In California School Employees Association & Its Chapter 417 v. Rio Hondo Community College District (PERB Decision No. 2313, March 21, 2013), the PERB considered whether a community college district violated the EERA when it refused to negotiate over the effects of installing new security surveillance cameras. PERB ruled that because the decision had reasonably foreseeable effects on matters within the scope of representation, the district was required to negotiate effects and violated the EERA.
What This Means To You
In this case, PERB held that although to install surveillance cameras was not negotiable, the effects should have been bargained. We suggest you consult with counsel when a non-negotiable decision may trigger “effects” bargaining.
In April 2009, the Rio Hondo Community College District ("District") informed its local CSEA chapter of plans to install security surveillance cameras in its new Learning Resource Center and adjoining parking lots. Plans called for the cameras to show workers coming and going, entering and leaving a break room, cleaning public areas of the building and maintaining outdoor areas of the campus. In June 2009, CSEA requested to negotiate with the District over the decision to install the cameras and the effects of the decision, including whether the cameras might be used in performance evaluations and discipline. The District denied CSEA's request to negotiate.
CSEA charged the District with violating EERA for refusing to bargain regarding the camera installation. The Administrative Law Judge ("ALJ") ruled that because the decision to install the cameras had reasonably foreseeable negotiable effects, the District's refusal to negotiate them was a violation of the EERA. The ALJ ordered the District to cease and desist from refusing to negotiate and to begin bargaining with CSEA. The District filed a statement of exceptions with PERB.
First, PERB rejected the District's contention that CSEA had waived its right to negotiate by not acting immediately in April 2009, and waiting until June to request negotiations. PERB also stated that CSEA's silence during that time period is neither a "clear and unambiguous" waiver of its right to negotiate nor did it constitute an unreasonable delay. There was no evidence to support an inference that CSEA intended to waive its statutory right to bargain.
The District's claim that CSEA had not identified negotiable effects of the decision also failed, according to PERB. In fact, CSEA's request straightforwardly sought to negotiate the effects of the decision to install the cameras, specifically on discipline and evaluation procedures. A union's bargaining demand is sufficient if it clearly identifies negotiable areas of impact within the scope of representation. PERB noted that if an employer refuses to bargain without seeking clarification of the union's rationale, it fails to meet and negotiate in good faith as required by the EERA.
The possible use of the cameras to monitor employees at work or to use the footage or images in disciplinary actions is logically and reasonably related to matters within the union's scope of representation. Requiring negotiation over these matters, therefore, does not significantly abridge the District's managerial prerogatives, PERB said. "In contrast, making and using video recordings of employees for purposes of disciplining them and/or evaluating their work performance affects wages, hours and other terms and conditions of employment within the scope of representation, not fundamental managerial or policy matters concerning the nature and quality of public services.” As such, PERB concluded these effects of video surveillance of employees are negotiable.
Further, PERB added, bringing a case of refusal to negotiate the effects of the decision does not require a showing of "actual impact" upon a matter within the scope of representation, but merely a "reasonably foreseeable impact." The installation of surveillance cameras has reasonably foreseeable consequences on matters such as observation and monitoring employees and the use of such observations in disciplinary and evaluation decisions and procedure. Thus, the District was required to negotiate those effects.
PERB ruled that by refusing to negotiate, the District violated the EERA and ordered the District to cease and desist from refusing to bargain with CSEA. The District was told to begin bargaining with CSEA about the effects on employee discipline and performance evaluations of the District's decision to install security cameras.
If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.
Christian M. Keiner, Marsha A. Bedwell or Meghan Covert Russell | 916.321.4500