Pasadena Area Community College District (PERB 2444E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
PASADENA CITY COLLEGE FA CUL TY
ASSOCIATION,
Charging Party,
v.
PASADENA AREA COMMUNITY COLLEGE
. DISTRICT,
Respondent.
Case No. LA-CE-5776-E
PERB Decision No. 2444
July 30, 2015
Appearances: Lawrence Rosenzweig, Attorney, for Pasadena City College Faculty
Association; Liebert, Cassidy & Whitmore by Mary L. Dowell, Attorney, for Pasadena Area
Community College District.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by the Pasadena Area Community College District
(District) to the proposed decision (attached) of a PERB administrative law judge (ALJ). The
charge filed by the Pasadena City College Faculty Association (PCCFA) alleged that the
District violated the Educational Employment Relations Act (EERA)1 by implementing
unilaterally new terms and conditions of employment. The ALJ determined that the District
violated EERA section 3543.5(a), (b) and (c) when it adopted changes to the 2012-2013
academic calendar that encompassed mandatory subjects of bargaining without first exhausting
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

its EERA duties to meet and negotiate and participate in statutory impasse resolution
procedures with the PCCFA.
The Board has reviewed the record, the ALJ's proposed decision, the District's
exceptions, and PCCFA's response thereto. We conclude that in the main the ALJ's findings
of fact are supported by the record, and except as indicated below, we adopt the ALJ' s findings
as the findings of the Board itself. We affirm the ALJ's conclusions and proposed remedy, and
to the extent they are consistent with our discussion below we adopt them as the decision of the
Board itself.
PROCEDURAL HISTORY
On December 19, 2012, the PCCFA filed an unfair practice charge with PERB alleging
multiple violations of EERA by the District.
On January 28, 2013, the District filed its response and position statement.
On February 21, 2013, PERB's Office of the General Counsel issued a complaint
alleging that the District had failed and refused to bargain in good faith, interfered with the
rights of bargaining unit employees and denied PCCFA its right to represent bargaining unit
employees in violation ofEERA section 3543.S(a), (b) and (c), when it unilaterally adopted a
trimester academic calendar with fifty (50) minute Carnegie hours2 for all classes and
suspending step and column wage increases for bargaining unit members.
On March 12, 2013, the parties met for an informal settlement conference but the
matter was not resolved.
2 While PCCF A did not withdraw its allegations regarding the Carnegie hour, at
hearing, PCCFA stated that "the Carnegie Hour is no longer an issue in this case." (Reporter's
Transcript 8:17-18.)
2

On March 13, 2013, the District filed its answer, denying the material allegations
of
the
complaint and asserting several affirmative defenses.
On
August 26, 2013, the ALJ conducted a formal hearing. During the hearing, the
PCCF A withdrew its allegations regarding the suspension
of
the step and column wage
increases, and the parties submitted joint factual stipulations and a joint motion to amend
paragraph 5
of
the complaint to read:
On or about August 29, 2012, Respondentchanged this policy
by
adopting a tentative calendar incorporating a trimester academic
calendar without winter intersession commencing the spring
semester
of
2013
on
January 7, 2013, and ending the spring
semester on May 4, 2013. The summer session 2013 started on
May
13
instead
of
June 24, 2013. Respondent identified
October 1, 2012, as the operational date
of
necessity for
implementation.
(Proposed Dec., pp. 1-2.) The ALJ accepted the stipulations and granted the joint motion to
amend the complaint.
On October 16, 2013, the District filed its closing brief, and on October 21, 2013,
PCCF A filed its closing brief.
On November 27, 2013, the ALJ issued her proposed decision.
On December 23, 2013, the District timely filed its exceptions, to which the PCCFA
timely responded on January 7, 2014.
On January 23, 2014, PERB's Appeals Assistant infom1ed the parties that the filings
were complete and the matter was placed on the Board's docket.
FACTUAL SUMMARY
We provide this summary
of
the facts to assist the reader.
3

During the 2011-2012 academic year, the District's Calendar Committee3 began
meeting to determine the calendar for the 2012-2013 school year. The Calendar Committee's
charge was to recommend dates for a 2012-2013 academic calendar having two semesters, plus
winter and summer intersessions. The Calendar Committee considered, among other matters,
the beginning and ending dates of the semesters and intersessions, the ·dates for final exams
and the dates for holiday observanc~: Ultimately, the Calendar Committee recommended a
2012-2013 academic calendar consistent with the status quo, viz., two semesters, plus winter
and summer intersessions. 	(Proposed Dec., pp. 2-3.)
In Spring 2012, the District and the PCCF A presented their initial proposals for a
successor collective bargaining agreement (CBA). In March 2012, the PCCFA presented its
initial proposal. In April 2012, the District presented a partial initial proposal, which included
changing the 2012-2013 academic calendar from the status quo model of two semesters plus
winter and summer intersessions, to a trimester model with no intersessions. On May 2, 2012,
the District presented the remainder of its initial proposal. (Proposed Dec., p. 4.)
Also on May 2, 2012, the District's Board of Trustees adopted the Calendar
Committee's proposal for the 2012-2013 academic year calendar, which called for continuing
the status quo academic year format of two semesters with two intersessions. (Parties' Joint
Stipulations, p. 1.)
On May 25, 2012, District and PCCFA representatives met to commence negotiations
for a successor CBA. (Proposed Dec., pp. 4-5.)
On July 16, 2012, the District informed the PCCFA that it needed to cut $10.5 million
from its budget for fiscal year 2012-2013. On July 17, 2012, District General Counsel
3 The Calendar Committee is a "shared governance" District committee composed of a
representative from each of the bargaining units, a student representative and a District
management representative and a member of the Academic Senate.
4

Gail Cooper (Cooper) sent an e-mail to PCCFA co-negotiator Argiro Julie Kiotas (Kiotas)
restating the District's desire to trim $10.5 million from its 2012-2013 budget. 	Cooper's e-
mail explained that
in
order to submit a balanced budget to the state-wide chancellor's office
by
September 15, 2012, the District was proposing, among other measures to: (1) suspend
until January
1,
2013, all 2012-2013 step and column wage increases for PCCFA-represented
employees; (2) eliminate all 2012-2013 Winter intersession courses; and (3) modify the start
date for the Spring 2013 semester from February 19, 2013 to January 7, 2013. The District
sought PCCF
A's
agreement to these measures and was prepared to negotiate them. (Proposed
Dec., p. 5.)
The parties' representatives met again to negotiate on July 18 and 25, 2012. During the
July 25, 2012, negotiating session, PCCFA negotiators advised District negotiators that
PCCF A needed more time to study the District's recent proposal to suspend salary increases,
eliminate winter intersession courses and change the Spring 2013 semester start date. The
parties' negotiators met again on August 2, 2012. No agreement was reached on the District's
budget-related issues. (Proposed Dec., pp. 5-6.)
On August 15, 2012, the District's Superintendent-President recommended to the
District's Board
of
Trustees that it adopt a tentative 2012-2013 academic calendar based on the
trimester system. A memorandum accompanying the recommendation cited pedagogical
· reasons for adopting a trimester calendar, but averred that moving to the trimester system
would increase District revenue
by
"approximately $600,000." (Respondent's Exh. 5, p. 1.)
The memorandum also averred that: (1) the winter intersession was not "the norm," having
been initiated in 2004 when the economy was "robust" and the District had "full funding for
enrollment growth;" (2) the proposed adoption
of
a trimester 2012-2013 calendar was
tentative because the District had a continuing obligation to "continue to negotiate in good
5

faith with the collective bargaining representatives the impacts on the terms and conditions
of
the 'work' calendar on employees;" and (3) October
1,
2012, would be the date
of
"operational
necessity," at which time the District could implement the proposed trimester calendar with or
without agreement
of
the PCCFA. (Ibid, emphasis added.)
On August 29, 2012, the District's Board
of
Trustees approved the superintendent-
president's August 15, 2012, recommendation for the revised, tentative 2012-2013 academic
calendar incorporating the trimester system. As revised, the calendar left undisturbed the then-
current Fall 2012 semester. However, commencing January 7, 2013, the revised calendar
eliminated the winter intersession and instead scheduled a full trimester to commence on
January 7, 2013, and established a third trimester in lieu
of
a summer intersession, to
commence on May 13, 2013. (Proposed Dec., p. 7.)
During September 2012, the parties' negotiators met three times. (Parties' Joint
Stipulations, p. 2.) District negotiators sought PCCFA agreement to the calendar which had
been adopted by the Board
of
Trustees on August 29, 2012. No agreement was reached. On
October
1,
2012, the District implemented the 2012-2013 academic calendar adopted by the
Board
of
Trustees on August 29, 2012. (Proposed Dec., p. 7.)
On October 3, 2012, the PCCFA filed with PERB a request for impasse determination,
identifying as a disputed issue unilateral imposition
of
the 2012-2013 academic calendar. On
November 27, 2012, the District filed with PERB a request for impasse determination,
identifying as disputed issues those remaining unresolved in the successor agreement
negotiations. PERB appointed a mediator, and on December 12, 2012, mediation commenced
on all the disputed issues. Mediation was not successful in resolving the parties' disputes,
including the trimester calendar. (Parties' Joint Stipulations, p. 2.)
6

On May 24 and 30, 2013,4 a factfinding hearing occurred. The factfinding panel
recommended retaining the trimester academic calendar for the duration
of
the parties'
successor CBA. Although it acknowledged the District's claim that adopting the calendar was
a management prerogative, the factfinding panel itself took no position on this issue. The
factfinding panel also observed that the
Faculty Association [PCCFA] never really entered into
meaningful bargaining over the effects
of
the new calendar.
Rather, they believed, and continue to believe, that the decision
was a wrong one and should
be
rescinded.
(Respondent's Exh. 13, p. 2, emphasis added.)
PROPOSED DECISION
The ALJ identified the issue before her as whether the District failed to meet and
negotiate in good faith over a trimester academic calendar, which it adopted while still meeting
and negotiating thereon with PCCFA. ·
After reviewing the elements
of
a prima facie case, the ALJ concluded that: (1) on
August 29, 2012, the District adopted a 2012-2013 academic calendar which concerned a
mandatory subject
of
meeting and negotiating, viz., working hours, and did so while under a
statutory duty to meet and negotiate (Proposed Dec., pp.
11
'-16); (2) absent an affirmative
defense, unilateral adoption
of
a policy concerning a mandatory subject
of
bargaining prior to
completing the statutory duty to meet and negotiate in good faith violates the BERA (Proposed
Dec., p. 18.); and (3) the District failed to establish any
of
several affirmative defenses which it
raised. (Proposed Dec., pp. 18-22.)
4 The parties' joint stipulations identify the dates
of
the factfinding hearing as "May 24
and May 30, 2012" and the date that the factfinding report was issued as "June5, 2012."
(Parties' Joint Stipulations, p. 2.) Since neither party requested an impasse determination prior
to October 3, 2012, the dates stipulated to by ·the parties for the factfinding hearing and report
appear to be mistaken, viz., they should read "2013."
7

