Decision 2341M – City of San Jose

Under the totality of circumstances test used for surface bargaining allegations, one indicator of bad faith may be sufficient to state a prima facie case where the respondent’s conduct was sufficiently egregious to frustrate negotiations or undermine the authority of the representative.

Charging party alleged sufficient facts to state a prima facie case that the City violated its duty to bargain in good faith by insisting to impasse and imposing proposal to that illegally impaired vested employee rights to accrued sick leave compensation.

A party may not refuse to discuss a mandatory subject, when requested to do so, by insisting on a proposal to postpone negotiations on that subject until agreement has been reached on others. City's alleged insistence to impasse on reopener proposals constituted “piecemeal” or “fragmented” bargaining tactic that arbitrarily limited the range of possible compromises by declaring certain mandatory subjects of bargaining off limits for discussion until complete agreement has been reached on all other subjects.

Charging party alleged sufficient facts to support an inference that City rushed to impasse to obtain concessions from its employees, without engaging in a sincere effort to reach agreement with their representative. Charging party alleged, among other things, that City provided only two rounds of comprehensive or "package" proposals before declaring impasse; that the City failed to explore possible compromise, even when exclusive representative offered significant concessions in line with City’s own demands; and, that the terms included in the City's final pre-impasse offer differed in only insignificant respects from its well-publicized bargaining demands and opening proposal.

City’s simultaneous demand for ten percent reduction in “total employee compensation,” coupled with its refusal to engage in substantive discussion of “retirement reform,” where retirement benefits was one component of “total employee compensation,” made it impossible for union to determine the full magnitude of concessions being demanded.

Charging party stated a prima facie case of surface bargaining where it alleged that the respondent engaged in dilatory tactics, by refusing to discuss certain subjects of bargaining, while proceeding as rapidly as possible to impasse and the imposition of terms on all other subjects, as a way to extract concessions from employees without engaging in sincere effort to reach agreement with their representative.

Evidence of separate unfair practices, including the respondent’s conduct at or away from the bargaining table, is part of the totality of circumstances that may indicate bad faith in support of a surface bargaining allegation. Where a surface bargaining charge includes factual allegations that would constitute per se violations of the duty to bargain, the charging party may, in effect, allege those facts twice – once as standalone or “per se” violations, and once as indicators of the respondent’s bad faith within the totality of circumstances.

A premature, unfounded, or insincere declaration of impasse may serve as evidence of bad-faith in support of a surface bargaining allegation. Facts indicating that a party has rushed to impasse may include the number of times the parties met and the number of proposals exchanged, the number of matters agreed to both before the first declaration of impasse and during any mediated negotiations, as well as any significant concessions offered or agreed to before the respondent's "final" or "second" declaration of impasse.

Where charging party states a viable, i.e. non-frivolous, legal theory concerning an unsettled matter of law outside PERB’s jurisdiction, the proper course for the Board on review of a dismissal of the charge is to reverse and remand for issuance of a complaint, so that the novel issues may be decided upon a full evidentiary record and with the benefit of briefing by the parties. Here, charging party alleged sufficient facts to state a prima facie case and articulated a viable theory that the City had insisted to impasse and imposed a proposal that illegally impaired vested employee rights to accrued sick leave compensation.

As part of its de novo review of an appeal, the Board may address issues or apply legal analysis not urged by the parties.

Board may take administrative notice of, and supplement the record of an appeal with, judicial opinions. In determining whether the charging party had stated a prima facie case of surface bargaining, the Board took administrative notice of, and supplemented the record of charging party’s appeal with, a superior court decision regarding the legality of the City’s policy, which the charging party alleged contained an illegal subject of bargaining.