Decision 2110S – State of California (Department of Veterans Affairs) * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M

SA-CE-1808-S

Decision Date: June 1, 2010

Decision Type: PERB Decision

 * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M * * *

View Full Text (PDF)

Perc Vol: 34
Perc Index: 90

Decision Headnotes

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

Department’s decision to close veterans home’s acute care unit and layoff acute care employees was not within the scope of representation because the department did not contract out bargaining unit work to private hospitals but merely ceased to provide acute care services to home’s residents. Letter stating union’s displeasure that it was not afforded an opportunity to show the department why acute care unit closure was not cost-effective did not constitute valid demand to bargain negotiable effects of the closure decision. Allegation that union representatives “sought to negotiate over the decision to close and its impact,” absent further details of the bargaining demand, insufficient to establish an oral demand to bargain effects.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

Department’s decision to close veterans home’s acute care unit and layoff acute care employees was not within the scope of representation because the department did not contract out bargaining unit work to private hospitals but merely ceased to provide acute care services to home’s residents. Letter stating union’s displeasure that it was not afforded an opportunity to show the department why acute care unit closure was not cost-effective did not constitute valid demand to bargain negotiable effects of the closure decision. Allegation that union representatives “sought to negotiate over the decision to close and its impact,” absent further details of the bargaining demand, insufficient to establish an oral demand to bargain effects.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand

Demand to meet and confer over negotiable effects of a non-negotiable decision must identify those subjects within the scope of representation impacted by the decision as well as the specific effects over which the union wishes to bargain. Letter stating union’s displeasure that it was not afforded an opportunity to show the department why acute care unit closure was not cost-effective did not constitute valid demand to bargain negotiable effects of the closure decision. Allegation that union representatives “sought to negotiate over the decision to close and its impact,” absent further details of the bargaining demand, insufficient to establish an oral demand to bargain effects.

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

Department’s decision to close veterans home’s acute care unit and layoff acute care employees did not constitute unlawful unilateral change. The decision was not within the scope of representation because the department did not contract out bargaining unit work to private hospitals but merely ceased to provide acute care services to home’s residents.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

Layoff notices sent to bargaining unit members did not constitute sufficient notice to the union of the employer’s decision to layoff employees. Request to bargain over layoff decision would have been futile because layoff notices indicated the employer had already made a firm decision.

1000.00000 – SCOPE OF REPRESENTATION
1000.02026 – Contracting Out

Contracting out is within the scope of representation when: (1) the employer simply replaces its employees with those of a contractor to perform the same services under similar circumstances; or (2) the decision was motivated substantially by potential savings in labor costs. Charge failed to establish that the State’s closure of acute care unit at veterans home and layoff of unit employees was the result of contracting out. Charge did not allege facts showing that the State contracted with private hospitals to perform acute care services for home residents that had previously been performed by bargaining unit members. Medi-Cal payments to private hospitals for home residents’ acute care services did not establish that the State contracted out bargaining unit work.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

The Board may affirm a dismissal of an unfair practice charge on any ground supported by the record.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

The Board has discretion to allow the filing of a reply brief when a response to exceptions raises new issues, discusses new case law or formulates new defenses to allegations. Even though dismissal did not address contracting out allegation, issue had been contested by the parties during Board agent’s investigation and therefore was not a “new issue” when raised in response to appeal of dismissal. Board denied charging party’s request for leave to file reply brief to address contracting out issue.