EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Union Bad Faith, Delay, Unreasonable or Unlawful Demands, Violence or Misconduct
Single Topic for Decision 2433M
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608.02000 – Union Bad Faith, Delay, Unreasonable or Unlawful Demands, Violence or Misconduct
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. Hospital’s failure to provide the names of employees to be laid off is excused when, despite the hospital’s attempt to submit the issue to negotiations, the union declines to discuss the order of layoff, because it desires to drill deeper into the numbers justifying the hospital’s decision to lay off. Hospital’s announcement that it will proceed by reverse seniority is excused when the union fails to give the hospital a counterproposal identifying a different number for the layoffs or a different configuration for the proposed reduction.