Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2820M	County of Santa Clara 1000.02069: SCOPE OF REPRESENTATION; Job Assignment Past PERB decisions have stated that if a new assignment is reasonably comprehended within employees’ existing assignments, the new assignment is not within the scope of representation. However, under the more modern formulation, the “reasonably comprehended” question is more integral to determining whether the employer changed the status quo than it is to deciding whether a specified topic is a mandatory or permissive subject of bargaining. In future unilateral change cases, PERB directed Board agents to recognize job duties and assignments as generally falling within the scope of representation and to apply the “reasonably comprehended” standard as part of determining whether an employer changed or deviated from the status quo. (pp. 6-7.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 602.03000: 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 Written Agreement or Policy There are three primary means of establishing that an employer changed or deviated from the status quo: (1) a deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) (p. 5.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 602.03000: 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 Written Agreement or Policy To apply the “reasonably comprehended” standard to determine whether an employer materially changed duties or assignments, PERB compares past duties or assignments to new duties or assignments, through the eyes of a reasonable employee. (p. 8.) Because there were one or more contested, outcome-determinative facts (or mixed questions of law and fact), PERB directed the Office of the General Counsel to issue a complaint alleging that the County violated the MMBA by materially changing Clinical Nurse job assignments without providing the nurses’ union notice and an opportunity to meet and confer. more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 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 There are three primary means of establishing that an employer changed or deviated from the status quo: (1) a deviation from a written agreement or written policy; (2) a change in established past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (p. 5.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Past PERB decisions have stated that if a new assignment is reasonably comprehended within employees’ existing assignments, the new assignment is not within the scope of representation. However, under the more modern formulation, the “reasonably comprehended” question is more integral to determining whether the employer changed the status quo than it is to deciding whether a specified topic is a mandatory or permissive subject of bargaining. In future unilateral change cases, PERB directed Board agents to recognize job duties and assignments as generally falling within the scope of representation and to apply the “reasonably comprehended” standard as part of determining whether an employer changed or deviated from the status quo. (pp. 6-7.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General PERB applies the “reasonably comprehended” standard if an employer adds a job duty or issues a new assignment, and PERB may apply other means to determine materiality in other circumstances. As PERB noted in Cerritos Community College District (2022) PERB Decision No. 2819, p. 30, such other contexts include, but are not limited to, changes that impact workload or performance standards (see, e.g., County of Kern (2018) PERB Decision No. 2615-M, p. 10 & adopting proposed decision at p. 11), or changes that transfer duties to other employees within the bargaining unit or outside the unit (see, e.g., Desert Sands Unified School District (2001) PERB Decision No. 1468, pp. 3-4). (p. 6, fn. 4.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 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 changes employee assignments or duties without providing the exclusive representative union with notice and an opportunity to meet and confer, outside of any contractual right it may have, there are several means by which a union can establish a unilateral change. (See Cerritos Community College District (2022) PERB Decision No. 2819, p. 30.) Where nurses’ union alleged county began assigning clinical nurses to work in central monitor room and watch multiple telemetry monitors for entire shift, the critical question was whether the County issued nurses new assignments that were not “reasonably comprehended” within their existing assignment or set of duties. “Reasonably comprehended” is an objective standard that refers to what a reasonable employee would comprehend based on all relevant circumstances, including, but not limited to, past practice, training, and job descriptions. (Rio Hondo Community College District (1982) PERB Decision No. 279, pp. 17-18 [while catchall language in job description is insufficient to overcome evidence of contrary past practice, PERB interprets job descriptions in the context of employees’ overall role].) For instance, the Board has found new duties were not reasonably comprehended within an existing assignment when they required employees to obtain additional credentialing. (Mt. San Antonio Community College District (1983) PERB Decision No. 297, p. 11.) (pp. 5-6.) more or view all topics or full text.	46	169	05/12/22
2820M	County of Santa Clara 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit must prove: (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. (pp. 4-5.) more or view all topics or full text.	46	169	05/12/22
