Los Angeles Community College District (PERB 0252E)

STATE 	OF 	CALIFORNIA
DECISION 	OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
LOS ANGELES 	CITY AND COUNTY 	SCHOOL
EMPLOYEES UNION, LOCAL 99, 	SERVICE
EMPLOYEES 	INTERNATIONAL 	UNION,
AFL-CIO,
Charging 	Party,
v.
LOS 	ANGELES 	COMMUNITY 	COLLEGE
DISTRICT,
Respondent.
Case No. 	LA-CE-1091
PERB Decision No. 	252
October 18, 	1982
Appearances: 	Mary L. 	Dowell, Attorney for Los Angeles
Community College District; 	Jeff 	Paule, 	Attorney 	(Geffner 	&
Satzman) 	for 	Los Angeles City 	and County School Employees
Union, 	Local 99, Service Employees International Union, AFL-CIO.
Before: 	Jaeger, Morgenstern and Jensen, Members.
DECISION
MORGENSTERN, 	Member: 	This 	case 	is before 	the Public
Employment Relations Board 	(PERB or 	Board) 	on exceptions 	filed
by 	the Los Angeles Community College District 	(District) 	to a
hearing 	officer's 	proposed 	decision 	finding 	that 	the 	District
violated subsections 3543.5(a), 	(b) 	and 	(c) 	of 	the Educational
Employment 	Relations Act 	(EERA)1 by 	unilaterally 	changing 	the
shift of 	approximately 	15 	custodial 	employees 	at 	Southwest
1EERA 	is 	codified 	at 	Government 	Code 	section 	3540
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College 	without 	informing 	and 	bargaining 	with 	the 	exclusive
representative, 	Los 	Angeles 	City 	and County School Employees
Union, 	Local 99, Service Employees International Union, AFL-CIO
(Local 99, 	Charging Party or Union). 	The District further
excepts 	to 	the 	hearing 	officer's proposed 	order 	reinstating 	all
affected 	custodial employees 	to 	their 	former 	shift 	with 	back
pay.
et 	seq. 	All 	statutory 	references 	are 	to 	the 	Government 	Code,
unless 	specified 	otherwise.
Subsections 3543.5(a), 	(b) 	and 	(c) 	provide as follows:
It 	shall be 	unlawful 	for 	a public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate or 	threaten 	to
discriminate 	against employees, 	or otherwise
to interfere with, 	restrain, 	or coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
In 	its 	exceptions, 	the District argues 	that 	the 	language
contained 	in 	a 	collective 	bargaining 	agreement 	between 	the
parties 	as 	well 	as 	the 	negotiating 	history 	leading 	to 	the
agreement 	indicate 	a 	waiver 	of 	the 	right 	to 	negotiate 	on 	the
shift 	change, 	that 	inaction on 	the 	part 	of 	the Charging Party
constituted 	a waiver of 	the 	right 	to 	negotiate, 	that Education
NU	2

