All notes for Subtopic 601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

DecisionDescriptionPERC Vol.PERC IndexDate
2745M County of Sacramento
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
PERB uses a “per se” or “totality of conduct” test to determine whether a respondent violated its obligation to meet and confer in good faith. Although the same conduct may give rise to violations under both per se and surface bargaining theories, they are necessarily different theories and must be alleged as separate unfair practices in the complaint. (pp. 11-12.) The omission of one theory does not foreclose its later consideration if the charging party: (1) moves to amend the complaint to add the independent allegation, or (2) satisfies the unalleged violation doctrine. (p. 13.) more or view all topics or full text.
09/18/20
2745M County of Sacramento
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
PERB uses “totality of the conduct” and “totality of the circumstances” interchangeably to describe the standard for assessing bad faith bargaining conduct that is not per se unlawful—conduct PERB frequently characterizes as “surface bargaining.” (p. 9, fn. 8.) more or view all topics or full text.
09/18/20
2740M County of Merced
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (City of San Diego (2015) PERB Decision No. 2464-M, p. 51.) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) more or view all topics or full text.
08/10/20
2701I * * * JUDICIAL APPEAL PENDING * * * Region 2 Court Interpreter Employment Relations Committee
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A per se violation of the duty to bargain in good faith will be found where there has been a unilateral change in the status quo concerning a negotiable subject of bargaining. PERB recognizes three general categories of unlawful unilateral actions: (1) changes to the parties’ written agreement; (2) changes in an established past practice; and (3) newly created, implemented, or enforced policies. (p. 46.) more or view all topics or full text.
03/16/20
2691M * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
City and union were not actually at impasse when the City declared impasse. The City declared impasse mainly due to the upcoming submission deadline, by which bargaining parties must submit to the City’s Board of Supervisors a successor MOU for ratification or suffer a penalty, viz., a delay in the implementation of new economic enhancements. PERB’s finding that the City relied on the Charter’s submission deadline to declare impasse prematurely provided significant evidence that the submission deadline, as applied in the case, prevented the parties from devoting sufficient time to hear and reflect on one another’s positions and endeavor in good faith to reach a mutual accommodation. In addition, the bargaining was rushed and there was insufficient time for the process to play out. The parties’ negotiations, then, were entirely antithetical to the MMBA’s core purpose of promoting “full communication” between public employers and employees’ chosen organizations, through a robust duty to meet and confer in good faith for a reasonable period of time. (MMBA, § 3500, subd. (a).) For these reasons, PERB found in union’s favor on its as-applied challenge. more or view all topics or full text.
01/17/20
2691M * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The “reasonable period of time” that the MMBA requires for good faith negotiations will vary greatly from negotiation to negotiation, depending on many factors. (City of San Jose (2013) PERB Decision No. 2341-M, p. 41.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 9-12 (San Ramon); County of Riverside (2014) PERB Decision No. 2360-M, pp. 13-14 (Riverside).) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Regents of the University of California (1985) PERB Decision No. 520-H, p. 17.) However, both parties must believe they are at the “end of their rope,” which is typically negated if a party displays continuing movement, or if a party references a deadline for completion of negotiations and acts in accordance with that deadline. (Riverside, supra, PERB Decision No. 2360-M, p. 13.) more or view all topics or full text.
01/17/20
2691M * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A bona fide impasse exists if parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6 (San Ramon); County of Riverside (2014) PERB Decision No. 2360-M, p. 13 (Riverside). A party evidences bad faith if it rushes to impasse or issues an impasse declaration that is premature, unfounded, or insincere. (San Ramon, supra, PERB Decision No. 2571-M, p. 10.) If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (San Ramon, supra, PERB Decision No. 2571-M, p. 7, fn. 9; Riverside, supra, PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, PERB Decision No. 2571-M, p. 7, fn. 9; Riverside, supra, PERB Decision No. 2360-M, p. 12.) more or view all topics or full text.
01/17/20
2648M City of Arcadia
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
PERB found the employer committed a per se violation by unilaterally imposing ground rules in advance of negotiations and bargained in bad faith under the totality of the circumstances by inviting a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives and by making an “exploding” offer without adequate justification, as well as by unilaterally imposing ground rules. more or view all topics or full text.
06/12/19
2588E Los Angeles Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A public school employer is obligated to meet and negotiate in good faith with the exclusive representative of its employees on all matters within the scope of representation. (p. 8.) more or view all topics or full text.
