All notes for Subtopic 900.04000 – During Impasse
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A507M | City of Stockton 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse MMBA section 3505.4, subdivision (a) and PERB’s implementing regulation (PERB Reg. 32802) provide two alternate deadlines for a union to request factfinding: (1) Not sooner than 30 days, but not more than 45 days, following the appointment or selection of a mediator pursuant either to the parties’ agreement to mediate or a mediation process required by a public agency’s local rules; or (2) If the dispute was not submitted to mediation, not later than 30 days following the date that either party provided the other with written notice of a declaration of impasse. (pp. 4-5.) more or view all topics or full text. | 48 | 97 | 12/21/23 |
| A506M | City of Compton 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse “PERB’s review of a factfinding request is limited to determining whether the request satisfies the procedural requirements of MMBA section 3505.4 and PERB Regulation 32802.” (County of Santa Clara (2020) PERB Order No. Ad-483-M, p. 4, citing City of Oakland (2018) PERB Order No. Ad-462-M, p. 4.) PERB does not evaluate whether the parties are in fact at impasse. (County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4.) Nor is it required to determine whether the impasse concerns a matter within the scope of representation. (City of Oakland, supra, PERB Order No. Ad-462-M, p. 6.) Instead, PERB’s inquiry is limited to determining whether (1) there was “a written declaration of impasse from either party, or the appointment or selection of a mediator,” and (2) the factfinding request was timely filed after one of these triggering events. (County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4, quoting Santa Cruz Central Fire Protection District (2016) PERB Order No. Ad 436-M, p. 5 (Santa Cruz).)Here, it was undisputed that AFSCME gave the City a written declaration of impasse and filed its factfinding request with PERB within 30 days of the impasse declaration, thereby satisfying the procedural requirements under MMBA section 3505.4, subdivision (a) and PERB Regulation 32802, subdivision (a)(2). The City argued, however, that PERB should have denied AFSCME’s factfinding request as premature because the parties were not actually at impasse. But issues of whether a party bargained in bad faith, including whether a party properly declared impasse, must be decided through unfair practice proceedings. (See City of Folsom (2015) PERB Order No. Ad-423-M, pp. 5-6.) “PERB's unfair practice proceedings are better suited to resolving the often complex legal and factual issues raised by unfair practice allegations and for protecting the parties' rights to notice and meaningful opportunity to be heard before issues of liability are decided.” (Id. at p. 6, citing City and County of San Francisco (2014) PERB Order No. Ad-415-M, pp. 13 14.) PERB has reiterated on multiple occasions that in resolving a request for factfinding, it does not evaluate whether the parties are in fact at impasse. (See, e.g., County of Santa Clara, supra, PERB Order No. Ad-483-M, p. 4; City of Salinas (2018) PERB Order No. Ad-457-M, p. 6; Santa Cruz, supra, PERB Order No. Ad-436-M, pp. 6-7.) The City’s appeal failed to establish any reason for a different result. more or view all topics or full text. | 48 | 80 | 11/06/23 |
| A445M | City of Watsonville 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse. In situations where it is the employer who has provided the employee organization with a written notice of a declaration of impasse, it is incumbent on the employee organization to keep track of the statutory window period and to file its request for factfinding within that period. Employee organizations’ factfinding request was untimely because it was filed more than one year after the organizations initially provided the city with a written declaration of impasse and the organizations never withdrew the declaration. Neither the parties’ post-impasse conduct nor MMBA section 3505.7’s requirement that unions and employers meet and confer prior to the public agency’s adoption of its annual budget revived the employee organizations’ right to request factfinding upon reaching a second impasse in the same round of negotiations. more or view all topics or full text. | 42 | 9 | 06/27/17 |
| A445M | City of Watsonville 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The timeliness of an employee organization’s request for factfinding is properly based upon an initial written notice of a declaration of impasse. In situations where an employee organization has provided the employer with a written notice of a declaration of impasse, and it later believes that the parties are no longer at impasse, it is incumbent on the employee organization to withdraw its declaration of impasse. In situations where it is the employer who has provided the employee organization with a written notice of a declaration of impasse, it is incumbent on the employee organization to keep track of the statutory window period and to file its request for factfinding within that period. Employee organizations’ factfinding request was untimely because it was filed more than one year after the organizations initially provided the city with a written declaration of impasse and the organizations never withdrew the declaration. Neither the parties’ post-impasse conduct nor MMBA section 3505.7’s requirement that unions and employers meet and confer prior to the public agency’s adoption of its annual budget revived the employee organizations’ right to request factfinding upon reaching a second impasse in the same round of negotiations. more or view all topics or full text. | 42 | 9 | 06/27/17 |
