September 19, 2013
Although a public employer may maintain the legal right to impose changes that affect employees’ conditions of employment, a union may still be able to demand negotiations over the impact of those changes. In California, the standard applicable to making such a bargaining request — known as a demand to engage in effects bargaining — has changed.
In Santa Clara County Correctional Peace Officers’ Association v. County of Santa Clara, 38 PERC 30 (Cal. PERB 2013), the California Public Employment Relations Board reexamined the standard it applies to unfair practice charges concerning effects bargaining claims. In prior cases, PERB had said that a union must first demand effects bargaining before the employer was required to provide “reasonable advance notice” and a chance to bargain over changes in conditions of employment. In this decision, PERB overruled those cases.
Now, when an employer offers notice and an opportunity to bargain, a union can request effects bargaining, PERB decided. It explained that the union must demand effects bargaining or risk the waiver of its right to do so. The bargaining demand must clearly identify the matters (within the scope of representation) that it would like to negotiate. The union must specify that it wants to negotiate concerning the effects of the employer’s decision.
In a cautionary note for public employers, PERB said that it will focus on the employer’s control over employment conditions if the employer makes a change without telling the union and providing the union with a bargaining opportunity. PERB said, “Where the employer implements the change without giving the union reasonable notice and an opportunity to bargain over foreseeable effects on matters within the scope of representation, it acts at its own peril.” [emphasis added].