436310/17/18
2523C El Dorado County Superior Court
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The Board rejected Charging Party’s exception that, by requesting bargaining over a single issue following impasse, the Charging Party had effectively broken the deadlock and revived the Respondent’s duty to bargain over the single issue, which had already been part of the overall deadlock reached in negotiations for a successor MOU. (pp. 10-11.) The Board found no violation of the duty to bargain because Charging Party’s request for single-issue negotiations did not break the impasse and revive the Respondent’s duty to bargain. Although impasse necessarily entails an overall deadlock in negotiations, it may stem from disagreement over a single subject, if the disagreement is of such importance that the parties’ failure to agree on that one subject causes all negotiations to break down. (pp. 10-11.) The party asserting that an impasse has been broken must point to the changed circumstances that would justify a return to the bargaining table. Mere speculation regarding possible concessions by the other party is insufficient to revive bargaining. There must be substantial evidence that a party is committed to a new bargaining position. Vague and general statements about possible concessions or a request by one party for additional meetings, if unaccompanied by an indication of the areas in which that party foresees future concessions, are insufficient to break an impasse where the other party has clearly announced that its position is final. (p. 9.) more or view all topics or full text.
4115203/20/17
2505M City of Roseville
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Although per se violations may also serve as indicia of bad faith in support of a surface bargaining allegation, there was no evidence that the City’s unilateral change to the employer paid member contribution, which was unilaterally imposed post-impasse, had contributed to the breakdown in pre-impasse negotiations or had undermined IBEW’s authority during the prior negotiations. Although the Board ordered the City to remedy the unilateral change violation, it dismissed the complaint’s separate bad-faith bargaining allegation where no other probative evidence of bad faith had been presented and the City’s unilateral change occurred after negotiations had already broken down. (p. 36.) more or view all topics or full text.
419711/30/16
2571M City of San Ramon
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
To determine whether a party has negotiated with the requisite subjective intention of reaching an agreement, the Board considers all evidence relevant to intent, including the parties’ conduct away from the bargaining table. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 22-23.) The “ultimate question” is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 19.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (Ibid.) The “ultimate determination of good or bad faith turns, not on a formula for the number of meetings that must occur or the number of proposals that must be exchanged before a bona fide impasse exists, but on the effect of a party’s conduct on the course of negotiations.” (Id. at p. 42.) more or view all topics or full text.
43606/20/18
2504E Anaheim Union High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
An employer may lawfully propose withdrawal of pending grievances and/or unfair practice charges as part of a settlement involving mandatory subjects of bargaining; however, insisting to impasse “in the face of a clear and express refusal by the union to bargain” on the withdrawal of pending grievances or unfair practice charges or conditioning settlement of mandatory subjects on the withdrawal of grievances or unfair practice charges is a per se violation of the duty to bargain. Because employer’s proposal to limit its future liability by re-negotiating the parties’ contract language governing employee hours was within the scope of mandatory subjects for bargaining, the charging party’s allegation of insistence to impasse on a permissive subject of bargaining was dismissed. (pp. 15-16.) more or view all topics or full text.
418010/14/16
2504E Anaheim Union High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Because the parties’ discussions concerned mandatory subjects, including the number and identify of employees to be laid off, and the wages and hours of remaining employees, the Board dismissed the charging party’s allegation that the employer had unlawfully insisted to impasse on a permissive subject of bargaining by proposing various economic concessions within the framework of alternative shorter and longer lists of employees to be laid off. Although an employer’s decision to layoff is not subject to bargaining, the negotiable effects of that decision include the timing, number and identity of employees to be laid off. Additionally, alternatives to layoffs, including furloughs, reductions in employee hours or other concessions in pay or benefits, are negotiable because they necessarily affect enumerated subjects, including wages and hours. (pp. 10-11.) more or view all topics or full text.
418010/14/16
2418M Fresno County In-Home Supportive Services Public Authority
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Conduct alleged to constitute a per se violation of the duty to bargain may also indicate the absence of good faith in support of a surface bargaining charge. Although employer’s post-impasse imposition of unratified tentative agreements providing for no strikes and Separability/savings language did not demonstrate an intent to frustrate negotiations or undermine the authority of the representative, because the tentatively agreed to articles affected statutory rights, employer committed per se violations of its duty to bargain by unilaterally imposing them, even after bargaining in good faith to impasse. more or view all topics or full text.
3913303/30/15
2443M City of Milpitas
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A change in policy occurs on the date a firm decision is made even if the decision is not scheduled to take effect immediately, or even if it is never implemented. more or view all topics or full text.
