PERB rules that an employer proposal to maintain sole discretion over a negotiable subject cannot be imposed after impasse

In California School Employees Association v. Los Angeles Unified School District, PERB Decision No. 2326, PERB has decided that an employer cannot impose a proposal to maintain unfettered discretion over a subject of mandatory bargaining. 

The parties’ predecessor contracts included a provision that gave the District complete discretion to reduce the hours of employment, e.g., reducing an employee from full-time to part-time, or reducing the number of days in an employee’s workyear.  In bargaining for a successor agreement, the District proposed to continue this contract provision, but CSEA did not wish to consent to that contract language any longer.  The District insisted to impasse upon the proposal to continue having complete discretion to reduce hours. 

As an important preliminary matter, PERB decided that the District did not commit an unfair practice by insisting upon the proposal to impasse, because employers and Unions may lawfully bargain over the amount of managerial discretion an employer may retain over a mandatory subject of bargaining, such as hours.  Accordingly, an employer can lawfully make such a proposal in bargaining, and conversely a Union presented with such a proposal may bargain to get other negotiable benefits in exchange, if desired.

However, where an employer proposes to maintain unlimited discretion over a subject of mandatory bargaining and the Union does not agree, PERB ruled that such discretion cannot be imposed after impasse.  PERB explained that imposition of such a term would be destructive to collective bargaining.  Although an employer generally may impose the terms of its last, best and final offer after impasse, PERB has adopted this exception to the general rule so that bilateral collective bargaining is not replaced by “unilateral control unilaterally imposed.” 

By Anne Yen | September 30, 2013

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