Antelope Valley Community College District (PERB 2854E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COLLEGE
FEDERATION OF TEACHERS,
Charging Party,
v.
ANTELOPE VALLEY COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. LA-CE-6549-E
PERB Decision No. 2854
February 23, 2023
Appearances: Bush Gottlieb by Lisa C. Demidovich and Dexter Rappleye, Attorneys,
for Antelope Valley College Federation of Teachers; Atkinson, Andelson, Loya, Rudd
& Romo by John M. Rajcic, Barbara J. Ginsberg, and Leslie J. Kim, Attorneys, for
Antelope Valley Community College District.
Before Shiners, Krantz, and Paulson, Members.
DECISION
SHINERS, Member: This case is before the Public Employment Relations
Board (PERB or Board) on exceptions by Antelope Valley Community College District
to the attached proposed decision of an administrative law judge (ALJ). The complaint
issued by PERB’s Office of the General Counsel (OGC) alleged that the District
violated the Educational Employment Relations Act (EERA) by: (1) unilaterally
implementing a restructured calendar for the 2020-2021 school year; (2) bypassing,
undermining, and derogating the authority of the Antelope Valley College Federation
of Teachers (Faculty Union); (3) refusing the Faculty Union’s request to bargain over
plans to restructure the calendar; and (4) engaging in an overall course of bad faith

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bargaining regarding the calendar changes.1 Following an evidentiary hearing and
briefing by the parties, the ALJ found in the Faculty Union’s favor on the unilateral
change and bypass allegations, and dismissed the remaining allegations. The District
excepted to the ALJ’s finding of a unilateral change violation but not to the finding of a
bypass violation. The Faculty Union filed a response to the District’s exceptions but no
exceptions of its own.
Based on our review of the proposed decision, the entire record, and the
parties’ arguments in light of applicable law, we find the proposed decision’s factual
findings are supported by the record and its legal conclusions on the unilateral change
issue are well-reasoned and in accordance with applicable law. We therefore adopt
the proposed decision (except for sections 1.b, 1.c, and 2) as the decision of the
Board itself, as supplemented by our discussion below.2
DISCUSSION
When resolving exceptions to a proposed decision, the Board applies a de novo
standard of review. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6.)
1 EERA is codified at Government Code section 3540 et seq. All further
undesignated statutory references are to the Government Code.
2 Because neither party filed exceptions related to the ALJ’s finding of a bypass
violation or dismissal of the complaint’s claims for outright refusal to bargain and
overall bad faith bargaining, those findings are not before us on appeal. (County of
Santa Clara (2018) PERB Decision No. 2613-M, p. 2, fn. 2; PERB Reg. 32300,
subd. (e). PERB Regulations are codified at Cal. Code. Regs, tit. 8, § 31001 et. seq.)
We accordingly express no opinion about those conclusions, which are final and
binding on the parties but are otherwise nonprecedential. (County of Orange (2018)
PERB Decision No. 2611-M, p. 2, fn. 2.) We will incorporate the ALJ’s proposed
remedy for the bypass violation into our final order.

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However, to the extent a proposed decision has adequately addressed issues raised
by certain exceptions, the Board need not further analyze those exceptions. (Ibid.) The
Board also need not address alleged errors that would not affect the outcome. (City of
San Ramon (2018) PERB Decision No. 2571-M, p. 5.) Here, the proposed decision
adequately addressed each of the arguments raised by the District in its exceptions,
but we supplement the ALJ’s analysis on both liability and remedy to clarify the
parties’ obligations.
EERA requires employers to meet and negotiate in good faith with recognized
employee organizations regarding “matters relating to wages, hours of employment,
and other terms and conditions of employment.” (EERA, §§ 3543.2, subd. (a)(1);
3543.5, subd. (c).) EERA also provides that “matters not specifically enumerated are
reserved to the public school employer.” (§ 3543.2, subd. (a)(4).) The California
Supreme Court, noting that these provisions are in tension with one another, and that
the Legislature authorized PERB to apply its expertise to make close calls on matters
that “relate to” employment terms and conditions, has endorsed PERB’s three-part
test for distinguishing between mandatory and non-mandatory bargaining subjects.
(San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d
850, 857-860.) Pursuant to that test, which the Board adopted in Anaheim Union High
School District (1981) PERB Decision No. 177 (Anaheim), an employer must bargain
over a decision if: “(1) it is logically and reasonably related to hours, wages or an
enumerated term and condition of employment, (2) the subject is of such concern to
both management and employees that conflict is likely to occur and the mediatory
influence of collective negotiations is the appropriate means of resolving the conflict,

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and (3) the employer’s obligation to negotiate would not significantly abridge [its]
freedom to exercise those managerial prerogatives (including matters of fundamental
policy) essential to the achievement of [its] mission.” (San Bernardino Community
College District (2018) PERB Decision No. 2599, p. 8, quoting Anaheim, supra, PERB
Decision No. 177, pp. 4-5.)
While instructors’ work calendar would ideally match students’ academic
calendar, in reality that is not always true. (Palos Verdes Peninsula Unified School
District/Pleasant Valley School District (1979) PERB Decision No. 96, pp. 31-32
(Palos Verdes).) Accordingly, PERB precedent applying the Anaheim test
distinguishes between a calendar setting employee workdays and a calendar setting
student instructional days, requiring bargaining over the former but not the latter.
(Pittsburg Unified School District (2022) PERB Decision No. 2833, p. 10; Pasadena
Area Community College District (2015) PERB Decision No. 2444, pp. 13-15;
Jefferson School District (1980) PERB Decision No. 133, pp. 40-41; Palos Verdes,
supra, PERB Decision No. 96, pp. 31-35.)
A calendar setting instructors’ workdays during the school year must be
negotiated because the term “hours” encompasses not only work schedules and
workdays, but also the distribution of workdays in a year. (Palos Verdes, supra, PERB
Decision No. 96, pp. 31-35.) In contrast, a calendar that only sets instructional days for
students falls outside the scope of representation. (Compton Community College
District (1990) PERB Decision No. 790, adopting proposed decision at pp. 21-22; San
Jose Community College District (1982) PERB Decision No. 240, pp. 7-9.) The
decision whether to offer certain courses beyond the state’s minimum instructional

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requirements is also outside the scope of representation. (Mt. San Antonio Community
College District (1983) PERB Decision No. 297, adopting proposed decision at
pp. 45-46 (Mt. San Antonio); see Ed. Code, § 70901, subd. (b)(1); Cal. Code Regs.,
tit. 5, § 55701.) An employer therefore may unilaterally decide to reduce, expand, or
cancel classes held outside the regular school year, subject to a duty to bargain the
effects of such a decision. (Mt. San Antonio, supra, PERB Decision No. 297, p. 3, fn. 1
& adopting proposed decision at p. 45.)
The District characterizes its actions here as merely canceling the
non-mandatory Winter Intersession and expanding the non-mandatory Summer
Session, and thus asserts no decision bargaining obligation arose. It is without dispute
that the District is under no obligation to offer Winter or Summer sessions, and that it
may unilaterally cease offering them at its election. However, when an employer elects
to move courses from one non-mandatory session to another non-mandatory session
and in doing so alters distribution of workdays, holidays, and workload as it did here, it
must provide affected employees’ exclusive representative adequate notice and an
opportunity to bargain over both the decision and its effects. (Pasadena Area
Community College District, supra, PERB Decision No. 2444, pp. 14-15 [distribution of
workdays]; Palos Verdes, supra, PERB Decision No. 96, p. 34 [holidays]; County of
Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11
[workload].) Because the District did not do so here and did not establish that it was
excused from negotiating these changes, we affirm the ALJ’s finding of a unilateral
change violation.

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REMEDY
EERA grants PERB broad remedial powers, including the authority to issue
cease-and-desist orders and to require such affirmative action as PERB deems
necessary to effectuate the policies and purposes of the Act. (EERA, § 3541.5,
subd. (c).) A “properly designed remedial order seeks a restoration of the situation as
nearly as possible to that which would have obtained but for the unfair labor practice.”
(Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) PERB’s standard
remedy for an employer’s unlawful unilateral change is an order to cease and desist the
unlawful conduct, post a notice of the violation, restore the status quo ante, make
affected employees whole for any losses, and bargain with the union upon request.
(Pasadena Area Community College District, supra, PERB Decision No. 2444,
pp. 23-24.)
In cases where an employer fails to fulfill its bargaining obligation before
altering instructors’ work calendar as part of adjusting the student academic calendar,
PERB has delayed its requirement to restore the status quo when necessary to
prevent unwarranted disruption or interference with student instruction or district
operations. (Pasadena Area Community College District, supra, PERB Decision
No. 2444, p. 23.) We find such a delay appropriate here, though the parties may
modify the rescission date by mutual agreement. The record shows that the District
adopted the calendar changes on December 9, 2019, in order to implement them for the
2020-2021 academic year. A similar timeline will be ordered for rescinding those
changes. Thus, absent mutual agreement, the District must rescind the unilaterally
adopted changes to the calendar at the beginning of the next successive academic year

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following the date this decision is no longer subject to appeal. If that date falls after
December 9 of an academic year, rescission must occur at the beginning of the second
successive academic year after that date.
It is also appropriate to order the District to make employees whole for any
losses suffered as a result of the District’s failure to meet and negotiate in good faith
over the calendar changes. Although the Faculty Union presented no evidence that
any employee suffered a loss as a result of the calendar changes, an unfair practice
finding creates a presumption that employees suffered some loss as a result of the
employer’s unlawful conduct. (Bellflower Unified School District (2019) PERB Order
No. Ad-475, p. 10; Desert Sands Unified School District (2010) PERB Decision
No. 2092, pp. 31-32.) Consistent with the presumption, the Faculty Union will have the
opportunity to establish in compliance proceedings that any employees they represent
suffered a loss of compensation or benefits as a result of the changes to the
2020-2021 calendar and its continuation in subsequent academic years.
In accord with our standard unilateral change remedy, it also is appropriate to
order the District to cease and desist from the unlawful conduct found in this decision,
to meet and negotiate with the Faculty Union upon request over changes to
instructors’ work calendar, and to post physical and electronic notices of its violation.
(City of Sacramento (2013) PERB Decision No. 2351-M, pp. 43-45.)
ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, the Public Employment Relations Board (PERB) finds that
Antelope Valley Community College District violated the Educational Employment

8
Relations Act (EERA), Government Code section 3540 et seq., by unilaterally
changing instructors’ work calendar and dealing directly with faculty bargaining unit
employees regarding the calendar changes, thereby bypassing their exclusive
representative, Antelope Valley College Federation of Teachers (Faculty Union).
Pursuant to EERA section 3541.3, subdivisions (i) and (n), and section 3541.5,
subdivision (c), it hereby is ORDERED that the District, its governing board and its
representatives shall:
A. 	CEASE AND DESIST FROM:
1. 	Unilaterally changing instructors’ work calendar in a manner that
alters employee hours and other working conditions, without providing the Faculty
Union adequate notice and an opportunity to negotiate over the decision.
2. 	Bypassing the Faculty Union and dealing directly with represented
employees about changes to instructors’ work calendar that alter their hours,
workload, and other working conditions.
3. 	Interfering with employees’ right to be represented by the Faculty
Union.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Within 30 days after this decision is no longer subject to appeal,
rescind the unilaterally adopted changes to instructors’ work calendar before the
beginning of the next successive academic year, and restore instructors’ work
calendar to the one that existed before the 2020-2021 academic year. If this decision
becomes no longer subject to appeal after December 9 of an academic year,
rescission shall occur at the beginning of the second successive academic year

9
following that date. The parties may modify the rescission date by mutual agreement.
2. 	Upon demand by the Faculty Union, meet and negotiate in good
faith over changes to instructors’ work calendar.
3. 	Make affected employees whole for any losses suffered as a
result of the unlawful unilateral changes to instructors’ work calendar, including
interest at the rate of 7 percent per annum.
4. 	Within 10 workdays following the date this decision is no longer
subject to appeal, post at all work locations where notices to Faculty Union-
represented employees are posted, copies of the Notice attached hereto as an
Appendix. An authorized agent of the District must sign the Notice, indicating that the
District will comply with the terms of this Order. The District shall maintain the posting
for a period of 30 consecutive workdays and shall also distribute it by electronic
message, intranet, internet site, and other electronic means the District uses to
communicate with employees in the Faculty Union. The District shall take reasonable
steps to ensure that the Notice is not reduced in size, altered, defaced, or covered
with any other material.3
3 In light of the ongoing COVID-19 pandemic, Respondent shall notify PERB’s
Office of the General Counsel (OGC) in writing if, due to an extraordinary
circumstance such as an emergency declaration or shelter-in-place order, a majority
of employees at one or more work locations are not physically reporting to their work
location as of the time the physical posting would otherwise commence. If Respondent
so notifies OGC, or if Charging Party requests in writing that OGC alter or extend the
posting period, require additional notice methods, or otherwise adjust the manner in
which employees receive notice, OGC shall investigate and solicit input from all
parties. OGC shall provide amended instructions to the extent appropriate to ensure
adequate publication of the Notice, such as directing Respondent to commence
posting within 10 workdays after a majority of employees have resumed physically
reporting on a regular basis; directing Respondent to mail the Notice to all employees

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5. 	Provide PERB’s General Counsel, or the General Counsel’s
designee, with written notification of all actions taken to comply with this Order, as well
as any such further reports as the General Counsel or designee may direct; and
concurrently serve the Faculty Union with all such notifications and reports.
Members Krantz and Paulson joined in this Decision.
who are not regularly reporting to any work location due to the extraordinary
circumstance, including those who are on a short term or indefinite furlough, are on
layoff subject to recall, or are working from home; or directing Respondent to mail the
Notice to employees with whom it does not communicate through electronic means.

