| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2881E | West Contra Costa 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 conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) Moreover, unratified CBA language cannot form the basis for asserting a management right, absent explicit agreement of the parties. (pp. 17-18.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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.) (p. 12.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Absent a specific agreement to the contrary, an unratified tentative agreement generally has no effect. (City of Culver City (2020) PERB Decision No. 2731-M, adopting proposed decision at p. 39.) The Board rejected the union’s argument that the District changed or deviated from the status quo by not following the seniority criteria for temporary employees set out in the parties’ tentative agreement because the record contained no evidence that the parties agreed to apply certain tentative agreements prior to overall ratification. (p. 10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo The record did not support the District’s claim it had a practice of assigning work opportunities at its discretion. But even if it did, such a history would not privilege the District to continue making such discretionary decisions without bargaining. (County of Kern (2018) PERB Decision No. 2615-M, pp. 6-9 [employer’s changes are consistent with a dynamic status quo only if the changes follow a nondiscretionary pattern of change].) (p. 12.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception 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.) The Board found that principle especially significant where the District first deviated from its past practice in Spring 2020, when the pandemic privileged it to do so without reaching an impasse or agreement, provided that the District bargained in good faith as practicable. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 32-34.) Because an emergency is not a static event, changes taken during an emergency must be limited to the timeframe that the emergency requires. (Id. at p. 35.) Thus, as the pandemic began to ease and the District moved back toward in-person instruction, the District could have lawfully returned to its established, pre-COVID procedures for assigning and scheduling ESL courses, or it could have bargained with ASTU if it wished to change to a new system. (pp. 12-13.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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 There are three primary means of showing that a party changed or deviated from the status quo. (Oxnard Union High School District (2022) PERB Decision No. 2803 PERB Decision No. 2803, p. 31.) Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written 10 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. (Ibid.) (pp. 9-10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 602.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Impact and Extent New procedures for assigning classes impacted work opportunities for at least the fall 2021 semester and possibly later semesters or years as well, which is sufficient to satisfy generalized effect or continuing impact element. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 30-31; San Bernardino Community College District (2018) PERB Decision No. 2599, p. 8.) Moreover, the District further demonstrated a generalized effect or continuing impact by asserting a non-existent management right. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 8 [continuing impact shown if change either alters a term or condition of employment or involves employer assertion of non-existent right that could be relevant to future disputes].) (pp. 15-16.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change In Policy Given that the District unilaterally created a brand-new policy, union’s unilateral change claim does not necessarily turn on establishing a firm prior policy. (See, e.g., Regents of the University of California (2004) PERB Decision No. 1700-H, adopting proposed decision at pp. 61-62 [letter prohibiting demonstrations inside university’s central administration building constituted unilateral change, where previously employer had no such policy].) (p. 14.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change In Policy There are three primary means of showing that a party changed or deviated from the status quo. (Oxnard Union High School District (2022) PERB Decision No. 2803 PERB Decision No. 2803, p. 31.) Specifically, a charging party satisfies this element by showing any of the following: (1) deviation from a written 10 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. (Ibid.) (pp. 9-10.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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); Prior Notice and Opportunity to Bargain Even assuming for the sake of argument that the new assignment procedures were no more than effects of a decision involving a non-mandatory topic of bargaining, there is no tenable argument that the District 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.) Indeed, even if the first element were satisfied, the District did not show that it provided advance notice, much less with sufficient time to allow meaningful pre-implementation negotiations. The District therefore cannot establish the second and third Compton elements. (p. 17, fn. 12.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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); Prior Notice and Opportunity to Bargain Notice is inadequate when a union first learns of a decision or change as a fait accompli. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (p. 17.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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); Prior Notice and Opportunity to Bargain Board of Education meetings and associated public documents generally do not afford a union sufficient notice of a potential change, unless the employer 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. (Oakland Unified School District (2023) PERB Decision No. 2875, p. 21; 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. 16.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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 EERA’s requirement of good faith negotiations is a critical means of maintaining or restoring stable labor relations in a wide variety of circumstances. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 57.) District could have clarified how survey responses would be used to assign courses and avoided the overwhelming sense that the District had blindsided teachers by misusing their survey responses. (p. 11, fn. 9.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa 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 To establish a prima facie case that a respondent employer violated its decision bargaining obligation, an exclusive representative 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 employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.) (p. 9.