All notes for Subtopic 605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

DecisionDescriptionPERC Vol.PERC IndexDate
2504E Anaheim Union High School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
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
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
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
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Although a no strikes clause is a mandatory subject of bargaining, it also affects statutory rights of employees and employee organizations. While an employer may insist to impasse on a proposal to limit or waive the right to strike, it may not unilaterally impose a waiver of the right to strike, even after bargaining in good faith to impasse. more or view all topics or full text.
3913303/30/15
2298M Salinas Valley Memorial Healthcare System
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
The obligation to maintain the status quo on matters within the scope of representation following certification of a successor organization, attaches only to those matters which are mandatory subjects. Including an agreement on a non-mandatory subject within a Memorandum of Understanding (MOU) does not convert the non-mandatory subject into a mandatory subject. Nor does an agreement regarding a non-mandatory subject become part of the “status quo” which an employer must maintain while meeting and conferring for a successor MOU. more or view all topics or full text.
12/20/12
2341M City of San Jose
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Charging party alleged sufficient facts to state a prima facie case that the City violated its duty to bargain in good faith by insisting to impasse and imposing proposal to that illegally impaired vested employee rights to accrued sick leave compensation. more or view all topics or full text.
389412/06/13
2326E Los Angeles Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Adopting the rule set forth in McClatchy Newspaper (1996) 321 NLRB 1386, the Board held that the school district may insist to impasse, in negotiations over a successor collective bargaining agreement, on a bargaining proposal by which it seeks to retain unfettered discretion over decisions to reduce employees’ hours or work year, both mandatory subjects of bargaining; upon reaching impasse, however, the school district may not impose such a proposal as part of its last, best and final offer. more or view all topics or full text.
384509/20/13
2380M City of Selma
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Since the City failed to object to the Association’s alleged insistence on negotiations covering a topic that was arguably not a mandatory subject of bargaining, the Association’s alleged conduct had no effect on the progress of bargaining. more or view all topics or full text.
391106/27/14
2268E Berkeley Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
The recoupment provision in the District’s prior agreement with BCCE was a non-mandatory subject, and consequently neither party was obliged to negotiate nor renew it. As a non-mandatory subject, the recoupment provision in the District’s prior agreement with BCCE was not part of the status quo on mandatory subjects. Thus, the recoupment provision did not survive expiration of that agreement, since only mandatory subjects are governed by EERA duty to make no change while negotiating or participating in impasse resolution procedures. more or view all topics or full text.
05/29/12
2288M City of Pinole
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
It is well established that an employer may not insist to impasse upon a waiver of statutory rights. Allegations that pension proposal amounted to a waiver of statutorily-prescribed maximum employee pension contributions are sufficient to support a viable theory of law so as to warrant issuance of a complaint. more or view all topics or full text.
10/15/12
2081S State of California (Department of Personnel Administration)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Pursuant to Lake Elsinore School District (1986) PERB Decision No. 603, Travis Unified School District (1992) PERB Decision No. 917, and Chula Vista City School District (1990) PERB Decision No. 834, the party opposing inclusion of a non-mandatory subject of bargaining must communicate its opposition to further negotiation about the non-mandatory proposal. Statements that union believed proposal to require waiver of statutory rights and requests for clarification did not communicate a clear opposition to further negotiations over the proposal. more or view all topics or full text.
341011/24/09
2017S State of California (Department of Personnel Administration)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
An employer may not unilaterally impose a waiver or limitation on a union's right to bargain. more or view all topics or full text.
336804/01/09
1943M County of Sacramento
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Eligibility criteria for retirement healthcare benefits are within the scope of bargaining. more or view all topics or full text.
324202/14/08
1570M County of San Joaquin
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
PERB has held that retirement benefits for current employees is a mandatory subject of bargaining. In contrast, retirement benefits for retirees – those who are no longer employed by the employer – is only a permissive subject of bargaining. A party may not insist to impasse on a permissive subject of bargaining. more or view all topics or full text.