Code 	section 881832 	precludes 	the 	remedy 	ordered 	by 	the
hearing officer, 	and 	that 	the parties 	have 	already 	negotiated
and 	reached 	agreement 	on 	the matter 	in dispute.
For 	the 	reasons 	set 	forth below, 	we affirm 	the 	hearing
officer's 	proposed 	decision 	but modify 	his 	ordered 	remedy.
FACTS
Local 99 	is 	the exclusive 	representative of a maintenance
and operations 	unit of District classified employees, 	including
employees 	on 	ten 	college 	campuses 	and 	including 	a
classification 	called 	"Custodian." 	At 	some 	colleges,
custodians 	work 	in 	shifts 	collectively 	covering 	24 	hours 	a
day. 	Where 	there 	is a shift 	system, 	the 	"A" 	shift 	(7:00 	a.m.
to 3:00 	p.m.) 	is paid a straight 	salary schedule. 	The 	"B"
shift 	(3:00 p.m. 	to 	11:00 p.m.) 	is paid 	on 	the 	salary schedule
plus a shift differential of 	5.5 percent. 	The 	"C" 	shift
(11:00 p.m. 	to 	7:00 a.m.) 	is paid 	on 	the 	salary schedule plus 	a
shift 	differential of 	11 percent.
During 	the 	summer of 	1978, 	after 	the passage of
Proposition 13, 	all custodians 	in 	the District were 	reassigned
2 Education Code 	section 88183 	states 	as 	follows:
Assignment 	to 	duties 	for 	which differential
compensation 	is 	designated, 	other 	than a
temporary 	assignment of 	less 	than 	20 	working
days, 	shall be made on the basis of
seniority among 	those 	employees 	within 	the
appropriate 	class 	who 	request 	such 	an
assignment.
W	
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to 	the 	"A" 	shift 	for a period of 	three 	weeks. 	This 	action was
rescinded, 	however, 	when it was discovered that, 	if 	the
employees 	remained on 	the 	"A" 	shift 	for more 	than 	20 	days,
Education 	Code 	section 	88183 	would 	permit 	more 	senior 	employees
who wanted a 	"B" 	or 	"C" 	shift assignment 	to request 	it 	if 	those
shifts 	were 	reinstated. 	Thereafter, 	on an 	individual college
basis, 	some 	colleges began 	to consider 	eliminating 	the 	"C"
shift 	entirely 	as 	a cost-saving 	measure.
Evidence 	was 	introduced 	concerning 	the 	experience 	at 	five
other 	colleges 	in 	the District where 	elimination of 	the 	"C"
shift 	was 	considered. 	In 	every case, 	Local 99 	was 	apprised of
the 	intended change, 	engaged 	in discussions with
representatives of 	the District 	and/or 	the college, 	and 	reached
agreement. 	At Harbor 	College 	and Los Angeles Trade Tech, 	the
"C" 	shift was ultimately eliminated; 	at Valley College 	and
Los Angeles City College, 	the 	"C" 	shift was not eliminated; 	at
Pierce College, 	a compromise 	was 	reached wherein 	the 	"C" 	shift
hours 	were 	modified.
At Southwest College, 	however, 	the experience was
significantly different. 	Until 	late January 1979, 	Local 	99 	had
no 	designated 	representative 	at 	Southwest 	and 	essentially 	no
presence at 	the college. 	Stan Chow, 	Dean at Southwest College,
testified 	that 	until January 1979, 	he did 	not 	know 	that
Local 	99 	was 	the exclusive 	representative of 	custodial
employees 	and 	did 	not 	know 	that 	a contract was 	in 	existence
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between Local 	99 	and 	the District. 	Consequently, 	Local 	99 did
not 	have 	notice of 	the 	shift 	change 	until 	several months 	after
it 	was 	implemented.
Southwest 	College 	representatives 	did, 	however, 	inform the
affected 	custodial 	employees 	of 	the 	contemplated 	change 	at
meetings held on June 26, 	1978, December 8, 	1978, 	and
January 1979. 	In 	the 	early meetings, 	the elimination of 	the
"C" 	shift was presented 	as a possibility, 	and 	transfer 	options
and 	loss of 	pay differential 	were discussed. 	At 	the
January 1979 	meeting, 	Chow 	stated 	that 	the 	"C" 	shift would 	be
eliminated.
According 	to 	the 	testimony 	of 	both 	Chow 	and 	the 	college
president, 	Walter E. McIntosh, the decision 	to eliminate 	the
"C" 	shift 	had 	been 	firmly made 	and was 	final by 	the 	time of 	the
January 	1979 	meeting.
No 	representative 	of 	Local 	99 	was 	notified 	of 	or 	present 	at
the 	employee meetings. 	In late January 1979, 	after 	the 	last
employee meeting, 	Local 	99 	designated Reggie McCoy as 	shop
steward 	at 	Southwest. 	McCoy 	had been present 	at 	two of 	the
employee meetings.
On September 	6, 	1978, 	Chow had contacted Ernest Moreno of
the District's 	staff 	relations 	department, 	asking 	for 	guidance
regarding 	the procedure 	to 	be 	followed 	in 	the 	elimination of
the 	"C" 	shift. 	He 	was 	informed 	that 	the elimination of 	the 	"C"
shift 	was 	management's 	prerogative.
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Chow 	recommended elimination of 	the 	"C" 	shift 	in his
proposed 	budget 	for 	the 	1979-80 	school year, 	submitted 	to
President 	McIntosh 	between 	October 	and 	November 	1978.
The 	custodial 	"C" 	shift was eliminated, 	effective July 	1,
1979.
A petition, 	signed 	by 	custodial employees 	opposing 	the
shift change 	and dated August 9, 	1979, 	was 	sent 	to Local 	99.
However, Mr. 	Howard Friedman, 	secretary-treasurer of Local 99,
testified 	that Local 	99 	first became 	aware of 	the 	shift 	change
problem 	in 	early 	October.
On November 26, 	1979, Friedman wrote 	to Dr. 	McIntosh
opposing 	the 	unilateral 	shift 	change, 	urging 	rescission of 	the
action, 	and 	indicating 	a desire 	to negotiate 	on 	the 	subject. 	A
copy of 	the letter 	was 	sent 	to Dan Means, 	director of 	staff
relations 	for 	the District. 	This 	was Means' first 	formal
notification of 	the shift change. 	However, 	he 	had been
unofficially 	notified 	of 	the 	change 	by Mr. 	Moreno's 	discussions
with 	Chow 	some 	six 	months 	earlier. 	Following 	receipt of 	the
letter, 	McIntosh 	asked Chow 	to handle 	the matter 	and Chow
called Means for 	advice. 	Pursuant 	to Means' 	advice, 	Chow sent
a letter 	to Friedman on November 	30, 	1979, 	stating as 	follows:
For 	your 	information 	the 	college 	action 	was
conducted 	in an 	appropriate manner. 	Should
you wish 	to pursue 	further 	action 	I 	would
refer you 	to Mr. 	Daniel Means of Staff
Relations 	at 	the District office.
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No 	further 	communication between 	Local 	99 	and 	the 	District
took place on this 	issue and, 	on December 	21, 	1979, Local 99
filed 	the 	unfair 	practice 	charge 	which 	is 	the 	subject of 	this
case.
At all 	relevant 	times, 	the parties were 	signatory to a
collective bargaining 	agreement executed 	on May 24, 	1978. 	The
agreement 	includes 	a 	"zipper 	clause" 	which 	states 	as 	follows:
The 	parties 	agree 	that 	during 	the
negotiations 	which 	culminated 	in 	this
Agreement 	each 	party 	enjoyed 	and 	exercised
without restraint, 	coercion, 	intimidation,
or 	other 	limitations, 	the 	right 	and
opportunity 	to make demands 	and 	proposals 	or
counterproposals 	with 	respect 	to 	any matter
not 	reserved 	by policy or 	law 	from
compromise 	through 	bargaining 	and 	that 	the
understandings 	and 	agreements 	arrived 	at
after 	the 	exercise of 	that 	right 	and
opportunity are 	set 	forth 	herein.
Except 	as provided 	in Section 2 of 	this
Article and Article XXI, 	the parties agree,
therefore, 	that 	the other 	shall not be
obligated 	to 	negotiate 	or 	bargain
collectively with 	respect 	to 	any 	subject 	or
matter, 	whether 	referred 	to herein or 	not,
even 	through 	[sic] 	such 	subject or matter
may 	not 	have 	been 	in 	the 	knowledge 	and
contemplation of 	either 	or 	both of 	the
parties 	at 	the 	time 	that 	they negotiated or
signed 	this Agreement.
The 	agreement 	also 	contains 	a 	"shift 	differential" 	section
which 	states:
All 	employees 	covered 	by 	this 	Agreement
shall 	receive a 	two 	(2) 	salary schedule
shift 	differential 	for 	each 	day 	that 	50% of
their 	shift 	falls within 	the 	hours of
5:00 	p.m. 	to 	12:00 	midnight 	and 	a 	four 	(4)
salary 	schedule 	shift differential 	for 	each
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day 	that 	50% of 	their 	shift 	falls within 	the
hours 	of 	12:00 	midnight 	to 	7:00 	a.m. 	An
employee 	receiving 	a 	shift 	differential
shall 	not 	be paid 	the differential 	if
reassigned 	to a 	shift 	not qualifying 	for
such payment.
The 	agreement 	does 	not 	provide 	for 	binding 	arbitration 	of
grievances. 	No grievance 	was 	filed 	on 	the 	shift 	change 	at
issue here.
As 	a result of 	the 	shift 	change 	at 	Southwest College,
approximately 	15 	employees 	who 	formerly worked 	the 	"C" 	shift
were 	transferred 	to 	the 	"B" 	shift, 	and 	their 	wages were 	reduced
by 	loss of 	the 	5.5 	percent 	shift differential.
DISCUSSION
The 	District 	acknowledges 	that 	the 	elimination of 	the
custodial 	"C" 	shift 	and 	the 	reassignment of employees 	to other
shifts 	affected 	the 	wages 	and 	hours of 	employees, 	that 	wages
and 	hours 	are 	expressly 	included 	in 	the 	scope of
representation, 	and 	that 	the 	unilateral 	change of 	any matter
within 	the 	scope of 	representation 	is 	considered 	a violation of
the 	statute.
The 	District's 	belated 	admission 	of 	negotiability 	stands 	in
marked 	contrast 	to 	its 	actual conduct 	in 	this 	case. 	In fact,
the District 	took 	the position 	that 	it 	had 	no obligation 	to
negotiate 	regarding 	the 	change. 	In September 	1978,
Ernest Moreno of 	the 	District's 	staff 	relations 	office 	advised
Stan Chow, 	dean at Southwest College, 	that 	the 	shift change was
management's prerogative. 	Chow, 	who was not 	aware 	that
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Local 	99 	was 	the exclusive 	representative of 	the 	custodial
employees 	or 	that 	a contract 	between 	the 	union 	and 	the 	District
existed, 	followed Moreno's 	advice. 	Neither 	he 	nor 	any
representative 	of 	Southwest or 	of 	the District 	ever 	notified
Local 	99 of 	its 	intended 	action. 	In November 	1979, 	the
District director 	of staff 	relations, 	Dan Means, 	reiterated 	the
District's position 	by 	advising 	Chow 	to 	inform Local 	99 	that
the 	change 	"was 	conducted 	in 	an 	appropriate manner."
Thus, 	the District maintained 	that 	the 	shift 	change 	was
non-negotiable 	and 	that 	it 	was 	not obligated 	to give Local 	99
notice 	and 	an opportunity 	to 	negotiate 	about 	it. 	This
position, 	and 	the District's 	actions 	in accordance 	therewith,
clearly violate 	its 	duty 	to 	negotiate 	in good 	faith. 	San Mateo
Community College District 	(6/8/79) 	PERB Decision No. 	94;
Pajaro Valley Unified 	School 	District 	(5/22/78) 	PERB 	Decision
No. 	51. 	Where an employer 	refuses to discuss a proposal
because 	he 	denies 	its 	negotiability, 	the 	lawfulness of 	the
employer's 	position 	turns 	on 	the 	negotiability of 	the 	subject.
Sierra 	Joint 	Community College 	District 	(11/5/81) 	PERB Decision
No. 179.
As 	its 	sole defense, 	the District argues 	that Local 99
waived 	its 	right 	to 	negotiate, 	advancing 	several 	alternative
theories.
For 	an 	employer 	to 	show 	that 	a union waived 	its 	right 	to
negotiate, 	it must 	demonstrate either 	"clear 	and 	unmistakable"
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language, 	or 	demonstrative 	behavior 	waiving 	a 	reasonable
opportunity 	to 	bargain over 	a decision 	not 	already 	firmly made
by 	the 	employer. 	Sutter 	Union High 	School District 	(10/7/81)
PERB Decision No. 	175; 	San Mateo Community College District,
supra; 	and 	see Amador Valley Joint 	Union High 	School 	District
(10/2/78) 	PERB Decision No. 	74. 	Additionally, 	a waiver must be
an 	intentional 	relinquishment of 	the 	union's 	rights 	under
EERA. 	San Francisco Community College District 	(10/12/78) 	PERB
Decision No. 	105.
Here, 	the District has 	failed 	to 	show, 	under 	any of 	its
several alternative 	theories, 	that Local 99 clearly,
unmistakably 	and 	intentionally waived 	its 	right 	to 	negotiate
the elimination of 	the custodial 	"C" 	shift 	at Southwest College.
Waiver 	by Contract
The District 	argues 	that 	the 	"zipper" 	and 	shift
differential clauses 	in 	its contract, 	read 	together, 	constitute
a contractual waiver 	of 	the 	right 	to 	negotiate 	about 	this 	shift
change, 	and 	that 	the history of 	negotiations 	supports 	this
interpretation of 	the contract.
Contract 	terms 	will 	not 	justify 	a unilateral management 	act
on 	a mandatory 	subject of 	bargaining 	unless 	the 	contract
expressly 	or 	by 	necessary 	implication 	confers 	such 	right.
New York Mirror 	(1965) 	151 NLRB 834, 	[58 LRRM 1465, 	1467].
Here, 	the contract 	contains 	no management 	rights 	clause 	and 	no
provision 	expressly 	reserving 	to 	the 	District 	the 	right 	to
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unilaterally change 	or eliminate 	shifts. 	Nor 	is 	such 	right
necessarily 	implied. 	Dan 	Means 	testified 	for 	the District 	that
no management 	rights clause 	was 	included 	in 	the 	contract
because 	he 	believed 	that 	both 	parties 	understood 	that 	all
unnegotiated 	rights 	were 	reserved 	to management. 	However, 	he
also 	testified 	that 	no management 	rights 	clause 	was 	ever 	put on
the 	table 	and 	that 	he 	never 	discussed his 	philosophy of
reserved 	rights 	during 	negotiations. 	His 	opinion 	that 	the
union 	negotiator 	shared his 	philosophy 	was 	based 	on 	expressions
to 	the effect 	that, 	"The District had all 	the laws, 	all 	the
rules 	and 	regulations 	in their 	favor 	. 	. 	. 	the District had all
the 	rights." 	These 	rhetorical 	remarks 	and Mean's 	unspoken
philosophy 	fall 	far 	short of 	evidence 	sufficient 	to 	imply
agreement 	between 	the 	parties 	granting 	the 	District 	the 	right
to 	unilaterally 	change 	shifts.
Similarly, 	the 	zipper 	clause 	does 	not 	constitute 	a clear
and 	unmistakable 	waiver 	as 	to 	any 	specific 	item. 	Amador 	Valley
Joint Union High School District, 	supra. 	The purpose of a
zipper 	clause 	is 	to 	foreclose 	further 	requests 	to 	negotiate
regarding 	negotiable matters, 	even 	if 	not previously
considered, 	during 	the 	life of a contract. 	It does not,
however, 	cede 	to 	the employer 	the power 	to make unilateral
changes 	in 	the 	status quo. 	See Gorman, 	Labor Law 	(1976)
pp. 	471-472. 	If such power exists, 	it must be found elsewhere
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in 	the 	contract. 	Here, 	the District 	erroneously points 	to the
shift 	differential clause.
The 	shift 	differential clause 	states, 	in pertinent part,
that, 	"An employee 	. 	. 	. 	shall not be paid the differential 	if
reassigned 	to 	a 	shift 	not 	qualifying 	for 	such 	payment." 	The
hearing 	officer 	correctly 	concluded 	that 	this 	section 	only
specifies 	the method 	of payment 	when 	an 	employee 	changes 	shifts
and 	not 	why, 	how or 	under 	what circumstances 	such 	reassignment
may 	be made. 	This 	section does 	not 	expressly or 	by necessary
implication grant 	the District 	a 	right 	to make 	such
reassignments 	without prior 	notice 	and 	consultation with 	the
Union. 	Nor 	does 	it 	have 	such effect 	when 	read 	in 	conjunction
with 	the 	zipper 	clause.
Thus, 	the 	hearing 	officer 	properly 	determined 	that 	the
contract 	does 	not 	clearly 	and 	unmistakably 	waive 	the 	union's
right 	to 	negotiate 	regarding 	a 	shift change or 	elimination.
History 	of 	Negotiations
The 	District properly 	excepts 	to 	the 	hearing 	officer's
failure 	to 	consider 	the 	bargaining 	history 	which 	resulted 	in
the contract between the parties. 	Nonetheless, 	consideration
of 	the 	bargaining 	history, 	as 	presented 	by 	the 	District,3
fails 	to 	reveal 	a clear 	and 	unmistakable 	waiver.
3The 	Union 	presented 	no 	testimony 	regarding 	the
negotiations.
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Under 	the National Labor 	Relations Act 	(NLRA or Act), 	union
conduct 	in negotiations will make out a waiver 	only 	if 	a
subject 	was 	"fully discussed" 	or 	"consciously 	explored" 	and 	the
union 	"consciously yielded" 	its 	interest 	in the matter. 	Press
Co. 	(1958) 	121 NLRB 	976. 	Moreover, 	where a provision would
normally 	be 	implied 	in 	an 	agreement 	by operation of 	the Act
itself, 	a waiver 	should be express, 	and a mere 	inference, 	no
matter 	how strong, 	should be 	insufficient. 	NLRB v. 	Perkins
Machine 	(1st Cir. 	1964) 	326 F.2d 488, 	[55 LRRM 2204]; 	and see
American Telephone and Telegraph Co. 	(1980) 	250 NLRB 47. 	The
fact 	that 	a 	union drops 	a 	contract proposal 	during 	the 	course
of 	negotiations 	does 	not mean 	it 	has waived 	its 	bargaining
rights 	and 	ceded 	the matter 	to management prerogative. 	Beacon
Piece Dyeing 	and Finishing Co. 	(1958) 	121 NLRB 953. 	Where,
during 	negotiations, 	a union attempts 	to 	improve 	upon or, 	as 	in
this 	case, 	to codify the 	status quo 	in the contract and 	fails
to do 	so, 	the 	status quo remains 	as 	it was before 	the proposal
was 	offered. 	The 	union has 	lost 	its 	opportunity 	to codify 	the
matter, 	it 	has 	failed 	to make 	the matter 	subject 	to 	the
contract's 	enforcement procedures 	or 	to 	gain 	any other 	benefit
that might 	have 	accrued 	to 	it 	if 	its effort 	had 	succeeded.
Where, 	as here, 	the contract contains a zipper clause, 	the
union 	has also 	lost 	its 	right 	to 	reinstitute 	its 	dropped
contract proposal or 	any 	similar 	or 	related 	proposal during 	the
term of 	the 	contract. 	But 	the 	union 	has 	not 	relinquished 	its
13

