| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2875E |
Oakland Unified School District
1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
Relying on analogous precedent holding that an employer must bargain over the amount of layoff notice employees receive, either in effects/implementation bargaining over a particular layoff decision or as a mandatory subject if the issue arises as a proposed new or changed policy of general application, the Board held that an employer must bargain over notice of a school closure, either in effects/implementation bargaining over a particular closure decision or as a mandatory subject if the issue arises as a proposed new or changed policy of general application. Thus, while an employer has no duty to adopt a prospective policy providing for minimum notice of closures, where it does so, that becomes the status quo, and a subsequent change normally requires decision bargaining, absent a valid business necessity defense. A policy on notice of closure is by no means permanent, however, as the employer need only bargain before changing it and retains “the ultimate power to refuse to agree on any particular issue.” (pp. 13-16.) As an alternate holding, the Board would reach the same conclusion (viz. that notice of closure is a mandatory bargaining subject, but notice is merely a bargainable implementation matter when it arises in the wake of a particular closure decision) under the general test set forth in Anaheim Union High School District (1981) PERB Decision No. 177, which states that a subject falls within the scope of representation if: (1) it is logically and reasonably related to hours, wages or an enumerated term and condition of employment, (2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not significantly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of its mission. (Id. at pp. 4-5; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 42.) (pp. 14-17.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 3, fn. 4.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To establish waiver of the right to bargain based on evidence other than an effective contract, it is necessary to demonstrate “conscious abandonment” of the right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 24 [internal quotation marks omitted; emphasis original].) However, a union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) (pp. 23-24.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
An unratified tentative agreement cannot waive the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) In other words, a party cannot delay ratifying a tentative agreement while seeking to benefit from any waivers contained therein; rather, part of the employer’s incentive to negotiate and finalize an agreement is to obtain the benefit of such waivers. (p. 23.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
606.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Time Limit on Negotiations
District’s change to the nine-month notice requirement of school closure decisions amounted to a unilateral change in the ground rules of bargaining over implementation, because ground rules include the amount of time allocated to bargaining and any deadline for meaningful discussion of alternatives. (pp. 19-20.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Unwritten Past Practice
A union can prove an employer changed or deviated from the status quo by showing: (1) deviation from a written agreement or written policy; (2) change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. The ALJ erred in evaluating whether teachers’ union established a change in the status quo by mistakenly relying on a standard for unwritten past practices, when the resolution requiring the District to provide nine-months’ notice of school closures reflected a written past practice. (pp. 12-13.) The “regular and consistent” or “historic and accepted” standards apply to unwritten past practices; they do not apply if there is a written document reflecting the past and/or new policy. (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-12 & fn. 6.) Thus, because the resolution establishing the nine-month notice period and the resolution changing it were written policies, the District changed a written policy, implemented a new written policy, and/or enforced an existing policy in a new way.) (pp. 12-13.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Adequate Prior Notice and Opportunity to Bargain
“In the face of unilateral implementation, a demand to bargain is futile,” because at that point there is no “level playing field” for fair negotiations to occur. (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24.) Because District unilaterally implemented its decision to disregard nine-month notice of proposed school closures, teachers’ union was not required to pursue negotiations after the fact to perfect its charge. (Ibid.) (p. 22.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Adequate Prior Notice and Opportunity to Bargain
A public meeting and its associated agenda or other documents generally do not provide sufficient notice to a union unless the public entity sends such a document to a union official, in a manner reasonably calculated to draw attention to a specific item and with adequate time for good faith negotiations to ensue. (Regents of the University of California (2004) PERB Decision No. 1689-H, adopting proposed decision at p. 45; Victor Valley Union High School District (1986) PERB Decision No. 565, pp. 5-6 & fn. 6.) (p. 21.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
