EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Time of Implementation
Single Topic for Decision 2694M
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602.04000 – Time of Implementation
City’s argument that it decided to subcontract a classification’s work after it decided to layoff all employees in the classification comported with neither the facts nor the law. The overall record supported an inference that the City decided to subcontract the classification’s future work in conjunction with its decision to eliminate the classification. It does not matter that there was a lag between the subcontracting decision and the implementation thereof. Where an employer’s change in policy is alleged to constitute an unfair practice, the operative date for the alleged violation is generally the date when the employer made a firm decision to change the policy, even if the change itself does not take effect until a later date. (City of Sacramento (2013) PERB Decision No. 2351-M, p. 27; City of Milpitas (2015) PERB Decision No. 2443-M, pp. 15-16.) PERB attributed the lag between the City’s subcontracting decision and its implementation of that decision to the City’s wait for further funding; PERB did not find that the lag demonstrated uncertainty regarding the City’s decision to use alternative means to cover the work previously done by the laid off classification. Moreover, even if the City had proven that it made no single decision about how to cover the classification’s work, but instead made a new decision every time it began a project involving work formerly done by the classification, this would nonetheless constitute an MMBA violation, since the City had not bargained regarding any allegedly separate or independent decisions on how to cover the classification’s work after the layoffs. The City did not provide the exclusive representative with advance notice of such decisions, nor did the City provide an opportunity to bargain before it made firm decisions.