Board Modifies Effects Bargaining Rules

County of Santa Clara (2013) PERB Decision No. 2321-M (Issued on 7/25/13)

The Board has overturned another set of cases.

This case involved an unfair practice charge by the Santa Clara Correctional Peace Officers’ Association (Association) against the County of Santa Clara (County).  The charge alleged ten separate violations of the MMBA.  The one I want to focus on is an allegation that the County unilaterally changed staffing levels at the main jail.  The charge alleged that the County reduced staffing at the main jail from 75 on-duty officers to between 63 and 65 on-duty officers without providing notice to the Association.  The Association alleged that it should have been notified in advance of the change because it affected workload and safety.  The County countered that the Association failed to request bargaining once it found out about the change and therefore cannot state a prima facie case of refusal to bargain.  The Board agent dismissed the allegation.

In reversing the dismissal, the Board held that the Association’s alleged failure to request bargaining was not fatal to its unfair practice charge because of the County’s failure to provide notice.  In other words, the Board held that where a “unilateral change is alleged, a bargaining demand is not a necessary element of the prima facie case.”

In explaining its decision, the Board asserted that, “An employer’s unilateral action renders bargaining futile.”  In such a case the union is “excused from demanding to bargain over that fait accompli.”  According to the Board, this rule applies equally to both decisions that are directly negotiable and decisions where only the effects are negotiable.  As for effects bargaining, the Board noted that several prior decisions have held that a prima facie case of refusal to bargain over effects requires that the union make a valid request to bargaining.  (See State of California (Department of Corrections) (2006) PERB Decision No. 1848-S; County of Riverside (2010) PERB Decision No. 2097-M; Sylvan Union Elementary School District (1992) PERB Decision No. 919.  However, for the reasons discussed above, the Board overruled these cases to the extent they require a union to first demand to bargain effects as a precondition to enforcing an employer’s duty to provide notice and an opportunity to bargain.  Instead, the Board set forth a new set of rules.  According to the Board, the following rules apply when dealing with a refusal to bargain effects charge:

  1. The employer has a duty to provide reasonable notice and an opportunity to bargain before it implements a decision within its managerial prerogative that has foreseeable effects on negotiable terms and conditions of employment.
  2. Once having received such advance notice, the union must demand to bargain the effects or risk waiving its right to do so. The union’s demand must identify clearly the matter(s) within the scope of representation on which it proposes to bargain, and clearly indicate the employee organization’s desire to bargain over the effects of the decision as opposed to the decision itself.
  3. Having received such advance notice and an opportunity to bargain, a union’s failure to demand effects bargaining may waive the right to bargain the reasonably foreseeable effects.  Waiver remains, however, an affirmative defense. Where a union alleges that the employer did not provide reasonable notice and an opportunity to bargain prior to the employer’s implementation of a change in a non-negotiable policy having a reasonably foreseeable impact on a matter within the scope of representation, a prima face case of failure to bargain in good faith is established. The union need not allege as well that it made a demand to bargain such effects as a condition to seeking PERB enforcement of its right to be free of an employer’s failure to provide notice and an opportunity to bargain effects. The employer may raise an affirmative defense of waiver or otherwise challenge the union’s claim that the employer did not provide sufficient notice of the change.
  4. Where the employer implements the change without giving the union reasonable notice and an opportunity to bargain over foreseeable effects on matters within the scope of representation, it acts at its own peril. If the employer is ultimately found to have had a duty to bargain over effects and thus to have provided the union reasonable pre-implementation notice and an opportunity to bargain, its implementation without giving such notice and an opportunity to bargain constitutes a refusal to bargain.

Comments:

  1. I disagree with this decision and fear that it will further erode the ability to employer’s to implement managerial decisions.  Given today’s economic climate, this will just place a further burden on employers.
  2. In terms of the decision, I fully agree that an employer should and must provide notice to the union of changes within the scope of bargaining.  However, when dealing with managerial decisions, the problem is that it is not always clear when a managerial decision will have a negotiable effect.  In its decision, the Board says that notice must be given where the managerial decision has a “foreseeable” effect within the scope of representation.  That’s much easier said than done.  Any practitioner in this field will tell you that it’s not easy to predict when a managerial decision will have a negotiable effect.
  3. Where a managerial decision has an unforeseen effect, I think this decision can be read to still require the union to request to bargain.  However, that’s not clear.  Certainly, whether an effect is “foreseeable” is likely going to be a question of fact to be resolved at a hearing.  That means that more complaints will certainly be issued.
  4. Even where a managerial decision has a foreseeable effect within the scope of representation, I’m not sure why the union can’t be required to at least make a request to bargain before filing an unfair practice charge.  Where an employer makes a change directly within the scope of representation without notice, I get why the Board is not going to make the union request to bargain.  However, where the decision is a managerial right, I think the public policy has to be balanced differently.  For managerial decisions, I think public policy supports the prior rule that the union must request to bargain over any effects.  Obviously, the Board takes a different view.
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