“Piecemeal Bargaining” is an Unfair Labor Practice
Although it is not required to do so, the California Public Employment Relations Board (“PERB”) often relies upon precedent established in the private sector by the National Labor Relations Board (“NLRB”). PERB has clearly decided to adopt the NLRB’s prohibition on “piecemeal bargaining.”
In 1991, the National Labor Relations Board in E.I. DuPont de Memours & Co. (1991) 304 NLRB 729 held that an employer violates the duty to bargain in good faith when it “reduces the flexibility of collective bargaining and narrows the range of possible compromise by rigidly and unreasonably fragmenting negotiations.” In other words, the NLRB found that the employer had denied the Union its ability to “horse trade” on numerous subjects of bargaining by insisting on bargaining issues one at a time. It is an unfair labor practice for an employer to rigidly and unreasonably fragment negotiations.
In City of San Jose (2013) PERB Dec. No. 2341-M, the employer indicated that it intended to negotiate the subject of pension reform, but only after it had concluded negotiations on other topics of bargaining. In other words, the City of San Jose would not engage in negotiations on pension reform until it first reached agreement on all matters related in contract negotiations, as opposed to allowing the issue of pension reform to be handled in the context of the overall negotiations. PERB stated that “a party may not condition its willingness even to discuss a particular mandatory subject on prior agreement over other subjects.” PERB held that piecemeal bargaining is impermissible because it allows one party to “arbitrarily limit the range of possible compromises by declaring certain mandatory subjects of bargaining off limits for discussion until complete agreement has been reached on all other subjects.”
A PERB Administrative Law Judge has since relied on the City of San Jose decision in finding that an employer committed the most serious type of offense (a per se violation) when it engaged in piecemeal bargaining. (See Menlo Park Fire Protection District, PERB Case No. SF-CE-874-M.)
For more information about these cases or a public employer’s obligation to bargain in good faith, please contact your labor law counsel.
By Stewart Weinberg | October 29, 2014