Decision 2876M – * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara

A new policy does not trigger decision bargaining—even though it has disciplinary consequences—if those consequences are incidental to a decision unrelated to employee or labor relations. (San Bernardino Community College District (2018) PERB Decision No. 2599 (San Bernardino).) In San Bernardino, the employer placed GPS on a security officer’s truck, with the ultimate goal to improve public services by monitoring the officer. (Id. at pp. 10-11, fn. 8.) Because it sought to accomplish its purpose by changing an employment term or condition, the employer had a decision bargaining duty. (Ibid.) In contrast, where the purpose of a change is to safeguard the public as a general matter, not mediated mainly through altering an employment practice, then only effects bargaining is required. (Ibid.; County of Sonoma (2023) PERB Decision No. 2772a-M, pp. 24-25; County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 21-22.) (pp. 26-27.)

The MMBA’s duty to bargain in good faith 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 falls outside the scope. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) Thus, even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (Ibid.) The employer violates its duty to bargain if it fails to provide adequate advance notice, and in such circumstances the union need not demand to bargain effects as a prerequisite to filing an unfair practice charge. (Id. at p. 12.) PERB uses the word “effects” as shorthand for a broad category that comprises both the effects and implementation of a decision on a nonmandatory bargaining subject. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 276; City of Glendale (2020) PERB Decision No. 2694-M, p. 54, fn. 12; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 40; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 25, fn. 16.) Negotiations over implementation typically include proposed alternatives. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 14, fn. 8; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 52; County of Santa Clara (2021) PERB Decision No. 2799-M, p. 27.) (pp. 30-31.)

In the absence of advance notice, Unions had no duty to demand negotiations over effects of County’s decision to temporarily scale back services at certain clinics, and the County cannot assert waiver as a defense. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 51; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 30.) (p. 31.)

“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 2, fn. 2.)

There are three primary means of establishing that an employer changed or deviated from the status quo. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) Specifically, a charging party satisfies this element by showing any of the following: (1) a change in or 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. (Ibid.) (p. 20.)

To “bargain” has the same meaning as to “meet and confer” or to “negotiate,” and we use the terms interchangeably. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 30, fn. 14.) (p. 20, fn. 10.)

MMBA section 3504 defines the scope of representation as including “wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” Where precedent is not already clear on whether a matter falls within the scope of representation, the Board begins by placing the matter in one of three categories, each with its own implications for the scope of representation: (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.’” (City and County of San Francisco (2022) PERB Decision No. 2846-M, pp. 15-18 (San Francisco), citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) For decisions in the third category, bargaining is required if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (Richmond Firefighters, supra, 51 Cal.4th at p. 273.) The Board applies this balancing test in two steps. First, looking at the matter from the perspective of a reasonable employee, PERB assesses whether the decision’s implementation will significantly and adversely impact wages, hours, or other terms or conditions of employment. (San Francisco, supra, PERB Decision No. 2846-M, p. 18, citing Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638; County of Sonoma (2023) PERB Decision No. 2772a-M, p. 16.) If there is a significant and adverse effect, PERB must resolve whether “the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (San Francisco, supra, PERB Decision No. 2846-M, pp. 18-19.) For many types of decisions, PERB need not “reinvent the wheel” by applying the Richmond Firefighters framework from scratch, because precedent establishes subject-specific standards that show how the framework applies to a given topic. 25 (The Accelerated Schools (2023) PERB Decision No. 2855, p. 15; San Francisco, supra, PERB Decision No. 2846-M, p. 18, fn. 15.) (pp. 23-25.)

Material changes to job assignments and duties generally fall within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) This standard includes an exception if external law leaves the employer no discretion, but if external law does not completely resolve the issue, the employer must bargain to the extent of its retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) (p. 25.)

If external law leaves an employer with no discretion, it is not within the scope of representation. But if external law does not completely resolve the issue, the employer must bargain to the extent of its retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) An external law, the California Emergency Services Act (CESA), fully resolves that County employees are Disaster Service Workers (DSWs), and accordingly, the employees’ status as DSWs is not subject to bargaining. But the CESA leaves the County with substantial discretion, and thus the CESA does not eliminate the duty to bargain. (p. 25.)

