Modoc County Office of Education (PERB 2684E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS HIGH DESERT
CHAPTER 531,
Charging Party, 	Case No. SA-CE-2887-E
v. 	PERB Decision No. 2684
November 27, 2019	MODOC COUNTY OFFICE OF EDUCATION,
Respondent.
Appearances: California School Employees Association by Christina C. Bleuler, Deputy Chief
Counsel, for California School Employees Association and its High Desert Chapter 531;
Lozano Smith by Thomas E. Gauthier and Erin M. Hamor, Attorneys, for Modoc County
Office of Education.
Before Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions by the California School Employees Association and its High
Desert Chapter 531 (CSEA) to a proposed decision of an administrative law judge (ALJ). The
complaint alleged that the Modoc County Office of Education (MCOE) violated the
Educational Employment Relations Act (EERA)1 by reducing the work hours of two
bargaining unit members without providing CSEA prior notice and an opportunity to bargain
over the decision and/or the effects of the decision. Following a formal hearing, the ALJ
dismissed the complaint and underlying unfair practice charge, concluding that MCOE was not
________________________
1 EERA is codified at Government Code section 3540 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code.

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required to bargain over its decision to reduce daily work hours because the parties’ collective
bargaining agreement (CBA) contained a waiver of CSEA’s right to bargain over that subject.
Based on our review of the proposed decision, the entire record, and relevant legal
authority in light of the parties’ submissions, we conclude that CSEA did not waive its right to
negotiate the reduction in work hours. We accordingly reverse the proposed decision and find
that MCOE violated EERA as alleged in the complaint.
FACTUAL BACKGROUND
CSEA is an employee organization and an exclusive representative of an appropriate
unit of employees within the meaning of section 3540.1, subdivisions (d) and (e), respectively.
MCOE is a public school employer within the meaning of section 3540.1, subdivision (k).
CSEA represents a bargaining unit of approximately 60 to 65 classified employees of MCOE.
The parties’ CBA was in effect from July 1, 2014 through June 30, 2017, and later extended
through June 30, 2020.
Marita Anderson (Anderson) has been a Special Education Instructional Assistant (IA)
at MCOE since 1991, and has served as CSEA President since 1995. During the relevant time
period, CSEA Labor Relations Representatives have included John Cross (Cross) until
January 2017; Jan Dole (Dole) for six months after Cross; and Jeffery Kirby (Kirby), who
started in June 2017.
Timothy Hoff (Hoff) served as MCOE’s Human Resources Director since 2008. As
part of his duties, Hoff has served as MCOE’s lead negotiator in collective bargaining with

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CSEA. From 2001 to 2010, Peter Currer (Currer) was MCOE’s Director of Special Education
Local Plan Area (SELPA),2 and an MCOE negotiating team member.
The Parties’ CBA
Article 14 of the CBA is entitled “Layoff/Reduction and Re-employment.” It provides,
in relevant part, as follows:
14.1 Reason for Layoff
Layoff/Reduction of hours shall occur only in accordance with
the California Education Code or for reason permitted by law.
14.2 Notice of Layoff
In the event of a layoff, including reduction of assigned hours of
employment, the following steps will be taken:
14.2.1 The Superintendent/Designee shall notify CSEA prior to
the serving of layoff notices. Notification shall include reason for
layoffs and identify, by name and classification, the employee(s)
holding those position(s) designated for layoff.
14.2.2 The Superintendent/Designee shall send written layoff
notice to the affected employee(s) not less than sixty (60)
calendar days prior to the effective date of layoff. Any layoff
notice shall include reason for layoff, bumping rights, if any, and
re-employment rights.
[¶ . . . ¶]
14.4 Bumping Rights
[¶ . . . ¶]
14.4.2 An employee whose position has been eliminated or
reduced in hours may have bumping rights over a less senior
employee in that classification.
14.6 Demotion or Reduction in Time, in Lieu of Layoff
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2 SELPA is a voluntary collaboration between three local school districts and MCOE to
provide free, appropriate education for disabled children. MCOE is the legal entity that
receives state and federal funds for the SELPA. (See Ed. Code, § 56205 et seq.)

