CALPELRA Alert/PERB Establishes Criteria For Union Request To Bargain The Effects Of A Non-Negotiable Decision
View this message in your browser.
With three new Board members, the Public Employment Relation Board’s approach to effects bargaining was further clarified in a recent decision involving the County of Sacramento and Teamsters Local 150. [1]  PERB dismissed the Teamsters’ appeal that its request to bargain over the county’s termination of home vehicle usage was sufficient to trigger effects bargaining.  In setting the outside limit of what is required in an effects bargaining demand, PERB specifically disavowed prior PERB decisions that required “overly formalistic requests to bargain.”

The critical facts are fairly simple. The county had an existing Home Vehicle Retention Policy that allowed county vehicles to be assigned to the homes of certain supervisory employees; and further, allowed the county to terminate the home assignment with 30 days notice.  The county notified the Teamsters in writing that it intended to terminate some of the home vehicle assignments according to the policy, and offered to discuss the issue.  The Teamsters did not timely respond, and when a union representative finally met with the county and reviewed the data supporting the termination, he stated that he would get back to the county after conferring with his members. The union did not demand to bargain, but instead wrote to the county, “we believe that there are various issues which deserve discussion relative to this issue.”  The union did not specify what issues “deserved discussion,” and did not indicate that any such issues could foreseeable impact matters within the scope of bargaining. After further delays, including a delay caused by a family emergency of the county’s representative, the county notified the Teamsters that it was implementing the vehicle reassignment.

The issue before PERB was whether the Teamsters’ request was sufficient to constitute a demand to bargain over the effects of the policy’s implementation on the vehicle reassignment.  Under the prior PERB’s decision in Beverly Hills [2], the Teamsters’ demand to bargain the effects would be deficient because the demand did not identify which negotiable subjects were impacted and any specific effects.  This PERB decided that the Beverly Hills decision and other recent decisions have reached beyond prior PERB precedent, and should not be followed. Instead this PERB determined that:
 
“[t]hrough the years, dicta have emerged in a way that has strayed from the original requirements of Newman-Crows Landing and Mt. Diablo in such a manner as to place an undue burden on the party seeking to invoke the collective bargaining process in appropriate situations.”

“We hold that requiring an exclusive representative to identify specific effects in its demand to bargain the effects of a non-negotiable decision goes beyond the original spirit of Newman-Crows Landing, Mt. Diablo, and Lawrence Livermore, all of which stressed that the demand to bargain effects need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have. Instead, an effects bargaining demand must place the employer on notice that the exclusive representative seeks to negotiate over effects and that it believes the proposed change affects one or more subjects within the scope of representation, such as wages, hours, or other terms and conditions of employment.”

“To the extent that Beverly Hills or any other case requires more than these two elements, we expressly disavow those decisions.”
 
Despite this loosening of the standard for demanding effects bargaining, PERB concluded that the County of Sacramento was not required to bargain the effects in this case because “…[t]he Teamsters did not demand to bargain anything at this meeting and did not submit proposals. The Teamsters did ask to "discuss" the matter in its November 30, 2010 letter, but for reasons discussed above, this was not a sufficient demand to bargain the effects of the County’s decision.   ..…  The Teamsters’ request to bargain failed even under our more recent holdings. It failed to demand negotiation over effects of the decision, as opposed to the decision itself, and it failed to indicate any matter within the scope of representation that was foreseeably affected by the County’s non-negotiable decision to terminate the home vehicle retention assignment for the employees.”


[1] County of Sacramento (2013) PERB Decision No. 2315-M.
[2] Beverly Hills Unified School District (2008) PERB Decision No. 1969.

IMPACT

This case more precisely defines the requirements unions must meet to trigger an employer’s obligation to engage in effects bargaining on a non-negotiable change. Unions are not required to meet any formal requirements to demand effects bargaining, and only need to put the public employer on notice that the union seeks to bargain over foreseeable impacts of the proposed decision on subjects within the scope of representation.  An objection to or demand to bargain the decision itself is not sufficient to trigger an obligation to bargain regarding the effects of that decision. The County of Sacramento decision also included an important footnote reminding employers about PERB’s recent decision regarding the employer’s “duty to seek clarification” on any change that may involve effects bargaining:
 
“[h]ere the Teamsters failed to even make its intentions clear. By failing to demand bargaining over effects and by not indicating matters within the scope of representation the change could foreseeably impact, the Teamsters did not trigger the employer’s duty to seek clarification, as we recently discussed in Rio Hondo.”
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.
CALPELRA President:  Ivette Peña, Superior Court of California, County of Los Angeles
Alert No. 13-10,  Authors:  William F. Kay and Janet Cory Sommer
Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
Copyright © 2013 CALPELRA (California Public Employers Labor Relations Association), All rights reserved.