All notes for Subtopic 602.04000 – Time of Implementation

DecisionDescriptionPERC Vol.PERC IndexDate
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
City’s argument that it decided to subcontract a classification’s work after it decided to layoff all employees in the classification comported with neither the facts nor the law. The overall record supported an inference that the City decided to subcontract the classification’s future work in conjunction with its decision to eliminate the classification. It does not matter that there was a lag between the subcontracting decision and the implementation thereof. Where an employer’s change in policy is alleged to constitute an unfair practice, the operative date for the alleged violation is generally the date when the employer made a firm decision to change the policy, even if the change itself does not take effect until a later date. (City of Sacramento (2013) PERB Decision No. 2351-M, p. 27; City of Milpitas (2015) PERB Decision No. 2443-M, pp. 15-16.) PERB attributed the lag between the City’s subcontracting decision and its implementation of that decision to the City’s wait for further funding; PERB did not find that the lag demonstrated uncertainty regarding the City’s decision to use alternative means to cover the work previously done by the laid off classification. Moreover, even if the City had proven that it made no single decision about how to cover the classification’s work, but instead made a new decision every time it began a project involving work formerly done by the classification, this would nonetheless constitute an MMBA violation, since the City had not bargained regarding any allegedly separate or independent decisions on how to cover the classification’s work after the layoffs. The City did not provide the exclusive representative with advance notice of such decisions, nor did the City provide an opportunity to bargain before it made firm decisions. more or view all topics or full text.
02/03/20
2464M City of San Diego * * * Decision upheld on appeal to the California Supreme Court (8/2/2018); limited review of remedial order on remand. * * *
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A unilateral change occurs when an employer an employer makes a firm decision to change policy affecting an negotiable subject without providing the employees’ representative with notice or opportunity for bargaining. The date of the decision triggers liability, even if the change itself is not scheduled to take effect until a later date or never takes effect. Mayor’s announcement in State of the City speech and various official press conferences of plans to alter employee pension benefits through a citizens’ initiative constituted firm decision to alter policy on a negotiable subject. more or view all topics or full text.
4010812/29/15
2443M City of Milpitas
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A change in policy occurs on the date a firm decision is made even if the decision is not scheduled to take effect immediately, or even if it is never implemented. The City Council’s adoption of the City Manager’s recommendation to outsource bargaining unit work constitutes the City’s firm decision to contract out. more or view all topics or full text.
403607/29/15
2313E Rio Hondo Community College District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
The employer must provide notice sufficiently in advance of implementation to permit the union a reasonable amount of time to consider demanding to bargain over and to negotiate over the effects. more or view all topics or full text.
03/21/13
2298M Salinas Valley Memorial Healthcare System
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Meeting and conferring on the implementation and effects of a non-negotiable layoff decision should commence early enough to reach completion, including resolution of an impasse, prior to implementation of the decision. Only under certain circumstances may an employer implement a non-negotiable layoff decision prior to completing the meet and confer process. Implementation permissible prior to completing meet and confer where: (1) the layoff implementation date was not arbitrary, but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision to lay off; (2) the employer gave notice of the layoff decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees. more or view all topics or full text.
12/20/12
2300H Regents of the University of California
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
The duty to refrain from taking unilateral action concerning negotiable terms and conditions of employment applies in all stages of the collective bargaining process, including during negotiation of successor collective bargaining agreements. more or view all topics or full text.
12/20/12
2351M City of Sacramento
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A unilateral change occurs when a firm decision is made to change policy regarding a negotiable subject without notice and meaningful opportunity to bargain, even if the decision is not scheduled to take effect immediately, or even if it is never implemented. The Board overruled City of San Diego (2010) PERB Decision No. 2103-M to the extent it holds that a unilateral change does not occur until the decision is implemented. more or view all topics or full text.
3810412/24/13
2360M County of Riverside
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
An employer is not privileged to implement an agreed-upon concession made as a tentative agreement unless there was a legitimate impasse reached on negotiations as a whole, especially where the parties were exchanging package proposals at this stage in their bargaining. more or view all topics or full text.
