Labor Relations: The Meet and Confer Process

harm will be experienced” . . . unless immediate action is taken. The anticipation that harm will occur if such action is not taken must have a basis firmer than simple speculation . . . Emergency is not synonymous with expediency, convenience, or best interests . . . and it imports “more ... than merely a general public need . . . Emergency comprehends a situation of “grave character and serious moment.” 157

The Court of Appeal found that the evidence as a whole showed that County was amply justified in concluding that it confronted an emergency of grave character and serious moment demanding immediate action. 158

2. I MPACTS AND E FFECTS B ARGAINING While a fundamental managerial decision may be exempt from the meet and confer requirement, an agency will still be required to meet and confer over the “impacts and effects” of a non- negotiable decision, as long as the decision impacts terms and conditions of employment. 159 For example, an agency may decide to lay off certain employees. The decision to lay off employees is not subject to the meet and confer requirement as it is a policy matter concerning the level of services. 160 The agency, however, would be required to meet and confer over the impacts and effects of that non-negotiable decision. 161 For example, impacts and effects arising out of a layoff decision would include the notice and timing of layoffs, as well as the number or identity of the employees affected. 162 In addition, an employer must bargain over the creation of, or a change in, rules on seniority or bumping rights. 163 An employer’s duty to provide notice and an opportunity to negotiate the effects of its layoff decision arises when the employer reaches a firm decision to initiate a lay-off. 164 Although the employer must provide notice of the decision to the Union, the employer is not obligated to further specify any reasonably foreseeable effects of the decision for the Union so that it can determine whether or not to demand bargaining. 165 PERB has indicated that an employer has a secondary duty to seek clarification from the Union regarding any effects bargaining before it can reject such requests as not falling within the scope of representation simply because the Union did not identify impacts or effects in the request to bargain. If an employer refuses to bargain without first seeking clarification of the Union’s rationale for requesting to bargain and what potential impacts/effects may apply, it fails to meet and confer in good faith. 167 There is, however, no duty to bargain effects or seek clarification when the Union inadequately requests to bargain the managerial decision itself and fails to indicate any matter within the scope of representation affected by the non-negotiable decision. 168 Nonetheless, a Union may be able to sustain an unfair practice charge against an agency without first demanding to bargain the effects of a managerial decision if the agency implements a change without providing reasonable notice and an opportunity to bargain over foreseeable effects on matters within the scope of representation. 169 But neither is the Union required to identify any specific effects in its demand to bargain effects; instead, it need only indicate a demand to bargain effects, 166

Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 27