Decision 2803E – Oxnard Union High School District

PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive/ procedural defenses and to 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. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 19-20; County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7.)

In County of Santa Clara (2021) PERB Order No. Ad-485-M, PERB explained how the deferral test applies if an unfair practice charge contains multiple claims. Three principles are paramount. First, if a claim is purely derivative—meaning that a charging party cannot establish it without also establishing another claim—then PERB defers the derivative claim if and only if the claim it derives from satisfies the deferral test. (Id. at pp. 9-10.) Second, if multiple claims can be established independently of one another but they are factually or legally interrelated, then PERB does not defer any of them unless each claim meets the deferral test. (Id. at pp. 10-12.) This rule serves to prevent unnecessary piecemeal litigation. (Ibid.) Finally, if multiple independent claims are neither factually nor legally interrelated, then PERB applies the deferral test separately to each claim and may defer any of them depending on how the test applies to each respective claim. (Ibid.) Thus, a charging party cannot avoid deferral of one claim by choosing to include in the same charge an unrelated, non-deferrable claim.

The most critical prong of the deferral test is often whether the contract and its meaning “lie at the center of the dispute.” To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) “[I]t is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid.; Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.) Second, resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (Santa Clara, supra, PERB Order No. Ad-485-M, p. 8.) This condition may be met if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue. (Id. at p. 8, fn. 6.) If resolution of the alleged unfair practice requires application of statutory legal standards, and “there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles,” deferral is not appropriate. (Id. at p. 8.) The District did not carry its burden of establishing that deferral is appropriate where the parties’ CBAs contravene the neutral contractual interpretation standards PERB applies in a unilateral change case (see Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 25-26 [deferral inappropriate both because contract limited arbitrator from providing full make-whole remedy and because contract limited arbitrator from fully considering the issues at stake] and limit the arbitrator to only the interpretation or application of a contract term, which would not resolve the issues arising from the District’s failure to bargain the effects of its decisions. (See Pleasanton Joint School District (1986) PERB Decision No. 594, pp. 2-6 [deferral inappropriate where contract limited arbitrator to finding violation of “express terms,” thereby preventing arbitrator from considering full breadth of issues at stake in unilateral change case].)

Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) The employer violates this duty if it fails to provide adequate advance notice, and in such circumstances the union need not request to bargain effects as a prerequisite to filing an unfair practice charge. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 30-32.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Id. at p. 30.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (County of Sacramento (2013) PERB Decision No. 2315-M, p. 9; Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 13.)

Where an employer has an obligation to meet and confer over reasonably foreseeable effects a decision, an employer may implement its decision before completing effects bargaining if it can establish each of three elements: (1) the implementation date was based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.)

Where neither party declared impasse in effects negotiations—much less exhausted EERA’s post-impasse procedures—any claimed right to implement an allegedly non-negotiable decision before exhausting such impasse procedures would be contingent on evidence of an immutable deadline or important managerial interest, as well on the employer negotiating in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.)

An employer must meet and confer over alternatives to the decision as part of effects bargaining. (County of Sonoma (2021) PERB Decision No. 2772-M, p. 54 (Sonoma); Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Sonoma, supra, PERB Decision No. 2772-M, p. 55.)

To establish a prima facie case that a respondent employer violated its decision bargaining obligation, an exclusive representative 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 employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.)

District deviated from MOU when it told the Federation it was instituting new employment terms as a fait accompli, without first having raised its staffing concern and bargained in good faith over alternative ideas. When the exclusive representative first learns of a change after the decision has been made, “by definition, there has been inadequate notice.” (City of Sacramento (2013) PERB Decision No. 2351-M, p. 33.)

Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) The employer violates this duty if it fails to provide adequate advance notice, and in such circumstances the union need not request to bargain effects as a prerequisite to filing an unfair practice charge. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 30-32.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Id. at p. 30.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (County of Sacramento (2013) PERB Decision No. 2315-M, p. 9; Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 13.)

