CALPELRA Alert/No "One Year Hiatus" After Unilateral Adoption
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In 2010 after nearly a year of negotiations and impasse over an expired MOU, the City of Santa Rosa unilaterally imposed a second tier pension benefit on the Operating Engineers.  Two weeks later and one month prior to the 2010-2011 fiscal year, the city requested in writing that the union meet with the city to begin negotiations over the city’s proposal to reduce compensation by five percent.

The union refused and claimed it had no obligation to negotiate for a period of one year after the date of imposition.  When the union continued to refuse to meet and negotiate, the city declared impasse.  The union then filed an unfair practice charge claiming that the parties were not required to negotiate for one year after the unilateral imposition. [1]

On appeal, PERB determined that the 2000 amendment to the MMBA, Section 3505.4, clarified that a unilateral adoption cannot impose an MOU, cannot deprive the parties of their obligation to meet and confer promptly upon request by either party, and does not require a one year hiatus from bargaining.

In addition, PERB added a reminder that PERB has long held that unilateral impositions – after the good faith completion of impasse procedure – cannot impose a collective bargaining agreement with a duration clause limiting negotiations for a specific period.  Unilateral imposition cannot waive or limit the union’s right to bargain if the impasse is broken by a significant union concession. [2]
 
[1] City of Santa Rosa (2013) PERB Decision No. 2308-M.
[2] See Public Employment Relations Bd. v. Modesto City Schools Dist. (1982) 136 Cal.App.3d 881, State of California (Department of Personnel Administration) (2010) PERB Decision No. 2130-S, Rowland Unified School District (1994) PERB Decision No.1053.

SIGNIFICANCE

Although this case is recent, it does not represent new law.  But after all these years, CALPELRA regularly receives questions from MMBA agencies about the theory of a year’s hiatus after a unilateral adoption.

Ever since the Modesto City Schools cases in the early 1980’s, PERB and the courts have recognized that an employer cannot impose an MOU, or a zipper clause, or any such device that automatically waives the union’s right to bargain for any period of time.  This rule was highlighted by the recent Santa Rosa case when the metaphorical shoe was on the other foot.

For your easy reference, we include a summary of the CALPELRA Labor Relations Academy 6 and Academy 7 basic concepts of MMBA unilateral imposition:
  • The employer can unilaterally impose mandatory subjects of bargaining after good faith negotiations and good faith exhaustion of required impasse procedures.
     
  • The unilateral adoption resets the status quo on the imposed terms and conditions, but cannot establish a limit or a waiver on the obligation to meet and confer.
     
  • The original impasse can be broken by a change in circumstances (in most instances an offer) that significantly changes the bargaining positions and revives the possibility of fruitful discussion.
     
  • Even if the negotiations are revived by changed circumstances, a new deadlock can occur.  There is no obligation to go back through the impasse procedures on the revived negotiations.
     
  • The unilaterally imposed terms must closely approximate the terms of the employer’s LBFO.
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:  Ivette Peña, Superior Court of California, County of Los Angeles
Alert No. 13-08,  Authors:  William F. Kay, Burke, Williams & Sorensen and
M. Carol Stevens, CALPELRA Executive Director
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.
Copyright © 2013 CALPELRA (California Public Employers Labor Relations Association), All rights reserved.