A: While the law does not define earliest practicable time, the public agency has a general duty to act in good faith in discharging its duty to bargain. Fail to bargain in good faith concerning mandatory subjects of bargaining. Fair Share: Fair share laws allow labor unions to collect dues towards their operating costs from all members of the bargaining unit, not just those who have signed membership cards. By Howard M. Bloom, Philip B. Rosen & Jackson Lewis P.C. Grandfathering: This refers to a provision that an old rule applies to a specific group of people, while a new rule applies to all the future cases. 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. 5; City of Arcadia (2019) PERB Decision No. No unilateral change found where the unions conduct was consistent with a reading of the entire contract article on sympathy strikes. 606.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Inconsistent Position Taken; W/ds or Renege on Tentative Agreement. With cities and counties scrambling to develop and deploy emergency plans in response to the COVID 19 pandemic, demands from employee organizations to meet and confer are increasing. 51-57, proposed dec. Document entitled Proposal for a Side Letter Agreement submitted in context of meetings over fiscal crisis did not constitute a valid demand to bargain, did not create a bargaining obligation, and did not constitute timely reopener demand, and untimely bargaining request did not relate back to proposal. Regressive Bargaining: a specific form of bad faith bargaining when one side moves backwards, offering less on a proposal than they previously offered. Torpedoing may take the form of repudiating an agreement, or making false statements about it. Q: How soon following the action taken by the public agency must it meet and confer? Repudiation of a single issue, standing alone, is insufficient to establish bad faith bargaining under the per se or totality of circumstances test. The parties' most recent collective bargaining agreement (CBA) was set to expire on December 19, 2016; the parties held their first bargaining sessions on November 21 and 22, 2016. * * * However, subcontracting that merely substitutes one group of workers for another to do the same work under similar conditions of employment is not a non-bargainable"scope and direction" change. For example, they might offer aesthetic changes to contract language but refuse to make motion on substantive content. ), Because bad faith bargaining allegations require assessment of the totality of conduct, the Board may also consider the charging partys own conduct, regardless of whether the respondent has filed a countercharge. Mediation: Mediation is a form of dispute resolution using a neutral third party, called a mediator. 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. Because the unions had already adequately explained their desire to compare apples to apples, there was no need to respond to employers subsequent proposals to change the basis for determining prevailing wage formula. File an election (RM) petition, poll your represented employees, or withdraw recognition from a union during the term of a collective-bargaining agreement, up to three years. Regressive bargainingmaking proposals that are, as a whole, less generous to the other party than prior offersmanifestly moves bargaining parties further away from agreement and therefore indicates bad faith unless such regressive bargaining is supported by an adequate explanation. Bargaining Unit 6 provides that seniority consists only of time served within the Bargaining Unit See . * * * VACATED IN PART by Fremont Unified School District (1982) PERB Decision No. (See City of Palo Alto (2019) PERB Decision No. 804.02000: UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT; Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 69); pp. 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. Bad faith bargaining by Union found where it failed to make written proposals about discipline and layoff; p. 40. 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. 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. However, regressive proposals can be justified by an adequate explanation. A: The public agency is required to meet and confer over all matters within the scope of representation impacted by the emergency action. We provide training, education, and legal representation to hundreds of public agencies, educational institutions and nonprofit organizations across the state of California. Illinois Educational Labor Relations Act (IELRA or Act): The IELRA is a law that establishes the right of educational employees to organize and bargain collectively, to define and resolve unfair practice disputes. "Bad Faith" Bargaining The National Labor Relations Board reviews the "totality of conduct" of the parties at the bargaining table when investigating a charge of "bad faith" bargaining. The Board found the District's allegations that the Association's strike threat and strike preparation activities frustrated the negotiation process by coercing the District to make concessions constituted sufficient facts to state a prima facie violation of section 3543.6(d) of EERA; pp. 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. 2. After five months of bargaining, the Guild for Professional Pharmacists, the union that represents Kaiser's pharmacists in Northern California . Refuse to sign a writing that incorporates a collective-bargaining agreement you have reached with the union. No prima facie showing of bad faith or surface bargaining where State ask to revisit tentative agreements after change of negotiating team following recall of Governor. The other side should also make counter-package proposals. 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. Case XVIII-A: This case is based on the famous management bargaining tactic known as Boulwareism. 4. Do not close your browser or leave the NLRB 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 Government Code (Govt Code) section 3504.5(a)). In good faith, we have given management the opportunity to rescind their regressive proposals. Lock out employees in support of an impermissible objective - e.g., to pressure the union to accept an illegal bargaining proposal, a bad-faith bargaining position, or terms unilaterally implemented absent a valid impasse. 