283712/19/03

605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
For non-mandatory subjects of bargaining, City had no duty to bargain to impasse or use impasse resolution provision of municipal code. Because it represented the City’s initial bargaining position, minimum salary formula contained in City’s charter was not a mandatory subject of bargaining. Therefore City not required to bargain with union prior to presenting charter provision to electorate for repeal. more or view all topics or full text.
1330S State of California (Department of Personnel Administration)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
PERB determination that impasse exists is a prerequisite to a finding that a party has insisted to impasse on a nonmandatory subject of bargaining; p. 3, dismissal letter. more or view all topics or full text.
233011705/06/99

605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Insistence to impasse on a nonmandatory subject is a per se violation of EERA. [228 Cal.App.3d at 507] more or view all topics or full text.
1264E Ventura County Community College District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Proposing language which gives the employer the right to establish the calendar does require waiving a statutory right. more or view all topics or full text.
222909105/12/98
1249S State of California (Department of Personnel Admistration (California State Employees Association/Service Employees International Union Local 1000)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Party has right to make proposals on nonmandatory subjects of bargaining; id. more or view all topics or full text.
222905001/28/98
1141E Redwoods Community College District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Parties to a collective bargaining agreement are not prohibited from negotiating alternative methods to attempt to resolve disputes. However, if the agreed upon dispute resolution process is unsuccessful, the parties are prohibited from making a unilateral change in a negotiable subject or engaging in strike activities until they have completed the statutory impasse procedure set out in the EERA; p. 3. more or view all topics or full text.
202704802/28/96
1053E Rowland Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
The right to bargain to reach agreement on terms and conditions of employment is the very essence of collective bargaining under EERA. Any attempt to limit or waive this statutory right must be mutually agreed to by the parties and expressed in clear and unmistakable terms; p. 10. An employer may not, following impasse, unilaterally impose a waiver of an exclusive representative's statutory right to bargain. Such a waiver of the statutory right to bargain may only occur within the context of a mutually agreed collective bargaining agreement; p. 10. Duration of agreement provisions do not act as a waiver clause barring all negotiations for the specified period; p. 11. more or view all topics or full text.
182512609/01/94
1030E San Mateo County Community College District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
No violation under unlawful insistence to impasse because the Federation never put the District on notice that released time should not be included in the CBA or that it would not bargain over released time because it had a statutory right to reasonable released time; pp. 19-20. An employer can implement both mandatory and nonmandatory proposals contained in its last, best and final offer except for those items that concern statutory rights. more or view all topics or full text.
182502712/28/93
1027E Buena Park School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Government Code section 3543.2(d) clearly indicates that Education Code section 45028 may be overridden by agreement in cases of additional compensation, e.g., in the form of anniversary increments. Insistence to impasse on this subject is not bad faith bargaining. more or view all topics or full text.
182501411/24/93
0900S State of California, Department of Personnel Administration (Professional Engineers in California Government)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Insistence upon negotiations on a mandatory subject such as released time is not a per se violation of the duty to bargain. more or view all topics or full text.
152215109/13/91
0844E Mt. Diablo Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Insistence to impasse that employee organization waive right to grieve in own name and waive right to take grievances to arbitration without concurrence of named grievant held per se violation. more or view all topics or full text.
142119210/01/90
0841E Temple City Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Record failed to show insistence to impasse on nonmandatory subjects of bargaining where District proposed that union withdraw grievances and unfair practice charges during initial phases of impasse procedure but did not insist upon those proposals during later phases of impasse procedure; p. 32-33, proposed dec. more or view all topics or full text.