We review each District contention and the ALJ' s determination thereon.
1.
The District urged that its own bylaws authorized the adoption
of
and changes to the
calendar, thus excusing negotiations with the PCCFA. The ALJ was not persuaded, and ruled
that the District's own bylaws "do not provide a basis for finding that the District may
unilaterally implement a change to a mandatory subject
of
negotiations like the school
calendar." (Proposed Dec., p. 16.)
2. The District urged that the PCCFA waived the right to negotiate over the 2012-2013
academic calendar, averring that the PCCFA refused several requests
by
the District to bargain
over the calendar. The ALJ reviewed several Board decisions in which employers failed to
persuade the Board that a union intentionally relinquished the right to bargain. The ALJ
concluded PCCFA's conduct, both at and or away from the bargaining table, failed to indicate
intentional relinquishment
of
the right to negotiate over the District's proposed revisions to the
2012-2013 academic calendar. (Proposed Dec., pp. 16-18.)
3. The District urged that business necessity justified its implementation on October 1,
2012,
of
revisions to the 2012-2013 academic calendar. The ALJ noted that a successful
business or operational necessity defense requires an actual emergency which allows no time
for meaningful negotiations before acting, and that there is no alternative to the action taken.
The ALJ concluded that the District failed to establish the required emergent circumstances
and the absence
of
an alternative, as follows: (a) the District initially proposed changing to a
trimester calendar in April 2012, thus undercutting the District's claim that in August 2012it
faced a sudden change
of
circumstances requiring emergent action; and (b) the District itself
identified an alternative to imposition
of
a revised 2012-2013 academic calendar, to wit,
support staff layoffs, thus undercutting the claim that it possessed only the one alternative,
8

unilateral action on the academic calendar, to overcome its alleged fiscal shortfall. (Proposed
Dec., pp. 19-20.)
4. The District urged that it should be treated like employers which adopted only a
student calendar while negotiating in good faith over the employee work calendar. (Palos
Verdes Peninsula Unified School District/Pleasant Valley School District (1979) PERB
Decision No. 96 (Palos Verdes); Lake Elsinore School District (1986) PERB Decision No. 606
(Lake Elsinore).) The ALJ labeled this District claim "qualified unilateral action." The ALJ
concluded that the District had failed to prove up facts akin to those which excused the
employer in Palos Verdes and Lake Elsinore. The ALJ noted that: (a) the District had not
established that its implementation date
of
October 1, 2012, for the calendar revisions was the
point
of
"operational necessity," since the District had adopted the revised 2012-2013 calendar
more than a month earlier on August 29, 2012; (b) unlike the facts in Palos Verdes and
Lake Elsinore where the employer adopted a separate student calendar while continuing to
negotiate in good faith over possible alternative working hours for employees, here the District
adopted simultaneously both a student attendance calendar and faculty-employee working
hours, leaving no room for post-implementation bargaining over faculty-employee working ·
hours; and (c) the District's expressed willingness to bargain after implementation was limited
to the effects
of
its August 29, 2012, calendar decision, rather than to the decision itself,
thereby indicating willingness to bargain only over the effects/impact
of
its adoption
of
the
calendar revisions, and not over faculty-employee working hours, a mandatory subject
of
meeting and negotiating upon which decision bargaining, not merely effects bargaining, is
required. 	(Proposed Dec., pp. 20-22.)
The ALJ determined that the District violated section 3543.5 (c), (a) and (b) by
adopting the 2012-2013 trimester academic calendar, and proposed the traditional remedy for a
9

unilateral implementation violation, to wit, a cease and desist order, an order that the District
make whole those employees injured
by
the District's wrongful conduct, an order that the
District restore the status quo ante, and an order that upon request
of
PCCFA the District meet
and negotiate in good faith over any changes to the status quo. (Proposed Dec., pp. 23-24.)
DISCUSSION
Introduction
This case presents a garden variety unilateral action undertaken by an employer while
subject to the EERA's duty to meet and negotiate. Absent an affirmative defense, such
conduct would violate the employer's duties to meet and negotiate in good faith and participate
in good faith in impasse resolution procedures.
We turn first to our standard
of
review, then to the prima facie case
of
unilateral change
and the possible defenses, and finally to the District's exceptions to the ALJ's proposed
decision.
Standard
of
Review
The Board defers to the ALJ's findings
of
fact that incorporate credibility
determinations, but otherwise may draw different or even opposite inferences from the factual
record than did the ALJ and may reverse the conclusion
oflaw
of
the ALJ. (Palo Verde
Unified School District (2013) PERB Decision No. 2337; Woodland Joint Unified School
District (1990) PERB Decision No. 808a; Santa Clara Unified School District (1979) PERB
Decision No. 104.)
The Prima Facie Case
EERA section 3543.3 obliges a public school employer to meet and negotiate with an
exclusive representative "upon request" with regard to matters within scope of representation,
including participation in good faith in· EERA impasse resolution procedures. EERA
10

section 3543.5(c) states that it is an unlawful practice for a public school employer to refuse to
meet and negotiate in good faith with an exclusive representative.
In determining whether a party has violated EERA section 3543 .5(c), PERB applies
both "per se" and "totality
of
the circumstances" tests, depending on the specific conduct
involved and the effect
of
such conduct on the negotiation process. An employer violates
"per se" its duty to meet and negotiat~ when, inter alia, it unilaterally establishes any term or
condition
of
employment within scope
of
representation prior to completion
of
the bilateral
negotiations process. (Pajaro Valley Unified School District (1978) PERB Decision No.
51
(Pajaro Valley); San Francisco Community College District (1979) PERB Decision No. 105
(San Francisco).) An employer must refrain from unilateral implementation while meeting
and negotiating and impasse resolution procedures. (Moreno Valley Unified School District
(1982) PERB Decision No. 206 (Moreno Valley) ["The assumption
of
unilateral control over
the employment relationship prior to exhaustion
of
the impasse procedures frustrates EERA's
purpose
of
achieving mutual agreement in exactly the same ways that such conduct frustrates
that purpose when it occurs at any earlier point."].)
In Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262 (Fairfield-
Suisun ), we described the elements
of
an unlawful unilateral action:
To prove up a unilateral change, the charging party must establish
that: (1) the employer took action to change policy; (2) the
change in policy concerns a matter within the scope
of
representation; (3) the action was taken without giving the
exclusive representative notice or opportunity to bargain over the
change; (4) the action had a generalized effect or continuing
impact on terms and conditions
of
employment.
(Ibid.) We have applied this formulation in subsequent decisions.5
5 Regents
of
the University
of
California (2012) PERB Decision No. 2300-H, p. 20;
County
of
Riverside (2013) PERB Decision No. 2307-M, p. 18; City
of
Escondido (2013)
11

Our statutes contemplate bilateral decision-making as to subjects within the scope
of
representation. The gravamen
of
any unilateral action is exclusion
of
employees through their
chosen representative from participation in the decision-making process. Whether a unilateral
action is the creation, implementation or enforcement
of
policy, or a change to existing policy
as contained in a written agreement, in written employer rules or regulations, or in an unwritten
established past practice, our statutes require an employer contemplating a change in policy
concerning a matter within the scope
of
representation to provide the exclusive representative
notice and an opportunity to bargain. 6
PERB Decision No. 2311, p. 8; County
of
Santa Clara (2013) PERB Decision No. 2321-M
(Santa Clara), p. 13; City
of
Sacramento (2013) PERB Decision No. 2351-M, p. 13; Regents
of
the University
of
California (2014) PERB Decision No. 2398-H, pp. 26-27.
6 PERB has long recognized the following three general categories
of
unlawful
unilateral actions: (1) changes to the parties' written agreements; (2) changes in established
past practice; and (3) newly created, implemented or enforced policy. Historically, Grant Joint
Union High School District (1982) PERB Decision No. 196 (Grant) has been cited as the
source
of
PERB's black letter law for the unilateral action doctrine. Under that precedent, the
first
of
the four criteria is whether the employer breached or altered the parties' written
agreement
or
its own established practice. In Fairfield-Suisun, supra, PERB Decision
No. 2262 we broadened wording
of
the first criterion from written agreement or its own
established
past
practice to "policy."
PERB has always recognized newly created, implemented or enforced policy as subject
to its unilateral action doctrine. (Gonzales Union High School District (1993) PERB Decision
No. 1006, adopting ALJ's Proposed Dec., pp. 20-21 [additional payroll deductions to cover
premium increases constituted a new policy where negotiated funding mechanism could not
absorb increases]; Healdsburg Union Elementary School District (1994) PERB Decision
No. 1033, adopting ALJ's Proposed Dec., pp. 16-20 [early morning student supervision
beyond the normal workday constituted a new practice notwithstanding varying infomial
practices at different school sites]; accord San Joaquin County Employees Assn.
v.
City
of
Stockton (1984) 161 Cal.App.3d 813, 819 [employer response to increased health insurance
premiums].) 	,
By changing the wording
of
the first criterion, the Board in Fairfield-Suisun, supra,
PERB Decision No. 2262 broadened the language
of
the first criterion to reflect the greater
variety of unlawful unilateral actions encompassed by the doctrine, but without changing its
traditional application of that doctrine to unilateral changes in written agreements or
established past practices.
12

1.
Action to Change Policy. Consistent with the its established practice for
consideration and adoption
of
the academic calendar, on May 2, 2012, the District's Board
of
Trustees approved the recommendation
of
the District's Calendar Committee for the ensuing
academic year calendar. The 2012-2013 calendar proposed
by
the Calendar Committee, and
adopted by the Board
of
Trustees, was based on two semesters with winter and summer
intersessions, thereby continuing the calendar format which had been utilized during recent
academic years. In so doing, the District likewise established its policy on 2012-2013 working
hours for faculty represented by the PCCFA. Thereafter, during successor agreement
negotiations with the PCCFA, the District proposed to change this policy. 	On August 29,
2012, without either agreement
of
the PCCFA or exhaustion
of
its BERA duty to meet and
negotiate and to participate in impasse resolution procedures, the District adopted its proposed
changes to the calendar, imposing a trimester academic calendar for 2012-2013. The District
thus "took action to change policy."
2. A Matter within the Scope
of
Representation. We concur with the ALJ's discussion
of"Scope
of
Representation," pages
13
through
15
of
the proposed decision, and restate it
here:
The District argues that the "student" or "academic"
calendar is distinct from the work calendar, and that it is
authorized by its by-laws to unilaterally adopt a student calendar.
As discussed at some length below, the Board has addressed the
issue
of
school calendars as a kind
of
hybridized
negotiable/permissive subject. This internal tension is due to the
fact that it is the duty and prerogative
of
public schools to set the
standards for pupil education, which necessarily involves
decisions .about the number
of
instructional hours and days that
are provided to students. Naturally, teachers must be working on
days when instruction is being provided to students. Yet work
hours are an enumerated subject
of
negotiations. Thus, the Board
has made some fine distinctions in the area of school calendar in
order to accommodate these separate, and sometimes competing
interests.
13

