LANCASTER — A December 2018 decision by the Public Employment Relations Board in favor of the Antelope Valley College Federation of Classified Employees will stand after the California State Supreme Court declined to hear Antelope Valley Community College District’s petition to review.
The PERB ruling means the District will be required to pay overtime plus interest for all affected employees, or provide compensatory time off. The Board also called for the Federation and the District to negotiate a settlement.
“If they had worked with us in the beginning, they probably would have gotten what they wanted,” AVCFCE President Pamela Ford said. “Instead, they chose to ignore collective bargaining and do it their own way. This is an extremely satisfactory victory to an unsatisfactory beginning.”
“We are very pleased that the California State Supreme Court upheld PERB’s decision finding that the District violated collective bargaining by changing the work schedule,” Federation counsel David Conway, an attorney with the Law Office of Robert J. Bezemek, said.
The Federation filed an unfair practice charge against AV Community College District with the state Public Employment Relations Board after the District modified its operational schedule in February 2014 to offer extended hours from 7:30 a.m. to 6 p.m. Mondays through Thursdays, and from 7:30 to 11:30 a.m. Fridays.
District administrators implemented the change to provide students greater access to support services. At the time, office hours fluctuated by department and season, running from 8 a.m. to 4:30 or 5 p.m. Monday through Friday.
Full-time classified employees worked a typical five-day workweek with eight hours each day, 40 hours per week. If they worked more than eight hours in a single day, they would be eligible for overtime.
The Federation’s complaint alleged the District violated the Educational Employment Relations Act by changing the hours of operation, which affected classified employees’ hours of work, without notice or opportunity to bargain.
The District achieved a partial win in August 2016 when a Public Employment Relations Board Administrative Law Judge issued a proposed decision that applied to only a few Federation unit members.
The Federation appealed to the full three-person Public Employment Relations Board, challenging the proposed decision, and asked for a full review. The PERB hearing lasted a week.
“Our members are amazing. They came, and they testified. It was grueling, but they testified. They shared their facts and that’s what brought our case together,” Ford said, adding approximately 10 unit members testified.
After the PERB decision in favor of the union, the District filed a Writ of Extraordinary Relief with the state Court of Appeal. The court denied the District’s petition “on the ground that the petitioner has not stated facts, evidence or legal authorities sufficient to demonstrate entitlement to extraordinary relief,” according to the court document filed on Aug. 23.
The District filed a petition for review with the California Supreme Court. The Supreme Court issued a one sentence notice filed Oct. 30: “The petition for review is denied.”
The District issued a statement in response to a query from the Antelope Valley Press:
“We are confident that we followed the collective bargaining agreement as it is outlined in Article 11.2 and are disappointed that the initial ruling, which did not find the College in violation, was overturned by PERB and not further reviewed by the courts,” the statement said. “The college’s operational hours are optimal for providing our students access to the services they need to be successful. We will continue to provide operational hours that best meet the needs of our students and community.”
PERB’s order, dated Dec. 28, 2018, calls for the District to cease and desist from unilaterally changing workdays or workweeks for all or certain classes of unit employees without complying with the terms of the collective bargaining agreement between the District and the Federation.
In addition, the orders calls for the District to cease and desist from bypassing the Federation and dealing directly with unit employees regarding the establishment of modified workweeks for all or certain classes of unit employees.
The District also cannot refuse or fail to furnish a list of employee names affected by the schedule change in or around February 2014; interfere with employees’ right to be represented by the Federation, or the right of the Federation to represent employees.
It is too soon to say how much the PERB order will cost the District because the number of impacted employees is not yet known, neither is the time period to calculate back pay for which affected employees will be compensated. PERB’s order did say that all monetary amounts owed shall include 7% interest per year beginning with the start of the modified workweek in February 2014.
District officials said PERB’s order demands that AV College pay employees for time they did not work, noting employees who worked more than 40 hours per week were appropriately compensated.
Conway said the District owes daily overtime for those employees who worked more than eight hours in day.
The PERB’s order held that “(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,” the order states.
PERB also rejected District claims that employees approved the schedule changes.
“We cannot give effect to undocumented and unproven employee ‘approvals,’ especially since the District claims to have obtained these approvals when it refused to honor a contractually-required majority vote and unilaterally adopted a new policy allowing for one-on-one discussions in which supervisors could extract “approvals” from individual employees,” the order states.
“The District appears unwilling to accept the well-founded ruling of the Supreme Court and all lower tribunals, and continues to attempt to relitigate this case. Unfortunately for the District, it has reached the end of the road, and it has no choice now but to adhere to PERB’s decision on backpay and return represented employees to normal work schedules. We look forward to working with it as it finally complies with the law,” Conway said.
“No one was ever forced into a new work schedule,” a classified employee who declined to be named said, adding employees were instructed to work with their supervisors.
In addition, the employee said employees liked the modified schedule and support the District’s administration.
“This is what we all wanted,” the employee said, adding that the union does not represent all classified employees.
AV College has 246 classified employees, of whom 108 are member in the AV College Federation of Classified Employees, according to information provided by the college.
Ford wrote in an email that the union represents all classified employees in the bargaining unit.
“As a matter of fact the majority of employees who will benefit from the PERB decision are non-dues paying members,” Ford wrote. “We represent wholly and fully all bargaining unit members.”