403607/29/15
2433M Salinas Valley Memorial Healthcare System
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A hospital is not liable for failing to bargain over the implementation of a layoff where the union does not offer any concrete proposals on any negotiable subjects related to the layoffs. A union’s failure to provide alternative cost-saving measures is an appropriate factor in support of the conclusion that a hospital did not fail to bargain in good faith over the effects of a layoff. Negotiations over the effects of layoff may include the exclusive representative’s robust efforts to persuade the employer that layoffs can be avoided. Those efforts may include economic concessions, or other ideas for cost-savings, or the presentation of facts that demonstrate the layoff is not necessary or need not be as deep as management proposes. However, if an exclusive representative expects to successfully establish that an employer failed to negotiate in good faith over the effects and implementation of layoffs, the exclusive representative must participate in the give-and-take of negotiable proposals, i.e., the effects and implementation of the layoff. The union cannot monopolize negotiations with its insistence on negotiating over a non-negotiable managerial decision, i.e., the decision to lay off, and hope to delay or prevent the implementation of those layoffs by charging the employer with bad faith bargaining. An exclusive representative faced with impending layoffs of unit members may choose not to offer economic concessions in trade for fewer layoffs. But where a layoff is undertaken to reduce labor costs, a union cannot claim that the employer refused to bargain over the number of employees to be laid off when the union offers no concessions of sufficient value to the employer to obviate the need for layoffs. A union may not challenge an employer for failing to combine negotiations for a successor memorandum of agreement with layoff effects negotiations, when the union fails to respond to an invitation to open successor negotiations until after the layoff occurs more or view all topics or full text.
40406/15/15
I057M City of Fremont
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The MBMA requires governing bodies of local agencies to meet and confer with employee representatives in good faith regarding wages, hours and other terms and conditions of employment. More specifically, the MMBA makes it unlawful for a public agency to refuse to negotiate in good faith with a recognized employee organization. The employer’s duty to bargain in good faith is owed to the recognized employee organization. Where the duty exists, an employer’s outright refusal to bargain with a recognized employee organization violates the duty to bargain in good faith. more or view all topics or full text.
386810/25/13
2351M City of Sacramento
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
An employer’s willingness to delay implementation, to meet with the representative, or even to rescind a unilaterally-adopted policy, after it has demonstrated by its conduct that it has already reached a firm decision to implement the policy does not mitigate or excuse the unlawful conduct because a unilateral action regarding negotiable matters is a per se violation for which no evidence of the employer’s subjective motive is necessary. A City’s willingness to meet promptly with the representative and to engage in “positive” and “upbeat” discussions, after the City had already reached a firm decision and begun meeting with affected employees to implement the change does nothing to cure or mitigate the unilateral change. more or view all topics or full text.
3810412/24/13
2341M City of San Jose
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Under the totality of circumstances test used for surface bargaining allegations, one indicator of bad faith may be sufficient to state a prima facie case where the respondent’s conduct was sufficiently egregious to frustrate negotiations or undermine the authority of the representative. more or view all topics or full text.
389412/06/13
2380M City of Selma
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Surface bargaining allegation is reasonably contemplated within complaint allegations of bad faith bargaining. The City was therefore not denied due process by conclusion it had engaged in surface bargaining. more or view all topics or full text.
391106/27/14
2287H Trustees of the California State University
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The standard for determining whether there has been an unlawful unilateral change is necessarily distinct from the standard for determining whether there has been a failure to bargain effects. It is not necessary to prove the occurrence of an actual change in employees’ working conditions as a precondition to finding a duty on the part of management to negotiate the impact. So long as the immediate or prospective effect of a non-negotiable decision identified by charging party falls within the scope of representation and is reasonably foreseeable and causally related to the non-negotiable decision, the bargaining obligation attaches. more or view all topics or full text.
10/04/12
2284M City of Lincoln
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
City did not violate MMBA by failing to consider, conduct a vote, or take any other action related to a tentative agreement entered into between the city’s negotiator and the union and ratified by the union’s membership. Failure to take a formal action did not establish violation, where comments of city council members that tentative agreement did not go far enough and that they had directed staff to continue negotiating to reach a comprehensive agreement conveyed city council’s determination not to approve tentative agreement. more or view all topics or full text.
09/06/12
2271M City of Davis
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
By unilaterally cancelling fact-finding and implementing last, best and final offer, City failed to meet its obligation to participate in good faith in impasse resolution procedures. While the parties disagreed as to the manner of presentation to the arbitrator, the City had available two less severe options than canceling the fact-finding. City failed to establish a business necessity for implementing its last, best and final offer, in that it did not declare a fiscal emergency and had reserves sufficient to face projected shortfall. Implementation of furlough plan was reasonably comprehended within employer’s pre-impasse proposals, where plan as implemented changed span of time within which 12 furlough days must be taken from nearly 7 months to slightly over 5 months. more or view all topics or full text.
06/08/12
2196S State of California (Department of Corrections and Rehabilitation, Avenal State Prison) * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision. more or view all topics or full text.
363008/12/11
2151H Trustees of the California State University
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A party to a fact finding hearing does not violate EERA by failing to present all information that the other party wishes it would, or putting its own spin on the data. Charging party fails to present facts that establish the employer engaged in misrepresentation. Moreover, even if the allegation of misrepresentation is taken as true, a single indicia of bad faith is not sufficient to establish a prima facie case for bad faith bargaining under the totality of circumstances test. more or view all topics or full text.
