Decision 2751M – * * * JUDICIAL APPEAL PENDING * * * City of San Gabriel

LA-CE-1297-M

Decision Date: December 14, 2020

Decision Type: PERB Decision

Description: Respondent City of San Gabriel (City) excepted and Charging Party San Gabriel Fire Fighters Association (Association) cross-excepted to a proposed decision finding that the City failed to meet and confer in good faith with the Association over a successor memorandum of understanding and interfered with employee and organizational rights in violation of the Meyers-Milias-Brown Act.

Disposition: The Board adopted the proposed decision as the decision of the Board itself.

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Perc Vol: 45
Perc Index: 64

Decision Headnotes

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

In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific conduct involved and its effect on the negotiating process. Per se violations
generally involve conduct that violates statutory rights or procedural bargaining norms, irrespective of a party’s intent. In contrast, the totality of conduct test applies to bad faith bargaining allegations that our precedent has not identified as constituting a per se refusal to bargain. In such surface bargaining cases, 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. The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. Because PERB evaluates the net effect of respondent’s conduct on the course of negotiations, even 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. (pp. 17-18.)

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

A party cannot in good faith make an exploding proposal unless it can adequately explain a legitimate basis for doing so. When a party issues an exploding offer without an adequate explanation as to why its bargaining position should become less generous on a given date in the future, it preemptively indicates its intent to engage in regressive bargaining, imposes its own ground rule and deadline, evidences unlawful inflexibility, and manifests a take-it-or-leave-it attitude. Although an exploding offer is not a per se violation, 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. (p. 18.)

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

The Board rejected the City’s arguments that it had a legitimate basis for making an exploding offer. When asked at hearing why the City made its exploding offer, a City bargaining representative testified that it was compelled to do so because of the dictates of CalPERS deadlines and payroll processing. However, the record did not support this claim, as the City acknowledged that it was, in fact, able to timely report open enrollment information to CalPERS. The City also claimed that the exploding offer was justified because it needed to curb ongoing liability for overtime costs related to Flores v. City of San Gabriel (9th Cir. 2016) 824 F.3d 890 (Flores), in which the United States Court of Appeals for the Ninth Circuit held that the City had improperly calculated some of its employees’ regular rate of pay. The ALJ found that any urgency created by the City’s need to comply with Flores was a dilemma of the City’s own making, as it knew by May 2017 that the decision had become final, yet still waited until August 2017 to make its first contract proposal to the union, which was four months after the union made its first proposal. Because an exploding offer risks the same harm as regressive bargaining in that it “telegraphs a threat to move the parties farther apart unless the other party accedes to a particular unilaterally-established deadline,” a party typically must show changed economic conditions or other changed circumstances to support such an offer. The Flores decision constituted neither, as the City knew of its potential liability as early as June 2016, when the Ninth Circuit issued its decision, or by June 2017 at the latest, which is when the City claimed that it learned its petition for writ of certiorari had been denied. Finally, even setting aside the City’s delay, an employer cannot unilaterally choose a date by which it needs to conclude negotiations so that it can begin saving money. (pp. 18-22.)

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

A party evinces bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere” (City of San Ramon (2018) PERB Decision No. 2571-M, p. 10), as such action “demonstrate[s] an intent to subvert the negotiating process.” (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) An employer may impose new terms after impasse only if it bargained in good faith throughout negotiations, from “inception through exhaustion of statutory or other applicable impasse resolution procedures.” (City of San Ramon, supra, PERB Decision No. 2571-M, p. 6.) Thus, an employer is not privileged to impose concessions absent a bona fide impasse and doing so constitutes an illegal unilateral change. The Board considers the totality of circumstances to determine whether a bona fide impasse existed, including the number and length of negotiating sessions between parties, the time period over which the negotiations occurred, and the extent to which the parties have made and discussed counterproposals to each other. (pp. 23-24.)

