Emergency Did Not Relieve County of Duty To Give Notice And An Opportunity To Bargain

CATEGORY: Client Update for Public Agencies, Fire Watch
CLIENT TYPE: Public Employers, Public Safety
DATE: Dec 07, 2023

During the COVID-19 pandemic, the County of Santa Clara (County) ordered nurses and other County employees to change their place of work.  The County assigned nurses to facilities that had staffing shortages without notifying the Registered Nurses Professional Association (RNPA).  The County also assigned two employees to prepare a motel for use by unhoused people without training the employees or notifying their union, SEIU, Local 521.

Without notice to or approval from the RNPA or the SEIU, the County also modified the County’s policy on the duties of disaster service workers (DSW).  One modification stated that an employee who was the sole parent of a child could refuse a DSW assignment, but an employee living with a medically vulnerable family member might not be able to refuse.

Both the RNPA and the SEIU (collectively, the Unions) requested to bargain with the County before the employees were impacted by the County’s decisions, but the County refused.  The County argued that the pandemic suspended its duty to give notice and an opportunity to bargain regarding emergency measures.  The Unions disagreed.

PERB concluded that: 1) the County could take necessary measures to save lives without first reaching an impasse or agreement, though it had a duty to afford the Unions notice and an opportunity to bargain in good faith to the extent practicable under the circumstances; and 2) the County failed to comply with that duty.

PERB opined that the County could have provided the Unions notice when the County was still considering these emergency measures.  PERB felt that in some instances, the notice would have allowed negotiations to begin before a decision was finalized.  Even when that was not possible, PERB thought that notice to the Unions would typically have allowed at least a preliminary bargaining session before employees were notified.  Finally, PERB noted that even had the parties been unable to reach agreements, earlier notice would have made it clear the County was doing all it could to bargain, leading to more harmonious labor relations in a difficult period.

Registered Nurses Professional Association, And Service Employees International Union Local 521 v. County Of Santa Clara, PERB Decision No. 2876-M (October 17, 2023; judicial appeal pending).

Key Takeaway:  The California Court of Appeal has yet to weigh in on this PERB decision, but until it does, be aware that emergency conditions do not relieve a public employer from giving a union notice and an opportunity to meet and confer.

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