If an employer wishes to change terms or conditions of employment for represented employees, it must provide the employees’ union with adequate notice and opportunity to bargain before making its decision, and the employer must then bargain in good faith upon request. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 13.) Even if the decision falls outside the scope of bargaining, the employer must provide adequate notice and opportunity to bargain in good faith over the implementation and effects of that decision, to the extent such implementation and effects are reasonably likely to impact represented employees. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265 & 276 (Richmond Fire Fighters); County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (p. 10.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
“Non-mandatory” describes subjects about which parties need not bargain, although they may choose to do so. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 19.) These topics can equally be referred to as being “permissive,” or as falling outside the “scope of bargaining” or “scope of representation.” (Ibid.) Although such topics are sometimes labeled “non-negotiable,” that is imprecise because it could also mean illegal bargaining subjects. (p. 3, fn. 4.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
The Board rejected the District’s argument that it complied with Compton Community College District (1989) PERB Decision No. 720 (Compton), which allows an employer to implement its decision before completing effects negotiations if it can establish each of three elements: (1) the implementation date was based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Id. at pp. 14-15.) Even assuming for the sake of argument that the District could satisfy the first element, the District did not show that it provided advance notice, much less with sufficient time to allow meaningful pre-implementation negotiations. The District therefore could not establish the second and third Compton elements. (pp. 20-21.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
In an effects bargaining case, the threshold issue is whether the employer provided adequate advance notice to allow meaningful negotiations before implementation. Absent adequate notice, a union has a valid unfair practice charge irrespective of whether it requests to bargain effects. (County of Ventura (2021) PERB Decision No. 2758-M, p. 42.) To trigger a union’s obligation to request bargaining, the employer must provide notice that “clearly” informs the union of the nature and scope of the change. (Id. at p. 43.) (p. 18.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
Effects bargaining violations are equally harmful as decision bargaining violations, as each disrupts and destabilizes employer-employee relations by creating an imbalance in the power between management and employee organizations. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 17.) In other words, the effects bargaining obligation is not an inferior duty. (Ibid.) (p. 11.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
The Board uses the word “effects” as shorthand for a broad category that comprises both the effects and implementation of a decision on a non-mandatory bargaining subject. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265, 276 (Richmond Fire Fighters); City of Glendale (2020) PERB Decision No. 2694-M, p. 54, fn. 12; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12; City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 40; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 25, fn. 16; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, pp. 6, 12, 14, 16-17, 20 & 22.) Negotiations over implementation typically include proposed alternatives. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 14, fn. 8 (Accelerated Schools); Oxnard Union High School District (2022) PERB Decision No. 2803, p. 52 (Oxnard).) For instance, even though an employer has no duty to bargain over a decision to lay off employees, the California Supreme Court has noted the scope of required effects bargaining includes “the timing of layoffs and the number and identity of the employees affected.” (Richmond Firefighters, supra, 51 Cal.4th at pp. 265, 276.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Accelerated Schools, supra, p. 14, fn. 8; Oxnard, supra, p. 52.) (pp. 10-11.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
A decision to close schools is a non-mandatory subject of bargaining. However, an employer must bargain over the amount of notice employees receive, either in effects and implementation bargaining over a particular school closure decision or as a mandatory subject if issue arises as a proposed new or changed policy of general application. (p. 3.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The Board overruled El Centro Elementary School District (2006) PERB Decision No. 1863 to the extent it held that a party cannot violate its duty to bargain in good faith when it repudiates a collectively bargained provision on a non-mandatory subject during the term of the agreement. more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
While a non-mandatory topic does not become mandatory merely because a bilateral agreement has a provision on that topic (Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M, p. 15), a mutually ratified agreement is binding, and repudiating such an agreement during its term can establish a per se violation or bad faith under the totality of the circumstances (EERA, § 3540.1, subd. (h); Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 46-47; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 42; County of Tulare (2015) PERB Decision No. 2414-M, pp. 29-30; Standard School District (2005) PERB Decision No. 1775, adopting proposed decision at p. 16) Accordingly, if a CBA provision covers a non-mandatory bargaining subject, the employer typically can decide to repudiate the provision only when the contract expires, whereas an employer can generally make such a decision at any time if the provision merely appears in a policy. (pp. 13-14.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2875E |
