Decision 2380M – City of Selma

SA-CE-747-M

Decision Date: June 27, 2014

Decision Type: PERB Decision

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Perc Vol: 39
Perc Index: 11

Decision Headnotes

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

Surface bargaining allegation is reasonably contemplated within complaint allegations of bad faith bargaining. The City was therefore not denied due process by conclusion it had engaged in surface bargaining.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.01000 – In General

The City unilaterally changed matters within scope of representation when it imposed its LBFO requiring employees to contribute to CalPERS, and when it rescinded furloughs without having reached a bona fide impasse in negotiations.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

Since the City failed to object to the Association’s alleged insistence on negotiations covering a topic that was arguably not a mandatory subject of bargaining, the Association’s alleged conduct had no effect on the progress of bargaining.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.01000 – In General

Surface bargaining allegation is reasonably contemplated within complaint’s allegations of bad faith bargaining. The City was therefore not denied due process by conclusion it had engaged in surface bargaining. Where the City had presented its LBFO, and the Association asked for further negotiations, the City was clearly on notice of what the Association wanted to bargain about and cannot claim that the Association had a duty in this circumstance to identify the subjects it wanted to bargain about. Economic exigency does not suspend the duty to bargain in good faith. Nor is an employer’s deadline, such as the beginning of a budget year or the expiration of a memorandum of understanding (MOU), an excuse to avoid bargaining in good faith. The City was not justified in its rush to conclude bargaining, declare impasse and impose its LBFO prior to its adoption of its budget, especially where city council extended budget deadline. Budget exigencies may have consequences on an employer’s proposals, but do not suspend the duty to meet and confer in good faith.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.04000 – Failure to Explain Proposal

The City’s failure to explain a sudden and significant change in proposal that was presented as LBFO was one indicia of bad faith bargaining.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.06000 – Time Limit on Negotiations

The City’s claim that it was required to conclude bargaining in order to submit its annual budget to the city council was contradicted by the fact that the city council extended budget deadline. Alleged budget deadline did not excuse the City’s “rush to impasse.”

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.11000 – Failure to Provide Counter-Proposals

After the City declared impasse, it continued bad faith bargaining by refusing to meet with the Association to discuss Association’s counterproposals, thereby foreclosing the possibility of genuinely bridging the differences between them.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.16000 – Failure to Seek Clarification of Proposal

The City had a duty to seek clarification of the Association’s request to negotiate over the City’s LBFO and its failure to do so supported the Board’s conclusion that the City engaged in bad faith bargaining.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.03000 – Business Necessity; Employer Financial Position

Economic exigency does not suspend the duty to bargain in good faith. Nor is an employer’s deadline, such as the beginning of a budget year or the expiration of an MOU, an excuse to avoid bargaining in good faith.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.02000 – Declaration/Determination of Impasse

The City’s refusal to negotiate after presenting a revised bargaining proposal, the limited number of face-to-face bargaining sessions that preceded the declaration of impasse, and the City’s refusal to provide any explanation for its sudden change in its LBFO, considered together, indicates that the City prematurely declared impasse without bargaining in good faith. An administrative law judge must have latitude to make reasonable inferences, based on the totality of the circumstances in the record, of whether future negotiations would be futile when determining if impasse was prematurely declared.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.01000 – In General

The concept of surface bargaining is reasonably contemplated within allegations of bad faith bargaining.

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
1203.01000 – In General

The City prematurely declared impasse and imposed its LBFO requiring employees to contribute to CalPERS and rescinding furlough days is ordered to return to the status quo ante, make employees whole for out-of-pocket losses, with interest, and bargain with the Association on request.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

The City prematurely declared impasse and imposed its LBFO requiring employees to contribute to CalPERS and rescinding furlough days and is ordered to return to the status quo ante, make employees whole for out-of-pocket losses, with interest, and bargain with the Association on request.