statutory 	right 	to 	reject 	a management 	attempt 	to 	unilaterally
change 	the 	status quo without 	first 	negotiating 	with 	the
union. 	In a 	sentence, 	by dropping 	its 	demand, 	the 	union loses
what 	it 	sought 	to gain, 	but 	it 	does 	not 	thereby grant
management 	the 	right 	to 	subsequently 	institute 	any 	unilateral
change 	it 	chooses. 	A contrary 	rule 	would 	both 	discourage 	a
union 	from making 	proposals 	and management 	from 	agreeing 	to 	any
proposals 	made, 	seriously 	impeding 	the 	collective 	bargaining
process. 	Beacon Piece, 	supra.
Here, 	the District's 	testimony 	and 	documentary evidence
indicate 	that 	the 	zipper 	and 	shift differential 	clauses
contained 	in 	its 	contract 	differ 	from 	the Union's 	proposals 	on
these 	subjects offered 	during 	negotiations. 	Specifically, 	the
Union's 	proposed 	shift 	differential 	clause 	would 	authorize
employees 	to continue 	to 	receive a 	shift differential 	if
temporarily 	reassigned 	to 	a 	shift 	not 	qualifying 	for 	it. 	The
Union's 	proposed 	zipper 	clause 	contained 	a 	number 	of provisions
specifying 	the 	Union's 	right 	to 	receive 	notice 	and 	opportunity
to 	negotiate prior 	to 	implementation of 	any proposed 	change 	in
rules 	or 	procedures 	affecting 	employees 	in 	the 	unit. 	Another
provision 	set 	forth 	the procedures 	and 	time 	limits 	to be
followed 	in such cases, 	including 	impasse 	procedures.
The 	Union 	had 	also proposed 	a 	section providing 	that 	all
employees 	currently assigned as 	"A," 	"B" 	or 	"C" 	BASIS employees
shall continue 	to be 	so 	assigned. 	(Though 	"BASIS" 	is 	not
14

