Lodi Unified School District (PERB 2723E)

CALIFORNIA SCHOOL EMPLOYEES
ASSOCIATION AND ITS CHAPTER NO. 77,
Charging Party,
v.
LODI UNIFIED SCHOOL DISTRICT,
Respondent.
Case No. SA-CE-2852-E
PERB Decision No. 2723
May 26, 2020
Appearances: Alex S. Leenson, Attorney, for California School Employees
Association and its Chapter No. 77; Kingsley Bogard by Kim Kingsley Bogard and
Ethan T. Retan, Attorneys, for Lodi Unified School District.
Before Shiners, Krantz, and Paulson, Members.
DECISION
PAULSON, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by the California School Employees
Association and its Chapter No. 77 (CSEA) to a proposed decision dismissing CSEA’s
charge and the corresponding complaint. The complaint alleged the Lodi Unified
School District (District) violated the Educational Employment Relations Act (EERA or
Act)1 by unilaterally changing policy and repudiating the parties’ collective bargaining
agreement (CBA) when it directed employees to schedule and take vacation instead of
________________________
1 EERA is codified at Government Code section 3540 et. seq. Unless otherwise
indicated, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD

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paying out vacation accruals in excess of the maximum carryover amount, and
disciplined employees who did not comply with the directive. The administrative law
judge (ALJ) dismissed the charge, finding there had been no “meeting of the minds”
regarding the relevant contract language and insufficient evidence of past practice to
support finding a unilateral change. CSEA filed timely exceptions challenging the
proposed decision’s primary legal conclusions.
After review of the proposed decision, the entire record, and relevant legal
authority in light of the parties’ submissions, we reverse the ALJ’s legal conclusions.
We find the District unilaterally deviated from clear and unambiguous contract
language, which allowed employees to cash out excess vacation leave balances
remaining at the beginning of each fiscal year and did not require employees with
excess leave balances to use vacation hours before the end of the fiscal year or be
subject to discipline. Alternatively, CSEA presented sufficient evidence to resolve in
its favor any alleged ambiguities in the contract language.
FACTUAL AND PROCEDURAL SUMMARY2
The District is a public school employer covered by EERA. CSEA is the
exclusive representative of a unit of approximately 1,400 classified employees at the
District. Two successive CBAs, covering 2010-2012 and 2013-2016 respectively, lie
at the heart of the parties’ dispute. In each of these two CBAs, Article XII included
provisions governing employees’ accrual and use of vacation.3
________________________
2 Neither party excepted to the ALJ’s factual findings or any procedural issues.
3 By the time of the hearing, the parties had executed a successor agreement
covering 2017-2020 that carried over the disputed language in Article XII without
change.

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Relevant CBA Provisions on Vacation and the Parties’ 2013-2016 Negotiations
In the 2013-2016 CBA, Article XII Vacation provides, in relevant part:
“XII. 	VACATION (Revised 2013)
“A. Eligibility
“All employees in the bargaining unit shall earn paid
vacation time under this Article. Vacation benefits are
earned on a fiscal year basis – July 1 – June 30 th.
[¶ . . . ¶]
“D. Vacation Scheduling
“Vacation shall be scheduled in advance at times requested
by employees, insofar as practicable, as determined by the
employee’s immediate supervisor and within the work
requirements of the District. If there is a conflict between
employees who are working at the same sites as to when
vacation shall be taken, the employee with the greatest
District seniority (hire date) requesting vacation shall be
given preference.
“1. Vacation shall not be scheduled during the first six (6)
months of employment; however, upon successful
completion of six months of paid service, vacation may
be scheduled including all vacation accrued during this
six (6) month period and any accrued vacation
thereafter.
“2. An employee in the bargaining unit shall be permitted to
interrupt or terminate vacation leave in order to begin
another service, provided the employee supplies notice
and supporting information regarding the basis for such
interruption or termination.
[¶ . . . ¶]

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“I. Vacation Postponement
“If a bargaining unit employee’s vacation becomes due
during a period when he/she is on leave due to illness or
injury, he/she may request:
“1. that his/her vacation date be changed. The District shall
grant such request in accordance with vacation dates
available at that time.
“2. to carry over his/her vacation to the following year.
Such request shall be made through submission (within
two (2) weeks of the employee’s return to duty) of a
written vacation plan to the employee’s supervisor for
approval.
“J. Vacation Carryover (Revised 1996-97)
“1. Full-Time Employees
“a. A full-time employee may carry over accrued vacation
from one fiscal year to the succeeding year up to a
maximum of the following:
Up to ten (10) years of service 	10 days
Ten (10) years through nineteen (19)
years of service
15 days
Twenty (20) years and over (New 1987-
88)
20 days
“b. Every July 1, vacation accrual in excess of the
maximum carry over permitted shall be paid out in the next
practicable supplemental pay period (typically September
10 th ).
“2. Part-Time Employees
“a. Carryover in Excess of the Maximum
“Effective upon ratification, vacation accrual in excess of
the maximum carry over permitted (see J.1.a.) shall be paid
out to employee.
“b. Carryover Within the Maximum

