Decision 2749E – Sacramento City Unified School District

SA-CE-2945-E

Decision Date: November 2, 2020

Decision Type: PERB Decision

Description:  The complaint alleged that the Sacramento City Unified School District (1) unilaterally changed the parties’ contractual grievance arbitration policy by refusing to arbitrate a grievance; and (2) failed to provide Sacramento City Teachers Association (SCTA) with relevant and necessary information in a timely fashion. After an evidentiary hearing, an ALJ found the District liable for both alleged violations. The ALJ’s proposed remedy directed the District to reimburse SCTA for legal expenses incurred while obtaining a court order directing the District to abide by the contractual arbitration provision. The District excepted to the ALJ’s unilateral change findings and associated remedy.

Disposition:  The Board affirmed the ALJ’s unilateral change findings and associated remedy. The Board found the District deviated from the status quo, changed established past practice, and/or enforced existing policy in a new way because it asserted a non-existent legal right to decide for itself whether disputes were arbitrable. In affirming the proposed remedy, the Board noted that its litigation sanction standard does not apply when a party seeks to be made whole for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen, or stave off the impacts of the other party’s unfair practice. The Board provided guidance for compliance proceedings in which the proper amount of such damages is to be determined.

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and negotiating in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (County of Merced (2020) PERB Decision No. 2740-M, pp. 8-9 (Merced).) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Merced, supra, PERB Decision No. 2740-M, p. 9.)

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

Because a unilateral change is a per se violation of the statutory duty to bargain, these standards apply irrespective of whether a party evidences a good faith belief in its mistaken position. (See, e.g., City of Montebello (2016) PERB Decision No. 2491-M, p. 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

An employer’s unilateral change concurrently or derivatively violates EERA section 3543.5, subdivisions (a) and (b) because it necessarily interferes with employees and their union in the exercise of protected rights. (San Francisco Community College District (1979) PERB Decision No. 105, pp.19-20.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

An employer’s failure or refusal to process a grievance in accordance with collectively bargained procedures may be reviewed as a unilateral change. (See, e.g., Omnitrans (2010) PERB Decision No. 2143-M, pp. 6-8; County of Riverside (2003) PERB Decision No. 1577-M, p. 6.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

A single contract breach qualifies as a deviation from the status quo, change in established past practice, and/or enforcement of existing policy in a new way, if either of two circumstances are present: (1) the contract breach changes a policy or employment term applicable to future situations; or (2) the employer acts unilaterally based upon an incorrect legal interpretation or insistence on a non-existent legal right that could be relevant to future disputes. (Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 25; Hacienda La Puente Unified School District (1997) PERB Decision No. 1186, p. 4 [finding unilateral change because there was “no evidence to suggest” that the employer would in the future refrain from taking similar actions]; see also, e.g., San Bernardino Community College District (2018) PERB Decision No. 2599, p. 8; City of Davis (2016) PERB Decision No. 2494-M, p. 32; County of Santa Clara (2015) PERB Decision No. 2431, p. 19; County of Riverside (2003) PERB Decision No. 1577-M, p. 6.)

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

The District deviated from the status quo, changed established past practice, and/or enforced existing policy in a new way because it asserted a non-existent legal right to decide for itself whether the salary schedule agreement incorporated into the CBA was a binding contract and whether related disputes were arbitrable. The District manifestly retained for itself sole discretion to determine the arbitrability of future grievances. Although the District’s conduct in refusing to arbitrate the grievance amounted to a unilateral change, its outright repudiation of the salary schedule provision constituted an alternative basis for finding liability. (Centinela Valley Union High School District (2014) PERB Decision No. 2378, p. 8; Stanislaus Consolidated Fire Protection District (2012) PERB Decision No. 2231-M, p. 17.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

