County of Santa Clara (PERB 2321M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS' ASSOCIATION,
Charging Party, 	Case No. SF-CE-804-M
V . 	PERB Decision No. 2321-M
COUNTY OF SANTA CLARA, 	July 25, 2013
Respondent.
Appearances: Mastagni, Holdstedt, Amick, Miller & Johnsen by Jeffrey R. A. Edwards,
Attorney, for Santa Clara County Correctional Peace Officers' Association; Office of the
County Counsel by Cheryl A. Stevens, Deputy County Counsel, for County of Santa Clara.
Before Martinez, Chair; Huguenin and Winslow, Members.
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the Santa Clara County Correctional Peace Officers'
Association (Association or CPOA) from the partial dismissal of an unfair practice charge filed
on January 12, 2011, against the County of Santa Clara (County) under the Meyers-Milias-
Brown Act (MMBA).
PRECEDENTIAL DECISION. PERB Regulation 32320(d) provides, in pertinent
part: "Effective July 1, 2013, a majority of the Board members issuing a decision or order
pursuant to an appeal filed under Section 32635 [Board Review of Dismissals] shall determine
whether the decision or order, or any part thereof, shall be designated as precedential." Having
met the following criteria enumerated in the regulation, "(3) Modifies, clarifies or explains
existing law or policy" and "(5) Addresses a legal or factual issue of continuing interest," the
decision herein is designated as precedential. (PERB Regs. are codified at Cal. Code Regs.,
tit. 8, $ 31001 et seq.)
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.
STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SANTA CLARA COUNTY CORRECTIONAL
PEACE OFFICERS' ASSOCIATION,
Charging Party,
v.
COUNTY OF SANTA CLARA,
Respondent.
Case No. SF-CE-804-M
PERB Decision No. 2321-M
July 25, 2013
Appearances: Mastagni, Holdstedt, Amick, Miller & Johnsen by Jeffrey R. A. Edwards,
Attorney, for Santa Clara County Correctional Peace Officers' Association; Office
of
the
County Counsel by Cheryl A. Stevens, Deputy County Counsel, for County
of
Santa Clara.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION'
HUGUENIN, Member: This case is before the Public Employment Relations Board
(PERB or Board) on an appeal by the Santa Clara County Correctional Peace Officers'
Association (Association or CPOA) from the partial dismissal
of
an unfair practice charge filed
on January 12, 2011, against the County
of
Santa Clara (County) under the Meyers-Milias-
Brown Act (MMBA). 2
1 PRECEDENTIAL DECISION. PERB Regulation 32320(d) provides, in pertinent
part: 	"Effective July 1, 2013, a majority
of
the Board members issuing a decision or order
pursuant to an appeal filed under Section 32635 [Board Review
of
Dismissals] shall determine
whether the decision or order, or any part thereof, shall be designated as precedential." Having
met the following criteria enumerated in the regulation, "(3) Modifies, clarifies or explains
existing law or policy" and "(5) Addresses a legal or factual issue
of
continuing interest," the
decision herein is designated as precedential. (PERB Regs. are codified at Cal. Code Regs.,
tit. 8, § 31001 et seq.)
2 The MMBA is codified at Government Code section 3500 et seq. Unless otherwise
noted, all statutory references are to the Government Code.

The Association alleged in its initial and amended charge, ten separate MMBA
violations. The PERB Office of the General Counsel issued a complaint with respect to several
of these allegations, and dismissed the remainder. The Association appeals the dismissal of
only three allegations, to wit, that the County: (1) unilaterally imposed background evaluation
requirements on currently-employed correctional officers; (2) unilaterally changed work shifts
for Lieutenants; and (3) unilaterally changed staffing levels at the Main Jail.'
We have reviewed the record and the dismissal in light of the Association's appeal, the
County's response thereto, and the relevant law. Based on this review, we shall reverse the
dismissal of two of the allegations, and will remand the matter for issuance of a complaint.
We turn first to the procedural history, then the Association's allegations and their
disposition by the Office of the General Counsel, and finally our discussion and disposition of
the legal issues.
PROCEDURAL HISTORY
On January 12, 2011, the Association filed a charge alleging that the County violated
the MMBA by making various unilateral changes; dealing directly with employees; failing to
provide requested information; denying CPOA's statutory right of access; discriminating
against CPOA's president because of his protected activity; making misrepresentations; and
proposing illegal subjects of bargaining.
On September 7, 2011, the Office of the General Counsel issued a letter warning the
Association that the charge failed to state a prima facie case with respect to all allegations
except allegations of unilateral change in work schedules for internal affairs sergeants and for
transportation unit employees.
" We consider only these issues in this appeal. (PERB Reg. 32635 [PERB Regs. are
codified at Cal. Code Regs., tit. 8, $ 31001 et seq.].)
2
The Association alleged in its initial and amended charge, ten separate MMBA
violations. The PERB Office
of
the General Counsel issued a complaint with respect to several
of
these allegations, and dismissed the remainder. The Association appeals the dismissal
of
only three allegations, to wit, that the County: (1) unilaterally imposed background evaluation
requirements on currently-employed correctional officers; (2) unilaterally changed work shifts
for Lieutenants; and (3) unilaterally changed staffing levels at the Main Jail.3
We have reviewed the record and the dismissal in light
of
the Association's appeal, the
County's response thereto, and the relevant law. Based on this review, we shall reverse the
dismissal
of
two
of
the allegations, and wiU remand the matter for issuance
of
a complaint.
We turn first to the procedural history, then the Association's allegations and their
disposition by the Office
of
the General Counsel, and finally our discussion and disposition
of
the legal issues.
PROCEDURAL HISTORY
On January 12, 2011, the Association filed a charge alleging that the County violated
the MMBA by making various unilateral changes; dealing directly with employees; failing to
provide requested information; denying CPOA's statutory right
of
access; discriminating
against CPO A's president because
of
his protected activity; making misrepresentations; and
proposing illegal subjects
of
bargaining.
On September 7, 2011, the Office
of
the General Counsel issued a letter warning the
Association that the charge failed to state a prima facie case with respect to all allegations
except allegations
of
unilateral change in work schedules for internal affairs sergeants and for
transportation unit employees.
3 We consider only these issues in this appeal. (PERB Reg. 32635 [PERB Regs. are
codified at Cal. Code Regs., tit. 8, § 31001 et seq.].)
2

On October 31, 2011, the Association filed an amended charge re-alleging with more
specificity its allegations and adding yet another alleged unilateral change.
On January 9, 2012, the Office of the General Counsel issued a complaint alleging that
the County had violated the MMBA by: (1) unilaterally changing work schedules of internal
affairs sergeants and Lieutenants; (2) failing to provide information concerning background
evaluations; and (3) discriminating against the Association president for engaging in protected
activity.
Also on January 9, 2012, the PERB Office of the General Counsel dismissed the charge
with respect to all allegations, including unilateral work schedule changes for Lieutenants,*
except those on which it issued a complaint as described above.
On February 21, 2012, the Association appealed the partial dismissal.
INTRODUCTION
Our discussion below addresses charge allegations. We presume that the facts alleged
are true. We do so because when assessing whether a charge dismissal is appropriate, we
*We address this discrepancy between the January 9, 2012 partial dismissal letter
issued by the Office of the General Counsel and the complaint issued by that office on the
same date. In investigating unfair practice charges, the Board has the power to "take any
action and make any determinations in respect of these charges or alleged violations as the
board deems necessary to effectuate the policies of the MMBA. (Gov. Code $$ 3509(a),
3541.3.) Thus, we have the power to resolve the apparent discrepancy between the partial
dismissal letter and the complaint issued in this case. We note from the case file that during
the hearing on the complaint, CPOA and the County determined not to litigate the claim
regarding the alleged unilateral changes of work schedules. The parties stipulated to striking
paragraphs 3 through 8 of the complaint corresponding to both the lieutenant and the internal
affairs sergeant work schedule changes. Accordingly, on the basis of the parties' own
disposition of the issue, we conclude that it would effectuate the policies of the MMBA for us
to treat this claim as withdrawn.
At this stage of the proceedings, we assume as we must that the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
(San Juan) [prior to January 1978, PERB was known as the Educational Employment
Relations Board or EERB.]; Trustees of the California State University (Sonoma) (2005)
PERB Decision No. 1755.)
3
On October 31, 2011, the Association filed an amended charge re-alleging with more
specificity its allegations and adding yet another alleged unilateral change.
On January 9, 2012, the Office of the General Counsel issued a complaint alleging that
the County had violated the MMBA by: (1) unilaterally changing work schedules of internal
affairs sergeants and Lieutenants; (2) failing to provide information concerning background
evaluations; and (3) discriminating against the Association president for engaging in protected
activity.
Also on January 9, 2012, the PERB Office of the General Counsel dismissed the charge
with respect to all allegations, including unilateral work schedule changes for Lieutenants,4
except those on which it issued a complaint as described above.
On February 21, 2012, the Association appealed the partial dismissal.
INTRODUCTION
Our discussion below addresses charge allegations. We presume that the facts alleged
are true. 5 We do so because when assessing whether a charge dismissal is appropriate, we
4 We address this discrepancy between the January 9, 2012 partial dismissal letter
issued by the Office of the General Counsel and the complaint issued by that office on the
same date. In investigating unfair practice charges, the Board has the power to "take any
action and make any determinations in respect of these charges or alleged violations as the
board deems necessary to effectuate the policies of' the MMBA. (Gov. Code§§ 3509(a),
3541.3.) Thus, we have the power to resolve the apparent discrepancy between the partial
dismissal letter and the complaint issued in this case. We note from the case file that during
the hearing on the complaint, CPOA and the County determined not to litigate the claim
regarding the alleged unilateral changes of work schedules. The parties stipulated to striking
paragraphs 3 through 8 of the complaint corresponding to both the lieutenant and the internal
affairs sergeant work schedule changes. Accordingly, on the basis of the parties' own
disposition of the issue, we conclude that it would effectuate the policies of the MMBA for us
to treat this claim as withdrawn.
5 At this stage of the proceedings, we assume as we must that the essential facts alleged
in the charge are true. (San Juan Unified School District (1977) EERB Decision No. 12
(San Juan) [prior to January 1978, PERB was known as the Educational Employment
Relations Board or EERB.]; Trustees of the California State University (Sonoma) (2005)
PERB Decision No. 1755.)
3

view a charging party's allegations in the light most favorable to the charging party. If this
matter goes to hearing, the Association will bear the significant burden of proving its
allegations through persuasive competent testimony and authenticated documentary evidence.
We organize our decision as follows: we first provide the relevant background facts,
then a summary of the Association's essential claims, the conclusions reached thereon by the
PERB Office of the General Counsel, the contentions of the parties on appeal, and finally our
own assessment and disposition of the legal issues.
CPOA ALLEGATIONS
Factual Background
PERB's Office of the General Counsel described the relevant background facts as
follows:
The County and CPOA are signatories to a Memorandum of
Understanding (MOU) in effect from June 2, 2008 to May 29,
2011. MOU section 26 is a zipper clause whereby the County
and CPOA agree there is no duty to bargain regarding proposed
changes to the MOU.
County Ordinances A-25-414 and A-25-415 provide that where
the parties reach an impasse in negotiations, they may take the
matter to mediation.
Prior to 1988, the County jail was operated by the County's
Sheriff's Office. Since 1988, the jail has been operated by the
County's Department of Corrections (DOC). Correction Officers
(COs) for the County's jails have historically been considered
employees of the DOC, not of the Sheriff's Office. Therefore,
these employees were not peace officers as defined by Penal
Code section 830.1.
In 1997, following litigation, the Sheriff's Office and the DOC
entered into an agreement whereby COs were transferred to the
Sheriff's Office, made 'deputies of the sheriff" and assigned to
the DOC. Subsequently, they were still DOC employees and not
peace officers as defined by Penal Code section 830.1.
In or around June 2010, the CPOA asked the County to support
its legislative proposal to amend Penal Code section 830.1(c).
4
view a charging party's allegations in the light most favorable to the charging party. If this
matter goes to hearing, the Association will bear the significant burden of proving its
allegations through persuasive competent testimony and authenticated documentary evidence.
We organize our decision as follows: we first provide the relevant background facts,
then a summary of the Association's essential claims, the conclusions reached thereon by the
PERB Office of the General Counsel, the contentions of the parties on appeal, and finally our
own assessment and disposition of the legal issues.
CPOA ALLEGATIONS
Factual Background
PERB's Office of the General Counsel described the relevant background facts as
follows:
The County and CPOA are signatories to a Memorandum of
Understanding (MOU) in effect from June 2, 2008 to May 29,
2011. MOU section 26 is a zipper clause whereby the County
and CPOA agree there is no duty to bargain regarding proposed
changes to the MOU.
County Ordinances A-25-414 and A-25-415 provide that where
the parties reach an impasse in negotiations, they may take the
matter to mediation.
Prior to 1988, the County jail was operated by the County's
Sheriffs Office. Since 1988, the jail has been operated by the
County's Department of Corrections (DOC). Correction Officers
(COs) for the County's jails have historically been considered
employees of the DOC, not of the Sheriffs Office. Therefore,
these employees were not peace officers as defined by Penal
Code section 830.1.
In 1997, following litigation, the Sheriffs Office and the DOC
entered into an agreement whereby COs were transferred to the
Sheriffs Office, made 'deputies of the sheriff and assigned to
the DOC. Subsequently, they were still DOC employees and not
peace officers as defined by Penal Code section 830.1.
In or around June 2010, the CPOA asked the County to support
its legislative proposal to amend Penal Code section 830.1 (c).
4

