If You Don't Want to Bargain Over a Permissive Subect, Say So...

State of California (Department of Personnel Administration) (2009) PERB Decision No. 2081-S (Issued on 11/24/09)

This case involved an appeal from a dismissal. The California Correctional Peace Officers Association (CCPOA) alleged that the State committed an unfair practice by insisting to impasse on a permissive subject of bargaining. Specifically, CCPOA asserted that the State included several provisions in its last, best and final offer that constituted waivers of employee rights. For example, the State proposed a continuance of a contract provision whereby CCPOA agreed that it would not directly bring an action against the State for violations of the Fair Labor Standards Act. The Board agent dismissed the charge on the ground that CCPOA failed to make known its objections to the State’s proposals on such permissive subjects of bargaining.

On appeal, the Board affirmed the well-established rule that a party may not legally insist upon the acceptance of a proposal involving a permissive subject of bargaining "in the face of a clear and express refusal by the union to bargain" over them. (Citing to Lake Elsinore School District (1986) PERB Decision No. 603.) However, the Board held that its precedent also established that the party objecting to a non-mandatory subject “clearly communicate its opposition to further consideration of the proposal.” Once a party makes its objection clear, the party proposing the non-mandatory subject of bargaining may not insist to impasse on it.

Here, CCPOA asserted that its response to that State that, “YOUR CURRENT PROPOSAL HAS SEVERAL SECTIONS THAT REQUIRE US TO AGREE TO WAIVE STATE LAW FOR OUR MEMBERS. THAT IS NOT A LEGITIMATE EFFORT TOWARDS AN AGREEMENT” placed the State on notice of the union’s objection. The Board disagreed, finding that such a response and CCPOA’s other actions failed to communicate “clear opposition” to the State’s permissive proposals.  Accordingly, the Board affirmed the dismissal.

Comments:

This is not a ground-breaking case, but a good reminder that if you don’t want to negotiate over permissive subjects of bargaining you must clearly say so.

The reality is, however, that most permissive subjects of bargaining find their way into contracts as the quid pro quo for a mandatory subject of bargaining.  Most employers also realize that you can’t insist to impasse on a permissive subject of bargaining.  However, nothing prevents an employer from offering something “extra” in exchange for agreement on a permissive subject as long as the employer continues to bargain in good faith over other mandatory subjects.  That’s how most permissive subjects are bargained.