elsewhere explained 	in 	the 	record, 	it might well 	refer 	to
shifts.)
The 	provision 	regarding 	the 	right 	to 	negotiate 	changes
simply 	restates 	the 	Union's 	statutory 	right 	under 	the 	EERA.
The mere 	fact 	that 	this 	proposal was 	abandoned 	by 	the Union 	is
insufficient 	to 	indicate 	an 	intent 	to 	waive 	its 	statutory 	right
to 	negotiate. 	Beacon Piece Dyeing 	and Finishing Co., 	supra;
NLRB v. 	Perkins Machine, 	supra; 	American Telephone and
Telegraph Co., 	supra.
Similarly, 	the 	fact 	that 	the Union abandoned 	its proposal
on maintenance of 	"BASIS" 	assignments 	does 	not 	indicate 	that
the 	parties 	thereby 	contemplated 	that 	assignments 	were 	to 	be
solely 	within management's 	prerogative.
Therefore, 	the 	course 	of bargaining 	between 	the parties
fails 	to 	indicate 	that 	the 	Union 	"fully discussed,"
"consciously 	explored" 	and 	"consciously 	yielded" 	its 	right 	to
negotiate 	the 	shift elimination at 	issue 	here. 	Press Co.,
supra.
The 	District 	relies 	on Jacobs Manufacturing 	Company 	(1951)
94 NLRB 1214, 	[28 LRRM 1165], 	and Radioear Corp. 	(1974) 	214
NLRB 362, 	[87 LRRM 1330]. 	Jacobs concerned neither an
employer's 	unilateral 	change 	nor 	a 	contractual 	zipper 	clause.
The 	zipper 	clause 	quoted 	at 	footnote 	13 	in that 	case 	is 	pure
dicta, 	referred 	to 	in 	the 	context of 	construing 	section 8(d) 	of
15

