Decision 2443M – City of Milpitas

SF-CE-958-M

Decision Date: July 29, 2015

Decision Type: PERB Decision

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Perc Vol: 40
Perc Index: 36

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

A change in policy occurs on the date a firm decision is made even if the decision is not scheduled to take effect immediately, or even if it is never implemented.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.14000 – Informational Briefs

PERB regulations neither expressly permit nor preclude the submission of reply briefs and, therefore, the acceptance of such filings is discretionary with the Board.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

The Board defers to the ALJ’s findings of fact that incorporate credibility determinations, but otherwise reviews an ALJ decision de novo. The Board may draw different or even opposite inferences from the factual record than did the ALJ and may reverse the conclusion of law legal determinations of the ALJ.

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

PERB regulations neither expressly permit nor preclude the submission of reply briefs and, therefore, the acceptance of such filings is discretionary with the Board. Los Angeles Unified School District/Los Angeles Community College District (1984) PERB Decision No. 408 (Los Angeles) recognizes that PERB’s regulations neither permit nor preclude reply briefs and the acceptance of such briefs is discretionary with the Board. We conclude that Los Angeles provides illustrations, not limitations, for the Board to exercise such discretion.

1000.00000 – SCOPE OF REPRESENTATION
1000.02026 – Contracting Out

Although a decision to subcontract work may constitute a managerial decision at the core of entrepreneurial control and be based on factors not amenable to negotiation, decisions to outsource which are based on labor costs, viz., overall enterprise costs, are within scope of representation because the union has control over some enterprise costs (labor costs) and may make concessions through the bargaining process that may substantially mitigate the concerns underlying the employer’s decision, thereby convincing the employer to rescind its decision. Outsourcing decisions based on enterprise (labor) costs are peculiarly suitable for resolution through the collective bargaining framework.

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

A recognized employee organization may waive its MMBA right to meet and confer. However, waiver is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith. Section 7.01.4 of the parties’ contract contains both a restriction on the City’s managerial right to conduct layoffs and a limited waiver of the union’s right to meet and confer over the decision to contract out bargaining unit work. The waiver of the union’s right to bargain is limited by the occurrence of one of the triggering events identified in Section 7.01.4, the City’s loss of Redevelopment Agency (RDA) funding or a general fund deficit of $7 million. Since there is no dispute that the City lost RDA funding in 2012, we conclude that the City was entitled to implement layoffs and contracting out of bargaining unit work subject only to reasonable notice.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.02000 – Union Bad Faith, Delay, Unreasonable or Unlawful Demands, Violence or Misconduct

The union president made a bargaining demand in his March 5, 2012, e-mail to the City Manager. Any waiver of a right to bargain over a negotiable contracting out decision must be clear and unmistakable. Therefore, the union’s March 5, 2012, bargaining demand obviates a determination that the union waived its right to bargain by inaction.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.01000 – In General

A recognized employee organization may waive its MMBA right to meet and confer. However, waiver is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.

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

Bargaining unit members were laid off and/or their work was transferred to another division within the department of public works or outsourced to a third-party employer. Thus the City’s change in policy had both a generalized effect and continuing impact upon street, tree and park maintenance supervisors who were laid off and their duties either outsourced to outside employers or transferred to other employees within the department of public works.

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

A change in policy occurs on the date a firm decision is made even if the decision is not scheduled to take effect immediately, or even if it is never implemented. The City Council’s adoption of the City Manager’s recommendation to outsource bargaining unit work constitutes the City’s firm decision to contract out.

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

The City Council’s adoption of the City Manager’s outsourcing and layoffs recommendation just six weeks after the union president’s e-mail requesting to bargain and before the parties had bargained or reached impasse, constitutes a change in City policy regarding outsourcing without giving the union an opportunity to bargain over the change.

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

A union president’s e-mail requesting to bargain over any proposed change in working conditions contains a sufficiently clear demand to bargain over the contracting out of proposed bargaining unit work.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.01000 – In General

A recognized employee organization may waive its MMBA right to meet and confer. However, waiver is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

Section 7.01.4 of the parties’ contract contains both a restriction on the City’s managerial right to conduct layoffs and a limited waiver of the union’s right to meet and confer over the decision to contract out bargaining unit work. The waiver of the union’s right to bargain is limited by the occurrence of one of the triggering events identified in Section 7.01.4, the City’s loss of Redevelopment Agency (RDA) funding or a general fund deficit of $7 million. Since there is no dispute that the City lost RDA funding in 2012, we conclude that the City was entitled to implement layoffs and contracting out of bargaining unit work subject only to reasonable notice.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.04000 – By Acquiescence/Conduct

The union president made a bargaining demand in his March 5, 2012, e-mail to the City Manager. Any waiver of a right to bargain over a negotiable contracting out decision must be clear and unmistakable. Therefore, the union’s March 5, 2012, bargaining demand obviates a determination that the union waived its right to bargain by inaction.