County Violated MMBA by Changing Performance Targets without Consulting the Union

Category: Briefing Room
Date: Mar 15, 2019 05:50 PM

The County of Kern’s Department of Mental Health operates a mental health clinic. Medi-Cal reimburses the Department for some of the services it provides. These reimbursable services are known as “direct services.”

Within the Department, six divisions provide direct services to clients. The Adult Care Division generally expected employees to spend 50% of their available time performing direct services, while other divisions generally expected employees to spend 75% of their available time doing so. Division supervisors had discretion to implement a formula for calculating whether employees met these targets. These formulas varied among divisions and supervisors.

In September 2014, the County created a new, Department-wide 75% direct services target and a corresponding Department-wide formula. These policies increased the direct services target from 50% to 75% for the Adult Care Division employees, and standardized the method for evaluating whether employees met their targets.

The County did not provide advance notice of the changes to the union representing Department employees. At a labor-management meeting, the union asked to meet and confer with the County over the new policies. The union also asked for a copy of the formula the Department was using. A County representative emailed the union a copy of formula previously used by one of the Department’s divisions, but not the new, Department-wide formula.

After the union learned the County had implemented the 75% direct services target and the associated Department-wide formula, it demanded that the County stop imposing these changes and that it meet and confer. The County Director of Mental Health advised the union that the County would continue to use the new policies. At no point did the County and the union meet and confer over the changes.

The Public Employment Relations Board (PERB) adopted the decision of the Administrative Law Judge (ALJ) and found that the County violated the MMBA by unilaterally implementing the 75% direct service target and Department-wide formula, without first giving the union the opportunity to bargain. PERB rejected the County’s argument that the Department-wide formula was sufficiently similar to its prior practices that the County had no duty to bargain. PERB reasoned that the new formula represented a significant departure for employees working in the Adult Care division who were previously only expected to meet a 50% direct services target. The County also standardized the formula for evaluating whether employees were meeting their targets, which transferred the exercise of discretion from the divisional level to the Department level. Because these changes were not consistent with the County’s past practices, the County was required to bargain with the union.

PERB also found that the County did not bargain with the union over the change of policy. The County did not respond to the union’s repeated requests to meet and confer over the changes. Further, the County did not provide the union with a copy of the Department-wide formula prior to its implementation. Thus, the County denied the union notice and an opportunity to bargain in violation of the MMBA.

County of Kern, PERB Decision No. 2615-M (2018).

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