Fresno County In-Home Supportive Services Public Authority (PERB 2418M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
SERVICE EMPLOYEES INTERNATIONAL
UNION UNITED HEALTHCARE WORKERS
WEST,
Charging Party,
v.
FRESNO COUNTY IN-HOME SUPPORTIVE
SERVICES PUBLIC AUTHORITY,
Res ondent.
Case No. SA-CE-671"M
PERB Decision No. 2418-M
March 30, 2015
Appearances: Weinberg, Roger & Rosenfeld
by
Kerianne R. Steele, Attorney, for Service
Employees International Union United Healthcare Workers West; Catherine E. Basham,
Senior Deputy Counsel, for Fresno County In-Home Supportive Services Public Authority.
Before Martinez, Chair; Huguenin and Banks, Members.
DECISION
BANKS, Member: This case is before the Public Employment Relations Board (PERB
or Board) on exceptions filed by the Service Employees International Union United Healthcare
Workers West (SEIU) to the proposed decision
of
a PERB administrative law judge (ALJ).
The complaint alleged that the Fresno County In-Home Supportive Services Public Authority
(Authority) failed and refused to bargain in good faith, in violation
of
the Meyers-Milias-
Brown Act (MMBA) and PERB regt.1lations, 1
by
making regressive bargaining proposals; by
unilaterally implementing its last, best and final offer (LBFO) in the absence
of
a genuine
impasse in negotiations; and, by imposing tentatively agreed-upon bargaining proposals that
1 MMBA is codified at Government Code section 3500 et seq. Unless otherwise
indicated, all statutory references herein are to the Government Code. PERE regulations are
codified at California Code of Regulations, title 8, section 31001 et seq.

required SEID and bargaining-unit employees to waive statutory rights to bargain over future
changes
to
negotiable subjects and to strike. The complaint also alleged that the Authority's
imposition
of
a "Separability
of
Provisions/Savings Clause" and "No Strike/No Lockout". 	.
language constituted independent violations
of
the MMBA and PERB ~egulations.2
After reviewing the entire record and considering SEID' s exceptions and the
Authority's response, we affirm in part and reverse
in
part the proposed decision. The ALJ' s
findings
of
fact are supported by the record and we adopt them
as
the findings
of
the Board
itself, as augmented by the discussion below.
We reverse the ALJ's dismissal
of
the allegation that the Authority's unilateral
imposition
of
no strikes
lan~age
violated the duty to bargain. As explained below, because
the imposed language would waive or limit the statutory rights
of
SEID and employees to
strike and/or to engage in other protected, concerted activities, the unilateral imposition
of
this
language constituted a per se violation
of
the Authority's duty to bargain, notwithstanding that
negotiations had reached a bona fide impasse, and notwithstanding that the no strikes language
imposed was part
of
the Authority's final, pre~impasse proposal.
We likewise reverse the ALJ' s dismissal
of
the allegation regarding the
Separability/Savings clause. Notwithstanding the fact that it was tentatively-agreed to during
pre~impasse negotiations, unilateral imposition
of
the Separability/Savings clause is
inconsistent with MMBA section 3505.7, which states that unilateral imposition
of
a public
agency's LBFO shall not result in a memorandum
of
understanding (MOU). As with the No
2 Although the signed copy
of
the tentative agreement is captioned "No Strikeout/No
Lockout," the parties have referred to it as covering "No Strike/No Lockout" throughout these
proceedings. We have followed the same convention and disregarded the apparent 	·
typographical error. For brevity, we refer to the Separability of Provisions/Savings language
as
"Separability/Savings" language. 	·
2

Strike/No Lockout language, we conclude that the Authority's unilateral imposition
of
the
Separability/Savings clause constituted a per se violation
of
the duty to bargain.
While imposition
of
the No Strike/No Lockout and Separability/Savings provisions
constituted per se violations
of
the duty to bargain, because their imposition had no discernible
effect on the parties' negotiations, nor in any way derogated .SEIU's authority as the bargaining
representative, SEID has not shown that the Authority bargained without the requisite "good
faith" required by the MMBA. We therefore affirm the
AIJ's
dismissal
ofSEIU's
overall
surface bargaining allegation1 subjectto the discussion below
of
SEIU's exceptions.
FACTUAL AND PROCEDURAL HISTORY
SEID is the exclusive representative
of
approximately 10,000 In~Home Supportive
Services (IHSS) providers in Fresno County (County). The Authority is the employer ofIHSS
providers for collective bargaining purposes. According to Fresno County Labor Relations
Manager John Pinheiro (Pinheiro); although the Authonty is a department
of
the County, it is
~lso a separate legal entity from the County and has its own Labor Relations Ordinance that is
similar, but not identical to, the County's Labor Relations Ordinance. 3 The County's Board
of
Supervisors acts as the governing body
of
the Authority.
SEID and the Authority were parties to a MOU in effect from September 2006 through
September 2009. The 2006-2009 MOU provided for various increases in IHSS providers'
wages and benefits from $9 .05 per hour and $~.
75
in benefits to $10.25 per hour and $0.85 in
benefits, effective October 1, 2008. However, wages and benefits were subject to a
Contingency Article, which provided th~t
if
federal or state funding was reduced or suspended,
3 The Authority contracts with the County's Office
of
Labor Relations to negotiate with
SEIU regardi{lg IHSS providers~ terms and conditions of employment. Pinheiro served as the
lead negotiator for· the Authority in negotiations with SEID.
3

IHSS providers' wages and benefits could be reduced in equal proportion. Disputes over the
application
of
the Contingency Article were to
be
resolved through non-binding factfinding.
The expired 2006-2009 MOU also included Separability/Savi:i;igs and No Strike/No Lockout
articles which expired by their own terms with the MOU.
In September 2008, the Authority proposed to reduce the wages oflHSS providers from
the then contractual r~te
of
$9.65 per hour to $9.15 per hour, effective January
1,
2009,
because
of
a reducti~n in realignment funding.4 Several disputes ensued, which resulted in two
separate factfinding reports and federal court litigation.
From August 2009 until April 2010, the parties negotiated for a successor MOU. They
tentatively agreed on 18 articles, which comprised the vast majority
of
subjects to
be
included
in the MOU. They also agreed that both sides' LBFOs would include all previously agreed
upon tentative agreements, including the Separability/Savings and No Strike/No Lockout
provisions at issue in this case.
The parties could not agree on wages and benefits. The Authority consistently .
proposed concessions from the current level
of
wages and benefits set forth in the expired
MOU, while SEIU proposed maintaining or increasing wages and benefits. Following the
Authority's declaration
of
impasse and mediation, the Authority decided to submit to a vote
of
the County's Board
of
Supervisors whether to accept SEIU's LBFO, to impose unilaterally the
Authority's LBFO, or to authorize the Authority's negotiators to return to the bargaining table.
On May 25, 2010, the Board
of
Supervisors voted to implement.the Authority's LI?FO,
including the tentatively-agreed to Separability/Savings and No Strike/No Lockout language.
The Supervisors also voted to approve the Authority's LBFO proposal to reduce wages and
4 Realignment funding consists
of
revenue from state sales tax and vehicle license fees
and is used to fund County social services, including IHSS programs.
4

benefits. However, due
to
pending litigation, IHSS providers' wages and benefits remained at
the contractually-specified rates included in the expired 2006-2009 MOU.
On May 24, 2010, SEIU filed· an unfair practice charge against the Authority and on
June 16, 2010, SEIU filed an amended charge and request for injunctive relief. After the
Authority was granted extensions
of
time on June 7, and June 15, 2010,5
it filed a position ·
statement in response to SEIU's amended charge on June 30, 2010.
On June 21, 2010, the Board denied SEIU's request for injunctive relief.6.
On July 16, 2010, PERB's Office
of
the General Counsel issued a complaint, which
alleged that the Authority failed and refused to bargain in good faith by: (1) withdrawing its
prior offer and, on March 17, 2010, announcing that it would reduce wages for IHSS providers
to $8.00 per hour and reduce health care contributions to $0.60 per hour; (2) adopting and
approving on May 25,2010, the unilateral implementation
of
the Authority's proposal to 	,
reduce wages and health care contributions, as described above; and, (3) also on May 25, 2010,
adopting and approving the unilateral implementation
of
No Strike/No Lockout and
Separability/Savings provisions that required SEIU and employees to waive statutory rights.
The complaint also alleged that the Authority's unilateral impleμientation
of
the No Strike/No.
Lockout and Separability/Savings provisions constituted a separate violation
of
the Authority's
duty to bargain, in violation
of
the MMBA and PERB regulations. The complaint further
alleged that the above bargaining violations also constituted derivative violations by interfering
5 The Authority apparently had notice that SEIU intended to file an amended charge on
June 16, 2010, and, in anticipation
of
that filing, on June 15, 2010, contacted PERB to request
a second extension
of
time in which to respond.
6 Although the Authority's June 30, 2010, position statement refers to documents filed
in opposition to SEIU's request for injunctive relief, the case file provided to the Board
includes no such document.
5

with SEIU's right to represent employees and
by
interfering with employees' rights to be
represented
by
the employee organization
of
their choice.
On July 28, 2010, the Authority answered the complaint
by
admitting some allegations
and denying all material allegations.
After an informal settlement conference on September 21, 2010, failed to resolve the
dispute, a formal hearing was held on August 16 and 17, 2011, before the
AU.
On October 17,.. 201 (, the parties submitted post-hearing briefs and on November 28,
2012, the ALJ issued the proposed decision.
After receiving an extension
of
time, SEIU filed its exceptions to the proposed decision
on January 14, 2013, and on February 5, 2013, the Authority filed its response thereto.
THE PROPOSED DECISION
The ALJ dismissed the overall surface bargaining allegation, and rejected each
of
the
various indicators
of
bad faith alleged by SEIU. The ALJ found that the Authority's LBFO
proposal on wages and benefits was not regressive and therefore did not support an inference
of
bad faith on the part
of
the Authority. Although the Authority withdrew. its previous wage
and benefit proposal for $9.25/hour and $0.60/benefiJs, and in its place proposed a maximum
. 	.
of
$8.60 in wages and benefits combined, the LBFO package contained concessions on other
issues. It would permit binding arbitration
of
disputes, whereas the Authority had previously
demanded advisory arbitration, and it included more restrictive contingency language,
specifying the circumstances in which the Authority could demand to re-open wages and
benefits, in the event
of
a decline in funding.
The ALJ also rejected SEIU's allegation that the Authority had rushed to impasse as a
means of imposing economic concessions without first engaging in good faith bargaining. As
discussed in the proposed decision, the parties met approximately once per month from August
6

2009 until March 17, 2010, when the Authority presented its LBFO. They met again on
April 14, 2010, before the Authority's negotiator declared impasse. Throughout these
meetings, the Authority provided prompt and thorough responses to SEIU's requests for
information, which credibly demonstrated the need for economic concessions from IHSS
providers, if Fresno County were to avoid making further cuts to other social services. In
particular, County of Fresno Department of Social Services Budget Manager Sanja Kovacevic
(Kovacevic) offered detailed explanations for the Authority's rejection of SETIJ's demands to
maintain the current level of wages and benefits and/or to add new benefits.
According to the proposed decision, the Authority also presented proposals and
counterproposals, both separately and as part of packages, on all subjects in dispute. Its
proposals included various co1:1cessions and its negotiators indicated those areas where it had
additional flexibility. The Authority also reached and executed 17 tentative agreements
covering the vast majority of subjects discussed; routinely made itself available for additional
meetings and, in fact, attempted to schedule multiple meeting dates at a time. Even after
declaring impasse, the Authority repeatedly invited SEIU to offer any proposal that might
break the deadlock before the Authority's governing body voted to implement the terms and
conditions included in the LBFO.
By contrast, SEIU's representatives walked out of the September 12, 2009, meeting
after receiving the Authority's initial wage and benefit proposals; refused-repeated r.equests
from the Authority to schedule more than one meeting date at a time; cancelled six ofthe
meeting dates that had been scheduled, in some cases with little or no notice; insisted on
resolving non-economic issues before responding to the Authority's proposal on wages; and
ultimately took four months to respond to the Authority's wage proposal. Thus, when the
Authority's conduct is viewed in its totality, including in the context of SETIJ's own bargaining
7

conduct, the ALJ concluded that the evidence did not support SEIU' s contention that the
Authority intended to avoid agreement or that its conduct frustrated negotiations.
Finally, the ALJ dismissed allegations that,
by
imposing tentatively agreed to language
regarding Separability/Savings and No Strike/No Lockout, the Authority committed a per se
violation
of
the duty to bargain, or that the decision to impose these terms constituted evidence
of
surface bargaining. The ALJ found that the parties had agreed that these
_two
clauses, along
with all other tentatively agreed-to proposals would be part
of
their final proposals, and that,
SEIU's claim that it had "only
TA'd
these clauses for inclusion in a final contract, [but] not
as
part
of
an imposed LBFO," was "difficult to follow and cannot be B:ccepted."
sEiu~s
EXCEPTIONS
SEIU argues that; upon reviewing the record, the Board should reverse the proposed
decision and find that, under the totality
of
circumstances test, the Authority engaged in
surface ~argaining. SEIU argues that the Authority approached negotiations with a tak:e-it-or-
leave-it attitude., as evidenced by its decision to include less
in
its 2009-2010 fiscal year budget
for providers; wages and benefits than the amount necessary
to
fund the status quo terms and
conditions
of
the expired MOU.
SEIU also argues that the Authority bargained regressively, by withdrawing its
February 9, 2010, economic proposals before SEIU had responded, and by offering in its place
a package proposal that included less favorable economic terms. SEID contends that the
Authority gave SEIU no indication that its February 9, 2010, proposals would expire, ignored
repeated requests to explore alternative funding sources, and arbitrarily cut off negotiations and
declared impasse, after SEIU's proposal showed substantial movement on economic issues.
SEIU also argues that Kovacevic admitted that the Authority's decision to underfund
the status quo was driven by discretionary policy choices rather than financial necessity, and
8

that budget projections and other information presented by Kovacevic during negotiations to
SEIU was designed to justify the Authority's policy choice
to
underfund IHSS services rather
than to genuinely seek to resolve differences.
Additionally, SEIU argues that the ALI should have concluded that the Authority
unlawfully imposed two waivers
of
rights-the
right to strike and the right to
bargain-in
violation
of
the MMBA, controlling precedent and public policy. In addition to constituting
per se violations
of
the duty to bargain, SEIU argues that, regardless
of
whether the imposed
terms had any appreciable effect on negotiations, the mere fact that the Authority unilateralty
imposed them constitutes some evidence
of
bad faith which the ALI should have considered.
THE AUTHORITY'S RESPONSE TO SEIU'S EXCEPTIONS
In its response to SEIU's exceptions, the Authority argues that SEIU's statement
of
exceptions and supporting brief fail to comply with PERB Regulation 32300, subdivision (a),
and urges the Board to refuse to consider any
of
the matters raised by
SETIJ.
Alternatively, the Authority argues that the proposed decision was adequately
supported by the record and applicable authority and should therefore be adopted by the Board.
The Authority argues that most
of
SEIU's contentions regarding take-it-or-leave-it negotiation
tactics and the budgetary evidence supporting the Authority's proposals to reduce providers'
wages and benefits were previously raised in SEIU's closing brief before the ALJ, and were
fully considered and appropriately rejected by the ALJ. The Authority argues that, simply
because SEIU disagrees with Kovacevic's methodology for projecting the amount that could
be spent on providers' wages and benefits, without taking additional funds from other County
services, does not. mean that the Authority acted unlawfully or unreasonably, or that the ALJ's
decision was not adequately supported by the record.
9

