West Valley-Mission Community College District (PERB 2917E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
WEST VALLEY- MISSION FEDERATION OF
TEACHERS, AFT LOCAL 6554,
Charging Party,
v.
WEST VALLEY-MISSION COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. SF-CE-3482-E
PERB Decision No. 2917
September 4, 2024
Appearances: Law Offices of Robert J. Bezemek by Robert J. Bezemek, Tanya Smith,
and Alexandra A. Iova, Attorneys, for West Valley-Mission Federation of Teachers,
AFT Local 6554; Atkinson, Andelson, Loya, Ruud & Romo by Alex A. Lozada and
DeAnna L. Solina, Attorneys, for West Valley-Mission Community College District.
Before Krantz, Paulson and Nazarian, Members.
DECISION
NAZARIAN, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by Respondent West Valley-Mission
Community College District to a proposed decision of an administrative law judge
(ALJ). The ALJ found that the District violated the Educational Employment Relations
Act1 (EERA) by unilaterally changing terms and conditions of employment when it
required academic counselors, who are non-instructional faculty represented by
1 EERA is codified at Government Code, section 3540 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

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Charging Party West Valley-Mission Federation of Teachers, AFT Local 6554
(WVMFT), to work 100 percent in person during the Spring 2022 school term, whether
the counseling sessions were in person or online.
In its exceptions, the District argues that it did not violate EERA because it was
not required to bargain over merely returning to the pre-COVID-19 status quo.
Employing this argument, the District attempts to distinguish our decision in Oxnard
Union High School District (2023) PERB Decision No. 2803 (Oxnard), where we found
that the high school district unilaterally repudiated COVID-19 memoranda of
understanding (MOUs) that required hybrid education to be offered on a voluntary
basis for teachers. In that decision, we found that changes to work-from-home
policies, irrespective of an applicable MOU, are within the scope of representation and
subject to decisional bargaining.
For the reasons below, we overrule the District’s exceptions and affirm the
proposed decision. Changes in remote work policies as the District emerged from the
COVID-19 pandemic were subject to decisional bargaining. Further, the District’s
claim that it had no bargaining obligation as it was simply returning to a pre-pandemic
status quo is legally and factually untenable. Accordingly, we find that the District’s
conduct violated EERA. We also affirm the proposed decision’s remedy, with minor
modifications.
FACTUAL BACKGROUND
I. 	The Parties and their Collective Bargaining Agreement
The District is a public school employer within the meaning of section 3540.1,
subdivision (k). The District operates two colleges: West Valley College in Saratoga

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and Mission College in Santa Clara. The District’s central administration is headed by
a chancellor and various vice chancellors, including during the relevant periods,
Associate Vice Chancellors of Human Resources Albert Moore and Eric Ramones.
The senior leadership of each college is headed by a president, vice presidents, and
deans. At Mission College, this included President Daniel Peck, Vice President of
Student Services Omar Murillo, and Dean of Student Services Richard Alfaro; and at
West Valley College, President Stephanie Kashima and Dean of Academic
Counseling and Student Success Dr. Murrell Green.
WVMFT is an employee organization within the meaning of section 3540.1,
subdivision (d). WVMFT is the exclusive representative of certificated and academic
employees, including academic counselors, employed by the District. WVMFT’s
president is Kate Disney. Academic department chairs are also members of the
bargaining unit; the chair of the Counseling Department at Mission College during the
relevant time was Thuy Trang; the co-chairs of the Counseling Department at West
Valley College were Melissa Salcido and Philip Severe.
The parties are subject to a collective bargaining agreement (CBA), effective
during the relevant time period. Article 18.9.1 of the CBA provides the process for
faculty to propose and receive approval of work schedules:
“When deemed most feasible by a department . . . each
faculty member shall propose to the appropriate
Department Chair and Dean his/her work schedule for the
following academic year . . . The appropriate Department
Chair and Dean shall review the request and approve or
return it to the faculty member for discussion:
“a. Though the appropriate Department Chair and
Dean have the final decision concerning the assignment of

