When an employer wants to make a change in past practices, there are generally three possibilities with respect to whether it must negotiate with a union: (1) The decision can involve a negotiable topic – typically, wages, hours, or working conditions – and the employer must negotiate about the decision before making it; (2) the decision can involve a non-negotiable topic, but the decision could have “effects” or impact on mandatorily negotiable topics; or (3) the decision can be a pure management right, a non-negotiable topic with non-negotiable effects.

The California Court of Appeals recently spent some time discussing the second type of bargaining, usually known as “effects bargaining.” The Court’s decision provides some helpful guidelines as to how employers and unions should approach effects bargaining.

The case involved El Dorado County, California and the El Dorado County Deputy Sheriff’s Association. In 2011, the County created a new classification known as a Sheriff’s security officer. The new job would involve providing court perimeter security. The County placed the new classification in a general employee bargaining unit rather than the County’s law enforcement bargaining unit because the Sheriff’s security officers would not have peace officer authority. At the same time, the County deleted several positions (all of which were vacant) from the law enforcement bargaining unit.

One year later, the Association demanded to bargain over the decision to create the new classification, even though the Association had actual notice of the decision before it was implemented. The County denied the Association’s request to “meet and confer” (as bargaining is known in California). The dispute wound up in the California Court of Appeals.

The Court started its opinion with the proposition that “the public employer’s duty to bargain arises under two circumstances: (1) When the decision, itself, is subject to bargaining, and (2) when the effects of the decision are subject to bargaining, even if the decision, itself, is nonnegotiable.” The Court noted that the County did not dispute that there were mandatorily-negotiable impacts of its decision, including decreased overtime opportunities for law-enforcement bargaining unit members.

The Court then held that employers contemplating changes over which they have a bargaining obligation must “give notice to the employee organization so that it can make a demand to bargain. Failure by the [employee organization] to assert its bargaining rights after receiving notice of the proposed change in terms of employment constitutes waiver of its rights. Formal notice of a proposed change delivered to a union official is, of course, appropriate. Notice need not be formal to be effective. When a union official with authority to act has actual notice of the intended change, together with adequate time to decide whether to demand negotiation before a final decision is made, the union will be deemed to have received adequate notice.”

The Court found that the employer’s obligation to give notice required “notice only of the decision, not of the reasonably foreseeable effects of the decision. Actual notice of a circumstance also apprises the recipient of foreseeable effects, especially when the recipient of notice is just as capable of perceiving the foreseeable effects as the giver. For example, actual notice of a dangerous condition may give the recipient of notice a duty to prevent a foreseeable harm.

“We conclude that the County did not have a duty to give notice to the Association of the reasonably foreseeable effects of the decision to create the new Sheriff’s security officer classification. Because the County gave the Association advance notice of the decision to create the Sheriff’s security officer classification, the trial court did not err by concluding that such notice was sufficient under the circumstances of this case.”

Normally, a union’s impermissible delay in asserting its bargaining rights would end the case in favor of the employer. However, the County has its own local labor relations rule that required it to give the Association specific notice before deleting positions in the law enforcement bargaining unit. The Court found that “the County did not give notice to and consult with the Association before it deleted the positions from the law enforcement bargaining unit. Therefore, it violated the plain meaning of the local rule. And it also violated the state collective bargaining law which requires a local public agency to follow its own rules.”

The County argued that its local rule interfered with state laws giving County supervisors authority over the County’s budget. The Court disagreed, finding that the local rule “merely gives the Association the opportunity to argue against the change; it does not require the County to negotiate.”

The last issue for the Court was the remedy that should be awarded. The Court decided upon a split remedy: “As to creating the Sheriff’s security officer positions in the general bargaining unit, the County had no duty even to give notice to and consult with the Association under the local rule, and, in any event, the Association had notice. As to deleting the law enforcement bargaining unit positions, the County had a duty to give the Association notice and allow the Association to make arguments against the change, which the County did not do. Since the law requires compliance with local rules, the commonsense, legally supportable remedy is to invalidate the action that violated the local rule – deletion of the law enforcement bargaining unit positions – and direct the County to proceed according to law.”

El Dorado County Deputy Sheriff’s Association, 2016 WL 542342 (Cal. App. 2016).

The above article has appeared in a previous issue of Public Safety Labor News and has been reprinted courtesy of Labor Relations Information System. These articles are for informational purposes only.

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