County Violated MMBA By Unilaterally Amending Rules Regarding Promotional Opportunities

Category: Fire Watch
Date: Sep 4, 2019 04:07 PM

The County of Orange revised its Merit Selection Rules (“MSR”) for employee promotions and renamed them its Recruitment Rules and Policies (“RRP”).  The Association of Orange County Deputy Sheriffs (“Association”) later learned of the revisions.  The Association sent the County a letter identifying several changes it considered to be subject to bargaining and requested the County to return to the status quo by reinstituting the former MSR.  The County declined and replied that none of the changes concerned mandatory subjects of bargaining.  The Association then filed an Unfair Practice Charge (“UPC”) with PERB based on the following changes.

First, the RRP amended the MSR’s “Qualification of Applicants” section to state that applicants must not only meet “minimum qualifications” to be considered for a position but depending on the needs of the County, applicants must also have “desirable qualifications.”  Second, the RRP amended the MSR’s “Assessment Requirements” section to require “desirable or ideal qualifications” in some circumstances addition to minimum qualifications.  Third, the RRP included new language limiting applicants for inter-jurisdictional transfers from other counties.  Fourth, the RRP employed a new “absent rater formula” to recuse a panel member in case of a “close personal relationship” with a candidate.

The ALJ ruled that the County’s actions did not violate the Meyers-Milias-Brown Act (“MMBA”) because these changes fell outside the scope of representation, and thus did not require advance notice to the Association or an opportunity to meet and confer.  Applying the three-part test regarding the scope of representation, the ALJ referenced City of Alhambra (2010) PERB Decision No. 2139-M (Alhambra), which held that some changes to procedures for promotional opportunities are outside the scope of representation.  The ALJ then concluded that based on Alhambra, the changes to threshold qualification levels in the RRP were outside the scope of representation. 

As for the “absent rater formula” and inter-jurisdictional transfers, the ALJ found that these changes both had an effect on public services and were a fundamental managerial or policy decision, and therefore fell outside the scope of representation.  The Association excepted to the ALJ’s ruling, and the matter was heard before the PERB Board. 

PERB reversed the ALJ’s decision.  PERB found that the County violated the MMBA by implementing changes to the MSR/RRP without affording the Association advance notice and an opportunity to bargain.  PERB held that because the revisions at issue were substantive changes to the County’s promotional procedures, they fell within the scope of representation.

PERB examined 35 years of precedent predating the Alhambra decision which supported that promotional opportunities usually fall within the scope of representation. PERB stated that promotional opportunities fall outside the scope of representation only under unusual circumstances, such as when an employer makes no substantive changes to a procedure or revises a procedure to comply with changes in the law. 

PERB found no such unusual circumstances in this case.  PERB found that the County’s implementation of “desired” qualifications excluded candidates who met the minimum qualifications and therefore implicated the promotional opportunities of those who did not.  The County’s new rating formula also altered promotional opportunities. PERB decided that the County’s desire for a uniform recruitment policy covering all departments did not create an unusual circumstance that released the County from its duty to bargain.  PERB found that promotional criteria were within the scope of representation and disavowed Alhambra on this issue.

PERB also found that the County violated the MMBA with regard to effects bargaining.  PERB disagreed with the ALJ’s conclusion that the Association failed to state a claim for effects bargaining because it did not demand effects bargaining after it learned of the unilateral implementation.  PERB ruled that if a union learns of an agency’s decision after its unilateral implementation, there can be no waiver it's right to bargain effects for failure to make a demand because a union’s obligation to demand effects bargaining never even arises in the face of an employer’s unilateral implementation.  PERB also found the effects identified by the Association, including job security and promotional opportunities were not speculative given the substance of the unilaterally imposed changes.  

County of Orange, PERB Decision No. 2663-M (2019).

NOTE: 

This PERB decision disparages a nine-year-old PERB precedent and overturns the ALJ’s decision that was in the employer’s favor.  LCW will continue to monitor PERB decisions and report on whether this decision is part of any trend.

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