In mid-April 2009, the Rio Hondo Community College District advised the California School Employees Association (CSEA or Union) of its intent to install surveillance cameras in its new Learning Resource Center. Thereafter, the College expanded its plans to include the placement of such cameras in its parking lots. The cameras would show CSEA bargaining unit members while coming and going, entering and leaving a break room, cleaning public areas of the building and maintaining outdoor areas of the campus.
A couple of months after being advised of the installation of the cameras, CSEA requested to negotiate over the decision and effects of the decision to install the surveillance cameras. CSEA’s request stated that the installation of the cameras in members’ work areas impacted the working conditions of its members, including performance evaluations and potential discipline, both matters within the scope of bargaining. The District denied CSEA’s request to negotiate. CSEA seeking to convince the College to negotiate, again reiterated its request and provided a copy of a memorandum of understanding with another district that addressed the use of video cameras. Unconvinced, the College reiterated its refusal to bargain.
The College in refusing to bargain with CSEA contended that to implicate an employer’s bargaining duty, a union’s effects bargaining demand must clearly identify areas of impact and absent such identification the employer has no duty to bargain.
The Administrative Law Judge concluded that the College’s denial of the Union’s request to negotiate over the decision’s effects violated EERA. The ALJ also concluded that the College’s decision to install security surveillance cameras did have reasonably foreseeable negotiable effects.
PERB adopted the ALJ’s conclusions of law, but took the opportunity to resurrect prior PERB decisions. In reviewing the College’s claim that the Union had failed to clearly identify negotiable effects, PERB backed away from more recent decisions relied upon by the College which had appeared to solidly establish that to implicate an employer’s bargaining duty, a union’s effects bargaining demand must clearly identify areas of impact and absent such identification the employer has no duty to bargain. Relying on decisions primarily from the 1980s PERB noted that an employer must provide a union with notice and a reasonable opportunity to negotiate before taking action that impacts matters within the scope of representation. This, according to PERB, includes the duty to seek clarification of what is proposed for bargaining and whether what is proposed falls within the scope of representation. PERB noted that upon receiving a union’s demand, the employer has three options: (1) accede to the demand and address the union’s concerns in negotiations; (2) ask the union for its justification, viz., seek clarification of (a) the areas of impact proposed for negotiation and (b) whether these areas of impact are within the scope of representation; or (3) refuse the union’s demand. In choosing the third option, the employer does so at its peril if its refusal is determined unjustified.
Henceforth, a public employer’s faced with a vague or unspecified request for effects bargaining should seek clarification from the union before refusing to bargain. Failure to take this step puts the employer at substantial legal risk and can result in an adverse finding against the employer by PERB.