- School District Violated Rodda Act When It Unilaterally Changed Policies Relating To Health Technicians and Bus Drivers
- April 20, 2010 | Author: Diana D. Halpenny
- Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
In California School Employees Association and Its Chapter 106 v. Desert Sands Unified School District (PERB Decision No. 2092), the Public Employment Relations Board (“PERB”) considered whether Desert Sands Unified School District (“District”) violated the Educational Employment Relations Act (“EERA”) when it (1) unilaterally transferred work from the health technician position to other classifications; (2) changed its policy regarding assignment of field-trip work to bus drivers; (3) changed its practice regarding compensation for behind-the-wheel training for bus drivers; and (4) changed the way in which the duties of bus mechanics were assigned. PERB concluded District unlawfully transferred work from the health technician position and unlawfully changed its policies regarding field-trip work and training compensation for bus drivers, but it did not unlawfully change the duties of bus mechanics.
District employs several classifications of employees to help students who have physical disabilities and those who are “medically fragile.” Included in these classifications are school nurses, who are in the certificated bargaining unit, and special education paraeducators, health technicians, and licensed vocational nurses/special education, who are in the California School Employees Association’s unit (“Association”). Although all of these classifications perform some health-related work, the nature of that work depends on the skill level of each classification. All classifications may administer first aid, dispense medication, and assist in monitoring glucose levels. Certain invasive procedures may be performed by all classifications except for paraeducators.
In 1998, District sought to train paraeducators to perform catheterizations, but paraeducators thought the duty was outside their job description. In response, District created the health technician classification to perform this duty. Both paraeducators and health technicians may assist special education students who do not need catheterization but need assistance in diapering and toileting.
In 2002, District issued layoff notices to all eight health technicians because of “lack of work and/or lack of funds.” Two technicians were offered demotions to paraeducator positions. One of the employees that took a demotion claims she was asked to perform the same duties in the lower paid paraeducator position as she had performed in the health technician position, including riding the bus with medically fragile students.
District’s Director of Student Support Services and Special Education admitted that after the layoffs, the work of health technicians was absorbed by school nurses. District’s lead school nurse stated she did not recall any decrease in the amount of health care work at the time of the health technician layoffs.
PERB noted “a transfer of work from employees in one bargaining unit to employees in another is negotiable.” Also, “the transfer of work from one classification to another within the same bargaining unit is also negotiable.” However, “not all transfers of work are negotiable.” An exception applies “where unit and non-unit employees perform overlapping duties.” PERB stated, “An employer does not violate its duty to negotiate in good faith merely by increasing the quantity of work which non-unit employees perform and decreasing the quantity of work which unit employees perform.” This exception does not apply “where, as a result of the transfer (1) unit employees cease performing duties that they previously performed or (2) non-unit employees begin to perform duties that were previously exclusively performed by unit employees.”
PERB found “both the paraeducator position and the health technician position perform overlapping health-related duties.” The health technicians’ duties were split after the layoff. Some of the duties were transferred to positions that are within the bargaining unit and some to positions that are outside the bargaining unit. Toileting and personal assistance duties were transferred to paraeducators and catheterizations and other invasive procedures were transferred to school nurses, who are outside the bargaining unit.
District laid off all eight of its technicians so “the health technician duties ‘ceased’ to be performed by health technicians.” PERB concluded the exception did not apply and District “breached its duty to bargain by failing to negotiate the transfer of work.” PERB also found “District violated EERA section 3543.5(c) when it unilaterally transferred work from the special education health technician classification without first affording the Association adequate notice or an opportunity to bargain over the change.”
A. Use of Charter Buses
Bus drivers employed by District “are eligible for extra-duty work assignments in the form of field-trips, both during the school day and during non-school hours.” Prior to 2000, the Board Policy and Administrative Regulation (“BP/AR”) 3541.1 provided that, as a general rule, District school buses would be used for transporting students. An exception to this rule provided “the use of charter buses was permitted if it was determined that no District vehicles and/or drivers could be used.” Variation from the policy required approval by the Board. There was a system that differentiated between “local trips” and “out-of-district trips” for distributing extra-duty work to the bus drivers. Local trips were defined at the time “as being within the geographical limits of the District and two adjoining districts.”
Beginning in 2000, some bus drivers began to notice that the number of out-of-town bus trips on school buses had declined. Association filed a grievance concerning field-trips in an effort to address the use of private charter buses. Association proposed that the use of charters be limited to graduation nights and championship athletic events.
In 2002, District proposed to revise BP/AR 3541.1 to delete the language that required school buses to be used for school activities. The new policy provided that District “shall provide transportation with school buses, school pupil bus (SPAB) certified carriers, or other appropriate district vehicles . . . for authorized field trips and . . . activities.” Variation from the policy requires approval by the superintendent or designee. Association objected to the new policy but District adopted the revised policy in November 2002.
PERB found the previous version of BP/AR 3541.1 “contemplated exhausting District vehicles before considering charter buses.” PERB held that under the previous version “the use of a charter bus when an appropriate District bus and driver was available would constitute a variation of BP/AR 3541.1 and require Board approval.” PERB found the “amendment constitutes a significant departure from the pre-2002 policy regarding the District’s use of buses” and “constituted a change in policy regarding the District’s assignment of buses for field-trips.”
PERB held the change of policy impacted a matter within the scope of representation and District breached its duty to bargain when it adopted the revision to the BP/AR without affording Association sufficient opportunity to bargain the change.
B. Behind-the-Wheel Training, Extra-Duty Compensation
Association claimed District unlawfully changed a policy when it stopped paying bus drivers for behind-the-wheel training. PERB found there was no contractual obligation that required District to pay for the bus drivers’ required behind-the-wheel training. However, PERB inquired into whether “District has an unwritten past practice of compensating bus drivers for such training.”
“For a past practice to be binding, it must be: (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties.” PERB found “District had a history of compensating the drivers for the behind-the-wheel training.” District had in the past compensated drivers for 10 hours of behind-the-wheel time and 10 hours of classroom time. District employs a trainer and provides a bus for training purposes. Some drivers complete their training during regular work hours.
PERB concluded that District’s “practice was not varied, vague, ambiguous, or inconsistent” and was “clearly enunciated.” PERB, therefore, held District “unlawfully changed its practice regarding training compensation for bus drivers.”
Prior to 2003, a fleet supervisor assigned bus repair work to mechanics. On October 14, 2003, the mechanics were notified that the fleet supervisor position would not be filled. The new system implemented by District redistributed the work “by assigning each mechanic responsibility for the maintenance and repair of a group of the District’s 65 vehicles.” Each mechanic is assigned 11 to 12 buses and mechanics are required to keep a maintenance log for their buses.
Association claimed there was a change in policy regarding how work is assigned to bus mechanics and that change impacted the mechanics’ hours of work. As a result of the changes “the mechanics most likely took a more active role in reviewing daily bus reports, diagnosing and prioritizing bus repairs, writing up work orders, and ordering parts for their assigned buses.” There was no dispute that the mechanics worked a considerable amount of overtime. The question was whether the change in the method of assigning duties contributed to the overtime.
PERB concluded that the overtime was primarily due to a shortage of bus drivers. Mechanics who were qualified to drive school buses were assigned to drive bus routes and this resulted in mechanics working more hours. PERB concluded “District did not violate its duty to bargain when it assigned individual buses to mechanics.”
What This Means To You
Many districts facing financial difficulties are considering eliminating certain positions and delegating those duties to other employees. However, the transfer of work both inside and outside of a bargaining unit absent negotiation will likely result in an unfair labor practice complaint and districts should consult with counsel prior to implementation of such a plan.