Huntington Beach Union High School District (PERB 1525E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

DISTRICT EDUCATORS ASSOCIATION,
CTA/NEA,

Charging Party, Case No. LA-CE-4234-E

V. PERB Decision No. 1525

HUNTINGTON BEACH UNION HIGH SCHOOL | M@Y 14, 2003

DISTRICT,

Respondent.

Appearances: California Teachers Association by Rosalind D. Wolf, Attorney, for District
Educators Association, CTA/NEA; Rutan & Tucker by David C. Larsen, Attorney, for
Huntington Beach Union High School District.
Before Baker, Whitehead and Neima, Members.
DECISION

BAKER, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Huntington Beach Union High School District (District) to
an administrative law judge’s (ALJ) proposed decision (attached) which found that the District

violated section 3543.5(a), (b) and (c) of the Educational Employment Relations Act (EERA)'

by unilaterally modifying the hours of three new positions in an existing classification.

' EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. Section 3543.5 states, in
pertinent part:

It shall be unlawful for a public school employer to do any of the following:

(a) Impose or threaten to impose reprisals on employees, to
discriminate or threaten to discriminate against employees, or
otherwise to interfere with, restrain, or coerce employees because
of their exercise of rights guaranteed by this chapter. For

After reviewing the entire record in this case, including the proposed decision, the
District's exceptions2 and the response
of
the District Educators Association, CTA/NEA
(Association), the Board finds that the ALJ's findings
of
fact are free from prejudicial error and
adopts them as the decision
of
the Board itself. The Board declines to adopt the ALJ's
conclusions
of
law regarding whether the District's modification
of
the hours
of
employment
of
three new positions in an existing classification was within the scope
of
representation. The
Board will discuss this issue below. As for the ALJ's other conclusions
of
law, the Board finds
that they are free from prejudicial error and adopts them as the decision
of
the Board itself.
DISCUSSION
The issue before the Board is whether the District violated EERA
by
unilaterally
modifying the hours
of
employment
of
three new positions in an existing classification. The
Board affirms the ALJ's decision finding a violation
of
EERA. In doing so, the Board holds
that the hours
of
employment assigned to a position is a matter within the scope
of
representation regardless
of
whether the position is occupied or vacant. To the extent that the
Board's prior decisions in Arcata Elementary School District (1996) PERB Decision No. 1163
(Arcata), East Side Union High School District (1999) PERB Decision No. 1353 (East Side),
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's request for oral argument is denied. The record and briefs in this matter
adequately present the issues and positions of the parties.
2

Antelope Valley Union High School District (2000) PERB Decision No. 1402 (Antelope
Valley), hold otherwise, they are overruled.
There is no dispute that the District unilaterally modified the hours
of
three new
librarian positions in order to implement the District's decision to extend the hours
of
its
libraries. The ALJ' s decision found that the District failed to provide valid notice to the
Association
of
the changes. The ALJ also found that after the Association was notified
by
the
District
of
the changes, the Association was not required to demand to negotiate since the
changes had already occurred. Because the Board has adopted these findings
of
the ALJ, the
sole issue before the Board is whether the District's modification
of
hours was within the scope
ofrepresentation and thus subject to bargaining.
To determine the scope
of
representation, the Board begins with the language
of
EERA
section 3543.2(a), which states, in pertinent part:
The scope
of
representation shall be limited to matters relating to
wages, hours
of
employment, and other terms and conditions
of
employment.
Thus, the Legislature has expressly decreed that wages and hours
of
employment are matters
within the scope
of
representation. As for matters not expressly enumerated in EERA section
3543.2(a), PERB adheres to the test set forth in Anaheim Union High School District (1981)
PERB Decision No. 177 (Anaheim) to determine whether a particular subject is within the
scope ofrepresentation. Under Anaheim, a subject is within the scope ofrepresentation if:
(1) it is logically and reasonably related to hours, wages, or an enumerated term and condition
of
employment; (2) the subject is
of
such concern to management and employees that conflict
is likely to occur, and the mediatory influence
of
the collective negotiations is the appropriate
3

means ofresolving the conflict; and (3) the employer's obligation
to
negotiate would not
significantly abridge its freedom to exercise those managerial prerogatives (including matters
of
fundamental policy) essential to the achievement
of
its mission. (Anaheim, at
p.
3.)
Based on the language
of
EERA section 3543.2(a), PERB has long held that the general
subject
of
hours
of
employment is within the scope ofrepresentation. (Salinas Union High
School District (1983) PERB Decision No. 339.) "Hours
of
employment" includes not only
the total number
of
working hours, but what days
of
the week and what hours are to be worked.
(Saddleback Community College District (1984) PERB Decision No. 433.) It also includes
changes in an employee's shift. (Moreno Valley Unified School District (1995) PERB
Decision No. 1106.)
Over the years, the principles discussed above have generated little controversy as to
occupied positions. The same cannot be said for vacant positions. Indeed, the Board has
repeatedly attempted to clarify its jurisprudence regarding the negotiability
of
an employer's
decision to change the hours
of
a vacant position. (San Jacinto Unified School District (1994)
PERB Decision No. 1078 (San Jacinto); Cajon Valley Union School District (1995) PERB
Decision No. 1085 (Cajon); Arcata; East Side; Antelope Valley.)
In both San Jacinto and Cajon, the Board found an employer's change in the hours
of
a
vacant position to be within the scope ofrepresentation under the facts in those cases.3
However, in San Jacinto, one Board member, although concurring in the ultimate outcome,
dissented from the majority's holding that an employer's decision to change the hours
of
a
vacant position was a matter within the scope ofrepresentation. (San Jacinto, at p.
11
3 However, in Cajon, the Board ultimately dismissed the complaint because the
evidence established a past practice allowing the employer to make the changes.
4

