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

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The parties’ past practice under the contract before the dispute arose is important evidence of their intent. Past practice can be used to establish the status quo from which PERB assesses an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous MOU language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted,” but in the latter instance it need not be as definitive. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 22.) The parties’ past practice met the higher standard, as it was “regular and consistent,” as well as “historic and accepted.” Thus, the Union has established a change in past practice, though even if it could not meet that standard, there would still be no question that the County adopted a new policy setting forth detailed changed parameters for assigning mandatory overtime, and applied and enforced its mandatory overtime policy in a new way. Because the Board found that the parties’ past practice met the higher standard of being “regular and consistent” or “historic and accepted,” a fortiori, it was more than strong enough to be a relevant factor in interpreting the MOU for purposes of resolving the County’s MOU-based defense.