Colton Joint Unified School District (PERB 1737E)

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STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION & ITS CHAPTER 244,

Charging Party, Case No. LA-CE-4708-E

Vv. PERB Decision No. 1737

COLTON JOINT UNIFIED SCHOOL DISTRICT, January 20, 2005

Respondent.

Appearances: California School Employees Association by Maureen C. Whelan, Attorney, for
California School Employees Association & its Chapter 244; Atkinson, Andelson, Loya, Ruud
& Romo by Ronald C. Ruud, Attorney, for Colton Joint Unified School District.
Before Duncan, Chairman; Whitehead and Shek, Members.
DECISION
DUNCAN, Chairman: This case is before the Public Employment Relations Board

(Board) on appeal by the California School Employees Association & its Chapter 244 (CSEA)
of a Board agent’s dismissal (attached) of its unfair practice charge. CSEA alleged that the
Colton Joint Unified School District (District) violated the Educational Employment Relations
Act (EERA)' by the unilateral transfer of two unit employees to a different work location two
days a week.

_ The Board has reviewed the entire record in this matter, including the original and both
amended unfair practice charges, the warning and dismissal letters, CSEA’s appeal and the

District’s response. The Board finds the warning and dismissal letters to be free of prejudicial

error and adopts them as the decision of the Board itself.

‘EERA is codified at Government Code section 3540, et seq.

ORDER
The unfair practice charge in Case No. LA-CE-4708-E is hereby DISMISSED
WITHOUT LEAVE TO AMEND.
Members Whitehead and Shek joined in this Decision.
2

STATE OF CALIFORNIA 	(- 	r·--, '.>LD SCHWARZENEGGER, Governor
==============I, 	===============S
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
103118thStreet
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
April 5, 2004
Denise Williams, Labor Relations Representative
California School Employees Association
10211 Trademark Street, Unit A
Rancho Cucamonga, CA 91730
Re: 	California School Employees.Association & its Chapter 244 v. Colton Joint Unified School
District
Unfair Practice Charge No. LA-CE-4708-E
DISMISSAL LETTER
Dear Ms. Williams:
The above-referenced unfair practice charge was filed with the Public Employment Relations Board
(PERB or Board) on Deceinber_3 7, 2003. The California School Employees Association & its
Chapter 244 (CSEA) alleges that the Colton Joint Unified School District (District) violated the
Educational Employment Relations Act (EERA)1 by unilaterally transferring Instructional Assistants
Roz Casarez and Valerie Holmes two days a week from their regular District assignments to
assignments at Las Banderas Academy, Inc., a separate public school employer. Subsequently,
following discussions with PERB Regional Attorney, Marie Nakamura, you filed a First Amended
Charge ort February 2, 2004 in which you allege that certain terms and conditions of'employment
were altered by the District for Ms. Casarez and Ms. Holmes.
I indicated to you in my attached letter dated March 3, 2004, that the above-referenced charge did
not state a prima facie case. You were advised that, if there were any factual inaccuracies or
additional facts which would correct the deficiencies explained in that letter, you should amend the
charge. You were further advised that, unless you amended the charge to state a prima facie case or
withdrew it prior to March 17, 2004, the charge would be dismissed.
You were granted additional time to submit further information. On March 29, 2004, you filed a
Second Amended Charge. The additional information you provided was that all classified
employees had always worked at sites within the District and that the reassignment of the two
Instructional Assistants to Las Banderas Academy was a unilateral change in the
transfer/reassignment language contained in the written agreement with the District. You assert that
this change was implemented with no notice to CSEA as exclusive representative of the classified
employees.
As I pointed out in my March 3 letter Article 10.5 of the current written agreement provides:
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and the
Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4708-E
April 5, 2004
Page 2
( 	(
Administrative Transfers Transfers of bargaining unit members may be
initiated by the District management at any time, except for
disciplinary purposes, whenever such transfer is deemed in the best
interest of the District, as defined by the District management.
There is no apparent limitation placed as to which work locations that employees may be transferred.
Further, as I pointed out, unilateral changes are considered "per se" violations if certain criteria are
met. For a change in job responsibilities, the charging party must demonstrate actual changes in the
employee's job duties. If the changes are reasonably comprehended within the existing job duties, an
assignment of such duties, even if never performed before, is not a violation. (Rio Hondo
Community College District (1982) PERB Decision No. 279.) You have not indicated how the
employees' jobs have changed other than to point to several health and safety concerns.2
Therefore, I am dismissing the charge based oh the facts and reasons contained in this letter and my
March 3, 2004 letter.
Right to Appeal 	·
Pursuant to PERB Regulations,3 you may obtain a review of this dismissal of the charge by filing an
appeal to the Board itself within twenty (20) calendar days after service of this dismissal.
(Regulation 32635(a).) Any document filed with the Board must contain the case name and number,
and the original and five (5) copies of all documents must be provided to the Board.
A document is considered "filed" when actually received before the close of business (5 p.m.) on the
last day set for filing. (Regulations 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 Regulation
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. (Regulations 32135(b), (c) and (d); see also
Regulations 32090 and 32130.)
The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento, CA 95814-4174
2
C As I stated iq the warning letter, you have not indicated that CSEA ever requested to
negotiate the changes in working conditions with the District or that the District refused to respond
to such a request: In Newman -Crows Landing Unified School District (1982) PERB Decision No.
223 the Board held that absent a request to meet and negotiate regarding effects of changes on
matters within scope, it should not be assumed that charging party made such a request simply by
acknowledging the changes.
3
· 	PERB's Regulations are codified at California Code of Regulations, title 8, section 31001 et
seq.