(dissenting opinion of Member Caffrey).) According to the dissent, the Board had
"consistently held that a decision concerning the level of service to be provided is a
fundamental management prerogative which is not subject to negotiations." (San Jacinto, at
p. 10 (dissenting opinion of Member Caffrey).) The dissent argued that an employer's decision
to change the hours of a vacant position is the same as changing the level of service. Thus, the
dissent concluded that an employer's decision to change the hours of a vacant position should
not be a matter within the scope of representation.
Less than two years later, the dissenting member in San Jacinto authored the opinion in
Arcata, which implicitly adopted his dissenting arguments in San Jacinto. In Arcata, the Board
attempted to refine the rulings in San Jacinto and Cajon by setting forth a rule to govern when
an employer's decision to change the hours of a vacant position is within the scope of
representation. The Arcata rule holds that:
Such a decision which reflects a change in the nature, direction or
level of service falls within management's prerogative and is
outside the scope of representation. [Fn. omitted.] Conversely, a
decision to change the hours of a vacant position which is based
on labor cost considerations and does not reflect a change in the
nature, direction or level of service, is directly related to issues of
employee wages and hours and is within the scope of
representation. (Arcata, at p. 8.)
After thoroughly reviewing Arcata and its progeny, the Board concludes that the Arcata
rule suffers from fundamental flaws. 	One flaw is that the rule contains a condition that
swallows the rule itself. Specifically, the Arcata rule allows an employer to change the hours
of a vacant position where there is a change in the "level of service." However, Arcata and the
cases following it can be read to hold that a change in the "level of service" occurs whenever
there is a change in the hours. (East Side; San Jacinto, at p. 11 (dissenting opinion of Member
Caffrey).) The rule can then be read to allow an employer to change the hours of a position
5

whenever an employer so chooses, since changing the hours
of
a position constitutes a change
in the level
of
service. Such a reading aliows an employer to change the hours
of
any vacant
position under the guise
of
changing the "level
of
service." We do not believe the Board
intended such a result.
Indeed, the Board quickly recognized this possible interpretation
of
Arcata. In East
Side, the Board attempted to prevent the Arcata rule from being interpreted in such a way
by
clarifying that, although any change in the hours
of
a vacant position could be argued to be a
change in service:
This mere fact does not allow the employer, pursuant to Arcata,
unilaterally to change the hours
of
bargaining unit positions as
they become vacant. The Board's intent in Arcata was to permit
employers to adjust the hours
of
vacant positions unilaterally in
those circumstances in which legitimate changes in the nature,
direction or level
of
services have occurred, changes which are
not based primarily on wage and benefit cost considerations.
The Arcata rule was not intended, and will not be applied, to
grant carte blanche authority to employers to change the hours
of
vacant bargaining unit positions unilaterally. The employer may
not unilaterally convert a vacant full-time, full-benefit position to
multiple part-time, reduced-benefit positions at substantial labor
cost savings, and justify the action simply because the resulting
part-time positions will provide a changed level
of
service.
Similarly, the Arcata rule does not permit employers unilaterally
to reallocate labor cost resources by changing the hours
of
multiple bargaining unit positions as they become vacant, based
on the assertion that the nature
of
service delivery is being
changed. These employer actions are based primarily on labor
cost considerations, relate directly to the terms and conditions
of
employment
of
bargaining unit members and are negotiable.
(East Side, at p. 9-10.)
In East Side, the Board determined that the change in hours at issue in that case was motivated
by labor cost savings. On that basis, the Board held that the changes were within the scope of
bargaining.
6

The Board's latest discussion of Arcata occurred in Antelope Valley. There, the Board
found that a decision to replace a full-time position with two part-time positions was driven by
a change in the employer's nature and level of service, not by labor cost concerns. The Board
emphasized that the Arcata rule, as clarified in East Side, focused on when the changes in
hours represent a legitimate change in the nature, direction or level of service or whether the
decision is primarily driven by labor cost considerations. (Antelope Valley, at p. 10.)
Accordingly, the Arcata rule, as it now states, attempts to balance management's right to
dictate the nature, direction and level of service against the obligation to bargain matters that
affect wages (i.e., labor costs).
The Board has thoroughly reviewed Arcata and its progeny and reviewed the language
of BERA with special consideration to the public policy which it represents. As noted above,
the Board concludes that the Arcata rule is fundamentally flawed and must be overturned.
First, Arcata incorrectly assumes that an employer's right to dictate its nature, direction, and
level of service is contingent upon its ability to determine the hours of work in vacant
positions. In other words, Arcata assumes that if an employer were unable to change the hours
of vacant positions, the employer would be prevented from dictating its nature, direction, and
level of service. This assumption is not valid.
The Board does not dispute that, generally, the District may unilaterally determine to
expand the hours of its library. In a similar context, the Board has long held that a school
employer may generally set the length of the instructional day. However, the length of the
teachers' workday remains negotiable. (Imperial Unified School District (1990) PERB
Decision No. 825; Jefferson School District (1980) PERB Decision No. 133.) Similarly, the
District's ability to determine the hours of operation of its library must be distinguished from
7

