Decision 2861M – Imperial Irrigation District

Pursuant to Evidence Code section 452, subdivision (c), the Board took permissive administrative notice of two official acts of the executive department of the State of California: (1) the Governor’s March 4, 2020 Proclamation of a State of Emergency; and (2) Executive Order N-33-20, dated March 19, 2020, wherein the Governor noted that “in a short period of time, COVID-19 has rapidly spread throughout California. Additionally, the Board took permissive administrative notice of the Centers for Disease Control positive COVID-19 case rates in March 2020. (p. 41, fn. 25.)

An employer endeavoring to avail itself of the MMBA’s emergency defense in section 3504.5, subdivision (b) must meet a high bar: it must not only prove the existence of an actual financial or other emergency, it must also show that the emergency left the employer with no alternative to the action taken and allowed insufficient time for meaningful negotiations before taking action. In emergencies where immediate adoption of a resolution without meeting and conferring is necessary, the statute further requires the employer to provide the exclusive representative “notice and opportunity to meet at the earliest practicable time following the adoption.” (§ 3504.5, subd. (b).) (pp. 41-42.)

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 conduct” analysis, depending on the specific conduct involved. Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. Unlike the totality of conduct analysis, a per se violation requires no inquiry into the respondent’s subjective intent or finding of bad faith. (p. 42.)

An exclusive representative is presumptively entitled to information that is necessary and relevant in discharging its representational duties or exercising its right to represent bargaining unit employees regarding terms and conditions of employment within the scope of representation. In this context, the terms “necessary” and “relevant” do not have separate meanings. PERB uses a liberal, discovery-type standard, like that used by the courts, to determine relevance. A party responding to an information request must exercise the same diligence and thoroughness as it would in other business affairs of importance. An unreasonable delay in providing information constitutes as much of a violation as an outright refusal. Here, there is no question that IBEW requested information relevant to representing unit employees regarding terms and conditions of employment within the scope of representation. The April 13 RFI requested, among other things, information relating to protective measures the District would take to ensure the integrity of sequestration, the number of positions and employees that would be sequestering at each site, and lodging and food arrangements for sequestered employees. As issues concerning health and safety, they are within the scope of representation and therefore presumptively relevant. The same is true of IBEW’s April 16 RFI, which requested information relating to a potential involuntary sequestration scenario, and specifically, how the District would handle such circumstances, as well as how it would treat an employee who refused to sequester. As the ALJ pointed out, discipline is within the scope of representation “both as to the criteria for discipline and as to the procedures to be followed.” (County of Monterey (2018) PERB Decision No. 2579-M, pp. 11-12.) (pp. 46-47.)

A responding party’s primary defenses to producing relevant information are waiver, privacy, undue burden, or an absolute or qualified privilege. A responding party waives any defenses to disclosure that it fails to raise promptly after receiving a request. Moreover, if an information request requires clarification, is unduly burdensome, or seeks private information, the responding party is not permitted to deny the request outright and must instead offer to bargain in good faith regarding an appropriate accommodation. Here, the District never contested the relevance of IBEW’s requested information. Rather, the District objects to the ALJ’s characterization of its failure to respond as a “total abandonment of its obligation to provide necessary and relevant information to IBEW upon request,” explaining that it was consumed “just managing through COVID” and the various demands created by the pandemic until at least January or February 2021. It offered no other basis for its lack of response. Of the potential defenses available to the District, the only one with possible applicability in these circumstances is undue burden. However, the District waived this defense by failing to affirmatively and timely assert its concerns to IBEW such that the parties could bargain over them. (pp. 46-48.)

An employer that declares impasse without reaching a bona fide impasse after good faith negotiations, and then refuses to bargain further or proceeds to change employment terms, commits a per se violation. In this case, as the ALJ found, the District did not declare impasse, and it would not have been appropriate for the District to do so given that the parties’ differences were not “so substantial and prolonged that further meeting and conferring would be futile.” (p. 49.)

Impasse under the MMBA “exists where the parties have considered each other’s proposals and counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached a point in their negotiations where continued discussion would be futile.” (City of Long Beach (2012) PERB Decision No. 2296-M, p. 15 [finding the employer implemented its planned furlough despite no evidence that the parties’ negotiations had reached a point where further negotiations would be futile, regardless of whether the City declared impasse].) “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.’” (City of Glendale (2020) PERB Decision No. 2694-M, p. 60, quoting City of San Ramon (2018) PERB Decision No. 2571, p. 6.) A party asserting impasse bears the burden of proving it. If there is doubt as to whether an impasse exists, the party asserting impasse has the burden to seek clarification of the other party’s position. (pp. 48-49.)

