All notes for Subtopic 606.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2745M County of Sacramento
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
The totality of the County’s conduct indicates it engaged in surface bargaining: (1) exhibited a take-it-or-leave-it attitude when claiming a new certification requirement was not negotiable even though it was not an immutable standard; (2) refused to bargain with the union over subjects within the scope of representation (e.g., wage increases tied to certification changes) or present counterproposals; and (3) terminated negotiations after two bargaining sessions without explanation in favor of unilaterally implementing the requirement before reaching a bona fide impasse. (pp. 24-26.) more or view all topics or full text.
09/18/20
2745M County of Sacramento
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Zipper clause generally permits both parties to refuse to bargain changes in matters covered by the terms of the clause during the life of their bargaining agreement. (p. 21.) But one cannot propose new terms and conditions of employment and simultaneously use the zipper clause as a shield to prevent the introduction of integrally related counterproposals, which amounts to unlawful piecemeal bargaining. (pp. 21-22.) more or view all topics or full text.
09/18/20
2745M County of Sacramento
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. An impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work. more or view all topics or full text.
02/03/20
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) 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, at p. 11, fn. 9; Riverside, supra, at p. 11.) more or view all topics or full text.
02/03/20
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
PERB precedent defines “impasse” as a point at which the parties’ differences remain so substantial and prolonged that further meeting and conferring would be futile. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures,” and its “conduct is free of unfair labor practices.” (San Ramon, supra, PERB Decision No. 2751-M, p. 6; City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) 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. (San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.) 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.” (Riverside, supra, PERB Decision No. 2360-M, p. 13.) more or view all topics or full text.
02/03/20
2648M City of Arcadia
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
PERB found employer 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
2582M City of Davis
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Under the totality of the circumstances test, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith, which our precedents describe as a subjective intent to reconcile differences and reach agreement. more or view all topics or full text.
435109/05/18
2582M City of Davis
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Even if the evidence is insufficient to establish any recognized indicium of bad faith, it may be concluded under the totality of circumstances that the respondent lacked an intent to reach agreement. more or view all topics or full text.
435109/05/18
2558E Children of Promise Preparatory Academy
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Per se bargaining violations (refusal to provide information, outright refusal to bargain) are also indicia of bad faith. more or view all topics or full text.
4212403/27/18
2558E Children of Promise Preparatory Academy
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Even if some of employer’s conduct due to the inexperience of its negotiators and advisers, evidence showed a concerted effort to thwart and delay negotiations. more or view all topics or full text.
4212403/27/18
2505M City of Roseville
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Where parties tentatively agreed to negotiate “Other Post-Employment Benefits” separate from MOU negotiations and no other evidence was presented as to the importance of that subject or whether the parties’ failure to reach agreement on it contributed in any meaningful way to the breakdown in negotiations, Board declined to disturb ALJ’s finding that negotiations had reached a bona fide impasse as the result of good-faith bargaining. Impasse refers to an overall deadlock in negotiations. An employer may not insist on separating one negotiable subject from all others and then bargain to impasse only as to that subject and impose its proposal, while refusing to discuss other subjects that may form the basis of a possible compromise. Although impasse may result from disagreement over a single subject, that subject must be of such critical and overriding importance to the parties that disagreement on that subject alone causes an overall breakdown in negotiations such that further bargaining over any subject would be futile. (pp. 33-35.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
2505M City of Roseville
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
A surface bargaining complaint complies with PERB Regulations and decisional law when it alleges that, by the totality of its conduct, “including but not limited to,” the specific conduct described in the complaint, the respondent has failed and refused to meet and confer in good faith. Notwithstanding the phrase “including but not limited to” or similar language, the complaint identifies the specific acts or indicia that are sufficient to state a prima facie case, while also giving the respondent notice that, under PERB’s totality of conduct test, the specific acts or indicia described in the complaint are not necessarily exhaustive of the evidence the charging party may present at hearing to prove the surface bargaining allegation. (p. 12.) more or view all topics or full text.
419711/30/16
2418M Fresno County In-Home Supportive Services Public Authority
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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. more or view all topics or full text.
3913303/30/15
2341M City of San Jose
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Charging party alleged sufficient facts to support an inference that City rushed to impasse to obtain concessions from its employees, without engaging in a sincere effort to reach agreement with their representative. Charging party alleged, among other things, that City provided only two rounds of comprehensive or "package" proposals before declaring impasse; that the City failed to explore possible compromise, even when exclusive representative offered significant concessions in line with City’s own demands; and, that the terms included in the City's final pre-impasse offer differed in only insignificant respects from its well-publicized bargaining demands and opening proposal. more or view all topics or full text.