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-6549-E, Antelope Valley
College Federation of Teachers v. Antelope Valley Community College District, in
which all parties had the right to participate, the Public Employment Relations Board
found that Antelope Valley Community College District (District) violated the
Educational Employment Relations Act (EERA), Government Code section 3540 et
seq., by unilaterally changing instructors’ work calendar and dealing directly with
faculty bargaining unit employees regarding the calendar changes, thereby bypassing
their exclusive representative, Antelope Valley College Federation of Teachers
(Faculty Union).
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 instructors’ work calendar in a manner that
alters employee hours and other working conditions, without providing the Faculty
Union adequate notice and an opportunity to negotiate over the decision.
2. 	Bypassing the Faculty Union and dealing directly with represented
employees about changes to instructors’ work calendar that alter their hours,
workload, and other working conditions.
3. 	Interfering with employees’ right to be represented by the Faculty
Union.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS TO EFFECTUATE
THE POLICIES OF EERA:
1. 	Within 30 days after this decision is no longer subject to appeal,
rescind the unilaterally adopted changes to instructors’ work calendar before the
beginning of the next successive academic year, and restore the instructors’ work
calendar to the one that existed before the 2020-2021 academic year. If this decision
becomes no longer subject to appeal after December 9 of an academic year,
rescission shall occur at the beginning of the second successive academic year
following the date this decision is no longer subject to appeal. The parties may modify
the rescission date by mutual agreement.
2. 	Upon demand by the Faculty Union, meet and negotiate in good
faith over changes to instructors’ work calendar.

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3. 	Make affected employees whole for any losses suffered as a
result of the unlawful unilateral changes to instructors’ work calendar, including
interest at the rate of 7 percent per annum.
Dated: _____________________ 	ANTELOPE VALLEY COMMUNITY
COLLEGE DISTRICT
By: _________________________________
Authorized Agent
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST 30
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITH ANY OTHER
MATERIAL.

STATE OF CALIFORNIA
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COLLEGE
FEDERATION OF TEACHERS,
Charging Party,
v.
ANTELOPE VALLEY COMMUNITY
COLLEGE DISTRICT,
Respondent.
UNFAIR PRACTICE
CASE NO. LA-CE-6549-E
PROPOSED DECISION
September 13, 2022
Appearances: Bush Gottlieb, by Lisa C. Demidovich and Dexter Rappleye, Attorneys,
for Antelope Valley College Federation of Teachers; Atkinson, Andelson, Loya, Ruud
& Romo, by John C. Rajcic and Barbara J. Ginsberg, Attorneys, for Antelope Valley
Community College District.
Before Valerie Racho, Administrative Law Judge.
INTRODUCTION
An exclusive representative alleges in this case numerous violations of the duty
to bargain in good faith arising out of a public school employer’s decision to cancel its
winter intersession. The employer denies any violations.
PROCEDURAL HISTORY
On February 13, 2020, the Antelope Valley College Federation of Teachers
(AVCFT or Faculty Union) filed an unfair practice charge (UPC) with the Public
Employment Relations Board (PERB or Board) alleging that the Antelope Valley
Community College District (District), had violated the Educational Employment
Relations Act (EERA),1 section 3543.5, subdivisions (a), (b), and (c). The Faculty
1 EERA is codified at Government Code section 3540 et seq.

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Union accused the District of multiple violations of the duty to bargain in good faith
arising from the District’s decision to restructure its academic calendar and eliminate
its Winter Intersession. On April 20, 2020, the District filed its position statement in
response to the Faculty Union’s charge.
On July 13, 2021, the PERB Office of the General Counsel dismissed a claim
that the District had violated EERA by refusing to supply the Faculty Union with
requested information.2 On the same day, the General Counsel’s Office issued a
complaint alleging that the District had: (1) unilaterally changed negotiable matters by
significantly restructuring its academic calendar, including eliminating its Intersession;
(2) bypassing, derogating, or undermining the authority of the Faculty Union by e-
mailing the President of the Academic Senate about plans to change the academic
calendar; (3) refusing the Faculty Union negotiating team’s request to bargain over
plans to restructure the academic calendar; and (4) engaging in an overall course of
bad faith bargaining concerning the above changes to the academic calendar. These
claims are alleged to violate EERA section 3543.5, subdivision (c), with derivative
violations under subdivisions (a) and (b).
On August 2, 2021, the District filed an answer to the PERB complaint denying
all but the jurisdictional allegations. The answer also asserted 25 affirmative
defenses, including waiver and business necessity.
On August 10, 2021, the parties participated in an informal settlement
2 The Faculty Union did not appeal the partial dismissal, pursuant to PERB
Regulation 32635. PERB Regulations are codified at California Code of Regulations,
title 8, section 31001 et seq.

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conference with a Board agent, but the matter was not resolved and was thereafter
assigned to PERB’s administrative law division for formal hearing.
The District amended its answer on September 29, 2021 by correcting errors in
two of its affirmative defenses and asserting five additional affirmative defenses.
Four days of hearing were held between December 8, 2021 and
February 3, 2022. On the first day of hearing, the District moved to amend its answer
a second time to include a statute of limitations defense. The motion was granted
over the Faculty Union’s objection.
The parties submitted closing arguments in the form of opening and reply
briefs. On April 7, 2022, with the filing of the final briefs, the matter was considered
submitted for decision.
FINDINGS OF FACT
The Parties and Their Witnesses
1. PERB’s Jurisdiction
The District admits that it is a public school employer within the meaning of
EERA section 3540.1, subdivision (k), and that the Faculty Union is an exclusive
representative within the meaning of subdivision (e). The bargaining unit consists of
the District’s full-time and adjunct faculty. The parties are therefore within PERB’s
jurisdiction.
2. The Faculty Union’s Witnesses
Four witnesses testified in the Faculty Union’s case-in-chief. Heidi Preschler
was a faculty member at the District from 1998 to 2016. She was chief negotiator for
the Union from 1993 until 2010 and was also a prior Faculty Union President. She

4
testified about the genesis of certain provisions in the parties’ Collective Bargaining
Agreement (CBA), as well as the Faculty Union’s past application of those terms. Dr.
Scott Lee is a Librarian faculty member and was Union President from 2016 to spring
2020. He testified about his role on the District’s Calendar Committee and his
discussions with District Superintendent/President Ed Knudson and other
administrators about the calendar changes at issue in this case. Aurora Burd is a
faculty member at the District and is the current Faculty Union President. She served
on the Faculty Union’s negotiating team from 2014 to 2020. She testified about her
time on the negotiating team. Pamela Ford is a Program Coordinator for the District
and is the President of the Antelope Valley College Federation of Classified
Employees (AVCFCE or Classified Union), which is the exclusive representative of the
District’s classified bargaining unit. She testified about her experience discussing the
calendar changes at issue in the Calendar Committee as well as her correspondence
with Knudson and other District administrators about the changes.
3. The District’s Witnesses
The District called two witnesses. Barbara Ginsberg is an attorney in private
practice and testified about her experience as the District’s chief negotiator for the
parties’ 2018-2021 Collective Bargaining Agreement (CBA). Knudson testified about
the purpose behind the calendar change and about his communications with Lee and
Ford about the calendar changes.
The Academic Year and Calendar
The District’s academic year refers to its annual schedule of offered classes
and other educational programs at the Antelope Valley College. For several years

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before the 2020-2021 academic year, the academic year consisted of a Fall and
Spring semester, a 6-week Intersession between the Fall and Spring semesters, and
an 8-week Summer session between the Spring and Fall semester. Lee provided
unrebutted testimony that the academic calendar consistently included an Intersession
every year since he started working at the District in 2001, except for the 2005-2006
academic year.
Starting in or around 2003, the District moved from an academic calendar
consisting of 17-week semesters to a “condensed calendar” consisting of 16-week
semesters. This resulted in multiple changes to terms and conditions of employment
for the faculty unit, including a change to the number of workdays per week, the length
of standard class times, and the number of weekly instructional minutes classroom
faculty were expected to spend meeting with students.
The Collective Bargaining Agreement
The parties have negotiated a CBA covering terms and conditions of
employment for faculty bargaining unit members. The parties introduced parts of the
2018-2021 CBA, even though agreement was not reached on that contract until
December 10, 2019. This post-dates most of the alleged misconduct in the complaint.
Neither party appears to dispute that the prior CBA remained in effect until the 2018-
2021 agreement was ratified. Reference to specific CBA provisions in this section of
the proposed decision is from the 2018-2021 CBA, but it is undisputed that those
sections were not changed from the prior CBA.
Article X is titled “Faculty Assignments.” Article X, Section 1.1 specifies that the
standard teaching load for full-time classroom faculty is 30 lecture hour equivalents

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(LHEs) each academic year. Under Section 13.4, classroom faculty may teach
beyond their assignments for up to 10 LHE of overload, pay. Adjunct faculty may be
assigned up to 10 LHE for the Summer session and up to 8 LHE for the Intersession.
Article X, Section 12, is titled “Calendar.” Sections 12.1 and 12.2 were added
to the CBA after the transition to the condensed calendar. Section 12.1 states in full:
“All issues related to the calendar (starting and ending
dates of the semester, summer session and intersession;
starting and ending class times; holidays; flex days;
orientation; parts of term; days counted as instructional
days) shall be referred to the Calendar Committee, a
campus-wide standing committee. The committee will have
co-chairs consisting of the vice president of student
services and either the AVCFT or AVCFCE representative
in alternate years. Each year, the committee shall
recommend a calendar to the presidents of the District,
AVCFT and AVCFCE for final approval through a
memorandum of understanding in time to meet the
College’s scheduling timelines.”
Section 12.2, titled “Law of Unintended Consequences” states in full:
“Though we have tried to anticipate all of the contractual
ramifications of the move from a 17-week calendar to a 16-
week calendar, there will likely be some problems and
issues arising from this shift that we have not yet foreseen.
In recognition of this fact, the Union and the District agree
to work together to solve all contractual problems
connected with the calendar in an amicable way, as quickly
and efficiently as possible, even if this supersedes the
usual negotiations process of full negotiations and re-
openers. This does not preclude the possibility of
negotiating any contract items.”
(Emphasis in original.)

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Preschler testified that Sections 12.1 and 12.2 were first incorporated into the
2003-2005 MOU in response to complications that arose during the transition to the
condensed calendar. Both sections have remained in the CBA ever since.
Although the above language from Section 12.1 references a process for
developing the calendar, there is no evidence that the 2018-2021 CBA defines the
substantive terms of the District’s academic calendar in any given year. Nor was there
evidence that the CBA contains a provision that limits the parties’ ability to request
negotiations over matters not addressed in the CBA. There was also no evidence that
the CBA contains a “management rights clause,” or other provision authorizing the
District to act unilaterally on matters that would otherwise be subject to negotiations.
The District’s Participatory Governance Entities
The District’s overall operations are governed by a Board of Trustees
(Governing Board). The Superintendent/President acts as the chief executive of the
District and is responsible for all day-to-day operations. Under Education Code
section 70902, subdivision (b)(7), the Governing Board must establish procedures:
“to ensure faculty, staff, and students the opportunity to
express their opinions at the campus level, to ensure that
these opinions are given every reasonable consideration, to
ensure the right to participate effectively in district and
college governance, and to ensure the right of academic
senates to assume primary responsibility for making
recommendations in the areas of curriculum and academic
standards.”
To that end, the District has adopted certain Board Policies (BPs) and
Administrative Procedures (APs) covering participatory governance matters. BPs are
adopted by the Governing Board and prescribe or delegate activity to different

8
participatory governance groups. APs, which are not formally adopted by the
Governing Board, provide the means to administer BPs.
BP 4010 is titled “Calendar” and states:
“Before presentation to the Board for approval, any major
calendar changes that may have financial impact to the
district or may affect student access and/or student learning
must be fully explored, discussed campuswide, and
presented in writing to the Superintendent/President.
“After said presentation to the Superintendent/President
and after reaching agreement with the Antelope Valley
College Federation of Teachers (AVCFT) and Antelope
Valley College Federation of Classified Employees
(AVCFCE) and after consulting with other appropriate
groups, the college Superintendent/President shall
recommend a calendar to the Board of Trustees for its
approval.”
BP 4010 was adopted by the Governing Board on June 11, 2007, and revised on
October 9, 2017. Accompanying BP 4010 is AP 4010. Although the text of AP 4010
was not introduced into the record, as noted below, other evidence suggests that its
terms are similar to those in CBA, Article X, Section 12.1.
AP 2510, titled “Participation in Local Decision-Making,” is designed to establish
procedures for the District’s various participatory governance committees. At issue in
this case are the Academic Sente and the Calendar Committee.
1. The Academic Senate
AP 2510 defines the Academic Senate as an organization representing faculty
“whose primary function is to consult collegially with the governing board of a district
and/or administration of a college as their representative on academic and
professional matters.” At the times relevant to this case, faculty member Van Rider

9
has been the President of the Academic Senate. The Senate’s membership consists
exclusively of faculty members.
AP 2510 also defines the District’s process for addressing recommendations
from the Academic Senate on academic and professional matters. The District may
accept the Academic Senate’s recommendation on an academic and professional
matter and present it to the Governing Board, or it may explain in writing why it cannot
accept the recommendation. For matters that require the Academic Senate’s
agreement, a “Mutual Agreement Council,” consisting of executives from the Senate
and the District’s administration, must deliberate until reaching agreement.
Appendix II of AP 2510 defines “academic and professional matters” in
juxtaposition to “collective bargaining” matters. Academic and professional matters
include curriculum, degree and certificate requirements, grading policies, educational
program development, standards or policies for student preparation and success,
district and college governance structures, faculty roles in accreditation, policies for
professional development activities, sabbaticals, processes for program review, and
processes for planning and budgets. In contrast, the list of collective bargaining
subjects include several terms and conditions of employment, including leaves,
vacations, holidays, workload, work hours, work days, and committees that deal with
the academic year.
2. The Calendar Committee
The Calendar Committee is one of eight college-wide participatory governance
committees. Its membership includes representatives from faculty, classified staff,
administrators, and students. A representative from the Academic Senate may also

10
participate. The District’s Vice President of Student Service serves as one of two co-
chairs of the committee. A representative from the Faculty or the Classified Union
serves as the other co-chair, on alternating years. Lee described the Calendar
Committee as “a participatory governance committee that looks at the academic and
other calendars on campus and makes recommendations to the President of the
College, the President of the faculty union, and the President of the classified union for
approved calendars.”
In the past, the Calendar Committee primarily addressed the start and end
dates of each term in the academic calendar and the dates to observe the various
paid holidays throughout the academic year. Once the Calendar Committee has
settled on an academic calendar, the co-chairs send the committee’s recommendation
to the Superintendent/President, the President of the Faculty Union, and the President
of the Classified Union. Pursuant to Article X, Section 12.1 of the CBA between the
Faculty Union and the District, the three presidents signify their approval of the
committee’s recommended calendar by signing a memorandum of understanding
(MOU).3 Neither party presented evidence on whether the Faculty Union ever
requested negotiations before the Faculty Union President agreed to sign the MOU.
Historically, the approved academic calendar is then presented to the District’s
Governing Board for final adoption and implementation.
3 The Classified Union CBA does not contain any provisions similar to Article X,
Section 12.1.

11
The District’s Proposal to Eliminate the Intersession
On October 17, 2017, Knudson sent a letter to various District organizations,
including the Faculty and the Classified Unions and the Academic Senate, with the
subject line “Proposal for Change to the Academic Calendar.” In the letter, Knudson
asserted that changes to the calendar were needed to increase access to its college
program by increasing scheduling flexibility for the greatest number of students. He
further asserted that the Intersession provided only limited ability to increase
enrollment and that enrollment in the Summer session was growing. Knudson
proposed an academic calendar with a 16-week Fall semester running from the third
week of August through the second week of December, a 16-week Spring semester
starting in the first week of January after the New Year holiday through the first week
of May, a 12-week Summer session (consisting of two 6-week terms) from the second
week of May through the first week of August, and no Intersession. Under the
proposal, the time between the Fall and the Spring semesters would be reduced to
three weeks and the time between the Spring semester and the Fall semester of the
following academic year would be increased to 14-15 weeks. According to Knudson,
the proposed changes would increase student enrollment and facilitate students
completing the College program.
On November 9, 2017, Knudson hosted a town hall meeting for all District
stakeholders to discuss the proposed calendar change. During the meeting, Knudson
reiterated several of the points raised in his October 17, 2017 letter.
An attendee asked Knudson when a decision would be made on the proposed
change. Knudson replied:

12
“The proposal that was made to the calendar committee, I
would have to refer to the calendar committee for the
timeline that they may have established at this point. We
are using this information that we gathered here today [sic]
will be forwarded to the calendar committee as on the side
we have been recording this, the screening didn’t work
today but it has been reported. It will be posted up on
youtube as soon as they can get it processed. It will be on
the college youtube channel so you can, your friends and
neighbors can watch it. So it has to be left to the calendar
committee at this point for their process and going through
it. Both collective bargaining units have to get involved, it
has to be an agreement with an MOU then it comes forward
to my office and then to the Board.”
Knudson also said that the earliest possible time the change could take effect would
be for the January 2020 Intersession, but that the matter still required discussions in
the Calendar Committee and that he was not suggesting a particular implementation
date.
Another attendee asked what effect the proposed change would have on the
number of LHEs the District offered each academic year. Knudson responded that he
expected LHEs to increase by between 200 to 400, due to the greater flexibility of
offering classes in the two 6-week Summer sessions or over a single 12-week
Summer session. He opined that eliminating the Intersession and expanding the
Summer session would also increase the number of available faculty unit member
teaching opportunities.
On November 6, 2017, the Calendar Committee met. Vice President of Student
Services Erin Vines and Lee served as committee co-chairs at the time. Ford also
attended, as did Rider. The minutes from the meeting reflect that Knudson attended
to discuss his proposal to eliminate Intersession and expand the Summer session.

13
The agenda for the meeting included a copy of Knudson’s October 17, 2017 letter.
However, the Committee took no action in 2017 to vote or approve any calendar that
did not include an Intersession. There is also no evidence that the Calendar
Committee considered a calendar that eliminated Intersession anytime in 2018.
The March and April 2019 Calendar Committee Meetings
The Calendar Committee met again on March 14, 2019. Vines and Scott Tuss,
Vice President of the Classified Union, co-chaired the committee. Lee and Rider also
attended. The Committee discussed, at length, the proposal to eliminate Intersession
from the academic calendar. At the end of the meeting, a majority of the Committee
voted to eliminate the Intersession from the academic calendar by a margin of 8-4. All
four faculty members in attendance, including Lee and Rider, voted against the
change. Two faculty Committee members were absent. Other calendar proposals
that incorporated the elimination of the Intersession were also considered, but none of
those proposals received a majority vote from the Committee. The Committee did not
agree upon a specific implementation date.
The Calendar Committee met again on April 22, 2019. The Committee
discussed different calendar proposals that incorporated the previously approved plan
to eliminate the Intersession. The Committee voted 9 to 0 in favor of adopting a
calendar with two 16-week semesters, a 12-week Summer session, and no
Intersession. The four faculty members who voted against eliminating the
Intersession in the previous meeting abstained from voting. One of the two faculty
members who was absent from the March 14, 2019 meeting voted in favor of the new
calendar format. The other absent faculty member was also absent for the

14
April 22, 2019 meeting. The minutes of that meeting do not reflect a specific
implementation date, but the Committee did review a draft of the 2020-2021 academic
calendar that incorporated all of the calendar changes.
On May 3, 2019, Vines e-mailed Knudson, Lee, and Ford, attaching a memo
dated April 29, 2019. The memo outlined the changes approved by the Calendar
Committee’s vote on April 22, 2019 (i.e., two 16-week semesters, a 12-week Summer
session, and no Intersession). The memo was signed by Vines and Tuss, as co-
chairs.
The District Requests That the Faculty Union Sign the MOU
On May 7, 2019, then-Vice President of Human Resources Mark Bryant, e-
mailed Lee and Knudson a draft MOU, pursuant to CBA Article X, Section 12.1. The
draft MOU described the calendar changes voted-upon by the Calendar Committee in
March and April 2019, and had spaces for both Knudson and Lee to sign, signifying
their approval.
Lee responded later that day, as follows: “As per Board Policy 4010 which
requires ‘reaching agreement’ with both Unions, this is a negotiated item that will
affect multiple sections of the faculty CBA. I will need to consult with my negotiations
team on their availability.” Lee copied Knudson in his response.
Knudson responded around an hour later, stating that the requirements in BP
4010 were “further refined by the current CBA which delineates the process for a
calendar change.” Knudson further stated his opinion that the only impact of the
change was to the Intersession provisions in the CBA.

15
On May 23, 2019, Bryant sent Lee a revised version of the draft MOU which
referenced the Calendar Committee’s March 14, 2019 vote, but eliminated the
reference to the April 22, 2019 vote. The revised draft also stated: “The earliest that
intersession will be eliminated is Winter 2021.”
Lee responded on May 29, 2019, stating:
“After discussing it with the Union’s negotiating team and
Executive Council, we find the potential changes to the
faculty CBA would be significant. Additionally, as BP 4010
requires ‘reaching agreement with the Antelope Valley
College Federation of Teachers (AVCFT) and the Antelope
Valley College Federation of Classified Employees
[AVCFCE]’ for any possible ‘major calendar changes that
may have financial impact to the district or may affect
student access and/or student learning’ (which is the oft
stated reasons for attempting to implement them), these
potential changes require negotiations to be implemented.
“However, the Faculty Union’s negotiating team is not
available as it is engaged in current contract negotiations.”
Bryant responded on June 6, 2019, acknowledging “that changes to the calendar may
result in ‘effects’ that may need to be talked about for possible negotiation purposes.”
Bryant committed to meeting to “discuss any possible changes.” In the same e-mail,
Bryant asserted that the District had followed BP and AP 4010 and CBA Article X,
Section 12.1.4
Bryant concluded his e-mail as follows:
“Board Policy, Administrative Regulations and Faculty
contractual language have been followed, as a result the
4 As noted above, the text of AP 4010 was not admitted into the record, but
Bryant’s e-mail implies that the terms of AP 4010 were similar to those in CBA Article
X, Section 12.1.

16
parties should move forward with signing the MOU based
on policy, regulation, and contractual language.
“The District is willing to meet at anytime to discuss
outstanding issues, including any identified effects as a
result of the calendar changes.”
Lee responded on June 7, 2019: “The Union is not arguing that the process . . .
is not being followed (mostly). Instead, we are saying that the process from this point
requires negotiations and other items and that signing the MOU, at this time, would be
a negotiation . . . process.” He continued: “It is too soon to sign anything as no
agreement has been reached and no consultation with other appropriate groups has
been completed.”
Vines responded to Lee on June 17, 2019, stating that he found “several flaws”
in Lee’s suggestion that the calendar changes required negotiations. Like Bryant,
Vines asserted that the District had followed the process outlined in BP and AP 4010,5
and CBA Article X, Section 12.1. Vines asserted that the requirement to reach
agreement with the Faculty and Classified Unions outlined in BP 4010 “is completed
as the provision within the AVCFT CBA is a negotiated process agreed to and ratified
by AVCFT and approved by the [Governing] Board[.]” Vines stated that Lee’s failure
to sign the MOU violated the District’s participatory governance policies and also
“violate[d] the AVCFT collective bargaining agreement as it defines the process for
calendar change and its designation to the Calendar Committee.” Like Bryant, Vines
reiterated the District’s willingness to discuss any effects arising from the change, but
5 Like Bryant’s June 6, 2019 e-mail, Vine’s e-mail also suggests that the
language AP 4010 is similar to what is stated in Article X, Section 12.1.

17
asserted that the District had followed BP 4010, the CBA, and past practice.
Lee responded to Vines on June 28, 2019. He included Knudson, the members
of the Governing Board, and several other recipients in his response. In summary,
Lee disagreed with Vines’s description of the applicable policies and objected to how
the matter was handled in the Calendar Committee. Lee also reasserted the Faculty
Union’s position that the calendar changes must be negotiated before he would sign
the MOU.
There was no evidence that the parties discussed the changes to the academic
calendar again until October 2019.
The October 2019 Calendar Committee Meeting
The Calendar Committee met on October 2, 2019. Lee assumed the committee
co-chair role for that academic year. The Committee discussed and voted on various
dates for the 2020-2021 academic year, including the start and end of the Fall
semester, the dates of holidays, the start and end of the Spring semester, and the
start and end of the 2021 Summer session. All dates considered were based on an
academic calendar with no Intersession between the 2020 Fall semester and the 2021
Spring semester, and with a 12-week 2021 Summer session. All of those proposals
passed by majority vote, though Lee, Tuss, and Ed Beyer, another faculty member on
the committee, opposed them. The Committee also approved similar changes for the
2021-2022 academic year, with Lee, Tuss, and Beyer again voting against these
changes. At the hearing, Lee testified that he voted against the changes because he
did not want to imply that the Faculty Union had agreed to eliminate the Intersession
and expand the Summer session.

18
During that meeting, Beyer recommended that the Committee consider
approving a “contingency calendar.” According to the minutes, Beyer suggested that
the Calendar Committee develop “contingency calendars” in case “the District and the
two bargaining units cannot come to an agreement on a calendar without an
intersession[.]” Beyer reasoned that the contingency calendar would retain the
Intersession, which could serve as a “backup” recommendation if “they start running
out of time to implement one without an intersession before agreement is reached.”
Vines responded that Beyer’s suggestion could be agendized for the next committee
meeting.6 Lee confirmed these facts from the minutes in his testimony.
The District’s Subsequent Requests for the Union’s to Sign the MOU
On October 16, 2019, Knudson e-mailed Lee about the Calendar Committee’s
votes concerning the 2020-2021 academic calendar. He wrote: “Consistent with the
past practice of sending the recommendation of the Calendar Committee to the
[Governing] Board, the College intends to implement the recommendations of the
Committee.” Knudson acknowledged that the changed calendar would have an
“impact” on the faculty bargaining unit and “to this end, [he was] willing to meet with
the [Faculty Union] to address the impact on bargaining unit members.”
6 The Calendar Committee met again on this issue on November 5, 2019.
According to the minutes from that meeting, the Committee “reached consensus” on
the contingency calendars for the 2020-2021 and 2021-2022 academic years, stating:
“These calendars are in place as contingency plans if the current calendars presented
to the Superintendent, Faculty Union President, and Classified Union President are
not approved. If the two contingency calendars are necessary the Committee will
reconvene and take a formal vote on the calendars.”

19
Lee responded to Knudson on October 18, 2019, seeking clarification. He
wrote that if the District intended to negotiate over the changes to the academic
calendar, then the Faculty Union’s negotiators would be ready to begin bargaining as
soon as negotiations over the successor CBA concluded. Lee further stated that, if
the District intended to adopt the changes to the academic calendar without
bargaining, then the District would be violating the requirements of CBA Article X,
Section 12.1 and BP 4010. Knudson did not respond.
On October 30, 2019, Vines presented Ford, Knudson, and Lee with a memo
detailing the Calendar Committee’s recommended academic calendars for the 2020-
2021 and 2021-2022. The memo was signed by Lee and Vines as co-chairs of the
committee. Lee inserted a section into the memo stating that his signature indicates
only that it accurately reflected the recommendations of the Calendar Committee, and
that the memo was not an MOU, as defined by CBA Article X, Section 12.1.
Later that day, John Hutak, Bryant’s replacement as Vice President of Human
Resources, e-mailed Lee an amended draft MOU for his signature. The new draft
MOU included the specific start and end dates for the semesters and the Summer
sessions for 2020-2021 and 2021-2022. Lee did not sign this MOU.
On November 1, 2019, Knudson e-mailed Lee and Ford stating, in part, “[i]n the
best interest of students and staff, it is now incumbent on us to work together to
finalize a calendar without further delay, so that a final recommendation can be
presented to the [Governing] Board[.] It is important that we give deference to the
recommendations approved by the majority of the members of the participatory
governance Calendar Committee[.]” Knudson reiterated his previously stated reasons

20
for changing the academic calendar. He also stated that the 10 LHE course load
limits for adjunct faculty would not apply during the proposed 12-week Summer
session and that adjunct faculty who had previously taught during the Intersession
could teach “up to 15 LHE and more” during an expanded Summer session. He
concluded by stating: “I am available to meet with both of you to find a pathway for
confirming the Calendar Committee’s recommendation.”
Lee responded on November 5, 2019, seeking clarification regarding whether
Knudson was requesting to initiate “limited bargaining” over the academic calendar
changes. He asked whether Knudson’s November 1, 2019 letter indicated the
District’s willingness “to engage in an open and fair negotiations process” or whether
“the District may view these negotiations purely as an effort to move towards a
predetermined conclusion.” Lee further asked whether Knudson’s October 16, 2019
letter indicated an intent to implement the academic calendar changes without
bargaining. Lee asked Knudson to respond by November 12, 2019.
Not long afterward, Knudson sent an electronic calendar invitation to Lee, Ford,
Vines, and others, for a meeting on November 13, 2019. On November 6, 2019, Lee
e-mailed Knudson stating that he had received the invitation, but was unavailable that
day. Lee suggested November 14 or 15 as alternatives. Lee asked whether the
purpose of the meeting was to negotiate over the changes to the academic calendar
and stated that he would like to include Adams, the Faculty Union’s chief negotiator in
the meeting. Knudson canceled the November 13, 2019 meeting but otherwise did
not respond.