The Authority argues that its imposition
of
the tentative agreements regarding No
Strike/No Lockout and Separability/Savings violated no law because neither
of
these articles
ever became effective. According to the Authority, because each
of
the tentative agreements
includes language referring to "this Agreement," and because the MMBA expressly states that
unilateral imposition
of
terms does not create or revive an MOU, imposition
of
these tentative
agreements never took effect and thus had no actual impact
on
SEIU's or providers' statutory
rights, nor serve as evidence
of
the Authority's intent to frustrate negotiations or subvert the
bargaining process.
DISCUSSION7
Matters Appropriate for Review
We first consider the Authority's argument that SEIU's exceptions are not appropriate
for review for non-compliance with PERB's regulations. Pursuant to PERB Regulation 32300,
parties may appeal a proposed decision by filing with the Board itself a statement
of
exception
to the proposed decision and/or a supporting brief. The regulation requires that the statement
of
exceptions orbriefinclude: (1) a statement
of
the specific issues
of
procedure, fact, law or
rationale to which each exception is taken; (2) identification
of
the page or part
of
the decision
to which exception is taken; (3) designation
of
the portions
of
the record, 1f any, relied upon
for each exception; and (4) the grounds for each exception. (PERB Reg. 32300, subd. (a)(l)-
s
1 Pursuant
te>
PERB Regulation 32315, SEID has requested oral argument. Although
not explicitly stated as such, the Authority has also requested "an opportunity to address any
remaining issues." Historically, the Board has denied such requests, when an adequate record
has been prepared, the parties had ample opportunity to present briefs and have availed
themselves
of
that opportunity, and the issues before the Board are sufficiently clear to make
oral argument unnecessary. (Antelope Valley Health Care District (2006) PERB Decision
No. 1816-M; Arvin Union School District (1983) PERB Decision No. 300.) Because all
of
the
above criteria are met in this case, we deny SEIU's request for oral argument and the
Authority's request for an opportunity to address any remaining issues.
10

(4).)
The purpose
of
the regulation is to afford
the
opposing party and the Board
an
adequate
opportunity to address the issues raised. (Temecula Valley Unified School District (1990)
PERB Decision No. 836.)
The
Board need
not
consider exceptions which do not substantially
comply
with the agency's
regulations. (Los Rios College Federation
of
Teachers (Sander,
et al.) (1995) PERB Decision No. 1111, p. 4; State
of
California (Department oJYouth
Authority) (1995) PERB Decision No. 1080-S,
p.
3; cf. San Mateo County Community College
District (1.993) PERB Decision No. 1030 (San Mateo), p.
11.)
Additionally, while the Board
reviews the entire record
de
novo, it need not consider arguments that have already been
adequately addressed below (LosAngeles Superior Court (2010) PERB Decision No. 2112-1,
pp.
4~5; Morgan Hill Unified School District (1995) PERB Decision No, 1120, p. 3),
particularly where the party seeking review has simply reasserted
its
claims, without
identifying a specific error
of
fact, law or procedure to justify reversal. (Los Rios (Sander,
et
al.), supra,
at
pp. 6-7; State
of
CA (Youth Authority), supra, at pp. 2-3; see also
San Bernardino City Unified School District (2012) PERB Decision No. ·2278, pp. 2-3; County
of
San Diego (2012) PERB Decision No. 2258-M, pp. 2-3.)
The Authority
is
correct that SEIU' s
brief
is
largely a repetition
of
its closing
brief
before the ALJ, and that
it
does little more than re-argue the facts and assert that the ALJ
should have come to a different conclusion, without necessarily identifying any particular error
of
fact, law or procedure in the proposed decision. However, SEID raises two points that
substantially comply with the requirement that the excepting party state the grounds forits
exceptions. First, SEIU argues that the ALJ failed to consider Kovacevic's testimony that,
based
on
a policy choice rather than economic necessity, the Authority had set a pre-
determined amount that it was willing to pay for IHSS providers' wages and benefits, and that
it never deviated from that amount. According to SEIU, this conduct demonstrates the .
11

Authority's bad faith in negotiations, because no legitimate changed circumstances justified
the regressive economic proposal included in the Authority's LBFO and/or because the
Authority's policy choice demonstrates a "take-it-or-leave-it" approach to negotiations. SEIU
has explained how further consideration of certa:in, allegedly neglected facts, could affect the
outcome, in compliance with PERB Regulation 32300 .
. Second, SEIU argues that the ALJ failed to give serious consideration to allegations
that the Authority's unilateral imposition of the No Strike/No Lockout and Separability/
Savings language constituted both per se violations of the duty to bargain and evidence of bad ·
faith. By asserting an error oflaw, this exception also complies with the regulation and is
therefore appropriate for consideration. Accordingly, our discussion below focuses on these
two exceptions and disregards the remainder of SEIU' s brief.
Legal Standard for Allegations of Failure and Refusal to·Bargain in Good Faith
The MMBA requires public agencies and the recognized representatives of their
employees to ''meet and confer promptly upon request by either party and continue for a
reasonable period of time in order to exchange freely information, opinions, and proposals,
and to endeavor to reach agreement on matters within the scope of representation." (MMBA,
§ 3505; Jefferson School District (1980) PERB Decision No. 133, p. 11; NLRB v. General
Electric Co. (2d Cir. 1969) 418 F.2d 736, 75Dl The meet and confer process does not bind the
8 Although Jefferson involved interpretation of the Educational Employment Relations
Act (BERA), section 3540 et seq., where California's public-sector labor relations statutes are
similar or contain analogous provisions, agency and court interpretations under one statute are
instructive under others. (Redwoods Community College Dist. v. Public Employment Relations
Bd. (1984) 159 Cal.App.3d 617, 623-624.) Additionally, private-sector precedent established
under the National Labor Relations Act (NLRA), 29 U.S.C. section 151 et seq., and
California's Agricultural Labor Relations Act, Labor Code sections 1140-1166:3, is persuasive
for interpreting parallel or comparable provisions in the PERE-administered statutes.
(McPherson v. Public Employment RelationsBd. (1987) 189 Cal.App.3d 293,311
12

public agency to any particular result in the matter, but does require that the parties seriously
co~sider and attempt to resolve their di,fferences. (Los Angeles County Civil Service Com.
v.
Superior Court
of
Los
Angeles County (1978)
23
Cal.3d
55,
61-62.) Good-faith bargaining
''thus inyolves both a procedure for meeting and negotiating, which may be called the externals
of
collective bargaining, and a bona fide intention,
the
presence or absence of which must be
discerned from the record." '(General Electric Co. (New York, N.Y.) (1964) 150 NLRB
192,
194,
affd. (2d Cir. 1969) 418 F.2d 736; Dublin Professional Fire Fighters
v.
Valley Community
Services Dist. (1975) 45 Cal.App.3d 116,
118
(Dublin Professional Fire Fighters); Vernon Fire
Fighters
v.
City
of
Vernon (1980)
107
Cal.App.3d 802,
823~24;
Placentia Fire Fighters
v.
City
of
Placentia (1976)
57
Cal.App.3d
9,
25 (City
of
Placentia).)
In determining whether a party has violated its duty to meet and confer in good faith,
PERE utilizes both a "per se" and a "totality
of
the conduct" analysis, depending on the
specific conduct involved, and its effect on the negotiating process. (Muroc Unified School
District (1978) PERB Decision No. 80 (Muroc), pp. 13-14; Pajaro Valley Unified School
District (1978) PERB Decision No. 51, pp. 4-5.) The statutory scheme of collective bargaining
speaks in tenns
of
a procedural duty shared equally by the employer and the exclusive
representative. (Los Angeles Unified School District (2013) PERB Decision No. 2326
(LA USD), p. 40.) Per se violations generally involve conduct that is contrary to the procedures
for bargaining or the express language or purposes of the statute, irrespective of the party's
intent (San Mateo County Community College District (1979) PERE Decision No. 94
(San Mateo), pp. 14-17; Stockton Unified School District (1980) PERE Decision No, 143
(Stockton); Higgins, Developing Labor Law, 6th Ed., Vol.
I:
Ch. 13.II.A, p. 892.)
(McPherson); Moreno Valley Unified School Dist. v. Public Employment Relations Bd. (1983)
142 Cal.App.3d 191, 196 (Moreno Valley);)
13

By
contrast, the "totality
of
conduct" test is used for allegations
of
"surface bargaining,"
which has been described as going "through the motions
of
negotiations," and "weaving
otherwise u~objectionable conduct into an entangling fabric to delay
or
prevent agreement."
(Muroc, supra, PERB Decision No. 80,
p.
13; Davis Unified School District, et
al.
(1980)
PERB Decision No. 116, pp. 17-19, 28.)
In
surface bargaining cases, specific conduct may
appear proper when viewed in isolation, but, when placed
in
the narrative history
of
negotiations, may also demonstrate that
the
charged party was not negotiating with the
requisite subjective intent to reach agreement. (Muroc, supra, at pp. 13-14.) The question
of
good or bad faith is a factual determination based on the totality
of
the circumstances. (City
of
Placentia, supra, 57 Cal.App.3d 9, 25.) The Board looks to the entire course
of
negotiations,
including the parties' conduct at and away from the table, to determine whether the respondent
has bargained with the requisite intent to reconcile differences and reach agreement. ( City
of
San Jose (2013) PERB Decision No. 2341-M, p. 22; University
of
California, Lawrence
Livermore National Laboratory (1995) PERB Decision No. '1119-H, p. 3; NLRB
v.
A-1 King
Size Sandwiches, Inc. (11th Cir. 1984) 732 F.2d 872, 873.)
PERB
recognizes various forms
of
conduct that may serve as evidence
of
a party's lack
of
good faith in negotiations. While not exhaustive, possible "indicators"
of
bad faith have
included dilatory or evasive conduct at the table, such as cancelling or failing to prepare for
meetings (Oakland Unified School District (1983} PERB Decision No. 326, p. 34 ); refusing to
make countei:proposals or otherwise explain one's bargaining positions ( Compton Community
College District (1989) PERB Decision No. 728, adopting proposed dee. at pp. 53;.City
of
San Jose, supra, PERB Decision No. 2341-M); refusing to discuss a mandatory subject
of
bargaining or conditioning its discussion on ptior agreement over other subjects ( City
of
San Jose, supra, at pp. 31-32; San Ysidro School District (1980) PERB Decision No. 134);
14

failing to authorize representatives with sufficient authority to conduct meaningful negotiations
(Oakland, supra, at pp. 41-42; Stockton, supra, PERB Decision No. 143, p. 27; cf. MMBA,
§ 3505.1; Bagley
v.
City
of
Manhattan Beach (1976)
18
Cal.3d 22, 25); committing separate
unfair practices at or away from the table ( City
of
San Jose, supra, PERB Decision No. 2341-M,
p. 23; Beaumont Unified School District (1984) PERB Decision No. 429 (Beaumont), p. 9);
adopting a "take-it-or-leave-it" approach to negotiations (General Electric Co., supra,
150 NLRB 192, 195); and making regressive proposals or reneging on tentative agreements
(Campbell Municipal Employees Assn.
v.
City
of
Campbell (1982) 131 Cal.App.3d 416, 420;
Stockton, supra, at pp.
24~2,6;
Charter Oak Unified School District (1991) PERB Decision
No.
73
(Charter Oak), pp. 17-18). However, the ultimate test for surface bargaining is whether,
under the totality
of
circumstances, the respondent's conduct was sufficiently egregious to
frustrate negotiations or avoid agreement. (City
of
San Jose, supra, at pp. 19-22; State
of
California (Department
of
Personnel Administration) (2009) PBRB Decision No. 2078-S.)
Unlike a surface bargaining allegation, "per se" violations require no inquiry into the
respondent's subjective intent or finding
of
bad faith. (Charter Oak, supra, PERB Decision
No. 873, p. 8, fn. 3; California State University (1990)
PERB
Decision No. 799-H, adopting
proposeddec. atpp.51-52;NLRBv.Katz(1962) 369U.S. 736, 742-743.)
Examplesofperse
violations include refusing to provide necessary and relevant information upon request
(Stockton, supra, PERB Decision No. 143, pp. 18-19); refusing outright to meet or negotiate
regarding a mandatory subject (Dublin Professional Fire Fighters, supra, 45 Cal.App.3d 116,
118; Sierra.Joint Community College District (1981)PERB Decision No. 179 (Sierra));
by-passing the representative and dealing directly with employees over negotiable matters
(City
of
San Diego (Office
of
the City Attorney) (2010) PERB Decision No. 2103-M, p.
7;
Charter Oak, ·supra, PERB Decision No. 873, p. 8, fn. 3); attempting to dictate who may serve
15

as the opposing party's representative in negotiations (Yolo County Superintendent of Schools
(1990) PERB Decision No. 838); making pre-impasse unilateral changes to tenns and
conditions of employment (Stockton, supra, PERB Decision No. 143, pp. 19-21; NLRB v. Katz,
supra, 369 U.S. 736, 742-743; Moreno Valley, supra, 142 Cal.App.3d 191, 196); making post-
impasse unilateral changes to subjects of bargaining not previously discussed or included in the
employer's LBFO (Laguna Salada Union School District (1995) PERB Decision No. 1103,
pp. 15-16; Lou's Produce (1992) 308 NLRB 1194, 1195, enforced (9th Cir. 1994) 21 F.3d
1114); insisting to impasse on and/or imposing non-mandatory subjects of bargaining
(Chula Vista City School District (1990) PERB Decision No. 834 (Chula Vista), pp. 19-23;
City of San Jose, supra, PERB Decision No. 2341-M, pp. 43-44, 46, 49-50)~ insisting to
impasse and/or imposing proposals whose provisions waive or limit the statutory rights of the
representative and/or employe~s (Rowland Unified School District (1994) PERB Decision
No. 1053 (Rowland), p. 7, fn. 5; Berkeley Unified School District (2012) PERB Decision
No. 2268 (Berkeley), pp. 3-9; esp. fn. 3; Gaso Pumps, Inc. (1985) 274 NLRB 532, 535-537);
and, imposing proposals to retain unfettered discretion over key subjects of bargaining,
regardless of good-faith negotiations, where such implementation would be inherently
destructive of collective bargaining. (LAUSD, supra, PERB Decision No. 2326, pp. 38-39, 43;
McClatchy Neivspapers (1996) 321 NLRB 1386, enforced (D.C. Cir. 1997) 131 F.3d 1026,
cert den. (1998) 524 U.S. 937; Anderson Enterprises (1999) 329 NLRB 760, 777-79; KSM
Indus., Inc. (2001) 336 NLRB 133, 134-135, 144; cf. NLRB v. A-1 King Size Sandwiches, Inc.,
supra, 732 F.2d 872, 877.)
Identical or overlapping facts may support more than one of the above theories of
liability. As we explained in City of San Jose, supra, PERB Decision No. 2341-M, because the
"totality of circumstances" analysis used for surface bargaining allegations requires an
·16

examination
of
all the evidence relevant
to
the respondent's subjective intent, it may include
evidence
of
separate unfair practices committed at or away from the bargaining table
to
the
extent they would "support a conclusion that the charged party was not negotiating with the
requisite subjective intent
to
reach agreement." (Id.
at p.
23; Muroc, supra, PERB Decision
No. 80,
p. 13; see also Patent Trader, Inc. (1967)
167
NLRB 842, 851-852, enforced by
(2d Cir. 1969)
415
F.2d 190,
as
mod. on other grounds by (2d Cir. 1970).426 F.2d 791.) Thus,
where conduct is· alleged
to
constitute a per se violation
of
the duty to bargain, it may also
indicate the absence
of
subjective good faith in support
of
a surface bargaining charge. (City
of
San Jose; supra, at pp. 37-39, 49-50; San Mateo, supra, PERB Decision
No. 1030, pp. 13-14;
see also Stockton, supra, PERB Decision No. 143, p. 24 [piecemeal bargaining tactics];
Radisson Plaza Minneapolis (1992) 307 NLRB 94,
95, 109 [refusal
to
provide information];
NLRB
v.
Herman Sausage
Co.
(5th Cir. 1960)
275 F.2d 229,234 [unilateral wage increase].)
Whether the ALJ Failed fo Consider Allegations in the Complaint
The essence of SEIU's charge is that the Authority engaged in surface bargaining by,
among other acts, making regressive and "take-it-or-leave-it" bargaining proposals and by
prematurely or insincerely declaring impasse
as
an excuse to act unilaterally with respect to
statutory rights. Under Board precedent, such allegations are analyzed under a "totality of
circumstances" test
to
determine whether the conduct at issue indicates a subjective intent
to
subvert the negotiations or undermine the authority of the representative. (State
of
California
(Department
of
Corrections & Rehabilitation, Department
of
Personnel Administration)
(2010) PERB Decision No. 2115-S (State
of
CA (CDCR/DPA)), p. 10; Regents
of
the
University
of
California (1985) PERB Decision No. 520-H (UC Regents)~ pp. 14 and 25,
fn. 13; County
of
Riverside (2014) PERB Decision No. 2360-M, pp. 11, 19.)
17