14-015819-MERC, to include allegations of regressive bargaining. You must not have engaged in unfair labor practices or otherwise created a coercive atmosphere. The same standard for evaluation of a unilateral change violation by an employer applies to evaluation of a unilateral change violation by a union. Certainly, the COVID 19 pandemic meets this definition. The right to set initial employment terms ends once you have hired a substantial and representative complement of employees, a majority of whom are drawn from the predecessor's workforce. (See City of Palo Alto (2019) PERB Decision No. Alternatively, a party may withdraw concessions on some subjects, while offering more favorable terms on others, if done as part of a genuine attempt to reach an overall compromise. 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; This language did not require that a salary increase be implemented without further negotiations if sufficient funds were available. Since repudiation of an agreement on a single issue is insufficient by itself to show bad faith and reneging on ground rules is only one indicator of bad faith, the union did not establish a violation by the State with the single allegation of reneging on the ground rules by its alleged lack of support for the tentative agreement. Evidence of bad faith found in employer's proposal after 10 weeks of negotiations that for the first time called for an increased work week, a grievance policy restricting rights of grievants and increasing employer flexibility in making involuntary transfer. Bypass the union and deal directly with employees. In addition, you must (1) communicate to employees that the purpose of the poll is to determine whether the union enjoys majority support (and that must, in truth, be your purpose); (2) give employees assurances against reprisal; and (3) conduct the poll by secret ballot. The union and the employer had a decades-long collective bargaining relationship. 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. These are different from permissive subjects of bargaining (see below). The unilateral change test is equally applicable to unilateral repudiations by an employer or by an employee organization. Q: What must the public agency meet and confer over under the emergency exception? Journal of Collective Bargaining in the Academy Volume 10 Facing New Realities in Higher Education and the Professions Article 5 December 2018 . 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. The parties try to settle negotiations by compromises on contract provisions. Such an offer is a form of regressive bargaining-making proposals that are less generous to the other party than prior offers. However, individual employees lack standing to allege that an employee organization has failed to bargain in good faith. Declare impasse and implement terms where a valid impasse has not been reached. * * * OVERRULED IN PART by Sweetwater Union High School District (2014) PERB Order No. UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. Engage in bad-faith, surface, or piecemeal bargaining. 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. REGRESSIVE BARGAINING - Reneging on a proposal submitted in negotiations or making a proposal that moves away from agreement by removing or reducing the value of items previously placed the table. 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 also held that an "exploding" offer (an offer or proposal that expires on a given date), without an adequate explanation for its termination date, indicates bad faith bargaining. File an election (RM) petition, poll your represented employees, or withdraw recognition from a Board-certified union during the union's certification year or Board-ordered extension thereof. - regressive bargaining- making worse offers than you already had. Even if employer's proposal to increase work hours, made in response to union proposal to begin work day earlier, is regressive, one indicia of surface bargaining does not establish a prima facie violation of failure to bargain in good faith; p. 3, warning letter. The lead negotiators take turns asking and answering questions, presenting proposals, and engaging in any other discussion that needs to take place. Bargaining can sometimes take months or even over a year, with bargaining sessions happening on a regular (often biweekly) basis, depending on how difficult it is for the union and employer to agree on the terms of the contract. The National Labor Relations Act places an obligation on employers and unions to bargain in good faith with the goal of achieving a collective bargaining agreement, but the Act does not require a party to make a concession, so long as the party shows a willingness to compromise in general. Union was not required to reduce its verbal proposal to writing in the short interval between floating the proposal and reaching an overall tentative agreement later that day. Evade your bargaining or contractual duties under the Act by transferring operations to a nominally different business entity that is merely the disguised continuance or "alter ego" of your former unionized business. For example, you may not Fail to meet with the employer at reasonable times and reasonable intervals. She wrote that the University is relying on "the Trump National Labor Relations Board". Withdraw recognition from a union after the collective-bargaining agreement expires. Although the unions gave some explanations for their position that were questionable, nothing in the record suggests that their belief in the logic and expediency of maintaining the existing formula was not sincere or fairly maintained. Moreover, because they also gave pragmatic justifications for their position, their view that the prevailing wage formula was not subject to negotiation, although mistaken, did not constitute an outright refusal to bargain over the subject.