IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH – Post-Impasse

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A principle of good faith bargaining is that if an employer unilaterally imposes new employment terms and conditions after impasse, it cannot impose terms that require mutual consent. Precedent establishes a non-exhaustive list of terms requiring mutual consent, including: an arbitration clause, durational language akin to that in a contract, a management rights clause or other waiver of the right to bargain, a no-strike clause, or another statutory rights waiver. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 12-14 (San Ramon); Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, pp. 21-24 & 35-37 (Fresno).) Notably, certain terms requiring mutual consent involve mandatory bargaining subjects, which means a party is free to demand concessions on such topics as a condition for reaching an overall agreement, but reaching impasse does not privilege the employer to unilaterally impose terms involving these topics. (See, e.g., San Ramon, supra, pp. 13-14 [contract duration is a mandatory subject, but after impasse employer may not impose duration for new employment terms]; Fresno, supra, pp. 35-37 [although no-strike clause is a mandatory subject, after impasse employer may not impose a no-strike clause or other waiver of statutory rights].) In contrast, a proposal to modify a bargaining unit is both permissive (meaning it cannot be a condition for reaching an overall agreement) as well as one requiring mutual consent, absent a PERB unit modification order. (County of Orange (2018) PERB Decision No. 2594-M, pp. 11-12; Chula Vista City School District (1990) PERB Decision No. 834, pp. 37-39.) (pp. 17, 20-21.)