WORK WITH US
County Ordered To Bargain The Effects Of A Surveillance Technology Ordinance
In November 2014, the County of Santa Clara’s (County) Board of Supervisors (Board) began considering legislation that would ensure the use of County-owned surveillance technology — such as drone cameras, automated license plate readers, and GPS –- protected both community safety and individual privacy.
In early 2016, the Board’s Finance and Government Operations Committee reviewed a proposed ordinance (Ordinance) that prohibited a County department from acquiring or operating new County-owned surveillance technology unless the department first gave the Board an impact report and a use policy, and received the Board’s approval. The Ordinance made it a criminal misdemeanor to intentionally misuse County-owned surveillance technology: for a purpose prohibited in a Board-approved use policy; or in a way that did not comply with the Ordinance.
In February 2016, the Santa Clara County District Attorney Investigators’ Association (Association) learned that the Board’s Finance and Government Operations Committee would be considering the proposed Ordinance. The Association President attended the Committee meeting to object to two of the Ordinance’s provisions. The Committee made no substantive changes and recommended that the Board adopt the proposed Ordinance.
On May 6, 2016, the Association sent a written demand to the County to meet and confer over the proposed Ordinance and its effects on Association members. The Association’s letter contended that the Ordinance “contemplates new and significant workplace restrictions and responsibilities” that would increase workload and potentially expose Association members to harm. The County’s Labor Relations Director immediately responded to the Association’s letter. The parties scheduled a meeting for May 17.
At the May 17 meeting with the County, the Association identified four concerns with the Ordinance: 1) the definition of “surveillance technology” was vague and broad; 2) the reporting requirements would increase workload, which could impact employee productivity; 3) the reporting requirements would compromise employee safety by giving the public advance notice of what surveillance technology is deployed and where; and 4) the criminal misdemeanor penalty criminalized workplace conduct and, when paired with the vague definition of surveillance technology, would create untenable working conditions.
The parties met again on May 27 to discuss these issues and the Association issued a number of proposals. The parties were not able to reach an agreement that resolved the Association’s concerns that day. At the end of the meeting, the Association believed that the Labor Relations Director was going to speak with Board members and other individuals in the County to figure out how to address the Association’s issues.
The Labor Relations Director brought the Association’s concerns to the Board. The County did not inform the Association of any response, and neither party declared an impasse.
On June 21, 2016, the Board adopted the proposed Ordinance without any changes, and it became effective one month later. The Association then filed an unfair practice charge against the County.
The Public Employment Relations Board’s (PERB) Office of the General Counsel subsequently issued a complaint alleging that the County violated the Meyers-Milias-Brown Act when the Board adopted the Ordinance “without having negotiated with the Association to an agreement or through completion of negotiations concerning the decision to implement the change in policy and/or the effects of the change in policy.” An administrative law judge (ALJ) found that the County had no obligation to bargain over its decision to adopt the Ordinance but upheld the Association’s effects bargaining claim.
The Association filed the following exceptions to the ALJ’s decision: 1) the County had a duty to bargain over the definition of the term “surveillance technology” and over the provision establishing criminal misdemeanor liability for misuse of the technology; and 2) as a remedy for not bargaining over these terms, PERB should void the Ordinance in whole or in part.
PERB first concluded that the County was not required to bargain its decisions regarding the definition of the term “surveillance technology”, or the criminal misdemeanor provision. PERB concluded that these provisions fell into a category of managerial decisions that directly affect employment, but also involve the employer’s retained freedom to manage its affairs. PERB concluded that the benefits of bargaining the surveillance technology definition did not outweigh management’s need for freedom to protect the public’s privacy and safety. PERB held that the County was not required to bargain its decision regarding criminal misdemeanor liability because this part of the Ordinance applied a general criminal law to all persons and not just to County employees.
PERB noted that even when an employer has no obligation to bargain over a particular decision, it must still provide notice to employee associations and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. PERB found that the County indeed had an obligation to bargain the effects of these issues on the scope of Association members’ employment. The Association put the County on notice that it wished to bargain over not just workload and safety, but also the consequences to employees found to have violated the Ordinance. The County had not responded to the Association’s proposed alternatives. Thus, PERB found the County failed to bargain in good faith over consequences to employees for violating the Ordinance.
PERB directed the County to meet and confer over the effects of the Ordinance. It also ordered the County to cease and desist from enforcing the Ordinance against Association-represented employees until 1) the parties reach an overall agreement on each of the specified effects; 2) the parties conclude their effects negotiations in a bona fide impasse; or 3) the Association fails to pursue effects negotiations in good faith.
County of Santa Clara, PERB Decision No. 2799-M (2021).
This decision outlines three distinct categories of managerial decisions. Decisions that only have an indirect and attenuated impact on the employment relationship such as advertising, product design, and financing are not mandatory subjects of bargaining. Decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls, are always mandatory subjects of bargaining. Finally, decisions that directly affect employment, such as eliminating jobs, but involve the employer’s retained freedom to manage its affairs, may not be mandatory subjects of bargaining, but these are the closest cases.