Decision 2143M – Omnitrans

Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. The ALJ properly distinguished prior PERB case law that found there was no violation where the employer and union specifically negotiated an agreement that bargaining would be held if the employer intended to make any changes based on recommendations from the working group.

Employer committed an illegal unilateral change in the grievance procedure where it refused to process a grievance filed by the union in its own name. Under the MMBA a union has a statutory right to file a grievance in its own name that can only be limited by clear and unmistakable waiver. The Board found that the parties’ MOU did not contain a “clear and unmistakable prescription that an individual employee must be the grievant, or a clear and unmistakable proscription that the Union itself may not be the grievant.”

Employer committed an illegal unilateral change in the grievance procedure where it refused to process a grievance filed by the union in its own name. Under the MMBA a union has a statutory right to file a grievance in its own name that can only be limited by clear and unmistakable waiver. The Board found that the parties’ MOU did not contain a “clear and unmistakable prescription that an individual employee must be the grievant, or a clear and unmistakable proscription that the Union itself may not be the grievant.”

Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. The ALJ properly distinguished prior PERB case law that found there was no violation where the employer and union specifically negotiated an agreement that bargaining would be held if the employer intended to make any changes based on recommendations from the working group. The management rights clause found in the MOU between the parties did not clearly and unmistakably waive the union’s right to bargain work assignment bidding procedures. Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures.

Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. The ALJ properly distinguished prior PERB case law that found there was no violation where the employer and union specifically negotiated an agreement that bargaining would be held if the employer intended to make any changes based on recommendations from the working group. The management rights clause found in the MOU between the parties did not clearly and unmistakably waive the union’s right to bargain work assignment bidding procedures. Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures.

The management rights clause found in the MOU between the parties did not clearly and unmistakenly waive the union’s right to bargain work assignment bidding procedures. Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures.

PERB will award attorney’s fees only if the charge is both without arguable merit and pursued in bad faith. Union failed to demonstrate that agency’s failure to appear in person for a settlement conference or make a timely request to reschedule was a deliberate attempt to delay the proceedings, or was otherwise indicative of bad faith by the agency. Agency’s attorney was available by telephone, and union acknowledged that it had participated in prior settlement conferences where the agency appeared by telephone.

PERB will award attorney’s fees only if the charge is both without arguable merit and pursued in bad faith. Union failed to demonstrate that agency’s failure to appear in person for a settlement conference or make a timely request to reschedule was a deliberate attempt to delay the proceedings, or was otherwise indicative of bad faith by the agency. Agency’s attorney was available by telephone, and union acknowledged that it had participated in prior settlement conferences where the agency appeared by telephone.