Decision 2287H – Trustees of the California State University

LA-CE-1125-H

Decision Date: October 4, 2012

Decision Type: PERB Decision

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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

The standard for determining whether there has been an unlawful unilateral change is necessarily distinct from the standard for determining whether there has been a failure to bargain effects. It is not necessary to prove the occurrence of an actual change in employees’ working conditions as a precondition to finding a duty on the part of management to negotiate the impact. So long as the immediate or prospective effect of a non-negotiable decision identified by charging party falls within the scope of representation and is reasonably foreseeable and causally related to the non-negotiable decision, the bargaining obligation attaches.

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

Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation.

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

Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation.

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

Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.05000 – Impact and Extent

Under HEERA, before implementing a non-negotiable decision, the parties must first negotiate over effects that have an impact on matters within the scope of bargaining. Once a firm decision is made, an employer must provide the exclusive representative with notice and a reasonable opportunity to negotiate prior to taking action that affects matters within the scope of representation. When claiming that an employer’s non-negotiable decision will have an effect on a subject within the scope of bargaining, the charging party bears the burden of alleging facts demonstrating a reasonably foreseeable impact on employees’ working conditions. Because bargaining over effects contemplates that negotiations will occur prior to implementation of the non-negotiable decision, the parties must assess the effects of the decision prospectively, without the benefit of hindsight. Where the employee organization has made a timely demand for bargaining on an issue within the scope of bargaining, the employee has the following three choices: (1) accede to the demand and address the employee organization’s concerns in negotiations; (2) ask the employee organization for its negotiation justification; or (3) refuse the employee organization’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. Union met its burden of establishing a prima facie case of failure to bargain effects of management decision to implement executive order governing student mental health services, where request identified reasonably foreseeable impact on workload, thereby triggering duty to bargain potential impacts prior to implementation.

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

To the extent that a non-negotiable managerial decision concerning direction of the workforce has an effect on employee workload, such an effect would be negotiable.