the 	NLRA, 	a 	section 	with 	no 	counterpart 	under 	the EERA.4
Therefore, 	the case 	is 	inapposite.
While 	Radioear 	tends 	to 	support 	the 	District's 	position,5
it 	appears 	to be 	an aberration 	from 	the 	federal board's
traditional 	and 	well-established 	"clear 	and 	unmistakable"
waiver 	standard. 	The 	decision 	has been 	frequently
distinguished, 	narrowly 	construed 	and 	rarely 	followed 	by 	the
NLRB 	itself, 	and we 	decline 	to follow 	it 	here. 	Consequently,
we 	find 	no waiver 	in the course 	of 	negotiations.
Waiver 	by 	Inaction
Cases 	decided 	under 	the 	NLRA and 	several 	state 	laws
reasonably hold 	that a 	union does 	not 	waive 	its 	right 	to
negotiate 	by 	failing 	to 	request 	negotiations where 	it 	had 	no
4Section 8(d) 	of 	the NLRA provides 	as 	follows:
. 	. 	. 	the duties so 	imposed shall not be
construed 	as 	requiring 	either 	party 	to
discuss 	or 	agree 	to 	any modification of 	the
terms 	and 	conditions 	contained 	in 	a contract
for a 	fixed period, 	if 	such modification 	is
to 	become effective 	before 	such 	terms 	and
conditions 	can 	be 	reopened 	under 	the
provisions 	of 	the contract.
5In Radioear, 	a 	three-member 	majority 	found 	a 	"conscious,
knowing 	waiver 	of 	any 	bargaining 	obligation 	as 	to 	unspecified
benefits," 	based 	on 	the 	fact 	that 	the 	union 	unsuccessfully
bargained 	for 	a 	maintenance-of-benefits 	clause 	and 	ultimately
agreed 	to 	a 	zipper 	clause 	similar 	to 	the one 	at 	issue here.
Dissenting 	Members 	Fanning 	and 	Jenkins 	stated 	their 	"opposition
to 	a 	result 	that 	ignores 	consistent 	and 	longstanding 	precedent
and 	serves 	only 	to 	undercut 	a basic 	statutory 	right." 	214 NLRB
at 	365. 	The dissenters continue 	to adhere 	to 	their 	dissent.
Tocco Division of Park-Ohio 	Industries 	(1981) 	257 NLRB No. 	44
(fn 7 ) .
16