Sheriff Laurie Smith (Sheriff Smith) spoke at a CPOA Board of
Directors' meeting regarding the matter. Under the proposed
statutory amendment, COs represented by CPOA could be
reclassified as Correction Deputies and acquire status as a 'peace
officer' as defined by Penal Code section 830.1. In order to
complete the reclassification, the COs would have to meet certain
job requirements of peace officers. Sheriff Smith stated that if
the Penal Code section were amended, COs already employed by
the County would need only a limited criminal history
background check in order to be approved to reclassify as
Correction Deputies.
CPOA and the County agreed to support the legislative change.
Effective January 1, 2011, Penal Code section 830.1(c) was
amended. The effect of the amendment was to allow COs in
Santa Clara County to be considered peace officers.
Partial Warning Letter, September 7, 2011.)
The County's Proposed Changes
In or about June 2010, the County decided to merge some divisions of the Sheriff's
Office and the Department of Corrections (DOC). On July 1, 2010, the Sheriff's Office took
over the operation of the County jails, including supervision of Correction Officers (COs)
represented by the CPOA.
In late June 2010, representatives of the Sherriff's Office presented to CPOA the
County's proposal for background investigations of COs seeking to qualify as peace officers
under the anticipated legislative amendment to the Penal Code. In addition, the County
proposed changes to the work schedules of Lieutenants and other COs.
In July and August 2010, further meetings were held between County and CPOA
representatives to review the County's proposed changes in work schedules, the County's
proposal for background investigations of COs seeking peace officer status, and the
5
Sheriff Laurie Smith (Sheriff Smith) spoke at a CPOA Board of
Directors' meeting regarding the matter. Under the proposed
statutory amendment, COs represented by CPOA could be
reclassified as Correction Deputies and acquire status as a 'peace
officer' as defined by Penal Code section 830.1. In order to
complete the reclassification, the COs would have to meet certain
job requirements of peace officers. Sheriff Smith stated that if
the Penal Code section were amended, COs already employed by
the County would need only a limited criminal history
background check in order to be approved to reclassify as
Correction Deputies.
CPOA and the County agreed to support the legislative change.
Effective January 1, 2011, Penal Code section 830.l(c) was
amended. The effect of the amendment was to allow COs in
Santa Clara County to be considered peace officers.
(Partial Warning Letter, September 7, 2011.)
The County's Proposed Changes
In or about June 2010, the County decided to merge some divisions of the Sheriff's
Office and the Department of Corrections (DOC). On July 1, 2010, the Sheriffs Office took
over the operation of the County jails, including supervision of Correction Officers (COs)
represented by the CPOA.
In late June 2010, representatives of the Sherriffs Office presented to CPOA the
County's proposal for background investigations of COs seeking to qualify as peace officers
under the anticipated legislative amendment to the Penal Code. In addition, the County
proposed changes to the work schedules of Lieutenants and other COs.
In July and August 2010, further meetings were held between County and CPOA
representatives to review the County's proposed changes in work schedules, the County's
proposal for background investigations of COs seeking peace officer status, and the
5

Association's pending requests for information and documents." During a meeting in July
2010, County representatives informed CPOA that the County would implement its work
schedule changes for Lieutenants on August 1, 2010, subject to any agreements the parties
might make. On August 2, 2010, CPOA explained that it could not make any counter
proposals until it received documents and information it had requested. On August 11, 2010,
the County announced it would postpone its implementation of the Lieutenants work schedule
change until October 1, 2010. On August 23, 2010, CPOA urged the County to defer
implementing proposed work schedule and background investigation changes until January
2011, the anticipated effective date of the then-recently passed- legislation authorizing peace
officer status for the COs. On August 24, 2010 the parties met, but again reached no
agreement. On September 7, 2010, the Association formally rejected the County's proposed
changes in work schedules.
CPOA's Essential Allegations/PERB Office of the General Counsel Disposition
1 . 	Background Investigations
A. CPOA Allegations
In July 2010, the Sheriff's Office distributed to individual COs, a written evaluation
process that described the procedure for conducting background investigations on COs who
might seek peace officer status. The County provided a copy of the evaluation process to
CPOA. The County and CPOA discussed the proposed process on several occasions during
their July and August meetings, but reached no agreement. Although the County proffered
changes to its initial proposal, its final proposal included a background investigation, criminal
history check, and psychological examination.
he nature of these meetings is disputed: CPOA characterizes the meetings as
"informational" only, while the County asserts that these meetings satisfied the County's
obligations to meet and confer. It is undisputed that no agreements were reached.
6
Association's pending requests for information and documents.6 During a meeting in July
2010, County representatives informed CPOA that the County would implement its work
schedule changes for Lieutenants on August
1,
2010, subject to any agreements the parties
might make. On August 2, 2010, CPOA explained that it could not make any counter
proposals until it received documents and information it had requested. On August 11, 2010,
the County announced it would postpone its implementation
of
the Lieutenants work schedule
change until October
1,
2010. On August 23, 2010, CPOA urged the County to defer
implementing proposed work schedule and background investigation changes until January
2011, the anticipated effective date
of
the then-recently passed- legislation authorizing peace
officer status for the COs. On August 24, 2010 the parties met, but again reached no
agreement. On September 7, 2010, the Association formally rejected the County's proposed
changes in work schedules.
CPO
A's
Essential Allegations/PERB Office
of
the General Counsel Disposition
1.
	Background Investigations
A. 	CPOA Allegations
In July 2010, the Sheriff's Office distributed to individual COs, a written evaluation
process that described the procedure for conducting background investigations on COs who
might seek peace officer status. The County provided a copy
of
the evaluation process to
CPOA. The County and CPOA discussed the proposed process on several occasions during
their July and August meetings, but reached no agreement. Although the County proffered
changes to its initial proposal, its final proposal included a background investigation, criminal
history check, and psychological examination.
6
T The nature of these meetings is disputed: CPOA characterizes the meetings as
"informational" only, while the County asserts that these meetings satisfied the County's
obligations to meet and confer. It is undisputed that no agreements were reached.

On December 15, 2010, despite having no agreement, the Sheriff's Office implemented
its proposed background evaluation process, issuing a memo to COs announcing the
commencement of the background evaluation process. The memo stated:
The Sheriff's Office will be conducting background evaluations
for Correctional Officers beginning Monday, December 20, 2010.
Correctional Officers that successfully complete the background
process will be moved into peace officer status, per 830.1(c) PC.
Background evaluations will be done on a volunteer basis, and
Correctional Officers may volunteer to undergo the background
evaluation by calling [name omitted] at [telephone number
omitted] beginning December 20. For calls after normal business
hours, please leave your name, badge #, Team, and Facility.
(Emphasis in original.)
CPOA's amended charge alleges that, in December 2010, after the Sheriff's Office
announced that the evaluation process would be voluntary, members of the command staff
"informed numerous employees, while they were on duty, that employees who did not
volunteer to participate in the Evaluation Process would not be eligible for promotion and
would not be eligible for assignments that heretofore had been open to all employees,
including, but not limited to, academy training officer." The amended charge further alleges
that, during a meeting on January 3, 2011, to discuss the evaluation process, Sheriff
Laurie Smith (Sheriff Smith) told employees on the night shift at the Main Jail that, unless they
participated in the evaluation process, they "won't have a job because they would not be able
to work in the same position they currently hold." In addition, a declaration by CPOA
President Everett Fitzgerald (Fitzgerald) in support of the CPOA charge alleges that
Sheriff Smith stated that the evaluation process was voluntary at the present time but would
become mandatory and that employees moved into the new position will be on probation and
subject to dismissal without cause. On March 1, 2011, the County established the new
7
On December 15, 2010, despite having no agreement, the
Sheriffs
Office implemented
its proposed background evaluation process, issuing a memo to COs announcing the
commencement
of
the background evaluation process. The memo stated:
The
Sheriffs
Office will be conducting background evaluations
for Correctional Officers beginning Monday, December 20, 2010.
Correctional Officers that successfully complete the background
process will be moved into peace officer status, per 830.l(c) PC.
Background evaluations will be done on a volunteer basis, and
Correctional Officers may volunteer to undergo the background
evaluation by calling [name omitted] at [telephone number
omitted] beginning December 20. For calls after normal business
hours, please leave your name, badge #, Team, and Facility.
(Emphasis in original.)
CPOA's amended charge alleges that, in December 2010, after the
Sheriffs
Office
announced that the evaluation process would be voluntary, members
of
the command
staff
"informed numerous employees, while they were on duty, that employees who did not
volunteer to participate in the Evaluation Process would not be eligible for promotion and
would not be eligible for assignments that heretofore had been open to all employees,
including, but not limited to, academy training officer." The amended charge further alleges
that, during a meeting on January 3,2011, to discuss the evaluation process, Sheriff
Laurie Smith (Sheriff Smith) told employees on the night shift at the Main Jail that, unless they
participated in the evaluation process, they "won't have a job because they would not be able
to work in the same position they currently hold." In addition, a declaration by CPOA
President Everett Fitzgerald (Fitzgerald) in support
of
the CPOA charge alleges that
Sheriff Smith stated that the evaluation process was voluntary at the present time but would
become mandatory and that employees moved into the new position will be on probation and
subject to dismissal without cause. On March 1, 2011, the County established the new
7

employment classification of correction deputy for the purpose of reclassifying COs newly
eligible for limited peace officer status under Penal Code section 830.1(c).
2. 	General Counsel Disposition
The Office of the General Counsel relied on PERB's traditional test for assessing
whether an employer's action constitutes a "per se" unilateral change. ' Applying this test, the
Office of the General Counsel determined that CPOA failed to allege facts demonstrating that
the new background evaluations constituted a change in policy having a current impact on
COs, or that the new background evaluations were mandatory for COs or otherwise fell within
the scope of representation so as to require decision bargaining.
For its scope analysis, the Office of the General Counsel relied on the Board's decision
in Sutter County In-Home Supportive Services Public Authority (2007) PERB Decision
No. 1900-M (Sutter County). In Sutter County the Board applied the balancing test articulated
in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4 623 (Claremont) in
Partial Warning Letter, September 7, 2011, states:
In determining whether a party has violated Government Code
section 3505 and PERB Regulation 32603(c), PERB utilizes
either the 'per se' or "totality of the conduct' test, depending on
the specific conduct involved and the effect of such conduct on
the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered 'per
se' violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a
matter within the scope of representation, and (2) the change was
implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations.
(Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d
802; Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Association v.
City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union
High School District (1982) PERB Decision No. 196.) [Fns.
omitted.]
8
employment classification of correction deputy for the purpose of reclassifying COs newly
eligible for limited peace officer status under Penal Code section 830.l(c).
2. 	General Counsel Disposition
The Office of the General Counsel relied on PERB' s traditional test for assessing
whether an employer's action constitutes a "per se" unilateral change.7 Applying this test, the
Office of the General Counsel determined that CPOA failed to allege facts demonstrating that
the new background evaluations constituted a change in policy having a current impact on
COs, or that the new background evaluations were mandatory for COs or otherwise fell within
the scope of representation so as to require decision bargaining.
For its scope analysis, the Office of the General Counsel relied on the Board's decision
in Sutter County In-Home Supportive Services Public Authority (2007) PERB Decision
No. 1900-M (Sutter County). In Sutter County the Board applied the balancing test articulated
in Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623 (Claremont) in
7 Partial Warning Letter, September 7, 2011, states:
In determining whether a party has violated Government Code
section 3505 and PERB Regulation 32603(c), PERB utilizes
either the 'per se' or 'totality of the conduct' test, depending on
the specific conduct involved and the effect of such conduct on
the negotiating process. (Stockton Unified School District (1980)
PERB Decision No. 143.) Unilateral changes are considered 'per
se' violations if certain criteria are met. Those criteria are:
(1) the employer implemented a change in policy concerning a
matter within the scope of representation, and (2) the change was
implemented before the employer notified the exclusive
representative and gave it an opportunity to request negotiations.
(Vernon Fire Fighters v. City of Vernon (1980) 107 Cal.App.3d
802; Walnut Valley Unified School District (1981) PERB
Decision No. 160; San Joaquin County Employees Association v.
City of Stockton (1984) 161 Cal.App.3d 813; Grant Joint Union
High School District (1982) PERB Decision No. 196.) [Fns.
omitted.]
8

