Decision 2074M – City of Clovis
SA-CE-513-M
Decision Date: October 30, 2009
Decision Type: PERB Decision
Description: The Complaint alleged that the City violated its duty to bargain in good faith by failing to implement its last, best, and final offer.
Disposition: The Board reversed the ALJ’s finding that the Union had tendered a post-impasse acceptance of the City’s last, best and final offer – instead finding insufficient evidence in the record of a valid acceptance. The Board also found no evidence that an agreement had been reduced to writing and ratified by the City as required by the MMBA. Furthermore, although the City is permitted to implement its last, best and final offer upon properly reaching impasse, it is not required to do so. Finally, the Board refused to make findings on the issue of whether or not changed circumstances existed that reinstated the City’s bargaining obligations, as this issue was an unalleged violation and the criteria for consideration of an unalleged violation had not been met.
Perc Vol: 33
Perc Index: 179
Decision Headnotes
601.05000 – Other
MMBA section 3505.4 provides that once an impasse has been properly reached, a public agency “may implement its last, best and final offer.” The provision is permissive, not mandatory. The agency is not obligated to implement the last, best, and final offer. No binding agreement existed, as the Union failed to present sufficient evidence that it had tendered a post-impasse acceptance of the City’s last, best, and final offer. Furthermore, even if the Union had shown valid acceptance of the last, best, and final offer, MMBA section 3505.1 requires the agreement be reduced to writing and ratified by the governing agency before it will become binding on the parties. Here, the record was void of any evidence that an agreement was reduced to writing and ratified by the City.
605.05000 – Other
MMBA section 3505.4 provides that once an impasse has been properly reached, a public agency “may implement its last, best and final offer.” The provision is permissive, not mandatory. The agency is not obligated to implement the last, best, and final offer. No binding agreement existed, as the Union failed to present sufficient evidence that it had tendered a post-impasse acceptance of the City’s last, best, and final offer. Furthermore, even if the Union had shown valid acceptance of the last, best, and final offer, MMBA section 3505.1 requires the agreement be reduced to writing and ratified by the governing agency before it will become binding on the parties. Here, the record was void of any evidence that an agreement was reduced to writing and ratified by the City.
608.08000 – Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
MMBA section 3505.4 provides that once an impasse has been properly reached, a public agency “may implement its last, best and final offer.” The provision is permissive, not mandatory. The agency is not obligated to implement the last, best, and final offer. No binding agreement existed, as the Union failed to present sufficient evidence that it had tendered a post-impasse acceptance of the City’s last, best, and final offer. Furthermore, even if the Union had shown valid acceptance of the last, best, and final offer, MMBA section 3505.1 requires the agreement be reduced to writing and ratified by the governing agency before it will become binding on the parties. Here, the record was void of any evidence that an agreement was reduced to writing and ratified by the City.
900.01000 – In General
MMBA section 3505.4 provides that once an impasse has been properly reached, a public agency “may implement its last, best and final offer.” The provision is permissive, not mandatory. The agency is not obligated to implement the last, best, and final offer. No binding agreement existed, as the Union failed to present sufficient evidence that it had tendered a post-impasse acceptance of the City’s last, best, and final offer. Furthermore, even if the Union had shown valid acceptance of the last, best, and final offer, MMBA section 3505.1 requires the agreement be reduced to writing and ratified by the governing agency before it will become binding on the parties. Here, the record was void of any evidence that an agreement was reduced to writing and ratified by the City.
1107.04000 – Unalleged Violations
The issue of whether or not the Union’s telephone call to the City constituted a “changed circumstance” that revived the City’s obligation to bargain cannot be considered as it was not alleged in the charge, was not alleged in the complaint, was not introduced at hearing, and was not raised by the Union until its post- hearing brief. The City was not provided notice, or adequate opportunity to fully litigate the issue, and did not have the opportunity to examine or cross-examine witnesses on the issue.