3813803/25/14
2287H Trustees of the California State University
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation. more or view all topics or full text.
10/04/12
2262E Fairfield-Suisun Unified School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Notice of an agenda indicating a drug testing policy would be effective retroactively rendered negotiations futile. more or view all topics or full text.
3617605/08/12
2196S State of California (Department of Corrections and Rehabilitation, Avenal State Prison) * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision. more or view all topics or full text.
363008/12/11
2115S State of California (Department of Corrections and Rehabilitation, Department of Personnel Administration)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Charge did not establish that implementation of layoff occurred when employer notified union and employees of its layoff decision, which was not negotiable, and offered to negotiate the effects of the layoff. Until such time as the layoff was actually implemented, and even thereafter, the parties could have negotiated changes to the area of layoff. Implementation of the nonnegotiable decision to lay off employees prior to the completion of negotiations over the effects of the layoff is permissible where the decision to implement was not arbitrary, the employer gave sufficient notice of the implementation date to provide for meaningful negotiation, and the employer continues to negotiate in good faith. more or view all topics or full text.
349906/10/10
1504E Clovis Unified School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
The District argues that since it has taken no action, the issue of unilateral change is not ripe for Board resolution. However, when the District conducted the election, published its intent to send the results to the JPA board of directors and to PERS without negotiating first with CSEA, and sponsored non-unit employees into the JPA, CSEA had actual notice of the District’s intent to make the change. more or view all topics or full text.
271512/18/02
1242E Redwoods Community College District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Agreeing to negotiate after a unilateral change does not negate the unlawfulness of the change. more or view all topics or full text.
222902912/19/97
1188H Regents of the University of California (University Professional and Technical Employees)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
For nonexclusively represented employees, the employer's decision becomes effective when it is clear the employer decided to implement the program, not the date the employer subsequently implements the program; p. 21. more or view all topics or full text.
212806703/19/97
1189H Regents of the University of California (Woods, et al.)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
No prima facie case for failure to meet and discuss effects of layoff where charge fails to allege that charging parties actually requested to meet and discuss those effects; p. 2, dismissal letter. more or view all topics or full text.
212806603/19/97
1180E Los Angeles Unified School District (Association of Public School Supervisory Employees)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Charging party has the burden to prove that it first knew or should have known of the violation within the six months prior to filing the charge. "Should have known" requires the exercise of reasonable diligence to discover the change. more or view all topics or full text.
212802412/06/96
1181E Los Angeles Unified School District (Service Employees International Union Local 99)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Union's knowledge of drug policy, violation of which would subject an employee to dismissal, starts the statute of limitations period for a unilateral change even where the employer applies the policy as a "zero tolerance" policy and later dismisses an employee under the new zero tolerance policy. more or view all topics or full text.
212802512/10/96
1145S State of California (Department of Personnel Administration) (California Union of Safety Employees)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A unilateral change occurs when an official action has been taken, not a subsequent date when the action becomes effective; p. 5, warning letter. more or view all topics or full text.
202706103/08/96
1103E Laguna Salada Union School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
An employer's change affecting a mandatory subject of bargaining prior to the exhaustion of impasse procedures, including consideration of the factfinder's report, is an unlawful unilateral change; p. 10. An employer may implement policies reasonably comprehended within previous offers made to the union once the employer exhausts the statutory impasse procedures. The term "reasonably comprehended" excludes those changes better than the last offer and also any changes which the parties did not discuss during negotiations which are less than the status quo; p. 10. The authority to implement an adjustment in employee wages does not carry with it the unilateral authority to determine how and when to make the adjustment; p 13, fn. 3. more or view all topics or full text.
192609505/11/95
1092E Marin Community College District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Changes in practice of placing former managers on the certificated salary schedule triggers obligation to bargain when the change became apparent to the exclusive representative; p. 84, proposed dec. An increase of 2-3 courses taught does not constitute sufficient change in the status quo to require negotiations; p. 92, proposed dec. more or view all topics or full text.
