Decision 2684E – Modoc County Office of Education

To establish a prima facie case of an unlawful unilateral change, the charging party must show: (1) the employer took action to change policy; (2) the change in policy concerned a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action has a generalized effect or continuing impact on terms and conditions of employment. (pp. 9-10.)

PERB has recognized three general categories of unilateral changes: (1) changes to the parties’ written agreement; (2) changes in established past practice; and (3) newly created policy or application or enforcement of existing policy in a new way. (p. 9.)

Reductions in work hours constitute a change in policy. (p. 10.)

When the exclusive representative first learns of a change after the decision has been made, “by definition, there has been inadequate notice.” [Citation.] (p. 10.)

An employer’s decision to lay off employees is not a matter within the scope of representation, and only the effects of the layoff decision are negotiable. (p. 10.)

Employees’ daily work hours are within the scope of representation. (p. 10.)

An employer may take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. (p. 11.) A waiver of statutory rights must be “clear and unmistakable,” and the evidence must demonstrate an “intentional relinquishment” of a given right. (p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” [Citation.] “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” [Citation.] (pp. 11-12.)

“Waiver is most readily apparent where the specific subject is covered by the express terms of an existing collective bargaining agreement.” [Citation.] To constitute a waiver, the contract language must “specifically reserve for management the right to take certain action or implement unilateral changes regarding the issues in dispute.” [Citation.] (p. 12.) Waivers must be specifically expressed or necessarily implied, and broadly-worded management rights clauses are often inadequate to constitute a waiver of the right to negotiate over a specific subject. (pp. 12-13.) PERB will not infer a waiver based upon contractual silence. (p. 16.)

In order for PERB to find a waiver when contract language is ambiguous, the bargaining history must show a matter was “fully discussed” or “consciously explored” and the representative “‘consciously’ yielded its interest in the matter.’” [Citation.] (p. 17.) This standard was not met where the record contained no evidence of negotiations that led to the adoption of contract language claimed to constitute a waiver of the Union’s right to bargain over reductions in work hours.

Union’s failure to demand to bargain in past instances where the employer gave notice of a decision to reduce unit employees’ work hours did not waive union’s right to negotiate over any subsequent reduction of work hours. (p. 19.)

Although the Board does not have authority to resolve purely contractual disputes, it may interpret contracts when necessary to resolve an alleged unfair practice. (p. 15.)

In interpreting a contract, the Board relies on traditional rules of contract interpretation and uses the California Civil Code as a guide. Hence, the Board begins analyzing a contract by examining the parties’ intent, as demonstrated by the ordinary and plain meaning of the contract language. (p. 15.)

When contract terms are ambiguous, PERB may look to extrinsic evidence such as bargaining history to discern the parties’ intent. Bargaining proposals and parties’ discussions of those proposals are the most probative forms of extrinsic evidence in interpreting a collective bargaining agreement. Testimony regarding a party’s subjective understanding of a contract provision is of minimal value absent evidence that the parties mutually discussed their respective understandings during bargaining. (pp. 16-17.)

PERB may ascertain established policy from past practice where the contract is silent or ambiguous as to a policy. (p. 17.) “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.” [Citation.] However, evidence of past practice based upon a union’s acquiescence to a previous unilateral change is not relevant to a waiver defense because such acquiescence does not operate as a waiver of the right to bargain for all times. (p. 18.)

PERB’s standard remedy for an employer’s unlawful unilateral change includes a cease-and-desist order. (p. 19.)

PERB’s standard remedy for an employer’s unlawful unilateral change includes appropriate make-whole relief including back pay and benefits with interest. (p. 19.)

Limited back pay remedy appropriate where employer reduced employee’s daily work hours, and employee later obtained sufficient hours to return to the prior status quo. (p. 20.)