Case Study: When Can An Employer Change Working Conditions?

On August 18, 2023, the Public Employment Relations Board issued its decision in the matter of Costa Mesa Firefighters, Local 1465 v. City of Costa Mesa (2023) PERB Dec. No. HO-U-1772-M, resulting in another big win for labor, Local 1465, and the Ferrone Law Group.  

But first, what is the Public Employment Relations Board (PERB)?  PERB is the state administrative body that has exclusive jurisdiction over violations and enforcement of the state collective bargaining statutes.  Thus, for example, when an employer negotiates a collective bargaining agreement (CBA) in bad faith, or retaliates against union members for protected union activities, PERB has jurisdiction to hold a trial, issue findings and rulings, and compel the employer to remedy their transgressions.  

In Costa Mesa, the facts were fairly straightforward.    Local 1465, had a CBA provision where members donate vacation time to be used by the Executive Board to handle union matters.  The City didn’t like that the Local had unfettered access to use this time off whenever it wanted to and  began to unilaterally implement restrictions on when the release time could be used.  Separately, the Local also had a so-called “return to work policy,” already included in the CBA for members returning from extended leaves of absences.  The City later implemented a new rule asking the returning members to complete a task book before returning to work; a much more labor-intensive task than what was written in the CBA.  Thus, the City unilaterally implemented these changes without meeting and conferring; both of which are required by the collective bargaining statute.  

For  cities, the applicable collective bargaining statute is the Meyers-Milias-Brown Act, found at California Government Code Sections 3500 – 3511.  Section 3505 requires employers to meet and confer with unions over matters within the scope of negotiations prior to implementing such changes.  Employers who implement changes to matters within the scope of negotiation, without first having negotiated, are said to have made an unlawful unilateral change.  

  For a union to prove an unlawful unilateral change, the union must show that the employer changed, or deviated from the status quo.  And, in doing so, the union must show that an employer has changed or deviated from the status quo in at least one (1) of three (3) ways: 1) a deviation from a written agreement or written policy; 2) a change in established past practice; or 3) a newly created policy or application or enforcement of existing policy in a new way.  Thus, an employer who does any one of these three things is said to have committed an unfair labor charge by making an unlawful unilateral implementation.   

In Costa Mesa, after a 2-day trial in March 2023, the judge ruled in favor of Local 1465.  PERB soundly rejected the evidence and arguments of the City.  With respect to the union release time, the judge found the CBA provision to be vague; as a result, the City did not deviate from a written agreement or written policy.  However, the judge did find that there was an established past practice of Executive Board members having unfettered access to the release time; thus, the City’s limitation was a unilateral change to an existing past practice.  

With respect to the “return to work” policy, the judge found this was a clear CBA provision, and the City’s attempt to add additional hurdles for members to return to work violated the clear and established written agreement.  As a result, the City was found to have made two unlawful unilateral changes.  PERB then ordered the City to cease and desist from its new practices, and ordered it to return to the status quo.  PERB further ordered that all members who were financially impacted by these changes be made whole and provided financial restitution by the City.  

The takeaway is that unilateral changes made by an employer may be found to be unlawful if they fit within one of the three categories outlined above.  While it was not applicable here, the most prevalent issue we see is management wanting to implement a brand-new policy, or changing the way a current policy is interpreted. However, these changes must be negotiated with the union before being implemented.  Last, but certainly not least, is to remember that PERB has a very strict 6-month statute of limitations for unions to file unfair labor charges.  If management implements an unlawful change, and it is not challenged within that 6-months, there is nothing that can be filed to stop it.  At that point, the only way to correct the matter would be to bring it up as a proposal in regular collective bargaining as a proposal to the employer.  

Ultimately, Costa Mesa serves as a solid reminder to management that they must respect their workers.  They must follow the law.  They must follow the CBA.  And when they don’t, we are there to help.