Decision 3043M – City of Pleasanton

To establish a prima facie case that an employer violated its bargaining duty via a 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.) Absent a valid defense, an employer’s unilateral change affecting negotiable matters is a per se refusal to meet and confer. (Regents of the University of California (Los Angeles) (2025) PERB Decision No. 2942-H, pp. 8-9.) (pp. 13-14.)

The MMBA’s bargaining obligation is its “centerpiece.” (Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898, 914.) The MMBA restrains management from sudden shifts, instead requiring the mediatory influence of bargaining. (County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 67, 69 [even when negotiations do not lead to agreement, they promote understanding and labor harmony by clarifying matters on all sides and avoiding chaotic implementation].) Indeed, irrespective of whether a status quo is written (as here, based on the MOU and job descriptions), or purely unwritten, the employer is not stuck with it forever. Rather, the employer can alter the status quo via bargaining to impasse or agreement. (See Oakland Unified School District (2023) PERB Decision No. 2875, pp. 15-16 [employer retains ultimate power to change status quo, after bargaining].) (p. 18.)

In assessing a written agreement or policy to determine the status quo, PERB first considers whether the language is clear and unambiguous; if so, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 33.) Where the language is ambiguous, PERB may look to bargaining history and past practice to discern the parties’ intent. (Ibid.) While past practice evidence of any strength may be relevant when assessing ambiguous written language, past practice evidence must be stronger if it is to establish an unwritten status quo wholly apart from any writing, under the second means of establishing a unilateral change. Specifically, a past practice only establishes a purely unwritten status quo if it was “regular and consistent” or “historic and accepted.” (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-11.) (pp. 15-16.)

In assessing a written agreement or policy to determine the status quo, PERB first considers whether the language is clear and unambiguous; if so, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 33.) Where the language is ambiguous, PERB may look to bargaining history and past practice to discern the parties’ intent. (Ibid.) While past practice evidence of any strength may be relevant when assessing ambiguous written language, past practice evidence must be stronger if it is to establish an unwritten status quo wholly apart from any writing, under the second means of establishing a unilateral change. Specifically, a past practice only establishes a purely unwritten status quo if it was “regular and consistent” or “historic and accepted.” (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-11.) There is no bright line as to the length of time an unwritten past practice must be in effect, as the analysis depends on context, including not merely the length of time but also the number of examples over that time. (Id. at p. 12.) (pp. 15-18.)

City’s decisions to reinterpret incentive pay eligibility and seek reimbursement for past incentive payments have a generalized effect or continuing impact on employees, given that these decisions materially altered employees’ wages and asserted a non-existent right that could be relevant to future disputes. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 30-31; Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8.) (pp. 14-15, fn. 6.)

A unilateral change “occurs on the date the employer makes a firm decision, even if the decision does not take effect immediately or never takes effect.” (State of California (California Correctional Health Care Services) (2022) PERB Decision No. 2823-S, p. 13; accord City of Milpitas (2015) PERB Decision No. 2443-M, p. 15.) (p. 20.)

Wages are expressly within the scope of representation under MMBA section 3504, meaning that repayment of wages is generally within the scope of bargaining (County of Sacramento (2020) PERB Decision No. 2745-M, p. 20), though a union may refuse to bargain over an employer garnishment proposal that would waive employees’ Labor Code rights (Berkeley Unified School District (2012) PERB Decision No. 2268, pp. 14-15). (p. 14, fn. 6.)

Job qualifications fall within the scope of representation unless the employer does no more than comply with an externally imposed change. (City and County of San Francisco (2022) PERB Decision No. 2846-M, p. 22; County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) (p. 14, fn. 6.)

PERB ordered its standard remedy for an employer’s unlawful unilateral change: 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. (City of Culver City (2020) PERB Decision No. 2731-M, p. 24.)
(p. 21.)