Decision 0999S – State of California (Department of Forestry and Fire Protection)

SF-CE-100-S

Decision Date: June 22, 1993

Decision Type: PERB Decision

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Perc Vol: 17
Perc Index: 24112

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
100.01000 – In General

The circumstances in this case do not meet the test in Youth Authority PERB Decision No. 962-S in which an arbitration clause may continue in effect after expiration of a contract, and therefore deferral to binding arbitration is not an available avenue of resolution; p. 11, footnote.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

The process of negotiating over terms within the expired contract does not result in suspension of those terms during negotiations. Rather, the terms of the expired agreement remain in effect throughout negotiation and may continue to be implemented in accordance with those terms; p. 12, footnote.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

To determine whether a unilateral change has occurred, the status of the written agreement between the parties must be analyzed to determine whether it includes provisions concerning area of layoff, and if so, whether the terms of that agreement arguably were breached; p. 8. Traditionally, an employer must maintain certain terms contained in an expired contract until such time as bargaining over a successor agreement has been completed either by reaching agreement or impasse; p. 8. The process of negotiating over terms within the expired contract does not result in suspension of those terms during negotiations. Rather, the terms of the expired agreement remain in effect throughout negotiation and may continue to be implemented in accordance with those terms; p. 12, footnote. negotiation and may continue to be implemented in accordance with those terms; p. 12, footnote.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

Absent some form of waiver, the duty to bargain continues during the term of the collective bargaining agreement; pp. 11-12. A waiver clause typically provides that there is no further duty to bargain specified negotiable subjects during the term of the agreement. The purpose of such a clause is to lend stability to the bargaining relationship by limiting the possibility of continuous negotiations; p. 12. Parties are free to seek negotiations on subjects within the scope of representation which are covered by an agreement which does not include a waiver clause; p. 12. In matters involving the fundamental employment relationship, the unique status of the Dills Act as a supersession statute mandates that great deference be given to the rights of employees and their exclusive representatives; p. 16. great deference be given to the rights of employees and their exclusive representatives; p. 16. statutory provisions relating to the employment relationship by agreeing to memorandum of understanding provisions which differ from the specified statutory provisions; p. 17. By designating specific sections of the Government Code as supersedable, the Legislature has provided clear direction of its intent to ensure that the subjects of those sections are appropriate subjects of collective bargaining within the scope of representation; p. 17.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

In matters involving the fundamental employment relationship, the unique status of the Dills Act as a supersession statute mandates that great deference be given to the rights of employees and their exclusive representatives; p. 16. The Dills Act provides the state employer and an exclusive representative with the authority to supersede specified statutory provisions relating to the employment relationship by agreeing to memorandum of understanding provisions which differ from the specified statutory provisions; p. 17. By designating specific sections of the Government Code as supersedable, the Legislature has provided clear direction of its intent to ensure that the subjects of those sections are appropriate subjects of collective bargaining within the scope of representation; p. 17. subjects of collective bargaining within the scope of representation; p. 17. bargaining within the scope of representation; p. 18.

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

The state employer's prerogative to reduce its operations includes the authority to identify the specific positions in specific locations to be eliminated, and is not a negotiable subject; p. 2. The layoff of employees occupying the positions which managment has decided to eliminate affects the fundamental employment relationship. Under the Dills Act, a supersession statute, subjects affecting the fundamental employment relationship, such as the designation of the area in which employees will be laid off, are negotiable subjects; p. 2. A decision to reduce operations and lay off employees covered by the Dills Act is not negotiable because it is a matter of "fundamental management concern that requires that such decisions be left to the employer's prerogative;" p. 13. The state employer's fundamental management prerogative to reduce employer's prerogative;" p. 13. The state employer's fundamental management prerogative to reduce prerogative includes the right to designate specific positions in specific locations to be reduced through layoff; p. 15. The designation of the geographical area of layoff, as aspect of the layoff process, determines the degree of options to actual layoff available to individual employees. This designation directly affects the likelihood of demotion or termination of the employment relationship, as well as the likelihood of reemployment following demotion of layoff; p. 16. The Legilature has clearly directed that the subject of Government Code section 19997.2 is an appropriate subject of collective bargaining within the scope of representation; p. 18. The subject of designating the geographical area in which employees occupying those positions will be laid off is within the scope of represenation under the express terms of the Dills Act, a supersession occupying those positions will be laid off is within the scope of represenation under the express terms of the Dills Act, a supersession

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.04000 – Unalleged Violations

The complaint broadly alleges the unlawful conduct and is sufficiently clear to put the parties on notice of the issue to be addressed; pp. 6-7, footnote.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

Absent some form of waiver, the duty to bargain continues during the term of the collective bargaining agreement; pp. 11-12. A waiver clause typically provides that there is no further duty to bargain specified negotiable subjects during the term of the agreement. The purpose of such a clause is to lend stability to the bargaining relationship by limiting the possibility of continuous negotiations; p. 12. Parties are free to seek negotiations on subjects within the scope of representation which are covered by an agreement which does not include a waiver clause; p. 12.