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work days, reasonable effort shall be made to
accommodate the needs and preferences of the faculty
member.
“b. In cases where departmental staffing needs are
unmet, the first recourse will be to present the need
parameters to the departmental staff for discussion. If
resolution does not occur through this process, the
appropriate Department Chair and Dean shall have final
decision.
“c. In all cases, student needs shall be the
determining factor in scheduling all non‐instructional faculty
members.
“d. Exceptions to scheduling as per the above
procedures require the approval of the non‐instructional
faculty member and the appropriate Vice President or
designee.”
Article 51.2 (Distance Education Instructional and Non-Instructional Activities
Facilitated by Communication Technology) states:
“The use of communication technology to support
instruction, to provide services to students and for other
non‐instructional purposes may comprise a regular
component of a non‐instructional faculty member’s load.
Such assignments may be conducted in a location remote
from the primary worksite. Such assignments shall be made
in accordance with Article [18.9] subject to approval of the
appropriate Vice President or designee.”
II. 	Pre-COVID-19 Application of Policies on Remote Work and Scheduling
Counselors, department chairs, and deans worked collaboratively through the
Article 18.9.1 scheduling process to set schedules for counselors. Typically,
counseling faculty would propose schedules by inputting preferred time blocks on load
sheets. The department chairs would develop a master schedule, working with faculty

5
to ensure coverage. The chairs would subsequently submit the proposed schedules to
their respective dean, who would ensure the District approved the schedules.
Prior to March 2020, at least two counselors performed work remotely when not
required to be on campus. Specifically, Wanda Wong began performing some
counseling sessions via Skype, and Nohemy Chavez responded to student questions
via e-mail remotely during winter and summer sessions.
III. 	Changes at the Outset of the COVID-19 Pandemic
In March 2020, all counselors began working remotely. Shortly after counselors
began working remotely, the District circulated a “telecommuting agreement” to
personnel, including counselors. After WVMFT objected to the agreement, Moore
acknowledged that the agreement was not intended for use with WVMFT’s bargaining
unit, as the parties already reached agreement on remote work in CBA Article 51.2.
Counseling faculty exclusively worked remotely during the remainder of the
Spring 2020 semester through the Summer 2021 session. Faculty responded to
student requests via e-mail and phone and conducted virtual counseling sessions via
phone and video conferencing software. In June 2020, the District launched Cranium
Café, an online scheduling platform that allowed counseling faculty to schedule and
conduct virtual counseling sessions.
IV. 	Some Counseling Faculty Voluntarily Return to In-person Counseling
In preparation for the Fall 2021 session, the District sought to transition
students and faculty back to campus for in-person instruction. In August, Ramones
informed Disney that the District also wanted counseling faculty and other
non-instructional faculty to return to work in person to meet the needs of returning

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students. The parties discussed in-person counseling at an August 26 meeting.
Disney stated that department chairs were working with their deans and vice
presidents on the issue. In an e-mail summarizing the August 26 meeting, Ramones
did not state that the District wanted counselors to work 100 percent from campus or
that it wanted counselors to perform virtual counseling sessions from campus offices
rather than remotely. Rather, Ramones stated, “we want to collaborate with you to
ensure there is an increased presence at both colleges to meet the needs of our
students.” In an e-mail to deans in advance of the Fall semester, Ramones stated, “a
combination of working remotely on some days and in-person some days is allowable
at your discretion.” During the Fall semester, a few counselors conducted in-person
sessions, but most conducted virtual sessions away from campus.
V. 	Department Chairs and Faculty Develop Spring 2022 Schedules
The parties began discussions about Spring 2022 schedules in October 2021.
Trang approached scheduling differently than before the pandemic because of the
complexity of in-person and virtual counseling sessions. Trang e-mailed Dean Alfaro
to propose that faculty work in person at least two days or a minimum of 12 hours per
week to provide in-person counseling. Alfaro affirmed these parameters in an e-mail to
all counseling faculty at Mission College.
Trang prepared a master schedule with faculty covering 40 percent in-person
and 60 percent virtual counseling sessions, and she sent it to Dean Alfaro and VP
Murillo on October 14. On October 21, Alfaro informed Trang that Murillo approved the
framework. On October 25, Alfaro clarified, stating: “Please keep in mind that virtual
services does not equate to remote since virtual can be done on campus as well,

