Decision 2546S – State of California (Department of Forestry and Fire Protection)
SA-CE-2042-S
Decision Date: January 29, 2018
Decision Type: PERB Decision
Description: An administrative law judge dismissed a complaint alleging a unilateral change to a policy of giving pre-disciplinary hearing officers the authority to amend, modify, or revoke a proposed disciplinary action. The charging party filed exceptions.
Disposition: The Board affirmed the proposed decision. It agreed with the ALJ that the charging party failed to prove that the employer’s established policy was to allow the hearing officer to amend, modify, or revoke the proposed action.
Perc Vol: 42
Perc Index: 100
Decision Headnotes
602.03000 – Change In Policy
An established policy may be embodied in the terms of the parties’ MOU or collective bargaining agreement. Although PERB lacks authority to enforce contracts, it may interpret contracts when necessary to resolve an alleged unfair practice. In doing so, the Board applies traditional rules of contract interpretation.
602.03000 – Change In Policy
The mere fact that an employer has chosen not to enforce its contractual rights does not mean it is forever precluded from doing so. Where an employer has discretion under a contract provision, it does not forfeit that discretion by failing to exercise it.
602.06000 – Change in Past Practice
The mere fact that an employer has chosen not to enforce its contractual rights does not mean it is forever precluded from doing so. Where an employer has discretion under a contract provision, it does not forfeit that discretion by failing to exercise it.
1105.10000 – Parole Evidence/Bargaining History
Where contract language is ambiguous, Board will examine extrinsic evidence, including bargaining history and past practice.
1404.03000 – General Principles of Contract Interpretation
Applying traditional rules of contract interpretation, the Board first determines whether the language is clear and unambiguous. If it is not, the Board will examine extrinsic evidence of the language’s meaning, including bargaining history and past practice.
1404.03000 – General Principles of Contract Interpretation
Board found it significant that exclusive representative did not update its own publication regarding the disciplinary process to publicize its belief that new contract language secured a new right in the disciplinary process.