January 17, 2013
On December 21, 2012, the Public Employment Relations Board (PERB) issued its decision in Salinas Valley Memorial Health Care System (2012) PERB Dec. No. 2298-M (Salinas Valley) under the Meyers Millias Brown Act (MMBA). The case ostensibly concludes that, although the decision to engage in a layoff is a management right, employers must negotiate regarding the number of employees to be laid off as part of impacts and effects negotiations if the union so demands.
In Salinas Valley, a hospital employer sought to lay off certain members of its “Technical, Service and Maintenance, and Clerical” bargaining unit, represented by the National Union of Healthcare Workers (NUHW). NUHW demanded to bargain the impacts and effects of the layoff including, “the implementation of the layoff, including timing of the layoff, and the number and the identity of employees to be laid off .…” The hospital refused, arguing that the number of employees impacted by the layoff was a management right.
NUHW filed an unfair labor practice alleging the hospital failed to meet and confer regarding the decision to lay off, the timing of the layoff, and the number of employees to be laid off. PERB’s Office of General Counsel dismissed the charge and refused to issue a complaint, concluding the hospital’s decision to lay off was not a mandatory subject of meeting and conferring, and NUHW’s allegations did not establish the hospital failed to meet and confer over impacts and effects of the layoff decision. NUHW appealed the decision to PERB.
PERB partially reversed the dismissal. Although PERB concluded the decision to engage in a layoff is reserved to management, it also concluded the number of employees to be laid off may constitute a negotiable impact or effect of that decision. Specifically, PERB concluded:
California’s Supreme Court recently reconfirmed that having reached a firm decision, driven by labor cost considerations, to lay off employees, an MMBA employer must meet and confer, upon request, with the union representing the employees, both as to the implementation (including the timing, and the number and identity of employees to be laid off) and as to the effects of the layoff on the remaining employees, including post-layoff workload and safety conditions of remaining employees. Thus, where a layoff is driven by labor cost considerations, an employer must meet and confer in good faith, upon request, over the implementation and the reasonably foreseeable impacts and effects on remaining employees.
The Hospital’s refusal to meet and confer, at least on safety and workload issues, was absolute and thus unlawful. The Hospital’s December 21, 2010, proposal on numbers and timing of layoff does not warrant dismissal of the unfair practice charge which also articulates a theory that the employer violated the MMBA by unilaterally implementing the layoff before the parties had reached a genuine impasse.
PERB also concluded the hospital did not articulate a sufficient basis to implement the layoff prior to the exhaustion of impasse.
In reaching its decision, PERB relied on existing caselaw that listed the number of employees to be laid off as an impact or effect that must be negotiated upon demand. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621; International Ass’n of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 264.) While these cases refer to the negotiability of the number of employees to be laid off, they provide little guidance as to how that subject is to be negotiated. Moreover, Salinas Valley, the first published PERB decision to address this matter directly, offers little additional guidance.
In concluding the decision to engage in a layoff is not negotiable but the number of employees is, PERB appears to have created a distinction without a difference. Arguably, a union could accept the District’s decision to layoff, but propose the number be zero. This could result in an intrusion into what has previously been reserved as a management right.
It is important to note we believe that the decision likely does not impact certificated layoff implementation, which is clearly delineated in the Education Code, and which PERB has previously concluded is not negotiable. (Mt. Diablo Unified School District (1983) PERB Dec. No. 373.) In Salinas Valley, PERB acknowledges that where “statute establishe[s] an immutable timeline or procedure, or stipulate[s] that the employer alone make a decision concerning implementation” of a layoff, the impacts and effects of a layoff decision are non-negotiable. However, classified layoff implementation would likely be affected by the Salinas Valley decision. Additionally, the decision appears to recognize a District’s right to implement a non-negotiable decision prior to the exhaustion of impasse when the following criteria are met:
(1) The layoff implementation date was not arbitrary but based on an immutable externally-established deadline, or on an important managerial interest such that delay beyond the chosen date would undermine the employer’s right to make the decision to lay off;
(2) The employer gave notice of the layoff decision and implementation date sufficiently in advance of the implementation date to allow for meaningful meeting and conferring prior to the implementation; and
(3) The employer met and conferred in good faith on implementation and effects prior to the implementation, and thereafter as to those subjects not resolved by virtue of the implementation. (Compton Community College District (1989) PERB Dec. No. 720.)
Thus, if a District is able to meet the Compton criteria, the union will not be able to delay implementation of a layoff even if it demands to bargain the number of employees to be laid off. Again, this is particularly applicable in the context of the rigid statutory scheme for certificated layoffs.
Ultimately, Salinas Valley remands the issue back to an Administrative Law Judge to determine whether the Hospital violated the MMBA. Districts and county offices of education may need to wait until the underlying decision is published to fully comprehend the potential import of this decision.