PERB finds common public employer tactics used to artificially create impasse bad faith

On December 6, 2013, PERB published a 50-page decision (PERB Decision No. 2341-M) that significantly impacts a broad range of bargaining tactics in contract negotiations.  PERB overturned the dismissal of a union’s charge that the City of San Jose engaged in surface bargaining during negotiations for a new MOU; PERB’s General Counsel will now issue a complaint that the City of San Jose engaged in bad faith bargaining.

In reaching its decision, PERB addressed a number of tactics sometimes adopted by public employers to delay agreement or to artificially create impasse; here are three major takeaways.

First, PERB ruled that a party may not insist to the point of impasse on a “proposal” to postpone negotiation of a mandatory subject until after agreement has been reached on the other mandatory subjects.  The reason is that such a “proposal” is essentially the same as outright refusing to discuss a mandatory subject, and such a refusal is already forbidden by law.  As PERB succinctly put it, “If a party may not delay negotiations, by refusing to discuss other subjects until agreement is first reached on one particular subject, a party may not achieve the same result simply by casting its refusal as a ‘proposal’ to defer discussion over a particular subject to an indefinite, future date when negotiations over all, or nearly all, other subjects have been concluded.”

Second, and similarly, PERB ruled that a party may not insist to the point of impasse on a “proposal” to discuss a mandatory subject only after the new contract has taken effect.  While PERB did not forbid parties to make “reopener” proposals, it ruled that insisting on them to the point of impasse does not satisfy the duty to bargain in good faith.

Third, PERB ruled that a party may not “move negotiations as rapidly as possible to impasse and the imposition of terms as a way to obtain concessions without first bargaining in good faith to bona fide impasse or agreement.”  This ruling prevents an employer from prematurely announcing impasse just so it can pressure the Union to make further concessions.

These are only a few of the issues affected by PERB’s lengthy decision in this case.  Parties to upcoming negotiations will want to read the decision thoroughly to ensure they do not employ tactics PERB considers to be “bad faith” bargaining. 

For questions regarding the duty of all parties to bargain in good faith, or other issues affecting public sector employees, please contact your labor law counsel. 

By Rob Szykowny | December 18, 2013

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