the setting of an In-Home Supportive Services (IHSS) agency. In Claremont, the Court
articulated its test as follows:
In summary, we apply a three-part inquiry. First, we ask whether
the management action has 'a significant and adverse effect on the
wages, hours, or working conditions of the bargaining-unit
employees.' [(Building Material & Construction Teamsters'
Union v. Farrell (1986) 41 Cal.3d 651, 660 [224 Cal.Rptr. 688]
(Building Material).)] If not, there is no duty to meet and confer.
(See $ 3504; see also ante, at p. 7 [632].) Second, we ask
whether the significant and adverse effect arises from the
implementation of a fundamental managerial or policy decision.
If not, then, as in Building Material, the meet-and-confer
requirement applies. (Building Material, supra, 41 Cal.3d at
p. 664.) Third, if both factors are present-if an action taken to
implement a fundamental managerial or policy decision has a
significant and adverse effect on the wages, hours, or working
conditions of the employees-we apply a balancing test. The
action 'is within the scope of representation only if 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.' (Building
Material, supra, 41 Cal.3d at p. 660.) In balancing the interests
to determine whether parties must meet and confer over a certain
matter ($ 3505), a court may also consider whether the
transactional cost of the bargaining process outweighs its value.'
[(Social Services Union v. Board of Supervisors (1978)
82 Cal.App.3d 498, 505 [147 Cal.Rptr. 126].)]
(Claremont, at p. 638.)
Applying Claremont, the Board held in Sutter County that the agency's adoption of a
background check policy as a condition precedent for would-be service providers to be placed
on the agency's referral registry primarily implicated concerns over public safety and the
nature and quality of public services. Thus, concluded the Board, the content of the
background check policy and its adoption were not within the mandatory scope of
representation under MMBA, and only certain effects of the background check policy were
negotiable. The Board issued a remedial bargaining order as to those effects.
9
the setting
of
an In-Home Supportive Services (IHSS) agency. In Claremont, the Court
articulated its test as follows:
In summary, we apply a three-part inquiry. First, we ask whether
the management action has 'a significant and adverse effect on the
wages, hours, or working conditions
of
the bargaining-unit
employees.' 	[(Building Material & Construction Teamsters'
Union
v.
Farrell (1986)
41
Cal.3d
651,660
[224 Cal.Rptr. 688]
(Building Material).)]	
If
not, there is no duty to meet and confer.
(See § 3504; see also ante, at p. 7 [632].) Second, we ask
whether the significant and adverse effect arises from the
implementation
of
a fundamental managerial or policy decision.
If
not, then, as in Building Material, the meet-and-confer
requirement applies. (Building Material, supra,
41
Cal.3d at
p. 664.) Third,
if
both factors are
present-if
an action taken to
implement a fundamental managerial or policy decision has a
significant and adverse effect on the wages, hours, or working
conditions
of
the
employees-we
apply a balancing test. The
action 'is within the scope ofrepresentation only
if
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.' (Building
Material, supra,
41
Cal.3d at p. 660.) In balancing the interests
to determine whether parties must meet and confer over a certain
matter(§ 3505), a court may also consider whether the
'transactional cost
of
the bargaining process outweighs its value.'
[(Social Services Union
v.
Board
of
Supervisors (1978)
82 Cal.App.3d 498, 505 [147 Cal.Rptr. 126].)]
(Claremont, at p. 638.)
Applying Claremont, the Board held in Sutter County that the agency's adoption
of
a
background check policy as a condition precedent for would-be service providers to be placed
on the agency's referral registry primarily implicated concerns over public safety and the
nature and quality
of
public services. Thus, concluded the Board, the content
of
the
background check policy and its adoption were not within the mandatory scope
of
representation under MMBA, and only certain effects
of
the background check policy were
negotiable. The Board issued a remedial bargaining order as to those effects.
9

Likening the background evaluations required here to those in Sutter County, the PERB
Office of the General Counsel concluded that the two types of background evaluations were
"directly analogous" and voluntary. Thus, reasoned the Office of the General Counsel, the
background evaluations here, like those in Sutter County, implicated only concerns of public
safety and or the nature or quality of public services, were within managerial prerogative and
fell outside the scope of representation under MMBA.
In addition, the Office of the General Counsel determined that even if the new
background evaluations for COs were deemed to be within the scope of representation, the
parties' zipper clause excused the County from meeting and conferring.
Staffing Change at Main Jail
1. CPOA Allegations
On or about October 4, 2010, without notice to, or meeting and conferring with, CPOA,
the County reduced staffing at the Main Jail from 75 on-duty officers, to 65 on-duty officers
during days, and 63 on-duty officers during nights. On or about December 29, 2010, again
without notice to, or meeting and conferring with, CPOA, the County further reduced staffing
at the Main Jail during days to 55 on-duty officers. The amended charge alleges that the
reduction in staffing "directly affects safety of [inmates and] employees and reduces the
opportunities for inmates to participate in rehabilitation programs mandated by the Board of
Supervisors." The Fitzgerald declaration alleges that "[the inmate population has continued to
be raised in both facilities from a ration [sic] of 64 inmates to one officer to a number to
exceed 70 in most housing units." (Emphasis in original.)
2. General Counsel's Disposition
The Office of the General Counsel concluded that staffing levels at the jail were a
managerial prerogative, relying on The Regents of the University of California (Lawrence
10
Likening the background evaluations required here to those in Sutter County, the PERB
Office
of
the General Counsel concluded that the two types
of
background evaluations were
"directly analogous" and voluntary. Thus, reasoned the Office
of
the General Counsel, the
background evaluations here, like those in Sutter County, implicated only concerns
of
public
safety and or the nature or quality
of
public services, were within managerial prerogative and
fell outside the scope
of
representation under MMBA.
In addition, the Office
of
the General Counsel determined that even
if
the new
background evaluations for COs were deemed to be within the scope
of
representation, the
parties' zipper clause excused the County from meeting and conferring.
Staffing Change at Main Jail
1.
	CPOA Allegations
On or about October 4, 2010, without notice to, or meeting and conferring with, CPOA,
the County reduced staffing at the Main Jail from
75
on-duty officers, to 65 on-duty officers
during days, and
63
on-duty officers during nights. On or about December 29, 2010, again
without notice to, or meeting and conferring with, CPOA, the County further reduced staffing
at the Main Jail during days to
55
on-duty officers. The amended charge alleges that the
reduction in staffing "directly affects safety
of
[inmates and] employees and reduces the
opportunities for inmates to participate in rehabilitation programs mandated by the Board
of
Supervisors." The Fitzgerald declaration alleges that "[t]he inmate population has continued to
be raised in both facilities from a ration [sic] of
64 inmates to one officer to a number to
exceed 70 in most housing units." (Emphasis in original.)
2. 	General Counsel's Disposition
The Office of the General Counsel concluded that staffing levels at the jail were a
managerial prerogative, relying on The Regents
of
the University
of
California (Lawrence

Livermore National Laboratory) (1997) PERB Decision No. 1221-H (Lawrence Livermore)
(University's decision to reduce number of security officers held non-negotiable). Thus,
reasoned the Office of the General Counsel, the decision to reduce jail custodial staff would be
non-negotiable as a managerial prerogative. As to any obligation to negotiate over effects, the
Office of the General Counsel then concluded:
A union seeking to bargain over effects of a managerial decision
must specifically demand bargaining over effects and must
clearly identify the negotiable effects proposed to be bargained.
(Trustees of the California State University [2009] PERB
Decision No. 1876a-H.) Although CPOA states that this change
directly affects safety of represented employees, CPOA does not
allege that it made any demand of the County to bargain effects,
including employee safety.
Because the claimed unilateral change [staffing level decision]
does not involve a mandatory subject of bargaining, no prima
facie case is stated.
CPOA'S APPEAL
CPOA raises the following arguments on appeal:
(1) The imposition of a background evaluation requirement on current employees as
a condition of continued employment triggered a duty to meet and confer.
(2) 	The amended charge alleged sufficient facts to state a prima facie violation of
the duty to meet and confer over safety impacts resulting from the reduction in staffing at the
Main Jail.
THE COUNTY'S RESPONSE
The County responds to CPOA's arguments as follows:
(1) 	The decision to implement a voluntary background evaluation process for the
purpose of identifying those individuals eligible for peace officer status is within
management's prerogative and not subject to bargaining. The charge fails to allege facts
showing that any correctional officer has suffered or will suffer any negative action based on
11
Livermore National Laboratory) (1997) PERB Decision No. 1221-H (Lawrence Livermore)
(University's decision to reduce number
of
security officers held non-negotiable). Thus,
reasoned the Office
of
the General Counsel, the decision to reduce jail custodial staff would be
non-negotiable as a managerial prerogative. As to any obligation to negotiate over effects, the
Office
of
the General Counsel then concluded:
A union seeking to bargain over effects
of
a managerial decision
must specifically demand bargaining over effects and must
clearly identify the negotiable effects proposed to be bargained.
(Trustees
of
the California State University [2009] PERB
Decision No. 1876a-H.) Although CPOA states that this change
directly affects safety
of
represented employees, CPOA does not
allege that it made any demand
of
the County to bargain effects,
including employee safety.
Because the claimed unilateral change [staffing level decision]
does not involve a mandatory subject
of
bargaining, no prima
facie case is stated.
CPOA'S APPEAL
CPOA raises the following arguments on appeal:
(1) 	The imposition
of
a background evaluation requirement on current employees as
a condition
of
continued employment triggered a duty to meet and confer.
(2) 	The amended charge alleged sufficient facts to state a prima facie violation
of
the duty to meet and confer over safety impacts resulting from the reduction in staffing at the
Main Jail.
THE COUNTY'S RESPONSE
The County responds to CPOA' s arguments as follows:
(1) 	The decision to implement a voluntary background evaluation process for the
purpose of identifying those individuals eligible for peace officer status is within
management's prerogative and not subject to bargaining. The charge fails to allege facts
showing that any correctional officer has suffered or will suffer any negative action based on
11

the outcome of the background check or a decision not to voluntarily participate in the process.
The evaluation process does not affect wages, hours or conditions of employment, and
therefore is not subject to bargaining.
(2) 	The uncontroverted evidence submitted by the County demonstrates that CPOA,
not the County, failed to meet and confer over the effects of the County's restructuring, and the
County's decision on staffing levels is within management's prerogative.
DISCUSSION
We take up now the legal issues presented by CPOA's allegations and the dismissal of
CPOA's allegations by the PERB Office of the General Counsel. Following a brief discussion
of our standard of review, we address each of the CPOA's three allegations which are the
subject of this appeal.
Standard of Review
When reviewing the sufficiency of a charge, we treat the allegations of the charge as
true. (Golden Plains Unified School District (2002) PERB Decision No. 1489; San Juan.) It is
not the function of the Board agent to judge the merits of the charging party's dispute.
(Saddleback Community College District (1984) PERB Decision No. 433; Lake Tahoe Unified
School District (1993) PERB Decision No. 994.) Disputed facts or conflicting theories of law
should be resolved in other proceedings after a complaint has been issued. (Eastside Union
School District (1984) PERB Decision No. 466, at pp. 6-7.)
Unilateral Change: The Per Se Refusal to Bargain
The appeal presents allegations that the County imposed unilateral changes in terms and
conditions of employment constituting "per se" refusals to meet and confer in good faith. The
Office of the General Counsel stated the Board's test for a per se refusal to bargain. (See fn. 6
12
the outcome of the background check or a decision not to voluntarily participate in the process.
The evaluation process does not affect wages, hours or conditions of employment, and
therefore is not subject to bargaining.
(2) 	The uncontroverted evidence submitted by the County demonstrates that CPOA,
not the County, failed to meet and confer over the effects of the County's restructuring, and the
County's decision on staffing levels is within management's prerogative.
DISCUSSION
We take up now the legal issues presented by CPOA's allegations and the dismissal of
CPO A's allegations by the PERB Office of the General Counsel. Following a brief discussion
of our standard ofreview, we address each of the CPO A's three allegations which are the
subject of this appeal.
Standard of Review
When reviewing the sufficiency of a charge, we treat the allegations of the charge as
true. (Golden Plains Unified School District (2002) PERB Decision No. 1489; San Juan.) It is
not the function of the Board agent to judge the merits of the charging party's dispute.
(Saddleback Community College District (1984) PERB Decision No. 433; Lake Tahoe Unified
School District (1993) PERB Decision No. 994.) Disputed facts or conflicting theories oflaw
should be resolved in other proceedings after a complaint has been issued. (Eastside Union
School District (1984) PERB Decision No. 466, at pp. 6-7.)
Unilateral Change: The Per Se Refusal to Bargain
The appeal presents allegations that the County imposed unilateral changes in terms and
conditions of employment constituting "per se" refusals to meet and confer in good faith. 	The
Office of the General Counsel stated the Board's test for a per se refusal to bargain. (See fn. 6
12

