Oxnard Union High School District (PERB 2803E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
OXNARD FEDERATION OF TEACHERS
AND SCHOOL EMPLOYEES, LOCAL 1273,
Charging Party,
v.
OXNARD UNION HIGH SCHOOL DISTRICT,
Respondent.
Case No. LA-CE-6627-E
PERB Decision No. 2803
January 26, 2022
Appearances: Bush Gottlieb by Dana S. Martinez and Adrian R. Butler, Attorneys, for
Oxnard Federation of Teachers and School Employees, Local 1273; Lozano Smith by
Darren C. Kameya and Angela J. Okamura, Attorneys, for Oxnard Union High School
District.
Before Banks, Chair; Shiners and Krantz, Members.
DECISION
KRANTZ, Member: This case is before the Public Employment Relations Board
(PERB or Board) for a decision based on the evidentiary record from a hearing before
an administrative law judge (ALJ). After Oxnard Federation of Teachers and School
Employees, Local 1273 (the Federation or OFTSE) filed an unfair practice charge
alleging that Oxnard Union High School District violated the Educational Employment
Relations Act (EERA), PERB’s Office of the General Counsel (OGC) issued a
complaint against the District.1
1 EERA is codified at Government Code section 3540 et seq. All statutory
references are to the Government Code unless otherwise indicated.

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The complaint alleged that the District repudiated collectively bargained policies,
implemented new policies, and/or applied or enforced existing policies in a new way,
while failing to bargain in good faith with the Federation over these decisions and/or
their negotiable effects. While the complaint also alleged that the same conduct
constituted unlawful interference, the facts do not suggest an interference claim that can
be proven without establishing a bargaining violation, meaning that the interference
claims are purely derivative.
The parties stipulated to bifurcate proceedings into an initial liability phase and, if
warranted, a later remedy phase. We have reviewed the record and briefs in the
present liability phase. In the below factual findings and legal analysis, we explain our
basis for finding several EERA violations, as well as our basis for dismissing certain
other complaint allegations. We remand the matter to the Division of Administrative
Law for proceedings consistent with this decision.
PROCEDURAL HISTORY
The Federation filed this charge, together with a request for injunctive relief and
supporting materials, on April 13, 2021. Over the next 10 days, the District filed
opposition papers, the Federation filed reply papers, OGC issued the complaint, and
the Board denied the injunctive relief request. The Board also directed that:
“[T]he Division of Administrative Law shall expedite this
matter, and the parties and the assigned ALJ shall develop a
complete record containing evidence on all liability issues
and on potential make-whole relief that can be ordered
based upon an employer’s contract repudiation, unilateral
implementation of a new policy, or unilateral
application/enforcement of existing policies in a new way,
including but not limited to: any lost compensation, reduced
leave balances, or discipline that employees may

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experience; employees’ out of pocket expenses related to
child care or other costs (see, e.g., County of Ventura (2021)
PERB Decision No. 2758-M); and reimbursement of staff or
attorney costs the Federation expended outside of PERB
unfair practice proceedings (see, e.g., Sacramento City
Unified School District (2020) PERB Decision No. 2749; City
of Palo Alto (2019) PERB Decision No. 2664-M).”
After the District answered the complaint and PERB accepted the parties’
stipulation to bifurcate proceedings, the ALJ held a four-day liability hearing in June
and July 2021. Due to the COVID-19 pandemic, the ALJ, as well as the parties’
representatives, witnesses, and attorneys, participated in the hearing by video
conference. The parties filed simultaneous post-hearing briefs in September 2021. We
then transferred the case to the Board itself for decision pursuant to PERB
Regulations 32215 and 32320, subdivision (a)(1).2
FACTUAL FINDINGS
The record reflects the following relevant facts, as well as certain additional
factual findings that we incorporate into our analysis, post, at pages 31-40 and 51-53.
The District is a public school employer within the meaning of EERA
section 3540.1, subdivision (k), and it is a school district within the meaning of PERB
Regulation 32001, subdivision (c). The District largely serves students in grades 9-12,
and it oversees approximately 10 schools in Ventura County.
The Federation is an employee organization within the meaning of EERA
section 3540.1, subdivision (d) and PERB Regulation 32001, subdivision (a). The
2 PERB regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.

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Federation is the exclusive representative, as defined in EERA section 3540.1
subdivision (e), of three District bargaining units: certificated employees,
paraeducators, and classified employees. The Federation and the District have
entered into separate collective bargaining agreements (CBAs) for the three
bargaining units.
As of the formal hearing in June and July 2021, the most recent CBAs had
expired for each bargaining unit represented by the Federation, as follows: the
classified unit in June 2018, the paraeducator unit in June 2019, and the certificated
unit in June 2021. The parties began negotiating new CBAs for the three units after
providing public notice of their opening proposals in May and June 2021.3
I. 	In March 2020, the District Shifted to Distance Learning.
In March 2020, the District transitioned all students to distance learning due to
the COVID-19 pandemic. Distance learning combines synchronous lessons (in which
students log into live virtual classes at an established time) with asynchronous lessons
that students can complete at any time (such as watching a recording or completing a
written assignment or activity). For the remainder of the 2019-2020 school year, the
District did not require bargaining unit employees to report to any school site.
Also in March 2020, the District formed a Learning Redesign Coalition (LRC),
comprising teachers, administrators, counselors, intervention specialists, and other
District stakeholders. The LRC held virtual meetings on a weekly basis until June 10,
3 The term “CBA,” as used in this decision, refers to a multi-year comprehensive
agreement. As discussed below, the parties also reached multiple COVID-specific
memoranda of understanding (MOUs).

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2020. These meetings attracted approximately 100-250 attendees, who had the
opportunity to provide input on the District’s pandemic response.
II. 	During Summer 2020, the Parties Negotiated their August MOU.
On July 6, 2020, Federation Executive Director Tim Allison e-mailed District
Superintendent Thomas McCoy to follow up on discussions regarding the 2020-2021
school year. The e-mail stated the Federation’s position that every District employee
should have the option to continue working remotely, at least for the first two quarters of
the year.4
The parties’ discussions continued thereafter and led to an MOU that the
District’s Board of Trustees (Trustees) adopted on August 12, 2020. This August MOU
covered only the school year’s first quarter and therefore expired on October 23, 2020.
Among the August MOU’s critical provisions was a statement that the District would
follow its distance learning model in the first quarter and move to hybrid learning (a mix
of distance instruction and in-person instruction) or full in-person learning only when
permitted by the California Department of Public Health (CDPH) and Ventura County
Public Health (VCPH), and after consulting with the Federation. As to the latter point,
the parties agreed to bargain “weekly or as needed” and to negotiate an MOU
addressing the impacts of any transition to hybrid learning or full in-person learning.
4 In an initial reopening plan dated July 2, 2020, the District divided the 2020-
2021 school year into four nine-week quarters. The District never altered this schedule
thereafter, even as pandemic developments, new public health guidelines, and
collective bargaining changed or rendered obsolete other parts of the District’s initial
reopening plan.

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III. 	During the First Quarter, the Parties Negotiated their October MOU.
Because the August MOU covered only the school year’s first quarter, almost
immediately after the District and Federation ratified it, they began to bargain over a
new MOU covering the remaining three quarters. The parties exchanged numerous
e-mails and met weekly by video conference or telephone.
On August 28, 2020, CDPH issued a “Blueprint for a Safer Economy” that
established four tiers of infection risk (yellow, orange, red, and purple) based on each
county’s COVID-19 statistics. At that time, Ventura County was in the riskiest tier,
purple, which required the highest level of restrictions. The District and Federation knew
that if the County moved to the red tier, then public health guidelines would permit—but
not require—the District to begin transitioning away from full distance learning.
Federation leaders were aware that school employee unions elsewhere in
California were negotiating for benefits such as hazard pay and equipment that
employees could use to teach from home. The Federation’s leaders learned, however,
that the employees they represented had one overriding concern—any transition to
hybrid learning must be voluntary and safe—and Federation negotiators repeatedly
emphasized to the District that this was the Federation’s priority. One element of the
Federation’s position on safely reopening was that instructional cohorts should be
limited to 14 students and 2 adults to reduce the number of individuals in a classroom at
any time.
The District, in a proposal dated September 25, 2020, offered to meet the
Federation’s core priorities, offering that “[p]articipation in a Hybrid instructional program
is voluntary for Students, Families, Teachers, and Staff” and that “[h]ybrid instructional

7
cohorts will consist at a maximum of 14 students and 2 adults.” The Federation agreed
to the District’s proposed language on these core priorities, and those provisions formed
the basis for the parties’ October MOU. Allison testified that there was no need for the
Federation to make counterproposals on those critical issues, because “the District
heard us. Those proposals reflect the bargaining that we had done up until that point.
They reflected the interests of the Union.”
Around the same time, the parties agreed that the District would only transition to
hybrid learning or in-person learning effective at the beginning of a quarter, irrespective
of when health conditions might change. As McCoy reported to the Trustees on
September 23, 2020 (according to a stipulated transcript of his remarks): “We cannot
be fair [sic-unfair] to students, families and teachers and change our distance learning
plan in the middle of our terms of instruction, so we’ve committed to going one quarter
at a time and then once we make a commitment for that quarter, to stay with that
commitment regardless of the permissions we receive from Public Health.”
On October 5, 2020, the District e-mailed all employees in anticipation that
Ventura County might soon enter the red tier. The District’s e-mail first notified
employees that even were that to occur, the District would remain in distance learning in
the second quarter, which would run from October 26, 2020, to January 11, 2021.
Furthermore, although the parties had not yet finalized the October MOU covering
quarters two through four, the District’s e-mail reflected one of the critical provisions
noted above—that all teachers would be permitted to choose whether they wished to
participate in hybrid instruction.

