Decision 2615M – County of Kern
LA-CE-992-M
Decision Date: December 21, 2018
Decision Type: PERB Decision
Description: County excepted to a proposed decision finding that it unilaterally altered employees’ terms and conditions of employment without giving Union notice and an opportunity to meet and confer, in violation of the Meyers-Milias-Brown Act (MMBA) sections 3503, 3505, and 3506.5, subdivisions (a), (b), and (c), and PERB Regulation 32603, subdivisions (a), (b), and (c).
Disposition: The Board affirmed the ALJ’s proposed decision but modified the ALJ’s remedies to better effectuate the purposes of the MMBA.
Perc Vol: 43
Perc Index: 109
Decision Headnotes
602.01000 – In General
A change in policy generally falls into one of three categories: (1) changes to the parties’ written agreements; (2) changes in established past practices; or (3) newly created policies, or application or enforcement of an existing policy in a new way. (p. 5.)
602.02000 – Prior Notice and Opportunity to Bargain
When an employer finalizes its decision to change a policy before providing the union with notice and an opportunity to bargain, a union is not obligated to request bargaining, nor to accept any employer offer to meet and confer that is made after the employer has already reached a firm decision. (p. 11.) Employer offer to meet and confer inadequate if employer did not restore the status quo, which is a necessary condition for meaningful bargaining to occur. (City of San Ramon, supra, PERB Decision No. 2571-M, p. 15 [good faith bargaining is not possible when employer has already “imposed the very terms under discussion, thereby forcing [the union] to start from a position of having to talk the [employer] back to the status quo.”].)
602.06000 – Change in Past Practice
The “dynamic status quo” principle permits an employer to make changes to terms and conditions of employment, without notice and an opportunity to bargain, if the changes follow a consistent pattern of past changes that is formulaic or otherwise not influenced by employer discretion. (p. 6.) When the status quo as to a particular employment term follows a nondiscretionary pattern of change, the employer must act in accordance with that pattern of change, and in fact commits a unilateral change if it fails to do so. (p. 7.) The parties’ rights and duties are the same regardless of whether the status quo is dynamic or static; in both instances, following or maintaining the status quo provides a defense to a unilateral change charge, but failure to follow or maintain the status quo establishes a violation, absent notice and an opportunity to bargain. (pp. 7-8.)
608.05000 – Past Practice; Maintenance of Status Quo
The “dynamic status quo” principle permits an employer to make changes to terms and conditions of employment, without notice and an opportunity to bargain, if the changes follow a consistent pattern of past changes that is formulaic or otherwise not influenced by employer discretion. (p. 6.) When the status quo as to a particular employment term follows a nondiscretionary pattern of change, the employer must act in accordance with that pattern of change, and in fact commits a unilateral change if it fails to do so. (p. 7.) The parties’ rights and duties are the same regardless of whether the status quo is dynamic or static; in both instances, following or maintaining the status quo provides a defense to a unilateral change charge, but failure to follow or maintain the status quo establishes a violation, absent notice and an opportunity to bargain. (pp. 7-8.)
1000.02045 – Evaluations
Performance targets and performance evaluation scoring rubrics relate to employee performance standards and workload and are therefore within the scope of representation. (pp. 9-10.)
1000.02071 – Job Duties
Performance targets and performance evaluation scoring rubrics relate to employee performance standards and workload and are therefore within the scope of representation. (pp. 9-10.)
1000.02159 – Workloads
Performance targets and performance evaluation scoring rubrics relate to employee performance standards and workload and are therefore within the scope of representation. (pp. 9-10.)
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To establish waiver, an employer must prove that the union consciously abandoned its right to bargain. (p. 10.) A union does not waive its right to bargain where the employer has already finalized policy changes without providing the union an opportunity to meet and confer to impasse or agreement. (p. 11.)
1402.02000 – Union’s Waiver of Employee or Organizational Rights
To establish waiver of a right to bargain, an employer must prove that the union consciously abandoned its right to do so. (p. 10.) A union does not waive its right to bargain where the employer has already finalized policy changes without providing the union an opportunity to meet and confer to impasse or agreement. (p. 11.) Employer offer to meet and confer inadequate if employer did not restore the status quo, which is a necessary condition for meaningful bargaining to occur. (City of San Ramon, supra, PERB Decision No. 2571-M, p. 15 [good faith bargaining is not possible when employer has already “imposed the very terms under discussion, thereby forcing [the union] to start from a position of having to talk the [employer] back to the status quo.”].)
1200.01000 – In General
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1200.02000 – Cessation of Unfair Practices; Mootness; Isolated Practices
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1201.01000 – In General
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1201.02000 – Reinstatement
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1203.01000 – In General
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1205.07000 – Restoration of Status Quo
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)
1202.02000 – Agreement Between. the Parties
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.)