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“Employees with vacation accrual at or below the maximum
carryover permitted:
“i. Shall be permitted to schedule vacation in accordance
with Section D until such time as their vacation accrual is
depleted.
“ii. In the alternative to, or in conjunction with, 2.b(1), an
employee may submit a written request no later than
June 30 for the payment of any or all vacation accrual.
Payment, to the extent requested, shall be annualized in
the employee’s regular paychecks for the succeeding
school year.”
During negotiations for the 2013-2016 CBA, CSEA agreed to two District
proposals to change language in Article XII. First, the parties removed language that
had appeared in the Vacation Carryover provision of the 2010-2012 CBA, which was
found then at Article XII, section (I), subdivision (2) (XII.I.2).4 The excised language
provided:
“Each employee who wishes to avoid the carryover cap in
I.1 shall submit a written vacation plan (not later than
September 15) for supervisor approval which uses the
excess by the coming June 30. In the absence of an
approved plan the District will schedule sufficient vacation
for the employee to reduce him/her below the cap.”
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4 Throughout, we utilize the method of abbreviating the contract provisions
which is used in the CBA. The parties not only altered the Vacation Carryover
language but moved the entire provision from XII.I in the 2010-2012 CBA to XII.J in
the 2013-2016 CBA.

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Second, the parties added article XII.J.1.b to Vacation Carryover, which states: “Every
July 1, vacation accrual in excess of the maximum carry over permitted shall be paid
out in the next practicable supplemental pay period (typically September 10).”
During bargaining, District negotiators stated that they believed these changes
would help to streamline and automate the leave process and eliminate concerns
about unfunded liability for accrued vacation.5 CSEA did not ask detailed questions
about what the modified language would mean in practice, nor did the District offer
any such detailed explanation. CSEA agreed to the changes to Vacation Carryover in
the form proposed by the District.
The parties ratified and approved the CBA in approximately October 2013.
Initial payments to employees for vacation hours in excess of the annual cap were
made in approximately December 2013 or January 2014. On September 10, 2014,
160 bargaining unit employees were paid for a combined 5,762.78 hours, which
represented accrued vacation hours over the vacation cap as of June 30, 2014.
District Directs Employees to Schedule Vacation
In May or early June 2015, CSEA learned that District supervisors were
directing bargaining unit employees with excess vacation carryover hours to schedule
vacation to reduce those hours before July 1. At this time, Kyle Harvey (Harvey),
CSEA Labor Relations Representative, called Neil Young (Young), the District’s
________________________
5 Article XII.I.2 was negotiated in the late 1990s/early 2000s to address
vacation carryover but was never enforced. As a result, large quantities of accrued
and unused vacation created an unfunded liability for the District. Mike McKilligan,
Assistant Director of Personnel for the District, and a member of the District’s
negotiating team for the 2013-2016 CBA, testified that XII.I.2 had not been working,
which led the District to propose the changes.

7
Personnel Director for classified and certificated employees. They discussed CSEA’s
claim that the District had changed its vacation scheduling policy. Young responded
there was no change in District policy.
Discipline and the Related Grievances and Appeals
On June 2, 2015, three bargaining unit employees—Custodians Gary Canepa
(Canepa) and John Ramirez (Ramirez), and Groundskeeper Ramon Ibarra (Ibarra)—
received memos from McNair High School Principal James Davis (Davis), advising
they had vacation hours over the negotiated maximum carryover. Davis directed each
to turn in, by 9:00 a.m. on June 5, 2015, requested vacation dates between June 5
and 30, 2015, to stay at or below the cap. None of the employees wished to take
vacation, and all believed they should be paid for excess hours over the maximum
carryover based on the CBA. On June 4, 2015, Harvey sent a letter to Young,
demanding that the District cease and desist the unilateral change in vacation
scheduling. By June 5, 2015, Canepa, Ibarra, and Ramirez each submitted a
Classified Absence Request Form stating he was not requesting or planning to take
vacation time in June.
On June 9 and 10, 2015, Canepa, Ibarra, and Ramirez received letters of
reprimand from Davis for failing to schedule vacation by June 5, 2015. The
reprimands directed the employees to schedule vacation by 9:00 a.m. the next day; if
they failed to do so, the District would consider it an act of insubordination for which
discipline would be recommended. Canepa, Ibarra, and Ramirez did not comply with
the directives contained in the letters of reprimand. On June 11, 2015, each employee
was served with a Statement of Charges accusing him of insubordination and