8
Nine days later, at a public meeting on October 14, 2020, the Trustees
unanimously approved the October MOU. McCoy presented a series of PowerPoint
slides to the Trustees before they approved the MOU. One slide McCoy presented,
entitled “Hybrid Instruction,” stated that “Participation in a Hybrid instructional program is
voluntary for Students, Families, Teachers, and Staff[.] Hybrid instructional cohorts will
consist at a maximum of 14 students and 2 adults.”
The October MOU, in 16 detailed pages, afforded District employees dozens of
new rights and created dozens of new or changed duties. The central provisions
included, but were not limited to, the following:
“Unless otherwise noted below, the provisions of this MOU
shall supersede any provisions of the Collective Bargaining
Agreements . . . Further, the Parties affirm that all provisions
of [EERA] apply and remain in effect.
[¶] . . . [¶]
“1.0 DEFINITIONS
[¶] . . . [¶]
“1.10 ‘Hybrid Learning’ — Any combination of live in-person
class meetings, and Asynchronous Learning Activities.
“1.11 ‘In-Person Learning’ — In person class meetings live
on the school campus[.]
[¶] . . . [¶]
“2.0 PERSONAL PROTECTIVE EQUIPMENT (‘PPE’)
“2.01 The District shall provide PPE (consisting of a face
covering) to all unit members . . .
[¶] . . . [¶]

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“Face Covering Requirements
“2.05 As recommended by public health officials, face
coverings are required to be worn properly at all times by all
individuals on a school campus indoors or outdoors during
school hours. . . .
[¶] . . . [¶]
“3.0 HEALTH AND SAFETY CONSIDERATIONS
“. . . The District may transition to a hybrid or full in-person
learning only when allowed by CDPH and VCPH, and only
after consulting with stakeholders, including, but not limited
to labor representatives, the governing board, employees,
students, and parents.
“Both parties agree to follow the guidance outlined in the
COVID-19 and Reopening In-Person Learning Framework
for K-12 Schools in California. 2020-2021 School Year as a
minimum level of safety.
“3.01 The District shall adhere to the COVID-19 guidelines
and orders issued by [CDPH, VCPH, and other government
agencies].
[¶] . . . [¶]
“3.03 The Parties agree to meet as soon as possible to
negotiate the impact and effects of any revisions or updates
to the guidelines in section 3.01.
“Meetings and Gatherings
“3.04 In-person meetings shall be voluntary during COVID-
19 related school closures (including but not limited to, staff
meetings, 504s, IEPs, SSTs, . . . and parent-teacher
conferences). All meetings shall have a virtual option . . .
“3.05 Back-To-School Night, Open House, and any similar
in-person meetings shall be offered in a virtual format . . .

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“Daily Cleaning and Disinfecting
“3.06 The District shall ensure that all [spaces] in use are
cleaned and disinfected daily. . .
[¶ ] . . . [¶]
“Air Ventilation and Filtration
[¶] . . .[¶]
“3.12 The District shall provide ‘Air Scrubbers’ in classrooms
and workspaces without HVAC. The ‘Air Scrubbers’ will
include HEPA filters.
“4.0 DISTANCE LEARNING
“The District will conduct instruction in Distance Learning in
Quarter 2 and may transition to a hybrid or in-person
learning model when public health conditions allow. Any
transition in the instructional program will occur only at the
beginning of an established Quarter of instruction within the
2020-2021 school calendar and only after consulting with
District stakeholders including, but not limited to, the District
Learning Redesign Coalition, the Oxnard Federation of
Teachers and School Employees, as well as students and
parents.
“4.0.1 Unit members providing service in Distance Learning
have the option to work either remotely or may access and
work from their assigned classroom/office workspace during
regular school hours.
“4.0.2 When a unit member reports to a district worksite,
they shall be responsible for following all safety and health
requirements in [this MOU].
[¶] . . . [¶]

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“Learning Loss Recovery
“4.06 The State of California currently has a waiver in place
for Districts to provide live tutorial meetings on campus for
students with Learning Loss.
“4.06.1 Learning Loss Recovery is particularly focused on
English Learners and Students with Disabilities.
“4.06.2 Participation in Learning Loss Recovery tutorials is
voluntary for Students, Families, Teachers, and Staff[.]
“4.06.3 Learning Loss Recovery tutorial cohorts will consist
at a maximum of 14 students and 2 adults.
[¶] . . . [¶]
“Hybrid Instruction
“4.07 The District may transition to a hybrid instructional
program when public health conditions allow. Any transition
in the instructional program will occur only at the beginning
of an established Quarter of instruction within the 2020-2021
school calendar and only after consulting with District
stakeholders including, but not limited to, the [LRC], the
[Federation], the Governing Board as well as students and
parents.
“4.07.1 Participation in a Hybrid instructional program is
voluntary for Students, Families, Teachers, and Staff[.]
“4.07.1.1 Prior to a transition to Hybrid instruction, a survey
will be sent to staff, students, and families to determine the
intent to return in Hybrid instruction[.]
“4.07.2 Hybrid instructional cohorts will consist at a
maximum of 14 students and 2 adults.
[¶] . . . [¶]

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“4.07.7 Hybrid instructional cohorts may meet zero to four
times per week depending on cohort size and course
activities.
[¶] . . . [¶]
“In Person Instruction
“4.08 The District may transition to an in person instructional
program when public health conditions allow. Any transition
to an in person instructional program will occur only at the
beginning of an established Quarter of instruction within the
2020-2021 school calendar and only after consulting with
District stakeholders including, but not limited to, the [LRC],
the [Federation], the Governing Board as well as students
and parents.
[¶]…[¶]
“14.0 ACCOMMODATIONS
[¶ ]
“14.02 The District agrees to engage in an interactive
process to determine reasonable accommodations to protect
and support employees who are at higher risk for severe
illness or who cannot safely distance from household
contacts at higher risk by providing options such as distance
learning or working remotely.
“14.03 The District shall work with an employee impacted by
COVID-19 who is unable to work remotely to develop a
leave plan that endeavors to avoid exhausting the
employee’s earned paid leave. A medical note and an
Interactive Process meeting may be required.
[¶] . . . [¶]
“16.0 CONSULTATION RIGHTS AND RESERVE RIGHT
TO FURTHER NEGOTIATE

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“16.01 The District and Federation agree to meet and confer
weekly or as needed during the pandemic to discuss issues
of concern to the District or the Federation regarding the
implementation of [distance] or hybrid learning and its impact
on unit members.
“16.02 Due to the evolving nature of the pandemic, the
Federation reserves the right to negotiate safety and/or any
impacts and effects related to the COVID-19 pandemic that
may arise after this MOU becomes effective.
“17.0 DURATION
[¶] . . . [¶]
“17.02 This MOU shall expire in full without precedent on
June 16, 2021 unless extended by mutual written agreement
of the Parties. All provisions of this MOU are subject to the
negotiated grievance procedure in the CBA.”
(Emphasis in original.)
As of the close of the first quarter on October 23, 2020, pandemic
conditions in Ventura County were improving and the County briefly moved from
the purple tier to the red tier. When the parties negotiated the October MOU, they
reasonably believed that at least hybrid instruction might be possible later in the
year. The likelihood of full in-person learning was much less clear, and the parties
agreed to “punt” on discussing full in-person learning and to negotiate over that
topic later if needed.
Soon thereafter, the pandemic worsened in Ventura County. In the months
immediately following adoption of the October MOU, the District continued full
distance learning.

