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

Single Topic for Decision 2847M


View all topics for Decision 2847M

Full Decision Text (click on the link to view): Full Text

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Change In Policy

There are three primary means of proving that an employer changed or deviated from the status quo. Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy, or application or enforcement of existing policy in a new way. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) Hospital Authority announced a new policy where there was none before—or applied or enforced existing policy in a new way—by declaring that the parties’ MOU bars group or class grievances and grants the Authority unilateral authority to refuse to consolidate grievances. (p. 11.) The Board rejected the Authority’s argument that the MOU implicitly disallows group and class grievances by defining a grievance as a “complaint by an employee” and using other similar singular phrasing. Omnitrans (2009) PERB Decision No. 2010-M and related cases hold that only clear and unambiguous MOU language can bar a union from pursuing collective relief through a grievance, and an MOU does not satisfy that standard where it merely defines the grievant as a singular “employee” and does not explicitly exclude group and class grievances. (Id., adopting proposed decision at p. 5; Chula Vista City School District (1990) PERB Decision No. 834, p. 22.) (p. 12.) The Authority’s claim that the parties’ MOU granted it the right to reject group, class, or consolidated grievances on purely procedural grounds, materially altered the status quo in a manner that could affect future cases. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 8-9 [employer engaged in unilateral change by refusing to allow arbitrator to decide arbitrability dispute].) (pp. 12-13.)