PERB Upholds Employer Ability to Avoid Meet and Confer Obligations Over Minor And informal Policy Changes.

In SEIU Local 1021 v. County of San Joaquin, PERB found that in order to establish past practice, a party must show that both the Union and the Employer knew of an agreed to the practice. It is not enough to show that the practice went on without correction by management for several years.

In Local 1012, the SEIU alleged that the County had unilaterally eliminated a past practice of allowing District Attorney’s Office employees to have flexible schedules to help employees with childcare responsibilities. PERB noted that while employees had been permitted to come in late and make up time during lunch, management did not have any knowledge of the practice and never authorized it. A senior clerical worker (non-management) had apparently authorized the practice without expressly discussing it with management first. While management may have become aware of the practice, they never authorized it and thus it could not be considered a past practice. This allowed management to lawfully eliminate the flexible scheduling.

This case sets a troubling precedent that allows management to get away with eliminating or changing workplace policies informally implemented by managers by allowing them to claim that they never explicitly authorized it, even if they were aware of it. This creates a backdoor way for less scrupulous employers to implement unpopular policies or eliminate employee-friendly policies by doing so on an informal basis and thus, avoiding the duty to bargain over such changes.

In Montebello City Employees Assn. v. City of Montebello, PERB ruled that a union failed to prove an unfair labor practice where a unilateral change of policy changing the job duties of two employees.  PERB also clarified that the proper test for an alleged unilateral change of policy is a five element test for per se violations of the duty to bargain, not a totality of the circumstances test.

The Union brought an unfair practice charge against the city alleging that they unilaterally changed the duties of clerical assistants effectively requiring that they do additional work without a change in classification or pay. PERB found that the change was at most an isolated departure from the status quo with no generalized effect or continuing impact on the terms and conditions of employment. Additionally, the city later stripped the affected employees of the extra duties when it could not get a reclassification approved for budgetary reasons. Thus there was no continuing impact on the terms and conditions of employment except for one or two isolated cases where the employees still had increased duties.

PERB Rules County Rushed to Declare Impasse

In SEIU Local 721 v. County of Riverside, the Public Employment Relations Board ("PERB") took a hard line against employers that rush to declare impasse.

SEIU and Riverside County started negotiations over a new MOU in late March 2009.  The existing MOU was set to expire on June 30, 2009.  The County sought significant economic concessions.  On June 22, the County presented SEIU with a complete proposed MOU. 

SEIU responded with various counteroffers.  However, the County abruptly ended negotiations and declared impasse.  The County provided several reasons for declaring impasse, including that it could not come up with a counterproposal on an issue regarding stewards' pay.  SEIU responded that the steward's pay issue was not a deal-breaker, and that it was willing to stay all night to complete negotiations.

The County met with SEIU on July 27, but it refused to accept any offers from SEIU.  The County informed SEIU it believed mediation and factfinding would be fruitless and that it would be imposing its LBFO on July 30.  However, the County also said it would be open to negotiations after July 30.

SEIU and the County met on August 10 and 19 and agreed on a new MOU.  The MOU had an effective date of August 1 and eliminated step increases.  But when SEIU learned in September that the County had refused to pay step increases to those employees entitled to them in July, it filed an unfair practice charge.

PERB ruled negotiations were not at a genuine impasse on July 27.  It found the County declared impasse solely because it wanted to take unilateral action.  PERB ordered the County to provide back pay.  PERB also ruled it did not have to apply the "totality of the circumstances" test for bad faith.  Instead, the County's unilateral change of wages (by elimination of the July step increases) was a per se violation.

This decision strengthens employee groups' bargaining position.  When challenging an agency's declaration of impasse, employee organizations do not have to show bad faith by the agency.  Instead, employee organizations only need to show the declaration of impasse was premature.