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IV. 	Before Commencing Hybrid Learning, the Parties Negotiated their March MOU.
In late February 2021, as the prospect of vaccine availability came closer to a
reality and the pandemic began to ease in Ventura County, the District approached
the Federation about transitioning to hybrid learning.5 School districts transitioning to
hybrid learning by April 1 were eligible for additional state funding and District leaders
believed students would benefit from hybrid instruction.
The parties had already negotiated detailed provisions on transitioning to hybrid
learning, which contributed to an efficient further negotiation over additional
provisions. Specifically, the Federation urged the District to use some of the additional
state funding to offer stipends that would incentivize teachers to choose to participate
in hybrid learning. The District agreed, building on this suggestion in a February 25
e-mail from Assistant Superintendent Deborah Salgado to the Federation. The e-mail
first stated: “we agree on all being volunteers” (emphasis in original); it then offered
stipends for employees who agreed to work in-person on logistics and training during
the remaining weeks of the third quarter; and it indicated that hybrid learning would
begin on April 12, the first day of the fourth quarter. In addition to this written
commitment, Salgado also orally assured Federation negotiators that staff and
students would both have the choice whether to participate in hybrid learning.
On March 1, the Federation e-mailed its bargaining unit members. The e-mail
notified employees in relevant part: “The [Federation]’s negotiated MOU is in place until
the end of the school year. In part, the MOU states that participation in a Hybrid
5 All further dates refer to 2021 unless otherwise specified.

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instructional program is voluntary for Students, Families, Teachers, and Staff.
The Union is also negotiating a stipend for all employees who return to school with
students present.” (Emphasis in original.)
As the parties worked to finalize further terms and conditions of employment
related to hybrid learning, the District again acknowledged and asserted that returning
to work on-site was entirely voluntary, and the District amended its stipend offer.
Under the new stipend offer, employees could receive one $500 stipend if they chose
to work on-site during the remaining weeks of the third quarter and a later $500
stipend if they chose to work on-site during the fourth quarter. On March 4, Allison
e-mailed Salgado and floated the Federation’s possible acceptance of these terms.
Regarding the transition to hybrid learning, Allison’s e-mail read: “If you can get us
answers and we can feel comfortable that safety is being addressed at the sites, the
rest of the issues are straightforward. Return is voluntary for all and we will accept your
counter-proposal of a $500 stipend for March and a $500 stipend for Q4.”
The District again emphasized that employees would have the choice whether to
return in-person in a March 4 e-mail to all employees that also aimed to commence
voluntary hybrid learning as early as the week of March 15-19:
“All,
“As Ventura County approaches the Red Tier of COVID-19
we are tentatively scheduling the following calendar for a
voluntary return to in person learning in Oxnard Union High
School District.
[¶] . . . [¶]
“All employees who voluntarily return in person in Quarter 3
will receive a $500 dollar stipend, paid at the end of April;

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“All employees who voluntarily return in person in Quarter 4
will receive a $500 dollar stipend, paid at the end of June;
[¶] . . . [¶]
“Teachers inform students if classes will be held in person -
March 10 - March 12
“Tentative Voluntary start date - week of March 15*
“In person dates - Tuesday March 16; Wednesday
March 17; Thursday March 18
“*assumes Red Tier begins week of March 8 and seven day
waiting period begins”
(Emphasis in original.)
The parties ultimately executed a supplemental MOU on March 10. This March
MOU reiterated that all bargaining unit employees had the choice whether to return to
work on-site, and it further provided that all employees electing to do so would receive
the stipends noted above:
“[T]he District desires to offer an incentive for bargaining
[unit] members who return to In-person instruction/work;
“The district and [Federation] desire to memorialize their
agreement concerning compensation that will be offered to
bargaining [unit] members for returning to on-site/In-person
instruction/work.
“THE PARTIES AGREE TO THE FOLLOWING:
“1. Program Agreement: The parties agree that on a
voluntary basis, employees may choose to return to In-
person instruction/on-site work that is described below.
“2. Purpose: The purpose of this program is to compensate
employees who to [sic] return to In-person instruction/on-site
work. . . .

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[¶] . . . [¶]
“4. Return to School Stipend: For each eligible member that
satisfies all conditions of this incentive program, the district
will pay $500 in the April pay warrant, and $500 in the
June pay warrant.”
(Underlining in original; other emphasis added.)
Also on March 10, the Trustees approved the March MOU at a public meeting.
McCoy presented a series of PowerPoint slides to the Trustees before they approved
the MOU. One slide McCoy presented, entitled “Hybrid Instruction,” stated that:
“Participation in a Hybrid instructional program is voluntary
for Students, Families, Teachers, and Staff[.]
“Hybrid instructional cohorts will consist at a maximum of 14
students and 2 adults[.]
“Hybrid in person Distance Learning groups[6] will meet in
cohorts of 24 students to 1 adult[.]”
Another slide in McCoy’s March 10 presentation included four hypotheticals that
collectively reaffirmed not all employees would be on campus:
“Student is present; Teacher is present – Student attends
their in person class[.]
“Student is present; Teacher is not present – [Student]
attends a Distance Learning Pod (24:1)[.]
6 The District used the phrase “hybrid in person distance learning group” to
refer to a class in which the students are together on-site, but the teacher is remote.
This possibility represented a release valve that the District could use for various
eventualities, including if the number of teachers choosing to come on-site was small
compared to the number of students choosing to participate in on-site instruction. As
part of this option, the District determined that students could congregate in groups of
24 if their teacher was teaching them remotely.

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“Student is not present; Teacher is present – Student does
Distance Learning from home[.]
“Student is not present; Teacher is not present - Student
does Distance Learning from home[.]”
Furthermore, the March 10 Trustees’ meeting minutes reflect that McCoy noted
the District might not have enough teachers for all students to have in-person classes,
but there would be enough adults on campus to allow students to at least come to
campus, even if they had to be instructed by teachers working remotely. McCoy also
told the Trustees that he expected a “core group of staff and students to return first” and
with time, he hoped for increases. Meanwhile, during the public comment portion of the
March 10 Trustees’ meeting, parents spoke in favor of full in-person learning and made
anti-union statements.
On March 18, McCoy e-mailed all employees and defended the fact that
employees and students would each have a choice whether to return to campus that
school year: “District stakeholders have asked me why we are returning in a voluntary,
instead of mandatory program. . . . We believe [the hybrid program provides] a fair
opportunity for all students and staff to return voluntarily in areas of the District that are
experiencing different rates of virus transmission.”7 McCoy then stated that the District’s
approach permitted “flexibility for students and staff to join us each week,” and he
shared his hope that “we will see more and more staff and students returning” in the
fourth quarter.
7 Different cities within the District experienced very different levels of COVID-
19 infection.

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Ventura County moved into the red tier on March 17. This change meant that
public health guidelines permitted the District to begin transitioning away from full
distance learning.8
The District allowed teachers and students to opt-in to hybrid instruction
beginning in the last seven days of March. Out of the District’s 17,000 students,
between 350 and 450 (between two and three percent) chose to participate during
those days. The District placed these students into one of three cohorts and assigned
each cohort one day per week for their in-person instruction for the remainder of the
third quarter, while capping instructional cohorts at 14 students and 2 adults. The
District scheduled one hybrid cohort for its in-person instruction on Tuesdays and
scheduled the other two cohorts for Wednesday and Thursday, respectively. No
students were scheduled to be on-site Mondays or Fridays. Accordingly, the first three
days with any cohort of students on-site were Wednesday, March 24, Thursday,
March 25, and Tuesday, March 30.
On the evening of March 24, the Trustees held their next scheduled public
meeting. Recognizing that the union representing campus supervisors had a “me-too”
arrangement giving it the right to benefits the Federation negotiated for its units, the
Trustees approved “$500 Stipends for Voluntary Return to Campus” for the supervisors’
unit (as well as for unrepresented employee groups). During public comment, parents
8 Prior to Ventura County moving into the red tier, public health guidelines had
afforded leeway, as to whether to reopen for in-person instruction, to districts with
students in grades Kindergarten through 6, but the District educates students in 9th
grade and older. Effective April 7, Ventura County moved to the orange tier, and
effective June 2 it moved to the yellow tier. The state discontinued the tier system in
mid-June.