However, embedded within (or alongside) SEIU's surface bargaining allegation are
separate allegations that the Authority has breached its duty to bargain by unilaterally imposing
proposals requiring SEIU and employees to waive statutory rights. Insisting on, or imposing a
waiver of statutory rights, a non-mandatory subject of bargaining, is, in effect, a refusal to
bargain over the subjects that are within the scope of mandatory bargaining. (Berkeley, supra,
PERB Decision No. 2268, pp. 3-9, esp. fn. 3; Lake Elsinore School District (1986) PERB
Decision No. 603, pp_. 2-3; see also NLRB v. Wooster Dz'v. of Borg-Warner Corp. (1958)
356 U.S. 342; Industrial Union of Marine & Shipbuilding Workers ofAmerica v. NLRB
(3d Cir. 1963) 320 F.2d 615, 619.) Though they may also serve as evidence of bad faith in
support of a surface bargaining charge, allegations that an employer has unilaterally
implemented terms that waive or limit statutory rights are analyzed as per se violations.
(Rowland, supra, ;I>ERB Decision No. 1053, p. 7, fn. 5; State of California (Department of
Personnel Administration) (2010) PERB Decision No. 2130-S (S,ate of CA (DPA)), pp. 8, 10,
fn. 9; Roosevelt Memorial Med. Ctr. (2006) 348 NLRB 1016, 1017.)9
In drafting the complaint in this case, the Office of the General Counsel carefully
reflected both theories of liability alleged in SEIU' s charge. Paragraph 10 of the complaint
alleged that, on May 25, 2010, the Fresno County Board of Supervisors, in its capacity as the
governing board of the Authority, voted to adopt and approve the unilateral implementation of
No Strike/No Lockout and Separability/Savings provisions that required SEIU and IHSS
providers employed by the Authority to waive statutory rights. According to the complaint,
9 Indeed, where a proposal is contr~ry to external law or public policy, or its unilateral
adoption would subvert the language or policies of the collective bargaining statutes, good
faith is no defense. (Berkeley, supra, PERB Decision No. 2268, p. 9; San Mateo, supra, PERB
Decision No. 1030, p. 18, fn. 11; City of Pinole (2012) PERB Decision No. 2288-M, pp. 11-13;
see also NLRB v. Katz, supra, 369 U.S. 736, 743.)
18

this conduct constituted a failure and refusal
to
meet
and
confer in good faith, in violation of
MMBA sections 3505 and 3509, subdivision (b),
an:d
PERB Regulation 32603, subdivision (c).
Paragraph
11
of
the complaint similarly alleged that the Authority failed and refused
to
meet and confer in good faith with
SEIU
in violation
of
the same statutory
and
regulatory
provisions, by, among other things, approving the unilateral implementation of the
No Strike/No Lockout and Separability/Savings provisions that required SEIU and lliSS
providers to waive statutory rights. Thus, the same conduct regarding the implementation
of
the No Strike/No Lockout and Separability/Savings provisions appears twice in the complaint
as
allegedly violating the same provisions of the MMBA and PERB regulations. The
repetition of these allegations indicates the Office
of
the General
CounseJ'.s
view that the
Authority's imposition
of
these provisions should be analyzed as both per se violations of the
Authoritf s duty to bargain and
as
indicators of its subjective bad faith in support
of
the
surface bargaining allegation.
The proposed decision offered the following analysis of the waiver issue, which is
quoted here in its entirety:
[SHIU]
asserts that the implementation
of
the [Separability/Savings]
clause as part of the May 2010 LBFO imposed a waiver ofits
statutory rights
to
bargain, and implementation·of the No Strike/No
Lockout article waived its and the IHSS providers' rights to engage
in concerted activities. Both sections were TA'd on September 1
and October 29, 2009, respectively. Both parties agreed that these
two clauses, along with the remaining TA's, would be part of their
fmal proposals. The Union's claim that [its negotiator] only.TA'd
the clauses for inclusion in a fmal contract, and not
as
part of an
imposed LBFO, is difficult to follow and cannot be accepted.
While the proposed decision asserts elsewhere that, "Conditioning agreement on the
waiver of rights has been analyzed under both the totality of circumstances test and
as
a per se
violation of the duty to bargain in good faith," it is not apparent from the above analysis which
19

of
these tests was used or why post-impasse implementation raises issues
of
conditional
bargaining. Nor does the proposed decision explain how the decision was made to apply one
or
the other (or both)
of
PERB's tests for bargaining violations.
Issuance
of
a complaint by the Office
of
the General Counsel signifies that the dispute
is not only one that the charging party wishes to pursue, but also one that the agency has
determined should be pursued. (County
of
Fresno (2014) PERB Decision No. 2352-M, p. 4.)
While the Board may decline to.consider legal theories that are cumulative
or
that would not
affect the remedy (Stockton; supra, PBRB Decision No. 143, p. 24; Sierra, supra, PBRB
Decision No: 179, pp. 6-7), where, as here, identical or overlapping facts support more than
one theory
of
liability, each
of
which is set forth in the complaint 1 consideration
of
one theory
will generally not replace or subsume consideration
of
the others. (City
of
San Jose, supra,
PERB Decision No. 2341-M, pp. 49-50; UC Regents, supra, PERB.Decision No. 520-H,
pp. 10-11; .cf. Stockton, supra, PERB Decision No. 143, p. 24.) Where the evidence
ofbad
faith
i_n
a surface bargaining charge includes allegations
of
separate per se violations, the per se
allegations should
be
analyzed both
in
their own right and as evidence in support
of
the surface
· bargaining allegation. (City
of
San Jose, supra, at pp. 37-39, 49-50.)
At minimum, a proposed decision must address the allegations included in the
complaint or justify the decision to do otherwise. ( County
of
Fresno, supra, PERE Decision
No. 2352-M, p. 4; Stockton, supra, PERB Decision No. 143, p. 24.) We therefore agree with
SEID that the proposed decision failed to consider the allegation in the complaint that the
Authority unilaterally implemented provisions that waived or limited statutory rights ..
We next tum to the merits
of
SEID's allegations that the Authority committed per se
violations of the duty to bargain by unilaterally imposing tenns that waived or limited statutory
rights, before addressing whether these allegations, when considered in conjunction with
20

SEIU's other exception, constitute evidence of the Authority's bad faith in negotiations. We
first review the scope and purpose of an employer's right_to act unilaterally at impasse under
MMBA section 3505.7 (former section 3505.4),10 before addressing SEIU's contention that the
Authority is categorically prohibite.d from unilaterally implementing the provisions of the
No Strike/No Lockout and Separability/Savings tentative agreements, even after reaching
impasse and exhausting all applicable impasse resolution procedures.
Whether the Authority's Post-Impasse Imposition of No Strike/No Lockout and
Separability/Savings Language Constituted Per Se Violations of the Duty to Bargain
Impasse is a point in negotiations at which, despite the parties' genuine efforts to
resolve their differences, they have exhausted the prospects for concluding an agreement, so
that, absent changed circumstances, further discussion would be pointless. (Regents of the
University of California (1996) PERB Decision No. 1157-H, p. 3; Mt. San Antonio Community
College District (1981) PERB Order No. Ad-124, p. 5; Modesto City Schools (1983) PERB
Decisio_n No.291 (Modesto).) Upon a declaration of impasse, the parties must participate in
any statutory or other applicable impasse resolution procedures according to the same "good
faith" standard governing their conduct in pre-impasse negotiations. (MMBA, §§ 3505.4,
3505.5; 3505.7; City & County of San Francisco (2009) PERB Decision No. 2041-~, p. 5;
Ventura County Community College District (1998) PERB Decision No. 1264, adopting
warning letter at pp. 4-5.)
10 MMBA section 3505.4 provided in pertinent part, that upon reaching a bona fide
impasse in negotiations and exhausting any applicable mediation and factfinding procedures, a
public agency not subject to interest arbitration may, after holding a public hearing regarding
the impasse, implement its LBFO. Effective January 2012, former section 3505.4 was
renumbered as section 3505. 7 to accommodate the factfinding language now included in the
MMBA following enactment of Assembly Bill 646 (Atkins).
21

Under MMBA section 3505.7, once all statutory or other applicable impasse resolution
procedures and public hearing requirements have been exhausted,
if
negotiations remain
deadlocked, the same rules
as
are applicable in the private sector apply. (County
of
Riverside,
supra, PERB Decision No. 2360-M,
p. 11;
Rowland, supra, PERB Decision No. 1053,
p.
6.)
That is, the duty
to
bargain is suspended, a public agency that is not required
to
proceed
to
interest arbitration may unilaterally implement terms and conditions
of
employment reasonably
comprehended by its final pre-impasse proposals, presented
to
and rejected by the union, and
the union may exercise its right
to
strike: (MMBA, § 3505.7; Public Employment Relations
Bd.
v.
Modesto City Schools Dist. (1982)
136
Cal.App.3d 881, 900-901; Atlas Tack Corp.
(1976) 226 NLRB 222,227; County Sanitation Dist. No. 2
of
Los Angeles County
v.
· Los Angeles County Employees' Assn. (1985) 38 Cal.3d 564 (County Sanitation); see also
Charter Oak, supra, PERB Decision No. 873.) The term "reasonably comprehended" excludes
those changes better than the last offer, and also any changes which the parties did not discuss
during negotiations which are less than the status quo.
(()_range
Unified School District (2000)
PERB Decision
No.
1416, p. 15,
fn.
10.)
An employer's imposition of its LBFO does not create an MOU nor revive an expired
MOU. (MMBA, § 3505.7.) An employer's imposition ofits LBFO cannot "deprive a
recognized employee organization of the right each year
to
meet and confer on matters within
the scope
of
representation, whether or not those matters are included in the unilateral
implementation, prior to the adoption by the public agency of its annual budget, or
as
otherwise required by law." (MMBA, § 3505.7; Rowland, supra, PERB Decision No. 1053,
p. 7, fn. 5.) As we explained in City
of
Santa Rosa (2013) PERB Decision No. 2308-M
(Santa Rosa), the purpose of authorizing the employer to act unilaterally upon reaching a
"secqnd" or "final" impasse, i.e., after exhausting any applicable impasse resolution
22

procedures, is to break the deadlock and thereby encourage further negotiations, not to insulate
either party from all bargaining demands. (Santa Rosa, supra, at p. 5.)
Nor may the impasse rule be used to destroy the very basis for resolving disputes
through collective bargaining. (MMBA, § 3500, subd. (a); State of CA (DPA), supra, PERE
Decision No. 2130-S, p. 9, citing Rowland, supra, PERB Decision No. 1053; see also
Charles D. Bonanno Linen Service, Inc. v. NLRB (1982) 454 U.S. 404, 412.) Even when the
duty to bargain is temporarily suspended by impasse, the employer may not take unilateral
action that disparages the collective bargaining process or undermines the authority of the
representative. (LAUSD, supra, PERB Decision No. 2326, pp. 38-39, 43; Toledo 	·
Typographical Union No. 63 v. NLRB (D.C. Cir. 1990) 907 F.2d 1220, 1222-25, cert. den.
(1991) 498 U.S. 1053; Central Metallic Casket Co. (1950) 91 NLRB 572, 573-74; NLRB v.
Borg-Warner Corp., supra, 356 U.S. 342; Boise Cascade Corp. (1987) 283 NLRB 462,463,
affd. (D.C. Cir. 1988) 860 F.2d 471.)
PERB has also held that an employer may not unilaterally impose terms that waive
or limit statutory rights, because "[t]o-do so would be destructive of those rights."
(San Mateo, supra, PERB Decision No. 1030, p. i 8, fn. 11; City ofPinole, supra, PERB
Decision No. 2288-M, pp. 11-13.) Because "not all tenns and conditions contained within a
last, best and fmal offer may lawfully be implem~nted by an employer," (Rowland, ~upra,
PERB Decision No. 1053), the existence of a bona fide impasse.through good-faith
negotiations, by itself, does not authorize imposition of proposals that waive or limit statutory
rights. (City of Pin~le, supra, at pp. 11-13; see also Berkeley, supra, PERB Decision No. 2268,
p. 9.)
23

SEIU argues that the prohibition against unilateral employer action at impasse extends
to proposals to waive or limit employee rights to engage
in
concerted activities, such as the
right to strike, and to proposals that rely on the existence
of
a collective bargaining agreement.
As explained below,
we
affirm prior Board precedent holding that, while not absolute, the right
to strike. falls within the statutorily-protected right
of
public-sector employees to participate in
· union activities. (MMBA, § 3502; Modesto, supra, PERB Decision No. 291.) Following
federal private-sector law, we hold that, even after bargaining in good faith to impasse and
exhausting all applicable impasse resolution procedures, the MMBA's obligation
to
meet and
confer in good faith prohibits an employer from unilaterally imposing terms that waive or limit
the statutory rights
of
employees to engage in concerted activity, including the right to strike.
Although we rely on different reasoning, we conclude that because the Separability/Savings
language and its underlying purpose necessarily imply the existence
of
a bi-lateral agreement,
the Auth_ority was similarly prohibited by MMBA section 3505.7 from imposing this language
unil~terally.
While Not Absolute, the MMBA Guarantees Public Employees a "Basic Right to Strike."
By sanctioning statutory and other impasse dispute resolution procedures, the
Legislature has sought to defer and,
if
possible, avoid the disruption
of
government services
caused by.work stoppages. (MMBA,
§§
3505.4, 3505.5; San Diego Teachers Assn.
v,
Superior
Court
of
San Diego County (1979) 24 Cal.3d
1,
15 (San Diego Teachers); see also
San Francisco Unified School District (1979) PERB Order No. IR.-10, p. 3.) However, the
24

