January 15, 2014
In Stationary Engineers Local 39, International Union of Operating Engineers v. City of Sacramento (PERB Dec. 2351-M), PERB addressed a public employer’s bargaining obligations when transferring bargaining unit work. Local 39 alleged that the City of Sacramento ("City") violated the Meyers-Milias-Brown Act by failing and refusing to bargain in good faith over the City’s decision, as well as the effects of that decision, to lay off every employee in the Supervising Dispatcher classification represented by Local 39, and to reassign those job duties to employees in the Dispatcher III classification that were in a separate bargaining unit represented by the Sacramento Police Officers Association ("SPOA"). PERB concluded that the City was obligated to negotiate both the decision and effects of the transfer of bargaining unit work and that it failed to provide appropriate and timely notice to the union before taking unilateral action.
Generally, the decision to reorganize operations, eliminate or reduce services, and/or lay off employees falls outside of the scope of representation. Similarly, the assignment of duties is usually not subject to negotiation, provided that the newly assigned duties are reasonably comprehended within the existing duties of the classification to which they are assigned. The California Supreme Court has previously held that such matters implicate "fundamental management decisions" and remain outside the scope of representation because they affect the "amount of work that can be accomplished or the nature and extent of the services that can be provided." However, a public employer’s decision to transfer work from exclusively-represented employees to non-unit bargaining personnel is negotiable, when it affects the wages, hours or working conditions of the employees from whom the work is transferred. The underlying rationale is that the employer is not completely eliminating services or changing the scope or direction of its operation, but simply changing the identity of the personnel who will be assigned to perform the work.
In City of Sacramento, PERB relied on its decision in Desert Sands Unified School District (2010) PERB Dec. No. 2092, in analyzing whether the City’s decision to reassign duties from the Supervising Dispatchers to the Dispatcher III classification was negotiable. In Desert Sands, PERB held that the transfer of work is non-negotiable if it merely changes the quantity of overlapping duties performed by one classification at the expense of another. However, this exception to the obligation to bargain does not apply where as a result of the transfer of duties: (1) unit employees cease entirely to perform duties that they previously performed, or (2) non-unit employees begin to perform duties that were previously exclusively performed by unit employees.
PERB concluded that the City’s decision to reassign duties from the Supervising Dispatchers to the Dispatcher III classification was negotiable in part because of the overlap in the duties between both classifications. As a result of the City’s decision to eliminate the position and transfer work previously performed by the Supervising Dispatchers to the Dispatcher III classification, all of the existing Supervising Dispatchers accepted demotions to Dispatcher III positions in lieu of being laid off. Although the amount of work being done may have decreased, the City admitted that after the change, the "essential" duties of the Supervising Dispatchers continued to be performed, in some cases even by the same employees, albeit in a lower-classified, lower-paid job title in a separate bargaining unit represented by the SPOA. Because PERB found that one group of employees, the Supervising Dispatchers, ceased entirely to perform the previously shared duties, there was no difficulty demonstrating that the City’s decision to transfer the remaining dispatcher duties affected the wages, hours, and working conditions of employees in that classification. At the heart of PERB’s decision was the principle that fiscal matters are more properly addressed at the bargaining table. Consequently, PERB ordered the City to restore the status quo before the improper unilateral action, including an award of back pay.
Ultimately, PERB found that the City did not properly negotiate over both the decision and effects of its decision before it made the decision to transfer bargaining unit work. As a result, PERB determined that the City’s actions constituted a per se violation of the duty to bargain that did not require a finding of subjective bad faith on the part of the City.