Decision 2092E – Desert Sands Unified School District

Unilateral changes are considered “per se” violations if certain criteria are met. Those criteria are: (1) the employer breached or altered the parties’ written agreement or past practice; (2) the action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the action is not merely an isolated incident, but amounts to a change of policy (i.e., having a generalized effect or continuing impact on terms and conditions of employment); and (4) the change in policy concerns a matter within the scope of representation.

In general, transfers of work from employees in one bargaining unit to employees in another are negotiable. Similarly, transfers of work from one classification to another within the same bargaining unit are also negotiable. Notwithstanding the general rule, not all transfers of work are negotiable. Where unit and non-unit employees perform overlapping duties, an employer does not violate its duty to negotiate in good faith merely by increasing the quantity of work which non-unit employees perform and decreasing the quantity of work which unit employees perform. This exception, however, does not apply where, as a result of the transfer, unit employees ceased performing duties that they previously performed, or non-unit employees began performing duties that were previously exclusively performed by unit employees.

In cases alleging a non-negotiable decision had an effect on work hours, the charging party bears the burden of alleging facts establishing an actual impact on employees’ work hours. The impact must be reasonably certain to occur and causally related to the non-negotiable decision. Consequently, PERB will not find an unlawful unilateral change when the alleged effect on terms and conditions of employment is “indirect and speculative.”

For a past practice to be binding, it must be: (1) unequivocal; (2) clearly enunciated and acted upon; and (3) readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties. An enforceable past practice is one that is “regular and consistent” or “historic and accepted.”

Neither a later reversal or rescission of a unilateral action nor a subsequent negotiation on the subject of a unilateral action excuses an unlawful unilateral change violation.

In cases alleging a non-negotiable decision had an effect on work hours, the charging party bears the burden of alleging facts establishing an actual impact on employees’ work hours. The impact must be reasonably certain to occur and causally related to the non-negotiable decision. Consequently, PERB will not find an unlawful unilateral change when the alleged effect on terms and conditions of employment is “indirect and speculative.”

The Board has generally recognized that the direction of the work force and the determination of the work to be performed by employees is a managerial prerogative and not subject to bargaining. Consequently, the assignment of duties reasonably comprehended within an existing job description is not an unfair labor practice, even if such duties have never been performed. Managerial prerogative, however, is not unlimited. The employer’s discretion to unilaterally assign tasks applies only to those tasks that are reasonably understood to be among the duties of the classification as established in the job description. Moreover, if an employer’s decision regarding the management of its services and utilization of its staff has an impact on the amount of work performed by represented employees, that decision falls within the scope of representation and is subject to bargaining.

In general, transfers of work from employees in one bargaining unit to employees in another are negotiable. Similarly, transfers of work from one classification to another within the same bargaining unit are also negotiable. Notwithstanding the general rule, not all transfers of work are negotiable. Where unit and non-unit employees perform overlapping duties, an employer does not violate its duty to negotiate in good faith merely by increasing the quantity of work which non-unit employees perform and decreasing the quantity of work which unit employees perform. This exception, however, does not apply where, as a result of the transfer, unit employees ceased performing duties that they previously performed, or non-unit employees began performing duties that were previously exclusively performed by unit employees.

Unilateral changes are considered “per se” violations if certain criteria are met. Those criteria are: (1) the employer breached or altered the parties’ written agreement or past practice; (2) the action was taken without giving the exclusive representative notice or an opportunity to bargain over the change; (3) the action is not merely an isolated incident, but amounts to a change of policy (i.e., having a generalized effect or continuing impact on terms and conditions of employment); and (4) the change in policy concerns a matter within the scope of representation.

EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. This limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge. A charging party must file a charge when it has actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy. Thus, a charging party that rests on its rights until actual implementation of the change bears the risk of running afoul of the statute of limitations.

EERA section 3541.5(a)(1) prohibits PERB from issuing a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. This limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge. A charging party must file a charge when it has actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy. Thus, a charging party that rests on its rights until actual implementation of the change bears the risk of running afoul of the statute of limitations.