its ability to determine the hours
of
work for library employees. The flaw in Arcata is that it
does not distinguish between the two, but assumes that the former is contingent upon the latter.
As already noted, the Board rejects this assumption.
Arcata's flaw is easily illustrated using the facts in this case. Here, the District desires
to extend its library hours from approximately 3:30 p.m. to 5:00 p.m. or later. The District
decided to implement this change
by
altering the hours
of
vacant librarian positions to cover
the extended hours. Thus, the new positions would generally start later in the day and extend
past 3:30 p.m. A fair reading
of
Arcata would allow the District to make such a change
without negotiating with the Association. This is because the change in library hours
represents a change in the level
of
service. The Arcata rule assumes that
if
the District is not
allowed to change the hours
of
vacant positions, it is prevented from changing the hours
of
the
library. However, in such situations there are normally many options available to the District
to implement its decision to expand its library hours. For example, the District can ask the
existing librarians to alter their schedules, or ask them to work longer hours and provide them
with a salary differential. Even
if
the District decides to hire new librarians, there are many
possible variations in their working hours. When will they start? Will they work until the
libraries close or will they work longer?
If
they worked longer, how much longer? These are
precisely the issues that EERA places within the scope
of
representation. More importantly,
requiring the District to negotiate these issues does not impinge upon its management
prerogative to set the hours
of
its libraries.
Second, as just noted, determining the exact hours
of
employment is precisely what
EERA makes negotiable. EERA section 3543.2(a), expressly provides that the "hours
of
employment" are within the scope of representation. Because the "hours of employment" are
8

an enumerated subject under EERA, it is neither necessary nor proper to conduct the Anaheim
test which balances the potential benefits
of
negotiating a particular item against the
employer's management prerogatives. Indeed, by expressly placing the "hours
of
employment" within the scope
of
representation, the Legislature has implicitly conducted the
balancing test in Anaheim and concluded that the benefits
of
negotiation outweigh any
infringement on management's prerogatives.
Because the Legislature has determined that the hours
of
employment are within the
scope
of
representation, this Board must thoroughly evaluate any decision that effectively
removes them from negotiations. After careful deliberation, the Board concludes that the
negotiability
of
the hours
of
employment should not hinge on whether a position happens to be
filled at any particular time. Indeed, Arcata and its progeny never articulate why vacant
positions should be treated differently from occupied ones. The Board finds no principled
distinction between the two.
Third, the Arcata rule is troublesome because its treats the hours
of
employment
differently from wages, even though both are enumerated subjects ofrepresentation. It is well
settled that changing the wages for a classification must be negotiated. (Cajon Valley Union
School District (1989) PERB Decision No. 766; Alum Rock Union Elementary School District
(1983) PERB Decision No. 322.) This is true irrespective
of
whether positions are occupied or
vacant. The Board sees no reason why hours
of
employment should be treated differently.
Finally, the Board believes that its decision to eliminate the Arcata rule represents
sound public policy and will effectuate the policies underlying EERA. EERA's central goal is
to "promote the improvement of personnel management and employer-employee relations
within the public school systems in the State of California
...
" (EERA sec. 3540.) To this
9

end, the Board believes that negotiating the hours
of
employment, regardless
of
whether a
position is occupied or vacant, will serve to reduce conflict and promote better employer-
employee relations.
The Board also emphasizes that its decision today does not affect an employer's right to
dictate its nature, direction, or level
of
service. The Board's holding is simply that an
employer must negotiate the hours
of
employment, regardless
of
whether a position is occupied
or vacant. 4 The Board also emphasizes that its holding does not mean that an employer is
prohibited from changing the hours
of
a vacant position. Too often, when changes are found to
be within the scope ofrepresentation, there is the mistaken belief that the changes are
prohibited. This is false. The Board's holding that the District's changes are negotiable does
not mean the District cannot enact them. It just means that the District must first negotiate the
changes with the Association in good faith.
Accordingly, the Board holds that a change in the hours
of
employment
of
vacant
positions is a matter within the scope
of
representation. This remains true even where the
change is prompted by an employer's decision to alter its nature, direction, or level
of
service.
To the extent that Arcata, East Side and Antelope Valley, hold differently, they are
overruled.
4 It should be noted that even before today an employer was required to negotiate any
change in the hours of an occupied position even where the employer intended to alter its
nature, direction, or level of service. (State of California (Employment Development
Department) (1998) PERB Decision No. 1284-S at p. 22, Board adopted ALJ's proposed
decision.)

ORDER
Based on the foregoing findings
of
fact, conclusions
of
law, and the entire record
in
this
case, it is found that the Huntington Beach Union High School District (District) violated the
Educational Employment Relations Act (BERA), Government Code section 3543.S(a), (b) and
(c).
Pursuant to BERA section 3541.S(c), it is hereby ORDERED that the District, its
administrators and representatives shall:
A. 	CEASE AND DESIST FROM:
1.	
Interfering with the rights
of
existing employees to transfer into a newly
created position without improper conditions attached thereto.
2. 	Denying to the District Educators Association, CT A/NEA (Association),
rights guaranteed to it
by
the BERA.
3. 	Refusing or failing to meet and negotiate in good faith with the
Association on the matter
of
the employment hours
of
its newly hired librarians.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE BERA:
1.	
Delete all references in its job descriptions or announcements for
librarian/library media specialist to any workday other than that traditionally worked
by
employees in such classification.
2. 	Immediately modify the working hours
of
all newly hired librarians to
conform with those traditionally worked by librarians.
3. 	Prior to making any future change in the work hours
of
librarians,
provide notice to the Association and upon request meet and negotiate in good faith about any
proposed change(s).
11

4.	
Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all District sites where notices to certificated employees are
customarily placed, copies
of
the Notice attached hereto as an Appendix, signed by an
authorized agent
of
the employer. 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, defaced, altered or covered by any other material.
5.	
Written notification
of
the actions taken to comply with this Order shall
be made to the San Francisco Regional Director
of
the Public Employment Relations Board in
accordance with the director's instructions. Continue to report, in writing, to the regional
director thereafter as directed. All reports to the regional director shall be concurrently served
on the Association.
Members Whitehead and Neima joined in this Decision.
12

