PERB: Employer Must Clarify Effects Demand Before Rejecting It

Rio Hondo Community College District (2013) PERB Decision No. 2313-E (Issued on 3/21/13)

In my opinion this is one of the first major decisions to be issued by the “Brown” Board. The facts are simple. The school district informed the union that it intended to install security cameras in its new Learning Resource Center. The cameras would capture activities such as bargaining unit members coming and going, entering and leaving a break room, and cleaning public areas of the building. The union requested to bargain over the decision and effects of the decision. The union stated in its demand to bargain that the cameras impacted working conditions such as “performance evaluations and potential discipline.” The district denied the request to bargain.

The union then filed this unfair practice charge. The General Counsel’s office issued a complaint over the district’s refusal to bargain over the effects. The case proceeded to a hearing wherein the administrative law judge ruled in favor of the union. In affirming the proposed decision, the Board made several important holdings.

First, and most important, the Board held that because the effects from a decision are not always apparent, “clarification is essential.” The Board held that:

Upon receiving an effects bargaining demand, and before refusing to negotiate, an employer must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation. (Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1983) PERB Decision No. 375, at pp. 8-10 (Healdsburg/San Mateo) [negotiating parties must clarify what is proposed for bargaining and whether it falls within the scope of representation].) Refusing an effects bargaining demand without first attempting to clarify ambiguities and or whether matters proposed for bargaining fall within the scope of representation, violates the duty to bargain in good faith. (Ibid.)

The Board emphasized the need to seek clarification at least three times in the decision. For example, the Board also stated:

Upon receiving a union’s bargaining demand, the employer has three options: (1) accede to the demand and address the union’s concerns in negotiations; (2) ask the union for its negotiation justification, viz., seek clarification of (a) the areas of impact proposed for negotiation and (b) whether these areas of impact are within the scope of representation; or (3) refuse the union’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified. (CSU, supra, PERB Decision No. 2287-H; Healdsburg/San Mateo, supra, PERB Decision No. 375.)

Second, the Board rejected the district’s argument that a demand to bargain over effects must identify the “specific” effects to be bargained. The Board held that instead, a demand to bargain over effects is sufficient “if it clearly identifies negotiable areas of impact” and “clearly indicates a desire to bargain over the effects of the decision as opposed to the decision itself.” Here, the Board held that the union’s demand to bargain over the effect of the cameras on performance evaluations and discipline was sufficient.

Third, the Board emphasized its holding in Trustees of California State University (2012) PERB Decision No. 2287-H (CSU) that a demand to bargain over effects need only identify potential prospective effects, and not actual effects. The Board went on to overrule its decision in San Francisco Unified School District (2009) PERB Decision No. 2048 to the extent that that decision required a party to identify “actual” effects in a demand to bargain.

Comments

Several months ago I submitted a comment to PERB regarding its proposal to allow some decisions to be non-precedential. I proposed that the Board give itself the power to designate any decision as precedential or non-precedential as it saw fit. In response to my comment, PERB stated that, “the intent of the proposed regulation package is to make incremental changes rather than paradigm shifts in the PERB regulations.” I don’t disagree with this statement. I only bring it up because I think it reflects the philosophy of this Board. To wit, this decision is a prime example of the “incremental change” that I think we can expect in the coming years.
The core holding in this decision is that before rejecting a demand to bargain over effects an employer must seek clarification with the union over exactly what effects are subject to the demand. Although the Board does not say it in the decision, this is a new interpretation of the law. Prior to this decision, the rule was that under Newman-Crows, any demand to bargain over effects must clearly identify the areas of impact. Indeed, if you do a search of PERB cases you will see that sentence repeated over a dozen times in the last few years. The cases did not mention any duty to seek clarification. Indeed, by requiring that a demand to bargain over effects “clearly identify” the effects there would be no need to seek clarification.
In support of this new rule, PERB cites to the Healdsburg case from 1983. In that case, an employer refused to negotiate over proposals at the bargaining table that it claimed were vague and not clearly within the scope or representation. The Board held that the best way to resolve a dispute over the meaning of a proposal is to require a party to seek clarification at the bargaining table. PERB has now imported this principle into the effects bargaining realm.
In my mind, this is a classic example of a new Board trying to move the law in another direction. Is this a paradigm shift? Probably not, but it certainly is a change.
So what is the practical effect of this decision? In my mind this decision shifts much of the burden to complete effects bargaining onto the employer. I fully agree with the Board’s concern that often times the effects of a management decision are not readily apparent. To overcome this hurdle, smart unions will submit information requests to try to ascertain whether there are any negotiable effects. Unions will then use the information they gain to craft demands to bargain. This decision allows unions to short circuit that process. Now, the union only has to identify a potential area of impact in order to make a valid demand to bargain over effects. Further, the union has much more room to guess at what the potential effects might be since the burden falls on the employer to seek clarification if it does not understand a demand. Instead of being able to reject a demand for lacking in specificity, an employer now must engage in an interactive process to seek clarification. So at a minimum, in planning for the implementation of a management decision employers will want to build in extra time to complete the effects bargaining process.