signed a
contract with Laidlaw in December "is powerful evidence that the District had no intentof
bargaining but was rather simply trying to get to impasse and beyond so that it could
implement the contract it had already executed."
19

In a unilateral change case, the statute of limitations begins to run on the date the
charging party has actual or constructive notice of the respondent's intend to implement a
change in policy providing that no subsequent action evinces a wavering of intent. (Regents of
the University of California (1990) PERB Decision No. 826-H.) Thus it is clear that had
CSEA waited to file its charge until the District implemented the contract with Laidlaw, the
charge would long since have been untimely.
Throughout the hearing, District witnesses repeatedly asserted that no firm decision to
contract out ever had been made. At every stage of the process, District witnesses testified,
there always was the possibility that an agreement would be reached with CSEA and no
contracting out would take place.
However, I find it impossible to square the District's claim that no firm decision ever
was made with the two school board resolutions on contracting out. The resolution of
December 12th"... direct[ed] staff to enter into a contract with Laidlaw and bring that item
back for action no later than the end of December 31 of this year." The resolution of
December 19th"... authorize[d] Superintendent to enter a contract for transportation services
with Laidlaw when he deems it necessary.... " Then, on December 30th, the District
superintendent signed a contract with Laidlaw. While the contract has several escape clauses,
it is clearly a binding agreement to contract out transportation services.
The Board long has rejected arguments that a unilateral change does not occur until it is
implemented. In Anaheim Union High School District (1982) PERB Decision No. 201
(Anaheim), the Board found an employer to have made a unilateral change by adopting a
resolution on June 29 to reduce salaries for certificated employees, even though it did not
immediately implement the change. The Board reached a similar result in a more recent case,
Clovis Unified School District (2002) PERB Decision No. 1504.
20

In Anaheim the Board held that the school district's delay in implementing a June 29
resolution did not alter its official character. Moreover, the Board continued, the school
district had made a curiously inconsistent argument. While arguing that it made no unilateral
change because it had not implemented the pay cut, the school district simultaneously argued
that it was legally obligated to act prior to July 1 or entirely forego for a year the possibility of
making a reduction in teacher pay. The Board found that the school employer could not, at the
same time, claim both to have acted, and not to have acted.
The contract with Laidlaw is not a "proposed contract" as the District describes it. It is
an actual contract that commits the District to tum its transportation services over to Laidlaw.
The contract is a legal binding document and I conclude that the District made a unilateral
change when it entered the contract, if indeed the school board's actions of December 12
and 19 were not sufficient in themselves to constitute a unilateral change. Like the employer
in Anaheim, the District here attempts to argue that it made no change while simultaneously
contending that it was compelled to enter the contract prior to January 1, 2002, because of
SB 1419. The contradictions inherent in this argument make it entirely unpersuasive.
The District next argues that it gave CSEA numerous opportunities to bargain both the
decision and the effects of contracting out for transportation services. Yet, the District argues,
CSEA declined to meet in September and was not prepared on November 13. Ms. Criddle
refused to meet again in December after the bargaining session of December 13, the District
asserts. Citing cases from the National Labor Relations Board (NLRB) the District argues that
it was CSEA's own conduct that forced the District to enter the agreement with Laidlaw.
CSEA delayed and rebuffed the District's efforts to promptly complete negotiations and
because of this, the District concludes, waived its right to complain about the change.
21

The Union, relying on the same NLRB cases, reaches an entirely different conclusion.
In those NLRB cases where a union was found to have waived its right to bargain, CSEA
continues, that union had refused to bargain over many months. Under the federal cases,
CSEA contends, a union will waive its right to bargain only where (1) in response to an
employer's diligent and earnest efforts the union avoids or delays bargaining and (2) the
employer's action is compelled by economic exigencies that compel prompt action. Here,
CSEA concludes, neither of these conditions is met. CSEA argues that it did negotiate with
the District over many months and made numerous concessions. 	Moreover, CSEA contends,
the District never advised it of any condition that required immediate action and, in fact CSEA
contends, there was no pressing condition.
PERB has never held that a union, once having made a timely demand to bargain, will
then waive its right to bargain if it causes delays in negotiations. As argued by both parties,
the NLRB has made such a finding, but only in very tightly limited circumstances. The rule
was first applied in AAA Motor Lines (1974) 215 NLRB 793 [88 LRRM 1253]. In that case,
the NLRB dismissed an unfair practice charge against an employer that made a unilateral
change in its health benefits. For 2 and Yi months prior to making the change, the employer
had warned the union that was withdrawing from a multi-employer bargaining association and
that a new contract would be necessary by July 1 to provide the continuance of certain benefits
for employees. Among the benefits which would expire on July 1 was medical coverage for
the company's employees. The employer made numerous offers to commence negotiations
and provided the union with specific contractual proposals. After promising at various times to
commence negotiations, the union always backed out. In dismissing the charge, the NLRB
wrote:
... Having refused to meet and bargain with the Respondent right
up to the date the contract terminated, the Union placed the
22