2821M	County of Monterey 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” (p. 8, fn. 6.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) Where a union petitioning for unit modification establishes a community of interest between unrepresented employees and the existing unit, the classification’s history of unrepresented status bears little weight. (See San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 12, fn. 11; Regents of the University of California (2010) PERB Decision No. 2107-H, pp. 18-23; Hemet Unified School District (1990) PERB Decision No. 820.) Employee relations history is more important when employees have historically been in an established unit—such as when PERB considers a severance petition—because under those circumstances, maintaining continuity weighs against severance absent proof that collective negotiations are incapable of addressing the needs of a discrete minority within an existing unit. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 10; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The record did not show that collective negotiations were incapable of addressing the potential divergence of interests between per diem and regular registered nurses (RN) and nurse practitioners (NP) over issues such as scheduling, compensation, and job protections. (City of Pasadena (2021) PERB Decision No. 2788-M, pp. 10-12; Los Rios Community College District (2018) PERB Decision No. 2587, pp. 4-6.) (pp. 15-16.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) There is always variation between any two classifications in a bargaining unit, and such variation does not defeat community of interest if there are sufficient countervailing commonalities. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 30; San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, pp. 17-18.) Commonalities among critical employment characteristics between per diem and regular employee registered nurses and nurse practitioners outweighed differences by a wide margin. The sole characteristics distinguishing per diem and regular registered nurses (RN) and nurse practitioners (NP) related to scheduling, compensation, and job protections. Such typically bargainable distinctions do not overcome commonalities in characteristics that are less likely to be subject to bargaining, particularly where the per diem and regular classifications have the same education, skill, and licensure requirements, as well as the same duties. (pp. 12-15.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) County’s local rules specified which employment characteristics are most important in assessing community of interest: “duties, qualifications, skills, and working conditions of employees.” In this respect, the County’s local rules track precedent by eschewing reliance on wages, benefits, just cause protection, and other employment terms typically established through bargaining and instead focusing on less changeable characteristics. (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 17, citing Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12 [community of interest determination should not turn on differences in wages, benefits, and other terms and conditions of employment that are primarily controlled by the employer and may be changed through collective bargaining].) (p. 12.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) The preference for broader units in the public sector does not warrant accreting a group of employees into a unit if the exclusive representative objects. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, p. 30, fn. 29 & p. 31, fn. 31; County of Santa Clara (2019) PERB Decision No. 2670-M, p. 31; Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 17.) (p. 12, fn. 9.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.07000: REPRESENTATION ISSUES; UNIT MODIFICATION; Accretion, Adding classification(s) to existing unit (PERB jurisdictions) County local rules tracked settled precedent by repeatedly referencing the need to determine the broadest feasible group based on community of interest, and to avoid fragmentation of units. (See, e.g., County of Santa Clara (2019) PERB Decision No. 2670-M, p. 19 [“[P]ublic sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) Because “[t]he foundation of public sector labor relations is to protect employees’ right to representation and to balance those rights with public employers’ interest in maintaining operational efficiency . . . [PERB] generally seek[s] to avoid the fragmentation of employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) (p. 11.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.06000: REPRESENTATION ISSUES; UNIT MODIFICATION; Unfair Practice and Unit Modification PERB determined that any lawful application of county’s local rules required county to place per diem registered nurses (RN) and nurse practitioners (NP) in same unit as regular RNs and NPs. (p. 10.) Placing just over 50 County per diem registered nurses and nurse practitioners in a newly formed unit all their own, rather than in an existing unit comprising over 500 County RNs and NPs who perform identical work at the same hospital, resulted in unnecessary fragmentation. (pp. 10-12.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1310.01000: REPRESENTATION ISSUES; UNIT MODIFICATION; In General County local rules tracked settled precedent by repeatedly referencing the need to determine the broadest feasible group based on community of interest, and to avoid fragmentation of units. (See, e.g., County of Santa Clara (2019) PERB Decision No. 2670-M, p. 19 [“[P]ublic sector bargaining units may require modification to avoid fragmentation and ensure operational efficiency”].) Because “[t]he foundation of public sector labor relations is to protect employees’ right to representation and to balance those rights with public employers’ interest in maintaining operational efficiency . . . [PERB] generally seek[s] to avoid the fragmentation of employee groups and proliferation of bargaining units.” (Id. at p. 27 & fn. 25; Regents of the University of California (2017) PERB Order No. Ad-453-H, pp. 23-24.) (p. 11.