Fullerton Joint Union School District (PERB 1633E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 82,
Charging Party,
v.
FULLERTON JOINT UNION SCHOOL
DISTRICT,
Respondent.
Case No. LA-CE-4538-E
PERB Decision No.
	1633
May
	19,
	2004
Appearances:	Appearances:California School Employees Association by A. Alan Aldrich, Senior Labor
Relations Representative and Janet Jones, Labor Relations Representative, for California
School Employees Association & its Chapter 82; Law Offices
of
Margaret A. Chidester &
Associates by Sharon J. Ormond, Attorney, for Fullerton Joint Union School District.
California School Employees Association by A. Alan Aldrich, Senior Labor
Before Duncan, Chairman; Whitehead and Neima, Members.	Before Duncan, Chairman; Whitehead and Neima, Members.
DECISION	DECISION
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California School Employees Association & its Chapter 82 (CSBA)
from a Board agent's dismissal
of
its unfair practice charge. The charge alleged that the
Fullerton Joint Union School District (District) violated the Educational Employment
Relations Act (BERA)
NEIMA, Member: This case is before the Public Employment Relations Board (PERB
1
by unilaterally changing the work schedules
of
custodians.
CALIFORNIA SCHOOL EMPLOYEES
Case No. LA-CE-4538-E
After reviewing the entire record in this matter, including the original and amended
unfair practice charge, the warning and dismissal letters, CSBA's appeal and the District's
response, the Board reverses the Board agent's dismissal and remands this case to the General
Counsel's Office for issuance
of
a complaint consistent with this decision.
After reviewing the entire record in this matter, including the original and amended
1BERA is codified at Government Code section 3540, et seq.	EERA is codified at Government Code section 3540, et seq.
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
Relations Representative and Janet Jones, Labor Relations Representative, for California
School Employees Association & its Chapter 82; Law Offices of Margaret A. Chidester &
Associates by Sharon J. Ormond, Attorney, for Fullerton Joint Union School District.
or Board) on appeal by the California School Employees Association & its Chapter 82 (CSEA)
from a Board agent's dismissal of its unfair practice charge. The charge alleged that the
Fullerton Joint Union School District (District) violated the Educational Employment
Relations Act (EERA)' by unilaterally changing the work schedules of custodians.
ASSOCIATION & ITS CHAPTER 82,
Charging Party,
V .
FULLERTON JOINT UNION SCHOOL
DISTRICT,
Respondent.
PERB Decision No. 1633
May 19, 2004
unfair practice charge, the warning and dismissal letters, CSEA's appeal and the District's
response, the Board reverses the Board agent's dismissal and remands this case to the General
Counsel's Office for issuance of a complaint consistent with this decision.

BACKGROUND	BACKGROUND
The District and CSEA are parties to a collective bargaining agreement (CBA) effective
through June 30, 2005. Relevant to this charge are two provisions
of
Article VI, entitled "Duty
Hours." These relevant provisions state:
The District and CSEA are parties to a collective bargaining agreement (CBA) effective
1.
	Workweek	1.
A. The regular workweek for full-time employees shall be forty
(40)	( 40) hours rendered in units
of
eight (8) hours, excluding non-
paid lunch periods.
B. The workweek shall consist
of
five (5) consecutive workdays
for all employees rendering service averaging four (4) hours or
more per day during the workweek.
C. 	The District retains the right to extend the regular workday or
workweek when it is deemed necessary to carry out the District's
business.
C.
2. Workday	2.
The workday for all employees shall be established and regularly
fixed by the District in order to meet the District's educational
goals and objectives.
The workday for all employees shall be established and regularly
On June 4, 2003, District Administrator of Personnel Services, Greg Franklin (Franklin)
2
A. The regular workweek for full-time employees shall be forty
B. The workweek shall consist of five (5) consecutive workdays
The CBA also includes an entire agreement clause and a zipper clause.	The CBA also includes an entire agreement clause and a zipper clause.
According to the charge, during the graduation period, the second or third week in June,
there is an increase in vandalism throughout the District. For the last seven years, the District
has extended the shifts
of
day and night custodians at each campus to provide security and
prevent vandalism during this period. As a result, each custodian earned approximately six
hours
of
overtime per day during the graduation period.
According to the charge, during the graduation period, the second or third week in June,
2
through June 30, 2005. Relevant to this charge are two provisions of Article VI, entitled "Duty
Hours." These relevant provisions state:
Workweek
The District retains the right to extend the regular workday or
workweek when it is deemed necessary to carry out the District's
business.