| A483M | County of Santa Clara 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse PERB’s review of a factfinding request is limited to determining whether the request satisfies the procedural requirements of MMBA section 3505.4 and PERB Regulation 32802. That is, PERB does not evaluate whether the parties are in fact at impasse. Nor is it required to determine whether the impasse concerns a matter within the scope of representation. Rather, PERB’s inquiry is limited to determining whether (1) there was “a written declaration of impasse from either party, or the appointment or selection of a mediator,” and (2) the factfinding request was timely filed after one of these triggering events. Here, it is undisputed that the Council gave the County a written declaration of impasse on September 24 and filed its factfinding request within 30 days of the impasse declaration, thereby satisfying the procedural requirements under MMBA section 3505.4, subdivision (a) and PERB Regulation 32802(a)(2). The Board rejected the County’s proffered interpretation of MMBA section 3504.4, subdivision (a) as inconsistent with PERB Regulations. Contrary to the County’s contention, MMBA section 3505.4, subdivision (a) does not condition factfinding on the completion of mediation mandated by an agency’s local rules. Rather, the selection or appointment of a mediator under either “the parties’ agreement to mediate or a mediation process required by a public agency’s local rules” establishes the applicable window period within which the employee organization must request factfinding. Here, no mediator was selected or appointed. (pp. 4-6.) more or view all topics or full text. | 45 | 69 | 12/17/20 |
| 2523C | El Dorado County Superior Court 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. | 41 | 152 | 03/20/17 |
| 2523C | El Dorado County Superior Court 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. | 41 | 152 | 03/20/17 |
| A462M | City of Oakland 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Factfinding is available for any dispute over a matter within the scope of representation so long as the employee organization’s factfinding request complies with the statutory and regulatory prerequisites. (pp. 4-5) The appropriate avenue to resolve whether a subject is within the scope of representation is through the unfair practice process where a full factual record may be developed. (pp. 6-7) Where neither PERB nor the courts have previously determined whether the subject of essential employee status is outside the scope of representation, the Office of the General Counsel will not make a preliminary scope of representation decision as part of its determination of whether to approve the factfinding request. (p. 6) more or view all topics or full text. | 42 | 141 | 04/30/18 |
| A436M | Santa Cruz Central Fire Protection District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse It is up to the union to keep track of the statutory window period and to file its request for factfinding within that period. Without an actual agreement to mediate, it is incumbent on the union to file its request for factfinding during the initial 30-day window in order to avoid the risk of forfeiting its opportunity to do so. A subsequent agreement to mediate coming after the initial window period for filing a request for factfinding did not alleviate the union’s responsibility to meet the statutory and regulatory deadline to request factfinding. more or view all topics or full text. | 40 | 174 | 04/26/16 |
| A423M | City of Folsom 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Factfinding is available for any dispute over any matter within the scope of representation, so long as the employee organization’s request is timely and the dispute is not subject to statutory exceptions. Factfinding is not limited to disputes over a comprehensive memorandum of understanding. Because the representative’s request was timely, involved a dispute over negotiable matters and did not fall within one of the statutory criteria, the Board affirmed an administrative determination that factfinding was appropriate. PERB does not conduct or oversee the factfinding process nor determine the issues to be presented at factfinding. The Board’s role is generally limited to whether a request meets the statutory criteria. Because the representative’s request was timely, involved a dispute over negotiable matters and did not fall within one of the statutory criteria, the Board affirmed an administrative determination that factfinding was appropriate. The Board declined to resolve joint employer issues raised in a factfinding request when the same issues were pending investigation in unfair practice proceedings. Unfair practice proceedings are better-suited for complex legal and factual issues and for protecting the parties’ right to notice and meaningful opportunity to be heard before issues of liability are decided. more or view all topics or full text. | 39 | 184 | 06/11/15 |
| A426M | Lassen County In-Home Supportive Services Public Authority 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The date of the “appointment or selection of a mediator,” which triggers the window period for a union to request factfinding under MMBA, is not rescinded when the mediator notifies the parties he or she is unable to keep the original mediation date but requests additional dates the parties would be available in case he or she in unable to find a replacement. The responsibility to request factfinding in a timely manner is therefore the sole responsibility of the employee organization. A mediator’s requesting additional dates from the parties is inconsistent with a rescission of the original appointment. It is up to the union to keep track of the statutory window period for filing its request for factfinding, regardless of whether mediation dates are changed. more or view all topics or full text. | 40 | 20 | 06/25/15 |
