City of Santa Rosa (2013) PERB Decision No. 2308-M (Issued on 3/08/13)
This is an interesting case and it’s also the first case authored by Board Member Winslow. Here are the key facts. The City and the union reached impasse during bargaining. After completing required impasse procedures, the City imposed its last, best, final offer (LBFO) which contained a proposal on only one item: a two-tiered retirement plan. Two weeks later, the City wrote to the union asking to start bargaining again. The union refused based on the assertion that under Government Code section 3505.7 (formerly 3505.4) once the City imposed its LBFO, there was no obligation to resume bargaining for one year.
Government Code section 3505.7 provides that an employer’s imposition of its LBFO “shall not deprive a recognized employee organization of the right each year to meet and confer on matters within the scope of representation … prior to the adoption by the public agency of its annual budget …” So the union argued that implicit in this language is the right to demand bargaining “each” year. Thus if bargaining has been completed during a particular year, there is no need to start bargaining again for another year, according to the union.
The Board quickly rejected the union’s argument. The Board noted that the union is essentially asserting “that an imposed LBFO includes an implied zipper clause that is to last for one year.” The Board held that such an assertion is completely at odds with the intent of the statute. According to PERB, Government Code section 3505.7 is a “sword” that allows a union to assert bargaining rights after imposition. “It is not a shield protecting the union from legitimate demands to bargain from the employer.”
- I thought this case was interesting because I had not previously heard the argument for a “cooling” off period after imposition of a LBFO. As for the decision itself, it seems well-reasoned and logical to me.
- One thing to note, the union did try to assert that the City improperly engaged in “piecemeal” bargaining by only imposing its LBFO on one issue, a two-tiered retirement plan. The Board declined to address the union’s argument because it did not raise it below. However, the Board included a few sentences in the decision about how piecemeal bargaining can be a bad faith bargaining tactic.
- Unfortunately, I can’t tell from the decision whether the LFBO only contained a proposal on a single issue or whether the LBFO contained proposals on several issues and the City only decided to impose on one. If the latter, then I would agree that that can be highly problematic. Especially with economic items, if you’re LBFO contains both gives and takes, you generally need to impose all of them. However, because the Board mentioned “piecemeal” bargaining, I think what happened was that there was bargaining on several issues, but the City only declared impasse on one and then imposed it. And then the City wanted to immediately start bargaining again on the remaining issues. Why didn’t the City declare impasse on the other issues? We don’t know. My guess is that the City was trying to get the new retirement plan into place by the beginning of the fiscal year and wasn’t yet at impasse on the other subjects. So to avoid further delay, the City just declared impasse on that one subject. I don’t think that type of bargaining is necessarily improper, but as the Board states, if such bargaining “narrows the range of possible compromises by rigidly and unreasonably fragmenting negotiations” it can be a bad faith bargaining tactic. So you have to be careful…
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