CALPELRA Alert: PERB Clarifies Right To File UPC, Status Of Expired Contract Provision
Factual Background

The 2011-2013 MOU between County of Santa Clara and the Santa Clara County Correctional Peace Officers Association expired while the parties were negotiating a successor MOU. Shortly after the 2011-2013 MOU’s expired, the County refused to provide officers with reimbursement for course work because the tuition reimbursement (Section 20 of the MOU) had expired by its express contractual terms, and because the clear and unambiguous language of the contract prevailed over any practice of providing reimbursement without prior approval.
 
The union filed an unfair practice charge contending that the County had changed a mandatory subject of bargaining without providing notice and opportunity to complete the meet and confer process.  PERB’s Office of the General Counsel dismissed the union’s charge for failure to state a prima facie case.  On appeal, PERB reversed the General Counsel’s decision and ordered a complaint issued and scheduled an ALJ hearing.[1]
 
Jurisdiction Over Peace Officers

Before deciding the questions raised by the unfair practice charge, PERB addressed the question of whether PERB has jurisdiction over unfair practices filed on behalf of "peace officers," even though neither party raised the issue. The bargaining unit represented by the union included both non-peace office personnel and correctional personnel who qualified as peace officers under the Penal Code.  MMBA Section 3511 states:  "The changes made to Sections … [provisions of Government Code giving PERB jurisdiction over MMBA] …  shall not apply to persons who are peace officers as defined in Section 830.1 of the Penal Code."

PERB announced that it would assert jurisdiction over such mixed bargaining units with a portion of peace officers:  “Although MMBA section 3511 excludes PERB from hearing charges filed by 'persons' who are peace officers, it does not prohibit the agency from hearing charges brought by employee organizations. …  By issuance of this decision, we make explicit PERB's authority to hear charges, such as the present one, that are brought by employee organizations, including employee organizations representing or seeking to represent units including persons who are peace officers.”

PERB then reasoned:  â€œIf the Legislature had intended to prohibit PERB from investigating and remedying an unfair practice charge brought by an employee organization, it would have stated that PERB has no authority over 'persons who are peace officers' nor over entities who represent or seek to represent peace officers.”

Status Of Expired Contract Provision

This case involves the well-established rule that an employer must continue the status quo on mandatory subjects of bargaining until completing the negotiations process, even if the embodiment of those terms and conditions were contained in an expired contract. One exception to this general rule, however, is that a mandatory subject contained in an MOU need no longer be maintained after the MOU’s expiration if the separate contract provision itself contains specific termination language.

The sole substantive question before PERB was whether the union’s facts, as alleged, were sufficient to issue a complaint and proceed to a hearing on whether the County actually changed the tuition reimbursement policy and practice.

The General Counsel’s view was twofold:
  1. Section 20 of the MOU was clear and unambiguous regarding its specific termination. Section 20 of the expired MOU provides a tuition reimbursement fund for unit employees, consisting of $15,000 per year; the unused portions of the fund "rollover into the next fiscal year," and "will accumulate for the term of the [MOU] and will revert to the [C]ounty thereafter." (Emphasis added.) The County argued and the General Counsel agreed that this specific section contemplated the termination of the program upon the expiration of the MOU.
     
  2. Even assuming that MOU Section 20 defines a continuing status quo, Section 20 also provides that unit employees are eligible for reimbursement if, among other things, the application for reimbursement was filed "prior to the commencement of the course," and "[t]here are sufficient funds available in the program."  Because the requests for reimbursement did not have prior approval they could be denied. The General Counsel concluded that the clear language of the contract defeats any union claims that a contrary practice existed providing reimbursement without prior approval.
Contrary to the Office of the General Counsel, on appeal PERB determined that Section 20 could be subject to different interpretations and the union should be allowed to prove their perspective in a hearing.  Specifically, PERB determined:
  • “[W]e do not interpret the reversion language of Section 20 to mean that no funds were available for tuition reimbursement at the end of the contract term … [Instead] there is $15,000 available in the tuition reimbursement fund each year… [U]nused monies may revert to the County at the end of the contract term, but that does not mean that no monies exist in the fund on a year to year basis from which to pay bargaining unit members. The MOU contemplates that every fiscal year there will be $15,000 to draw from.” Thus, according to PERB, maintaining the status quo included an annual $15,000 contribution from the County.
     
  • The language regarding pre-approval is subject to different interpretations because the provisions regarding “application” are separate from the provisions regarding “reimbursement.” Because of this possible ambiguity, the alleged past practice of providing reimbursement without prior approval is not trumped, as argued by the General Counsel. Instead the prior practice can be used to interpret the language regarding tuition reimbursement.
Practitioner Tips
  • MMBA practitioners should be aware that even though MMBA Section 3511 prohibits PERB’s jurisdiction over “peace officers as defined in Section 830.1 of the Penal Code," PERB will process unfair practice charges filed by unions representing bargaining units comprised, in part, of peace officers. What remains to be seen is whether PERB will extend this concept to include an unfair practice charge filed by a union representing a bargaining unit comprised solely of peace officers.
     
  • On one hand, when an MOU/CBA expires, it is no longer enforceable as a contract. But on the other hand, most of the terms and conditions contained in an MOU/CBA represent the status quo for mandatory subjects of bargaining, and as such the status quo must be maintained unchanged until the bargaining process has been completed. There are two major exceptions to this general rule:
     
    1. Certain MOU/CBA provisions automatically expire at the end of the contract, including any agreement to arbitrate grievances, non-statutory agency fee, any waivers of the right to bargain, and the actual term of the agreement. These provisions do not define the status quo and thus do not continue.
       
    2. MOU/CBA provisions that have a specific internal expiration provisions, in addition to the general expiration clause, do not continue as part of the status quo.
       
  • When the Office of the General Counsel refuses to allow an unfair practice charge proceed to a hearing – by finding a failure to state a prima facie case – PERB is confronted with the decision of letting the charge die or allowing it to proceed to a hearing. The current PERB appears to closely adhere to the well-established principle in screening cases for hearing – that PERB “assumes the truth of the charging party's factual allegations.”[2]  And “where the charging party offers conflicting versions of the facts, the Board accepts that version most favorable to the charging party's case and disregards others.”[3]
[1] Santa Clara County v. Santa Clara County Correctional Peace Officers Association (2015) PERB Decision No. 2431-M.
[2] San Juan Unified School District (1977) EERB Decision No. 12, p. 5; Golden Plains Unified School District (2002) PERB Decision No. 1489, p. 6.
[3] California School Employees Association & Its Chapter 244 (2004) PERB Decision No. 1606, pp. 3-4.
 
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
2015 CALPELRA President:  Scott Chadwick, City of San Diego
Alert No. 15-19 Authors:  William F. Kay and M. Carol Stevens, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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