142118609/20/90
0834E Chula Vista City School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Insistence to impasse that employee organization waive right to grieve in own name held per se violation; p. 28. Objection to a nonmandatory proposal does not need to include any specific magic words. PERB must look to the history of bargaining, substance of the proposals, and the contents of the declarations of impasse to determine whether a party can be considered to have "insisted to impasse" on a particular proposal. Application of Anaheim test to grievance proposal unnecessary because district is not insisting to impasse on a term or condition of employment but rather that association waive a statutory right; pp. 22-23. Insistence to impasse that employee organization waive right to take grievances to arbitration without concurrence of named grievant held Insistence to impasse that employee organization waive right to take grievances to arbitration without concurrence of named grievant held language that provides that parties waive right to seek unit modification or clarification during the term of the contract held per se violation; p. 41. No per se violation found where parties bargain over nonmandatory subject of bargaining and party charging insistence to impasse fails to take firm position that proposal being bargained not be included in the contract; p. 44. While parties may engage in negotiations over nonmandatory subjects of bargaining, when one party subsequently decides to take position that nonmandatory proposal not be included in contract, that party must express opposition to further negotiation on proposal as prerequisite to charging other party with bargaining to impasse on nonmandatory subject. Here, association did put district on notice regarding its opposition to further neogitation on nonmandatory subjects of subject. Here, association did put district on notice regarding its opposition to further neogitation on nonmandatory subjects of more or view all topics or full text.
142116208/16/90
0791E South Bay Union School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Insistence to impasse that employee organization waive right to grieve in own name held per se violation. (No majority consensus on analysis) (Affirmed, South Bay Union SD v. PERB/Southwest Teachers Assn. (March 3, 1991).) more or view all topics or full text.
142105402/08/90
0603E Lake Elsinore School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
An employer cannot insist on the union's withdrawal of an unfair practice charge to impasse thereby conditioning a mandatory subject of bargaining on resolution of non-mandatory subject; pp. 5-7. However, merely proposing the union drop an unfair charge is not unlawful; pp. 9-10. more or view all topics or full text.
111802212/30/86
2485E Petaluma City Elementary School District/Joint Union High School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
By enacting EERA section 3549.1, the Legislature intended that negotiations would be attended only by the parties’ representatives, absent an agreement or established practice to the contrary. To the extent a public school employer insists on a policy of excluding employee observers from negotiations, it was simply following the statutory default rule for negotiations, and not unlawfully insisting on or conditioning negotiations on a non-mandatory subject of bargaining. pp. 29-34; 34-37. more or view all topics or full text.
412306/30/16
0406E San Benito Joint Union High School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Employer proposal to amend duration of existing three-year agreement by altering beginning date and expiration date so that both are one year later is not illegal subject. Proposal would not violate section 3540.1(h) prohibition against contracts exceeding three years. Revised contract on its face would not exceed three years and purpose of revision was not to foreclose possibility of decertification election. more or view all topics or full text.
81516509/13/84
0208E Fresno Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
The employer's interest in agency fees is limited to its willingness to impose on its non-union employees an agency fee requirement and, if so, whether an authorization election is desirable. The employer also has a legitimate interest in negotiating some protection against the liability which might result from its agreement to hold agency fees in excess of those permitted by law. The district's insistence on negotiating a cap on agency fees was outside its legitimate interest and therefore a violation of subsections 3543.5(c) and (d). Dues and agency fees are a matter of internal union policy; pp. 21-22. more or view all topics or full text.
61311004/30/82
0177E Anaheim Union High School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Employer may not insist on proposal that costs of released time be passed on to the union. Such an approach would allow employer to evade its statutory obligation to grant released time. more or view all topics or full text.
51214810/28/81
0048E Ross School District Board of Trustees
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
A party may not insist that negotiations take place in public. more or view all topics or full text.
2205602/21/78
0922H Regents of the University of California (University of California-American Federation of Teachers)
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Under EERA, PERB has excluded from the mandatorily bargainable subjects an employer's demand that a union withdraw an unfair practice charge (Lake Elsinore School District (1986) PERB Decision No. 603; pp. 3-4, dec.) Under HEERA, a refusal to withdraw unfair practice charges is not a mandatory subject of bargaining; p. 4, dec. more or view all topics or full text.
162303302/07/92
0917E Travis Unified School District
605.2000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Exclusive representative's right to file grievances in its own name is a nonmandatory subject of negotiations; insistence to impasse on a nonmandatory subject is a per se violation; p. 14-15, proposed dec. While the Association did not explicitly state that the proposals in question were "outside the scope of bargaining," the Association did make clear its contention that it was improper for the District to insist on language which it believed deprived it of its statutory rights. See Chula Vista No. 834, p. 26; p. 4. more or view all topics or full text.
162302201/03/92