Thursday, November 11, 2010

PERB: Minimum Job Requirements Not Within Scope of Bargaining

City of Alhambra (2010) PERB Decision No. 2139-M (Issued on 10/26/10)


The City of Alhambra (City) operates under a merit system that requires competitive employment examinations. The City’s municipal code requires that any classification plan be adopted by the City Council. Under the City’s local employer-employee relations rules, the City retains the right to “establish and determine job classifications.”

In 2005, the City proposed and the City Council approved changes to the class specification for Fire Captain. Previously, the job classification for Fire Captain required both an Alhambra Fire Department Fire Engineer certification and Driver 1A and 1B certification for current fire engineers employed by the City. The change in 2005 made the requirement an Alhambra Fire Department Fire Engineer certification or Driver 1A and 1B certification for current fire engineers employed by the City. The City's goal was to expand the pool of potential applicants for Fire Captain.

The City did not notify the union of the proposed changes or seek to negotiate them. Instead, the City believed that pursuant to its local rules, it retained the management right to make changes to job classifications. The ALJ found that the change to the Fire Captain job classification involved a matter within the scope of bargaining. Because the City did not give the union notice of the change and an opportunity to bargain, the ALJ found that the City committed an unlawful unilateral change.

On exceptions filed by both parties, the Board reversed. The issue before the Board was whether the change fell within the scope of bargaining. In deciding this issue, the Board relied upon the three-part test set forth in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 (“Claremont”). Under Claremont, the first inquiry is whether the management action has a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees. If so, the second inquiry is whether the significant and adverse effect arises from the implementation of a fundamental managerial or policy decision. If not, then the meet-and-confer requirement applies. However, if both the first two factors are present, the third inquiry is whether the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.

Significant and Adverse Effect

Addressing the first inquiry, the Board held that the change did not adversely impact wages or hours. The Board noted that the City’s change actually expanded the pool of potential applicants. In reaching this holding, the Board distinguished several prior precedential decisions finding changes to job classifications within scope. The Board held that those prior decisions must be read in light of Claremont. Under Claremont, the Board held that changes to the minimum qualifications for a job may be within the scope of bargaining if the change has a significant adverse impact. Here, the Board found that it did not.

Fundamental Managerial or Policy Decision

Even though it answered the first question in the negative, the Board considered the other two factors. The Board held that the “establishment of minimum [job] qualifications” was a fundamental managerial or policy decision under the MMBA. In reaching this decision, the Board drew a distinction between “promotional procedures, which are bargainable, and job qualifications, which are not.” The Board also considered that the position of Fire Captain affects the health and safety services provided by the City to the public.

Balancing Test

Finally, the Board held that even if the first two factors were present, it would find that the employer’s need for unencumbered decision making in this situation outweighs the benefit of bargaining over the decision. Specifically, the Board held that:

“This standard is not met in this case, as there is no evidence that bargaining over the expansion of the candidate pool for fire captains would outweigh the City’s need to determine the qualifications necessary to provide public fire protection services to its citizens. Accordingly, the charge and complaint must be dismissed.”

  1. Prior to this decision, if you had asked me whether changing the minimum qualifications of an existing job classification in a bargaining unit was within the scope of bargaining, I would have answered yes (with rare exceptions; e.g. state mandated licensing requirements, etc.) Certainly, I would have advised notifying the union of any changes in case there were any negotiable effects. So at first blush, this decision seems to be a significant departure from existing PERB precedent. While the Board went to great lengths to argue that there was no precedent on the specific subject of “minimum qualifications” versus promotional procedures, the rationale underlying PERB’s existing decisions certainly pointed towards a change in minimum qualifications being negotiable. So I do believe this decision represents a departure; if not in actual precedential authority, then certainly in direction by the Board
  2. That said, when you read the decision carefully it’s potentially much more narrow than at first blush. First, on its face it only applies to minimum qualifications versus promotional procedures. Obviously, there is a gray area between these two subjects and what happens in that gray area will have to be litigated in the future.
  3. However, even though the holding is narrow, I believe this decision does represent a significant change in Board “direction”. The way the Board analyzed the second and third factors can be applied to many other areas that many people currently consider within the scope of bargaining. For example, grounds for discipline, including certain work rules, and other aspects of the disciplinary process would arguably satisfy the second and third Claremont factors under the Board’s analysis. In contrast, this decision suggests that the disciplinary process itself would be within the scope of bargaining.
  4. While this decision may represent a change in Board “direction,” how long it will last remains to be seen. This decision was issued only a week before the November election. There are currently three Board members and one Board member’s term expires at the end of 2010. Therefore Governor Brown can appoint three Board members—a majority—immediately upon taking office.  So while this decision may represent a change in direction, employers would be wise to consider that it's coming at the end of an administration and that another "change" could be on its way. 

