Decision 2799M – County of Santa Clara

To “meet and confer” has the same meaning as to bargain or to negotiate, and PERB uses the terms interchangeably. (Bellflower Unified School District (2014) PERB Decision No. 2385, p. 4, fn. 4.)

Where an employer’s decision to install surveillance equipment is “not primarily about monitoring employees while they provide public services, and is instead installed, for instance, to deter members of the public from committing crimes, to apprehend such persons who do perpetrate crimes, to protect public property, or to keep staff and members of the public safe,” decision bargaining is not required, but the employer must provide notice and an opportunity to bargain over negotiable effects, including whether and how such surveillance might be used in relation to evaluating or disciplining employees. (San Bernardino Community College District (2018) PERB Decision No. 2599, p. 10, fn. 8.) Applying these principles to County ordinance surveillance technology definition, PERB found definition not subject to decision bargaining because the benefits of bargaining do not outweigh management’s need for freedom to protect the public’s privacy and safety. At same time, PERB recognized surveillance technology definition’s potential consequences on employee discipline and other matters within the scope of representation, and that these employment-related impacts are subject to effects bargaining. (Ibid.)

In unique circumstance where record did not demonstrate extent to which non-employees were likely to be subject to surveillance technology ordinance’s misdemeanor provision, PERB found it more practical to deal with the misdemeanor provision’s application to employees as a bargainable impact of a provision that could apply to individuals who are not employees, or to certain private companies or nonprofits. Thus, PERB found the MMBA’s purposes are best effectuated by: (1) not ordering bargaining over the decision to enact a misdemeanor provision that apparently may apply to the public generally; and (2) instead enforcing the County’s effects bargaining obligation, i.e., a duty to bargain over employee impacts, including all possible consequences for employees found to have violated the Ordinance.

Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) The employer violates its duty to bargain if it fails to provide adequate advance notice, and in such circumstances the union need not demand to bargain effects as a prerequisite to filing an unfair practice charge. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 30-32.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Id. at p. 30.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but rather must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (County of Sacramento (2013) PERB Decision No. 2315-M, p. 9.)

While an employer need not negotiate over a decision that is outside the scope of representation, it nonetheless must meet and confer over alternatives to the decision as part of effects bargaining. (County of Sonoma (2021) PERB Decision No. 2772-M, p. 54 (Sonoma); Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Sonoma, supra, PERB Decision No. 2772-M, p. 55.) County failed to bargain in good faith over consequences for surveillance technology ordinance violations where it refused to respond to the Association’s proposed alternatives, such as exempting Association members from the criminal provision, or explaining why traditional disciplinary measures were not adequate to address ordinance violations.

To establish a prima facie case that a respondent employer violated its decision bargaining obligation, a charging party union that exclusively represents a bargaining unit must prove: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.)

Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) The employer violates its duty to bargain if it fails to provide adequate advance notice, and in such circumstances the union need not demand to bargain effects as a prerequisite to filing an unfair practice charge. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 30-32.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Id. at p. 30.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but rather must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (County of Sacramento (2013) PERB Decision No. 2315-M, p. 9.)

An employer normally may not implement a nonnegotiable decision while effects bargaining continues and instead must wait until the parties have reached agreement or impasse over the negotiable effects of the decision. (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 25.) There is an exception, however, if the employer can establish each of three elements: (1) the implementation date was based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, PERB Decision No. 720, pp. 14-15.)

While an employer need not negotiate over a decision that is outside the scope of representation, it nonetheless must meet and confer over alternatives to the decision as part of effects bargaining. (County of Sonoma (2021) PERB Decision No. 2772-M, p. 54 (Sonoma); Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Thus, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Sonoma, supra, PERB Decision No. 2772-M, p. 55.) County failed to bargain in good faith over consequences for surveillance technology ordinance violations where it refused to respond to the Association’s proposed alternatives, such as exempting Association members from the criminal provision, or explaining why traditional disciplinary measures were not adequate to address Ordinance violations.

