Antelope Valley Community College District (PERB A487E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
ANTELOPE VALLEY COLLEGE
FEDERATION OF CLASSIFIED
EMPLOYEES,
Charging Party,
v.
ANTELOPE VALLEY COMMUNITY
COLLEGE DISTRICT,
Respondent.
Case No. LA-CE-5931-E
Administrative Appeal
PERB Order No. Ad-487
August 27, 2021
Appearances: Law Offices of Robert J. Bezemek by David Conway, Attorney, for
Antelope Valley College Federation of Classified Employees; Atkinson, Andelson,
Loya, Ruud & Romo by Mark R. Bresee, Attorney, for Antelope Valley Community
College District.
Before Banks, Chair; Krantz and Paulson, Members.
DECISION
BANKS, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on appeal by the Antelope Valley College Federation of Classified
Employees (Federation) of an administrative determination by PERB’s Office of the
General Counsel (OGC). In Antelope Valley Community College District (2018) PERB
Decision No. 2618, the Board found that the Antelope Valley Community College
District violated the Educational Employment Relations Act (EERA) by unilaterally
modifying workweeks without obtaining approval from a majority of affected unit

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employees represented by the Federation and by dealing directly with Federation
represented employees.1
-
Once the decision became final, OGC initiated compliance proceedings
pursuant to PERB Regulation 32980.2 After a seven-month investigation involving
multiple submissions from the parties, OGC issued an administrative determination to
narrow the compliance issues. OGC found, in relevant part, that the Board’s order:
(1) authorizes the District to compensate current employees with its choice of
compensatory time off or backpay pursuant to the parties’ collective bargaining
agreement (CBA); and (2) does not require unit members who subsequently changed
to a different alternate work schedule after February 2014, to be made whole for the
period following the subsequent change.3
The Federation timely appealed, seeking reversal of these two findings. The
District filed a response opposing the Federation’s appeal. We have considered the
parties’ arguments in light of relevant law and the record as a whole. We partially grant
the appeal and find that employees who subsequently changed to a different alternate
work schedule are entitled to the decision’s make-whole remedy until the District
1 EERA is codified at Government Code section 3540 et seq.
2 PERB Regulations are codified at California Code of Regulations, title 8,
section 31001 et seq.
3 Consistent with the language adopted by the underlying decision and used by
the parties, we refer interchangeably to “modified workweeks” and “alternate work
schedules.” The parties’ operative CBA defined alternate work schedules as any
schedule other than a typical 8 hours per day, five days a week (referred to as “5/8”).
Examples include, but are not limited to, 4 shifts of 9 hours, plus a half-day (referred to
as “4/9 + .5”), or 4 shifts of 10 hours per week (referred to as “4/10”).

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restores the standard 5/8 workweek, except to the extent that the District proves in
compliance proceedings that an employee successfully asked for a new schedule and
would clearly have done so irrespective of the District’s unfair labor practice. We affirm
OGC’s determination that the decision’s make-whole order allows the District to
choose whether to make affected employees whole by providing backpay or
compensatory time off.
PROCEDURAL AND FACTUAL SUMMARY
On December 28, 2018, the Board issued Antelope Valley Community College
District, supra, PERB Decision No. 2618. The remedial order requires the District, in
relevant part, to take the following affirmative actions:
“[B.]1. Within 45 days after this decision is no longer subject
to appeal, meet and negotiate upon demand from the
Federation regarding whether to rescind in whole or in part
the modified workweeks established unilaterally on or
around February 2014, as well as the process for
conducting new votes or polls of affected members. Once
negotiations begin, the parties will have 90 days to
conclude an agreement. If no agreement is reached in that
time, or if the Federation does not request to meet and
negotiate, then the District shall rescind the modified
workweeks in their entirety and restore the work schedules
in effect before February 2014.
“[B.]2. Furnish a list of the names of bargaining unit
members affected by the modified workweeks established
on or around February 2014.
“[B.]3. Make whole for any financial losses suffered,
including overtime wages or overtime leave in a manner
consistent with the decision in this matter, all unit
employees affected by the establishment of modified
workweeks on or around February 2014. The backpay
period shall run from the date of the implementation of the