20
commented that the Trustees should not listen to the Federation, should amend the
District’s MOUs, and should require all teachers to return to work in-person.
V. 	The District Required Most Teachers and Paraeducators to Work On-Site.
On March 29, Salgado e-mailed Allison and Federation President Robert Kadin,
claiming that McCoy wanted “to talk about the stipend timelines” and asking the
Federation to schedule a video conference for 6:00 p.m. the next evening. At that
point, there had been just two school days—March 24 and 25—with any students
on-site.
On March 30, the Federation participated in a 6:00 p.m. video conference as
Salgado had requested. McCoy, Salgado, and District attorney Darren Kameya
participated for the District, while Allison, Kadin, and Federation Vice President Julie
Cole participated for the Federation. At no time during the meeting did the District
discuss “stipend timelines.” Instead, McCoy announced that certificated employees
and paraeducators could no longer choose whether they wished to work on-site during
hybrid learning. McCoy said he was sending the Federation an e-mail right at that
moment, and at 6:04 p.m. he e-mailed the Federation a lengthy letter. In the letter,
McCoy alleged that “the conditions set forth in Section 3.0 of the [October MOU] have
been met, and the District is therefore transitioning to an in person hybrid learning
model . . . . Starting on April 26, 2021 and with limited exceptions, all employees will
return to work in-person at their regular worksites.” The letter then offered to bargain
“any impacts or effects” and stated that certificated employees and paraeducators could

21
remain working remotely only if they sought and obtained a medical exemption or
agreed to retire or resign their employment in June.9
Kadin responded to the District orally, telling McCoy, “you know, we actually have
a contract, and that contract says that you cannot do what you’re trying to do.”
Meanwhile, Allison responded by e-mail at 6:13 p.m., requesting to bargain and noting
that the District’s conduct violated the parties’ agreement.
Later during the March 30 video conference, the Federation told McCoy that
another problem with the District’s decision to require employees to work on-site was
that April 26 was not the beginning of a quarter. McCoy responded that maybe he would
need to do it sooner, effective April 12 (the first day of the fourth quarter). The
Federation reiterated that the District’s plan involved hybrid learning, which by contract
had to be voluntary for employees. McCoy responded that maybe he would need to
make it in-person learning.10
9 McCoy’s March 30 e-mail at 6:04 p.m. also attached a letter requesting to
bargain successor CBAs for each of the three units the Federation represents. While
the District asserts the Federation had previously sought to delay such bargaining until
January 2022, the record does not contain adequate information for us to assess this
claim and in any event it does not appear to be relevant to any material conclusion.
10 Allison also told the District that he had personally been helping employees
make vaccine appointments, that it was not easy to do so, and that many employees
would not be fully vaccinated by April 26. Furthermore, Allison asked McCoy if he had
gotten out in front of the Trustees in requiring employees to work from their school sites.
McCoy answered that he takes direction from the Trustees, and Kameya said the
Trustees had given this directive. Allison said he had watched the Trustees’ meeting,
just six days earlier, “gavel to gavel,” and seen no such directive. After taking a caucus,
the District returned to the video conference and said that the Trustees gave this
directive during a closed session portion of their March 24 meeting, pertaining to “labor

22
The parties’ March 30 video conference lasted several hours. For a lengthy
period before the parties logged off from the video conference, McCoy pressured the
Federation to commit that it (a) would not yet send employees any communication
about the District’s decision, and (b) would meet with the District the next afternoon and
offer a counterproposal. McCoy threatened that if the Federation could not make these
commitments, he would immediately send all employees notice of their obligation to
return to work in-person on April 26. The Federation largely agreed to McCoy’s
procedural demands to keep him from carrying out his threat. The Federation promised
it would e-mail the District its counterproposal before their meeting the next day. The
Federation did so at 1:26 p.m. on March 31, maintaining that employees had the right
to decide whether to return on-site during hybrid instruction, and again proposing that
the District should use some of its additional state monies to incentivize teachers to
return.
McCoy testified that March 24 was the first day he began internal discussions
with Salgado and other District leaders over the decision to require staff to work on-site,
and that he made this decision prior to giving notice to the Federation on the evening of
March 30. McCoy testified that he made the decision for only a single reason: because
the District thought it “didn’t have enough teachers in the preview days [March 24, 25,
and 30] to accommodate the number of students who wanted to return to school.” When
asked about the percentage of teachers who chose voluntarily to teach on-site, McCoy
testified: “I would say about 20 percent of the certificated workforce.” This phrasing
negotiations.” While the record contains extensive evidence on these issues, they are
not relevant to any material conclusion.

23
indicated a lack of certainty, and neither McCoy nor the District provided data to back
up McCoy’s claim. Notably, in Salgado’s sworn declaration submitted by the District on
April 15 in opposition to the Federation’s request for injunctive relief, she stated that
between 37.1 percent and 41.6 percent of teachers chose voluntarily to teach on-site
starting in the last week of March 2021. Because it is more precise and was given
closer in time to the events at issue, we credit Salgado’s declaration over McCoy’s
testimony.11 Thus, while only two or three percent of students had chosen to participate
in hybrid instruction as of the date the District made its decision, a much higher
percentage of teachers had chosen to participate.
VI. 	After March 30, the Parties Largely Maintained Their Positions.
Resuming on March 31, the parties met by video conference at 1:30 p.m. and
rehashed many of their statements from the previous night. The Federation began by
reiterating that the District had promised “over and over and over” that if the District
implemented hybrid instruction that school year, employees would not be forced back
on-site against their will. In response, the District pointed to two parts of the October
MOU. First, McCoy said that section 3.0 permitted him to require staff to return on-site
11 As the ALJ informed the parties, the record in this case includes the
documents filed in support of and in opposition to the Federation’s request for
injunctive relief. Salgado did not testify. Her declaration is hearsay evidence that “shall
not be sufficient in itself to support a finding unless it would be admissible over
objection in civil actions.” (PERB Reg. 32176.) It is undisputed that Salgado was
authorized to speak on behalf of the District when she made the sworn statements in
her declaration. Those statements therefore are authorized admissions under
Evidence Code section 1222. (Alliance Environmental Science and Technology High
School (2020) PERB Decision No. 2717, pp. 21-22 [judicial appeal pending].) We
therefore find that between 37.1 percent and 41.6 percent of teachers chose
voluntarily to teach on-site starting in the last week of March 2021.

24
when health conditions improved. Second, McCoy said the District was calling
employees back to in-person learning as allowed under section 4.08.12 When the
Federation offered its contrary legal view and said this was heading toward a legal
process, the District responded that “the legal process is slow and in the meantime we
will reopen.”
Also during the March 31 video conference, the Federation orally proposed to
increase incentives to employees and postpone the April 26 mandatory return date.
McCoy testified that the District did not respond because collective bargaining proposals
must be in writing and therefore oral proposals such as the Federation’s do not “exist.”
As part of the March 31 discussion, the District clarified that hybrid learning
would remain voluntary for students, but not for teachers and paraeducators. The
District also told the Federation that it had decided to increase hybrid instructional
cohorts to a maximum of 18 students and 1 teacher. The meeting ended with the
District indicating it would notify employees of its decisions and the Federation
indicating it would pursue legal action.
By letter dated April 2, the Federation notified the District that even though the
District’s firm decision to deviate from the parties’ MOUs precluded any possibility of
good faith negotiations, the Federation was always willing to meet. The parties met at
least ten times between March 31 and April 20, including a full day mediation on
12 The District later relied on the same two MOU provisions in an April 7 e-mail,
characterizing its decision as “implementation of sections 3.0 and 4.08 of our October
2020 MOU.”

25
April 17.13 Throughout these discussions, the Federation maintained its position that
while it was willing to meet to discuss mitigating harms, the District’s course of conduct
was illegal.
On April 6, the District made a written proposal that included the following
provisions:
“From Monday April 12, 2021 through Friday April 23, 2021
certificated and paraeducator employees will be voluntary to
return and may remain in remote work.
“Certificated and Paraeducator employees who have already
submitted or will submit a notice of retirement or resignation
from the District . . . will remain voluntary to return to in-
person work and will not need to use any personal leave or
sick leave to remain in a remote assignment.
“Certificated and Paraeducator employees who have a
medical need to remain in a remote assignment may submit
a note from a qualified medical professional as the need
exists or arises. Each case will be evaluated per the
information in the note from the qualified medical
professional that exempts the employee from their in-person
assignment. Any employee not approved for a medical
remote assignment may appeal through the Federation and
a joint committee representing the District and the
Federation will review the case with permission from the
employee.
“Certificated and Paraeducator employees may request an
unpaid leave of absence from April 2021 through June 2021
[¶] . . . [¶]
13 McCoy testified that the Federation indicated no interest in continuing
negotiations after April 20, and Allison testified that neither side requested further
meetings. No material conclusion turns on whether only the Federation discontinued
negotiations after April 20 or both sides lacked such interest.

