Keyword Search by Headnotes

DecisionDescriptionPERC Vol.PERC IndexDate
2731M City of Culver City
1402.3000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses
An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1205.7000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
A restorative order returning “the parties and affected employees to their respective positions before the unlawful conduct occurred is critical to remedying unilateral change violations, because it prevents the employer from gaining a one sided and unfair advantage in negotiations and thereby ‘forcing employees to talk the employer back to terms previously agreed to.’” [Citation.] While restoration of the status quo ante is a hallmark of most unilateral change remedies [citations], it is not appropriate here given that the parties bargained and subsequently agreed to a new memorandum of understanding (MOU) containing substantially identical schedule and meal period provisions as the expired MOU. The Board found that, by agreeing to certain provisions in the successor MOU, the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1202.2000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; Agreement Between. the Parties
The Board found that, by agreeing to certain provisions in the successor memorandum of understanding (MOU), the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1201.3000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
As part of a standard unilateral change remedy, make whole relief is warranted if it is more likely than not that employees suffered a harm. Make whole relief compensates employees for the difference between what they actually earned and what they would have earned, but for the employer’s unlawful conduct. [Citation.] Beyond the practical value of such monetary relief, make whole relief also serves an important policy purpose in ensuring that employees are not punished for vindicating their rights, while also acting as a deterrent against future unlawful conduct. [Citation.] As the ALJ observed, PERB may order backpay even though its measure is imprecise. [Citations.] That was arguably the case here. The employer paid employees for all hours worked at appropriate rates. Nevertheless, harm may be quantified in a number of ways, not only increased workload or reduced pay. Here, the schedule changes resulted in employees’ workdays being extended by one hour. While the employer was authorized to implement the schedule changes during the life of the prior memorandum of understanding (MOU) and after the successor MOU took effect, for the period from November 13, 2017, when the employer implemented the schedule change, to November 27, 2017, when the City Council adopted the successor MOU, the changes were unlawful. The best measure of the value of this time would be an hour’s pay per day. However, the Board did not order such a make whole remedy as the ALJ declined to order back pay and the union did not except to the ALJ’s remedial order. (pp. 26-27.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
In this case, because the parties’ memorandum of understanding was expired at the time the employer made the decision to change employees’ schedules, the Board found that the ALJ properly analyzed the employer’s decision as a unilateral change under NLRB v. Katz (1962) 369 U.S. 736, and correctly rejected the employer’s waiver defense. Nothing in the memorandum of understanding suggested that the schedule waiver provision was intended to outlive the contract’s term. (pp. 20-21.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: 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 arose in the context of a bilateral agreement and must be limited to that context. There is a separate and narrow line of waiver precedent relating to waivers not arising from a bilateral agreement. Under these cases, the party asserting waiver must show that the other party’s conduct was sufficiently clear to rise to the level of conscious abandonment, typically because the employer has provided proper advance notice of a proposed change and the union has failed to request to meet and confer. [Citations.] This line of cases gave no benefit to the employer here, as it did not provide advance notice to the union. (p. 18.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Despite the narrow holding of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) as a waiver by contract defense, the Board has at times applied the case in an inconsistent manner. For instance, the Board has periodically applied Marysville not as a contract waiver defense but rather as an element necessary for a charging party to establish as part of its prima facie case for a unilateral change, effectively requiring the charging party to prove that a contract did not permit the change at issue. [Citations.] However, more modern Board decisions have returned to treating Marysville as a waiver defense. [Citations.] As part of returning to Marysville’s roots, the Board has held that an employer commits a prima facie unilateral change if it begins to enforce a contract or policy in a new way, a holding that in practice requires the employer to raise Marysville’s contractual waiver doctrine as an affirmative defense. (p. 17.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
The Board issued Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) the day after it issued Grossmont Union High School District (1983) PERB Decision No. 313 (Grossmont), which also dealt with waiver by contract. In Grossmont, the Board held that a union waived its right to bargain about specific changes to work schedules when it agreed to a contract that specified the work schedules. [Citation.] Grossmont helps interpret Marysville. Since the same Board decided Marysville so closely after Grossmont, it is highly unlikely the Board intended Marysville to depart from the Grossmont standard, especially as neither decision distinguishes the other as involving different considerations. (p. 16, fn. 9.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To the extent the employer contended that its decision to make the contested schedule changes did not represent a change in policy, but simply a reversion to the parties’ memorandum of understanding, that argument is appropriately framed as an affirmative defense, rather than a negation of the change element of the union’s prima facie case of a unilateral change. (p. 12, fn. 5.) more or view all topics or full text.