MMBA includes no blanket prohibition against strikes by public employees. (County
Sanitation, supra, 38 Cal.3d 564, 572-573.)1i
The California Supreme Court has interpreted the absence of an express legislative
prohibition as providing public employees with a "basic right to strike," unless or until it is .
clearly shown that the strike poses a substantial and imminent threat to public health and
safety. (County Sanitation, supra, 38 Cal.3d 564, 585-586; see also City of San Jose v.
Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 606.) Because we presume
that the Legislature was aware of existing judicial decisions having a direct bearing on the
particular legislation enacted, we conclude that, when the Legislature transferred MMBA
jurisdiction from the courts to PERE in 2000, it did so with the intent of preserving the view of
the California Supreme Court that "public employees have a right to strike unless it is clearly
shown that there is a substantial and imminent threat to public health and safety." (MMBA,
§ 3509, subd. (b); City of San Jose v. Operating Engineers, supra, 49 Cal.4th 597, 606.)
While County Sanitation removed the judicially-created prohibition against strikes by
public-sector employees and held that such conduct is not per se illegal (id. at pp. 564, 585), it
did not address whether such conduct is statutorily protected by the MMBA, i.e., whether a
union may, for example, call for, encourage or support a strike without being charged with
11 It is true that, like other PERE-administered statutes, MMBA section 3510,
subdivision (b), provides that, "The enactment of this chapter shall not be construed as making
the provisions of Section 923 of the Labor Code applicable to public employees." (See also,
e.g., § 3549 [BERA].) In language modeled after section 7 of the NLRA, Labor Code
· section 923 guarantees the right of private-sector employees in California to engage in
concerted activities, including work stoppages. (Petri Cleaners, Inc. v. Automotive Employees,
etc. (1960) 53 Cal.2d 455.) However, in County Sanitation, the California Supreme Court
concluded that, by exempting public employees from the provisions of Labor Code
section 923, the Legislature did not intend to prohibit strikes by all public-sector employees, as
evidenced by other legislation specifically prohibiting certain categories of employees from
striking. (County Sanitation, supra, at pp. 572-73; see also Lab. Code, §§ 1138.5 [peace
officers] and 1962 [fire fighters].)
25

failing or refusing to bargain in good faith, or whether a public employer may discipline or
discharge employees for engaging in a work stoppage. However,
in
a separate line
of
cases,
the Supreme Court has repeat~dly held that, by delegating to PERB the power and duty to
investigate and remedy unfair practices, the Legislature vested the agency with exclusive,
initial Jurisdiction to determine whether strikes and strike-related activities
by
public
employees may be prohibited or protected by the public-sector labor relations statutes.
(San Diego Teachers Assn.
v.
Superior Court, supra, 24 Cal.3d
1,
15;
El
Rancho Unified
School Dist.
v.
Nationa!EducationAssn. (1983)
33
Cal.3d 946,948 (El Rancho).) The
Supreme Court's discussion in
El
Rancho is instructive. There, the .court cited, with approval,
the view
of
the Michigan Supreme Court that public school teachers who participated
in
an
illegal strike may nonetheless have a defense against discipline or discharge,
if
the strike was
provoked
by the employer's unfair labor practices. (Id. at p 958, citing Lamphere Schools
v.
Lamphere Federation
of
Teachers (1977) 400 Mich. 1041 117-118; see also Mastro Plastics
Corp. v. NLRB (1956) 350 U.S. 270, 278-784
(l"Ylastro
Plastics).)
More recently, in City
of
San Jose
v.
Operating Engineers, the California Supreme
Court rejected a city's argument that, because the M:MBA includes no express reference to
strikes, PERB was without jurisdiction to determine whether to seek an injunction against an
allegedly unlawful strike by public employees. Following its earlier decisions in San Diego
Teachers and El Rancho, the Court again explained that, notwithstanding the absence
of
any
statutory provision expressly referencing strikes by public employees, PERB has exclusive
initial jurisdiction to determine whether strikes and strike-related conduct is arguably
prohibited or protected by the PERB-administered statutes. (City
of
San Jose v. Operating
Engineers, supra, 49 Cal.4th 597, 606-607; El Rancho, supra, 33 Cal.3d 946, 956.) In light
of
these decisions, the law is clear: Unless the Legislature has expressly stated otherwise, as it
26

has with peace officers and firefighters, PERB may detennine whether, and under what
circumstances, public employees and employee organizations have a statutorily-protected right
to strike. (El Rancho, supra, at pp. 958-59; Modesto, supra, PERB Decision No. 291, pp. 68-
69, fn. 36.)
By way of example, PERB has repeatedly endorsed the notion of "unfair labor practice
strikes," as developed by the National Labor Relations Board (NLRB) and the federal courts.
Under private-sector precedent, striking employees are generally protected from being
disciplined, discharged or otherwise discriminated against for participating in a strike, if one of
the purposes of the strike was to protest an employer's unfair labor practice. (Mastro Plastics,
supra, 350 U.S. 270, 278-284; NLRB v. International Van Lines (1972) 409 U.S. 48, 50-53;
Columbia Portland Cement Co. v. NLRB (6th Cir. 1992) 979 F.2d 460, 463.) Thus, in
Modesto, supra, PERB Decision No. 291, pp. 66-69, the Board detennined that a strike was
protected conduct and not a violation of BERA, because it was provoked by the employer's
unfair practices. (Id. at pp. 65-66.) To "remedy any discriminatory action taken against
Association members for participating in [the] strike," the Board ordered the employer to
rescind and expunge from employee personnel files all letters of commendation issued to non-
striking employees. (Id. at p. 68.) In Modesto City Schools/Modesto City Schools, et al.
( 1980) PERB Order No. IR -12, the Board concluded that a strike called to protest a public
school employer's refusal to consider new concessions made after the completion of impasse
resolution procedures was "a protected response to an employer's unfair practices." (Id. at
pp. 3-4, citing Mastro Plastics, supra, 350 U.S. 270) and ordered the employer to return to _the
bargaining table upon conclusion of the strike. (Id. at pp. 5-6.) In such cases, the question is
whether the employer has committed an unfair practice that provoked or prolonged the work
stoppage. (San Ramon Valley Unified School District (1984) PERB Order No. IR-46
27

(San Ramon), p. 10; see also Mastro Plastics, supra, 350 U.S. 270,273, 278-79; Southwestern
Porcelain Steel Corp. (1961) 134 NLRB 1733, 1734-1735, 1744, enforced (10th Cir. 1963)
317 F.2d 527.)
In several cases, the Board has determined that even a pre-impasse strike may be
statutorily protected, notwithstanding the legislative purpose
of
preventing or deferring labor
unrest until impasse resolution procedures have been completed. Although strikes conducted
during negotiations or before the completion
of
impasse resolution procedures are
presumptively regarded as unlawful pressure tactics, a union may rebut that presumption
by
showing that the strike was caused or prolonged
by
the employer's unfair practices.
(Westminster School District (1982)
P.ERB
Decision No. 277, pp. 14-15; Sacramento City
Unified School District (1987) PERB Order No. IR-49; Santa Maria Joint Union High School
District (1989) PERB Order No. IR-53, p. 5; Regents
of
the University
of
California (2010)
PERB Decision No. 2094-H (UC Regents), pp. 32-33; see also Sweetwater Union High School
District (2014) PERB Order No. IR-58 (Sweetwater), p.
9.)1
2 Thus, under well-settled Board
law, "There is no question
...
that a strike provoked by an employer's unfair labor practices
would be protected at any time at which it occurs in the bargaining process as long as the
striking employee organization has not failed to participate in good faith in the statutory
impasse procedure." (San Ramon, supra, PERB Order No. IR-46, p. 10.)
In Modesto, supra, PERB Decision No. 291, the Board explained that EERA
section 3543, which guarantees public school employees the right "t? form, join, and
12
Although PERB has applied private-sector precedent regarding "unfair labor practice
strikes" to a variety
of
fact patterns, we raise the subject here merely by way of example
of
strikes as protected activity. Because the present case involves no actual or threatened strike,
we need not and do not attempt here to define the full scope or any limitations on public
employees' right to participate in strikes under the PERB~administered statutes.
28

participate in the activities
of
employee organizations
of
their own choosing," provides the
statutory basis for concluding that strikes may
be
statutorily-protected activity.13 After
reviewing other labor relations stahltes, including section 923
of
the Labor Code and section 7
of
NLRA, which are generally understood as guaranteeing private-sector employees' right to
strike under the rubric
of
"concerted activitiest the Board reasoned as follows:
The only difference we find between the right to engage in·
concerted action for mutual aid and protection and the right to
form, join and participate in the activities
of
an employee
organization is that BERA uses plainer and more universally
understood language to clearly and directly authorize employee
participation in collective actions traditionally related to the
bargaining process. Membership drives, meetings, bargaining,
leafletting and informational picketing are activities which
are,
without question, authorized by section 3543. Similarly, work
stoppages must also qualify as collective actions traditionally
related to collective bargaining. Thus, except as limited by other
provisions
of
BERA~
section 3543 authorizes work stoppages.
(Modesto, supra, at p. 62.) Thus, in addition to the qualified legal right to strike under County
Sanitation and other judicial authority, strikes and strike-related conduct may also be
stahltorily protected by the MMBA and other California public-sector labor relations statutes.
(Modesto, supra, at p. 15, Sweetwater, supra, PERB Order No. IR-58, p.
9.)1
4
Although Ostensibly Overruled, the Modesto Rule Remains Part
of
Board Law.
In contrast to Modesto and the other cases cited above stands Compton Unified School
District (1987) PERB Order No. IR-50 (Compton). In Compton, a majority
of
the Board
13
As the Board held: "Even though BERA does not prohibit strikes, the Board cannot
hold that a work stoppage is protected unless there is language in BERA which actually
authorizes such a decision. We find that there is." (Modesto, supra, at p. 61.)
14
Because MMBA section 3502 contains identical language to that found in
BERA section 3543, we consider Modesto instructive for interpreting the scope of employee
rights under the MMBA. (Redwoods Community College Dist.
v.
Public Employment
Relations Bd. (1984) 159 Cal.AppJd 617, 623-624; see also UC Regents, supra, PERB
Decision No. 2094-H, p. 31.)
29

sought to enjoin a series
of
intennittent strikes allegedly called to protest a school district's
unfair practices. A majority
of
the
Compton
Board found reasonable cause to conclude that the
intennittent strikes constituted an unfair practice or other violation
of
EERA. However, the
two members making up the Board majority wrote separate opinions expressing different
views on some
of
the key issues, including the legality and/or protected status
of
strikes under
EERA. 
In
the lead opinion, Member Porter argued that,
by
omitting from BERA and other
public-sector statutes, including the MMBA, any reference to strikes or the right to engage in
"other coi:icerted activities," the Legislature intended to prohibit all strikes by public
employees
..
( Compton, supra, at pp. 42-44, 74-75, 85, 87, 90, 115.)
~ember
Porter also
argued "that any such strikes or concerted activities are not protected by BERA" and
specifically criticized the Modesto Board's reasoning. (Compton, supra, at pp. 94-97, 101-
104.) Specifically, Member Porter asserted that
1l1odesto
"is clearly incorrect and is overruled
insofar as it interprets EERA section 3543 as authorizing work stoppages by public school
employees for the purpose
of
collective bargaining or other mutual aid or protection." Member
Porter argued that the Board's decision in
San Ramon, supra, PERB Order No. IR-46 "is also.
incorrecfand is overruled insofar as it follows [Modesto] and holds that public school
employees have a protected right under EERA to engage in unfair practice strikes." (Compton,
supra, at p. 106; see also pp. 125, 128.)
In her concurring opinion, Chairperson Hesse disagreed with Member Porter that
BERA prohibits all strikes by public school employees, but agreed with the result that the
series
of
intermittent strikes under consideration in Compton was unlawful, and should be
enjoined, because it caused a "total breakdown" of basic, constitutionally and statutorily-
guaranteed educational services, and of the collective bargaining process guaranteed by EERA.
30

(Compton, supra, at pp. 167-168.) Chairperson Hesse also agreed with Member Porter's view
that Modesto was wrongly decided and should be overruled to the extent it holds that the right
"to form, join, and participate in the activities of employee organizations of their own
choosing" under EERA section 3543 includes a statutorily-protected-right to strike. (Compton,
supra, at p. 164, fn. 3.) Elsewhere in her opinion, however, Chairperson Hesse seemed to
accept the Modesto premise that striking employees may be protected, even before the
completion of impasse resolution procedures, if their strike was provoked by employer unfair
practices. However, she concluded that in this paiiicular case the issue was moot, because
employees had returned to work and then struck again, and because the available evidence did
not establish that the series of strikes was in any way provoked or prolonged by' employer
15
unfair practices. (Modesto, supra, at p. 169, fu. 8.)
Although the Board has never formally overruled Compton, its status as precedential
authority is uncertain at best. Whatever the merits of Member Porter's exhaustive history of
private and public-sector labor relations statutes, it is true, as pointed out in Member Craib's
dissenting opinion, that the Supreme Court's County Sanitation opinion had already disposed
of the argument that the absence of express "right to strike" or "concerted activities" language
in EERA indicated an intent to ban all strikes by public employees. 16 Moreover, no other
15 Member Craib, the third member of the Compton Board, wrote a dissenting opinion
which argued that, unless otherwise limited by provisions ofEERA, section 3543 authorizes
strikes, and which endorsed the soundness of Modesto's reasoning regarding unfair labor
practice strikes. (See Compton, supra, PERB Order No. IR-50, p. 173.)
16 Compare Member Porter's open disagreement with the reasoning in County
Sanitation, pages 104-122, 147, with Member Craib's discussion, pages 171-172. See also the
discussion in Zerger, et al., California Public Sector Labor Relations (Matthew Bender 2014)
Chapter 25, section 25.03[3][a], suggesting that, contrary to Member Porter's interpretation,
the Supreme Court had "repeatedly rejected" the notion that all_strikes by public employees are
illegal.
31

member of the Compton Board shared Member Porter's view that EERA establishes a blanket
prohibition against all strikes by public employees and no Board majority since Compton's
publication has ever adopted that view either. (Compton, supra, PERB Order No. IR-50,
p. 168 [Hesse concurring opn.]; Vallejo. City Unified School District (1993) PERB Decision
No. 1015 (Vallejo), adopting warning letter at p. 2; see also Charter Oak, supra, PERB
Decision No. 873.) To the contrary, the Board has since stated that, "[n]otwithstanding the
absence of any specific statutory language in the MMBA addressing the right to strike, it is
now well established that certain public sector strikes are lawful." ( City of San Jose (2010)
PERB Decision No. 2141-M, p. 7, citing County Sanitation, supra, at pp. 572-573.) In at least
two other cases decided since Compton, the Board has interpreted contractual no strikes
provisions to determine whether a union's sponsorship or support for a sympathy strike
constituted an unlawful unilateral change. (Oxnard Harbor District (2004) PERB Decision
No. 1580-M and Regents of the University of California (2004) PERE Decision No. 1638-H.)
Although both cases turned on principles of contract interpretation, the underlying assumption
in both cases was that, absent contractual language expressly prohibiting sympathy strikes,
employees may lawfully strike in sympathy with other employees to the extent the primary
strike is lawful.
Additionally, while the Compton majority expressly rejected Modesto as "wrongly
decided" and overruled it to the extent it hel~ that the right "to form, join, and participate in the
activities of employee_ organizations of their own choosing" under BERA section 3543 includes
the right to strike, in subsequent decisions, the Board has clearly returned to, or retained, the
notion of unfair practice strikes as protected conduct, without however overruling Compton or
acknowledging the Compton majority's disagreement with Modesto on this point. Thus, in
Regents, supra, PERB Decision No. 2094-H, the Board stated that Compton overruled
32

Modesto, but "did not overrule prior PERB decisions recognizing the legality [sic] of unfair
practice strikes." (UC Regents, suprq,, at pp. 29-30.)17 As explained above, prior Board
precedent was not concerned so much with the legality of unfair practice strikes. That issue
was definitively resolved by County Sanitation and has since been affirmed by subsequent
judicial authority. (City of San Jose v. Operating Engineers, supra, 49 Cal.4th 597, 606.)
Rather, the question addressed in unfair practice strike cases is whether striking
employees hav~ engaged in a statutorily-protected activity, so that they or their representative
may rebut the presumption of unlawfulness. We believe the Modesto Board's answer to this
question remains the better rule and therefore overrule Compton to the extent it holds that there
is no statutorily~protected right to strike in protest against an employer's unfair practices. The
right to form, join and participate in the activities of employee organization encompasses the
qualified right to strike recognized by the Supreme.Court, including the right to strike in
protest against unfair practices. MMBA section 3502 states, in pertinent part, that, "Except as
otherwise provided by the Legislature, public employees shall have the right to form, join, aq.d
participate in the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer~employee relations." (MMBA, § 3502.) As such,
strikes by. public employees are statutorily protected, except as limited by other provisions of
the MMBA or other public-sector labor relations statutes and controlling precedent.
The Modesto Rule is Consistent with Federal and California Precedent.
Modesto's interpretation of employee rights under BERA is consistent with the
language and purpose of the MMBA and other labor relations statutes, It is also consistent
17 See also UC Regents, supra, PERB Decision No. 2094-H, at pages 31-34, which
reaffirmed PERB's case law.regarding unfair practice strikes, but neither rehabilitated Modesto
nor explained how an otherwise unlawful strike could be an "unfair practice strike," unless it
was also statutorily protected,
33