Applying the test articulated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters), PERB determined that the definition of surveillance technology falls within the third category of decisions in the Richmond Firefighters framework because it does not primarily concern the employment relationship but does impact that relationship—especially since County employees are by far the main persons who are at risk of violating the Ordinance. PERB found that the balancing test for decisions in this third category weighs in favor of the County’s need for unencumbered decision-making. (County of Orange (2018) PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273.) PERB reached this conclusion, in part, because the surveillance technology definition is premised on two important government aims—protecting individual privacy and promoting public safety— which have little to do with employment. PERB found comparatively little benefit to requiring decision bargaining over the surveillance technology definition.

PERB found that although County ordinance’s definition of surveillance technology could affect discipline, the definition was not subject to decision bargaining. The surveillance technology definition was not fundamentally about employment-related matters; rather it was primarily aimed at privacy and community safety, while its employment impacts were clearly secondary. The surveillance technology definition is more akin to use-of-force policies, implementing a racial profiling study, or requiring officers to wear body-worn cameras.

The California Supreme Court has articulated a nuanced approach to applying MMBA section 3504. (International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters).) Under this framework, which PERB has adopted, “there are three distinct categories of managerial decisions, each with its own implications for the scope of representation: (1) decisions that have only an indirect and attenuated impact on the employment relationship and thus are not mandatory subjects of bargaining, such as advertising, product design, and financing; (2) decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls, which are always mandatory subjects of bargaining; and (3) decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they 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.” (County of Orange (2018) PERB Decision No. 2594-M, p. 18 (Orange), citing Richmond Firefighters, supra, 51 Cal.4th at pp. 272-273, internal quotations omitted.) Decisions in the third category of managerial decisions—the closest cases---have “a direct impact on employment [even] though the decision is not in [itself] primarily about conditions of employment.” (Claremont Police Officers Assn. v. City of Claremont (2006) 39 Cal.4th 623, 637, internal quotations and citations omitted (Claremont).) For such decisions, PERB balances the benefits of bargaining over the decision against the employer’s managerial interest in making the decision. (Richmond Firefighters, supra, 51 Cal.4th at p. 273; Claremont, supra, 39 Cal.4th 18 at p. 638; Building Material, supra, 41 Cal.3d at p. 660; Orange, supra, PERB Decision No. 2594-M, p. 18.)

PERB found that although County ordinance’s definition of surveillance technology could affect discipline, the definition was not subject to decision bargaining. The surveillance technology definition was not fundamentally about employment-related matters; rather it was primarily aimed at privacy and community safety, while its employment impacts were clearly secondary. The surveillance technology definition is more akin to use-of-force policies, implementing a racial profiling study, or requiring officers to wear body-worn cameras.

Applying the test articulated in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters), PERB determined that the definition of surveillance technology falls within the third category of decisions in the Richmond Firefighters framework because it does not primarily concern the employment relationship but does impact that relationship—especially since County employees are by far the main persons who are at risk of violating the Ordinance. PERB found that the balancing test for decisions in this third category weighs in favor of the County’s need for unencumbered decision-making. (County of Orange (2018) PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273.) PERB reached this conclusion, in part, because the surveillance technology definition is premised on two important government aims—protecting individual privacy and promoting public safety—which have little to do with employment. PERB found comparatively little benefit to requiring decision bargaining over the surveillance technology definition.

The Board adjusted the proposed decision in a manner that varied from both parties’ positions to ensure that the decision hews to PERB precedent and effectuates the MMBA’s purposes. (Cf. State Employees Trades Council United (Ventura, et al.) (2009) PERB Decision No. 2069-H, pp. 7-8 [the Board may review legal issues not raised by the parties when necessary to correct a mistake of law, and the Board has the power and duty to make any determination and take any action needed to effectuate the law’s purposes].)