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2881E | West Contra Costa Unified School District 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand After District contravened earlier promises regarding scheduling of English as Second Language teachers, it was too late for good faith negotiations over the scheduling process to occur, as demand to bargain would be futile. (Oakland Unified School District (2023) PERB Decision No. 2875, p. 9, fn. 6; County of Santa Clara (2013) PERB Decision No. 2321-M, p. 24 [“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].) (p. 7, fn. 7.) more or view all topics or full text. | 48 | 79 | 11/06/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General To remedy an effects bargaining obligation, PERB generally directs the offending employer to provide back pay from the first date that employees began to experience harm until the earliest of: (1) the date the parties reach an agreement, typically as part of complying with PERB’s effects bargaining order; (2) the date the parties reach a good faith final impasse, including exhaustion of any required or agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects negotiations in good faith. PERB ordered employer to reimburse extra costs incurred in material part because of unilateral change in work location, with make-whole relief retroactive to the first date of harm and continuing until the earliest of: (a) the date the parties reach an agreement on the effects of the work relocation; (b) the date the parties reach a good faith impasse as to such effects, including exhaustion in good faith any impasse resolution procedures that may be required or agreed upon; or (c) the date the union waives its right to bargain by failing to request negotiations, or fails to bargain in good faith. (p. 62.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1107.13000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative and Judicial Notice The parties introduced into evidence multiple web pages from Respondents’ various websites. To the extent the Board cited web pages the parties did not introduce, including more updated versions of the same web pages introduced into evidence, the Board took administrative notice of those web pages (State of California (California Correctional Health Care Services) (2022) PERB Decision No. 2823-S, p. 8, and the statements on which the Board relied are admissible admissions (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 23, fn. 11.) (pp. 8-9, fn. 8.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations While union’s unfair practice charge and post-hearing briefs argue that employees at the acquired clinics belong in the existing unit, OGC neither dismissed that allegation nor included it in the complaint. The union was therefore within its rights to move to amend the complaint to add such an allegation, but it did not do so. PERB expressed no opinion on this allegation, as it does not meet PERB’s standard for unalleged violations. (Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158, 192-193 [to pursue unalleged claim, charging party must show the claim falls within the limitations period and relates to the same course of conduct at issue in the complaint, and that respondent had adequate notice and opportunity to defend against the claim, including an opportunity to examine witnesses and present documents].) (p. 49, fn. 30.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1000.02164: SCOPE OF REPRESENTATION; Other Dress codes are a mandatory subject of bargaining. (p. 52.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1000.02163: SCOPE OF REPRESENTATION; Work Rules Dress codes are a mandatory subject of bargaining. (p. 52.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1000.02029: SCOPE OF REPRESENTATION; Disciplinary Action In Contra Costa Community College District (2019) PERB Decision No. 2652, the Board cited Total Security Management (2016) 364 NLRB 1532 (Total Security) with approval. In Total Security, the NLRB held that an employer has a duty to bargain with a union before unilaterally disciplining an employee, where the employer is imposing the discipline based on an exercise of discretion rather than pursuant to preexisting standards of conduct. (Total Security, supra, 364 NLRB at p. 1532.) Such an issue, the NLRB explained, typically arises after a union is first certified or recognized, but before a contract is in place. (Ibid.) The NLRB concluded that an employer must provide its employees’ bargaining representative notice and the opportunity to bargain before exercising its discretion to impose serious discipline on individual employees, absent an agreement with the union providing for a process, such as a grievance-arbitration system, to address such disputes. (Ibid.) The Board, however, declined to consider whether Total Security might apply in a successorship context where the record did not demonstrate whether the acquired clinics had any existing disciplinary policies or practices before two employees were terminated, and, if so, what they were. (pp. 53-54.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 1000.02002: SCOPE OF REPRESENTATION; Access - Subject of Bargaining Solicitation and distribution policies are a mandatory subject of bargaining. (Regents of the University of California (2012) PERB Decision No. 2300-H, pp. 20-27.) (p. 54.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 602.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Prior Notice and Opportunity to Bargain Employer violated its duty to bargain effects of decision to change work location when exclusive representative first learned of the unilateral change after its implementation. (See City of Sacramento (2013) PERB Decision No. 2351-M, pp. 39-40 [when the exclusive representative first learns of a unilateral change after its implementation, “the ‘notice’ is nothing more than ‘notice’ of a fait accompli and the question of waiver never arises”].) (p. 58.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 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 Even when an employer has no obligation to bargain over a decision, it must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 24-25.) An employer normally may not implement the decision while effects bargaining continues and instead must wait until the parties have reached agreement or impasse over the negotiable effects of the decision. (Id. at p. 25.) The employer violates its duty to bargain if it fails to provide adequate advance notice, and in such circumstances the union need not ask to bargain effects as a prerequisite to filing an unfair practice charge. (Ibid.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Ibid.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but rather must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (Ibid.) (pp. 57-58.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
| 2868M | * * * JUDICIAL APPEAL PENDING * * * El Camino Healthcare District, El Camino Hospital, and Silicon Valley Medical Development, LLC 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 An employer typically need not bargain over its decision to change employees’ reporting location but must provide adequate notice and opportunity to bargain over the decision’s effects. (Rio Hondo Community College District (2013) PERB Decision No. 2313, pp. 18-19.) (p. 57.) more or view all topics or full text. | 48 | 36 | 08/15/23 |
