CALPELRA Alert:  City Violated Good Faith Bargaining Duty
PERB determined the City of Selma failed to bargain in good faith with its firefighters by prematurely declaring impasse and subsequently unilaterally adopting its last, best, and final offer (LBFO).[1]
 
Negotiations History
In late spring 2011, the City and the firefighters began negotiating a successor MOU. Beginning in March and continuing through the middle of May 2011, the City Manager conducted three informal “roundtable meetings” involving all the unions where proposals were not exchanged and substantive negotiations were not conducted. No fire union representative was present at the first of these meetings.

The fire union and the City did not hold the first formal bargaining session involving successor wages and the proposed transition (contracting out) of fire services to the California Department of Forestry and Fire Protection (CalFire) until June 2, 2011. On June 2, the City Manager made the only proposal when he verbally proposed a five-year phase-in of the employees paying for the full employee pension contribution. Prior to this date the City paid the full EPMC. At the same meeting, the union did not respond to the City Manager’s proposal, and only requested budget and costing information.

At the second bargaining session on June 16, the City made a written proposal that included the requirement that the union pay the full pension contribution phased-in over five years, and in addition a “furlough of a maximum of 10 percent,” and a salary reopener during the second year.

On June 30, the City Council – facing a budget deadline of July 1, 2011, without resolution of the fire negotiations and a clear plan to close an $830,000 deficit – voted to extend the budget deadline to an indefinite date in order to “finalize our budget and finalize any negotiations.” 

On the July 1, the City presented the fire union with a written LBFO requiring the firefighters to pay the full 8 percent employee contribution, but eliminating any furloughs for the next year. On July 8, the union responded with a written “package” counter-proposal that included the 8 percent pension contribution and no-furloughs, but also included a 6 percent salary increase at the end of six months if the transfer of fire services to CalFire did not take place.

The City did not respond to the union’s counter-proposal until the union president followed up on July 12, with an e-mail request to continue meet and confer. The following day the City Manager responded that the Council had rejected the union’s “package proposal"; the City believed the parties were at impasse; and the City would be adopting a budget incorporating the City’s LBFO.

On July 18, 2011, the City Council adopted a resolution imposing the City’s LBFO, despite additional union e-mail and voice-mail requests to continue the meet and confer process.

PERB Decision
PERB upheld the ALJ’s determination that the City prematurely declared impasse, violating its duty to bargain in good faith, and the City was therefore not permitted to implement the LBFO. 

Relying on its seminal decisions in County of Riverside[2] and City of San Jose[3], PERB determined, by the following actions, the City demonstrated lack of intent to reach and agreement with the fire union: (1) engaging in surface bargaining; (2) prematurely rushing to and declaring impasse; and (3) after the impasse declaration, refusing to meet with the union and foreclosing the possibility of genuinely bridging the differences between the parties.  Specifically, PERB focused on the City’s refusal to meet for the purpose of clarifying or explaining (a) the differences between the City’s first and final proposals, and (b) whether or not the parties could make further movement.

Factors Demonstrating Premature Impasse Declaration
PERB cited four factors indicating a premature declaration of impasse: (1) the City’s outright refusal to negotiate after presenting its revised July 1 LBFO; (2) the limited number of face-to-face bargaining sessions that preceded the declaration of impasse; (3) the City’s refusal to provide any explanation for its sudden change to its LBFO; and (4) the continued refusal to meet with the union after receiving the union’s counter-proposal.

PERB rejected the City’s numerous contentions on appeal, including the assertion that the union subverted the negotiations with its salary proposal contingent upon the CalFire transfer. PERB dismissed the City’s claim by noting that the City itself proposed a wage reopener in the subsequent year, and that during bargaining, the City did not object to the union’s proposal or attempt to clarify whether the union’s proposal was outside the parameters of the immediate negotiations.

Budget Deadlines Do Not Suspend The Duty To Negotiate
PERB again reiterated its holding in the County of Riverside that the City of Selma's July 1, 2011, budget adoption deadline did not justify the City’s impasse declaration and LBFO presentation. PERB has long held that neither a budget deadline nor economic exigencies provide a justification for suspending the duty to bargain. Budget exigencies may have consequences on the employer and may change the employer’s proposals, but these deadlines do not suspend the duty to meet and confer in good faith.

City Ordered To Pay Lost Wages And 7 Percent Interest
As a remedy, PERB ordered the City to cease and desist from its bad faith negotiations, and to restore the status quo prior to the unilateral adoption – including making whole the employees for lost wages or benefits with 7 percent interest.
Impacts And Practitioner Tips
Too frequently, MMBA jurisdictions do not cautiously approach the declaration of impasse. Unlike other statutes such as the Education Employee Relations Act (“EERA”), the MMBA does not have a defined process for declaring impasse.  Without a defined process, MMBA agencies are more likely to prematurely declare impasse.  Because PERB will prohibit an agency that prematurely declares impasse from post-impasse implementation of any last, best, and final offer, MMBA agencies must learn to demonstrate that further negotiations would be futile before declaring impasse.  To meet this PERB standard, agencies must understand which agency actions constitute premature impasse declaration.

To avoid PERB determination of a premature impasse declaration, remember the following:
  • A budget deadline is no excuse to rush to impasse or to subvert the duty to meet and confer in good faith.
  • The issuance of an LBFO, if unaccepted, does not mean an end to the meet and confer process, especially if the union requests to continue the process.
  • The existence of a bona fide impasse is governed by evidence that further negotiations will be futile, including:  (1) the number of formal negotiation sessions; (2) the extent to which the key issues remain unresolved; and (3) the extent to which the employer has negotiated in good faith prior to declaring the impasse.
[1] City of Selma (2014) PERB Decision No. 2380-M.
[2] County of Riverside (2014) PERB Decision No. 2360-M.
[3] City of San Jose (2013) PERB Decision No. 2341-M.
This Alert summarizes a significant recent court case, arbitration decision, legislation, or other important information.  The Alert format is not intended as a periodic review of all significant cases, but instead provides labor relations practitioners with key information for immediate guidance in day-to-day activities.
CALPELRA President:  G. Scott Miller, Ventura Port District
Alert No. 14-16,  Author:  William F. Kay and M. Carol Stevens, Burke, Williams & Sorensen
The information contained in this publication is not intended to constitute professional counsel or a legal opinion. Although we consider the information to be timely and accurate, there is no substitute for personal counsel with a professional. Provided with specific facts, your attorney can fashion a solution sensitive to your needs.
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