Kings In-Home Supportive Services Public Authority (PERB 2009M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
STATE OF CALIFORNIA
CALIFORNIA UNITED HOMECARE
WORKERS UNION,
Charging Party,
V.
KINGS IN-HOME SUPPORTIVE SERVICES
PUBLIC AUTHORITY,
Respondent.
Case No. SA-CE-434-M
PERB Decision No. 	2009-M
March 10, 2009
Appearances: 	Altshuler Berzon by Linda Lye, Attorney, for California United Homecare
Workers Union; Kyle Sand, Deputy County Counsel, for Kings In-Home Supportive Services
Public Authority.
Altshuler Berzon by Linda Lye, Attorney, for California United Homecare
Before Rystrom, Chair; McKeag and Neuwald, Members.
DECISION OF THE
DECISION	DECISION
RYSTROM, Chair: 	This case is before the Public Employment Relations Board (PERB
or Board) on appeal by the California United Homecare Workers Union (CUHW) of a Board
agent's dismissal of its unfair practice charge. 	The unfair practice charge alleged that the
Kings In-Home Supportive Services Public Authority (Public Authority) violated the Meyers
Milias-Brown Act (MMBA or Act) 1 by failing to bargain in good faith because it prematurely
declared impasse and did not participate in good faith in the impasse procedures contained in
the Employer-Employee Relations Policy (Local Rules). 	CUHW alleged that this conduct
Milias-Brown Act (MMBA or Act)' by failing to bargain in good faith because it prematurely
1MMBA is codified at Government Code section 3500 et seq. 	Unless otherwise
indicated, all statutory references herein are to the Government Code.
Appearances:
in
PUBLIC EMPLOYMENT RELATIONS BOARD
V .
KINGS IN-HOME SUPPORTIVE SERVICES
PUBLIC AUTHORITY,
Respondent.
PERB Decision No. 2009-M
March 10, 2009

constituted a violation ofMMBA sections 3505 and 3505.4, PERB Regulation 32603(c), (e)
and (g)2 and Local Rules section 17(a) and (b ).
We have reviewed the entire record in this matter, including the original, first amended
and second amended unfair practice charges, the Public Authority's response to the second
amended charge and CUHW' s reply to this response, the warning and dismissal letters,
CUHW's appeal of the dismissal, and the Public Authority's response thereto. Based on this
review, we reverse the Board agent's dismissal of the unfair practice charge for the reasons
stated below.
BACKGROUND	BACKGROUND
CUHW is the agent for the United Domestic Workers of America, the exclusive
representative for In-Home Supportive Services (IHSS) providers in Kings County (County).
The Public Authority is the employer of record for IHSS providers in the County.
CUHW and the Public Authority are parties to a memorandum of understanding which
provides that the parties agree to reopen negotiations no later than June 30, 2006, for the sole
purpose of bargaining fiscal year 2006-2007 wages. 3 This case involves the conduct of the
parties during those wage negotiations and the impasse procedures that followed.
Unfair Practice Charge
On October 23, CUHW filed an unfair practice charge which alleged that the Public
Authority failed and refused to bargain with CUHW in violation of the MMBA by prematurely
declaring impasse. CUHW supplemented the charge on October 30 alleging that the Public
2PERB regulations are codified at California Code of Regulations, title 8, section 31001
et seq.
3Unless otherwise indicated, all date references made hereafter are to year 2006.
2
stated below.
2

Authority violated the Local Rules by refusing to propose dates for an impasse meeting. A
first amended charge was filed on November 6 which further alleged that on October
31
the
Public Authority violated the MMBA by unilaterally imposing its own wage increase proposal.
CUHW did not allege any additional facts in its second amended charge in response to
the Board agent's warning letter. 	In this unfair practice charge CUHW stated it was not
alleging surface bargaining,4 but rather that the Public Authority committed a "per se"
violation
of
the duty to meet and confer when the Public Authority refused to schedule further
negotiations and thereafter unilaterally implemented a wage increase without first scheduling
an impasse meeting as required by the local impasse procedures.
Board Agent Dismissal
3
In his warning letter, the Board agent informed CUHW that its charge failed to state a
prima facie case
of
bad faith or "surface" bargaining under the "totality
of
the conduct" test
because the Public Authority's adamant position on the wage increase, without any evidence
of
delays or dilatory tactics, was merely hard bargaining as demonstrated by the undisputed facts.
The Board agent also informed CUHW that it failed to allege sufficient facts to state a prima
facie case that the Public Authority failed to schedule an impasse meeting pursuant to the
Local Rules' impasse procedures because CUHW had rejected all four
of
the Public
Authority's proposed dates for an impasse meeting and instead proposed to meet on a holiday
over a month and a half after the declaration of impasse.
The Board agent dismissed the second amended charge determining it did not provide
any further facts to show that the Public Authority failed to bargain in good faith or that it
refused to schedule an impasse meeting. The Board agent again cited, as the basis for his
"Based on this representation by CUHW, we do not analyze the charge as having
alleged surface bargaining.