351412/14/10
2152S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No violation of the Dills Act where the Legislature ratified the Governor’s initial furlough plan when it adopted the Budget Act. The Dills Act does not limit the Legislature’s authority to enact unilateral changes in terms and conditions of employment. The Governor does not commit an unlawful unilateral change by implementing changes to terms and conditions of State employment in compliance with law as prescribed by the legislative process. more or view all topics or full text.
351712/16/10
2120M County of Santa Clara
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
MMBA section 3505 requires public agencies to meet and confer in good faith with employee organizations regarding matters with the scope of representation. The rule applies when a party seeks to change a matter within the scope of representation through the initiative process. Therefore, prior to placing the matter before the voters, the party seeking the change must first satisfy its obligation to bargain. more or view all topics or full text.
3410906/25/10
2125M County of Fresno
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Unfair practice charge failed to demonstrate a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. County’s erroneous publication of personnel rules including a copy of the policy suggesting that BU 31 was exempt from the policy was not sufficient to show that the Board of Supervisors had in fact amended the policy to exempt BU 31. The implementation of furloughs represented the application of the existing policy. Unfair practice charge failed to demonstrate that implementation of furloughs was a unilateral change in policy where the County Board of Supervisors policy regarding mandatory furloughs was clearly established. Past practice will only be considered when necessary to determine an ambiguous policy. Past practice does not trump a clear established policy. Failure to enforce a policy does not mean an employer is forever precluded from doing so. Union argument that the parties bargaining history and past practice show that the MOU between the parties is plagued by mistake of fact is misplaced where the issue before PERB is not bad faith bargaining, but is the allegation of unilateral change of a County policy that is not set forth in the MOU. more or view all topics or full text.
3412208/11/10
2108S State of California (Department of Corrections and Rehabilitation)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The essence of a surface bargaining is that a party goes through the motions of negotiations but, in fact, weaves otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement. Although a party may not merely go through the motions of bargaining, it may lawfully maintain an adamant position on any issue. Adamant insistence on a bargaining position is not necessarily refusal to bargain in good faith. more or view all topics or full text.
348205/10/10
2114M County of Santa Clara
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
MMBA section 3505 requires public agencies to meet and confer in good faith with employee organizations regarding matters with the scope of representation. The rule applies when a party seeks to change a matter within the scope of representation through the initiative process. Therefore, prior to placing the matter before the voters, the party seeking the change must first satisfy its obligation to bargain. more or view all topics or full text.
349706/08/10
2101H Regents of the University of California (Davis)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Notice of a proposed change must be given to an official of the union who has the authority to act on behalf of the organization. The knowledge of one or even several members of the bargaining unit, who lack authority to act in an official capacity, will not be imputed to the organization. Therefore, notice of a proposed change will not be imputed to a union solely on the basis that the employer notified an employee was a member of the union. more or view all topics or full text.
345503/01/10
2115S State of California (Department of Corrections and Rehabilitation, Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Charge failed to state facts sufficient to establish a prima facie case of refusal to bargain over the area of layoff related to the closure of two juvenile facilities. By giving notice more than four months before the planned implementation date, the State afforded the union ample opportunity to negotiate over the effects of the layoff, including the area of layoff. more or view all topics or full text.
349906/10/10
2110S State of California (Department of Veterans Affairs) * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Department’s decision to close veterans home’s acute care unit and layoff acute care employees was not within the scope of representation because the department did not contract out bargaining unit work to private hospitals but merely ceased to provide acute care services to home’s residents. Letter stating union’s displeasure that it was not afforded an opportunity to show the department why acute care unit closure was not cost-effective did not constitute valid demand to bargain negotiable effects of the closure decision. Allegation that union representatives “sought to negotiate over the decision to close and its impact,” absent further details of the bargaining demand, insufficient to establish an oral demand to bargain effects. more or view all topics or full text.
349006/01/10
2109H Regents of the University of California
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Pleading or raising a bare allegation without sufficient supporting facts is insufficient for purposes of alleging a prima facie case. Where the charge alleged the employer violated past practice regarding sick leave verification and approval for vacation leave, a bare allegation that the relevant practices were “well established” was insufficient. The charge must allege facts to demonstrate the past practice. more or view all topics or full text.
348305/19/10
2102S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Employer’s denial of union’s requests to bargain over successor memorandum of understanding following employer’s post-impasse implementation of last, best and final offer (LBFO) did not constitute bad faith bargaining. Employer had no duty to bargain at the time the requests were made because impasse had not been broken by changed circumstances. Union’s bargaining requests did not contain a concession from its earlier bargaining position indicating agreement might be possible. Legislature’s failure to approve economic items of LBFO, Governor’s declaration of fiscal emergency and employer’s withdrawal of implementation of second and third year economic items did not constitute changed circumstances. more or view all topics or full text.
