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 * * *

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Perc Vol: 34
Perc Index: 49

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)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

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.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

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. 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.

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

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. 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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

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.

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

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.