Unions Must Demand Effects Bargaining, Even if Employer Notice is Untimely
In California Correctional Peace Officers Association v. State of California (Department of Corrections & Rehabilitation, Avenal State Prison) (2011) PERB Decision No. 2196-S, the CCPOA filed an unfair practice charge alleging that the State unilaterally changed a policy regarding random searches of employees within the perimeter of a prison. CCPOA later amended its charge to allege only that the State failed to provide the association prior notice and opportunity to bargain over the effects of the policy change. The association did not allege that it had demanded to bargain over the effects of the change, or that it had identified for the employer any negotiable effects of the change.
PERB dismissed the charge. When the employer does not provide the exclusive representative prior notice or opportunity to bargain over a mandatory subject of bargaining prior to implementing the change, the exclusive representative does not waive its right to bargain even if it never demanded to bargain over the decision. But, the same is not true for impact bargaining. In this case, PERB clarified that in order to prevail on a claim that the employer failed to provide notice or opportunity to bargain over the impacts of a decision, the exclusive representative must demonstrate that it demanded to bargain and identified for the employer negotiable impacts of the decision.
The moral of the story?
Even if the employer fails to provide the exclusive representative prior notice and opportunity to bargain over a decision, as soon as the exclusive representative learns (even indirectly) about the decision, it should send to the employer a demand to bargain over the effects. In the demand to bargain, the exclusive representative must list all of the effects of the decision that it wishes to negotiate.
Author: Kerianne Steele
