City of Culver City (2020) PERB Dec. No. 2731-M (Issued on 6/10/20)
At issue in this case was a change by Culver City’s police department regarding when employees take a lunch break. For many years, the police department allowed employees to combine their two 15-minute paid rest periods into a single half-hour paid meal period in lieu of an unpaid meal period of one hour. The city relied on contract language to make a change requiring employees to take an unpaid meal period of one hour. Thus, before the change an employee on a 4/10 work schedule worked 10 hours a day, which included a 30-minute paid lunch period. After the change, the same employee’s schedule was 11 hours, which included an unpaid meal period of one hour.
Citing to Marysville Joint Unified School District (1983) PERB Decision No. 314 (“Marysville”), the city argued that the change was permitted by the language of the parties’ contract. However, the Board rejected the city’s reliance on contract language because the contract was expired at the time of the change. The Board held that under well-established law, contract “waivers” expire with the contract. However, the Board went further by taking the opportunity to “clarify” several “misconceptions” about the Marysville rule:
In sum, by clarifying that Marysville breaks no new ground beyond the well established contractual waiver principle, the modern Board has laid to rest three misconceptions and reiterated that a charging party does not bear the burden to show the inapplicability of Marysville, Marysville does not treat a unilateral employer policy as akin to a bilateral agreement, and Marysville does not apply where a waiver has expired.
The Board overruled Marysville to the extent it suggests that waivers survive contract expiration. Further while the Board did not overturn Marysville completely, it did its best to limit its applicable and reach. For example, the Board said that contrary to being an expansive defense, the original holding in Marysville was “notably unremarkable.” (City of Culver City, p. 15.) The Board also stated in a footnote that, “In spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, we express no opinion whether the contract language was in fact clear and unambiguous.” (City of Culver City, p. 15, fn. 6.)
After affirming the finding of a violation, the Board turned to addressing the remedy. The Board noted that the standard remedy for an employer’s unlawful unilateral change is a cease-and-desist order, restoration of the status quo ante, appropriate make-whole relief including back pay and benefits with interest, and a bargaining order.
Here, the Board noted, the City paid employees for all hours worked at the appropriate rates. Nevertheless, the Board held that “harm” may be quantified in a number of ways, not only increased workload or reduced pay. In this case, the Board found that the city’s unlawful change resulted in employees’ workdays being extended by one hour (the unpaid meal period). According to the Board, “The best measure of the value of this time … would be an hour’s pay per day.” However, the Board did not actually award an extra hour of pay per day for each employee as the union did not except to the ALJ’s remedial order.
- Marysville is one of my favorite PERB cases. To me, Marysville has always stood for the proposition that an employer may revert back to contract language notwithstanding past practice. For example, if the contract says that employees get 15 days of vacation a year, but the employer has a past practice of providing 16 days of vacation a year, the employer can revert to contract language without having to meet and confer. In my humble opinion nothing in this decision changes my understanding of the Marysville rule.
- In this case, the Board was focused on contract language that constituted a “waiver” as opposed to contract language that merely established a term or condition of employment. I have always understood that waivers expire with a contract so the Board’s clarification in this case is not a big deal to me. However, from reading this decision it is clear that the Board does not want to expand the reach Marysville, and likely that the Board will look for future opportunities to limit its applicability. But for now, I’m thankful that the Marysville rule is still alive.
- P.S. I also thought the Board’s discussion of the remedy was very interesting. I’m going to discuss that in my next blog post.