346203/26/10
2097M County of Riverside * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Where a change is made to a matter that is not within the scope of representation, or where the right to demand bargaining over the decision to change has been waived by the employee organization, the employer is obligated to provide notice and an opportunity to bargain over the negotiable effects of the decision, but not the decision itself. The employee organization has the burden to show it made a clear request to bargain the effects of the decision. Where the employee organization failed to establish that its demand to bargain indicated an intent to bargain the effects of the decision as opposed to the decision itself, it failed to establish a prima facie case for violation of the duty to bargain in good faith. more or view all topics or full text.
344902/10/10
2081S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The employer did not unlawfully insist to impasse on a proposal that union contended would require employees to waive their statutory rights, where the union failed to clearly communicate its opposition to further discussion of the proposal. more or view all topics or full text.
341011/24/09
2085S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Charge failed to state prima facie case of bad faith bargaining because an employer is not required to offer a benefit negotiated with one of its bargaining units to any or all of its other bargaining units. Additionally, employee organization made no request to bargain over particular benefit negotiated with another bargaining unit. more or view all topics or full text.
342412/22/09
2094H Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Employer did not fail to bargain in good faith over employee organization’s proposal to incorporate state regulations setting minimum nurse-to-patient staffing ratios into collective bargaining agreement. Employer’s position that arbitration was not the proper forum for enforcement of regulations was supported by rational arguments and clearly communicated to union at the bargaining table. more or view all topics or full text.
344102/02/10
2062S State of California (Department of Developmental Services and Office of Protective Services)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A union must make a demand to bargain over the effects of a unilateral change that clearly identifies the subjects of impact within the scope of bargaining. The Board will not presume an effect on negotiable terms and conditions of employment as a result of an employer change. more or view all topics or full text.
3315509/14/09
2078S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Charge failed to state prima facie case of bad faith bargaining under either per se or totality of conduct test because DPA’s failure to make or respond to economic proposals was justified during period when funds available for State employee compensation were uncertain due to an unprecedented State budget deficit. In light of these circumstances, DPA negotiators’ lack of authority to bargain over economic items did not delay or thwart bargaining, particularly as the parties reached agreement on several non-economic items. more or view all topics or full text.
341111/24/09
2064M City and County of San Francisco
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
One indicia of bad faith bargaining is insufficient to establish unlawful conduct. Charging party failed to allege facts sufficient to establish that the totality of the employer’s conduct was intended to subvert the bargaining process or that it evidenced subjective bad faith, where the only alleged indicia of bad faith was a single regressive bargaining proposal by the employer. more or view all topics or full text.
3316009/25/09
2009M Kings In-Home Supportive Services Public Authority
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Charge stated a prima facie case of premature declaration of impasse by employer. Under employer’s local rules adopted pursuant to MMBA, “impasse” means that the parties “have reached a point in their meeting and conferring in good faith on a dispute over matters within the scope of their representation at which their differences in position are so substantial or prolonged that future meetings would be futile.” Where parties participated in a series of productive bargaining sessions in which both parties made significant bargaining concessions at each session, allegations did not support premise that the difference in the parties’ respective positions were so substantial or prolonged that future meetings would be futile. Failure of employer to afford the union an opportunity to respond to the employer’s last offer indicates an intent to subvert the negotiating process and generally demonstrates the lack of a genuine desire to reach agreement. Union’s willingness to bargain is not dispositive of the issue of whether or not impasse has occurred. A holding that impasse cannot exist as long as one party desires to continue bargaining to reach an agreement is fundamentally inconsistent with local rules that permit either party to allow any party to negotiations to declare impasse and request an impasse meeting. Such a holding would allow any party to negotiations to prevent impasse and would render the local impasse procedure rule that either party may declare impasse meaningless. Charge failed to allege a prima facie case that the employer failed to participate in good faith in the scheduling of an impasse meeting, where the union failed to timely respond to the employer’s proposed dates for an impasse meeting and only proposed a date that was a public holiday. Charge failed to allege a prima facie case that the employer failed to participate in local impasse procedures authorizing voluntary mediation upon agreement by both parties, where the charge failed to allege that the union ever requested mediation during the impasse procedures or the employer refused such a request. more or view all topics or full text.
335203/10/09
2048E San Francisco Unified School District * * * OVERRULED IN PART by Rio Hondo Community College District (2013) PERB Decision No. 2313-E
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie case of bad faith bargaining because charge failed to establish employer was obligated to bargain over change in employees’ reporting location. Employees’ reporting location is not within the scope of representation under EERA and the charge did not establish that the employer’s decision to change employees’ reporting location had any actual effect on subjects within the scope of representation. more or view all topics or full text.
3312306/30/09
1986E Rio School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Untimely or unfounded declaration of impasse is not a per se violation of the duty to bargain. Under totality of conduct test, employer’s declaration of impasse on successor collective bargaining agreement, even though the parties had not bargained over the employer’s initial proposal, did not indicate bad faith because the parties were already at impasse over salary and health benefits in re-opener negotiations and declaration was intended to move negotiations forward by invoking EERA impasse procedures. Even if impasse declaration indicated bad faith, charge failed to allege other indicators of bad faith bargaining. more or view all topics or full text.