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-4234-E, District Educators
Association, CTA/NEA v. Huntington Beach Union High School District, in which all parties
had the right to participate, it has been found that the Huntington Beach Union High School
District (District) violated the Educational Employment Relations Act (EERA), Government
Code section 3543.S(a), (b) and (c).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. CEASE AND DESIST FROM:
1. Interfering with the rights of existing employees to transfer into a newly
created position without improper conditions attached thereto.
2. Denying to the District Educators Association, CTA/NEA (Association),
rights guaranteed to it by the EERA.
3. Refusing or failing to meet and negotiate in good faith with the
Association on the matter of the empioyment hours of its newly hired librarians.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. Delete all references in its job descriptions or announcements for
librarian/library media specialist to any workday other than that traditionally worked by
employees in such classification.
2. Immediately modify the working hours of all newly hired librarians to
conform with those traditionally worked by librarians.
3. Prior to making any future change in the work hours of librarians,
provide notice to the Association and upon request meet and negotiate in good faith about any
proposed change(s).
Dated: --------- HUNTINGTON BEACH UNION HIGH
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.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
DISTRICT EDUCATORS ASSOCIATION,
CTA/NEA,
Charging Party,
v.
HUNTINGTON BEACH UNION HIGH SCHOOL
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-4234-E
PROPOSED DECISION
(12/19/01)
Appearances: 	California Teachers Association by Rosalind D. Wolf, Attorney, for District
Educators Association, CTA/NEA; Rutan & Tucker, by David C. Larsen, Attorney, for
Huntington Beach Union High School District.
Before Allen R. Link, Administrative Law Judge.
PROCEDURAL HISTORY
On October 25, 2000, the District Educators Association, CTA/NEA (Association),
filed an unfair practice charge with the Public Employment Relations Board (PERB or Board)
against the Huntington Beach Union High School District (District). The charge alleged
violations of the Educational Employment Relations Act (EERA or Act). 1
On January 5, 2001, the Office of the General Counsel of PERB, after an investigation
of the charge, issued a complaint alleging violations of subdivisions (a), (b ), and ( c) of section
3543.5.2
1 All section references, unless otherwise noted, are to the Government Code. 	EERP~ is
codified at section 3540 et seq.
2 Subdivisions (a), (b), and (c) of section 3543.5 state:

On January 23, 2001, the District answered the complaint denying all material
allegations and propounding various affirmative defenses. 	On February 22 an informal
conference was held in an unsuccessful attempt to arrive at a mutually agreeable settlement.
Complaint Amendments
The Association proposed, and respondent had no objection to, the amending of the
complaint as follows:
1. 	In paragraph 3, delete: "8:30 a.m. to 2:30 p.m.," and insert, "7:30 a.m. to
3:30 p.m., but within a seven and one-half hour workday."
2. 	In paragraph 4, delete: "from 9:30 a.m. to 5 :00 p.m.," and insert, "later than
3:30 p.m., but within a seven and one-half hour workday."
One day of formal hearing was held before the undersigned on June 12, 2001. With the
filing of the briefs the matter was submitted for decision on November 13, 2001.
INTRODUCTION
The District, after extensive discussions with various constituencies, decided to extend
its library hours past the instructional day into the late afternoon and early evening. The daily
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. ...
(b) Deny to employee organizations rights guaranteed to them by
this chapter.
(b) Refuse or fail to meet and negotiate in good faith with an
exclusive representative.
2

work schedule for each
of
the three existing media specialists/librarians3 consists
of
seven and
one-half hours, worked between 7:30 a.m. and 3:30 p.m. The District hired three new
librarians, but required them to work extended hours. The Association objected, but the new
hours were implemented over such objections. The Association alleged that such
implementation constitutes a unilateral modification
of
employee working conditions.
FINDINGS
OFF
ACT
Jurisdiction
The parties stipulated, and it is therefore found, that the Association is both an
employee organization and an exclusive representative, and the District is a public school
employer within the meaning
of
the EERA.
Background
The District consists
of
six regular high schools and one continuation high school, each
of
which has a library (media center). Prior to 1992, the District employed one full-time
librarian at each
of
the regular high schools.
In
1992, three librarian positions were eliminated.
From 1992 to September 2000, the District employed three librarians, who each worked a split
assignment at two school sites. When the District reduced the number
of
librarians, it
negotiated a pay differential to compensate the remaining librarians for both their travel and
inconvenience connected with these split assignments. Thus, from 1992 to September 2000,
3 The terms "library media specialist" and "librarian" are used interchangeably
by
the
parties. In this decision the term "librarian" will be used, not to ignore the historically
increased responsibilities
of
the employees in this classification, but to clearly differentiate
them from the employee classification of "senior media clerks" or "library clerks." In this
decision the term, "library clerk" will be used.
In addition, the technology aides, classified employees assigned to the libraries for
nineteen hours per week, will be referred to as library aides.
3

each regular high school library had a half-time librarian. The District also employed six
library clerks, each
of
whom worked an eight-hour day at the library at each
of
the regular high
schools.
Applicable Collective Bargaining Agreement (CBA) Provisions
The District and the Association are parties to a CBA effective through June 30, 2001.
CBA Article VI, District Rights, in pertinent part, states:
It is understood and agreed that the District retains all
of
its
powers and authority to direct, manage and control to the full
extent
of
the law. Included in but not limited to those duties and
powers are the exclusive right to:
...
determine the times and
hours
of
operation; determine the kinds and levels
of
services to
be provided, and the methods and means
of
providing them;
establish
...
educational opportunities
of
students; determine
staffing patterns; determine the number and kinds
of
personnel
required; . . . In addition, the Board retains the right to
...
assign,
...
employees.
The exercise
of
the foregoing powers, rights and authority, duties
and responsibilities by the District, and adoption
of
policies,
rules, regulations, and practices in furtherance thereof, and the
use
of
judgment and discretion in connection therewith, shall be
limited only by the specific and express terms
of
this Agreement,
or any other written agreement reached between the Association
and the Board, and then only to the extent such specific and
express terms are in conformance with law. [Emphasis added.]
CBA Article VIII, Maintenance
of
Benefits, in pertinent part, states:
Except as provided for in this Agreement, the Board shall not
reduce or eliminate any benefits provided to teachers by adopted
policies or written staff rules
...
dealing with
...
hours,
...
that
are in existence at the time this Agreement was signed
...
.
CBA Article X, Work Day, states the contractual workday for bargaining unit members
consists
of
a seven and one-half hour day, which is spread over six consecutive periods.4
4 However, Jim Pacelli (Pacelli), the Association's chief negotiator, when asked
if
a
principal's unilateral change of school hours from 7:30 a.m. to 3:30 p.m. to 9:00 a.m. to
.4