8
willful/knowing violation of District rules, policies, or procedures for failing to schedule
vacation as directed. Each was suspended for four days and directed to take vacation
on specified dates in June.
CSEA filed two related grievances, challenging both the District’s directives to
the three employees to schedule vacations prior to June 30, 2015, and the resulting
reprimands. The grievances alleged violations of Articles XII.A, XII.D, and XII.J, as
well as the CBA article on discipline. The grievances were denied at lower levels and
ultimately consolidated for arbitration before Arbitrator Robert D. Steinberg on
November 15, 2015.
Canepa, Ibarra, and Ramirez each timely appealed their discipline as well.
Their appeals were consolidated for a formal hearing on November 2, 2015, before
Office of Administrative Hearings ALJ Karen J. Brandt.
Both Arbitrator Steinberg and ALJ Brandt found in the employees’ favor.
Steinberg found that:
“1. The District violated Article XII (Vacation) of the CBA for
certain bargaining unit members who were projected to
exceed their maximum vacation carryovers as of
June 30, 2015.
“2. The remedy hereby recommended to the District Board
is that affected employees forced to take vacation in 2015
in order to avoid vacation excess above the maximum have
that time added to their 2015-16 vacation bank, and that
they be paid off for these hours in or by September 2016 to
the extent the vacation time remains unused.”
(Footnote omitted.)
ALJ Brandt dismissed the disciplinary actions against Canepa, Ibarra, and
Ramirez, and made several factual findings. However, per the parties’ CBA, both

9
Arbitrator Steinberg’s and ALJ Brandt’s decisions were advisory and subject to review
by the District’s Board. The District’s Board rejected both decisions to the extent they
interpreted the parties’ CBA. In response to Arbitrator Steinberg’s advisory decision,
the District’s Board announced its own interpretation of the contract language on
April 19, 2016 via Board Resolution No. 2016-26:
“1. Supervisors continue to have an obligation to
1) schedule vacation in advance, 2) provide an opportunity
for employees to request times for vacation and 3) break
ties for competing vacation requests using seniority.
“2. The payout provision set forth in XII.J applies only to
employees with vacation accrual in excess of the cap on
July 1 due to circumstances outside their control (e.g.
illness or injury). See XII.I.
“4. Due to the late ratification date of the Agreement
(December 2013), Article XII could not be effectively
implemented in the 2013/2014 school year.
“i. It was not reasonable to expect employees District wide
to schedule vacation in the remaining five (5) months of the
school year; and
“ii. It would have created an undue burden on the District to
permit employees district wide to take vacation in a
condensed period.
“5. Article XII was implemented in full force and effect for
the 2014/2015 school year, only six (6) months following
ratification.”
Though it rejected ALJ Brandt’s findings which interpreted the CBA, the
District’s Board nevertheless rescinded the discipline, reimbursing Canepa, Ibarra,
and Ramirez for the days they had been suspended without pay.

10
On July 15, 2016, CSEA filed an unfair practice charge alleging the District
made an unlawful unilateral change by implementing a new vacation policy. On
March 13, 2017, CSEA filed an amended charge, which also alleged unilateral change
based on contract repudiation. On May 5, 2017, the Office of the General Counsel
issued a complaint that alleged: (1) before June 2, 2015, the District vacation accrual
policy allowed employees to accumulate a maximum number of vacation hours, cash
out excess balances remaining at the beginning of each fiscal year (July 1), and did
not require employees projected to be over the maximum carryover to use vacation
hours by the end of the fiscal year (June 30) or be subject to discipline; (2) on or about
June 2, 2015, the District changed policy by directing employees over the maximum
carryover to use vacation hours by June 30 and disciplining those who refused; (3) the
District acted without affording Charging Party CSEA prior notice and an opportunity to
negotiate the policy change and/or its effects; and (4) by these actions the District
failed and refused to bargain in good faith in violation of EERA section 3543.5,
subdivision (c), interfered with the rights of bargaining unit employees in violation of
EERA section 3543.5, subdivision (a), and denied Charging Party its right to represent
bargaining unit employees in violation of EERA section 3543.5, subdivision (b). A
July 7, 2017 informal settlement conference did not resolve the matter, and it was set
for hearing. On October 27, 2017, the District filed a motion to dismiss the complaint
for mootness, which the ALJ denied on December 26, 2017.6 A formal hearing was
________________________
6 The District asserted mootness based on rescinding the discipline for Canepa,
Ibarra, and Ramirez, and subsequently admitting that it could not use failure to
schedule vacation as a basis for disciplinary action. When the District made these
concessions, it did not reimburse employees for excess vacation they were prevented

