Decision 2694M – * * * JUDICIAL APPEAL PENDING * * * City of Glendale

LA-CE-805-M

Decision Date: February 3, 2020

Decision Type: PERB Decision

Description:  City and union filed cross-exceptions to a proposed decision of an administrative law judge finding that the City violated its duty to meet and confer in good faith when it unilaterally took work out of the bargaining unit via subcontracting and other actions and imposed new employment terms that were regressive and not reasonably comprehended within the City’s final proposals, as well as other terms that cannot be lawfully imposed.

Disposition:  The Board adjusted the ALJ’s legal conclusions and remedial order.  First, the Board agreed with the ALJ that the City failed to bargain before removing bargaining unit work, but limited the ALJ’s remedial order.  Next, the Board found that the City engaged in bad faith bargaining that prevented the parties from reaching a legitimate, good faith impasse.  The Board’s conclusion that the City engaged in bad faith bargaining meant that it did not have the right to impose any new employment terms, and accordingly PERB adjusted the remedy to void the City’s imposition of all new employment terms.

Decision Headnotes

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

In establishing an analytic framework for assessing whether a decision falls within the scope of representation, the California Supreme Court has explained that MMBA section 3504 was intended to incorporate federal precedent regarding the scope of representation under the NLRA and therefore has repeatedly looked to federal precedents. Specifically, the Court has repeatedly noted that it applies a framework initially deriving from the U.S. Supreme Court’s analysis in First National Maintenance Corporation v. NLRB (1981) 452 U.S. 666, 676-680. Under this framework, there are three categories of managerial decisions, each with its own implications for the scope of representation: (1) “‘decisions that “have only an indirect and attenuated impact on the employment relationship” and thus are not mandatory subjects of bargaining,’ such as advertising, product design, and financing; (2) ‘decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls,’ which are ‘always mandatory subjects of bargaining’; and (3) ‘decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve “a change in the scope and direction of the enterprise” or, in other words, the employer’s “retained freedom to manage its affairs unrelated to employment.’” (County of Orange (2018) PERB Decision No. 2594-M, p. 18, citing International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (2011) 51 Cal.4th 259, 272-273. In the closest cases—the third category of managerial decisions—PERB applies a balancing test, under which bargaining is required only if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (County of Orange, supra, PERB Decision No. 2594-M, p. 18, quoting Richmond Firefighters, supra, 51 Cal.4th at p. 273 and First National Maintenance, supra, 452 U.S. at p. 679.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

PERB has noted that subcontracting, sometimes referred to as contracting out, is “generally within the scope of bargaining.” (Long Beach Community College District (2008) PERB Decision No. 1941 (Long Beach).) PERB has found a majority of subcontracting decisions to be negotiable. Subcontracting falls within the third category of managerial decisions under Richmond Firefighters, under which bargaining is required only if “the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business.” (International Association of Fire Fighters, Local 188, AFL-CIO v. PERB (City of Richmond) (2011) 51 Cal.4th 259, 272-273 (Richmond Firefighters). To prevail in showing that the Richmond Firefighters balancing test warrants finding a particular subcontracting decision to have been bargainable, an exclusive representative generally must establish one of three circumstances: (1) that a material portion of the employer’s concerns were amendable to bargaining; (2) the employer decided to use non-bargaining unit employees to perform substantially the same types of job duties that bargaining unit employees traditionally and historically performed; or (3) the employer unilaterally alters the terms of a written policy or agreement, or applies such policy or agreement in a new way.

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

City’s subcontracting decision within scope of bargaining for at least two separate reasons. First, City’s reasons for subcontracting, including desire to reduce labor costs and performance of work in a timely manner, provided one basis for finding that the City’s subcontracting decision amenable to bargaining. Independently, PERB found a bargaining obligation because the subcontracted duties were substantially the same as those performed by unit employees, and City decided to use non-bargaining unit employees to perform substantially the same types of job duties that bargaining unit employees traditionally and historically performed. Where an employer intends to continue performing some of the same duties as before, while using non-unit employees to perform such duties, there is no need to look at the employer’s motivation for subcontracting. City did not have a duty to bargain prior to reducing the amount of bargaining unit work it needed or wanted to perform, but did have a duty to bargain before deciding to use non-bargaining unit alternatives to perform remaining and future work. Where City’s decision to layoff was linked to its decision to subcontract remaining and future work, City committed a clear MMBA violation by failing to provide notice and an opportunity to bargain over the decision. Fact that the City subcontracted less than its otherwise full complement of work did not remove the subcontracting decision from the scope of representation.