While high school bell schedules vary somewhat, Period 1 begins no earlier than 7:20 a.m. and
Period 6 concludes no later than 3:01 p.m.5
CBA Article XXIV, Completion
of
Meet and Negotiation, in its entirety, states:
During the term
of
this Agreement, except as provided elsewhere
in this Agreement, the Association expressly waives and
relinquishes the right to meet and negotiate and agrees that the
District shall not be obligated to meet and negotiate with respect
to any subject or matter whether referred to or covered in this
Agreement or not.
Traditional Librarian Hours
Traditionally the District librarians have worked either 7:00 a.m. to 3:00 p.m. or
7:30 a.m. to 3:30 p.m. Work outside the normal workday, whether it is the zero period before
the regular school day or the seventh period after the school day, is voluntary.
District Committee Recommendations Regarding Library Hours
Beginning in June 1999, the District determined that both the operating hours and
staffing
of
the libraries was inadequate. A District Curriculum Committee, consisting
of
teachers, librarians, governing board members, parents and students met, deliberated and
eventually presented to the governing board a report entitled "Library/Media Center
Recommendations." The committee recommended, inter alia, that libraries have "flexible,
extended operating hours so that students
...
have access," and that a minimum
of
one full-
time librarian should be provided at each comprehensive high school. It also warned that
5:00 p.m. would violate the CBA, answered, "It probably wouldn't, because I -- it probably
wouldn't." When asked to respond to the District counsel's query regarding a possible CBA
violation in the event that, "Marina [High School]wants to start 20 minutes later [than 7:30]."
Pacelli responded. "There's nothing in the contract [that prohibits that.]."
5 The parties have an October 18, 2000, side letter of agreement on bell schedules,
effective through June 30, 2001. This side letter only pertains to those schools on a block
schedule.
5

"[a]dditional classified personnel may be necessary in order to provide extended media center
hours." Shirley Bowen (Bowen), a District librarian since November 1996 and a curriculum
committee member, said that the committee's primary staffing concern was that there be one
librarian per school instead of librarians working split assignments. She explained that the
extended hours would be of service to the "slow [sic] socioeconomic" and at-risk students.
The committee did not recommend that librarians work extended hours, only that the libraries
stay open for extended hours. There was no agreement among the committee members as to
how these extended hours were to be staffed.
Governing Board's Actions Regarding Committee's Recommendations
On July 11, 2000, the District's Strategic Planning Committee presented its annual plan
to the governing board. This plan recommended, "Continue the implementation of the Media
Center Plan with priority on personnel and extended hours." Earl Ziemann (Ziemann),
outgoing Association president and a member of the District's Strategic Planning Committee,
testified regarding the committee's discussion about extending library hours:
[I]t was attached also to the idea of bringing back the full
positions at each school and so we wouldn't have to rotate,
because we had to deal with that before we could even think
about extending hours. 	So the idea was we'd have the librarian at
each school, and when we discussed the extended hours, the idea
that I remember discussing was that we would bring on a
different person. In other words, that the possibility existed that
we would need to possibly find a classified person, which we
already have working in the libraries, and that would be the
person that would extend the hours of the library.
Apparently based on these recommendations, the District decided to increase the
number of its librarian positions and add six 19-hour technology aides, one at each school.
The job description for "Instructional Aide-Technology" contains a "Special Requirement" that
provides, "Some positions may work evenings, weekends or split shifts."
6

District/Association Dialogue Regarding Modification in Librarian Hours
In June 2000, Superintendent Dr. Susan J. Roper (Roper) met with Ziemann and
incoming Association President Mary Jon McAvoy (McAvoy) to tell them that she would be
recommending that the District's governing board hire three librarians to work extended hours.
Roper admitted that this would be a "later shift," "a different start time and a different ending
time" than any other bargaining unit member worked. She said she believed that the district
had no obligation to negotiate the extended hours. Roper showed them two potential librarian
schedules. Ziemann objected, stating that either schedule would be a contractual violation.
Roper replied that the District had not yet made a firm decision, they were "still in the kind of
planning phases." A short time after this discussion, the District posted the new librarian
positions.
Implementation of Library Hours Modification
On or about July 14, 2000, the District issued and posted a job announcement for three
additional librarian positions. This announcement included the following sentences:
"Tentative work day will begin mid to late morning through early evening. Specific times will
be determined at the time of selection." In the subsequent interview, applicants were informed
that the new positions would have extended hours. 	The previous (pre-2000) job
announcements contained no such reference to extended hours.
On or about August 17, 2000, Nelson Elsner (Elsner), assistant superintendent of
personnel, met with Kathy Sullivan (Sullivan), who had applied for one of the opening
librarian positions. He told her that the new librarians would staff these extended hours. He
also stated that the matter of the positions' working hours was non-negotiable.
7

