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DecisionDescriptionPERC Vol.PERC IndexDate
A497M City and County of San Francisco
1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General
PERB is not bound by the findings and conclusions of another administrative decision unless collateral estoppel applies. (San Diego Unified School District (1991) PERB Decision No. 885, p. 74). The doctrine of collateral estoppel precludes the relitigation of an issue already decided in another proceeding where: (1) the issue decided in the prior proceeding is identical to that sought to be relitigated; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party in the prior proceeding. (State of California (Department of Developmental Services) (1987) PERB Decision No. 619-S, p. 14, citing People v. Sims (1982) 32 Cal.3d 468, 484.) Collateral estoppel effect may be given to decisions of administrative agencies when: (1) the agency is acting in a judicial capacity; (2) it resolves disputed issues of fact properly before it; and (3) the parties have had an adequate opportunity to litigate such disputed issues. (State of California (Department of Developmental Services), supra, pp. 14-15; People v. Sims, supra, 32 Cal.3d at p. 484.) In this matter, the Board did not proceed past the first step of analysis, as the issues decided in the prior proceeding were not identical to those raised by the Association’s severance petition. (pp. 27-28.) more or view all topics or full text.
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A497M City and County of San Francisco
1403.01000: GENERAL LEGAL PRINCIPLES; ESTOPPEL; In General
The doctrine of judicial estoppel prohibits a party from successfully taking inconsistent positions in the same or different judicial proceedings. (Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, pp. 36-37 (Alliance) (judicial appeal pending); Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).) Judicial estoppel applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 183.) The doctrine’s purpose is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 181.) In this matter, the Board declined to consider whether the City should be estopped from asserting it cannot apply PERB Regulations because the Association failed to fully raise or argue the matter, nor was it addressed in an earlier order to show cause. (pp. 26-27.) more or view all topics or full text.
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A497M City and County of San Francisco
1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
PERB Regulation 61420 provides “[w]henever a severance petition is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election, or take such other action as deemed necessary to decide the questions raised by the petition.” PERB recently noted that under a comparable regulation implementing the Educational Employment Relations Act (EERA), “[t]here is ‘no guarantee or entitlement to an evidentiary hearing.’” (Alliance Morgan McKinzie High School, et al. (2022) PERB Order No. Ad-491, p. 13, quoting Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 16.) Rather, after completing an investigation, the Board agent may either “determine that sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary hearing,” or “that no material issue of fact exists and thus that a hearing is unnecessary.” (Id. at p. 17.) The Board applies an abuse of discretion standard in reviewing a Board agent’s determination whether to conduct a hearing in a representation matter. (Robert L. Mueller Charter School (2003) PERB Order No. Ad 320, p. 11.) Here, the Board found that there were no disputed material facts and thus OGC did not abuse its discretion by declining to hold a hearing. (pp. 22-24.) more or view all topics or full text.
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A497M City and County of San Francisco
1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) Here, the Board analyzed whether the City’s ERO contained rules that can accomplish severance without an undue burden, and found that it did not. (p. 16.) more or view all topics or full text.
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A497M City and County of San Francisco
1308.01000: REPRESENTATION ISSUES; SEVERANCE; In General
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” Such local rules may include provisions for, among other things, recognizing employee organizations and determining appropriate bargaining units. (MMBA, § 3507, subd. (a)(3), (4); County of Monterey (2022) PERB Decision No. 2821-M, p. 9.) When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) The Board found the City’s ERO provides no avenue for processing a severance request without unduly burdening a petitioner, finding that PERB had jurisdiction over the petition, but dismissing it due to untimeliness. (pp. 16-22; 29-30.) more or view all topics or full text.
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A497M City and County of San Francisco
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.) more or view all topics or full text.
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A497M City and County of San Francisco
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.) more or view all topics or full text.