Impasse under the MMBA “exists where the parties have considered each other’s proposals and counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached a point in their negotiations where continued discussion would be futile.” (City of Long Beach (2012) PERB Decision No. 2296-M, p. 15 [finding the employer implemented its planned furlough despite no evidence that the parties’ negotiations had reached a point where further negotiations would be futile, regardless of whether the City declared impasse].) “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.’” (City of Glendale (2020) PERB Decision No. 2694-M, p. 60, quoting City of San Ramon (2018) PERB Decision No. 2571, p. 6.) A party asserting impasse bears the burden of proving it. If there is doubt as to whether an impasse exists, the party asserting impasse has the burden to seek clarification of the other party’s position. (pp. 48-49.)

Under the MMBA, only a written impasse declaration triggers a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it is difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it is difficult for such an employer to assert that it has exhausted its bargaining obligation. While the District did not declare impasse, its April 20 letter was tantamount to an impasse declaration in that it indicated the District’s intent to conclude negotiations and impose its own terms. Even had this letter expressly declared impasse, in any event the District cannot prove that a bona fide impasse existed as of April 20. Here the District was not faced with a point where continued negotiations would be futile. Far from it. Negotiations had, in fact, been productive for the nine-day period in which the parties had been exchanging proposals. By its April 20 letter, the District abandoned any further negotiations and changed employment terms by implementing the Sequestration Policy. This conduct not only proves a prima facie case of unilateral change but also a prima facie case of outright refusal to bargain, a separate per se violation of the duty to meet and confer in good faith with IBEW. (p. 49, fn. 28 & p. 50.)

Under the MMBA, only a written impasse declaration triggers a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it is difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it is difficult for such an employer to assert that it has exhausted its bargaining obligation. While the District did not declare impasse, its April 20 letter was tantamount to an impasse declaration in that it indicated the District’s intent to conclude negotiations and impose its own terms. Even had this letter expressly declared impasse, in any event the District cannot prove that a bona fide impasse existed as of April 20. Here the District was not faced with a point where continued negotiations would be futile. Far from it. Negotiations had, in fact, been productive for the nine-day period in which the parties had been exchanging proposals. By its April 20 letter, the District abandoned any further negotiations and changed employment terms by implementing the Sequestration Policy. This conduct not only proves a prima facie case of unilateral change but also a prima facie case of outright refusal to bargain, a separate per se violation of the duty to meet and confer in good faith with IBEW. (p. 49, fn. 28 & p. 50.)

PERB applies the totality of conduct test to allegations of bad faith bargaining conduct that do not constitute a per se refusal to bargain. Under the totality test, a party is permitted to maintain a “hard bargaining” position on one or more issues, if the entire course of its bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. Here, based on indicators the ALJ noted and others we note below, we find that IBEW proved not only per se bargaining violations but also bad faith bargaining under the totality test. First, the ALJ correctly found that the District approached negotiations “with an attitude that is incompatible with good faith bargaining.” These repeated statements ignored the nature of an emergency defense. Even when a sudden emergency resulting from circumstances beyond an employer’s control leaves it no alternative but to take immediate action, there remains an obligation to bargain in good faith as time allows. By asserting from the onset of negotiations that it had no obligation to bargain with IBEW over the Sequestration Policy, and repeating that sentiment, the District disregarded precedent holding that even when an emergency allows temporary unilateral action, it does not simply extinguish the duty to bargain.

Other bad faith indicators are the District’s reversal of its bargaining position without any explanation and its failure to respond to IBEW Counter #5 in any manner and without any explanation or rationale. Lastly, the District’s three per se violations—unilateral implementation of the Sequestration Policy, failure to respond to IBEW’s two RFIs, and premature abandonment of negotiations—are separate, contemporaneous unfair practices that serve as additional indicators of bad faith on the part of the District. Based on the foregoing, the totality of circumstances demonstrates the District bargained in bad faith with IBEW. (pp. 50-54.)

Even when a sudden emergency resulting from circumstances beyond an employer’s control leaves it no alternative but to take immediate action, there remains an obligation to bargain in good faith as time allows. By asserting from the onset of negotiations that it had no obligation to bargain with IBEW over the Sequestration Policy, and repeating that sentiment, the District disregarded the above precedent holding that even when an emergency allows temporary unilateral action, it does not simply extinguish the duty to bargain. (p. 53.)

