Decision 2571M – City of San Ramon
SF-CE-855-M
Decision Date: June 20, 2018
Decision Type: PERB Decision
Description: Respondent, an employer, excepted from a proposed decision finding that employer violated the MMBA’s duty to bargain in good faith.
Disposition: The Board rejected an employer’s exceptions challenging a proposed decision finding that the employer (1) bargained in bad faith by adopting a take-it-or-leave-it-attitude and rushing to impasse; (2) implemented its last, best and final offer without bargaining in good faith to a bona fide impasse; (3) unlawfully implemented terms for a set duration; and (4) failed and refused to bargain in good faith after impasse was broken.
Perc Vol: 43
Perc Index: 6
Decision Headnotes
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
To determine whether a party has negotiated with the requisite subjective intention of reaching an agreement, the Board considers all evidence relevant to intent, including the parties’ conduct away from the bargaining table. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 22-23.) The “ultimate question” is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 19.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (Ibid.) The “ultimate determination of good or bad faith turns, not on a formula for the number of meetings that must occur or the number of proposals that must be exchanged before a bona fide impasse exists, but on the effect of a party’s conduct on the course of negotiations.” (Id. at p. 42.)
601.04000 – When Duty Arises/Sufficiency of Bargaining Demand
Even if parties have reached a bona fide impasse after completing negotiations in good faith, an impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) Once impasse is broken, “the duty to bargain revives.” (Ibid.)
601.05000 – Other
An employer must segregate or excise from its imposed terms language purporting to ‘establish a memorandum of understanding’ or other agreement, as well as language that is reasonably susceptible to such an interpretation. An employer also cannot impose new terms for a set duration. Unilaterally imposing new terms for a set duration places an obstacle in the path of good faith bargaining. (Roosevelt Memorial Medical Center (2006) 348 NLRB 1116, 1117.) Imposing a duration for new terms is also inconsistent with an employer’s affirmative duty to excise from its imposition any language susceptible to an unlawful interpretation. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 40.) Fresno amended the principles set forth in Rowland Unified School District (1994) PERB Decision No. 1053 and State of California (Department of Personnel Administration) (2010) PERB Decision No. 2130-S.)
606.01000 – In General
To determine whether a party has negotiated with the requisite subjective intention of reaching an agreement, the Board considers all evidence relevant to intent, including the parties’ conduct away from the bargaining table. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 22-23.) The “ultimate question” is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 19.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (Ibid.) The “ultimate determination of good or bad faith turns, not on a formula for the number of meetings that must occur or the number of proposals that must be exchanged before a bona fide impasse exists, but on the effect of a party’s conduct on the course of negotiations.” (Id. at p. 42.)
606.02000 – Inflexible Position
A party exhibits bad faith if it fails to adequately explain its inflexible position. (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29; San Bernardino City Unified School District (1998) PERB Decision No. 1270, at pp. 85-86.) However, an inflexible position that is fairly maintained and rationally supported does not, alone, prove bad faith. (Oakland Unified School District (1982) PERB Decision No. 275, p. 16.) Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups.
606.05000 – Dilatory or Evasive Tactics
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere.” A budget deadline is not an exigent circumstance allowing employer to accelerate negotiations unilaterally. Employer holding a budget vote before completing negotiations and post-impasse procedures must refrain from voting on concessions that have not yet been ratified. While section 3505 of the MMBA provides that parties shall endeavor to reach agreement prior to a public agency’s adoption of its final budget, the statute’s use of non-mandatory language renders it “only hortatory” and contrasts with the law’s other, obligatory mandates, such as the duty to bargain for a reasonable and adequate amount of time to allow for good faith negotiations. (Dublin Professional Firefighters Local 1885 v. Valley Community Services District (1975) 45 Cal.App.3d 116, 118.)
606.06000 – Time Limit on Negotiations
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere.” A budget deadline is not an exigent circumstance allowing employer to accelerate negotiations unilaterally. Employer holding a budget vote before completing negotiations and post-impasse procedures must refrain from voting on concessions that have not yet been ratified. While section 3505 of the MMBA provides that parties shall endeavor to reach agreement prior to a public agency’s adoption of its final budget, the statute’s use of non-mandatory language renders it “only hortatory” and contrasts with the law’s other, obligatory mandates, such as the duty to bargain for a reasonable and adequate amount of time to allow for good faith negotiations. (Dublin Professional Firefighters Local 1885 v. Valley Community Services District (1975) 45 Cal.App.3d 116, 118.)
