EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE – In General

Single Topic for Decision 2540M

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* * * VACATED IN PART ON OTHER GROUNDS by City & County of San Francisco (2019) PERB Decision No. 2540a-M. * * *

A violation based on the adoption or enforcement of an unreasonable regulation requires, as a threshold matter, a showing that the local rule or regulation abridges the exercise of a fundamental right, or frustrates the fulfillment of an affirmative duty, prescribed by the Meyers-Milias-Brown Act (MMBA). A showing of discriminatory intent is not required to establish that a local rule is unreasonable. An interest arbitration procedure that subjects the employee organization’s proposals on certain subjects to a higher standard of proof than those of the employer places a thumb on the scale in favor of the employer’s proposals, and is not a reasonable local rule. Local rule invalidating side letters and past practices not approved in writing by certain officials is unreasonable because it results in a unilateral change in working conditions. MMBA section 3505.1, providing that an MOU is not binding until adopted by the public agency’s governing board, was not intended to upend longstanding principles of labor law, such as the past practice doctrine or that terms and conditions of employment survive the expiration of an MOU, absent agreement to the contrary. The fact that a requirement has previously been incorporated into an MOU does not allow a public agency to enshrine it in a local rule.