Decision A518E – Pasadena Area Community College District

A school or college has a decision bargaining duty regarding changes to its employee work calendar, not its student attendance dates, irrespective of whether student academic dates match up entirely with employee work dates. (Antelope Valley Community College District (2023) PERB Decision No. 2854, p. 4.) (p. 7, fn. 5.)

A community college district has no duty to bargain before deciding to offer fewer intersession courses. (See Pasadena Area Community College District (2011) PERB Decision No. 2218, adopting proposed decision at pp. 4-6 [no duty to bargain over canceling courses, though union has right to bargain over effects].) (pp. 17-18.)

In compliance proceedings, the parties agreed that the Board agent should first resolve make-whole relief for faculty, before turning to litigation sanctions. Because the Board agent had not yet addressed the litigation sanctions the District owes, the administrative determination (AD) was an interlocutory order rather than a final one. (See Morgan Hill Unified School District (2016) PERB Order No. Ad-443, pp. 4-5.) Although the District did not seek permission to file an interlocutory appeal as required in PERB Regulation 32200, the Board resolved the appeal nonetheless because the AD wrongly stated that the parties could file an appeal under PERB Regulation 32360. (p. 3, fn. 3.)

A decision of the Board itself regarding alleged unfair practices will qualify as a “final decision or order of the board in an unfair practice case” pursuant to Government Code section 3542, subdivision (b), if the decision dismisses all allegations or if the only process that remains to be finished is ensuring compliance with a remedial order. Respondents in most unfair practice cases therefore can consider whether to file an appellate writ before they must comply with a remedial order the Board issues. Occasionally, a respondent has the right to appeal two different Board decisions in the same case—an initial appeal regarding the Board’s main decision and then, after that appeal ends and PERB compliance proceedings take place, a second appeal limited to any new Board decision regarding compliance. The
Board’s order is interlocutory, as it addresses just one question and remands for further proceedings on multiple compliance issues. Therefore, it is not yet appealable under Government Code section 3542, subdivision (b), and the period in which a party may file a writ on compliance issues would begin only after any final compliance order issued by the Board itself. (See State of California (California Correctional Health Care Services) (2024) PERB Decision No. 2888-S, p. 38, fn. 17 [decision reversing and remanding for further litigation is not a final decision subject to appeal].) (p. 22, fn. 12.)

In considering the District’s appeal regarding damages calculations made by a Board agent in compliance proceedings, the Board accepted as settled the ALJ’s conclusions—to which neither party had excepted—but reviewed the Board agent’s determinations de novo to the extent they went beyond the ALJ’s conclusions. (p. 3.)

In compliance proceedings, the parties agreed that the Board agent should first resolve make-whole relief for faculty, before turning to litigation sanctions. Because the Board agent had not yet addressed the litigation sanctions the District owes, the administrative determination (AD) was an interlocutory order rather than a final one. (See Morgan Hill Unified School District (2016) PERB Order No. Ad-443, pp. 4-5.) Although the District did not seek permission to file an interlocutory appeal as required in PERB Regulation 32200, the Board resolved the appeal nonetheless because the AD wrongly stated that the parties could file an appeal under PERB Regulation 32360. (p. 3, fn. 3.)

Pursuant to PERB Regulation 32980, subdivision (a), PERB’s Office of the General Counsel assigns a Board agent to ensure that the parties comply with final Board orders.

Compliance proceedings should typically not lead to protracted litigation. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 15.) For instance, during compliance proceedings in cases where an unlawful unilateral change affected a sizable number of employees, obtaining individualized testimony or declarations from each impacted employee will rarely be a realistic or preferred means of estimating damages. But individualized testimony is more likely to be warranted if a small number of employees are individually owed an unusually large sum. (Id. at pp. 15, 64-130 & 136-137 [impacted employees testified during compliance proceedings in case where employer owed over $1,000,000 to 10 employees].) (p. 14.)

