Further thoughts on City and County of San Francisco (PERB Dec. No. 1890M):
The Board held that when the reasonableness of a local rule is at issue, the burden to demonstrate that the rule is "unreasonable" falls on the party attacking the rule. On this point, the Board held that:
"Where a legislative action by a local governmental agency is attacked as unreasonable, the burden of proof is on the attacking party. Such regulations are presumed to be reasonable in the absence of proof to the contrary."
How strong that presumption is remains to be seen. As mentioned below, there are many situations where local rules differ from the "default" local rules provided by PERB regulations. For example, PERB regulations generally provide a 3-year contract bar. Many local agencies impose contract bars greater than 3 years. Presumably, PERB could not hold that any local rule providing a contract bar greater than 3 years is unreasonable. However, how much deference will PERB provide? Hopefully, this decision indicates that PERB will provide great deference to local agencies.
Tuesday, April 3, 2007
Monday, April 2, 2007
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 However, those cases all involved situations where the employer promptly and completely rescinded the alleged unilateral changes.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.
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.
No Unilateral Change
County of Siskiyou (PERB Dec. No. 1894M) (Issued 3/27/07)
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
The issue in this case was whether the contract required that “extra help” employees be laid off prior to any permanent employees. The Board reached the same conclusion as the ALJ - to dismiss the complaint - but reached its decision based on a different rationale. The ALJ apparently had held that the contract language was ambiguous, and thus, found that the union had failed to meet its burden of proof to establish a ‘change.’
The Board in its analysis attempted to harmonize the contract language with the County Code and the County’s personnel policies. Based on its analysis, the Board found no requirement that “extra help” be laid off first, and thus, held that there was no unilateral change by the employer.
DFR Charge Dismissed
SEIU Local 790 (Chan) (PERB Dec. No. 1892M) (Issued 3/15/07)
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
Employee alleged that union violated its duty of fair representation by failing to seek arbitration of employee’s termination. Applying well-settled law, Board dismissed the charge for failure to state a prima facie case.
What is a Reasonable Local Rule?
City and County of San Francisco (PERB Dec. No. 1890M) (Issued 3/12/07)
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
This is one of the first cases addressing whether a local rule is “reasonable” under the MMBA. The Board discussed the “reasonableness” standard in broad terms; finding that a local agency has discretion in adopting local rules as long as they do not “frustrate the declared policies and purposes of the MMBA.” In this case, the Board held that the impasse procedure set forth in the City Charter was not unreasonable on its face.
This case is helpful in setting forth the general legal standards for determining whether a local rule is reasonable. However, this case did not appear to be that difficult for the Board. As more of these cases reach the Board’s docket, look for more difficult issues to arise.
Wednesday, March 21, 2007
No Duty To Provide Information Absent Request
City of Los Altos (PERB Dec. No. 1891M) (Issued 3/14/07)
Union alleged that City had an affirmative obligation to notice the union whenever the City terminated a bargaining unit member, even where the employee had not requested union representation and where the union had not specifically requested the information. The Board held that under well-established precedent, there is no obligation to provide the union information absent a request. Since there was no request, the Board dismissed the charge.
The board also stated that even if the union had requested information about an employee termination, absent consent by the employee, compliance with such a request would have to take into consideration the employee’s privacy rights. This seems like a straight forward and common sense decision.
Union alleged that City had an affirmative obligation to notice the union whenever the City terminated a bargaining unit member, even where the employee had not requested union representation and where the union had not specifically requested the information. The Board held that under well-established precedent, there is no obligation to provide the union information absent a request. Since there was no request, the Board dismissed the charge.
The board also stated that even if the union had requested information about an employee termination, absent consent by the employee, compliance with such a request would have to take into consideration the employee’s privacy rights. This seems like a straight forward and common sense decision.
Wednesday, March 7, 2007
DFR Dismissal Adopted
California Faculty Association (Wunder) (PERB Dec. No. 1889H) (Issued 3/1/07)
Employee alleged that the union violated its duty of fair representation by failing to take her grievance to arbitration. This is one of the rarer instances where a complaint actually issues on a DFR charge. In the proposed decision, the ALJ applied well-settled standards and found that the union’s decision not to advance the grievance to arbitration was honest and reasonable.
Employee alleged that the union violated its duty of fair representation by failing to take her grievance to arbitration. This is one of the rarer instances where a complaint actually issues on a DFR charge. In the proposed decision, the ALJ applied well-settled standards and found that the union’s decision not to advance the grievance to arbitration was honest and reasonable.
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