On or about August 24, 2000, Sullivan was interviewed for a position as a librarian.
She has been a District employee for 29 years, two years of which (1990-1992) she held a
position as a librarian. Throughout this entire service period, she has worked 7:30 a.m. to
3 :30 p.m. She is presently assigned to Marina and Edison High Schools, where she works a
schedule that extends after 3:00 p.m. She has concerns about security related to the extended
hours, which she discussed with both the interview panel and her principals, who share her
concerns.
Since February 2001, the District has hired two additional librarians for split
assignments to work beyond 3 :30 p.m. All librarians, new and old, perform the same duties, as
described in their job description and work the same number of hours each day.
In May 2001, the District conducted a survey, which indicated that the students would
"prefer to have the library open until 5:00 p.m."
On September 28, 2000, Elsner sent a memorandum to the Association's bargaining
team chair, Pacelli, citing legal counsel's advice changing work schedule times for the three
new librarians was not subject to negotiation. On October 5, 2000, the Association demanded
that the District cease the implementation of the new librarian schedules, stating that it was a
violation of the CBA.
On October 9, 2000, the District responded to this demand with an offer to meet ancl
discuss the issue, setting out available meeting dates. The Association did not respond to the
offer, believing that the matter should be negotiated. On October 25, 2000, the Association
filed the instant unfair practice charge.
8

ISSUE
When the District hired three new librarians with hours different than those of the
existing librarians, did it violate subdivisions (a), (b), or (c) of section 3543.5?
CONCLUSIONS OF LAW
Controlling Case Law
A unilateral modification of terms and conditions of employment within the scope of
negotiations that has a generalized effect or continuing impact is a per se refusal to negotiate.
(NLRB v. Katz (1962) 369 U.S. 736 [50 LRRM 2177].) PERB has long recognized this
principle. (Paiaro Valley Unified School District (1978) PERB Decision No. 51; San Mateo
County Community College District (1979) PERB Decision No. 94; and Grant Joint Union
High School District (1982) PERB Decision No. 196.)
Under subdivision (c) of section 3543.5, the public school employer is obligated to met
and negotiate in good faith with an exclusive representative about matters within the scope of
representation. This section precludes an employer from making a unilateral change in the
status quo, whether it is evidenced by a CBA or past practice. (Anaheim City School District
(1983) PERB Decision No. 364; Pittsburg Unified School District (1982) PERB Decision
No. 199.)
Scope ofrepresentation is addressed in EERA's subdivision (a) of section 3543.2,
which states, in pertinent part:
The scope of representation shall be limited to matters
relating to wages, hours of employment, and other terms
and conditions of employment.
In the past few years, PERB has issued a number of decisions that examined the subject
of the unilateral diminution of hours of vacant positions and the practice ofreplacing vacant
9

positions with ones calling for a lesser number of hours. (See San Jacinto Unified School
District (1994) PERB Decision No. 1078 (San Jacinto); Cajon Valley Union School District
(1995) PERB Decision No. 1085 (Cajon); Arcata Elementary School District (1996) PERB
Decision No. 1163 (Arcata); East Side Union High School District (1999) PERB Decision
No. 1353 (East Side); and Antelope Valley Union High School District (2000) PERB Decision
No. 1402 (Antelope Valley).)
In San Jacinto and Cajon, the Board found an employer's change in the hours of a
vacant position to be negotiable.
However, in San Jacinto, adopting proposed decision of administrative law judge (ALJ)
at pp. 25-26, the Board also stated:
... If, as the District asserts, it merely created new positions in an
existing classification and allotted hours different from those
allotted to the existing positions, then the District's action was
within the scope of management prerogative and, therefore, not
negotiable. However, the effects of its action may have been
negotiable if it impacted matters within the scope of
representations. 	[Citation.]
In a number of decisions, PERB has held that the level of
services that an employer decides to provide is not a negotiable
subject to bargaining. 	[Citations.] Thus, if the District (l) left
the existing library technician and health clerk positions vacant,
(2) created new positions bearing the same classification titles,
and (3) determined that the number of hours per day allotted to
these positions where to be different from the hours of the vacant
positions, its actions would have been an exercise of managerial
prerogative. 	[Emphasis added.]
In Arcata, the Board balanced the employer's exercise of management prerogative and
the rights of employees to be represented in matters relating to terms and conditions of
employment. It excluded from the scope of negotiations those management decisions "which
lie at the core of entrepreneurial control." It based its decision as to what action lies at such
10

"core," on whether or not the modifications of hours of a vacant position reflected a "change in
the nature, direction or level of service." If such a change was the reason for the modification,
the matter was within management's prerogative and outside the scope of representation.
Conversely, if the modification was based on labor cost considerations, it was directly related
to terms and conditions of employment, and was within the scope of representation.
However, in East Side, the Board attempted to clarify the Arcata decision, when it
stated:
It is axiomatic that any change in the hours of any vacant position
changes the level of service to be provided by that position. This
mere fact does not allow the employer, pursuant to Arcata,
unilaterally to change the hours of bargaining unit positions as
they become vacant. The Board's intent in Arcata was to permit
employers to adjust the hours of vacant positions unilaterally in
those circumstances in which legitimate changes in the nature,
direction or level of services have occurred, changes which are
not based primarily on wage and benefit cost considerations.
The Arcata rule was not intended, and will not be applied, to
grant carte blanche authority to employers to change the hours of
vacant bargaining unit positions unilaterally. The employer may
not unilaterally convert a vacant full-time, full-benefit position to
multiple part-time, reduced-benefit positions at substantial labor
cost savings, and justify the action simply because the resulting
part-time positions will provide a changed level of service.
Similarly, the Arcata rule does not permit employers unilaterally
to reallocate labor cost resources by changing the hours of
multiple bargaining unit positions as they become vacant, based
on the assertion that the nature of service delivery is being
changed. These employer actions are based primarily on labor
cost considerations, relate directly to the terms and conditions of
employment of bargaining unit members and are negotiable.
[Emphasis added.]
In the final analysis, Arcata and East Side state that the mere assertion of a change in
the nature, direction or level of service is insufficient to extract the matter from within the
parameters of the scope of representation. Conversely, legitimate changes in the nature,
11