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A497M City and County of San Francisco
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
The process for challenging the application or existence of local rules as contrary to the MMBA is an unfair practice charge. (City of Parlier (2015) PERB Order No. Ad-421-M, p. 8.) The Association had a right to file an unfair practice charge, alleging that the City’s local rules themselves violate the MMBA or that their application in this instance was unreasonable, but that allegation could not be resolved as part of the Association’s severance petition. (p. 29.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Employer waived request that PERB order the parties to negotiate over the cost of compiling requested information when it neither raised the alleged undue burden contemporaneously nor offered to bargain with union about it. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden].) (pp. 17, 19.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board generally “decline[s] to review an exception raising an issue that was not presented to the ALJ.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 12; Colusa Unified School District (1983) PERB Decision No. 296, p. 4.) The Board exercised its discretion to consider the District’s exception where it raised an important issue concerning when an exclusive representative must reassert its information request upon receiving a less-than-complete response from the employer. We accordingly exercise our discretion to consider the District’s exception. (Los Angeles County Superior Court, supra, PERB Decision No. 2566-C, p. 13.) (p. 11.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Form of Information Provided; Costs
While it is tautological that an employer need not provide information that does not exist, “when the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.” (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, p. 15.) Moreover, an employer must raise any such burden contemporaneously with the requesting union “so the parties can negotiate over eliminating or reducing the employer’s burden.” (Id. at p. 16.) Otherwise, the employer forfeits the defense and PERB will order the employer to supply the information despite any burden it may impose. (Ibid.) When requested information exists in some form, the fact that the employer cannot retrieve it from a centralized database—and instead may have to compile it from various sources (including employees’ memories)—does not excuse the employer from producing it, unless the employer can prove doing so would be unduly burdensome and has offered to bargain to alleviate the burden. (pp. 17-18.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Form of Information Provided; Costs
A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “an employer responding to an RFI may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
It is not a charging party’s burden to prove exactly what further information a respondent would have found by conducting a proper, diligent search. (p. 18, fn. 11.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “an employer responding to an RFI may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
The union did not have to reassert or clarify its RFI after receiving the District’s response, because a union need not do so if it is sufficiently clear that the response did not fully satisfy the request, as it was in this case. Here, the District assessed and answered the union’s RFI as if it arose under the California Public Records Act (CPRA) and consequently failed to explore means of obtaining requested information that was not in its central course database. It was sufficiently clear that the District failed to seek information beyond preexisting records and the District unequivocally stated that no more information would be forthcoming. (p. 14.) The Board partially overruled Trustees of the California State University (2004) PERB Decision No. 1732-H, to extent it suggests that an exclusive representative’s failure to reassert or clarify its information request upon receiving a partial response from the employer always bars finding a violation of the duty to bargain in good faith, regardless of whether it was sufficiently clear that the response was incomplete. (p. 14.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
Once a party receives a request for relevant information, it must either promptly and fully supply the information or timely and adequately explain its reasons for not doing so. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8 (Sacramento).) The responding party bears the burden of proof as to any defense, limitation, or condition that it asserts. (Ibid.) If the responding party believes that a request is unduly burdensome, seeks confidential information, or is otherwise overbroad, the responding party must affirmatively assert its concerns and offer to bargain over those concerns with the requesting party. (Id. at pp. 12-13; State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden]; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 19 (Petaluma) [“Even where a request is arguably ambiguous or overly broad, the employer . . . must seek clarification [or] comply to the extent the request seeks relevant information”].) A responding party must exercise the same diligence and thoroughness as it would in other business affairs of importance, and a charging party need not show that a responding party’s lack of care caused harm. (Sacramento, supra, PERB Decision No. 2597, pp. 8-9; Petaluma, supra, PERB Decision No. 2485, p. 19.) Thus, a responding party violates its bargaining duty if it unreasonably delays its response, even if the delay did not prejudice the requesting party. (Sacramento, supra, PERB Decision No. 2597, p. 9; Petaluma, supra, PERB Decision No. 2485, p. 20.) (pp. 9-10.) more or view all topics or full text.
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2834E Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
An employer must normally provide an exclusive representative with all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, pp. 9-10; City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) This is a liberal, discovery-type standard akin to the standard California courts use to determine relevance, and, notably, “necessary” and “relevant” are interchangeable terms that do not have separate meanings. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8.) (p. 9) more or view all topics or full text.
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2833E Pittsburg Unified School District
1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses
Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.
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2833E Pittsburg Unified School District
1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.
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2833E Pittsburg Unified School District
608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.
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2833E Pittsburg Unified School District
608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo
If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.) more or view all topics or full text.
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2833E Pittsburg Unified School District
602.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in Past Practice
If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.) more or view all topics or full text.
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2833E Pittsburg Unified School District
1000.02156: SCOPE OF REPRESENTATION; Workdays/Workyear
A public school employer is required to bargain over employee work hours but not over instructional dates. Thus, any change to the status quo of Adult Education summer teachers’ paid hours was within the scope of representation. (p. 10.) more or view all topics or full text.
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