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although we will take it into consideration for Spring 2022. Counseling Faculty
schedules still need to go through the scheduling approval process, which should
begin early November so they can be reviewed by the Director and Dean SS/Chair for
approval. More guidance to come on the scheduling process.”
On November 17, Alfaro e-mailed the counselors, stating that 40 percent of
each counselor’s schedule should be focused on in-person counseling services. For
the remainder, Alfaro stated, “To be sensitive to everyone's transition back to campus,
we do feel it’s appropriate to provide the option to work a portion of your schedule
remotely as part of the transition, just as we worked with our Classified staff in their
return.” In a December 3 e-mail to counseling faculty, Alfaro reaffirmed the 40/60
framework, describing it as a “full return this spring” that it would help provide services
for the 60 percent of classes offered in person, compared with 80 percent pre-COVID.
VI. 	The District Announces a “100 Percent In-Person” Policy
During the same time, West Valley leaders and faculty were negotiating over
how much remote work counselors should conduct and began to coalesce around a
60 percent in person, 40 percent remote framework. However, on December 1, Dean
Green informed Co-Chair Salcido that counselors would be required to be in person
100 percent of the time. Green testified that he received the 100 percent requirement
from President Kashima.
On December 12, Salcido e-mailed Green proposed schedules that guaranteed
at least one counselor working in person each day. Dean Green did not approve
Salcido’s proposed schedules because District had “a 100 percent mandate to return
for the department.” Green further disagreed with the framework, as it sought to have

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60 percent in-person staffing based on the whole group of counseling faculty, rather
than requiring each individual to be in the office 60 percent of the time.
On or around December 13, Murillo informed Mission College counseling
faculty that non-instructional faculty would be “100 percent in-person” effective
January 1, 2022. Trang e-mailed President Peck about her disappointment in the
announcement. Peck responded directly to Trang’s e-mail:
“My regret is that the department and yourself have been
placed in this situation . . . I want to acknowledge the
sincere and collaborative approach that you, the
department, and Dean Alfaro have engaged in as you have
discussed and prepared for Spring . . . all non-instructional
faculty at both colleges are being asked to fully return in
spring . . . I recognize that this is difficult news – partially
because of individual concerns, but mostly because this is
a sudden change of direction with no advance
consultation.”
(Italics added.)
On January 19, 2022, Trang e-mailed Dean Alfaro and VP Murillo, asserting
that the contract allowed counselors to perform remote work. On January 21, Murillo
replied to the group emphasizing that the District wanted to return to 100 percent
in-person work because:
“The direction shared with you all in late December is built
on the importance of creating as dynamic and positive
experience for students on campus as possible. This goes
beyond coverage and is about creating an immersive and
engaging experience on campus—both for student’s
regularly taking in-person classes, and for those coming to
campus specifically to access support services. We heard
from both students and faculty over the last semester how a
limited presence on campus led to lower engagement and a
less-fulfilling in-person experience. It is critical for current

9
students’ success and for growth in registration for
in - person classes in Summer/Fall 2022 that we create this
fully immersive environment, which is why we have also
asked all administrators and classified to return to full
in-person schedules.”
Murillo also stated that the “administration maintains the right of assignment. At this
time, we are not changing the direction provided and we ask that all counseling faculty
comply as directed.” However, some counselors continued to conduct virtual
counseling sessions remotely.
On February 4, 2022, WVMFT’s attorney sent a letter to the District Chancellor
and Vice Chancellor Ramones, demanding that the District honor section 51.2 and
rescind the “100 percent in-person” policy. Throughout February, attorneys for the
parties exchanged arguments over whether the District’s “100 percent in-person”
policy was lawful, including the application of Oxnard, supra, PERB Decision
No. 2803, to the facts of this case.2
Additionally, in mid-February, the District began warning counseling faculty who
continued to perform remote work. Dean Alfaro and Dean Green gave oral and written
warnings to some of these counselors. While some counseling faculty began
complying with the in-person work requirements, others continued to work remotely.
PROCEDURAL HISTORY
WVMFT filed this case on February 23, 2022, alleging that the District violated
EERA section 3543.5, subdivision (c) by unilaterally changing policy without providing
2 Nonetheless, the District’s post-hearing brief does not mention, let alone
attempt to distinguish, Oxnard, supra, PERB Decision No. 2803.