with judicial authorities which have generally directed PERB to follow "the array
of
sound
NLRA precedent" when deciding the parameters
of
protected employee conduct under the
PERB-administered statutes. (McPherson, supra, 189 Cal.App.3d 293,311; see also San
Lorenzo Education Assn.
v.
Wilson (1982) 32 Cal.3d 841, 845-846.) Section 7
of
the NLRA
guarantees private-sector employees the right to "engage
in
...
concerted activities for the
purpose
of
collective bargaining or other mutual ~id or protection.'' (29 U.S.C., § 157.) Like
the MMBA, section 7 thus includes no explicit reference to work stoppages. Nevertheless,
there has never been any serious question that Congress intended that section
7's
guarantee
of
the right to engage in "concerted activities': includes a protected right to strike. (29 U.S.C.,
§ 157; NLRB
v.
Erie Resistor Corp. (1963) 373 U.S. 221,233 (Erie Resistor), citing H. R. Rep.
No. 245, 80th Cong., 1st Sess. 26; see also NLRB
v.
Fleetwood Trailer
Co.
(1967) 389 U.S.
375, 378; Alwin Mfg. Co., Inc.
v.
NLRB (D.C. Cir. 1999) 192 F.3d 133, 138-142; and NLRB
v.
Curtin Matheson Scientific, Inc. (1990) 494 U.S. 775, 795.)
. ·
Because we hold that public employees enjoy a statutorily-protected right to strike
under the MMBA and other PERB-administered statutes, it follows that a no strikes or similar
clause purporting to waive or limit that right must be exempt from the employer's right to
impose terms and conditions
of
employment, even where the employer has bargained in good
faith to a genuine impasse and the no strikes language is consistent with the employer's "last,
best and final" pre-impasse proposals. Here again, we look to the decisional law
of
the NLRB
and the federal courts for guidance.
Under federal private-sector law, the parties' mutual obligation to bargain in good faith
may exist side-by-side with the "presence
of
economic weapons in reserve, and their actual
exerci;:;e on occ~ion by the parties." (NLRB
v.
Insurance Agents International Union (1960)
361 U.S. 477, 489.) Rather than demonstrating bad faith, whose hallmark is a desire to
34

frustrate negotiations and avoid reaching agreement, the use
of
economic pressure, even when
aimed at extracting concessions, may in fact assist
in
breaking a deadlock and thus furthering
the principles
of
collective bargaining. (Id. at p. 490; Erie Resistor, supra, 373 U.S. 221, 234.)
While federal labor policy seeks to avoid disruptions to commerce caused
by
labor disputes,
it
nonetheless recognizes that, because
of
the "inequality in bargaining power" stemming from
the employer's ability to control terms and conditions
of
employment, a threatened or actual
strike may be
the employees' only means
of
restoring some measure
of
equality
of
bargaining
power between employers and employees and encouraging employers to engage in collective
bargaining. (NLRA, 29 U.S.C.,
§§
151, 152(3), 157; Mastro Plastics, supra, 350 U.S. 270,
280)
In
this sense, the right to strike is generally regarded as "fundamental" to the system
of
collective bargaining established
by
the NLRA, even
if
its actual use may be disfavored.
(Gary-Hobart Water Corp. (1974) 210 NLRB 742,. 744, enforced (7th Cir. 1975) 511 F.2d 284,
cert. den. (1975) 423 U.S. 925; Children's Hosp.
1vled.
Ctr.
v.
California Nurses Assn.
(9th Cir. Cal. 2002) 283 F.3d 1188, 1192.).
While the NLRB and the federal courts have determined that methods for resolving
workplace disputes, including grievance and arbitration procedures and no strikes clauses, are
mandatory subjects for bargaining (29 U.S.C., § 158(d); United Electrical, etc.
v.
NLRB
(D.C. Cir. 1969) 409 F.2d 150, 156), they have removed from the employer's arserial the
ability to impose no strikes clauses unilaterally, even upoti reaching a bona fide impasse in
negotiations. (Roosevelt Memorial, supra, 348 NLRB 1016, 1016-1017.) Because the right to
strike is fundamental to the federal scheme
of
collective bargaining, it cannot be relinquished
by employees, except by consent, in the form
of
specific contractual language. ( Gary-Hobart,
supra, 210 NLRB 7 42, 744-745.) Where there has been no express waiver
of
the right to
strike, no such waiver will generally be inferred. (NLRB v. Lion Oil Co. (1957) 352 U.S. 282,
35

293;
but
cf.
L_ocal
174, Teamsters, Chauffeurs, Warehousemen & Helpers ofAmerica v. Lucas
Flour
Co.
(1962) 369 U.S. 95, 105-106; Goya Foods, Inc. (1978) 238 NLRB 1465, 1467; see
also Boys Markets, Inc.
v.
Retail Clerk's
Union,
Local
770
(1970) 398 U.S. 235, 251-255.)
Thus, under federal private-sector law, an employer
may
not impose terms containing a waiver
or
limitation
on
the right to strike, even after bargaining
in
good faith to impasse, because such
provisio;ns entail a surrender
of
statutory rights. (Roosevelt Memorial, supra, 348 NLRB 1016-
1017.)
California authorities, including the Supreme Court,
have
also endorsed views similar
to those embodied
in
the federal labor policy
on
which the MMBA
was
modeled, In
Co.unty
Sanitation, the Supreme Court observed that,
"In
the absence
of
some means
of
equalizing the
parties' respective bargaining positions, such as a credible strike threat, both sides are less
likely to bargain
in
good faith,'' which,
"in
turn leads to unsatisfactory and acrimonious labor
relations and ironically to
more
and longer strikes." (Id. at p. 583.) fu International
Brotherhood
of
Electrical Workers
v.
City
of
Gridley (1983) 34 Cal.3d 191, the Supreme
Court·
. held that a public employer
may
not promulgate rules that interfere with the rights
of
public
employees to
join
organizations
of
their own choice, and to participate in their activities, even
those activities include an unlawful strike. (34 Cal.3d at 198.) In Sweetwater, supra, PERB
Order No. IR-58, we also recognized that a threatened or actual strike, even when aimed at
extracting concessions, may serve to break a stalemate and thereby further rather than frustrate
negotiations. (Sweetwater, supra, at p. 15, citing South Bay Unified School District (1990)
PERB Decision No. 815, p. 15, Member Craib dissenting.)
Even
if
we were to conclude that the policy reasons expressed by federal authorities
were inapplicable in the MMBA context, we would nonetheless be constrained by existing
judicial authority under which public employees have a right to strike unless it is clearly shown
36

that the strike poses a substantial and imminent threat to public health and safety. (MMBA,
§ 3509, subd. (b); County Sanitation, supra, 38 Cal.3d 564,586; City
of
San Jose
v.
Operating
Engineers, supra, 49 Cal.4th 597, 606.) Because the imposition
of
a no strikes clause is in the
nature
of
a general prohibition,
it
is not a clear showing
of
any articulable, imminent threat to
public health and safety, much less one that is substantial.
We therefore conclud~ that an employer may not impose terms that waive or limit
employees' right to strike or engage
in
other concerted activities, even after bargaining in good
faith to impasse and exhausting any dispute resolution procedures, because permitting one side
to compel a waiver
of
a statutorily-protected right is contrary to PERB and controlling Judicial
precedent and would undermine the fundamental principles
of
collective bargaining.
(Roosevelt Memorial, supra, 348 NLRB 1016, 1017; County Sanitation, supra, 38 Cal.3d 564,
583; Vallejo, supra, PERB Decision No. 1015.) Consequently, in the present case, the
Authority was not authorized to impose the No Strike/No Lockout clause.
Because the Imposition
of
an LBFO at Impasse Does Not Create an MOU or Establish a
Waiver. the Authority Could Not Unilaterally Impose Language Whose Only Logical Purpose
Was
to·
Preserve the Terms
of
a Bi-Lateral Agreement.
Citing Rowland and other cases holding that a waiver
of
statutory rights must
be
clear
and unmistakable, SEID argues that no waiver may be inferred here. At most, SEID agreed
that all tentative a~eements would be included in the parties' LBFOs, though it denies that it
thereby consented to imposition
of
the Separability/Savings language. We agree with SEIU
that the Authority was not privileged to implement the Separability/Savings provision, though
not for the reasons argued by SEIU.
MMBA section 3505.7 (formerly MMBA section 3505.4) is clear that, while a public
agency that has bargained in good faith to impasse may implement its fast, best, and final offer
that was presented to and rejected by the union, it "shall not implement a memorandum of

understanding." As explained in Santa Rosa, which adopted the ALJ'spropqsed decision, this
language was added to the statute in 2000 to overrule Cathedral City Public Safety Mgmt.
Assn.
v.
City
of
Cathedral City (1999) 72 Cal.App.4th 821, review den. and opn. ordered
depublished (September 15, 1999), in which the Fourth District, Division 2, Court
of
the
California Court
of
Appeals held that, after bargaining
to
impasse, it was not an unfair labor
practice for a public agency to impose a memorandum
of
understanding with a duration clause
of
two and one-half years. (Santa Rosa, supra, PERB Decision No. 2308-M, p. 4.) Although
the Supreme Court ordered the Cathedral City decision depublished, the Legislature amended
the statute in 2000 to prohibit an employer from imposing a memorandum
of
understanding
and to guarantee recognized employee organizations the right "each year" to meet and confer
on any matters within scope before the adoption
of
the agency's annual budget or as otherwise
required
by
law, and regardless
of
whether the negotiable matters had been included in the
agency's unilaterally-imposed terms. (Stats. 2000,
c.
316 (A.B. 1852) (Longville).)
By
enacting AB 1852, the Legislature established a categorical ru1e against_
imposing a
memorandum
of
understanding. (Santa Rosa.)
In addition to the language
of
the statute itself, the amendment's purpose is made
uniformly clear from various legislative reports. (See California Bill Analysis, Senate
Committee, 1999-2000 Regular Session, Assembly Bill 1852, CAB. An., A.B. 1852 Sen.,
6/26/2000, June 26, 2000; California Bill Analysis, Senate Floor, 1999-2000 Regular Session,
Assembly Bill 1852, CAB. An., A.B. 1852 Sen., 6/19/2000,June
1'9,
2000; California Bill
Analysis, Assembly Committee, 1999-2000 Regular Session, Assembly Bill 1852, CA B. An.,
A.B. 1852 Assem., 5/03/2000, May 03, 2000; and, California Bill History, 1999-2000 Regular
Session, Assembly Bill 1852, CA Assern. B. Hist., 1999-2000 A.B. 1852, 1999-2000.) MMBA
section 3505. 7 establishes a statutory right of employees and employee organizations to be free
j
25

from the unilateral imposition of a memorandum of understanding and from imposed terms
purporting to affect matters that can only be established by consent. (Rowland, supra, PERB
Decision No. 1053, p. 7, fn. 5; Los Angeles County Assn. of Environmental Health Specialists
v. County of Los Angeles (2002) 102 Cal.App.4th 1112, 1119.)
Separability and savings language of the kind at issue here is thus only meaningful in the
context of a "final" agreement. Absent a comprehensive MOU covering other subjects of
bargaining, there are no other terms to separate and save, in the event one term is nullified or
declared unenforceable. This purpose is reflected in the language of the parties' tentatively
agreed article, which refers to "this Agreement," and which purports to be effective "for the
duration of this Agreement," While separability and savings language generally promotes
stability and protect settled expectations in the context of a comprehensive, bi-lateral
agreement, when uriilaterally imposed as .part of an LBFO, such provisions are inconsistent
with MMBA section 3505.?'s directive that a public agency "shall not implement a
memorandum of understanding," even after bargaining in good faith to impasse and exhausting
all impasse resolution procedures.
In its defense, the Authority argues that the "plain language" of the
Separability/Savings provision demonstrates that it "had no effect on the statutory rights of
[SEID] or its members." According to the Authority, the imposed language "never became
effective," because imposed terms do not constitute or revive an agreement (MMBA,
§ 3505.7), and because, by its express terms, the Separability/Savings provision is only
effective "[d]uring the term of this Agreement." (Emphasis added.) However, the controlling
question is not whether the imposed tenns· ever became effective, but whether their
promulgation is inconsistent with the statutory scheme of collective bargaining, exclusive
representation and employee choice, including the Legislature's directive that a public agency
39

''shall not implement a memorandum
of
understanding." Whether an employer's policy is
facially inconsiste11t with the governing statute,
or
whether it was adopted in a manner that
violates the bargaining process, PERE has long held that a firm decision to implement a policy
is the event that triggers liability, not whether the poli.cy was actually implemented or ever
became effective. (City
of
Sacramento (2013) PERE Dec~sion No. 2351-M, p. 27; Folsom-
Cordova Unified School District (2004) PERB Decision No. 1712, pp. 2-3, adopting proposed
dee., at pp. 19-21; Clovis Unified School District (2002) PERB Decision No. 1504, pp. 19-20.)
The Authority also characterizes its conduct as an innocent attempt to comply with its
obligation to implement only those changes reasonably comprehended within its LBFO.
However, the law is clear that an employer has no obligation to mechanically impose all
proposals included in its LBFO (City
of
Clovis (2009) PERB Decision No. 2074-M, pp. 7-8)
and
it
is equally clear that, regardless
of
what it has proposed as part
of
its LBFO, it cannot
impose proposals affecting matters that
ca.:q.
only be established by consent. To effectuate the
legislative purpose
of
MMBA section 3505.7, and to avoid precisely the kind
of
confusion
created
in
the present case, we hold that an employer has a duty to segregate or excise from its
imposed terms language purporting to "establish a memorandum ofunderstandit).g" or other
agreement, as well as language that is reasonably susceptible to such an interpretation.
(MMBA, § 3505.7; Santa Rosa, supra, PERB Decision No. 2308-M; State
of
CA
(DPA),
supra, PERB Decision No. 2130-S, pp. 9-10.) Because we interpret MMBA section 3505.7 as
precluding unilateral adoption
of
the Separability/Savings language, a per se violation, what
motivated the Authority to implement that provision or whether it took ef~ect is not gennane to
this analysis. (NLRB v.
Borg-Warner Corp., supra, 356 U.S. 342; 349; City
of
Sacramento,
supra, PERE Decision No. 2351-M, p. 27.)
40

Additionally, there is an issue of waiver. Although not expressly stated in the proposed
decision, the ALJ apparently concluded that SEIU consented to unilateral imposition of the
Separability/Savings provision either by tentatively agreeing to its language in pre-impasse
negotiations and/or by agreeing that all tentative agreements would be included in the parties'
LBFOs. We reject either line of reasoning as inconsistent with the language and purpose of the
MMBA and with PERB precedent regarding the doctrine of waiver.
Because a waiver of rights is disfavored, it may be established only by clear and
unmistakable evidence. (Amador Valley Joint Union High School District (1978) PERB
Decision No. 74 (Amador); Metropolitan Edison Co. v. NLRB (1983) 460 U.S. 693, 708
(Metropolitan Edison).) A waiver will not be lightly inferred and any doubt or ambiguity is
resolved against the party asserting waiver. ( City of Escondido (2013) PERB Decision
No. 2311-M, p. 13; NLRB v. Drivers, Chauffeurs, Helpers, Local Union No. 639 (1960)
362 U.S .. 274, 282; Standard Concrete Products Inc. v. General Truck Drivers, Office, Food &
Warehouse Union, Local 952 (9th Cir. 2003) 353 F.3d 668, 676.) Waiver may be established
either by agreement or by conduct. (Amador.) To establish a waiver by agreement, the parties
must "unequivocally and specifically express their mutual intention to permit unilateral employer
action with respect to a particular employment term, notwithstanding the statutory duty to·
bargain that would otherwise apply." (Finley Hosp. (Sept. 28, 2012) 359 NLRB No. 9.) A
waiver by conduct may also be established through the parties' bargaining history, buf only if the
issue was fully discussed and consciously explored and the union intentionally yielded its
interest in the matter. (Amador; Metropolitan Edison, supra, 460 U.S. 693, 708; see also
41

