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 * * *

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Perc Vol: 34
Perc Index: 63

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

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.

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

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.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.01000 – In General

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.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.04000 – Circumvention of Union; Direct Dealing With Employees

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.

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

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.11000 – Request for Oral Argument

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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.13000 – Administrative and Judicial Notice

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.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

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.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.03000 – Notices; Posting, Reading, and Mailing

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.