The MMBA does not define what circumstances constitute an “emergency.” In Sonoma County Organization etc. Employees v. County of Sonoma (1992) 1 Cal.App.4th 267, the Court of Appeal found that the term “has long been accepted in California as an unforeseen situation calling for immediate action.” (Id. at p. 276.) “[A]n emergency must have a substantial likelihood that serious harm will be experienced” and “is not synonymous with expediency, convenience, or best interests.” (Id. at p. 277, internal citations omitted.) While the statutory emergency defense is unique to the MMBA, the Board has recognized an affirmative defense available under all PERB-administered statutes that serves the same function. This “business necessity” defense requires the employer to prove: (1) an actual financial or other emergency that (2) leaves no real alternative to the action taken and (3) allows no time for meaningful negotiations before taking action. In past decisions, the Board has treated the two defenses as interchangeable by requiring the same elements to establish either affirmative defense. Here, there was certainly an emergency. The COVID-19 pandemic was nascent in the United States and rapidly developing. The District’s provision of electricity and water to residents of Imperial Valley was at risk of disruption. While the pandemic permitted the District to sequester employees before it completed negotiations, however, the District failed to demonstrate that the emergency left it with no real alternative to altering the compensation framework before completing negotiations. In addition, although the circumstances here allowed very limited time before taking action to sequester employees, they imposed no rapid deadline on bargaining over compensation. The District therefore did not establish that it was excused from bargaining compensation under section 3504.5, subdivision (b), because it did not prove the second and third prongs of the defense. Moreover, even had it done so, the defense still requires an employer to meet and confer at the earliest practicable opportunity following implementation (§ 3504.5, subd. (b)), yet the District abandoned negotiations altogether contemporaneously with its implementation. (pp. 55-56, 61-62.)

“[N]either exigent circumstances nor a business necessity completely absolves an employer of its duty to notify and bargain.” (Santa Clara County Correctional Peace Officers’ Assn. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1032.) In a bona fide emergency, the employer need not await impasse before taking steps urgently needed to mitigate the emergency, but then the employer must continue bargaining to the extent practicable. Because an emergency is not a static event, changes taken in good faith reliance on a necessity defense should be limited to the timeframe that the emergency requires, and there remains an obligation to bargain in good faith as time allows. (p. 56.)

The District notes that IBEW failed to request bargaining after it sent IBEW notice on May 14 that it would be removing the Sequestration Policy restriction on usage of the 40 hours of post-sequestration vacation time, thereby allowing employees to bank unused time. While there is no complaint allegation relevant to that change, and we find no violation, the District’s argument does not help it with respect to the complaint’s actual allegations. The District’s letter did not refer to the parties’ negotiations or indicate that the District was ready to resume those negotiations. We find no reason to consider this letter an invitation to resume bargaining, nor did it put the onus on the union to create another offer in response to the District’s fait accompli. (p. 63, fn. 35.)

The Board found it proper to order rescission of the Sequestration Policy based on the violations found. Moreover, even had the District followed the law, an emergency is not a static event, and the short-term pandemic emergency has subsided. At such point, an employer can no longer rely on a policy it had unilaterally implemented prior to reaching a bona fide impasse following good faith negotiations. (p. 64, fn. 36.)

The Board ordered various remedies for the District’s unlawful unilateral change and identified issues that could be relevant in compliance. (pp. 65-69.)

The Board concluded that the District’s briefing operated as a waiver, albeit one limited in scope. Accordingly, the Board found it appropriate to order the District to compensate each affected employee for at least 274 hours for each week in sequestration, less any hours equivalent it already paid to employees during their sequestration period(s). The Board’s reasons were multiple. First, in its only exception related to the ALJ’s proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration week is appropriate if the Board finds a bargaining obligation. The District thereby waived any argument that our remedial order should mandate payment for less than 274 weekly hours. The District compounded this waiver when it failed to file a response to IBEW’s cross-exceptions or a reply to IBEW’s response. In compliance, therefore, the District may not put on evidence in support of liability for less than the 274 hours per week ordered. (pp. 64-65.)

The Board concluded that the District’s briefing operated as a waiver, albeit one limited in scope. Accordingly, the Board found it appropriate to order the District to compensate each affected employee for at least 274 hours for each week in sequestration, less any hours equivalent it already paid to employees during their sequestration period(s). The Board’s reasons were multiple. First, in its only exception related to the ALJ’s proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration week is appropriate if the Board finds a bargaining obligation. The District thereby waived any argument that our remedial order should mandate payment for less than 274 weekly hours. The District compounded this waiver when it failed to file a response to IBEW’s cross-exceptions or a reply to IBEW’s response. In compliance, therefore, the District may not put on evidence in support of liability for less than the 274 hours per week ordered. (pp. 64-65.)