Decision 2854E – Antelope Valley Community College District

Under EERA, 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.” While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent applying the three-part test distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. (pp. 3-5.)

The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.)

While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.)

While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.)

While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.)

In cases where an employer fails to fulfill its bargaining obligation before altering instructors’ work calendar as part of adjusting the student academic calendar, PERB has delayed its requirement to restore the status quo when necessary to prevent unwarranted disruption or interference with student instruction or district operations. The Board found such a delay appropriate here, though the parties were afforded the opportunity to modify the rescission date by mutual agreement. The record shows that the District adopted the calendar changes on December 9, 2019, in order to implement them for the 2020-2021 academic year. The Board ordered a similar timeline for rescinding those changes. Thus, absent mutual agreement, the District must rescind the unilaterally adopted changes to the calendar at the beginning of the next successive academic year following the date the decision is no longer subject to appeal. If that date falls after December 9 of an academic year, rescission must occur at the beginning of the second successive academic year after that date. (pp. 6-7.)

The Board found it appropriate to order the District to make employees whole for any losses suffered as a result of the District’s failure to meet and negotiate in good faith over changes to the academic calendar that altered distribution of instructors’ workdays, holidays, and workload. Although the Faculty Union presented no evidence that any employee suffered a loss as a result of the calendar changes, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the Faculty Union will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss of compensation or benefits as a result of the changes to the 2020 2021 calendar and its continuation in subsequent academic years. (p. 7.)

In accord with the Board’s standard unilateral change remedy, the Board found it appropriate to order the District to cease and desist from the unlawful conduct found in this decision, to meet and negotiate with the Faculty Union upon request over changes to instructors’ work calendar, and to post physical and electronic notices of its violation. (p. 7.)