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[¶ . . . ¶]
14.6.1 An employee who accepts voluntary demotion or
reduction in hours in lieu of layoff, shall be restored to his/her
former class or number of hours as vacancies become available.
The employee shall retain this eligibility for a period of sixty-
three (63) months. Demotion shall be defined as accepting a
position in a lower-paid classification.
14.6.2 Employees who accept a reduction in hours shall continue
to receive health insurance benefits with the same terms and
conditions for a period of one (1) calendar month.
14.7 Effects of Layoff . . .
[¶ . . . ¶]
14.7.3 The Superintendent will not increase the use of volunteers
to cover positions reduced or eliminated through the layoff
process.
14.7.4 This completes negotiations on the effects of layoff, and
no further negotiations on the effects of layoff are required.
(Italics in original.)
The record does not contain evidence as to the inception of Article 14.3 Articles 14.1-
14.6 have appeared materially unchanged in the parties’ successive CBAs since 2000.
In 2003, the parties negotiated the language on effects of layoff that now appears at
Article 14.7.4 in the CBA. Currer testified that the new provision allowed management
flexibility in its staffing. MCOE covers 2,500 square miles, primarily serving special
education students. Modoc County is rural, with difficult winter weather and sparse work
opportunities; it is common for people to live there for only a short time. Because the MCOE
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3 Article 14 appeared as Article 15 in earlier contracts. At some time after 2003, the
parties renumbered the Articles and moved the substance of Article 15 to Article 14.

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student population fluctuates greatly, frequent adjustments to staffing levels are necessary to
meet student needs.
Prior Layoffs and Reductions in Work Hours
In May 2011, MCOE decided to reduce the work hours of several bargaining unit
employees. On May 25, 2011, Hoff sent formal notices to four IAs and one preschool teacher
to inform them that their work hours would be reduced between 0.5 and 1.5 hour(s) per day
during the 2011-2012 school year due to funding constraints. CSEA representatives Cross and
Anderson were copied with each notice. CSEA did not request to negotiate over this reduction
in hours or its effects.
In November 2011, MCOE decided to lay off four IAs at Stronghold Court School
(Stronghold). After informing CSEA of its decision, MCOE and CSEA discussed the potential
for the affected employees to receive a voluntary reduction in hours in lieu of layoff under
Article 14.6 of the CBA. MCOE and CSEA ultimately agreed to reduce the assigned daily
hours of the four IAs. Anderson and Hoff signed a memorandum of understanding reflecting
these terms, citing Articles 14.6, 14.6.1, and 14.6.2 of the CBA.
In May 2012, MCOE decided to lay off, or in some instances reduce the daily work
hours of, several classified bargaining unit employees in the 2012-2013 school year. On
May 2, 2012, Hoff sent an e-mail to Cross and Anderson notifying them of MCOE’s decision.
CSEA did not request to bargain over the reduction in hours or its effects.4
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4 Consistent with PERB’s decisional law that a decision to lay off employees is
normally not within the scope of representation, Anderson conceded that the parties’ CBAs
have never allowed CSEA to negotiate over a decision to lay off employees. Moreover, while
layoff effects are within the scope of representation, Anderson acknowledged that Article
14.7.4 waived CSEA’s right to negotiate layoff effects.

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Pursuant to Article 14.2, on March 30, 2016, Hoff sent an e-mail to Cross and
Anderson to provide notice of MCOE’s intent as of the end of the 2015-2016 school year to
eliminate extra hours previously added to six IAs’ work schedules. On April 6, 2016,
Anderson e-mailed Hoff, asking if the six employees would be hired in the 2016-2017 school
year and whether they would be eligible to bump less senior employees. CSEA did not request
to bargain the reduction in extra hours or its effects.
On March 23, 2017, Hoff e-mailed Anderson and Dole to provide notice of layoffs and
reductions in hours affecting several bargaining unit employees at the end of the 2016-2017
school year. CSEA did not request to negotiate over the reduction in hours or its effects.
The Disputed Reductions in Hours
On May 30, 2017, Hoff e-mailed and mailed Anderson a “Pre-notification” letter
informing CSEA of MCOE’s intent to reduce Anderson’s and Dion Ditmore’s (Ditmore) daily
working hours by one hour, from 6.25 to 5.25 hours, at the start of the 2017-2018 school year.
The letter was copied to Kirby. The letter stated:
Per the CBA between . . . Superintendent . . . and CSEA . . . ,
the designee of MCOE is hereby notifying you, as specified in
Article 14, 14.2.1 that a reduction in working hours for IAs at
Stronghold will occur commencing with the start of the
2017/2018 [school year].
MCOE’s rationale for the reduction in hours was “decreased enrollment and only
partial funding.” The letter said the two affected employees would receive a letter from
MCOE providing a 60-day notice, reason(s) for the reduction in hours, and displacement
entitlements.
That same day, Kirby e-mailed Hoff, responding, “CSEA and MCOE will need to
negotiate the decision and effects of any proposed reduction in time” for the two IAs.

