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In County of Santa Clara (Santa Clara County Correctional Peace Officers Association), PERB found the County had violated the duty to bargain in good faith by refusing to negotiate over background checks for the current officers and over a reduction in staffing levels in the county jail. [1] Under PERB Chair Anita Martinez, PERB overruled two prior PERB decisions and, in the process, significantly shifted the responsibilities to employers involved with “effects†or “impact†bargaining. [2]
Background
Prior to 1988, the County Sheriff’s Office operated the county jail. Then operational duties were shifted to the County Department of Corrections, only to be reverted back to the Sheriff’s Office's control in 2010. As part of the Sheriff’s resumption of control over the Corrections Officers, legislation was passed enabling the current Correction Officers to become peace officers under the Penal Code.
Upon assuming the supervision of the Correction Officers in 2010, the Sheriff’s Office announced a number of changes, including a voluntary background check for those Correctional Officers wishing peace officer status, even though not required by law for current employees. The County refused to negotiate over a number of these changes, and in some instances did not provide formal notice and opportunity to negotiate.
The County Correctional Peace Officers Association filed an unfair practice charge alleging a number of unilateral changes. PERB’s General Counsel, in the initial processing of the charge, issued a complaint against the County on some issues, but specifically dismissed other issues, including: (1) the County’s unilateral imposition of a background evaluation for currently employed correctional officers; and (2) unilaterally reducing the staffing levels from 75 to 55 correctional officers over a period of several years.
Implementing Background Checks For Current Employees
Based on a prior PERB decision involving In-Home Support Service personnel, PERB General Counsel contended the decision to institute background checks for new peace officer status was a management prerogative not subject to the meet and confer process. In addition, PERB’s General Counsel determined that the standard “zipper clause†in the current MOU preserved the County’s right to act unilaterally on a matter not referred to in the MOU. [3]
Under the specific circumstances, PERB disagreed that the background check was a management prerogative. PERB decided that both the decision to implement a background check and the foreseeable effects on mandatory subjects are within the scope of bargaining.
PERB held that, “where an employer imposes on employees, who have already undergone a background evaluation as a condition of employment, a further such evaluation as a condition of continued assignment to the employee’s present position, the employer’s decision implicates primarily employee working conditions including reassignment, discipline and job security, rather than the merits, necessity or organization of any service or activity.â€
PERB also disagreed with the PERB General Counsel that the “zipper clause†waived the union’s right to bargain, even though the zipper stated that the parties “…voluntarily and unqualifiedly agree to waive the obligation to negotiate with respect to any practice, subject or matter not specifically referred or covered in this agreement….†Instead PERB reviewed the entire zipper provision and decided that the zipper clause did not meet the established PERB standard of “clear and unmistakable†waiver of the right to bargain. PERB added that public policy disfavors inference of a waiver, especially if the language can be viewed as ambiguous.
Staffing Levels
PERB’s General Counsel dismissed the union’s claim on the basis that staffing levels were a non-negotiable managerial prerogative, and that the union failed to demand to bargain over clearly identifiable negotiable effects of the staffing levels. On appeal to PERB, the union did not dispute that staffing levels were a management prerogative, but contended that they were not required to identify specific effects beyond the non-specific “workload†and “employee safety.†PERB agreed. In addition, PERB took a different tack by focusing on the County’s failure to provide adequate notice about the change in the non-negotiable staffing levels.
