EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE – In General

Single Topic for Decision 2858M

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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. In City and County of San Francisco (2020) PERB Decision No. 2691-M, PERB determined that Charter sections survived a facial challenge if but only if they are interpreted to avoid tilting 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: (1) the section’s submission deadline must be interpreted as the time by which the City and its union negotiating partners should submit those substantive terms of their next MOU that are fully agreed-upon or which an arbitrator has ordered by that date, together with any agreed-upon or ordered contract provisions requiring the parties to engage in further, mid-contract negotiation and/or interest arbitration on any issues meriting such further processes; and (2) the section must be interpreted as allowing such mid-contract negotiation or interest arbitration procedures to establish enhancements that take effect mid-year or retroactive to any date. Because Charter section A8.409-4(k) can be interpreted lawfully and is not facially invalid, the Board held that any future cases involving the provision should be litigated on an as-applied basis. (pp. 9-12.)