In Palos Verdes Peninsula Unified School
District/Pleasant Valley School District (1979) PERE Decision
No. 96 (Palos Verdes), the Board held that the distribution
of
work days in the year (beginning and ending dates
of
the school
year for teachers and the dates
of
their vacations and holidays),
the distribution
of
hours in a teacher's workday (beginning and
ending times
of
a teacher's workday), and extra hour assignments
(Back-to-School Night and Open House) are matters within the
scope
of
representation. The Board went on to state that, since
the beginning and ending dates
of
the school year are
encompassed by distribution
of
workdays, they, too, are
negotiable items. (Ibid.) The Board defined the distribution
of
work days as when certificated staff are to perform their services
as compared to the total amount
of
time they must provide their
services.
In Jefferson School District (1980) PERB Decision
No. 133, the Board rejected the district's argument that because
the school calendar primarily impacted the public, it should be
considered nonnegotiable. There, the Board cited Palos Verdes,
supra, PERE Decision No. 96, and stated that although the days
and hours that schools are open for instruction did not always
coincide with teacher's work days and hours, there was a
sufficient nexus between the two that the issue
of
school calendar
was negotiable. The Board went on to draw a careful distinction
between the District's prerogative to determine the hours
of
instruction that students receive in order to achieve its basic
mission, and teachers' working hours, which was a mandatory
subject
of
negotiations.
In San Jose Community College District (1982) PERB
Decision No. 240, the Board held that a redistribution
of
work
within an existing school calendar (substituting instructional days
for in-service days), absent facts demonstrating that the change
affected the volume
of
work, the hours
of
work or the distribution
of
working days, did not amount to a change in any terms and
conditions
of
employment. And in Oakland Unified School
District (1983) PERE Decision No. 367, the Board cited each
of
the above decisions regarding school calendar, and reaffirmed its
finding that the school calendar is within the scope
of
negotiations.
The present case involves not just the District's
adjustment of starting and ending dates of the school year and
changes to the winter and spring breaks on the calendar, but the
wholesale adoption of a different type of calendar. Trimesters
14

differ from both semesters and intersessions in length and permit
fewer course offerings per year. Without doubt, staff are teaching
while classes are in session. Because there is no conceivable way
that students could attend courses on a trimester schedule while
staff members work on a semester schedule, the District's
unilateral adoption
of
a new calendar system necessarily
encroaches on the bargaining rights
of
employees
by
imposing a
different distribution
of
work days. This clearly has a direct
impact on work hours and other terms and conditions
of
employment, even without specific decisions having been made
with regard to start and end dates. 	Simply comparing the dates
between the class schedule based on the semester calendar
adopted on May 2, 2012, against the class schedule based on the
trimester calendar adopted on August 29, 2012, dramatic
differences emerge. This scenario is not, as the District intimates,
akin to simply eliminating the Winter Intersession classes.
[Footnote omitted.]
(Proposed Dec., pp. 13-15, emphasis added.)
3. Taken without Giving PCCFA the Opportunity to Bargain over the Change. The
"opportunity to bargain" includes both providing notice
of
the proposed change to the
exclusive representative, and, when bargaining is requested, 	participating in good faith in
meeting and negotiating and in statutory impasse resolution procedures
if
invoked
by
either
party. (Pajaro Valley, supra, PERB Decision No. 51; San Francisco, supra, PERB Decision
No. 105; Moreno Valley, supra, PERB Decision No. 206.) The District's changes to its 2012-
2013 academic calendar policy were made on August 29, 2012, while the parties were
negotiating. Thus, the District adopted changes to faculty working hours while it was subject
to the statutory duties to negotiate in good faith and to participate in impasse resolution
procedures.
4. Having a Generalized Effect or Continuing hnpact. The calendar changes in
question altered the starting and ending dates
of
the Spring and Summer 2013 academic
7 Here it was the District that requested to negotiate over changes to the 2012-2013
academic calendar adopted by the Board of Trustees on May 2, 2012.
7
15

periods (trimesters) as well as the dates of the 2013 Spring break and spring campus closures,
thereby having a generalized effect on working hours for faculty represented by the PCCFA.
Moreover, according to the factfinding panel's report, the District intended the changes to be
the "status quo on a go forward basis," thus having a continuing impact. (Respondent's
Exh. 13, p. 2.)
For these reasons we conclude, with the ALJ, that the PCCFA established that the
District's 2012-2013 academic calendar changes adopted on August 29, 2012, constituted a
unilateral change in policy concerning faculty working hours, a matter within the scope of
representation and thus a mandatory subject of meeting and negotiating.
Defenses
Under our precedents, an employer may avoid a conclusion that it unlawfully failed to
meet and negotiate over a mandatory subject of bargaining by establishing either of the
following: (1) the union waived the right to negotiate so the employer's duty to negotiate
never arose; or (2) under the particular circumstances, the employer's unilateral action should
be excused (operational/business necessity). We review each type of affirmative defense.
1. Waiver. An exclusive representative may waive its right to bargain over a matter
within the scope of representation. Waiver may be shown by action, inaction or bargaining
history. (San Mateo County Community College District (1979) PERB Decision No. 94.)
However, waiver is disfavored and must be clear and unmistakable. (San Francisco, supra,
PERB Decision No. 105; Los Angeles Community College District (1982) PERB Decision
No. 252 (Los Angeles).) An employer raising a waiver defense must establish that: (1) it
provided the employee organization clear and unequivocal notice that it would act on a matter
within the scope of representation, and (2) the employee organization clearly, unmistakably
16

and intentionally relinquished its right to meet and negotiate in good faith. (San Francisco;
Los Angeles; Santa Clara, supra, PERB Decision No. 2321-M.)
2. Operational/Business Necessity. An employer may establish a compelling
operational/business necessity as justification for acting unilaterally before completing its
bargaining obligations. The employer must demonstrate "an actual financial emergency which
leaves no real alternative to the action taken and allows no time for meaningful negotiations
before taking action." (Oakland Unified School District (1994) PERB Decision No. 1045
(Oakland); Calexico Unified School District (1983) PERB Decision No. 357 (Calexico).)
We tum now to the District's exceptions to the ALJ's proposed decision.
District Exceptions
1. The District excepts to the ALJ' s finding that "the parties filed a joint request for
impasse determination." (Proposed Dec., p. 7.) The District's claim has merit, since each
party filed separately its own request for impasse determination. The factfinding hearing
treating both impasse declarations was held jointly. We deem the ALJ' s finding that the
parties submitted a joint request for impasse determination to be harmless error and find
instead that each party made its own impasse declaration.
The District argues further that since the ALJ subsequently quotes from PCCFA's
impasse request, the ALJ incorrectly attributed the views expressed in PCCFA's impasse
request to the District. The District maintains that it did not agree with PCCFA that the
District refused to discuss the calendar change, and instead, that it was PCCFA that failed to
negotiate. But as the ALJ noted, the District was willing to negotiate over only the
effects/impact
of
the trimester calendar on faculty working hours and not the District's
decision to adopt the trimester calendar. The District thus failed and refused to negotiate over
its decision to establish working hours for PCCFA-represented employees, a matter within the
17

scope
of
representation and subject to decision bargaining. Therefore, the District's exception
lacks merit.
2. The District excepts to the ALJ's determination that the "District's use
of
a semester
system for the school calendar was an enforceable 'past practice."' (Proposed Dec., p. 12.)
The ALJ found that the District had for several years operated on the basis
of
two semesters
with a winter intersession, and never on the basis
of
trimesters. We conclude that the ALJ's
analysis on this issue (Proposed Dec., pp. 11-12) is consistent with Board precedent. For this
reason, the exception lacks merit.
3. The District excepts to the ALJ's statement that, "[i]t is not clear why in this case,
the parties requested a finding
of
impasse as to a single issue." (Proposed Dec., p. 12, fu. 4.)
The District raises again its claim that the parties did not submit a joint request for impasse
determination. See discussion under
1.
above. As explained above we deem this point
immaterial to our determination
of
the issues. For this reason, the exception lacks merit.
4. The District excepts to the ALJ's conclusion that:
The present case involves not just the District's adjustment
of
starting and ending dates
of
the school year and changes to the
winter and spring breaks on the calendar, but the wholesale
adoption
of
a different type
of
calendar. Trimesters differ from
both semester and intersessions in length and permit fewer course
offerings per year. Without a doubt, staff are teaching while
classes are in session. Because there is no conceivable way that
students could attend courses on a trimester schedule while staff
members work on a semester schedule, the District's unilateral
adoption
of
a new calendar system necessarily encroaches on the
bargaining rights
of
employees by imposing a different
distribution
of
work days. This clearly has a direct impact on
working hours and other terms and conditions
of
employment,
even without specific decisions having been made with regard to
start and end dates. Simply comparing the dates between the
class schedule based on the semester calendar adopted on May 2,
2012, against the class schedule based on the trimester calendar
adopted on August 29, 2012, dramatic differences emerge.
18

(Proposed Dec., p. 15.)
The District argues that the ALJ erred because PCCFA failed to present any evidence
regarding impacts of the trimester calendar and "[t]hese assumed impacts are pure speculation
on the part of the ALJ." (Respondent's Exceptions, p. 4.) We are not persuaded. We find the
inferences drawn by the ALJ from the record evidence to be both reasonable and supportive of
the conclusions stated in this passage of the proposed decision.
The District argues further that the passage quoted just above contains "reversible error
given that the District never refused to negotiate the start and end dates or any negotiable
aspect of the calendar change." (Respondent's Exceptions, p. 4.) Again, we are not persuaded.
The District's position was that it would negotiate only the effects/impact of the trimester
calendar on working hours of employees, not the decision itself. Working hours, including
starting and ending dates and the dates of holidays, are mandatory subjects as to which
decision bargaining, not merely effects/impact bargaining, is required. Offering to bargain
over the effects/impact of the calendar change fails to satisfy the obligation imposed by EERA
to decide bilaterally matters within the scope of representation.
We conclude that the record supports both the inferences and conclusions drawn by the
ALJ that the trimester calendar adopted on August 29, 2012, established a policy concerning a
matter within the mandatory scope of bargaining, and that the District violated the EERA when
it adopted the trimester calendar prior to exhausting its bargaining obligations. For this reason,
the exception lacks merit.
5. The District excepts to the ALJ's determination that the:
District argues that its bylaws permit it to unilaterally adopt and
change the school calendar. This argument is without merit. The
Legislature gave PERB exclusive initial jurisdiction over matters
covered by EERA and local regulation should not be permitted to
undercut the minimum rights guaranteed by the statute.
19

