All notes for Subtopic 900.05000 – Post-Impasse

DecisionDescriptionPERC Vol.PERC IndexDate
2603M City of Yuba City
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
No violation of MMBA section 3505.7’s requirement of holding a “public hearing regarding the impasse” before imposing LBFO where the employer provided adequate notice to the public that it intends to consider imposing terms and conditions on employees, and to allow public comment concerning the proposed imposition. more or view all topics or full text.
439012/12/18
2603M City of Yuba City
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Even if the employer complies with the MMBA’s requirement of holding a public hearing regarding the impasse, the manner in which the hearing proceeds, statements made by the employer’s representatives and governing body during the hearing, and the decision ultimately imposed may be evidence of whether the employer has acted with the requisite good faith during negotiations and impasse procedures. more or view all topics or full text.
439012/12/18
2582M City of Davis
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
The factfinder’s recommendations are a crucial element in the legislative process structured to bring about peacefully negotiated agreements, and so both parties must consider the recommendations in good faith to determine whether there is a basis for settlement, or for such accommodations, concessions, or compromises that might lead to settlement. However, either party may decide in good faith that the report does not provide a basis for settlement. more or view all topics or full text.
435109/05/18
2582M City of Davis
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Employer’s failure to adopt the factfinding report’s recommendations is not unlawful, and employer’s failure to provide a full explanation in its resolution rejecting the recommendations was not, without more, evidence of a refusal to consider the report in good faith. more or view all topics or full text.
435109/05/18
2523C El Dorado County Superior Court
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-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
2523C El Dorado County Superior Court
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-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
2571M City of San Ramon
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
An employer must segregate or excise from its imposed terms language purporting to ‘establish a memorandum of understanding’ or other agreement, as well as language that is reasonably susceptible to such an interpretation. An employer also cannot impose new terms for a set duration. Unilaterally imposing new terms for a set duration places an obstacle in the path of good faith bargaining. (Roosevelt Memorial Medical Center (2006) 348 NLRB 1116, 1117.) Imposing a duration for new terms is also inconsistent with an employer’s affirmative duty to excise from its imposition any language susceptible to an unlawful interpretation. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 40.) Fresno amended the principles set forth in Rowland Unified School District (1994) PERB Decision No. 1053 and State of California (Department of Personnel Administration) (2010) PERB Decision No. 2130-S.) more or view all topics or full text.
43606/20/18
2461M County of Tulare
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
An employer has no affirmative obligation to implement its LBFO, especially where, as here, the union has not accepted the LBFO and has manifested clear objection to the proposed change. The employer’s only obligation is to refrain from implementing changes not reasonably comprehended in its LBFO. Where the employer has not changed anything but simply maintained the status quo after impasse, it has not violated its duty to meet and confer in good faith before implementing changes in negotiable terms and conditions of employment. more or view all topics or full text.
408110/30/15
2480M County of Trinity (United Public Employees of California, Local 792)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Because bargaining impasse was not broken, the bargaining obligation was not revived and the exclusive representative did not violate its duty to bargain in good faith by going out on strike; impasse suspends the parties’ obligation to bargain only until “changed circumstances” demonstrate that an agreement may be possible; the making of “concessions” is key to finding a change in circumstances sufficient to revive the duty to bargain; a handful of non-substantive e-mail exchanges exploring the parties’ interest in and availability for a meeting did not rise to the level of changed circumstances sufficient to revive the bargaining obligation, as there was no evidence that either party made a substantial concession from an earlier position and was genuinely committed to a new bargaining position; because the parties were at impasse, the employer had the option to refuse the exclusive representative’s request to meet, to respond to the request with a concession substantial enough to revive the bargaining obligation or to unilaterally impose its last, best and final offer; by instead insisting that the duty to bargain was revived, the employer foreclosed all its options. more or view all topics or full text.
4017104/25/16
A436M Santa Cruz Central Fire Protection District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
A party may “undeclare” impasse by clearly withdrawing its declaration of impasse. The Board will not infer a withdrawal of a party’s declaration of impasse. Union failed to state its withdrawal clearly. more or view all topics or full text.
4017404/26/16
2414M County of Tulare * * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
While employers are privileged to impose terms and conditions of employment on a prospective basis they cannot do so retroactively nor impose terms that abrogate outstanding obligations under an existing agreement. Parties to an agreement may expressly agree to limit an employer’s right to impose terms at impasse, or impliedly achieve that same result by agreeing to terms and conditions that do not mature until after the agreement has expired. Where the parties have agreed that contractual rights will survive expiration of their agreement, the employer may not impose terms and conditions that abrogate those rights. more or view all topics or full text.
3911102/26/15
2418M Fresno County In-Home Supportive Services Public Authority
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Bargaining proposals that would waive or limit statutory rights cannot be unilaterally imposed, even after bargaining in good faith to impasse. The Board reversed dismissal of allegation that employer committed a per se violation of the duty to bargain by imposing no strikes and Separability/savings language included in unratified tentative agreements. The statutory scheme for collective bargaining between equal partners prohibits the unilateral imposition of terms that waive or limit the statutory rights of employees and employee organizations, including the rights to engage in concerted activity and to strike. Employer was not authorized to impose unratified tentative agreement waiving the right to strike, even after bargaining in good faith to impasse. more or view all topics or full text.
3913303/30/15
A415M City and County of San Francisco
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
PERB has the authority under MMBA section 3505.4 to determine whether factfinding applies to the particular dispute in which the request for factfinding arises. In the course of responding to a factfinding request the Board has jurisdiction to decide all factual and legal issues pertinent to the request, even if those issues are also raised in an unfair practice case. In this case, it was unnecessary for the Board to resolve the overlapping legal and factual issues to determine that a request for factfinding was sufficient. more or view all topics or full text.
