Decision 2097M – County of Riverside * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
LA-CE-373-M
Decision Date: February 10, 2010
Decision Type: PERB Decision
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M * * *
Description: The charge alleged the County failed to meet and confer in good faith when it unilaterally discontinued part of the Performance and Competency Pay Plan, without providing the union with notice and an opportunity to bargain.
Disposition: The Board held that Local 777 failed to establish that it made an adequate demand to bargain the effects of the decision, and therefore failed to establish that the County violated the MMBA.
The Board rejected the County’s argument that the ALJ’s restatement of the issue at hearing amounted to an improper consideration of an unalleged violation. The Board held that the issue as stated by the ALJ reflected the actual issue litigated by the parties more accurately than the issue stated in the complaint, and that the criteria for consideration of an unalleged violation had been met.
Perc Vol: 34
Perc Index: 49
Decision Headnotes
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
Where a change is made to a matter that is not within the scope of representation, or where the right to demand bargaining over the decision to change has been waived by the employee organization, the employer is obligated to provide notice and an opportunity to bargain over the negotiable effects of the decision, but not the decision itself. The employee organization has the burden to show it made a clear request to bargain the effects of the decision. Where the employee organization failed to establish that its demand to bargain indicated an intent to bargain the effects of the decision as opposed to the decision itself, it failed to establish a prima facie case for violation of the duty to bargain in good faith.
601.03000 – Decision vs Effects Bargaining
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
In dealing with effects bargaining, the employee organization is entitled to reasonable notice and an opportunity to bargain over the negotiable effects of a non-negotiable decision. Where formal notice is not given, but the employee organization receives actual notice of a decision, the effects of which it believes to be negotiable, the employer’s failure to give formal notice is of no legal import and the burden is on the employee organization to request bargaining. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects.
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
In dealing with effects bargaining, the employee organization is entitled to reasonable notice and an opportunity to bargain over the negotiable effects of a non-negotiable decision. Where formal notice is not given, but the employee organization receives actual notice of a decision, the effects of which it believes to be negotiable, the employer’s failure to give formal notice is of no legal import and the burden is on the employee organization to request bargaining. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects.
602.02000 – Prior Notice and Opportunity to Bargain
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
Where a change is made to a matter that is not within the scope of representation, or where the right to demand bargaining over the decision to change has been waived by the employee organization, the employer is obligated to provide notice and an opportunity to bargain over the negotiable effects of the decision, but not the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself.
608.01000 – In General
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
In dealing with effects bargaining, the employee organization is entitled to reasonable notice and an opportunity to bargain over the negotiable effects of a non-negotiable decision. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
* * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *
In dealing with effects bargaining, the employee organization is entitled to reasonable notice and an opportunity to bargain over the negotiable effects of a non-negotiable decision. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects.
1107.04000 – Unalleged Violations
* * * OVERRULED IN PART ON OTHER GROUNDS by County of Santa Clara (2013) PERB Decision No. 2321-M. * * *
The Board rejected the County’s argument that the ALJ’s restatement of the issue at hearing amounted to an improper consideration of an unalleged violation. The Board held that the issue as stated by the ALJ reflected the actual issue litigated by the parties more accurately than the issue stated in the complaint. The record showed that throughout the hearing process both parties understood the issue in the matter to be the issue as stated by the ALJ. The ALJ’s statement of the issue involved the same alleged act of misconduct as that stated in the complaint, the parties had adequate notice that the issue as stated by the ALJ was the issue under consideration, and both parties fully litigated the issue as stated by the ALJ.