PERB: Union Must Demand Effects Bargaining Prior To Filing Charge

California Correctional Peace Officers Association (2011) PERB Decision No. 2196-S

Facts:

In May 2009, Avenal State Prison (ASP) changed its policy on unannounced, random searches of employees to allow for the confiscation of contraband, among other changes. ASP did not notify the union, CCPOA, of the change and CCPOA did not discover the change until after it had been implemented in May 2009. CCPOA then filed an unfair practice charge. CCPOA did not argue that ASP had to bargain over the decision to implement the new policy, but rather alleged that ASP failed to bargain over the effects of the decision.

Majority Decision:

The Board noted CCPOA became aware of the change in policy shortly after it was implemented even though it did not receive formal notice from ASP prior to implementation. According to the Board, once it learned of the change in policy, CCPOA should have requested to bargain over the effects of the change. Because CCPOA did not make any request to bargain over effects (nor identify any specific negotiable effects), the Board affirmed the dismissal of the charge.

Dissent by Member Huguenin:

Member Huguenin dissented from the majority opinion by Member Dowdin and joined by Member McKeag. Member Hueguenin argued that if a union does not receive notice of a change, the union should not have to request to bargain over any effects prior to filing an unfair practice charge. According to the dissent, if a union first learns of the change after implementation, it “cannot interpose a timely demand to bargain over the impacts. In these circumstances, requiring a union to make a post-implementation bargaining demand as a condition to remedying the employer violation is unreasonable.”

Comments:

I wanted to highlight this case because of member Huguenin’s dissent. In addition to this case, he also dissented in another case just issued by PERB. (More on that next week). This is significant because Member Huguenin is a new member to the Board and this is his first substantive decision. As an observer of PERB, I take Member Huguenin’s dissent as a desire on his part to come out strong and signal to the labor relations community that things may change in the future. It’s also a testament to his strong labor law background that he is comfortable staking out positions like this one early in his tenure. As a management lawyer, I’m going to pay keen attention to dissents like this one because I know that the composition of the Board will likely be changing as Governor Brown makes more appointments. So the dissents of today may very well become the majority opinions of tomorrow.
As for the substance of Member Huguenin’s dissent, I respectfully disagree with it. Member Huguenin recognizes that sometimes an employer cannot anticipate that a managerial decision might have negotiable effects. Further, in large organizations there can easily be dozens of management decisions made each day that an ingenius union lawyer might argue has some negotiable effect. As the majority notes, the dissent would require an employer to “possess unusual clairvoyance in anticipating that the employee representative might identify some negotiable effects…” It these situations, I think it’s reasonable to require that a union demand to bargain those effects before filing an unfair practice charge.
Contrary to the dissent, I would argue that requiring a union to demand to bargain over effects prior to filing a charge actually promotes resolution of disputes over such matters. For example, under the majority opinion two things can happen once the union demands to bargain effects after it finds out about a change: 1) the employer refuses to bargain, in which case the union can file an unfair practice charge and the only thing lost is the time it took to make the request and receive the denial; or 2) the employer agrees to bargain and the parties reach agreement, in which case the parties are happy. If the parties don’t reach agreement, the union can still file a charge.
The dissent does make a valid point that in a situation where the employer has already implemented, that the ability to bargain over effects may be limited. This is sometimes true. However, I think it should be remembered that these are managerial decisions that are not subject to bargaining. In most cases, the employer will still have the ability to bargain in good faith over any negotiable effects.