Decision 2321M – County of Santa Clara

The union has alleged prima facie that by imposing a mandatory, new background evaluation procedure upon existing employees who had already been subjected to a similar procedure prior to initial employment, the County made a unilateral change in derogation of its MMBA duty to meet and confer with the union over the decision itself as well as the foreseeable effects thereof on matters within the scope of representation. (To challenge a unilateral change a union need not plead or prove that it demanded to bargain. An employer’s unilateral action renders bargaining futile.) (The Board overrules State of California (Department of Corrections & Rehabilitation, Avenal State Prison) (2011) PERB Decision No. 2196-S, Sylvan Union Elementary School District (1992) PERB Decision No. 919 and other Board decisions holding that a union must first demand to bargain effects as a precondition to enforcing an employer’s duty to provide a union reasonable advance notice and an opportunity to bargain over the reasonably foreseeable effects within the scope of representation of an otherwise non-negotiable decision.

The employer has a duty to provide reasonable notice and an opportunity to bargain before it implements a decision within its managerial prerogative that has foreseeable effects on negotiable terms and conditions of employment. “Reasonable” notice is one which is clear and unequivocal and which clearly informs the employee organization of the nature and scope of the proposed change. Once having reasonable notice and an opportunity to bargain before the employer implements a decision within its managerial prerogative that has foreseeable effects on negotiable terms and conditions of employment, the union must demand to bargain the effects or risk waiving its right to do so. The union’s demand must identify clearly the matter(s) within the scope of representation on which it proposes to bargain, and clearly indicate the employee organization’s desire to bargain over the effects of the decision as opposed to the decision itself. Where a union alleges that the employer did not provide reasonable notice and an opportunity to bargain prior to the employer’s implementation of a change in a non-negotiable policy having a reasonably foreseeable impact on a matter within the scope of representation, a prima face case of failure to bargain in good faith is established. A union’s duty to request effects bargaining arises upon an employer’s providing notice and an opportunity to bargain. Where an employer implements without providing the requisite notice and bargaining opportunity this conduct by itself violates the employer’s statutory duty to meet and confer, whether or not the union thereafter makes a demand for effects bargaining.

Zipper clause limiting the parties’ right to negotiate on matters not specifically referred to or covered in the agreement and preserving the union’s right to negotiate and engage in impasse procedures in respect to a new matter, subject, or practice not referred to in the agreement as to which the County desires to take action does not clearly and unmistakably waive the union’s right to meet and negotiate.