33811/21/08
1978S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The Dills Act does not preclude the Legislature from enacting terms and conditions of employment which, if implemented by DPA without legislative direction, would have been an unfair practice if not negotiated. DPA's implementation of the alternate retirement program amounted to the State's compliance with law as prescribed by the legislative process and not unilateral implementation of a change in policy on the part of the State as employer. more or view all topics or full text.
3214809/26/08
1976E Berkeley Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Charge failed to state a prima facie case of refusal to bargain as a matter of law because parties’ ability to rescind collective bargaining agreement provision based on mutual mistake of fact does not create a duty to bargain over a replacement provision. more or view all topics or full text.
3213809/09/08
1891M City of Los Altos
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The union’s amended charge stated that the City’s policy relative to disciplinary information was implemented "without notice to, participation by, or consent of the Union." Therefore, notwithstanding the union’s characterization of the case, the Board agent was correct in analyzing whether or not implementation of the policy constituted a unilateral change. more or view all topics or full text.
317403/14/07
1848S State of California (Department of Corrections) * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie showing of bad faith or surface bargaining because staffing levels and the level of services to be provided are not a subject within the scope of representation. more or view all topics or full text.
3015008/09/06
1839H Trustees of the California State University * * * OVERRULED IN PART by County of Kern and Kern County Hospital Authority (2019) PERB Decision No. 2659-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Respondent was not obligated to give Charging Party notice and opportunity to bargain regarding the effects of its decisions to form a Corporation or to enter into the operating agreement because Charging Party failed to present evidence that any unit employee was laid off, lost work hours, or was otherwise affected by the existence or operation of the Corporation. more or view all topics or full text.
3011805/12/06
1836S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie showing of bad faith or surface bargaining where State ask to revisit tentative agreements after change of negotiating team following recall of Governor. more or view all topics or full text.
3011505/08/06
1822E Santee Elementary School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A valid request to negotiate will be found if it adequately indicates a desire to negotiate on a subject within scope. (Newman-Crows Landing Unified School District (1982) PERB Decision No. 223.) In this case, STA made a reasoned decision not to demand to barain the adoption of the Board Policy after being given 2 weeks notice of the Board’s intent. Protests over District’s contemplated change is not a demand to bargain. more or view all topics or full text.
307202/22/06
1762S State of California (Department of Consumer Affairs)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Dills Act Section 3515.5 does not provide a right to self-representation. While Wilson-Combs has the right to meet with her employer without the union, the State is not required to meet and confer with her over terms and conditions of employment. more or view all topics or full text.
2912104/15/05
1720M City of Richmond * * * OVERRULED IN PART by County of Sacramento (2013) PERB Decision No. 2315-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Under MMBA, a decision to layoff employees is not within the scope of representation. The effects of a layoff, however, are negotiable. A request to negotiate over the effects of a layoff must be specific and identify the negotiable areas of impact. more or view all topics or full text.
293112/13/04
1620Ma Alameda County Medical Center
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
MMBA section 3505 and PERB Regulation 32603(c) only require the employer to meet and confer in good faith with the exclusive representative. There is no parallel mandate with regard to individual employees. While MMBA section 3502 allows individual employees the right to represent themselves in their employment relations with the public agency employer, there is no corresponding provision that requires the employer to negotiate with the individual employee. As only employee organizations may allege unilateral change and the Board lacks authority to adjudicate such an allegation by individual employees, Kimbrough lacks standing to bring this charge. more or view all topics or full text.
2818606/29/04
1620M Alameda County Medical Center
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Under the MMBA, only the bargaining representative has standing to allege a violation of the right to meet and confer or other rights only accorded to the exclusive representative. There are no MMBA provisions that require an employer to meet and confer with individual employees. Rather, MMBA section 3503 merely refers to the employee’s ability to meet with the employer without the employee organization. more or view all topics or full text.
2814204/21/04
1516S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. Board agent, therefore, properly applied a totality of circumstances test to the allegations in this case. more or view all topics or full text.
275204/07/03
1430E Poway Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The District's unilateral adoption of a calendar, including starting and ending dates, holidays and recesses for students, was not a tentative calendar, but a final work calendar setting certificated staff workdays. Unilateral adoption of such a calendar supports a prima facie violation of EERA based upon a refusal to bargain. more or view all topics or full text.
253206004/30/01
1420S State of California (Department of General Services)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Duty to bargain in good faith is not owed to employees and an individual employee therefore lacks standing to bring a charge regarding a failure to bargain. more or view all topics or full text.
253203902/26/01
1534E Colton Joint Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The meet and confer obligation is dormant while parties are participating in the impasse procedures. more or view all topics or full text.