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WVMFT notice and an opportunity to bargain. PERB’s Office of the General Counsel
reviewed both parties’ positions and issued a complaint on September 2. The District
filed an answer to the complaint on September 22, denying the substantive allegations
and alleging several affirmative defenses.
After the parties were unable to settle the matter at an informal conference on
October 17, 2022, the ALJ held a virtual hearing on February 7 and 8, 2023. During
the hearing, WVMFT moved to amend the complaint, and the ALJ granted the motion.
The parties submitted post-hearing briefs on April 19. On May 3, the District objected
to WVMFT’s post-hearing brief for introducing new evidence and requesting attorney
fees. The ALJ provided WVMFT an opportunity to respond, and WVMFT did so on
May 17.
On November 15, 2023, the ALJ issued a proposed decision, finding that the
District violated section 3545.5, subdivision (c) by unilaterally changing counseling
faculty work location without providing WVMFT notice and opportunity to bargain. The
District filed exceptions to the proposed decision on December 20, and WVMFT filed
its response to the exceptions on January 23, 2024; the District filed a reply brief on
February 2, 2024.3
3 WVMFT did not file cross-exceptions to the dismissal of its independent
interference claim. For this reason, the ALJ’s conclusion that the District established
its affirmative defense to WVMFT’s independent interference claim is final and binding
on the parties. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3.)

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DISCUSSION
When resolving exceptions to a proposed decision, we apply a de novo
standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.)
However, we need not address arguments that the ALJ sufficiently addressed. (Ibid.)
Here, the District argues that because we should find counseling faculty performed
their duties “100 percent in person” before the COVID-19 pandemic, and because the
District informed WVMFT of its intention to return to pre-pandemic policies in August
2021, WVMFT failed to demonstrate a prima facie unilateral change. However, like the
ALJ, we find that WVMFT established a prima facie unilateral change violation, and
that the District established no defense.
I. 	WVMFT Alleged a Prima Facie Unilateral Change
A unilateral change to a matter within the scope of representation is a per se
violation of the respondent’s duty to bargain in good faith. (Stockton Unified School
District (1980) PERB Decision No. 143, p. 22.) Because a unilateral change has an
inherently destabilizing and detrimental effect upon the parties’ bargaining
relationship, it is unlawful irrespective of intent. (City of Montebello (2016) PERB
Decision No. 2491-M, p. 10; County of Riverside (2014) PERB Decision No. 2360-M,
p.18.)
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’

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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. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9.)
Neither the District’s closing brief nor its exceptions contest that unilaterally
changing work location has a generalized effect or continuing impact. Though the
District’s exceptions contend that the proposed decision incorrectly found a
generalized effect and continuing impact from its mandate to return to 100 percent
in-person work, the substance of its argument concerns whether there was a change
in the status quo. Accordingly, we, like the proposed decision, find the third element of
the unilateral change test satisfied. We also address the District’s arguments that it
provided advance notice and opportunity to bargain below.
A. 	Change from the Status Quo
There are three primary means of establishing that an employer changed or
deviated from the status quo: (1) a 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. (Bellflower Unified School
District, supra, PERB Decision No. 2796, p. 10)
The District urges us to find the applicable status quo is that which preceded
the COVID-19 pandemic, and it argues that no counseling faculty performed work

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remotely during that time.4 However, record evidence demonstrates that not only did
counseling faculty perform work remotely before the pandemic, a remote work policy
existed in the CBA for years prior to the pandemic. The existence of such a policy
demonstrates that the District’s “100 percent in-person” policy changed a written policy
and/or was, at minimum, a new policy or application or enforcement of an existing
policy in a new way.
Additionally, the “100 percent in-person” work requirement deviates from the
bottom-up, collaborative scheduling process found in Article 18.9.1 of the parties’
CBA. There, counselors propose schedules and the Dean and Department Chair
organize and approve schedules to match operational and student needs. It is only if
an exception to this established process is required that both the appropriate Vice
President and the affected faculty member must approve.
The District claims that the CBA’s plain language in this provision contemplates
only work schedules, not work modalities. However, section 51.2 of the CBA plainly
rebuts this claim by stating that remote work assignments should be made according
to the scheduling process in Article 18.9.1. Further, record evidence demonstrates that
both parties viewed the collaborative process in Article 18.9.1 as the proper forum to
determine schedules for in-person and remote modalities. Pre-pandemic, at Mission
College, Dean Alfaro and Chair Trang, with the approval of VP Murillo, presented a
scheduling framework for virtual and in-person counseling sessions. Counseling
4 Notably, WVMFT does not raise the March 2020 change to 100 percent
remote work as an issue. In Oxnard, supra, PERB Decision No. 2803, we found that
the school district was permitted to require employees to work from home in March
2020, provided it bargained in good faith as time allowed. (Id. at pp. 44-45.)