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

The City’s allegedly diligent attempts to meet and confer in good faith before declaring impasse do not comport with the record. Formal bargaining opened on April 12, 2017, at which point the Association presented its first proposal to the City. The City effectively idled for the next three months, finally announcing on July 31, 2017 that it was available to begin negotiations on August 16 or 17, 2017. In total, 139 days passed before the parties held their second bargaining session on August 29, 2017,
when the City presented its first proposal to the Association. The City’s timeline accelerated thereafter. The City did not wait for a third bargaining session or even for the Association’s response to its first proposal before issuing its LBFO on October 10, 2017. The City’s expressions of good faith ring hollow. Foremost, the City’s claimed “repeated attempts” to meet and confer with the Association were limited to the six-week period subsequent to the parties’ first formal bargaining session on August 29, 2017, with no accounting for the preceding 139 day period, during which the City appears to have sat on the Association’s proposal. Moreover, the City’s claimed attempts to meet and confer with the Association in the 42 days between August 29 and October 10, when it issued its LBFO, consists merely of a September 6, 2017 request for an additional bargaining date. Examined in their totality, these facts do not absolve the City of the finding that it rushed to impasse. We conclude, with the ALJ, that the City’s actions did not evince a genuine desire to reach an agreement, but rather a singular focus on achieving the City’s primary end—the elimination of the Flexible Benefit Plan by a date certain—at any expense to the bargaining process. (pp. 24-26.)

804.00000 – UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT
804.02000 – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

Because bad faith bargaining allegations require assessment of the totality of conduct, the Board may also consider the charging party’s own conduct, regardless of whether the respondent has filed a countercharge. The City contends that the ALJ erred in concluding that it committed bad faith bargaining under the totality of conduct analysis because the ALJ failed to account for the Association’s own bad faith conduct. We disagree. Once the parties reach a tentative agreement, the duty of good faith implies that the negotiators will take the agreement to their respective principals in good faith. Negotiators have an obligation not to “torpedo” the proposed agreement or undermine the process that has occurred. If either party does not ratify the agreement, then the duty to bargain is revived. Torpedoing may take the form of repudiating an agreement, or making false statements about it. However, there is no evidence here suggesting such false statements or repudiation. The City argues that the ALJ ignored evidence that the Association failed to recommend the tentative agreement the parties reached at mediation, and instead torpedoed it during the ratification vote. While there is no dispute the parties reached a tentative agreement at the mediation, none of the evidence the City cites in support of its claim that the Association “indicated [to its membership] that the proposal should be voted down” persuades us that the Association’s representatives actually undermined ratification of the agreement. There is no evidence in the record that any Association agent actively campaigned against ratification of the agreement or repudiated it. Moreover, recommending a tentative agreement by the negotiations team is never a guarantee that the membership will ratify the proposal. We therefore do not find that any conduct by the Association excuses the City’s bad faith conduct. (pp. 28-30.)

804.00000 – UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT
804.02000 – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

While “actively campaigning” against a tentative agreement may be another unlawful form of torpedoing, the level of dissenting bargaining team members’ active campaigning that would be sufficient to prove a union’s bad faith remains an unresolved issue. We need not address that question under the facts presented herein as there is no evidence that the Association engaged in any kind of conduct that undermined the negotiations process. (p. 29, fn. 23.)

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

Consistent with City of Glendale (2020) PERB Decision No. 2694-M, the ALJ found that the City demonstrated bad faith when it imposed three terms and conditions of employment that were not reasonably comprehended within its LBFO: the shift
schedule change, the increase of the maximum vacation accrual, and the change in special assignment pay for the paramedic coordinator. (p. 30, fn. 25.)

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

It is appropriate to order a party to reinstate a withdrawn offer that it withdrew as part of an overall course of bad faith conduct. Distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered, ordering a bargaining party to return to a prior bargaining position that it abandoned in bad faith is well within the Board’s authority to craft a remedy that compensates affected parties and withholds from the wrongdoer the fruits of its violation. In accordance with these principles, we find that the ALJ’s Mead Corp. order was proper. We also agree with the ALJ that the present circumstances call for an order allowing the Association some choice regarding its preferred method of remedying the City’s violation, as “‘[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.’” (pp. 32-33.)