279406/23/03
1328S State of California (Department of Mental Health)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Under the totality of the circumstances test, charging party failed to state a prima facie case by failing to demonstrate that the State did anything improper; p. 4, warning letter. more or view all topics or full text.
233010004/26/99
1305S State of California (Department of Personnel Administration) (International Union of Operating Engineers)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
In considering allegations that a party has failed to negotiate in good faith, the Board generally reviews the totality of the circumstances involved. However, certain acts have such potential to frustrate negotiations that they are considered per se violations of the duty to bargain in good faith. (Pajaro Valley Unified School District (1978) PERB Decision No. 51.) more or view all topics or full text.
233003112/22/98
1291S State of California (Department of Motor Vehicles)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Employer's unilateral imposition of performance standards in a manner inconsistent with provisions of expired collective bargaining agreement had continuing impact on a matter within the scope of representation and constituted unlawful unilateral change; pp. 3-4. more or view all topics or full text.
222917310/09/98
1235S State of California (Board of Equalization)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Where exclusive representative received several forms of notice from the employer, but did not indicate a desire to bargain until a month after the change was implemented, the exclusive representative failed to make a timely demand to bargain; p. 3; p. 3, dismissal letter. more or view all topics or full text.
222901811/24/97
1177E Gavilan Joint Community College District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A single indicia of bad faith is insufficient to meet the "totality of conduct" test; p. 3, warning letter; mere reference to bad faith bargaining which had occurred more than a year prior is insufficient to state a prima facie case; p. 5. more or view all topics or full text.
212801411/18/96
1156E Oakland Unified School District * * * OVERRULED IN PART by City of San Jose (2013) PERB Decision No. 2341-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Under the totality of conduct test, the allegation of a sinle indicia of bad faith bargaining (in this case, the allegation of reneging on a tentative agreement) does not establish a prima facie case of bad faith bargaining; p. 2. more or view all topics or full text.
202710906/12/96
1157H Regents of the University of California (California Nurses Association)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A single indicia of bad faith is insufficient to state a prima facie case of violation of the duty to meet and confer in good faith under totality of circumstances test; p. 3, dismissal letter. more or view all topics or full text.
202711106/13/96
1119H University of California, Lawrence Livermore National Laboratory
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The standard generally applied to determine whether good faith negotiations have occurred is called the totality of conduct test. This test reviews the entire course of conduct during negotiations to determine whether the parties have negotiated in good faith with requisite subjective intention of reaching an agreement; p. 3, warning letter. Neither the statute nor PERB case law establishes a timeline for negotiations. The pace of an individual set of negotiations is influenced by many factors, including the conduct of both parties to the negotiations; p. 3, warning letter. more or view all topics or full text.
192614410/04/95
0873E Charter Oak Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Employer negotiator's statement that the factfinding would "not make any difference, because the [District] Board will not accept the factfinding report anyway" constitutes evidence of bad faith bargaining; pp. 7-8. more or view all topics or full text.
152206704/04/91
0861E Perris Union High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
District's refusal to implement recommendation of insurance committee established pursuant to mediator's settlement proposal and side letter of agreement does not constitute bad faith bargaining; a prima facie violation is not stated where Association failed to allege that recommendation of insurance committee must be accepted or implemented by District; Warning letter, p. 4. more or view all topics or full text.
152201812/20/90
0856E Elk Grove Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Individual employee does not have standing to allege a violation of 3543.5(c); pp. 4, 5. more or view all topics or full text.
152200912/17/90
0849H Regents of the University of California (Irvin)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Individual employee does not have standing to file charge alleging breach of employer's duty to bargain under HEERA. more or view all topics or full text.
142120710/30/90
0843E Temple City Unified School District * * * OVERRULED IN PART by Charter Oak Unified School District (1991) PERB Order No. 873-E
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Board finds prima facie violation of section 3543.5(e) established where union alleged that employer did not seriously discuss fact- finding report and did not consider all possible bases of settlement by presenting take-it-or-leave-it proposal followed by slightly changed position labeled "last, best and final offer" with memo stating it believed the negotiation process to be completed. (Overruled in Charter Oak USD (1991) PERB Decision No. 873.) more or view all topics or full text.
142119109/28/90
0841E Temple City Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Totality of conduct test looks to entire course of negotiations to see if parties negotiated with the required subjective intent of reaching an agreement. more or view all topics or full text.
142118609/20/90
0823S State of California (Department of Personnel Administration) (Association of California State Attorneys and Administrative Law Judges)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
A per se violation of section 3517, which imposes upon the state the obligation to bargain in good faith, does not occur when there is a delay in making a firm counterproposal on salaries until after final adoption of the state budget. Also, such a delay, by itself, does not constitute evidence, under the totality of conduct test, that a party lacked the subjective intent to reach an agreement. (Writ summarily denied.) more or view all topics or full text.
