Decision 2491M – City of Montebello

LA-CE-904-M

Decision Date: June 30, 2016

Decision Type: PERB Decision

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Perc Vol: 41
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 determining whether a party has violated its statutory duty to bargain, PERB uses both a per se and totality of circumstances test, on the specific conduct involved and its effect on the negotiating process. The tests typically rely on different kinds of evidence because they involve a failure to comply with different components of the statutory language. A unilateral change or other per se violation typically involves a failure to meet or follow the procedures for bargaining, while bargaining in bad faith is a failure to do so with the requisite state of mind. A unilateral change to negotiable subjects is regarded as a species of per se violations of the bargaining obligation because of its incompatibility with the bi-lateral scheme for collective bargaining and its inherently destabilizing and detrimental effect on the bargaining relationship, irrespective of intent. The Board rejected charging party’s exception arguing that a unilateral change may be evaluated under a totality of circumstances if the evidence fails to meet the criteria for a per se violation.

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

Charging party failed to prove its prima facie case of a unilateral change in employee job duties where misclassification affected only two employees in separate departments with no common supervision or policy. Charging party did not establish that two apparently separate breaches of its memorandum of understanding had a generalized effect and continuing impact on terms and conditions of employment where the City denied a grievance on procedural grounds and did not argue that it was authorized by statute, contract or other legal authority to assign duties in contravention of established classifications and memorandum of understanding.

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

Charging party failed to prove its prima facie case of a unilateral change in employee job duties where misclassification affected only two employees in separate departments with no common supervision or policy. Charging party did not establish that two apparently separate breaches of its memorandum of understanding had a generalized effect and continuing impact on terms and conditions of employment where the City denied a grievance on procedural grounds and did not argue that it was authorized by statute, contract or other legal authority to assign duties in contravention of established classifications and memorandum of understanding.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

Charging party failed to prove its prima facie case of a unilateral change in employee job duties where misclassification affected only two employees in separate departments with no common supervision or policy. Charging party did not establish that two apparently separate breaches of its memorandum of understanding had a generalized effect and continuing impact on terms and conditions of employment where the City denied a grievance on procedural grounds and did not argue that it was authorized by statute, contract or other legal authority to assign duties in contravention of established classifications and memorandum of understanding.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

Pursuant to PERB’s statutory and regulatory authority, a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties.” Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.04000 – Amendments

Pursuant to PERB’s statutory and regulatory authority, a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties.” Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.

1104.00000 – CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ
1104.01000 – In General; Conduct of Hearing

Pursuant to PERB’s statutory and regulatory authority, a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties.” Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

Pursuant to PERB’s statutory and regulatory authority, a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties.” Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

Pursuant to PERB Regulation 32640, subdivision (a), a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties,” which includes the authority of a hearing officer to amend a complaint on his or her own motion where the amendment is necessary to conform to the evidence and issues presented at hearing. Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

Pursuant to PERB Regulation 32640, subdivision (a), a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties,” which includes the authority of a hearing officer to amend a complaint on his or her own motion where the amendment is necessary to conform to the evidence and issues presented at hearing. Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M.