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April 23, 2013

New PERB Decision: Demanding to Bargain “Effects” Just Got a Little Easier


In a decision issued April 15, 2013, the Public Employment Relations Board clarified the requirements for an exclusive representative to demand to negotiate the “effects” of a non-negotiable employer decision. (County of Sacramento (2013) PERB Decision No. 2315-M.)

Background and PERB Decision
The County of Sacramento notified the International Brotherhood of Teamsters of the County’s decision to discontinue a policy that allowed sewer district supervisors, who were represented by the Teamsters, to take their County-issued vehicles home at night and on weekends. The County gave the employees 30 days’ notice of the change in accordance with the policy. Nearly two months later, the Teamsters sent a letter to the County stating “there are various issues which deserve discussion relative to this issue” and proposed some meeting times. The County responded it was “moving forward” with terminating the vehicle policy.

The Teamsters filed an unfair labor practice charge alleging the County refused to bargain the “effects” of the decision to terminate the policy.  The PERB’s Office of the General Counsel dismissed the charge, finding the Teamsters failed to make an effective demand to negotiate the effects of the decision. The Teamsters appealed the dismissal.

The PERB noted a “valid demand to bargain” does not need to recite a formulaic phrase, but may be expressed as a request to “discuss” a negotiable matter. Mere protests or expressions of concern or disagreement with the decision do not suffice.  Additionally, a demand to bargain a decision that is not itself negotiable must put the employer on notice that the exclusive representative seeks to demand effects (or “impact”) rather than the decision itself.

The PERB went on to describe a line of decisions that were previously understood to expand the components of a demand to bargain effects by requiring the demand to “clearly identify the negotiable effects” the union sought to bargain. Characterizing this requirement as being “added via dicta” in those cases, the PERB rejected the requirement as going “beyond the original spirit” of earlier decisions.  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.”

Even under this easing of the burden on the union, the PERB agreed with the Office of the General Counsel that the Teamsters’ request was not sufficient. It failed to demand negotiation over the effects of the decision to terminate the vehicle program or to indicate any matter within the scope of representation that was foreseeably affected by the decision.

Considerations for Public Agencies
Once the employer gives notice of a non-negotiable management decision, the exclusive representative may request to negotiate the effects or impact of the decision. The County of Sacramento ruling removes one component — recognized as necessary by some earlier PERB decisions — from the criteria for a valid request. The request to negotiate must still (1) put the employer on notice that the union seeks to negotiate the effects of the decision, and (2) generally identify the matters within the scope of representation foreseeably affected by the change. The request need not identify every specific negotiable effect of the management decision.

A request to bargain the effects of a non-negotiable decision should not be rejected on the basis that it does not identify specific effects within the scope of bargaining.  Under County of Sacramento, the duty to bargain effects is triggered by a demand in this rather simplistic form.  Upon receiving such a demand, the employer will be obligated to meet with the exclusive representative even without a detailed advance understanding of the purported negotiable effects of a non-negotiable decision. Possible results of this ruling may include decreased efficiency in collective bargaining and a greater number of unfair practice charges involving effects bargaining.

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