above.) In Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, we
stated a more nuanced formulation of this test, on which we will rely in our analysis below:
To prove up a unilateral change, the charging party must establish
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; (4) the action had a generalized effect or continuing
impact on terms and conditions of employment. (Walnut Valley
Unified School District (1981) PERB Decision No. 160; Grant
Joint Union High School District (1982) PERB Decision No. 196.
Background Evaluations
1 . 	Change in Policy, Having Generalized Effect or Continuing Impact
The PERB Office of the General Counsel concluded that CPOA's allegations were
insufficient to demonstrate an impact rising to the level of a change in policy. We disagree.
The charge alleges that: (1) the County had a past practice of conducting background
checks prior to hiring COs; (2) the County breached this past practice by requiring current COs
to undergo further background evaluations in order to obtain peace officer positions with the
Sheriff's Office; (3) the new evaluations were a mandatory requirement for continuing
employment; (4) COs who did not volunteer to participate in the background evaluation
process would not be eligible for promotional opportunities and assignments previously
available to them; and (5) Sheriff Smith told COs that, unless they participated in the
evaluation process, they "won't have a job because they would not be able to work in the same
position they currently hold."
The Board has previously found that the imposition of background checks amounts to a
change in policy and that the change in policy has a continuing impact on the terms and
The County disputes these statements and asserts they were based solely upon
hearsay. However, at this stage the charging party's burden is not to produce evidence, but
merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie
violation. (Oakland Unified School District (2009) PERB Decision No. 2061.)
13
above.) In Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, we
stated a more nuanced formulation
of
this test, on which we will rely in our analysis below:
To prove up a unilateral change, the charging party must establish
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; (4) the action had a generalized effect or continuing
impact on terms and conditions
of
employment. (Walnut Valley
Unified School District (1981) PERB Decision 	160; Grant
Joint Union High School District (1982) PERB Decision No. 196.
No.
Background Evaluations
1.
	Change in Policy, Having Generalized Effect or Continuing Impact
The PERB Office
of
the General Counsel concluded that CPO
A's
allegations were
insufficient to demonstrate an impact rising to the level
of
a change in policy. We disagree.
The charge alleges that: (1) the County had a past practice
of
conducting background
checks prior to hiring COs; (2) the County breached this past practice by requiring current COs
to undergo further background evaluations in order to obtain peace officer positions with the
Sheriffs
Office; (3) the new evaluations were a mandatory requirement for continuing
employment; (4) COs who did not volunteer to participate in the background evaluation
process would not be eligible for promotional opportunities and assignments previously
available to them; and (5) Sheriff Smith told COs that, unless they participated in the
evaluation process, they "won't have a job because they would not be able to work in the same
position they currently hold."8
The Board has previously found that the imposition
of
background checks amounts to a
change in policy and that the change in policy has a continuing impact on the terms and
8 The County disputes these statements and asserts they were based solely upon
hearsay. However, at this stage the charging party's burden is not to produce evidence, but
merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie
violation. (Oakland Unified School District (2009) PERB Decision No. 2061.)
13

conditions of employment and breaches an established past practice of not having a
background check. (Sutter County.) We conclude that the charge alleges sufficient facts to
meet two elements of a prima facie case of a unilateral change, namely: (1) a change in policy
and (2) a generalized effect or continuing impact upon bargaining unit members' terms and
conditions of employment.
Concerning a Matter Within the Scope of Representation
The Office of the General Counsel determined that imposition of background checks
for current COs is not within the MMBA scope of representation. We disagree.
We look first at the scope of representation under MMBA, and then assess the Office of
the General Counsel's conclusion in light thereof that the imposition of background checks
upon current COs is a managerial prerogative and not within the scope of representation under
The MMBA states that the scope of representation "shall include all matters relating to
employment conditions and employer-employee relations, including, but not limited to, wages,
hours, and other terms and conditions of employment, except, however, that the scope of
representation shall not include consideration of the merits, necessity, or organization of any
service or activity provided by law or executive order." (MMBA $ 3504.)
In Sutter County, the Board applied the Claremont balancing test, concluding that the
employer's need for unencumbered decision making in managing its operations (providing
supportive services to individuals in the unsupervised environment of the individual's own
home) predominated as to some aspects of its background check policy over the benefit to
employer-employee relations of bargaining over the requirement for a background evaluation
for potential service providers. Significant to the Board's determination in Sutter County were
the two elements: express statutory directives obliging the employer to investigate the
14
conditions
of
employment and breaches an established past practice
of
not having a
background check. (Sutter County.) We conclude that the charge alleges sufficient facts to
meet two elements
of
a prima facie case
of
a unilateral change, namely: 	(
1)
a change in policy
and (2) a generalized effect or continuing impact upon bargaining unit members' terms and
conditions
of
employment.
2. 	Concerning a Matter Within the Scope
of
Representation
The Office
of
the General Counsel determined that imposition
of
background checks
for current COs
is
not within the MMBA scope
of
representation. We disagree.
We look first at the scope
of
representation under MMBA, and then assess the Office
of
the General Counsel's conclusion in light thereof that the imposition
of
background checks
upon current COs is a managerial prerogative and not within the scope
of
representation under
MMBA.	
MMHA.
The MMBA states that the scope
of
representation "shall include all matters relating to
employment conditions and employer-employee relations, including, but not limited to, wages,
hours, and other terms and conditions
of
employment, except, however, that the scope
of
representation shall not include consideration
of
the merits, necessity, or organization
of
any
service or activity provided by law or executive order." (MMBA § 3504.)
In Sutter County, the Board applied the Claremont balancing test, concluding that the
employer's need for unencumbered decision making in managing its operations (providing
supportive services to individuals in the unsupervised environment
of
the individual's own
home) predominated as to some aspects
of
its background check policy over the benefit to
employer-employee relations of bargaining over the requirement for a background evaluation
for potential service providers. Significant to the Board's determination in Sutter County were
the two elements: express statutory directives obliging the employer to investigate the
14

qualifications and background of prospective service providers; and judicial determinations
holding public safety issues to be within managerial prerogative under MMBA." Also of
significance were decisions holding that drug testing protocols and their effects on employee
terms and conditions of employment were negotiable, despite claims of managerial prerogative
grounded in public safety. "Notably the Board observed: "[A]n overall public safety purpose
will not exempt a management action from bargaining where the evidence indicates that the
action relates primarily to worker safety or other terms or conditions of employment."
(Sutter County, at p. 13.)
Ultimately, the Board in Sutter County ruled that several aspects of the background
check policy were, on balance, within the employer's managerial prerogative, " and several
were subject to bargaining." Significantly, however, the Board expressly limited its scope of
representation analysis in Sutter County to the facts of that case, stating:
We intend this decision to be construed narrowly. The
negotiability of criminal background check policies should
depend upon the facts and circumstances of each situation. The
vulnerability of in-home supportive services recipients makes this
San Jose Peace Officers' Assn. v. City of San Jose (1978) 78 Cal.App.3d 935;
Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931.
10 Exxon Co. USA (1996) 321 NLRB 896; United Food & Commercial Workers
International Union, Local 588 v. Foster Poultry Farms (9" Cir. 1995) 74 F.3d 169.
Outside the scope of bargaining were: categories of reportable offenses, categories of
offenses that will result in exclusion from the registry of providers, persons to whom the
background check requirement would apply, and disclosure to care recipients of a provider's
disqualification or exclusion from the registry. (Sutter County, at p. 15.)
Subject to bargaining were: handling of a person's criminal record (other than
disclosure to care recipients), confidentiality and privacy interests of providers, fees for
applicants, and appeal procedures for decisions excluding an applicant from the registry.
(Sutter County, at pp. 15-16.)
15
qualifications and background of prospective service providers; and judicial determinations
holding public safety issues to be within managerial prerogative under MMBA.9 Also of
significance were decisions holding that drug testing protocols and their effects on employee
terms and conditions of employment were negotiable, despite claims of managerial prerogative
grounded in public safety. 10 Notably the Board observed: "[A]n overall public safety purpose
will not exempt a management action from bargaining where the evidence indicates that the
action relates primarily to worker safety or other terms or conditions of employment."
(Sutter County, at p. 13.)
Ultimately, the Board in Sutter County ruled that several aspects of the background
check policy were, on balance, within the employer's managerial prerogative, 11 and several
were subject to bargaining. 12 Significantly, however, the Board expressly limited its scope of
representation analysis in Sutter County to the facts of that case, stating:
We intend this decision to be construed narrowly. The
negotiability of criminal background check policies should
depend upon the facts and circumstances of each situation. The
vulnerability of in-home supportive services recipients makes this
9 San Jose Peace Officers' Assn. v. City of San Jose (1978) 78 Cal.App.3d 935;
Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931.
10 Exxon Co. USA (1996) 321 NLRB 896; United Food & Commercial Workers
International Union, Local 588 v. Foster Poultry Farms (9 th Cir. 1995) 74 F.3d 169.
11 Outside the scope of bargaining were: categories of reportable offenses, categories of
offenses that will result in exclusion from the registry of providers, persons to whom the
background check requirement would apply, and disclosure to care recipients of a provider's
disqualification or exclusion from the registry. (Sutter County, at p. 15.)
12 Subject to bargaining were: handling of a person's criminal record (other than
disclosure to care recipients), confidentiality and privacy interests of providers, fees for
applicants, and appeal procedures for decisions excluding an applicant from the registry.
(Sutter County, at pp. 15-16.)
15

an extraordinary case in which we would apply the managerial
prerogative to exclude certain details of the policy from the scope
of bargaining.
(Sutter County, at p. 16.)
We conclude that the facts here vary substantially from those in Sutter County, and this
distinction informs our balancing of interests under Claremont. We explain.
External law: In Sutter County, external law required the IHSS Public Authority
agency to investigate the qualifications and background of persons wishing to be included on
the provider registry. Investigating qualifications and background of potential providers is one
of the six statutorily-defined functions of an IHSS agency. (Welfare & Inst. Code $
12301.6(e).) Moreover, an IHSS agency must notify service recipients that a Department of
Justice (DOJ) criminal record check is available to them and can be performed by the DOJ
upon the provider's "annual redetermination." By contrast, there appears no similar
requirement that the County undertake a background check on current COs as a condition of
their continued employment.
Prior background check: In Sutter County, the individual IHSS providers had not
previously been subjected to a criminal background check. By contrast, the charge alleges that
each CO had been subjected already to a background investigation, including a criminal
background check, upon initial employment. While Government Code section 1031 requires
that peace officers meet six minimal standards including being of good moral character, as
determined by a thorough background investigation, and to be physically and mentally fit, as
determined by an examination by a physician and/or a psychologist, at least one court of
appeal has held that these Government Code section 1031 background checks are limited to
applicants for peace officer positions. (Hulings v. State Dept. of Health Care Services (2008)
159 Cal.App.4 1114, 1123 [new background investigation is not triggered when former peace
16
an extraordinary case in which we would apply the managerial
prerogative to exclude certain details
of
the policy from the scope
of
bargaining.
(Sutter County, at p. 16.)
We conclude that the facts here vary substantially from those in Sutter County, and this
distinction informs our balancing
of
interests under Claremont. 	We explain.
External law: In Sutter County, external law required the IHSS Public Authority
agency to investigate the qualifications and background
of
persons wishing to be included
on
the provider registry. Investigating qualifications and background
of
potential providers is one
of
the six statutorily-defined functions
of
an IHSS agency. (Welfare & Inst.
Code§
12301.6(e).) Moreover, an IHSS agency must notify service recipients that a Department
of
Justice (DOJ) criminal record check is available to them and can be performed by the
DOJ
upon the provider's "annual redetermination." By contrast, there appears no similar
requirement that the County undertake a background check on current COs as a condition
of
their continued employment.
Prior background check: In Sutter County, the individual IHSS providers had
not
previously been subjected to a criminal background check. By contrast, the charge alleges that
each CO had been subjected already to a background investigation, including a criminal
background check, upon initial employment. While Government Code section 1031 requires
that peace officers meet six minimal standards including being
of
good moral character, as
determined by a thorough background investigation, and to be physically and mentally fit, as
determined by an examination by a physician and/or a psychologist, at least one court
of
appeal has held that these Government Code section 1031 background checks are limited to
applicants for peace officer positions. (Hulings
v.
State Dept.
of
Health Care Services (2008)
159 Cal.App.4 th 1114, 1123 [new background investigation is not triggered when former peace
16

officer exercises his mandatory right to reinstatement].)" Thus, unlike the statutory
requirements imposed on IHSS providers in Sutter County, in the circumstances before us it is
uncertain that the County here is even permitted, let alone required, to conduct a background
check on current COs.
Environment for Service Delivery: In Sutter County, the in-home recipients received
services in the unsupervised, one-on-one environment of their private home or apartment. By
contrast, the county jail is a public facility, and the environment for service delivery generally
is not private, as COs routinely interact with prisoners in groups or in situations in which
interactions can be observed.
We concur with the Board's observation in Sutter County that "the negotiability of
criminal background check policies should depend on the facts and circumstances of each
situation." (Id., p. 16.) Unlike Sutter County, in this case we conclude that both the decision
and its effects are within the scope of representation because the sole purpose of the
background evaluations is to confer peace officer status on current employees and not to
enhance public safety or effect a change in the quality or nature of public services. We
therefore decline the County's invitation to extend the Board's ruling in Sutter County, that
background checks are a matter of managerial prerogative, to the very different facts alleged
here.
Rather, we hold that where an employer imposes on employees, who have already
undergone a background evaluation as a condition of employment, a further such evaluation as
a condition of continued assignment to the employee's present position, the employer's
15In Pitts v. City of Sacramento (2006) 138 Cal.App.4" 853, 856, the court noted that a
public agency was required to conduct a Government Code section 1031 investigation "at the
time of hire, prior to transfer between agencies, and also possibly when an employee changes
positions within the same agency." (Emphasis added.)
17
officer exercises his mandatory right to reinstatement].)
13
Thus, unlike the statutory
requirements imposed on IHSS providers in Sutter County, in the circumstances before us it is
uncertain that the County here is even permitted, let alone required, to conduct a background
check on current COs.
\:
Environment for Service Delivery: In Sutter County, the in-home recipients received
services in the unsupervised, one-on-one environment
of
their private home or apartment. 	By
contrast, the county jail is a public facility, and the environment for service delivery generally
is not private, as COs routinely interact with prisoners in groups or in situations in which
interactions can be observed.
We concur with the Board's observation in Sutter County that "the negotiability
of
criminal background check policies should depend on the facts and circumstances
of
each
situation." (Id.,
p.
16.) Unlike Sutter County, in this case we conclude that both the decision
and its effects are within the scope
of
representation because the sole purpose
of
the
background evaluations is to confer peace officer status on current employees and not to
enhance public safety or effect a change in the quality or nature
of
public services. 	We
therefore decline the County's invitation to extend the Board's ruling in Sutter County, that
background checks are a matter
of
managerial prerogative, to the very different facts alleged
here.
Rather, we hold that where an employer imposes on employees, who have already
undergone a background evaluation as a condition
of
employment, a further such evaluation as
a condition of continued assignment to the employee's present position, the employer's
13
In Pitts
v.
City
of
Sacramento (2006) 138 Cal.App.4 th 853, 856, the court noted that a
public agency was required to conduct a Government Code section 1031 investigation "at the
time of hire, prior to transfer between agencies, and also possibly when an employee changes
positions within the same agency." (Emphasis added.)
17

