General PERB Rule: The Calexico Emergency Exception
Given the coronavirus pandemic, I’ve gotten a lot of questions about whether there is an “emergency” exception to the duty to bargain over changes within the scope of representation. Yes, there is; it falls under the general “business necessity” defense. The Calexico emergency defense requires an employer to show an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. (Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20 (“Calexico”); see also San Francisco Community College District (1979) PERB Decision No. 105; Compton Community College Dist. (1989) PERB Dec. No. 720; Oakland Unified School Dist. (1994) PERB Dec. No. 1045; County of San Bernardino (Office of the Public Defender) (2015) PERB Dec. No. 2423-M.) Notably, in all these cases PERB held that the employer did not meet the elements of the Calexico emergency defense. So while the language of the Calexico exception might appear broad, PERB has interpreted it very narrowly.
NLRB Emergency Exception: Bottom Line Enterprises
On March 27, 2020, the General Counsel of the NLRB released a memorandum summarizing the NLRA cases on the duty to bargain in emergencies. In short, under Bottom Line Enterprises, 302 NLRB 373 (1991), an exception to the duty to bargain exists where the employer can demonstrate that economic exigencies compel prompt action. The memo noted that this exception is limited to “’extraordinary events which are an unforeseen occurrence, having a major economic effect requiring the company to take immediate action’ (quoting RBE Electronics of S.D., 320 NLRB 80, 81 (1995).” Applying this rule in Port Printing & Specialties, 351 NLRB 1269 (2007), enforced, 589 F.3d 812 (5th Cir. 2009), the NLRB found that an impending hurricane and mandatory evacuation permitted the employer to make changes with scope without first bargaining with the union.
MMBA Emergency Exception: Gov. Code Section 3504.5
Public employers under the MMBA have an “emergency” exception in additional to the one set forth in Calexico. Government Code section 3504.5 provides that:
(a) Except in cases of emergency as provided in this section, the governing body of a public agency, and boards and commissions designated by law or by the governing body of a public agency, shall give reasonable written notice to each recognized employee organization affected of any ordinance, rule, resolution, or regulation directly relating to matters within the scope of representation proposed to be adopted by the governing body or the designated boards and commissions and shall give the recognized employee organization the opportunity to meet with the governing body or the boards and commissions.
(b) In cases of emergency when the governing body or the designated boards and commissions determine that an ordinance, rule, resolution, or regulation must be adopted immediately without prior notice or meeting with a recognized employee organization, the governing body or the boards and commissions shall provide notice and opportunity to meet at the earliest practicable time following the adoption of the ordinance, rule, resolution, or regulation.
This emergency exception is separate and distinct from the general PERB emergency exception set forth in Calexico. Most notably, this exception requires the declaration of an emergency by the governing body of the public agency. (Sonoma County Organization etc. Employees v. County of Sonoma (1991) 1 Cal.App.4th 267, 274 (“Sonoma”).) It also requires the employer to provide notice and the opportunity to meet “at the earliest practicable time” following the adoption of the emergency declaration. In Sonoma, the court held that once an emergency is declared, the union has the burden to prove that the County abused its discretion. In reviewing the emergency declaration, the Sonoma court held that due to the “discretionary nature of the power to declare an emergency” the court must accord deference to the legislative body making such a declaration. (Id. at p. 279.) Accordingly, the exception in section 3504.5 appears to be broader than the one in Calexico. But a word of caution, Sonoma was decided before PERB took jurisdiction over the MMBA. While PERB is arguably bound by Sonoma, it’s very possible that PERB’s application of the Sonoma decision may not be as deferential as that of the court.