21
Knudson’s Communication to the Academic Senate
On or around November 18, 2019, Knudson e-mailed information about the
planned calendar changes to Rider, President of the Academic Senate. He invited
Rider to share the information with other members of the Academic Senate. The
information was similar to the justification Knudson had provided to Lee in his
November 1, 2019 letter. It repeated Knudson’s assertion that adjunct faculty could
teach 15 LHE or possibly more during an expanded 2021 Summer session. Knudson
also stressed giving “deference” to the Calendar Committee’s recommendation and
“work[ing] together to finalize a calendar without delay[.]”
When asked why he e-mailed Rider, Knudson testified that he was attempting
to “share . . . the information as broadly as we could[,]” and that he was
communicating with several different District stakeholders to get their input.
The Parties’ November-December Correspondence About the Calendar Change
On November 20, 2019, Knudson e-mailed Lee another letter, stating that
through Article X, Section 12.1, the parties had “mutually agreed that decisions
regarding work days and class times were delegated to the Calendar Committee,
subject to final approval, memorialized in an MOU signed by the College President,
the AVCFT President, and the AVCFCE President.” Knudson further stated: “Time is
of the essence” because the Governing Board had not yet adopted any academic
calendar for the 2020-2021 academic year. (Emphases in original.) Knudson
requested to meet on December 4, 2019 “to complete the negotiated process set forth
in Article X, Section 12, and reach a memorandum of understanding with each of you
reflecting final approval of the calendar.” He stated that, otherwise:

22
“I will have no choice but to explore my options for
recommending the [Governing] Board adopt a tentative
calendar for reasons of operational necessity, given that the
District continues to remain without an agreed upon
calendar. Such an action by the [Governing] Board would
effect substantial compliance with the mutually agreed to
provisions set forth in Article X Section 12.”
(Emphasis in original.) Knudson sent a similar letter to Ford. By that point, the District
had already placed approval of the 2020-2021 academic calendar on the agenda for
the Governing Board’s December 9, 2019 meeting.
Knudson sent Lee another letter on November 25, 2019, asserting that “Article
X sets forth the mutually agreed upon process for adopting the recommendations of
the Calendar Committee. There is no further obligation to ‘meet and negotiate’ the
Calendar.” Knudson contended that Lee was violating the CBA by refusing to sign the
MOU approving the academic calendar changes. Knudson reiterated his willingness
to meet on December 4, 2019.
Lee and Ford responded by a joint letter on November 27, 2019. In the letter,
they disagreed with Knudson’s assertion that negotiations over the calendar changes
were not required under CBA Article X, Section 12.1. They acknowledged Knudson’s
willingness to meet on December 4, 2019, but stated that was insufficient time to
complete negotiations over the calendar changes. They expressed interest in
convening their bargaining teams to establish negotiation protocols. They also
informed Knudson that the Calendar Committee had agreed-upon contingency
calendars that did not modify the existing Intersession and Summer session in the
2020-2021 academic year, and that those calendars could be used while the parties
negotiated over eliminating Intersession and expanding the Summer session for future

23
academic years.
Knudson responded the same day. He reiterated his willingness to meet on
December 4, 2019 and also repeated his concern that the District had to adopt
academic calendars for 2020-2021 and 2021-2022 soon.
On December 2, 2019, the Faculty Union sent the District and the Classified
Union a “Union Sunshine List for Academic Calendar Negotiations.”7 The list included
every CBA article that referenced Intersession. On December 3, 2019, Lee e-mailed
Knudson stating that “AVCFT and AVCFCE are prepared to begin negotiations” with
the District, but stated that the Faculty Union’s negotiating team was not available on
December 4, 2019. He offered December 9 and 12, 2019 as alternatives. He further
stated that he would not sign an MOU that approved eliminating the Intersession until
negotiations were completed.
Knudson responded on December 4, 2019, expressing disappointment that Lee
had “elected not to meet with [Knudson] to conclude the calendar adoptions process”
pursuant to CBA Article X, Section 12.1. He further wrote:
“As stated on numerous occasions in the past, the calendar
is not subject to traditional negotiation. The development of
the Calendar has been delegated to the Calendar
Committee and the District’s governance process. This has
been the practice for more than 12 years and precedes my
tenure as Superintendent/President.”
After summarizing his perspective of the events up until that point, Knudson
then stated:
7 The list was erroneously dated December 2, 2018.

24
“Given your refusal to meet and conclude the process as
dictated by both contract language and past practice, and
the fact that the district remains without an adopted
academic calendar for the 2020-2021 academic year, and
consistent with my November 20 correspondence to you, I
will be recommending at the December 9, 2019 [Governing]
Board meeting that the Governing Board move to
tentatively adopt the October 2, 2019 recommendation of
the Calendar Committee.”
Knudson concluded the letter by stating that he remains willing to meet with Lee
and Ford to sign the MOU and discuss the unions’ concerns, but he restated that such
a meeting would not constitute “traditional negotiations,” so the parties’ negotiating
teams need not attend.
The Governing Board’s Adoption of the Tentative 2020-2021 Academic Calendar
The Governing Board held a regular meeting on December 9, 2019. One of the
action items on the agenda was a motion to:
“adopt the calendars recommended by the Calendar
Committee as a tentative academic calendar of the District,
effective beginning the 2020-2021 academic year, subject
to further discussions between the District President and
the Presidents of AVCFT and AVCFCE for the purpose of
reaching final approval of the calendar through a
memorandum of understanding, consistent with AVCFT
Article X, Section 12 and past practice.”
(Emphasis in original.)
Several speakers addressed the Governing Board either in favor of or against
the calendar change. Lee and Ford both spoke against the motion. Jason Bowen
from the Academic Senate read a resolution urging the Governing Board to reject the

25
proposed changes.8
After hearing all of the speakers, the Governing Board voted 5-0 in favor of
adopting the tentative 2020-2021 academic calendar. Staff explained during the
meeting that the “tentative” nature of the calendar meant that the approved academic
calendar would become effective starting in the 2020-2021 academic year, pending
final approval through an MOU between Knudson, Lee, and Ford.
On January 7, 2020, Knudson sent Lee and Ford another letter stating that the
approved tentative calendar would take effect during the 2020-2021 academic year.
Knudson repeated the District’s position that negotiations were not required. He
nevertheless requested to meet with Lee and Ford to “reach final approval of the
calendar recommended by the Calendar Committee and tentatively adopted by the
[Governing Board], including negotiation of any applicable effects concerning the
recommended and tentatively adopted calendar.” There is no record of a direct
response from Lee or Ford, but the Faculty Union filed its UPC around a month
afterward.
Lee and Ford never signed an MOU approving an academic calendar that
eliminated the Intersession and expanded the Summer session. Both of those
changes took effect starting in the 2020-2021 academic year.
The 2018-2021 Successor Negotiations
To some degree, negotiations for what would become the 2018-2021 CBA
happened concurrently with the discussions on changing the academic calendar. By
8 Knudson testified that he was unaware of this resolution and did not know of
its contents.

26
December 2017, both parties had sunshined their proposals for which CBA articles
they wanted to re-negotiate. Negotiations sessions began on March 8, 2018 and
continued throughout that year. Neither side proposed changing the academic
calendar or eliminating the Intersession in bargaining.
Negotiations continued into 2019. In March 2019, the parties exchanged
proposals concerning Article X, Sections 12.1 and 12.2. Neither proposal was
adopted. The Faculty Union’s chief negotiator, David Adams, later suggested that the
parties not change either section due to the Calendar Committee’s still-ongoing
discussions about changing the academic calendar. Consistent with her bargaining
notes, Burd testified that, on March 29, 2019, Adams told the District’s negotiators that
the calendar changes being discussed by the Calendar Committee at the time were
subject to negotiation. He wondered whether Presidents Knudson, Lee, and Ford
could meet and “iron this out,” meaning the process for negotiating over the decision
and the effects of the proposed calendar changes. Ginsberg testified similarly, stating
that the changes to the academic calendar under discussion had to be negotiated, that
the terms of the CBA had to be followed, and that the Faculty Union wanted to see
how the District planned to do that. Both parties eventually withdrew their proposals
over Sections 12.1 and 12.2.
By May 2019, the parties were close to completing successor negotiations, but
they were unable to finish negotiations before summer began. The Faculty Union
declined the District’s offer to continue negotiating through the summer.
The negotiating teams began meeting again in September 2019. After a few
more sessions, the District presented the Faculty Union with a “comprehensive

27
tentative settlement agreement” (Tentative Agreement) on September 27, 2019. The
Faculty Union’s negotiators requested time to review the language. The negotiating
teams did not meet again until December 10, 2019, whereupon both teams ratified the
Tentative Agreement. This was one day after the Governing Board had tentatively
approved the changes to the 2020-2021 academic calendar that eliminated
Intersession, expanded the Summer session, and changed the start and end times for
the Fall and Spring Semesters, as well as Summer session.
The Tentative Agreement included no changes to CBA Article X, Sections 12.1,
12.2, or 13.4. It did not mention the 2020-2021 academic calendar. The Tentative
Agreement still included several sections from the CBA referring to the Intersession.
Nothing in the Tentative Agreement specified that it was designed to resolve the
parties’ outstanding disputes over negotiable issues. Rather, the Tentative Agreement
specified that the parties agreed to modify Articles I, III, V, VII, VIII, IX, X, XIII, and
XVII, agreed to not modify Articles II, IV, VI, XI, XII, XIV, XV, XVI, XVIII, XIX, and XX,
and agreed to update Article XXI (the signature page).
ISSUES
1. Did the District violate its duty to negotiate in good faith by: (a)
unilaterally adopting and implementing an academic calendar that changed working
hours and other conditions of employment for the faculty bargaining unit; (b)
attempting to bypass, undermine, or derogate the authority of the Faculty Union by
communicating directly with Academic Senate President Rider on November 18, 2019;
or (c) refusing the Faculty Union negotiating team’s September 2019 request to
bargain over changes to the academic calendar?

28
2. Did the District engage in unlawful surface bargaining by its conduct from
March 2019 to January 2020?
CONCLUSIONS OF LAW
Public school employers and exclusive representatives under EERA have a
mutual obligation to meet and negotiate in good faith over matters within the scope of
representation. (EERA §§ 3540.1, subd. (h); 3543.5, subd. (c); 3543.6, subd. (c).)
Violations of this duty may be evaluated under a “totality of the circumstances,” or
surface bargaining analysis, which examines the parties’ conduct as a whole, to
ascertain their subjective intent. (City of Sacramento (2013) PERB Decision
No. 2351-M, pp. 12-13, citing Placentia Fire Fighters v. City of Placentia (1976) 57
Cal.App.3d 9, p. 25 (City of Placentia), other citations omitted.)9 Some individual
actions, however, are considered “per se” violations of the duty to bargain because of
their inherent ability to frustrate the bargaining process and undermine the authority of
exclusive bargaining representatives. (City of Sacramento, p. 13, citing Vernon Fire
Fighters v. City of Vernon (1980) 107 Cal.App.3d 802, p. 823.) In this case, the
Faculty Union alleges violations by the District under both “per se” theories and under
a “totality of the circumstances” theory. Each type of violation will be discussed
separately below.
9 When interpreting EERA, PERB may take guidance from other collective
bargaining statutes containing parallel provisions. (Ventura County Community
College District (2009) PERB Decision No. 2082, adopting warning ltr. at p. 3, fn. 3,
citing Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608.)