Where an employer has an obligation to meet and confer over reasonably foreseeable effects a decision, an employer may implement its decision before completing effects bargaining if it can establish each of three elements: (1) the implementation date was based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.)

Where neither party declared impasse in effects negotiations---much less exhausted EERA’s post-impasse procedures, any claimed right to implement an allegedly non-negotiable decision before exhausting such impasse procedures would be contingent on evidence of an immutable deadline or important managerial interest, as well on the employer negotiating in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.)

An employer must meet and confer over alternatives to the decision as part of effects bargaining. (County of Sonoma (2021) PERB Decision No. 2772-M, p. 54 (Sonoma) [judicial appeal pending]; Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Sonoma, supra, PERB Decision No. 2772-M, p. 55; San Mateo City School District (1984) PERB Decision No. 383, p. 18.)

Where the District repudiated parties’ MOU by requiring employees to participate in hybrid instruction during 2020-2021 school year, the Federation was not required to meet with the District regarding implementation of the decision. (County of Merced (2020) PERB Decision No. 2740-M, p. 20 [employer’s fait accompli obviates any requirement that union pursue negotiations]; Standard School District (2005) PERB Decision No. 1775, adopting proposed decision at p. 16 [bargaining party had no duty to pursue negotiations from position the other party unlawfully changed].)

There are three primary means of establishing that an employer changed or deviated from the status quo. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) 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. (Ibid.)

PERB applies traditional rules of contract law to interpret the parties’ MOUs. (Lodi Unified School District (2020) PERB Decision No. 2723, p. 12 (Lodi).) “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.) Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Lodi, supra, PERB Decision No. 2723, p. 13.) Where contract terms are ambiguous, PERB may look to bargaining history and past practice to discern the parties’ intent. (Ibid.) Regarding the latter, the parties’ past practice under the contract before the dispute arose, i.e., “[t]he parties’ practical construction of a contract,” provides “important evidence of their intent.” (Ibid.)

Having made binding commitments regarding educational employees’ ability to work-at-home during the first full school year of pandemic, it was per se illegal for the District to repudiate its commitments. (County of Tulare (2015) PERB Decision No. 2414-M, pp. 29-30 [“a statute that encouraged the negotiation of agreements, yet permitted the parties to retract their concessions and repudiate their promises whenever they choose, would impede rather than promote good-faith bargaining”]; Standard School District (2005) PERB Decision No. 1775, adopting proposed decision 47 at p. 16 [“[t]he repudiation of an agreement (explicit or implied) is virtually the definition of an unlawful unilateral change”].)

There are three primary means of establishing that an employer changed or deviated from the status quo. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) 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. (Ibid.)

The duty to consult requires a public school employer to “exchange freely information, opinions, and proposals; and to make and consider recommendations under orderly procedures in a conscientious effort to reach agreement by written resolution, regulation, or policy of the governing board effectuating such recommendations.” (San Dieguito Union High School District (1977) EERB Decision No. 22, p. 12, fn. 11.)

An employer is excused temporarily from its normal bargaining obligation when a sudden emergency resulting from circumstances beyond its control leaves it no alternative but to take immediate action, allowing no time for meaningful negotiations before it must act. (Lucia Mar Unified School District (2001) PERB Decision No. 1440, adopting proposed decision at pp. 46-47; Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20.) Because an emergency is not a static event, changes taken in good faith reliance on a necessity defense should be limited to the timeframe that the emergency requires, and there remains an obligation to bargain in good faith as time allows. (See, e.g., Pittsburg Unified School District (1983) PERB Decision No. 318, pp. 17 & 20-21 [one aspect of employer’s unlawful conduct was failure to limit its unilateral change to the period necessitated by the alleged emergency].) The onset of the COVID-19 pandemic presented an emergency that temporarily curtailed the District’s bargaining obligations because the District had to act almost overnight to protect staff, students, and their families from a transmissible, life-threatening virus. Accordingly, the District was permitted to require its employees to work from home in March 2020, provided it bargained in good faith as time allowed. The right to respond to a public health emergency by instituting distance learning must logically include, as a general proposition, the right to return to the status quo in stages, while providing employee unions with advance notice and opportunities to bargain when time allows. (Regents of the University of California (1998) PERB Decision No. 1255-H, adopting proposed decision at p. 37.) In the instant case, however, the District reached an agreement with the Federation that allowed employees the right to work from home for the remainder of the school year unless the District required students to return to in-person instruction.

