All notes for Subtopic 750.01000 – In General
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2867M | * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Charter section dedicated to prohibiting employee strikes, mandating City management surveil employees during a strike and terminate any employee found to have engaged in strike activity found unlawful. Its across-the-board approach to prohibiting all employee strikes is contrary to PERB’s narrow, restrained methodology for determining the lawfulness of a strike, as dictated by County Sanitation, supra, 38 Cal.3d at p. 586. (County of San Mateo, supra, PERB Order No. IR 61-M, pp. 6-8.) more or view all topics or full text. | 07/24/23 | ||
| 2867M | * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General A facial challenge to a rule is based solely on the text of the rule. “There are at least two possible standards for evaluating a facial challenge. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1126.) Under the stricter standard, we should reject a facial challenge to a rule unless it totally and fatally conflicts with the MMBA. (Ibid.) Courts often follow a more lenient standard, however, wherein a facial challenge to a rule can be sustained if it conflicts with the MMBA “in the generality or great majority of cases.” (Ibid.) Under either test, a party alleging a facial violation cannot prevail merely by suggesting that the challenged rule may run afoul of the law in “some future hypothetical situation.” (Beach & Bluff Conservancy v. City of Solana Beach (2018) 28 Cal.App.5th 244, 264.) (pp. 27-28.) more or view all topics or full text. | 07/24/23 | ||
| 2867M | * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, a local agency may adopt reasonable rules and regulations pertaining to resolving collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) In order to be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, if a local agency has adopted its rules, regulations, or charter provisions, whether by a vote of its electorate, a vote of its governing board, or by any other means, the resulting policies must be consistent with the MMBA. (p. 24.) more or view all topics or full text. | 07/24/23 | ||
| 2858M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General City violated the MMBA by unlawfully interpreting its Charter and thereby refusing to bargain over retroactivity for more than three months. The City is not immune from liability for new unlawful conduct vis-à-vis a different union merely because it had interpreted its Charter unlawfully in an earlier instance involving a different union and had a pending appeal regarding PERB’s decision in that case. Indeed, if anything, the earlier decision against the City put it on notice that it was acting at its peril if it continued to engage in the same conduct in negotiations with a different union. (pp. 12-13.) more or view all topics or full text. | 47 | 156 | 04/26/23 |
| 2858M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; 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. 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.) more or view all topics or full text. | 47 | 156 | 04/26/23 |
| 2858M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The home rule doctrine does not alter the fact that a city’s charter must be consistent with the MMBA. (Boling v. Public Employment Relations Board (2018) 5 Cal.5th 898, 913, citing People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 [“[G]eneral law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern”].) (p. 8.) more or view all topics or full text. | 47 | 156 | 04/26/23 |
| 2858M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, a local agency may adopt reasonable rules and regulations about resolution of collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) To be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, whether a local agency has adopted its rules, regulations, or charter provisions via a vote of its electorate, a vote of its governing board, or through any other means, the resulting policies must be consistent with the MMBA. The burden of proof is on the party challenging such a rule. (City and County of San Francisco (2020) PERB Decision No. 2691-M, pp. 20-21.) (pp. 7-8.) more or view all topics or full text. | 47 | 156 | 04/26/23 |
| 2770M | City of Bellflower 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA grants local public agencies authority to adopt reasonable rules concerning union recognition, elections, and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (MMBA, § 3507, subd. (a).) However, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.) more or view all topics or full text. | 45 | 119 | 06/08/21 |
| 2506M | City of Madera 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General MMBA employer’s local rules may, but need not, establish a reasonable contract bar that is consistent with the MMBA. Furthermore, irrespective of whether an MMBA employer’s local rules establish a contract bar, the rules may, but need not, establish reasonable limits on when a party may file a decertification petition even in the absence of an effective labor agreement. more or view all topics or full text. | 41 | 98 | 12/13/16 |
| A497M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The process for challenging the application or existence of local rules as contrary to the MMBA is an unfair practice charge. (City of Parlier (2015) PERB Order No. Ad-421-M, p. 8.) The Association had a right to file an unfair practice charge, alleging that the City’s local rules themselves violate the MMBA or that their application in this instance was unreasonable, but that allegation could not be resolved as part of the Association’s severance petition. (p. 29.) more or view all topics or full text. | 47 | 74 | 10/17/22 |
