Decision 2648M – City of Arcadia

LA-CE-847-M & LA-CE-913-M

Decision Date: June 12, 2019

Decision Type: PERB Decision

Description:  Union excepted to a proposed decision finding that City neither unlawfully interfered with protected rights nor violated its duty to meet and confer in good faith.

Disposition:  The Board dismissed many of the allegations against the City but reversed the ALJ as to four allegations, finding the City violated the MMBA and PERB Regulations when it offered an incentive for the Association’s Vice President to oust the Association’s President, invited a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives, unilaterally imposed ground rules in advance of bargaining, and made an “exploding” offer without adequate justification.

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Decision Headnotes

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
400.01000 – In General; Standards

Employees’ right to participate in the activities of employee organizations of their own choosing includes the right to participate in selecting employee organization leaders.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
401.02000 – Discrimination Favoring Organization Over Another

An employer’s duty of strict neutrality extends to internal union affairs, even in the absence of a competing employee organization. But an employer is not liable for interference, domination, unlawful assistance, or discrimination where it merely attempts in good faith to comply with its duty to bargain—which may require it to recognize one candidate on an interim basis pending the outcome of internal union procedures or other litigation between the factions—irrespective of whether the employer ends up temporarily recognizing the “wrong” candidate based on the outcome of such procedures.

405.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES
405.03000 – Promise of or Withholding of Benefits

PERB found offering to continue labor-management meetings if Association removed president from office was a promise of benefit where Association Vice President expressed strong preference employer continue meetings.

407.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION
407.04000 – Employer Favoritism/Absence of Strict Neutrality

An employer’s duty of strict neutrality extends to internal union affairs, even in the absence of a competing employee organization. But an employer is not liable for interference, domination, unlawful assistance, or discrimination where it merely attempts in good faith to comply with its duty to bargain—which may require it to recognize one candidate on an interim basis pending the outcome of internal union procedures or other litigation between the factions—irrespective of whether the employer ends up temporarily recognizing the “wrong” candidate based on the outcome of such procedures.

407.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION
407.04000 – Employer Favoritism/Absence of Strict Neutrality

Employer found to have interfered with internal Association affairs by offering an incentive for a change in internal Association leadership.

409.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES
409.06000 – Free Speech

No violation found where manager, having been told by multiple people that Association attorney called him a liar, told a group of Association members that he had not lied and backed up his contention with a brief discussion of the timeline of events.

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

PERB found the employer committed a per se violation by unilaterally imposing ground rules in advance of negotiations and bargained in bad faith under the totality of the circumstances by inviting a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives and by making an “exploding” offer without adequate justification, as well as by unilaterally imposing ground rules.

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.05000 – Other

PERB found the employer committed a per se violation by unilaterally imposing ground rules in advance of negotiations and bargained in bad faith under the totality of the circumstances by inviting a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives and by making an “exploding” offer without adequate justification, as well as by unilaterally imposing ground rules.

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

PERB found the employer committed a per se violation by unilaterally imposing ground rules in advance of negotiations and bargained in bad faith under the totality of the circumstances by inviting a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives and by making an “exploding” offer without adequate justification, as well as by unilaterally imposing ground rules.

603.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP
603.01000 – In General

PERB found the employer undermined the Association’s selection of representatives when it invited a bargaining unit member to a negotiations kickoff and gave her information about negotiations to distribute to the Association’s members, where the Association had not designated the employee to bargain on its behalf, the kickoff was a meeting reserved for the leaders of the City’s unions, and the City used the meeting to discuss its goals and announce ground rules for negotiations. PERB found this conduct elevated the bargaining unit member at the expense of the Association’s designated representatives, thereby indicating the employer’s bad faith.

605.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS
605.05000 – Other

Employer committed per se violation of duty to bargain in good faith when it unilaterally determined that bargaining should commence much earlier than the parties had previously anticipated, unilaterally determined that this early start date would be paired with an “accelerated” approach capped by deadline, and, that, in the absence of a deal by the deadline, there would be a cooling off period in which there would be no negotiations.

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

PERB found employer bargained in bad faith under the totality of the circumstances by inviting a former Association leader to participate in a bargaining meeting without notifying the Association’s official representatives and by making an “exploding” offer without adequate justification, as well as by unilaterally imposing ground rules.

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

PERB held employer engaged in bad faith by placing a time limit of negotiations from the onset, after which a cooling off period would occur during which negotiations would not be permitted.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.07000 – Inconsistent Position Taken; W/ds or Renege on Tentative Agreement

Regressive bargaining—making proposals that are, as a whole, less generous to the other party than prior offers—manifestly moves bargaining parties further away from agreement and therefore indicates bad faith unless such regressive bargaining is supported by an adequate explanation. Exploding offers are treated in the same way as regressive proposals because they inherently threaten a change in position.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.15000 – Other

Efforts by the employer to undermine an employee organization’s selected negotiators indicate an absence of a good faith, while a flat ban on meeting with a particular representative would be a per se violation. PERB found employer undermined the Association’s selection of representatives when it invited former Association leader who was not designated to bargain for Association to the negotiations kickoff and gave her information about negotiations to distribute to the Association’s members.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.20000 – Exploding Offers

An exploding offer is one that expires on a given date. Exploding offers are held to the same standard as regressive proposals and thus, a bargaining party evidences bad faith under the totality of conduct test if it does not adequately justify a threatened change in position that is inherent in an exploding offer.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.01000 – In General

An employer’s duty of strict neutrality extends to internal union affairs, even in the absence of a competing employee organization. An employer violates its duty of neutrality if it favors one internal union faction over the other in a manner that materially strays from a good faith effort to comply with its duty to deal with the union’s chosen representatives.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.02000 – Domination vs Assistance

An employer can extend benefits to a labor organization in a spirit of cooperation, but may not lend so much assistance that the employee organization appears to become a company union.

700.00000 – EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS
700.07000 – Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality

An employer’s duty of strict neutrality extends to internal union affairs, even in the absence of a competing employee organization. But an employer is not liable for interference, domination, unlawful assistance, or discrimination where it merely attempts in good faith to comply with its duty to bargain—which may require it to recognize one candidate on an interim basis pending the outcome of internal union procedures or other litigation between the factions—irrespective of whether the employer ends up temporarily recognizing the “wrong” candidate based on the outcome of such procedures.

1000.00000 – SCOPE OF REPRESENTATION
1000.02058 – Ground Rules for Negotiations

Parties must bargain bilaterally regarding ground rules for negotiations in the same manner they must bargain in good faith about substantive terms or conditions of employment. This includes all format and timing issues relating to negotiations, including but not limited to when to commence negotiations, deadlines for phases of negotiations, topic sequences, the use of cooling off periods, and interest-based bargaining formats.

1000.00000 – SCOPE OF REPRESENTATION
1000.02090 – Negotiations, Arrangements, and Procedures

Parties must bargain bilaterally regarding ground rules for negotiations in the same manner they must bargain in good faith about substantive terms or conditions of employment. This includes all format and timing issues relating to negotiations, including but not limited to when to commence negotiations, deadlines for phases of negotiations, topic sequences, the use of cooling off periods, and interest-based bargaining formats.