All notes for Subtopic 900.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; 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.) 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
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; 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
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Administrative determinations regarding MMBA factfinding requests do not preclude contrary findings after a formal hearing in a related unfair practice charge. Administrative determinations of MMBA factfinding requests do not generally provide either a charging party or a respondent a basis for prevailing in a related bad faith bargaining case. For instance, such an administrative determination does not establish whether there existed a legitimate, good faith impasse permitting an employer to impose the terms of its last offer. (See City & County of San Francisco (2014) PERB Order No. Ad-415-M, p. 12 [Although an MMBA factfinding request may involve issues that overlap with those in a related unfair practice case, determinations made as part of the factfinding request generally do “not prejudice or determine the ultimate outcome in the unfair practice case”].) This is because OGC must reach an administrative determination after a very limited investigation that does not create a reliable evidentiary record like that developed during a formal hearing on an unfair practice charge. more or view all topics or full text.
02/03/20
A458M County of Solano
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Generally, where the exclusive representative has made a request for factfinding that is timely under any plausible interpretation of the public agency’s local rules and that is accompanied by a statement that the parties have been unable to effect a settlement to their dispute, PERB must accept the request as timely and allow the parties to proceed to factfinding. Here, however, while the local rules appear to contemplate selection of a mediator by mutual agreement of the parties as one option, the employee organization’s conduct was inconsistent with that option, regardless of whether it was the default option or simply one option among others. Because the organization appears to have accepted the selection of the mediator and expressed no reservations about this selection, nor suggested any other mediator or any alternative process whereby the parties would mutually agree on the identity of the mediator, the Board rejected its appeal and adopted the administrative determination that the employee organization’s request for factfinding was untimely. more or view all topics or full text.
427801/09/18
2523C El Dorado County Superior Court
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
2523C El Dorado County Superior Court
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
A462M City of Oakland
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
PERB’s review of a factfinding request is limited to determining whether an exclusive representative’s request satisfies the procedural requirements of Gov. Code Section 3505.4 and PERB Regulation 32802. (p. 4) Although factfinding only applies to disputes over matters within the scope of representation, the Office of the General Counsel will not assess whether the subject of the parties’ dispute is within the scope of representation before approving the factfinding request. (pp. 3-4, 6) The Office of the General Counsel must approve the request unless the Board has previously declared a subject outside the scope of bargaining via the unfair practice process. Where neither PERB nor the courts have rendered such a decision, a factfinding request otherwise in compliance with the statutory and regulatory prerequisites must be approved. more or view all topics or full text.
4214104/30/18
2571M City of San Ramon
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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 (San Jose), 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
A429M City and County of San Francisco
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Board affirmed its holding in County of Contra Costa (2014) PERB Order No. Ad-410-M that the plain language of the MMBA and its legislative history indicate that the Legislature intended to make MMBA factfinding available for any “differences” over any matter within the scope of representation, including single-issue disputes, so long as the employee organization's request is timely and the dispute is not subject to one of the statutory exceptions. more or view all topics or full text.
407410/15/15
2414M County of Tulare * * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
While employers are privileged to impose terms and conditions of employment on a prospective basis, they cannot do so retroactively. An employer is not privileged to insist to impasse on a proposal to renegotiate terms settled by a previous agreement, nor to impose terms that take back wages or benefits that have already accrued to employees, even after bargaining in good faith to impasse. more or view all topics or full text.
3911102/26/15
A410M County of Contra Costa
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The factfinding procedures added to the MMBA by AB 646, and codified at MMBA sections 3505.4 through 3505.7, apply to any bargaining impasse over negotiable terms and conditions of employment, and not only to impasses over new or successor MOU. more or view all topics or full text.
3815404/16/14
A414M County of Fresno
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The plain meaning of AB 646 did not limit MMBA factfinding procedures only to impasses in negotiations for comprehensive MOUs. more or view all topics or full text.
39806/17/14
2288M City of Pinole
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Employer lawfully implemented its last, best and final offer retroactively. The fact that the parties continued to negotiate over proposals does not preclude employer, upon having bargained to impasse in good faith, from implementing the terms of its last, best and final offer retroactively as presented during negotiations. more or view all topics or full text.
10/15/12
2271M City of Davis
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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. more or view all topics or full text.
06/08/12
2041M City and County of San Francisco
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Impasse exists where the parties have considered each other’s proposals and counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached a point in their negotiations where continued discussion would be futile. more or view all topics or full text.
3312006/29/09
2105H Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299 )
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
A unilateral change in a negotiable subject prior to the completion of impasse procedures is a “per se” violation. more or view all topics or full text.
347304/21/10
2100M County of Sonoma
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
2018S State of California (Department of Personnel Administration)
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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 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
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
2009M Kings In-Home Supportive Services Public Authority
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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
1823Ha Trustees of the California State University
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
On remand from published Court of Appeal decision, Board vacated February 23, 2006 decision in Trustees of the California State University (2006) PERB Decision No. 1823-H. Court of Appeal found no violation of HEERA. more or view all topics or full text.
325302/14/08
1823H Trustees of the California State University * * * VACATED by Trustees of the California State University (2008) PERB Decision No. 1823a-H
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
California State University violated HEERA by insisting to impasse on a proposal limiting the remedial authority of an arbitrator in faculty disputes as this unlawfully conditioned agreement on waiver of a statutory right. A heightened standard of review cannot be imposed on an arbitrator by the parties in their collective bargaining agreement or memorandum of understanding. more or view all topics or full text.
307502/23/06