606.11000 – Failure to Provide Counter-Proposals
A party exhibits bad faith if it fails to adequately explain its inflexible position. (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29; San Bernardino City Unified School District (1998) PERB Decision No. 1270, at pp. 85-86.) However, an inflexible position that is fairly maintained and rationally supported does not, alone, prove bad faith. (Oakland Unified School District (1982) PERB Decision No. 275, p. 16.) Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups.
606.14000 – Boulwarism
A party exhibits bad faith if it fails to adequately explain its inflexible position. (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29; San Bernardino City Unified School District (1998) PERB Decision No. 1270, at pp. 85-86.) However, an inflexible position that is fairly maintained and rationally supported does not, alone, prove bad faith. (Oakland Unified School District (1982) PERB Decision No. 275, p. 16.) Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups.
606.15000 – Other
Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups.
608.08000 – Exhaustion of Impasse Procedures or Time Between Impasse and Mediation
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.)
608.15000 – Hard Bargaining
A party exhibits bad faith if it fails to adequately explain its inflexible position. (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29; San Bernardino City Unified School District (1998) PERB Decision No. 1270, at pp. 85-86.) However, an inflexible position that is fairly maintained and rationally supported does not, alone, prove bad faith. (Oakland Unified School District (1982) PERB Decision No. 275, p. 16.) Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups.
806.06000 – Impasse Broken-Duty to Bargain
Even if parties have reached a bona fide impasse after completing negotiations in good faith, an impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) Once impasse is broken, “the duty to bargain revives.” (Ibid.) When employer unlawfully imposes the very terms under discussion, good faith bargaining is not possible, because union is forced to start from a position of having to talk the employer back to the status quo. (San Mateo County Community College District (1979) PERB Decision No. 94, p. 15.)
900.01000 – In General
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M (San Jose), p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.)
900.02000 – Declaration/Determination of Impasse
A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.)
900.05000 – Post-Impasse
An employer must segregate or excise from its imposed terms language purporting to ‘establish a memorandum of understanding’ or other agreement, as well as language that is reasonably susceptible to such an interpretation. An employer also cannot impose new terms for a set duration. Unilaterally imposing new terms for a set duration places an obstacle in the path of good faith bargaining. (Roosevelt Memorial Medical Center (2006) 348 NLRB 1116, 1117.) Imposing a duration for new terms is also inconsistent with an employer’s affirmative duty to excise from its imposition any language susceptible to an unlawful interpretation. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 40.) Fresno amended the principles set forth in Rowland Unified School District (1994) PERB Decision No. 1053 and State of California (Department of Personnel Administration) (2010) PERB Decision No. 2130-S.)
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
In determining how much weight to afford bargaining notes, an ALJ must consider all relevant factors, including but not limited to the notes’ quality, their consistency with other evidence, and whether the notes were taken contemporaneously. (Salinas Valley Memorial Healthcare System (2015) PERB Decision No. 2433-M, adopting proposed decision at p. 10.)
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.)
1105.20000 – Non Prejudicial Error
The Board need not address alleged errors that would not impact the outcome. (Los Angeles Unified School District (2015) PERB Decision No. 2432, p. 2; Regents of the University of California (1991) PERB Decision No. 891-H, p. 4.)
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Merely incorporating an earlier brief by reference is not sufficiently specific to explain a party’s exceptions. (San Diego Community College District (1983) PERB Decision No. 368, p. 13.) A party responding to exceptions should similarly be specific in its arguments and cannot assume the Board will parse a previous brief that it chooses to incorporate by reference.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
While the Board is free to draw contrary inferences from the evidence, it generally defers to an ALJ’s credibility determination absent evidence to support overturning such a conclusion. (Trustees of the California State University (San Marcos) (2010) PERB Decision No. 2093-H, p. 3.)
1107.06000 – De Novo Review; Standard of Review by Board
Although the Board reviews exceptions to a proposed decision de novo, to the extent that a proposed decision adequately addresses issues raised by certain exceptions, the Board need not further analyze those exceptions. (City of Calexico (2017) PERB Decision No. 2541-M, pp. 1 2.) The Board also need not address alleged errors that would not impact the outcome. (Los Angeles Unified School District (2015) PERB Decision No. 2432, p. 2; Regents of the University of California (1991) PERB Decision No. 891-H, p. 4.)