(Proposed Dec., p. 16.) The District argues that the ALJ mischaracterizes its argument
regarding District Bylaw 1610 and implies that the District refused to negotiate matters within
scope
of
representation. We are not persuaded.
The District's interpretation
of
its Bylaw 1610, that only the District's governing board
has the authority to adopt a calendar, is not at issue here. In the Spring
of
2012, the Calendar
Committee recommended, and thereafter on May 2, 2012, the District's governing board
adopted, a two semester calendar with two intersessions for the 2012-2013 fiscal year. PCCFA
representatives participated in the Calendar Committee. Thus, the District acted consistently
with its Bylaw 1610. Concurrently, the District made an initial bargaining proposal to PCCFA
for a successor CBA including a different trimester 2012-2013 calendar. The successor
agreement negotiations were ongoing on August 29, 2012, when the District adopted the 2012-
2013 trimester academic calendar, a subject as to which the BERA mandates bilateral, not
unilateral, decision-making via good faith meeting and negotiating. District Bylaw 1610 does
not excuse this unilateral action. For this reason, the exception lacks merit.
6. and 7. The District excepts to the ALJ' s conclusion at pages 17-18
of
the proposed
decision that the District failed to establish its affirmative defense
of
waiver. We are not
persuaded.
The defense
of
waiver requires demonstrative conduct by the party claimed to waive its
bargaining rights. Here, the ALJ reasonably declined to find such conduct in the parties'
participation in the Calendar Committee, or in PCCFA's bargaining table conduct. Noting that
negotiations commenced slowly, and included five meetings before the District adopted the
trimester calendar on August 29, 2012, the ALJ concluded that alleged lack
of
due diligence,
20

delay, silence and refusal to accept the other party's demands do not amount to waiver. We
agree.
We conclude with the ALJ that PCCFA's participation in the Calendar Committee did
not waive PCCFA's right to meet and negotiate over those aspects of the calendar within the
scope of representation, nor did it satisfy the District's duty to meet and negotiate thereon.
Employers and employee organizations frequently utilize internal procedures such as the
Calendar Committee to achieve consensus on policies impacting employees in more than a
single bargaining unit, e.g., calendar and health and welfare benefits. Upon reaching
consensus, the parties negotiate separately. Here, the District itself presented the trimester
calendar in its initial bargaining proposal. The PCCFA, therefore, did not have to make a
bargaining demand-decision or effects-because the calendar was placed on the table by the
District.
Nor did PCCF A through its bargaining table conduct indicate a "waiver" of the right to
bargain. We conclude that P CCFA's disinclination to discuss or agree to the District's
proposal for the trimester calendar was merely lawful "hard bargaining." We explain.
The Board has held that:
Nothing in EERA requires parties to reach agreement or make
concessions on every proposal. ... insistence on a bargaining
position is not necessarily a refusal to bargain in good faith....
A flat refusal to reconcile differences by failing to offer
counterproposals could be construed to be in bad faith if no
explanation or rationale supports the [party's] position.
(Oakland Unified School District (1981) PERB Decision No. 178, pp. 7-8.) Thus, a
negotiating party need not reach agreement on, nor make a concession on, every proposal and
may insist to impasse on its bargaining position. PCCFA negotiators provided an explanation
and rationale for PCCFA's position. PCCFA negotiators urged that on May 2, 2012, the
·
21

District's governing board had accepted the Calendar Committee's recommended 2012-2013
two semester calendar, although the governing board had been under no obligation to do so.
PCCFA preferred the status quo 2012-2013 calendar adopted in May 2012 and resisted the
District's entreaties to make changes. We conclude that PCCFA thus engaged in lawful "hard
bargaining" over the proposed change to a trimester calendar and that this conduct did not
waive PCCF A's right to bargain.
We conclude the District's waiver exceptions lack merit.
8. The District excepts to the ALJ's conclusion the District failed to establish its
business necessity defense. The ALJ concluded that the District failed to establish there was a
sudden change in circumstances justifying its imposition of the calendar revisions, and that in
any event, the District had an alternative course of action to unilateral imposition of the
trimester calendar. (Proposed Dec., pp. 19-20.) We review the District's contentions.
The District contends that it "diligently pursued negotiations" up until the date it had
identified as the date of operational necessity and had no "reasonable alternative" on
October 1, 2012, other than unilateral imposition of the trimester calendar. We are not
persuaded.
To establish business necessity sufficient to excuse failure to bargain, an employer must
demonstrate "an actual financial emergency which leaves no real alternative to the action taken
and allows no time for meaningful negotiations before taking action." (Oakland, supra, PERB
Decision No. 1045; Calexico, supra, PERB Decision No. 357 .) Here, the District failed to
demonstrate operational necessity to change the calendar. While October 1, 2012, may well
have been the date of operational necessity if it did not have a 2012-2013 calendar in place for
the 2013 Spring semester, the fact remains that it had already adopted a calendar on May 2,
2012. That the District desired to change to a different type of calendar and detennined that it
22

had to have such a calendar in place by October
1,
2012, in order to complete all the tasks
necessary for such a change, does not convert the District's desire into a business necessity and
does not absolve the District
of
its bargaining obligation. Had the District completed the
statutory impasse resolution procedures prior to taking action, and otherwise acted in
accordance with its EERA obligations, it might then have imposed the trimester calendar on
PCCFA. But acting as it did prior to exhausting its EERA duties to meet and negotiate and to
exhaust impasse procedures, the District's action could be excused only on proof
of
operational necessity or waiver
by
PCCFA
of
its EERA rights. We conclude the District's
operational necessity exception lacks merit.
9.
The District excepts to two provisions
of
the ALJ' s proposed remedy and order:
1. Upon a demand by PCCFA, to be made within sixty (60) days
of
the service
of
a final decision
in
this matter, rescind the
implementation
of
a trimester calendar at the end
of
the trimester
in which demand has been made, and restore a semester calendar
no later than two weeks after the end
of
that trimester.
2. Make affected employees whole for any losses suffered as a
result
of
the change, including interest at the rate
of
7 percent per
annum.
(Proposed Dec., pp. 24-25.) The District contends that "return to a semester calendar on an
arbitrary date to be determined based on a demand by Charging Party is impossible" and that
PCCFA failed to demonstrate that its members suffered any financial damages. We review
each contention.
Initially, we concur with the ALJ that the appropriate remedy in a case involving a
unilateral change in policy which violates the employer's duty to meet and negotiate generally
'
includes four elements: a cease and desist order, make whole relief for employees injured by
23
,..

the policy change, rescission,
of
the policy change, 8 and an order to bargain over the policy
upon request
of
the exclusive representative. 9 Under our precedents, the rescission/restoration
need not occur immediately, or
.at all, where such action would unreasonably disrupt ongoing
programs and services to the public.
10
Here, the District contends that as ordered by the ALJ,
the restoration would unreasonably disrupt ongoing programs and services to the public.
We conclude that the ALJ's proposed rescission/restoration remedy, viz., restoration
of
the two semester academic calendar at the conclusion
of
the trimester within which PCCFA
makes a demand to bargain within sixty (60) days
of
service
of
the final decision in this matter,
risks forcing the parties
to
change their academic calendar part way through an academic year.
Such a change could disrupt unreasonably plans and schedules
of
students, as well as faculty
and staff. We prefer instead rescission/restoration at the beginning
of
the next successive
academic year following service
of
the final decision in this matter. However,
if
service
of
the
final decision in this matter were to occur after May
1,
2015,
of
an academic year, then the
rescission/restoration would occur at the beginning
of
the second successive academic year
following service
of
the final decision. We believe with this modification, the ALJ's proposed
rescission/restoration remedy balances reasonably the interests
of
the public and the parties to
this proceeding.
With regard to the make whole portion provisions
of
the ALJ's proposed order, we
leave to compliance proceedings the determination
of
those "losses suffered as a result
of
the
8 Rescission is frequently described as restoration
of
the status quo ante.
9 See Zerger, et al., California Public Sector Labor Relations, Ch. 42, § 44.22[6]
(Matthew Bender) pp. 42-14 through 42-18, and cases cited therein.
10
Id. at pp. 42-17 through 42-18.
24

change." There the parties will have an opportunity to present and dispute claims ofloss
occasioned by the "change."
CONCLUSION
The Board hereby affirms the ALJ's determination that the District violated EERA
section 3543.5(a), (b) and (c) when it changed from a semester academic calendar with winter
and summer intersessions to a trimester academic calendar without bargaining with PCCFA.
ORDER
Upon the foregoing findings of fact and conclusions oflaw, and the entire record in the
case, it is found that the Pasadena Area Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3543.5(a), (b) and
(c) when it changed from a semester academic calendar with winter and summer intersessions
to a trimester academic calendar without bargaining with the Pasadena City College Faculty
Association (PCCFA).
Pursuant to section 3541.5(c) of the Government Code, it hereby is ORD.BRED that the
District, its governing board and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the school calendar from semesters to trimesters without
notice and an opportunity to bargain.
2. 	Denying PCCF A the right to represent bargaining unit employees in their
employment relations with the District.
3. 	Interfering with the right of bargaining unit employees to be represented by their
employee organization.
25

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Upon service of a final decision in this matter, for the next successive academic
year rescind the implementation of a trimester calendar and restore a semester calendar;
provided that if service of the final decision in this matter occurs on or after May 1, 2015, of an
academic year, rescind the implementation of a trimester calendar and restore a semester
calendar for the second successive academic year after the date of service of the final decision
in this matter.
,'
2. 	Make affected employees whole for any losses suffered as a result of the
change, including interest at the rate of seven (7) percent per annum.
3. 	Upon receiving a demand therefor by PCCFA, to be made within sixty (60) days
of the service of a final decision in this matter, meet and negotiate in good faith over the
decision to implement a trimester calendar.
4. 	Within ten (10) workdays of the service of a final decision in this matter, post at
all work locations in the District where notices to employees are customarily posted, copies of
the Notice attached hereto as an Appendix. The Notice must be signed by an authorized agent
of the District, indicating that it will comply with the terms of this Order. Such posting shall
be maintained for a period of thirty (30) consecutive workdays. Reasonable steps shall be
taken to ensure that the Notice is not reduced in size, altered, defaced or covered with any
other material.
4. 	Written notification of the actions taken to comply with this Order shall be made
to the Public Employment Relations Board (PERB or Board) General Counsel, or the General
. Counsel's designee. The District shall provide reports in writing, as directed by the General
26

Counsel or her designee. All reports regarding compliance with this Order shall be
concurrently served on the Association.
Chair Martinez and Member Winslow joined in this Decision.
27

APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An Agency of the State of California
After a hearing in Unfair Practice Case No. LA-CE-5776-E, Pasadena City College
Faculty Association v. Pasadena Area Community College District, in which all parties had the
right to participate, it has been found that the Pasadena Area Community College District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section sections 3543.S(a), (b) and (c) when it changed from a semester academic calendar
with winter and summer intersessions to a trimester academic calendar without bargaining with
the Pasadena City College Faculty Association (PCCF A).
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the school calendar from semesters to trimesters without
notice and an opportunity to bargain.
2. 	Denying PCCF A the right to represent bargaining unit employees in their
employment relations with the District.
3. 	Interfering with the right of bargaining unit employees to be represented by their
employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Upon service of a final decision in this matter, for the next successive academic
year rescind the implementation of a trimester calendar and restore a semester calendar;
provided that if service of the final decision in this matter occurs on or after May 1, 2015, of an
academic year, rescind the implementation of a trimester calendar and restore a semester
calendar for the second successive academic year after the date of service of the final decision
in this matter.
2. 	Make affected employees whole for any losses suffered as a result of the
change, including interest at the rate of seven (7) percent per annum.