1000.00000 – SCOPE OF REPRESENTATION
1000.02137 – Subcontracting

Even if subcontracted work could fairly be termed “new work,” which was not the case, it still would have been sufficiently similar to that which the bargaining unit traditionally performed so as to require bargaining before any subcontracting decision. (See Overnite Transportation Co. (2000) 330 NLRB 1275, 1276, affd. in part, reversed in part mem. (3d Cir. 2000) 248 F.3d 1131(Overnite); Mi Pueblo Foods (2014) 360 NLRB 1097, 1099 [same].) The principles articulated in Overnite and Mi Pueblo Foods are not foreign to PERB precedent. PERB has noted that an “actual or potential” diminution of union work through subcontracting not only withdraws wages and hours associated with the contracted-out work from the unit, but also weakens the collective strength of employees in the unit, which in turn undermines their collective ability to effectively deal with the employer. (Arcohe Union School District (1983) PERB Decision No. 360, pp. 5-6; see also City of Sacramento (2013) PERB Decision No. 2351-M, pp. 21-22.)

1000.00000 – SCOPE OF REPRESENTATION
1000.02147 – Transfer of Work Out of Unit

City’s decision was only non-bargainable to the extent it temporarily stopped performing certain functions altogether. For those functions still performed, City’s decision was equally bargainable to the extent the City began using not only private contractors but also City employees outside bargaining unit to perform some of the classification’s traditional work. PERB reached its conclusion with respect to the transfer of certain work to City employees outside the bargaining unit based on extensive precedent holding that such a decision is bargainable if either (i) the work was not historically shared with other classifications outside the bargaining unit, or (ii) the employer decision at issue completely removed the work from the bargaining unit, when in the past it had been shared between employees in and out of the bargaining unit. (See, e.g., Desert Sands Unified School District (2010) PERB Decision No. 2092, p. 20; Calistoga Joint Unified School District (1989) PERB Decision No. 744, p. 9.) PERB found the transfer of work to City employees outside of the bargaining unit qualified as bargainable under both of these tests, independently.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

To establish a prima facie case of retaliation, the charging party has the burden to prove, by a preponderance of the evidence, that (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which the Board has interpreted to mean that the protected activity was a substantial or motivating cause of the adverse action. If the charging party meets its burden to establish each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the same action even absent protected activity. This affirmative defense is most typically available when, even though the charging party has established that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred ‘but for’ the protected activity. (NLRB v. Transportation Management Corporation (1983) 462 U.S. 393, 395-402; McPherson v. PERB (1987) 189 Cal.App.3d 293, 304; Martori Brothers Distributors v. Agricultural Labor Relations Bd. (1981) 29 Cal.3d 721, 729-730; San Diego Unified School District (2019) PERB Decision No. 2634, pp. 12-13; Omnitrans (2010) PERB Decision No. 2121-M, pp. 9-10; Los Angeles County Superior Court (2008) PERB Decision No. 1979-C, p. 22; Palo Verde Unified School District (1988) PERB Decision No. 689, pp. 7-8; Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6; Wright Line (1980) 251 NLRB 1083, 1086-1089.)

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
501.01000 – In General; Elements of Prima Facie Case

PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 12, fn. 12; County of Santa Clara (2019) PERB Decision No. 2629-M, p. 8.) Under Campbell Municipal Employees Assn. v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424, a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14.) In the absence of evidence sufficient to trigger the Campbell standard, PERB applies the Novato analysis of nexus factors. (Los Angeles County Superior Court, supra, at pp. 14-15.) The Novato factors have undoubtedly become the primary avenue for proving discrimination or retaliation allegations, and PERB relies on them where, as in this case, the employer’s conduct is not inherently discriminatory and neither party argued that the adverse action was discriminatory on its face under Campbell and its progeny. (County of Santa Clara, supra, PERB Decision No. 2629-M, pp. 8-9.)