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On June 7, 2017, Hoff replied by e-mail:
In accordance with Ed Code 45117 (i.e., 60-Day Notice of layoff)
and the collective bargaining agreement between MCOE &
CSEA (Article 14.2) Section 14.2.2, I’m proceeding today with
sending out the sixty day notification of reduction of work hours
to the effected [sic] employees as indicated in the document that
was [sent] to you on May 30th, and that corresponds to the
collective bargaining agreement language of 14.2.1.
Article 14 of the collective bargaining agreement between MCOE
and CSEA specifies that the decision to implement lay-offs [sic]/
reduction in hours is assigned to the employer who is required to
follow agreed upon steps (i.e., 14.3, 14.4). Moreover, the Effects
of Layoff (i.e., 14.7) have been identified, agreed to and
concluded (14.7.4). Are there other effects that you wish to
discuss?
That day, Hoff sent Anderson formal written notice that her assigned work hours as a
Stronghold IA would be reduced by one hour beginning August 17, 2017. Anderson
acknowledged receipt of the letter, and returned a signed copy to MCOE indicating she chose
not to exercise her bumping rights.
Later on June 7, 2017, Kirby e-mailed Hoff demanding that MCOE cease and desist
from making unilateral decisions to reduce the hours of classified positions. Kirby asserted
that the decision to reduce hours was not a layoff, and accordingly CSEA demanded to
negotiate both the decision and its effects. CSEA claimed that MCOE could not legally issue a
reduction in hours notice prior to decision bargaining.
On June 8, 2017, Hoff sent Ditmore formal written notice that his work hours as a
Stronghold IA would be reduced by one hour starting August 17, 2017. Ditmore also declined
to exercise his bumping rights.
Also on June 8, 2017, Kirby sent a letter to Hoff demanding that MCOE cease and
desist from unilaterally reducing the working hours of Anderson and Ditmore until

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negotiations with CSEA concluded. CSEA proposed to meet on June 20 or 21, 2017, to
negotiate over the proposed reductions.
On June 14, 2017, MCOE’s attorney, Erin Hamor (Hamor), responded to Kirby’s cease
and desist letter. Hamor stated that MCOE was under no obligation to negotiate either its
decision or the effects of its decision to reduce work hours because the CBA and the parties’
past practice established that CSEA waived its right to negotiate on these subjects. Although
Hamor claimed MCOE was not required to do so, MCOE offered to engage in further
discussions over any negotiable effects CSEA wished to discuss on June 20 or 21, 2017.
Kirby replied to Hamor’s letter on June 15, 2017, confirming that MCOE had rejected
CSEA’s demand to bargain the decision to reduce work hours, while acknowledging MCOE’s
offer to negotiate the effects of its reduction of hours for Anderson and Ditmore.5
MCOE reduced Anderson’s and Ditmore’s work hours by one hour daily at the start of
the 2017-2018 school year. During the immediately preceding summer, Ditmore picked up
two additional hours of work per day as an IA at Modoc High School, and accordingly he
began the school year with 7.25 daily work hours. On September 13, 2017, Hoff notified
CSEA that Anderson and Ditmore would be laid off from their positions at Stronghold due to
an enrollment decrease, and on September 18, 2017, Hoff notified Anderson and Ditmore of
the layoff. Toward the end of October 2017, Anderson exercised her bumping rights and
moved to a 6.25-hour position at a different school, working hours she still held at the time of
the hearing. On October 9, 2017, Ditmore accepted a 5-hour per day IA position at Modoc
________________________
5 Kirby’s initial reply to Hamor’s response letter stated MCOE rejected CSEA’s
demand to bargain the decision and effects of any proposed reduction in hours. Hamor
e-mailed Kirby that the letter was inaccurate since MCOE had offered to discuss effects.
Kirby then sent a revised reply.

