Decision 2942H – Regents of the University of California (Los Angeles)

Because the University’s unilateral change was a fait accompli by the time the union learned of it, the union had no duty to demand bargaining. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (p. 15.)

To establish a prima facie case that a respondent employer violated its bargaining duty via a unilateral change, a charging party union that exclusively represents a bargaining unit 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. (Regents of the University of California (2023) PERB Decision No. 2884-H, p. 9.) Absent a valid defense, an employer’s unilateral change affecting negotiable matters is a per se refusal to meet and confer.

A transfer of a job duty from bargaining unit employees to employees outside the unit is material, and thus bargainable, if the transfer either: (1) causes unit employees to cease performing a duty entirely, when previously unit employees shared the duty with non-unit personnel; or (2) causes non-unit employees to begin performing a duty that only unit employees had previously performed. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 38-39, fn. 19; City of Sacramento (2013) PERB Decision No. 2351-M, p. 16; Desert Sands Unified School District (2010) PERB Decision No. 2092, p. 20; Calistoga Joint Unified School District (1989) PERB Decision No. 744, p. 9; Eureka City School District (1985) PERB Decision No. 481, p. 15 (Eureka).) PERB commonly refers to this as the Eureka standard. While precedent sometimes characterizes the Eureka standard as defining whether a decision is within the scope of representation, in fact there is no question that job duties are a mandatory bargaining topic. Thus, as an analytic matter, the Eureka standard truly measures whether a deviation from the status quo is sufficiently material to trigger bargaining. (pp. 15-16.)

The Board clarified that the Eureka standard, as an analytic matter, better measures whether a deviation from the status quo is sufficiently material to trigger a bargaining obligation, rather than determining whether a transfer of work is within the scope of representation, as often characterized in prior PERB precedent. This clarification is equivalent to the one PERB made in County of Santa Clara (2022) PERB Decision No. 2820-M, where the Board explained that the “reasonably comprehended” standard for new job duties measures whether a deviation from the status quo is material. (Id. at pp. 6-7.) There, the Board explained that past precedent treating the “reasonably comprehended” standard as defining the scope of representation was an historical artifact. (Id. at p. 7.) As PERB now separately analyzes change to status quo and scope of representation, it makes sense that the Eureka standard, like the “reasonably comprehended” test, will normally be more integral to determining whether the employer materially changed the status quo than to determining whether job duties constitute a mandatory bargaining topic. In sum, Santa Clara, supra, PERB Decision No. 2820-M explained that while job duties and assignments normally fall within the scope of representation, the “reasonably comprehended” test helps to assess whether adding job duties or assignments constitutes a material change. (Id. at pp. 5-7.) By the same logic, the Eureka standard helps to assess whether an employer materially changed the status quo by subtracting job duties from a bargaining unit. (pp. 17-18.)

Because the University’s unilateral change was a fait accompli by the time the union learned of it, the union had no duty to demand bargaining. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (p. 15.)

A transfer of a job duty from bargaining unit employees to employees outside the unit is material, and thus bargainable, if the transfer either: (1) causes unit employees to cease performing a duty entirely, when previously unit employees shared the duty with non-unit personnel; or (2) causes non-unit employees to begin performing a duty that only unit employees had previously performed. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 38-39, fn. 19; City of Sacramento (2013) PERB Decision No. 2351-M, p. 16; Desert Sands Unified School District (2010) PERB Decision No. 2092, p. 20; Calistoga Joint Unified School District (1989) PERB Decision No. 744, p. 9; Eureka City School District (1985) PERB Decision No. 481, p. 15 (Eureka).) PERB commonly refers to this as the Eureka standard. While precedent sometimes characterizes the Eureka standard as defining whether a decision is within the scope of representation, in fact there is no question that job duties are a mandatory bargaining topic. Thus, as an analytic matter, the Eureka standard truly measures whether a deviation from the status quo is sufficiently material to trigger bargaining. (pp. 15-16.)

A charging party satisfies the element of demonstrating that a policy change has a generalized effect or continuing impact if the challenged decision or action alters a term or condition of employment on a prospective basis or if the respondent asserts a non-existent right to continue or repeat the action in the future. (West Contra Costa Unified School District (2023) PERB Decision No. 2881, pp. 15-16.) The permanent nature of the apprenticeship program, and the fact that apprentices stay in the program for two years, easily establishes that mentoring is a working condition with a continuing impact. Moreover, the University’s conduct and arguments show there is a substantial risk it may continue and/or repeat the same or similar conduct. (Regents of the University of California (2023) PERB Decision No. 2852-H, p. 17.) (pp. 14-15, 19.)

Where there is a transfer of work, the union need not show actual diminution in work opportunities or collective bargaining strength. Longstanding precedent recognizes that the “diminution of unit work by transferring functions weakens the collective strength of employees in the unit and their ability to deal effectively with the employer and can affect the viability of the unit itself.” (Rialto Unified School District (1982) PERB Decision No. 209, pp. 6-7; see also Arcohe Union School District (1983) PERB Decision No. 360, p. 6 [diminution of unit work impacts collective strength of employees in the unit].) (p. 20.)

A union has the right to bargain collectively and propose extra compensation and/or workload offsets for employees who voluntarily agree to take on an extra duty. (American Federation of State, County and Municipal Employees v. City of Santa Clara (1984) 160 Cal.App.3d 1006, 1010; but cf. Poway Unified School District (1988) PERB Decision No. 680, pp. 11-15 [school district need not bargain before offering teachers a purely voluntary opportunity to build their skills by attending a training].) (p. 14.)