Respondent in the position of having to take immediate action to
avoid losses of certain benefits to its employees. In doing so, we
note that the Respondent instituted only those changes that had
already been proposed to the Union; and that only matters of
immediate concern to employees were instituted .... [7]
In addition to dismissing the charge against the employer, the Board also made a finding that
the union had failed to meet and negotiate in,good faith.8
The facts in the present case do not even approach those in which the NLRB has
excused an employer's unilateral change because of a union's obstructionist tactics in
bargaining. CSEA never refused to bargain about contracting out or about ways to reduce the
cost of operations in the transportation department. Indeed, CSEA participated in six
negotiating sessions about the subject of reductions in transportation operating costs. CSEA
made numerous proposals for cutting transportation costs and participated in lengthy
discussions on the subject. It is true that Ms. Criddle declared that she was unable to negotiate
in the month of September. There is no evidence, however, that Ms. Criddle's claim of
unavailability in September was not genuine. Moreover, I find it hard to understand the
District's complaint about no meetings in September when the District waited six weeks before
even responding to Ms. Criddle's May 1 request to bargain and then proposed no negotiating
dates for another six weeks. If the District viewed the need to bargain as being so urgent, one
would expect the District to have demonstrated more urgency in getting to the bargaining table.
7 215 NLRB 793, 794.
8 The NLRB has revisited this rule in several subsequent cases. A partial listing
includes: Mountain Excavating Co. (1979) 241 NLRB 414 [100 LRRM 1505], M&M
Building and Electrical Contractors (1982) 262 NLRB 1472 [110 LRRM 1512], R.A. Hatch
Company (1982) 263 NLRB 1221 [111LRRM1569], Stone Boat Yard (1982) 264 NLRB 981
[111LRRM1427], Gresham Transfer (1984) 272 NLRB 484 [117 LRRM 1299], Tampa Sheet
Metal Co. (1988) 288 NLRB 322 [129 LRRM 1188], Pinkston-Hollar Construction Services
(1990) 298 NLRB 1 [134 LRRM 1050], Master Window Cleaning, Inc., d/b/a Bottom Line
Enterprises (1991) 302 NLRB 373 [137 LRRM 1301].
23

Nor do I find any indication of waiver in Ms. Criddle's refusal to meet again in
December following the school board's December 12 direction to District staff to return a
contract with Laidlaw to the school board not later than December 31. By that time CSEA
had met with the District six times and had additional meetings scheduled in January.
Ms. Criddle's refusal to bargain during a scheduled vacation was not unreasonable. This is
especially the case when the contracting out under consideration by the District was not even
scheduled to occur until the following August.
Any waiver of the right to bargain will not be lightly inferred. 	(Oakland Unified
School District (1982) PERB Decision No. 236.) For an employer to show that an exclusive
representative has waived its right to negotiate, the employer must produce evidence of either
"clear and unmistakable" language (Amador Valley Joint Union High School District (1978)
PERB Decision No. 74) or demonstrative behavior waiving a reasonable opportunity to
bargain over a decision not already firmly made by the employer. I find nothing in CSEA's
conduct during bargaining over transportation to demonstrate a waiver under traditional PERB
analysis or under the NLRB cases that excuse an employer's unilateral change in the face of
obstructionist conduct by a union.
The District argues finally that its "proposed" contract with Laidlaw was justified by
operational necessity. An employer may make a unilateral change prior to the completion of
bargaining, the District argues, when the necessity results from (1) a sudden unforeseen
occurrence beyond the employer's control, (2) the timing precludes negotiations, and (3) there
is no alternative to the action taken. The District describes the passage of SB 1419 as "a
sudden unforeseen occurrence beyond the District's control." The District argues that it did
not learn until October that the Legislature had passed SB 1419. "The unforeseen uncertainties
of SB 1419 threatened the District's ability to contract for transportation services as a cost
24