29
1. The “Per Se” Claims
a. Unilateral Change to the Academic Calendar
Absent a valid defense, unilateral changes to negotiable subjects are “per se”
violations of the duty to bargain in good faith under EERA Section 3543.5, subdivision
(c). (Lodi Unified School District (2020) PERB Decision No. 2723, p. 11.) To establish
a prima facie case for an unlawful unilateral change, the charging party must prove:
(1) the employer changed or deviated from the status quo; (2) the change or deviation
concerned a matter within the scope of representation; (3) the change or deviation had
a generalized effect or continuing impact on represented employees’ terms or
conditions of employment; and (4) the employer reached its decision without first
providing adequate advance notice of the proposed change to the union and
bargaining in good faith over the decision, at the union’s request, until the parties
reach an agreement or a lawful impasse. (Bellflower Unified School District (2021)
PERB Decision No. 2796, p. 9, citing County of Merced (2020) PERB Decision No.
2740-M, pp. 8-9.)
i. Change to the Status Quo
The first issue is whether the District changed or deviated from the status quo
when it adopted and then implemented changes to the academic calendar starting in
the 2020-2021 academic year. There are three primary means of establishing that an
employer changed or deviated from the status quo. Specifically, a charging party
satisfies this element by showing any of the following: (1) deviation from a written
agreement or written policy; (2) a change in established past practice; or (3) a newly
created policy or application or enforcement of existing policy in a new way. (County

30
of Merced, supra, PERB Decision No. 2740-M, p. 9.)
Before the alleged changes, from 2003 to 2020, the District’s academic
calendar had consistently included two 16-week semesters, a 6-week Intersession
between the Fall and Spring semesters, and an 8-week Summer session. There was
no evidence of any deviation from that format, except for one year, when there was no
Intersession in the 2005-2006 academic year. These facts show a clear, unequivocal,
practice that was accepted by both parties for several years before the alleged
change. (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 18, citing County
of Orange (2018) PERB Decision No. 2611-M, pp. 10-11, fn. 7, other citation omitted.)
The District does not dispute these facts, but it contends that no policy change
occurred because the 2020-2021 academic calendar adopted by its Governing Board
was labeled as “tentative.” It analogizes this dispute to Lake Elsinore School District
(1986) PERB Decision No. 606 (Lake Elsinore SD). There, during reopener
negotiations for issues concerning one school year, the employer prepared a “draft
tentative calendar” for the following school year, which would have increased the
number of school days, thereby also increasing the number of teacher working days.
(Id. at p. 2.) The employer provided a draft of the calendar to the faculty union and
expressed interest in negotiating over the calendar immediately. (Id. at p. 3.) The
union responded that it was unavailable to negotiate over the calendar until
negotiations for the prior year were completed. The governing board tentatively
approved a student calendar with the proviso that the working calendar was still
“subject to negotiations.” (Ibid.) The employer continued to express its willingness to
negotiate over the calendar. The Board found no policy change because the union did

31
not prove that the adoption of the calendar was a “final calendar.” The Board
explained that because the adopted calendar was only tentative and the employer
remained willing to negotiate prior to implementation, “the [employer’s] conduct
evidenced its continued recognition of its bargaining obligation.” (Id. at pp. 13-14.)
The Board additionally explained that an adopted calendar may be a “final calendar” if
“the district implements it and, in so doing, changes the terms and conditions of
employment.” (Id. at p. 14; see also San Jose Community College District (1982)
PERB Decision No. 240, pp. 8-9 (San Jose CCD).)
The present dispute is distinguishable from Lake Elsinore SD for the simple
reason that the District in this case never acknowledged that bargaining was required
over how changes to the academic calendar altered employee hours and other
working conditions. Both before and after adoption, the District has maintained that no
negotiations were required because the parties, through CBA Article X, Section 12.1,
agreed to forgo negotiations on calendar issues.10 In fact, the only reason why the
2020-2021 academic calendar was labeled as “tentative” at the time it was adopted by
the District’s Governing Board was because the Faculty Union and the Classified
Union refused to sign an MOU approving of the calendar until the District completed
negotiations. Moreover, unlike in Lake Elsinore SD, the District in this case actually
implemented the new calendar terms starting in the 2020-2021 academic calendar,
10 The merits of that argument will be addressed in the section of this proposed
decision discussing the District’s affirmative defenses. (See City of Culver City (2020)
PERB Decision No. 2731-M, pp. 17-18 [holding that claims that a union has waived its
right to bargain over an otherwise negotiable subject are appropriately addressed as
affirmative defenses]; see also County of Santa Clara (2013) PERB Decision
No. 2321-M, p. 18-19.)

32
thus changing the working hours and other terms and conditions of employment for
employees in the Faculty Union bargaining unit.
This case is more like Pasadena Area Community College District (2015) PERB
Decision No. 2444 (Pasadena Area CCD), where, for several years, the employer
maintained an academic calendar with two semesters and one intersession each
during summer and winter. (Id. at p. 18.) After approving another calendar consistent
with that format, the employer recommended a new “tentative” calendar consisting of
three trimesters and no winter intersession. The employer maintained that the change
was for pedagogical and financial reasons. (Id. at pp 4-6.) The employer discussed
the new calendar format with the faculty union in negotiations, but implemented its
new calendar before reaching agreement with the union or completing the statutory
impasse process. (Id. at pp. 6-7.) The Board found the employer in that case “took
action to change policy” when it adopted and imposed the trimester-based academic
calendar on its employees. (Id. at pp. 13, 18.)
The District contends that Pasadena Area CCD, supra, PERB Decision
No. 2444 is distinguishable on this issue because the employer in that case had
already adopted a semester-based calendar only to adopt a trimester calendar. The
District maintains that a different outcome is warranted in this case because it had no
approved academic calendar for the 2020-2021 academic year. This assertion
misstates the Board’s holding, including its reasoning that adopting a newly created
policy where previously there was none is just as much a change in policy as a
departure from established policy under a written agreement or past practice. The
Board held that the employer’s move to the trimester-based calendar deviated from

33
both the previously adopted calendar and from its longstanding practice of operating
based on an academic calendar that had two semesters and a winter and summer.
(Id., at pp. 13, 18, adopting proposed dec. at pp. 11-12.) Here, the District’s academic
calendar changes deviated from its long and consistent history of having an academic
calendar with two 16-week semesters, a 6-week Intersession, and an 8-week Summer
session. As in Pasadena Area CCD, the District in this case departed from that
practice when it adopted an academic calendar without an Intersession and with a n
expanded 12-week Summer session. This altered the hours and other working
conditions for faculty unit members. Alternatively, to the extent the District argues that
it had not yet adopted any policy for the 2020-2021 academic calendar, under
Pasadena Area CCD, it was not free to adopt an entirely new calendar format without
completing good-faith negotiations and any applicable impasse resolution procedures.
(Id. at pp. 15-16; see also County of Kern (2018) PERB Decision No. 2615-M, p. 5;
County of Monterey (2018) PERB Decision No. 2579-M, p. 10.)
ii. The Scope of Representation
EERA section 3543.2, subdivision (a)(1), defines the “scope of representation”
as “matters relating to wages, hours of employment, and other terms and conditions of
employment.” On the other hand, subdivision (a)(4) excludes other matters from the
scope of representation, and the Board recognizes that bargaining may not be
appropriate over matters that abridge the employer’s “freedom to exercise managerial
prerogatives essential to the achievement of its mission.” (Riverside Unified School
District (1989) PERB Decision No. 750, p. 17 (Riverside USD), citing Anaheim Union
High School District (1981) PERB Decision No. 177.) Thus, bargaining is typically not

34
required “over matters of inherent managerial policy, which shall include but shall not
be limited to such areas of discretion or policy as the functions and programs of the
public employer, standards of services, its overall budget, utilization of technology, the
organizational structure and selection and direction of personnel.” (Riverside USD, p.
15, citation omitted.)
The District contends that the calendar changes in this case were within the
District’s authority to determine the nature, direction, and level of services provided. It
cites Huntington Beach Union High School District (2003) PERB Decision No. 1525
(Huntington Beach UHSD) in support of this position. At issue in that case was an
employer’s decision to modify the hours of three new, and vacant, positions as part of
the employer’s plan to expand the hours of its library operations. The Board
acknowledged that the employer could unilaterally set the hours of its libraries but
found that its authority did not extend to unilaterally determining the work hours of
library staff. (Id. at pp. 7-8, citing Imperial Unified School District (1990) PERB
Decision No. 825 and Jefferson School District (1980) PERB Decision No. 133.) The
Board accordingly held that requiring negotiations over changes to employees’ work
hours, including the hours of vacant bargaining unit positions, did not impinge upon
the employer’s right to dictate the nature, direction, or level of services provided.
(Huntington Beach UHSD, p. 10.)11
11 The District also argues that this case is similar to Fremont Union High
School District (1987) PERB Decision No. 651 and Stanislaus County Department of
Education (1985) PERB Decision No. 556. Both cases involved alleged
subcontracting of educational services previously provided by the employer. (See
also Regents of the University of California (Berkeley) (2018) PERB Decision
No. 2610-H.) These cases are poor analogies for the present dispute because there

35
More on point is Mt. San Antonio Community College District (1983) PERB
Decision No. 297 (Mt. San Antonio CCD), where the employer made several changes
in response to what it considered to be a fiscal emergency. Relevant to the present
dispute, the employer reduced the number of class offerings during the first of its two
summer sessions and canceled the second session altogether. This was done in
response to lower enrollment projections. (Id. at p. 2.) The employer then altered its
method for assigning summer session classes, in part, to accommodate those faculty
members who had lost assignments due to the cancelations. (Id. at p. 3.) The
Administrative Law Judge (ALJ) concluded that the “cancellation of summer school
classes is analogous to an employer’s decision to close part of its business for
financial reasons.” (Id., adopting proposed dec. at p. 46.) He accordingly found that
“the decision as to which classes to cancel, and on what basis is therefore a non-
negotiable managerial prerogative.” (Ibid.)12 He reached the opposite conclusion with
was no allegation that the District cancelled instruction during the 2021 Intersession
and then continued to offer those services through a private entity. Rather, the
evidence here shows that Knudson recommended cancelling the Intersession and
shifting the LHEs that would have been offered in the winter to an expanded Summer
session, to be taught by faculty unit members. For that reason, the cases discussed
below, concerning academic calendar changes, provide a more useful comparison.
12 The District also cites Pasadena Area Community College District (2011)
PERB Decision No. 2218 as another case that supports this conclusion. In that case,
the ALJ stated, citing the Mt. San Antonio CCD, supra, PERB Decision No. 297, that
an employer’s decision to cancel classes is outside the scope of representation. (See
Id., adopted proposed dec. at p. 4.) However, it is unclear whether the sections of
PERB Decision No. 2218 that the District relies on are precedential. Even where the
Board adopts a proposed decision, ALJ conclusions are binding only on the parties
where neither party excepts to those conclusions, unless the Board elects to reach the
issue on its own motion. (Contra Costa Community College District (2019) PERB
Decision No. 2652, p. 12, citations omitted.) In any event, the ALJ’s conclusions in

36
respect to the employer’s changes to how it assigned summer classes to faculty due
to the clear effect the process for class assignments has on wages and hours. (Id.,
adopting proposed dec. at pp. 46-47.) The Board affirmed both conclusions. (Id. at
pp. 3-4, fn. 1.)
In Pasadena Area CCD, supra, PERB Decision No. 2444, the Board addressed
whether the employer’s decision to move from a semester-based academic calendar
to a trimester-based calendar was within the scope of representation. The Board
adopted the ALJ’s analysis concluding that school calendars represent “a kind of
hybridized negotiable/permissive subject” due to the tension between school districts’
prerogative to set education standards, including student instructional hours, and
faculty working hours, which is traditionally a negotiable subject. (Id. at p. 13.) It also
adopted the ALJ’s findings that the move to the trimester-based calendar fell within the
scope of representation because it significantly altered faculty working conditions,
including different starting and ending dates for the work year and changes to the
length of each term within the academic year, which in turn altered the number of
course assignments unit members could accept. (Id. at pp. 14-15.) The Board
explained its reasoning as follows:
“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
PERB Decision No. 2218, that the employer had the authority to cancel its winter
intersession without bargaining, was based entirely on Mt. San Antonio CCD. PERB
Decision No. 2218 is also distinguishable from this case because the District did more
than merely cancel its Intersession. Rather, the changes made here amounted to the
“wholesale adoption of a different type of calendar.” (See Pasadena Area CCD,
supra, PERB Decision No. 2444, p. 15.)

37
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[.]”
(Id. at p. 15; see also Palos Verdes Peninsula Unified School District/Pleasant Valley
School District (1979) PERB Decision No. 96, p. 34 (Palos Verdes USD) [“Therefore,
the dates of the beginning and ending of certificated service, vacations and holidays
are primarily related to hours of employment as found in [EERA] section 3543.2, and
are consequently negotiable items]; but see San Jose CCD, supra, PERB Decision
No. 240, p. 10 [holding the decision to convert faculty in-service training days to
instructional days was outside the scope of representation where it did not lengthen
the work day, increase the number of work days, or affect the distribution of work
days].)
In this case, eliminating the 2021 Intersession was the most discussed aspect
of the changes adopted and implemented for the 2020-2021 academic calendar. The
District correctly points out that it had the managerial prerogative to cancel classes
from its voluntary education program, or even an entire session of such classes. (See
Mt. San Antonio CCD, supra, PERB Decision No. 297, adopting proposed dec. at p.
46.)
However, canceling the Intersession was not the only change that the District
implemented. Eliminating the Intersession was part of a larger plan to expand its 2021
Summer session from 8 to 12 weeks. Knudson explained that he believed that this
plan would increase the number of courses that could be assigned to faculty unit
members. During his November 9, 2017 public town hall meeting, Knudson estimated

38
that he expected the number of LHEs that faculty could be assigned to increase by
between 200 to 400, due to the flexibility in offering classes in the two 6-week Summer
sessions or in a single 12-week Summer session. In this sense, the change that
occurred here was not so much an exercise of managerial discretion to simply cancel
course offerings, but a strategic decision to move its course offerings from the period
between the Fall and Spring semesters to the period between the Spring and Fall
semesters. This necessitated changes to the start, end, and length of the winter and
summer recesses, the start and end dates of the Spring and Fall semesters, and the
length of the Summer session. Those changes, in turn, required further alterations to
events such as the dates for observing holidays starting in the 2020-2021 academic
year. The change was also projected to increase the number of teaching assignments
for faculty unit members, thereby expanding their capacity to earn wages. These are
precisely the types of changes that the Board found to be negotiable subjects in
Pasadena Area CCD, supra, PERB Decision No. 2444 and Palos Verdes USD, supra,
PERB Decision No. 96.
The District contends the scope of representation analysis from Pasadena Area
CCD, supra, PERB Decision No. 2444 does not apply here because the move from a
semester-based academic calendar to a trimester-based calendar was more drastic
than the changes adopted by the District for the 2020-2021 academic calendar in this
case. This assertion, while true, does not necessitate a different outcome. The
employer in Pasadena Area CCD, eliminated its winter intersession, and then modified
the length of its two semesters and its summer intersession into three trimesters. (Id.
at p. 6.) Here, although the District did not change the length of its two 16-week

39
semesters, it is undisputed that the new academic calendar changed other items that
the Board found to be negotiable, including start and end dates of the work calendar
year, the number of work days, and the dates of vacation and holidays. (See
Pasadena Area CCD, p. 15 and Palos Verdes USD, supra, PERB Decision No. 96, p.
34.) Because these changes to employees’ work hours were inextricable from the
District’s new academic calendar plan, that decision is within the scope of
representation.
iii. Generalized Effect or Continuing Impact
Turning to the third element of PERB’s unilateral change test, there is no
question that, by design, the changes to the 2020-2021 academic calendar were
implemented and have remained in effect continuously throughout that year and
beyond. Such changes impacted the entire faculty bargaining unit on an ongoing
basis. This is sufficient to establish that the change had a generalized effect or
continuing impact on represented employees. (City of Culver City, supra, PERB
Decision No. 2731-M, pp. 12-13.)
iv. Notice and Opportunity for Bargaining
The final element of the prima facie case for a unilateral change is whether the
District provided the Faculty Union with notice and the opportunity for bargaining
before adopting its decision to change employees’ working conditions. (Victor Valley
Union High School District (1986) PERB Decision No. 565, pp. 4-5 (Victor Valley
UHSD).) There is no dispute here that the District refused to bargain over its decision
to make these calendar changes. According to the District’s interpretation of CBA
Article X, Section 12.1, calendar changes were subject to discussion through the

40
Calendar Committee, and neither party could request formal negotiations over
calendar changes.13 For that reason, the District only ever expressed willingness to
bargain over the effects of the calendar changes. The Pasadena Area CCD Board
resoundingly rejected that such a position satisfies an employer’s bargaining
obligations. “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.” (Pasadena Area CCD, supra,
PERB Decision No. 2444, p. 19.)
I reach the same conclusion here. The District’s willingness to bargain over the
effects of its decision to change the academic calendar does not satisfy its obligation
to provide notice and the opportunity to bargain over the calendar change decision
itself, and not merely over its effects.
The Faculty Union has established all four elements of its prima facie case for a
unilateral change. The District’s adoption and implementation of changes to its
academic calendar starting in the 2020-2021 academic year therefore violated the
duty to negotiate in good faith unless it has established that it was excused from
negotiations. (See Pasadena Area CCD, supra, PERB Decision No. 2444, p. 16.)
13 As explained above, the validity of this position will be discussed in the
section below, concerning the District’s affirmative defenses. (See City of Culver
City, supra, PERB Decision No. 2731-M, pp. 17-18.)