The Board provided guidance for compliance proceedings to determine the proper amount of legal expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices and to restore the pre-violation status quo. The term “legal expenses,” which is synonymous with “attorney’s fee award” and “attorney’s fees and costs,” is a broad category that includes virtually any item for which a law firm customarily bills a client, including, inter alia, billable professional services (meaning attorney and law clerk services and certain “paralegal” services that may be performed by legal assistants with or without a paralegal license), as well as incidental costs such as filing fees, electronic research fees, or fees for service of process. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 888; see also Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 285-287 [paralegal and law clerk time compensable at prevailing market rate]; Trustees of Const. Indus. and Laborers Health and Welfare Trust v. Redlands Ins. Co. (9th Cir. 2006) 460 F.3d 1253, 1256-1257 [support staff work compensable if those costs not already built into attorney’s hourly fees].) This definition of legal expenses is particularly appropriate in compensatory cases given that PERB precedent allows compensation even for staff who do not work in legal services in any respect. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

In general, the most appropriate methodology for determining compensatory legal expenses will be a lodestar approach that focuses on hours reasonably incurred and does not automatically reduce hourly market rates for attorneys who work in a nonprofit, government agency, or in-house legal department and/or who were paid a flat salary, charged discounted rates, or never billed their client. It is permissible, but not required, to use alternative methods as a cross-check on one another to determine an appropriate fee as part of a make-whole remedy. Moreover, it is appropriate to reimburse any incidental costs, as well as pre-judgment and post-judgment interest on all amounts.

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

Normally compliance proceedings to establish estimated reasonable legal expenses should involve review of sworn declarations and should not lead to protracted litigation. (City of Alhambra (2009) PERB Decision No. 2037-M, p. 4; Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, p. 8.) Moreover, compliance hearings involving legal expense reimbursement should follow general PERB principles. Thus, it is permissible to estimate appropriate damages even if, as is often the case, the exact measure of damages is uncertain. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.01000 – In General

The Legislature has delegated to PERB broad powers to remedy EERA violations and to take any action the Board deems necessary to effectuate the Act’s purposes. (EERA, § 3541.5, subd. (c); City of San Diego (2015) PERB Decision No. 2464-M, p. 42 (San Diego), affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898; Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189-190.) A “properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) An appropriate remedy therefore should make whole all injured persons or organizations for the full amount of their losses and should withhold from the wrongdoer the fruits of its violation. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13 (Pasadena).) In addition to serving restorative and compensatory functions, a Board-ordered remedy should also deter future misconduct, so long as the order is not a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 3; San Diego, supra, PERB Decision No. 2464-M, pp. 40-42; Pasadena, supra, PERB Order No. Ad-406-M, pp. 12-13.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

PERB employs two alternate standards for determining whether to award legal expenses. One standard applies when PERB must determine whether to award a party legal expenses because of the opposing party’s sanctionable conduct in litigating the same case before PERB. That standard, which is akin to Rule 11 of the Federal Rules of Civil Procedure, provides that PERB should make such an award if the offending party maintained a claim, defense or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7; Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5; City of Alhambra (2009) PERB Decision No. 2036-M, p. 19; City of Alhambra (2009) PERB Decision No. 2037-M, p. 2.) A different standard applies when a party seeks to be made whole for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen, or stave off the impacts of the other party’s unfair practice. The Board has not required a Rule 11-type showing in such cases and has instead treated legal expenses the same as medical expenses, lost pay, lost staff time, or any other loss. (See, e.g., Omnitrans (2009) PERB Decision No. 2030-M, p. 30; see also Palo Alto, supra, PERB Decision No. 2664-M, p. 8, fn. 6.) PERB has followed the same principles irrespective of whether the ancillary proceeding is civil or criminal. (See County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3; City of San Diego (2015) PERB Decision No. 2464-M, pp. 46-47, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898.)

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.04000 – Attorneys Fees and Costs

The Board reaffirmed that its litigation sanction standard does not apply to a make-whole award of litigation expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices. PERB orders make-whole relief irrespective of whether the harm at issue involves legal professionals who spent time and resources in ancillary litigation or non-legal staff who spent extra time or resources in bargaining, communicating with members, or other functions. (See City of Palo Alto (2019) PERB Decision No. 2664, p. 8, fn. 6 [litigation sanctions are conceptually different from reimbursement of legal expenses reasonably incurred in an ancillary proceeding as a result of an employer’s underlying conduct].)