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faculty completed their schedule requests within this framework. West Valley Dean
Green and Co-Chairs Severe and Salcido operated under a similar framework. Thus,
to the extent the District claims it had a practice of allowing counselors to work
remotely at its sole discretion, the record does not support that claim. But even if it did,
such a history would not privilege the District to implement a new, 100 percent
in-person policy. (West Contra Costa Unified School District (2023) PERB Decision
No. 2881, p. 12 (West Contra Costa), citing County of Kern (2018) PERB Decision
No. 2615-M, pp. 6-9 [employer’s changes are consistent with a dynamic status quo
only if the changes follow a nondiscretionary pattern of change].)
The District also claims that Oxnard, supra, PERB Decision No. 2803, permits it
the management right to return to the status quo after a public health emergency.
However, the District ignores the obligation to bargain that Oxnard requires in advance
of the return to status quo: “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.” (Oxnard, supra, PERB Decision
No. 2803, pp. 45-46 (italics added), citing Regents of the University of California
(1998) PERB Decision No. 1255-H.) While Oxnard left open the question whether,
absent return to work MOUs, a public school employer has a right to return to
in-person offerings with less than a month notice, the decision states that “the parties
would still have a bargaining obligation.” (Oxnard, supra, p. 46.) And as explained
below, the District failed to provide advance notice or the opportunity to bargain.
Further, though the District attempts to paint the “100 percent in-person” policy as

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simply a return to the pre-pandemic status quo, record evidence demonstrates that the
“100 percent in-person” policy represents a new or changed policy, or, at minimum, a
new interpretation of existing policy.
B. 	Scope of Representation
Pursuant to the test the Board adopted in Anaheim Union High School District
(1981) PERB Decision No. 177 (Anaheim), a non-enumerated issue falls within the
scope of representation under EERA if: (1) It is logically and reasonably related to
wages, hours, or an enumerated term and condition of employment (i.e., it involves
the employment relationship); (2) The subject is of such concern to 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 the employer’s mission. (San Mateo City School Dist. v. Public
Employment Relations Bd. (1983) 33 Cal.3d 850, 857-858; Oxnard, supra, PERB
Decision No. 2803, p. 42; San Bernardino Community College District (2018) PERB
Decision No. 2599, p. 8; Anaheim, supra, PERB Decision No. 177, pp. 4-5.) A
contemplated change involving a non-mandatory subject of bargaining may
nonetheless trigger a duty to engage in effects bargaining if the change would affect
terms or conditions of employment. (County of Santa Clara (2019) PERB Decision
No. 2680-M, pp. 11-12.)
In Oxnard, we applied the Anaheim test and determined that work-from-home
policies involve a mandatory bargaining subject. (Oxnard, supra, PERB Decision