Workday
fixed by the District in order to meet the District's educational
goals and objectives.
advised CSEA that the District intended to change work shifts for all custodians during the
week of June 9 - June 13, 2003, to provide coverage for security and prevent vandalism.
hours rendered in units of eight (8) hours, excluding non-
paid lunch periods.
for all employees rendering service averaging four (4) hours or
more per day during the workweek.
there is an increase in vandalism throughout the District. For the last seven years, the District
has extended the shifts of day and night custodians at each campus to provide security and
prevent vandalism during this period. As a result, each custodian earned approximately six
hours of overtime per day during the graduation period.
On June 4, 2003, District Administrator of Personnel Services, Greg Franklin (Franklin)
advised CSEA that the District intended to change work shifts for all custodians during the
week of June 9 	June 13, 2003, to provide coverage for security and prevent vandalism.

3
According to CSEA, Franklin stated that the reason for the change was to cut overtime costs in
light
of
the state budget crisis.
	CSEA
further asserts that the District never claimed the work
shift changes were to further "educational" goals,
but
rather the District admitted that
"business" reasons were the motivating factor.
According to CSEA, Franklin stated that the reason for the change was to cut overtime costs in
The proposed schedule changed the start and end times
of
the custodians' shifts,
but
kept the shift length to eight hours. As a result
of
the temporary shift change, none
of
the
custodians would earn overtime during the graduation period. CSEA orally expressed its
opposition to the change and on June 5, sent a fax to Franklin again expressing
CSEA's
opposition to the change and asking to meet and confer.
The proposed schedule changed the start and end times of the custodians' shifts, but
The District did not respond to the request to negotiate, and the custodians worked the
altered eight hour shifts during the week
of
June 9
-June
13.
The District did not respond to the request to negotiate, and the custodians worked the
CSEA then filed this charge alleging that the District violated EERA by
unilaterally
changing the work shifts
of
custodians during the graduation period. The District defended its
actions on the grounds that the CBA permitted such changes. CSEA countered that the CBA
only permits the District to initially set the hours
of
work and does not permit subsequent
unilateral changes to avoid overtime.
CSEA then filed this charge alleging that the District violated EERA by unilaterally
BOARD AGENT'S DISMISSAL	BOARD AGENT'S DISMISSAL
The Board agent analyzed the charge as an unlawful unilateral change. Unilateral
changes are considered "per se" violations
if
certain criteria are met. Those criteria are:
(1) the employer	(1) 	implemented a change in policy concerning a matter within the scope
of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982)
The Board agent analyzed the charge as an unlawful unilateral change. Unilateral
3
light of the state budget crisis. CSEA further asserts that the District never claimed the work
shift changes were to further "educational" goals, but rather the District admitted that
"business" reasons were the motivating factor.
kept the shift length to eight hours. As a result of the temporary shift change, none of the
custodians would earn overtime during the graduation period. CSEA orally expressed its
opposition to the change and on June 5, sent a fax to Franklin again expressing CSEA's
opposition to the change and asking to meet and confer.
altered eight hour shifts during the week of June 9 - June 13.
changing the work shifts of custodians during the graduation period. The District defended its
actions on the grounds that the CBA permitted such changes. CSEA countered that the CBA
only permits the District to initially set the hours of work and does not permit subsequent
unilateral changes to avoid overtime.
changes are considered "per se" violations if certain criteria are met. Those criteria are:
the employer implemented a change in policy concerning a matter within the scope of
representation, and (2) the change was implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations. (Walnut Valley Unified
School District (1981) PERB Decision No. 160; Grant Joint Union High School District (1982)

PERB Decision No. 196.) An employer does not make an unlawful change
if
its actions
conform to the terms
of
the parties' agreement. (Marysville Joint Union School District (1983)
PERB Decision No. 314.)
PERB Decision No. 196.) An employer does not make an unlawful change if its actions
The issue before the Board agent was whether the CBA permitted the District to
unilaterally change the work shifts
of
the custodians. The Board agent concluded that CSEA
did not establish a change in policy. Specifically, the Board agent noted that Article VI,
Section 2, provides that "the workday for all employees shall be established and regularly fixed
by the District in order to meet the District's educational goals and objectives." According to
the Board agent, this language gives the District the authority to establish work shifts to meet
educational goals and objectives.
The issue before the Board agent was whether the CBA permitted the District to
In dismissing the charge, the Board agent stated that CSEA had provided no facts
demonstrating what is meant by the phrase to "meet the District's educational goals and
objectives." CSEA had argued that the District implemented the changes because
of
cost
concerns and that such concerns did not constitute an educational goal or objective. CSEA
argued that its interpretation was supported by the contrasting language
of
Article VI, Section
1,
which gives the District the right to extend the regular workday or workweek "to carry out
the District's business." According to CSEA, the CBA distinguishes between "educational"
and "business" reasons and that the District cannot use Article VI, Section 2 solely to avoid
overtime.
