Decision 2796E – Bellflower Unified School District

Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7).

To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit must prove: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse.

Intent is not necessary in establishing any of the four elements of a prima facie unilateral change case. (City of Montebello (2016) PERB Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M, p. 18 [unilateral changes carry such potential to frustrate negotiations, that they are unlawful “even without evidence of subjective bad faith or malign motive”].)

A contract breach does not constitute an independent EERA violation, and therefore is only actionable at PERB if it would “also constitute an unfair practice.” (EERA, § 3541.5, subd. (b).) A contract breach has a “generalized effect or continuing impact” if either: (1) the breach changes a policy or employment term applicable to future situations; or (2) the employer acts unilaterally based upon an incorrect legal interpretation or insistence on a non-existent legal right that could be relevant to future disputes. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8; see also San Bernardino Community College District (2018) PERB Decision No. 2599, pp. 7-8; City of Davis (2016) PERB Decision No. 2494-M, pp. 20-23; City of Montebello (2016) PERB Decision No. 2491-M, p. 15 [continuing impact or generalized effect found where employer asserts it had a contractual or other right to take the action, essentially asserting a right to repeat the disputed conduct]; County of Santa Clara (2015) PERB Decision No. 2431, p. 19; Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 15 [application of zero tolerance provision of drug testing policy had a generalized effect and continuing impact]; Regents of the University of California (2010) PERB Decision No. 2101-H, p. 25; Hacienda La Puente Unified School District (1997) PERB Decision No. 1186, p. 4 [finding unilateral change because there was “no evidence to suggest” that the employer would in the future refrain from taking similar actions].)

A single deviation from a contract can have a continuing impact rather than merely constituting an “isolated” breach, if the employer has “imposed its own interpretation” on a contractual provision, created a standard not found in the contract, or interpreted the contract in a manner contrary to its intended meaning. (City of Davis (2016) PERB Decision No. 2494-M, p. 20 [explaining the Board’s holdings in three cases involving Regents of the University of California].) Such conduct has a continuing impact to the extent it suggests that a similar scenario may arise in the future and the employer may then take the same approach. (Id. at p. 21; see also Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 9 [single refusal to arbitrate a grievance supported a unilateral change claim because employer asserted the right to act similarly in the future]; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 54, quoting County of Riverside (2003) PERB Decision No. 1577-M, p. 6 [“The failure to properly process even a single grievance has a generalized effect or continuing impact on bargaining unit members’ terms and conditions of employment if ‘the action is based upon the employer’s belief that it had a contractual right to take the action without negotiating with the union.’”]; San Bernardino, supra, PERB Decision No. 2599-M, pp. 7-8 [decision to use GPS to track a single employee had a continuing impact because employer asserted contractual right to do so]; Santa Clara, supra, PERB Decision No. 2431-M, p. 19 [decision not to reimburse single employee for tuition expenses could have continuing impact if it reflected employer’s assertion of incorrect contractual interpretation that could arise again].)

There are three primary means of establishing that an employer changed or deviated from the status quo. Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (County of Merced (2020) PERB Decision No. 2740-M, p. 9.) While the first two alternatives require a “reversal of a previous understanding,” the third alternative does not.

Past practice can be used to establish the status quo from which we assess an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous written language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) However, the inquiry is fundamentally different when analyzing the parties’ past practice to help ascertain the meaning of ambiguous language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In these 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.)

Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7).

Even where a new contract interpretation has a continuing impact, PERB defers to contractual procedures if: (1) the dispute arises within a stable collective bargaining relationship; (2) the employer is willing to waive procedural defenses to arbitration and arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7).

While the technical rules of evidence do not apply in a PERB formal hearing, where a party timely objects to evidence based on a meritorious hearsay argument, PERB cannot make a material factual finding based solely on such hearsay evidence. (PERB Reg. 32176.) Union witness’s testimony was not hearsay because she was recounting the statement of a party opponent, while the District’s grievance falls under the official records exception to the hearsay rule. (Bellflower Unified School District (2014) PERB Decision No. 2385, pp. 9-11.)

Compliance proceedings generally should not lead to protracted litigation. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) This principle particularly apt in case where affected teachers will at most be owed 30 minutes of extra pay, plus 7 percent annual interest. With these principles in mind, the Board afforded the compliance officer the discretion to consider any number of methods to expedite compliance. Where the Board directed the compliance officer to resolved in compliance proceedings which teachers more likely than not attended a certain meeting for which they were due compensation, the compliance officer could consider accepting sworn declarations or convening a virtual hearing. Any person who was present at the meeting in question could, depending on the extent of her or his recollection, provide evidence as to who else was present. The Association may subpoena, or the District may agree to produce, any sign-in sheets or other attendance records in the District’s possession. Alternatively, the parties may negotiate to resolve all make-whole relief issues, thereby saving further litigation expenses.

An order that may require the compliance officer to engage in some approximation is preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied.” (Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13, citing City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.)

PERB’s customary remedy for an employer’s unlawful unilateral change includes directing that the charging party and affected employees be made whole. (Lodi Unified School District (2020) PERB Decision No. 2723, p. 20.) An order that may require the compliance officer to engage in some approximation is preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied.” (Id. at p. 21, fn. 13, citing City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.)