Change In Working Condition, Not Refusal to Bargain, Begins ULP Timeline

The employer implemented and then fully executed a plan to redistribute work resulting in members from 2 different bargaining units doing the same work at different rates of pay. After the parties commenced negotiations on a new collective bargaining agreement, the association made a demand to bargain the change. The employer refused and the association filed a ULP. ERB dismissed the complaint finding the association failed to file within 180 days of occurrence. ERB refused to address the question of whether occurrence means the occurrence of the event or the discovery of the event by the union because ERB concluded the complaint was not timely under either test.
On appeal, the Court of Appeals held the occurrence test is triggered by a unilateral change in a mandatory condition instead of the refusal to bargain the change. Because the parties were in contract negotiations, the unilateral change was a per se violation of the duty to bargain in good faith which triggers the 180 day clock. On the discovery test, the Court did not determine whether the knowledge of members of the association could be imputed to the association itself. Instead, the Court found the association, exercising reasonable diligence, should have discovered a new work plan after the plan’s implementation. Therefore, the Court found the association’s complaint was not timely under either test.