Local Joint Executive Bd. of Las Vegas v. NLRB (9th Cir. 2008) 540 F.3d 1072, 1079.) Neither
is the case here.18
First, the language of an unratified tentative agreement may no more waive a statutory
right than a unilaterally-impo'sed term can create a bi-lateral memorandum of understanding.
The MMBA makes any agreement reached by the representatives of a public agency and a
recognized employee organization "tentative," until expressly adopted by the agency's governing
body. (MMBA, § 3505.1; City of Clovis, supra, PERB Decision No. 2074-M, pp. 6-7.)
18 Our concurring colleague asserts that, "Waiver, typically, is an affirmative defense to
a charge of unlawful unilateral change in which the employer has made a change in policy on a
matter within the scope of bargaining without providing the exclusive representative adequate
notice and a meaningful opportunity to bargain before implementing the change." We
respectfully disagree. PERB's case law is quite clear that, where there has been inadequate
notice and/or no meaningful opportunity to bargain, there can be no waiver. (City of
Sacramento, supra, PERB Decision No. 2351-M, pp. 38-42; County of Santa Clara (2013)
PERB Decision No. 2321-M, pp. 22-29; Trustees of the California State University (2006)
PERB Decision No. 1876-H, pp. 11-12; Santee Elementary School District (2006) PERB
Decision No. 1822, pp. 7-8; San Mateo County Community College District (1979) PERB
Decision No. 94, pp. 21-23.) Waiver issues typically arise where the employer has made a
change in policy after providing notice and opportunity for bargaining, but the representative's
inaction or delay in the face of such notice and opportunity creates doubt as to whether it has
relinquished any interest in negotiating the subject. (See, e.g., Metropolitan Water District of
Southern California (2009) PERB Decision No. 2055-M, pp. 4-5; Santee, supra, PERB
Decision No. 1822, pp. 2-6; San Mateo, supra, PERB Decision No. 94, pp. 23-25.) However,
a union can only ever waive a reasonable opportunity to bargain over a decision that has not
already been firmly made by ~he employer. (San Mateo, supra, at p. 22.)
We agree with our concurring colleague that wavier is not relevant to whether an
employer may impose its bargaining proposals upon reaching a bona fide impasse in
negotiations. But the element of consent necessary to establish a waiver may also be
demonstrated by clear and unmistakable contract language (San Mateo, supra, PERB Decision
No. 94, pp. 21-22) and, although not clearly set forth in the proposed decision, the fact that the
parties reached tentative agreements on language that was ultimately imposed appears to be the
basis of the ALJ' s cursory dismissal of SEIU' s exceptions. We believe the parties to this case
and PERB's wider constituency deserve a cogent explanation of the Board's decision,
including its rejection of a party's exceptions or. the Board's disagreement with the reasoning
of a proposed decision (McPherson, supra, 189 Cal.App.3d 293, 311; 2 Cal. Jur. 3d
Administrative Law, § 574; see also Judulang v. Holder (2011) 132 S.Ct. 476, 479.)
Consequently, we explain our view that the parties' unratified tentative agreements cannot
clearly and unmistakable establish a waiver of statutory rights.
42

California courts and PERB have repeatedly held that a public employer's governing body is free
to adopt or reject a tentative agreement, without thereby incurring liability for failing and
refusing to bargain in good faith. (Long Beach City Employees Assn.,
Inc.
v.
City
of
Long Beach
(1977)
73
Cal.AppJd
273, 277; Temple City Unified School District (2008) PERB Decision
No. 1972; State
of
California (Department
of
Personnel Administration) (2006) PERB Decision
No. 1836-S.) Indeed, the exercise
of
such legislative discretion is part
of
the "reasonable method
of
resolving disputes regarding wages, hours, and other terms and conditions
of
employment
between public employers and public employee organizations" envisioned
by
the Legislature.
(MMBA,
§ 3500; City
of
Long
Beach, supra,
73
Cal.App.3d 273, 277.)
Although it would exceed ,PERB's authority to mandate that employee organizations
follow a parallel ratification process (Service Employees International
Union,
Local
99
(Kimmett) (1979) PERB Decision No. 106, pp. 15-17), no doubt the Legislature was familiar
with the words ''tentative agreement" as a term
of
art
in
labor law and was aware that many
employee organizations, either
by
policy or practice, conduct some form
of
membership vote,
executive board approval, or other ratification process before agreements with the public
employer will
be
binding on the organization. (,santa Clara County Superior Court (2014)
PERB Decision No. 2394-C, p. 20.) PERB has sitnilarlyheld that where an employee
organization has internal policies or established practices goveming ratification, or has entered
into ground rules with the employer requiring ratification, tentative agreements shall not be given
legal effect until the organization has completed the ratification process. ( Capistrano Unified
School District (1994) PERB Order No. Ad-261; cf. Apple Valley Unified School District (1990)
PERB Order No. Ad-209.)
Because the statutory scheme
of
collective bargaining speaks in terms of a procedural
duty shared equally by the employer and the exclusive representative (LA USD, supra, PERB
43

Decision No. 2326, p. 40), it would
be
anomalous to hold that an employee organization is bound
by
an unratified tentative agreement, while the public employer is not.
19
Thus, even assuming
'
the language
of
the Separability/Savings provision is "explicit," it cannot establish a waiver
by
contract, because, in the absence
of
ratification, it is not an agreement.
Nor does the bargaining history support an inference
of
waiver. The parties' ground
rules state that a proposed MOU "is tentative, subject to ratification
by
union members and
approval
by
the [Authority]." The purpose
of
making agreements tentative, until ratified, was
obviously to reserve rather than relinquish any rights which affected such agreements. A
union's recognition that the employer will proceed to act unilaterally after negotiations have
reached impasse is not, by itself, an intentional relinquishment
of
the right to future bargaining
on the subject, in the event the impasse is broken. (Trustees
of
the California State University
(San Marcos) (2004) PERB Decision No. 1635-H, pp. 4-5.) We will not infer a waiver
of
a
statutory right, including the right not to have a memorandum
of
understanding unilaterally
imposed, simply because negotiations have reached impasse and the parties have agreed to
include tentative agreements
in
their LBFOs. As SEID points out in its exceptions, a contrary
rule would discourage unions from ever concluding tentative agreements on difficult subjects
in order to remove those issues from the bargaining table.
In sum, the fact that SEID tentatively agreed to carry over the Separability/Savings
language from the previous MOU neither demonstrates a binding agreement, nor consented to
the unilateral imposition
of
terms that imply the existence
of
a memorandum
of
understanding.
19
The public sector labor relations statutes attempt to deal with the likelihood of conflict
over terms and conditions of employment by establishing a balance of rights and obligations
between the parties and "[i]t was certainly not the Legislature's intent to permit the employer,
through its use of economic power, to upset this balance, intentionally or innocently, and thereby
pit one social interest against another." (San Mateo, supra, PERB Decision No. 94, pp. 16-17.)
44

(MMBA, § 3505.7; Rowland, supra, PERB Decision No. 1053, p. 7, fn. 5; Roosevelt
Memorial, supra, 348 NLRB 1016, 1017.)
SEIU' s Surface Bargaining Allegation
In addition to its allegations regarding unilateral implementation of the No Strike/No
Lockout and Separability/Savings language, the complaint also alleged that the Authority failed
and refused to meet and confer in good faith by making a regressive proposal regarding IHSS
providers' wages and benefits, that is, by withdrawing its more generous wage and benefit
proposal of February 9,2010, before SEID formally rejected that proposal and demanding
instead that SEID agree to deeper concessions. SEID argues, more funda~entally, that all of the
Authority's proposals for wages and benefits constitute evidence •Of a "take-it-or-leave-it
attitude," and thus of bad faith in negotiations, because they reflect a "policy choice" dictated not
by financial necessity, but by an "arbitrarily" arrived-at amount of what the County was willing
to pay for IHSS providers' wages and benefits from which the Authority never deviated. SEID
argues that the ALJ failed to acknowledge or afford sufficient weight to evidence of the
Authority's arbitrarily pre-determined spending limit on IHSS providers' wages and benefits.
We find nothing in SEID's brief which convinces us to disturb the ALJ's findings or
conclusions regarding the Authority's pre-impasse bargaining conduct.
'
SEIU's exception focuses on testimony that, in early 2010, when the County was
preparing its budget, the County's Chief Administrative Officer (CAO) directed Kovacevic to
determine what the County could afford to pay in IHSS provider wage and benefit
contributions using only realignment funds, even though there is no requirement that the
County use only realignment monies to fund IHSS provider wages and benefits. SEID
contends that there were thus no changed circumstances that prompted the Authority to
withdraw its February 9, 2010, wage proposal and submit in its place its less generous proposal
45

of March 17, 2010. Rather, SEIU argues that Kovacevic, at the direction of the County's
CAO, devised a formula to justify an arbitrarily, pre-determined policy choice to spend less on
the IHS S program than on other social services.
The ALJ found that in late September 2008, the Authority notified SEID of a proposal
to reduce IHSS provider wages by $1.10 per hour, from to $10.25 to $9.15, effective January 1,
2009, "because state realignment funds had been reduced for fiscal year (FY) 2008-2009,
triggering the Contingency [A]rticle of the MOU." As explained in the proposed decision, the
Contingency language in the parties' 2006-2009 MOU provided that, if federal and/or state
funding was reduced a~1d/or suspended, the Authority's contribution to IHSS providers' wages
and benefits would be reduced proportionately.
SEIU disagreed and pursuant to the MOU, the parties participated in two rounds of
factfinding. Although advisory only, the first factfinding decision concluded, among other
things, that the Authority had properly invoked the Contingency language, because of a
reduction in base realignment funding in both FY 2007-2008 and FY 2008-2009. However, it
also recommended that the Authority's efforts to recapture $1,310,489 in wage and benefit
concessions be distributed over the course of one year rather than six months. A second
factfinding decision, prompted by changes in state funding for the IHSS program,
recommended no reduction in wages or benefits, because the MOU, including the Contingency
language, was set to expire in three months, and. because increased federal funding, retroactive
to October 2008, was expected to be available from the American Recovery and Reconciliation
Act of 2009, PL 111-5, February 17, 2009, 123 Stat. 115.
In late June 2009, the U.S. District Court for the Northern District of California issued a
preliminary injunction prohibiting the Governor and other officials of his administration from
implementing legislation that would reduce the cap on the state's contribution to IHSS
46

provider wages and benefits without first conducting a study under the federal Medicaid Act.
The district court later clarified that counties may reduce the wages of IHSS providers, so long
as the decision was not based oil the reduction in the state cap approved by the Legislature.
The proposed decision found that Kovacevic's testimony and the supporting documents
presented at the hearing, most of which had also been presented· to SEIU during negotiations,
"demonstrated that, based on past years' revenues and projections, money was not available to
maintain the [Authority's] obligations under the expired MOU which continued to be paid,"
because of the federal court's injunction. SEIU does not dispute that the County implemented
workforce reductions, furloughs and wage reductions affecting_ County employees other than
IHSS providers to address its budget shortfall. Nor does SEIU dispute Kovacevic's testimony
that other social services, including the County's General Relief benefits, were cut or reduced,
that vacant positions were not filled, and that the Board of Supervisors had to "backfill," i.e.,
transfer funds from other County programs to maintain the wages and benefits ofIHSS
providers in accordance with the federal court's decision. Thus, SEIU has not presented any
evidence to dispute the ALJ's finding that Kovacevic's testimony and the supporting
documentation demonstrated that a combined $8.60 in wages anq benefits was the maximum
amount that the Authority could offer IHSS providers, without taking additional money from
other County-wide funding sources. Instead, SEIU argues that it sought to identify additional
funding sources that would enable the Authority to make a more generous economic proposal,
without affecting other social services, but that the Authority's negotiators outright refused to
consider this option. The evidence fails to support this contention as well.
On March 17, 2010, the Authority withdrew its package proposal of February 9, 2010,
which would have decreased IHSS providers' wages from the current figure of $10.25 to
$9.25 per hour. As part of its March 17, 2010 proposal, the Authority proposed that wages be
47

further reduced to $8.00 per hour. As withits previous package proposal, the Authority
indicated that, at SEIU's complete discretion, some or all
of
the 60 cents per person to be paid
by the County for health benefits could be transferred to employee wages, with a
corresponding decrease in the employer contribution to health benefits, i.e., up to a maximum
of$8.60 per hour in wages but with no employer-paid health benefits contributions.
When it presented its March 17, 2010 proposal, the Authority also provided several
spreadsheets and a detailed explanation
of
how
it
had arrived at its figures, based on changes
in
. realignment funding. The Authority's chief negotiator explained that the Match 17, 2010
proposal was labeled a LBFO because, while there was still room for negotiation over how to
allocate the $8.60 figure between wages and benefits,
"it
would
be
disingenuous on our part to
suggest that something could eclipse that number by way
of
[additional] funding and by way
of
being able to meet the demands
of
fiscal year
'I
0-'
11." When SEIU responded with a proposal
calling for increases in wages and benefits during the second year
of
the MOU, without
identifying any additional or alternative funding sources, the Authority declared impasse.
SEID argues that the declaration
of
impasse was premature, because SEIU had
additional proposals to present and because the Authority's negotiators focused exclusively on
obtaining concessions, whereas SEITJ's negotiators were interested in working with the
Authority to identify additional sources ofrevenue. However, despite repeated requests from .
the Authority's negotiators, at no point between September 2009, when SEIU received the
Authority's proposal for wage concessions, and the Authority's declaration
of
impasse six
months later, did SEIU identify any additional funding sources that would support its demands
for increases in wages and benefits.
After March 17,201
e,
when SEW asserted that negotiations were not at impasse
because it had additional proposals to make, Pinheiro asked SEIU to make its proposals so that
48

the impasse could be broken but SEIU made no further proposals. At one point after the
Authority had declared impasse but before the Board
of
Supervisors voted to impose terms,
SEIU's Lead Negotiator Rebecca Mahlberg (Mahlberg) pfaced a call to the CAO to discuss
this topic. However, Mahlberg then refused to communicate any specifics when Pinheiro, the
Authority's designated chief spokesperson, returned her call and reminded her that, because
this topic involved matters then under negotiation, inquiries should
be
directed to Pinheiro,
rather than to the County's CAO.
Under the circumstances, including the Authority's repeated assertions
in
bargaining
that it needed concessions on IHSS providers' wages and benefits, and that no other funding
sources were available, it is not unreasonable to expect that,
if
SEIU had any concrete
suggestions for additional funding sources, then it would have presented them to the Authority,
to avoid the impending declaration
of
impasse and the imposition
of
terms. The urgency
of
. 	.
doing so only increased during the period between March 17, 2010, when the Authority
proposed even deeper cuts to employee wages and benefits in its LBFO and declared impasse,
and May 25, 2010, when the County's Board
of
Supervisors approved the imposition
of
terms
included in the Authority's LBFO.
	In
sum, the evidence does not support SEIU's contention
that the Authority imposed an arbitrary limit on what it would pay for IHSS providers' wages
and benefits. Nor does it demonstrate that the Authority refused to consider alternative
funding sources. To maintain the current level
of
wages and benefits, as required by the
federal court injunction, the County would.have to redirect money from other social service
programs. Moreover, SEIU never identified any alternative funding sources to cover the costs
of the increased wages and benefits it demanded.
Additionally, even assuming the ALJ had, as SEIU urges; assigned greater weight to
Kovacevic's testimony, and had drawn different inferences :from that testimony to find that the
49

Authority had set a pre-determined spending limit
C?n
the costs
of
its economic proposals, such
a finding would not affect the overall conclusion that SEIU's evidence was insufficient to
establish that the Authority had engaged in surface bargaining. While a party may not merely
go through the motions with no intent to reach agreement, it may lawfully insist on its position
on any negotiable issue. (State
of
CA
(CDCR/DPA), supra, PERB Decision No. 2115-S,
pp. 11-12; Oakland Unified School District (1982) PERB Decision No. 275.) A party "m~y
have either good or bad reasons, or no reason at all, for insistence on the inclusion or exclusion .
of
a proposed contract term" but "[i]f the insistence is genuinely and sincerely held,
if
it is not
mere window dressing,
it
may be maintained forever though it produce a stalemate
....
" (City
of
Placentia, supra, 57 Cal.App.3d 9, 23, citing NLRB
v.
Herman Sausage Co., supra,
275 F.2d 229, 231-232; cf. General Electric Co., supra, 150NLRB 192, 195.)
Although the distinction between lawful "hard bargaining" and a "tal<:e-it-or-leavewit"
attitude is often a fine one (see Regents
of
the University
of
California (1983) PERB Decision
No. 356-H, pp. 21-22), generally, no unlawful motive may
be
inferred where a party's insistence
on its position is supported by rational arguments that are communicated during bargaining.
(UC Regents, supra, PERB Decision No. 2094-H, p. 20.) PERB has dismissed allegations
of
surface bargaining based on an employer's refusal to budge from its initial economic
proposals, even when it admitted that more money might be available. (Turlock Joint Union
High School District (1996) PERB Decision No. 1151 (Turlock); Beaumont, supra, PERB
Decision No. 429.) Even
if
we were to accept SEIU's version
of
the facts, we would still
conclude that the Authority was legally authorized to limit what it wished to pay in employee
wages and benefits, based on a "policy" choice
of
avoiding further cuts to other social services.
Accordingly, the Authority's refusal to budge from its position was neither per se unlawful nor
evidence of bad faith.
50