16
No. 2803, pp. 41-44.) The District claims the change within the scope of
representation in Oxnard was limited to the employer’s repudiation of
pandemic-specific MOUs, and not employer-imposed work-from-home policies. This is
plainly wrong, as it contradicts Oxnard’s holding that work-from-home policies satisfy
the Anaheim test. (Oxnard, supra, pp. 43-44.) There is no cause to “reinvent the
wheel” by applying Anaheim from scratch to a topic we have already found is
bargainable. (Oakland Unified School District (2023) PERB Decision No. 2875, p. 126,
fn. 11.) In any event, work-from-home policies easily satisfy the first two elements of
the Anaheim test. And, as to the third element, bargaining over changes to a
work-from-home policy would not unduly infringe on managerial freedom, as delay in
finalizing a new policy is unlikely to significantly frustrate any essential public
education goal. (Anaheim, supra, PERB Decision No. 177, pp. 4-5.) “While time may
be of the essence during a pandemic, that consideration goes to the limitations on
bargaining obligations when an emergency compels an employer to act rapidly,” but
does not, “turn the topic into a non-mandatory subject of bargaining under Anaheim.”
(Oxnard, supra, p. 43.)
Here, the District does not claim that an emergency required it to move to 100
percent in-person work before providing notice and an opportunity to bargain. In fact,
the parties were working toward reverting to the pre-pandemic status quo in stages.
Between March 2020 and Summer 2021, counselors were working remotely. The
parties began discussions to transition to a voluntary hybrid format for Fall 2021 and a
mandatory hybrid format for Spring 2022. There is no evidence that these stages of
in-person and remote work, as negotiated between the deans and department chairs,

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would infringe on the District’s right to return to the status quo in stages. (Oxnard,
supra, PERB Decision No. 2803, p. 45.) Rather, the District chose to unilaterally scrap
its plan of a staged return to the status quo and instead unilaterally implement a new
“100 percent in-person” policy that was fundamentally different from the pre-pandemic
status quo.
C. 	Notice and Opportunity to Bargain
Although the amount of time varies depending on the circumstances of each
case, “an employer must give notice sufficiently in advance of reaching a firm decision
to allow the representative an opportunity to consult its members and decide whether
to request information, demand bargaining, acquiesce to the change, or take other
action.” (Regents of the University of California (2018) PERB Decision No. 2610-H,
p. 45.) When the employee organization first learns of the proposed change by virtue
of “the employer’s implementation of that change, by definition, there has been
inadequate notice.” (City of Sacramento (2013) PERB Decision No. 2351-M, p. 33.) “In
such cases, the employer’s ‘notice’ is nothing more than its announcement of a fait
accompli.” (Ibid.) “In the face of unilateral implementation, a demand to bargain is
futile,” because at that point there is no “level playing field” for fair negotiations to
occur. (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24.)
Here, the District claims that it notified WVMFT in August 2021 of its intention to
return all faculty to in-person work. However, the District’s meeting with WVMFT on
August 28 rebuts such an assertion. There, WVMFT President Disney was clear that
any return to in-person work during the Fall 2021 semester would need to be
voluntary. Even District communications with deans gave them discretion to allow

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hybrid work. The District presented no testimony that the District otherwise informed
WVMFT that the return to in-person work would be mandatory until December 1. Thus,
there was no notice of a firm decision until at least December 1. Dispositively,
President Peck acknowledged the “100 percent in-person” announcement as a
“sudden change of direction with no advance consultation.”
II. 	Waiver Defense
An employer may lawfully take unilateral action on a matter within the scope of
representation where the exclusive representative has waived its right to negotiate
over changes to that subject. (City of Culver City (2020) PERB Decision No. 2731-M,
p. 13, citing Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11
(Modoc COE).) Because waiver is an affirmative defense, the party asserting it bears
the burden of proof, and any waiver of the right to bargain must be “clear and
unmistakable,” demonstrating an “intentional relinquishment” of that right. (Modoc
COE, supra, p. 11; California State Employees’ Assn. v. Public Employment Relations
Bd. (1996) 51 Cal.App.4th 923, 937.)
“Waiver is most readily apparent where the specific subject is covered by the
express terms of an existing collective bargaining agreement.” (Modoc COE, supra,
PERB Decision No. 2684, p. 12, quoting Placentia Unified School District (1986)
PERB Decision No. 595, p. 4.) “On the other hand, broadly-worded managements
rights clauses are often inadequate to constitute a waiver of the right to negotiate over
a specific subject.” (Modoc COE, supra, PERB Decision No. 2684, p. 13.)
Here, the District argues that because the parties agreed to a process for
remote work approval in section 51.2, it is privileged to not permit employees to work