| A410M | County of Contra Costa 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. The plain language of EERA and HEERA extends factfinding to negotiations over all matters within the scope of representation, not just to negotiations over new or successor CBAs. An “MOU” signifies a written agreement on any matter within the scope of representation. It can address a single subject, the effects of a decision within the managerial prerogative, mid-term negotiations, or side letters of agreement. The term “MOU” is not limited to a document that results from negotiations for a comprehensive agreement of a set duration. All negotiations are negotiations “for an MOU.” At the time AB 646 was passed, the Legislature is presumed to have known that PERB applied existing impasse resolution procedures to single-issue bargaining disputes, mid-term contract negotiations, and effects bargaining disputes, and that the duty of parties to meet and confer in good faith under MMBA covers more than simply the duty to meet and confer over the terms of an MOU. The Legislature did not intend that MMBA factfinding be cabined to the narrow classification of bargaining disputes over comprehensive MOUs. more or view all topics or full text. | 38 | 154 | 04/16/14 |
| A419M | City and County of San Francisco 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse PERB is authorized to administer the MMBA through the factfinding process, not merely through unfair practice proceedings. PERB's authority to appoint a factfinding panel derives from MMBA section 3505.4, and is not predicated on an alleged violation of the MMBA. Neither the administrative determination ordering the parties to factfinding nor a ruling by the Board itself on the City’s appeal of the administrative determination is an advisory opinion. The plain meaning of AB 646 did not limit factfinding procedures only to impasses in negotiations for comprehensive MOUs. The placement of the factfinding language of AB 646 following the portion of MMBA section 3505 concerning the duty to meet and confer in good faith does not mean that AB 646 applies only to comprehensive MOUs. The enumeration in MMBA section 3505.4(c) of eight criteria that the factfinding panel must consider does not mean that factfinding applies only to comprehensive MOUs. The MMBA and PERB’s regulations only condition factfinding on a declaration of impasse by one of the parties, and neither the MMBA nor PERB’s regulations provide for a factfinding request being mooted by subsequent negotiations. Impasse can be “undeclared,” since changed circumstances, such as significant concessions in negotiations by either party, may break an impasse. It is incumbent on the party declaring impasse under MMBA to withdraw its declaration if it believes impasse has been broken by changed circumstances. more or view all topics or full text. | 39 | 72 | 11/24/14 |
| A414M | County of Fresno 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The plain meaning of AB 646 did not limit MMBA factfinding procedures only to impasses in negotiations for comprehensive MOUs. PERB's authority to appoint a factfinding panel derives from MMBA section 3505.4, and is not predicated on an alleged violation of the MMBA. An order directing the parties to factfinding, after PERB concluded that factfinding applied to the dispute, does not necessarily resolve the issues involved in an unfair practice case alleging unilateral change prior to the exhaustion of impasse. Factfinding order, unlike a remedy in an unfair practice proceeding, does not result in a determination of liability for violation of MMBA, and therefore carries no potential for order to rescind or make whole. more or view all topics or full text. | 39 | 8 | 06/17/14 |
| 2271M | City of Davis 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. | 37 | 12 | 06/08/12 |
| 1030E | San Mateo County Community College District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The Board affirmed the ALJ's finding that the District during mediation violated EERA section 3543.5(e) when it refused to participate in the impasse procedures in good faith; p. 14. more or view all topics or full text. | 18 | 25027 | 12/28/93 |
| 1010H | California State University (California Faculty Association) 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. | 17 | 24148 | 09/02/93 |
| 0803E | Los Angeles Unified School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Boycott of required extracurricular duties during impasse is in violation of EERA; p. 5. more or view all topics or full text. | 14 | 21082 | 03/30/90 |
| 0603E | Lake Elsinore School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse 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. | 11 | 18022 | 12/30/86 |
| 0537Ea | El Dorado Union High School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Strikes are unprotected during impasse resolution process, and violate 3543.6(d) but not 3543.6(c). more or view all topics or full text. | 10 | 17057 | 02/03/86 |
| 0537Eb | El Dorado Union High School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Board's use of "post-impasse" means during impasse resolution process. more or view all topics or full text. | 10 | 17095 | 05/05/86 |
| 0178E | Oakland Unified School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse Employer maintenance of hard bargaining refusal during impasse on union's notice-of-layoff proposal is not bad faith. Nothing in EERA requires parties to make concessions on every position. more or view all topics or full text. | 5 | 12149 | 11/02/81 |
| 1004E | Saddleback Community College District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse The 30-day timeline referred to in EERA section 3548.3(a) is waived only upon agreement by both parties. Neither party has a statutory duty to agree to such a waiver; p. 2, warning letter. more or view all topics or full text. | 17 | 24117 | 06/25/93 |
| 0115E | Redwood City School District 900.04000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; During Impasse No finding of refusal to participate in impasse proceeding found where no evidence of "persistent refusal" and only one delay of unexplained length; pp. 14-15, proposed dec. more or view all topics or full text. | 4 | 11019 | 02/07/80 |