3. 	Upon receiving a demand therefor by PCCF A, to be made within sixty (60) days
of
the service
of
a final decision in this matter, meet and negotiate in good faith over the
decision to implement a trimester calendar.
Dated:
--------
PASADENA AREA COMMUNITY COLLEGE
DISTRICT
By: Authorized Agent
-------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITHANY OTHER
MATERIAL.
2

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
PASADENA CITY COLLEGE FACULTY
ASSOCIATION,
Charging Party,
V.
PASADENA AREA COMMUNITY COLLEGE
DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-5776-E
PROPOSED DECISION
(November 27, 2013)
Appearances: Lawrence Rosenzweig, Attorney, for Pasadena City College Faculty
Association; Liebert Cassidy Whitmore by Mary Dowell, Attorney, for Pasadena Area
Community College District.
Before Alicia Clement, Administrative Law Judge.
PROCEDURAL HISTORY
The Pasadena City College Faculty Association (PCCFA or Union) filed the above-
captioned unfair practice charge on December 19, 2012 alleging that the Pasadena Area
Community College District (District) failed to meet and confer in good faith over the
2012-2013 calendar. On February 21, 2013, PERB issued a complaint alleging two separate
instances
of
a failure to meet and confer in good faith. An informal settlement conference was
held on March 12, 2013, but the parties failed to reach settlement. A formal hearing was held
on August 26, 2013.
At the start
of
the fonnal hearing, the Union withdrew the allegations contained in
paragraphs ten and eleven
of
the complaint. With regard to the remaining allegation, contained
in paragraph 5
of
the complaint, the parties agreed to amend this paragraph to read:
On or about August 29, 2012, Respondent changed this policy by
adopting a tentative calendar incorporating a trimester academic
calendar without winter intercession commencing the spring
semester of 2013 on January 7, 2013, and ending the spring
semester on May 4, 2013. The summer session 2013 started on

May
13
instead
of
June 24, 2013. Respondent identified
October
1,
2012, as the operational date
of
necessity for
implementation.
FINDINGS OF FACT
The District is a public school employer within the meaning
of
Educational
Employment Relations Act (EERA)1 section 3540.l(k). PCCFA is an exclusive representative
within the meaning
ofEERA
section 3540.l(e).
Historically, the District has maintained a semester calendar with a winter intercession
and a summer intercession. Semesters were approximately sixteen weeks long, while
intercessions were six to eight weeks long. Classes were typically offered during the
intercession periods.
The Calendar Committee
The District has a Calendar Committee that is a subcommittee
of
the College Council.
The Calendar Committee is comprised
of
a member
of
the Academic Senate, a representative
from each
of
the bargaining units, a management representative, and a student representative.
The Calendar Committee functions as a "shared governance" committee. In all, there are
eleven members
of
the Calendar Committee. The job
of
the Calendar Committee is to propose
a calendar for the upcoming school year, which is then sent to each
of
the participating groups
for formal acceptance. The annual calendar includes the beginning and ending dates
of
the
semesters and intercessions as well as when finals will be held, and when holidays will be
observed.
When the Calendar Committee reaches a decision, it submits its proposal to the College
Council, another shared governance committee. After review by the College Council, the
proposal goes to the College President, who may, in tum, make a recommendation to the
1 EERA is codified at Govermnent Code section 3540 et seq. Unless otherwise noted,
all statutory references are to the Governn1ent Code.
2

District's Board
of
Trustees. District by-law
161
O grants the District's Board
of
Trustees the
authority to approve the College Calendar.
During the 2011-2012 school year, when the Calendar Committee was meeting to
determine the dates for the 2012-2013 calendar, the committee members presumed that the
2012-2013 school year would have a winter intercession. However, the District's
representative on the committee was aware that due to a lack
of
funds, the District could not
afford to offer classes during the winter intercession. , This possibility was discussed by the
Calendar Committee, but it is not clear
if
any resolution was reached, even assuming the
Calendar Committee had any authority
to
reach such a resolution.
The Calendar Committee also discussed the possibility that the District would be
changing from a semester to trimester calendar. There was never any vote by the Calendar
Committee on a trimester calendar. The only proposal before the Calendar Committee during
this time was to place the operational dates on a semester calendar that had been presented to it.
On May 2, 2012, the Calendar Committee finalized its proposed calendar for the 2012-
2013 school year. Based on this calendar, summer intercession would begin on June 25, 2012
and end on August 26; the Fall 2012 semester would begin on August 27 and end on
December 16, 2012; winter intercession would begin on January 7, 2013 and end on
February 14, 2013; the Spring 2013 semester would begin on February 19, 2013 and end on
June 16, 2013; and summer intercession would begin on June 24, 2013.
Successor Bargaining
In March 2012, the Union sunshined its proposal for a successor agreement. The
Union's initial proposal did not contain language about the calendar. In April 2012, the
District made the first part
of
a two-part proposal for successor bargaining. In the first part of
its initial proposal, the District propo·sed moving to a trimester calendar. The two-part
3

structure of the District's initial proposal was intended by the District to get the most
important, time-sensitive elements in front of the Union as early as possible. The District
characterized the trimester calendar as necessary "to achieve [a] student-centered class
schedule." The District also made it clear that they would need to implement the trimester
schedule by October.
At the hearing, the Union took conflicting positions with regard to the significance of
the Calendar Committee's May 2, 2012, proposal. The Union argued both that the proposal
from the Calendar Committee was the negotiated calendar for 2012-2013 and also that the
Union's signature on the Calendar Committee's proposed calendar was a negotiating proposal.
Initially, the Union held the position that demands by the District to bargain over a trimester
calendar at the successor bargaining sessions were illegal. As a result, there were no
discussions at the bargaining table regarding the 2012-2013 calendar from the commencement
of negotiations in March 2012 until May 2, 2012.
On May 2, 2012, the District sunshined the second part of its initial bargaining proposal
for a successor agreement. As noted above, this is the same date that the District's Board of
Trustees adopted the Calendar Committee's proposed 2012-2013 calendar, based on a semester
calendar.
On May 25, 2012, after both parties' initial proposals had been sunshined, successor
negotiations commenced in earnest with the exchange of more detailed proposals. The District
presented its proposal as a fully composed "MOU." However, the District maintained at the
hearing that it was not presented as a take-it-or-leave-it proposal. 	On July 16, 2012, during a2
2 In a timeline of negotiations that the District attached as an exhibit to its response to
the unfair practice charge, the District states that the proposed memorandum of understanding
(MOU) was initially presented to the Union with an expiration date. The expiration date was
apparently extended once prior to the July 30 meeting of the Board of Trustees. It is not clear
if the proposed MOU was extended a second time.
4

non-bargaining meeting between the District and the Union, the District informed the Union
that it would need to cut $10.5 million from its budget. On July 17, 2012, District General
Counsel Gail Cooper sent an e-mail message to Julie Kiotas and others regarding a collective
bargaining meeting scheduled for July 18, 2012. In it, the District stated that in order to
present a balanced budget to the Chancellor's office by September 15, 2012, it must take
immediate measures to reduce its operating budget by $10.5 million. Among the measures the
District wished to implement immediately were the suspension
of
all step and column
increases until January 1, 2013, and the elimination
of
all winter intercession classes and
modification
of
the spring semester to begin on January 7, 2013. In relevant part, the July 17,
2012, e-mail message goes on to state the following:
On Wednesday, we will be seeking your agreement to those
measures and will be prepared to negotiate them. With regard to
the academic calendar and Carnegie hour, we will be prepared to
negotiate those aspects that are within the scope
of
bargaining,
i.e., to the extent that the academic calendar is also a proposed
work calendar, we will be prepared to negotiate the impact
of
the
calendar change. Please find attached the District's proposal with
respect thereto.
The parties
met
for negotiations on July 18 and July 25, 2012. During the negotiating
meeting on July 25, the Union advised the District that it needed more time to study the
District's proposed MOU before it could negotiate.
On July 30, 2012, the District's chief negotiator sent an e-mail message to Union
negotiators confirming an August 2 negotiating meeting. The District's Board
of
Trustees met
on the evening
of
July 30, 2012, and took some unspecified action, which the Union
interpreted as a withdrawal
of
the District's proposed MOU. As a result
of
the actions by the
District's Board
of
Trustees on July 30, the Union's Chief Negotiator notified the District that
there was no point to the proposed August
_2
meeting, and the parties should return to the
bargaining table at a previously scheduled September 7 meeting. The District denied that it
5

had withdrawn its proposed MOU and urged the Union to reconsider its position and meet on
August 2. Ultimately, the Union agreed to keep the August 2 meeting, but stated that the
faculty would not be available for a lengthy bargaining session on August 2, and would not be
available the week
of
August 27, which was the first week
of
classes for the fall semester. 3
According to the District, the August 2 meeting was unproductive, as the Union's
negotiating team refused to discuss the proposed MOU or any
of
the proposals in the proposed
MOU.
On August 15, 2012, in a memorandum to the Board
of
Trustees, Superintendent-
President Rocha recommended that the Board
of
Trustees adopt a tentative student calendar
that was based on a trimester calendar. The memorandum contained rationale for the adoption
of
a trimester calendar that were both financial and pedagogical.
On August 29, 2012, the District's Board
of
Trustees moved to adopt a tentative student
calendar based on the trimester system. The tentative student calendar set operative dates
including a
16
week Spring Semester commencing on January 7, 2013 and ending on May 4,
2013, as well as a summer break from May 5 through May
11
and the commencement
of
summer semester classes on May 13, 2013. The written recommendation to the Board
of
Trustees characterizes the trimester calendar as being "based entirely on what is best for the
college and what will improve student success." The recommendation also states that, even
if
the trimester calendar is not adopted, there will be no winter intercession classes offered due to
a lack
of
funds. The recommendation goes on to state, in relevant part, the following:
4. The current calendar with the long winter session is not the
norm for PCC. It was first initiated only in 2004 during a robust
3 At some tmspecified point in the negotiations, the parties discussed and agreed upon
ground rules for bargaining that included a rule that no bargaining would occur during the
first week of classes for a semester, or during finals week for a semester. In the 2012-2013
school year, this meant there would be no bargaining during the weeks of August 27 and
December 16, 2012, and January 7, 2013.
6

