Decision 1163E – Arcata Elementary School District * * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525

SF-CE-1761

Decision Date: June 26, 1996

Decision Type: PERB Decision

* * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525 * * *

Description: District unilaterally converted vacant full time custodian position into two part time positions without negotiating.

Disposition: Violation found. District ordered to cease converting vacant full time position onto two part time positions and interfering with right of union to represent its members.

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Perc Vol: 20
Perc Index: 27120

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

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

In unilateral change of hours of vacant position, it is the employer's burden to show the change was not within the scope of bargaining because the change was based on factors other than labor cost considerations.

1000.00000 – SCOPE OF REPRESENTATION
1000.02091 – New Positions

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

Employer decisions involving the level of services to be provided fall within the management prerogative. These decisions include the creation of new positions, determining the number of hours assigned to new positions, discontinuing a service by abolishing a position and laying off employees; p. 5. The District's decision to change the hours of a vacant, full-time position into two 3-3/4 hour positions was within the scope of representation. Since the unusual 3-3/4 hour time base fell below the 4 hours per day required to qualify for the employer's benefit package and the two new part-time employees performed the same work previously performed by the full-time employee, the District's decision was not an exercise of the management prerogative reflecting a change in the nature, direction or level of service, but a decision based on labor costs associated with that service; pp. 9-10. a change in the nature, direction or level of service, but a decision based on labor costs associated with that service; pp. 9-10.

1000.00000 – SCOPE OF REPRESENTATION
1000.02064 – Hours of Work

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

The District's decision to change the hours of a vacant, full-time position into two 3-3/4 hour positions was within the scope of representation. Since the unusual 3-3/4 hour time base fell below the 4 hours per day required to qualify for the employer's benefit package and the two new part-time employees performed the same work previously performed by the full-time employee, the District's decision was not an exercise of the management prerogative reflecting a change in the nature, direction or level of service, but a decision based on labor costs associated with that service; pp. 9-10. In unilateral change of hours of vacant position, it is the employer's burden to show the change was not within the scope of bargaining because the change was based on factors other than labor cost considerations.

1000.00000 – SCOPE OF REPRESENTATION
1000.02040 – Elimination of Positions

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

Employer decisions involving the level of services to be provided fall within the management prerogative. These decisions include the creation of new positions, determining the number of hours assigned to new positions, discontinuing a service by abolishing a position and laying off employees; p. 5. The District's decision to change the hours of a vacant, full time position into two 3-3/4 hour positions was within the scope of representation. Since the unusual 3-3/4 hour time base fell below the 4 hours per day required to qualify for the employer's benefit package and the two new part time employees performed the same work previously performed by the full time employee, the District's decision was not an exercise of the management prerogative reflecting a change in the nature, direction or level of service, but a decision based on labor costs associated with that service; pp. 9-10. a change in the nature, direction or level of service, but a decision based on labor costs associated with that service; pp. 9-10.

1000.00000 – SCOPE OF REPRESENTATION
1000.02026 – Contracting Out

* * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *

Contracting out decisions based on a change in the nature and direction of a significant facet of business are not negotiable, but contracting out decisions based on labor cost considerations fall within the scope of representation; p. 7.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

* * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *

Employer decisions involving the level of services to be provided fall within the management prerogative. These decisions include the creation of new positions, determining the number of hours assigned to new positions, discontinuing a service by abolishing a position and laying off employees; p. 5.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

* * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *

After the employer made a unilateral change, participation by the exclusive representative in interest based bargaining session, where the exclusive representative voiced opposition to the change, does not indicate that the parties negotiated and agreed to the change; p. 11; p. 12, proposed decision.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.06000 – Management-Rights Clause; Management Prerogative

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

An employer's decision to change the hours in a vacant position that reflects a change in the nature, direction or level of service falls within the management prerogative and is outside the scope of representation. Conversely, an employer decision based on labor cost considerations that 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; p. 8. The District's decision to change the hours of a vacant, full-time position into two 3-3/4 hour positions was within the scope of representation. Since the unusual 3-3/4 hour time base fell below the 4 hours per day required to qualify for the employer's benefit package and the two new part-time employees performed the same work previously performed by the full-time employee, the District's decision was not an exercise of the management prerogative reflecting a change in the performed by the full-time employee, the District's decision was not an exercise of the management prerogative reflecting a change in the nature, direction or level of service.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

* * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *

The fact that an employer may have employed a part-time employee in a particular position does not show a practice of converting full-time positions into part-time positions; p. 12, proposed decision.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

In unilateral change of hours of vacant position, it is the employer's burden to show the change was not within the scope of bargaining because the change was based on factors other than labor cost considerations.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

* * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *

No prior notice given to exclusive representative when the employer posted announcement and placed advertisement for new positions before the union learned of the plan; p. 10, proposed dec.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

* * * OVERRULED IN PART by Huntington Beach Union High School District (2003) PERB Decision No. 1525, pp. 2-10, where the Board held a change in work hours for a vacant position falls within the scope of representation, even where the change is prompted by an employer’s decision to alter its nature, direction, or level of service. * * *

In unilateral change of hours of vacant position, it is the employer's burden to show the change was not within the scope of bargaining because the change was based on factors other than labor cost considerations.