Decision 2582M – City of Davis
SA-CE-866-M
Decision Date: September 5, 2018
Decision Type: PERB Decision
Description: The administrative law judge dismissed a complaint alleging that the employer failed and refused to meet and confer in good faith over a successor memorandum of understanding (MOU), and failed and refused to participate in good faith in impasse procedures. The union filed exceptions.
Disposition: The Board affirmed the proposed decision. Although the Board agreed with the union that the ALJ erred by failing to consider some evidence, and that it was not clear whether the ALJ had considered all of the evidence under the totality of the circumstances, it found that the evidence failed to establish that the employer engaged in bad faith bargaining or failed to participate in good faith in impasse procedures.
Perc Vol: 43
Perc Index: 51
Decision Headnotes
604.01000 – In General
Necessary and relevant information includes data relevant to a party’s bargaining positions, such as information to assess an employer’s claims used to justify concessionary proposals.
604.03000 – Form of Information Provided; Costs
The fact that information may not exist in precisely the form requested does not relieve the employer of its obligation to provide what responsive information it does have, or to state its reasons for failing to do so.
605.04000 – Conditional Bargaining; Piecemeal or Fragmented Bargaining
Presenting package proposals addressing matters within the scope of representation is not a refusal to bargain in good faith.
606.01000 – In General
Under the totality of the circumstances test, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith, which our precedents describe as a subjective intent to reconcile differences and reach agreement.
606.01000 – In General
Even if the evidence is insufficient to establish any recognized indicium of bad faith, it may be concluded under the totality of circumstances that the respondent lacked an intent to reach agreement.
606.02000 – Inflexible Position
Order to make employees whole after employer unlawfully imposed its last, best, and final offer did not preclude employer from later pursuing the same cost-saving objectives in good faith negotiations.
606.11000 – Failure to Provide Counter-Proposals
Given that parties’ previous agreement did not contain binding arbitration, employer’s opposition to binding arbitration proposal and its explanation that it “was happy with the way things are” were not necessarily evidence of bad faith.
606.11000 – Failure to Provide Counter-Proposals
Where employer explained its position on union’s proposal and union did not raise the issue later in negotiations, no evidence of bad faith was found.
606.11000 – Failure to Provide Counter-Proposals
The Board has never held that a party’s failure to explain its position on a non-mandatory subject of bargaining is evidence of bad faith.
606.13000 – Parity Agreements
Entering into a parity agreement may be evidence of bad faith, but not where the agreement was entered into after impasse was declared.
606.13000 – Parity Agreements
Because an employer’s desire for parity among its units is not, standing alone, evidence of bad faith, neither is entering into parity agreements.
606.15000 – Other
Totality of the circumstances analysis includes any per se violations that may bear upon the question of the respondent’s state of mind.
606.15000 – Other
Presenting package proposals addressing matters within the scope of representation is not a refusal to bargain or evidence of bad faith.
606.15000 – Other
Events occurring post-impasse may be probative of whether a party engaged in surface bargaining before impasse was reached.
606.17000 – Failure to Provide Information
An employer’s refusal to provide information to back up its bargaining claims may be evidence of bad faith bargaining, but where requested information did not exist—in this case, the employer’s “target savings”—the failure to provide the information did not evidence bad faith.
900.05000 – Post-Impasse
The factfinder’s recommendations are a crucial element in the legislative process structured to bring about peacefully negotiated agreements, and so both parties must consider the recommendations in good faith to determine whether there is a basis for settlement, or for such accommodations, concessions, or compromises that might lead to settlement. However, either party may decide in good faith that the report does not provide a basis for settlement.
900.05000 – Post-Impasse
Employer’s failure to adopt the factfinding report’s recommendations is not unlawful, and employer’s failure to provide a full explanation in its resolution rejecting the recommendations was not, without more, evidence of a refusal to consider the report in good faith.
1000.02169 – Unit Configuration
Unit composition, including the appropriate placement of classifications, is not a mandatory subject of bargaining.
1105.01000 – In General
In regulating the conduct of a hearing, ALJ may exclude immaterial, irrelevant, or unduly repetitious evidence.
1105.05000 – Cumulative Evidence
In regulating the conduct of a hearing, ALJ may exclude immaterial, irrelevant, or unduly repetitious evidence.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Where an issue was not identified as a specific exception but inextricably intertwined with other exceptions, the Board would err on the side of considering it.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board may decline to consider an exception raising an issue that the party neglected to mention to the ALJ.
1107.04000 – Unalleged Violations
The purpose of the unalleged violation test is to ensure that the Board decides a case based on an unalleged theory only when it is clear that the parties have been afforded their due process rights.
1107.04000 – Unalleged Violations
The unalleged violation test does not apply when a charging party relies on evidence of bad faith bargaining that was not pleaded in the complaint or the unfair practice charge.
1107.18000 – Review of Findings Not Excepted To
Where an issue was not identified as a specific exception but inextricably intertwined with other exceptions, the Board would err on the side of considering it.
1407.01000 – General Principles
It is appropriate to rely on precedent interpreting similar provisions of other California labor relations statutes.