Decision 2431M – County of Santa Clara
SF-CE-1150-M
Decision Date: June 10, 2015
Decision Type: PERB Decision
Description: The exclusive representative of a unit of correctional employees, including some peace officers, appealed the dismissal of its unfair practice charge alleging that the County had unilaterally altered the terms of the parties’ expired memorandum of understanding and/or the County’s established practice governing reimbursement of employees for training and development expenses.
Disposition: The Board determined that it had jurisdiction to hear the charge. Although the MMBA limits PERB’s jurisdiction as to “persons” who are peace officers, it does not preclude organizations representing such persons from having disputes considered by PERB. The Board reversed the dismissal and remanded to the Office of the General Counsel for issuance of a complaint. Dismissal was inappropriate because the representative had asserted plausible legal theories based on the expired MOU language governing tuition reimbursements and the County’s established practice, as codified by its own reimbursement forms.
Perc Vol: 39
Perc Index: 181
Decision Headnotes
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)
To avoid acting in excess of its authority the Board has the obligation to determine whether it has jurisdiction over a matter, regardless of whether the issue has been raised by the parties. While MMBA section 3511 excludes PERB from hearing charges filed by “persons” who are peace officers, the statute does not prohibit the Agency from hearing charges brought by employee organizations that represent peace officers or employee organizations seeking to represent units including persons who are peace officers.
602.01000 – In General
The reversal or rescission of a unilateral change does not excuse or cure the alleged violation or otherwise render it moot where the respondent maintains that it has the right to repeat the complained-of conduct. Where, as here, the respondent asserts that its conduct was authorized by the collective bargaining agreement, the charging party has demonstrated that the alleged unilateral change had a generalized effect or continuing impact on terms and conditions of employment for the purpose of stating a prima facie case.
602.05000 – Impact and Extent
The reversal or rescission of a unilateral change does not excuse or cure the alleged violation or otherwise render it moot where the respondent maintains that it has the right to repeat the complained-of conduct. Where, as here, the respondent asserts that its conduct was authorized by the collective bargaining agreement, the charging party has demonstrated that the alleged unilateral change had a generalized effect or continuing impact on terms and conditions of employment for the purpose of stating a prima facie case.
608.12000 – Good Faith; DeMinimus; Temporary Change
The reversal or rescission of a unilateral change does not excuse or cure the alleged violation or otherwise render it moot where the respondent maintains that it has the right to repeat the complained-of conduct.
1100.02000 – Investigation of Charge
While PERB Regulation 32620 requires a Board agent investigating a charge to assist the charging in stating information that is required, no similar requirement is extended to affirmative defenses not raised by a respondent. Although a Board agent must accept the plain language of a contract or local rule where it is clear and unambiguous, where there is a legitimate dispute over the meaning of a contract or local rule, the parties must be afforded the opportunity to offer evidence in support of their respective contentions before the matter is dismissed. The question is not whether the charging party has asserted the most plausible interpretation of a contract or local rule, but whether it has asserted a plausible, i.e., non-frivolous interpretation that supports a prima facie allegation of an unfair practice. The Board reversed dismissal of a charge alleging a unilateral change from expired contract provision and established practice where contract language at issue was reasonably susceptible to more than one meaning and respondent’s position statement included evidence supporting existence of established practice alleged by the charging party.
1100.01000 – In General/Prima Facie Case
While PERB Regulation 32620 requires a Board agent investigating a charge to assist the charging in stating information that is required, no similar requirement is extended to affirmative defenses not raised by a respondent.
1100.08000 – Pleading Requirements
An affirmative defense not raised by the respondent at the charge processing stage cannot provide the basis for dismissal, even if the pertinent facts are undisputed.
1406.00000 – In General
The reversal or rescission of a unilateral change does not excuse or cure the alleged violation or otherwise render it moot where the respondent maintains that it has the right to repeat the complained-of conduct.
1503.01000 – In General
While PERB Regulation 32620 requires a Board agent investigating a charge to assist the charging in stating information that is required, no similar requirement is extended to affirmative defenses not raised by a respondent.