EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – Decision vs Effects Bargaining

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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.) (A hospital is not liable for failing to bargain over the implementation of a layoff where the union does not offer any concrete proposals on any negotiable subjects related to the layoffs.) (A union’s failure to provide alternative cost-saving measures is an appropriate factor in support of the conclusion that a hospital did not fail to bargain in good faith over the effects of a 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.) 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’s layoff implementation date is not arbitrary when: (1) it is pegged to economic factors external to the hospital’s decision-making authority and beyond its control; (2) the hospital exercises its management prerogative to reduce staff in light of foreseeably lower patient census numbers and a reduction in revenue; and (3) the union never proposed an alternative date for the layoffs based on a different substantive reason other than that cited by the hospital. Two months is a sufficient amount of time for a hospital to provide a union with notice of layoffs, when it is reasonably soon after the union’s date of certification as the exclusive representative of the relevant bargaining unit. 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. A hospital is justified in prioritizing limited negotiating time available to the effects on the employees to be laid off and deferring the issues concerning the remaining employees, especially when the union refuses to constructively engage on the hospital’s proposals on a range of effects issues typically related to employees to be laid off. A hospital is justified in prioritizing negotiations concerning the employees to be laid off over negotiations concerning the effects on the employees remaining after a layoff, when the union demands a detailed justification for the layoff and fails to engage the hospital on its effects bargaining proposals as to the employees to be laid off, and where the employer reasonably believes the effects on remaining employees will be minimal based on the reduced scope of the layoff, the prediction that patient census would further decline, and the hospital’s determination to take a wait-and-see approach using temporary schedules following the layoffs.