All notes for Subtopic 900.04000 – During Impasse

DecisionDescriptionPERC Vol.PERC IndexDate
2523C El Dorado County Superior Court
900.4000: 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.
4115203/20/17
2523C El Dorado County Superior Court
900.4000: 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.
4115203/20/17
A462M City of Oakland
900.4000: 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.
4214104/30/18
A436M Santa Cruz Central Fire Protection District
900.4000: 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.
4017404/26/16
A423M City of Folsom
900.4000: 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.
3918406/11/15
A426M Lassen County In-Home Supportive Services Public Authority
900.4000: 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.
402006/25/15
A410M County of Contra Costa
900.4000: 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.
3815404/16/14
A419M City and County of San Francisco
900.4000: 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.
397211/24/14
A414M County of Fresno
900.4000: 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.
39806/17/14
2271M City of Davis
900.4000: 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.
06/08/12
1030E San Mateo County Community College District
900.4000: 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.
182502712/28/93
1010H California State University (California Faculty Association)
900.4000: 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.
172414809/02/93
0803E Los Angeles Unified School District
900.4000: 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.
142108203/30/90
0603E Lake Elsinore School District
900.4000: 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.
111802212/30/86
0537Ea El Dorado Union High School District
900.4000: 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.
101705702/03/86
0537Eb El Dorado Union High School District
900.4000: 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.
101709505/05/86
0178E Oakland Unified School District
900.4000: 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.
51214911/02/81
1004E Saddleback Community College District
900.4000: 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.
172411706/25/93
0115E Redwood City School District
900.4000: 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.
41101902/07/80