389412/06/13
2380M City of Selma
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Surface bargaining allegation is reasonably contemplated within complaint’s allegations of bad faith bargaining. The City was therefore not denied due process by conclusion it had engaged in surface bargaining. Where the City had presented its LBFO, and the Association asked for further negotiations, the City was clearly on notice of what the Association wanted to bargain about and cannot claim that the Association had a duty in this circumstance to identify the subjects it wanted to bargain about. Economic exigency does not suspend the duty to bargain in good faith. Nor is an employer’s deadline, such as the beginning of a budget year or the expiration of a memorandum of understanding (MOU), an excuse to avoid bargaining in good faith. The City was not justified in its rush to conclude bargaining, declare impasse and impose its LBFO prior to its adoption of its budget, especially where city council extended budget deadline. Budget exigencies may have consequences on an employer’s proposals, but do not suspend the duty to meet and confer in good faith. more or view all topics or full text.
391106/27/14
2288M City of Pinole
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Fact that employer presented proposals based upon a document prepared by a joint working group of local government managers does not indicate that the employer lacked a general desire to reach agreement or intent to subvert the negotiating process. more or view all topics or full text.
10/15/12
2151H Trustees of the California State University
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
2144M West Side Healthcare District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Charging party’s claims that the employer has withdrawn from tentative agreements, appeared at a meeting without looking at a previous proposal, and refused to discuss any wage proposal, were insufficient, by themselves, to establish a claim for surface bargaining. The allegations lack the clear and concise factual context necessary to establish an indicia of surface bargaining. It is a charging party’s responsibility to allege a “clear and concise statement of the facts and conduct alleged to constitute an unfair practice charge.” Where charging party failed to do so the charge failed to establish a prima facie case for surface bargaining. more or view all topics or full text.
35611/30/10
2108S State of California (Department of Corrections and Rehabilitation)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
2115S State of California (Department of Corrections and Rehabilitation, Department of Personnel Administration)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Allegations that: (1) the State unilaterally set the area of layoff; (2) it disseminated that area to employees and the union; (3) employees relied upon this area in making life and career decisions; (4) the first bargaining session occurred days before the election interviews; (5) the State could not change the area of layoff in such a short time frame; (6) the State offered no counter proposal regarding the layoff area; and (7) the area of layoff remained unchanged through bargaining, did not establish “take-it-or-leave-it” attitude on the part of the State so as to establish a prima facie case of surface bargaining. The State provided ample notice and an opportunity to bargain over the effects of its decision to implement the layoff and participated in seven negotiating sessions during which both sides presented proposals. The evidence indicates that neither party was willing to yield its position. The State’s adamant insistence on its bargaining position does not establish a failure to bargain in good faith. more or view all topics or full text.
349906/10/10
2111S State of California (Department of Corrections and Rehabilitation, Avenal State Prison)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
One useful approach in addressing the issue of surface bargaining is to consider the indicia of bad faith with a view to the extent to which the offending conduct obstructs and subverts, or tends to obstruct and subvert, the negotiations in the context of the entire course of bargaining. more or view all topics or full text.
349106/03/10
2104M County of Mendocino
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Employees who exercise choice in representative status have no right to insist upon bargaining free from economic disadvantages, and an employer’s use of economic pressures solely in support of a bargaining position cannot be held unlawful for that reason alone. An employer is entitled to withhold benefits that employees might have obtained had they remained unorganized so long as the employer engages in good faith bargaining. more or view all topics or full text.
347404/21/10
2089S California Statewide Law Enforcement Association (Morgan)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Argument that case was not ripe for review because employee did not request to withdraw from union membership until four months after expiration of contract is rejected. Continued union membership can only be required until 30 days prior to the expiration of the contract, and union was not free to refuse to honor requests to withdraw made after the expiration but prior to the effective date of a successor agreement. more or view all topics or full text.
343412/31/09
2094H Regents of the University of California * * * OVERRULED IN PART by amendment to HEERA section 3563.3, Stats. 2011, Ch. 539
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
2064M City and County of San Francisco
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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. Merely informing a union of its obligations under a local city charter is not recognized as an indicia of bad faith bargaining. Charging party failed to allege facts showing that the employer’s letter reminding the union of its obligations under the City Charter to select a panel member to the impasse arbitration panel, was intended to thwart negotiations or subvert the bargaining process. more or view all topics or full text.
3316009/25/09
1915M County of Sierra
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Conditioning the negotiation of economic matters on the resolution of non-economic matters is insufficient to establish a prima facie case of surface bargaining when the economic and non-economic issues referenced by the parties are all within the scope of bargaining and when the charging party has the authority and control over both the economic and non-economic issues to be negotiated. more or view all topics or full text.
