Decision 0884E – Modesto City SD

S-UM-465

Decision Date: June 3, 1991

Decision Type: PERB Decision

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Perc Vol: 15
Perc Index: 22099

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.04000 – Non-Bargaining Unit Employees; Inappropriate Bargaining Unit

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

1000.00000 – SCOPE OF REPRESENTATION
1000.02147 – Transfer of Work Out of Unit

Although the practical effect of modifying a unit under PERB Regulation 32781(b)(1) may be to transfer work out of the unit, it is not an unlawful transfer because it is done in accord with the process PERB requires the employer to observe; p. 11. [The Board's decisions in Regents of the University of California (California Nurses Association) (1989) PERB Decision No. 722-H and Mt. San Antonio Community College District (1983) PERB Decision No. 334] indicate the removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification when PERB's statutory and regulatory procedures are followed; pp. 12-13.

1309.00000 – REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200)
1309.08000 – Classroom Teachers

[Education Code sections 45104, 45103 and 44066] indicate that a school district must designate a position as "classified" unless the duties to be performed require certification in which case the position must be designated as certificated. Thus, when the District creates a position it must, at least tentatively, designate it either classified or certificated (Healdsburg Union High School District (1984) PERB Decision No. 375) and is prohibited from requiring certification unless it is required by law or is an occupational qualification; p. 17.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.01000 – In General

It is necessary to first determine the status of the petitioned for position and the duties under the Education Code. Bargaining history and community of interest criteria are then used to ascertain into which classified or certificated bargaining unit the position should be placed; p. 17. Intent of a petition is determined by the content of the petition; p. 8. Duty to bargain over transfer of bargaining unit work is not a condition precedent to a determination of a unit modification petition; p. 14. Level of benefits afforded employee in position before and after proposed unit modification is irrelevant to whether unit modification should be granted. should be granted.

1310.00000 – REPRESENTATION ISSUES; UNIT MODIFICATION
1310.06000 – Unfair Practice and Unit Modification

Allegations of an unlawful transfer of bargaining unit work are properly raised as an unfair practice charge and not in a unit modification proceeding; p. 10; pp. 11-12, proposed dec.

1500.00000 – MISCELLANEOUS ISSUES; EDUCATION CODE
1500.02000 – Education Code Sections Considered by PERB (By Number)

[Education Code sections 45104, 45103 and 44066] indicate that a school district must designate a position as "classified" unless the duties to be performed require certification, in which case the position must be designated as certificated. Thus, when the District creates a position it must, at least tentatively, designate it either classified or certificated (Healdsburg Union High School District (1984) PERB Decision No. 375) and is prohibited from requiring certification unless it is required by law or is an occupational qualification; p. 17.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

32781(b)(1) The removal of work from a bargaining unit may lawfully occur as a collateral affect of a unit modification petition when PERB statutory and regulatory procedures are followed, pp. 12-13. Board rejected MTA's contention that the duty to bargain should be imposed as a condition precedent to granting a unit modification petition under PERB Regulation 32781(b)(1); pp. 10-13.