Decision 2009M – Kings In-Home Supportive Services Public Authority

Charge stated a prima facie case of premature declaration of impasse by employer. Under employer’s local rules adopted pursuant to MMBA, “impasse” means that the parties “have reached a point in their meeting and conferring in good faith on a dispute over matters within the scope of their representation at which their differences in position are so substantial or prolonged that future meetings would be futile.” Where parties participated in a series of productive bargaining sessions in which both parties made significant bargaining concessions at each session, allegations did not support premise that the difference in the parties’ respective positions were so substantial or prolonged that future meetings would be futile. Failure of employer to afford the union an opportunity to respond to the employer’s last offer indicates an intent to subvert the negotiating process and generally demonstrates the lack of a genuine desire to reach agreement. Union’s willingness to bargain is not dispositive of the issue of whether or not impasse has occurred. A holding that impasse cannot exist as long as one party desires to continue bargaining to reach an agreement is fundamentally inconsistent with local rules that permit either party to allow any party to negotiations to declare impasse and request an impasse meeting. Such a holding would allow any party to negotiations to prevent impasse and would render the local impasse procedure rule that either party may declare impasse meaningless. 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.

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.

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.

At the charge processing stage, the burden to provide specific allegations of fact, which demonstrate a prima facie case that an unfair practice has been committed, is on the charging party. Additional facts provided by the respondent which expand the factual picture in the case and which were not contradicted by the charging party may be considered by PERB in determining whether the charge should be dismissed. The charging party does not, however, also have the burden of producing evidence of a prima facie case at this stage based on PERB Regulation 32620(b)(5). The single question at the charging stage is whether the charge alleged facts which, if true, constitute evidence of a violation. The regulations were designed to permit a determination that the facts as alleged in the charge state a legal cause of action and that the charging party is capable of providing admissible evidence in support of the allegations.

At the charge processing stage, the burden to provide specific allegations of fact, which demonstrate a prima facie case that an unfair practice has been committed, is on the charging party. Additional facts provided by the respondent, and summarized in the warning letter, which expand the factual picture in the case and which were not contradicted by the charging party may be considered by PERB in determining whether the charge should be dismissed. The charging party does not, however, also have the burden of producing evidence of a prima facie case at this stage based on PERB Regulation 32620(b)(5). The single question at the charging stage is whether the charge alleged facts which, if true, constitute evidence of a violation. The regulations were designed to permit a determination that the facts as alleged in the charge state a legal cause of action and that the charging party is capable of providing admissible evidence in support of the allegations.