decision implicates primarily employee working conditions, including reassignment, discipline
and job security, rather than the merits, necessity or organization of any service or activity. As
such, we conclude that the County's alleged decision to impose the additional background
check as a condition of continued assignment to the employee's current position, as well as the
reasonably foreseeable effects thereof, are within the scope of representation under the
MMBA.
3. 	Without Notice or an Opportunity to Bargain Over the Change
CPOA alleges that the County provided notice of a proposed new "voluntary"
background evaluation procedure, discussed it with CPOA, and prior to reaching agreement
and without use of impasse procedures, unilaterally implemented the procedure. Upon
implementation the County explained to employees that the procedure would be mandatory.
We conclude that CPOA has sufficiently alleged that the County failed to afford CPOA notice
or an opportunity to bargain over the new background evaluation procedure which was
implemented, to wit, a mandatory procedure.
To summarize our discussion of CPOA's prima facie case, we conclude that CPOA has
alleged prima facie that by imposing a mandatory, new background evaluation procedure upon
existing employees who had already been subjected to a similar procedure prior to initial
employment, the County made a unilateral change in derogation of its MMBA duty to meet
and confer with CPOA over the decision itself as well as the foreseeable effects thereof on
matters within the scope of representation.
Nonetheless, the PERB Office of the General Counsel determined that even if the
County had an obligation to meet and confer over the new background evaluation procedures,
that it was excused therefrom by the zipper clause in the parties' memorandum of
18
decision implicates primarily employee working conditions, including reassignment, discipline
and
job
security, rather than the merits, necessity or organization
of
any service or activity. As
such, we conclude that the County's alleged decision to impose the additional background
check as a condition
of
continued assignment to the employee's current position, as well as the
reasonably foreseeable effects thereof, are within the scope
of
representation under the
MMBA.
3.
	Without Notice or an Opportunity to Bargain Over the Change
CPOA alleges that the County provided notice
of
a proposed new "voluntary"
background evaluation procedure, discussed it with CPOA, and prior to reaching agreement
and without use
of
impasse procedures, unilaterally implemented the procedure. Upon
implementation the County explained to employees that the procedure would be mandatory.
\Ve conclude that CPOA has sufficiently alleged that the County failed to afford CPOA notice
or an opportunity to bargain over the new background evaluation procedure which was
implemented, to wit, a mandatory procedure.
To summarize our discussion
of
CPOA's prima facie case, we conclude that
CPOA
has
alleged prima facie that by imposing a mandatory, new background evaluation procedure upon
existing employees who had already been subjected to a similar procedure prior to initial
employment, the County made a unilateral change in derogation
of
its MMBA duty to meet
and confer with CPOA over the decision itself as well as the foreseeable effects thereof
on
matters within the scope
of
representation.
Nonetheless, the PERB Office
of
the General Counsel determined that even
if
the
County had an obligation to meet and confer over the new background evaluation procedures,
that it was excused therefrom by the zipper clause in the parties' memorandum of
18

understanding (MOU) which preserved the County's right to act unilaterally on a matter not
referred to in the MOU. We disagree.
A waiver of the right to negotiate over a particular subject must be clear and
unmistakable, and the evidence must indicate an intentional relinquishment of the right to
bargain. (Amador Valley Joint Union High School District (1978) PERB Decision No. 74;
California State Employees' Assn. v. Public Employment Relations Bd. (1996) 51 Cal.App.4th
923, 937-938.) If the contract language is ambiguous, we consider extrinsic evidence,
including bargaining history, to aid in interpretation. (Clovis Unified School District (2002)
PERB Decision No. 1504.) Public policy disfavors finding a waiver based on inference and
places the burden of proof on the party asserting the waiver. (Long Beach Community College
District (2003) PERB Decision No. 1568.)
The parties' MOU provides in section 26 at page 44, in pertinent part:
The parties, for the term of this agreement, voluntarily and
unqualifiedly agree to waive the obligation to negotiate with
respect to any practice, subject or matter not specifically referred
or covered in this agreement even though such practice, subject
or matter may not have been within the knowledge of the parties
at the time this agreement was negotiated and signed. If during
the term of this agreement, a new matter, subject, or practice
arises which is not referred to in this Agreement and the County
desires to take action to deal with such new matter, subject, or
practice, the Association shall be given prior, written notice of
the proposed County action and shall have the right to meet and
confer on the subject, including the right to resort to all available
impasse procedures pursuant to the Employee-Management
Relations Ordinance, in the absence of agreement on such
proposed action, the County reserves the right to take action by
Management direction.
This language (1) limits the parties' right to negotiate on matters "not specifically referred to
or covered in this agreement" and (2) preserves CPOA's right to negotiate and engage in
impasse procedures in respect to "a new matter, subject, or practice" not referred to in the
19
understanding (MOU) which preserved the County's right to act unilaterally on a matter not
referred to in the MOU. We disagree.
A waiver
of
the right to negotiate over a particular subject must be clear and
unmistakable, and the evidence must indicate an intentional relinquishment
of
the right to
bargain. (Amador Valley Joint Union High School District (1978) PERB Decision No. 7 4;
California State Employees' Assn.
v.
Public Employment Relations
Bd
(1996)
51
Cal.App.4 th
923, 937-938.)
If
the contract language is ambiguous, we consider extrinsic evidence,
including bargaining history, to aid in interpretation. (Clovis Unified School District (2002)
PERB Decision No. 1504.) Public policy disfavors finding a waiver based on inference and
places the burden
of
proof on the party asserting the waiver. (Long Beach Community College
District (2003) PERB Decision No. 1568.)
The parties' MOU provides in section 26 at page 44, in pertinent part:
The parties, for the term
of
this agreement, voluntarily and
unqualifiedly agree to waive the obligation to negotiate with
respect to any practice, subject or matter not specifically referred
or covered in this agreement even though such practice, subject
or matter may not have been within the knowledge
of
the parties
at the time this agreement was negotiated and signed.
If
during
the term
of
this agreement, a new matter, subject, or practice
arises which is not referred to in this Agreement and the County
desires to take action to deal with such new matter, subject, or
practice, the Association shall be given prior, written notice
of
the proposed County action and shall have the right to meet and
confer on the subject, including the right to resort to all available
impasse procedures pursuant to the Employee-Management
Relations Ordinance, in the absence
of
agreement on such
proposed action, the County reserves the rightto take action by
Management direction.
This language (1) limits the parties' right to negotiate on matters "not specifically referred to
or covered in this agreement" and (2) preserves CPOA's right to negotiate and engage in
impasse procedures in respect to "a new matter, subject, or practice" not referred to in the
19

agreement as to which the County "desires to take action to deal with such new matter, subject,
or practice."
We conclude that the zipper clause relied upon by the Office of the General Counsel
does not clearly and unmistakable waive CPOA's right to meet and negotiate over adoption of
the new background evaluation policy. In fact, it supports our conclusion that the CPOA did
not waive its right to bargain in its distinction between old and new matters.
In sum, we conclude that CPOA has alleged prima facie that the County violated
MMBA when in or about December 2010 the County unilaterally imposed a new and
mandatory background evaluation policy on current employees.
Staffing Levels
The charge alleges that, on October 4, 2010, the County reduced staffing at the Main
Jail from 75 on-duty officers to 65 on-duty officers during days, and 63 during nights and that
the staffing at the Main Jail as of December 29, 2010, was 55 on-duty officers during days,
reflecting a further reduction in the staffing level.
CPOA alleges further that the change in Main Jail staffing foreseeably impacted safety
and workload of COs, that these impacts are within the scope of representation under the
MMBA, and that the County implemented the change in Main Jail staffing without providing
CPOA notice thereof. 14
Safety and workload effects of a change in staffing levels are matters within the scope
of representation. (State of California (Department of Consumer Affairs) (2004) PERB
Decision No. 1711-S [safety conditions]; Regents of the University of California (2010) PERB
Decision No. 2094-H [ workload].)
* The Office of the General Counsel determined that staffing levels are a non-
negotiable managerial prerogative. (Lawrence Livermore.) CPOA does not challenge here this
determination.
20
agreement as to which the County "desires to take action to deal with such new matter, subject,
or practice."
We conclude that the zipper clause relied upon by the Office
of
the General Counsel
does not clearly and unmistakably waive CPOA's right to meet and negotiate over adoption
of
the new background evaluation policy. In fact, it supports our conclusion that the CPOA did
not waive its right to bargain in its distinction between old and new matters.
In sum, we conclude that CPOA has alleged prima facie that the County violated
MMBA when in or about December 2010 the County unilaterally imposed a new and
mandatory background evaluation policy on current employees.
Staffing Levels
The charge alleges that, on October 4, 2010, the County reduced staffing at the Main
Jail from 75 on-duty officers to 65 on-duty officers during days, and 63 during nights and that
the staffing at the Main Jail as
of
December 29, 2010, was 55 on-duty officers during days,
reflecting a further reduction in the staffing level.
CPOA alleges further that the change in Main Jail staffing foreseeably impacted safety
and workload
of
COs, that these impacts are within the scope
of
representation under the
MMBA, and that the County implemented the change in Main Jail staffing without providing
CPOA notice thereof.
14
Safety and workload effects
of
a change in staffing levels are matters within the scope
of
representation. (State
of
California (Department
of
Consumer Affairs) (2004) PERB
Decision No. 1711-S [safety conditions]; Regents
of
the University
of
California (2010) PERB
Decision No. 2094-H [workload].)
14
The Office of the General Counsel determined that staffing levels are a non-
negotiable managerial prerogative. (Lawrence Livermore.) CPOA does not challenge here this
determination.
20

What remains is to determine whether CPOA's allegation, that the County imposed
without notice to CPOA a change to staffing levels foreseeably impacting safety and workload,
states a prima facie violation of MMBA.
The PERB Office of the General Counsel concluded that CPOA failed to allege that it
demanded to negotiate over the safety and workload effects of the County's Main Jail staffing
change." Factually, the charge does allege that a demand was made, though it does so in an
in-artful and clumsy manner. More fundamentally, however, we disagree that an employee
organization must demand to bargain effects where the employer has failed in its duty to notify
the organization prior to implementing a change in working conditions. We look first at our
unilateral change case law, and then explain our conclusion that where a unilateral change is
alleged, a bargaining demand is not a necessary element of the prima facie case.
An employer violates the duty to bargain in good faith when it fails to afford a union
reasonable advance notice and an opportunity to bargain before it either: (1) reaches a firm
decision to establish or change a policy within the scope of representation, (Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 900.) or
(2) implements a new or changed policy not within the scope of representation but having a
foreseeable effect upon matters within the scope of representation. (Claremont.) Thus,
making a firm decision to establish or change a policy on employee wages, hours or other
terms and conditions of employment, without affording the union notice and an opportunity to
15 Partial Warning Letter, September 7, 2011:
"A union seeking to bargain over effects of a managerial decision
must specifically demand bargaining over effects and must
clearly identify the negotiable effects proposed to be bargained.
(Trustees of the California State University (2009) PERB
Decision No. 1876a-H.) Although CPOA states that this change
directly affects safety of represented employees, CPOA does not
allege that it made any demand of the County to bargain effects,
including employee safety."
21
What remains is to determine whether CPOA's allegation, that the County imposed
without notice to CPOA a change to staffing levels foreseeably impacting safety and workload,
states a prima facie violation of MMBA.
The PERB Office of the General Counsel concluded that CPOA failed to allege that it
demanded to negotiate over the safety and workload effects of the County's Main Jail staffing
change. 15 Factually, the charge does allege that a demand was made, though it does so in an
in-artful and clumsy manner. More fundamentally, however, we disagree that an employee
organization must demand to bargain effects where the employer has failed in its duty to notify
the organization prior to implementing a change in working conditions. We look first at our
unilateral change case law, and then explain our conclusion that where a unilateral change is
alleged, a bargaining demand is not a necessary element of the prima facie case.
An employer violates the duty to bargain in good faith when it fails to afford a union
reasonable advance notice and an opportunity to bargain before it either: (1) reaches a firm
decision to establish or change a policy within the scope of representation, (Public
Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, 900.) or
(2) implements a new or changed policy not within the scope of representation but having a
foreseeable effect upon matters within the scope of representation. (Claremont.) Thus,
making a firm decision to establish or change a policy on employee wages, hours or other
terms and conditions of employment, without affording the union notice and an opportunity to
15 Partial Warning Letter, September 7, 2011:
"A union seeking to bargain over effects of a managerial decision
must specifically demand bargaining over effects and must
clearly identify the negotiable effects proposed to be bargained.
(Trustees of the California State University (2009) PERB
Decision No. 1876a-H.) Although CPOA states that this change
directly affects safety of represented employees, CPOA does not
allege that it made any demand of the County to bargain effects,
including employee safety."
21

