EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Change In Policy

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PERB has found an unlawful policy change, as opposed to an isolated breach of contract, where an employer unilaterally establishes a policy that represents a conscious or apparent reversal of a previous understanding. Where a contract violation also constituted an unfair practice, the employer had unilaterally changed a term and condition of employment by interpreting a contract term that would have waived the union’s right to negotiate the change, and that interpretation was deemed by PERB to be incorrect. An alleged violation of a contract will also be an unfair practice where the employer seeks to add new terms or impose an unjustified interpretation to the agreement, or if the employer denies a contractual obligation where it once acknowledged one. Where the parties simply dispute the meaning of contract language and there has been no repudiation of any prior mutual understanding or assertion that the union waived its right to negotiate a change in terms and conditions of employment, the dispute is more accurately characterized as an isolated breach of an agreement but not an unfair practice. The plain meaning of MOU requirement to determine vacation leave requests by considering “due regard for the wishes of the employee and particular regard for the needs of the service” does not prohibit the City from taking into account factors other than public emergencies when granting or denying same day vacation requests. The mere fact that an employer has not chosen to enforce its contractual rights in the past does not mean that, ipso facto, it is forever precluded from doing so.