AFSCME represents some East Bay Regional Park District employees, many of whom had been working remotely since the onset of the COVID-19 pandemic. In July 2021, AFSCME and the District negotiated a Letter of Agreement (LOA) creating a pilot telecommuting program, which allowed for flexible telecommuting arrangements and permitted supervisors to grant telework agreements. The LOA included a sunset clause that allowed either party to terminate it with 90 days’ notice, but also required the parties to satisfy their statutory duty to bargain before making any changes.
In May 2022, the District gave notice of its intent to sunset the LOA effective August 30, 2022. The parties held several bargaining sessions prior to August 20, 2022, but did not reach an agreement. The District proposed a more restrictive policy that: required employees to work in-person at least three days per week; limited eligibility for new hires; required in-person attendance on specific days; and prohibited out-of-state telework.
On August 11, 2022, while negotiations were still ongoing, the District’s General Manager sent an e-mail to all employees announcing the new policy and offered AFSCME-represented employees the option to continue teleworking only if they agreed to the new policy. AFSCME objected, asserting the new policy constituted an unlawful unilateral change and a direct dealing violation. It demanded that the District rescind the new policy and resume negotiations under the terms of the prior agreement. The District refused and declared impasse on August 30, 2022.
In the midst of these developments, the microphone of AFSCME’s lead negotiator cut out for a brief period when he was speaking during the public comment period of the August 9, 2022 Board of Directors meeting.
AFSCME filed an unfair practice complaint with the Public Employment Relations Board (PERB), which alleged that the District violated the MMBA when it: 1) unilaterally changed its telework policy; 2) unlawful directly dealt with represented employees when it bypassed AFSCME with the new policy; 3) interfered with protected rights by muting the microphone of AFSCME’s lead negotiator during the public comment portion of a District Board of Directors meeting; and 4) derivatively interfered with protected rights by the direct dealing and unilateral change violations.
On the first issue, PERB found that the telework policy was a mandatory subject of bargaining. The District had a legal duty to maintain the status quo and not implement changes without first bargaining to agreement or lawful impasse. PERB rejected the District’s claim that the expiration of the LOA allowed it to revert to pre-pandemic in-person work policies. PERB held that even after the expiration of the LOA, its terms remained the status quo, and the District could not impose new terms without satisfying its duty to bargain in good faith.
Second, PERB determined that the District had directly dealt with represented employees. By offering the new policy directly to represented employees while bargaining with AFSCME, the District undermined AFSCME’s exclusive representation rights.
Third, PERB found that the District interfered with protected rights when it muted the union negotiator during public comment. The District claimed that the muting was unintentional or due to technical issues. While the interruption was brief, PERB concluded that the act discouraged protected speech and was not justified by any operational necessity.
Fourth, PERB held that these actions were also derivative interference with union and employee rights. PERB explained that because the unilateral change and direct dealing infringed upon core bargaining rights, the District inherently interfered with the Union’s ability to represent employees and with employees’ rights to be represented.
PERB ordered the District to rescind the August 2022 telecommute policy as applied to AFSCME-represented employees and to return to the terms set out in the July 2021 LOA. PERB ordered the District to cease and desist from making unilateral changes, from bypassing AFSCME, and from interfering with protected rights. It also required the District to bargain in good faith over any future changes to the telecommute policy and to post and electronically distribute a notice of its violations. PERB ordered the District to provide relief for any losses employees incurred due to the unilateral policy change, including increased commuting or childcare costs.
East Bay Regional Park District (2025) PERB Dec. No. 2969, judicial appeal pending.