City of Sacramento (2013) PERB Decision No. 2351-M (Issued on 12/24/13)
This is one of those rare cases where the Board overturns an ALJ decision dismissing an unfair practice charge. Here, the union alleged that the City of Sacramento violated the MMBA by refusing to bargain a decision to lay off all employees in the Supervising Dispatcher classification and reassigning those duties to employees in the Dispatcher III classification. The ALJ dismissed the case, in part, on a finding that the union failed to request bargaining after learning of the City’s plans. The Board rejected the proposed decision based on its determination that the City had already made a “firm” decision to proceed with its actions before notifying the union, and therefore, the union was not obligated to request to bargain since the unfair practice had already occurred.
The recent trend at PERB has been to issue long decisions. To some extent, I appreciate the additional analysis and discussion. However, it makes trying to summarize cases difficult. There is a lot of interesting discussion in this case. But I’m going to just focus on two issues:
Notice and Meaningful Opportunity to Bargain
The Board affirmed prior precedent requiring that an employer must provide notice to the union of a proposed change within the scope of representation before making a firm decision. If an employer makes a firm decision before providing notice to the union, the employer has committed an unfair practice as of the date of its firm decision. Here, the Board found that there was no “official” notice to the union of the change. However, the Board assumed, for purposes of its decision, that the union received a “Budget Cuts Update” from the City discussing the plan to reorganize the Police Department and to lay off the Supervising Dispatchers. But the Board held that the update did not provide the union adequate notice of the negotiable aspects of the City’s plans. Thus, the Board rejected the ALJ’s finding that the union had actual notice of the proposed change and therefore should have requested bargaining.
The Board also held that, “Where the representative’s “actual” or “constructive” knowledge of a “proposed” policy change is the result of the employer’s implementation of that change, by definition, there has been inadequate notice.” The Board held that in such a case, the employer’s notice is nothing more than its announcement of a fait accompli. In terms of proving when an employer has made a firm decision, the Board cited to Clovis Unified School District (2002) PERB Decision No. 1504 for the proposition that, even if an employer does not implement a change in policy until later, or perhaps not at all, its direct communications with employees soliciting the change demonstrates that the employer has already reached a firm decision, for the purpose of demonstrating that a unilateral change has occurred.
Posting of PERB Remedial Order
Where PERB finds an unfair practice, its standard remedy includes a posting of a cease and desist order from PERB. However, in this case the Board noted that much of the communication was electronic. The Board stated that it wanted to “take this opportunity to update PERB’s traditional posting requirement to better conform to the realities of the 21st-century workplace.” After some discussion, PERB held that:
We believe that physically posting notice of the Board’s remedial orders in the workplace remains an essential tool for remedying unfair practices and furthering the policies of the statues we administer. (Belridge, supra, PERB Decision No. 157.) However, to ensure the continued viability of this tool, we hold today that where the offending party in unfair practice proceedings, whether it be an employer or employee organization, regularly communicates with public employees by email, intranet, websites, or other electronic means, it shall be required to use those same media to post notice of the Board’s decision and remedial order. Any posting of electronic means shall be in addition to the Board’s traditional physical posting requirement.
Applying this new standard, the Board opined that the remedy here should include sending a scanned or similarly reproduced version of PERB’s notice to all the employees who received the City’s “Budget Cuts Update.” In addition, the Board held that because of the “bumping” that occurred, the posting and/or communication should extend to all employees affected by the layoffs, even those in other bargaining units.
- Before I begin, full disclosure, my firm had some involvement in this case so I am admittedly not an objective analyst of this decision. While I take issue with many of the factual and legal conclusions of the Board—and believe that the ALJ decision reached the correct result—I’m going to focus on just two issues that I think will be of interest to other public agencies.
- First, I found very troubling the Board’s discussion of how to determine when an employer makes a firm decision to make a change. In the decision, the Board discussed a case where an employer announced a change within the scope of representation without first notifying the union. After the union learned of the change, it requested bargaining. The employer then agreed to delay implementation of the change in order to meet and confer with the union. When no alternative agreement was reached during bargaining, the employer implemented its proposed change. The NLRB found an unfair labor practice because it determined that factually, the employer had no intention of considering alternatives. From this case the Board concluded that: “The employer’s willingness to delay implementation and meet with the union after it had already announced its decision to employees was, in the NLRB’s view, no defense, since any “bargaining,” after the employer had already made up its mind, would not “cure” the violation.” (Emphasis original).
- My issue with this portion of the Board’s decision is that it comes dangerously close to eviscerating an employer’s right to engage in hard bargaining. In the example discussed by the Board, the employer did the right thing by agreeing to delay implementation once the union requested to bargain. Indeed, what would PERB have the employer do in such a situation? While I’m sure the Board would agree that the employer’s belated recognition of its duty to bargain is a good thing, it then suggests that the fact that the employer ended up implementing its original proposal is evidence that it had made a firm decision and never intended to engage in good faith bargaining.
- My criticism of this analytical leap is that it ignores the possibility that an employer can make a proposal that it believes to be wise, correct, and appropriate but still be willing to listen to alternatives; and that this constitutes good faith bargaining. In some respects, it could be said that the employer in this situation has made a firm (when I say “firm” here I’m not using it as a term of art) decision to go with the proposal absent the union providing a better alternative. I call this hard bargaining. I don’t think the Board is trying to suggest that hard bargaining is inappropriate, but this decision could create some risk for employers.
- Regarding posting, I’ve never liked the concept to begin with so I obviously don’t like the Board’s expansion of the practice. But I concede that the practice has been around for a long time. Nevertheless, I’m not at all sure that the Board’s order to expand “posting” to employees not in the bargaining unit is appropriate or legally defensible. Basically, the Board seems to want the employer to tell the whole world that it screwed up. Well, I would rather leave that to the union whom I’m sure will be happy to take on that task.
- One more thing, there is language in the seminal Vallejo case that the “number” of employees subject to a layoff is a negotiable effect. (See Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621.) For background on this issue, see my prior blog post here. On page 23 of this decision, the Board discusses why the decision itself to transfer work for labor cost considerations is negotiable. One of the citations used by the Board is the following: “City of Vallejo, supra, 12 Cal.3d 608, 621-622 [timing and number of employees to be laid off negotiable]” (Emphasis original). One of my fears with having to negotiate the “number” of employees to be laid off as an “effect” is that it comes very close to having to negotiate over the decision itself. Here, the Board is providing fodder for unions to make just such an argument. Perhaps that was not the Board’s intent but employers will want to be aware of the issue.