Decision 2234S – State of California (Department of Developmental Services)

SA-CE-1850-S

Decision Date: January 31, 2012

Decision Type: PERB Decision

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Perc Vol: 36
Perc Index: 114

Decision Headnotes

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

To prevail on a transfer of work theory, the charging party must establish as a threshold matter that its bargaining unit had previously and exclusively performed the duties at issue. Where unit and non-unit employees traditionally have performed overlapping duties, the employer does not violate its duty to negotiate in good faith merely by increasing the quantity of work that non-unit employees perform and decreasing the quantity of work that unit employees perform.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.01000 – In General

Dills Act section 3514.5(a)(1) prohibits PERB from issuing a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. In this case, the employer allegedly refused to bargain over effects of a unilateral change, then allegedly refused to bargain twice more thereafter. The second and third requests to bargain reiterated the first request. The statute of limitations began to run when the charging party learned of the employer’s first refusal to bargain and thus, the employer’s initial refusal to bargain fell outside of the statutory period. In the absence of changed circumstances, subsequent failures to bargain about a prior change do not constitute new violations so as to bring the dispute within the statute of limitations.