All notes for Subtopic 1000.02029 – Disciplinary Action
| * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionIn Contra Costa Community College District (2019) PERB Decision No. 2652, the Board cited Total Security Management (2016) 364 NLRB 1532 (Total Security) with approval. In Total Security, the NLRB held that an employer has a duty to bargain with a union before unilaterally disciplining an employee, where the employer is imposing the discipline based on an exercise of discretion rather than pursuant to preexisting standards of conduct. (Total Security, supra, 364 NLRB at p. 1532.) Such an issue, the NLRB explained, typically arises after a union is first certified or recognized, but before a contract is in place. (Ibid.) The NLRB concluded that an employer must provide its employees’ bargaining representative notice and the opportunity to bargain before exercising its discretion to impose serious discipline on individual employees, absent an agreement with the union providing for a process, such as a grievance-arbitration system, to address such disputes. (Ibid.) The Board, however, declined to consider whether Total Security might apply in a successorship context where the record did not demonstrate whether the acquired clinics had any existing disciplinary policies or practices before two employees were terminated, and, if so, what they were. (pp. 53-54.) more or view all topics or full text.
| County of Sonoma
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionNew investigative procedures adversely affect employment when they create a potential for discipline that did not previously exist. Investigation and discipline lie at the core of traditional labor relations and are particularly amenable to collective bargaining—both for peace officers and other employee groups. But in cases involving law enforcement agencies, the countervailing management interest is unique given that peace officers “exercise tremendous power in the name of the public.” On the continuum of possible measures to enhance police accountability or improve police-community relations, management’s need for unencumbered decisionmaking tends to outweigh the benefit of bargaining in relation to measures focused squarely on public safety and community relations, such as revising use-of-force policies, implementing a racial profiling study, or requiring officers to wear body worn cameras. Thus, because peace officers sometimes use force—a unique aspect of their role in society—the scope of representation balancing test in law enforcement cases can turn on factors that do not matter for other employee groups. Most notably, a law enforcement agency generally has no decision bargaining obligation for an isolated change to an unwritten past practice related to peace officer investigations, where the practice was more protective than the Public Safety Officers’ Procedural Bill of Rights Act. Here, Measure P was a broad sea change consisting of many interrelated changes, creating an independent investigatory path even after County peace officers have been cleared in a Sheriff’s Office’s investigation. The several challenged Measure P amendments allowing repeat investigations of the same officers over an extended period—thereby significantly and adversely affecting their career trajectory—are prime examples of changes for which the benefit of collective bargaining outweighs the short delay caused by requiring negotiations. (pp. 19, 24-26.) more or view all topics or full text.
| East Side Union High School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionThe utilization of a form for documenting public complaints is a matter within the scope of representation. A subject is negotiable if it is specifically enumerated in the Act’s scope of representation definition. (Sec. 3543.2.) Section 3543.2(b) identifies “causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated employees.” The public complaint procedure whereby formal complaints involving harassment/discrimination were documented in the public complaint form and provided to the Association must be considered a procedure for disciplinary action, because District witness admitted that the public complaint procedure applied to the cases of two employees and because his investigation in both cases resulted in the imposition of discipline short of dismissal. (adopting proposed decision at p. 13.) more or view all topics or full text.
| Cerritos Community College District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionReassignment, assignment loss, and mandatory training are bargainable when employed as a form of discipline. (pp. 29-30.) more or view all topics or full text.
| Regents of the University of California
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionWhen a non-negotiable decision has foreseeable effects on discipline, such as creating a new type of evidence that may be used to support discipline or a new ground for discipline, those effects are negotiable. (p. 30.) more or view all topics or full text.
| Fairfield-Suisun Unified School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionEmployee discipline, including criteria and procedures, are within the scope of representation. Where external law mandates certain procedures within the scope of representation, those procedures are negotiable only to the extent of the employer’s discretion. Federal drug testing regime does not mandate establishment of a “zero tolerance” policy. Such policy is therefore negotiable. more or view all topics or full text.
| Trustees of the California State University
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionDisciplinary procedures and policies are within the scope of representation. However, adoption of a federally mandated policy for investigating student complaints of unlawful discrimination is not within scope where policy state that any discipline will follow contractual guidelines. more or view all topics or full text.
| Trustees of the California State University
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionUnder the Anaheim test, CSU’s computer usage policies established new grounds for discipline against employees who violate their provisions and so are within the scope of representation. Such policies are subject to negotiation both as to the criteria for discipline and as to the procedure to be followed. Although portions of the policies may concern matters within management prerogative, other issues, involving the ill-defined criteria for discipline, internal monitoring of employee e-mail, and training employees to comply with copyright and other licensing restrictions, clearly are negotiable items. The absence of Educ. Code section 89535 from HEERA 3572.5 does not preclude the parties from negotiating forms and bases for discipline not included within section 89535, provided that the subject is related to wages, hours or other negotiable terms and conditions of employment. more or view all topics or full text.
| San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652
1000.02029: SCOPE OF REPRESENTATION; Disciplinary Action* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *PERB has held "rules of conduct which subject employees to disciplinary action are subject to negotiation (that is, are within scope) both as to criteria for discipline and as to procedure to be followed"; p. 52, proposed decision. more or view all topics or full text.
| Monrovia Unified School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionStatutory amendment adding discipline short of dismissal to section 3543.2 does not mean that the subject was previously outside of scope. The addition of a new enumerated subject means only that the subject no longer must analyzed under Anaheim balancing test. more or view all topics or full text.
| San Mateo City School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionProposals regarding disciplinary action are negotiable; pp. 10-13. more or view all topics or full text.
| Placer Hills Union High School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionFact that discipline may result from breach of work rule does not make rule negotiable; p. 36. more or view all topics or full text.
| Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District
1000.02029: SCOPE OF REPRESENTATION; Disciplinary ActionProposals regarding criteria of imposing discipline negotiable; pp. 67-69. To extent proposal regarding downward adjustments (defined as demotions) was consistent with Education Code section 45101(d)(e), it was negotiable; p. 51. more or view all topics or full text.