notice of 	the 	intended 	change 	before 	the 	decision 	had 	been
firmly 	made.6
Despite 	its 	failure 	to 	formally notify Local 	99 	of 	its
intended 	change, 	the District 	argues 	that 	it 	believed 	that 	the
Union 	knew, 	and 	should 	be 	deemed 	to 	have 	had 	constructive
knowledge of 	the 	change 	by 	Reggie McCoy's 	attendance 	at 	two
employee meetings and/or 	by 	the Union's participation 	in
discussions 	concerning 	similar 	shift 	changes 	at 	other 	colleges
in 	the District. 	The District's contentions 	are without merit.
While 	the 	union might 	have 	acquired 	notice 	if 	it 	had
earlier 	designated 	a 	representative 	at 	Southwest 	or 	otherwise
established 	an 	active presence 	at 	the college, 	the 	record
indicates 	that 	it 	did not 	do so. 	At 	least prior 	to 	the
designation of 	Reggie McCoy as 	shop 	steward, 	the 	custodial
employees 	cannot 	be 	found 	to 	be 	agents 	of 	the 	union 	such 	that
their 	knowledge 	of 	the 	change 	would 	be 	imputed 	to 	the 	union.7
6ABC Trans-National Transport, 	Inc. 	(1980) 	247 NLRB 240,
[103 LRRM 1116]; 	P.B. 	Mutrie Motor Transportation 	(1976) 	226
NLRB 1325; 	Caravelle Boat Co. 	(1977) 	227 NLRB 1355, 	[95 LRRM
1003]; 	Evansville-Vanderburgh School Corp. 	v. Roberts
(Ind.Ct.App. 	1979) 	[102 LRRM 2872]; General Drivers Local 346
(Minn.Sup.Ct. 1979) 	[102 LRRM 3004].
7The Board 	has 	held 	that, 	as 	to employers, 	common law
agency principles 	apply 	as 	in 	the private 	sector. 	Antelope
Valley 	Community College 	District 	(7/18/79) 	PERB Decision
No. 	97. 	Certainly, 	the 	same 	rule applies 	to employee
organizations. 	See Aladdin Hotel Corp. 	(1977) 	229 NLRB 499;
Local 15, 	Operating Engineers 	(Akron Wrecking Corp.) 	(1977) 	231
NLRB 563; 	Certain-Teed Products Corp. 	v. 	NLRB 	(CA 7, 	1977) 	562
F.2d 	500, 	[96 	LRRM 	2504].
17

There 	is 	no 	evidence 	whatsoever 	that 	any of 	the 	custodial
employees 	had, 	at 	the 	time of 	their meetings with management on
this matter, 	the 	actual 	or 	apparent 	authority 	to 	act 	for 	the
Union. 	There 	is 	no 	showing 	that 	they were 	informants 	for 	the
Union 	or 	held 	any position 	in 	the 	Union 	which 	might 	have 	led
the 	District 	to 	believe 	that 	they 	acted on 	its 	behalf, 	or 	that
the 	Union 	instigated, 	encouraged, 	ratified 	or 	condoned 	their
conduct. 	Moreland Elementary School District 	(7/27/82) 	PERB
Decision No. 	227. 	On 	the contrary, 	management's 	representative
can 	hardly 	maintain 	that 	he 	thought 	he 	had 	informed 	the Union
at 	the 	same 	time 	he 	acknowledges his 	total 	lack of 	awareness of
the Union's 	status 	as bargaining agent.
Mr. 	McCoy's 	subsequent 	designation as 	shop 	steward does
not, 	by 	itself, 	evidence 	a sufficiently close 	relationship 	to
the Union 	to 	find him 	to 	have been 	an 	agent of 	the Union, 	since
at 	the 	time he 	attended 	the meetings on 	this matter, 	he had 	not
yet 	been designated 	as 	a Union 	representative.8 While 	McCoy
might 	be 	found 	to be 	an 	agent of 	the 	union 	following 	his
designation 	as 	shop steward 	in 	late January 1979, 	the 	record
contains 	no 	evidence of 	any employee meetings 	or 	other 	notice
to 	McCoy 	regarding 	the 	shift 	change 	from January 	until 	the
change 	was 	implemented 	on July 	1, 	1979. 	Moreover, 	according 	to
8See 	Certain-Teed Products, 	supra, 	where 	an employee who- .
leafletted, 	circulated 	authorization 	cards 	and 	was 	subsequently
elected 	union president was 	held 	not 	to 	be 	an agent of 	the
union.
18

the District's 	testimony 	at 	hearing, 	the 	decision 	to eliminate
the 	"C" 	shift was 	final and was not 	subject to change by
January 	1979.
Thus, 	prior 	to assuming his duties as shop steward, 	McCoy
had 	no 	obligation 	to 	inform 	the 	Union 	and, 	after 	assuming 	his
position, 	nothing 	occurred 	which 	would 	reasonably 	prompt 	him to
take 	such 	action, 	which 	would 	have been 	futile 	in 	any 	event.
In 	these 	circumstances, 	McCoy's 	knowledge of 	the 	shift change
cannot properly be 	imputed 	to 	the 	Union.
Neither 	did 	the 	fact 	that 	changes 	in 	the 	"C" 	shift were
discussed 	at 	five of 	the 	ten District 	colleges 	serve 	to 	notify
the 	Union 	that 	such 	change 	was 	contemplated 	at 	Southwest. 	The
fact 	that 	the District 	chose 	to deal with 	this matter 	on a
college-by-college 	basis, 	rather 	than districtwide, 	did 	not
relieve 	it of 	its 	responsibility 	to 	notify Local 	99 	of 	each
proposed change. 	On several campuses no changes were made, 	and
the 	Union 	had 	every 	reason 	to expect 	notification 	and prior
negotiation 	whenever 	a 	change 	was 	contemplated.
Absent 	notice of 	the District's proposed 	action, 	Local 	99
could 	not 	have 	intentionally 	relinquished 	its 	interest 	in 	the
matter 	by 	inaction. 	San Francisco 	Community College 	District,
supra 	(and 	see cases cited 	at 	footnote 	6, 	supra).
Therefore, 	we 	find 	that Local 	99 did 	not 	waive 	its 	right 	to
negotiate 	the 	elimination of 	the 	shift. 	Lacking 	any
affirmative 	defense, 	the District 	is 	found 	to have violated 	its
19

