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409.01000 – Business Necessity

Where employer conduct is deemed “inherently destructive” of protected rights, it will be excused only when caused by circumstances beyond the employer’s control and when no alternative course of action was available. The Board rejected University’s argument that it was justified in eliminating the Young Musician’s Program because 1) the Program did not fit into the strategic goals of other University departments or programs; and 2) transferring the Program’s operations to a non-University entity, which would retain significant affiliations with the University, was the most practical solution for disposing of endowed funds specifically earmarked for the Program. Even accepting these contentions as true, the Board found that they did not account for the alternatives that were available to the University, including providing UC-AFT with adequate notice of the decision to subcontract the Program, and, upon request, to bargain with UC-AFT over negotiable aspects of this decision. Nothing in HEERA required the University to choose different priorities, to reallocate its resources in a different manner, or to come to a different decision than the one University’s primary decisionmaker reached to close the Program and continue operations under a different organization. HEERA section 3570 does, however, require the University or its representatives to “engage in meeting and conferring with the employee organization selected as exclusive representative of an appropriate unit on all matters within the scope of representation.” This obligation is not extinguished, even in emergency circumstances, and, in any event, the University identified no immutable deadline or managerial interest that would have been negated had implementation been delayed. (pp. 71-72.)