savings alternative in the event it was not able to reach an agreement with CSEA." Because
the change in law was to go into effect on January 1, the District asserts, it did not have time to
complete negotiations under the old law. Therefore, the District concludes, it had no
alternative but to enter the contract with Laidlaw prior to the completion of bargaining with
CSEA.
CSEA characterizes the District's argument as an "assertion that the District had no
alternative but to violate the EERA so as to not be inconvenienced by SB 1419," an argument
CSEA describes as "simply ludicrous." Reviewing PERB cases on necessity, CSEA notes that
the defense has been unpersuasive when it previously was put before the Board. CSEA argues
that the District had other alternatives, including bargaining to impasse with CSEA and, absent
reaching agreement, subcontract pursuant to the provisions of SB 1419.
To defend on a claim of business necessity, an employer must show:
... an actual ... emergency which leaves no real alternative to
the action taken and allows no time for meaningful negotiations
before taking action.[9]
In a case analogous to the present action, the Board rejected a claim of business necessity
where an employer unilaterally increased the length of the school year in order to secure
additional state funding. 	Although the state had offered the additional funding as an incentive
to a longer school year, the school district was not compelled to seek it. Noting that the
legislative change was non-mandatory, the Board concluded that the school district could not
unilaterally increase the length of the work year beyond what it had contracted with the
exclusive representative in order to secure the additional funds. 	(Fountain Valley Elementary
School District (1987) PERB Decision No. 625.)
9 Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed
decision of administrative law judge at p. 20.
25

The change brought on by SB 1419 was plainly non-mandatory. The District is not
compelled to contract out its transportation services. Nor, if it chose ·to contract out, was it
compelled to sign a contract prior to the effective date of SB 1419. The District faced no true
emergency that required it to act prior to January 1, 2003. The timing, Ms. Bettencourt
testified, was because the District didn't know what effect SB 1419 would have. As CSEA
argues, the District wanted to contract out under the old law as a matter of convenience.
There was another alternative. The District could have completed negotiations with CSEA
and, if no agreement were reached, seek to contract out under the terms of the new law. The
District chose instead to rush into a contract with Laidlaw. Because the District was not faced
with a true emergency and because it had other alternatives, I reject the defense of business
necessity.
Accordingly, I find that by entering into a contract to subcontract transportation
services prior to the completion of impasse procedures the District failed to meet and negotiate
in good faith in violation of section 3543.5(c ). Because this conduct interfered with the
Union's right to represent its members, the District also violated section 3543.5(b). Because
the conduct had the further effect of interfering with the right of employees to be represented
by the Union and changed the working conditions of employees, the District also violated
section 3543.5(a).
The final question presented here is whether CSEA engaged in surface bargaining by
delaying negotiations and refusing to meet on certain dates. The Union is accused of four acts
which, in the theory of the complaint, constitute a failure to negotiate in good faith. 	None of
the specific allegations in the complaint would be sufficient to constitute a flat refusal to
bargain or other per se unfair practice. It is clear, therefore, that although the complaint does
not use the term "surface bargaining" it is surface bargaining of which the Union is accused.
26

It is the essence of surface bargaining that a party goes through the motions of
negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling
fabric to delay or prevent agreement. (Muroc Unified School District (1978) PERB Decision
No. 80.) Where there is an accusation of surface bargaining, PERB will resolve the question of
good faith by analyzing the totality of the accused party's conduct. The Board weighs the facts
to determine whether the conduct at issue "indicates an intent to subvert the negotiating
process or is merely a legitimate position adamantly maintained." (Oakland Unified School
District (1982) PERB Decision No. 275.)
The indicia of surface bargaining are many. Entering negotiations with a "take-it-or-
leave-it" attitude evidences a failure of the duty to bargain because it amounts to merely going
through the motions of negotiations. (General Electric Co. (1964) 150 NLRB 192, 194
[57 LRRM 1491], enf. (2nd Cir. 1969) 418 F.2d 736 [72 LRRM 2530].) Recalcitrance in the
scheduling of meetings is evidence of manipulation to delay and obstruct a timely agreement.
(Oakland Unified School District (1983) PERB Decision No. 326.) Dilatory and evasive
tactics including canceling meetings or failing to prepare for meetings is evidence of bad faith.
(Oakland Unified School District, supra, PERB Decision No. 326.) Conditioning agreement
on economic matters upon prior agreement on non-economic subjects is evidence of an
unwillingness to engage in a give-and-take. (State of California (Department of Personnel
Administration) (1998) PERB Decision No. 1249-S.)
Other factors that have been held to be indicia of surface bargaining include:
negotiator's lack of authority which delays and thwarts the bargaining process (Stockton
Unified School District (1980) PERB Decision No. 143); insistence on ground rules before
negotiating substantive issues (San Ysidro School District (1980) PERB Decision No. 134);
and reneging on tentative agreements the parties already have made (Charter Oak Unified
27