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High School, the same location as the 2-hour IA position he had previously picked up,
resulting in a total of 7 daily work hours through the time of the hearing.
DISCUSSION
The Board reviews exceptions to a proposed decision de novo. (County of Santa Clara
(2019) PERB Decision No. 2629-M, p. 6.) Under this standard, we review the entire record
and are free to reach different factual and legal conclusions than those in the proposed
decision. (City of Milpitas (2015) PERB Decision No. 2443-M, p. 12.)
1. 	Unilateral Change
EERA obligates a public school employer to meet and negotiate in good faith with
representatives of employee organizations concerning matters within the scope of
representation. (EERA, § 3543.3.) The scope of representation includes “matters relating to
wages, hours of employment, and other terms and conditions of employment.” (EERA,
§ 3453.2, subd. (a)(1).)
It is unlawful for a public school employer to “[r]efuse or fail to meet and negotiate in
good faith with an exclusive representative.” (EERA, § 3543.5, subd. (c).) A unilateral
change to a matter within the scope of representation constitutes a per se violation of the duty
to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143,
p. 22.) To establish a prima facie case of an unlawful unilateral change, the charging party
must show: (1) the employer took action to change policy;6 (2) the change in policy concerned
a matter within the scope of representation; (3) the action was taken without giving the
________________________
6 The Board has recognized three general categories of unilateral changes: (1) changes
to the parties’ written agreement; (2) changes in established past practice; and (3) newly
created policy or application or enforcement of existing policy in a new way. (Pasadena Area
Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.)

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exclusive representative notice or opportunity to bargain over the change; and (4) the action
has a generalized effect or continuing impact on terms and conditions of employment.
(Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9.)
CSEA established a prima facie case of an unlawful unilateral change. First, MCOE’s
decision to reduce Anderson’s and Ditmore’s work hours constituted a change in policy. Prior
to August 17, 2017, each employee was scheduled to work 6.25 hours per day. Effective that
date, each employee’s working hours were reduced to 5.25 hours per day. The Board has
consistently found similar reductions in work hours to constitute a change in policy. (E.g., San
Ysidro School District (1997) PERB Decision No. 1198, adopting proposed decision at p. 11;
Pleasant Valley School District (1985) PERB Decision No. 488, adopting proposed decision at
p. 19.) Second, “PERB has long held that the general subject of hours of employment is within
the scope of representation.” (Huntington Beach Union High School District (2003) PERB
Decision No. 1525, p. 4; North Sacramento School District (1981) PERB Decision No. 193,
p. 8.)7
Third, operating on the belief that CSEA had waived its right to negotiate over a
reduction in work hours, MCOE did not provide CSEA with notice and an opportunity to
negotiate prior to deciding to reduce Anderson’s and Ditmore’s hours. CSEA first learned of
MCOE’s decision when Hoff sent Anderson the pre-notification letter on May 30, 2017. When
the exclusive representative first learns of a change after the decision has been made, “by
definition, there has been inadequate notice.” (City of Sacramento (2013) PERB Decision
No. 2351-M, p. 33.)
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7 Conversely, a school employer’s decision to lay off employees is not a matter within
the scope of representation, and only the effects of the layoff decision are negotiable.
(Newman-Crows Landing Unified School District (1982) PERB Decision No. 223, p. 13.)

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Finally, although the reduction in work hours was specific to Anderson and Ditmore,
MCOE’s action had a generalized effect and continuing impact on terms and conditions of
employment because MCOE asserted that the CBA allows it to unilaterally reduce hours
without negotiating with CSEA. (County of Monterey (2018) PERB Decision No. 2579-M,
p. 13; Grant Joint Union High School District (1982) PERB Decision No. 196, p. 9.) Because
it proved all four elements of the unilateral change test, CSEA established a prima facie case
that MCOE violated its duty to negotiate in good faith.8 The question then becomes whether
MCOE proved its affirmative defense that CSEA waived its right to bargain over the changes
in working hours.
2. 	MCOE’s Waiver Defense
An employer may take unilateral action on a matter within the scope of representation
where the exclusive representative has waived its right to negotiate over changes to that
subject. (Grossmont Union High School District (1983) PERB Decision No. 313, p. 4.) A
waiver of statutory rights must be “clear and unmistakable,” and the evidence must
demonstrate an “intentional relinquishment” of a given right. (Ibid.; Moreno Valley Unified
School District (1995) PERB Decision No. 1106, adopting proposed decision at p. 9 (Moreno
Valley); California State Employees’ Assn. v. Public Employment Relations Bd. (1996) 51
Cal.App.4th 923, 937 (California State Employees’ Assn.).) “Public policy disfavors finding a
waiver based on inference and places the burden of proof on the party asserting the waiver.”
(County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) “[N]ot only must waiver
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8 Given our finding that the decision to reduce work hours was bargainable, we need
not address CSEA’s effects bargaining claim.