direction or level of service, the proof of which is supported by persuasive evidence, are
sufficient to support a conclusion that the decision to modify a vacant position's hours, was
one lying at the "core of entrepreneurial control."
In Antelope Valley, the Board was faced with circumstances similar to those of the
instant case. The district replaced a retiring eight-hour cafeteria worker with three employees
with three-and-one-half hour assignments. The full-time position was left vacant. The Board,
when determining whether such replacements constituted a change in the nature, direction or
level of service, analyzed the objective evidence.
First, it determined that the subject cafeteria was the only one in the district that had
two full-time workers, and there was no evidence that the district had any intention of
replacing the retiring employee with another full-time employee. The Board also noted that
there was a pattern in the district not to replace retiring full-time employees with new full-time
employees. 	Second, the district's decision to insert a labor-intensive machine, a pizza maker,
in its kitchen, predated the resignation of the full-time employee. Third, the pizza-making
machine required one person to attend it whenever it was being operated. Therefore, the Board
determined that the decision to replace the full-time employee with three part-time employees
was based on the district's "non-negotiable decision to provide a different type of service to
patrons by opening a pizza parlor."
The respondent also points to the reasoning in a recent ALJ proposed decision in
support of its contentions. That decision, CSEA v. Clovis Unified School District (Clovis), 6
was issued March 23, 2001. In it the ALJ found that the district credibly asserted that there was
a marked diminution in the level of service required at two sites and that there was insufficient
6 Clovis (2001) PERB Decision No. HO-U-779.
12

evidence to support a conclusion that the subject personnel decisions were motivated by an
attempt to save labor costs. Therefore, the proposed decision held that management's decision
to leave two six-hour positions vacant and create two positions with fewer hours to respond to
this reduced customer level was a legitimate change in the level of service, and within its "core
of entrepreneurial control."
Analysis
The Board has determined that a modification to the hours of a newly created position
in an existing classification is within the scope of negotiations, unless such decision is within
its "core of entrepreneurial control." (See Arcata.) The respondent's attempt to cite language
contained in San Jacinto to create an exception to this determination is not persuasive.
San Jacinto was decided long before Arcata and East Side. It is clear that the Board, through
the series of cited cases, supra, was attempting to develop a comprehensive standard for
employers to follow when it wished to change the hours of vacant positions. A brief statement
of dicta in the first of the series of these cases does not survive the more comprehensive later
decisions.
In this case, the District made a decision to change the hours of positions in an existing
classification, i.e., librarians. This change of hours was not a change in the nature or direction
of services as there was no corresponding modification in the types of services provided by the
existing librarians. In other words, the extended hours are not due to the addition of a new
service or a major modification of an existing one.
The issue of level of service is a closer question. However, an analysis of the reasoning
in Arcata and East Side supports a conclusion that the Board's intent was to permit managerial
decisions based on substantial modifications of educational services. At the same time the
13

Board was attempting to prohibit unilateral decisions that did little more than affect hours of
employment, an enumerated item in the statutory scope of representation. Unlike Antelope
Valley, there was no objective evidence in this case that the District's decision was dictated by
a new machine that required a modification in the existing staffing patterns. Unlike Clovis,
there was no objective evidence that this decision was dictated by a drastic change in the
demand for services at a particular service location. There was also no evidence that the
decision was based on anything other than the District's desire to modify the hours of library
services.
In this case, there was no change in the level of service, but merely an employer's
decision that this same level of service should be provided at a different time of the day. This
time-related decision has, admittedly, some trappings of entrepreneurial discretion, but it is
well settled that the time of day employees are required to work is as negotiable as the number
of hours of employment. (See Moreno Valley Unified School District (1995) PERB Decision
No. 1106, p. 8 of adopted decision of the ALJ; Hardin, Developing Labor Law (1992) at
pp. 882-883; Los Angeles Community College District (1982) PERB Decision No. 252.)
As there was no change in the nature, direction or level of service, the District's change
in the librarians' working hours without first negotiating the matter with the Association
constitutes a violation of subdivision (c) of section 3543.5.
District Contention Regarding Association's Alleged Waiver of Right to Negotiate
The District contends that the management rights and zipper clause in the CBA are
sufficiently specific so as to constitute a waiver of the Association's right to negotiate the
subject matter. PERB has long held that a waiver of the right to bargain must be "clear and
unmistakable." (See Amador Valley Joint Union High School District (1987) PERB Decision
14

No. 74.) To justify a unilateral change, the CBA must contain specific language that clearly
and unmistakably waives the right to bargain over the matter at issue. Even a cursory
examination of the parties' management rights (CBA Article VI, p. 3) and zipper (CBA
Article XXIV, p. 4) clauses fails to support the District's position.
District Contention Regarding Association's Alleged Failure to Demand Negotiations
The District contends that the Association, by its failure to demand to negotiate this
matter, waived its right to do so. The record shows that:
1. 	In June, Roper discussed with the Association the possibility of extended hours
for librarians. When confronted with opposing viewpoints, she said that the District had not
made a firm decision and that they were still in the "planning phases."
2. 	In July 2000, there were recommendations to the governing board that libraries
receive extended hours. 	Such recommendations did not include a modified workday for
librarians.
3. 	In mid-July 2000, a job announcement was issued stating that the new positions
would work extended hours.
4. 	In mid-August, Assistant Superintendent of Personnel Elsner told Sullivan, an
applicant for one of the new positions, that the issue of the work hours was not negotiable.
5. 	In late September, Elsner sent a memorandum to the Association's bargaining
chair, citing legal counsel's advice that the librarian's extended hours was not subject to
negotiations.
Rumors, potential modifications, matters in the planning phase, and comments to
position applicants do not constitute valid notice to the Association of potential modifications
of working conditions. (See Los Angeles Community College District, supra, PERB Decision
15