06/27/07
1890M City and County of San Francisco
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
The Board found that the charge failed to establish a prima facie case of surface bargaining where the record indicated that the parties conducted substantive discussions, exchanged proposals and information, asked and responded to questions, and that the City was willing to schedule negotiating sessions. The parties reached tentative agreements on at least eight different issues. more or view all topics or full text.
317203/12/07
1836S State of California (Department of Personnel Administration)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
1841M City of Fresno
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Surface bargaining not found where allegations, taken as a whole do not set forth prima facie case. Adamant insistence on a bargaining position is not necessarily refusal to bargain in good faith. (Placentia Fire Fighters v. City of Placentia (1976) 57 Cal. App. 3d 9.) more or view all topics or full text.
3012605/18/06
1842H Trustees of the California State University
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
CSU change in method for reporting sick leave and vacation credits is not a breach of duty to negotiate in good faith where parties disagreed as to where negotiations should take place as the obligation to negotiate in good faith does not require yielding of a position fairly maintained. more or view all topics or full text.
3012505/18/06
1758S State of California (Board of Prison Terms)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
No outright refusal to bargain shown where State had not responded to one particular proposal in several months, negotiations were ongoing, impasse had not been declared and charging party did not include any facts related to other proposals or the total negotiations. more or view all topics or full text.
2910303/24/05
1731M County of Fresno
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
No bypassing of exclusive representative where County established jail working group was not formed to compete with exclusive representative. Exclusive representative participated in formation of group by providing names to county of potential members of group and contract provided for the group. more or view all topics or full text.
294712/27/04
1715M County of Riverside
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
No evidence that the County intended to subvert the process with obstructionist conduct. The Board held that some bad judgment and miscommunication did not rise to the level of bad faith or surface bargaining based on totality of conduct. Just because negotiations are not productive at certain points of time does not mean they are in bad faith. more or view all topics or full text.
292111/30/04
1330S State of California (Department of Personnel Administration)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Conditioning agreement on union's "endorsement" of legislation necessary to implement the provisions of the agreement does not indicate bad faith because such endorsement is within the union's control; p. 3, dismissal letter. more or view all topics or full text.
233011705/06/99
1326E Chino Valley Unified School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
In general, the Board has held that one indicator of bad faith bargaining is insufficient to demonstrate a prima facie case of unlawful conduct, citing Regents of the University of California (1985) PERB Decision No. 520-H; p. 5. In this case, the parties on two occasions specifically discussed the authority of the District's lead negotiator. These discussions culminated in the District's endorsement of its negotiator's authority. Under these circumstances, the District's subsequent revelation that it had assigned a negotiator who did not possess sufficient bargaining authority constitutes a separate indicator of bad faith bargaining. By that conduct, the District significantly delayed and thwarted the bargaining process; pp. 5-6. Reneging on tentative agreements and sending a negotiator without authority are multiple indicators of bad faith conduct by the District Reneging on tentative agreements and sending a negotiator without authority are multiple indicators of bad faith conduct by the District more or view all topics or full text.
233009704/14/99
1270E San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
EERA section 3543.5(c) makes it unlawful for a public school employer to refuse or fail to meet and negotiate "in good faith" with an exclusive representative. An employer must negotiate with a good faith intent to reach agreement. Negotiating without such an intent is called "surface bargaining" because of its superficiality. A surface bargaining violation is determined by a "totality of conduct" test that "looks to the entire course of negotiations to determine whether the employer has negotiated with the requisite intention of reaching agreement; p. 81, proposed dec. Surface bargaining is indicated by a course of conduct that delays or thwarts the bargaining process and for which there is no reasonable explanation or rationale. The duty to negotiate in good faith does not, however, require parties to reach agreement, make concessions on every proposal, or yield positions fairly maintained; p. 81, proposed not, however, require parties to reach agreement, make concessions on every proposal, or yield positions fairly maintained; p. 81, proposed predictably unacceptable proposals; proposing to eliminate an organizational security clause with which the District had not problems was predictably unacceptable. Proposing to delete 2 sections from the Hours article over which there had been disagreements was predictably unacceptable; p. 83, proposed dec. Another indicaiton of surface bargaining is taking an inflexible position. Walking out is itself evidence of surface bargaining. The essence of lawful hard bargaining is insistence on positions fairly maintained; p. 85, proposed dec. more or view all topics or full text.