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held on February 8, 2018, and the ALJ’s decision dismissing the complaint issued on
May 17, 2019. CSEA filed timely exceptions, and the District filed a timely response.
DISCUSSION
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, a charging party must prove: (1) the employer took action to
change policy; (2) the change in policy concerned 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; 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.) 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.)
________________________
from cashing out. The District also apparently continued requiring employees to
reduce their vacation balances below the limit by taking vacation. As part of enforcing
our remedy, along with the direction set out in footnote 11, infra, the compliance officer
will need to consider whether the District ever ceased to enforce its new interpretation
and resumed permitting employees to accumulate and cash out excess vacation
leave.

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The issues raised by CSEA’s exceptions, and the fundamental dispute between
the parties, center on the first element of the prima facie case: whether the District
took actions to change policy, either by changing the terms of the agreement or
altering its past practice regarding vacation scheduling and cash out of vacation hours
over the maximum carryover amount.7 Resolving this question requires us to interpret
the parties’ CBA.
“PERB may interpret contract language if doing so is necessary in deciding an
unfair practice charge case.” (County of Ventura (2007) PERB Decision No. 1910-M,
p. 9.) Traditional rules of contract law guide interpretation of a collective bargaining
agreement between a public employer and a recognized employee organization.
(National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th
1274, 1279; Grossmont Union High School District (1983) PERB Decision No. 313,
pp. 15-16.) “A contract must be so interpreted as to give effect to the mutual intention
of the parties as it existed at the time of contracting, so far as the same is
ascertainable and lawful.” (Civ. Code, § 1636.) “[T]he whole of a contract is to be
taken together, so as to give effect to every part, if reasonably practicable, each
clause helping to interpret the other.” (Civ. Code, § 1641.) Thus, the Board must
avoid interpreting contract language in a way which leaves a provision without effect.
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7 CSEA’s exceptions challenge four aspects of the proposed decision: (1) that
there was no “meeting of the minds” regarding the relevant contract provision; (2) that
CSEA’s interpretation of the CBA was unreasonable and unsupported by Article XII as
a whole; (3) that the ALJ misconstrued the relevant bargaining history; and (4) that the
ALJ did not properly assess the evidence of past practice. CSEA’s exceptions focus
on the parties’ agreement and related past practice, and do not raise the third
category of unilateral change (i.e., newly created policy or application or enforcement
of existing policy in a new way).

13
(State of California (Department of Corrections) (1999) PERB Decision No. 1317-S,
p. 9.)
Where contractual language is clear and unambiguous, it is unnecessary to go
beyond the plain language of the contract itself to ascertain its meaning. (Civ. Code,
§ 1638; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 9.)
Where contract terms are ambiguous, we may look to bargaining history and past
practice to discern the parties’ intent. (State of California (Department of Forestry and
Fire Protection) (2018) PERB Decision No. 2546-S, pp. 9-10.) Regarding the latter,
the parties’ past practice under the contract before the dispute arose, i.e., “[t]he
parties’ practical construction of a contract,” provides “important evidence of their
intent.”8 (Antelope Valley Community College District (2018) PERB Decision
No. 2618, p. 19 (Antelope Valley).)
I. 	The Plain Language of Article XII
Turning first to the language of the CBA, we find it to be clear and unambiguous
on its face when read as a whole. Article XII.D provides, in pertinent part: “Vacation
shall be scheduled in advance at times requested by employees, insofar as
________________________
8 Although the parties’ past practice may be used to interpret ambiguous
contract language, past practice may also be used 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”].) As noted post, we decline to consider whether the parties’ conduct here
created an enforceable past practice outside of the CBA.

