“Clarifying” the rule on effects bargaining

Trustees of the California State University (2012) PERB Decision No. 2287-H (Issued on 10/04/12)

The essential facts in this case are not in dispute.  The California State University (CSU) exercised its managerial right to implement a policy governing the provision of mental health services for students.  The union, California Faculty Association (CFA), made a timely demand to bargain the effects of the decision.  CFA identified “workload” as one such effect. CSU implemented the executive order without bargaining because it did not believe the executive order made any changes to the “workload” of union members.

The Board agent dismissed the charge based on a finding that any effect on workload was speculative.  In reversing the dismissal, PERB affirmed the general principle that employers have a duty to bargain over the effects of a managerial decision prior to implementation.  PERB also affirmed that in making its request to bargain, the union must “clearly identify negotiable areas of impact, and clearly indicate the employee organizations desire to bargain over the effects of the decision as opposed to the decision itself.”  Further, PERB held that, “When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions.”

In making this latter statement, PERB explicitly rejected any requirement that the union must demonstrate actual impact on employees’ terms and conditions of employment.  According to PERB, “To require a showing of “actual impact” is at odds with the forward-looking nature of a foreseeability analysis.”  Recognizing that prior cases have not been consistent on this point, PERB issued the following clarification:

Notwithstanding the Board’s intent in Beverly Hills, however, the phrase “actual impact” and the notion of proving actual change as an element of the prima facie case has crept into PERB analyses in cases where the only unfair practice alleged is a failure or refusal to bargain the prospective potential negotiable effects of a non-negotiable decision upon a timely request. This case has brought to light not only a prima facie violation of CSU’s duty to bargain in good faith over the effects on workload of the executive order, but as important, confusion over and/or misidentification of the appropriate standard to be used in evaluating such a charge. Accordingly, for purposes of clarification, we herein affirm that the foreseeability standard as articulated in Mount Diablo is, and always has been, the appropriate standard in cases involving the alleged failure to bargain the negotiable effects of a nonnegotiable decision.

Comments:

The effect of this “clarification” remains to be seen.  Certainly, I agree with PERB’s point that a union cannot demonstrate the “actual” impact of something that has not yet occurred.  However, I can also see the “reasonably foreseeable” standard being watered down so much that almost any managerial decision might arguably have an effect on a negotiable subject of bargaining.  Combined with the requirement to bargain over effects prior to implementation, such an interpretation could have the practical effect of preventing employers from exercising their management rights.  Hopefully that won’t occur.

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