Workplace policies generally fall within the scope of representation if they materially alter employees’ disciplinary risks. (County of Sonoma (2023) PERB Decision No. 2772a-M, p. 24; Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 12; Trustees of the California State University (2003) PERB Decision No. 1507-H, adopting proposed decision at pp. 12-13; State of California (Water Resources Control Board) (1999) PERB Decision No. 1337-S, pp. 7-8.) This standard has an exception: a new policy does not trigger decision bargaining—even though it has disciplinary consequences—if those consequences are incidental to a decision unrelated to employee or labor relations. (San Bernardino Community College District (2018) PERB Decision No. 2599, pp. 8-12 (San Bernardino).) In San Bernardino, the employer placed GPS on a security officer’s truck, with the ultimate goal to improve public services by monitoring the officer. (Id. at pp. 10-11, fn. 8.) Because it sought to accomplish its purpose by changing an employment term or condition, the employer had a decision bargaining duty. (Ibid.) In contrast, where the purpose of a change is to safeguard the public as a general matter, not mediated mainly through altering an employment practice, then only effects bargaining is required. (Ibid.; County of Sonoma (2023) PERB Decision No. 2772a-M, pp. 24-25; County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 21-22.) (pp. 25-27.)

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. (State of California (California Correctional Health Care Services) (2022) PERB Decision No. 2823-S, p. 10 (CCHCS); County of Santa Clara (2022) PERB Decision No. 2820-M, p. 7; 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. (CCHCS, supra, p. 10; County of Santa Clara, supra, 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 evidence of contrary past practice, PERB interprets job descriptions in the context of employees’ overall role].) To apply the “reasonably comprehended” standard, the Board compares past duties or assignments to new duties or assignments, through the eyes of a reasonable employee. (County of Santa Clara, supra, PERB Decision No. 2820-M, p. 8.) (p. 22.)

A party cannot satisfy its duty to bargain in good faith merely by meeting and discussing a topic as it explicitly denies any duty to bargain. (City of San Ramon (2018), PERB Decision No. 2571-M, p. 15 [agreeing to meet for the sake of good labor relations does not satisfy bargaining obligation where employer denies obligation to bargain]; Rio Hondo Community College District (2013) PERB Decision No. 2313, adopting proposed decision at p. 5 [same].) (p.36.)

A party cannot satisfy its duty to bargain in good faith merely by meeting and discussing a topic as it explicitly denies any duty to bargain. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 15 [agreeing to meet for the sake of good labor relations does not satisfy bargaining obligation where employer denies obligation to bargain]; Rio Hondo Community College District (2013) PERB Decision No. 2313, adopting proposed decision at p. 5 [same].) (p.36.)

Although “time may be of the essence during a pandemic, that consideration goes to the limitations on bargaining obligations when an emergency compels an employer to act rapidly; it does not, however, turn the topic into a non-mandatory subject of bargaining.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 43.) Bargaining was practicable even in the early weeks of the COVID-19 pandemic, and the emergency did not shield the County from that duty; rather, the pandemic merely allowed the County to take certain emergency measures before bargaining was complete. (pp. 28-29.)

Because the County established that its actions were urgently needed to save lives, the County did not need to wait for impasse or agreement before acting on a mandatory subject. The fact that the emergency exception defense applies does not completely absolve the employer of its duty to afford a union with notice and the opportunity to bargain; rather, the employer must afford the union these rights “to the extent that the situation permits, although an impasse is not necessary.” (Santa Clara County Correctional Peace Officers’ Assn., Inc. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1032.) Thus, although an employer facing a true emergency can implement emergency measures before it reaches an impasse or an agreement, the employer must provide notice and opportunity to bargain to the extent practicable at all times. (Imperial, supra, PERB Decision No. 2861-M, p. 56.) (p. 33.)

The Board clarified that an employer facing a true emergency can take emergency measures without first reaching agreement or impasse, but the duty to afford notice and to bargain in good faith continues as much as is practicable, both before and after the employer implements emergency measures. (p. 34.) Because an emergency is not a static event, changes taken in good faith reliance on a necessity defense must be limited to the timeframe that the emergency requires. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, p. 56; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 45.) Thus, when the emergency lapses, the employer has a duty to honor a union’s request to rescind emergency measures the employer implemented without completing negotiations. (p. 35.)

“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 2, fn. 2.)