41
v. The District’s Affirmative Defenses
The District contends that no bargaining violations should be found because it
was excused from negotiating with the Faculty Union over changes to the academic
calendar. It claims that the Faculty Union waived its right to bargain over such
changes either by agreeing to the terms of CBA Article X, Section 12.1 or by failing to
request negotiations. The District additionally argues that any obligation to bargain
over the calendar changes was excused due to an overriding operational or business
necessity that required unilateral action. Each of these defenses will be addressed
below.
(a) The Waiver by Contract Defense
A union may waive its right to bargain over otherwise mandatory subjects of
bargaining. However, a waiver of the right to negotiate must be “clear and
unmistakable[,] evincing “an intentional relinquishment of the right to bargain.” (Rio
Hondo Community College District (2013) PERB Decision No. 2313, p. 5 (Rio Hondo
CCD), [emphasis in original], citing California State Employees Assn. v. PERB (1996)
51 Cal.App.4th 923, 937-938 (CSEA) and Amador Valley Joint Union High School
District (1978) PERB Decision No. 74.) This is because there is strong public policy
against finding waivers based solely on inference. (Santa Ana Unified School District
(2013) PERB Decision No. 2332, p. 28, citing Long Beach Community College District
(2003) PERB Decision No. 1568.) Accordingly, the “burden of establishing a waiver is
upon the party asserting it, whether the claimed waiver is grounded in alleged inaction,
contact language, or a simple failure to demand bargaining.” (Rio Hondo CCD, supra,
p. 6.)

42
Where, as here, the waiver theory is based on language in a contract, the terms
of the agreement must unmistakably cover all aspects of the subject in question and
must also specifically authorize unilateral action on that particular subject. (Redwoods
Community College District (1996) PERB Decision No. 1141, p. 2, citations omitted;
Berkeley Unified School District (2004) PERB Decision No. 1729, pp. 1-2.) In
addition, although PERB lacks the general authority to enforce contracts (see EERA, §
3541.5, subd. (b)), it may interpret agreements when necessary to resolve unfair labor
practice allegations. (County of San Joaquin (2021) PERB Decision No. 2775-M, pp.
39-40, citations omitted.) When the occasion arises, PERB applies traditional contract
interpretation rules. (City of Riverside (2009) PERB Decision No. 2027-M, p. 10, citing
National City Police Officers’ Assn. v. City of National City (2001) 87 Cal.App.4th
1274, 1279 and Grossmont Union High School District (1983) PERB Decision No.
313.) The aim is to effectuate the parties’ mutual intent at the time of the agreement,
to the extent their intentions are lawful. (County of Sonoma (2012) PERB Decision
No. 2242-M, pp. 15-16, citing Civ. Code, § 1636; see also City of Riverside, p. 10.) If
the contract language is “clear and unambiguous, it is unnecessary to go beyond the
“plain language of the contract itself” to determine its meaning. (County of Sonoma,
pp. 15-16, citing Civ. Code, § 1638, City of Riverside, and Marysville Joint Unified
School District (1983) PERB Decision No. 314 (Marysville JUSD).) If, on the other
hand, the contract is silent on the subject or its meaning is susceptible to more than
one reasonable interpretation, PERB may consider extrinsic evidence, including
bargaining history, prior agreements, or past applications, to determine the meaning of
contract provisions. (County of Sonoma, p. 16, citing Marysville JUSD, other citations

43
omitted.)
In this case, the District contends that it was excused from any bargaining
obligation it had over changes to employee hours and working conditions caused by
the new academic calendar under the terms of CBA Article X, Section 12.1. That
section states:
“All issues related to the calendar (starting and ending
dates of the semester, summer session and intersession;
starting and ending class times; holidays; flex days;
orientation; parts of term; days counted as instructional
days) shall be referred to the Calendar Committee, a
campus-wide standing committee. The committee will have
co-chairs consisting of the vice president of student
services and either the AVCFT or AVCFCE representative
in alternate years. Each year, the committee shall
recommend a calendar to the presidents of the District,
AVCFT and AVCFCE for final approval through a
memorandum of understanding in time to meet the
College’s scheduling timelines.”
Accompanying Section 12.1, is Section 12.2, which states:
“Though we have tried to anticipate all of the contractual
ramifications of the move from a 17-week calendar to a 16-
week calendar, there will likely be some problems and
issues arising from this shift that we have not yet foreseen.
In recognition of this fact, the Union and the District agree
to work together to solve all contractual problems
connected with the calendar in an amicable way, as quickly
and efficiently as possible, even if this supersedes the
usual negotiations process of full negotiations and re-
openers. This does not preclude the possibility of
negotiating any contract items.”
(Emphasis in original.)
Most contract-based waiver cases concern the extent to which the parties’
agreement permitted the employer to act unilaterally on an otherwise negotiable

44
subject. (See e.g., State of California (Department of Motor Vehicles) (1999) PERB
Decision No. 1347-S and San Jacinto Unified School District (1994) PERB Decision
No. 1078 (San Jacinto USD).) The District’s argument in this case is somewhat
unique because it maintains that both parties agreed to waive their bargaining rights
and cede decision-making authority about all decisions concerning the academic
calendar to the Calendar Committee. The Calendar Committee is one of the District’s
participatory governance entities, composed of members from the faculty bargaining
unit, the classified unit, administrators, and students.
The Board addressed a similar question in Perris Union High School
District (1990) PERB Decision No. 861. There, the parties agreed to implement a
particular health benefits plan unless an alternative plan was negotiated by a certain
date. The parties further agreed to establish a joint “insurance committee,” consisting
of members from both parties, with the charge of studying other benefits options. (Id.,
adopting warning ltr. at pp. 1-2.) The committee met and prepared a set of
recommendations, but the employer refused to implement those recommendations.
(Id., adopting warning ltr. at p. 3.) The Board dismissed the union’s claim that the
employer was required to adopt the recommendations of the committee. (Id. at pp. 1-
2.) The Board concluded that, while the parties agreed to form the committee and
develop recommendations, the agreement did not require the employer to adopt those
recommendations. (Ibid.)
A similar conclusion is warranted here. Article X, Section 12.1 specifies that
several negotiable matters, including the starting and ending dates of the semester,
holidays, and issues pertaining to Intersession and Summer session shall be “referred

45
to the Calendar Committee,” who then must “recommend a calendar” to the District
Superintendent/President and the Presidents of the Faculty and Classified Unions.
However, nothing in this language requires the District or the Faculty Union to accept
that recommendation. These terms also do not state that the Faculty Union waived its
right to bargain over any changes to employee working conditions after receiving the
committee’s recommendation. The plain meaning of the term “recommend” to
describe the Calendar Committee’s plan indicates that the Committee’s role is merely
advisory.
Requiring an MOU before sending an academic calendar to the Governing
Board also signifies that the Presidents of the District, the Faculty Union, and the
Classified Union have discretion over whether to accept the Calendar Committee’s
recommendation. Absent clear evidence to this effect, I am unwilling to conclude that
the MOU requirement was merely a ministerial adoption of the Calendar Committee’s
recommendation. This language is not consistent with a clear and unmistakable
waiver of the right to bargain over changes to working conditions caused by a new
academic calendar.14
14 The District also suggests that the Calendar Committee’s deliberations were
the equivalent of bargaining because both District administrators and Faculty Union
representatives sat on the committee. However, the default rule established by the
PERB-administered statutes is that negotiations occur as in-person meetings between
the designated representatives of the employer and the bargaining agent (Petaluma
City Elementary School District/Joint Union High School District (2016) PERB
Decision No. 2485, p. 34 (Petaluma City ESD/JUHSD), and that an employer may not
use other, public proceedings to satisfy its bargaining obligations. (City of Palo Alto
(2017) PERB Decision No. 2388a-M, pp. 33-34; see also County of Orange (2018)
PERB Decision No. 2594-M, p. 12.) The Board has previously found such an
argument “dubious” where the community college district’s calendar committee
included members from multiple bargaining units, administrators, and students. (See

46
My conclusion is no different when reading CBA Article X, Section 12.1 in
conjunction with Section 12.2. By its own terms, Section 12.2 appears to pertain only
to the transition to the 16-week condensed calendar. Even if applicable, the
references to the parties’ aspiration to solve issues relating to the calendar quickly and
amicably, including finding solutions outside of “usual negotiations,” does not clearly
and unmistakably waive the Faculty Union’s right to bargain over calendar changes.
To the contrary, that section expressly leaves open “the possibility of negotiating any
contract items.”
The District also contends that the parties’ past application of these contract
sections shows that they have always treated Article X, Sections 12.1 and 12.2 as
waivers. The District is correct that neither section specifies what process the three
presidents go through before signing the MOU. The District is also correct that the
parties’ past application of a contract is one type of extrinsic evidence used to
determine the meaning of ambiguous language or to fill gaps where the agreement is
silent. (See Antelope Valley Community College District (2018) PERB Decision No.
2618, p. 21 (Antelope Valley CCD).) The District here maintains that the parties have
a long history of accepting the Calendar Committee’s recommendation for an
academic calendar. It points out that there was no evidence that the Faculty Union
had ever requested negotiations after receiving a committee recommendation in the
past. These facts are insufficient to establish that the parties intended Article X,
Sections 12.1 or 12.2 to act as a clear and unmistakable waiver of the right to bargain.
Pasadena Area CCD, supra, PERB Decision No. 2444, p. 13.) The same conclusion
is reached here.

47
Ever since those sections were incorporated into the CBA, there was no evidence that
the Calendar Committee ever recommended any changes to the academic calendar
on the scale of its recommendation for the 2020-2021 academic year. Thus, it
remains unclear whether the parties believed that negotiations were not permitted
after receiving the Calendar Committee’s recommendation or whether the Faculty
Union merely believed that negotiations were unnecessary. Mere acquiescence to
prior unilateral changes does not constitute a permanent waiver of the right to bargain
over any future changes. (San Jacinto USD, supra, PERB Decision No. 1078,
adopting proposed dec. at p. 23, citing Johnson-Bateman Co. (1989) 295 NLRB
No. 26.) Under these circumstances, the District failed to meet its burden of proving
that either the language in Sections 12.1 and 12.2, or the parties’ past applications of
that language establish that the Faculty Union waived its right to bargain over changes
in employee working conditions arising out of adopting an academic calendar.
Turning to other extrinsic evidence, BP 4010 states that before approving “any
major calendar changes that may have financial impact to the district or may affect
student access and/or student learning,” the District must, among other things,
“reach[] agreement with the Antelope Valley College Federation of Teachers (AVCFT)
and Antelope Valley College Federation of Classified Employees (AVCFCE).” BP
4010 was adopted in 2007 and updated in 2017, which was after Sections 12.1 and
12.2 were incorporated into the CBA in 2003. This policy from the District’s own
Governing Board further suggests that Sections 12.1 and 12.2 were not intended to
preclude negotiations and reaching agreements with the Faculty and Classified

48
Unions over changes to the academic calendar.15
Similarly, even the members of the Calendar Committee did not appear to
believe that its recommended academic calendar had to be approved by the
Presidents of the District and the Faculty and Classified Unions. In November 2019,
the committee “reached consensus” on approving contingency calendars in the event
that the three presidents did not reach agreement after receiving the Calendar
Committee’s recommendation. For these reasons, the District has not established
that Sections 12.1 and 12.2 operate as a waiver of the right to bargain over negotiable
changes to the academic calendar.
The District additionally argues that the Faculty Union waived its right to bargain
over the calendar changes adopted by the Governing Board on December 9, 2019,
after its negotiators signed the Tentative Agreement for the 2018-2021 CBA on the
following day. Generally speaking, parties may include a zipper clause in their
agreements that authorizes each party to refuse bargaining over all covered matters
15 The District contends that BP 4010 was superseded by Sections 12.1 and
12.2. EERA section 3540 states, in relevant part, that “[t]his chapter shall not
supersede other provisions of the Education Code and the rules and regulations of
public school employers . . . so long as the rules and regulations or other methods of
the public school employer do not conflict with lawful collective agreements.”
According to the District, because the Faculty Union waived its right to bargain over
calendar changes by agreeing to Sections 12.1 and 12.2, those provisions conflict with
and therefore supersede BP 4010. However, I have rejected the premise of this
argument. The District has not met its burden of proving that Sections 12.1 and 12.2
constitute a waiver of the right to bargain. I furthermore find no inherent conflict
between the Section 12.1 requirement for signing an MOU and the BP 4010
requirement of “reaching an agreement.” These two obligations can easily be read in
harmony as requiring that the parties reach an agreement on a final academic
calendar and then memorialize that agreement in an MOU.