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modified workweeks through the earliest of the following:
the date the Federation declines to negotiate over the
rescission of the modified workweeks, the date of any
agreement reached by the parties pursuant to paragraph
B.1, or, if no agreement is reached within 90 days of the
start of negotiations, the date on which the District fully
rescinds the unilateral changes to employee work
schedules. All monetary amounts owed shall be augmented
by interest at a rate of 7 percent per annum.”
In December 2019, OGC initiated compliance proceedings. Pursuant to
paragraph B.1 of the remedial order, the parties negotiated for 90 days, but were
unable to reach an agreement. Thereafter, OGC worked with the parties to narrow the
compliance issues. On March 22, 2021, the parties stipulated to four different
employee lists and identified four compliance issues requiring resolution, including the
following two issues subject to this appeal:
“1. Whether the District has the authority to implement the
remedy of compensatory time for ‘affected employees’ who
are still employed by the District.
[¶] . . . [¶]
“3. Whether PERB’s Order requires that unit members who
changed to a 4/9+.5 schedule ‘on or around February
2014,’ but who subsequently moved to a modified schedule
other than a 4/9+.5, are entitled to a make whole remedy
after changing to a different modified schedule. The
Federation contends they are, and the District contends
they are not . . .”

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On June 3, 2021, OGC issued an administrative determination addressing the
issues identified by the parties.4 The administrative determination noted that further
compliance proceedings were necessary to ensure that all affected employees are
made whole and that the District has returned to the status quo ante in accordance
with the Board’s Order. The Federation timely appealed the administrative
determination’s findings on the two issues identified above.
DISCUSSION
“Compliance proceedings are governed by PERB Regulation 32980,
subdivision (a), which provides in relevant part that ‘[t]he General Counsel or his/her
designate may conduct an inquiry, informal conference, investigation, or hearing, as
appropriate, concerning any compliance matter.’” (Bellflower Unified School
District (2019) PERB Order No. Ad-475, p. 8.) Compliance proceedings are not a
venue for relitigating the merits of the underlying decision and order. (Id. at p. 9, citing
City of Pasadena (2014) PERB Order No. Ad-406-M, p. 14; County of Riverside
(2013) PERB Decision No. 2336-M, p. 8.)
I. 	The remedial order allows the District to choose whether to compensate
employees through backpay or compensatory time off
The make-whole order requires the District to:
“Make whole for any financial losses suffered, including
overtime wages or overtime leave in a manner consistent
with the decision in this matter, all unit employees affected
by the establishment of modified workweeks on or around
February 2014. . . . All monetary amounts owed shall be
augmented by interest at a rate of 7 percent per annum.”
4 The compliance officer found it unnecessary to hold a hearing in light of the
extensive correspondence exchanged and evidence gathered during the investigation.
Neither party objected to this determination.

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(Antelope Valley Community College District, supra, PERB Decision No. 2618,
pp. 28-29.) We explained:
“[b]ut for the District’s unilateral change, the employee’s
ninth hour of work on the first four days of the week would
earn either wages or compensatory time off at a premium
time-and-a-half rate, per the contract; the District would
have a choice between those two options, also per the
contract. Thus, such an employee should earn either 42
hours of pay for the week, or should receive 40 hours of
pay plus two hours of compensatory time off, at the
District’s option.”
(Id. at pp. 25-26, footnote omitted.) In a footnote to the above explanation, we added
that “Article 11.5.1 of the parties’ contract provides that overtime is calculated on a
daily basis, after 8 hours a day, and that the District may choose to pay this overtime
in wages ‘equal to one and one-half the regular rate of pay’ or in compensatory
time-off at that rate.” (Id. at p. 26, fn. 9, italics added.)
Based on the decision’s analysis and the parties’ contractual provisions, we
agree with OGC’s determination that for individuals who are still employed with the
District, the District may choose to provide either backpay or compensatory time
pursuant to the contract.5
The Federation argues on appeal, as it has throughout compliance
proceedings, that the District should not be allowed to choose to provide
compensatory time in lieu of backpay. The Federation advances several arguments in
5 OGC correctly determined that individuals who are no longer working for the
District can only be made whole if they receive backpay. We agree with OGC that
regardless of whether employees receive backpay or compensatory time, the amount
owed must be augmented by interest at the rate of 7 percent per annum.