601.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000)
601.03000 – Decision vs Effects Bargaining

City violated its obligation to bargain over the effects of its decision to subcontract and transfer bargaining unit work. PERB has long held that the MMBA’s duty to bargain extends to the implementation and effects of a decision that has a foreseeable effect on matters within the scope of representation, even where the decision itself is not negotiable. In both contexts—a decision involving a negotiable subject or a negotiable effect of a non-negotiable decision—the employer’s obligations are the same. Thus, an employer must provide timely notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would be required to do with a mandatory subject of bargaining.

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

City’s unilateral imposition of a no-strike clause and a bargaining waiver was clearly unlawful. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 40.) Although the City states that it did not intend to include that language in the City Council’s imposition, it took no action to retract that language or to clarify with the union or bargaining unit employees that the terms were included by mistake. PERB precedents treat this allegation as a per se violation for which the employer’s motive or intent is irrelevant. (San Ramon, supra, PERB Decision No. 2571-M, p. 14; Fresno, supra, PERB Decision No. 2418-M, pp. 2-3, 15, 37-40.)

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

An employer’s unilateral change violates the duty to bargain in good faith where: (1) the employer took action to change existing policy; (2) the policy change concerned a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the change has a generalized effect or continuing impact on terms and conditions of employment. (City of Davis (2016) PERB Decision No. 2494-M, p. 18, citing Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9.) In order to satisfy the first element, a charging party generally must show at least one of the following: (1) changes to the parties’ written agreements; (2) changes in established past practices; or (3) newly created policies, or application or enforcement of an existing policy in a new way. (County of Monterey (2018) PERB Decision No. 2579-M, p. 10; Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 12; Davis, supra, PERB Decision No. 2494-M, pp. 30-31.)

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

Because the MMBA required the City to provide notice and an opportunity to meet and confer before contracting out work previously performed by bargaining unit classifications, and the union did not waive its right to bargain over contracting out such work, the City violated its obligation to bargain subcontracting as required under the MMBA. The subcontracting of bargaining unit work had a continuing impact on terms and conditions of employment and diminished the collective strength of the employees’ ability to deal effectively with the employer. (Arcohe Union School District (1983) PERB Decision No. 360, pp. 5-6; see also City of Sacramento (2013) PERB Decision No. 2351-M, p. 38.) This conduct was a per se violation of the City’s duty to bargain in good faith.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.04000 – Time of Implementation

City’s argument that it decided to subcontract a classification’s work after it decided to layoff all employees in the classification comported with neither the facts nor the law. The overall record supported an inference that the City decided to subcontract the classification’s future work in conjunction with its decision to eliminate the classification. It does not matter that there was a lag between the subcontracting decision and the implementation thereof. Where an employer’s change in policy is alleged to constitute an unfair practice, the operative date for the alleged violation is generally the date when the employer made a firm decision to change the policy, even if the change itself does not take effect until a later date. (City of Sacramento (2013) PERB Decision No. 2351-M, p. 27; City of Milpitas (2015) PERB Decision No. 2443-M, pp. 15-16.) PERB attributed the lag between the City’s subcontracting decision and its implementation of that decision to the City’s wait for further funding; PERB did not find that the lag demonstrated uncertainty regarding the City’s decision to use alternative means to cover the work previously done by the laid off classification. Moreover, even if the City had proven that it made no single decision about how to cover the classification’s work, but instead made a new decision every time it began a project involving work formerly done by the classification, this would nonetheless constitute an MMBA violation, since the City had not bargained regarding any allegedly separate or independent decisions on how to cover the classification’s work after the layoffs. The City did not provide the exclusive representative with advance notice of such decisions, nor did the City provide an opportunity to bargain before it made firm decisions.

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 precedent defines “impasse” as a point at which the parties’ differences remain so substantial and prolonged that further meeting and conferring would be futile. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures,” and its “conduct is free of unfair labor practices.” (San Ramon, supra, PERB Decision No. 2751-M, p. 6; City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Regents of the University of California (1985) PERB Decision No. 520-H, p. 17.) However, both parties must believe they are at the “end of their rope.” (Riverside, supra, PERB Decision No. 2360-M, p. 13.)

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

If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, at p. 11, fn. 9; Riverside, supra, at p. 11.)

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

City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. 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.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work.

