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PERB Rules County Impermissibly Surface Bargained Revisions To Class Specifications
The County of Sacramento’s Department of Airports has approximately 11 Airport Operations Dispatchers II, and three Airport Operations Dispatchers Range B. According to the job description for the Airport Operations Dispatcher I/II classification, all dispatchers must have no criminal history, a valid California Driver License, meet certain physical requirements, and pass a background check. All dispatchers must perform a variety of communications functions, including receiving, evaluating, and responding to requests for emergency and non-emergency services.
In 2016, the County’s Emergency Medical Services Agency notified the County that any dispatch units accepting calls for emergency medical assistance would be required to use an updated dispatch procedure. It also required all emergency medical dispatchers to obtain and maintain an Emergency Medical Dispatch (EMD) certification. To obtain an EMD certification, an emergency medical dispatcher must: 1) be 18 years of age or older; 2) possess a high school diploma or general education equivalent; 3) possess a current, basic Healthcare Provider Cardiac Life Support card; and 4) complete an approved training course.
After receiving notice of the new procedure, the County initiated a classification study to determine whether to revise the Airport Operations Dispatcher I/II classification to include the EMD certification requirement. The County notified United Public Employees, Inc. (Union), the union representing the Airport Operations Dispatcher I/II class specification, of the classification study and offered to meet and confer over the revisions and the certification requirement.
After the parties agreed to several class specification revisions, the County withdrew the changes asserting it was not required to bargain the EMD certification requirement. Throughout the course of the negotiations, the Union sought a wage increase based on the certification requirement. However, the County rejected the Union’s proposals, stating that the wage proposals should be raised during the negotiations for the parties’ successor memorandum of understanding (MOU), which were occurring simultaneously. The Union asked to continue discussions regarding the wage issue, but the County left the negotiation table. While the County later indicated it remained willing to engage in effects bargaining, the Union did not request it. The County subsequently implemented the EMD certification requirement but did not revise the Airport Operations Dispatcher I/II class specification.
The Union then filed an unfair practice charge, alleging the County failed to meet and confer in good faith over revisions to the class specification. The Administrative Law Judge (ALJ) issued a proposed decision concluding the County made an unlawful unilateral change to the terms and conditions of the dispatchers’ employment, even though the Union’s unfair practice charge never included a unilateral change allegation. The County filed exceptions to the ALJ’s decision.
The Public Employment Relations Board (PERB) concluded it was improper for the ALJ to analyze the case under the unilateral change theory. PERB noted that a complaint alleging a unilateral change – a per se violation of the Meyers-Milias-Brown Act (MMBA) – typically alleges that the respondent changed a policy without affording the exclusive representative prior notice or an opportunity to meet and confer over the change or its effects. While the Union did not allege that the County changed the policy without providing the union notice or an opportunity to meet and confer over the change or its effects, PERB noted that this omission did not necessarily foreclose consideration of the unilateral change theory. However, the Union neither amended its complaint nor demonstrated that the unalleged violation doctrine had been satisfied. Further, at no point during PERB’s investigatory or hearing processes did the Union raise an independent unilateral change theory. Thus, PERB concluded the County did not have sufficient notice that a unilateral change theory would be litigated in this case.
While PERB determined the Union could not establish a unilateral change theory, it nonetheless determined that the County violated its bargaining obligations under the MMBA by surface bargaining over the revisions to the class specification. PERB first noted that the County was obligated to negotiate about the addition of the EMD certification requirement. PERB reasoned that changes to job specifications, including certification requirements and other qualifications, are within the scope of representation unless the changes at issue do no more than is required to comply with an externally-imposed change in the law. The County attempted to invoke this exception since the Emergency Medical Services Agency required the certification, but PERB concluded that the exception did not apply. PERB found that the Emergency Medical Services Agency was a County entity, so it did not qualify for the externally-imposed law exception. In addition, PERB found that the underlying state Emergency Medical Services Act did not set an inflexible standard or ensure immutable provisions that would negate the County’s duty to bargain with the Union.
Next, PERB also concluded that the County was required to bargain with the Union regarding its wage proposals. While the County argued that the Union was required to make its wage proposals in successor MOU negotiations, PERB disagreed. PERB noted that the Union’s wage proposals were made in response to the County’s proposed revisions to the class specification, which included a new training and certification requirement. PERB reasoned it would be “patently unfair under these circumstances” to allow the County to propose new terms and conditions of employment within the scope of representation while simultaneously preventing the Union from making integrally related counterproposals. Indeed, such conduct would constitute prohibited “piecemeal” bargaining tactics. Thus, once the County proposed revised class specifications, it was obligated to negotiate at the same table any proposals by the Union on related matters within the scope of representation.
Having concluded that the County was required to bargain over the revisions to the class specification and the Union’s wage proposals, PERB determined that the County had surface bargained. PERB noted that the ultimate inquiry in surface bargaining cases is whether the totality of the conduct was sufficiently egregious to frustrate negotiations or avoid agreement. PERB reasoned the County exhibited a take-it-or-leave-it attitude by taking the position the EMD certification requirement was not negotiable and repeatedly rejecting the Union’s attempts to discuss a wage increase tied to the change in the class specification. Further, the County implemented the EMD certification requirement without first bargaining with the Union to impasse or agreement. For these reasons, PERB found the County surface bargained in violation of the MMBA.
United Public Employees v. County of Sacramento, PERB Decision No. 2745-M (2020).
The typical remedy for surface bargaining includes an order to cease and desist from negotiating in bad faith and from interfering with protected rights. Further, if an employer implements changes to terms and conditions within the scope of representation without first reaching a bona fide impasse in negotiations, PERB orders the employer to restore the status quo. Here, PERB ordered the County to cease and desist from negotiating in bad faith and to restore the conditions that existed prior to the County’s surface bargaining.