EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE – In General
Single Topic for Decision 2691M
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750.01000 – In General
A facial challenge is based only on the text of the rule. A facial challenge is an appropriate means to challenge an employer rule or policy that is alleged to have a chilling effect on employees or a union, or otherwise to interfere with or impinge on protected rights, even before being applied. A facial challenge to a rule will be sustained if it conflicts with the MMBA “in the generality or great majority of cases.” (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) PERB determined that Charter sections survived a facial challenge if but only if they are interpreted to avoid titling the playing field in the City’s favor and to allow adequate time for good faith negotiations and good faith impasse resolution. To save the challenged Charter provisions from facial invalidity, PERB necessarily interpreted the provisions as follows: the submission deadline’s language merely establishes a cutoff by which the parties must submit those portions of their next MOU that have been agreed-upon or ordered by that date, together with any needed reopener provisions covering those issues that have not yet been fully negotiated or ordered. PERB sustained union’s as-applied challenge where the Charter had the effect in the case at issue of cutting short bargaining after an insufficient opportunity for good faith negotiations and good faith dispute resolution.