19
remotely. Further, the District claims that it granted some counseling faculty
permission under section 51.2 to work some of their assignments remotely. However,
we find these reasons insufficient to meet the District’s burden.
Section 51.2 is written to consider individual faculty requests for remote work.
While the parties agreed that this section applied en masse to permit all faculty to
work remotely during the pandemic, the parties disagree over the District’s new policy
categorically disallowing remote work unless necessary to accommodate a disability.
As noted above, the District’s “100 percent in-person” policy was described by its own
management as a “sudden change of direction with no advance consultation.” Further,
the District’s refusal to consider hybrid schedules and decision to only consider
individual requests for remote work to accommodate a disability, demonstrates a
departure from established procedure. Having enforced section 51.2 in a new way, the
District cannot now use section 51.2 as a shield to avoid its bargaining obligation.
While the District identifies one example of granting remote work to Department
Chair Trang, the District’s top-down pronouncement deterred other faculty from
seeking remote work under section 51.2. The District introduced no evidence that it
informed counseling faculty that they still had the right to request remote work under
section 51.2. And Dean Green even informed employees the only way to seek
approval for remote work was through the reasonable accommodation process, not
section 51.2. Therefore, the District failed to carry its burden to demonstrate that

20
section 51.2 waived the union’s right to bargain over a materially new remote work
policy.
III. 	Remedy
The appropriate remedy for an employer’s unlawful unilateral change normally
includes at least an order to bargain, make-whole relief, rescission of changes, a
cease-and-desist order, and a notice-posting order. (West Contra Costa, supra, PERB
Decision No. 2881, p. 18; Imperial Irrigation District (2023) PERB Decision
No. 2861-M, p. 64.) After an emergency has lapsed, we follow this same guide for
remedies but give special consideration for the particular emergency circumstances
that once existed. (See, e.g., County of Santa Clara (2023) PERB Decision
No. 2876-M, pp. 37-38 (judicial appeal pending); Imperial Irrigation District, supra,
pp. 64-68.)
With appropriate bargaining, the District is entitled to return to its pre-COVID-19
status quo. (County of Santa Clara, supra, PERB Decision No. 2876-M, pp. 33-35;
Imperial Irrigation District, supra, PERB Decision No. 2861-M, p. 56; Oxnard, supra,
PERB Decision No. 2803, pp. 45-46.) Therefore, we find it appropriate, upon a
demand by WVMFT within 60 days after this decision is final, at the conclusion of the
academic term when this decision is final, to order the District to rescind the “100
percent in-person” policy and bargain with WVMFT over its work-from-home policy.
Unlike the ALJ’s proposed remedy ordering the return to an all-remote work
policy with faculty returning to in person voluntarily, we find that the hybrid framework
agreed to at both colleges immediately before announcement of the “100 percent

21
in-person” policy is an appropriate stage to return the parties to, should they not
complete bargaining before commencement of the next academic term.
We also find it appropriate to order the traditional cease-and-desist and
notice-posting orders. We additionally order the District to rescind and remove any
documentation of oral and written warnings issued to unit members for violating the
“100 percent in-person” policy.5
As is traditional, we order the District to make counselors whole for economic
losses they suffered as a result of the District’s unilateral change. (County of Santa
Clara (2024) PERB Decision No. 2900-M, pp. 27-28, 31-33 (judicial appeal pending)
[PERB remedial standards cover most direct or foreseeable harms resulting in
material part from a violation].) In compliance proceedings, among other economic
harms, WVMFT may present evidence regarding mileage and childcare expenses
counselors incurred when they were required to shift from a hybrid work schedule to a
100 percent in-person work schedule commencing in September 2022.6
5 PERB has broad remedial authority to rescind discipline in order to make
affected employees whole. (See San Bernardino Community College District (2018)
PERB Decision No. 2599, pp. 14-15.) This measure is appropriate here to remedy the
District’s unilateral implementation of the “100 percent in-person” policy.
6 For Mission College faculty, make-whole relief includes reasonable mileage
and childcare expenses incurred because they were required to work in person three
days per week, whereas they would have worked entirely remotely under the hybrid
stage. For West Valley College faculty, make-whole relief includes reasonable mileage
and childcare expenses incurred because counseling faculty there worked in person
two days per week, but would have worked entirely remotely under the hybrid stage.