14
practicable, as determined by the employee’s immediate supervisor and within the
work requirements of the District.” This language requires employees to schedule
vacation in advance, subject to the District’s work requirements as determined by the
employee’s supervisor.9 Article XII.J.1.b provides, in relevant part: “Every July 1,
vacation accrual in excess of the maximum carry over permitted shall be paid out in
the next practicable supplemental pay period (typically September 10 th ).” Thus,
vacation that exceeds the maximum carryover amount must be cashed out on an
annual basis. Read together, the plain language of Article XII.D and XII.J.1.b gives
employees the right to schedule their vacation, and to have any accrued vacation in
excess of the carryover amount cashed out at the start of the next fiscal year.
The ALJ found this plain language reading leaves Article XII.I (Vacation
Postponement) without force or effect, but we find no such challenge. Read in the
context of the entire article, XII.I creates an exception to the mandatory annual cash
out: while most employees must either use their vacation or have it cashed out at the
end of the fiscal year (in order to avoid accumulating banked vacation that creates an
unfunded liability for the District), those who are on leave due to illness or injury and
thereby prevented from taking a scheduled vacation may be allowed to carry that
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9 The District argues that Article XII.D gives supervisors the authority to
schedule vacation for employees. Unlike the District, we do not read the phrase
“[v]acation shall be scheduled” to be a grant of authority in the absence of any
indication who—the employees or the District—shall schedule the vacation. However,
to the extent this phrase could render the language of XII.D ambiguous, we find, for
reasons discussed post, that extrinsic evidence does not support the District’s
interpretation.

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vacation time over for use the following fiscal year. This reading gives effect to
sections XII.D, XII.I, and XII.J.1.b.
Accordingly, reading the CBA’s unambiguous language as a whole shows that
the District deviated from policy when it overrode these two contractual mandates:
(1) employees maintain the right to schedule their vacation, subject to work
requirements as determined by their supervisors; and (2) at the conclusion of each
fiscal year, the District must pay out accrued but unused vacation time over the
maximum carryover amount, except that employees experiencing an illness or injury
may exceed the carryover cap if their illness or injury prevented them from taking
vacation during the fiscal year.
II. 	Extrinsic Evidence on the Meaning of Article XII
As an alternative basis for our finding, even if the CBA provisions were
ambiguous, CSEA presented sufficient evidence to resolve any ambiguity in its favor.
Where contract language is susceptible to more than one interpretation, we still begin
by assessing the language in question and its overall context within the contract,
weighing which interpretation is most plausible. (Temple City Unified School District
(1989) PERB Decision No. 782, p. 8.) For the reasons discussed above, CSEA’s
interpretation is far more plausible than the District’s interpretation.
When an ambiguity exists, it is proper to rely on extrinsic evidence to help
ascertain the meaning of a written instrument. (Modesto City Schools (1983) PERB
Decision No. 347, pp. 11-12.) Here, we consider two primary categories of extrinsic
evidence: the parties’ practice under the contract language and the bargaining history,
which includes analyzing the language the parties excised from the contract.

16
First, our contract interpretation draws support from how the District dealt with
excess vacation carryover that employees held upon CBA ratification and on July 1,
2014. In approximately December 2013 or January 2014 (shortly after the parties
ratified the new CBA), and again in September 2014, the District cashed out vacation
balances over the maximum carryover amount.10 There is no evidence that, prior to
May 2015, the District ordered employees whose vacation banks exceeded the
carryover cap to schedule vacation prior to the end of the fiscal year, nor is there
evidence that the District scheduled vacation on behalf of employees. Then, in
approximately late May 2015, the District began requiring employees to draw down
their vacation banks before the end of the fiscal year to avoid a vacation cash out.
On these same facts, the ALJ found no fixed and established past practice,
relying on Desert Sands Unified School District (2010) PERB Decision No. 2092 for
the proposition that parties are bound only by past practices that are “regular and
consistent” or “historic and accepted.” (Id. at p. 25.) We need not reach the question
of whether the parties’ past practice was sufficient to meet this standard because the
inquiry is fundamentally different when the parties’ past practices are considered to
help interpret the meaning of contract language.11 (Antelope Valley, supra, PERB
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10 We find the District’s assertions that the year following ratification was an
“adjustment period” unpersuasive, particularly as it waited until the conclusion of the
2014-2015 school year to assert its alleged right to force employees to schedule
vacation.
11 To the extent CSEA’s exceptions raise past practice as an alternate theory of
unilateral change, we decline to consider that alternative basis for finding a unilateral
change, having found the past practice sufficient to aid in interpreting the contract
language. (See Los Angeles Unified School District (2015) PERB Decision No. 2432,