economy and a time
of
full funding for enrollment growth. Due
to state funding reductions, last winter PCC offered only 275
classes, serving but a few fortunate students
of
our nearly 30,000
students. The new calendar will unquestionably provide the
greatest academic good for the greatest number
of
students
of
all
types.
• The Board
of
Trustees has the authority to adopt a tentative
"student" calendar commonly referred to
as
the "academic"
calendar.
• The Board's action to approve and adopt the new student
calendar is labeled as "tentative" because,
if
adopted today, the
Board has the obligation to continue to negotiate
in
good faith
with the collective bargaining representatives the impacts on the
terms and conditions
of
the "work" calendar on employees.
• The District may act to implement the calendar at such point
that action to move forward with the 2012-2013 student calendar
must be taken. This is known as the date
of
operational necessity,
which by this action the Board identifies, upon the
recommendation
of
the Administration, as October 1, 2012. On
this date
of
operational necessity the District will implement the
proposed student calendar, but will continue
to
negotiate the
impacts in good faith with the affected bargaining units.
On October
1,
2012, the District implemented the student calendar that was adopted by
the Board
of
Trustees on August 29, 2012.
On October 3, 2012, the parties filed a joint request for impasse determination. Under
"Type
of
Dispute," the parties checked "Other" and the typed description
of
the dispute is,
"Unilateral imposition
of
a new academic calendar by District." .Under the "Statement
of
Facts," it states, verbatim:
P ACCD sunshined the "Recalendaring to Trimester Calendar" as
a negotiable item on March 7, 2012. We met to negotiate at least
five different times for a total
of
approximately 15 hours in July
and August. On August 29, 2012 PACCD Board
of
Trustees
approved a new "Tentative student calendar" refusing to discuss
or negotiate the calendar change. Meanwhile, on or about
August 30, 2012 P ACCD stated on its web site, "To be clear, the
negotiation with the faculty and staff unions is not about whether
the calendar will be implemented. It is about addressing the
negotiable effects of the change on faculty and staff." This same
7

statement was subsequently disseminated in the school newspaper
the Courrier, and in a handout placed in all employees'
mailboxes. (Continued on Attachment)
Item 11. Continuation:
The Faculty Association Negotiating team is comprised of 12
Faculty members from Pasadena City College and.an attorney.
May 25t\ [sic] 2012 was our first meeting with the PCC district
negotiating team (1 President, 3 Vice Presidents, 1 dean and 2
attorneys). We discussed ground rules, compliance issues with
the FA contract and future meeting dates. The following meeting
was a compliance meeting on July 1?1\ it was not a negotiating
meeting. The district passed a MOU across the table at the end of
the meeting and asked us to sign off on a new calendar and told
us that if we did not sign their MOU, which required the Faculty
Association to agree to a change to the 2012 - 2013 Academic
Calendar or, they would implement a 10 day furlough of all staff
and management to occur between January 1 and February 15,
2013. No negotiations took place at that meeting. The following
two negotiation meetings were spent with the district attempting
to compel us to sign their MOU without any negotiation.
Beginning on September 7th, 2012 the district negotiating team
completely changed. The PCC district team is now made up of
the PCC president, the in house counsel and an additional
counsel. The VP for Academic Affairs no longer sits on the
district negotiating team. The college president presides over the
meeting and presents the district's position. [T]he proposed
academic calendar was never negotiated. The entire campus
Shared Governance Bodies had vetted the actual calendar for the
2012 - 2013 Academic Calendar which was unanimously signed
8

off
by all shared governance committees and bargaining units and
approved by the District Board
of
Trustees on May 2, 2012.
Nothing has been negotiated to date, and the district only intends
to negotiate the effects
of
the imposed calendar, but not the
imposed calendar. The PCCFA negotiating team believes that a
mediator is required to assist us in negotiating with the PCC
district negotiating team.
PERB approved the request for mediation on October 5, 2012.
The parties continued meeting for the purposes
of
negotiating a successor agreement
and effects bargaining over the calendar after the declaration
of
impasse. According to the
District, nothing
of
substance was discussed after October
1,
2012, despite its claims that it
repeatedly requested that the Union engage in effects bargaining over the new trimester
calendar.
The parties participated in impasse proceedings and on June 5, 2013, a factflnding
panel issued a written finding. The factfinding report is valuable in elucidating the parties'
positions, both then and now, and is therefore quoted at length below. The factfinding report
focuses on the sole issue
of
"impasse concerning School Calendar" and notes that the parties
refused to consolidate this issue with the "main dispute over a successor agreement." The
factfinding report states explicitly that "the District's right to adopt such a tentative calendar as
described above is not a part
of
this fact-finding process." The report goes on to state:
The District's position is that the unilateral adoption
of
a school
calendar is a District right, subject to negotiations over the effects
of
that decision on the bargaining unit. Further, the District
argues that since the calendar was adopted for the 2012-13 school
year, it now represents that status quo on a go forward basis.
The record in this case reveals that the Faculty Association never
really entered into meaningful bargaining over the effects
of
the
new calendar. Rather, they believed, and continue to believe, that
the decision was a wrong one and should be rescinded.
The District enumerated a number of reasons for the calendar
change (See District Binder, Tab G), without waiving their
position that this decision is a management right:
9

• For its part the Faculty Association has really focused on
demonstrating that the new school calendar is a bad idea, and has
not engaged in effects bargaining. They argue, for example, that
for the local marketplace of six community colleges, the calendar
of Pasadena does not provide a good match, notwithstanding the
District's position [that the trimester calendar aligns with the
practices of other colleges].
• Pasadena starts their Spring semester in the first week of
January, some 4-6 weeks earlier than other community colleges
in the same area. This overlap extends then to the Summer term.
The Association claims this has a negative impact on students'
ability to transition between colleges. It also has an adverse
impact on part time faculty, many of whom make their living by
teaching at multiple institutions.
• These faculty, the Association argues, will not be able to blend
their schedules to teach both at PCC and another college in the
summer. While there was a chart produced by the Association at
hearing showing the various start times for the 6 colleges cited,
there was no empiric data to support their other assertions.
Ultimately, the factfinding panel's recommendation is:
There does not appear to be a factual dispute that the Faculty
Association has declined to participate in effects bargaining -
even at hearing there was no counterproposal or request to
ameliorate the effects of the new calendar.
Therefore, the recommendation of the panel is to keep the current
2012-13 [sic] schedule for the duration of the parties' collective
bargaining agreement. That will allow both the District and the
Association the ability to track the impact of the calendar over
time, and to have objective data as to whether any modifications
to the calendar should be made in the future.

ISSUE
Whether the District failed to meet and confer in good faith over a school calendar
based on a trimester system.
CONCLUSIONS OF LAW
In determining whether a party has violated EERA section 3543.S(c), PERB utilizes
either the "per se" or "totality
of
the conduct" test, depending on the specific conduct involved
and the effect
of
such conduct on the negotiating process. (Stockton Unified School District
(1980) PERB Decision No. 143.) Unilateral changes are considered "per se" violations
if
certain criteria are met. Those criteria are: (1) the employer breached or altered the parties'
written agreement or its own established past practice; (2) the change was implemented
without the employer fulfilling its duty to negotiate with the exclusive representative,
including providing adequate notice; (3) the change was not merely an isolated breach
of
the
contract, but amounts to a change in policy (i.e., it has a generalized effect or continuing
impact upon bargaining unit members' terms and conditions
of
employment); and (4) the
change in policy concerns a matter within the scope ofrepresentation. (San Joaquin County
Employees Association
v.
City
of
Stockton (1984) 161 Cal.App.3d 813; Vernon Fire Fighters
v.
City
of
Vernon (1980) 107Cal.App.3d 802; Grant Joint Union High School District (1982)
PERB Decision No. 196 (Grant); Walnut Valley Unified School District (1981) PERB
Decision No. 160.)
The District's Past Practice
For a past practice to be binding and subject to a unilateral change analysis, it must be
unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable
period of time as a fixed and established practice accepted by both parties. (County
of
Placer
(2004) PERB Decision No. 1630-M, citing Hacienda La Puente Unified School District (1997)
11

PERB Decision No. 1186; see also Riverside Sheri/ft' Association
v.
County
of
Riverside
(2003) 106 Cal.App.4th 1285, 1291.) PERB has also described an enforceable past practice as
one that is "regular and consistent" or "historic and accepted." (Hacienda La Puente.)
Prior to January 2013, the District had maintained a school calendar based on the
semester system with a winter and summer intercession. Both parties acknowledge that the
District had never before utilized a trimester system. Based on these scant facts, it is clear that
the District's use
of
a semester system for the school calendar was an enforceable "past
practice" based on the above-described criteria as being "regular and consistent" and "historic
and accepted."
Completion
of
Negotiations
Absent a valid defense, public sector employers may lawfully make unilateral changes
in terms and conditions
of
employment only after completing statutory impasse procedures.4 ·
(Campbell Municipal Employees Assn.
v.
City a/Campbell (1982) 131 Cal.App.3d 416, 422.)
A resolution
by
the governing body
of
a public school is an "official" action for determining
that a unilateral change has been made, even where the action has a deferred effective date.
(Anaheim Union High School District (1982) PERB Decision No.
20L)
Impasse is not
completed until the parties have considered the factfinder's report in good faith and attempted
It
is not clear why in this case, the parties requested a finding
of
impasse as to a single
issue. Notably, the parties later requested a finding
of
impasse as to the overall negotiations.
For purposes
of
this analysis, the October 3, 2012 request for impasse establishes the operative
dates
of
the beginning and ending
of
impasse determinations.
It
is not necessary to determine
at this point the propriety
of
the finding
of
impasse on October 5, 2012, as to the sole issue
of
the calendar. I simply note that this piecemeal finding
of
impasse appears to be in
contradiction with the position taken by the National Labor Relations Board (NLRB) and
endorsed by several circuit courts
of
appeal, that collective bargaining involves give and take
on a number
of
issues and permitting the employer to remove, one by one, issues from the
table could impair the ability to reach overall agreement through compromise on particular
items. (See Duffy Tool & Stamping, LLC,
v.
NLRB (2000) 233 F.3d 995; Vincent Industrial
Plastics, Inc. v. NLRB (2000) 209 F.3d 727; and Visiting Nurse Services
of
Western
Massachusetts, Inc.
v.
NLRB (2000) 177 F.3d 52.) PERB has not taken an official position on
this issue.
12

to use it
as
the basis for a settlement. (Modesto City Schools (1983) PERB Decision No. 291.)
In this case, there is little doubt that the District imposed the trimester calendar before the
parties had completed impasse. The stipulated facts demonstrate that the trimester calendar
was adopted
on
August 29, 2012, over a month before the parties requested a finding
of
impasse on the issue, and many months before the factfinding report was issued.
Change in Policy
In Grant, sipra, PERB Decision No. 196, the Board made a distinction between a mere
contractual breach and a unilateral change that has a generalized effect or continuing impact
upon the terms and conditions
of
employment
of
bargaining unit members. In this case, the
District's change to the calendar is not simply the change
of
a single start date for the Spring
Semester but a change to the length
of
the Spring Semester as well as to the Summer Semester.
This new calendar applies to the entire bargaining unit. Notably, the District took the position
at the factfinding hearing that the trimester calendar represented the "status quo on a go
forward basis." Clearly, the imposition
of
a trimester calendar has a generalized effect and a
continuing impact on bargaining unit members.
Scope
of
Representation
The District argues that the "student" or "academic" calendar is distinct from the work
calendar, and that it is authorized by its by-laws to unilaterally adopt a student calendar. As
discussed at some length below, the Board has addressed the issue
of
school calendars as a
kind
of
hybridized negotiable/permissive subject. This internal tension is due to the fact that it
is the duty and prerogative
of
public schools to set the standards for pupil education, which
necessarily involves decisions about the number
of
instructional hours and days that are
provided to students. Naturally, teachers must be working on days when instruction is being
provided to students. Yet work hours are an enumerated subject
of
negotiations. Thus, the
13

