Decision 2431M – County of Santa Clara

SF-CE-1150-M

Decision Date: June 10, 2015

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 181

Decision Headnotes

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

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.

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

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
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 – GENERAL LEGAL PRINCIPLES; MOOTNESS
1406.01000 – 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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.