The cases cited by SEIU are inapposite. In Oakland Unified School District (1985)
PERB Decision No. 540, the employer refused to provide information or meet with the
bargaining _representative over the effects of layoffs, until after its intentions were made public
by the school board resolution and it had notified employees directly of their layoffs. (Id. at
p. 16-17.) General Electric, supra, 150 NLRB 192, similarly involved an employer that refused
to provi~e information to the union, announced its intent to implement an insurance plan first to
employees and then to the union, and insisted that the plan would take effect "as is" or not at all.
SEIU is hard-pressed to point to anything in the Authority's conduct that suggests ~ad
faith. In fact, the record includes ample evidence---much of it undisputed-that undermines
any inference that the Authority sought to frustrate negotiations or undermine SEIU's
authority. The Authority provided prompt and thorough responses to SEIU's requests for
information. It presented numerous proposals and counterproposals both separately and as
packages on all subjects in dispute; made various concessions and indicated when~ it had
additional flexibility; and negotiated and executed tentative agreements for the vast majority of
subjects discussed. It also offered detailed explanations of its need for economic concessions
and its reasons for rejecting SEIU's demands to maintain or increase wages and/or benefits.
The Authority's negotiators routinely made themselves available for meetings and, in fact,
asked to schedule multiple meetings at a time; and, even after declaring impasse, repeatedly
invited SEIU to offer any proposal that might break the impasse before the Authority's
governing body voted to implement the Authority's LBFO.
Even on the economic issues that proved most divisive and ultimately caused the
impasse in negotiations, the Authority insisted that $8.60 was the maximum amount it would
pay in wages and benefits combined, but indicated it would agree to any division of that
amount between wages and benefits that SETIJ, as the employees' designated representative,
51

wished to propose. Such conduct falls squarely within the realm of lawful "hard bargaining,"
and does not constitute a "take-it-or-leave-it" offer. (UC Regents, supra, PERB Decision
No. 2094-H, p. 20; General Electric, supra, 150 NLRB 192, 195; see also Turlock, supra,
PERB Decision No. 1151; and Beaumont, supra, PERB Decision No. 429.)
As part of the totality of circumstances relevant to a surface bargaining charge,
the Board may also consider the charging party's own conduct, regardless of whether
th~ respondent has filed a countercharge. (City of San Jose, supra, PERB Decision
No. 2341-M, p. 41; Kings In-Home Supportive Services Public Authority (2009) PERB
Decision No. 2009-M, pp.14-15; Compton Community College District (1989) PERB Decision
No. 720, pp. 15-16; NLRB v. Reed &Prince Mfg. Co. (1st Cir. 1953) 205 F.2d 131, 134.)
Numerous authorities hold that a party may not be heard to complain about the pace or tenor of
negotiations, when the result may be attributed to its own conduct. (University of California,
Lawrence.Livermore National Laboratory, supra, PERB Decision No.'1119-H; Carl Joseph
Maggio, Inc. v. Agricultural Labor Relations Bd. (1984) 154 Cal.App.3d 40, 70-71; Seattle-First
National Bank v. NLRB (9th Cir. 1981) 638 F.2d 1221, 1225, 1226-1227; cf. NLRB v. Katz,
supra, 369 U.S. 736, 741-742.)
On June 26, 2009, the Authority requested several meeting dates in mid-July.
However, SEIU was not prepared to meet until August 12, 2009. The parties then met
approximately once per rrionth in each of the following months until April 17, 2010, when the
Authority presented its LBFO. SEIU's representatives walked out of one meeting to protest
the Authority's proposals for wage and benefits concessions; refused repeated requests to
schedule more than one meeting date at a time; cancelled six of the meeting dates that had been
scheduled, in some cases with little or no notice; insisted on resolving non-economic issues
52

before responding to the Authority's proposal on wages; and ultimately took four months to
respond to the Authority's wage proposal with a counterproposal.
Whether the Authority's Unlawful Imposition of the No Strike/No Lockout and
Separability/Savings Language Demonstrates Bad Faith 	·
Although we have concluded above that the Authority's imposition of the No Strike/No
Lockout and Separability/Savings provisions constituted per se violations of its duty to
bargain, SEID contends that the same facts should be analyzed as evidence of bad faith in
support of its overall surface bargaining allegation. We next consider this contention.20
20 Our concurring colleague criticizes the majority opinion for "returning" to the totality
of circumstances analysis in order to separately consider whether the Authority's post-impasse
conduct alters the nature of pre-impasse negotiations. We respectfully disagree with this
characterization of the decision, as there is one surface bargaining allegation in this case,
wbich,pursuant to the complaint, includes SEIU's allegations about the Authority's post-
impasse imposition of two unratified tentative agreements. The issue raised by any surface
bargaining claim is whether the totality of circumstances demonstrates that the respondent
lacked the subjective "good faith" required by the statute, i.e., whether it went through the
motions of bargaining with no real intent to reconcile differences or reach agreement.
(Mt. Diablo Unified School District (1983) PERB Decision No. 373, p. 24; Muroc, supra,
PERB Decision No. 80, p. 13; NLRB v. Reed & Prince Mfg. Co. (1st Cir. 1953) 205 F.2d 131,
134.) Although the post-impasse events in this case do not, in our view, demonstrate bad faith
by the Authority, because the totality of circumstance analysis necessarily turns ~n the
particular facts of each case, we reject a categorical rule that post-impasse events can never be
relevant to the analysis of the respondent's subjective state of mind during negotiations. We
explain.
PERB has long held that a premature, unfounded, or insincere declaration of impasse
may serve as evidence of bad faith in support of a surface bargaining allegation. (UC Regents,
supra, PERB Decision No. 520-H, pp. 14 and 25, fn. 13;) Whether a respondent has "rushed to
impasse" turns on whether the respondent's strategy was to move negotiations as rapidly as
possible to impasse and then impose its demands unilaterally, without taking the presumably
more time-consuming route of bargaining in good faith to a bona fide impasse or agreement.
(City of San Jose, supra, PERB Decision No. 2341-M, pp. 40-41.) Such allegations are
analyzed under the totality of circumstances test. ( County of Riverside, supra, PERB Decision
No. 2360-M, pp. 11-12, 15, 19; City of Selma (2014) PERB Decision No. 2380-M, pp. 12-13.)
Whether the respondent actually imposed some or all of the proposals included in its last, best
and final offer is logically relevant to whether it rushed to impasse with the purpose of short-
circuiting the bargaining process.
53

PERB has long held that a premature, unfounded, or insincere declaration
of
impasse
may serve
as
evidence
of
bad faith in support
of
a surface bargaining allegation. (UC Regents,
supra, PERB Decision No. 520-H, pp.
14
and 25,
fn. 13;
City
of
San Jose, supra, PERB
Decision No. 2341-M,
pp.
40-41; County
of
Riverside, supra, PERB Decision
No.
2360-M,
j)p.
11, 19.) A bona fide impasse exists only
if
the employer's conduct is free
of
unfair labor
practices; its right
to
impose terms and conditions at impasse
is
therefore dependent on prior
good faith negotiations from their inception through exhaustion
of
statutory or other applicable
impasse resolution procedures. (Temple City Unified School District (1990) PERB Decision
No.
841
(Temple City).) Thus, an employer's separate, unremedied unfair practices may
interfere with the bargaining process and thereby invalidate any impasse. (Intermountain Rural
Electric Assn. (1991) 305 NLRB 783, enforced (10th Cir. 1993) 984 F.2d 1562; New Associates
(1992) 307 NLRB 1131, 1135-1136, review granted and enforcement denied on other grounds
(3d Cir. 1994)
35
F.3d 828.) However, an otherwise bona fide impasse in negotiations is not
Our reluctance to declare categorically that subsequent events are never probative
of
the respondent's state
of
mind during negotiations is also supported by persuasive private-
sector precedent. In Stanislaus Implement & Hardware Co., Ltd. (1952)
101
NLRB 394, the
union and employer met several times over the course of
two months and reached tentative
agreement on most issues, but negotiations eventually broke down over the union's demand for a
union shop clause. After negotiations had ended, the employer unilaterally granted wage
increases that had never been proposed or discussed during negotiations. (Id.
at p. 395.) Several
months later, the union notified the employer ofits desire to resume negotiations and requested
information pertaining to employee wages, which the employer never provided. (Id. at pp. 395-
396.) The.parties agreed on meeting dates, but the employer's representative failed
to
appear
and then informed the union's representative that the employer was goingto "stall" the union for
a year and "have a decertification election." (Id. at p. 396.) Although the parties' negotiations
had already ended and never
res~ed,
the NLRB considered the employer's subsequent per se
violations of its duty to bargain, including its unilateral wage increase and its refusal to provide
information, as part of the totality of circumstances demonstrating its absence of good faith
during negotiations. (Id. at pp. 396, 411.) On the employer's petition for review, the Ninth
Circuit Court of Appeals affirmed the NLRB's reasoning and enforced its order that the
employer remedy its unfair labor practices and return to the table to bargain in good faith.
(NLRB
v.
Stanislaus Implement &Hardware Co. (9th Cir. 1955) 226 F.2d 377, 379-381.)
54

invalidated by an employer's separate unfair practices, if there is no evidence that the unlawful
conduct contributed to the deadlock in negotiations. (Pleasantview Nurslng Home, Inc. v.
NLRB (6th Cir. 2003) 351 F.3d 747, 762.) Evidence of separate unfair practices whose
occurrence was remote in time or otherwise not probative of the respondent's state of mind in
negotiations is not relevant or appropriate for consideration. (Pleasantview; Temple City,
supra, at pp. 2-4; Gavilan Joint Community College District (1996) PERB Decision No. 1177,
pp. 5-6.)
So it is here. SEIU does not contend that the Authority's proposals for No Strike/No
Lockout and Separability/Savings language were predictably unacceptable, or that the
Authority improperly insisted on these proposals to the point of impasse. In fact, SEIU
tentatively agreed to both proposals during the initial bargaining sessions with relatively little
discussion. We therefore reject SEIU's contention that the post-impasse imposition of the No
Strike/No Lockout and Separability/Savings provisions had any effect on negotiations or
otherwise demonstrate an absence of subjective good faith on the part of the Authority.
As the appropriate remedy, the Authority must rescind the unlawfully imposed No
Strike/No Lockout and Separability/Savings provisions and cease and desist from imposing
proposals that require SEIU and/or employees to waive statutory rights and/or that imply the
existence of a bi-lateral agreement. It must also post a notice informing employees of their
rights. (City of Sacramento, supra, PERB Decision No. 2351-M.) However, because the
evidence does not demonstrate that the Authority engaged in an overall pattern of conduct
designed to frustrate bargaining or undermine SEIU' s authority, we dismiss the allegation of
surface bargaining.
55

ORDER
Based on the foregoing findings of fact and conclusions of law and the entire record in
this case and pursuant to the Meyers-Milias-Brown Act (MMBA), Government Code
section 3509, the Public Employment Relations Board (PERE or Board) REVERSES the
administrative law judge's (ALJ) proposed decision in part and finds that the Fresno County
In-Home Supportive Services Public Authority (Authority) violated sections 3505 and 3506,5,
subdivision (c), of the Government Code, and committed an unfair practice pursuant to
section 3 509, subdivision (b) of the Government· Code and PERB Regulation 32603,
-suqdivision (c) (Cal. Code Regs., tit. 8, § 31001 et seq.), by tmil_aterally implementing No
Strike/No Lockout and Separability/Savings provisions. The above conduct also violated
section 3506.5, subdivisions (b) and (a), of the Government Code, by denying the Service
Employees International Union United Healthcare Workers West (SEIU) rights guaranteed to it
by the MMBA, and by interfering with the rights of employees to join, fonn and patiicipate in
the activities of employee organizations of their own choosing for the purpose of
representation on all matters of employer-employee relations.
t
The Authority, its governing board and its representatives, shall:
A. 	CEASE AND DESISTFROM:
1. 	Unilaterally imposing the No Strike/No Lockout and
Separability/Savings provisions that require SEID and/or employees to waive statutory rights
and/or that imply the existence of a bi-lateral agreement.
2. 	Denying SEID rights guaranteed by the MMBA to represent employees.
3. 	Interfering wit_h the rights of employees of the Authority_to fonn, join,
and participate in the activities of employee organizations of their own choosing for the
purpose of representation on all matters of employer-employee relations.
56

B. 	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICES OF THE MMBA:
1. 	Restore the status quo as of the date the parties reached a bona fide
impasse in negotiations and exhausted applicable impasse resolution procedures by rescinding
th~ unilaterally imposed No Strike/No Lockout and Separability/Savings provisions.
2. 	Within ten (10) workdays of service of a final decision in this matter,
post at all work locations where notices to employees of the Authority are customarily posted,
copies of the Notice attached hereto as_an Appendix, signed by an authorized agent of the
Authority. Such posting shall be maintained for at least thirty (30) consecutive workdays. In
addition to physical posting of paper notices, the Notice shall be posted by electronic message,
intranet, internet site, and other electronic means customarily used by the Authority to
communicate with In-Home Supportive Services providers employed by the Authority. The
Authority, its governing board and its representatives shall take reasonable steps to ensure that
the posted Notice is not reduced in size, defaced, altered or covered by any material.
3. 	Written notification of the actions taken to comply with this Order shall
be made to the General Counsel of PERB, or the General Counsel's designee. The Authority
shall provide ·reports, in writing, as directed by the General Counsel or his/her designee. All
reports regarding compliance with this Order shall be concurrently served on SEIU or its
designated counsel.
All other allegations included in this charge are hereby dismissed.
Member Huguenin joined in this Decision.
Chair Martinez's concurrence begins on page 58.
57

MARTINEZ, Chair, concurring: I concur with the majority's conclusion that there is a
qualified statutory right to strike under the Meyers-Milias-Brown Act (MMBA); that under the
impasse rule, employers are not entitled to unilaterally impose bargaining proposals that seek
to limit statutory rights or contravene the statutory scheme; and that, in this case, the Fresno
County In-Home Supportive Services Public Authority (Authority) negotiated in good faith,
but, upon reaching impasse, was not privileged to unilaterally impose the "No Strike/No
Lockout" proposal or the "Separability of Provisions/Savings Clause." I write separately
because I respectfully disagree with portions of the discussion in the majority opinion, which I
view as analytically doubtful and ultimately unnecessary1 to explain our conclusion.
Bargaining
This case raises two issues related to the bargaining conduct of the Authority. Did the
Authority violate its duty to bargain in good faith by engaging in surface bargaining - making
regressive bargaining proposals and imposing its last, best and final offer (LBFO) before
reaching a bona fide impasse? And, did the Authority commit a per se violation of its duty to
bargain by unilaterally imposing the "No Strike/No Lockout" proposal and the "Separability of
Provisions/Savings Clause" upon reaching a bona fide impasse in negotiations? Regarding the
surface bargaining issue, the majority rightly affirms the ALJ's conclusion that the record
evidence does not support the alleged violation. The Authority did not engage in regressive
1 As stated in Ventress v. Japan Airlines (9th Cir, 2014) 747 F.3d 716, 723-724
(cone. opn. of Bea, J.):
[T]he "cardinal principle of judicial restraint" is that "if it is not
necessary to decide more, it is necessary not to decide more."
PDK Labs. Inc. v. DEA, 362 F.3d 786, 799, 360 U.S. App. D.C.
344 (D.C. Cir. 2004) (Roberts, J., concurring in part and
concurring in the judgment), cited in Morse v. Frederick,
551 U.S. 393,431, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007)
(Breyer, J., concurring in the judgment in part and dissenting in
part), and Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1030
(9th Cir. 2013) (Bea, J., concurring in part and dissenting in part).
58

