EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP – Circumvention of Union; Direct Dealing With Employees
Single Topic for Decision 2618E
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603.04000 – Circumvention of Union; Direct Dealing With Employees
Here, the ALJ cited State of California (Department of Motor Vehicles) (1999) PERB Dec. No. 1347-S (DMV) to support his conclusion that article 11.2 authorized the District to deal directly with unit employees regarding workweek modifications. However, the plain language of the contract in DMV unambiguously waived the union’s right to bargain. Specifically, it allowed the employer to “establish, pursuant to an operational need or a request by either a [union] representative or an employee, flexible work hours.” (Id., adopting partial dismissal letter, p. 2, emphasis added.) In other words, changes to work hours did not require any employee or union approval, and certainly did not require approval by the majority of affected employees. This is not the case here. In these circumstances, the District’s decision to discuss workweek modifications with every employee individually had the effect of nullifying its contractual duty to obtain majority approval. The District sought to obtain a waiver or modification of its contractual promise not to impose modified workweeks without first obtaining the approval of the majority of affected employees. Under our law, this conduct constitutes a paradigmatic example of direct dealing.