A finding that a respondent committed an unfair practice normally results in the opportunity for the charging party to establish, most often in compliance proceedings, that the respondent’s conduct resulted in harm. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10; Desert Sands Unified School District (2010) PERB Decision No. 2092, pp. 31-32.) Where County violated its duty to meet and confer over the effects of surveillance technology ordinance violations, PERB found it appropriate to give the Association the opportunity to establish harm in compliance proceedings. While there were no instances of discipline or criminal liability as of the date the record closed, evidence in compliance proceedings may include harms manifesting at any time.

Parties may argue to the compliance officer as to the import (if any) of negotiations they may have undertaken during any timeframe before PERB’s decision becomes final. (Compare County of Merced (2020) PERB Decision No. 2740-M, pp. 21-22 [employer could not rely on negotiations undertaken before PERB decision became final, as such negotiations did not lead to agreement and occurred before employer fully remedied its unfair practice] with Region 2 Court Interpreter Employment Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 58 [where parties undertook negotiations in context of unremedied unfair practice but reached a superseding agreement, PERB deferred to agreement by discontinuing backpay remedy as of its effective date].)

Where county adopted surveillance technology ordinance without providing association adequate notice and an opportunity to bargain over reasonably foreseeable impacts on terms and conditions of employment, PERB ordered county to cease and desist enforcing ordinance against Association-represented employees, until the earliest of: (1) the parties reach an overall agreement on each of the specified effects; (2) the parties conclude their effects negotiations in a bona fide impasse; or (3) the Association fails to pursue effects bargaining in good faith.

Where County found to have failed to meet and confer over safety, workload and the consequences to Association-represented employees found to have misused County surveillance technology, the Board directed the County to: (1) meet and confer, upon request, over all three of the ordinance’s effects; (2) make whole any employees harmed by the ordinance to date; and (3) cease and desist from enforcing the ordinance against Association-represented employees until one of the following conditions is satisfied: the parties reach an overall agreement on each of the specified effects; the parties conclude their effects negotiations in a bona fide impasse; or the Association fails to pursue effects negotiations in good faith.

Where county adopted surveillance technology ordinance without providing association adequate notice and an opportunity to bargain over reasonably foreseeable impacts on terms and conditions of employment, PERB ordered county to cease and desist enforcing or otherwise applying ordinance against Association-represented employees, until the earliest of: (1) the date the parties have ceased negotiating because they have reached agreement as part of complying with bargaining and compensatory provisions of PERB’s Order; (2) the date the parties have reached impasse and exhausted any post-impasse procedures that may be required or agreed upon as part of complying with bargaining and compensatory provisions of PERB’s Order; or (3) failure by the Association to request bargaining or to bargain in good faith as part of complying with bargaining and compensatory provisions of PERB’s Order.

When an employer’s violation involves a failure to bargain effects, make whole relief runs from the date any impacted employee began to experience harm until the earliest of: (1) the date the parties reach an agreement as part of complying with our effects bargaining order; (2) the date the parties have reached impasse and exhausted any post-impasse procedures that may be required or agreed upon; or (3) failure by the union to bargain in good faith. (County of Ventura (2021) PERB Decision No. 2758-M, p. 53; County of Santa Clara (2019) PERB Decision No. 2680- M, p. 14; Bellflower Unified School District (2014) PERB Decision No. 2385, pp. 13-14.)

When an employer’s violation involves a failure to bargain effects, make whole relief runs from the date any impacted employee began to experience harm until the earliest of: (1) the date the parties reach an agreement as part of complying with our effects bargaining order; (2) the date the parties have reached impasse and exhausted any post-impasse procedures that may be required or agreed upon; or (3) failure by the union to bargain in good faith. (County of Ventura (2021) PERB Decision No. 2758-M, p. 53; County of Santa Clara (2019) PERB Decision No. 2680- M, p. 14; Bellflower Unified School District (2014) PERB Decision No. 2385, pp. 13-14.)