All notes for Subtopic 606.20000 – Exploding Offers

DecisionDescriptionPERC Vol.PERC IndexDate
2751M * * * JUDICIAL APPEAL PENDING * * * City of San Gabriel
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
The Board rejected the City’s arguments that it had a legitimate basis for making an exploding offer. When asked at hearing why the City made its exploding offer, a City bargaining representative testified that it was compelled to do so because of the dictates of CalPERS deadlines and payroll processing. However, the record did not support this claim, as the City acknowledged that it was, in fact, able to timely report open enrollment information to CalPERS. The City also claimed that the exploding offer was justified because it needed to curb ongoing liability for overtime costs related to Flores v. City of San Gabriel (9th Cir. 2016) 824 F.3d 890 (Flores), in which the United States Court of Appeals for the Ninth Circuit held that the City had improperly calculated some of its employees’ regular rate of pay. The ALJ found that any urgency created by the City’s need to comply with Flores was a dilemma of the City’s own making, as it knew by May 2017 that the decision had become final, yet still waited until August 2017 to make its first contract proposal to the union, which was four months after the union made its first proposal. Because an exploding offer risks the same harm as regressive bargaining in that it “telegraphs a threat to move the parties farther apart unless the other party accedes to a particular unilaterally-established deadline,” a party typically must show changed economic conditions or other changed circumstances to support such an offer. The Flores decision constituted neither, as the City knew of its potential liability as early as June 2016, when the Ninth Circuit issued its decision, or by June 2017 at the latest, which is when the City claimed that it learned its petition for writ of certiorari had been denied. Finally, even setting aside the City’s delay, an employer cannot unilaterally choose a date by which it needs to conclude negotiations so that it can begin saving money. (pp. 18-22.) more or view all topics or full text.
456412/14/20
2751M * * * JUDICIAL APPEAL PENDING * * * City of San Gabriel
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
A party cannot in good faith make an exploding proposal unless it can adequately explain a legitimate basis for doing so. When a party issues an exploding offer without an adequate explanation as to why its bargaining position should become less generous on a given date in the future, it preemptively indicates its intent to engage in regressive bargaining, imposes its own ground rule and deadline, evidences unlawful inflexibility, and manifests a take-it-or-leave-it attitude. Although an exploding offer is not a per se violation, a bargaining party evidences bad faith under the totality of conduct test if it does not adequately justify a threatened change in position that is inherent in an exploding offer. (p. 18.) more or view all topics or full text.
456412/14/20
2648M City of Arcadia
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
An exploding offer is one that expires on a given date. Exploding offers are held to the same standard as regressive proposals and thus, a bargaining party evidences bad faith under the totality of conduct test if it does not adequately justify a threatened change in position that is inherent in an exploding offer. more or view all topics or full text.
44106/12/19