Picture this scenario: an employer and a union engage in negotiations for a successor Memorandum of Understanding (MOU), and after several months, reach tentative agreement on some, but not all of the proposals. At that point, one of the parties issues a written declaration of impasse, and the duty to bargain is suspended. The union does not request factfinding, and the employer does not impose its last, best, and final offer, but maintains the status quo. At one point, the employees represented by the union engage in a lawful strike, but then go back to work, and the parties remain at impasse.

A month later, the union representative contacts the employer and expresses an interest in participating in negotiations. The employer and the union exchange emails regarding the meeting, and settle on a date for the meeting. A few days before the agreed-upon meeting, however, the union informs the employer that it needs to reschedule the meeting because the bargaining unit is still at impasse. Approximately two weeks later, the bargaining unit commences a five-day strike. The employer files an unfair practice charge claiming that the strike is unlawful because the parties had resumed negotiations.

Did the parties break impasse? Was the strike unlawful?

A recent Public Employment Relations Board ("PERB" or "Board") decision answered those very questions. In County of Trinity (2016) PERB Dec. No. 2480-M, the Board examined what constitutes a change in circumstance that would break impasse. Relying on its own precedent, the Board reiterated that impasse is broken once either party offers a significant concession from a prior bargaining position. It clarified, however, that merely contemplating making a concession is not the same thing as actually making a concession and will not break the impasse.

In County of Trinity, the County and the United Public Employees of California, Local 792 ("UPEC") negotiated for a successor MOU for employees in the County's General Unit ("GU"), but reached an impasse after several months. In December 2014, the GU employees engaged in a lawful strike which the County did not challenge.

On January 14, 2015, UPEC's negotiator informed the County's negotiator of UPEC's interest in participating in a meeting regarding negotiations. Over the next month, the parties exchanged emails to set up a meeting, which was eventually scheduled for February 26, 2015. Five days before the scheduled meeting, however, UPEC informed the County that the meeting would need to be rescheduled and indicated that "for now the GU is still at impasse for the 2014 negotiations." Approximately one week later, UPEC informed the County that it planned to strike, and from March 2, 2015 through March 7, 2015, engaged in a strike. The County filed an unfair practice charge alleging that UPEC violated the Meyers-Milias-Brown Act by engaging in an unlawful strike. When PERB's General Counsel refused to issue a complaint, the County appealed the dismissal of its charge.

The question for the Board was whether UPEC's conduct in contacting the County to set up a meeting regarding the negotiations and then exchanging emails with the County about setting up such a meeting constituted a break in the impasse. The Board said it did not.

In reaching its decision, PERB noted that when a union and a public agency are engaged in the negotiation process, both parties have an obligation to bargain in good faith. Such good faith includes a limitation on unions from striking during the negotiation process. But if the parties reach impasse, certain employees are permitted to strike because the duty to bargain in good faith is suspended during that time. Impasse can, however, be broken if either party offers to make a significant concession that suggests agreement may be possible—not guaranteed, just possible. But mere speculation about a concession is insufficient to revive the bargaining process. As the Board explained, "[a] handful of non-substantive emails exploring the parties' interest in and availability for a meeting does not rise to the level of changed circumstances sufficient to revive the bargaining obligation." The Board found that the County provided no evidence that either party's bargaining position had changed from what it was at the time impasse was declared. The Board also distinguished a willingness to consider a concession from an actual offer to make a concession, and determined that a willingness to consider is not, in and of itself, a concession. The Board further noted that the ‘totality of circumstances' test, used to determine whether a party is negotiating in good faith, does not apply when parties are at impasse.

So how do you know if impasse has been broken? Here are three tips to help you make that determination.

  1. Did either the agency or the union withdraw its impasse declaration? If so, impasse has been broken.
  2. Did either the agency or the union offer a concession from its prior bargaining position? If not, impasse has not been broken.
  3. If either the agency or the union offered a concession from its prior bargaining position, was that concession significant enough to indicate that agreement may be possible? If so, impasse has been broken and the parties must return to the table.

While County of Trinity did not change the determination as to what is required to break impasse, its holding is still instructive because it identifies what does not break impasse and what options an agency has when faced with an ongoing impasse.