In dismissing the charge, the Board agent stated that CSEA had provided no facts
The Board agent rejected all
of
CSEA's arguments. Specifically, the Board agent held
that avoiding overtime costs could constitute a legitimate educational objective since "a
District's educational goals or objectives may very well be furthered by conserving funds due
to cost concerns." According to the Board agent, CSEA had failed to establish any ambiguity
The Board agent rejected all of CSEA's arguments. Specifically, the Board agent held
44
conform to the terms of the parties' agreement. (Marysville Joint Union School District (1983)
PERB Decision No. 314.)
unilaterally change the work shifts of the custodians. The Board agent concluded that CSEA
did not establish a change in policy. Specifically, the Board agent noted that Article VI,
Section 2, provides that "the workday for all employees shall be established and regularly fixed
by the District in order to meet the District's educational goals and objectives." According to
the Board agent, this language gives the District the authority to establish work shifts to meet
educational goals and objectives.
demonstrating what is meant by the phrase to "meet the District's educational goals and
objectives." CSEA had argued that the District implemented the changes because of cost
concerns and that such concerns did not constitute an educational goal or objective. CSEA
argued that its interpretation was supported by the contrasting language of Article VI, Section
1, which gives the District the right to extend the regular workday or workweek "to carry out
the District's business." According to CSEA, the CBA distinguishes between "educational"
and "business" reasons and that the District cannot use Article VI, Section 2 solely to avoid
overtime.
that avoiding overtime costs could constitute a legitimate educational objective since "a
District's educational goals or objectives may very well be furthered by conserving funds due
to cost concerns." According to the Board agent, CSEA had failed to establish any ambiguity

in the language
of
the contract. As the Board agent believed that the CBA clearly permitted
the District's actions, the charge was dismissed.
in the language of the contract. As the Board agent believed that the CBA clearly permitted
DISCUSSION	DISCUSSION
On appeal, CSEA argues that the Board agent erred in dismissing the charge.
According to CSEA, the language
of
Article VI, Section 2 is at least ambiguous as to whether
the District may unilaterally change employee work shifts to avoid incurring overtime costs.
Because
of
the ambiguity, CSEA argues that an evidentiary hearing should be held to
determine the meaning
of
the disputed language. The Board agrees.
On appeal, CSEA argues that the Board agent erred in dismissing the charge.
In recent cases, the Board has addressed the issue
of
what constitutes a clear and
unmistakable contractual waiver. (Long Beach Community College District (2003) PERB
Decision No. 1568 (Long Beach); County
of
San Joaquin (2003) PERB Decision No. 1570-M
(San Joaquin).)
In recent cases, the Board has addressed the issue of what constitutes a clear and
In Long Beach, the Board stated the following:	In Long Beach, the Board stated the following:
U
...
any waiver
of
a right to bargain over a negotiable contracting
out decision must be 'clear and unmistakable.' 	(Amador Valley
Joint Unified School District (1978) PERB Decision No. 74
(Amador Valley); see also, Metropolitan Edison Co. v. NLRB
(1983) 460 U.S. 693, 708 [103 S.Ct. 1467] (Metropolitan
Edison).). The 'clear and unmistakable' standard is a high one
and mandated by the Board's previous findings that there is a
strong public policy against finding waivers based on inferences.
(Los Angeles Community College District (1982) PERB Decision
No. 252; Palo Verde Unified School District (1983) PERB
Decision No. 321; see Daniel Construction Company, Inc. (1979)
239 NLRB 1335, 1336 [100 LRRM 1201].) A waiver
of
an
exclusive representative's right to bargain will never be lightly
inferred. 	(Oakland Unified School District (1982) PERB
Decision No. 236.) In cases where the alleged waiver is
exceptional in 'breadth or severity,' the 'clear and unmistakable'
standard must be stringently applied. (San Marcos Unified
School District (2003) PERB Decision No. 1508
(San Marcos) The burden of proof for establishing an affirmative
. . . any waiver of a right to bargain over a negotiable contracting
5
out decision must be 'clear and unmistakable.' (Amador Valley
Joint Unified School District (1978) PERB Decision No. 74
Amador Valley); see also, Metropolitan Edison Co. v. NLRB
(1983) 460 U.S. 693, 708 [103 S.Ct. 1467] (Metropolitan
Edison).). The 'clear and unmistakable' standard is a high one
and mandated by the Board's previous findings that there is a
strong public policy against finding waivers based on inferences.
(Los Angeles Community College District (1982) PERB Decision
No. 252; Palo Verde Unified School District (1983) PERB
Decision No. 321; see Daniel Construction Company, Inc. (1979)
239 NLRB 1335, 1336 [100 LRRM 1201].) A waiver of an
exclusive representative's right to bargain will never be lightly
inferred. (Oakland Unified School District (1982) PERB
Decision No. 236.) In cases where the alleged waiver is
exceptional in 'breadth or severity,' the 'clear and unmistakable'
standard must be stringently applied. (San Marcos Unified
School District (2003) PERB Decision No. 1508
(San Marcos) The burden of proof for establishing an affirmative
the District's actions, the charge was dismissed.