bargain, violates the employer's duty to bargain in good faith. And implementing a new or
changed policy not itself within the scope of representation (e.g., staffing levels) but having a
foreseeable effect(s) on employee wages, hours or other terms and conditions of employment
(e.g., safety or workload), likewise violates the employer's duty to bargain in good faith where
implemented without affording the union notice and an opportunity to bargain over the
foreseeable effect(s). (Mt. Diablo Unified School District (1983) PERB Decision No. 373;
Newman-Crows Landing Unified School District (1983) PERB Decision No. 223; NLRB v.
Transmarine Navigation Corporation (9" Cir 1967) 380 F.2d 933, 939-940.) In both instances
the harm is the same: matters relegated by statute to bilateral decisions are instead determined
unilaterally.
To challenge a unilateral change a union need not plead or prove that it demanded to
bargain. An employer's unilateral action renders bargaining futile. (State of California
(Department of Personnel Administration) (1999) PERB Decision No. 1313-S (DPA) and
cases cited therein.) The customary remedy is an order to bargain upon request, coupled with
restoration of prior status quo which is necessary to enable good faith bargaining under
conditions akin to those preceding the unilateral change.
An employer may claim that the union waived its right to bargain. (Stockton Police
Officers' Assn. v. City of Stockton (1988) 206 Cal.App.3d 62, 66.) Waiver is an affirmative
defense, is disfavored and must be clear and unmistakable. (San Francisco Community
College District (1979) PERB Decision No. 105; Los Angeles Community College District
(1982) PERB Decision No. 252.)
An employer's unilateral change implemented without prior notice or opportunity to
negotiate over the decision or the foreseeable effects within the scope of representation
disrupts and destabilizes employer-employee relations and is inconsistent with the goals of our
22
bargain, violates the employer's duty to bargain in good faith. And implementing a new or
changed policy not itself within the scope of representation (e.g., staffing levels) but having a
foreseeable effect(s) on employee wages, hours or other terms and conditions of employment
(e.g., safety or workload), likewise violates the employer's duty to bargain in good faith where
implemented without affording the union notice and an opportunity to bargain over the
foreseeable effect(s). (Mt. Diablo Unified School District (1983) PERB Decision No. 373;
Newman-Crows Landing Unified School District (1983) PERB Decision No. 223; NLRB v.
Transmarine Navigation Corporation (9 th Cir 1967) 380 F.2d 933, 939-940.) In both instances
the harm is the same: matters relegated by statute to bilateral decisions are instead determined
unilaterally.
To challenge a unilateral change a union need not plead or prove that it demanded to
bargain. An employer's unilateral action renders bargaining futile. 	(State of California
(Department of Personnel Administration) (1999) PERB Decision No. 1313-S (DPA) and
cases cited therein.) The customary remedy is an order to bargain upon request, coupled with
restoration of prior status quo which is necessary to enable good faith bargaining under
conditions akin to those preceding the unilateral change.
An employer may claim that the union waived its right to bargain. (Stockton Police
Officers' Assn. v. City of Stockton (1988) 206 Cal.App.3d 62, 66.) Waiver is an affirmative
defense, is disfavored and must be clear and unmistakable. (San Francisco Community
College District (1979) PERB Decision No. 105; Los Angeles Community College District
(1982) PERB Decision No. 252.)
An employer's unilateral change implemented without prior notice or opportunity to
negotiate over the decision or the foreseeable effects within the scope of representation
disrupts and destabilizes employer-employee relations and is inconsistent with the goals of our
22

statutes to improve both employer-employee relations and communications between public
employers and their employees. We explain.
We first review why a unilateral change is a per se violation of the duty to bargain and
so inimical to the purposes of our collective bargaining statutes. In San Mateo County
Community College District (1979) PERB Decision No. 94 (San Mateo CCD), at pp. 14-17,
the Board eloquently recounted the reasons unilateral changes are "disfavored." They have a
destabilizing and disorienting impact on employer-employee affairs:
"An employer's single-handed assumption of power over
employment relations can spark strikes or other disruptions at the
work place. Similarly, negotiating prospects may also be
damaged as employers seek to negotiate from a position of
advantage, forcing employees to talk the employer back to terms
previously agreed to. This one-sided edge to the employer surely
delays, and may even totally frustrate, the process of arriving at a
contract."
Unilateral changes undermine the principle of exclusive representation because they
derogate the union's ability to act effectively on behalf of unit members. Such changes also
upset the delicate balance of power between management and employee organizations
painstakingly established by our statutes. "[T]he bilateral duty to negotiate is negated by the
assertion of power by one party through unilateral action on negotiable matters." (San Mateo
CCD, at p. 16.)
Especially in the context of public sector bargaining, "when carried out in the context
of declining revenues, an employer's unilateral actions may also unfairly shift community and
political pressure to employees and their organizations, and at the same time reduce the
employer's accountability to the public." (Id.)
We believe these considerations apply no less to negotiable effects arising from non-
negotiable decisions. The rule requiring effects bargaining arises from balancing the need of
employers to make unfettered decisions about the direction of the enterprise with the rights of
23
statutes to improve both employer-employee relations and communications between public
employers and their employees. We explain.
We first review why a unilateral change is a per se violation
of
the duty to bargain and
so inimical to the purposes
of
our collective bargaining statutes. In San Mateo County
Community College District (1979) PERB Decision No. 94 (San Mateo CCD), at pp. 14-17,
the Board eloquently recounted the reasons unilateral changes are "disfavored." They
have
a
destabilizing and disorienting impact on employer-employee affairs:
"An employer's single-handed assumption
of
power over
employment relations can spark strikes or other disruptions at the
work place. Similarly, negotiating prospects may also be
damaged as employers seek to negotiate from a position
of
advantage, forcing employees to talk the employer back to terms
previously agreed to. This one-sided edge to the employer surely
delays, and may even totally frustrate, the process
of
arriving at a
contract."
Unilateral changes undermine the principle
of
exclusive representation because they
derogate the union's ability to act effectively on behalf
of
unit members. Such changes also
upset the delicate balance
of
power between management and employee organizations
painstakingly established by our statutes. "[T]he bilateral duty to negotiate is negated
by
the
assertion
of
power by one party through unilateral action on negotiable matters." (San Mateo
CCD, at p. 16.)
Especially in the context
of
public sector bargaining, "when carried out in the context
of
declining revenues, an employer's unilateral actions may also unfairly shift community and
political pressure to employees and their organizations, and at the same time reduce the
employer's accountability to the public." (Id)
We believe these considerations apply no less to negotiable effects arising from non-
negotiable decisions. The rule requiring effects bargaining arises from balancing the need of
employers to make unfettered decisions about the direction of the enterprise with the rights of
23

employees, through their exclusive representatives, to a voice in workplace matters related to
wages, hours and terms and conditions of employment. In other words, effects bargaining is
not a stepchild of decision bargaining. It is just as important as bargaining over a decision to
alter terms and conditions of employment.
Once an employer takes unilateral action on a matter in which the decision is within the
scope of bargaining, the union is excused from demanding to bargain over that fait accompli.
(DPA, at pp. 6-7 [when a unilateral change has already been implemented or once a firm
decision has already been made, the union does not waive its right to bargain by not pursuing
negotiations]; Morgan Hill Unified School District (1986) PERB Decision No. 554a; Arcohe
Union School District (1983) PERB Decision No. 360; Arvin Union School District (1983)
PERB Decision No. 300; Los Angeles Community College District (1982) PERB Decision
No. 252.) In the face of unilateral implementation, a demand to bargain is futile and not
required as a condition to pursuing a charge seeking restoration of the status quo so bargaining
may proceed on a level playing field. A contrary rule would require the union to "bargain
from a hole." As the Board explained in San Francisco Community College District (1979)
PERB Decision No. 105 (San Francisco CCD), at p. 17: "Once the [employer] acted
unilaterally, the [union] was not obligated to continuously reiterate its demand for
negotiations . .. . Requiring [the union] to pursue negotiations from this changed position
would be tantamount to requiring it to recoup its losses at the negotiations table."
Although the changes discussed in San Francisco CCD were to wages and leaves of
absence-where the decision itself was negotiable-the same principle applies equally to the
situation where the union is presented with a unilateral, unnoticed imposition of a management
decision over which only effects are negotiable. In both instances the unannounced change
24
employees, through their exclusive representatives, to a voice in workplace matters related to
wages, hours and terms and conditions
of
employment. In other words, effects bargaining is
not a stepchild
of
decision bargaining. It is just as important as bargaining over a decision to
alter terms and conditions
of
employment.
Once an employer takes unilateral action on a matter in which the decision is within the
scope
of
bargaining, the union is excused from demanding to bargain over that fait accompli.
(DPA, at pp. 6-7 [when a unilateral change has already been implemented or once a firm
decision has already been made, the union does not waive its right to bargain by not pursuing
negotiations]; Morgan Hill Unified School District (1986) PERB Decision No. 554a; Arcohe
Union School District (1983) PERB Decision No. 360; Arvin Union School District (1983)
PERB Decision No. 300; Los Angeles Community College District (1982) PERB Decision
No. 252.) In the face
of
ur1ilateral implementation, a demand to bargain is futile and not
required as a condition to pursuing a charge seeking restoration
of
the status quo so bargaining
may proceed on a level playing field. A contrary rule would require the union to "bargain
from a hole." As the Board explained in San Francisco Community College District (1979)
PERB Decision No. 105 (San Francisco CCD), at p. 17: "Once the [employer] acted
unilaterally, the [union] was not obligated to continuously reiterate its demand for
negotiations
....
	Requiring [the union] to pursue negotiations from this changed position
would be tantamount to requiring it to recoup its losses at the negotiations table."
Although the changes discussed in San Francisco CCD were to wages and leaves
of
absence-where the decision itself was negotiable-the same principle applies equally to the
situation where the union is presented with a unilateral, unnoticed imposition
of
a management
decision over which only effects are negotiable. In both instances the unannounced change
24

destabilizes labor relations and undermines our statutes which favor bilateral decision-making
on matters within the scope of representation.
In Oakland Unified School District (1985) PERB Decision No. 540, the Board held that
an employer is obligated to give notice and an opportunity to bargain the effects of its
decisions that have an impact on matters within the scope of representation. In Newark
Unified School District, Board of Education (1982) PERB Decision No. 225, at p. 5, the Board
held: "while an employer is free to determine that a [non-negotiable decision] is required, it
may not, in the absence of agreement or the completion of negotiations, unilaterally implement
in-scope effects that are inconsistent with . . . contract provisions, policies, or established
practices."
Our decision in Compton Community College District (1989) PERB Decision No. 720
(Compton CCD) reinforces this rule, requiring advance notice and the opportunity to bargain,
and permitting implementation before agreement or impasse only in certain limited
circumstances. " (See also, Salinas Valley Memorial Healthcare System (2012) PERB
Decision No. 2298-M; Santee Elementary School District (2006) PERB Decision No. 1822.)
In Sutter County, the Board issued a bargaining order after concluding that the employer had
violated the MMBA by unilaterally changing a past practice (imposing background checks)
without providing the union with notice and opportunity to negotiate effects prior to
implementation. The union in Sutter County did not demand to bargain over effects,
In Compton CCD, the Board held that implementation was permissible prior to
completing negotiation over effects where an employer showed that: (1) the implementation
date was not arbitrary but based on an immutable externally-established deadline, or on an
important managerial interest such that delay beyond the chosen date would undermine the
employer's right to make the decision at all; (2) the employer gave the union notice of the
decision and implementation date sufficiently in advance of the implementation date to allow
for meaningful meeting and conferring prior to the implementation; and (3) the employer met
and negotiated in good faith on implementation and effects prior to the implementation, and
thereafter as to those subjects not resolved by virtue of the implementation.
25
destabilizes labor relations and undermines our statutes which favor bilateral decision-making
on matters within the scope
of
representation.
In Oakland Unified School District (1985) PERB Decision No. 540, the Board held that
an employer is obligated to give notice and an opportunity to bargain the effects
of
its
decisions that have an impact on matters within the scope
of
representation. In Newark
Unified School District, Board
of
Education (1982) PERB Decision No. 225, at
p. 5, the Board
held: "while an employer is free to determine that a [non-negotiable decision] is required, it
may not, in the absence
of
agreement or the completion
of
negotiations, unilaterally implement
in-scope effects that are inconsistent with
...
contract provisions, policies, or established
practices."
Our decision in Compton Community College District (1989) PERB Decision No. 720
(Compton CCD) reinforces this rule, requiring advance notice and the opportunity to bargain,
and permitting implementation before agreement or impasse only in certain limited
circumstances.
16
(See also, Salinas Valley Memorial Healthcare System (2012) PERB
Decision No. 2298-M; Santee Elementary School District (2006) PERB Decision No. 1822.)
In Sutter County, the Board issued a bargaining order after concluding that the employer had
violated the MMBA by unilaterally changing a past practice (imposing background checks)
without providing the union with notice and opportunity to negotiate effects prior to
implementation. The union in Sutter County did not demand to bargain over effects,
16
In Compton CCD, the Board held that implementation was permissible prior to
completing negotiation over effects where an employer showed that: (1) the implementation
date was not arbitrary but based on an immutable externally-established deadline, or on an
important managerial interest such that delay beyond the chosen date would undermine the
employer's right to make the decision at all; (2) the employer gave the union notice of the
decision and implementation date sufficiently in advance of the implementation date to allow
for meaningful meeting and conferring prior to the implementation; and (3) the employer met
and negotiated in good faith on implementation and effects prior to the implementation, and
thereafter as to those subjects not resolved by virtue of the implementation.
25

