Decision 3010H – Regents of the University of California
SF-CE-1502-H
Decision Date: February 26, 2026
Decision Type: PERB Decision
Description: University Professional and Technical Employees, Communication Workers of America Local 9119 (UPTE) alleged in part that Regents of the University of California (UC) violated HEERA by refusing to bargain over wages for a recently accreted Research and Development Engineer (RDE) classification during successor agreement bargaining. On December 16, 2024, UPTE requested that PERB determine that impasse existed in successor bargaining and appoint a mediator; PERB subsequently appointed a mediator. On December 30, 2024, PERB issued a Unit Modification Order accreting RDE employees into UPTE’s TX unit. In early January 2025, UC repeated its request to bargain accreted classification wages separately from successor bargaining, although UPTE had previously requested that bargaining over accreted wages occur in successor bargaining. After UPTE reiterated its previous request and pointed out that the parties should discuss accretion wages with the impasse mediator, UC continued to demand separate bargaining and accused UPTE of bad faith bargaining. PERB’s Office of General Counsel dismissed the allegation because the duty to bargain in good faith was dormant during impasse, citing Victor Valley Union High School District (1986) PERB Decision No. 565, pp. 7-8 (Victor Valley), and UC did not refuse to bargain over RDE wages.
Disposition: The Board reversed OGC’s partial dismissal and remanded for a complaint to issue. While Victor Valley is correct that the duty to bargain is “dormant” during impasse resolution procedures, the Board found that the decision fails to explain that parties engaged in impasse processes are bound by a very similar duty to participate in impasse procedures in good faith, and PERB applies the same per se and totality of conduct tests irrespective of which duty applies. The Board therefore overruled Victor Valley and Regents of the University of California (1996) PERB Decision No. 1157-H to the extent they suggest that the duty to participate in impasse procedures in good faith differs in its nature from the duty to bargain, as well as to the extent the decisions failed to apply the per se and totality of conduct tests.
Analyzing the prima facie case under the facts as alleged, the Board first rejected OGC’s finding that UPTE failed to establish that UC refused to bargain RDE wages, as such a reading did not match PERB’s obligation before a complaint issues to view facts in a light most favorable to the charging party. Second, the fairest reading of UC’s January 2025 communications demonstrates that UC refused to discuss any accreted wages, including the RDE classification, as part of the impasse resolution stage.
Applying the same per se and totality tests to the instant dispute, the Board found that UC’s refusal to include a mandatory subject of bargaining (wages) in impasse resolution procedures and insist on bargaining a mandatory subject separately, at minimum, are evidence of several totality of circumstances factors, including piecemeal bargaining, dilatory and evasive conduct, and conduct that tends to frustrate negotiations. And because there is a colorable theory that UC’s conduct had the practical effect of an outright refusal to participate in impasse procedures regarding a mandatory subject, a prima facie per se violation also exists.
Perc Vol: 50
Perc Index: 132
Decision Headnotes
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
HEERA, at minimum, requires employers and employee organizations to meet and confer in good faith over wages, hours, and other terms and conditions of employment. (§§ 3570; 3562(q).) 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. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) In contrast, the totality of conduct test applies to allegations of bad faith bargaining conduct that does not constitute a per se refusal to bargain. (Id. at p. 35.)
601.01000 – In General, Per Se and Totality of Conduct; Prima Facie Case
An absolute refusal to meet and confer over a mandatory subject of bargaining is a “per se” violation. (Regents of the University of California (2021) PERB Decision No. 2783-H, p. 31.) Piecemeal bargaining, requiring that bargaining for a mandatory subject occur separately, “reduces the flexibility of collective bargaining and narrows the range of possible compromises by rigidly and unreasonably fragmenting negotiations. . . .” (City of Santa Rosa (2013) PERB Decision No. 2308-M, p. 5, citing NLRB precedent; accord County of Sacramento (2020) PERB Decision No. 2745-M, p. 22; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, pp. 36-37; El Dorado County Superior Court (2017) PERB Decision No. 2523-C, p. 12.) PERB generally evaluates piecemeal or fragmented bargaining allegations as indicia of bad faith under the totality of conduct test. (City of San Jose (2013) PERB Decision No. 2341, p. 37 (San Jose).) However, where such bargaining frustrates the bargaining process to a point that it would have the practical effect of a refusal to bargain, a per se violation exists. (Id. at pp. 38-39.)
900.01000 – In General
An impasse dispute resolution procedure continues the bargaining process. (Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196-97 (Moreno Valley); see also San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16 (San Bernardino).) HEERA requires employers and employee organizations to participate in certain impasse resolution procedures, including mediation and, where requested after no settlement occurs in mediation, factfinding. (§§ 3571(e), 3571.1(d); see § 3590 et seq.) Accordingly, both parties must participate in such impasse procedures in good faith. (Moreno Valley, supra, at p. 198; County of Santa Clara (2020) PERB Order No. Ad-483-M, pp. 5-6; City of Davis (2012) PERB Decision No. 2271-M, p. 6.)
900.01000 – In General
In evaluating a claimed failure or refusal to participate in good faith in impasse resolution procedures, PERB applies the same per se and totality of conduct tests that govern bad faith bargaining claims. (Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196-97; San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16; Temple City Unified School District (2008) PERB Decision No. 1972, p. 12, fn. 12.)
900.01000 – In General
Victor Valley was technically correct that the duty to bargain is “dormant” during impasse resolution procedures, but the decision fails to explain that parties engaged in those processes are bound by a very similar duty (to participate in impasse procedures in good faith), and PERB applies the same per se and totality of conduct tests irrespective of which duty applies. (Compare Victor Valley (1986) PERB Decision No. 565, pp. 7-8 with San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16.) Victor Valley and Regents of the University of California (1996) PERB Decision No. 1157-H are overruled to the extent they suggest that the duty to bargain in good faith differs in its nature from the duty to bargain, as well as to the extent the decisions failed to apply the per se and totality of conduct test.
900.04000 – During Impasse
An impasse dispute resolution procedure continues the bargaining process. (Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196-97 (Moreno Valley); see also San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16 (San Bernardino).) HEERA requires employers and employee organizations to participate in certain impasse resolution procedures, including mediation and, where requested after no settlement occurs in mediation, factfinding. (§§ 3571(e), 3571.1(d); see § 3590 et seq.) Accordingly, both parties must participate in such impasse procedures in good faith. (Moreno Valley, supra, at p. 198; County of Santa Clara (2020) PERB Order No. Ad-483-M, pp. 5-6; City of Davis (2012) PERB Decision No. 2271-M, p. 6.)
900.04000 – During Impasse
In evaluating a claimed failure or refusal to participate in good faith in impasse resolution procedures, PERB applies the same per se and totality of conduct tests that govern bad faith bargaining claims. (Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983) 142 Cal.App.3d 191, 196-97; San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16; Temple City Unified School District (2008) PERB Decision No. 1972, p. 12, fn. 12.)
900.04000 – During Impasse
Victor Valley was technically correct that the duty to bargain is “dormant” during impasse resolution procedures, but the decision fails to explain that parties engaged in those processes are bound by a very similar duty (to participate in impasse procedures in good faith), and PERB applies the same per se and totality of conduct tests irrespective of which duty applies. (Compare Victor Valley (1986) PERB Decision No. 565, pp. 7-8 with San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16.) Victor Valley and Regents of the University of California (1996) PERB Decision No. 1157-H are overruled to the extent they suggest that the duty to bargain in good faith differs in its nature from the duty to bargain, as well as to the extent the decisions failed to apply the per se and totality of conduct test.