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1309.03000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Community of Interest There is always variation between any two classifications in a bargaining unit, and such variation does not defeat community of interest if there are sufficient countervailing commonalities. (County of Santa Clara (2019) PERB Decision No. 2670-M, p. 30; San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, pp. 17-18.) Commonalities among critical employment characteristics between per diem and regular employee registered nurses and nurse practitioners outweighed differences by a wide margin. The sole characteristics distinguishing per diem and regular registered nurses (RN) and nurse practitioners (NP) related to scheduling, compensation, and job protections. Such typically bargainable distinctions do not overcome commonalities in characteristics that are less likely to be subject to bargaining, particularly where the per diem and regular classifications have the same education, skill, and licensure requirements, as well as the same duties. (pp. 12-15.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1309.03000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); Community of Interest County’s local rules specified which employment characteristics are most important in assessing community of interest: “duties, qualifications, skills, and working conditions of employees.” In this respect, the County’s local rules track precedent by eschewing reliance on wages, benefits, just cause protection, and other employment terms typically established through bargaining and instead focusing on less changeable characteristics. (San Joaquin Regional Transit District (2019) PERB Decision No. 2650-P, p. 17, citing Santa Clara County Office of Education (1990) PERB Decision No. 839, p. 2 and adopting proposed decision at p. 12 [community of interest determination should not turn on differences in wages, benefits, and other terms and conditions of employment that are primarily controlled by the employer and may be changed through collective bargaining].) (p. 12.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit PERB determined that any lawful application of county’s local rules required county to place per diem registered nurses (RN) and nurse practitioners (NP) in same unit as regular RNs and NPs. (p. 10.) Placing just over 50 County per diem registered nurses and nurse practitioners in a newly formed unit all their own, rather than in an existing unit comprising over 500 County RNs and NPs who perform identical work at the same hospital, resulted in unnecessary fragmentation. (pp. 10-12.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” (p. 8, fn. 6.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Because PERB found that reasonable minds could not differ over the appropriateness of adding per diem Registered Nurses (RN) and Nurse Practitioners (NP) to the existing unit of regular employee RNs and NPs (Santa Clara Valley Water District (2017) PERB Decision No. 2531-M, p. 11), PERB did not need to reach union’s alternative argument that the County should have granted union a hearing on its appeal. (p. 21, fn. 14.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General In reviewing an MMBA employer’s unit determination under its local rules, PERB normally applies a rebuttable presumption that the determination is reasonable. (Salinas Valley Memorial Hospital District (2020) PERB Decision No. 2689-M, pp. 21-22.) But when the employer “simply state[s] the standard that applies and then provide[s] a conclusion without also including the analytical process in its decision,” the presumption of reasonableness falls away. (City of Livermore (2017) PERB Decision No. 2525-M, adopting proposed decision at p. 48.) While PERB may consider evidence presented at the hearing about the employer’s reasoning for its decision, PERB need not accept post-hoc rationalizations offered to cure defects in the determination. (Id. at pp. 10-11 & adopting proposed decision at p. 48.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General When challenging an MMBA employer’s unit determination under its local rules, the challenging union has the burden of demonstrating the decision was not reasonable. (City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) If reasonable minds could differ over whether the determination comports with the local rules and the MMBA, PERB should not substitute its judgment for that of the employer. PERB finds no unfair practice where the employer reasonably interprets its own rules in a manner that effectuates the MMBA’s purposes. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10, citing City of Madera (2016) PERB Decision No. 2506-M, p. 5.) The inverse is true if the employer acted inconsistently with a reasonable interpretation of the rule. (City of Long Beach (2021) PERB Decision No. 2771-M, p. 10.) (pp. 9-10.) more or view all topics or full text.	47	9	06/01/22
2821M	County of Monterey 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; 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, determining appropriate bargaining units. (MMBA, § 3507, subds. (a)(3), (a)(4); City of Pasadena (2021) PERB Decision No. 2788-M, p. 8.) (p. 9.) more or view all topics or full text.	47	9	06/01/22