duty 	to 	negotiate 	in good 	faith 	regarding 	its 	unilateral
elimination of 	the custodial 	"C" 	shift at Southwest College, 	in
violation of 	subsection 3543.5(c) 	of 	the 	EERA, 	and of
subsections 3543.5(a) 	and 	(b), 	concurrently. 	San Francisco
Community College District, 	supra.
REMEDY
The 	District 	contends 	that 	Education 	Code 	section 	88183
precludes 	it 	from reinstating 	the custodial 	"C" 	shift, 	and 	that
this 	section 	is 	not 	superseded 	by a PERB order. 	The District
argues 	that 	under 	the Education Code, 	any employee with more
seniority 	than a member 	of 	the 	former 	"C" 	shift would 	have
standing 	to 	assert 	his 	or 	her 	right 	to work a 	reinstated 	"C"
shift. 	Such 	an employee, 	not a party 	to this 	unfair practice
charge, 	would 	not be bound 	by PERB's order, 	nor 	would 	any court.
The 	hearing 	officer 	found 	that 	an order 	to 	reinstate 	the
affected 	employees 	with 	back 	pay 	is 	not 	barred 	by Education
Code 	section 88183. 	He 	reasoned 	that 	the code 	section was
intended 	to 	prevent 	a district 	from making 	shift 	assignments 	on
a basis 	other 	than 	seniority, 	but 	was 	not 	intended 	to prevent
the 	restoration of 	the 	status quo as 	it 	existed 	before 	a
violation of 	the EERA. 	We 	agree.
However, 	we 	find 	that 	reinstatement 	is 	inappropriate here
for 	other 	reasons. 	As 	urged 	by 	the District, 	we 	take judicial
notice 	of 	the 	successor 	agreement 	entered 	into 	between 	the
parties, 	effective August 20, 	1980. 	The agreement contains at
20

least 	five 	separate 	sections 	dealing 	with 	shift 	assignments 	and
differentials. 	Of particular 	relevance 	to 	the matters 	at 	issue
here, 	section 8.1.3 of 	the 	agreement 	states 	as 	follows:
Employees' daily hours of work, and 	shift
shall be 	established 	at 	the discretion of
the District 	to meet 	the 	operational needs
of 	the District. 	Elimination of 	an entire
shift 	at 	any one 	of 	the 	District's 	locations
will 	not be made 	without prior 	consultation
with 	the Union.
No 	similar 	provision was contained 	in the parties' 	prior
agreement.
Inasmuch 	as 	the 	new 	contract provides 	clear 	evidence 	that
the 	parties 	have 	in 	fact 	negotiated 	and 	reached 	agreement
regarding 	any 	future 	shift 	elimination, 	reinstatement of 	the
shift 	is 	not appropriate.
Nonetheless, 	in order 	to make whole 	the 15 	employees
affected 	by 	the 	unlawful 	shift 	change, 	back pay, 	computed on
the 	basis 	of 	the 	lost-shift 	differential 	together 	with 	interest
at 	7 percent per 	annum, 	will be 	ordered, 	covering 	the period
from 	the date 	of 	the shift change 	(July 	1, 	1979) 	until
agreement was 	reached on 	the new contract 	(August 20, 	1980).
Long Mile Rubber 	(1979) 	245 NLRB 1337.
Further, 	the parties will be 	ordered 	to 	"consult," pursuant
to 	the 	requirements 	of 	section 8.1.3 	of 	their August 	20, 	1980
agreement, 	regarding 	the 	shift elimination at 	issue here.
Finally, 	it 	is 	also appropriate 	that 	the District be
required 	to post 	a 	notice 	incorporating 	the 	terms of 	the
21

order. 	Such posting 	will provide 	employees with 	notice 	that
the District 	has 	acted 	in an 	unlawful manner 	and 	is 	being
required 	to 	cease 	and 	desist 	from 	this 	activity 	and 	to 	restore
the 	status quo. 	It 	effectuates 	the 	purposes of 	the EERA that
employees 	be 	informed of 	the 	resolution of 	the 	controversy 	and
of 	the 	District's 	readiness 	to 	comply with 	the 	ordered 	remedy.
See 	Placerville 	Union School 	District 	(9/18/78) 	PERB 	Decision
No. 	69; 	Pandol and Sons v. 	ALRB and UFW 	(1979) 	98 Cal.App.3d
580, 	587; NLRB v. Express Publishing Co. 	(1941) 	312 U.S. 	426,
[8 LRRM 415].
ORDER
Based 	upon 	the 	foregoing 	facts, 	conclusions of 	law 	and 	the
entire 	record 	in this case, 	it 	is 	found 	that 	the Los Angeles
Community College District 	has violated 	subsections 	3543.5(a),
(b) 	and 	(c) 	of the Educational Employment Relations Act. 	It 	is
hereby 	ORDERED 	that 	the District 	and 	its 	representatives 	shall:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	on matters within 	the 	scope of 	representation
with 	respect 	to 	the 	elimination of 	the custodial 	"C" 	shift 	at
Southwest 	College 	in July 	1979.
2. 	Denying 	the 	Los Angeles 	City 	and 	County School
Employees Union, 	Local 99, 	its 	right 	to 	represent unit members
22