49
during the life of that agreement. (See County of Sacramento (2020) PERB Decision
No. 2745-M, p. 21, citing Inglewood Unified School District (2012) PERB Decision
No. 2290, p. 12.) In this case, however, nothing in the record specifies that the parties
intended the Tentative Agreement to address the issues related to the 2020-2021, or
any other academic calendar. Nor was there evidence in the record that the 2018-
2021 CBA contains a comprehensive zipper clause that would preclude negotiations
over changes to the academic calendar. The Tentative Agreement also does not
contain language authorizing the District to take unilateral action on calendar issues.
Under these circumstances, the District failed to meet its burden of proving that the
Faculty Union waived its right to negotiate over the changes to employee working
conditions when it signed the Tentative Agreement or ratified the 2018-2021 CBA.
(b) The Waiver by Inaction Defense
The District also contends that the Faculty Union waived its right to bargain
over changes to the academic calendar by failing to request negotiations. An
exclusive representative may waive its right to bargain over a negotiable issue “where
the employer shows that the exclusive representative failed to demand to negotiate,
despite having received sufficient notice of the proposed change.” (West Covina
Unified School District (1993) PERB Decision No. 973, pp. 13-14, citing Cloverdale
Unified School District (1991) PERB Decision No. 911 (Cloverdale USD).) As with any
waiver, waivers by inaction must be clear and unambiguous and must be established
by the asserting party. (Rio Hondo CCD, supra, PERB Decision No. 2313, pp. 5-6.)
However, “[s]ilence, by itself is never clear and unambiguous.” (Id. at p. 7.) Thus, to
find a waiver, there must be other indicators that the union intentionally relinquished

50
its right to bargain. (Ibid.) Although an unreasonable delay in making a bargaining
demand may be evidence of a waiver, the reasonableness of the delay turns on the
specific facts of each case. (Id., citing Compton Community College District (1989)
PERB Decision No. 720; Victor Valley UHSD, supra, PERB Decision No. 565.)
In this case, the District points out that Knudson began discussing changes to
the academic calendar in as early as October 2017. Then, on March 14, 2019, the
Calendar Committee approved the idea of eliminating the Intersession. On
April 22, 2019, it approved a plan to increase the Summer session from 8 to 12 weeks.
On October 2, 2019, the Calendar Committee voted to approve key dates for the
2020-2021 academic year, including the start and end dates for each semester, the
dates of breaks and holidays, and the start and end of the expanded 2021 Summer
session. All of these dates were consistent with an academic calendar with no
Intersession and with a 12-week Summer session. According to the District, the
Faculty Union failed to request negotiations during all of this time, and in doing so,
waived its right to bargain over this issue.
This position misstates the record. Lee first raised the negotiability of the
District’s plans to alter its academic calendar on May 7, 2019, shortly after Bryant,
then the Vice President of Human Resources, asked Lee to sign an MOU approving of
the changes. Lee declined, stating “this is a negotiated item that will affect multiple
sections of the faculty CBA. I will need to consult with my negotiations team on their
availability.” Lee also invoked BP 4010, which requires “reaching agreement” with the
Faculty and Classified Unions before making any major changes to the academic
calendar. Although the District disagrees with the Faculty Union over the

51
interpretation of BP 4010, it remains significant that Lee consistently asserted the
desire to bargain and reach agreement over the changes to the academic calendar.
Lee’s statements adequately conveyed to the District that the Faculty Union
considered the District’s plans to eliminate the Intersession and expand the Summer
session to be negotiable and that the Faculty Union desired negotiations. (See
County of Sacramento (2013) PERB Decision No. 2315-M, p. 5 [holding that an
exclusive representative’s bargaining demand “‘is not required to recite a formulaic
phrase, but may express its request in any form that conveys its desire to meet and
confer or negotiate about a matter within the scope of representation.”]; see also
County of Ventura (2021) PERB Decision No. 2758-M, p. 47, fn. 19.)
Knudson contacted Lee again about signing an MOU about the calendar shortly
after the Calendar Committee approved implementation dates for the 2020-2021
academic calendar. Lee responded on October 18, 2019, repeating the Faculty
Union’s position that negotiations were required before he would sign the MOU.
Knudson did not respond.
In total, between May 7, 2019 and December 3, 2020, the record includes at
least eight instances where Lee either expressed the Faculty Union’s desire to bargain
over the District’s decision to adopt the calendar changes voted on by the Calendar
Committee, or inquired about the District’s willingness to bargain over that decision.
This conduct does not demonstrate that the Faculty Union was intentionally
relinquishing its right to bargain over these changes.
The District also maintains that the Faculty Union’s conduct during the 2018-
2021 successor negotiations evidences a waiver. It points out that Faculty Union’s

52
negotiators did not demand bargaining or offer calendar proposals during contract
negotiations. The record shows that Adams, the Faculty Union’s chief negotiator, told
the District’s negotiating team that the calendar changes were negotiable and that his
team was waiting to see what would result from the then-ongoing discussions between
Knudson, Lee, and Ford. As discussed above, Knudson disagreed with Lee that the
calendar changes were subject to decisional bargaining.
Even assuming that the Faculty Union did not adequately express its desire to
bargain over the planned calendar changes, the District only ever agreed to bargain
over the negotiable effects of those changes. Although Knudson offered to meet with
Lee, he never expressed any willingness to bargain over the decision to change the
academic calendar. In responding to Knudson’s requests to meet, Lee offered dates
he was available to discuss the matter, but he insisted that the meetings lay the
groundwork for negotiations. For example, Knudson offered to meet in November
2019, but he canceled that meeting after Lee suggested that the Faculty Union’s chief
negotiator attend. Then, on November 25, 2019, Knudson wrote to Lee that because
the changes had been approved by the Calendar Committee, “[t]here is no further
obligation to ‘meet and negotiate’ the Calendar.”
When Knudson suggested another meeting in December 2019, Lee replied that
the parties’ bargaining teams should attend and that the meeting should be used to
establish protocols for negotiating over the calendar decision. Knudson replied that
participation by the bargaining teams was unnecessary and that, “[a]s stated on
numerous occasions in the past, the calendar is not subject to traditional negotiation.”
Knudson maintained the same position in his January 7, 2020 letter, even after the

53
Governing Board adopted the 2020-2021 academic calendar. Notwithstanding the
District’s expressed interest in meeting with the Faculty Union, these facts make clear
that the District remained unwilling to negotiate over the calendar change decision.
The Faculty Union had no obligation to request negotiations over this decision in the
face of the District’s unwavering refusal to do so. (Oxnard Unified School
District (2022) PERB Decision No. 2803, p. 49, citing County of Merced, supra, PERB
Decision No. 2740-M, p. 20 and Standard School District (2005) PERB Decision
No. 1775, adopting proposed dec. at p. 16.)
Under these circumstances, the District failed to prove that the Faculty Union
waived its right to bargain over the changes implemented starting in the 2020-2021
academic calendar by failing to request bargaining.
(c) The Business/Operational Necessity Defense
The District’s other affirmative defense to the unilateral change claim is that any
bargaining obligations it had over the changes to the academic calendar should be
excused due to operational necessity. Under “exceptionally limited circumstances,” an
employer may be excused from bargaining over an otherwise negotiable policy
change due a “true emergency.” (County of San Bernardino (Office of the Public
Defender) (2015) PERB Decision No. 2423-M (County of San Bernardino), p. 54,
citing Cloverdale USD, supra, PERB Decision No. 911.) To demonstrate this
“operational necessity” or “business necessity” defense, the employer must establish
an “actual financial or other emergency that leaves no alternative to the action taken
and allows no time for meaningful negotiations before taking action.” (County of San
Bernardino, p. 54, citing Calexico Unified School District (1983) PERB Decision

54
No. 357, adopting proposed dec. p. 20.) The “necessity,” moreover, must be the
unavoidable result of a sudden change in circumstances beyond the employer’s
control. (County of San Bernardino, p. 54, citing Lucia Mar Unified School District
(2001) PERB Decision No. 1440, adopting proposed dec. at p. 46.)
The District maintains that it only adopted the 2020-2021 academic calendar in
December 2019 due to the need to start developing the course catalog and assigning
faculty members to those courses. According to Knudson, this process can take
several weeks. Without a doubt, these are important actions for maintaining the
District’s ability to offer classes and other educational services to students throughout
the academic year. Nevertheless, these facts do not establish that there was an
unavoidable emergency requiring that the District unilaterally eliminate its Intersession
and expand its Summer session in 2021. The District had conceived of plans to
change its academic calendar in 2017. Shortly after discussions in the Calendar
Committee took place in March and April 2019, the Faculty Union was already
signaling its desire to negotiate these changes. Thus, the District was aware well
before December 2019 that negotiations might be required before the District could
implement its plans. The District produced no evidence of a specific need to adopt
these changes in the 2020-2021 academic year.
Any assertion that the District needed to change its academic calendar
unilaterally due to an unanticipated emergency is further undermined by the fact that
the Calendar Committee did anticipate that the District and the Faculty Union would
need time to reach agreement about a change of this magnitude. For that reason, the
Committee committed to reconvening to approve contingency calendars in the event

55
the parties could not agree on an academic calendar with no Intersession and a 12-
week Summer session. Without taking any position on whether the changes to the
academic calendar benefitted District students and other stakeholders, I find that the
District failed to establish that it had no alternative to unilateral action. For that
reason, the District has not established that its obligation to negotiate with the Faculty
Union was excused for reasons of operational or business necessity.
The Faculty Union has proved all of the elements of a unilateral policy change.
The District did not establish that any affirmative defenses excused its failure to
bargain over this issue. Therefore, the District’s unilateral action violated the duty to
meet and confer in good faith, which is unlawful under EERA section 3543.5,
subdivision (c). This conduct also derivatively violates employee and employee
organization rights, which is unlawful under EERA sections 3543.5, subdivisions (a)
and (b). (See Pasadena Area CCD, supra, PERB Decision No. 2444, p. 25.)
b. The Direct Dealing Claim
The Faculty Union also contends that the District committed a “per se” violation
of the duty to bargain in good faith by bypassing the union and communicating directly
with represented employees about the terms and conditions of employment. An
employer’s duty to bargain in good faith with an exclusive representative includes an
obligation not to communicate directly with employees to undermine or derogate the
representative’s exclusive authority to represent unit members. (City of Culver
City, supra, PERB Decision No. 2731-M, p. 22, citing Omnitrans (2010) PERB
Decision No. 2143-M, adopting proposed dec. at p. 12; Clovis Unified School District
(2002) PERB Decision No. 1504, p. 22; and Muroc Unified School District (1978)

56
PERB Decision No. 80, p. 13 (Muroc USD). An employer unlawfully bypasses an
exclusive representative when it deals directly with represented employees to create a
new policy of general application, or to obtain a waiver or modification of existing
policies applicable to those employees. (City of Culver City, p. 22, citing City of San
Diego (Office of the City Attorney) (2010) PERB Decision No. 2103-M, p. 7.) On the
other hand, once a policy is lawfully established, an employer may communicate with
employees in order to implement that policy. (Antelope Valley CCD, supra, PERB
Decision No. 2618, pp. 24-27, citing Walnut Valley Unified School District (1981)
PERB Decision No. 160, p. 6.)
In Ventura Community College District (1994) PERB Decision No. 1073, a
union claimed that the employer engaged in unlawful direct dealing by discussing
“negotiable options” with its classified senate. The Board dismissed this claim, finding
no evidence that the employer violated the parties’ agreement that the senate be
limited to addressing “non-union concerns.” It further found no evidence that anything
said by the employer to the senate represented a change in any positions taken with
the union. (Id., at p. 6, fn. 8, adopting proposed dec. at pp. 30-31; see also County of
Fresno (2004) PERB Decision No. 1731-M, adopting dismissal ltr. p. 2; but see
Oak Grove School District (1986) PERB Decision No. 582, pp. 17-19 (Oak Grove SD)
[holding that the creation of a “Teachers Forum” where represented employees
discussed solutions to negotiable issues unlawfully bypassed the union].)
Here, the Faculty Union alleges that Knudson unlawfully bypassed its status as
the exclusive representative of the faculty bargaining unit by a November 18, 2019 e-
mail he sent to Rider, the President of the Academic Senate. The e-mail describes

57
Knudson’s justifications for changing the academic calendar and stresses the
importance of giving “deference” to the Calendar Committee’s recommendation and
“work[ing] together to finalize a calendar without further delay[.]” Knudson does not
deny sending this e-mail and further acknowledges that he intended Rider to share the
e-mail with the other members of the Academic Senate, which is a participatory
governance body created under AP 2510, and is composed of faculty unit members.
These undisputed facts show that Knudson’s e-mail was a communication directly to
employees represented by the Faculty Union, advocating for changing hours and other
terms and conditions of employment.
Without citation to any supporting authority, the District argues that any
communications from Knudson to the Academic Senate are entitled to “qualified
immunity” because AP 2510 requires the District to consult with the Academic Senate
on academic and professional matters. However, when asked why he e-mailed Rider
in the first place, Knudson said nothing about an interest in consulting with the
Academic Senate.16 Rather, Knudson testified that the e-mail was part of a larger
push by the District to “share . . . the information that we had as broadly as we could.”
Furthermore, the District is required to adopt and comply with procedures when
responding to recommendations from the Academic Senate. (See Diablo Valley
College Faculty Senate v. Contra Costa Community College District (2007) 148
16 Rider’s e-mail sharing Knudson’s message with the Academic Senate
appears to offer some insight into his discussions with Knudson. But because Rider
did not testify and Knudson did not testify about their conversation in detail, the
content of this e-mail is uncorroborated hearsay, which may not be the sole basis for
any factual finding. (PERB Regulation 32176; Palo Verde Unified School
District (2013) PERB Decision No. 2337, p. 19.)