Assigning represented employees a material new job duty normally falls within the scope of representation, meaning an employer normally has a duty to provide notice and offer bargaining before it does so, unless the employer satisfied its bargaining duty in advance by negotiating a contractual waiver that allows it to add new duties during a the term of an MOU, without further bargaining. (County of Santa Clara (2022) PERB Decision No. 2820-M, pp. 5-10 & fn. 7; Cerritos Community College District (2022) PERB Decision No. 2819, p. 30.) (p. 10.)

For a unilateral change claim premised on a new job duty or assignment, to establish a material deviation from the status quo, the charging party must prove that the new duty or assignment was not “reasonably comprehended” within bargaining unit employees’ prior duties or assignments. (State of California (California Correctional Health Care Services) (2022) PERB Decision No. 2823-S, pp. 10-11 (CCHCS); County of Santa Clara (2022) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022) PERB Decision No. 2819, p. 30.) This “reasonably comprehended” standard is an objective test that analyzes what a reasonable employee would comprehend based on all relevant circumstances, including, but not limited to, past practice, training, and job descriptions. (CCHCS, supra, PERB Decision No. 2823-S, p. 10; County of Santa Clara, supra, 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].) Thus, to apply the “reasonably comprehended” standard, PERB compares past duties or assignments to new duties or assignments, through the eyes of a reasonable employee. (County of Santa Clara, supra, p. 8.) (pp. 10-11.)

A transfer of a job duty from bargaining unit employees to employees outside the unit is material, and thus bargainable, if the transfer either: (1) causes unit employees to cease performing a duty entirely, when previously unit employees shared the duty with non-unit personnel; or (2) causes non-unit employees to begin performing a duty that only unit employees had previously performed. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 38-39, fn. 19; City of Sacramento (2013) PERB Decision No. 2351-M, p. 16; Desert Sands Unified School District (2010) PERB Decision No. 2092, p. 20; Calistoga Joint Unified School District (1989) PERB Decision No. 744, p. 9; Eureka City School District (1985) PERB Decision No. 481, p. 15 (Eureka).) PERB commonly refers to this as the Eureka standard. While precedent sometimes characterizes the Eureka standard as defining whether a decision is within the scope of representation, in fact there is no question that job duties are a mandatory bargaining topic. Thus, as an analytic matter, the Eureka standard truly measures whether a deviation from the status quo is sufficiently material to trigger bargaining. (pp. 15-16.)

The Board clarified that the Eureka standard, as an analytic matter, better measures whether a deviation from the status quo is sufficiently material to trigger a bargaining obligation, rather than determining whether a transfer of work is within the scope of representation, as often characterized in prior PERB precedent. This clarification is equivalent to the one PERB made in County of Santa Clara (2022) PERB Decision No. 2820-M, where the Board explained that the “reasonably comprehended” standard for new job duties measures whether a deviation from the status quo is material. (Id. at pp. 6-7.) There, the Board explained that past precedent treating the “reasonably comprehended” standard as defining the scope of representation was an historical artifact. (Id. at p. 7.) As PERB now separately analyzes change to status quo and scope of representation, it makes sense that the Eureka standard, like the “reasonably comprehended” test, will normally be more integral to determining whether the employer materially changed the status quo than to determining whether job duties constitute a mandatory bargaining topic. In sum, Santa Clara, supra, PERB Decision No. 2820-M explained that while job duties and assignments normally fall within the scope of representation, the “reasonably comprehended” test helps to assess whether adding job duties or assignments constitutes a material change. (Id. at pp. 5-7.) By the same logic, the Eureka standard helps to assess whether an employer materially changed the status quo by subtracting job duties from a bargaining unit. (pp. 17-18.)

Assigning represented employees a material new job duty normally falls within the scope of representation. To prove that a change is material enough to trigger a bargaining obligation, the charging party may, but need not, establish that a new duty increases employees’ workload. (State of California (California Correctional Health Care Services) (2022) PERB Decision No. 2823-S, p. 11 [changes to workload and assignment of new duties often go hand in hand, but it is possible to establish one type of unilateral change without the other]; accord County of Santa Clara (2022) PERB Decision No. 2820, pp. 5-6 & fn. 4.) (p. 10.)

A union has the right to bargain collectively and propose extra compensation and/or workload offsets for employees who voluntarily agree to take on an extra duty. (American Federation of State, County and Municipal Employees v. City of Santa Clara (1984) 160 Cal.App.3d 1006, 1010; but cf. Poway Unified School District (1988) PERB Decision No. 680, pp. 11-15 [school district need not bargain before offering teachers a purely voluntary opportunity to build their skills by attending a training].) (p. 14.)

PERB’s standard remedy for an employer’s unlawful unilateral change is a cease-and-desist order, a notice posting, restoration of the status quo ante, appropriate make-whole relief including back pay and benefits with interest, and an order to bargain with the union upon request. (Regents of the University of California (2023) PERB Decision No. 2852-H, p. 21; Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, pp. 94-96.) The Board found those remedies appropriate here. The Board, however, found that the educational setting warranted a delay in a return to the status quo, both to protect student education and Teacher Apprentices’ training. In Antelope Valley Community College District (2023) PERB Decision No. 2854, as in other cases where an employer fails to fulfill its bargaining duty before altering instructors’ work calendar as part of adjusting the student academic calendar, PERB has delayed its requirement to restore the status quo for an academic year when necessary to prevent unwarranted disruption or interference with student instruction or district operations. (Id. at pp. 6-7; Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 34 [forcing parties to change academic calendar part way through an academic year could disrupt unreasonably plans and schedules of students, faculty, and staff].) Here, however, the Board was also mindful that the Demonstration Teachers continued to bear the burden attendant in losing bargaining unit work and in performing additional job duties. Under those unique circumstances, the Board found it appropriate to require restoration of the status quo by the beginning of the next Lab School academic term following the date when its decision becomes final. (pp. 21-23.)