Thursday, November 4, 2010

Plan to Attend CPER Seminar on MMBA Local Rules

Do your local rules address unit modification petitions and other second generation representation issues?  Do they still require a majority of the unit vote for an amendment of certification?  Does amendment of outdated rules seem daunting because so many parties will bargain  over any changes?  Then you should make plans to attend, "Your Local Rules – Is It Time for a Makeover?" sponsored by the California Public Employee Relations Program (CPER).

The seminar is being held on December 3, 2010 in Oakland, California.  (Click here for the brochure).  Registration is only $90 ($110 if requesting MCLE credit).  It should be a great program so sign up early!

Tuesday, November 2, 2010

PERB: Unfair Practice Charge Does Not Block Election Certification

Salinas Valley Memorial Healthcare System (2010) PERB Decision No. A387-M (Issued on 10/25/10)

This case arose from a decertification election at the Salinas Valley Memorial Healthcare System (SVMHS). The National Union of Healthcare Workers (NUHW) sought to decertify SEIU-United Healthcare Workers West Local 2005 as the exclusive representative and to establish itself as the new exclusive representative. NUHW won the election. SEIU then filed objections to the result of the decertification election. The objections alleged that the SVMHS interfered with employees’ free choice in the election by: (1) changing its access rules for non-employee SEIU representatives; (2) allowing a management employee’s photograph to be used on a flyer supporting the NUHW; and (3) discriminating against, retaliating against, and/or interfering with the rights of several employees who supported SEIU. SEIU also filed an unfair practice charge against SVMHS based on the same allegations. The Regional Director held that SEIU failed to establish that SVMHS’s conduct interfered with employees’ free choice and therefore dismissed SEIU's objections. The Board affirmed.

In its appeal, SEIU argued that its objections to the election should not have been dismissed—and the election should not have been certified—until its unfair practice charge based on the same facts was decided. The Board has never addressed this issue before; namely, whether findings and conclusions in an election objection decision have any preclusive effect on identical allegations raised in an unfair practice charge. Citing NLRB precedent, PERB held that findings and conclusions in an election objection decision do not have preclusive effect in a related unfair practice charge.  PERB emphasized that there are “significant differences between representation and unfair practice proceedings … PERB may refuse to set aside an election even when the employer's conduct constituted an unfair practice if the conduct did not actually affect, or have a natural or probable effect on, employee free choice ... On the other hand, the employer's conduct need not constitute an unfair practice for PERB to set aside an election.”

Here, PERB noted that the Regional Director did not address whether SVMHS' alleged conduct constituted an unfair practice under applicable PERB standards. Rather, the Regional Director only determined that none of the alleged conduct actually influenced, or had the potential to influence, employee free choice in the decertification election. Therefore, PERB held that ruling on SEIU’s objections would not affect the subsequent unfair practice charge.


  1. PERB’s approach in separating the representation issues from the unfair practice issues makes sense and is practical. PERB has always prioritized representational issues, as it should. Delaying the certification of an election while an unfair practice charge is pending doesn’t make sense if the conduct has already been determined not to have influenced the election.
  2. Here, SEIU filed its unfair practice charge two (2) days before the ballots were counted. It is important to note that SEIU apparently did not request that its unfair practice charge be considered a “blocking charge” and that the election be stayed.  Like the NLRB, PERB does allow for “blocking charges” prior to an election. A party must ask that an unfair practice charge be treated as a blocking charge and the Regional Director makes a decision on whether the stay the election.  The test is whether the conduct "will so effect the election process as to prevent the employees from freely selecting their representatives." See Jefferson School District (1979) PERB Decision No. Ad-66.