142113506/29/90
0771H Regents of the University of California (University of California-American Federation of Teachers)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Employer's unilateral change in the terms and conditions of employment within the scope of representation is, absent a valid defense, a per se refusal to negotiate; p. 46, proposed dec. more or view all topics or full text.
132020909/28/89
0739S State of California, Department of Personnel Administration
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Allegations that DPA refused to present a salary proposal or to respond meaningfully to the union's salary proposal until five months after it was presented, which was nearly two months after the state budget was adopted, were sufficient to state a prima facie case; pp. 4-5. more or view all topics or full text.
132012106/08/89
0585S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No per se violation where charging party's sole allegation was inadequacy of time to consider proposal, even where coupled with refusal to provide information. more or view all topics or full text.
101715409/04/86
0569S State of California (Department of Personnel Administration)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
State did not refuse to bargain in good faith where it delayed presentation of its proposals until State Budget adopted. more or view all topics or full text.
101708904/30/86
0560E Alhambra City and High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Where, following a tentative agreement, the employer makes a proposal conditioned upon union waiver of right to bargain, conduct analyzed under "totality" test. more or view all topics or full text.
101704601/08/86
0540E Oakland Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Applying totality of the circumstances test, Board found refusal to engage in good faith bargaining where employer refused to negotiate between decision and public announcement. more or view all topics or full text.
101700912/12/85
2485E Petaluma City Elementary School District/Joint Union High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Although charging party alleged several recognized “indicia” of bad faith, the charge failed to state a prima facie case that the public school employer had engaged in surface bargaining where the charge allegations demonstrated that the charging party’s own conduct of refusing to meet for negotiations unless employee observers were permitted to attend so frustrated negotiations that it precluded consideration of whether the public school employer had bargained in good faith. more or view all topics or full text.
412306/30/16
2491M City of Montebello
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
In determining whether a party has violated its statutory duty to bargain, PERB uses both a per se and totality of circumstances test, on the specific conduct involved and its effect on the negotiating process. The tests typically rely on different kinds of evidence because they involve a failure to comply with different components of the statutory language. A unilateral change or other per se violation typically involves a failure to meet or follow the procedures for bargaining, while bargaining in bad faith is a failure to do so with the requisite state of mind. A unilateral change to negotiable subjects is regarded as a species of per se violations of the bargaining obligation because of its incompatibility with the bi-lateral scheme for collective bargaining and its inherently destabilizing and detrimental effect on the bargaining relationship, irrespective of intent. The Board rejected charging party’s exception arguing that a unilateral change may be evaluated under a totality of circumstances if the evidence fails to meet the criteria for a per se violation. more or view all topics or full text.
413006/30/16
1756E Contra Costa Community College District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie case of bad faith bargaining where Charging Party fails to set forth the totality of the conduct by the parties in negotiations. One indicator of bad faith bargaining is insufficient to demonstrate a prima facie case of unlawful conduct (Regents of the University of California (1985) PERB Dec. No. 520-H). more or view all topics or full text.
2910003/08/05
0531H Regents of the University of California
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie case for refusal to bargain found where student employee organization did not exist at the time of the alleged wrongful reorganization. more or view all topics or full text.
91623210/29/85
0522E Riverside Unified School District (Petrich)
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie case of unilateral change in salary increases where the employer calculated increases based on lowest-paid range. more or view all topics or full text.
91621209/24/85
0353H Regents of the University of California
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Nonexclusive representative and employees entitled to notice and opportunity to discuss elimination of pay differential for food workers. Employer's failure to provide either is violation of duty. Employer's good faith no defense to unilateral change complaint. more or view all topics or full text.
71428010/27/83
0326E Oakland Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Totality of circumstances shows bad faith bargaining. more or view all topics or full text.
71419507/11/83
0213E Delano Union Elementary School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Duty to bargain arises legally on date PERB certification of unit modification issues; p. 15. more or view all topics or full text.
61311704/30/82
0115E Redwood City School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Complaint dismissed for failure to state a prima facie case of surface bargaining where evidence showed the District had given in on a number of issues; pp. 10-13, proposed dec. more or view all topics or full text.
41101902/07/80
0100E Sacramento City Unified School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
Board held that Association stated a prima facie case of refusal to bargain in good faith where district refused to bargain over emergency regulations regarding personal leaves; pp. 6-8. more or view all topics or full text.
31010908/14/79
0919E Sylvan Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
No prima facie violation of District's duty to bargain effects where Association receives actual notice of decision and fails to make an adequate demand to bargain. more or view all topics or full text.
162301701/07/92
1353E East Side Union High School District
601.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case
The District violated EERA by unilaterally converting full-time positions into multiple part-time positions, and by unilaterally changing the hours of numberous other bargaining unit positions. Because this action had the additional effect of interfering with the right of the union to represent its memebers, and the right of employees to be represented by the union, the unilateral change also was a violation of EERA section 3543.5(b) and (a); p. 12. more or view all topics or full text.
233017409/30/99