Board has made some fine distinctions in the area
of
school calendar in order to accommodate
these separate, and sometimes competing interests.
In
Palos Verdes Peninsula Unified School District/Pleasant Valley School District
(1979) PERB Decision No. 96 (Palos Verdes), the Board held that the distribution
of
work
days in the year (beginning and ending dates
of
the school year for teachers and the dates
of
their vacations and holidays), the distribution
of
hours in a teacher's workday (beginning and
ending times
of
a teacher's workday), and extra hour assignments (Back-to-School Night and
Open House) are matters within the scope ofrepresentation. The Board went on to state that,
since the beginning and ending dates
of
the school year are encompassed by distribution
of
workdays, they, too, are negotiable items. (Ibid.) The Board defined the distribution
of
work
days as when certificated staff are to perfonn their services as compared to the total amount
of
time they must provide their services.
In Jefferson School District ( 1980) PERB Decision No. 133, the Board rejected the
district's argument that because the school calendar primarily impacted the public, it should be
considered nonnegotiable. There, the Board cited Palos Verdes, supra, PERB Decision
No. 96, and stated that although the days and hours that schools are open for instruction did not
always coincide with teacher's work days and hours, there was a sufficient nexus between the
two that the issue
of
school calendar was negotiable. The Board went on to draw a careful
distinction between the District's prerogative to determine the hours
of
instruction that students
receive in order to achieve its basic mission, and teachers' working hours, which was a
mandatory subject
of
negotiations.
In San Jose Community College District (1982) PERB Decision No. 240, the Board
held that a redistribution
of
work within an existing school calendar (substituting instructional
days for in-service days), absent facts demonstrating that the change affected the volume of
14

work, the hours
of
work or the distribution
of
working days, did not amount to a change in any
terms and conditions
of
employment. And in Oakland Unified School District (1983) PERB
Decision No. 367, the Board cited each
of
the above decisions regarding school calendar, and
reaffirmed its finding that the school calendar is within the scope
of
negotiations.
The present case involves not just the District's adjustment
of
starting and ending dates
of
the school year and changes to the winter and spring breaks on the calendar, but the
wholesale adoption
of
a different type
of
calendar. Trimesters differ from both semesters and
intercessions in length and permit fewer course offerings per year. Without doubt, staff are
teaching while classes are in session. Because there is no conceivable way that students could
attend courses on a trimester schedule while staff members work on a semester schedule, the
District's unilateral adoption
of
a new calendar system necessarily encroaches on the
bargaining rights
of
employees by imposing a different distribution
of
work days. This clearly
has a direct impact on work hours and other terms and conditions
of
employment, even without
specific decisions having been made with regard to start and end dates. Simply comparing the
dates between the class schedule based on the semester calendar adopted on May 2, 2012,
against the class schedule based on the trimester calendar adopted on August 29, 2012,
dramatic differences emerge. This scenario is not, as the District intimates, akin to simply
eliminating the Winter Intercession classes. 5
For all the foregoing reasons, it is clear that the District has implemented a change to
the past practice
of
operating on a semester calendar, the District implemented the change
before fulfilling its duty to meet and confer in good faith, the change has a generalized effect
and continuing impact on bargaining unit members, and the change affected matters within the
5 See Pasadena Area Community College District (2011) PERB Decision No. 2218,
holding that the decision to cancel classes was a management prerogative, subject only to
effects bargaining. 
15

scope of representation by altering the faculty's work calendar and the distribution of working
days.
The District raises a number of defenses to this charge.
District By-Law 1610
The District argues that its bylaws permit it to unilaterally adopt and change the school
calendar. This argument is without merit. The Legislature gave PERB exclusive initial
jurisdiction over matters covered by EERA and local regulation should not be permitted to
undercut the minimum rights guaranteed by the statute. (San Francisco Unified School
District (2008) PERB Decision No. 1948.) Accordingly, the District's by-laws do not provide
a basis for finding that the District may unilaterally implement a change to a mandatory subject
of negotiations like the school calendar.
Waiver Defense
First, the District argues that the Union waived its right to negotiate over the calendar
by refusing several requests by the District to bargain over the calendar. Consistent with the
findings of the NLRB, PERB has held that an employer does not commit an unfair practice
when it implements a change to a negotiable subject after it has given adequate notice to an
employee organization of the proposed change and the employee organization has not
requested negotiations within a reasonable time. (Los Angeles Community College District
(1982) PERB Decision No. 252.) In order to prove that the union waived its right to negotiate,
the employer must show demonstrative behavior on the part of the union waiving a reasonable
opportunity to bargain. (Solano County Community College District (1982) PERB Decision
No. 219.) The party asserting waiver bears the burden of proving it as an affirmative defense
and any doubts must be resolved ·against that party. (Placentia Unified School District (1986)
PERB Decision No. 595.)
16

In San Diego Unified School District (1980) PERB Decision No. 137, the Board
declined to find a waiver where the union's failure to negotiate over the issue at the bargaining
table was due to the belief that the matter had already been settled in another, earlier forum.
Here, the Union argues that its participation on the Calendar Committee was the equivalent
of
bargaining. According to the Union, the District's insistence that it negotiate over the calendar
outside
of
the Calendar Committee was bad faith. The Union also argues that the Calendar
Committee's proposal was the equivalent
of
a bargaining proposal from the Union
..
These
arguments are inherently inconsistent. Furthermore, the merits
of
both arguments are dubious
given the composition
of
the Calendar Committee, which included representatives from each
of
the bargaining units at the District as well as students. Nevertheless, the fact that the Union
raises the
ar1:,,ument
tends to demonstrate that it did not intentionally waive the right to
negotiate over the calendar. Rather, according to the Union, it participated in the Calendar
Committee with the expectation that the Committee's recommendation would be adopted. As
with the Board's decision in San Diego, the Union's conduct in this case does not demonstrate
a deliberate relinquishment
of
the right to bargain over the calendar.
Based on the testimony provided by both parties, it appears that the purpose
of
the
Calendar Committee was to populate the school calendar each year with all
of
the significant
events that occur in a given school
year-start
and end dates for semesters, spring and fall
breaks, holidays, final exam periods, etc. Both the Union's witness and the District's witness
testified that they had participated on the Calendar Committee for several years. Unlike in
previous years, however, the parties' collective bargaining agreement was expiring this year
and the District wanted to negotiate over a change from semesters to trimesters. The Calendar
Committee's task was not to resolve the negotiable issue of whether the calendar should be
based on semesters or trimesters, but to populate the calendar that existed under the current
17

collective bargaining agreement. Under the circumstances, the parties' conduct with regard to
the Calendar Committee should not be deemed to satisfy their corresponding duties to meet
and confer in good faith over the issue
of
whether the District should adopt a trimester
calendar, nor should it be deemed a waiver
of
the right to meet and confer over the calendar.
Accordingly, no weight is given to the fact that the Calendar Committee considered and
rejected the idea
of
populating a second calendar based on the trimester system, as the
Calendar Committee had no apparent authority to establish a trimester calendar on its own
motion.
The District is similarly unable to point to any conduct at the bargaining table by which
the Union waived a right to meet and confer over the calendar. By both parties' accounts,
bargaining got
off
to a slow start. The District's initial sunshining in April included the
trimester calendar, but was a partial list
of
subjects that the District wanted to negotiate. The
full list was not presented until May
2,
2012, the same date that the Calendar Committee's
proposal was adopted. After the District had si.mshined all
of
its proposals, the parties began
exchanging proposals in earnest and met for a total
of
five times before the District imposed
the trimester calendar. The District presents evidence that the Union delayed several
bargaining sessions and refused to discuss the proposed MOU at the August 2, 2012 bargaining
session. Even
if
true, a lack
of
due diligence and poor judgment do not constitute a waiver
of
the right to bargain. (The Regents
of
the University
of
California (UCLA) (1982) PERB
Decision No. 267-H.) As noted above, the burden is on the District to establish demonstrative
behavior by the Union intentionally waiving the right to negotiate over a trimester calendar.
Neither silence nor a refusal to agree to the District's demands constitute such a waiver.
Business Necessity Defense
18

Second, the District argues a business necessity defense to its unilateral implementation
of
the trimester calendar. In order to establish a business necessity defense to a unilateral
action, the employer must show that there was an actual financial emergency which left no
real alternative to the action taken and allowed no time for meaningful negotiations before it
took the disputed action. (Calexico Unified School District (1983) PERB Decision No. 357.)
Here, the District argues that, had it not imposed the trimester calendar when it did, it
would have been forced to take other, more drastic measures to balance its budget. The
District acknowledges that there was at least one other alternative to its imposition
of
a
trimester calendar-layoffs
of
classified employees. 6 Even assuming these were the only two
options available to the District, the fact that there was an option other than unilateral
imposition places the claimed business necessity defense on shaky ground.
The District cites its October
1,
2012, date
of
"operational necessity." This date
represents the last date the District could notify students
of
the change in schedule in time for
class registration to proceed. The District first proposed a trimester calendar in April 2012. A
period
of
six months between the time the employer first proposed a trimester calendar until
the October
1,
2012 date
of
operational necessity, would appear to negate the argument that the
change in circumstances was "sudden" or "unavoidable," precluding the opportunity for
meaningful negotiations. Given the lack
of
a sudden change in circumstances as well as the
existence
of
a reasonable alternative to unilateral imposition
of
a trimester calendar, the
business necessity/operational necessity defense does not apply here to excuse the District
from negotiating the change in the calendar.
Qualified Unilateral Action defense
6 The District presented these two options as "either/or" options. It is not clear from the
evidence provided at hearing how the District arrived at this determination and whether the
District sought input from any of the exclusive representatives of its employees prior to
reaching this determination.
19

