Decision A487E – Antelope Valley Community College District

LA-CE-5931-E

Decision Date: August 27, 2021

Decision Type: Administrative Appeal

Description:  In compliance proceedings for Antelope Valley Community College District (2018) PERB Decision No. 2618, PERB’s Office of the General Counsel issued an administrative determination to resolve some compliance issues. OGC found, in relevant part, that the Board’s order: (1) authorizes the District to compensate current employees with its choice of compensatory time off or backpay pursuant to the parties’ collective bargaining agreement (CBA); and (2) does not require unit members who subsequently changed to a different alternate work schedule after February 2014, to be made whole for the period following the subsequent change. The Federation appealed, seeking reversal of these two findings.  The Board partially granted the appeal and found that employees who subsequently changed to a different alternate work schedule are presumptively entitled to the decision’s make-whole remedy until the District restores the standard 5/8 workweek, except to the extent that the District proves in compliance proceedings that an employee successfully asked for a new schedule and would clearly have done so irrespective of the District’s unfair labor practice. The Board affirmed OGC’s determination that the decision’s make-whole order allows the District to choose whether to make affected employees whole by providing backpay or compensatory time off.

Disposition: Partially granted. The compliance case is remanded to the OGC to collect additional evidence to determine whether the District has complied with the remedial order in Antelope Valley Community College District (2018) PERB Decision No. 2618, in accordance with this Order.

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Perc Vol: 46
Perc Index: 56

Decision Headnotes

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

“Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that ‘[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.’” (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 8.) (p. 5.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

Compliance proceedings are not a venue for relitigating the merits of the underlying decision and order. (p. 5.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.02000 – Burden of Proof

It is the respondent’s burden to demonstrate its compliance with PERB’s remedial order. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, adopting proposed decision at pp. 8-9; City & County of San Francisco (2021) PERB Decision No. 2757-M, p. 15, fn. 10.) The Board’s finding “that an unfair labor practice was committed is presumptive proof that at least some backpay is owed.” (Bellflower Unified School District, supra, PERB Order No. Ad-475, p. 10, citing Arlington Hotel Co., Inc. (1987) 287 NLRB 851, 855.) “‘[A]ny uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.’” (pp. 9-10.)