Decision 2846M – City and County of San Francisco

SF-CE-1884-M

Decision Date: November 17, 2022

Decision Type: PERB Decision

Description:  Service Employees International Union Local 1021 (SEIU) appealed a partial dismissal of its unfair practice charge by PERB’s Office of the General Counsel (OGC), which alleged that the City and County of San Francisco (City) violated the Meyers-Milias-Brown Act (MMBA), the Prohibition on Public Employers Deterring or Discouraging Union Membership, and PERB Regulations by adopting a policy requiring employees to be vaccinated against COVID-19 and implementing various measures to enforce the policy. OGC dismissed the allegations that the City violated the MMBA and PERB Regulations by: (1) unilaterally deciding to adopt the mandatory COVID-19 vaccination policy; (2) requiring employees to disclose their vaccination status; and (3) refusing to allow employees to submit SEIU-created vaccination ascertainment forms in lieu of the City’s form. SEIU appealed the partial dismissal, arguing that: (1) OGC erred in analyzing the decisional bargaining allegation regarding the mandatory COVID-19 vaccination policy; (2) the allegation that the City required employees to disclose their vaccination status adequately stated a prima facie case of both unilateral change and direct dealing violations; and (3) the allegation that the City required employees to use a City-generated self-certification form instead of an alternate form SEIU created stated a prima facie case of interference with MMBA-protected rights.

Disposition:  The Board affirmed the dismissal of the direct dealing allegation, but reversed the dismissal of the remaining allegations and remanded the matter to OGC to issue an amended complaint consistent with the decision.

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Decision Headnotes

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.12000 – Concurrent or Derivative Violations

While employees’ use of a vaccination ascertainment form created by their union may qualify as MMBA-protected activity, the union’s appeal stated that the outcome of its interference claim turns on whether the employer took unilateral action on a matter within the scope of representation. The Board therefore found it amounts to a derivative interference claim. (p. 25.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

In resolving an appeal of a dismissal, the Board reviews OGC’s decision de novo, applying the same legal standard OGC applied to the allegations in the charge. At this stage of litigation, “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.” PERB assumes the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. Thus, at this stage of the case PERB does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. Rather, if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. (pp. 8-9.)

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

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. 9-10.)

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

In determining whether an employer’s decision is within the scope of representation under MMBA section 3504, PERB first determines which of the three categories of managerial decisions identified in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259 the decision falls into: (1) “decisions that ‘have only an indirect and attenuated impact on the employment relationship’ and thus are not mandatory subjects of bargaining,” such as advertising, product design, and financing; (2) “decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls,” which are “always mandatory subjects of bargaining”; and (3) “decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve ‘a change in the scope and direction of the enterprise’ or, in other words, the employer’s ‘retained freedom to manage its affairs unrelated to employment.’” When a decision falls into the third category, PERB first determines whether the decision has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees” that “arises from the implementation of a fundamental managerial or policy decision.” If both requirements are met, PERB determines whether “the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (pp. 14-18.)

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.04000 – Circumvention of Union; Direct Dealing With Employees

The charge did not allege that the employer approached any employees to obtain a waiver or modification of an existing policy. Nor did it allege that the employer approached employees with a proposal for a new vaccination disclosure policy without first presenting such a proposal to the union. Rather, the charge allegations show that the employer presented the new vaccination disclosure policy to employees (and to the union) as a fait accompli. Therefore, the allegations in the charge fail to establish a prima facie case of direct dealing and dismissal of this allegation is affirmed. (pp. 24-25.)

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

The Board in Regents of the University of California (2021) PERB Decision No. 2783-H (Regents) held that a mandatory influenza vaccination policy issued before a COVID-19 vaccine was available was not within the scope of representation. That decision was based on the particular facts of that case and did not hold that mandatory vaccination policies are always outside the scope of representation. Also, the mandatory vaccination policy at issue in Regents was more than a mere work rule because it applied not only to employees but to “all individuals who work, live, or study on University premises.” Further, the circumstances may have changed significantly enough since the policy change in Regents to warrant a different conclusion on the scope of representation issue. The Board held that based on the facts alleged in the charge, it cannot be said as a matter of law that the union cannot overcome Regents. Rather, these arguable legal and factual disputes weigh in favor of issuing a complaint on the decision bargaining allegation because if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. (pp. 19-21.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02163 – Work Rules

The employer’s requirement that employees disclose their vaccination status under threat of discipline changed or deviated from the status quo by creating a new policy requiring employees to reveal their vaccination status where previously there had been no such policy. (p. 23.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02074 – Job Specifications

Changes to job specifications, including qualifications, are within the scope of representation unless the changes at issue do no more than is required to comply with an externally-imposed change in the law. (p. 22.)

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

The Board affirmed in part and reversed in part the Office of the General Counsel’s partial dismissal and remanded the case to the Office of the General Counsel for issuance of an amended complaint consistent with this Decision. (p. 26.)