by 	unilaterally eliminating 	the 	custodial 	"C" 	shift 	at
Southwest 	College 	without meeting 	and 	negotiating 	with 	Local 	99,
3. 	Interfering 	with 	employees 	because of 	their
exercise 	of 	their 	right 	to 	select 	an 	exclusive 	representative
to meet 	and 	negotiate 	with 	the 	employer 	on 	their 	behalf 	by
unilaterally 	changing 	matters 	within 	the 	scope 	of
representation 	without 	meeting 	and 	negotiating 	with 	the
exclusive 	representative.
B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE PURPOSES OF 	THE EERA:
1. 	Make 	the 	affected 	employees 	whole 	by paying 	them
the 	shift differential 	they 	would 	have 	received 	had 	the
unilateral change 	not been made, 	together 	with 	interest 	at
7 percent per 	annum, 	from 	the 	date of 	the 	shift 	change, 	July 1,
1979, 	until agreement was 	reached on a new contract, 	August 	20,
1980.
2. 	Upon request, 	consult with Local 99 	with 	respect
to 	the elimination of 	the custodial 	"C" 	shift 	at Southwest
College.
3. 	Within seven 	(7) 	workdays of 	service of 	this
decision, 	post 	at all 	school 	sites 	and all 	other 	work 	locations
where 	notices 	to 	employees 	customarily 	are 	placed, 	copies of
the 	Notice 	attached 	as 	an Appendix 	hereto. 	Such posting 	shall
be maintained 	for 	a period 	of 	thirty 	(30) 	consecutive
workdays. 	Reasonable 	steps 	shall be 	taken 	to 	ensure 	that 	said
23

Notice 	is 	not 	reduced 	in size, 	altered, 	defaced or 	covered 	by
any 	other 	material.
4. 	At 	the end 	of 	the posting period, 	notify 	the
Los 	Angeles 	regional director 	of 	the Public Employment
Relations Board, 	in writing, 	of 	the 	action taken to comply with
this 	order.
Members 	Jaeger 	and 	Jensen 	concurred.
24

APPENDIX
NOTICE 	TO 	CLASSIFIED 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-1091 	in
which all parties 	had 	the 	right 	to participate, 	it 	has been
found 	that 	the 	Los 	Angeles 	Community College 	District 	has
violated 	subsection 	3543.5(c) 	of 	the 	Educational Employment
Relations Act 	(EERA) 	by 	refusing or 	failing 	to meet 	and
negotiate 	with 	Los Angeles 	City 	and 	County School Employees
Union, 	Local 99, 	Service Employees 	International Union, AFL-CIO
by 	taking 	unilateral 	action 	in July 	1979 	with 	respect 	to 	the
elimination of 	the custodial 	"C" 	shift 	at Southwest 	College.
It 	has also been found 	that 	this 	same 	conduct violated
subsection 	3543.5(b) 	of 	the 	EERA since 	it 	interfered with 	the
right of 	Local 	99 	to represent 	its members.
It 	has 	also 	been 	found 	that 	this 	same 	conduct 	interfered
with 	negotiating 	unit members' 	right 	to be 	represented 	by 	their
exclusive representative, thus 	constituting 	a 	violation of
subsection 	3543.5(a) 	of 	the EERA.
As 	a 	result of 	this 	conduct, 	we 	have 	been ordered 	to post
this Notice, 	and we will 	abide 	by 	the 	following:
A. 	CEASE 	AND 	DESIST 	FROM:
1. 	Failing 	and 	refusing 	to meet 	and 	negotiate 	in
good 	faith 	with 	the 	exclusive 	representative 	by 	taking
unilateral 	action 	on matters 	within 	the 	scope 	of 	representation
with 	respect 	to 	the 	elimination of 	the 	custodial 	"C" 	shift 	at
Southwest 	College.
2. 	Denying Local 	99 	the 	right 	to 	represent 	unit
members 	by 	unilaterally eliminating 	a 	shift without 	meeting 	and
negotiating 	with 	it.
3. 	Interfering 	with 	employees 	because 	of 	their
exercise of 	their 	right 	to 	select 	an 	exclusive 	representative
to meet 	and 	negotiate 	on 	their 	behalf 	by 	unilaterally 	changing
matters 	within 	the 	scope of 	representation without meeting 	and
negotiating 	with 	the 	exclusive 	representative.

B. 	TAKE 	THE 	FOLLOWING 	AFFIRMATIVE ACTIONS 	DESIGNED 	TO
EFFECTUATE 	THE 	PURPOSES 	OF THE EERA:
1. 	Make 	the affected employees 	whole 	by paying 	them
the 	shift 	differential 	they 	would 	have 	received 	had 	the
unilateral 	change 	not been made, 	together 	with 	interest 	at
7 	percent 	per 	annum, 	from the 	date 	of 	the 	shift 	change, 	July 	1,
1979, 	until 	agreement was 	reached on a new contract, 	August 	20,
1980.
2. 	Upon 	request, 	consult with Local 99 with 	respect
to 	the elimination of 	the custodial 	"C" 	shift 	at Southwest
College.
DATE: 	LOS 	ANGELES 	COMMUNITY 	COLLEGE 	DISTRICT
By Authorized 	Representative
THIS 	IS 	AN OFFICIAL NOTICE. 	IT MUST REMAIN POSTED FOR THIRTY
(30) 	CONSECUTIVE WORKDAYS 	FROM THE DATE OF POSTING AND MUST 	NOT
BE REDUCED 	IN SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL,
N2