900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
For non-mandatory subjects of bargaining, City had no duty to bargain to impasse or use impasse resolution provision of municipal code. more or view all topics or full text.
1416E Orange Unified School District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
After the recommendations of a factfinding panel have been issued and considered in good faith, the parties may remain at impasse or return to the bargaining table until they reach agreement; p. 7. more or view all topics or full text.
253202112/11/00

900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Board's conclusion that impasse under the EERA is, unlike NLRA impasse, a continuation of mutual dispute resolution efforts and not a signal that economic pressure tactics may begin, is a reasonable interpretation of the statutory scheme and not clearly erroneous. [142 Cal.App.3d at 199] As impasse under EERA's statutory scheme denotes a continuation in dispute resolution process, Board reasonably interpreted statute in finding a per se violation of the statutory duty of employers to participate in good faith in the impasse procedure. [142 Cal.App.3d at 200] Impasse may be declared only when meeting and negotiating have come to an end. Under statutory scheme, failure to meet and negotiate in good faith and failure to participate in good faith in the statutory impasse procedure are separate unlawful practices. [142 Cal.App.3d faith and failure to participate in good faith in the statutory impasse procedure are separate unlawful practices. [142 Cal.App.3d more or view all topics or full text.

900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The impasse procedures almost certainly were included in the EERA for the purpose of heading off strikes. Since they assume deferment of a strike at least until their completion, strikes before then can properly be found to be a refusal to participate in the impasse procedures in good faith and thus an unfair practice under section 3543.6(d). [24 Cal.3d at 8-9] more or view all topics or full text.
1157H Regents of the University of California (California Nurses Association)
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The declaration of impasse ends the parties' formal obligation to meet and confer under HEERA section 3571(c); the duty to meet and confer remains dormant unless revived by changed circumstances, such as significant concessions by either party; p. 3. Absent changed circumstances, the Board examines allegations of post-impasse bad faith bargaining under section 3571(e), rather than 3571(c); p. 3. more or view all topics or full text.
202711106/13/96
1141E Redwoods Community College District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
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. The statutory impasse resolution procedure was intended by the Legislature to protect the public from the disruption of public employee strikes by providing a method other than a work stoppage for resolving a deadlock in bargaining; p. 15, proposed dec. more or view all topics or full text.
202704802/28/96
1092E Marin Community College District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
No genuine impasse where negotiations have stalled as a result of bad faith negotiations; p. 85, proposed dec. more or view all topics or full text.
192607003/21/95
1010H California State University (California Faculty Association)
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
There is no maximum period of time within which a party must request factfinding; pp. 3-4, dismissal letter. more or view all topics or full text.
172414809/02/93
0815E South Bay Union School District * * * OVERRULED IN PART by Sweetwater Education Association (2014) PERB Order No. IR-58
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The Board will dismiss allegation that the Association violated section 3543.6(c) when alleged events occurred during the period the parties were engaged in the statutory impasse procedures. Appropriate inquiry is whether conduct violated section 3543.6(d); p. 2. more or view all topics or full text.
142111806/13/90
0728E Compton Community College District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
The possibility that employees engaged in a spontaneous protest (sick out), without other evidence, will not support a charge that the union refused to participate in the impasse procedures in good faith; pp. 69-70, proposed dec. more or view all topics or full text.
132007604/04/89
0326E Oakland Unified School District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
No impasse where parties have stalemated as result of bad faith bargaining; p. 43. more or view all topics or full text.
71419507/11/83
0277E Westminster School District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
No refusal to bargain or participate in impasse where statements at public meeting did not constitute negotiations; p. 12. more or view all topics or full text.
71403412/31/82
0206E Moreno Valley Unified School District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
Unlawful unilateral actions during impasse procedures [3543.5(e)] are also violations of duty to negotiate in good faith [3543.5(c)] because violations during impasse frustrate purposes of subsection (c). Mediation remains fundamentally a continuation of the negotiations process; p. 12. more or view all topics or full text.
61310704/30/82
1004E Saddleback Community College District
900.1000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General
No violation of section 3543.5(e) where District refused to meet with factfinder after 30 day period where no other evidence that District frustrated the factfinding process; p. 2, warning letter. more or view all topics or full text.
172411706/25/93