06/10/20
2731M City of Culver City
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The Board found that the employer’s e-mail about impending schedule changes, which it sent directly to union members during the pendency of successor contract negotiations, unlawfully bypassed the union. The problem with the e-mail was twofold: first, it dealt with a bargainable topic while ignoring the union and instead directly and exclusively addressing employees. Second, the timing of the e-mail jeopardized the unit members’ perception of the union’s authority precisely at a time such authority was critical, as the tentative agreement had yet to be ratified. Similarly, a manager’s meeting with union-represented employees about the schedule changes prior to the conclusion of successor contract negotiations had the effect of undermining the union’s authority as the exclusive representative by suggesting that employees could communicate directly with the employer about policy changes within the scope of representation. This action hampered the union’s ability to fully meet and confer with the employer during the unfinished negotiations process. (pp. 22-23.) more or view all topics or full text.
06/10/20
2731M City of Culver City
603.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; In General
An employer’s duty to bargain in good faith requires that it provide the exclusive representative with notice and an opportunity to negotiate in good faith over matters within the scope of representation. Consistent with the principle of exclusivity, an employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. [Citations.] A charging party may demonstrate that an employer has unlawfully bypassed the exclusive representative by showing that the employer dealt directly with its employees to create a new policy of general application, or to obtain a waiver or modification of existing policies applicable to those employees. [Citations.] (p. 22.) more or view all topics or full text.
06/10/20
2731M City of Culver City
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
An employer commits a per se violation of its duty to meet and confer when it fails to afford the employees’ representative reasonable advance notice and an opportunity to bargain before reaching a firm decision to establish or change a policy concerning a negotiable subject. To establish an unlawful unilateral action, the charging party must prove facts showing that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action had a generalized effect or continuing impact on terms and conditions of employment. [Citations.] PERB has recognized three general categories of unlawful unilateral actions: (1) changes to the parties’ written agreements; (2) changes in established past practices; or (3) newly created policies, or application or enforcement of an existing policy in a new way. [Citations.] (pp. 10-11.) more or view all topics or full text.
06/10/20
2731M City of Culver City
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text.
06/10/20
2731M City of Culver City
400.1000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
The Board found that the employer unlawfully interfered with employees’ rights. To prove employer interference with protected rights, a charging party need only show that the employer has engaged in conduct that tends to or does result in at least slight harm to statutory rights. [Citation.] By communicating directly with unit employees on matters subject to bargaining before the tentative agreement was finalized, the employer interfered with the rights of unit employees to be fully represented by the union. (p. 23.) more or view all topics or full text.
06/10/20
2721M County of San Diego
1107.6000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
In resolving an appeal of a dismissal, PERB reviews the Office of General Counsel’s decision de novo. (Lake Elsinore Unified School District (2018) PERB Decision No. 2548, p. 6, fn. 5 (Lake Elsinore); City of San Jose (2013) PERB Decision No. 2341-M, p. 47.) When the sufficiency of a charge turns on interpreting a statute, contract, or employer rule or policy, the Board must accept the plain meaning of the language at issue if it is “clear and unambiguous on its face.” (County of Monterey (2018) PERB Decision No. 2579-M, p. 8.) If the language is ambiguous, “the parties must be afforded the opportunity to offer evidence in support of their respective interpretations at a formal hearing.” (Ibid.) At the charge investigation stage, “the appropriate question is not which of two competing interpretations . . . is the more plausible, but whether the language in dispute is reasonably susceptible to the charging party’s interpretation and whether that interpretation supports a viable, i.e., non-frivolous, theory of liability under the applicable PERB-administered statute.” (Ibid.) more or view all topics or full text.