26
“Certificated and Paraeducator employees not qualifying for
any other exemption may file for a hardship exemption to
stay in remote work. . . . The Federation shall recommend
hardship exemptions, based on criteria jointly developed by
the Federation and the District, to a joint committee of the
Federation and the District for consideration during the week
of April 19, 2021. . . .
“The District shall recall all non-exempt certificated
employees and paraeducators to return to work on Monday
April 26, 2021 at school sites and other facilities used by the
District to offer in-person instruction to enrolled pupils.
[¶] . . . [¶ ]
“In the Orange Tier - the District shall limit daily class size to
18:1 (4ft Social Distancing); Any Teacher may include up to
24:1 at their discretion (4ft Social Distancing).
“In the Orange Tier - the District shall assign students to one
of two cohorts (Mon/Wed or Tues/Thurs) with Friday as an
option for the Teacher to assign: In-person tutorial; remote
tutorial; In-person learning. Student Cohorts that total less
than 18 over two days shall be combined into a four day
cohort.
“In the Yellow Tier student cohorts that are less than or
equal to 30:1 (3ft Social Distancing) shall attend five days a
week including Friday.”
(Emphasis supplied.)
Although Salgado orally stated on April 6 that the parties’ negotiations related to
a “successor” or “replacement” MOU, she followed up with an e-mail later that day
clarifying the District’s position that it was not proposing a new MOU and instead was
“negotiating the effects of bringing employees back to the work site to in person
instruction per the current MOU.”

27
On April 7, the Federation made a written counterproposal that would,
among other items, continue giving employees a choice whether to work on-site,
increase monetary incentives for on-site work, and establish the following joint
effort to make sure the number of students seeking in-person teaching did not
outstrip the number of staff on-site:
“On or after the start of Quarter 4 on April 12, 2021, the
District and the Federation shall meet to review the return to
school numbers of students, paraeducators and teachers.
“Outreach Phase: If the numbers for paraeducators and/or
teachers fall short of district needs in the period between
4/12 and 4/26/21, the District and the Federation will jointly
work to encourage greater numbers of returning employees
as they become fully vaccinated and feel safe to return.
“On or after the start of the Recall to Sites phase on April 26,
2021, the District and the Federation shall meet to review the
return to school numbers of students, paraeducators and
teachers.
“Incentive Phase: If the numbers for paraeducators and/or
teachers fall short of district needs after 4/26/21, the District
and the Federation will jointly work to contemplate incentives
which may encourage more employees to return to onsite
work and find ways to remove barriers to employee
concerns.
“On or after May 17, 2021, the District and the Federation
shall meet to review the return to school numbers of
students, paraeducators and teachers.
“Enhanced Phase: If at any time after May 17, 2021[,] the
ratio of students returning to teachers returning is higher
than 28 to 1, the district and Federation will meet to consider
implementing an enhanced return to work order for
Certificated and Paraeducator staff, exclusive of those who
have received prior exemptions from the district.”

28
The Federation’s April 7 proposal also provided: “This MOU shall expire in full without
precedence on June 16 unless extended by mutual written agreement by both parties.
The parties anticipate a successor agreement to handle issues regarding fall school
reopenings. The parties agree that any disputes to the terms herein will be submitted to
an expedited arbitration process with shared costs upon the request of either party.”
On April 8, the District made a written proposal that stated, among other items:
“Unless exempted, all employees are recalled to work at school sites and other facilities
used by the District to offer in-person instruction to enrolled pupils on Monday April 26,
2021[.]” The District made additional written proposals containing this sentence on
April 12 and 16.
The concluding paragraph of the District’s proposals dated April 8, April 12, and
April 16 contained the following sentences: “These effects shall expire in full without
precedence on June 16 unless extended by mutual written agreement by both parties.
The parties agree that any disputes to the terms herein will be submitted to an
expedited arbitration process with shared costs upon the request of either party.”
When the parties discussed exemptions to mandatory in-person work for health
issues, caretaking needs, or other hardships, the District insisted on more narrow
definitions than the Federation proposed, and at one point the District indicated that it
needed at least 609 certificated staff working on-site. In addition to advocating that the
District should freely grant exemptions, the Federation also disagreed with putting non-
medical personnel in charge of granting medical exemptions.
Effective April 26, the District required teachers and paraeducators to work
on-site absent an approved exemption. The District also implemented, at least in

29
limited circumstances, its decision to go beyond the parties’ agreed-upon maximum
cohort size of 14 students and 2 adults; thereafter, the District discontinued doing so
and instead adhered to the maximum cohort size.
McCoy testified that even though the District required most certificated
employees and paraeducators to return on-site effective April 26, teachers could
nonetheless bar students from their classrooms and instead engage in purely distance
instruction. According to McCoy, in this instance, those students attending school in-
person would participate from an on-site tent. Allison testified that the District did not
give teachers that option after April 26. We weigh these competing claims post at
pages 36-39 and conclude that all available evidence undercuts McCoy’s claim and
corroborates Allison’s testimony.
McCoy testified that students’ on-site attendance generally increased after
April 26 (while later decreasing during a period in which students took state-mandated
and advanced placement tests). The District did not provide any further information
regarding McCoy’s general assertion. In the absence of such information, we make no
findings as to the nature of any alleged attendance increase following April 26 or any
subsequent decrease.
In April, the Federation filed a grievance alleging that the District had violated the
October MOU, the District denied the grievance, and the Federation appealed to the
next grievance level. In May, the District denied the appeal, and the Federation
requested expedited arbitration. The District refused to expedite the matter, and the
parties therefore proceeded according to non-expedited arbitration procedures. At the

30
time of the PERB formal hearing on liability issues, the parties had scheduled an
arbitration date.
DISCUSSION
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 (Bellflower).)14
The District does not dispute that the decisions it announced on March 30-31
had a generalized effect or continuing impact on employees, nor could the District
plausibly raise such a dispute given that it substantially altered employees’ working
conditions from April 26 through the end of the school year and asserted a potentially
far-reaching right to reinterpret contractual terms as public health conditions improved.
(Sacramento City Unified School District, supra, PERB Decision No. 2749, p. 8
[continuing impact shown if change either alters a term or condition of employment or
14 To “bargain” has the same meaning as to “meet and confer” or to “negotiate,”
and we use the terms interchangeably. (EERA, § 3540.1, subd. (h); County of Santa
Clara (2021) PERB Decision No. 2799-M, p. 15, fn. 9.)

31
involves employer assertion of non-existent right that could be relevant to future
disputes].) We therefore focus our analysis on the primary disputed issues, which
include the first, second, and fourth unilateral change elements, several issues
relevant to the complaint’s alternate effects bargaining claim, and several affirmative
defenses upon which the District relies.
I. 	The District changed or deviated from the status quo.
There are three primary means of establishing that an employer changed or
deviated from the status quo. (Bellflower, supra, 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.)
One set of changes alleged in the complaint have effectively been withdrawn,
though some explanation is warranted. Specifically, the complaint alleged that the
District altered the status quo (as measured by the October MOU and policies and
practices implementing that MOU) by transitioning its instructional program mid-
quarter, by doing so without surveying staff, students, and families, and by doing so
without consulting with the LRC, the Federation, the Trustees, students, and parents.
Both parties now agree that: sections 4.0, 4.7, 4.07.1.1, and 4.8 of the October MOU
barred the District from transitioning to hybrid learning or in-person learning in the
middle of an instructional quarter, or without surveying and consulting the
aforementioned stakeholders; the District remained in distance learning from the
beginning of the school year through March 23; the District transitioned from distance

32
learning to hybrid learning on March 24, which was in the middle of the third quarter ,
but the District did not violate EERA because it did so with the Federation’s approval;
the District continued in hybrid learning for the remainder of the school year; and the
District’s April 26 transition did not constitute a transition to in-person learning.15 In
sum, the Federation does not challenge the District’s shift to hybrid learning on
March 24, and we dismiss the complaint allegations related to that transition.
However, it is important to note why the charge and complaint alleged violations
related to a change in instructional program. When the Federation repeatedly
reminded the District in March and April that it was violating the parties’ agreements
by requiring staff to participate in hybrid learning, the District responded by arguing
that sections 3.0 and 4.08 of the October MOU authorized it to transition to in-person
learning. Thus, because it had agreed to allow employees to choose whether to
participate in hybrid learning, the District initially made it appear that it was
transitioning the instructional program to in-person learning effective April 26. But the
record shows—and the parties’ positions now reflect—that the District never
progressed beyond hybrid learning, which is a mix of distance instruction and in-
person instruction.16
15 For instance, McCoy characterized the April 26 change as follows: “The
District had already implemented the hybrid model. The decision was to change our
program from an opt-in to an opt-out.”
16 Although the District’s brief is clear that it only changed the instructional
program once in the school year, effective March 24, McCoy provided inconsistent
testimony on this topic. For instance, when asked why the District chose to notify the
Federation on the evening of March 30 that employees must work on-site beginning
April 26, McCoy answered that: “The starting of quarter four was Monday, April 12th”

33
We turn now to the alleged changes or deviations from the status quo that
remain in dispute.
A. 	The District’s decision to require in-person work.
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, we 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.)
and “to be respectful of the requirement in MOU number two where no changes in
program except at the beginning of the quarter, we wanted to notify the Federation
before the start of quarter four of our intent to recall employees beginning April 26th,
2021.” We find this to be one of several areas where McCoy was an unreliable
witness, and we do not credit his testimony where it conflicts with other evidence.