LA-CE-4708-E
April 5, 2004
Page 3
FAX: (916) 327-7960
If you file a timely appeal of the refusal to issue a complaint, any other party may file with the Board
an original and five copies of a statement in opposition within twenty (20) calendar days following
the date of service of the appeal. (Regulation 32635(b).)
Service
All documents authorized to be filed herein must also be "served" upon all parties to the proceeding,
and a "proof of service" must accompany each copy of a document served upon a party or filed with
the Board itself. (See Regulation 32140 for the required contents and a sample form.) The
document will be considered properly "served" when personally delivered or deposited in the first-
class mail, postage paid and properly addressed. A document filed by facsimile_ transmission may be
concurrently served via facsimile transmission on all parties to the proceeding. (Regulation
32135(c).)
Extension of Time
A request for an extension of time, in which to file a document with the Board itself, must be in
writing and filed with the Board at the previously noted address. A request for an extension must be
filed at least three (3) calendar days before the expiration of the time required for filing the
document. The request must indicate good cause for and, if known, the position of each other party
regarding the extension, and shall be accompanied by proof of service of the request upon each
party. (Regulation 32132.)
Final Date
If no appeal is filed within the specified time limits, the dismissal will become final when the time
limits have expired.
Sincerely;
ROBERT THOMPSON
General Counsel
By~~
Labor Relations Specialist
Attachment
cc: Ronald C. Ruud, Esq.
B

,

STATE OF CALIFORNIA 	(- 	. ~- 	)LD SCHWARZENEGGER, Governor
~============- 	==============-=-"
PUBLIC EMPLOYMENT RELATIONS BOARD
Sacramento Regional Office
1031 18th Street
Sacramento, CA 95814-4174
Telephone: (916) 327-8387
Fax: (916) 327-6377
March 3, 2004
Denise Williams, Labor Relations Representative
California School Employees Association
10211 Trademark Street, Unit A
Rancho Cucamonga, CA 91730
Re: 	California School Employees Association & its Chapter 244 v. Colton Joint Unified
School District
Unfair Practice Charge No. LA-CE-4708-E
WARNING LETTER
Dear Ms. Williams:
· The above-referenced unfair practice charge was filed with the Public Employment Relations
Board (PERB or Board) on December 17, 2003. The California School Employees
Association & its Chapter 244 (CSEA) alleges that the Colton Joint Unified School District
(District) violated the Educational Employment Relations Act (EERA)1 by unilaterally
transferring Instructional Assistants Roz Casarez and Valerie Holmes two days a week from
their regular District assignments to assignments at Las Banderas Academy, Inc., a separate
public school employer. 	Subsequently, following discussions with PERB Regional Attorney,
Marie Nakamura, you filed a First Amended Charge on February 2, 2004 in which you allege
that certain terms and conditions of employment were altered by the District for Ms. Casarez
and Ms. Holmes.
In response to the charge and its amendment, the District cited the transfer language of the
most current agreement between itself and CSEA. Article 10.5 provides:
Administrative Transfers Transfers of bargaining unit members
may be initiated by the District management at any time, except
for disciplinary purposes, whenever such transfer is deemed in
the best interest of the District, as defined by the District
management.
1 EERA is codified at Government Code section 3540 et seq. The text of the EERA and
the Board's Regulations may be found on the Internet at www.perb.ca.gov.