05/22/20
2721M County of San Diego
1101.4000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Continuing Violation
The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) more or view all topics or full text.
05/22/20
2721M County of San Diego
1101.4000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Continuing Violation
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. In unilateral change charges, the new wrongful act doctrine can apply if there are sufficient facts to support the exception, but the continuing violation doctrine does not apply. (See, e.g., City of Livermore (2014) PERB Decision No. 2396-M, p. 6 [“Under the applicable legal standard in unilateral change cases, the statute of limitations begins to run on the date that the charging party has actual or constructive notice of the respondent’s clear intent to implement a unilateral change in policy, provided that nothing subsequent to that date evinces a wavering of that intent.”].) more or view all topics or full text.
05/22/20
2721M County of San Diego
1101.3000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. more or view all topics or full text.
05/22/20
2721M County of San Diego
1101.1000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
The Board clarified the continuing violation exception and the new wrongful act exception as those exceptions pertain to challenges to employer rules or policies. The continuing violation doctrine applies if a charging party alleges that a respondent’s rule or policy on its face interferes with protected rights or discriminates against protected activity, and the policy was in effect during the six months prior to the filing of the charge. In such cases, “it is not the ‘act’ of adopting the policy, but its ‘existence’ continuing to the time of the hearing that constitutes the offending conduct.” (City & County of San Francisco (2017) PERB Decision No. 2536-M, p. 8.) Thus, for the charge to be timely, the employer need not have applied the rule or policy to the charging party during the limitations period. (Long Beach Unified School District (1987) PERB Decision No. 608, p. 12.) The new wrongful act doctrine is a separate exception. It applies if the charging party alleges that within the limitations period the respondent committed a new wrongful act that goes beyond merely reiterating a prior policy. (City & County of San Francisco, supra, PERB Decision No. 2536-M, p. 15.) Normally, a charging party need not rely on the new wrongful act exception when it challenges a rule or policy based on an interference or discrimination theory, as the continuing violation doctrine usually applies in such cases. For claims based upon a unilateral change theory, in contrast, the new wrongful act doctrine tends to have more salience. more or view all topics or full text.
05/22/20
2721M County of San Diego
1101.1000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
In San Dieguito Union High School District (1982) PERB Decision No. 194 (San Dieguito), the Board “articulated three distinct exceptions to the six-month rule: ‘the charge may still be considered to be timely filed if the alleged violation is a continuing one, if the violation has been revived by subsequent unlawful conduct within the six-month period, or if the limitation period was tolled.’” (City & County of San Francisco (2017) PERB Decision No. 2536, p. 15, fn. 14, quoting San Dieguito, supra, PERB Decision No. 194, p. 5.) In decisions such as San Dieguito, supra, PERB Decision No. 194, p. 5, and City & County of San Francisco, supra, PERB Decision No. 2536, p. 15, fn. 14, the Board held that the continuing violation doctrine and the new wrongful act doctrine are separate exceptions to the statute of limitations. more or view all topics or full text.
05/22/20
2715M Eastern Municipal Water District
1107.6000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
When resolving exceptions to a proposed decision, the Board applies a de novo standard of review. Under this standard, PERB reviews the entire record and is free to make different factual findings and reach different legal conclusions than those in the proposed decision. The Board may affirm, modify, or reverse the proposed decision, order the record re-opened for the taking of further evidence, or “take such other actions as it considers proper.” (PERB Reg. 32320, subd. (a)(2); Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) more or view all topics or full text.
05/13/20
2715M Eastern Municipal Water District
1107.3000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Remand for Further Hearing; Remand to General Counsel
The Board found the proposed decision erred by (1) granting partial summary judgment to charging party despite the presence of material disputed facts; and (2) failing to apply the proper lenient amendment standard to the employer’s motion to amend its answer, and instead finding the equivalent of a waiver or technical default. The Board reversed the partial grant of summary judgment and remanded to the Division of Administrative Law to allow the District to amend its answer and then to resolve the merits of the parties’ claims and defenses based upon a full evidentiary record. more or view all topics or full text.
05/13/20