bargaining nor did it impose its LBFO before reaching a bona fide impasse in negotiations.
Regarding the issue whether the Authority was privileged to impose the ''No Strike/No
Lockout" proposal and the "Separability of Provisions/Savings Clause," the majority rightly
concludes that, as a matter of law, neither the proposal nor the clause was subject to illlilateral
imposition.
The conclusion that the Authority bargained in good faith prior to reaching impasse is
not called into question by our examination of the separate legal issue whether the Authority
was privileged to impose the "No Strike/No Lockout" proposal and the ."Separability of
Provisions/Savings Clause" upon reaching impasse, As the majority concludes, "[w]e find
nothing in SEIU's brief which convinces us to disturb the ALJ's findings or conclusions
regarding the Authority's pre-impasse bargaining conduct." (Maj. opn., ante, at p. 45,)
Nevertheless, after rejecting the one cognizable exception concerning the surface
bargaining issue, i.e., whether the ALJ sufficiently considered the testimony of Sanja
Kovacevic (maj. opn., ante; at pp. 45-53), the majority ret~s to the subject of surface
bargaining and analyzes it anew. 	(Maj. opn., ante, at pp. 53-55.) This time, the majority
considers the question whether the Authority's unilateral imposition of the "No Strike/No
Lockout" proposal and the "Separability of Provisions/Savings Clause," which occurred after
the parties negotiated in good faith and reached a bona fide impasse in negotiations, gives rise
to a surface bargaining violation.
Revisiting the subject of surface bargaining and analyzing the allegations related to the
imposition of the ''No Strike/No Lockout" proposal' and the "Separability of
Provisions/Savings Clause" under a totality of circumstances test is not called for factually or
legally. Factually, the parties reached tentative agreements on both the "No Strikes/No
Lockout" proposal and the "Separability of Provisions/Savings Clause" and there are no related
59

surface bargaining allegations.2 Legally, Rowland Unified School District (1994) PERB
Decision No. 1053 (Rowland), the one Board decision that addresses post-impasse imposition
of a bargaining proposal seeking to limit statutory rights, supports a per se, not a totality
of
circumstances, approach.
The principle invoked by the majority in support
of
the second surface bargaining
discussion is that an employer's separate, un-remedied unfair practices may interfere with the
bargaining process and invalidate any impasse. "Un-remedied unfair practices" presumably
refers to the Authority's post-impasse unilateral imposition
of
the "No Strike/No Lockout"
proposal and the "Separability
of
Provisions/Savings Clause." The suggestion posited by the
majority is that the Authority's. unilateral imposition of the "No Strike/No Lockout" proposal
and the "Separability
of
Provisions/Savings Clause" may have had the retroactive effect of
interfering with an already-concluded bargaining process and invalidating an otherwise bona
fide impasse.
The cases relied on by the majority do not support this notion.3 They stand for the
principle that an employer's good faith may be called into question when it acts unilaterally
The complaint does not direct that the allegations concerning imposition of the
"No Strike/No Lockout" proposal and the "Separability
of
Provisions/Savings Clause" be
analyzed under the "totality
of
circumstances" test. The allegations concerning imposition of
the "No Strike/No Lockout" proposal and the "Separability
of
Provisions/Savings Clause" are
referenced in two separate paragraphs of the complaint alleging generally that such conduct, on
its own or in combination with the surface bargaining allegations, violates section 3505 of the
MMBA and constitutes an unfair practice.
3 Included in the private-sector precedent asserted by the majority to be persuasive in
its second discussion of surface bargaining is NLRB
v.
Stanislaus Implement & Hardware Co.
(9 th Cir. 1955) 226 F.2d 377, 379-381. (Maj. opn., ante, at pp. 53-54, fn:20,
,r
3.)
In Stanislaus, the company was found to have shifted positions, refused to bargain on a union
security proposal, unilaterally implemented a wage boost, failed to resume negotiations, failed
or refused to furnish pertinent wage data or appear at scheduled meetings during a strike, and
made a statement through its agent that the company was going to stall for a year and have a
decertification election. The court held that these facts shed light on the company's intent and
"support the inference drawn by the Board that Respondent did not bargain in good faith." (Id.
at p. 381.) That negotiations had broken down and ultimately never resumed does not mean
60

while negotiations are ongoing. For example, in lntermountain Rural Electric Assn. (1991)
305 NLRB 783, enforced (10 th Cir. 1993) 984 F.2d 1562, 1570 (maj. opn., ante, at p. 54), the
employer implemented three "serious" unilateral changes "in the midst
of
ongoing
negotiations." The court held:
[W]e uphold the Board's determination that valid impasse was
not possible on March 20, 1989 due to the fact that IREA's
unilateral changes negatively impacted the bargaining arena.
First, we note that IREA implemented three unilateral changes
while negotiations were still ongoing. As a result, the Board is
justified in considering the effect of these changes on the overall
negotiations
....
Here, there is no allegation of un-remedied unfair practices committed by the Authority
during the course
of
negotiations, let alone any that would call into question the Authority's
good faith; or would call into doubt the genuineness of the parties' impasse or the validity of
the Authority's right to take unilateral action under the impasse rule. The wrong committed by
the Authority after negotiations concluded had to do with the substance of the two proposals
being "un-imposable," not with any other aspect
of
the employer's conduct.
An employer's right to impose terms and conditions
of
employment at impasse is
dependent on prior good faith negotiations from their inception through exhaustion
of
statutory
or other applicable impasse resolution procedures. (Maj. opn., ante, at p. 54.) The temporal
focus of any inquiry analyzing whether an impasse is bona fide is the period of negotiations
leading up to the impasse. The parties' conduct during negotiations determines whetherthey
had the subjective intent to reach agreement. There is no plausible argument that good faith
that the parties were in a post-impasse environment. Given the employer's bad faith
throughout negotiations, no genuine impasse was possible, and the employer's last, best and
final offer could not have been legally imposed. The "totality of the circumstances" that led
the court to conclude that the employer had engaged in surface bargaining included unlawful
unilateral action by the employer, not post-impasse conduct, as is the case here.
61

negotiations may be converted into bad faith negotiations based on conduct that has yet to
occur after negotiations have concluded.
Service Employees International Union United Healthcare Workers West (SEIU)
contends that the same facts concerning the Authority's imposition of the "No Strike/No
Lockout" proposal and the "Separability of Provisions/Savings Clause" should be analyzed as
evidence of bad faith in support of its overall surface bargaining allegation. (Maj. opn., ante,
at p. 53.) The response to SEIU's argument is not that the Authority's post-impasse imposition
of the "No Strike/No Lockout" proposal and the "Separability of Provisions/Savings Clause"
did not have any effect on negotiations or otherwise demonstrate an absence of subjective good
faith on the part of the Authority. (Maj. opn., ante, at p. 55.) It is that the argument is illogical
on its face. By entertaining SEIU's argument and resurrecting the question whether the
Authority prematurely declared impasse, the majority suggests that under different facts, the
outcome could chang~. · In my opinion, under no set of facts may an employer who has been
found to have negotiated in good faith and reached a bona fide impasse in negotiations
nonetheless be charged with pre-imp.asse surface bargaining under.a rush-to-impasse theory
based on the subject matter of proposals imposed at impasse.4
Waiver
The ''Separability of Provisions/Savings Clause" is a creature of contract. Under the
statutory scheme, however, a memorandum of agreement cannot be unilaterally imposed.
(MMBA, § 3505.7.) Because the "Separability of Provisions/Savings Clause" has life only in
4 The majority characterizes my opinion in the following way: "[P]ost-impasse events
can never be relevant to the analysis of the responde11t's subjective state of mind during
negotiations." 	(Maj. opn., ante, at p. 53, fn. 20, ,i 1, italics in the original.) Absent from the
majority's re-statement are two postulates of the original statement: (1) good faith
negotiations, i.e., the employer had the subjective intent to reach agreement as required by
statute; and (2) abona fide impasse in negotiations, i.e., the employer neither rushed to
impasse nor prematurely or insincerely declared impasse.
62

the context of a binding agreement, it is not a term or condition of employment subject to post-
impasse μnilateral imposition. Therefore, the Authority was not privileged to impose the
clause under the impasse ruk
The ''No Strike/No Lockout" proposal seeks to limit the right to strike. If such a
bargaining proposal were mutually agreed to by the parties and incorporated within a binding
agreement (as SEID and the Authority had done in their previous memorandum of
understanding), SEIU would be found to have waived its right to bargain over the right to
strike. Such a limitation on the exercise of a statutory right, however, is not a term or
condition of employment subject to post-impasse unilateral imposition. (Rowland, Supra,
PERB Decision No. 1053,) Therefore, the Authority was not privileged to impose the proposal
under the impasse rule.
The majority's discussion of the post-impasse imposition issue includes an analysis of
"waiver," i.e., whether SEIU waived its right to collectively bargain the "No Strike/No
Lockout" proposal and the "Separability of Provisions/Savings Clause'' by entering into
tentative agreements during negotiations. (Maj. opn., ante, at pp. 41-45.) It is axiomatic that
tentatively agreed~to bargaining proposals do not constitute a binding comprehensive
agreement. Waiver, however~ plays no role in an analysis of the impasse rule.
Waiver is predicated on c~nsent. The impasse rule, which allows the employer to
unilaterally impose its LBFO on reaching a bona fide impasse in_ negotiations, is not predicated
on consent. The impasse rule is part of an administratively and judicially developed doctrine
intended to break impasse and restore active collective bargaining. (McClatc_hy Newspapers
(1996) 321 NLRB 1386, 1390-1391.)
Waiver, typically, is an affirmative defense to a charge of unlawful unilateral change in
which the employer has made a change in policy on a matter within the scope of bargaining
63

without providing the exclusive representative adequate notice and a meaningful opportunity to
bargain before implementing the change. (San Mateo County Community College District
(1979) PERE Decision No. 94.) Waiver may be established by contract, by negotiations
history or by inaction. (See generally, Zerger, California Public Sector Labor Relations (2014)
§ 10.07[1]-[3], pp. 10-47-10-53.) Regardless of the factual circumstances in which the issue of
waiver arises, the central issue is whether the exclusive representative has waived its right to
bargain in clear and unmistakable terms; the evidence must indicate an intentional
relinquishment of the right to bargain. (Amador Valley Joint Union High School District
· (1978) PERE Decision No. 74.)
Waiver issues do not arise in the context of a post-impasse unilateral imposition of
terms and conditions of employment. After all, the sine qua non of the impasse rule is that the
employer has bargained in good faith and the parties have reached a bona fide impasse in
negotiations. The only analytical commonality between an effective waiver and a bona fide
impasse in negotiations is that each results in a suspension of the duty to bargain, albeit a
temporary one in the case of the latter.5,
5 As Justice Edwards explained in NLRB v. McClatchy Newspapers, Inc. Publisher of
Sacramento Bee (D.C. Cir. 1992) 964 F.2d 1153, 1157 (McClatchy Newspapers):
Generally, the "waiver" cases to which the Board alludes address
a substantially different facet of the employer/union relationship
than the one here at issue; they most often arise during the
pendency of a collective bargaining agreement and focus .on
whether a union has given its assent(or waived objections) to
unilateral employer action. In these so-called "waiver" cases, the
employer typically acts on a claim of contractual authority, or
pursuant to asserted reserved rights, under the parties' existing
collective bargaining agreement; thus, in such cases, the
employer usually does not bargain before taking the specific
action. By contrast, the Board here found that McClatchy
bargained in good faith with the union over the merit pay
proposal and that the parties had reached impasse ....
64

Los Angeles Unified School District (2013) PERB Decision No. 2326 (L,AUSD)
involved consideration of the impasse rule as it applied to bargaining proposals conferring on
the employer unfettered discretion over mandatory subjects of bargaining. In re.aching the
conclusion that such proposals are not subject to the impasse rule, the Board concluded that the
principle of waiver plays no role in any analysis concerning the impasse rule. It said:
If we failed to recognize an exception to the post~impasse
· implementation rule, impasse would become an opportunity to act
wiilaterally concerning matters within the scope of representation
on a_ recurring basis without regard to the collective bargaining
process.
In reaching this conclusion, we have determined that the
doctrine of waiver is inapplicable, for the reasons given by 	·
Justice Edwards in NLRB v. McClatchy Newspapers, Inc., supra,
964 F .2d 1153. The District has not unilaterally decided to
change an existing policy falling within the scope of 	·
representation during the life of the agreement without providing
the exclusive representative with notice and opportunity to
bargain. Such cases tum on whether the exclusive representative
has consented to the change by waiving its right to bargain in
clear and unmistakable contractual terms. (Amador Valley Joint
Union High School District (1978) PERB Decision No. 74.) By
contrast, the context involved here is negotiations over a
successor agreement. Ordinarily the employer need not obtain
the union's consent to implement a proposal if the proposal is
lawful 8:fid the parties have negotiated over it in good faith and
reached impasse.
(LAOSD, supra, at p. 39.)
After laying down the law of waiver, the majority concludes that neither the language
of the tentatively agreed-to "No Strike/No Lockout" proposal or the "Separability of
Provisions/Savings Cla~se," nor the bargaining history supports an inference of waiver because
tentative agreements are not agreements unless ratified. (Maj. opn., ante, at pp. 41-45.) As
explained above, in my view, I would hold that waiver of the right to bargain is not raised and
does not apply in the context of a post~impasse imposition of tem1s and conditions of
employment. The impasse rule, which sanctions unilateral action by the employer, and the
65

principle of waiver, which turns on mutuality and consent, serve fundamentally dissimilar
doctrinal purposes.6 As stated in McClatchy Newspapers, supra, 964 F.2d 1153, 1168:
The Board has attempted to take the words from decisions
involving claims of "waiver" in situations where an agreement
exists and apply them to cases where the parties, are bargaining to
secure an agreement; it does not work because, in the latter
situation, the impasse rule comes into play (thus making "waiver"
irrelevant).
6 I write separately not to point out that waiver is irrelevant to whether an employer
may impose at impasse.· (Maj. opn., ante, at p._42, fn. 18, if 2.) I write separately to make the
point that an exclusive representative cannot be found by any of its agreements, actions or
inactions during the course of negotiations to have waived collective bargaini:11-g rights in the
event the parties reach impasse and the employer imposes. This is so not because the employer
has failed to prove up the defense, but because waiver is a doctrine unavailable in the setting of
a post-impasse imposition. The majority's waiver analysis supports an unprecedented notion
that an exclusive representative may be found to have waived collective bargaining rights in
the context of a post-impasse unilateral imposition of terms and conditions by the employer
depending on the facts of a particular case. The majority's acceptance of waiver as an
appropriate analytical issue in the setting of a post-impasse imposition is the subject of my
disagreement.
66

APPENDIX
NOTICE
TO
EMPLOYEES
POSTED BY
ORDER
OF
THEPUBLIC EMPLOYMENT RELATIONS BOARD
An Agency
of
the State
of
California
After a hearing in Unfair Practice Case No. SA-CE-671-M, Service Employees
International
Union
United Healthcare
Workers
West
v.
Fresno County In-Home
Supportive
Services Public
AuthorUy,
in whleh all parties had the right to participate, it has been found
that the Fresno County
In~Home
Supportive Services Public Authority (Authority) violated the
Meyers-Milias~Brown Act (MMBA), Government Code section 3500 et seq.
As a result
of
this conduct, we have been ordered to post this Notice and we will:
A.
	CEASE AND DESIST FROM:
..
1.
	Uni.laterally imposing No Strike/No Lockout and Separability/Savings
provisions that require the Service.Employees International Union United Healthcare Workers
West (SEIU) and/or employees to waive statutory rights and/or that imply the existence
of
a bi-
lateral agreement.
2.
	Denying SEID rights guaranteed
by
the MMBA to repl'esent employees.
3. 	Interfering with the rights
of
employees
of
the Authority
to
form, join,
and participate in the activities
of
employee organizations ofthe.ir own choosing for.the
purpose
of
representation on all matters
of
employer-employee relations.
B.
	TAKE THE FOLLOWING AFFIRMATIVE ACTIONS DESIGNED TO
EFFECTUATE THE POLICIES OF THE MMBA:
Restore the
statu."l
quo as
of the date the parties reached a bona fide impasse in
negotiations and exhausted applicable impasse resolution procedures by resdnding the
unilaterally imposed No Strike/No Lockout and Separability/Savings provisions.
Dated:
---------
FRESNO COUNTY IN-HOME SUPPORTIVE
SERVICES PUBLIC AUTHORITY
By:
Authorized Agent
-------------
THIS IS AN OFFICIAL NOTICE. IT MUST REMAIN POSTED FOR AT LEAST THIRTY
(30) CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING AND MUST NOT BE
REDUCED IN SIZE, DEFACED, ALTERED OR COVERED WITII ANY OTHER
MATERIAL.