| 2821M | County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because PERB found that reasonable minds could not differ over the appropriateness of adding per diem Registered Nurses (RN) and Nurse Practitioners (NP) to the existing unit of regular employee RNs and NPs (Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 11), PERB did not need to reach union’s alternative argument that the County should have granted union a hearing on its appeal. (p. 21, fn. 14.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General In reviewing an MMBA employer’s unit determination under its local rules, PERB normally applies a rebuttable presumption that the determination is reasonable. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, pp. 21-22.) But when the employer “simply state[s] the standard that applies and then provide[s] a conclusion without also including the analytical process in its decision,” the presumption of reasonableness falls away. (City of Livermore (2017) PERB Decision No. 2525-M, adopting proposed decision at p. 48.) While PERB may consider evidence presented at the hearing about the employer’s reasoning for its decision, PERB need not accept post-hoc rationalizations offered to cure defects in the determination. (Id. at pp. 10-11 & adopting proposed decision at p. 48.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General When challenging an MMBA employer’s unit determination under its local rules, the challenging union has the burden of demonstrating the decision was not reasonable. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) If reasonable minds could differ over whether the determination comports with the local rules and the MMBA, PERB should not substitute its judgment for that of the employer. PERB finds no unfair practice where the employer reasonably interprets its own rules in a manner that effectuates the MMBA’s purposes. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10, citing City of Madera (2016) PERB Decision No. 2506-M, p. 5.) The inverse is true if the employer acted inconsistently with a reasonable interpretation of the rule. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10.) (pp. 9-10.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2821M | County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” Such local rules may include provisions for, among other things, determining appropriate bargaining units. (MMBA, § 3507, subds. (a)(3), (a)(4); City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) (p. 9.) more or view all topics or full text. | 47 | 9 | 06/01/22 |
| 2773M | City of Glendale 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because IBEW should have raised its personal bias argument during the unit determination hearing, the Board ultimately dismissed the claim on waiver grounds. IBEW should have requested before or during the 2017 unit determination hearing that the City replace the City Manager or that he recuse himself from hearing the petition. The core principle is that “[e]vidence of bias or any lack of neutrality by PERB, its ALJs or any of its agents should be brought to the attention of the Board immediately.” (Hacienda-La Puente Unified School District (1997) PERB Decision No. 1186, p. 11.) In the instant case, IBEW had several opportunities after it filed its petition to move for the City to replace the City Manager or to ask the City Manager to recuse himself. Instead, IBEW argued for the first time at the PERB hearing that the City Manager’s bias disqualified him from considering the unit petition. IBEW claimed that it would have been futile to move for the City Manager’s recusal at the 2017 hearing because he denied IBEW’s similar request at the 2013 hearing on another employee organization’s severance petition. The 2013 events standing alone are not sufficient to establish futility, and IBEW therefore should have afforded the City an opportunity to address the issue and, in doing so, preserve its position that the City was unreasonably applying its Employee Relations Ordinance by letting the City Manager decide the appropriateness of the petitioned-for unit. (pp. 22-24.) more or view all topics or full text. | 46 | 11 | 06/28/21 |
| 2773M | City of Glendale 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The Board rejected IBEW’s contention that it should apply a heightened level of scrutiny to a local agency employer’s unit determination when an agent of the employer oversees the recognition process. Inherent in IBEW’s argument was the assumption that unit recognition petitions are fundamentally adverse to the interests of an employer, and that PERB therefore must presume a likelihood of bias if an employer vests its agent with authority to adjudicate such issues. PERB operates under no such presumption, however, and instead finds bias or unlawful motive only where the record proves it by a preponderance of the evidence. For over four decades the Meyers-Milias-Brown Act has permitted local agencies, and by extension their agents such as employee relations officers and human resources managers, to preside over unit determinations pursuant to their own reasonable local regulations. That statutory authority remains intact. Thus, the Board rejected IBEW’s facial challenge. (pp. 21-22.) more or view all topics or full text. | 46 | 11 | 06/28/21 |