According to CSEA, the language of Article VI, Section 2 is at least ambiguous as to whether
the District may unilaterally change employee work shifts to avoid incurring overtime costs.
Because of the ambiguity, CSEA argues that an evidentiary hearing should be held to
determine the meaning of the disputed language. The Board agrees.
unmistakable contractual waiver. (Long Beach Community College District (2003) PERB
Decision No. 1568 (Long Beach); County of San Joaquin (2003) PERB Decision No. 1570-M
(San Joaquin).)

defense
of
waiver rests exclusively with the District. (Placentia
Unified School District (1986) PERB Decision No. 595.)
(At p. 14.)
defense of waiver rests exclusively with the District. (Placentia
In San Joaquin, the Board was faced with a contract interpretation issue similar to this
one. There, the issue was whether an employer was obligated to submit a dispute to impasse
procedures. The employer argued that the language
of
the local rule did not apply while the
union argued that it did. In deciding that a complaint should issue, the Board in San Joaquin
recognized the rule that:
In San Joaquin, the Board was faced with a contract interpretation issue similar to this
...
where the contract language or rule is unclear or ambiguous,
the Board has held that the parties should be given an opportunity
to offer evidence to support their differing interpretations at an
evidentiary hearing. 	[At p. 6.]
. . . where the contract language or rule is unclear or ambiguous,
Here, the Board finds that Article VI, Section 2
of
the CBA is ambiguous in at least two
areas. First, it is not clear whether the phrase "shall be established and regularly fixed
by
the
District" allows the District to unilaterally make temporary changes to the work schedules
of
its employees. The language, at a minimum, is reasonably susceptible to CSEA's
interpretation that the District is only permitted to set "regular" work shifts and that the District
cannot thereafter alter them for temporary periods
of
time.
Here, the Board finds that Article VI, Section 2 of the CBA is ambiguous in at least two
6
The Board also finds ambiguous the conditional language "in order to meet the
District's educational goals and objectives." CSEA argues that this language must be
contrasted with the other CBA provision allowing the extension
of
the workday for "business"
reasons. According to CSEA, cost savings constitute a business reason, not an educational
one. Again, the Board finds that the language, at a minimum, is reasonably susceptible to
CSEA's interpretation. Whether achieving cost savings is a valid "educational" goal under the
CBA is at its heart a dispute over contract interpretation. Such disputes are best resolved after
an evidentiary hearing. (San Joaquin.)
The Board also finds ambiguous the conditional language "in order to meet the
6
Unified School District (1986) PERB Decision No. 595.)
(At p. 14.)
one. There, the issue was whether an employer was obligated to submit a dispute to impasse
procedures. The employer argued that the language of the local rule did not apply while the
union argued that it did. In deciding that a complaint should issue, the Board in San Joaquin
recognized the rule that:
the Board has held that the parties should be given an opportunity
to offer evidence to support their differing interpretations at an
evidentiary hearing. [At p. 6.]
areas. First, it is not clear whether the phrase "shall be established and regularly fixed by the
District" allows the District to unilaterally make temporary changes to the work schedules of
its employees. The language, at a minimum, is reasonably susceptible to CSEA's
interpretation that the District is only permitted to set "regular" work shifts and that the District
cannot thereafter alter them for temporary periods of time.
District's educational goals and objectives." CSEA argues that this language must be
contrasted with the other CBA provision allowing the extension of the workday for "business"
reasons. According to CSEA, cost savings constitute a business reason, not an educational
one. Again, the Board finds that the language, at a minimum, is reasonably susceptible to
CSEA's interpretation. Whether achieving cost savings is a valid "educational" goal under the
CBA is at its heart a dispute over contract interpretation. Such disputes are best resolved after
an evidentiary hearing. (San Joaquin.)

Accordingly, the Board finds that CSEA has established a prima facie case and that a
complaint should be issued.
Accordingly, the Board finds that CSEA has established a prima facie case and that a
ORDER	ORDER
The Board REVERSES the Board agent's dismissal in Case No. LA-CE-4538-E and
REMANDS the case to the Office
of
the General Counsel for issuance
of
a complaint
consistent with this Decision.
The Board REVERSES the Board agent's dismissal in Case No. LA-CE-4538-E and
7
Chairman Duncan and Member Whitehead joined in this Decision.	Chairman Duncan and Member Whitehead joined in this Decision.
7
complaint should be issued.
REMANDS the case to the Office of the General Counsel for issuance of a complaint
consistent with this Decision.