Decision 1682E – Desert Sands Unified School District

LA-CE-4273-E

Decision Date: August 25, 2004

Decision Type: PERB Decision

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Perc Vol: 28
Perc Index: 241

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

The Board has long held that a transfer of unit work from one group of employees to another to be within the scope of representation. The installation of covert cameras was identified as an essential job function on the ERT job description, a document negotiated by the parties and approved by the District’s board and personnel commission and thus not a “function not previously performed” and thereby within managerial prerogative.) Under Eureka City School District (1985) PERB Decision No. 481 (Eureka), transfers of unit work are negotiable where unit employees cease performing duties that they previously performed or non-unit employees begin to perform duties that were previously exclusively performed by unit employees. As the District has completely removed the covert camera installation function from ERTs, these facts fit within the first prong of Eureka. Transfer of unit work between classifications within the same unit is also negotiable. (Desert Sands Unified School District (2001) PERB Decision No. 1468.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

Transfer of installation work is a permanent change in policy and must be negotiated.

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

CSEA did not clearly and unmistakably waive its right to negotiate the change in policy. The word “assign” in the District Rights clause does not clearly convey the right to permanently transfer work outside the ERT classification without first negotiating with CSEA. The Higher Classification provision merely allows higher pay for an employee temporarily assigned to perform work in a higher classification.

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

The Board has long held that a transfer of unit work from one group of employees to another to be within the scope of representation. The installation of covert cameras was identified as an essential job function on the ERT job description, a document negotiated by the parties and approved by the District’s board and personnel commission and thus not a “function not previously performed” and thereby within managerial prerogative. Under Eureka City School District (1985) PERB Decision No. 481 (Eureka), transfers of unit work are negotiable where unit employees cease performing duties that they previously performed or non-unit employees begin to perform duties that were previously exclusively performed by unit employees. As the District has completely removed the covert camera installation function from ERTs, these facts fit within the first prong of Eureka. Transfer of unit work between classifications within the same unit is also negotiable. (Desert Sands Unified School District (2001) PERB Decision No. 1468.)

1102.00000 – CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION
1102.02000 – Post Arbitration; Repugnancy

CSEA’s motion to amend its charge at the hearing to add an allegation of retaliation was denied as untimely. The proposed amendment also did not fall within an exception to the limitations provision in that it did was not fully litigated during the hearing. It should be noted that since the issuance of the proposed decision and the submission of exceptions and responses, the Board issued Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach) in which it reexamined whether the statute of limitations is a jurisdictional bar and found it instead to be an affirmative defense. As neither party excepted to the ALJ’s ruling on this issue, the Board did not address the effect of Long Beach on this case.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.02000 – Motions

CSEA’s motion to amend its charge at the hearing to add an allegation of retaliation was denied as untimely. The proposed amendment also did not fall within an exception to the limitations provision in that it did was not fully litigated during the hearing. It should be noted that since the issuance of the proposed decision and the submission of exceptions and responses, the Board issued Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach) in which it reexamined whether the statute of limitations is a jurisdictional bar and found it instead to be an affirmative defense. As neither party excepted to the ALJ’s ruling on this issue, the Board did not address the effect of Long Beach on this case.

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
1203.01000 – In General

The appropriate remedy in this case is an order to return to the status quo and to negotiate with CSEA regarding transfer of unit work.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

The appropriate remedy in this case is an order to return to the status quo and to negotiate with CSEA regarding transfer of unit work.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

CSEA did not clearly and unmistakably waive its right to negotiate the change in policy. The word “assign” in the District Rights clause does not clearly convey the right to permanently transfer work outside the ERT classification without first negotiating with CSEA. The Higher Classification provision merely allows higher pay for an employee temporarily assigned to perform work in a higher classification.