School District (1991) PERB Decision No. 873; Stockton Unified School District, supra,
PERB Decision No. 143; Placerville Union School District (1978) PERB Decision No. 69).
It is clear, however, that while a party may not merely go through the motions, it may
lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining
position is not necessarily refusal to bargain in good faith. 	(Oakland Unified School District,
supra, PERB Decision No. 275.) "The obligation of the employer to bargain in good faith does
not require the yielding of positions fairly maintained." (NLRB v. Herman Sausage Co. (5th
Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].)
The four acts of which the Union is accused are: 	(1) refusing to schedule negotiating
sessions during the month of September; (2) refusing to negotiate on November 13, 2002,
about transportation when that subject previously had been scheduled for that date; (3) refusing
on December 10, 2002, to discuss a District proposal to reduce the salaries of bus drivers;
(4) refusing to meet and negotiate during the month of December on any dates after
December 13 about contracting out. Although not alleged in the complaint, the District also
accuses the Union of reneging on a tentative agreement made on December 16 between
representatives of CSEA Chapter 528 and Ms. Nunes.
I find nothing untoward about Ms. Criddle's refusal to negotiate in the month of
September. She was required to attend a CSEA training session for one week of that month
and she credibly testified that September is her busiest month of the year. There is no evidence
that Ms. Criddle's claim of unavailability was anything other than genuine. At that point the
District had made no claim of urgency and its own behavior was inconsistent with a claim of
urgency.
I similarly find no evidence of surface bargaining in the refusal of Union negotiators to
discuss transportation at the negotiating session of November 13. The meeting of that date
28

originally had been scheduled to negotiate about the comprehensive agreement covering both
bargaining units. District witnesses contend that the purpose of the meeting was changed at
the conclusion of the prior negotiating session. However, Union witnesses testified that they
did not recall such an understanding and were unprepared to negotiate about transportation.
Ms. Nunes said she was unprepared to negotiate about the comprehensive contract and as a
result the negotiating session was terminated after a presentation about special education. I
find in this evidence proof of nothing more than a misunderstanding.
The allegation that the Union refused on December 10, 2002, to discuss a proposal to
reduce salaries of bus drivers was not proven. Ms. Nunes quotes Ms. Criddle as making such a
comment and the District-prepared minutes quote Ms. Criddle as saying CSEA would not
consider across the board salary reductions. But the minutes also quote Ms. Abdo, another
CSEA negotiator, as replying that employees could not afford to lose as much as proposed by
the District. At most, therefore, the record establishes that on December 10 the Union said it
was not interested in reducing the salaries of bus drivers, i.e., the Union rejected the proposal
and gave an explanation. A party is not required to yield its position on any topic of
negotiations and is entitled to maintain its position adamantly. (Oakland Unified School
District, supra, PERB Decision No. 275.) There is no evidence of surface bargaining in the
Union's rejection of a District proposal.
Finally, I find no evidence of surface bargaining in the conduct of the Union during the
last half of December 2002. The Union met with the District and negotiated about
transportation twice during the early weeks of December. Another meeting was scheduled in
January. There is no evidence of surface bargaining in the Union's refusal to schedule still
more meetings to satisfy a deadline imposed by the District.
29

Nor do I find that the Union reneged on a tentative agreement supposedly reached on
December 16 between Ms. Nunes and the three representatives of CSEA Chapter 528. This
meeting was conducted in a manner completely contrary to the ground rules which the parties
had used throughout their transportation negotiations to that date. The meeting was not
conducted as an interest-based negotiations. Only part of the Union's negotiating team was
present and Ms. Criddle, the principal spokesperson, was among the missing. Since only a part
of the team was present, the supposed tentative agreement was not signed by every member as
required in the ground rules. I find nothing in the record from which I could conclude that the
small group that met with Ms. Nunes on December 16 had any authority to negotiate, much
less to enter a tentative agreement. If there was wrong-doing in the meeting of December 16, it
was in the District's attempt to engage in bargaining with only a part of the CSEA team.
Finally, it is important to note that in a surface bargaining case the Board weighs the
totality of the conduct in the negotiations. Viewed in its totality, the Union's conduct here
shows an effort to reach an agreement with the District, perhaps not on the terms desired by the
District but an agreement nonetheless. 	By December 10, the Union had agreed to cuts that
would reduce the transportation budget by $228,000. By January 21, 2003, the Union had
agreed to cuts that would reduce the transportation budget by $350,000, including a salary
reduction of 1.6 percent for District bus drivers. Such concessions do not demonstrate that the
Union was merely going through the motions while attempting to delay or prevent agreement.
Accordingly, I find that the accusation of surface bargaining against the Union must be
dismissed.
REMEDY
The PERB in section 3541.5(c) is given:
... the power to issue a decision and order directing an offending
party to cease and desist from the unfair practice and to take such
30