222911306/22/98
1264E Ventura County Community College District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
The totality of conduct test is generally applied to determine whether an employer is engaged in bad faith bargaining. Some conduct is considered to be a "per se" violation without a determination of the employer's subjective intent. In establishing bad faith, PERB examines the "totality of the bargaining conduct" to determine whether there are sufficient objective indicia of a subjective intent to participate in good faith, or conversely, of an intent to frustrate the bargaing process; pp. 3-4, warning letter. Conduct that moves the parties away from agreement, rather than toward agreement is considered evidence of bad faith. However, one indicia of bad faith bargaining does not meet the totality of circumstances test; p. 4, warning letter. Individually regressive proposals must be reviewed in the context of the entire package of proposals; p. 6, warning letter. Individually regressive proposals must be reviewed in the context of the entire package of proposals; p. 6, warning letter. 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)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Under totality of the circumstances test, evidence of single indicia of bad faith bargaining, even if found, is insufficient to warrant issuance of a complaint; id. more or view all topics or full text.
222905001/28/98
1205S State of California (Department of Health Services)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
No violation of Dills Act where charge contained conflicting statements (i.e., charge alleged both that department had failed to meet with charging party regarding employee's discipline, in violation of past practice, and that charging party was dissatisfied with meetings which occurred); p. 2, partial warning letter. Mere fact that delays occurred or that meetings were not satisfactory to charging party does not establish evidence of bad faith; p. 2, partial dismissal letter. more or view all topics or full text.
212811706/19/97
1160S State of California (Department of Education)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Adamant insistence on a bargaining position is not per se evidence of bad faith bargaining when there are no facts indicating how the position was not fairly maintained; p. 1, dismissal letter; p. 3, warning letter. Even if employer's proposal to increase work hours, made in response to union proposal to begin work day earlier, is regressive, one indicia of surface bargaining does not establish a prima facie violation of failure to bargain in good faith; p. 3, warning letter. more or view all topics or full text.
202711306/20/96
1151E Turlock Joint Union High School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Insistence on a firm bargaining position, without more, even where employer offered more but only after impasse is insufficient to state a prima facie showing of bad faith under the totality of the circumstances; A party may maintain a firm bargaining position so long as the party provides an explanation sufficient to allow the process of bargaining to proceed; p. 2, warning letter. EERA does not require either party to make its last, best, and final offer at any particular time during bargaining process. more or view all topics or full text.
202710005/22/96
1156E Oakland Unified School District * * * OVERRULED IN PART by City of San Jose (2013) PERB Decision No. 2341-M
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Under the totality of conduct test, the allegation of a single 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)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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 the requisite subjective intention of reaching an agreement; p. 3, warning letter. Neither the statute nor PERB case law establishes a timeline for negotiations. The case 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
1092E Marin Community College District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Although former managers have retreat rights under the Education Code and were assigned when they were in a management status, and factors arguably implicate the District's managerial prerogatives and Education Code suppression issues, neither factor relieves the District of its obligation to negotiate; p. 54, proposed dec. more or view all topics or full text.
192607003/21/95
1067S State of California (Department of Personnel Administration) (Association of California State Attorneys and Administrative Law Judges and Professional Engineers in California Government; California State Employees' Association; California Department of Forestry Employees' Association, Local 2881, International Association of Fire Fighters)
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
No per se violation can be found in the Governor's pre-negotiations discussions with members of the Legislature about specific negotiable matters. Evidence of such discussions might, under some circumstance, be appropriate to evaluate under the totality of the circumstances; p. 13, proposed dec. more or view all topics or full text.
192601011/09/94
0861E Perris Union High School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
0834E Chula Vista City School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Where failure to provide information and insistence to impasse on nonmandatory subjects of bargaining are per se violations of 3543.5(c), same conduct does not justify conclusion that the district did not enter into negotiations with bona fide intent to reach agreement; p. 73. more or view all topics or full text.
142116208/16/90
0540E Oakland Unified School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Where District tied "effects" bargaining to future wage increases, it was a violation not to include "effects" bargaining in negotiations for successor agreement. more or view all topics or full text.
101700912/12/85
2485E Petaluma City Elementary School District/Joint Union High School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
1756E Contra Costa Community College District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
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
0989E Oakland Unified School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
District's making same proposal to another bargaining unit, failure to provide the names of employees not participating in the annuity program, and refusal to negotiate over the annuity issue (without sufficiently specific facts) does not constitute surface bargaining; pp. 2-3, warning letter. more or view all topics or full text.
172407904/13/93
0134E San Ysidro School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Distinction between hard bargaining and surface bargaining is fine one; District did not engage in surface bargaining where it met and discussed ground rules all day; agreement does not have to be reached; pp. 14-16. more or view all topics or full text.
41110506/19/80
0080E Muroc Unified School District
606.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Essence of surface bargaining is where a party goes through the motions of negotiations, but in fact is weaving otherwise unobjectionable conduct into an entangling fabric to delay or prevent agreement; specific conduct may be wholly proper, but when placed in the context of the negotiations supports the conclusion that the party is not negotiating with the requisite subjective intent to reach agreement; p. 13. more or view all topics or full text.
31000412/15/78