Negotiations during decertification action

Negotiations during decertification action
Advisory Opinion of Counsel 32 PERB 5002*

Sometimes the time becomes ripe for collective bargaining while a decertification petition is pending final determination. May the employer commence negotiations with a representative of a unit of public employees while the representation challenge concerning that unit is still pending?

PERB’s Counsel noted that in Matter of Rockland County, 10 PERB 3098, PERB held that “a public employer is not compelled to, and may not, negotiate with the incumbent employee organization while a bona fide question concerning representation is pending.”

However, Counsel noted that in earlier opinions it was indicate that such negotiations may be conducted in the face of a pending representation petition with the consent of all parties affected by the petition, citing 23 PERB 5001; 5002 and 5003.

Finally, the opinion notes that while the then recognized or certified bargaining agent for the unit may be barred from negotiating a successor agreement because of the pending representation petition, it has the “continuing right and duty to represent the at-issue unit” for the purposes of preserving the status quo and to respond to changes “through negotiations.”

* An Advisory Opinion of Counsel is not binding on PERB
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