MMBA section 3504 defines the scope of representation as including “wages, hours, and other terms and conditions of employment, except, however, that the scope of representation shall not include consideration of the merits, necessity, or organization of any service or activity provided by law or executive order.” Where precedent is not already clear on whether a matter falls within the scope of representation, the Board begins by placing the matter in one of three categories, each with its own implications for the scope of representation: (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.’” (City and County of San Francisco (2022) PERB Decision No. 2846-M, pp. 15-18 (San Francisco), citing International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) For decisions in the third category, bargaining is required if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (Richmond Firefighters, supra, 51 Cal.4th at p. 273.) The Board applies this balancing test in two steps. First, looking at the matter from the perspective of a reasonable employee, PERB assesses whether the decision’s implementation will significantly and adversely impact wages, hours, or other terms or conditions of employment. (San Francisco, supra, PERB Decision No. 2846-M, p. 18, citing Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 638; County of Sonoma (2023) PERB Decision No. 2772a-M, p. 16.) If there is a significant and adverse effect, PERB must resolve whether “the employer’s need for unencumbered decision-making in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (San Francisco, supra, PERB Decision No. 2846-M, pp. 18-19.) For many types of decisions, PERB need not “reinvent the wheel” by applying the Richmond Firefighters framework from scratch, because precedent establishes subject-specific standards that show how the framework applies to a given topic. 25 (The Accelerated Schools (2023) PERB Decision No. 2855, p. 15; San Francisco, supra, PERB Decision No. 2846-M, p. 18, fn. 15.) (pp. 23-25.)

Material changes to job assignments and duties generally fall within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) This standard includes an exception if external law leaves the employer no discretion, but if external law does not completely resolve the issue, the employer must bargain to the extent of its retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) (p. 25.)

Material changes to job assignments and duties generally fall within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) This standard includes an exception if external law leaves the employer no discretion, but if external law does not completely resolve the issue, the employer must bargain to the extent of its retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) (p. 25.)

Workplace policies generally fall within the scope of representation if they materially alter employees’ disciplinary risks. (County of Sonoma (2023) PERB Decision No. 2772a-M, p. 24; Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 12; Trustees of the California State University (2003) PERB Decision No. 1507-H, adopting proposed decision at pp. 12-13; State of California (Water Resources Control Board) (1999) PERB Decision No. 1337-S, pp. 7-8.) This standard has an exception: a new policy does not trigger decision bargaining—even though it has disciplinary consequences—if those consequences are incidental to a decision unrelated to employee or labor relations. (San Bernardino Community College District (2018) PERB Decision No. 2599, pp. 8-12 (San Bernardino).) In San Bernardino, the employer placed GPS on a security officer’s truck, with the ultimate goal to improve public services by monitoring the officer. (Id. at pp. 10-11, fn. 8.) Because it sought to accomplish its purpose by changing an employment term or condition, the employer had a decision bargaining duty. (Ibid.) In contrast, where the purpose of a change is to safeguard the public as a general matter, not mediated mainly through altering an employment practice, then only effects bargaining is required. (Ibid.; County of Sonoma (2023) PERB Decision No. 2772a-M, pp. 24-25; County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 21-22.) (pp. 25-27.)

The Board exercised its discretion not to resolve the Unions’ exception regarding direct dealing, as resolving that claim would not impact the Board’s order even were the Board to sustain the exception. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3.) (p. 3, fn. 3.)

The Board typically denies requests for oral argument if there is an adequate record, the parties had a reasonable opportunity to present briefs, and the issues before the Board are sufficiently clear that oral argument is unnecessary. (City of Culver City (2020) PERB Decision No. 2731-M, p. 2, fn. 2.) The Board denied the request for oral argument based on these criteria and given that this decision follows several others in which the Board explained employers’ bargaining duties when the COVID-19 pandemic commenced. (p. 18, fn. 9.)

A failure to comply with bargaining obligations during an emergency can warrant an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-69.) (pp. 37-38.)

A failure to comply with bargaining obligations during an emergency can warrant an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-69.) Because changes taken in reliance on an emergency defense must be limited to the timeframe that the emergency requires, the County is required to honor any request that one or both Unions may make to rescind, as to their respective bargaining units, emergency policies and assignments, or any combination thereof. (pp. 37-38.)

Given the sweeping nature of the County’s assertion of emergency powers to disregard the MMBA, the Board ordered that the physical posting should occur County-wide. (p. 38.)