Decision 2573M – County of Riverside

LA-CE-702-M

Decision Date: June 25, 2018

Decision Type: PERB Decision

Description: An administrative law (ALJ) judge found that the employer committed unfair practices by: (1) unilaterally changing a past practice of paying employees the shift differentials they would have earned if they had not been released for union activities; and (2) failed to provide released time for collective bargaining without loss of compensation.  The employer filed exceptions to these findings.  The charging party filed an exception to the ALJ’s refusal to find an additional violation.

Disposition: The Board affirmed and adopted the proposed decision.  It rejected the employer’s arguments that there was no past practice and that the Board should overturn a prior decision regarding the statutory right to released time.  It also rejected the union’s exception, concluding that the allegation it sought to litigate was untimely.

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Perc Vol: 43
Perc Index: 17

Decision Headnotes

103.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; CONSTITUTIONALITY OF EERA, DILLS, HEERA
103.01000 – In General

As gifts of public funds are prohibited by the California Constitution, employer’s argument that the Board’s interpretation of a statute would result in a gift of public funds was considered to avoid a constitutional conflict. No gift of public funds would result because the Board’s interpretation served an indisputably public purpose.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.11000 – Request for Oral Argument

The Board denies requests for oral argument when an adequate record has been prepared, the parties had ample opportunity to present briefs and have availed themselves of that opportunity, and the issues before the Board are sufficiently clear as to make oral argument unnecessary.

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

When the unalleged violation arises from the same facts as the allegations in the complaint, the unalleged violation is timely if the complaint allegations are timely. When the unalleged violation is a matter that was alleged in the unfair practice charge but omitted from the complaint, the unalleged violation is timely if the charge was timely filed.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

Equitable tolling only applies for the period of time while the matter was pending in advisory arbitration.

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

When an unalleged violation arises from the same facts as the allegations in the complaint, the unalleged violation is timely if the complaint allegations are timely. When the unalleged violation is a matter that was alleged in the unfair practice charge but omitted from the complaint, the unalleged violation is timely if the charge was timely filed.

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

Past practices created by mistake may still be binding.

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

When there is no evidence that the employer’s representatives had knowledge of a past practice, the Board does not find it to be binding. However, when the employer possesses the necessary facts, the Board may find a past practice even if no single official was personally aware of the numerous instances making up the past practice.

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

Just as a single instance is not sufficient to create a past practice, a single instance in which the practice was not followed is not sufficient to defeat the past practice.

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

A practice need not be universal to constitute a term or condition of employment, as long as it is regular and longstanding.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.10000 – Released Time

MMBA section 3505.3 entitles employees to the same compensation they would have otherwise earned if they had not been released for bargaining.

1109.00000 – CASE PROCESSING PROCEDURES; ISSUES ON APPEAL
1109.02000 – Statute of Limitations

When an unalleged violation arises from the same facts as the allegations in the complaint, the unalleged violation is timely if the complaint allegations are timely. When the unalleged violation is a matter that was alleged in the unfair practice charge but omitted from the complaint, the unalleged violation is timely if the charge was timely filed.