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support of its position. First, the Federation argues that the language of the remedial
order itself requires backpay. Based on our discussion above, we cannot read into the
remedial order a requirement that the District make affected employees whole with
backpay alone.
Second, the Federation argues that compensatory time is much less valuable
now, many years after it was earned, as employees were deprived of past
opportunities to use the time off. Although our make-whole remedies are designed to
restore the status quo and put aggrieved employees in the place they would have
been but for the employer’s unilateral change, we adjust for the inevitable passage of
time by awarding interest. In this case, because of the passage of time, the interest
awarded will be substantial. Moreover, allowing the District to choose the method of
compensation effectuates the parties’ CBA.
The Federation also points to several decisions where the Board required an
employer to provide backpay in the absence of an agreement with the union to
substitute compensatory time off. (See Mark Twain Union Elementary School District
(2003) PERB Decision No. 1548; Corning Union High School District (1984) PERB
Decision No. 399; Cloverdale Unified School District (1991) PERB Decision No. 911.)
The cases cited by the Federation are inapposite because the parties to those cases
did not have contractual provisions allowing the employer to decide whether to
compensate overtime via wages or compensatory time. Here, on the other hand,
Article 11.5.1 of the parties’ CBA provides that “[t]he District may provide for
compensatory time off at the appropriate rate in lieu of payment for authorized over
time service.”

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Finally, the Federation argues that if the District chooses to make employees
whole with compensatory time off, in some instances it will violate the federal Fair
Labor Standards Act (FLSA) and the Education Code.6 As a threshold matter, PERB’s
jurisdiction is limited to enforcing California public sector labor relations statutes, and
thus we cannot enforce either the Education Code or the FLSA. (Lake Elsinore Unified
School District (2018) PERB Decision No. 2548, p. 11.) PERB can, however,
harmonize our interpretations of the statutes we administer with other statutory
schemes. (See Fremont Unified School District (1997) PERB Decision No. 1240,
pp. 5-6 [finding that the parties’ contractual provisions did not conflict with the
Education Code and were therefore not preempted by it].) With these considerations
in mind, we address the parties’ arguments.
The Federation argues that if the District were to comply with the remedial order
by providing compensatory time, it would violate Education Code section 88028, which
provides that “[w]hen compensatory time off is authorized in lieu of cash
compensation, such compensatory time off shall be granted within 12 calendar months
following the month in which the overtime was worked and without impairing the
services rendered by the employing district.” The District, in contrast, argues that the
parties’ CBA overrides section 88028. Because PERB does not enforce the Education
Code, we need not decide whether the District or the Federation has the correct view
6 The FLSA is codified at title 29 United States Code section 201 et seq. The
FLSA and accompanying regulations permit public employees to receive
compensatory time off in lieu of overtime compensation, under specified conditions.
The statutory and regulatory framework includes extensive requirements regarding
such time off in lieu of extra pay. For the reasons outlined below, we express no
opinion as to whether the District may be in danger of violating any such requirements.

