Calif. Public Employment Board clarifies standard regarding effects bargaining

In reversing the dismissal of an unfair practice charge and directing the issuance of an unfair practice complaint, the California Public Employment Relations Board issued an important clarification of its standard governing allegations of failure to engage in effects bargaining.

The California Faculty Association brought the unfair practice charge against California State University Trustees after university officials implemented an executive order concerning student mental health services.

(Click here for the decision on Westlaw.)

The officials implemented the order without ever acknowledging the request, by the union’s representation director, to meet and confer regarding the order’s impact on university counselors’ terms and conditions of employment.

The representation director expressed concerns about mental health counselors’ workload, where the executive order stated that the university expected counselors to spend at least 60 percent of their base time providing direct services, including counseling, intakes, assessment, and crisis intervention.

The charge was initially dismissed. In reviving the charge, the California Board ruled that the university maintained a duty to negotiate potential effects on counselors’ workloads prior to implementing the executive order.

It clarified the standard for examining an unfair practice charge regarding failure to engage in effects bargaining. The California Board reaffirmed the “foreseeability standard” set forth in Mt. Diablo Unified School District, 8 PERC 15017 (PERB 1983) for such cases.

The California Board explained that, under the Mt. Diablo standard, parties may not implement a non-negotiable decision without first negotiating over effects that have an impact on matters within the scope of bargaining.

The duty to bargain arises “when a firm decision is made,” PERB noted.

It disavowed any precedential statements of law or analysis requiring a charging party to establish that an “actual change” occurred, as an element of an unfair practice charge disputing an employer’s alleged failure or refusal to bargain the negotiable effects of a non-negotiable decision upon a timely demand.  

The California Board cautioned that the bargaining obligation does not attach to effects that are purely speculative.

California Faculty Association v. Trustees of the California State University, 2012 WL 4904586, 37 PERC 79 (Cal. PERB 10/04/12) (PERB Decision No. 2287-H).