Decision 2740M – County of Merced

SA-CE-1020-M

Decision Date: August 10, 2020

Decision Type: PERB Decision

Description: The County of Merced excepted to a decision of an administrative law judge finding that the County changed its mandatory overtime policy for correctional officers without providing the employees’ union, Teamsters Local 856, advance notice and an opportunity to meet and confer over the decision and/or the negotiable effects thereof.  The County timely filed exceptions.

 

Disposition: The Board affirmed and adopted the proposed decision as the decision of the Board itself, while supplementing the proposed decision in several respects. The Board found that the Union established a change in policy three separate ways—a change in past practice, a new means of applying and enforcing an existing policy, and creation of a new policy. The With respect to the County’s contractual waiver defense, the Board clarified that it is the employer’s burden to establish waiver by clear and unambiguous contract language as an affirmative defense, rather than the union’s burden to establish that the contract language was not clear and unambiguous. In this case, the Board found the MOU was ambiguous.  Moreover, the Union did not waive its right to bargain where the County came to a firm decision before providing the Union notice of a proposed change. Further, the County failed to complete negotiations to impasse or agreement.

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

A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (City of San Diego (2015) PERB Decision No. 2464-M, p. 51.) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

The County did not establish that Union waived its right to bargain for two independent reasons. First, the County came to a firm decision before providing the Union notice of the proposed change and an opportunity to bargain to agreement or impasse; accordingly, the Union was not obligated to request bargaining, or to accept the County’s offer to meet and confer after the employer has already reached a firm decision. Second, a waiver of bargaining rights must be clear and unmistakable, demonstrating that a party intentionally relinquished its right to bargain. (Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 39 (LAUSD).) Any doubts must be resolved against the party asserting waiver. (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) In this case, the Union did not clearly and unmistakably demonstrate that it intentionally relinquished its right to bargain.

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

A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (City of San Diego (2015) PERB Decision No. 2464-M, p. 51.) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.)

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

County was not privileged to ignore the Union’s request to meet again, as good faith negotiations must normally occur face-to-face unless both parties mutually agree otherwise. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 9, and adopting proposed decision at pp. 37-38 & 42; City of Selma (2014) PERB Decision No. 2380-M, pp. 14 & 23, and adopting proposed decision at p. 10; Modesto City Schools (1983) PERB Decision No. 291, p. 35.) PERB noted the parties in this matter negotiated well before the COVID-19 pandemic, and the Board did not consider what standards might apply in such unusual circumstances.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

County acted in bad faith by refusing to meet, despite the Union’s request, apparently based on an incorrect belief that it was sufficient to deliver an ultimatum by e-mail and not even wait for a response to that ultimatum before announcing its new policy.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

The parties’ past practice under the contract before the dispute arose is important evidence of their intent. Past practice can be used to establish the status quo from which PERB assesses an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous MOU language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted,” but in the latter instance it need not be as definitive. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 22.) The parties’ past practice met the higher standard, as it was “regular and consistent,” as well as “historic and accepted.” Thus, the Union has established a change in past practice, though even if it could not meet that standard, there would still be no question that the County adopted a new policy setting forth detailed changed parameters for assigning mandatory overtime, and applied and enforced its mandatory overtime policy in a new way. Because the Board found that the parties’ past practice met the higher standard of being “regular and consistent” or “historic and accepted,” a fortiori, it was more than strong enough to be a relevant factor in interpreting the MOU for purposes of resolving the County’s MOU-based defense.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

representation if it can establish as an affirmative defense that an MOU clearly and unambiguously shows the Union waived its right to negotiate over changes to an employment term. (City of Culver City (2020) PERB Decision No. 2731-M, pp. 14-20; Moreno Valley Unified School District (1995) PERB Decision No. 1106, adopting proposed decision at p. 9; Los Angeles Unified School District (1984) PERB Decision No. 407, p. 5; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 2; Grossmont Union High School District (1983) PERB Decision No. 313, p. 4.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) Thus, the County must show that the language is clear and unambiguous as part of its affirmative defense, rather than the Union bearing a burden to show that the language at issue is not clear and unambiguous. The County’s contract defense failed because the MOU was at least ambiguous.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

