SCOPE OF REPRESENTATION – Lay-Offs

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The decision to lay off is non-negotiable, because it is within the employer’s managerial prerogatives. However, the effects of the layoff are negotiable. An employer may select the layoff date as an initial matter and present it to the union as its proposal for the timing of the layoff. Negotiations over the effects of layoff may include the exclusive representative’s robust efforts to persuade the employer that layoffs can be avoided. Those efforts may include economic concessions, or other ideas for cost-savings, or the presentation of facts that demonstrate the layoff is not necessary or need not be as deep as management proposes. However, if an exclusive representative expects to successfully establish that an employer failed to negotiate in good faith over the effects and implementation of layoffs, the exclusive representative must participate in the give-and-take of negotiable proposals, i.e., the effects and implementation of the layoff. The union cannot monopolize negotiations with its insistence on negotiating over a non-negotiable managerial decision, i.e., the decision to lay off, and hope to delay or prevent the implementation of those layoffs by charging the employer with bad faith bargaining. An exclusive representative faced with impending layoffs of unit members may choose not to offer economic concessions in trade for fewer layoffs. But where a layoff is undertaken to reduce labor costs, a union cannot claim that the employer refused to bargain over the number of employees to be laid off when the union offers no concessions of sufficient value to the employer to obviate the need for layoffs. While a union is not obligated to propose economic concessions in order to obviate the need for the layoff or to mitigate the severity of the layoff, if it chooses to offer concessions, our case law holds that such proposed alternatives to layoff are appropriate matters for negotiations. A union may not challenge an employer for failing to combine negotiations for a successor memorandum of agreement with layoff effects negotiations, when the union fails to respond to an invitation to open successor negotiations until after the layoff occurs. A hospital does not engage in piecemeal, fragmented or conditional bargaining by refusing a union’s request to combine negotiations over effects of layoff with successor MOU negotiations, when the Hospital does not condition successor MOU negotiations on an agreement regarding layoff effects, and when negotiations over both matters continue after the layoffs are implemented. Union’s assertion that a hospital resisted engaging union in discussions to rebut union’s assertions that layoffs were unnecessary is tantamount to a claim of a right to negotiate the decision to lay off.