Decision 2723E – Lodi Unified School District

The District’s ongoing enforcement of an interpretation contrary to the parties’ agreement concurrently violates EERA 3543.5, subdivision (a) and EERA 3543.5, subdivision (b) because it necessarily interferes with employees in the exercise of protected rights by denying the statutory right of an exclusive representative to represent unit members in their employment relations. (San Francisco Community College District (1979) PERB Decision No. 105, pp.12-13.)

It is unlawful for a public school employer to “[r]efuse or fail to meet and negotiate in good faith with an exclusive representative.” (EERA, § 3543.5, subd. (c).) A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove: (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. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9.) The Board 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. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) The fundamental dispute between the parties in Lodi Unified School District centers on the first element of the prima facie case: whether the District took actions to change policy, either by changing the terms of the agreement or altering its past practice regarding vacation scheduling and cash out of vacation hours over the maximum carryover amount.

“PERB may interpret contract language if doing so is necessary in deciding an unfair practice charge case.” (County of Ventura (2007) PERB Decision No. 1910-M, p. 9.) Traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB Decision No. 313, pp. 15-16.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “[T]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.) Thus, the Board must avoid interpreting contract language in a way which leaves a provision without effect. (State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.)

The parties’ contract language clearly and unambiguously provided that (1) employees maintain the right to schedule their vacation, subject to work requirements as determined by their supervisors; and (2) at the conclusion of each fiscal year, the District must pay out accrued but unused vacation time over the maximum carryover amount, except that employees experiencing an illness or injury may exceed the carryover cap if their illness or injury prevented them from taking vacation during the fiscal year. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.)

The Board declined to determine whether the parties’ past practice was sufficient to meet the independent standard for a unilateral change, because the inquiry is fundamentally different when the parties’ past practices are considered to help interpret the meaning of contract language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In such circumstances, “the past practice is but one tool for interpreting the contract, and therefore need not be as definitive as when it is defining the status quo in the absence of a contract term.” (Id. at p. 22.) The Board found the District’s conduct—cashing out vacation balances over the maximum carryover amount twice in the year following ratification—indicative of the meaning of the CBA.

“PERB may interpret contract language if doing so is necessary in deciding an unfair practice charge case.” (County of Ventura (2007) PERB Decision No. 1910-M, p. 9.) Traditional rules of contract law guide interpretation of a collective bargaining agreement between a public employer and a recognized employee organization. (National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th 1274, 1279; Grossmont Union High School District (1983) PERB Decision No. 313, pp. 15-16.) “A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Civ. Code, § 1636.) “[T]he whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” (Civ. Code, § 1641.) Thus, the Board must avoid interpreting contract language in a way which leaves a provision without effect. (State of California (Department of Corrections) (1999) PERB Decision No. 1317-S, p. 9.)

The parties’ contract language clearly and unambiguously provided that (1) employees maintain the right to schedule their vacation, subject to work requirements as determined by their supervisors; and (2) at the conclusion of each fiscal year, the District must pay out accrued but unused vacation time over the maximum carryover amount, except that employees experiencing an illness or injury may exceed the carryover cap if their illness or injury prevented them from taking vacation during the fiscal year. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code, § 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.)

By the plain language, the District appeared to replace the provisions of one provision—requiring employees over the cap to submit vacation plans and providing that supervisors may schedule vacation on behalf of employees—with a provision to cash out balances over the cap on an annual basis. CSEA was reasonable in its belief that the plain language spoke for itself, and the District should reasonably have anticipated this understanding. In such circumstances, the District negligently agreed to the terms of the agreement, but CSEA was not equally negligent, and the District is bound by its agreement. (See Merced County Sheriff’s Employee’s Association v. County of Merced (1987) 233 Cal.Rptr. 519, 673.)