presumably because it learned of the change only after it was unilaterally implemented.
Nonetheless, the Board ordered bargaining over these effects. In sum, our decisions establish
the expectation that an employer will give notice and an opportunity to bargain over
reasonably foreseeable effects within the scope of representation before implementing a
managerial decision.
This principle is undermined by a rule that excuses an employer which fails to provide
a union both notice and an opportunity to request bargaining before implementing a change
with negotiable effects. Compton CCD in particular is eviscerated if the employer faces no
potential liability for failing to give advance notice and an opportunity to request effects
bargaining.
The Board most recently addressed this issue in State of California (Department of
Corrections & Rehabilitation, Avenal State Prison) (2011) PERB Decision No. 2196-S
(Avenal). In that case, the employer unilaterally implemented changes in its practice
concerning searches of correctional employees, instituting a random search policy, among
other things. No notice or opportunity to bargain was provided to the union, which was placed
on notice of the actual change only when random searches of employees commenced. The
unfair practice charge alleged, inter alia, that the employer unlawfully imposed a policy change
subject to effects bargaining without providing the union notice and the opportunity to bargain.
The charge was dismissed by a Board agent. On review, the Board majority ruled that the
employer's duty to bargain effects arose only upon a union's request to do so. The dissent
argued there should be a single standard for assessing unilateral changes, regardless of whether
the decision itself is negotiable or whether only effects are within scope, that an employer's
duty to provide notice and an opportunity to request bargaining before implementing a change
should apply equally to decision and effects bargaining, and because the employer failed to
26
presumably because it learned
of
the change only after it was unilaterally implemented.
Nonetheless, the Board ordered bargaining over these effects. In sum, our decisions establish
the expectation that an employer will give notice and an opportunity to bargain over
reasonably foreseeable effects within the scope
of
representation before implementing a
managerial decision.
This principle is undermined by a rule that excuses an employer which fails to provide
a union both notice and an opportunity to request bargaining before implementing a change
with negotiable effects. Compton CCD in particular is eviscerated
if
the employer faces no
potential liability for failing to give advance notice and an opportunity to request effects
bargaining.
The Board most recently addressed this issue in State
of
California (Department
of
Corrections & Rehabilitation, Avenal State Prison) (2011) PERB Decision No. 2196-S
(Avenal). 	In that case, the employer unilaterally implemented changes in its practice
concerning searches
of
correctional employees, instituting a random search policy, among
other things. No notice or opportunity to bargain was provided to the union, which was placed
on notice
of
the actual change only when random searches
of
employees commenced. The
unfair practice charge alleged, inter alia, that the employer unlawfully imposed a policy change
subject to effects bargaining without providing the union notice and the opportunity to bargain.
The charge was dismissed by a Board agent. On review, the Board majority ruled that the
employer's duty to bargain effects arose only upon a union's request to do so. The dissent
argued there should be a single standard for assessing unilateral changes, regardless
of
whether
the decision itself is negotiable or whether only effects are within scope, that an employer's
duty to provide notice and an opportunity to request bargaining before implementing a change
should apply equally to decision and effects bargaining, and because the employer failed to
26

provide notice of the policy change the union's duty to request effects bargaining never arose.
(See also, Chairperson Hesse's dissent in Sylvan Union Elementary School District (1992)
PERB Decision No. 919 (Sylvan), arguing that the union's obligation to demand to bargain
effects never arose because of the employer's failure to give notice and an opportunity to
bargain prior to the implementation of the change.)
In Avenal the Board majority acknowledged our case law requiring an employer to give
a union "reasonable notice and an opportunity to bargain over the 'reasonably foreseeable'
negotiable effects" of a non-negotiable decision. Nonetheless, the Board majority ruled that a
prima facie case of refusal to bargain the effects of a non-negotiable decision turned on the
union demonstrating that it made "a valid request to bargain the negotiable effects of the
employer's decision" which must "clearly identify negotiable areas of impact" and "clearly
indicate" the union's "desire to bargain over the effects of the decision," and that absent "such
an identification, the employer has no duty to bargain." (Avenal, at pp. 8-9) For this
conclusion, the Board majority relied on State of California (Department of Corrections)
(2006) PERB Decision No. 1848-S (Department of Corrections), County of Riverside (2010)
PERB Decision No. 2097-M (Riverside) and Sylvan. We review these decisions.
In Department of Corrections, the Board adopted as its own the Board agent's partial
dismissal. The union alleged that during a bargaining session for a successor agreement, and
without prior notice, departmental officials announced immediate reductions in staffing levels
having safety impacts upon the employees. The allegation was dismissed because the union
failed to allege in addition that it had made an effects bargaining demand.
In Riverside, the Board reversed an administrative law judge's (ALJ) decision holding
that the County had unlawfully changed its policy of recognizing for salary purposes certain
"hot skills" acquired by employees. Reversing the ALJ, the Board found that the union had
27
provide notice
of
the policy change the union's duty to request effects bargaining never arose.
(See also, Chairperson Hesse's dissent in Sylvan Union Elementary School District (1992)
PERB Decision No. 919 (Sylvan), arguing that the union's obligation to demand to bargain
effects never arose because
of
the employer's failure to give notice and an opportunity
to
bargain prior to the implementation
of
the change.)
In Avenal the Board majority acknowledged our case law requiring an employer to give
a union "reasonable notice and an opportunity to bargain over the 'reasonably foreseeable'
negotiable effects"
of
a non-negotiable decision. Nonetheless, the Board majority ruled that a
prima facie case
of
refusal to bargain the effects
of
a non-negotiable decision turned on the
union demonstrating that it made
"a
valid request to bargain the negotiable effects
of
the
employer's decision" which must "clearly identify negotiable areas
of
impact" and "clearly
indicate" the union's "desire to bargain over the effects
of
the decision," and that absent "such
an identification, the employer has no duty to bargain." (Avenal, at pp. 8-9) For this
conclusion, the Board majority relied on State
of
California (Department
of
Corrections)
(2006) PERB Decision No. 1848-S (Department
of
Corrections), County
of
Riverside (2010)
PERB Decision No. 2097-M (Riverside) and Sylvan. We review these decisions.
In Department
of
Corrections, the Board adopted as its own the Board agent's partial
dismissal. The union alleged that during a bargaining session for a successor agreement, and
without prior notice, departmental officials announced immediate reductions in staffing levels
having safety impacts upon the employees. The allegation was dismissed because the union
failed to allege in addition that it had made an effects bargaining demand.
In Riverside, the Board reversed an administrative law judge's (ALJ) decision holding
that the County had unlawfully changed its policy of recognizing for salary purposes certain
"hot skills" acquired by employees. Reversing the ALJ, the Board found that the union had
27

"actual" notice (i.e., advance knowledge) of the proposed change and had thus "waived" the
right to bargain over effects by failing to make a timely demand.
In Sylvan, the Board majority affirmed an ALJ's conclusion that the union had "actual"
notice (i.e., advance knowledge) of a proposed policy change and had thus "waived" the right
to bargain over effects by failing to make a timely demand. The dissent concluded that the
union had received notice only after the decision had been implemented by the employer's
announcement thereof to impacted individual employees. The dissent reasoned that absent
notice to the union, the union had no obligation to interpose a bargaining demand.
On the issue of "actual notice" the Board in both Riverside and Sylvan cited Regents of
the University of California (1987) PERB Decision No. 640-H (Regents). In Regents it was
undisputed that the union received notice of a reorganization plan prior to the challenged
implementation. Moreover, the Board held that those aspects of the reorganization plan which
had been implemented had no negotiable effects.
In Regents the Board relied on Victor Valley Union High School District (1986) PERB
Decision No. 565 (Victor Valley). There the Board articulated its "actual notice" standard as
an element of the affirmative defense of waiver. We restate here relevant portions of that
discussion:
A waiver of the right to bargain must be 'clear and unmistakable,'
evidenceng an intentional relinquishment of rights under the Act.
Los Angeles Community College District (1982) PERB Decision
No. 252; San Francisco Community College District (1979)
PERB Decision No. 105.] Prior to arriving at a firm decision to
make a change in a matter within the scope of representation, an
employer must provide the exclusive representative of its
employees with notice of the proposed change and a reasonable
opportunity to negotiate over the change. Arcohe Union School
District (1983) PERB Decision No. 360; Arvin Union School
District (1983) PERB Decision No. 300; Los Angeles, supra.
Relying on common law agency principles, the Board has
previously held that notice to employees not holding any official
28
"actual" notice (i.e., advance knowledge) of the proposed change and had thus "waived" the
right to bargain over effects by failing to make a timely demand.
In Sylvan, the Board majority affirmed an ALJ's conclusion that the union had "actual"
notice (i.e., advance knowledge) of a proposed policy change and had thus "waived" the right
to bargain over effects by failing to make a timely demand. The dissent concluded that the
union had received notice only after the decision had been implemented by the employer's
announcement thereof to impacted individual employees. The dissent reasoned that absent
notice to the union, the union had no obligation to interpose a bargaining demand.
On the issue of "actual notice" the Board in both Riverside and Sylvan cited Regents of
the University of California (1987) PERB Decision No. 640-H (Regents). 	In Regents it was
undisputed that the union received notice of a reorganization plan prior to the challenged
implementation. Moreover, the Board held that those aspects of the reorganization plan which
had been implemented had no negotiable effects.
In Regents the Board relied on Victor Valley Union High School District (1986) PERB
Decision No. 565 (Victor Valley). 	There the Board articulated its "actual notice" standard as
an element of the affirmative defense of waiver. We restate here relevant portions of that
discussion:
A waiver of the right to bargain must be 'clear and unmistakable,'
evidencing an intentional relinquishment of rights under the Act.
[Los Angeles Community College District (1982) PERB Decision
No. 252; San Francisco Community College District (1979)
PERB Decision No. 105.] Prior to arriving at a firm decision to
make a change in a matter within the scope of representation, an
employer must provide the exclusive representative of its
employees with notice of the proposed change and a reasonable
opportunity to negotiate over the change. Arcohe Union School
District (1983) PERB Decision No. 360; Arvin Union School
District (1983) PERB Decision No. 300; Los Angeles, supra.
Relying on common law agency principles, the Board has
previously held that notice to employees not holding any official
28

