Decision 2833E – Pittsburg Unified School District

SF-CE-3366-E

Decision Date: September 13, 2022

Decision Type: PERB Decision

Description:  An administrative law judge issued a proposed decision finding that the Pittsburg Unified School District violated EERA by changing Adult Education teachers’ summer work hours and for the first time requiring them to apply to teach summer courses, without affording Pittsburg Education Association notice and a prior opportunity to meet and negotiate. The District excepted to the proposed decision.

Disposition:  The Board affirmed the ALJ’s finding of a unilateral change violation as to the application requirement but reversed the ALJ’s finding as to the change in summer work hours.

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Perc Vol: 47
Perc Index: 57

Decision Headnotes

1000.00000 – SCOPE OF REPRESENTATION
1000.02162 – Temporary/Short-term Employees

Rehiring, reelection, course assignment processes, and work hours for temporary teachers fall within the scope of representation. EERA applies without qualification to any “public school employee,” which the statute defines as “a person employed by a public school employer.” EERA therefore applies to both temporary and permanent employees. (p. 8.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

The Board rejected the District’s argument that its challenged decisions were outside the scope of representation because Adult Education teachers are temporary employees under Education Code section 44929.25, and thus are not entitled to any particular hours of work. Rehiring, reelection, course assignment processes, and work hours for temporary teachers fall within the scope of representation. And even where an employer’s decision involves a managerial decision regarding the nature and extent of a public service, the employer nonetheless must bargain over effects on terms or conditions of employment. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that the employer there made no such managerial decision. Rather, it kept public services the same while reallocating which employees did the work and categorically excluding certain employees from working more than 40 hours per week. The employer therefore had a decision bargaining obligation. Moreover, the Board found, Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02064 – Hours of Work

A public school employer is required to bargain over employee work hours but not over instructional dates. Thus, any change to the status quo of Adult Education summer teachers’ paid hours was within the scope of representation. (p. 10.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02156 – Workdays/Workyear

A public school employer is required to bargain over employee work hours but not over instructional dates. Thus, any change to the status quo of Adult Education summer teachers’ paid hours was within the scope of representation. (p. 10.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.)

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.)

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.)