PERB’s decision stated, “[i]mplementing a new or changed policy not itself within the scope of representation (e.g. staffing levels) but having a foreseeable effect(s) on employee wages, hours or other terms and conditions of employment (e.g. safety or workload), likewise violated the employer’s duty to bargain in good faith where implemented without affording the union notice and opportunity to bargain over the foreseeable effect(s).â€
The decision laid out a four-step rule for effects bargaining, including:
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The employer has a duty to provide a 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. A “reasonable†notice is one which is “clear and unequivocal†[citation] and which “clearly inform[s] the employee organization of the nature and scope of the proposed change.â€
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Once having received such advance notice, the union must demand to bargain the effects or risk waiving it right to do so. The union’s demand must identify clearly the matters(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.â€
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"Where the employer implements the change without giving the union reasonable notice and an opportunity to bargain over foreseeable effects on matters within the scope of representation, it acts at its own peril. If the employer is ultimately found to have had a duty to bargain over effects and thus to have provide the union reasonable pre-implementation notice and opportunity to bargain, its implementation without giving such notice and opportunity to bargain constitute a refusal to bargain.â€
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Impact
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The topic of effects/impact bargaining is a complex issue that has generated confusion and numerous questions over the years. Many practitioners have difficulty grasping the legal obligations of effects/impact bargaining. As a result, many employers tend to overlook the duty to bargain the effects of a non-negotiable decision’s impact on mandatory subjects. In this decision, PERB clearly desired to elevate the importance of effects/impact bargaining. In the words of the unanimous decision: “In other words, effects bargaining is not a stepchild of decision bargaining. It is as important as bargaining over a decision to alter terms and conditions of employment.â€
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This decision will be one of the defining decisions of the Martinez PERB. All management practitioners should read the entire case for future guidance, especially regarding effects/impact negotiations and the public employer’s duty to provide adequate notice of any proposed decision that may have an impact on mandatory subjects.
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This case not only establishes that both the decision and the effects of background checks for current employees are within the scope of bargaining, but it also establishes that the effects of a change in staffing level is a mandatory subject of bargaining. More importantly, this case also sheds light on the Martinez PERB’s treatment of: Traditional “zipper†or union waiver of the duty to bargain clauses; and redefining the accepted approach to effects/impact bargaining, including the shift from unions to public employers to initially identify “foreseeable effects†of a management decision; the procedural requirement to formally meet with the union and clarify whether a matter is within the scope of bargaining; and eliminating a union’s obligation to demand to bargain over effects/impact when the employer fails to provide reasonable notice.
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PERB has clearly shifted to employers the responsibility to identify any foreseeable impacts on a mandatory subject when implementing a nonnegotiable management prerogative. Instead of unions having to identify foreseeable impacts and demanding to bargain on specifically identified impact issues, PERB has now established that management must provide a clear notice and opportunity negotiate over any foreseeable impacts. If management does not provide reasonable and adequate notice, then the union is no longer required to demand to bargain in order to establish that the employer was guilty of a per se unlawful unilateral change.
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The Martinez PERB overturned at least two prior PERB decisions and reached back into a litany of earlier PERB cases to establish what PERB considers a consistent and coherent definition of the duty to bargain.
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[1] County of Santa Clara (2013) PERB Dec. No. 2321-M.
[2] “Effects†or “impact†negotiations involve the reasonably foreseeable effects on matters within the scope of bargaining resulting from a management decision or policy change that is non-negotiable. This type of mandatory subject is compared with “decision†bargaining involving a direct decision to change a mandatory subject itself (wage, hours, terms and condition of employment). For example, the decision to increase salary schedule by 1% is a negotiable decision, whereas a decision to lay off is a management prerogative, but the impact of that layoff on certain terms and conditions involves a bargaining obligation (e.g., workload, employee safety).
[3] The MOU’s zipper clause stated, “The parties, for the term of this agreement, voluntarily and unqualifiedly agree to waive the obligation to negotiate with respect to any practice, subject or matter not specifically referred or covered in this agreement even though such practice, subject or matter may not have been within the knowledge of the parties at the time this agreement was negotiated and signed. If during the term of this agreement, a new matter, subject, or practice arises which is not referred to in this Agreement and the County desires to take action to deal with such new matter, subject, or practice, the Association shall be given prior, written notice of the proposed County action and shall have the right to meet and confer on the subject, including the right to resort to all available impasse procedures pursuant to the Employee-Management Relations Ordinance, in the absence of agreement on such proposed action, the County reserves the right to take action by Management direction.â€
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This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information. The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
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