Decision 2351M – City of Sacramento

An employer’s willingness to delay implementation, to meet with the representative, or even to rescind a unilaterally-adopted policy, after it has demonstrated by its conduct that it has already reached a firm decision to implement the policy does not mitigate or excuse the unlawful conduct because a unilateral action regarding negotiable matters is a per se violation for which no evidence of the employer’s subjective motive is necessary. A City’s willingness to meet promptly with the representative and to engage in “positive” and “upbeat” discussions, after the City had already reached a firm decision and begun meeting with affected employees to implement the change does nothing to cure or mitigate the unilateral change.

Where a decision to transfer work results in one group of employees ceasing to perform duties that were previously shared with other, non-unit personnel, both the transfer of work and the effects of that decision are negotiable.

When an exclusive representative becomes aware of a proposed change after the employer has implemented it, any notice to negotiate is inadequate. The employer violated its duty to bargain by making a firm decision to transfer bargaining unit work and layoff unit employees, and by using direct communications with unit employees to implement that decision, without providing the exclusive representative with adequate notice and meaningful opportunity to bargain.

When an exclusive representative becomes aware of a proposed change after the employer has implemented it, any notice to negotiate is inadequate. The employer violated its duty to bargain by making a firm decision to transfer bargaining unit work and layoff unit employees, and by using direct communications with unit employees to implement that decision, without providing the exclusive representative with adequate notice and meaningful opportunity to bargain.

A unilateral change occurs when a firm decision is made to change policy regarding a negotiable subject without notice and meaningful opportunity to bargain, even if the decision is not scheduled to take effect immediately, or even if it is never implemented. The Board overruled City of San Diego (2010) PERB Decision No. 2103-M to the extent it holds that a unilateral change does not occur until the decision is implemented.

No waiver of the right to bargain found where exclusive representative had no actual or constructive knowledge of a proposed transfer of bargaining unit work until after employer’s representative began meeting with employees directly to prepare for and implement the transfer.

An employer’s decision to transfer bargaining unit work out of the unit is negotiable as to both the decision itself and its effects, regardless of whether the decision is based on a lack of work or lack of money.

Although insufficient notice is an element of the charging party’s prima facie case in a unilateral change case, where the facts demonstrate, or the respondent admits, that no formal notice was provided, the burden is the respondent’s to prove its affirmative defense of waiver. Because the City gave no formal notice to the exclusive representative of a proposed transfer of bargaining unit work, it was the City’s burden to establish that the representative had actual or constructive notice of the proposed change and that it failed to act on such knowledge, before the City began meeting with employees to implement the decision.

Because the unfair practice committed in this case involved the employer’s direct communications via mass email to bargaining unit employees, the Board reviewed and updated PERB’s traditional posting requirement to conform to the realities of the 21st-century workplace. Where the offending party in unfair practice proceedings regularly communicates with employees by email, intranet, websites, or other electronic means, it shall be required to use those same media to post notice of the Board’s decision and remedial order in addition to PERB’s traditional physical posting requirement. Pursuant to its authority to inform employees of their rights and its discretion to determine the circumstances and methods best suited for accomplishing this task, the Board may expand the usual requirement that a respondent post notice of its unfair practices beyond the immediately affected employees to reach employees in other bargaining units whose rights were affected by the same unlawful conduct. Because the City’s unlawful transfer of bargaining unit work caused employees to “bump” into lower classifications in other bargaining units, the City was required to post notice designed to reach employees in all affected bargaining units.

The effects of a decision to eliminate a position and lay off employees are negotiable.