Decision 2772M – County of Sonoma * * * VACATED IN PART by County of Sonoma (2023) PERB Decision No. 2772a-M * * *

“[T]he MMBA’s duty to bargain extends to the implementation and effects of a decision that has a foreseeable effect on matters within the scope of representation, even where the decision itself is not negotiable.” A failure or refusal to bargain over the effects of a non-negotiable change is equally as harmful as a failure to bargain over a negotiable change, as it disrupts and destabilizes employer-employee relations by creating an imbalance in the power between management and employee organizations. While the County was entitled to unilaterally decide to make changes to body worn camera policies and to permit the police review agency to interview an investigator, supervisor, witness, or custodian of records, the refusal to bargain over the effects of those decisions is a per se violation of the duty to bargain. (pp. 44-46.)

Effects bargaining contemplates that negotiations may ultimately cause the employer to change its mind about the non-negotiable decision in some way. Because the Associations’ ability to propose alternatives to the County Board of Supervisors’ decision vanished as soon as it placed the ballot measure on the ballot, the County violated the statutory duty to meet and confer. (p. 54.)

A unilateral change to a matter within the scope of representation is a per se violation of the duty to meet and confer in good faith. To establish a prima facie unilateral change violation, the charging party must prove that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms and conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and negotiating in good faith at the union’s request, until the parties reached an agreement or a lawful impasse. (pp. 26-27.)

County Board of Supervisors (BOS) gave affected employee organizations no notice that it would vote to place a ballot measure on the November 2020 ballot; Associations first learned of the County Board of Supervisors’ potential vote immediately before it occurred. Placement of a ballot measure on the ballot on the last day to do so deprived the Associations of their statutory right to meet and confer prior to the BOS arriving at a determination of policy or course of action on the amendments within the scope of representation, as the measure could not be amended prior to the election or after the ballot measure passed. (p. 49.)

A ballot measure giving a police review agency authority to independently investigate County peace officer misconduct constituted a change in policy where the police review agency previously had no authority to conduct independent investigations. The ballot measure also changed: (1) investigation and disciplinary procedures and standards; (2) body worn camera policies; (3) access and use of confidential documents; and (4) access to Sheriff’s Office witnesses for an investigatory interview. (pp. 28-33.)

A public agency may be privileged to place a measure on the ballot prior to completing negotiations when it is “faced with an imminent need to act prior to the statutory deadline for submitting the [measure] for the ballot.” But the statutory deadline itself is not such an “imminent need.” No evidence in the record established an “imminent need” for the County to have called a special election to place the ballot measure on the November 2020 ballot. As a result, the County’s obligation to meet and confer over the measure’s negotiable amendments before placing it on the ballot was not excused. (pp. 51-52.)

“[U]nder exceptionally limited circumstances, an employer may be excused from negotiating on the basis of true emergency that provides a basis for claiming that a business necessity excused a unilateral change.” To establish this emergency exception, the employer must make a specific and actual showing of an emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. The alleged necessity must be the unavoidable result of a sudden change in circumstance beyond the employer’s control. Emergency is not synonymous with expediency, convenience, or best interests. The County failed prove that it had no alternative to placing the ballot measure on the November 2020 ballot and the expediency, convenience, or best interests served by placing the ballot measure on the November 2020 ballot did not amount to an emergency that excused the County from its obligation under the MMBA to provide the Associations notice and an opportunity to bargain before doing so. (pp. 49-52.)

A public agency may be privileged to place a measure on the ballot prior to completing negotiations when it is “faced with an imminent need to act prior to the statutory deadline for submitting the [measure] for the ballot.” But the statutory deadline itself is not such an “imminent need.” No evidence in the record established an “imminent need” for the County to have called a special election to place the ballot measure on the November 2020 ballot. As a result, the County’s obligation to meet and confer over the measure’s negotiable amendments was not excused. (pp. 51-52.)

There are three distinct categories of managerial decisions, each with its own implications for the scope of representation. Regarding the third category, decisions that affect employment conditions but are not concerned primarily with employment, the Board must balance the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. Aspects of a ballot measure that directly affect employment (e.g., investigating and disciplining employees) tend to fall on the negotiable side, unlike measures that relate primarily to public safety. Thus, decision bargaining is required for those amendments. (pp. 36-44.)

The Board’s holding in County of Orange (2019) PERB Decision No. 2657-M, that some management decisions “expanding law enforcement oversight” are outside the scope of representation, cannot exclude all decisions related to law enforcement oversight. Applying the balancing test, the Board concluded that only the ballot measure amendments on investigating employees and recommending discipline are within the scope of representation. (pp. 43-44.)

“[T]he MMBA’s duty to bargain extends to the implementation and effects of a decision that has a foreseeable effect on matters within the scope of representation, even where the decision itself is not negotiable.” A failure or refusal to bargain over the effects of a non-negotiable change is equally as harmful as a failure to bargain over a negotiable change, as it disrupts and destabilizes employer-employee relations by creating an imbalance in the power between management and employee organizations. While the County was entitled to unilaterally decide to make changes to body worn camera policies and to permit the police review agency to interview an investigator, supervisor, witness, or custodian of records, the refusal to bargain over the effects of those decisions is a per se violation of the duty to bargain. (pp. 44-46.)