392808/19/14
A419M City and County of San Francisco
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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
A413M City of Redondo Beach
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Union's untimely request for factfinding pursuant to MMBA is not excused for good cause without explanation why once the request for factfinding was completed, an effort was not made to ensure that it was filed with PERB immediately. more or view all topics or full text.
3816805/16/14
2308M City of Santa Rosa
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Unilateral impositions after the completion of impasse procedures do not impose a collective bargaining agreement with a duration clause limiting negotiations for a specified period. more or view all topics or full text.
03/08/13
2268E Berkeley Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
The recoupment provision in the District’s prior agreement with BCCE was a non-mandatory subject, and consequently neither party was obliged to negotiate nor renew it. As a non-mandatory subject, the recoupment provision in the District’s prior agreement with BCCE was not part of the status quo on mandatory subjects. Thus, the recoupment provision did not survive expiration of that agreement, since only mandatory subjects are governed by EERA duty to make no change while negotiating or participating in impasse resolution procedures. more or view all topics or full text.
05/29/12
2271M City of Davis
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Implementation of furlough plan was reasonably comprehended within employer’s pre-impasse proposals, where plan as implemented changed span of time within which 12 furlough days must be taken from nearly 7 months to slightly over 5 months. more or view all topics or full text.
06/08/12
2130S State of California (Department of Personnel Administration)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Upon impasse, an employer may implement a term of agreement provision contained in its last, best and final offer (LBFO) unless implementation would waive or limit the union’s right to bargain should impasse be broken. No Dills Act violation when State employer did not implement the three-year term of agreement provision in its LBFO and, even if it had, the provision would not have waived or limited the union’s right to bargain upon breaking of impasse. Dills Act section 3517.8(b) allows the State employer to implement “any or all” of its LBFO upon impasse. The requirement that implemented terms be “reasonably comprehended” within the LBFO applies only to terms that are actually implemented; to apply the requirement to terms not implemented would be contrary to the plain language of section 3517.8(b). Thus, the State did not violate the Dills Act by failing to implement a paid union leave provision contained in its LBFO. more or view all topics or full text.
3413709/20/10
2100M County of Sonoma
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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. A proposal to increase the mileage reimbursement rate for state employees constitutes an expenditure of funds and, therefore, such an increase in a LBFO may not be implemented until approved by the Legislature. more or view all topics or full text.
337104/07/09
1416E Orange Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Once impasse is reached either party may refuse to negotiate further and the employer is free to implement changes reasonably comprehended with its last, best and final offer; p. 8. Although the duty to bargain is dormant while the parties are participating in impasse procedures, the employer or the employee organization can be required to negotiate further in good faith when the impasse is broken by a change in circumstances; p. 8. The duty to bargain is revived when one party proposes a concession from its earlier bargaining position which indicates that agreement may be possible; p. 12. more or view all topics or full text.
253202112/11/00
1174H Trustees of the California State University (Academic Professionals of California)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Union violated HEERA section 3571.(d) when it refused to pursue reopener negotiations over health benefits through HEERA's statutory impasse procedure; pp. 25-26, proposed dec. more or view all topics or full text.
212801911/12/96
1157H Regents of the University of California (California Nurses Association)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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
1053E Rowland Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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. Not all terms and conditions of employment contained within a last, best and final offer may lawfully be implemented by an employer following impasse; p. 7, fn. 5. 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 demonstates that completion of impasse arises only if the association's proposals contain a concession from its earlier position which demonstates that right to bargain does not revive the district's duty to negotiate following impasse. Upon completion of impasse the duty to bargain is renewed when one party proposes a concession from its earlier bargaining position which indicates that agreement may be possible; pp. 11-12. more or view all topics or full text.
182512609/01/94
0968E Covina-Valley Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
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
0873E Charter Oak Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
The parties obligation after factfinding are contained in Modesto, No. 291 and include consideration of the recommendations in good faith to determine whether there is a basis for settlement, or for such accommodations, concessions, or compromises that might lead to settlement; p. 9. Further discussions between the parties is not required and each case will be decided on its own merits; p. 9 and fn. 5. Temple City No. 843 to the extent it discusses consideration of the factfinding report is overruled. more or view all topics or full text.
152206704/04/91
0841E Temple City Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Right to implement "last, best, and final" offer is dependent on having first bargained in good faith through exhasution of impasse procedures. more or view all topics or full text.
142118609/20/90
0719H California State University, (United Professors of California)
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
As no showing that "final" report ever issued, Board found no violation by respondent's failure to make public a factfinding report which arose out of impasse proceedings. more or view all topics or full text.
132003801/19/89
0291E Modesto City Schools
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
Once impasse procedures have been concluded, PERB has no authority to recertify impasse or reinvoke impasse procedures, nor is any purpose likely to be served by the reimposition of procedures which have already failed; p. 38. District's implementation of policies not comprehended within its last best offer is a violation; p. 48. District's failure to consider the factfinder's report or the Association's post-factfinding concessions constitutes refusal to bargain in good faith in violation of 3543.5(a), (b) and (c). Additionally, District's failure to consider the factfinder's report also constitutes refusal to participate in good faith in impasse procedures in violation of 3543.5(d). more or view all topics or full text.
71409003/08/83
0206E Moreno Valley Unified School District
900.5000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse
District's implementation of last best offer following mutual declaration of impasse, but before exhaustion of impasse procedures is, absent affirmative defense, a per se unfair practice. EERA impasse procedures comtemplate a continuation of the bilateral negotiations process. Mediation is fundamentally a bargaining process; p. 5. more or view all topics or full text.
61310704/30/82