PERB Recognizes "De Minimus" Standard

Newark Unified School District (PERB Dec. No. 1895E) (Issued 03/27/07)

The case involved 3 consolidated unfair practice charges. All the charges stemmed from contract negotiations between the parties. The decision discusses various allegations of bad faith bargaining and unilateral change.

Of interest is the finding regarding the employer’s unilateral implementation of a pre-paid legal services program for its employees. Although finding that the employer did make a unilateral change within the scope of representation, the Board agreed with the ALJ that the change was “de minimus” because there was no “generalized effect.” This was because the district promptly froze enrollment in the program as soon as the current charge was filed.

A couple of past PERB decisions have characterized certain changes as “de minimus.” However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes. Since those cases involved conduct that was corrected, it may be a more appropriate to characterize them as “safe harbor” rather than “de minimus” situations.

Unlike those cases, here the employer allowed a few (5 to 6) employees to remain in the pre-paid legal program. Because the employer did not entirely completely rescind its actions, this is much more of a true “de minimus” situation than the previous PERB cases. In addition, the recent Claremont case from the California Supreme Court arguably is the first judicial case in California recognizing a “de minimus” standard under any of the public sector statutes. With Claremont and this Newark decision, employers hopefully will have more opportunity to argue that minor changes affecting few employees should not be considered unfair practices.