EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Time of Implementation

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Meeting and conferring on the implementation and effects of a non-negotiable layoff decision should commence early enough to reach completion, including resolution of an impasse, prior to implementation of the decision. Only under certain circumstances may an employer implement a non-negotiable layoff decision prior to completing the meet and confer process. Implementation permissible prior to completing meet and confer where: (1) the layoff implementation date was not arbitrary, but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision to lay off; (2) the employer gave notice of the layoff decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees.