* * * OVERRULED IN PART by City of San Jose (2013) PERB Decision No. Unfair Labor Practice (ULP): Violating the rules of bargaining constitutes an unfair labor practice, and either party can officially charge the other of it by appealing to the Illinois Educational Labor Relations Board (IELRB). Section 3505.1 allows a union to bring an unfair practice charge alleging that a governing body evidenced bad faith in rejecting a tentative agreement. Charge failed to allege a prima facie violation of the duty to bargain over reopener proposal, where contractual zipper clause barred negotiations unless one of two exceptions applied and employer failed to reopen agreement in a timely fashion. The union told the state Tuesday that it will go on strike Dec. 5, 2016 "in protest of the state's unlawful. The District's bargaining team "lacked the authority to bargain, as they were repeatedly countermanded by Superintendent Jorge A. Aguilar, who had declined to participate in actual negotiations, resulting in [SCUSD] contradicting and backtracking from proposals" related to Distance Learning; Bargaining Unit: A bargaining unit is a group of employees represented by a labor union and to whom the contract applies. Mediators are generally called in late in the bargaining process to help facilitate. For example, if Admin proposes a 1% raise for us, they can never offer us any less than that. Historically, the NLRB has viewed regressive bargaining . 1000), While actively campaigning against a tentative agreement may be another unlawful form of torpedoing, the level of dissenting bargaining team members active campaigning that would be sufficient to prove a unions bad faith remains an unresolved issue. "If these employers have to absorb these types of costs, they will have to come to bargaining table with less wages and benefits because of the tax hike," Smith said. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. Good news: the National Labor Relations Board ("NLRB") has held over the years that, when appropriately structured, ratification bonuses can be expressly contingent on acceptance of an offer without running afoul of an employer's good faith bargaining obligations. @ The exception to this general rule is where in cases of emergency the public agency determines that the proposed action must be taken immediately, without prior notice or meeting. 21-22.). [514] If you are unable to comply with CPRA deadlines, it is advisable to send requestors a message similar to the following: ****Due to the State of Emergency declared by Governor Newsom [and any applicable local order], a response to your request will be delayed. This language did not require that a salary increase be implemented without further negotiations if sufficient funds were available. A: Early written communication to the employee organization should be provided, justifying the necessary emergency action, demonstrating why immediate action was necessary and identifying the actual or potential impacts or effects on matters within the scope of bargaining. Set initial terms and conditions of employment before bargaining with the union, if you acquire a business and refuse to hire employees of the predecessor to avoid becoming a Burns successor. (Do not assume that a change you deem minor would be so viewed by the Board.). A separate demand to meet and confer from the employee organization should be evaluated and responded to in accordance with the public agencys general statutory duty to meet and confer in good faith over proposed changes to terms and conditions of employment. California State University Employees Union . Two were not officially about the negotiations but alleged unfair labor practices by the university, including intimidation and regressive bargaining. District declined to ratify tentative agreement following Governor's office announcement of severe mid-year cuts in education funding. Members then voted to approve these pillars at a General Membership Meeting before bargaining began. See below. You will be notified when it is ready. Declare impasse and refuse to bargain where a valid impasse has not been reached. The union presents a proposal for a comprehensive contract at the first bargaining session. 6-7. Tentative Agreement (TA): In bargaining, TA stands for Tentative Agreement (not Teaching Assistant). A: The courts have defined the emergency exception as requiring an unforeseen situation, requiring immediate action that is presenting an imminent and substantial threat to public safety. ), Refuse to recognize and bargain with a union that represents employees of an employer whose business you are acquiring if you are a Burns successor. On Wednesday, October 6, 2021, the Region 31-West Los Angeles office of the National Labor Relations Board (NLRB) issued a complaint against The Daily Grill, alleging that the restaurant failed to bargain in good faith with the union over an initial collective bargaining agreement, as is required by Section 8(a)(5) of the National Labor Relations Act. Ground rules for negotiation, including the time and place of negotiations, are within the scope of bargaining; p. 3, warning letter. Known as the emergency exception, this statutory provision allows the public agency to suspend the duty to meet and confer until the earliest practicable time following the adoption of the ordinance, rule, resolution, or regulation. There is some risk however, that PERB would disagree looking back at the circumstances through an unfair practice process that could take place two to three years after the fact. (A union enjoys an irrebuttablepresumption of majority status (1) during the certification year and any extensions thereof; (2) for a "reasonable period" following voluntary recognition, Burns successorship, a settlement agreement in which you agree to bargain, or the Board's issuance of an affirmative bargaining order; and (3) during the term of a collective-bargaining agreement, up to 3 years.). (Whether a particular change is a non-bargainable"scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. If an employer or union fails to obtain ratification, the requirements of good faith bargaining remain the same: A partys subsequent less favorable offer generally evidences regressive bargaining and/or a failure to vest negotiators with sufficient authority, unless accompanied by a credible, rationally supported explanation of changed economic circumstances sufficient to support the change in position. District did not renege on off-schedule salary payment offer. The same standard for evaluation of a unilateral change violation by an employer applies to evaluation of a unilateral change violation by a union. More About Jamie 3. A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromisethis will typically be true if aggregate movements toward the other partys position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. While many decisions would qualify to be made per the emergency exception since they relate directly to the COVID emergency, not all decisions (with the scope of bargaining) will qualify. For instance, the admin proposed diminishing tuition waivers for incoming and future graduate employees, but promised that current graduate employees would be grandfathered in and keep their tuition waivers per our current side letter. But one cannot propose new terms and conditions of employment and simultaneously use the zipper clause as a shield to prevent the introduction of integrally related counterproposals, which amounts to unlawful piecemeal bargaining. 873, pp. The other side should also make counter-package proposals. 2. (p. Board Attorneys' 'Progressive' View of Union's Alleged 'Regressive' Bargaining Sends Parties Back to Negotiating Table. The communication should acknowledge the employee organizations role and confirm the public agencys intention to meet with the employee organization at the earliest, feasible opportunity. CSEA requested to meet and confer over the potential impact of the layoffs. . . Board upheld dismissal of allegation that union failed to bargain in good faith by insisting on negotiating ground rules/released time before discussing substantive issues, either under a per se or totality of circumstances test. Evidence does not support a finding that the union engaged in "surface bargaining;" pp. The emergency exception does not pertain to the employee organizations right to receive information related to the organizations responsibility to represent its members. The Alaska Labor Relations Act states that "a public employer may not refuse to bargain in good faith with an organization which is the exclusive representative of employees in an appropriate unit.". (Whether a proposed change is a non-bargainable"scope and direction" change or a mandatory subject of bargaining may present a difficult legal question. You are now leaving this website and being directed to the specific California government resource or website that you have requested. PECG did not provide sufficient evidence of surface bargaining because the States challenged responses were in answer to legislative concerns and PECG made no showing that the Department of Finance was aware of provisions of the parties tentative agreement. The expanded paid sick leave applies to employers with more than 25 employees and requires additional time off in 2021 for COVID-19-related reasons beyond the prior law's covered reasons ( e.g., vaccine-related . Withdrawing an offer made in earlier bargaining sessions may constitute unlawful regressive bargaining. Any duty to bargain for 2019 - 2020 will be dependent on the outcome of recertification elections which will be held between October 31 and November 20 . Illegal subjects include, for example, a proposal to make the contract terminable at will or to give the employer the right to discharge employees for union activity. (California Government Code (Govt Code) section 3504.5(a)). 2664-M, p. 6, fn. The case is District Hospital Parnter, L.P. D/B/A The George Washington University Hospital, and UHS of D.C., N.L.R.B., Case 05-CA-216482, ALJ Decision 9/4/19. The National Labor Relations Board, by a vote of 2-1, recently reversed an administrative law judge (ALJ) in finding that a hospital did not violate the National Labor Relations Act (the Act) by. 2664-M, p. 6, fn. Lock out employees over a permissive subject of bargaining. Union is precluded from making unilateral changes in the status quo after an agreement expires, until such time as the parties negotiate a successor agreement or they negotiate through completion of the impasse procedure. In this case, the States response to a legislators questions that it would take another look at the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. 18-1144/1315 Hendrickson USA, LLC v. 136 that found the district had failed or refused to meet and negotiate in good faith. Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items. Make unilateral changes in terms and conditions of employment during the term of a collective-bargaining agreement, unless the union has clearly and unmistakably waived its right to bargain or the change is too minor to require bargaining. But what does that really mean? Allegations that parties exchanged numerous proposals regarding the time and place of bargaining and that union precipitously cancelled one bargaining session are insufficient to demonstrate violation of the duty to bargain in good faith; p. 3, warning letter. Regressive bargaining occurs when a party makes a subsequent proposal which is less advantageous to the other party than the preceding proposal. (Alhambra City and High School Districts (1986) PERB Decision No. Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. The result of bargaining negotiations will be a legally-enforceable collective bargaining agreement (a contract) which will bind the union, its bargaining unit, and the employer. If either party does not ratify the agreement, then the duty to bargain is revived. This fact sheet is offered to answer frequently asked questions regarding the duty to bargain and provide information to employee organizations during a public health emergency. Not the case here where the States comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finances (DOF) May budget revisions were produced without any showing of the DOFs knowledge of the tentative agreement. 105. A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromisethis will typically be true if aggregate movements toward the other partys position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. One regressive proposal in a package of 40 articles does not mean the entire package is regressive. You must, however, bargain with the union concerning the effects of the change on unit employees. Bargaining sessionsblocks of time where the union and employers agree to meet to discuss the contractare then scheduled. In our 2012-2017 contract, the tuition waiver protections were in a side letter. Oakland: As 13,000 UC Patient Care Technical Workers prepare to begin a week long Unfair Labor Practice Strike next Monday, the State's Public Employment Relations Board (PERB) last night . Q: For public agencies currently underway in contract negotiations, does the public health emergency justify reduction or withdrawal of its economic proposals? Illinois Educational Labor Relations Board (IELRB): The IELRB administers the Illinois Educational Labor Relations Act (IELRA). 2697-M, where the Board held that a union does not circumvent the employers negotiator by making presentations to employers governing board, provided it does not make new proposals materially differing from those it made at the bargaining table. The agreement did not establish the actual amount of the salary increase once spending cuts were identified. However, regressive proposals can be justified by an adequate explanation. (You may not, however, set initial terms and conditions without bargaining if you are a "perfectly clear" Burns successor - that is, if you make it perfectly clear that you plan to retain all of the predecessor's employees, or at least enough of them to make it evident that the union's majority status will continue, without informing them that they will be expected to work under different terms.). Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items. Lock out employees if you are the initiating party of a contract modification or termination, and you fail to give notice to federal and state mediators within 30 days (60 days if you are a healthcare employer) of serving written notice on the union that you are terminating or modifying the contract. Any and all requests for information from the employee organization should be evaluated and responded to in accordance with the agencys general duty to provide all necessary and relevant information. 1265 which both involved blatant repudiation of tentative agreements. 1199 SEIU (union) had, for more than 20 years, represented a 150-member bargaining unit of employees who worked at the hospital at issue. In collective bargaining, surface bargaining is a strategy in which one of the parties "merely goes through the motions", with no intention of reaching an agreement. PERB can find violations of EERA other than unfair practices set out in secs. Case XVIII-A: This case is based on the famous management bargaining tactic known as Boulwareism. 5; Charter Oak Unified School District (1991) PERB Decision No. 9. 5; City of Arcadia (2019) PERB Decision No. File an election (RM) petition, poll your represented employees, or withdraw recognition from a union (1) you recognized voluntarily, or (2) with whom the Board has ordered you to bargain, or (3) with whom you have agreed to bargain as part of a settlement agreement, or (4) with whom you have acquired a bargaining relationship from a unionized predecessor before a reasonable time for bargaining has elapsed. No violation where the Association's alleged misrepresentations did not constitute either a threat of reprisal or force or promise of benefit; p. 12. GWU Hospital also will have to provide backpay to six workers who weren't compensated for time in bargaining sessions and post notices about the judge's findings in its workplace. Surface Bargaining: a tactic whereby an employer meets with the union, but only goes through the motions of bargaining. 17-18.) See NLRB v. Burns International Security Services, 406 U.S. 272 (1972). In other words, if you discriminate in hiring to avoid becoming a Burns successor, you become a Burns successor - and a "perfectly clear" one at that. No requirement that a party ratify a tentative agreement. 21.) Board found this position to be evidence of surface bargaining. ), Refuse to bargain over the effects of a change in the scope and direction of your enterprise, even though you need not bargain over the change itself because it concerns a matter at the core of your entrepreneurial control of your business. Rather, district rejected union's off-schedule payment counter offer. 2648-M, p. It should be noted that a demand to bargain by the employee organization before the public agency takes emergency action may be declined as premature if the content of the demand concerns the same or related areas being considered as part of the emergency response. Repudiation of a single issue, standing alone, is insufficient to establish bad faith bargaining under the per se or totality of circumstances test. Following employer's mid-bargaining change of negotiators, new negotiator refused to honor prior negotiator's agreement on ground rules. Search for: Search Single instance of misrepresentation during negotiations is insufficient to demonstrate lack of subjective intent to reach an agreement under "totality of conduct" test; p. 5; p. 2, dismissal letter; Reference to ALJ's finding that the District engaged in surface bargaining in an earlier case, when the charging party fails to demonstrate a relationship between that conduct and the alleged violations in this case, is insufficient to meet the "totality of conduct" test; p. 5. A party does not engage in regressive bargaining if it offers a sufficiently credible and rationally supported justification of changed circumstances that explain why it has made a proposal that ostensibly appears to move the parties further away from a resolution. Many aspects of the bargaining process are regulated by law. 362-H; p. 18. For 2016-2017, for example, our current contract stipulates that assistants will be paid no less than $16,281/year for a 50% appointment on a 9 month service basisor an amount equivalent to the previous years minimum increased by the campus wage programfor Academic Year 2016-2017 as established by the Provosts Office, whichever is greater. The GEOs stance is that campus wage program is contrary to the concept of bargaining, as instead of collectively deciding on our wages at the bargaining table, the admin just imposes their decision on us. It's called "Regressive Bargaining." It's Labor Relations law. After meeting 30 times over two years without reaching a new agreement, the employer received a petition signed by a majority of unit employees stating their desire to end representation by the union. C14 G-079, I directed that the .

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