PERB: Permissive Subjects Ok If No Objections

Anaheim Union High School District (2016) PERB Decision No. 2504-E (Issued on 10/14/16)

In 2012, the Anaheim Union High School District (District) and AFSCME were engaged in negotiations for a successor agreement. Facing a multi-million dollar budget deficit, the District asked AFSCME for significant economic concessions, including furlough days for employees. The District also informed AFSCME that even with concessions, some layoffs would still be required. In terms of the number of layoffs, the District told AFSCME that if agreement was reached on the concessions by July 1, 2012, a “short list” of six employees would be laid off; but if no agreement was reached by that time then a “long list” of 13 employees would be laid off.

The District and AFSCME exchanged several proposals during negotiations but no agreement was reached by July 1. So the District initiated the “long list” of layoffs. Negotiations continued thereafter but no agreement was reached and the District eventually declared impasse. After factfinding, the District imposed its last, best, and final offer.

AFSCME then filed this unfair practice charge alleging, among other allegations, that the District unlawfully conditioned agreement and/or insisted to impasse on a non-mandatory subject when it advised AFSCME that it would lay off fewer employees if AFSCME agreed to various economic concessions, including furloughs. The ALJ rejected AFSCME’s allegations and dismissed the unfair practice charge. The Board affirmed.

With respect to the allegation that the District insisted on a permissive subject of bargaining, the Board affirmed the dismissal on two grounds. First, the Board affirmed the ALJ’s finding that, even assuming the District’s proposal was permissive, AFSCME failed to raise any objections to it. The Board iterated that, “Under PERB precedent, as a prerequisite for alleging that a party to negotiations has unlawfully insisted to impasse on a proposal containing a permissive subject of bargaining, the charging party must communicate its opposition to further discussion of the issue.” Here, the Board found that AFSCME did not sufficiently voice its unwillingness to bargain over the alleged permissive subject. Second, the Board held that the District’s proposal was not entirely permissive. The Board emphasized that, “An employer’s decision to layoff is not subject to bargaining, but the negotiable effects of that decision include the timing, number and identity of the employees to be laid off.” Here, the Board held that whether to use the long or short list clearly implicated both the number and identity of employees to be laid off. The Board therefore held that the District’s proposal was not permissive.

Comments

This case provides a good primer on the role of permissive subjects of bargaining in negotiations. As the Board notes, it often makes sense for both parties to agree to “negotiate” over a permissive subject because it can provide an additional avenue to reach overall agreement. But the lesson from this case is that if you don’t want to include the permissive subject in negotiations, you have to make your objections clear to the other side.
Next, this case is consistent with the current Board’s views on layoffs. According to the Board, while the “decision” to initiate layoffs is a management right, the timing, number and identity of the employees to be laid off are negotiable. The Board first set forth this distinction in Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298-M. (See my post here.) My issue with this distinction is over the term “numbers.” What I argued back in 2012—and what I continue to believe today—is that having to negotiate over the “number” of layoffs is tantamount to having to negotiate over the layoff decision itself. In my mind, it’s a distinction without a difference.
This case illustrates my point. If, as the Board holds, the District’s proposal was negotiable as to the “number” of employees to be laid off, then the District should not have implemented its layoff decision until concluding those effects negotiations. But if the District can’t implement the layoff decision, then what good is it to tell the District that the decision to “layoff” employees is a management right? Interestingly, because AFSMCE considered the layoff proposal to be permissive, AFSCME apparently did not contest the implementation of the layoffs on July 1st as an unlawful unilateral change. But arguably, AFSCME could have made such an assertion under the Board’s holding.