22
ORDER
Based on the foregoing and the entire record in this case, the Public
Employment Relations Board (PERB) finds that the West Valley-Mission Community
College District (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3540 et seq., when it unilaterally implemented a “100
percent in-person” policy without first providing West Vally-Mission Federation of
Teachers, AFT Local 6554 (WVMFT) with notice and an opportunity to negotiate over
the District’s decision to do so. This conduct also derivatively interferes with the right
of employees to be represented by WVMFT and denies WVMFT its right to represent
employees in their employment relations.
Pursuant to section 3541.5, subdivision (c) of the Government Code, it is
hereby ORDERED that the District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing terms and conditions of employment without
providing WVMFT with notice and reasonable opportunity to meet and confer as
required by EERA.
2. 	Interfering with the right of employees to be represented by
WVMFT in their employment relations with the District.
3. 	Denying WVMFT its right to represent employees in their
employment relations with the District.

23
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Upon request of WVMFT within 60 days of this decision becoming
final, rescind the decision to require all counseling faculty to work 100 percent in
person, on campus, to take effect at the conclusion of the academic session
immediately following this decision becoming final.
2. 	Upon request of WVMFT within 60 days of this decision becoming
final, bargain in good faith with WVMFT over the District’s work-from-home policy.
3. 	Rescind and destroy all copies of any documentation of oral and
written warnings, or other counseling or discipline issued to unit members, for violating
the 100 percent in-person policy.
4. 	Make unit members whole for any harms incurred in material part
because of the District’s unilateral imposition of the 100 percent in-person policy, with
interest accrued to the date of payment at an annual rate of seven percent,
compounded daily.
5. 	Within 10 workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to WVMFT-represented
employees are posted, copies of the Notice attached hereto as an Appendix. An
authorized agent of the District must sign the Notice, indicating that the District will
comply with the terms of this Order. The District shall maintain the posting for a period
of 30 consecutive workdays. The District shall take reasonable steps to ensure that
the Notice is not reduced in size, altered, defaced, or covered with any other material.
In addition to physically posting this Notice, the District shall communicate it by

24
electronic message, intranet, internet site, and other electronic means the District uses
to communicate with WVMFT-represented employees.7
6. 	Notify OGC of the actions the District has taken to follow this
Order by providing written reports as directed by OGC and concurrently serving such
reports on WVMFT.
Members Krantz and Paulson joined in this Decision.
7 Either party may ask PERB’s Office of the General Counsel (OGC) to alter or
extend the posting period, require further notice methods, or otherwise supplement or
adjust this Order to ensure adequate notice. Upon receipt of such a request, OGC
shall solicit input from all parties and, if warranted, provide amended instructions to
ensure adequate notice.

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. SF-CE-3482-E, West Valley-
Mission Federation of Teachers, AFT Local 6554 v. West Valley-Mission Community
College District, in which all parties had the right to participate, the Public Employment
Relations Board has found that the West Valley-Mission Community College District
(District) violated the Educational Employment Relations Act (EERA), Government
Code section 3540 et seq.
As a result of this conduct, we have been ordered to post this Notice and we
will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing terms and conditions of employment without
providing West Valley-Mission Federation of Teachers, AFT Local 6554 (WVMFT) with
notice and reasonable opportunity to meet and confer as required by EERA.
2. 	Interfering with the right of employees to be represented by
WVMFT in their employment relations with the District.
3. 	Denying WVMFT its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Upon request of WVMFT within 60 days of this decision becoming
final, rescind the decision to require all counseling faculty to work 100 percent in
person, on campus, to take effect at the conclusion of the academic session
immediately following this decision becoming final.
2. 	Upon request of WVMFT within 60 days of this decision becoming
final, bargain in good faith with WVMFT over our work-from-home policy.
3. 	Rescind and destroy all copies of any documentation of oral and
written warnings, or other counseling or discipline issued to unit members, for violating
the 100 percent in-person policy.
4. 	Make unit members whole for any harms incurred in material part
because of the District’s unilateral imposition of the 100 percent in-person policy, with
interest accrued to the date of payment at an annual rate of seven percent,
compounded daily.
Dated: _____________________ 	WEST VALLEY-MISSION COMMUNITY
COLLEGE DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.