| 2773M | City of Glendale 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Well before PERB assumed jurisdiction over the Meyers-Milias-Brown Act (MMBA) in 2001, local agencies were authorized to make initial determinations as to the appropriateness of bargaining units. The standard then, as now, is whether such a determination is reasonable. The mere fact that a local rule allows for a local agency’s agent or governing board to have the final authority on representation issues does not make the rule unreasonable. Thus, the Employee Relations Ordinance did not facially violate the MMBA merely by vesting the City Manager with the authority to process and hear unit determination petitions. (pp. 20-21.) more or view all topics or full text. | 46 | 11 | 06/28/21 |
| 2773M | City of Glendale 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General To prevail in a facial challenge, a charging party must at a minimum show that a local rule conflicts with the Meyers-Milias-Brown Act (MMBA) “in the generality or great majority of cases.” Toward that end, IBEW argued that the City’s Employee Relations Ordinance was unreasonable because it appointed the City Manager, an “agent of the City compelled to act in the interest of the City,” to make unit determinations. IBEW’s argument missed the mark. MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” (Ibid.) The rules and regulations may include provisions for, among other things, recognition of employee organizations. (Id., subd. (a)(3).) Unit determinations must be handled and processed in accordance with rules adopted by a local public agency. (Id., § 3507.1, subd. (a).) Contrary to IBEW’s bare claim, nothing in the MMBA’s statutory language expressly or impliedly prohibits agency employers from making unit determinations. (p. 20.) more or view all topics or full text. | 46 | 11 | 06/28/21 |
| 2771M | City of Long Beach 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA grants local public agencies authority to adopt reasonable rules concerning union recognition, elections, and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (MMBA, § 3507, subd. (a).) However, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.) more or view all topics or full text. | 46 | 1 | 06/09/21 |
| 2771M | City of Long Beach 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General When evaluating an MMBA employer’s application of its local rules, PERB follows a reasonableness standard. (City of Madera (2016) PERB Decision No. 2506-M, p. 5.) PERB finds no unfair practice where the agency reasonably interprets its own rules in a manner that effectuates the MMBA’s purposes. (Ibid.) The inverse is true if the public agency acted inconsistently with a reasonable interpretation of the rule. (County of Riverside (2011) PERB Decision No. 2163-M, adopting proposed decision at pp. 8-9.) more or view all topics or full text. | 46 | 1 | 06/09/21 |
| 2691M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; 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. more or view all topics or full text. | 44 | 124 | 01/17/20 |
| 2691M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Precedent requires PERB to harmonize the San Francisco City Charter with the MMBA if possible. (Building Material & Construction Teamsters’ Union v. Farrell (1986) 41 Cal.3d 651, 665 [noting important goal of harmonizing the San Francisco City Charter with the MMBA, if possible].) PERB did so by reasonably and necessarily interpreting the Charter’s penalty provision, which delays the implementation of new economic enhancements, to have no impact so long as the parties submit some type of MOU by the Charter-imposed submission deadline, and by noting that what the parties submit by that deadline may take a variety of forms. For instance, PERB found that the Charter does not proscribe the submitted MOU from including provisions that provide for mid-contract negotiations and mid-contract interest arbitration allowing potential economic enhancements to take effect mid-year and/or retroactive to any date. Such MOU provisions may be agreed-upon or ordered by the arbitrator, and may be included for any reason, including if there was insufficient time to complete good faith negotiations or good faith interest arbitration before the deadline. If the parties fail to reach agreement on certain issues by the submission deadline, they can agree to continue the meet and confer process on those issues in the body of a timely-submitted successor MOU. In this way, the MOU can be submitted in time, and the parties can still have additional time to negotiate on issues they had not completed due to the submission deadline. During such mid-contract negotiations and interest arbitration, enhancements may be agreed upon, or ordered, to be retroactive to any date, because the parties will have satisfied the submission deadline by submitting an MOU as of that date. more or view all topics or full text. | 44 | 124 | 01/17/20 |
| 2691M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The home rule doctrine does not alter the fact that a city’s charter must be consistent with the MMBA. (Boling v. PERB (2018) 5 Cal.5th 898, 913, citing People ex rel. Seal Beach Police Officers Association v. City of Seal Beach (1984) 36 Cal.3d 591, 600 [“[G]eneral law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern.”]. more or view all topics or full text. | 44 | 124 | 01/17/20 |
| 2691M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, a local agency may adopt reasonable rules and regulations pertaining to resolution of collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) In order to be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, whether a local agency has adopted its rules, regulations, or charter provisions via a vote of its electorate, a vote of its governing board, or through any other means, the resulting policies must be consistent with the MMBA. PERB starts from the position of presuming that an employer’s rule is reasonable, which means the burden of proof is on the party challenging such a rule. (San Bernardino County Sheriff’s Assn. v. Bd. of Supervisors (1992) 7 Cal.App.4th 602, 613.) more or view all topics or full text. | 44 | 124 | 01/17/20 |