17
Decision No. 2618, p. 21.) In such circumstances, “the past practice is but one tool for
interpreting the contract, and therefore need not be as definitive as when it is defining
the status quo in the absence of a contract term.” (Id. at p. 22.) We find the District’s
conduct—cashing out vacation balances over the maximum carryover amount twice in
the year following ratification—indicative of the meaning of Article XII.
The District asserts that even independent of former Article XII.I.2, it has, and
has long had, the right to schedule vacation on behalf of employees. However,
neither the CBA nor the parties’ past practice supports this claim. Record evidence
shows employees have scheduled their vacation in the past, and that even when
XII.I.2 was in effect, the District did not schedule vacation on behalf of employees with
excess accrued vacation or require such employees to schedule vacation time to draw
down their leave banks. In fact, the District proposed the changed contract language
in 2013 because supervisors failed to enforce XII.I.2 for many years, leading to
employees with large vacation balances and a resulting unfunded liability for the
District.
Most importantly, the parties bargained to delete the very contract language in
the 2010-2012 CBA upon which the District could, at one time, have relied to schedule
employees’ vacation: “In the absence of an approved plan the District will schedule
sufficient vacation for the employee to reduce him/her below the cap.” This bargaining
history strongly supports CSEA’s interpretation of the CBA, viz., that employees
schedule vacation subject only to management’s right to reject a vacation request for
________________________
p. 2; Regents of the University of California (1991) PERB Decision No. 891-H, p. 4
[the Board need not address alleged errors that would not impact the outcome of the
case].)

18
work requirements, and the District may not order employees to schedule vacation
hours, or schedule vacation on their behalf, in order to avoid its contractual obligation
to cash out hours over the maximum carryover amount on an annual basis.
Further, it is undisputed that the District did not explain, and CSEA did not ask,
how the deletion of XII.I.2 and the addition of XII.J.1.b would work in practice.12 While
the ALJ therefore found that there was no “meeting of the minds,” that is not the
operative standard.
California law directs us to an alternate analysis of the parties’ conduct during
negotiations. In Merced County Sheriff’s Employees’ Association v. County of Merced
(1987) 188 Cal.App.3d 662, the court analyzed labor negotiations under traditional
common law principles and explained as follows:
“‘The manifestations of the parties are operative in
accordance with the meaning attached to the parties by one
of them if . . . that party has no reason to know of any
different meaning attached by the other, and the other has
reason to know the meaning attached by the first party.’
([cf.] Rest.2d Contracts, § 20, subd. (2)(b) [and com. d.];
see also Rest.2d Contracts, § 201, subd. (2).) [A] party
may be bound by a negligent manifestation of assent,
provided the other party is not negligent. (Id., citing Rest.2d
Contracts, § 20, com. d.)”
(Id. at p. 673.)
Applying this principle here, we find CSEA had no reason to know that, in
deleting the section which explicitly stated that supervisors could schedule vacation on
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12 For this reason, we give no weight to the parties’ varying testimony regarding
their unexpressed intent and subjective understandings of these contract provisions.
(Modoc County Office of Education (2019) PERB Decision No. 2684, p. 17;
Grossmont Union High School District, supra, PERB Decision No. 313, pp.15-16.)

19
behalf of employees, the District believed it maintained that same right elsewhere in
the CBA. It is undisputed that the District did not inform CSEA of its understanding of
how the modified article would function in practice and that CSEA did not ask
questions about the District’s vacation proposal. By the plain language, the District
appeared to replace the provisions of XII.I.2—requiring employees over the cap to
submit vacation plans and providing that supervisors may schedule vacation on behalf
of employees—with a provision to cash out balances over the cap on an annual basis.
CSEA was reasonable in its belief that the plain language spoke for itself, and the
District should reasonably have anticipated this understanding. In such
circumstances, the District negligently agreed to the terms of the agreement, but
CSEA was not equally negligent, and the District is bound by its agreement.
The plain language of the CBA and the extrinsic evidence presented support an
interpretation of Article XII that requires the District to cash out vacation hours accrued
in excess of the maximum carryover amount each year, without a right to require
employees to schedule vacation, allow the District to schedule it on their behalf, or
discipline employees for failing to comply with directives to schedule or take vacation
accruals exceeding the cap. CSEA established that the District made a change in
policy when it instead forced employees to schedule vacation, disciplined employees
who refused to do so, and announced an interpretation of Article XII contrary to the
plain meaning and established understanding of the CBA’s vacation policy.
III. 	Remaining Elements of Unilateral Change and Concurrent Violations
Having established the District changed policy, we find CSEA easily met the
other elements to establish an unlawful unilateral change. The Board has long held