Finally, the District argues, in essence, that its conduct constitutes the kind
of
"qualified
unilateral action" that the Board found lawful in Palos Verdes, supra, PERB Decision No. 96.
There, the Board approved
of
the idea that there may be circumstances where an employer's
unilateral change to working conditions was justified because it was motivated by external
circumstances and because the employer's conduct otherwise evinced good faith by making it
clear that the change was tentative and subject to continued meeting and conferring.
In Palos Verdes, supra, PERB Decision No. 96, the district waited as long as it
reasonably could before it acted unilaterally, it implemented changes sparingly, and then
repeatedly demonstrated its willingness to continue to meet and negotiate over matters within
scope. When combined with a compelling argument
of
operational necessity, the Board agreed
with the Hearing Officer that the district presented a valid defense to its unilateral imposition
of
a school calendar. Therefore, argues the District, as long as it bargained in good faith up to
the point
of
operational necessity, it was entitled to engage in self-help, including
implementation
of
a trimester calendar.
Even assuming PERB were to adopt the District's argument that October
1,
2012,
presented a point
of
operational necessity justifying the unilateral action, the facts
of
this case
demonstrate that the District did not bargain in good faith up to that date. Rather, the District
adopted the trimester calendar on August 29, 2012, more than a month before the date it
identified as the last possible date to reach agreement before implementation became
necessary. And, as discussed further below, the District's claims that it repeatedly offered to
continue meeting and conferring over the decision are not quite as sincere as the offer that was
made in Palos Verdes, supra, PERB Decision No. 96. There are several reasons to doubt the
sincerity of the District's offer to bargain.
20

In Lake Elsinore School District (1986) PERB Decision No. 606, the Board held that
the unilateral adoption
of
a school calendar may evidence a refusal to bargain
if
the
surrounding facts and circumstances reflect that the district intends it to be a final calendar.
One way
of
proving this is
if
the district implements the change and, in so doing, changes the
terms and conditions
of
employment. (Ibid.) In Lake Elsinore, the district implemented a
student calendar that differed from the previous year
by
one week, and changed the timing
of
the winter and spring semester breaks. However, after implementation
of
the student calendar,
the district continued to meet and confer
withthe
union and made proposals that differed from
the calendar that it had just adopted. Because
of
this, the Board found that the district's
conduct was not intended to implement a final calendar or to change the tenns and conditions
of
employment.
In this case, the District imposed multiple changes at one time. It did notjust
implement a start date to the semester while continuing to bargain additional future dates.
Rather, it implemented an entire years' worth
of
operative dates. Second, the calendar changes
that were implemented, for the reasons discussed above, altered the terms and conditions
of
employment for bargaining unit members. These actions, as well as the District's later
statement at the factfinding hearing that the trimester calendar represented the status quo,
demonstrate that the District intended its adoption
of
a trimester calendar in August 2012, to be
a final decision, rather than a tentative decision.
Second, instead
of
proclaiming its willingness to meet and confer over the decision to
implement a school calendar, the District stated its willingness to meet and confer over the
effects
of
the changed calendar, rather than the decision itself. Decision bargaining and effects
bargaining are not interchangeable. Whether an employer has a duty to engage in decision
bargaining or effects bargaining is determined by the nature
of
the issue in
dispute-if
the
21

issue is within the scope
of
bargaining, then the employer must engage in decision bargaining;
if
the issue is permissive, then the employer is obligated to bargain any within-scope effects
of
the non-negotiable decision. (See Anaheim Union High School District ( 1981) PERB Decision
No. 177 and Newman-Crows Landing Unified School District (1982) PERB Decision No. 223,
respectively.) In the event an employer is unsure whether a particular subject is negotiable, it
is under an obligation to ask the union for its negotiability justification and inform the union
of
its reasons for its belief that a matter is out
of
scope. (Trustees
of
the California State
University (2012) PERB Decision No. 2287-H.) Furthermore, a union is under no obligation
to make any proposals in response to a unilaterally changed working condition. (Cloverdale
Unified School District (1991) PERB Decision No. 911.)
It is clear that the school calendar is one
of
those hybridized issues involving some
matters
of
managerial prerogative, but also encompassing mandatory subjects
of
bargaining.
PERB has repeatedly held that when a subject does not merely involve an issue
of
managerial
prerogative but is related to other mandatory terms and conditions
of
employment, it is within
the scope
of
representation and cannot be altered without notice to the exclusive representative
and an opportunity to bargain. (See Lake Elsinore School District (1988) PERB Decision
No. 715; Mt. Diablo Unified School District (1983) PERB Decision No. 373; and State
of
California (Department
o..f
Transportation) (1983) PERB Decision No. 361-S.) In this case,
the District unilaterally implemented changes to the school calendar that clearly encompassed
mandatory subjects
of
bargaining without completing the negotiations process. The District
has failed to present a valid defense to its action, and has violated EERA section 3543.S(c).
REMEDY
The appropriate remedy in a case involving a failure to meet and confer in good faith is
to order a restoration of the status quo ante and to negotiate with the union. (County
of
22

San Joaquin (Health Care Service) (2001) PERB Order No. IR-55-M.) A restoration of the
status quo typically involves a rescission of the unlawful conduct and a make whole order for
any individuals who have suffered losses resulting from the unlawful conduct. (California
State Employees' Assn. v. PERB (1996) 51 Cal.App.4th 923, 946.) A restoration of the status
quo need not occur immediately, however, and the Board has ordered a stay where immediate
restoration of the status quo would cause disruption to innocent third parties or interfere with
employee and student operations. (See Lucia Mar Unified School District (2001) PERB
Decision No. 1440; and Beverly Hills Unified School District (1990) PERB Decision No. 789,
respectively.)
As noted above, the school calendar is a subject that combines both mandatory subjects
and matters of managerial prerogative. Accordingly, an immediate return to the status quo
ante---a semester calendar-could prove disruptive and harmful to both bargaining unit
employees as well as students, other employees and the District. A more reasonable approach
would permit the parties sufficient time to return to the semester schedule at the end of a
trimester, and with sufficient advance notice that it does not cause additional harm by
subjecting bargaining unit employees (and students) to an abrupt and unplanned change in
class schedules. Thus, upon a demand by PCCFA, within 60 days of a final decision in this
matter, the District shall, at the end of the current trimester, rescind its implementation of the
trimester calendar and restore a semester calendar no later than two weeks after the end of that
trimester. Additionally, upon a showing oflosses suffered by any affected employees as a
result of the change, the District shall make employees whole. Damages shall be calculated
through the end of the final trimester after a demand to bargain, or at the end of 60 days if no
demand is made.
The parties are encouraged to work cooperatively toward this end.
23

PROPOSED ORDER
Based on the foregoing findings of fact and conclusions oflaw, and the entire record in
this case, it is found that the Pasadena Area Community College District (District) violated the
Educational Employment Relations Act (BERA), Government Code section 3543.5(a), (b) and
(c), by unilaterally implementing a trimester calendar.
Pursuant to BERA section 3541.5(c), it is hereby ORDERED that the District, its
governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing the school calendar from semesters to trimesters
without notice and an opportunity to bargain.
2. 	Denying the Pasadena City College Faculty Association (PCCFA) the
right to represent bargaining unit employees in their employment relations with the District.
3. 	Interfering with the right of bargaining unit employees to be represented
by their employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONSDESIGNED TO
EFFECTUATE THE POLICIES OF BERA:
1. 	Upon a demand byPCCFA, to be made within sixty (60) days of the
service of a final decision in this matter, rescind the implementation of a trimester calendar at
the end of the trimester in which demand has been made, and restore a semester calendar no
later than two weeks after the end of that trimester.
2. 	Make affected employees whole for any losses suffered as a result of the
change, including interest at the rate of 7 percent per annum.
3. 	Within 10 workdays of the service of a final decision in this matter, post
at all work locations in the District where notices to employees are customarily posted, copies
of the Notice attached hereto as an Appendix. The Notice must be signed by an authorized
24

agent
of
the District, indicating that it will comply with the terms
of
this Order. Such posting
shall be maintained for a period
of
30 consecutive workdays. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced
or
covered with any other
material.
4. 	Written notification
of
the actions taken to comply with this Order shall
be made to the Public Employment Relations Board (PERB or Board) General ~ounsel, or the
General Counsel's designee. The District shall provide reports in writing, as directed
by the
General Counsel or her designee. All reports regarding compliance with this Order shall be
concurrently served on PCCF A.
Pursuant to California Code
of
Regulations, title 8, section 32305, this Proposed
Decision and Order shall become final unless a party files a statement
of
exceptions with the
Board itself within 20 days
of
service
of
this Decision. The Board's address is:
Public Employment Relations Board
Attention: Appeals Assistant
1031 18th Street
Sacramento,
CA
95811-4124
(916) 322-8231
FAX: (916) 327-7960
In accordance with PERB regulations, the statement
of
exceptions should identify by
page citation or exhibit number the portions
of
the record,
if
any, relied upon for such
exceptions. (Cal. Code Regs., tit. 8, § 32300.)
A document is considered "filed" when actually received during a regular PERB
business day. (Cal. Code Regs., tit. 8, §§ 32135, subd. (a) and 3213,0; see also Gov. Code,
§ 11020, subd. (a).) A document is also considered "filed" when received by facsimile
transmission before the close
of
business together with a Facsimile Transmission Cover Sheet
which meets the requirements
of
California Code of Regulations, title 8, section 32135,
subdivision (d), provided the filing party also places the original, together with the required
25

number of copies and proof of service, in the U.S. mail. (Cal. Code Regs., tit. 8, § 32135,
subds. (b), (c) and (d); see also Cal. Code Regs., tit. 8, §§ 32090 and 32130.)
Any statement of exceptions and supporting brief must be served concurrently with its
filing upon each party to this proceeding. Proof of service shall accompany each copy served
on a party or filed with the Board itself. (See Cal. Code Regs., tit. 8, §§ 32300, 32305, 32140,
and 32135, subd. (c).)
26

APPENDIX
NOTICE TOEMPLOYEES
POSTED BY ORDER OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
An
Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. LA-CE-5776-E, Pasadena City College
Faculty Association
v.
Pasadena Area Community College District, in which all parties had the
right to participate, it has been found that the Pasadena Area Community College District
(District) violated the Educational Employment Relations Act (EERA), Government Code
section 3543.S(a), (b) and (c), by unilaterally implementing a trimester calendar.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1.
	Unilaterally changing the school calendar from semesters to trimesters
without notice and an opportunity to bargain.
2. 	Denying the Pasadena City College Faculty Association (PCCFA) the
right to represent bargaining unit employees in their employment relations with the District.
3. 	Interfering with the right
of
bargaining unit employees to be represented
by their employee organization.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF BERA:
1.
	Upon a demand by PCCFA, to be made within sixty (60) days
of
the
service
of
a final decision in this matter, rescind the implementation
of
a trimester calendar at
the end
of
the trimester in wh{ch demand has been made, and restore a semester calendar no
later than two weeks after the end
of
that trimester.
2. 	Make affected employees whole for any losses suffered as a result
of
the
change, including interest at the rate
of
7 percent per annum.
Dated:
---------
PASADENA AREA COMMUNITY COLLEGE
DISTRICT
By: Authorized Agent
--------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY (30)
CONSECUTNE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE REDUCED
IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER MATERIAL.