Public Labor Board Bans Employer Implementation of Full-Discretion Proposals
December 23, 2013 by Dalisai Nisperos
In this public sector labor law ruling summarized here by Beeson, Tayer and Bodine (BT&B), the Public Employee Relations Board (PERB) indicates an exception to the general rule that an employer has full discretion to implement its final offer in cases of impasse. In both the private and public sectors, the general rule is that once impasse is reached (and after exhaustion of any applicable impasse-resolution proceedings) an employer may unilaterally implement those terms of its final offer that encompass mandatory subjects of bargaining. In CSEA Ch. 500 v. Los Angeles Unified School District, the PERB has adopted an important exception to this rule. For public and private sector unions seeking better understanding of how to address collective bargaining issues, BT&B maintains an extensive labor law practice and summarizes relevant court cases and rulings.
While negotiating a successor agreement, the LAUSD and union reached impasse on a proposal that gave the District full, unfettered discretion over “layoffs” and, consequently, reductions to employee hours and the length of the work year. Claiming that it had unilateral control over hours of employment (a mandatory subject of bargaining), the District insisted to impasse on the proposal, then implemented the proposal and laid off more than 1,000 employees. The Union filed an unfair practice charge.
When the case reached PERB, PERB held that the National Labor Relations Board rule prohibiting private sector employers from unilaterally imposing their last, best and final offer under some circumstances applies to public sector employers as well. The NLRB has previously ruled that when a proposal gives the employer “unfettered discretion” over a mandatory subject of bargaining for an unlimited period of time, it is inappropriate to allow the employer to unilaterally implement the proposal after reaching impasse. In CSEA Ch. 500 v. LAUSD PERB adopted this rule for application to the public sector. PERB noted that a contrary ruling would allow public sector employers to repeatedly make unilateral decisions, over union objections, without ever coming back to the table to negotiate. PERB held that such a practice is contrary to collective bargaining principles and the purpose of impasse proceedings that are designed to break impasse.
Going forward, when addressing union objections to a public sector employer’s post-impasse, unilateral implementation of its final offer, PERB will review bargaining proposals relating to mandatory subjects of bargaining to see if they give employers unlimited discretion over mandatory subjects of bargaining for an indefinite period of time and will look at the facts of each case to decide whether this narrow exception applies. With the availability of this PERB review California public sector unions may avoid the imposition of unilateral employer provisions when impasse is reached. To best serve union members through effective collective bargaining principles union leaders are encouraged to build relationships with knowledgeable labor law attorneys such as BT&B who keep current in both public and private sector labor law.
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