34
In the October MOU, section 4.0.1 provides that employees engaged in
distance learning can choose to work from home or from school,17 and section 4.07.1
provides that employees may choose whether to engage in hybrid instruction or
remain in distance learning.18 Paragraph 1 of the March MOU reinforces this clear
intent: “The parties agree that on a voluntary basis, employees may choose to return
to In-person instruction/on-site work that is described below.” (Emphasis supplied.)
Thus, the plain language of the MOUs leaves no doubt that for the second, third, and
fourth quarters of the 2020-2021 school year, the District had agreed not to require
employees to work on-site unless it transitioned to full in-person learning.
While the MOU provisions are clear on this point, even if they were ambiguous,
other evidence belies the District’s strained contract interpretation. First, as detailed at
length above, the District itself made repeated oral and written statements confirming
that employee participation in hybrid learning was voluntary; the record strongly
supports Allison’s testimony that the District made this promise “over and over.”
Furthermore, the District did not attempt to rebut the unequivocal bargaining
history noted above, in which the Federation clearly articulated core priorities, the
District agreed with those priorities and put them into writing, and on that basis the
Federation ratified the October MOU and held off from seeking many other types of
pandemic-related benefits that other educational unions were seeking at that time.18
17 “Unit members providing service in Distance Learning have the option to work
either remotely or may access and work from their assigned classroom/office
workspace during regular school hours.”
18 Only the Federation submitted competent evidence of what the parties
discussed while bargaining the October and March MOUs. The District could have

35
Indeed, the parties’ negotiations regarding monetary incentives for employees to work
on-site only make sense in light of the unequivocal MOU provisions allowing all
employees to opt out of hybrid learning.
McCoy’s main effort to harmonize the District’s conduct with its contractual
obligations centered on an argument for which we can find neither legal nor factual
support. McCoy testified that even after April 26, teachers could still engage in wholly
distance learning by teaching from their classrooms and requiring any of their students
who were on-site to participate in class from tents on the school grounds. Assuming
that teachers were in fact allowed to do so, the District would still have significantly
deviated from the October MOU. As noted above, section 4.0.1 of that MOU states
that “Unit members providing service in Distance Learning have the option to work
either remotely or may access and work from their assigned classroom/office
workspace during regular school hours.” Thus, while teachers could choose to continue
distance learning according to McCoy’s testimony, they no longer could choose to do
so remotely, as MOU section 4.0.1 allowed.
called its chief negotiator, Salgado, to testify, but instead presented witness testimony
solely through McCoy, who was not at the bargaining table. To the extent McCoy
sought to offer evidence about contractual meaning, much of his testimony was
hearsay and/or 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. (PERB Reg. 32176 [“[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”]; 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’ Ass’n. 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].)

36
In any event, we credit Allison’s testimony over McCoy’s and conclude the
District never told teachers that even after April 26 they had full authority to bar all
students from their classrooms and thereby continue to engage in 100 percent
distance instruction. Corroborating information on this point and others showed Allison
to be a reliable witness and McCoy to be an unreliable witness. On this topic, for
instance, we consider multiple strands of evidence beyond testimony from McCoy and
Allison.
First, the District failed to introduce into evidence any written communication
informing teachers that even after April 26 they had full authority to bar all students
from their classrooms, and the District also failed to adduce testimonial evidence that
it ever informed teachers of this right, either orally or in writing. In other words, McCoy
testified that teachers had this right, but he did not testify that the District ever told
teachers they had such a right.19 Moreover, several District communications—
including those to the Federation on the evening of March 30—indicated that teachers
who did not fall into one of the exceptions the District offered would have to report
on-site and teach students in-person.
Second, McCoy’s testimony conflicted significantly with his own explanation as
to the “only reason” the District required employees to work on-site: the allegedly
insufficient number of teachers to accommodate the number of students who wanted
to return to school. As McCoy explained in an e-mail dated April 21, the District’s goal
19 Because McCoy never testified that the District communicated to teachers
about this supposed right, his testimony technically does not conflict with Allison’s
testimony.

37
was to give students “a meaningful chance to receive in-person instruction.” If
teachers were in fact permitted to continue distance learning from their classrooms,
this would not satisfy the District’s alleged need.20
Third, McCoy’s testimony is contradicted by his declaration dated April 15, in
which he stated that “Due to the lack of significant employee attendance on-site during
the District’s Preview Period from March 22 to the present, the District determined that
instructional employees would need to be recalled to provide in-person instruction as of
April 26, 2021 to provide meaningful in-person instructional opportunities for District
students. . . . the District representatives informed OFTSE representatives that the
District would be recalling employees as of April 26, 2021 to offer in-person instruction
to all students.”21
Fourth, Salgado’s sworn declaration, also dated April 15, similarly left no doubt
that the District was requiring staff to provide in-person instruction and would not
permit them to engage in distance learning from their classrooms with no students
present. Indeed, dozens of Salgado’s assertions, found in each of eight separately
20 As noted above, McCoy informed the Trustees that up to 24 students could
be together in a “hybrid in person distance learning group,” which would be
appropriate when “Student is present; Teacher is not present.” All contextual evidence,
including the slideshow’s references to the voluntary nature of hybrid learning for
teachers and students as well as section 4.0.1 of the October MOU, indicates that “not
present” referred to a teacher choosing to engage in distance teaching either from
their homes or from their classrooms, at their option.
21 The District also attempts to rely on the fact that it permitted employees to
apply for health-related and hardship exemptions from in-person work. While this
undoubtably narrows the group of employees impacted by the District’s change, the
fact remains that the District deviated from the parties’ written agreement.

38
numbered paragraphs and covering nearly three full, detailed pages, leave no
question as to the true nature of the District’s decision. In arguing otherwise, the
District simply attempts “to escape the consequences” of its action. (County of
Riverside (2006) PERB Decision No. 1825-M, p. 8.)
Fifth, numerous other contemporaneous documents further belie McCoy’s
testimony. The District’s March 30 letter announcing its decision said it was recalling
employees to provide “in-person instruction/services.” The District’s proposals dated
April 6, 8, 12, and 16 were also clear that unless a certificated employee or
paraeducator fell into one of the exempt categories, they were being recalled “to offer
in-person instruction to enrolled pupils.” As noted above, McCoy’s April 21 e-mail
proves the point as well.
Sixth, the District’s opposition to the Federation’s injunctive relief request
similarly includes numerous statements leaving no doubt that the District was requiring
most employees not only to work on-site but to do so in the classroom with students
choosing to participate in hybrid learning.
Seventh, the District has used nebulous language to cover its shifting positions.
In its March 30 letter, the District stated that it was recalling employees to provide “in-
person instruction/services” but would remain in hybrid learning, and the District
coined a new term to describe what it was doing: “in person hybrid learning.” While the
parties did not include that term in any of their MOUs,22 nor have they otherwise used
22 In negotiations over the October MOU, the parties specifically differentiated
between hybrid learning under section 4.07, which would be voluntary, and full in-
person learning under section 4.08.

