July 19, 2022 Bargaining Report

A New CASE Website. Before we dive into this weeks’ table update, we invite CASE members to check out the all-new CASE Website. We think you’ll find a more intuitive, easily navigated, and informative source for all CASE information – including past issues of both the Bargaining Report and CASE Files. Access to the Report and Files archives, as well as consumer discounts, and other member-only benefits, is protected by the password membersmatter22. Now on to this week’s bargaining news.

A Frustrating Week. While CASE and CalHR made progress on various provisions of the MOU, with two big issues still very much in discussion (telework and paid family leave), the news from CalHR on salaries was . . . disheartening. 

After waiting nearly one full month for CalHR to respond to CASE’s offer from mid-June, CalHR responded this week with . . . the exact same offer they made on June 11: 2.5% per year for three years for a total of 7.5% along with a 5% special salary adjustment for the maximum salary for ALJs. It should go without saying but we’ll say it anyway: that’s not good enough. 

So What Now. It’s time to start getting (strategically) loud. Here are two things you can do today to help make the case for CASE: Sign our petition: Add your name to the public call for the salary and benefits needed to keep Unit 2 positions filled and Californians protected. 

Amplify member stories on social media: Follow us on social and promote the vital services CASE members provide to Californians by retweeting or sharing posts on Twitter, Facebook, LinkedIn, and Instagram.

Impasse, Bad Faith, and PERB. Many members have asked for clarification on what constitutes “bad faith bargaining” and have questions about the standards for declaring impasse in negotiations. Accordingly, here’s a primer on how PERB views those topics.

Duty to Bargain
The duty to bargain does not compel either party to reach agreement or make concessions.  (County of San Luis Obispo (2015) PERB Decision No. 2427, p. 29.)  “An employer is not required to lead with his best offer; he is free to bargain.”  (NLRB. v. Katz (1962) 369 U.S. 736, 745.)  

The California Public Employment Relations Board (PERB) has jurisdiction over these matters. PERB has differentiated lawful hard bargaining from improper take-it-or-leave-it tactics based primarily on whether the accused party has provided an adequate explanation for pursuing its inflexible position. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 8.)  Thus, “if a party’s inflexible position is fairly maintained and rationally supported, such facts do not amount to bad faith, absent other evidence.”  (Ibid.) 

Totality of Conduct
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.) Under the totality of conduct test, the ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 7.) 

With regard to declarations of impasse, it is important to note that “it is clear that impasse exists only when PERB makes such a determination, not when one or both of the parties believe impasse has been reached.”  (Trustees of CSU (1999) PERB Decision No. 1333-H, p. 3.)  

The general rule for declaring impasse is as follows:  
A bona fide impasse exists if the parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices.   

(City and County of San Francisco (2020) PERB Decision No. 2691-M, p. 39;  City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; County of Riverside (2014) PERB Decision No. 2360-M, p. 13.) 

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; 
– the nature of the unresolved issues and the parties’ discussions of such issues to date.  

(See San Francisco, supra, PERB Decision No. 2691-M, p. 39; San Ramon, supra, PERB Decision No. 2571-M, pp. 9-12; Riverside, supra, PERB Decision No. 2360-M, pp. 13-14.)  

Generally, both parties must believe they are at the “end of their rope,” which is typically negated if one party displays continuing movement, or if the other party references a deadline for completion of negotiations and acts in accordance with that deadline.  (San Francisco, supra, PERB Decision No. 2691-M, p. 39; Riverside, supra, PERB Decision No. 2360-M, p. 13.)  

Note that there is a potential intersection between bad faith and impasse, as PERB has repeatedly held that “A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is ‘premature, unfounded, or insincere’.”   (See, e.g. Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M (Fresno), p. 53.) 

Bad Faith   
It is worth noting that 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 – however, PERB has rarely, if ever, made a finding that one instance of conduct is sufficient to support a finding of bad faith.  (City of San Jose PERB Decision No. 2341-M, pp. 22-23.)  Moreover, the party asserting impasse bears the burden of proving it, and therefore bears the risk of declaring impasse prematurely when parties were not objectively at impasse at the time. (City of Glendale (2020) PERB Decision No. 2694-M, p. 61.)  Thus, the potential downside of filing a premature request for impasse is that it may not only be unsuccessful, but could actually expose the party seeking a declaration of impasse to an allegation of bad faith bargaining.  

The parties return to the table this week.

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