Employer cannot insist to impasse on proposal that would violate employees’ rights under the California Labor Code, PERB finds
Berkeley Unified School District (2012), PERB Decision No. 2268, is a recent PERB case about bargaining to impasse.
The collective-bargaining agreement between the Union and the District expired. The parties then negotiated for an entire year for a successor agreement. The expired CBA had a provision which allowed the District to recoup erroneous overpayments to employees by withholding employees’ wages. The District demanded to carry over this recoupment provision in the successor agreement. The Union rejected the District’s demand. The recoupment provision, the Union contended, was not a mandatory subject of bargaining. The Union also protested that the recoupment provision violated employees’ rights under the California Labor Code. (The California Labor Code makes it illegal for an employer to deduct from the wages owed to an employee to recoup monies allegedly owed to the employer, unless the employee agrees to the deduction.) The District insisted to impasse over the recoupment provision.
The Union filed an unfair practice charge.
The District argued that the recoupment provision was a mandatory subject of bargaining, because it related to wages. PERB disagreed. Generally, it’s true that “matters relating to wages customarily are mandatory subjects of bargaining,” as PERB noted. But this is not so when “external law”—such as the California Labor Code—creates rights that cannot be waived or modified in any way. PERB agreed with the Union that the District’s recoupment proposal would be contrary to the California Labor Code. According to PERB, a proposal that is contrary to law is not just a non-mandatory subject of bargaining—it’s also nonnegotiable, because the Union and the employer have no authority to make an agreement that violates the law. The Union therefore had no duty to bargain about the District’s recoupment proposal. PERB ruled that, by insisting to impasse on a non-mandatory subject of bargaining, the District failed to meet and negotiate in good faith with the Union.
Even though Berkeley Unified School District interpreted the Educational Employment Relations Act (“EERA”), the holding should apply to the other statutes PERB administers, such as the Meyers-Milias-Brown Act (“MMBA”).
By Sean D. Graham