Decision 2360M – County of Riverside

Any argument that PERB should refrain from enforcing the MMBA by ordering a back-pay remedy, because such an order is unconstitutional, cannot be considered by this agency. The holding of County of Riverside (2003) 30 Cal.4th 278 with respect to private arbitration panels does not divest PERB of its jurisdiction to remedy violations of the MMBA. Having failed to request the Board agent’s recusal immediately when the County allegedly had reason to believe she was biased against it at the outset of the investigation of the unfair practice charge, the County may not make such request in exceptions to the ALJ’s proposed decision.

An employer is not privileged to implement an agreed-upon concession made as a tentative agreement unless there was a legitimate impasse reached on negotiations as a whole, especially where the parties were exchanging package proposals at this stage in their bargaining.

The lack of impasse was demonstrated by SEIU unequivocally signaling to the County that it had room to move on the negotiable issues of stewards’ pay and overtime, after SEIU had moved on its overtime proposal in a direction favorable to the County. Also, the County acknowledged in a side-bar conversation with SEIU that it looked like they were making progress on the overtime issue. The County declared impasse over comparatively minor issues that it had reason to believe SEIU would make further movement on, and set an arbitrary deadline in order to impose the elimination of step increases, not because the possibilities for compromise had been exhausted. The parties signed 18 tentative agreements on the same day the County declared impasse. The Board rejected the County’s argument that it possessed the absolute right to determine an impasse in negotiations and that its determination of impasse is unreviewable by PERB. Pursuant to PERB’s unquestioned authority to determine whether unfair practices have occurred, it necessarily has the authority to determine whether an impasse declared by either party is genuine. The lack of subjective bad faith in the negotiations leading up to the County’s impasse declaration does nothing to absolve it of liability for implementing a unilateral change in wages before impasse was genuinely reached. The Board rejected the County’s claim of economic urgency, finding that such economic exigency provides no justification for suspending the duty to bargain in good faith, and that an employer’s deadline such as the beginning of a budget year or the expiration of an MOU is not an excuse to avoid bargaining in good faith.