affirmative action, including but not limited to the reinstatement
of employees with or without back pay, as will effectuate the
policies of this chapter.
The District has been found in violation of its duty to meet and negotiate in good faith
by entering into an agreement with Laidlaw Education Services to provide transportation for
District students. Although the parties have now completed the impasse procedures,10 these
proceedings were undertaken with the Union in a position of severe disadvantage. The District
already had signed the contract with Laidlaw prior even to the commencementof the impasse
procedures. This fact inevitably clouded the entire procedure. The only appropriate remedy,
therefore, is to direct the District to rescind the contract with Laidlaw. (Lucia Mar.) If
subsequent to rescinding the agreement with Laidlaw the District wishes to undertake impasse
procedures with the parties on an equal footing, it shall not be prohibited from doing so by this
decision.
It is appropriate also that the District be directed to cease and desist from failing to
meet and negotiate in good faith by subcontracting transportation services prior to the
completion of the impasse resolution procedures contained in the EERA. No award of back
pay or reinstatement is granted because there is no. evidence at this time that the District has
laid off any member of the bargaining unit represented by CSEA. If the District does in the
future lay off unit members in order to contract out bargaining unit work, CSEA is free to seek
an appropriate modification of the order in a compliance hearing.
It is further appropriate that the District be directed to post a notice incorporating the
terms of the order at all District schools where notices customarily are posted for members of
the bargaining unit represented by the Union. Posting of such a notice, signed by an
10 Pursuant to the District's request, I take notice of Factfinding Report and
Recommendations dated June 23, 2003, PERB Case No. SA-IM-2692-E.
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authorized agent of the District, also will provide employees with notice that the District has
acted in an unlawful manner, 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 this controversy and the District's readiness to comply with the ordered
remedy. 	(Placerville Union School District, supra, PERB Decision No. 69.)
As a final remedy, CSEA asks for attorney's fees and costs. Attorney's fees and costs
of the litigation are not appropriate "unless there is a showing that the respondent's unlawful
conduct has been repetitive and that its defenses are without arguable merit." (Modesto City
Schools and High School District (1985) PERB Decision No. 518.) There is no pattern of
repetitive findings of violations against the District and it cannot be said that the District's
defense was without arguable merit. Nor do I find evidence of the misrepresentation and
misconduct of which CSEA accuses the District. Accordingly, attorney's fees and other costs
of litigation are denied.
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record in the
case, it is found that the Folsom-Cordova Unified School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3543.5(c), (b) and
(a). The District violated the Act on December 30, 2002, by entering into a contract with
Laidlaw Transportation Services to provide transportation for District students. The District
took this action prior to completion of the impasse procedures set out in the Act. By changing
the past practice regarding transportation without first completing negotiations with the Union,
the District failed to meet and negotiate in good faith in violation of section 3543.5(c).
Because these actions had the additional effect of interfering with the right of the Union to
represent its members, the failure to meet and confer in good faith also violated section
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3543.5(b). Because these actions had the further effect of interfering with the right of unit
members to be represented by the Union and affected the working conditions of unit members,
the District's actions also interfered with employee rights in violation of section 3543.5(a).
The complaint in unfair practice case SA-C0-472-E and companion unfair practice
charge filed against the Union is hereby DISMISSED.
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORDERED that the
District and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Entering a contract with Laidlaw Transportation Services, prior to the
completion of impasse resolution procedures, to provide transportation for District students.
2. 	Interfering with the right of the Union to represent its members.
3. 	Interfering with the right of individual employees to participate in the
activities of an employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Effective immediately upon service of a final decision in this matter
cancel the contract with Laidlaw Transportation Services to provide transportation for District
students.
2. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to members of the classified employee bargaining unit
customarily are posted, copies of the Notice attached hereto as an Appendix. The Notice must
be signed by an authorized agent of the District, indicating that the District will comply with
the terms of this Order. Such posting shall be maintained for a period of thirty (30)
consecutive workdays. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced or covered with any other material.
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3. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with the Order to the Sacramento Regional Director of the Public
Employment Relations Board in accord with the director's instructions.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
Public Employment Relations Board (PERB or Board) itself within 20 days of service of this
Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 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.)
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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).)
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