39
it, the District used the new term six times in its March 30 letter to refer to a set of
conditions that clearly violated the parties’ agreements—requiring employees to work
on-site during hybrid instruction, while students had a choice whether to remain in full
distance learning or hybrid learning. Thus, the District coined a new term because
using the terms the parties defined in their MOUs would reveal that the District was
deviating from the parties’ agreements. By the time of the formal hearing, however,
the District abandoned the “in person hybrid learning” term and instead largely
focused on the untenable argument that it complied with the MOU by permitting
employees to engage solely in distance learning even after they were required to work
on-site.
Finally, even if the record were less clear that the District deviated from written
contractual provisions, the record would still demonstrate that the District changed or
deviated from the status quo by altering its established past practice of permitting
employees to choose whether to work from home when hybrid instruction began, as
well as by creating a new “in person hybrid learning” policy requiring most employees
to work on-site where previously there had been no such policy, and/or by applying its
existing policies in a new way. (Bellflower, supra, PERB Decision No. 2796, p. 10.)
B. 	The District’s decision to exceed the maximum hybrid cohort size.
Section 4.07.2 of the October MOU plainly required that hybrid instructional
cohorts “will consist at a maximum of 14 students and 2 adults.” In its response to the
Federation’s grievance, the District admitted that it implemented, at least in limited
circumstances, its decision to exceed this maximum cohort size. Thereafter, the

40
District discontinued exceeding the maximum, and on that basis the District asserted
that the issue is moot.
PERB precedent leaves little doubt as to the import of the District’s admitted
deviation from the status quo and its apparently prompt return 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.)
C. 	The District’s deviations from MOU sections 16.01 and 16.02.
The complaint alleged that the District altered the status quo by failing to
bargain “weekly or as needed” regarding implementation of hybrid or distance learning
(as required under section 16.01 of the October MOU) and by failing to honor the
reservation of additional bargaining rights found in section 16.02 of the October MOU.
By the time the parties finished presenting evidence and argument, it was clear that
the gravamen of the dispute was that the District unilaterally decided to repudiate its
commitment that hybrid learning was voluntary (and, to some degree, its commitment
to a maximum hybrid cohort size). As we discuss post, no number of meetings would
have been sufficient to permit these unilateral actions given the District’s repeated
binding agreements on those subjects throughout the pandemic, and in fact the
Federation would have been within its rights to refuse to meet about those unlawful
decisions. However, as an alternate holding—which we discuss further below at
pages 49-53—we conclude that the District deviated from sections 16.01 and 16.02 of
the October MOU when it told the Federation that it was instituting new employment

41
terms as a fait accompli, without first having raised its staffing concern and bargained
in good faith over alternative ideas.23
II. 	Work-from-home policies and class size are mandatory bargaining topics.
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).)24 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.)
23 The Federation first learned of the District’s decision during the March 30
video conference, when McCoy e-mailed Federation negotiators a letter announcing
the decision. 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.)
24 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. [Prior to January 1, 1978, PERB was known as the Educational
Employment Relations Board or EERB].)

42
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
(San Bernardino), quoting Anaheim, supra, PERB Decision No. 177, pp. 4-5.)25
25 In cases involving the Meyers-Milias-Brown Act, PERB and the California
appellate courts do not apply the Anaheim test. (San Bernardino, supra, PERB

43
Turning to the facts of this case, no significant analysis is required to determine
that 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).)
We similarly have no trouble finding that work-from-home policies satisfy the
first two elements of the Anaheim test. Looking to the third element, in normal
circumstances 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, which we discuss in the following section; it does
not, however, turn the topic into a non-mandatory subject of bargaining under
Anaheim.
Before turning to standards on bargaining in emergency circumstances, we
pause to explain why bargaining over a work-from-home policy for educational
Decision No. 2599, pp. 11-12.) Rather, if there is no prior precedent determining
whether a topic falls within the scope of representation, we 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. Our inquiry in such cases is
fundamentally akin to our inquiry under Anaheim, 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; San Bernardino,
supra, PERB Decision No. 2599, pp. 11-12.)

44
employees is not identical to bargaining over bringing students back on-site. The
Federation admits that the District has no duty to bargain before deciding when to
require students to learn from home, when to allow them the option to return for some
instruction on-site, or when to require them to return to full in-person instruction. Under
normal circumstances (again, temporarily setting aside the extent to which a pandemic
excuses certain employer obligations), the corresponding set of conditions for
employees would satisfy the Anaheim test. For instance, PERB has applied Anaheim
to distinguish “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.) The instant record shows the same is true with respect to
work-from-home policies, as there are multiple respects in which student participation
on-site and employee work performance on-site depart from one another. For
instance, as noted above, a “hybrid in person distance learning group” could permit
students to be together with one another on-site, while their teacher works from home.
III. 	COVID-19 was a sufficient emergency to curtail certain bargaining
duties, but it did not permit the District to unilaterally disregard the
commitments it made in the October MOU and thereafter.
An employer is temporarily excused 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

45
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].) For instance, when a devastating
earthquake forced two hospitals to close and “swamped” the only functioning hospital
in West Los Angeles, the Board found there was time to bargain in good faith over
staffing needs that developed over the ensuing weeks and months, and an employer
violated its bargaining obligation by failing to do so. (Regents of the University of
California (1998) PERB Decision No. 1255-H, adopting proposed decision at pp. 8,
35-37.)
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

46
opportunities to bargain when time allows. (Regents of the University of California,
supra, PERB Decision No. 1255-H, adopting proposed decision at p. 37.) Thus, had it
not made the binding commitments in the October and March MOUs, the District may
have been within its rights to notify the Federation on March 30 that it had decided to
expand the extent of its in-person offerings as of April 26. While we need not reach
that question and do not express any opinion on it, we note that in such a scenario the
parties would still have a bargaining obligation. For instance, depending on the
circumstances, the parties might bargain over a partial return toward status quo
employment terms from March 30 to April 26, with continued bargaining even after
implementation if bargaining was not complete by April 26.
Nothing required the District to reach 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. Yet the District’s
decision to accede to the Federation’s proposal on that issue caused the Federation to
forego alternate proposals it could have made and brought negotiations to a prompt
and amicable conclusion. Having made binding commitments via the October MOU
seven months into the pandemic, and then reaffirming and expanding on those
promises repeatedly thereafter (including via the March MOU), 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”].)
The District has no tenable argument that new circumstances arising after the
October MOU permitted it to deviate from its commitments. Rather, the pandemic
began to ease somewhat in the second half of the school year, just as the parties had
anticipated. That provides no cause for the District to breach its commitments.
Although the District does not explicitly raise an emergency defense, McCoy
testified that there “had been a change in the Education Code in late February in
[Assembly Bill] 86 requiring districts to provide in-person instruction to the extent
possible given the public health conditions and guidelines.” While a truly new and
binding legal requirement can limit an employer’s duty to bargain, there are three
reasons this argument fails.
First, the provision McCoy referenced, Education Code section 43504,
subdivision (b), was added in the prior legislative session via Senate Bill 98. The
Assembly and Senate passed the bill in June 2020, and the Governor signed it into
law on June 29, 2020. Assembly Bill 86, which the Governor signed into law on
March 5, 2021, referenced the previously enacted section 43504, subdivision (b) and
stated the Legislature’s intent that “starting in the 2020-21 school year” and continuing
thereafter, schools should “expand in-person instructional time and provide academic
interventions and pupil supports to address barriers to learning and accelerate
progress to close learning gaps.” (Ed. Code, § 43520.) Thus, well before executing the
October MOU, the law already required the District to offer in-person instruction to the
greatest extent possible.

48
Second, 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.) Here, the
Legislature gave each school district discretion to determine what level of in-person
instruction was possible and how to focus its efforts on those students most in need of
in-person instruction. The District thus was not faced with a legislative mandate to
immediately return to in-person instruction.
Third, even had the Legislature passed a new law after October 2020 that took
away the District’s discretion, the District reached its decision after just three days of
hybrid instruction. At that time, only two or three percent of District students had chosen
to participate in the on-site portion of hybrid learning, while between 37.1 percent and
41.6 percent of teachers had chosen voluntarily to teach on-site. There was, in short,
no cause for the District’s precipitous decision even had McCoy been correct in his
mistaken understanding of the law.
To the extent the District argues that requiring most teachers to work on-site
would encourage more students to participate in the in-person part of hybrid
learning—and particularly those students most in need of that instructional mode—we
do not rely on that conjecture for several reasons. It conflicts with McCoy’s testimony,
in which he stated the “only reason” the District required teachers to work on-site was
that the District “didn’t have enough teachers in the preview days [March 24, 25, and
30] to accommodate the number of students who wanted to return to school.” And
even if we were inclined to look beyond this singular reason, we cannot evaluate the

49
“if we build it, they will come” idea in the absence of a more complete record.
Moreover, that rationale does not qualify as a sudden emergency resulting from
circumstances beyond the District’s control that left it no alternative to the action taken
and allowed no time for meaningful negotiations before it needed to act.
In sum, the District repudiated section 4.07.1 of the October MOU by requiring
employees to participate in hybrid instruction as of April 26. Under these
circumstances, 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, supra, 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].) Nonetheless, as explained below we
hold in the alternative that when the parties met on and after March 30, the District did
not comply with its bargaining duties under MOU sections 16.01 and 16.02; and even
to the extent the District claims it only had an effects bargaining obligation, the District
did not satisfy the necessary preconditions for implementing an allegedly non-
bargainable decision before effects bargaining is complete.
IV. 	The District violated its effects bargaining obligations and deviated from
MOU sections 16.01 and 16.02.
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