No. 252.) In late September, Elsner notified the bargaining chair
of
the extended hours and, at
the same time, stated that the matter was not negotiable. Seven days later the Association
demanded that the District cease and desist its unilateral modification
of
the librarians' hours.
Four days later, the District declined to do so, asking, in the alternative, to meet and discuss the
matter. The Association chose, fifteen days later, to file the instant charge.
PERB has long held that a demand to negotiate is not necessary when such action
would be futile. 	(See San Francisco Community College District (1979) PERB Decision
No. 105.) Nor is there an obligation to demand to negotiate after the unilateral modification
had been implemented. (See Archoe Union School District (1983) PERB Decision No. 360.)
The record is quite clear that by the time Elsner wrote the Association in late September, the
modification had already occurred and any demand to negotiate would have been futile.
Therefore, the District's contention that the Association is barred by its failure to demand to
negotiate is rejected.
Association's Rights Were Violated
When the District unilaterally modified the hours
of
three new positions in an existing
classification without negotiating the decision, it interfered with the Association's ability to
properly represent its members in their labor relations with the District, a violation
of
subdivision (b)
of
section 3543.5.
Individual Employees' Right Were Violated
The evidence shows that the unilateral reduction occurred prior to the eventual
incumbents being hired by the District. As the District made such modified hours a condition
of employment, the eventual incumbents were required to work under conditions the District
had no right to impose. However onerous this may seem, it does not constitute interference or
16

discrimination against the newly hired employees. However, this employer action did interfere
with the right
of
existing employees to transfer into the newly created positions without the
improper condition(s). Therefore, the employer's action constitutes a violation
of
subdivision
(a)
of
section 3543.5.
SUMMARY
Based on all
of
the foregoing, it has been concluded that the District has violated
subdivisions (a), (b ), and (c)
of
section 3543
.5
when it unilaterally modified the hours
of
three
new positions in an existing classification, thereby (1) interfering with the rights
of
existing
employees to transfer into newly created positions without improper conditions attached
thereto, (2) denying the Association the right to properly represent its members in their labor
relations with the District, and (3) refusing to meet and negotiate in good faith with its
employees' exclusive representative.
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
affirmative action, including but not limited to the reinstatement
of
employees with or without back pay, as will effectuate the
policies
of
this chapter.
In order to remedy the unfair practice
of
the District and prevent it from benefiting from
its unfair labor practices, and to effectuate the purposes
of
the Act, it is appropriate to order it
to cease and desist from (1) interfering with the rights
of
existing employees to transfer into
newly created positions without improper conditions attached thereto, (2) denying the
Association rights guaranteed to it by the Act, and (3) refusing to meet and negotiate in good
faith with its employees' exclusive representative.
17

It is also appropriate that the District be required to post a notice incorporating the
terms of this Order at all sites where notices are customarily placed for certificated employees.
This notice should be subscribed by an authorized agent of the District, indicating that it will
comply with the terms therein. The notice shall not be reduced in size, defaced, altered or
covered by any other material. Posting such a notice will provide employees with notice the
District has acted in an unlawful manner and is being required to cease and desist from this
activity. It effectuates the purposes of the Act that employees be informed of the resolution of
the controversy and will announce the District's readiness to comply with the ordered remedy.
(See Placerville Union School District (1978) PERB Decision No. 69.) In Pandol and Sons v.
Agricultural Labor Relations Board (1979) 98 Cal. App. 3d 580, 587 [159 Cal.Rptr. 584], the
California District Court of Appeals approved a similar posting requirement. (See also
National Labor Relations Board v. Express Publishing Co. (1941) 312 U.S. 426 [8 LRRM
415].)
PROPOSED ORDER
Based on the foregoing findings of fact, conclusions of law and the entire record in this
case, it is found that the Huntington Beach Union High School District (District) violated the
Educational Employment Relations Act (Act), Government Code section 3543.5(a), (b) and
(c ). Therefore, it is hereby ORDERED that the District, its administrators, and representatives
shall:
A. 	CEASE AND DESIST FROM:
1. 	Interfering with the rights of existing employees to transfer into newly
created position without improper conditions attached thereto.
18

2. 	Denying to the (Huntington Beach) District Educators Association,
CTA/NEA (Association), rights guaranteed to it by the Act.
3. 	Refusing or failing to meet and negotiate in good faith with the
Association on the matter of the employment hours of its newly hired librarians.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF THE ACT:
1. 	Delete all references in its job descriptions or announcements for
librarian/library media specialist to any workday other than that traditionally worked by
employees in such classification.
2. 	Immediately modify the working hours of all newly hired librarians to
conform with those traditionally worked by librarians.
3. 	Prior to making any future change in the work hours of librarians,
provide notice to the Association and upon request meet and negotiate in good faith about any
proposed change(s).
4. 	Within ten (10) workdays of service of a final decision in this matter,
post at all District sites where notices are customarily placed for certificated employees, copies
of the notice attached hereto as an Appendix. This notice must be subscribed by an authorized
agent of the District, indicating that it will comply with the terms therein. 	Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to insure that the notice is not reduced in size, altered, defaced, or covered by any other
material.
5. 	Upon issuance of a final decision, make written notification of the
actions taken to comply with this Order to the San Francisco Regional Director of the Public
Employment Relations Board (PERB or Board) in accordance with her instructions. Continue
19

to report, in writing, to the regional director thereafter as directed. All reports to the regional
director shall be concurrently served on the charging party herein.
It is further Ordered that all other aspects of the charge and complaint are hereby
DISMISSED.
Pursuant to California Code of Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement of exceptions with the
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
20

number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, sec. 32135(b),
(c) and (d); see also Cal. Code Regs., tit. 8, secs. 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, secs. 32300, 32305,
32140, and 32135(c).)
21
Law Judge