| 2689M | Salinas Valley Memorial Hospital District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA does not give an employer the right to determine which employees get the benefit of the statute or which must remain unrepresented, and it does not empower it to determine the number and identity of the employee organizations that represent its employees. (See MMBA, § 3502.) By considering each of the four unit determination factors of its local rule in a vacuum, and willfully disregarding the organizational rights of employees and ESC, the Hospital unlawfully focused on its desired outcome at the expense of rights conferred by the MMBA, and unreasonably applied its local rule.The circumstances surrounding the Hospital’s application of the rule, including its intentions, are relevant where it is apparent that the Hospital’s repeated unlawful conduct and results-oriented approach deprived employees and the employee organization of their rights under the MMBA to choose a representative and be represented in their dealings with the employer. (MMBA, § 3500.) more or view all topics or full text. | 44 | 119 | 01/13/20 |
| 2670M | County of Santa Clara 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, local public agencies may adopt reasonable rules and regulations governing unit determinations and representation elections. (p. 32.) Where a successor employer hires its predecessor’s employees to existing classifications and appropriately accretes them to an existing bargaining unit, it has not modified the unit or otherwise run afoul of its unit modification rules. (pp. 32-33.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| 2583M | Oak Valley Hospital District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA does not permit a local public agency to withdraw recognition from an exclusive representative without an employee vote. (MMBA section 3507, subd. (b).) (pp. 6-8) Therefore, a local rule allowing an employer to withdraw recognition without the vote of employees based solely on undefined “objective criteria” demonstrating the exclusive representative no longer enjoys majority support among the bargaining unit members is unreasonable and violates the MMBA. (p. 9) more or view all topics or full text. | 43 | 53 | 09/10/18 |
| 2594M | County of Orange 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because the meet-and-confer process is itself a procedure for resolving disputes regarding wages, hours, and other terms and conditions of employment, a rule that regulates the process is subject to MMBA section 3507. more or view all topics or full text. | 43 | 73 | 11/06/18 |
| 2531M | Santa Clara Valley Water District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General In the absence of decertification, Charging Parties had no absolute right to a separate unit of professional employees when the exclusive representative of the existing mixed unit did not wish to split the unit into professional and non-professional units. PERB and controlling judicial authority have held that the right of professional employees to separate representation is not absolute, but must be harmonized with other provisions of the statute. (p. 14.) more or view all topics or full text. | 42 | 5 | 06/23/17 |
| 2531M | Santa Clara Valley Water District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because Charging Party could achieve separate representation for professional employees with a properly-filed petition for unit modification or decertification and a representation election for exclusive representation in its own name, rather than for continued representation by another employee organization who opposes severance, its reliance on PERB’s Regulations governing MMBA representation matters is misplaced. The MMBA grants public agencies the right to “adopt reasonable rules and regulations” for the administration of employer-employee relations, including for determining what constitutes “an appropriate unit” of employees for collective bargaining purposes. PERB must enforce and apply rules adopted by public agencies concerning unit determinations, representation, recognition, and elections and only has authority to assert jurisdiction and to conduct representation proceedings under PERB’s own Regulations where the public agency has no functionally equivalent local rules under which the petitioner can accomplish what it seeks without undue burden. (p. 15.) more or view all topics or full text. | 42 | 5 | 06/23/17 |
| 2531M | Santa Clara Valley Water District 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Charging Party’s petition to establish a separate unit of professional employees but to retain the same exclusive representative of the current mixed unit failed to comply with the District’s local rules governing unit modification and severance. Charging Party failed to overcome the presumption of correctness afforded a legislative act to show that the District had acted unreasonably in applying or enforcing any aspect of its local rules governing unit modification and severance. The MMBA grants public agencies the right to “adopt reasonable rules and regulations” for the administration of employer-employee relations, including for determining what constitutes “an appropriate unit” of employees for collective bargaining purposes. PERB and judicial authority requires that, when evaluating the reasonableness of a public agency’s unit determination made pursuant to a local rule, the party challenging the unit determination bears the burden of demonstrating that the decision was not reasonable. (pp. 10-11.) more or view all topics or full text. | 42 | 5 | 06/23/17 |
