Decision 1516S – State of California (Department of Personnel Administration)

SA-CE-1349-S

Decision Date: April 7, 2003

Decision Type: PERB Decision

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Perc Vol: 27
Perc Index: 52

Decision Headnotes

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.01000 – Outright Refusal to Bargain

Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.08000 – Conduct Outside of Negotiations; Prior UPs

Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case

Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. Board agent, therefore, properly applied a totality of circumstances test to the allegations in this case.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.07000 – Inconsistent Position Taken; W/ds or Renege on Tentative Agreement

PECG did not provide sufficient evidence of surface bargaining because the State’s challenged responses were in answer to legislative concerns and PECG made no showing that the Department of Finance was aware of provisions of the parties’ tentative agreement. Since repudiation of an agreement on a single issue is insufficient by itself to show bad faith and reneging on ground rules is only one indicator of bad faith, the union did not establish a violation by the State with the single allegation of reneging on the ground rules by its alleged lack of support for the tentative agreement. Per se test, for establishing that a party bargained in bad faith, is appropriate to use for outright refusal to bargain or a unilateral change. Not the case here where the State’s comments to press simply responded to concerns expressed by Assemblyman Cox and the Legislative Counsel over constitutionality of contracting-out provision, and the Department of Finance’s (DOF) May budget revisions were produced without any showing of the DOF’s knowledge of the tentative agreement. In this case, the State’s response to a legislator’s questions that it would “take another look at” the constitutionality of a provision of the MOU does not, by itself, repudiate the tentative agreement. On that basis, this case can be distinguished from Placerville Union School District (1978) PERB Decision No. 69 and Kern High School District (1998) PERB Decision No. 1265 which both involved blatant repudiation of tentative agreements. Nor do the statements “torpedo” the agreement as prohibited by Alhambra City and High School Districts (1986) PERB Decision No. 560.