LA-CE-4708-E
March 3, 2004
Page 2
(
Further, the District indicated that pursuant to its obligation under Education Code Section
47641,2 it was providing the two instructional aides to Las Banderas Academy Inc., a charter
school within the District's geographical boundaries. The two aides provide non-certificated
services to special education students at a middle and high school facility.
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes either the
"per se" or "totality of the conduct" test, depending on the specific conduct involved and the
effect of such conduct on the negotiating process. (Stockton Unified School District ( 1980)
PERB Decision No. 143.) Unilateral changes are considered "per se" violations if certain
criteria are met. Those criteria are: (1) the employer implemented a change in policy
concerning a matter within the scope of representation, and (2) the change was 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 Unified High School District (1982) PERB Decision No. 196.)
In order to prevail on a theory of a change in job responsibilities, the charging party must
demonstrate actual changes in the employee's job duties. If the changes are reasonably
comprehended within the existing job duties, an assignment of such duties, even if never
performed before, is not a violation. (Rio Hondo Community College District (1982) PERB
Decision No. 279.)
The employees in question still are employed by the District while at work at Las Banderas.
Their work locations have been changed two days per week but you have not indicated that job
duties have changed, therefore the charge fails to establish a prima facie violation of EERA.
You allege in your charge that the assignment of the two instructional aides to work locations
other than at District sites constituted a unilateral change. The transfer language of the current
agreement gives the District discretion to transfer employees so long as is not for disciplinary
reasons. You have not asserted that the transfer was for disciplinary reasons. The language of
the agreement appears to support the District's position that there has been no change.
The health and safety concerns you cited in the amended charge may certainly be viewed as
possible subjects for "effects bargaining". But you have not indicated that CSEA ever
requested to negotiate the changes in working conditions with the District or that the District
refused to respond to such a request. In Newman -Crows Landing Unified School District
(1982) PERB Decision No. 223 the Board held that absent a request to meet and negotiate
regarding effects of changes on matters within scope, it should not be assumed that charging
party made such a request simply by acknowledging the changes.
For these reasons the charge, as presently written, does not state a prima facie case. If there
are any factual inaccuracies in this letter or additional facts that would correct the deficiencies
2 This Code section provides for the establishment of a local education agency for
purposes of providing a special education plan. The District contends that it and Las Banderas
Academy participate in this plan.

LA-CR-4708-E
March 3, 2004
Page 3
explained above, please amend the charge. The amended charge should be prepared on a
standard PERB unfair practice charge form, clearly labeled First Amended Charge, contain all
the facts and allegations you wish to make, and be signed under penalty of perjury by the
charging party. The amet,1ded charge must have the case number written on the top right hand
corner of the charge form. 	The amended charge must be served on the respondent's
representative and the original proof of service must be filed with PERB. If I do not receive an
amended charge or withdrawal from you before March 17, 2004, I shall dismiss your charge.
If you have any questions, please call me at the above telephone number.
Sincerely,
(/2_bRoger Smith
Labor Relations Specialist
RCS
Roger Smith
Labor Relations Specialist