All notes for Subtopic 608.08000 – Exhaustion of Impasse Procedures or Time Between Impasse and Mediation

DecisionDescriptionPERC Vol.PERC IndexDate
2523C El Dorado County Superior Court
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Although Charging Party requested a resumption of negotiations over health benefit contributions following a declaration of impasse and the exhaustion of applicable impasse resolution procedures, it pointed to no ground rules or similar agreement requiring the parties to negotiate this issue separately from the other subjects in dispute. Under the circumstances, the Respondent was legally privileged to refuse to resume bargaining. (p. 12.) Although parties may agree to ground rules governing the time and place of their negotiations, including arrangements to discuss specific subjects separately or in a particular order, in the absence of such an agreement, a party may not insist on separating one negotiable subject from all others or make continued negotiations conditional upon reaching agreement over a single subject and thereby refuse to discuss other subjects that may form the basis of a possible compromise. (Ibid.) more or view all topics or full text.
4115203/20/17
2523C El Dorado County Superior Court
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Applying precedents decided under other PERB-administered statutes, the Board held that a the Trial Court Act employer need not make a second formal declaration of impasse or re-invoke the impasse resolution procedures contained in its local rules when those same procedures had already been exhausted without resolving the same dispute over a successor MOU. PERB cases decided under EERA and the Dills Act hold that “once the statute’s impasse procedures have been concluded, PERB has no authority to recertify impasse or [to] reinvoke impasse procedures,” which have already failed to resolve the dispute. (p. 11.) Thus, it was unnecessary for the Court to make another formal declaration of impasse or invoke the impasse resolution procedures in the EERR when those same procedures had already been exhausted without resolving the same dispute over a successor MOU. more or view all topics or full text.
4115203/20/17
2571M City of San Ramon
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.) more or view all topics or full text.
43606/20/18
2100M County of Sonoma
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
County was not required to submit to the binding interest arbitration provisions of Code of Civil Procedure section 1299 et seq. prior to implementing its last, best and final offer, in light of holding by court of appeal in County of Sonoma v. Superior Court (2009) 173 Cal.App.4th 322, 344, 346-347, review denied, that the governing statute is unconstitutional. more or view all topics or full text.
345402/25/10
2102S State of California (Department of Personnel Administration)
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
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
2018S State of California (Department of Personnel Administration)
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Generally, an employer cannot change matters within the scope of representation without first providing the exclusive representative notice and opportunity to negotiate. Once impasse is reached under the Dills Act, however, an employer may take unilateral action to implement “any or all” of the proposals contained in its last best and final offer (LBFO). In such cases, the unilateral adoptions must be reasonably comprehended within the pre-impasse proposals. Moreover, if a proposal contained in the LBFO conflicts with existing law or requires the expenditure of funds, the proposal must be approved by the Legislature. more or view all topics or full text.
337104/07/09
2074M City of Clovis
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
MMBA section 3505.4 provides that once an impasse has been properly reached, a public agency “may implement its last, best and final offer.” The provision is permissive, not mandatory. The agency is not obligated to implement the last, best, and final offer. No binding agreement existed, as the Union failed to present sufficient evidence that it had tendered a post-impasse acceptance of the City’s last, best, and final offer. Furthermore, even if the Union had shown valid acceptance of the last, best, and final offer, MMBA section 3505.1 requires the agreement be reduced to writing and ratified by the governing agency before it will become binding on the parties. Here, the record was void of any evidence that an agreement was reduced to writing and ratified by the City. more or view all topics or full text.
3317910/30/09
2017S State of California (Department of Personnel Administration)
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Neither the Dills Act nor PERB regulations provides for a subsequent PERB administrative determination of impasse. more or view all topics or full text.
336804/01/09
1577M County of Riverside
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession more or view all topics or full text.
284512/31/03
1416E Orange Unified School District
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Board remands the matter to PERB General Counsel's office for issuance of a complaint to determine which of two agreements was the subject of the unfair practice charge, whether impasse had been broken, and adequacy of notice regarding District's implementation of its last, best and final offer; pp. 12-18. more or view all topics or full text.
253202112/11/00
1103E Laguna Salada Union School District
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
An employer's change affecting a mandatory subject of bargaining prior to the exhaustion of impasse procedures, including consideration of the factfinder's report, is an unlawful unilateral change; p. 10. An employer may implement policies reasonably comprehended within previous offers made to the union once the employer exhausts the statutory impasse procedures. The term "reasonably comprehended" excludes those changes better than the last offer and also any changes which the parties did not discuss during negotiations which are less than the status quo; p. 10. more or view all topics or full text.
192609505/11/95
1053E Rowland Unified School District
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Once impasse is reached either party may refuse to negotiate further and the employer is free to implement changes reasonably comprehended within its last, best and final offer. However, impasse suspends the parties' obligation to bargain only until changed circumstances indicate that an agreement may be possible; p. 7. The duty to bargain revives when one party proposes a concession from its earlier bargaining position which indicates that agreement may be possible; p. 7. The district's duty to resume negotiations following good faith completion of impasse arises only if the association's proposals contain a concession from its earlier position which demonstrates that circumstances have changed and agreement may be possible; p. 8. more or view all topics or full text.
182512609/01/94
0968E Covina-Valley Unified School District
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Although there is no EERA precedent directly on point, PERB has held that after exhaustion of the impasse procedures, "impasse under EERA is identical to impasse under the NLRA." (Modesto City Schools (1983) PERB Decision No. 291.); Under NLRA, in the absence of a clear agreement to the contrary, an employer's obligation to bargain over a reopened term carries with it the right to implement a final offer upon genuine impasse. (Speedrack, Inc. (1989) 293 NLRB 1054; NKS Distributors, Inc. (1991) 304 NLRB No. 69; Local Union No. 47 v. NLRB (D.C. Cir. 1991) 937 F.2d 635.); No clear agreement established as there appears to be no bargaining history or past practice to help establish that there was a "clear agreement" against implementation; p. 2, partial dism. letter. more or view all topics or full text.
172403001/20/93
0841E Temple City Unified School District
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
Right to implement "last, best, and final" offer is dependent on having first bargained in good faith through exhaustion of impasse procedures. more or view all topics or full text.
142118609/20/90
0291E Modesto City Schools
608.8000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
District's implementation of policies not comprehended within its last best offer constitutes a violation; p. 48. more or view all topics or full text.
71409003/08/83