| 2525M | City of Livermore 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Employee’s lack of standing, as an employee, to file a unit modification petition under the City’s local rules has no bearing on whether he may bring an unfair practice charge alleging violations of the City’s local rules or of employee rights under the MMBA. Standing is not dispensed “in gross.” Rather, it is evaluated separately for each claim and each form of relief sought. (p. 13.) The Legislature has expressly authorized employees, in their capacity as employees, to bring unfair practice charges alleging either that a public agency has acted in violation of its local rules and/or that it has enforced its local rules in a manner that is inconsistent with the provisions, policies or purposes of the MMBA. (p. 14.) more or view all topics or full text. | 41 | 173 | 05/04/17 |
| 2525M | City of Livermore 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General PERB rejected a City’s contention that it properly applied community of interest criteria to make a unit determination, where the final determination failed to include findings or explain how these various criteria had been applied. (p. 9.) In making unit determinations under its local rules, a public agency must make findings and explain its analytical process in sufficient detail “to enable the parties to determine whether and on what basis they should seek review and, in the event of review, to apprise a reviewing court of the basis for the [public agency’s] action.” (pp. 11-12.) more or view all topics or full text. | 41 | 173 | 05/04/17 |
| 2525M | City of Livermore 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General City’s local rule requiring 60 percent support by affected employees for a proposed unit modification interferes with employees’ protected right to freely choose and be represented by an effective representative by a simple majority vote. (p. 11.) more or view all topics or full text. | 41 | 173 | 05/04/17 |
| 2525M | City of Livermore 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General City violated the MMBA by processing a unit modification/severance petition on behalf of individual employees when, under the applicable local rules, only employee organizations have standing to petition for unit modification or severance. The record contradicted the City’s claim that it had processed the unit modification/severance petition under the mistaken assumption that the affected employee organization “supported” the efforts of disaffected bargaining unit employees who wished to establish a separate unit for representation purposes. (pp. 4-7.) Among other evidence, a human resources consultant retained by the City, had advised its labor relations officials that the employees’ petition “looked to me like a decertification petition by members” of the exclusive representative. (p. 6-7.) more or view all topics or full text. | 41 | 173 | 05/04/17 |
| 2540M | City and County of San Francisco * * * VACATED IN PART by City and County of San Francisco (2019) PERB Decision No. 2540a-M 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General * * * VACATED IN PART ON OTHER GROUNDS by City & County of San Francisco (2019) PERB Decision No. 2540a-M. * * *A violation based on the adoption or enforcement of an unreasonable regulation requires, as a threshold matter, a showing that the local rule or regulation abridges the exercise of a fundamental right, or frustrates the fulfillment of an affirmative duty, prescribed by the Meyers-Milias-Brown Act (MMBA). A showing of discriminatory intent is not required to establish that a local rule is unreasonable. An interest arbitration procedure that subjects the employee organization’s proposals on certain subjects to a higher standard of proof than those of the employer places a thumb on the scale in favor of the employer’s proposals, and is not a reasonable local rule. Local rule invalidating side letters and past practices not approved in writing by certain officials is unreasonable because it results in a unilateral change in working conditions. MMBA section 3505.1, providing that an MOU is not binding until adopted by the public agency’s governing board, was not intended to upend longstanding principles of labor law, such as the past practice doctrine or that terms and conditions of employment survive the expiration of an MOU, absent agreement to the contrary. The fact that a requirement has previously been incorporated into an MOU does not allow a public agency to enshrine it in a local rule. more or view all topics or full text. | 42 | 50 | 10/20/17 |
| 2388Ma | City of Palo Alto 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Although interest arbitration is not within the scope of representation under MMBA section 3504, the adoption of rules and regulations concerning either interest arbitration or mediation or both, falls squarely within the public agency’s duty, established by MMBA section 3507, to consult in good faith. Section 3507 prescribes a different scope of consultation from that under section 3505, because in section 3507, the Legislature stated with particularity those subjects for consultation. Before adopting rules and regulations under MMBA section 3507, a public agency must: (1) provide reasonable written notice to each employee organization affected by the rule or regulation proposed for adoption or modification by the agency; and (2) afford each such organization a reasonable opportunity to meet and discuss the rule or regulation prior to the agency’s adoption. MMBA section 3507 imposes on a public agency and on recognized employee organizations, several mutual obligations in the conduct of consultation, which are to: (1) meet and confer regarding consultation subjects promptly upon the request by either party; (2) continue meeting and conferring for a reasonable period of time in order to exchange freely information, opinions and proposals; and (3) endeavor to reach an agreement. In its answer to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, the agency may raise the affirmative defense that the charging party waived its consultation right under MMBA section 3507. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith. A compelling operational necessity may justify an employer acting unilaterally before completing its obligation to consult in good faith before adopting rules and regulations under MMBA section 3507. The employer must demonstrate “an actual financial emergency which leaves no real alternative to the action taken and allows no time for meaningful negotiations before taking action. An employer may implement a change prior to completion of bargaining on the effects of a non-negotiable decision but only where: (1) the 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 at all; (2) the employer gave the union notice of the 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 negotiated in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. more or view all topics or full text. | 41 | 162 | 04/10/17 |
| A421M | City of Parlier 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The appropriate avenue for challenging a city’s rule prohibiting confidential employees from being placed in non-confidential bargaining units as being unreasonable, or alleging the rule is not consistent with or does not effectuate the purposes of the express provisions of the MMBA, is an unfair practice charge pursuant to MMBA section 3509(b), not a representation petition before PERB. more or view all topics or full text. | 40 | 16 | 06/04/15 |
| 2536M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because the MMBA gives employees the right to engage in a sympathy strike, a city charter provision banning sympathy strikes under penalty of dismissal is not a reasonable local rule. more or view all topics or full text. | 42 | 14 | 06/30/17 |
| 2424M | City of Inglewood 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Not all public agency rules and regulations fall within the definition of local rules subject to PERB’s jurisdiction; a local rule regarding the classification or reclassification of employees is a local rule subject to PERB’s jurisdiction only if it is a procedural rule for resolving classification disputes. more or view all topics or full text. | 39 | 169 | 06/01/15 |
| 2280M | County of Riverside 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, where the local rule does not require a showing of any employee support for a unit modification, the employer may not imply such a requirement. more or view all topics or full text. | 37 | 51 | 08/14/12 |
| 2294M | County of Orange 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Charge fails to allege facts showing how local rules concerning processing unit modification petitions are unreasonable. To the extent charging party is asking the Board to opine about the reasonableness of a rule as applied in a factual context unrelated to the facts of this charge, the Board declines the invitation, as PERB does not issue advisory opinions or generalized declarations of law. more or view all topics or full text. | 37 | 123 | 11/30/12 |
| 2252M | County of Calaveras 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Employer did not violate MMBA by approving mixed unit of peace officer and on-peace officers requested in severance petition. While MMBA section 3508(a) grants peace officers the affirmative right to join or participate in peace officer-only units, nothing in that section requires peace officers to exercise this right nor prohibits them from being in mixed units if they so choose. MMBA section 3508(d) prohibits a public agency from restricting the right of employees to join and participate in the activities of employee organizations. Local rule limiting the ability of peace officer employees to select representation in a mixed unit with non-peace officer employees is inconsistent with MMBA section 3508(a) and (d), and is an unreasonable local rule that cannot be enforced to preclude mixed unit requested in severance petition. County also did not violate MMBA and local rules when it selected retired mediator as neutral third party to supervise election. more or view all topics or full text. | 36 | 158 | 04/18/12 |
| 2163M | County of Riverside 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General County unreasonably applied its local unit modification rules to deny petitions to add unrepresented per diem employees to existing bargaining units. It was unreasonable for the county to require a showing of majority support among the employees to be added when: (1) the local rules did not contain a support requirement for unit modification; and (2) no principle of labor law requires a showing of majority support any time unrepresented employees are added to an existing unit. The County also unreasonably applied its rules when it denied the union’s modified petitions as untimely; the County’s interpretation of the applicable local rule would prevent a petitioner from correcting procedural deficiencies if the petition is denied near or after the end of the “window period” for filing. more or view all topics or full text. | 35 | 42 | 02/18/11 |