58
Cal.App.4th 1023, 1033, citing Cal. Code Regs., tit. 5, § 53202, subd. (d); see also
Cal. Code Regs., tit. 5, § 53200, subd. (d).) Here, AP 2510 defines its processes for
handling feedback from the Academic Senate on academic and professional matters.
It may accept the recommendation or explain to the senate why it cannot accept it.
Alternatively, matters that require the Academic Senate’s agreement are referred to
the Mutual Agreement Council. There was no evidence that the District followed these
approaches in this case. In fact, Knudson did not appear to be particularly interested
in knowing about the Academic Senate’s opinion of academic calendar changes at all.
The senate eventually adopted a resolution opposing the planned calendar changes,
which was read aloud during the December 9, 2019 Governing Board meeting.
Knudson testified that he did not even know about it and was unaware of its contents.
Thus, any claim that Knudson’s e-mail to Rider was part of an effort to consult with the
Academic Senate on academic and professional matters is unpersuasive.
The District also contends that no direct dealing violation should be found
because the content of Knudson’s e-mail was substantially similar to what had already
been communicated publicly to the Calendar Committee. It is true that an employer
does not bypass an exclusive representative by accurately communicating with union
members about negotiable matters in a manner consistent with its position in
negotiations. (Muroc USD, supra, PERB Decision No. 80, pp. 21-22.) However,
misleading comments about the status of negotiations and about terms still under
discussion in bargaining may constitute an unlawful bypass. (California State
University (1989) PERB Decision No. 777-H, adopting proposed dec. at pp. 13-15.)
“The touchstone for determining the propriety of an employer’s direct communication

59
with employees is the effect on the authority of the exclusive representative.”
(Petaluma City ESD/JUHSD, supra, PERB Decision No. 2485, pp. 31-32, citing
California State University, p. 9 and Muroc USD, pp. 19-20.)
In this case, Knudson’s e-mail was different in at least one key way from prior
public statements about calendar changes. His e-mail said that the typical 10 LHE
load limit for faculty during semesters does not apply during the proposed 12-week
Summer session and that adjunct faculty who had assignments in previous
Intersessions could “move to summer where they could teach up to 15 LHE and
more.” There is no evidence that Knudson made a similar statement to the Calendar
Committee or in any other public forum.17 This statement is significant because, in
successor negotiations, the District actually proposed retaining a 10 LHE limit for
adjunct faculty Summer teaching assignments, as contained in CBA Article X, Section
13.4. That proposal was ultimately included in the Tentative Agreement under review
by the Faculty Union at the time Knudson sent his e-mail. Knudson’s e-mail was
accordingly inconsistent with the District’s position in the still-ongoing negotiations,
and suggested that the planned calendar changes would offer more teaching
opportunities than what the District was offering in bargaining, a kind of direct
communication with employees long condemned as violating the principle of
exclusivity in negotiations. (Lake Elsinore Unified School District (1986) PERB
Decision No. 563, p. 4; Medo Photo Supply Corp. v. NLRB (1944) 321 U.S. 678, 683–
684.)
17 Knudson did say something similar in a private letter sent to Lee on
November 1, 2019.

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It is significant that Knudson’s e-mail to Rider was sent before either the
changes to the academic calendar were finalized and before the Tentative Agreement
for the 2018-2021 CBA was approved. Thus, Knudson was not merely communicating
with members about established policies. Rather, he was providing misleading
information about negotiable matters still under consideration.
The District argues that this bypass claim is untimely because Knudson had
been communicating about eliminating the Intersession since 2017 and because his
comments then were similar to those made in the November 18, 2019 e-mail to Rider.
Because a complaint has already issued on this claim, the District has the burden of
proving that this claim falls outside the six-month statute of limitations period under
EERA. (See Los Angeles Unified School District (2014) PERB Decision No. 2359, p.
3.) Here, the Faculty Union filed its UPC on February 13, 2020, which means that the
statute of limitations period extends back to August 13, 2019. The evidence shows
that, although Knudson had indeed commented about the calendar changes in the
past, he had not publicly made similarly misleading comments about the number of
LHEs available for adjunct faculty in a planned expanded Summer session. Because
these comments to Rider were unique and were within the statute of limitations period,
I reject the argument that this claim is untimely.
For all of these reasons, I hold that Knudson’s inaccurate communications
attempted to convince represented employees to change policies within the scope of
representation. This communication also appears to be designed to apply pressure
on the Faculty Union to accept the calendar changes without bargaining. The e-mail
accordingly unlawfully bypassed the Faculty Union as the exclusive representative of

61
the faculty bargaining unit. (See City of Culver City, supra, PERB Decision No. 2731-
M, p. 22.) This conduct is a violation of the duty to meet and confer in good faith,
which is unlawful under EERA section 3543.5, subdivision (c), with derivative
violations under subdivisions (a) and (b). (See Oak Grove SD, supra, PERB Decision
No. 582, pp. 19-20.)
c. The Refusal to Bargain Claim
The PERB complaint alleges that the District refused to bargain over the
changes to its academic calendar during a September 2019 successor negotiation
session. Since this was pleaded separately from the unilateral change claim,
discussed above, I view this claim as an independent claim, based on conduct from
the District’s bargaining team in negotiations.
Notwithstanding comments by Knudson and other administrators outside of
negotiations, about the District’s obligation to bargain over the decision to change its
academic calendar, there was relatively little evidence about what the parties’
bargaining teams said about the subject during negotiations. In March 2019, Adams,
the Faculty Union’s chief negotiator, stated that the calendar changes were negotiable
but he did not attempt to initiate bargaining at that time. Rather, the Faculty Union’s
team took the position that Knudson, Lee, and Ford had to resolve their disagreement
over how to proceed before the negotiation teams could begin discussions. There is
no evidence that the negotiating teams discussed the calendar issue further in
September 2019. And, although Adams’s hoped-for resolution never came, there is
insufficient evidence to find that the District’s negotiating team refused to bargain over
the calendar. This claim is therefore dismissed.

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2. The Surface Bargaining Claim
In this case, the Association contends that the District’s bargaining conduct,
viewed in its totality between March 2019 and January 2020, demonstrates an overall
pattern of bad faith. Bargaining in good faith is a subjective attitude that requires a
genuine desire to reach an agreement. (City of Placentia, supra, 57 Cal.App.3d at p.
25, citing NLRB v. MacMillan Ring-Free Oil Company, Inc. (9th Cir. 1968) 394 F.2d
26, NLRB v. Mrs. Fay’s Pies (9th Cir. 1965) 341 F.2d 489.) Surface bargaining, on the
other hand, describes a respondent who approaches its bargaining obligations only
superficially, without any actual intent to reach an agreement. At its essence, surface
bargaining occurs when a party “merely goes through the motions of negotiations, but
in fact is weaving otherwise unobjectionable conduct into an entangling fabric to delay
or prevent agreement.” (Muroc USD, supra, PERB Decision No. 80, p. 13, citing Inter-
Polymer Indus., Inc. (1972) 196 NLRB 729, 759-760.)
Here, the District never expressed any willingness to bargain over the decision
to change the academic calendar. Starting in as early as June 2019, District
administrators said that they were only willing to discuss the effects of the calendar
change. Knudson made unequivocal statements to that effect on November 25, 2019
and on December 4, 2019. It then adopted and implemented the changes to its
academic calendar without bargaining that decision. These facts support a unilateral
change theory, not a surface bargaining theory. There is no evidence, for example,
that the District made even a superficial attempt to comply with its obligation to
bargain over the decision to change the calendar or that it was “go[ing] through the
motions of negotiations” without the good faith intent of reaching an agreement. (See

63
Muroc USD, supra, PERB Decision No. 80, p. 13.) Thus, while this conduct was
inconsistent with the District’s duty to meet and confer in good faith, it does not
amount to unlawful surface bargaining. For that reason, this claim is dismissed.
REMEDY
PERB has broad remedial powers to effectuate the purposes of EERA. EERA
section 3541.5, subdivision (c), states:
“The board shall have the power to issue a decision and
order directing an offending party to cease and desist from
the unfair practice and to take such affirmative action,
including but not limited to the reinstatement of employees
with or without back pay, as will effectuate the policies of
this chapter.”
1. Remedy for the Unilateral Change Violation
To remedy violations of the duty to meet and confer in good faith, the Board
typically requires the respondent to cease and desist from violating EERA, rescind the
unlawful conduct, bargain, upon request, over the policy in question, and make whole
all of those who suffered losses because of the unlawful acts. (Pasadena Area CCD,
supra, PERB Decision No. 2444, pp. 23-24; see also CSEA, supra, 51 Cal.App.4th
923, 946.) These remedies are appropriate in cases where the employer has both
unilaterally changed negotiable matters and bypassed the exclusive representative.
(Antelope Valley CCD, supra, PERB Decision No. 2618, pp. 24-27; see generally City
of Culver City, supra, PERB Decision No. 2731-M, pp. 24-26.) In some cases, PERB
will stay its requirement to restore the status quo if necessary to prevent either
disruption to innocent third parties or interference with student or employee
operations. (Pasadena Area CCD, at p. 23.)

64
The Board ordered all of these remedies to address the unilateral calendar
changes in Pasadena Area CCD, supra, PERB Decision No. 2444. It acknowledged
that ordering an immediate rescission of the calendar change had the potential to
unreasonably disrupt the schedules and other plans for students, faculty, and staff.
(Id. at p. 24.) It accordingly found:
“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 . . . 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.”
(Ibid.)
A similar approach is warranted to address the bargaining violations found in
this case. The District is therefore ordered to: (1) cease and desist from unilaterally
adopting changes to the terms and conditions of employment for Faculty Union
bargaining unit members, bypassing the Faculty Union, and interfering with protected
rights; (2) rescind the unilaterally adopted and implemented calendar; (3) bargain, on
request from the Faculty Union, over future calendar changes that alter terms and
conditions of employment; and (4) make any bargaining unit members whole for
financial losses suffered as a result of the unilaterally adopted and implemented
calendar, with 7 percent annual interest.
As in Pasadena Area CCD, delaying the implementation of the rescission order
may be warranted to prevent undue disruption to student, faculty, and staff schedules.
The record shows that the District was able to adopt the calendar changes on
December 9, 2019 and implement these changes for the 2020-2021 academic year. A

65
similar timeline will be followed for rescinding those changes. Thus, the District should
rescind the unilaterally adopted changes to the academic calendar at the beginning of
the next successive academic year following service of the final decision in this matter,
unless the final decision is served after December 9 of an academic year. In that
case, rescission should occur at the beginning of the second successive academic
year following service of the final decision. (See Pasadena Area CCD, supra, PERB
Decision No. 2444, p. 24.)
The District is also ordered to post a notice of this violation and PERB’s ordered
remedies at all locations where notices to Faculty Union bargaining unit members are
typically posted. (Los Angeles Unified School District (1987) PERB Decision No. 611,
p. 7.)
PROPOSED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire
record in the case, it is found that ANTELOPE VALLEY COMMUNITY COLLEGE
DISTRICT (District) violated the Educational Employment Relations Act (EERA),
Government Code section 3540, et seq., by unilaterally changing its academic
calendar to eliminate its Intersession and expand its Summer session from 8 to 12-
weeks, and by dealing directly with faculty bargaining unit employees regarding the
calendar changes, thus bypassing their exclusive representative, the Antelope Valley
College Federation of Teachers (Faculty Union). All other claims were dismissed.
Pursuant to EERA section 3541.3, subdivisions (i) and (n) and section 3541.5,
subdivision (c), it hereby is ORDERED that the District, its governing board and its
representatives shall:

66
A. CEASE AND DESIST FROM:
1. Unilaterally changing the academic calendar in a manner that
alters employee hours and other working conditions, without providing the Faculty
Union with notice and the opportunity for bargaining.
2. Bypassing the Faculty Union and dealing directly with represented
employees about changes to the academic calendar that alters their hours and other
working conditions.
3. Interfering with employees’ right to be represented by the Faculty
Union.
4. Interfering with the Faculty Union’s right to represent its bargaining
unit members.
B. TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE ACT:
1. Rescind the unilaterally adopted changes to the academic
calendar at the beginning of the next successive academic year following service of
the final decision in this matter, and restore the academic calendar that is substantially
similar to the one that existed before the 2020-2021 academic year, unless the final
decision is served after December 9 of an academic year. In that case, rescission
should occur at the beginning of the second successive academic year following
service of the final decision.
2. Upon receiving a demand from the Faculty Union within 60 days of
the service of a final decision in this matter, meet and negotiate in good faith over the
decision to implement an academic calendar that eliminates the Intersession and

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expands the Summer session.
3. Make affected employees whole for any losses suffered as a
result of the change, including interest at the rate of 7 percent per annum.
4. Within 10 workdays of the service of a final decision in this matter,
post at all work locations where notices to employees in the Faculty Union’s
bargaining unit customarily are 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 30 consecutive workdays. The Notice shall also be posted by electronic
message, intranet, internet site, and other electronic means customarily used by the
District to communicate with faculty unit employees. Reasonable steps shall be taken
to ensure that the Notice is not reduced in size, altered, defaced, or covered with any
other material.18
18 In light of the ongoing COVID-19 pandemic, the District shall notify PERB
Office of the General Counsel in writing if, due to an extraordinary circumstance such
as an emergency declaration or shelter-in-place order, a majority of employees at one
or more work locations are not physically reporting to their work location as of the time
the physical posting would otherwise commence. If the District so notifies General
Counsel’s Office, or if the Faculty Union requests in writing that General Counsel alter
or extend the posting period, require additional notice methods, or otherwise adjust
the manner in which employees receive notice, the Office of the General Counsel shall
investigate and solicit input from all parties. General Counsel’s Office shall provide
amended instructions to the extent appropriate to ensure adequate publication of the
Notice, such as directing the District to commence posting within ten workdays after a
majority of employees have resumed physically reporting on a regular basis; directing
the District to mail the Notice to all employees who are not regularly reporting to any
work location due to the extraordinary circumstance, including those who are on a
short term or indefinite furlough, are on layoff subject to recall, or are working from
home; or directing the District to mail the Notice to those employees with whom it does
not customarily communicate through electronic means. (City of Culver City, supra,

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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
(PERB or Board), or the General Counsel’s designee. Respondent shall provide
reports, in writing, as directed by the General Counsel or his/her designee. All reports
regarding compliance with this Order shall be concurrently served on Faculty Union.
PERB Decision No. 2731-M, p. 29, fn. 13.)

The Board’s Order, which appears on pages 7-10 of this Decision, supersedes
the above proposed order. The proposed decision also contained an
explanation of appeal rights and a proposed appendix; those portions of the
proposed decision, which are superseded, are not shown here.