Decision 2427M – County of San Luis Obispo

The lawfulness of a refusal to discuss a particular proposal or subject turns on whether the subject is negotiable. There is no “good-faith doubt,” “mistake of law” or similar defense available when a party refuses outright to meet or negotiate, because it doubts the negotiability of a proposal. If the matter is within scope, then the refusal to discuss it is a per se violation of the duty to bargain and, unlike a surface bargaining allegation, no inquiry into the respondent's subjective motive is necessary. Because pension plan provisions relied on by the unions did not confer any right to “permanency” in employee pension benefits or contribution formulas, unions failed to show that employer’s proposed changes to employee pension contribution formulas affected “vested rights” outside the scope of negotiations. Because no vested rights were identified, the Board declined to consider whether, or under what circumstances, vested rights may be modified through collective bargaining.

When a party initially asserts that a negotiable matter is outside the scope of representation but then engages in actual bargaining there is no per se violation. If a party persists in its position that a negotiable matter is non-negotiable, then its conduct constitutes a violation of the duty to bargain. Although the unions stated that the employer’s proposal to change the prevailing wage formula was outside the scope of representation because it affected “vested rights,” unions did not fail or refuse to bargain because they nonetheless engaged in negotiations over the subject and offered other, legitimate reasons for their refusal to agree to employer’s proposal. Once a party has already explained its basis for its opposition to a proposal, it is unnecessary to continue to do so each time the same or similar terms are proposed. Because the unions had already adequately explained their desire to compare “apples to apples,” there was no need to respond to employer’s subsequent proposals to change the basis for determining prevailing wage formula. The duty to bargain requires that parties bargain sincerely and in good faith but it does not require that every argument made in support of one's position be meritorious or “accurate” in any empirically-verifiable sense. Although the unions gave some explanations for their position that were “questionable,” nothing in the record suggests that their belief in the logic and expediency of maintaining the existing formula was not “sincere” or “fairly maintained.” Moreover, because they also gave pragmatic justifications for their position, their view that the prevailing wage formula was not subject to negotiation, although mistaken, did not constitute an outright refusal to bargain over the subject.

A “calcification of working conditions” is contrary to the principles of collective bargaining and will only be entertained upon “clear and unmistakable” evidence that a public agency intended to grant employees private rights of a contractual nature that survive and effectively supersede future collective bargaining obligations. Where pension plan provisions relied on by the unions did not confer an absolute right to “permanency” in the particular benefits or contributions formulas, unions failed to show that changes to employee pension contribution formulas were “vested rights” beyond the scope of mandatory bargaining.

Where pension plan provisions relied on by the unions did not confer an absolute right to “permanency” in the particular benefits or contributions formulas, unions failed to show that changes to employee pension contribution formulas were “vested rights” beyond the scope of mandatory bargaining. Because no vested rights were identified, the Board declined to consider whether, or under what circumstances, vested rights may be modified through collective bargaining.

Where pension plan provisions relied on by the unions did not confer any right to “permanency” in employee benefits or contribution formulas, unions failed to show that proposed changes to employee pension contribution formulas affected “vested rights” beyond the scope of mandatory bargaining. Because no vested rights were identified, the Board declined to consider whether, or under what circumstances, vested rights may be modified through collective bargaining.

Because the unions admitted in their answers to the complaints that they had “refused to bargain” over the county’s proposal to change the formula for allocating pension costs between employees and the county, under the conclusiveness of pleadings doctrine, unions were not free to argue otherwise in subsequent proceedings.

Because the unions admitted in their answers to the complaints that they had “refused to bargain” over the county’s proposal to change the formula for allocating pension costs between employees and the county, under the conclusiveness of pleadings doctrine, unions were not free to argue otherwise in subsequent proceedings.

Where unions refused to bargain over employer’s proposal to change employee pension contribution formula and failed to show that pension plan granted employees vested right to permanency in pension formulas, appropriate remedy included order for unions to bargain with employer over employee pension contributions and other negotiable subjects.

Although PERB is without jurisdiction to enforce collective bargaining agreements, it may interpret contractual provisions when necessary to decide an allegation or defense in an unfair practice case. Because unilateral change allegation turned on unions’ defense that pension plan guaranteed employees vested right to permanent employee pension contribution formula, PERB examined the language of the pension plan to determine whether it provided the rights asserted by the unions.

Where plain language of pension plans relied on by the unions did not confer an absolute right to “permanency” in the particular benefits or contributions formulas, unions failed to show that changes to employee pension contribution formulas were “vested rights” beyond the scope of mandatory bargaining. Because no vested rights were identified, the Board declined to consider whether, or under what circumstances, vested rights may be modified through collective bargaining.