Decision 2298M – Salinas Valley Memorial Healthcare System

SF-CE-797-M

Decision Date: December 20, 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)
601.03000 – Decision vs Effects Bargaining

Under the MMBA, a decision to lay off employees is generally managerial prerogative as to which the employer has no duty to meet and confer with the employees’ union over the decision itself. The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees. It is undisputed that the hospital’s layoff decision was driven by labor cost considerations. Thus, the implementation (timing of the layoff, and the number and identity of employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff. (City of Richmond (2011) 51 Cal.4th 259.)

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

Meeting and conferring on the implementation and effects of a non-negotiable layoff decision should commence early enough to reach completion, including resolution of an impasse, prior to implementation of the decision. Only under certain circumstances may an employer implement a non-negotiable layoff decision prior to completing the meet and confer process. Implementation permissible prior to completing meet and confer where: (1) the layoff implementation date was not arbitrary, but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision to lay off; (2) the employer gave notice of the layoff decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

An employer has a duty to provide information, upon request, to a union seeking to meet and confer over matters within the scope of representation, including the implementation and effects of a layoff. This duty obliges an employer to respond promptly to the union’s information request. Union admits that the hospital offered to provide the information as it became available, and thereafter union did not reject this response as insufficient nor demand that the hospital provide the information with greater alacrity or in greater detail. Union’s allegations are insufficient to state a prima facie case of failure to provide requested information.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.03000 – Form of Information Provided; Costs

Union admits that the hospital offered to provide the information as it became available, and thereafter union did not reject this response as insufficient nor demand that the hospital provide the information with greater alacrity or in greater detail. Union’s allegations are insufficient to state a prima facie case of failure to provide requested information.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU.

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

It is undisputed that the hospital’s layoff decision was driven by labor cost considerations. Thus, the implementation (timing of the layoff, and the number and identity of employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff. (City of Richmond (2011) 51 Cal.4th 259.)

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

Under the MMBA, a decision to lay off employees is generally managerial prerogative as to which the employer has no duty to meet and confer with the employees’ union over the decision itself. The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. It is undisputed that the hospital’s layoff decision was driven by labor cost considerations. Thus, the implementation (timing of the layoff, and the number and identity of employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff. (City of Richmond (2011) 51 Cal.4th 259.) The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)

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

The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Once an employer makes a layoff decision, the employer is obliged to notify the organization representing employees of the decision and to meet and confer in good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff decision. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02076 – Lay-Offs

Under the MMBA, a decision to lay off employees is generally managerial prerogative as to which the employer has no duty to meet and confer with the employees’ union over the decision itself. The MMBA imposes on employers a duty to meet and confer regarding matters within the scope of representation, which does not include managerial decisions such as a decision to lay off employees. Thus, the MMBA imposes a duty to meet and confer over the implementation and the impacts and effects of a layoff decision, but not the decision itself. The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. Once an employer makes a layoff decision, the employer is obliged to notify the organization representing employees of the decision and to meet and confer in good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff decision. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees. Meeting and conferring on the implementation and effects of a non-negotiable layoff decision should commence early enough to reach completion, including resolution of an impasse, prior to implementation of the decision. Only under certain circumstances may an employer implement a non-negotiable layoff decision prior to completing the meet and confer process. Implementation permissible prior to completing meet and confer where: (1) the layoff implementation date was not arbitrary but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision to lay off; (2) the employer gave notice of the layoff decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and (3) the employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. It is undisputed that the hospital’s layoff decision was driven by labor cost considerations. Thus, the implementation (timing of the layoff, and the number and identity of employees to be laid off) and the impact and effects on remaining employees, including workload and safety, were mandatory subjects for meeting and conferring prior to the implementation of the layoff. (City of Richmond (2011) 51 Cal.4th 259.) An employer may implement a non-negotiable layoff decision prior to completing its meet and confer obligations as to the effects of the layoff only under certain conditions, including the condition that it meet and confer in good faith over those matters that are mandatory subjects for meeting and conferring.

1000.00000 – SCOPE OF REPRESENTATION
1000.02124 – Safety of Employees

The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02159 – Workloads

The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)

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

This case is an appeal from a dismissal and refusal to issue a complaint. Our inquiry at this stage is focused solely on the sufficiency of union’s allegations. We test union’s allegations against the legal standards for a violation of the MMBA, not against contrary allegations of the Hospital even where those contrary allegations may be more persuasively stated. We do not resolve conflicting allegations. Instead, we refer them to a hearing and ultimate resolution following findings by an administrative law judge. If the investigation results in conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. At the pleading stage, it is not up to the Board agent to judge the merits of the charging party’s dispute, but to leave the weighing of the evidence to the administrative law judge at a full evidentiary hearing.

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

Once an employer makes a layoff decision, the employer is obliged to notify the organization representing employees of the decision and to meet and confer in good faith, upon request, regarding the reasonably foreseeable impacts and effects of the layoff decision. Having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees. Where an employer believes a matter to be outside the scope of mandatory meeting and conferring, it is obliged to explore the matter in meet and confer discussions. Thereupon, the employer may change its position and meet and confer on the matter, or it may continue to assert its prior position and decline to meet and confer. In the latter case, if the employer is incorrect, its refusal to meet and confer is unlawful. The hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. (City of Richmond (2011) 51 Cal.4th 259; Sierra Joint Community College District (1981) PERB Decision No. 179.)