50
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
rather 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.)
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 (Compton).)
Here, assuming that the employment terms and conditions in dispute were no
more than effects of a decision involving a non-mandatory topic of bargaining, the
District still fell short of meeting the three-part Compton standard. Moreover, even
setting aside the fact that the Federation had no obligation to bargain given the

51
District’s decision to repudiate the October and March MOUs, the District’s bargaining
conduct unilaterally deviated from MOU sections 16.01 and 16.02. We explain.
Neither party declared impasse in effects negotiations—much less exhausted
the post-impasse procedures found in EERA sections 3548-3548.8.26 Therefore, 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, supra, PERB Decision No. 720,
pp. 14-15.) But as discussed above, the District did not do so. Rather, the District
provided no advance notice, and, in any event, it breached binding commitments it
had made well into the pandemic, without any new emergency requiring it to do so
unilaterally.
Moreover, after making its recall decision unilaterally, the District was unwilling
to bargain in good faith over alternative means of meeting any on-site staffing needs
that might arise. 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
26 Under EERA, when parties reach impasse, they must participate in
mediation. (EERA, § 3548.) If mediation is unsuccessful, either party may request
advisory factfinding. (EERA, § 3548.1, subd. (a).) Only once the parties have
considered in good faith the factfinder’s recommendations may the employer
“implement policies reasonably comprehended within previous offers made and
negotiated between the parties.” (Modesto City Schools (1983) PERB Decision
No. 291, pp. 32-33.)

52
Sacramento, supra, 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.) Here, for instance, the parties
might have considered any combination of: monitoring whether collectively-bargained
incentives would have their intended effect and entice a sufficient number of teachers
to work on-site; increasing such incentives; defining specific levels of student
participation that would trigger recalls; spreading out on-site work using a rotation; or
implementing some version of what McCoy later claimed, post hoc, had occurred—
allowing on-site staff to bar students from their classrooms and, in essence, continue
with distance learning. The District frustrated good faith negotiations by stating it had
no duty to bargain over alternatives to its decision and refusing to do so, even when
data showed that incentives were leading a much higher percentage of teachers to opt
into hybrid learning compared to the number of participating students.27
This conduct also deviated from sections 16.01 and 16.02 of the October MOU,
which required the parties to meet and confer as needed regarding further
pandemic-related employment terms and conditions. The District repudiated this
commitment in the last week of March. Rather than notify the Federation of its
undisclosed and questionable concern that the incentives it had negotiated in March
27 The District further violated its duties under Compton when it unilaterally
imposed a ground rule by refusing to respond to oral proposals. (Orange, supra,
PERB Decision No. 2594-M, pp. 8-16 [ground rules are equivalent to a mandatory
subject of bargaining].)

53
were not leading enough teachers to agree to work on-site, the District reached a
unilateral decision to breach its prior commitments, announced that decision to the
Federation as a fait accompli, and then steadfastly denied that it had any duty to
bargain over alternatives.28
V. 	This case does not warrant deferral to arbitration.
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, supra,
PERB Decision No. 2796, pp. 19-20; County of Santa Clara (2021) PERB Order
No. Ad-485-M, pp. 6-7 (Santa Clara).)
28 The District compounded the practical effects of its bad faith conduct by not
only deciding to require in-person work before discussing the matter with the
Federation, but also steadfastly avoiding any hint it was considering such a decision in
numerous communications and forums away from the bargaining table, including all-
staff e-mails dated March 4 and 18, YouTube Live meetings for employees and
parents on March 5 and 11, an LRC meeting on March 8, a Superintendent’s Student
Advisory Council meeting on March 12, and the open session parts of the Trustees’
meetings on March 10 and 24. In these communications and forums, far from
suggesting that it was considering whether to require employees to work on-site, the
District reiterated its prior commitments. While these facts gave rise to the complaint
allegations that the District failed to consult with stakeholders before transitioning the
instructional program, we have dismissed those allegations based on the parties’
agreement that the District only made one such transition, on March 24. The District
raised that transition in the above forums, and in any event the Federation does not
challenge that transition.

54
In Santa Clara, supra, PERB Order No. Ad-485-M, we 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 we
defer 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 we do 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 we apply 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.
Here, as noted ante, the interference claims are purely derivative of the
bargaining claims, so we need only consider whether to defer to arbitration the claims
that the District unilaterally repudiated or changed collectively bargained policies,
applied existing policies in a new way, or implemented new policies covering
employment terms that were not fully established by any existing policy, in violation of
an obligation to bargain over its decisions or the effects thereof. These claims are
interrelated, as they arise from the same core set of facts. (Santa Clara, supra, PERB
Order No. Ad-485-M, p. 12.) Accordingly, no part of the charge may be deferred
unless each independent claim meets the deferral test. (Ibid.)

55
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. (Santa
Clara, supra, PERB Order No. Ad-485-M, p. 8.) “[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.)
In this case, the parties’ MOUs are important enough to the outcome of the
unilateral change case that, at first blush, the matter appears potentially deferrable.
Closer examination reveals, however, that the parties’ CBAs permit an arbitrator to
find a contract violation only if the employer violated an “express term” in an “arbitrary,
capricious or discriminatory manner.” That deferential standard unduly puts a thumb
on the scale in favor of the employer’s contract interpretation and contravenes the
neutral contractual interpretation standards we apply in a unilateral change case (see
ante at pp. 33-35 & fn. 19.). This anomaly precludes deferral. (See Santa Ana Unified
School District (2013) PERB Decision No. 2332, pp. 25-26 (Santa Ana) [deferral

56
inappropriate both because contract limited arbitrator from providing full make-whole
remedy and because contract limited arbitrator from fully considering the issues at
stake].) Additionally, the parties’ CBAs 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].)
Based on the CBAs’ language, the arbitrator is not authorized to decide the
crux of the parties’ statutory dispute in a fair manner, nor fully consider or remedy all
of the alleged bargaining violations. The CBAs’ inequitable standard is particularly
problematic given that the District asserts considerable discretion to interpret the
MOUs flexibly, claiming that it did so “consistent with the parties’ intent to negotiate a
guiding document that would be reasonably applied in a dynamic and evolving public
health crisis,” and “within the legal and medical or epidemiological context in which the
MOU was negotiated.”29 For the foregoing reasons, the District has not carried its
29 The complaint alleges that the District committed all three types of unilateral
changes: (1) deviation from a written agreement or written policy; (2) a change in
established past practice; and (3) a newly created policy or application or enforcement
of existing policy in a new way. While at least the first category of unilateral changes
should normally be arbitrable if the written agreement is in effect and contains an
arbitration clause, in the present circumstances even the first category is arbitrable
only under a standard that is antithetical to EERA.

57
burden of establishing that deferral is appropriate.30 (Santa Ana, supra, PERB
Decision No. 2332, p. 27.)
CONCLUSION
COVID-19 created significant new challenges for public entities, public
employees, and public employee unions. Nowhere was this more apparent than in
public education. It is a testament to the skill of district administrators and union
representatives that hundreds of districts across the state achieved labor agreements
covering both pandemic-related issues and more standard topics. We commend these
efforts and are glad that in some cases PERB’s State Mediation and Conciliation
Service and Office of the General Counsel were able to help bargaining parties
maintain or restore stable labor relations in a difficult time. We equally admire the
dedication of millions of school employees, parents, guardians, and students handling
the immense pressures the pandemic created.
While the past two years illustrate EERA’s continuing durability as an effective
means for improving employer-employee relations and affording certificated
employees a voice in educational policy (EERA, § 3540), it is perhaps unsurprising
that at least one district’s path would deviate from EERA’s directives. In this case, the
District made promises that few, if any, other districts made. It then breached those
promises. And it is still, many months later, attempting to obfuscate that obvious fact.
We understand that unusual circumstances led to these missteps, but we lament the
30 We express no opinion as to other potential grounds for declining to defer to
arbitration, such as under what circumstances repudiation of a contract may rise to
such a level as to destabilize the collective bargaining relationship and thereby bar
deferral.

58
significant public resources the District has diverted from public education to defend
what should have been an acknowledged error.
It is well past time to bring this matter to a conclusion and preserve public
resources for their critical, intended purposes. Accordingly, we direct the ALJ to
convene settlement discussions or require the parties to engage in such discussions
with another appropriate Board agent. A formal hearing regarding appropriate
remedies should proceed only if settlement discussions fail to produce a resolution
after a reasonable period of time.
ORDER
This matter is REMANDED to the Division of Administrative Law for further
proceedings consistent with this Decision.
Chair Banks and Member Shiners joined in this Decision.