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be clearly established, but any doubts must be resolved against the party asserting waiver.”
(Placentia Unified School District (1986) PERB Decision No. 595, p. 8 (Placentia).)
CSEA’s exceptions turn on the ALJ’s finding of a contractual waiver of the right to
negotiate over reductions in work hours. CSEA argues that the proposed decision improperly
conflated layoffs and reductions in hours, and applied an incorrect standard for waiver. MCOE
asserts that both the CBA and the parties’ past practice support a finding of waiver, and urges
us to uphold the proposed decision. We address each of MCOE’s asserted theories of waiver
in turn.
A. 	Waiver by Contract
MCOE contends that it was not required to bargain over its decision to reduce
Anderson’s and Ditmore’s work hours or the effects of that decision because language in the
CBA constituted a waiver of CSEA’s right to bargain over those matters. “Waiver is most
readily apparent where the specific subject is covered by the express terms of an existing
collective bargaining agreement.” (Placentia, supra, PERB Decision No. 595, p. 4.) To
constitute a waiver, the contract language must “specifically reserve for management the right
to take certain action or implement unilateral changes regarding the issues in dispute.”
(Berkeley Unified School District (2004) PERB Decision No. 1729, adopting warning letter at
p. 3, citing California State Employees’ Assn., supra, 51 Cal.App.4th at pp. 938-940.)
The Board’s decisional law regarding contractual waivers is consistent in its
requirement that a waiver must be specifically expressed or necessarily implied. (Moreno
Valley, supra, PERB Decision No. 1106, p. 9.) For instance, in Berkeley Unified School
District, supra, PERB Decision No. 1729, we found a contract provision stating “[t]he District
shall not automatically assume responsibility for the increase in employee health and welfare
premiums after expiration of this Agreement” clearly waived the union’s right to bargain over

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increases in employee premium contributions outside the term of the contract. (Id. at p. 4.)
Similarly, we found a union waived its right to negotiate over an employer’s decision to reduce
a unit member’s hours where the contract stated: “The County retains its right to relieve
employees from duty because of lack of work or for other legitimate reasons.” (County of
Ventura (Office of Agricultural Commissioner) (2011) PERB Decision No. 2227-M, adopting
warning letter at p. 3; see also Colton Joint Unified School District (2003) PERB Decision
No. 1534, adopting warning letter at pp. 4-5 [finding that contract language stating “scheduling
of duty hours and workdays shall be at the discretion of the District,” coupled with language
that “[v]acations will be scheduled at the convenience of the District,” allowed the district to
require bus drivers to be on vacation during winter break]; Turlock Joint Union High School
District (1996) PERB Decision No. 1151, adopting warning letter at p. 3 [contract language
stating “The District shall have final authority to determine class size and pupil assignment”
allowed district to unilaterally determine class size].)
On the other hand, broadly-worded management rights clauses are often inadequate to
constitute a waiver of the right to negotiate over a specific subject. (Moreno Valley, supra,
PERB Decision No. 1106, pp. 9-11.) Moreno Valley involved a particularly comprehensive
management rights clause that reserved to the employer all matters not within the statutory
scope of representation. Part of the clause provided that the employer’s reserved rights
included its “sole right to manage the District and direct the work of its employees . . . to
determine the staffing patterns and the number and kinds of personnel required . . . to hire, assign
. . . and transfer employees.” (Id., adopting proposed decision at p. 6.) The employer argued this
clause allowed it to unilaterally reduce the hours of its employees. The Board disagreed,
concluding that none of this language clearly gave the employer the right to change shift

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assignments without first negotiating with the union. (Id., adopting proposed decision at
pp. 9-13.)
In Placentia, supra, PERB Decision No. 595, we similarly found no waiver of the right
to bargain over a reduction in work hours. In that case, the Board examined whether the
association had waived its right to bargain over effects of layoffs and reductions in hours based
upon the inclusion in the contract of (1) a layoff article, and (2) a management rights clause.
The layoff article specified notice procedures in the event of a layoff, yet it was silent on the
effects of layoff. (Id., adopting proposed decision at pp. 5-6.) The management rights clause
stated that the employer had all the usual rights to discharge its obligations, and reserved to the
employer all the rights it had prior to the contract. (Id. at p. 6.) The Board determined that
there was no express contractual language, bargaining history, or zipper clause to support a
finding of waiver regarding either layoff effects or reductions in hours. (Id. at p. 5.) In doing
so, the Board specifically rejected “the proposition that negotiation over a broad subject such
as layoffs itself constitutes waiver as to particular aspects of the subject that neither were
discussed nor covered by the eventually agreed upon contract language.” (Ibid., emphasis in
original.)
Turning to reduction in work hours, the Placentia Board observed that the association
had originally proposed in bargaining to incorporate into the contract the Education Code’s
definition of “layoff,” which includes a voluntary reduction in hours. (Placentia, supra, PERB
Decision No. 595, p. 9.) The district rejected the proposal, asserting the proposed language
was unnecessary. (Id. at pp. 9-10.) The association withdrew its proposal and the ultimate
contract was silent as to reductions in hours. (Id. at p. 10.) The Board found this evidence
insufficient to conclude that the association waived its right to negotiate over reductions in

