Decision 2101H – Regents of the University of California (Davis)

SA-CE-246-H, SA-CE-247-H, SA-CE-251-H, SF-CE-760-H, SF-CE-795-H

Decision Date: March 1, 2010

Decision Type: PERB Decision

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Perc Vol: 34
Perc Index: 55

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

Notice of a proposed change must be given to an official of the union who has the authority to act on behalf of the organization. The knowledge of one or even several members of the bargaining unit, who lack authority to act in an official capacity, will not be imputed to the organization. Therefore, notice of a proposed change will not be imputed to a union solely on the basis that the employer notified an employee was a member of the union.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

Notice of a proposed change must be given to an official of the union who has the authority to act on behalf of the organization. Therefore, notice will not be imputed to a union on the basis of notice to one or even several members of the bargaining unit if those employers lack authority to act in an official capacity on behalf of the union.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

A contract breach can support a unilateral change claim when the breaching party asserts that the contract authorizes its conduct. In addition, contract breaches may also support unilateral change claims when there is a change in policy that is generally applicable to future situations.

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

Notice of a proposed change must be given to an official of the union who has the authority to act on behalf of the organization. The knowledge of one or even several members of the bargaining unit, who lack authority to act in an official capacity, will not be imputed to the organization. Therefore, notice of a proposed change will not be imputed to a union solely on the basis that the employer notified an employee was a member of the union.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

A contract breach can support a unilateral change claim when the breaching party asserts that the contract authorizes its conduct. In addition, contract breaches may also support unilateral change claims when there is a change in policy that is generally applicable to future situations.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

An exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty of representation. PERB uses a liberal standard, similar to a discovery-type standard, to determine the relevance of requested information. If the relevance of the requested information is rebutted by the employer, the exclusive representative must establish how the information is relevant to its representational responsibilities such as negotiations or contract administration. In defining the parameters of “necessary and relevant information” the Board has ruled that if the requested information pertains immediately to a mandatory subject of bargaining, it is presumptively relevant. Absent a valid defense, the failure to provide such information is a per se violation of the duty to bargain in good faith. On the other hand, the Board has ruled that information not within scope is not presumptively relevant. In such cases, absent the presumption, the burden falls on the charging party to demonstrate the information sought is relevant and necessary to its representational responsibilities.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

An employer is not obligated to provide requested information when the parties have equal access to the same information from the same source. In such cases, the responding party must tell the requesting party the location of the information.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

An exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty of representation. PERB uses a liberal standard, similar to a discovery-type standard, to determine the relevance of requested information. If the relevance of the requested information is rebutted by the employer, the exclusive representative must establish how the information is relevant to its representational responsibilities such as negotiations or contract administration. In defining the parameters of “necessary and relevant information” the Board has ruled that if the requested information pertains immediately to a mandatory subject of bargaining, it is presumptively relevant. Absent a valid defense, the failure to provide such information is a per se violation of the duty to bargain in good faith. On the other hand, the Board has ruled that information not within scope is not presumptively relevant. In such cases, absent the presumption, the burden falls on the charging party to demonstrate the information sought is relevant and necessary to its representational responsibilities.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.17000 – Failure to Provide Information

An exclusive representative is entitled to all information that is “necessary and relevant” to the discharge of its duty of representation. PERB uses a liberal standard, similar to a discovery-type standard, to determine the relevance of requested information. If the relevance of the requested information is rebutted by the employer, the exclusive representative must establish how the information is relevant to its representational responsibilities such as negotiations or contract administration. In defining the parameters of “necessary and relevant information” the Board has ruled that if the requested information pertains immediately to a mandatory subject of bargaining, it is presumptively relevant. Absent a valid defense, the failure to provide such information is a per se violation of the duty to bargain in good faith. On the other hand, the Board has ruled that information not within scope is not presumptively relevant. In such cases, absent the presumption, the burden falls on the charging party to demonstrate the information sought is relevant and necessary to its representational responsibilities.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

HEERA section 3563.2(a) 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. In unilateral change cases, the limitation period begins to run on the date the charging party obtains actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy, provided that nothing subsequently evinces a wavering of that intent.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

HEERA section 3563.2(a) 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. In unilateral change cases, the limitation period begins to run on the date the charging party obtains actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy, provided that nothing subsequently evinces a wavering of that intent. 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.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.01000 – In General

Although PERB does not have jurisdiction to resolve pure contract disputes pursuant to HEERA section 3563.2(b), it may interpret contract language if doing so is necessary in deciding an unfair practice charge case. In such cases, traditional rules of contract law guide the Board’s interpretation of collective bargaining agreements.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.01000 – In General

A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. Thus, the Board must avoid an interpretation of contract language which leaves a provision without effect.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.01000 – In General

When contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.02000 – Board’s Jurisdiction To Interpret Contracts

Although PERB does not have jurisdiction to resolve pure contract disputes pursuant to HEERA section 3563.2(b), it may interpret contract language if doing so is necessary in deciding an unfair practice charge case. In such cases, traditional rules of contract law guide the Board’s interpretation of collective bargaining agreements.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.03000 – General Principles of Contract Interpretation

A contract must be so interpreted as to give effect to the mutual intention of the parties as it existed at the time of contracting, so far as the same is ascertainable and lawful. Where contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other. Thus, the Board must avoid an interpretation of contract language which leaves a provision without effect.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.03000 – General Principles of Contract Interpretation

When contractual language is clear and unambiguous, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning.