Decision 2847M – Kern County Hospital Authority

To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (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. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.) (p. 10.)

There are three primary means of proving that an employer changed or deviated from the status quo. Specifically, a charging party satisfies this element by showing any of the following: (1) 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.) Hospital Authority announced a new policy where there was none before—or applied or enforced existing policy in a new way—by declaring that the parties’ MOU bars group or class grievances and grants the Authority unilateral authority to refuse to consolidate grievances. (p. 11.) The Board rejected the Authority’s argument that the MOU implicitly disallows group and class grievances by defining a grievance as a “complaint by an employee” and using other similar singular phrasing. Omnitrans (2009) PERB Decision No. 2010-M and related cases hold that only clear and unambiguous MOU language can bar a union from pursuing collective relief through a grievance, and an MOU does not satisfy that standard where it merely defines the grievant as a singular “employee” and does not explicitly exclude group and class grievances. (Id., adopting proposed decision at p. 5; Chula Vista City School District (1990) PERB Decision No. 834, p. 22.) (p. 12.) The Authority’s claim that the parties’ MOU granted it the right to reject group, class, or consolidated grievances on purely procedural grounds, materially altered the status quo in a manner that could affect future cases. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 8-9 [employer engaged in unilateral change by refusing to allow arbitrator to decide arbitrability dispute].) (pp. 12-13.)

When considering the meaning of ambiguous contract language—including if a respondent asserts an MOU-based defense—PERB considers past practice as one interpretive tool even absent a practice that is “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) (p. 13, fn. 4.)

When considering the meaning of ambiguous contract language—including if a respondent asserts an MOU-based defense—PERB considers past practice as one interpretive tool even absent a practice that is “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) (p. 13, fn. 4.)

Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.)

Following Omnitrans (2009) PERB Decision No. 2010-M, PERB held that a grievance procedure which repeatedly referred to the grievant as “the employee” did not waive the union’s statutory right to seek collective relief. (pp. 15-16.)

In Omnitrans (2010) PERB Decision No. 2143-M, the employer refused to process a grievance filed by the union’s president alleging violations of several MOU articles, claiming among other things that the grievance procedure did not allow the union to file grievances in its own name and that the union president lacked standing to file a grievance because he was not himself an “employee” as defined by the MOU. (Id. at p. 7.) PERB found no clear and unmistakable waiver and therefore concluded that the employer unlawfully changed the status quo by refusing to process the union’s grievance. (Id. at pp. 7-8.) (p. 16, fn. 7.)

To prove waiver by inaction, it is necessary to prove “conscious abandonment” of the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 [internal quotation marks omitted].) (p. 17.)

Chula Vista City School District (1990) PERB Decision No. 834 held that EERA grants an exclusive representative the right to file grievances in its own name. The Board based this holding on EERA section 3543.1, subdivision (a), which states in relevant part: “Employee organizations shall have the right to represent their members in their employment relations with public school employers.” Critically, Chula Vista noted that this statutory right is based on the fundamental principle that employees have the right to act collectively through their union. (Id. at p. 22.) The MMBA mirrors EERA in providing unions with a “right to represent”: “Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies.” (MMBA, § 3503.) In Omnitrans (2009) PERB Decision No. 2010-M, the Board found that the MMBA, like EERA, provides an exclusive representative with a statutory right to file union grievances seeking relief on a collective basis. (Id., adopting proposed decision at p. 5.) Any waiver of this union right must be clear and unmistakable. (Ibid.) (p. 15.)

Absent a recognized exception, PERB cannot issue a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) Before a complaint issues, a charging party bears the burden to allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3, 30.) After a complaint issues, a respondent bears the burdens of pleading untimeliness as an affirmative defense in its answer, and then proving that the statute of limitations bars the charge. (Id. at p. 30.) (pp. 7-8.)

An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.)

The limitations period begins to run on the date the charging party knew, or should have known, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) The limitations period for a unilateral change allegation begins to run when the charging party has actual or constructive notice of the respondent’s clear intent to implement the change in policy, provided there is no conduct after that date evincing a wavering of such intent. (Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 16.)
(p. 8.)

An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.)

The ALJ issued a standard order requiring the employer to physically post and electronically distribute a notice to ensure that all affected employees learn the outcome of this matter. (City of Sacramento (2013) PERB Decision No. 2351-M, pp. 44 [adding electronic distribution to PERB’s standard notice posting remedy].) The Board denied union’s request to order broader notice posting and distribution, as record did not prove that employer announced a new policy or policy interpretation with respect to any employees outside the bargaining units represented by the union. (Cf. City and County of San Francisco (2017) PERB Decision No. 2536-M [Board required posting and distribution in a manner calculated to reach all employer’s employees where employer maintained an unreasonable rule affecting all of its employees, not just those represented by the charging party union].) (pp. 18-19.)

An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.)

Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.)

Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.)