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as to whether and how section 88028 may impact the District’s choice to comply with
our remedial order via cash payments or compensatory time off. If the District chooses
to make affected employees whole with compensatory time, it does so at its peril
based on its interpretation of the CBA and the Education Code, but PERB is not the
appropriate venue for the Federation to address any potential Education Code
violation.
Likewise, we decline to adjust our order based upon the Federation’s argument
that the District will run afoul of the FLSA if it makes affected employees whole via
compensatory time. As with potential Education Code complications, we need not
decide whether the District or the Federation has the correct view of the FLSA, which
PERB also lacks jurisdiction to enforce. The District may choose to comply with the
remedial order via cash payments, and it acts at its peril if chooses instead to provide
compensatory time off, based on its FLSA interpretation.7
7 By e-mail dated April 27, 2020, the District informed affected employees that it
“will grant compensatory time off on Friday afternoons or at other times with the
approval of a supervisor.” It is unclear whether this statement is consistent with the
FLSA and the parties’ agreement and/or past practice regarding use of compensatory
time. If the Federation believes that the District’s compliance would treat
compensatory time differently from the status quo ante, the Federation may raise that
in compliance proceedings. OGC should strive to restore the status quo ante by
directing that compensatory time off provided pursuant to the remedial order shall be
equivalent in all respects to compensatory time off under pre-existing agreements and
practices or any new practices the parties may negotiate.

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II. 	Employees who changed to a different alternate work schedule after February
2014 are presumptively entitled to be made whole until reverted to the 5/8
schedule
The administrative determination found that “[t]he Board’s Order does not
require that unit members who changed to a 4/9+.5 schedule ‘on or around February
2014,’ but who subsequently moved to a modified schedule other than a 4/9+.5, are
entitled to a make whole remedy after changing to a different modified schedule.” The
Federation argues that this is incorrect, citing to the following language in the Board’s
order:
“The backpay period shall run from the date of the
implementation of the modified workweeks through the
earliest of the following: the date the Federation declines to
negotiate over the rescission of the modified workweeks,
the date of any agreement reached by the parties pursuant
to paragraph B.1, or, if no agreement is reached within 90
days of the start of negotiations, the date on which the
District fully rescinds the unilateral changes to employee
work schedules.”
(Antelope Valley Community College District, supra, PERB Decision No. 2618,
pp. 28-29, italics added.) The Federation further argues that an employee’s
subsequent change to a different alternate work schedule presumptively flowed from
the District’s 2014 unilateral change.
To resolve this dispute, we first review the applicable burden of proof. It is the
respondent’s burden to demonstrate its compliance with PERB’s remedial order.
(Hacienda La Puente Unified School District (1998) PERB Decision No. 1280,
adopting proposed decision at pp. 8-9; City & County of San Francisco (2021) PERB
Decision No. 2757-M, p. 15, fn. 10.) The Board’s finding “that an unfair labor practice

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was committed is presumptive proof that at least some backpay is owed.” (Bellflower
Unified School District, supra, PERB Order No. Ad-475, p. 10, citing Arlington Hotel
Co., Inc. (1987) 287 NLRB 851, 855.) “‘[A]ny uncertainty [as to backpay] must be
resolved against the wrongdoer whose conduct made certainty impossible.’” (Id.,
quoting Fibreboard Paper Products Corp. (1969) 180 NLRB 142, 143; City of
Pasadena, supra, PERB Order No. Ad-406-M, p. 14; Fresno County Office of
Education (1996) PERB Decision No. 1171, p. 2 & adopting proposed decision at
p. 4.)
We agree with the Federation that: (1) affected employees who later changed
to a different modified work schedule may very well have done so at least in part
because of the District’s unilateral change; and (2) any uncertainty on that question is
a direct result of both the District’s initial unlawful conduct and its failure to undo its
unilateral change as the order requires. Had the District complied with our order in the
last 33 months since the order was issued, it would have immediately cut off its
liability. Nonetheless, we recognize that there could be instances in which the District
can prove that an employee requested, for instance, a 4/10 schedule due to new
childcare responsibilities, and would have done so irrespective of the District’s 2014
unilateral change. Accordingly, we direct OGC to afford the District the opportunity to
prove by competent evidence that certain employees’ compensation should be cut off
because they successfully asked for new schedules and would clearly have done so
irrespective of the District’s unfair labor practice. Any uncertainty is to be construed
against the District.

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ORDER
This matter is remanded to PERB’s Office of the General Counsel where
additional evidence will be collected to determine whether the District has complied
with the remedial order in Antelope Valley Community College District (2018) PERB
Decision No. 2618, in accordance with this Order.
Members Krantz and Paulson joined in this Decision.