PERB recently 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.

The County of Trinity 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. However, five days before the scheduled meeting, 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 2-7, 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. However, 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. However, mere speculation about a concession is insufficient to revive the bargaining process. As PERB 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 had 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.

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

Note:

A more detailed version of this article recently appeared in the California Public Agency Labor and Employment Blog post authored by Adrianna Guzmanand Joshua Goodman.

County of Trinity (2016) PERB Dec. No. 2480-M