Decision 2296M – City of Long Beach

LA-CE-537-M

Decision Date: December 4, 2012

Decision Type: PERB Decision

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Decision Headnotes

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

Given the overwhelming acceptance of the concept of impasse as a term of art central to labor relations, the definition of impasse under EERA, as interpreted by PERB, is appropriate under the MMBA as well. Evidence did not support conclusion that parties reached a point at which further negotiations would be futile. Thus, regardless of whether or not employer formally declared impasse or presented a “last, best and final offer,” an impasse did not exist as of the date of implementation of furloughs.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

Imposition of furloughs constituted change in past practice. MOU did not authorize unilateral implementation of furloughs or incorporate civil service rules and regulations purportedly authorizing furloughs. Contractual language did not establish clear intent to incorporate civil service rules into MOU, and MOU on its face required city to meet and confer prior to implementing any change affecting wages, hours and terms and conditions of employment, and prohibited city from reducing wages without the agreement of union.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

Asserted fiscal emergency under MMBA section 3504.5 did not authorize city to impose furloughs, where city did not formally declare fiscal emergency until two months after it unilaterally implemented furlough plan and failed to establish that it had no alternative to unilaterally imposing furloughs rather than complete the meet and confer process.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.06000 – Management-Rights Clause; Management Prerogative

Decision to furlough employees was not a fundamental management decision over which city was not obligated to bargain, where is clear that city viewed the matter to be within the scope of representation and decision was not aimed at affecting the quality, nature or level of service to the public, but rather to save money by reducing employee wages. General language authorizing city to determine the size and composition of its workforce and to assign work does not clearly and unmistakably waive union’s right to bargain over the reduction in wages and hours imposed by the implementation of furloughs. Ratification of temporary furlough plan by city council did not authorize unilateral implementation of furloughs, since nothing in the MMBA vests ultimate authority with local governing bodies to use their legislative authority, through the budget approval process, to relieve covered employers from their bargaining obligations.

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

Provision in local civil service rules authorizing county to reduce work hours for reasons of economy or due to a lack of work or funds does not exempt employer from obligation to meet and confer under the MMBA over implementation of furloughs. Nothing in civil service rules purports to exempt city from MMBA meet and confer obligations prior to implementing reduction in employee work hours. General language authorizing city to determine the size and composition of its workforce and to assign work does not clearly and unmistakably waive union’s right to bargain over the reduction in wages and hours imposed by the implementation of furloughs.

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

Both wages and hours are expressly included within the scope of representation under the MMBA. Thus, because the imposition of furloughs clearly affects both wages and hours of work, it is within the scope of representation, unless an exception or defense applies.

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

Both wages and hours are expressly included within the scope of representation under the MMBA. Thus, because the imposition of furloughs clearly affects both wages and hours of work, it is within the scope of representation, unless an exception or defense applies. Provision in local civil service rules authorizing county to reduce work hours for reasons of economy or due to a lack of work or funds does not exempt employer from obligation to meet and confer under the MMBA.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

When considering a request to reopen the record to admit new evidence, the Board applies the standard set forth in PERB Regulation 32410(a) for a request for reconsideration based on the discovery of new evidence. The same standard applies to a request to reopen the record to consider new legal authority. Where authority was not previously available, nor could it have been discovered prior to submission of the exceptions with the exercise of reasonable diligence, and was submitted within a reasonable time after issuance of decision, Board finds good cause to reopen record to admit new legal authority.