Decision 2823S – * * * JUDICIAL APPEAL PENDING * * * State of California (California Correctional Health Care Services)

SA-CE-2168-S

Decision Date: June 29, 2022

Decision Type: PERB Decision

Description: The State of California (California Correctional Health Care Services) (CCHCS) commenced two new programs to treat inmates with substance use disorder. Union of American Physicians & Dentists (UAPD) alleges that CCHCS violated the Dills Act by failing to engage in good faith bargaining over its decision and/or bargainable effects on employment terms for UAPD-represented primary care providers (PCPs). The ALJ concluded that while CCHCS had no duty to bargain over its decision to offer new programs, the Dills Act required CCHCS to bargain in good faith over the decision’s negotiable effects, and CCHCS failed to comply with this duty.

Disposition: In a partially precedential decision, the Board affirmed the ALJ’s overall conclusion that CCHCS violated the Dills Act, but adjusted certain of the ALJ’s factual findings, legal conclusions, and remedial order. In the published part of the decision, the Board held that CCHCS materially changed terms and conditions of employment. To determine if a reasonable PCP would find the changes material, the Board compared PCPs’ new duties, qualifications, and workload with the status quo. The Board determined, among other things, that CCHCS imposed new duties that were not reasonably comprehended within PCPs’ previous duties.

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Perc Vol: 47
Perc Index: 23

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Change In Policy

To determine if an employer materially changed terms and conditions of employment, PERB compares the new conditions (including duties, qualifications, and workload) with the status quo and determines if a reasonable employee would find the changes to be material. (p. 12.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

A change in policy occurs on the date the employer makes a firm decision from which it never wavers, even if the decision does not take effect immediately or never takes effect. (City of Milpitas (2015) PERB Decision No. 2443-M, p. 15.) (p. 13.)

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

To determine if an employer materially changed terms and conditions of employment, PERB compares the new conditions (including duties, qualifications, and workload) with the status quo and determines if a reasonable employee would find the changes to be material. Past practice is relevant in determining whether reasonable primary care physicians (PCP) who work in state prisons would view their employer’s new requirements as materially changing their qualifications, duties, and/or workload. PCPs’ job descriptions had limited utility given that they do not attempt to detail which medical conditions PCPs must treat on their own versus which conditions they may refer to specialists in whole or in part. (pp. 12-20.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02069 – Job Assignment

A charging party can establish that new job duties materially deviated from the status quo by showing that new duties or assignments are not “reasonably comprehended” within employees’ prior duties or assignments. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) “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. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description does not overcome 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. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 6, citing Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp. 10-20.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02071 – Job Duties

A charging party can establish that new job duties materially deviated from the status quo by showing that new duties or assignments are not “reasonably comprehended” within employees’ prior duties or assignments. (Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) “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. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6, citing Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description does not overcome 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. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 6, citing Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02070 – Job Descriptions

An employer must bargain before materially changing a job qualification unless the change merely complies with an externally imposed change in law. (County of Sacramento (2020) PERB Decision No. 2745-M, p. 17.) While a newly-required qualification is subject to bargaining if it is material and not required by an external change in law, it also may constitute evidence that the employer has materially changed duties. In other words, if an employer requires a new qualification while altering duties, the new qualification tends to show that the new duties were not reasonably comprehended within existing duties. (County of Santa Clara (2022) PERB Decision No. 2820-M, p. 6; Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp.11-12.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02071 – Job Duties

Davis Joint Unified School District (1984) PERB Decision No. 393 (Davis) does not establish a broad management right to change job duties. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 31 [Davis cannot be broadly construed].) Management must bargain if it assigns tasks that are not reasonably understood to be among existing duties or increases “the quantity of work.” (Davis, supra, PERB Decision No. 393, p. 26 & fn. 11.) (p. 19.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

An employer must bargain if it materially alters employees’ workload. (County of Santa Clara (2022) PERB Decision No. 2820-M, pp. 5-6 & fn. 4; Cerritos Community College District (2022) PERB Decision No. 2819, p. 30; County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11.) A change in workload may be found even when the nature of duties assigned does not materially change—for instance, if an employer assigns fewer employees to perform a steady amount of work. (See, e.g., Fullerton Union High School District (1978) PERB Decision No. 53, pp. 7-8.) The converse can also be true: an employer can impose materially new duties without increasing overall workload, as alleged in County of Santa Clara, supra, PERB Decision No. 2820-M. However, these two types of material changes often occur in concert with one another and establishing one can aid in proving the other. For instance, if new duties increase employee workload, that tends to show that the new duties may not have been reasonably comprehended within existing duties. Physicians who work in state prisons were reasonable in understanding that California Correctional Health Care Service expected them to provide patients experiencing substance use disorder with materially new services beyond prescribing medication, including behavioral modification. (pp. 11-20.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

Davis Joint Unified School District (1984) PERB Decision No. 393 (Davis) does not establish a broad management right to change job duties. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 31 [Davis cannot be broadly construed].) Management must bargain if it assigns tasks that are not reasonably understood to be among existing duties or increases “the quantity of work.” (Davis, supra, PERB Decision No. 393, p. 26 & fn. 11.) (pp. 11-20.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Pursuant to PERB Regulation 32300, subdivision (e), the Board considers issues not raised in exceptions only where there is good cause to do so. (p. 10, fn. 9.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

To the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, PERB defers to such assessments unless the record warrants overturning them. (Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.) (p. 9.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.18000 – Review of Findings Not Excepted To

Pursuant to PERB Regulation 32300, subdivision (e), the Board considers issues not raised in exceptions only where there is good cause to do so. (p. 10, fn. 9.)