Decision 1942C – Fresno County Superior Court * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M

SA-CE-6-C

Decision Date: January 31, 2008

Decision Type: PERB Decision

 * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M * * *

View Full Text (PDF)

Perc Vol: 32
Perc Index: 38

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

The rule under EERA in Newman-Crows Landing Unified School District (1982) PERB Decision No. 223, which holds that while a request to bargain the impact of a decision not within the scope of bargaining does not have to be in a particular form, it must adequately signify the desire to negotiate on a subject within the scope of bargaining, also applies in cases adjudicated under the Trial Court Act.) (Board held the following did not constitute sufficient requests to bargain over the effects of the decision to change a job description for court reporters by including Realtime reporting requirements: (1) steward/court reporter’s statements that she did not agree with the job description; (2) union representative’s email requesting a “formal meet and confer,” because they were not in agreement with the job specification; and (3) union representative’s email stating that the Court’s position that it did not have an obligation to meet and confer was incorrect.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

The addition, without notice or opportunity to bargain, of the Realtime reporting requirements in the job description for court reporters which mandated use of additional equipment and software, technical knowledge, and customizing the Realtime dictionary, where prior job description required only use of a stenograph machine, constituted a unilateral change within the scope of representation. These Realtime reporting requirements had a generalized effect given they impacted the terms and conditions of all court reporters hired after approval of the job description. However, because we have determined that the change was non-negotiable under the Trial Court Act’s scope of representation provisions, the Court’s implementation of the change is not an unlawful unilateral change.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

The decision, without notice or opportunity to bargain, to add Realtime reporting requirements to the job description for court reporters which mandated use of additional equipment and software, technical knowledge, and customizing the Realtime dictionary, where prior job description required only use of a stenograph machine, constituted a unilateral change in past practices. Court’s requirement that newly hired court reporters provide Realtime reporting was a change in past practice. However, because we have determined that the change was non-negotiable under the Trial Court Act’s scope of representation provisions, the Court’s implementation of the change is not an unlawful unilateral change.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.01000 – In General

The elements for bypass under the Trial Court Act are the same as those enunciated in County of Fresno (2004) PERB Decision No. 1731-M, which dealt with a charge of bypass under the MMBA, because the statutory sections on which the bypass charge is based under the Trial Court Act are substantially the same as those in the MMBA.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.04000 – Circumvention of Union; Direct Dealing With Employees

Court’s conditioning employment of new court reporters on their signing an agreement to provide Realtime services did not constitute unlawful bypass of the exclusive representative because the agreement did not modify the provisions of the MOU, which provided only for a Realtime reporting pay differential and that policies and procedures for implementing the pay differential would be negotiated.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.06000 – Management-Rights Clause; Management Prerogative

Court’s requirement that newly hired court reporters sign an agreement to provide Realtime reporting services, which was added to the job description, was not an unlawful unilateral change, but rather an assignment of work which falls within the Court’s management prerogative under City & County of San Francisco (2004) PERB Decision No. 1608-M (San Francisco). PERB’s holding in San Francisco under the MMBA applies equally to the Trial Court Act given that they have the same “scope of representation” provisions.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

In order to fall within Trial Court Act section 71634(b)’s list of decisions excluded from the scope of representation, the decision must not only be one which reasonably falls within one of the excluded categories, but the reason for the decision must be for the purpose of carrying out the unique and special responsibilities of the trial courts.

1000.00000 – SCOPE OF REPRESENTATION
1000.02070 – Job Descriptions

The decision to add Realtime reporting requirements to the job description for court reporters which mandated use of additional equipment and software, technical knowledge, and customizing the Realtime dictionary, where prior job description required only use of a stenograph machine, reasonably fell within Trial Court Act’s exclusion of decisions regarding “delivery of court services” from the scope of representation of the Trial Court Act because the decision was made for the purpose of carrying out the special responsibilities of the trial court.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

PERB Regulation 32320 allows the Board to issue its decision based upon the record of the hearing and gives the Board broad discretion in its review of an ALJ’s proposed decision. The Board is free to draw its own conclusions from the record apart from those of the ALJ.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

In determining whether to review unalleged violations, PERB bears in mind the significant importance of giving all parties litigating disputes under California’s public labor relations statutes adequate notice and a fair opportunity to litigate their claims. PERB must be very circumspect when determining that all of the criteria for reviewing an unalleged violation have been met. Toward this end, it is strongly recommended that the evidence justifying the above criteria always be expressly enunciated, so that all parties are aware of the basis for the finding that an unalleged violation can be heard without any unfairness. The Board may review unalleged violations when all of the following requirements are met: (1) adequate notice and opportunity to defend has been provided to the respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on this issue; and (5) the unalleged violation must be within the applicable statute of limitations. In this case the requirements were met.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

If the language of a statute is clear and unambiguous, then the intent of the Legislature is reflected in the plain meaning of the statute.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

PERB Regulation 32320 allows the Board to issue its decision based upon the record of the hearing and gives the Board broad discretion in its review of an ALJ’s proposed decision. The Board is free to draw its own conclusions from the record apart from those of the ALJ. The Board could not adjudicate employee organization’s claims that the disciplinary procedures in the court reporters’ pre-hire agreement were an unlawful unilateral decision and constituted unlawful bypass, because the factual allegations did not include a “clear and concise statement of the facts and conduct alleged to constitute an unfair practice” as required by PERB Regulation 32615(a)(5).