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.02000 – Inflexible Position

City’s conduct prevented meaningful good faith negotiations from July 11, 2012 through its unilateral implementation 10 months later. The City insisted that negotiations were closed and adopted a take-it-or-leave-it attitude, telling the union it had a choice of either accepting the City’s June 20 proposal or accepting imposed terms. (San Ramon, supra, PERB Decision No. 2571-M, at pp. 9, 15.) While this conduct prevented the parties from reaching a good faith impasse, even if a good faith impasse could somehow be created by the City’s refusal to get back to the union, the union indicated it wished to present further concessions and the City was not privileged to refuse to hear the new proposal. (State of California (Department of Personnel Administration) (2010) PERB Decision No. 2102-S, p. 6.)

606.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES
606.08000 – Conduct Outside of Negotiations; Prior UPs

Where the City’s failure to fulfill its bargaining obligation with respect to subcontracting bargaining unit work constituted an egregious unilateral change, the employer’s separate unfair practice contributed to the deadlock in negotiations by creating a new impediment—a significant new set of conditions over which the union had to bargain on a catch-up basis, after the fact, which was more than sufficient to deny the City the right to impose. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 6 & 15.) The subcontracting violation preceded impasse, was not remote in time, and coincided with the City’s refusal to go back to the table. In fact, the City’s subcontracting decision came at a critical time during negotiations for a first contract. The City, while seeking concessions in wages and benefits at the bargaining table due to budget constraints, secretly devised a unilateral means to extract still more savings from the bargaining unit. Because the City failed and refused to comply with its legal duty to provide notice and an opportunity to bargain, the parties lost the opportunity to discuss concessions or other proposals that may have led to viable options in lieu of at least some of the layoffs and involuntary demotions, and destroyed the good faith conditions that would be required for the parties to have any hope of bridging their other divides.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

City’s asserted waiver defense unavailing for multiple reasons. First, union proposals could not constitute a waiver where parties had not reached agreement. Moreover, union did not receive notice of any proposal to subcontract bargaining unit work, and accordingly could not have waived the right to bargain by acquiescence. Further, City did not establish that union waived its bargaining rights through its conduct; to be effective, an alleged waiver of statutory bargaining rights must be specific, clear, and unmistakable.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.01000 – In General

Administrative determinations regarding MMBA factfinding requests do not preclude contrary findings after a formal hearing in a related unfair practice charge. Administrative determinations of MMBA factfinding requests do not generally provide either a charging party or a respondent a basis for prevailing in a related bad faith bargaining case. For instance, such an administrative determination does not establish whether there existed a legitimate, good faith impasse permitting an employer to impose the terms of its last offer. (See City & County of San Francisco (2014) PERB Order No. Ad-415-M, p. 12 [Although an MMBA factfinding request may involve issues that overlap with those in a related unfair practice case, determinations made as part of the factfinding request generally do “not prejudice or determine the ultimate outcome in the unfair practice case”].) This is because OGC must reach an administrative determination after a very limited investigation that does not create a reliable evidentiary record like that developed during a formal hearing on an unfair practice charge.

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.01000 – In General

PERB precedent defines “impasse” as a point at which the parties’ differences remain so substantial and prolonged that further meeting and conferring would be futile. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures,” and its “conduct is free of unfair labor practices.” (San Ramon, supra, PERB Decision No. 2751-M, p. 6; City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Regents of the University of California (1985) PERB Decision No. 520-H, p. 17.) However, both parties must believe they are at the “end of their rope.” (Riverside, supra, PERB Decision No. 2360-M, p. 13.)

900.00000 – IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH
900.01000 – In General

If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, at p. 11, fn. 9; Riverside, supra, at p. 11.) City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. 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.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work.

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

Administrative determinations regarding MMBA factfinding requests do not preclude contrary findings after a formal hearing in a related unfair practice charge. Administrative determinations of MMBA factfinding requests do not generally provide either a charging party or a respondent a basis for prevailing in a related bad faith bargaining case. For instance, such an administrative determination does not establish whether there existed a legitimate, good faith impasse permitting an employer to impose the terms of its last offer. (See City & County of San Francisco (2014) PERB Order No. Ad-415-M, p. 12 [Although an MMBA factfinding request may involve issues that overlap with those in a related unfair practice case, determinations made as part of the factfinding request generally do “not prejudice or determine the ultimate outcome in the unfair practice case”].) This is because OGC must reach an administrative determination after a very limited investigation that does not create a reliable evidentiary record like that developed during a formal hearing on an unfair practice charge.

