Decision 2680M – County of Santa Clara

SF-CE-1428-M

Decision Date: October 31, 2019

Decision Type: PERB Decision

Description:  Charging Party Service Employees International Union, Local 521 (SEIU) excepted to a proposed decision dismissing its complaint which alleged that the County of Santa Clara (County) violated the Meyer-Milias-Brown Act by unilaterally removing bargaining unit work from SEIU and assigning the same work to non-bargaining unit employees.  The ALJ concluded that the County’s decision was outside the scope of representation.

Disposition:  The Board affirmed the ALJ’s conclusion that the County had no obligation to meet and confer with SEIU over its staffing decision, but reversed the dismissal of the complaint because the County was obligated to meet and confer with SEIU over the foreseeable negotiable effects of its staffing 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)
602.01000 – In General

To demonstrate an unlawful unilateral change, the charging party must show: (1) the employer took action to change policy; (2) the action had a generalized effect or continuing impact on terms and conditions of employment; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the change in policy concerned a matter within the scope of representation. (pp. 7-8.)

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

Although no particular bargaining unit employee was displaced because the County’s facility was newly opened, the County’s action had a generalized effect and continuing impact on terms and conditions of employment inasmuch as the bargaining unit suffered the ongoing loss of work opportunities and collective strength. (p. 8.)

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

Electing to staff a particular shift with a non-bargaining unit peace officer instead of a bargaining unit employee had foreseeable effects on wages, hours, and other terms and conditions of employment for bargaining unit employees, specifically diminution in collective strength of the unit and the loss of hours and overtime opportunities. (p. 13.)

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

Where an exclusive representative becomes aware of an employer’s proposed policy change after implementation of that change, by definition, there has been inadequate notice. (pp. 8-9.)

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

A union is not required to demand to bargain effects where the employer has failed in its duty to provide notice prior to implementing the change. (p. 12.)

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

The Board has adopted the framework from International Association of Firefighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, for determining whether a managerial decision is subject to a meet and confer obligation under the Meyers-Milias-Brown Act. There, the court concluded that a balancing test applies only to employer decisions that directly affect employment, such as eliminating jobs, but also involve “‘a change in the scope and direction of the enterprise’ or, in other words, the employer’s ‘retained freedom to manage its affairs unrelated to employment.’” (pp. 9-10.) With such decisions, bargaining would be required only if the benefit for labor-management relations and the collective bargaining process outweighs the burden placed on the employer. (p. 10.)

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

Employer was not required to bargain over its decision to staff a particular shift with a non-bargaining unit peace officer because its legitimate concern for employee and public safety outweighed the benefits of bargaining in that instance. (p. 11.)

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

The duty to bargain extends to the implementation and effects of a decision that has a foreseeable effect on matters within the scope of representation, even where the decision itself is not negotiable. In both contexts—a decision involving a negotiable subject or a negotiable effect of a non-negotiable decision—the employer’s obligations are the same. Thus, an employer must provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would be required to do before making a decision on a mandatory subject of bargaining. (pp. 11-12.)

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

A failure or refusal to bargain over effects of a non-negotiable change is no less harmful than a failure to bargain over a negotiable change. In either case, the violation “disrupts and destabilizes employer-employee relations and is inconsistent with the goals of our statutes to improve both employer-employee relations and communications between public employers and their employees.” [Citation] (pp. 12-13.)

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

Because decision bargaining and effects bargaining promote the same purpose, the harm that flows from a violation of the duty to bargain either is equally odious. Chief among these harms are disrupting a union’s ability to effectively represent its members and tipping the balance of power between management and employee organizations. (p. 13.)

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

While the employer was entitled to unilaterally decide to staff a particular shift with a non-bargaining unit peace officer rather than a bargaining unit employee, it was required to provide the union with notice and an opportunity to bargain the reasonably foreseeable effects of its decision before it implemented the change. (p. 13.)