Faculty association sought damages for District’s unilateral change replacing the winter intersession with a second summer intersession. However, the faculty association proposed a methodology to estimate damages based on a change the complaint did not challenge: the District offering fewer total intersession work hours in the damages years than it did in the status quo year. The Board agent nonetheless adopted the faculty association’s methodology, and noted its approach sought to estimate “the amount of backpay compensation owed because of the reduction of hours.” This was an error given that the final decision did not find a duty to bargain over a reduction in intersession hours. The Board remanded to the Office of General Counsel to make reasonable efforts to more narrowly tailor its damages order to the District’s violations, excluding to the extent feasible those resulting from the lower number of intersession classes offered, while recognizing that PERB resolves uncertainties against the wrongdoer. (See City of Glendale (2020) PERB Decision No. 2694-M, pp. 74-75 [where decision to eliminate mechanic classification was based upon both a lawful decision to reduce the amount of overall construction and an unlawful decision to subcontract and transfer remaining work, Board directed compliance officer to estimate harms caused by unlawful conduct].) The Board instructed that on remand, the Board agent’s task is to arrive at a rationally supported methodology that, on average, estimates harm resulting from unlawful conduct rather than from the lower number of intersession classes in the damages years. (pp. 15-17.)

A decision of the Board itself regarding alleged unfair practices will qualify as a “final decision or order of the board in an unfair practice case” pursuant to Government Code section 3542, subdivision (b), if the decision dismisses all allegations or if the only process that remains to be finished is ensuring compliance with a remedial order. Respondents in most unfair practice cases therefore can consider whether to file an appellate writ before they must comply with a remedial order the Board issues. Occasionally, a respondent has the right to appeal two different Board decisions in the same case—an initial appeal regarding the Board’s main decision and then, after that appeal ends and PERB compliance proceedings take place, a second appeal limited to any new Board decision regarding compliance. The
Board’s order is interlocutory, as it addresses just one question and remands for further proceedings on multiple compliance issues. Therefore, it is not yet appealable under Government Code section 3542, subdivision (b), and the period in which a party may file a writ on compliance issues would begin only after any final compliance order issued by the Board itself. (See State of California (California Correctional Health Care Services) (2024) PERB Decision No. 2888-S, p. 38, fn. 17 [decision reversing and remanding for further litigation is not a final decision subject to appeal].) (p. 22, fn. 12.)

In calculating damages for loss of opportunity to teach during winter intersession, the District urged that PERB offset damages with both unemployment benefits and income faculty earned during summer intersessions at the District, but it did not seek to carry its burden to show that any faculty member failed to mitigate damages by seeking employment elsewhere. (See Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 29 (Bellflower) [respondent that violated the law bears the burden of proving failure to mitigate damages].) The District therefore waived any such argument. Moreover, unemployment benefits are not interim earnings that offset damages. (Id. at p. 31.)

A charging party bears the burden of proving by a preponderance of the evidence that a violation materially caused harm. ( Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 26 (Bellflower).) However, the charging party need not prove damages precisely. Rather, make-whole relief usually involves predictions and estimates, and thus an approximation may be sufficient to meet the charging party’s burden. (Bellflower, supra, at p. 26; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 14.) PERB resolves uncertainties against the wrongdoer. (Bellflower, supra, at p. 26; Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13; City of Culver City (2020) PERB Decision No. 2731-M, p. 26; City of Pasadena, supra, at p. 27.) Moreover, provided that an estimate has a rational basis and is not so excessive as to be punitive, it appropriately serves both a compensatory and deterrent function. (Bellflower, supra, at p. 26; City of Pasadena, supra, at p. 13.) (pp. 13-14.)