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

PERB precedent defines “impasse” as a point at which the parties’ differences remain so substantial and prolonged that further meeting and conferring would be futile. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures,” and its “conduct is free of unfair labor practices.” (San Ramon, supra, PERB Decision No. 2751-M, p. 6; City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Regents of the University of California (1985) PERB Decision No. 520-H, p. 17.) However, both parties must believe they are at the “end of their rope.” (Riverside, supra, PERB Decision No. 2360-M, p. 13.)

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

If an employer declares impasse without reaching a bona fide impasse after good faith negotiations, but the employer neither changes employment terms nor refuses to continue bargaining, the Board considers that evidence under the totality of conduct test. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7, fn. 9; County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) In contrast, if the employer in those circumstances refuses to bargain further or proceeds to change employment terms, that constitutes further evidence of bad faith under the totality test, and it also constitutes a per se violation. (San Ramon, supra, at p. 11, fn. 9; Riverside, supra, at p. 11.) City prematurely declared impasse where both parties had additional room to move on economics, which was the main issue in the negotiations. Even assuming a first impasse, alleged impasse was broken when the parties made concessions in later negotiation sessions. 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.) City was not privileged to impose the terms contemplated in its June 20, 2012 proposal, both because of its refusal to meet after June 20, 2-12 and its unremedied unilateral changes pertaining to unilaterally subcontracting bargaining unit work.

1202.00000 – REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY
1202.01000 – In General

A City’s decision to eliminate all positions in a classification was based upon both a non-bargainable decision to reduce the amount of that classification’s work being performed on behalf of the City, at least temporarily, and a bargainable decision to subcontract and to use non-bargaining unit City employees to perform the classification’s remaining and future work. (Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621.) The Board was careful to remedy only those layoffs and involuntary demotions resulting from bargainable decisions. The Board adjusted the proposed remedial order to ensure it did not provide a remedy for any layoffs or demotions that would have occurred solely based on the non-bargainable decision to reduce (at least temporarily) the amount of work performed by the classification.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

City directed to reinstate the eliminated bargaining unit classifications, retroactively fill those classifications (from the laid off employees, in seniority order) with the number of employees reinstated commensurate with the amount of bargaining unit work performed by non-bargaining unit employees at all relevant times, and to provide make-whole relief (total compensation including benefits) as part of retroactively restoring the status quo. PERB’s Compliance Officer provided specific guidance regarding how to address the above factors in compliance proceedings, putting the burden on the City to prove any periods of time in which there was so little traditional bargaining unit work being performed that certain of the layoffs and/or failure to recall were during those times the result of a non-bargainable reduction in work rather than a bargainable decision to use non-bargaining unit workers to perform remaining and future work. Remedial order is appropriate even though it necessarily will require PERB’s Compliance Officer to make approximations in resolving remedy disputes. (City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14 & 26-27.) Doing so is generally preferable to “permitting the employer to evade liability because of uncertainty caused by the employer’s own unlawful conduct, and thus leaving an unfair practice unremedied. (Id., p. 26.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

City ordered to make bargaining unit employees made whole for any losses they may have suffered due to the City’s unlawful unilateral imposition of terms and conditions of employment, along with interest at the rate of 7 percent per annum from date of imposition until such time as the City restores conditions as they existed before imposition, or until the effective date of any new collective bargaining agreement between the parties, whichever is earlier.

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

As is customary in cases where there have been unlawful unilateral changes, such as the unilateral subcontracting here, the most critical remedies needed to effectuate California’s labor laws are orders requiring the City to cease and desist from its failures and refusals to bargain, and to restore the prior status quo to the extent necessary to make the exclusive representative and employees whole for any losses, upon request by the exclusive representative. City ordered to restore the status quo that existed before the premature imposition, upon request from the exclusive representative.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.10000 – Other Affirmative Relief

Having found a unilateral subcontracting violation, PERB ordered City not only to cease and desist from future subcontracting of bargaining unit work without notice and an opportunity to meet and confer, but also to rescind or modify any unilaterally adopted contracts that cover work of a type traditionally done by bargaining unit employees.