192607003/21/95
1056S State of California (Cstate Employees Association, Service Employees International Union Local 1000)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A unilateral change occurs when an official action has been taken, not at a subsequent date when that action becomes effective; p. 4. more or view all topics or full text.
182512909/14/94
0955E Eureka City School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
While the Board has held that a unilateral change occurs when official action has been taken, not when it becomes effective, the Board has not previously ruled on when the unilateral change of a permissive subject of bargaining occurs; p. 18. The nature of a permissive subject of bargaining permits an employer or an employee organization, prior to the expiration of an agreement, to take action which indicates that it does not intend to bargain a nonmandatory subject; p. 18. more or view all topics or full text.
162316810/27/92
0696E Lake Elsinore School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
The District's bargaining obligation re: Mentor teacher program arises upon State approval of the District's application and subsequent grant of funds for program implementation. more or view all topics or full text.
121915609/07/88
2311Ma City of Escondido * * * VACATED By City of Escondido v. PERB (Cal.Ct.App., Mar. 8, 2017, No. D070462) 2017 WL 91509
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Employer’s decision to layoff full-time code enforcement officers was made prior to or simultaneously with the decision to transfer work outside of the bargaining unit. Under the circumstances presented here, it would have been futile for the union to request bargaining over the transfer. When a firm decision is made prior to an employer providing notice and an opportunity to negotiate a decision made by the employer that is within the scope of representation, the employer cannot defend on the ground that the union failed to request or demand negotiations. more or view all topics or full text.
4017805/11/16
1213S State of California (Department of Transportation)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Where employer wrote letter to exclusive representative on April 10, 1995, expressly stating that employer intended to implement new policy effective April 14, 1995, unilateral change is found to have occurred on April 10, 1995; pp. 9-10. more or view all topics or full text.
212812506/26/97
0523E Riverside Unified School District (Petrich)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
No prima facie case for unilateral change in hours of employment, where change did not occur until after negotiations had been successfully concluded. more or view all topics or full text.
91621409/25/85
0373E Mt. Diablo Unified School District  * * * REVERSED IN PART BY Mt. Diablo Unified School District (1984) PERB Decision No. 373b
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
While District was permitted to request that Association develop detailed proposals, by the time that District responded to initial request to negotiate it had already taken unilateral action to implement the layoff, thus rendering any development of detailed proposals on issues related to the implementation of layoff futile. Unilateral conduct in the face of demand to negotiate was refusal to bargain, absent valid defense; pp. 22-23. more or view all topics or full text.
81501712/30/83
0357E Calexico Unified School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Provisions in contract subject to reopeners must be observed during reopener negotiations. more or view all topics or full text.
71429111/22/83
0353H Regents of the University of California
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Elimination of pay differential is not continuing violation. more or view all topics or full text.
71428010/27/83
0206E Moreno Valley Unified School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
District's implementation of last best offer following mutual declaration of impasse, but before exhaustion of impasse procedures is, absent affirmative defense, a per se unfair practice. EERA impasse procedures comtemplate a continuation of the bilateral negotiations process. Mediation is fundamentally a bargaining process; p. 5. more or view all topics or full text.
61310704/30/82
0201E Anaheim Union High School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A governing board resolution unilaterally changing salaries and other terms of employment is a violation. Resolution constitutes official action even though it had a deferred effective date. Employer defenses - that it did not immediately implement the resolution and was willing to negotiate between resolution and effective date - rejected; p. 11. EERA prohibits unfair practices, not just harmful results; p. 22, proposed dec. more or view all topics or full text.
61307803/26/82
0976S State of California (Department of General Services)
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
A threatened unilateral change of policy or practice does not, without facts which indicate that the employer has made a definite decision to implement a change, constitute a prima facie violation; p. 2, warning letter. more or view all topics or full text.
172405002/23/93
0116E Davis Unified School District/New Haven Unified School District/Newark Unified School District/State Center Community College District/Centinela Valley Union High School District
602.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Time of Implementation
Board rejects District argument that it had to unilaterally implement salary freeze on July 1 because it would be unable to lower after that date; pp. 11-15. more or view all topics or full text.
41103102/22/80