PERB Emphasizes the Employer's Duty to Bargain the Decision to Transfer Bargaining-Unit Work

In City of Escondido (2013) PERB Decision No. 2311-M, the Public Employment Relations Board (“PERB”) reaffirmed that a public agency has a duty to meet and confer about the decision to transfer work out of the bargaining unit. PERB reminded public agencies that they do not meet their obligations under the Meyers-Milias-Brown Act (“MMBA”) by merely negotiating the effects of the transfer of work. A public agency commits an unlawful unilateral change by failing to meet and confer over a decision to transfer work out of the bargaining unit.

Generally, a public agency must negotiate the decision to transfer work in two situations: (1) where bargaining-unit employees cease to perform work which they had previously performed; or (2) where non-bargaining-unit employees begin to perform duties previously performed exclusively by unit employees.

This transfer-of-work case is interesting because it arose in the context of a lay-off. According to the unfair practice charge, the City laid off certain represented employees, citing budget deficits. After the lay off of a classification of full-time represented employees, the City, the charge states, then started assigning the full-timers' job duties to unrepresented part-timers. The employee organization then filed a charge alleging that the City unilaterally transferred work out of the bargaining unit.

In the context of lay-offs, employee organizations should be vigilant in monitoring how the public agency is providing the services that were performed by laid-off bargaining-unit employees. If you are dealing with a lay-off or suspect a transfer of bargaining-unit work, please contact your union counsel immediately.

By Sean D. Graham

Legal Developments