There are three distinct categories of managerial decisions, each with its own implications for the scope of representation. Regarding the third category, decisions that affect employment conditions but are not concerned primarily with employment, the Board must balance the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. Aspects of a ballot measure that directly affect employment (e.g., investigating and disciplining employees) tend to fall on the negotiable side, unlike measures that relate primarily to public safety. Thus, decision bargaining is required for those amendments. (pp. 36-44.)

The ballot measure’s creation of a parallel investigative scheme for peace officers was subject to decision bargaining because it related to investigation and discipline of employees. Other amendments in the measure were not subject to decision bargaining but were subject to effects bargaining because they impacted subjects within the scope of representation such as wages and safety. (pp. 39-40)

The Board held that the ballot measure impacts disciplinary procedures by expanding the types of evidence the County could use as a basis for discipline. The ballot measure permits the police review agency to use complaints that are exonerated, unfounded, or not sustained as a basis for recommending discipline. The County Sheriff’s Office’s investigation thus could find that a peace officer is exonerated or that a complaint was unfounded, while the police review agency could find otherwise, creating a conflict in whether or not discipline should be imposed. Similarly, the ballot measure amendments granting the police review agency authority to subpoena records or testimony in investigations and review an officer’s discipline record, including all prior complaints, also could expand the evidence the County uses as a basis for discipline. For example, the police review agency now has the ability to review whether and why officers are on a Brady list, which could impact the police review agency’s discipline recommendations. (pp. 41-42.)

The Board held that the ballot measure’s amendments directly affect employment by changing—or at least creating ambiguity about—disciplinary procedures and standards because it establishes a parallel investigative scheme for County peace officers. Since the police review agency’s procedures may deviate from the investigations conducted by the Sheriff’s Office, those procedures are within the scope of representation. (p. 40.)

The provision allowing the police review agency’s director to personally sit in and observe the investigative interview of a deputy subject to investigation also impacts discipline, as the director could use any information from that interview as part of the police review agency’s investigation of the same deputy (either as substantive evidence or to impeach the deputy in a later police review agency’s investigative interview). The Board does not depart from decisional law that a board of review hearing does not requiring bargaining as management must have the most unfettered right to determine who is in the room to allow it to reach an informed decision. However, because the ballot measure impacts disciplinary procedures by expanding the types of evidence the County could use as a basis for discipline, the Associations had the right to bargain over those decisions. (pp. 42-43.)

Workplace safety is subject to effects bargaining. A ballot measure gave the police review agency authority to post every body worn camera video where force was used on its website. The provision was silent about whether Sheriff’s Office policy requiring the Office to give the impacted individual advance notice and an opportunity to review the video, perform a threat assessment, provide safety detail for the affected member and their family, and provide context for the released video consistent with Sheriff’s Office practice that helps explain policy, practice, and deputy perception, would apply when the police review agency posted video. These protocols are intended to protect the safety of officers. The public disclosure of body worn camera video by the police review agency without following existing Sheriff’s Office protocols impacts workplace safety. (p. 45.)

A ballot measure authorized the county’s police review agency to have direct, unfettered access to witnesses without indicating whether Association-represented witnesses would be paid during the interview. Similarly, the requirement of the Sheriff’s Office to provide the police review agency with supervisors of an employee subject to an investigation but does not specify whether any such Association-represented supervisor will be paid during any discussion with the police review agency. These provisions accordingly were within scope and subject to effects bargaining. (p. 46.)

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, submit the record to the Board itself for a decision on the merits.

Where an ordinance was adopted without meeting and conferring with two exclusive representatives, the Board declared the negotiable provisions of the ordinance void and unenforceable, and ordered the employer to cease and desist enforcing those provisions as to those exclusive representatives, but not as to exclusive representatives that did not participate in the case.

Although PERB’s remedial authority is broad, the Board lacks the authority to overturn the results of an election in order to remedy a failure of procedure required by the MMBA. PERB can declare provisions enacted in violation of the MMBA to be void and/or unenforceable, in whole or in part. Because the ballot measure was enacted by the voters at the November 3, 2020 election, the Board could not order the County to rescind the unlawfully adopted amendments as part of restoring the status quo. Thus, the Board declared the amendments that required either decisional or effects bargaining as void and unenforceable as to any employees the charging party Associations represent. (p. 60.)

An unfair practice finding creates a presumption that employees suffered some financial loss as a result of the employer’s unlawful conduct. Consistent with the presumption, it is appropriate to give the Associations an opportunity to establish in compliance proceedings that any employees they represent suffered financial harm as a result of the application of any of the unlawfully adopted ballot measure amendments. Similarly, in compliance proceedings the Associations may present evidence that represented officers have been subject to discipline or had items placed in their personnel files as a result of the application of any of the unlawfully adopted ballot measure amendments. (p. 61.)

Where an ordinance was adopted without meeting and conferring with two exclusive representatives, the Board declared the negotiable provisions of the ordinance void and unenforceable, and ordered the employer to cease and desist enforcing those provisions as to those exclusive representatives, but not as to exclusive representatives that did not participate in the case.

Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, submit the record to the Board itself for a decision on the merits.