| 2138M | County of Orange 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General County’s failure to adopt local rule governing bargaining unit severance did not violate the MMBA because PERB regulations serve to “fill in the gaps” when no local rule exists and thus a local agency’s failure to adopt a particular rule does not result in the unlawful withholding of recognition. A county properly applied its local unit modification rule to deny a severance petition because the rule provided the functional equivalent of a severance rule and the rule’s requirement of a showing of majority support among the employees in the proposed new unit was not unreasonable or unduly burdensome as applied to the petition. The petitioning union lacked standing to challenge the county’s application of its decertification rule to the union’s severance petition because the union never intended to decertify the incumbent union and thus the County did not apply the rule to the petitioning union’s detriment. more or view all topics or full text. | 34 | 156 | 10/25/10 |
| 2041M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The MMBA authorizes public agencies to adopt reasonable rules and regulations for the administration of employer-employee relations, including additional procedures for the resolution of disputes involving wages, hours and other terms and conditions of employment, and any other matters that are necessary to carry out state law. However, the enforcement of a local rule will be denied if it conflicts with the MMBA or its fundamental purposes. more or view all topics or full text. | 33 | 120 | 06/29/09 |
| 2041M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Mandatory binding interest arbitration does not conflict with the MMBA, its meet-and-confer obligation or its qualified right to strike. Therefore, such a provision is not unreasonable local rule. more or view all topics or full text. | 33 | 120 | 06/29/09 |
| 1957C | Tehama County Superior Court 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General While it is true that the Trial Court Employment Protection and Governance Act (TCEPGA) permits an employer to adopt additional reasonable rules, it does not authorize rules that are in conflict with the Act. Rules adopted by the Court must not “frustrate the declared policies and purposes” of the Act. (International Brotherhood of Electrical Workers v. City of Gridley (1983) 34 Cal.3d 191, 202.) TCEPGA section 71637.1 does not permit a court to adopt a local rule prohibiting an employee organization from simultaneously representing units of non-managerial and managerial employees. more or view all topics or full text. | 32 | 84 | 05/27/08 |
| 1916M | County of Imperial 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General A local rule providing that a representation election is valid only if a majority of eligible employees vote in the election frustrates the purposes of the MMBA and is therefore unreasonable. more or view all topics or full text. | 31 | 120 | 06/28/07 |
| 1890M | City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The impasse provisions in the City charter are not unreasonable because they appear to effectuate the MMBA’s purpose of promoting “full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours and other terms and conditions of employment.” (Sec. 3500(a).) The MMBA specifically allows local agencies the discretion to adopt their own impasse rules, but does not delineate what local agency impasse rules must contain. more or view all topics or full text. | 31 | 72 | 03/12/07 |
| 1600M | County of San Joaquin 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General There is no precedent for the Board to enforce a non-binding mediator’s recommendation.Local 790 failed to show how the County’s failure to provide a rationale for not adopting the mediator’s recommendations violated the MMBA.The County’s Employer-Employee Relations Policy gives the County discretion to adopt a hearing officer’s proposed decision.Local 790’s citation to the standard in Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal. 3d 506, 515 [113 Cal. Rptr. 836] that “the agency must make findings that bridge the analytic gap between the raw evidence and the ultimate decision or order” is inapplicable to this case. This is because it involves a local agency review of a variance permit under standards set by statute, the variance hearing occurred and was under review by the court. Here, Local 790 alleged violation of a local rule which the County adopted after good faith negotiations with Local 790 or its predecessor and there is no evidence that the mediator’s decision was ever brought before the County’s board for adoption. more or view all topics or full text. | 28 | 86 | 02/24/04 |
| 1698M | City of San Rafael 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General When a rule is disputed as unreasonable, the inquiry does not concern whether PERB would find a different rule more reasonable or the existing rule is unreasonable measured against an arbitrary standard. The question is whether the disputed rule is consistent with and effectuates the purposes of the express provisions of the MMBA. more or view all topics or full text. | 28 | 267 | 10/20/04 |
| 1663M | County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General MMBA: Under the MMBA, it is an unfair practice for a local agency to adopt or enforce an unreasonable local rule. (MMBA sec. 3507; PERB reg. 32603(f).) As violation based on this theory requires, as a threshold matter, a showing that the local rule or regulation abridges the exercise of a fundamental right, or frustrates the fulfillment of an affirmative duty, prescribed by the MMBA. MMBA: Board found that local rule requiring rival unions to undergo a registration process without input from the incumbent union does not constitute an unreasonable rule on its face since rule can be applied in reasonable manner. However, Board found application of rule to be unreasonable under facts of case. more or view all topics or full text. | 28 | 204 | 07/16/04 |