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Guidance on Employer’s Refusal to Bargain a Non-negotiable Decision: California Public Employment Relations Board Decision Supports Employees (PERB) when “Reasonably Foreseeable” Impact Shown

April 5, 2013 by

The California Higher Education Employer-Employee Relations Act (HEERA) provides the statuary basis for union formation and bargaining for State-run Colleges and Universities.  As part of Beeson, Tayer & Bodine’s dedication to follow cases and decisions related to Labor and Education practice areas, a summary is provided of a recent PERB decision.

California State University (CSU) drafted an executive order regarding mental health services that would be provided on all campuses; the order included a provision designating a percentage of time that mental health clinicians would spend providing direct services. Prior to implementation of the executive order, the Union representing the mental health clinicians requested to meet and confer about the impact the order would have on counselors’ term and conditions of employment, including workload. Without responding to the request, the CSU chancellor implemented the executive order. The Union filed a PERB charge alleging CSU had failed to bargain over the impact of the order. PERB’s General Counsel dismissed the charge, agreeing with CSU that there was no need to bargain over the effects of the non-negotiable executive order because any effect on the bargaining unit was “speculative at best, and insufficient to support a violation.”

On appeal, PERB reversed and directed the issuance of a complaint. The sole issue, said PERB, was “whether CSU’s decision to implement the executive order gave rise to a duty to engage in ‘effects’ bargaining upon [the Union’s] timely demand.” PERB explained that this is not a “unilateral change” case in which a charging party must allege an “actual” change/effect. Rather, this is a case involving the employer’s obligation to bargain over the effects of a non-negotiable decision upon the Union’s timely request “prior to any actual change.”

When claiming that implementation of an employer’s non-negotiable decision will have an impact triggering an effects-bargaining obligation, the Union has the burden of alleging facts that demonstrate a “reasonably foreseeable impact on employees’ working conditions.” But, PERB noted, the Union is not required to prove that there will be an actual change in working conditions in order to compel effects bargaining. A Union need only produce sufficient evidence to show that the non-negotiable decision would have a “reasonably foreseeable” adverse effect on working conditions. PERB concluded that the Union’s charge alleged sufficient facts to demonstrate that effects on workload were reasonably foreseeable so as to state a prima facie case for refusal to bargain.

When looking for expertise in Labor Law applicable to Public Sector Employees, BT&B has experience and our attorneys keep current on decisions that impact bargaining and employment issues faced by those with careers in the California public sector.  Visit our website to learn more about case law and news.

Trustees of the California State University, PERB Dec. No. 2287-H (PERB 2012).


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