Decision 2820M – County of Santa Clara

To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit must prove: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (pp. 4-5.)

If an employer changes employee assignments or duties without providing the exclusive representative union with notice and an opportunity to meet and confer, outside of any contractual right it may have, there are several means by which a union can establish a unilateral change. (See Cerritos Community College District (2022) PERB Decision No. 2819, p. 30.) Where nurses’ union alleged county began assigning clinical nurses to work in central monitor room and watch multiple telemetry monitors for entire shift, the critical question was whether the County issued nurses new assignments that were not “reasonably comprehended” within their existing assignment or set of duties. “Reasonably comprehended” is an objective standard that refers to what a reasonable employee would comprehend based on all relevant circumstances, including, but not limited to, past practice, training, and job descriptions. (Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description is insufficient to overcome evidence of contrary past practice, PERB interprets job descriptions in the context of employees’ overall role].) For instance, the Board has found new duties were not reasonably comprehended within an existing assignment when they required employees to obtain additional credentialing. (Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp. 5-6.)

PERB applies the “reasonably comprehended” standard if an employer adds a job duty or issues a new assignment, and PERB may apply other means to determine materiality in other circumstances. As PERB noted in Cerritos Community College District (2022) PERB Decision No. 2819, p. 30, such other contexts include, but are not limited to, changes that impact workload or performance standards (see, e.g., County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11), or changes that transfer duties to other employees within the bargaining unit or outside the unit (see, e.g., Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4). (p. 6, fn. 4.)

Past PERB decisions have stated that if a new assignment is reasonably comprehended within employees’ existing assignments, the new assignment is not within the scope of representation. However, under the more modern formulation, the “reasonably comprehended” question is more integral to determining whether the employer changed the status quo than it is to deciding whether a specified topic is a mandatory or permissive subject of bargaining. In future unilateral change cases, PERB directed Board agents to recognize job duties and assignments as generally falling within the scope of representation and to apply the “reasonably comprehended” standard as part of determining whether an employer changed or deviated from the status quo. (pp. 6-7.)

There are three primary means of establishing that an employer changed or deviated from the status quo: (1) a deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (p. 5.)

To apply the “reasonably comprehended” standard to determine whether an employer materially changed duties or assignments, PERB compares past duties or assignments to new duties or assignments, through the eyes of a reasonable employee. (p. 8.) Because there were one or more contested, outcome-determinative facts (or mixed questions of law and fact), PERB directed the Office of the General Counsel to issue a complaint alleging that the County violated the MMBA by materially changing Clinical Nurse job assignments without providing the nurses’ union notice and an opportunity to meet and confer.

There are three primary means of establishing that an employer changed or deviated from the status quo: (1) a deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) (p. 5.)

Past PERB decisions have stated that if a new assignment is reasonably comprehended within employees’ existing assignments, the new assignment is not within the scope of representation. However, under the more modern formulation, the “reasonably comprehended” question is more integral to determining whether the employer changed the status quo than it is to deciding whether a specified topic is a mandatory or permissive subject of bargaining. In future unilateral change cases, PERB directed Board agents to recognize job duties and assignments as generally falling within the scope of representation and to apply the “reasonably comprehended” standard as part of determining whether an employer changed or deviated from the status quo. (pp. 6-7.)

PERB’s Office of the General Counsel must issue a complaint based on all legal theories for which the alleged facts state a prima facie case, even if a charging party has neglected to assert one or more colorable theories. (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision No. 2452, pp. 53-54.) (p. 2, fn. 2.)

PERB reviews the Office of the General Counsel’s (OGC) dismissal de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) At this stage of an unfair practice case, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (Ibid.) PERB does not resolve conflicting factual allegations or make conclusive factual findings. (Ibid.) Rather, PERB assumes that the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. (Ibid.) PERB therefore does not rely on the respondent’s factual statements if they explicitly or implicitly create a material factual conflict with charging party’s version of events, even if the respondent’s contentions appear better supported, or more persuasive, than the charging party’s contrary allegations. (Ibid.) PERB directs OGC to issue a complaint if it finds one or more contested, outcome-determinative facts (or mixed questions of law and fact), or if the parties’ positions reveal contested, colorable legal theories. (Id. at p. 3.) (p. 2.)