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work hours. (Ibid.) Further, the Board observed that even if the contract language was
interpreted to incorporate the Education Code’s layoff definition, that would not constitute a
waiver because the Code’s definition only includes voluntary reductions in hours, not
involuntary reductions. (Id. at pp. 10-11.)
Although the Board does not have authority to resolve purely contractual disputes, it
may interpret contracts when necessary to resolve an alleged unfair practice. (San Francisco
County Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018)
PERB Decision No. 2609-I, p. 7.) In interpreting a contract, the Board relies on traditional
rules of contract interpretation and uses the California Civil Code as a guide. (Barstow Unified
School District (1996) PERB Decision No. 1138, p. 13.) Thus, we begin our analysis by
examining the parties’ intent, as demonstrated by the ordinary and plain meaning of the
contract language. (County of Tulare (2015) PERB Decision No. 2414-M, p. 19; County of
Sonoma (2012) PERB Decision No. 2242-M, pp. 15-16.)
Applying the above authority, we find that CSEA did not contractually waive its right
to bargain over the decision to reduce Anderson’s and Ditmore’s work hours. MCOE’s
contractual waiver argument is based on Article 14 of the CBA. On its face, Article 14 does
not expressly confer upon MCOE the right to unilaterally decide to reduce employee hours.
Article 14 does not define the terms “layoff” and “reduction in hours” for purposes of its
subsections. Article 14.1 (Reason for Layoff) provides the terms under which a layoff or
reduction in hours may occur, viz., only in accordance with the Education Code or for other
lawful reason. Article 14.2 (Notice of Layoff), which forms the basis of MCOE’s waiver
claim, merely details the notice procedure MCOE is to follow once a decision to lay off or
reduce hours of employment is final. As to how the decision is to be made, Article 14.2 is

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silent. And while Article 14.2 subsumes a “reduction of hours” into a “layoff,” it sheds no
light on the meaning of those terms outside the context of providing notice.
Article 14.7 (Effects of Layoff) suffers from the same infirmity. While Article 14.7.4
contains an express waiver of CSEA’s right to negotiate the effects of a layoff, it refers only to
“negotiations on the effects of layoff” (emphasis added). Article 14.7.4 does not define the
term “layoff” and is silent as to a reduction in hours of employment. We will not infer a
waiver based upon contractual silence. (Palo Verde Unified School District (1983) PERB
Decision No. 321, p. 12.) Further, it is clear from the language of Article 14.7.4 that the
parties knew how to formulate a contractual waiver, but they did not do so for a decision to
reduce hours or the effects of such a decision. Read in its entirety, Article 14 lacks “clear and
unmistakable” language that grants MCOE the right to unilaterally decide to reduce hours of
employment, or relinquishes CSEA’s right to negotiate over such a decision.9
Although there is no clear waiver language in Article 14, MCOE contends the parties
intended to allow MCOE to unilaterally reduce work hours to give it flexibility in staffing to
meet student needs. When contract terms are ambiguous, we may look to bargaining history to
discern the parties’ intent. (State of California (Department of Forestry and Fire Protection)
(2018) PERB Decision No. 2546-S, pp. 9-10; City of Milpitas, supra, PERB Decision
No. 2443-M, p. 21.) Unfortunately, the record here provides scant guidance as to the parties’
intent at the time they negotiated Article 14. The record does not contain the proposals that led
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9 We disagree with the ALJ’s observation that failing to read Article 14 as a waiver of
CSEA’s right to negotiate over a reduction in work hours would render meaningless the pre-
notification requirement in Article 14.2.1. Although the pre-notification provision appears
more suited to a layoff situation, the required notice could serve to inform CSEA of proposed
reductions in hours, as the provision does not limit the notice to being given after a firm
decision has been made by MCOE.

