Trying To Define A Technical Refusal To Bargain

County of Ventura (2012) PERB Decision No. 2272-M (Issued on 6/14/12)

This case involves a highly convoluted set of facts. But here are the key ones for our purposes. The Union of American Physicians & Dentists (UAPD) filed a petition to represent physicians working at outpatient clinics operating under contract with the County of Ventura (County). The County refused to process the petition on the ground that it was not the employer of the physicians; rather, the County asserted the physicians were employed by the clinic operators. That spawned an unfair practice charge by UAPD which resulted in County of Ventura (2009) PERB Decision No. 2067-M (Ventura I). In Ventura I, the Board found that the County was a joint employer of the physicians and ordered the County to process the representation petition.

The County complied with the Ventura I decision and processed the petition. The County eventually recognized UAPD as the exclusive representative of physicians working in outpatient clinics based on the Board’s finding that it was a joint employer. However, shortly after recognizing the new unit, the County took the position that new contracts with the clinic operators abrogated any employment relationship between the physicians and the county. Based on that position, the County declined to bargain with UAPD. That spawned this current unfair practice charge by UAPD.

In its decision, the Board ordered the case remanded to the administrative law judge to conduct expedited proceedings on the issue of joint employment. What I found interesting was the Board’s discussion of whether the County’s conduct constituted a technical refusal to bargain. The phrase “technical refusal to bargain” is a term of art in labor law. Under the NLRA, unit determinations are generally not subject to judicial review. So to obtain judicial review of such determinations, employers developed the technique of refusing to bargain in order to draw an unfair labor practice charge. During the ensuing proceedings, the employer would raise the unit issue as a defense; and thus obtain judicial review of the unit determination issue.

In this case, the Board affirmed its position that a technical refusal to bargain cannot be used to challenge a unit determination issue. (See Los Angeles Unified School District (2007) PERB Decision No. 1884.) Instead, PERB requires that challenges to unit determination issues be addressed through the unit modification process. So what happens if you engage in a technical refusal to bargain? According to the Board:

Where an employer has engaged in such a tactic, the Board will not make any factual findings on the unit configuration issues as part of the unfair practice proceeding, and the challenged unit determination remains binding on the parties. The Board rationale is that unit modification is more appropriately accomplished either by agreement of the parties or through unit modification procedures. [Citation omitted]

Here, the Board made an effort to distinguish the County’s conduct from a technical refusal to bargain. According to the Board, the County did not seek to modify a unit but rather to raise a jurisdictional question. The Board noted that a separate line of PERB cases recognizes a party’s right to relitigate representation matters by demonstrating a change in circumstances. The “changed circumstances” line of cases, according to the Board, represents a more analogous line of cases to this situation than cases involving a technical refusal to bargain.

Comments:

PERB generally follows NLRB precedent. So it’s always good to note the areas where PERB differs. “Technical refusal to bargain” is one such area. While the NLRB allows it, PERB does not.
The Board went to some length in this case to make it clear that it was not condoning a technical refusal to bargain. Notably, the Board emphasized its precedent holding that the unit modification process should be used where there is a question about the appropriateness of a bargaining unit. What I found interesting was PERB’s discussion of the “changed circumstances” line of cases. I initially read the decision to say that the “changed circumstances” line of cases supported the County’s conduct here. However, the concept of “changed circumstances” is a factor used during the unit modification process. (See, e.g., PERB Regulation 32781.) Indeed, all the “changed circumstances” cases cited by the Board in this decision involve representational proceedings, not unfair practice ones. So in my mind, it’s hard to rely on those cases to support the County’s conduct since this case was an unfair practice proceeding.
However, I agree with the Board that the key issue here is a jurisdictional one: whether the County is an employer of “employees” subject to the MMBA. It’s not really a unit determination issue. So I wouldn’t characterize the County’s conduct as a technical refusal to bargain. It’s no different than if the County got an unfair practice charge from an independent contractor. Because that individual is not an employee, the County can always raise that jurisdictional defense before PERB.