An employer bears a “heavy burden” if it “wishes to repudiate a collective bargaining agreement” based on a newly enacted law and cannot do so if the new statutory provisions “give the employer discretion.” (Fountain Valley Elementary School District (1987) PERB Decision No. 625, p. 27.)

The “scope of representation,” i.e. the group of mandatory bargaining topics under EERA, is “limited to matters relating to wages, hours of employment, and other terms and conditions of employment.” (EERA, § 3543.2, subd. (a)(1).) EERA provides that “matters not specifically enumerated are reserved to the public school employer.” (EERA, § 3543.2, subd. (a)(4).) However, the Legislature balanced this restrictive language with the expansive language noted above, which requires bargaining over “matters relating to wages, hours of employment, and other terms and conditions of employment.” (San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, 857-860.) The California Supreme Court, noting that these EERA provisions are in tension with one another and that the Legislature authorized PERB to apply its expertise to make close calls on matters that “relate to” employment terms and conditions, has specifically endorsed PERB’s three-part test for distinguishing between mandatory and non-mandatory bargaining topics. (Ibid.) Pursuant to that test, which the Board adopted in Anaheim Union High School District (1981) PERB Decision No. 177 (Anaheim), an employer must bargain over a decision if: “(1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) the subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not significantly abridge [its] freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of [its] mission.” (San Bernardino Community College District (2018) PERB Decision No. 2599, p. 8, quoting Anaheim, supra, PERB Decision No. 177, pp. 4-5.)

In cases involving the MMBA, if there is no prior precedent determining whether a topic falls within the scope of representation, PERB and the California appellate courts apply the test set forth in County of Orange (2018) PERB Decision No. 2594-M, pp. 18-20 (Orange), and International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273. PERB’s inquiry in such cases is fundamentally akin to its inquiry under Anaheim Union High School District (1981) PERB Decision No. 177 (the scope of representation test applicable to EERA), as it considers the extent to which collective bargaining is likely to be valuable as well as the extent to which a bargaining obligation may limit management’s ability to act rapidly on an important managerial prerogative. (Orange, supra, PERB Decision No. 2594-M, pp. 18-20.)

The “scope of representation,” i.e. the group of mandatory bargaining topics under EERA, is “limited to matters relating to wages, hours of employment, and other terms and conditions of employment.” (EERA, § 3543.2, subd. (a)(1).) The same provision explicitly identifies class size as a term or condition of employment. (Ibid.) EERA also establishes a separate category of educational decisions—those regarding educational objectives, curriculum, course content, and textbook selection—over which an exclusive representative may “consult.” (EERA, § 3543.2, subd. (a)(3).) By including class size as a mandatory bargaining subject, and by providing the right to consult over educational objectives, the Legislature implemented EERA’s goal of providing certificated employees with “a voice in the formulation of educational policy.” (EERA, § 3540; Berkeley Unified School District (2015) PERB Decision No. 2411, p. 17.)

A cohort maximum is a mandatory bargaining subject. A cohort maximum is a form of class size, which is within the scope of representation. (EERA, § 3543.2, subd. (a)(1).)

The “scope of representation,” i.e. the group of mandatory bargaining topics under EERA, is “limited to matters relating to wages, hours of employment, and other terms and conditions of employment.” (EERA, § 3543.2, subd. (a)(1).) The same provision explicitly identifies class size as a term or condition of employment. (Ibid.) EERA also establishes a separate category of educational decisions—those regarding educational objectives, curriculum, course content, and textbook selection—over which an exclusive representative may “consult.” (EERA, § 3543.2, subd. (a)(3).) By including class size as a mandatory bargaining subject, and by providing the right to consult over educational objectives, the Legislature implemented EERA’s goal of providing certificated employees with “a voice in the formulation of educational policy.” (EERA, § 3540; Berkeley Unified School District (2015) PERB Decision No. 2411, p. 17.)