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to the adoption of Article 14 or the parties’ discussions of those proposals at the bargaining
table, which typically are the most probative forms of extrinsic evidence in interpreting a
collective bargaining agreement. (See, e.g., Vallejo Police Officers Assn. v. City of Vallejo
(2017) 15 Cal.App.5th 601, 618-619; Merced County Sheriff’s Employee’s Assn. v. County of
Merced (1987) 188 Cal.App.3d 662, 673-674.) Instead of such pertinent evidence, both
parties’ witnesses testified regarding their subjective understanding of the meaning of
Article 14. But absent any evidence that the parties mutually discussed their respective
understandings during bargaining over Article 14, this testimony is of minimal value. (Regents
of the University of California (Davis) (2010) PERB Decision No. 2101-H, pp. 21-22; see
Vallejo Police Officers Assn., supra, 15 Cal.App.5th at p. 617 [declarants’ testimony about
their subjective understanding of the intent of a collective bargaining agreement provision was
irrelevant]; see also Vaillette v. Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 690
[“true, subjective, but unexpressed intent of a party is immaterial and irrelevant” to contract
interpretation].) Moreover, to find a waiver the bargaining history must show the matter was
“fully discussed” or “consciously explored” and the representative “‘consciously’ yielded its
interest in the matter.” (Placentia, supra, PERB Decision No. 595, p. 4, citing Los Angeles
Community College District (1982) PERB Decision No. 252, p. 13.) Without evidence of the
parties’ bargaining discussions or proposals, the record contains no relevant evidence from
which we can conclude that the parties intended Article 14 to act as a waiver of CSEA’s right
to negotiate over reductions in daily work hours.
B. 	Waiver By Past Practice
PERB may ascertain established policy from past practice where the contract is silent or
ambiguous as to a policy. (County of Riverside (2013) PERB Decision No. 2307-M, p. 20;

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Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.) “The parties’
practical construction of a contract, as shown by their actions, is important evidence of their
intent, and helps us to resolve ambiguities in the contract.” (Antelope Valley Community
College District (2018) PERB Decision No. 2618, p. 19.)10
MCOE asserts that the parties’ past practice lends support to its interpretation of
Article 14. Specifically, MCOE relies on instances in May 2011, May 2012, March 2016, and
March 2017 in which MCOE unilaterally decided to reduce work hours and sent notices to
CSEA in accordance with Article 14, without any objection from CSEA. According to MCOE,
this evidence of past practice serves to confirm MCOE’s interpretation of Article 14 as
constituting a waiver of CSEA’s right to negotiate over reductions in hours.
But past practice is not relevant here because our decisional law is clear that a union’s
“acquiescence in previous unilateral changes does not operate as a waiver of the right to
bargain for all times.”11 (San Jacinto Unified School District (1994) PERB Decision No. 1078,
adopting proposed decision at p. 23; accord Los Angeles Unified School District (2017) PERB
Decision No. 2518, adopting proposed decision at p. 39, fn. 16; Regents of the University of
________________________
10 Although the parties’ past practice may be used to interpret ambiguous contract
language, the most common use of past practice is to determine whether the parties have
created a binding term or condition of employment that is not found in a written agreement.
(See, e.g., County of Sonoma (2012) PERB Decision No. 2242-M, pp. 17-19 [finding charging
party failed to prove the existence of “an unwritten but established past practice” that was
binding on the county]; see also Pasadena Area Community College District, supra, PERB
Decision No. 2444, p. 12 [for purposes of determining an unlawful unilateral change, an
existing policy may be “contained in a written agreement, in written employer rules or
regulations, or in an unwritten established past practice”].)
11 This rule is a corollary to the rule established in Marysville Joint Unified School
District, supra, PERB Decision No. 314, that “[t]he mere fact that an employer has not chosen
to enforce its contractual rights in the past does not mean that, ipso facto, it is forever
precluded from doing so.” (Id. at p. 10.)