20
that vacation is negotiable and squarely within the scope of representation. (See, e.g.,
Los Rios Community College District (1988) PERB Decision No. 684 p. 12, fn. 7.)
There is no dispute the District made the change without providing CSEA with notice
or an opportunity to bargain. The District’s ongoing enforcement of an interpretation
contrary to the parties’ agreement has a continuing impact on the bargaining unit.
(City of Davis (2016) PERB Decision No. 2494-M, pp. 23-34.) The District thus
violated EERA section 3543.5, subdivision (c) by unilaterally changing the vacation
policy enshrined in Article XII of the parties’ CBA. This conduct concurrently violates
subsections EERA 3543.5, subdivision (a) and EERA 3543.5, subdivision (b) because
it necessarily interferes with employees in the exercise of protected rights by denying
the statutory right of an exclusive representative to represent unit members in their
employment relations. (San Francisco Community College District (1979) PERB
Decision No. 105, pp.12-13.)
REMEDY
EERA confers on the Board broad remedial powers, including the authority to
issue cease and desist orders and to require such affirmative action as the Board
deems necessary to effectuate the policies and purposes of the Act. (EERA,
§ 3541.3, subd. (i); Mt. San Antonio Community College Dist. v. PERB (1989) 210
Cal.App.3d 178, 189.) PERB’s customary remedy for an employer’s unlawful
unilateral change in policy includes restoration of the prior status quo, including back
pay and benefits, and interest thereon for employees who have suffered loss as a
result of the unlawful conduct. (Antelope Valley, supra, PERB Decision No. 2618,
pp. 23-24; State of California (Employment Development Department) (1999) PERB

21
Decision No. 1318-S, p. 12; Corning Union High School District (1984) PERB Decision
No. 399, pp. 7-8; Regents of the University of California (1983) PERB Decision
No. 356-H, pp. 19-22.)
In addition to standard cease and desist and notice posting remedies, here we
order a return to the status quo wherein employees whose accrued but unused leave
exceeds the annual cap can cash out excess balances remaining at the beginning of
each fiscal year. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 12,
quoting Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, 823 [an
employer’s unilateral change to employment terms “makes impossible the give and
take that are the essence of labor relations.”].) We further order the District to make
whole employees who, by virtue of the District’s unilateral change in policy, have been
required to take vacation at times they would not have otherwise chosen and have
therefore been denied their right to cash out vacation time exceeding the maximum
carryover amount. To make these employees whole, the District must pay affected
employees for vacation hours they were ordered to schedule or which were scheduled
on their behalf to avoid exceeding the maximum carryover amount, plus interest.13
________________________
13 A make-whole award must be tailored “to expunge the actual consequences”
of an unfair practice, including restoration of “the economic status quo that would have
obtained but for the respondent’s wrongful act.” (City of Pasadena (2014) PERB
Order No. Ad-406-M, p. 13 (Pasadena); Ponce Construction, Inc. (2001) 333 NLRB
No. 40, p. 2.) Our remedies therefore include “measures designed to recreate the
conditions and relationships that would have been had there been no unfair labor
practice, even when doing so necessarily entails some degree of uncertainty as to the
precise relationships.” (Pasadena, supra, PERB Order No. Ad-406-M, p. 13.) An
order that may require the compliance officer to engage in some approximation is
preferable to “permitting the employer to evade liability because of uncertainty caused
by the employer’s own unlawful conduct, and thus leaving an unfair practice

22
The Board will stay its order to return to the status quo, including its
accompanying back pay order, for 90 days following the date this decision is no longer
subject to appeal. This will allow the parties to negotiate over possible alternative
remedies and any other remedial issues, including but not limited to CBA
modifications, the identity of the employees who should be made whole, and the
nature of such make-whole relief. If the parties fail to reach agreement on remedial
issues by the end of this 90-day period, the orders to return to the status quo and pay
back pay shall go into effect.14
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in this case, it has been found that the Lodi Unified School District (District)
violated the Educational Employment Relations Act (EERA) by unilaterally changing
its classified employee vacation policy in violation of Government Code section
________________________
unremedied.” (Id. at pp. 8, 13-14, & 26-27.) Reimbursement is therefore appropriate
to the extent compliance proceedings show it is more likely than not that the District’s
conduct caused it to hold monies that otherwise would have been paid out to an
employee, who was instead forced to take vacation at a time not of his or her
choosing. Such restoration of the status quo is not a windfall to employees, as taking
vacation at a time not of one’s choosing contravenes the intended use of vacation
leave and deprives employees of the cash out provision that the parties negotiated.
(See Antelope Valley, supra, PERB Decision 2618, pp. 26-27 [PERB orders make
whole relief to compensate employees for the difference between what they actually
earned and what they would have earned, but for the employer’s illegal conduct, and
such a remedy also provides a financial disincentive and deterrent against future
unlawful conduct].)
14 While 90 days should provide sufficient time to complete negotiations over
remedial issues, the parties may mutually agree to extend this period, or lacking
mutual agreement, may apply to the compliance officer to extend the stay if good
cause is shown.