The District violated its bargaining duties when it unilaterally imposed a ground rule by refusing to respond to oral proposals. (County of Orange (2018) PERB Decision No. 2594-M, pp. 8-16 [ground rules are equivalent to a mandatory subject of bargaining].)

PERB distinguishes “between student attendance dates and employee work dates.” (Oakland Unified School District (1983) PERB Decision No. 367, p. 34.) Thus, the Board has noted that teacher service does not coincide precisely with instructional dates, and it is possible that accommodations can be made at the bargaining table to insure maintenance of the school year through “innovative planning.” (Palos Verdes Peninsula Unified School District/Pleasant Valley Unified School District (1979) PERB Decision No. 96, pp. 31-32.)

Work-from-home policy is a mandatory bargaining topic.

PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to 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. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 19-20; County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7.)

In County of Santa Clara (2021) PERB Order No. Ad-485-M, PERB explained how the deferral test applies if an unfair practice charge contains multiple claims. Three principles are paramount. First, if a claim is purely derivative—meaning that a charging party cannot establish it without also establishing another claim—then PERB defers the derivative claim if and only if the claim it derives from satisfies the deferral test. (Id. at pp. 9-10.) Second, if multiple claims can be established independently of one another but they are factually or legally interrelated, then PERB does not defer any of them unless each claim meets the deferral test. (Id. at pp. 10-12.) This rule serves to prevent unnecessary piecemeal litigation. (Ibid.) Finally, if multiple independent claims are neither factually nor legally interrelated, then PERB applies the deferral test separately to each claim and may defer any of them depending on how the test applies to each respective claim. (Ibid.) Thus, a charging party cannot avoid deferral of one claim by choosing to include in the same charge an unrelated, non-deferrable claim.

The most critical prong of the deferral test is often whether the contract and its meaning “lie at the center of the dispute.” To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) “[I]t is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid.; Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.) Second, resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (Santa Clara, supra, PERB Order No. Ad-485-M, p. 8.) This condition may be met if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue. (Id. at p. 8, fn. 6.) If resolution of the alleged unfair practice requires application of statutory legal standards, and “there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles,” deferral is not appropriate. (Id. at p. 8.) The District did not carry its burden of establishing that deferral is appropriate where the parties’ CBAs contravene the neutral contractual interpretation standards PERB applies in a unilateral change case (see Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 25-26 [deferral inappropriate both because contract limited arbitrator from providing full make-whole remedy and because contract limited arbitrator from fully considering the issues at stake] and limit the arbitrator to only the interpretation or application of a contract term, which would not resolve the issues arising from the District’s failure to bargain the effects of its decisions. (See Pleasanton Joint School District (1986) PERB Decision No. 594, pp. 2-6 [deferral inappropriate where contract limited arbitrator to finding violation of “express terms,” thereby preventing arbitrator from considering full breadth of issues at stake in unilateral change case].)

PERB Regulation 32176 provides “[h]earsay evidence is admissible but shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.” When a party’s agent makes an admission, PERB applies the admission exception to hearsay.

Evidence tendered about contractual meaning was irrelevant because it related to the District’s subjective understanding of the MOUs that it never shared across the bargaining table while negotiating the agreements. (Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th 601, 617 [a bargaining party’s subjective understanding is irrelevant if it was never disclosed to the other party]; California Teachers’ Assn. v. Governing Bd. of Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 189, fn. 3 [undisclosed subjective intent is irrelevant to determining contractual meaning].)

District admitted that it deviated from the status quo and then promptly returned to the status quo. In such circumstances, an employer is liable for a unilateral change, but if the return to the status quo is permanent, PERB may eschew any remedies that are no longer needed. (County of Sacramento (2008) PERB Decision No. 1943-M, p. 8.)