CALPELRA Alert/PERBâ€™s Definition Of Status Quo As Established By Past Practice

CALPELRA Alert/PERB’s Definition Of Status Quo As Established By Past Practice

On appeal, PERB recently dismissed two unfair practice charges alleging public agencies unilaterally changed mandatory subjects of bargaining. Both cases turned on the nature of the status quo ante that the union claimed the employer changed before completing the bargaining process.

County Of San Joaquin
In the County of San Joaquin[1], PERB determined that the union failed to prove the existence of a past practice allowing employees to make up missed time during their lunch break when an employee arrived late to work because of child care responsibilities. The county did not deny that a first level supervisor in the District Attorney’s office allowed the practice with several employees, but instead argued successfully that the top managers of the DA’s office were unaware of the practice and did not authorize it.

PERB’s established precedent requires that for a past practice to constitute the status quo ante, the management decision-makers must know about and authorize the practice. Because the county proved that the DA's managers were unaware of the alleged practice of allowing late arrival of several female employees, the county was able to establish that no lawful past practice existed. For that reason, when management changed the female employees’ schedule without bargaining, the county did not engage in an unlawful unilateral change of a past practice.

City Of Montebello
In the City of Montebello[2], the union filed an unfair labor practice charge alleging the city changed a policy or past practice by requiring part-time unclassified Clerical Assistants to perform the duties of the Administrative Secretary classification. The union alleged the city made this change in policy without notice or opportunity to negotiate over the decision and/or its effects.

The ALJ dismissed the union’s charge for failure to prove all the elements of an unlawful unilateral change. PERB’s precedent requires that charging party must prove that: (1) The employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action had a generalized effect or continuing impact on terms and conditions of employment. According to the ALJ, the union failed to prove the fourth element – that the city’s assignment of duties had a continuing impact on terms and conditions. On appeal, PERB agreed with the ALJ.

PERB supported the ALJ’s finding, concluding that the union failed “to prove that the city’s conduct amounted to a change in policy with a generalized effect or continuing impact on terms and conditions of employment ….”

Practitioner Tips

Congratulations to the City of Montebello and San Joaquin County for a job well done. Both agencies applied the facts of their case to PERB’s established precedents and did not attempt to argue against or change those established PERB standards.

In the future, when PERB may be more receptive to changing the direction of the law, a public agency may again attempt to redefine PERB precedent. But for the foreseeable future[3], sensible employer practice under PERB’s jurisdiction requires detailed knowledge of PERB’s precedents, standards, and predilections.

Both of these cases involved the application of established legal standards on unlawful unilateral changes. One case involved whether a past practice existed, the other involved whether the employer actually changed a past practice. To some, these distinctions are minor. But to prevail before PERB, a practitioner must understand these critical distinctions.

Whenever a question arises concerning an alleged unilateral change, a practitioner must know the established legal factors that constitute a change in the status quo ante, and must analyze the practitioner’s specific problem based on PERB’s precedent. A practitioner with this knowledge and ability will be better able to avoid protracted legal disputes with the accompanying costs.

[1] City of Montebello (2016) PERB Decision No. 2491-M.
[2] County of San Joaquin (2016) PERB Decision No. 2490-M.
[3] Governor Brown will have at a minimum the next two appointments to the PERB Board, and the nature of those appointments are likely to mirror the Governor’s other PERB appointments.

2016 CALPELRA President: Lori Walsh, County of Placer

Alert No. 16-17 Author: William F. Kay, CALPELRA Labor Relations Academy Creator/Co-Director

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.

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.

unsubscribe from this list