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3543.5, subdivision (c). The District did so by forcing employees to use vacation leave
rather than permitting them to accrue and cash out excess vacation leave, and in
certain cases by disciplining or threatening to discipline employees who did not
comply with directives to schedule such vacation. By this conduct, the District also
interfered with employees’ rights to be represented, in violation of Government Code
section 3543.5, subdivision (a), and denied California School Employees Association
and its Chapter No. 77 (CSEA) its right to represent employees in their employment
relations with a public agency, in violation of Government Code section 3543.5,
subdivision (b). Pursuant to section 3541.3, subdivision (i) of the Government Code, it
hereby is ORDERED that the District, its governing board and its representatives
shall:
A. CEASE AND DESIST FROM:
1. Unilaterally changing vacation policy without meeting and negotiating with
CSEA.
2. Forcing employees to use vacation leave, rather than permitting them to
accrue and cash out excess vacation leave.
3. Disciplining employees who do not comply with directives to schedule
vacation.
4. Interfering with bargaining unit members’ right to participate in the activities
of an employee organization of their own choosing.
5. Denying CSEA its right to represent employees in their employment relations
with the District.

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B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. Return to the status quo ante, by allowing employees to accumulate vacation
leave over the maximum number of vacation hours per fiscal year and cash out
excess balances remaining at the beginning of each fiscal year.
2. Make whole all employees forced to take vacation in order to avoid the
contractually-mandated cash out beginning in May 2015, by paying affected
employees back pay for any vacation hours they were forced to use to stay under the
maximum carryover amount, plus interest at a rate of seven percent per annum.
3. With regard to provisions 1. and 2. above requiring the District to reinstate
the status quo ante and make the affected employees whole via back pay, this Order
shall be stayed for 90 days during which the parties may meet and confer over a
mutually acceptable alternative remedy. In the event no agreement is reached within
90 days, the stay will expire and all provisions of this Order shall take effect. The
parties may mutually agree to extend the 90-day period, or lacking mutual agreement,
may apply to the compliance officer to extend the stay if good cause is shown.
4. Within 10 workdays following the date this decision is no longer subject to
appeal, post at all work locations where notices to bargaining unit employees
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 the District,
indicating that the District will comply with the terms of this Order. Such posting shall
be maintained for a period of 30 consecutive workdays. The Notice shall also be
posted by electronic message, intranet, internet site, and other electronic means

25
customarily used by the District to communicate with its CSEA-represented
employees. Reasonable steps shall be taken to ensure that the Notice is not reduced
in size, altered, defaced, or covered with any other material.
5. 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. The District 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 Shiners and Krantz joined in this Decision.

APPENDIX A
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-2852-E, California School
Employees Association, Chapter 77 v. Lodi Unified School District, in which all parties
had the right to participate, it has been found that the Lodi Unified School District
(District) violated the Educational Employment Relations Act (EERA), Government
Code section 3540 et seq. when it unilaterally changed its classified employee
vacation policy. By this conduct the District also interfered with employees’ rights to
be represented, in violation of Government Code section 3543.5, subdivision (a), and
denied California School Employees Association and its Chapter No. 77 (CSEA) its
right to represent employees in their employment relations with a public agency, in
violation of Government Code section 3543.5, subdivision (b).
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 vacation policy without meeting and
negotiating with CSEA.
2. 	Forcing employees to use vacation leave, rather than permitting
them to accrue and cash out excess vacation leave.
3. 	Disciplining employees who do not comply with directives to
schedule vacation.
4. 	Interfering with bargaining unit members’ right to participate in the
activities of an employee organization of their own choosing.
5. 	Denying CSEA its right to represent employees in their
employment relations with the District.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF EERA:
1. 	Return to the status quo ante, by allowing employees to
accumulate vacation leave over the maximum number of vacation hours per fiscal
year and cash out excess balances remaining at the beginning of each fiscal year.

2
2. 	Make whole all employees forced to take vacation in order to
avoid the contractually-mandated cash out beginning in May 2015, by paying affected
employees back pay for any vacation hours they were forced to use to stay under the
maximum carryover amount, plus interest at a rate of seven percent per annum.
3. 	The order to return to the status quo and make employees whole
shall be stayed for 90 days to provide the parties an opportunity to meet and negotiate
over a mutually acceptable remedy. If the parties cannot reach an agreement within
90 days, this order shall take effect.
Dated: _____________________ 	LODI UNIFIED SCHOOL DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.