The County did not establish that Union waived its right to bargain for two independent reasons. First, the County came to a firm decision before providing the Union notice of the proposed change and an opportunity to bargain to agreement or impasse; accordingly, the Union was not obligated to request bargaining, or to accept the County’s offer to meet and confer after the employer has already reached a firm decision. Second, a waiver of bargaining rights must be clear and unmistakable, demonstrating that a party intentionally relinquished its right to bargain. (Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 39 (LAUSD).) Any doubts must be resolved against the party asserting waiver. (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) In this case, the Union did not clearly and unmistakably demonstrate that it intentionally relinquished its right to bargain.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.01000 – In General

A bona fide impasse exists if the parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices. The party asserting impasse bears the burden of proving it, and therefore bears the risk of declaring impasse prematurely when parties were not objectively at impasse at the time. (City of Glendale (2020) PERB Decision No. 2694-M, p. 61; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (Glendale, supra, PERB Decision No. 2694-M, pp. 60-61.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Ibid.) However, both parties must believe they are at the “end of their rope,” which is typically negated if one party displays continuing movement, or if the other party references a deadline for completion of negotiations and acts in accordance with that deadline. (Ibid.)

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.02000 – Declaration/Determination of Impasse

A bona fide impasse exists if the parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices. The party asserting impasse bears the burden of proving it, and therefore bears the risk of declaring impasse prematurely when parties were not objectively at impasse at the time. (City of Glendale (2020) PERB Decision No. 2694-M, p. 61; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (Glendale, supra, PERB Decision No. 2694-M, pp. 60-61.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Ibid.) However, both parties must believe they are at the “end of their rope,” which is typically negated if one party displays continuing movement, or if the other party references a deadline for completion of negotiations and acts in accordance with that deadline. (Ibid.)

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.02000 – Declaration/Determination of Impasse

When there is any doubt as to whether an impasse exists, the party asserting impasse should clarify. (City of Salinas (2018) PERB Order No. Ad-457-M, p. 5.) MMBA section 3505.4 and PERB Regulation 32802, subdivision (a)(2), refer to a written declaration of impasse as the trigger for a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it may become difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it may be difficult for such an employer to assert that it has exhausted its bargaining obligation. The Board did not address in this decision whether there are instances in which a party may rely on an oral declaration of impasse, particularly for purposes other than triggering a union’s deadline to request factfinding under the MMBA.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.05000 – Post-Impasse

An employer’s right to impose terms is dependent on prior good faith negotiations from their inception through exhaustion of statutory or other applicable impasse resolution procedures. (City of Glendale (2020) PERB Decision No. 2694-M, p. 60; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 54.) Prior or contemporaneous unfair practices may interfere with the bargaining process and invalidate any impasse. (Glendale, supra, PERB Decision No. 2694-M, pp. 68-70; Fresno, supra, PERB Decision No. 2418-M, pp. 54-55.) Accordingly, as part of its required showing of a bona fide, good faith impasse, the employer must demonstrate that unfair practices did not infringe on good faith bargaining or otherwise contribute to the parties’ deadlock. (Glendale, supra, PERB Decision No. 2694-M, pp. 68-70; Fresno, supra, PERB Decision No. 2418-M, pp. 54-55.) Because the County failed to rescind its new policy before bargaining with the Union, the County improperly forced the Union to bargain from a disadvantage and made impossible the good faith give-and-take that is the essence of labor relations. Longstanding precedent required that, in order to permit good faith bargaining to occur, the County needed to restore the status quo

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.07000 – Administrative and Judicial Notice

In ruling on requests to take “administrative” or “official” notice, PERB follows the California Evidence Code provisions regarding judicial notice. (Santa Clara County Superior Court (2014) PERB Decision No. 2394-C, p. 16.) After the close of evidence, the Board granted the County’s request to take administrative notice of a County Board of Supervisors resolution imposing its last, best, and final offer (LBFO) as an official act of a subdivision of the state. However, taking such notice provided evidence only that the County imposed its LBFO in June 2019. Administrative notice does not necessarily extend to all the hearsay facts, legal conclusions, and mixed conclusions of fact and law recited in the resolution, such as its recitations that the parties’ reopener negotiations had ended in impasse after factfinding. (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090 [“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”]) That principle was particularly paramount where the Union disputed that the parties had reached a bona fide impasse. If the County wished to establish that the parties reached a bona fide, good faith impasse, it needed either to ask the ALJ to hold open the record, or to ask the ALJ or the Board to reopen the record, so that it could introduce competent factual evidence.