Decision 2125M – County of Fresno

SA-CE-599-M

Decision Date: August 11, 2010

Decision Type: PERB Decision

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Perc Vol: 34
Perc Index: 122

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

Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. County’s erroneous publication of personnel rules including a copy of the policy suggesting that BU 31 was exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exempt BU 31. The implementation of furloughs represented the application of the existing policy. Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Union argument that the parties bargaining history and past practice show that the MOU between the parties is plagued by mistake of fact is misplaced where the issue before PERB is not bad faith bargaining, but is the allegation of unilateral change of a County policy that is not set forth in the MOU.

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

No duty to bargain the implementation of furloughs when it represents the application of existing policy. Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Erroneous publication of the policy by the County Personnel Department suggesting that certain bargaining units were exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exclude those bargaining units.

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

Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. County’s erroneous publication of personnel rules including a copy of the policy suggesting that BU 31 was exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exempt BU 31. The implementation of furloughs represented the application of the existing policy. Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Union argument that the parties bargaining history and past practice show that the MOU between the parties is plagued by mistake of fact is misplaced where the issue before PERB is not bad faith bargaining, but is the allegation of unilateral change of a County policy that is not set forth in the MOU.

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

No duty to bargain the implementation of furloughs when it represents the application of existing policy. Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Erroneous publication of the policy by the County Personnel Department suggesting that certain bargaining units were exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exclude those bargaining units.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Union argument that the parties bargaining history and past practice show that the MOU between the parties is plagued by mistake of fact is misplaced where the issue before PERB is not bad faith bargaining, but is the allegation of unilateral change of a County policy that is not set forth in the MOU.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. County’s erroneous publication of personnel rules including a copy of the policy suggesting that BU 31 was exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exempt BU 31. The implementation of furloughs represented the application of the existing policy. Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Union argument that the parties bargaining history and past practice show that the MOU between the parties is plagued by mistake of fact is misplaced where the issue before PERB is not bad faith bargaining, but is the allegation of unilateral change of a County policy that is not set forth in the MOU.