A charging party bears the burden of proving by a preponderance of the evidence that a violation materially caused harm. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 26 (Bellflower).) However, the charging party need not prove damages precisely. Rather, make-whole relief usually involves predictions and estimates, and thus an approximation may be sufficient to meet the charging party’s burden. (Bellflower, supra, at p. 26; City of Pasadena (2014) PERB Order No. Ad-406-M, p. 14.) PERB resolves uncertainties against the wrongdoer. (Bellflower, supra, at p. 26; Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13; City of Culver City (2020) PERB Decision No. 2731-M, p. 26; City of Pasadena, supra, at p. 27.) Moreover, provided that an estimate has a rational basis and is not so excessive as to be punitive, it appropriately serves both a compensatory and deterrent function. (Bellflower, supra, at p. 26; City of Pasadena, supra, at p. 13.) (pp. 13-14.)

In calculating damages for loss of opportunity to teach during winter intersession, the District urged that PERB offset damages with both unemployment benefits and income faculty earned during summer intersessions at the District, but it did not seek to carry its burden to show that any faculty member failed to mitigate damages by seeking employment elsewhere. (See Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 29 (Bellflower) [respondent that violated the law bears the burden of proving failure to mitigate damages].) The District therefore waived any such argument. Moreover, unemployment benefits are not interim earnings that offset damages. (Id. at p. 31.)

When calculating damages over multiple years, if an employee’s potential loss was more than offset in one of the two years (i.e., the formula for that year yields a negative number), that amount does not offset losses (if any) in the other year. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 33.) Moreover, the employer cannot seek to offset the harm certain employees have incurred by pointing to other employees who benefited from the employer’s unlawful conduct. Rather, PERB orders a wrongdoer to make whole impacted employees while holding harmless innocent actors who benefited. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, p. 42; County of Kern (2018) PERB Decision No. 2615-M, pp. 11-12.) (pp. 18-19, fns. 10 & 11.)

Theoretical rights have at most limited relevance when PERB’s task is to estimate losses that employees more likely than not would have avoided had the status quo remained the same. Thus, in ascertaining damages for a unilateral change violation, the central damages inquiry is to ascertain those faculty who more likely than not lost the opportunity to teach during winter intersessions which, in each of two years, were replaced with a second summer intersession because of the District’s unlawful conduct. That inquiry does not turn on whether faculty had a statutory right to teach during an intersession, or whether management had a statutory right to refrain from rehiring part-time faculty from term to term. (pp. 18-19.)

PERB orders payment of overtime as part of backpay when the charging party establishes that a violation more likely than not caused a loss of overtime opportunities. (Antelope Valley Community College District (2018) PERB Decision No. 2618, pp. 25-26 [ordering backpay for lost overtime]; County of Riverside (2018) PERB Decision No. 2591a-M, p. 2 [same]; San Jacinto Unified School District (1994) PERB Decision No. 1078, p. 4 [overtime awarded based on extrapolating from overtime worked over previous three years]; cf. Long Beach Community College District (2009) PERB Decision No. 2002, p. 18 [backpay did not include daily overtime because the impacted employees had voluntarily agreed to work four ten-hour shifts, and thus were not eligible for daily overtime under the parties’ contract].) (p. 21.)

A party to a PERB matter seeking litigation expenses based upon its attorney fees and costs in that matter must normally prove that its opponent maintained a claim, defense, or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Although the District raised arguments that had already been resolved and were no longer subject to dispute, the District integrated those arguments with non-frivolous ones and convinced the Board to reverse the Board agent’s administrative determination. Accordingly, the Board did not find the District’s conduct in litigating compliance issues met the sanctions standard. (pp. 21-22.)

If neither party files exceptions to a proposed decision of an administrative law judge, the proposed decision becomes final and binding on the parties. (See Regents of the University of California (2023) PERB Decision No. 2884-H, p. 6 [noting impact of final decisions issued after neither party excepts to a proposed decision].) By declining to file exceptions to the proposed decision, the District waived its right to challenge the ALJ’s conclusions. (City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 15-17.) (pp. 1-2.)