Decision 2143M – Omnitrans

LA-CE-427-M

Decision Date: November 18, 2010

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 34
Perc Index: 171

Decision Headnotes

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.08000 – Employer-Created Organizations

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.

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 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.”

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

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.”

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

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.

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 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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

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.

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

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.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

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.