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California (2004) PERB Decision No. 1689-H, adopting proposed decision at p. 50; see also
NLRB v. Miller Brewing Co. (9th Cir. 1969) 408 F.2d 12, 15, enforcing 166 NLRB 831 (1968)
[“it is not true that a right once waived under the Act is lost forever. [Citation.] Each time the
bargainable incident occurs [the] Union has the election of requesting negotiations or not.”]12;
Exxon Research & Engineering Co. (1995) 317 NLRB 675, 685, enforcement denied for other
reasons, 89 F.3d 228 (5th Cir. 1996) [the “mere fact that a union has previously acquiesced in an
employer’s unilateral implementation of plant rules does not, however, mean that the employer is
free thereafter to implement different plant rules or significant and material changes in existing
plant rules without giving the union notice and an opportunity to bargain”].) CSEA’s failure to
demand to bargain in past instances where MCOE gave notice of a decision to reduce work
hours thus did not waive CSEA’s right to negotiate over the reduction of Anderson’s and
Ditmore’s work hours.
REMEDY
The Board’s standard remedy for an employer’s unlawful unilateral change is
restoration of the status quo ante, appropriate make-whole relief including back pay and
benefits with interest, and a cease-and-desist order. (City of San Diego (2015) PERB Decision
No. 2464-M, p. 40, affirmed sub nom. Boling v. PERB (2018) 5 Cal.5th 898, 920.) Anderson
and Ditmore were each working 6.25-hour positions at the time MCOE reduced their daily
work hours. The record before us demonstrates that Ditmore’s hours of employment did not
decrease below 6.25 after MCOE’s decision to reduce his hours because he was able to obtain
________________________
12 When interpreting the statutes within its jurisdiction, PERB may take guidance from
federal private sector authority to the extent it comports with the purposes of the statutes we
enforce. (See, e.g., City of Sacramento, supra, PERB Decision No. 2351-M, p. 21; San Mateo
Community College District (1979) PERB Decision No. 94, pp. 12-17.)

20
additional hours at another school site. For this reason, we do not order back pay for Ditmore.
On the other hand, Anderson’s hours of employment decreased to 5.25 from the start of the
2017-2018 school year until October 2017, at which time she obtained a different position and
returned to a 6.25-hour daily work schedule. We thus order a limited back pay remedy for
Anderson, to make her whole from the start of the 2017-2018 school year until the date she
assumed her new 6.25-hour position. It is also appropriate to order MCOE to cease and desist
from unilaterally reducing the work hours of bargaining unit employees, and to post a notice
incorporating the terms of the Board’s order. (Pleasant Valley School District, supra, PERB
Decision No. 488, adopting proposed decision at p. 35.)
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record in this
case, it is found that the Modoc County Office of Education (MCOE) violated the Educational
Employment Relations Act, Government Code section 3543.5, subdivisions (a), (b), and (c),
when it unilaterally reduced work hours without providing California School Employees
Association and its High Desert Chapter 531 (CSEA) notice and an opportunity to bargain over
the decision.
Pursuant to section 3541.5, subdivision (c), of the Government Code, it is hereby
ORDERED that MCOE, its governing board, and its representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with CSEA over
the reduction of hours of bargaining unit employees.
2. 	Denying CSEA its right to represent employees.

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3. 	Interfering with the right of bargaining unit employees to be represented
by the employee organization of their own choosing.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. 	Make Marita Anderson whole for all work hours lost as a result of
MCOE’s unlawful unilateral change, with interest at the rate of 7 percent per annum.
2. 	Within ten (10) workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to MCOE employees in the
bargaining unit represented by CSEA are customarily posted, copies of the Notice attached
hereto as an Appendix. The Notice must be signed by an authorized agent of MCOE,
indicating that it will comply with the terms of this Order. Such posting shall be maintained for
a period of thirty (30) consecutive workdays. The Notice shall also be posted by electronic
message, intranet, internet site, and other electronic means customarily used by MCOE to
communicate with employees in the bargaining unit represented by CSEA. Reasonable steps
shall be taken to ensure that the Notice is not reduced in size, altered, defaced or covered with
any other material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of the Public Employment Relations Board, or the General
Counsel’s designee. MCOE shall provide reports, in writing, as directed by the General
Counsel or his designee. All reports regarding compliance with this Order shall be
concurrently served on CSEA.
Members Krantz and Paulson joined in this Decision.

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. SA-CE-2887-E, in which all parties had the
right to participate, it has been found that the Modoc County Office of Education (MCOE)
violated the Educational Employment Relations Act (EERA), Government Code section 3540
et seq., when it unilaterally reduced work hours without providing California School
Employees Association and its High Desert Chapter 531 (CSEA) notice and an opportunity to
bargain over the decision.
As a result of this conduct, we have been ordered to post this Notice and we will:
A. 	CEASE AND DESIST FROM:
1. 	Failing and refusing to meet and negotiate in good faith with CSEA over
the reduction of hours of bargaining unit employees.
2. 	Denying CSEA its right to represent employees.
3. 	Interfering with the right of bargaining unit employees to be represented
by the employee organization of their own choosing.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE EERA:
1. 	Make Marita Anderson whole for all work hours lost as a result of
MCOE’s unlawful unilateral change, with interest at the rate of 7 percent per annum.
Dated: _____________________ 	MODOC COUNTY OFFICE OF EDUCATION
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 WITH ANY OTHER
MATERIAL.