Decision 2103M – City of San Diego (Office of the City Attorney) * * * OVERRULED IN PART by City of Sacramento (2013) PERB Decision No. 2351-M
LA-CE-294-M
Decision Date: March 26, 2010
Decision Type: PERB Decision
* * * OVERRULED IN PART by City of Sacramento (2013) PERB Decision No. 2351-M * * *
Description: The charge alleged that the city bypassed the union, and made an illegal unilateral change, by soliciting city employees to rescind retirement service credit purchases made pursuant to the collective bargaining agreement between the parties.
Disposition: The Board affirmed that part of the ALJ’s proposed decision finding a bypass violation, but reversed the ALJ’s finding that the city’s “attempt” to change the policy was an illegal unilateral change.
Perc Vol: 34
Perc Index: 63
Decision Headnotes
101.01000 – In General
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
A City Charter section providing that the city attorney is the “chief legal advisor of, and attorney for the City and all Departments and offices thereof in matters relating to their official powers and duties,” does not provide the city attorney authority to disregard state labor statutes.
602.01000 – In General
* * * OVERRULED IN PART by City of Sacramento (2013) PERB Decision No. 2351-M, where the Board held that an employer’s act of soliciting employees to waive a contractual right or to change an established practice constitutes a firm decision or actual change in policy for the purpose of demonstrating an unlawful unilateral change. * * *
Employer’s “attempt” to change a policy is insufficient to establish a prima facie case for illegal unilateral change without offering to meet and confer with the union.
603.01000 – In General
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
Employer illegally bypassed the union when it created and implemented procedures for employees to rescind service credit purchases made pursuant to the MOU between the parties, and solicited employees directly to rescind the transactions. Employer press release and website posting soliciting employees to rescind service credit purchases were not protected employer communications, as the statements went beyond merely informing employees of existing facts, views, arguments or opinions. Employer speech that is used as a means of violating the Act, or that evidences an attempt to bypass the exclusive representative is not entitled to protection.
603.04000 – Circumvention of Union; Direct Dealing With Employees
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
Employer illegally bypassed the union when it created and implemented procedures for employees to rescind service credit purchases made pursuant to the MOU between the parties, and solicited employees directly to rescind the transactions. Employer press release and website posting soliciting employees to rescind service credit purchases were not protected employer communications, as the statements went beyond merely informing employees of existing facts, views, arguments or opinions. Employer speech that is used as a means of violating the Act, or that evidences an attempt to bypass the exclusive representative is not entitled to protection.
608.01000 – In General
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
Employer press release and website posting soliciting employees to rescind service credit purchases were not protected employer communications, as the statements went beyond merely informing employees of existing facts, views, arguments or opinions. Employer speech that is used as a means of violating the Act, or that evidences an attempt to bypass the exclusive representative is not entitled to protection
608.06000 – Management-Rights Clause; Management Prerogative
A City Charter section providing that the city attorney is the “chief legal advisor of, and attorney for the City and all Departments and offices thereof in matters relating to their official powers and duties,” does not provide the city attorney authority to disregard state labor statutes.
1107.11000 – Request for Oral Argument
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
The Board historically denies requests for oral argument when an adequate record has been prepared, the parties had ample opportunity to present briefs and have availed themselves of that opportunity, and the issues before the Board are sufficiently clear to make oral argument unnecessary.
1107.13000 – Administrative and Judicial Notice
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
Pursuant to California Evidence Code section 451, the Board shall take judicial notice of a City Charter. However, pursuant to section 452(b), the granting of judicial notice to a municipal code, or a city ordinance is discretionary.
1205.01000 – In General
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
The appropriate remedy for an employer bypass violation related to statements posted on the employer website, was a notation to the posting indicating that it did not apply to employees represented by the charging party. An ALJ’s order removing the posted statements from the website is overbroad.
1205.03000 – Notices; Posting, Reading, and Mailing
* * * OVERRULED IN PART ON OTHER GROUNDS by City of Sacramento (2013) PERB Decision No. 2351-M. * * *
The appropriate remedy for an employer bypass violation related to statements posted on the employer website, was a notation to the posting indicating that it did not apply to employees represented by the charging party. An ALJ’s order removing the posted statements from the website is overbroad.