IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH – Declaration/Determination of Impasse

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When there is any doubt as to whether an impasse exists, the party asserting impasse should clarify. (City of Salinas (2018) PERB Order No. Ad-457-M, p. 5.) MMBA section 3505.4 and PERB Regulation 32802, subdivision (a)(2), refer to a written declaration of impasse as the trigger for a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it may become difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it may be difficult for such an employer to assert that it has exhausted its bargaining obligation. The Board did not address in this decision whether there are instances in which a party may rely on an oral declaration of impasse, particularly for purposes other than triggering a union’s deadline to request factfinding under the MMBA.