position in the employee organization is insufficient. See, e.g.,
Arcohe, supra, and Los Angeles, supra. We take this opportunity
to further clarify the character of the notice required prior to
making a change in a matter within the scope of representation.
Notice of a proposed change must be given to an official of the
employee organization who has the authority to act on behalf of
the organization. The notice must be communicated in a manner
which clearly informs the recipient of the proposed change. Even
in the absence of formal notice, proof that such an official had
actual knowledge of the proposed change will suffice. Notice
must be given sufficiently in advance of a firm decision to make a
change to allow the exclusive representative a reasonable amount
of time to decide whether to make a demand to negotiate. What
constitutes a 'reasonable amount of time' necessarily depends
upon the individual circumstances of each case. As waiver is an
affirmative defense, an employer asserting a waiver of the right to
bargain properly bears the burden of proving that the exclusive
representative failed to request bargaining despite receiving
sufficient notice of the intended change.[' ]
In the present case, it was not proven that any official of the
Association was given formal notice or had actual knowledge of
the proposed change in instructional minutes. While Don Wilson
was a member of the Association's bargaining team for the 1984-
86 contract, it was not shown that he had assumed his duties prior
to the District's firm decision on December 27, 1983, nor that he
had the requisite authority to act on behalf of the Association.
Though the Association received agendas for the District board's
December 13 and 27 meetings, the District failed to demonstrate
that the agendas clearly informed the Association of the proposed
increase in instructional minutes.[ ] There was no evidence that
any Association representative attended either meeting.
(Victor Valley, at pp. 4-6.)
17 "Walnut Valley Unified School District (1983) PERB Decision No. 289; Brawley
Union High School District (1982) PERB Decision No. 266; NLRB v. Transportation
Management Corp. (1983) 462 U.S. 393; Witkin, California Evidence (2nd Ed.) p. 180;
California Evidence Code section 500."
18"Citing Arvin, supra, the ALJ concluded that references in District board agendas do
not constitute sufficient notice to employee organizations. We find this reading of Arvin to be
too broad. Arvin involved the mere posting of agendas at various school sites. An agenda may
suffice if it is delivered to a proper official and is presented in a manner reasonably calculated
to draw attention to any item(s) reflecting a proposed change in a matter within the scope of
representation."
29
position in the employee organization is insufficient. See, e.g.,
Arcohe, supra, and Los Angeles, supra. We take this opportunity
to further clarify the character of the notice required prior to
making a change in a matter within the scope of representation.
Notice of a proposed change must be given to an official of the
employee organization who has the authority to act on behalf of
the organization. The notice must be communicated in a manner
which clearly informs the recipient of the proposed change. Even
in the absence of formal notice, proof that such an official had
actual knowledge of the proposed change will suffice. Notice
must be given sufficiently in advance of a firm decision to make a
change to allow the exclusive representative a reasonable amount
of time to decide whether to make a demand to negotiate. What
constitutes a 'reasonable amount of time' necessarily depends
upon the individual circumstances of each case. As waiver is an
affirmative defense, an employer asserting a waiver of the right to
bargain properly bears the burden of proving that the exclusive
representative failed to request bargaininf despite receiving
sufficient notice of the intended change. [ 7]
In the present case, it was not proven that any official of the
Association was given formal notice or had actual knowledge of
the proposed change in instructional minutes. While Don Wilson
was a member of the Association's bargaining team for the 1984-
86 contract, it was not shown that he had assumed his duties prior
to the District's firm decision on December 27, 1983, nor that he
had the requisite authority to act on behalf of the Association.
Though the Association received agendas for the District board's
December 13 and 27 meetings, the District failed to demonstrate
that the agendas clearly informed the Association of the proposed
increase in instructional minutes.[1 8] There was no evidence that
any Association representative attended either meeting.
(Victor Valley, at pp. 4-6.)
17 "Walnut Valley Unified School District (1983) PERB Decision No. 289; Brawley
Union High School District (1982) PERB Decision No. 266; NLRB v. Transportation
Management Corp. (1983) 462 U.S. 393; Witkin, California Evidence (2nd Ed.) p. 180;
California Evidence Code section 500."
18 "Citing Arvin, supra, the ALJ concluded that references in District board agendas do
not constitute sufficient notice to employee organizations. We find this reading of Arvin to be
too broad. Arvin involved the mere posting of agendas at various school sites. An agenda may
suffice if it is delivered to a proper official and is presented in a manner reasonably calculated
to draw attention to any item(s) reflecting a proposed change in a matter within the scope of
representation."
29

For the reasons set forth below, we overrule Avenal, Sylvan and other Board decisions
holding that a union must first demand to bargain effects as a precondition to enforcing an
employer's duty to provide a union reasonable advance notice and an opportunity to bargain
over the reasonably foreseeable effects within the scope of representation of an otherwise non-
negotiable decision. We explain.
We believe the better rule, one which is more consistent with our statutes, including
without limitation MMBA, and much of our jurisprudence, is stated as follows:
1. 	The employer has a duty to provide reasonable notice and an opportunity to
bargain before it implements a decision within its managerial prerogative that has foreseeable
effects on negotiable terms and conditions of employment. A "reasonable" notice is one which
is "clear and unequivocal" Lost Hills Union Elementary School District (2004) PERB Decision
No. 1652, Proposed Decision at p. 6, citing with approval Bottom Line Enterprises (1991) 302
NLRB 373, 374 and which "clearly inform[s] the employee organization of the nature and
scope of the proposed change." (Santee Elementary School District (2006) PERB Decision
No. 1822 (Santee); Victor Valley.)
2. 	Once having received such advance notice, the union must demand to bargain
the effects or risk waiving its right to do so. The union's demand must identify clearly the
matter(s) within the scope of representation on which it proposes to bargain, and clearly
indicate the employee organization's desire to bargain over the effects of the decision as
opposed to the decision itself. (Trustees of the California State University (2012) PERB
Decision No. 2287-H (Trustees CSU); Rio Hondo Community College District (2013) PERB
Decision 2313 (Rio Hondo); County of Sacramento (2013) PERB Decision No. 2315.)
3 . 	Having received such advance notice and an opportunity to bargain, a union's
failure to demand effects bargaining may waive the right to bargain the reasonably foreseeable
30
For the reasons set forth below, we overrule Avenal, Sylvan and other Board decisions
holding that a union must first demand to bargain effects as a precondition to enforcing an
employer's duty to provide a union reasonable advance notice and an opportunity to bargain
over the reasonably foreseeable effects within the scope of representation of an otherwise non-
negotiable decision. We explain.
We believe the better rule, one which is more consistent with our statutes, including
without limitation MMBA, and much of our jurisprudence, is stated as follows:
1. 	The employer has a duty to provide reasonable notice and an opportunity to
bargain before it implements a decision within its managerial prerogative that has foreseeable
effects on negotiable terms and conditions of employment. A "reasonable" notice is one which
is "clear and unequivocal" Lost Hills Union Elementary School District (2004) PERB Decision
No. 1652, Proposed Decision at p. 6, citing with approval Bottom Line Enterprises (1991) 302
NLRB 373, 374 and which "clearly inform[s] the employee organization of the nature and
scope of the proposed change." (Santee Elementary School District (2006) PERB Decision
No. 1822 (Santee); Victor Valley.)
2. 	Once having received such advance notice, the union must demand to bargain
the effects or risk waiving its right to do so. The union's demand must identify clearly the
matter(s) within the scope ofrepresentation on which it proposes to bargain, and clearly
indicate the employee organization's desire to bargain over the effects of the decision as
opposed to the decision itself. (Trustees of the California State University (2012) PERB
Decision No. 2287-H (Trustees CSU); Rio Hondo Community College District (2013) PERB
Decision 2313 (Rio Hondo); County of Sacramento (2013) PERB Decision No. 2315.)
3. 	Having received such advance notice and an opportunity to bargain, a union's
failure to demand effects bargaining may waive the right to bargain the reasonably foreseeable
30

effects. (Santee [effects not foreseeable at the time of the employer's notice may be subject of
effects bargaining demand at a later time when they become known and knowable].) Waiver
remains, however, an affirmative defense. Where a union alleges that the employer did not
provide reasonable notice and an opportunity to bargain prior to the employer's
implementation of a change in a non-negotiable policy having a reasonably foreseeable impact
on a matter within the scope of representation, a prima face case of failure to bargain in good
faith is established. The union need not allege as well that it made a demand to bargain such
effects as a condition to seeking PERB enforcement of its right to be free of an employer's
failure to provide notice and an opportunity to bargain effects. The employer may raise an
affirmative defense of waiver or otherwise challenge the union's claim that the employer did
not provide sufficient notice of the change.
Where the employer implements the change without giving the union reasonable
notice and an opportunity to bargain over foreseeable effects on matters within the scope of
representation, it acts at its own peril. If the employer is ultimately found to have had a duty to
bargain over effects and thus to have provided the union reasonable pre-implementation notice
and an opportunity to bargain, its implementation without giving such notice and an
opportunity to bargain constitutes a refusal to bargain. (Sierra Joint Community College
District (1981) PERB Decision No. 179; Sutter County.)
We conclude that, facing a unilateral change or fiat accompli, a union has a choice. It
may proceed to PERB via an unfair practice charge without first making a demand to bargain
effects. Or, it may demand effects bargaining. If the union does demand bargaining over
effects of a decision already implemented without the required notice, the employer must
respond pursuant to its duty established in Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
31
effects. (Santee [effects not foreseeable at the time
of
the employer's notice may be subject
of
effects bargaining demand at a later time when they become known and knowable].) Waiver
remains, however, an affirmative defense. Where a union alleges that the employer did
not
provide reasonable notice and an opportunity to bargain prior to the employer's
implementation
of
a change in a non-negotiable policy having a reasonably foreseeable impact
on a matter within the scope
of
representation, a prima face case
of
failure to bargain in good
faith is established. The union need not allege as well that it made a demand to bargain such
effects as a condition to seeking PERB enforcement
of
its right to be free
of
an employer's
failure to provide notice and an opportunity to bargain effects. The employer may raise
an
affirmative defense
of
waiver or otherwise challenge the union's claim that the employer did
not provide sufficient notice
of
the change.
4.	4. 	Where the employer implements the change without giving the union reasonable
notice and an opportunity to bargain over foreseeable effects on matters within the scope
of
representation, it acts at its own peril.
If
the employer is ultimately found to have had a duty to
bargain over effects and thus to have provided the union reasonable pre-implementation notice
and an opportunity to bargain, its implementation without giving such notice and an
opportunity to bargain constitutes a refusal to bargain. (Sierra Joint Community College
District (1981) PERB Decision No. 179; Sutter County.)
We conclude that, facing a unilateral change or fiat accompli, a union has a choice. It
may proceed to PERB via an unfair practice charge without first making a demand to bargain
effects. Or, it may demand effects bargaining.	
If
the union does demand bargaining over
effects
of
a decision already implemented without the required notice, the employer must
respond pursuant to its duty established in Healdsburg Union High School District and
Healdsburg Union School District/San Mateo City School District (1984) PERB Decision
31

No. 375, at pp. 9-10 (party objecting that proposal is beyond scope of representation must
make good faith effort at clarification by voicing its specific reasons for believing proposal is
outside the scope of representation and entering into negotiations on those aspects of proposal
which, after clarification, it views as negotiable; failure to seek clarification in itself violates
the duty to negotiate in good faith and will result in an order requiring the objecting party to
return to the negotiating table to seek clarification). (See also Jefferson School District (1980)
PERB Decision No. 133, at p. 1 1.)
We hold that a union's duty to request effects bargaining arises upon an employer's
providing notice and an opportunity to bargain. Where an employer implements without
providing the requisite notice and bargaining opportunity, the gravamen of the employer's
conduct is its exercise of dominion over employment conditions without first providing the
union notice and an opportunity to bargain. This conduct by itself violates the employer's
statutory duty to meet and confer, whether or not the union thereafter makes a demand for
effects bargaining.
We hold that CPOA has alleged, prima facie, that the employer violated its duty to
bargain in good faith by unilaterally reducing staffing levels without giving CPOA prior
reasonable notice and an opportunity to bargain over the reasonably foreseeable effects within
the scope of representation of this non-negotiable decision."
ORDER
The unfair practice charge in Case No. SF-CE-804-M is hereby REMANDED to the
Office of the General Counsel for issuance of a complaint consistent with our decision herein,
in regard to allegations that the County of Santa Clara unlawfully: (1) unilaterally changed a
We distinguish our recent decisions in Trustees CSU and Rio Hondo. There the
employers did provide advance notice and a bargaining opportunity to the unions. And the
unions did demand to bargain effects, which the employers refused.
32
No. 375, at pp. 9-10 (party objecting that proposal is beyond scope
of
representation must
make good faith effort at clarification by voicing its specific reasons for believing proposal is
outside the scope
of
representation and entering into negotiations on those aspects
of
proposal
which, after clarification, it views as negotiable; failure to seek clarification in itself violates
the duty to negotiate in good faith and will result in an order requiring the objecting party to
return to the negotiating table to seek clarification). (See also Jefferson School District (1980)
PERB Decision No. 133, at p. 11.)
We hold that a union's duty to request effects bargaining arises upon an employer's
providing notice and an opportunity to bargain. Where an employer implements without
providing the requisite notice and bargaining opportunity, the gravamen
of
the employer's
conduct is its exercise
of
dominion over employment conditions without first providing the
union notice and an opportunity to bargain. This conduct by itself violates the employer's
statutory duty to meet and confer, whether or not the union thereafter makes a demand for
effects bargaining.
We hold that CPOA has alleged, prima facie, that the employer violated its duty to
bargain in good faith by unilaterally reducing staffing levels without giving CPOA prior
reasonable notice and an opportunity to bargain over the reasonably foreseeable effects within
the scope
of
representation
of
this non-negotiable decision.
19
,
ORDER
The unfair practice charge in Case No. SF-CE-804-M is hereby REMANDED to the
Office
of
the General Counsel for issuance
of
a complaint consistent with our decision herein,
in regard to allegations that the County of Santa Clara unlawfully: (1) unilaterally changed a
We distinguish our recent decisions in Trustees CSU and Rio Hondo. There the	"'
employers did provide advance notice and a bargaining opportunity to the unions. And the
unions did demand to bargain effects, which the employers refused.
32

policy regarding the imposition of background evaluation requirements on currently employed
correctional officers; and (2) implemented a decision to change staffing levels at the Main Jail
without providing advance notice and an opportunity to bargain its reasonably foreseeable
effects.
Chair Martinez and Member Winslow joined in this Decision.
33
policy regarding the imposition of background evaluation requirements on currently employed
correctional officers; and (2) implemented a decision to change staffing levels at the Main Jail
without providing advance notice and an opportunity to bargain its reasonably foreseeable
effects.
Chair Martinez and Member Winslow joined in this Decision.
33