Oakland Unified School District
601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
If an employer wishes to change terms or conditions of employment for represented employees, it must provide the employees’ union with adequate notice and opportunity to bargain before making its decision, and the employer must then bargain in good faith upon request. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 13.) Even if the decision falls outside the scope of bargaining, the employer must provide adequate notice and opportunity to bargain in good faith over the implementation and effects of that decision, to the extent such implementation and effects are reasonably likely to impact represented employees. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 265 & 276; County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (p. 10.) more or view all topics or full text. |
48 | 64 | 10/16/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing
Given the sweeping nature of the County’s assertion of emergency powers to disregard the MMBA, the Board ordered that the physical posting should occur County-wide. (p. 38.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
A failure to comply with bargaining obligations during an emergency can warrant an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-69.) Because changes taken in reliance on an emergency defense must be limited to the timeframe that the emergency requires, the County is required to honor any request that one or both Unions may make to rescind, as to their respective bargaining units, emergency policies and assignments, or any combination thereof. (pp. 37-38.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General
A failure to comply with bargaining obligations during an emergency can warrant an order to bargain, make-whole relief, rescission of changes, a cease-and-desist order, and a notice-posting order, among other remedies. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-69.) (pp. 37-38.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1107.11000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Oral Argument
The Board typically denies requests for oral argument if there is an adequate record, the parties had a reasonable opportunity to present briefs, and the issues before the Board are sufficiently clear that oral argument is unnecessary. (City of Culver City (2020) PERB Decision No. 2731-M, p. 2, fn. 2.) The Board denied the request for oral argument based on these criteria and given that this decision follows several others in which the Board explained employers’ bargaining duties when the COVID-19 pandemic commenced. (p. 18, fn. 9.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board exercised its discretion not to resolve the Unions’ exception regarding direct dealing, as resolving that claim would not impact the Board’s order even were the Board to sustain the exception. (The Accelerated Schools (2023) PERB Decision No. 2855, p. 3.) (p. 3, fn. 3.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1000.02163: SCOPE OF REPRESENTATION; Work Rules
Workplace policies generally fall within the scope of representation if they materially alter employees’ disciplinary risks. (County of Sonoma (2023) PERB Decision No. 2772a-M, p. 24; Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 12; Trustees of the California State University (2003) PERB Decision No. 1507-H, adopting proposed decision at pp. 12-13; State of California (Water Resources Control Board) (1999) PERB Decision No. 1337-S, pp. 7-8.) This standard has an exception: a new policy does not trigger decision bargaining—even though it has disciplinary consequences—if those consequences are incidental to a decision unrelated to employee or labor relations. (San Bernardino Community College District (2018) PERB Decision No. 2599, pp. 8-12 (San Bernardino).) In San Bernardino, the employer placed GPS on a security officer’s truck, with the ultimate goal to improve public services by monitoring the officer. (Id. at pp. 10-11, fn. 8.) Because it sought to accomplish its purpose by changing an employment term or condition, the employer had a decision bargaining duty. (Ibid.) In contrast, where the purpose of a change is to safeguard the public as a general matter, not mediated mainly through altering an employment practice, then only effects bargaining is required. (Ibid.; County of Sonoma (2023) PERB Decision No. 2772a-M, pp. 24-25; County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 21-22.) (pp. 25-27.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
| 2876M |
* * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1000.02071: SCOPE OF REPRESENTATION; Job Duties
Material changes to job assignments and duties generally fall within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2820-M, p. 7; Cerritos Community College District (2022) PERB Decision No. 2819, pp. 30-31.) This standard includes an exception if external law leaves the employer no discretion, but if external law does not completely resolve the issue, the employer must bargain to the extent of its retained discretion. (County of Sacramento (2020) PERB Decision No. 2745-M, pp. 17-18.) (p. 25.) more or view all topics or full text. |
48 | 66 | 10/17/23 |
Notice Regarding Use of Generative Artificial Intelligence (“AI”) at PERB
For information about use of AI in PERB filings, see Atwater Elementary Teachers Association, CTA/NEA (Garcia) (2025) PERB Decision No. 2995-E and our FAQ.
