Decision 2196S – State of California (Department of Corrections and Rehabilitation, Avenal State Prison) * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M

SA-CE-1830-S

Decision Date: August 12, 2011

Decision Type: PERB Decision

 * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M * * *

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Perc Vol: 36
Perc Index: 30

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

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.

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

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.

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

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

To satisfy the requirements of PERB Regulation 32635(a), the appeal must sufficiently place the Board and the respondent “on notice of the issues raised on appeal.” Where arguments in support of appeal discuss the substance of the Board agent’s dismissal letter and make reference to specific pages of the letter, and respondent discussed the merits of those arguments in its response to the appeal, the appeal sufficiently put the Board and respondent on notice of the issues raised on appeal.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.01000 – In General

To satisfy the requirements of PERB Regulation 32635(a), the appeal must sufficiently place the Board and the respondent “on notice of the issues raised on appeal.” Where arguments in support of appeal discuss the substance of the Board agent’s dismissal letter and make reference to specific pages of the letter, and respondent discussed the merits of those arguments in its response to the appeal, the appeal sufficiently put the Board and respondent on notice of the issues raised on appeal.