Decision 2618E – Antelope Valley Community College District

LA-CE-5931-E

Decision Date: December 28, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 113

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

The parties’ practical construction of a contract, as shown by their actions, is important evidence of their intent, and helps us to resolve ambiguities in the contract. (See Crestview Cemetery Assn. v. Dieden (1960) 54 Cal.2d 744, 753 (Crestview Cemetery Assn.); Hernandez v. Badger Construction Equipment Co. (1994) 28 Cal.App.4th 1791, 1814.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

While the parties’ past practice in this case may have been sufficient to meet the Pajaro standard, we need not reach that question, because the inquiry is fundamentally different when the parties’ past practices are considered to help define the meaning of contract language. In such situations, we scrutinize the parties’ application of their own agreement in order to discern its meaning:
This rule of practical construction is predicated on the common sense concept that “actions speak louder than words.” Words are frequently but an imperfect medium to convey thought and intention. When the parties to a contract perform under it and demonstrate by their conduct that they knew what they were talking about the courts [and the Board] should enforce that intent.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.04000 – Circumvention of Union; Direct Dealing With Employees

Here, the ALJ cited State of California (Department of Motor Vehicles) (1999) PERB Dec. No. 1347-S (DMV) to support his conclusion that article 11.2 authorized the District to deal directly with unit employees regarding workweek modifications. However, the plain language of the contract in DMV unambiguously waived the union’s right to bargain. Specifically, it allowed the employer to “establish, pursuant to an operational need or a request by either a [union] representative or an employee, flexible work hours.” (Id., adopting partial dismissal letter, p. 2, emphasis added.) In other words, changes to work hours did not require any employee or union approval, and certainly did not require approval by the majority of affected employees. This is not the case here. In these circumstances, the District’s decision to discuss workweek modifications with every employee individually had the effect of nullifying its contractual duty to obtain majority approval. The District sought to obtain a waiver or modification of its contractual promise not to impose modified workweeks without first obtaining the approval of the majority of affected employees. Under our law, this conduct constitutes a paradigmatic example of direct dealing.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

Although back pay calculations are a matter for compliance, the parties’ exceptions indicate that our remedy requires clarification in order to provide guidance for the compliance process. We first address the District’s primary argument in its cross-exceptions, which relates to the measure of make whole relief, and we conclude as follows, using an example of an employee working four nine-hour days and one four-hour day. But for the District’s unilateral change, the employee’s ninth hour of work on the first four days of the week would earn either wages or compensatory time off at a premium time-and-a-half rate, per the contract; the District would have a choice between those two options, also per the contract. Thus, such an employee should earn either 42 hours of pay for the week, or should receive 40 hours of pay plus two hours of compensatory time off, at the District’s option. The District is wrong to the extent it suggests that it may choose the compensatory time off option and then offset the employee’s half day off on Friday afternoon against the two hours of compensatory time it owes the employee. That is an analytical error, as an employee who works 40 hours in a week has not used any compensatory time off that week.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

Next, we turn to the Federation’s contention that all affected unit employees are entitled to the above-described remedy regardless of whether the Federation proved that each one opposed the District’s workweek change. We concur with the Federation’s view for two principal reasons. First, we must adopt that approach in order to effectuate the purposes of EERA. We cannot give effect to undocumented and unproven employee “approvals,” especially since the District claims to have obtained these approvals when it refused to honor a contractually-required majority vote and unilaterally adopted a new policy allowing for one-on-one discussions in which supervisors could extract “approvals” from individual employees. Second, the Federation’s approach is more consistent with precedent. As noted, PERB orders make whole relief to compensate employees for the difference between what they actually earned and what they would have earned, but for the employer’s illegal conduct.