decision, the facts that the CUHW had rejected the four October dates offered by the Public
Authority for an impasse meeting and instead proposed a holiday in late November.
The Board agent also found that CUHW had not stated a prima facie case that a per se
unilateral change violation had occurred because CUHW failed to establish that the wage
increase was implemented before notifying CUHW and affording it the opportunity to request
negotiations.
CUHW' s Appeal
In its appeal, CUHW argues that it has alleged facts sufficient to state a prima facie
case of a per se violation of the duty to meet and confer in good faith by alleging the Public
Authority's: 	(1) premature declaration of impasse; and (2) unilateral implementation of a wage
increase without exhausting impasse procedures in good faith.
CUHW contends that the allegations that it did not believe the parties were at impasse
and that it requested to continue negotiations are sufficient to state a prima facie case that the
Public Authority failed to meet and confer in good faith by prematurely declaring impasse.
It is maintained by CUHW that alleging the Public Authority failed to comply with
local impasse procedures is sufficient for a prima facie case because CUHW's second amended
charge alleged no impasse meeting was scheduled and that CUHW was denied its right to
pursue voluntary mediation as provided for in the Local Rules.
CUHW also excepts to the Board agent's dismissal on the basis that he exceeded his
pre-hearing authority by making certain factual determinations. We do not address this
exception given our de novo review of the second amended charge.
4

Public Authorities Response to CUHW' s Appeal
In response to CUHW' s appeal, the Public Authority contends that it complied with the
local impasse procedures and that CUHW waived its rights under them through its evasive and
dilatory conduct.
The Public Authority also asserts that pursuant to PERB Regulation 32620(b)(5),5 it is
not sufficient for a charging party to merely state a prima facie case but that they must also
show evidence of it. According to the Public Authority, CUHW failed to provide such
evidence to establish that the Public Authority committed a prima facie violation of its duty to
meet and confer with CUHW.
DISCUSSION
The issues raised by CUHW's second amended charge are whether CUHW has alleged
sufficient facts to establish a prima facie case that the Public Authority failed to bargain in
good faith by: (1) prematurely declaring impasse on October 12, 2006; and (2) failing to
participate in local impasse procedures in good faith because (a) no impasse meeting was
scheduled prior to the Public Authority's unilateral imposition of a wage increase, and
(b) CUHW was denied an opportunity to voluntarily mediate.
We begin our analysis of these issues by determining the facts we may consider as the
chronology of the negotiations between CUHW and the Public Authority. At the charge
processing stage, the burden to provide specific allegations of fact, which demonstrate a prima
A. 	Undisputed Facts	A.
5PERB Regulation 32620(b )(5) provides, in pertinent part, that the Board agent shall
have the power to "Dismiss the charge or any part thereof as provided in Section 32630 if it is
determined that the charge or the evidence is insufficient to establish a prima facie case; ... "
5
Public Authorities Response to CUHW's Appeal
5

m
facie case that an unfair practice has been committed, is on the charging party, (Sacramento
Municipal Utility District (2006) PERB Decision No. 1838-M; PERB Reg. 32615.)6
The majority
of
the factual allegations in the chronology below were obtained fro
CUHW's charges and related documentation filed therewith. 	However, some
of
the facts
result from information and documentation that was filed by the Public Authority, served on
CUHW, and summarized in the Board agent's warning letter. These additional facts which
expand the factual picture in this case were not contradicted by CUHW, therefore they may be
considered by PERB in determining whether the charge should be dismissed. 	(Fontana
Teachers Association, CTA/NEA (Alexander, et al.) (1984) PERB Decision No. 416 [failure
of
charging party to deny factual conclusions outlined in the warning letter is justification for
dismissal
of
charge].)
Our factual chronology
of
the negotiations by CUHW and the Public Authority is as
follows:
• 	Sometime prior to August I 0, four7 negotiation dates were scheduled for August 10,
August 23, September
12
and October 12, 2006, respectively.
6The Public Authority argues that CUHW also has the burden
of
producing evidence
of
a prima facie case at this stage based on PERB Regulation 32620(b)(5) and Eastside Union
School District (1984) PERB Decision No. 466 (Eastside). We disagree. According to
Eastside, the single question at the charging stage is whether the charge alleged facts which,
if
true, constitute evidence
of
a violation. (San Juan Unified School District (1982) PERB
Decision No. 204.) In analyzing PERB Regulation 32640, the Board in Eastside stated that the
regulations were designed to permit a determination that the facts as alleged in the charge state
a legal cause of action and that the charging party is capable of providing admissible evidence
in support
of
the allegations.
7There is a factual dispute as to the number of negotiation sessions attended by the
parties. 	The Public Authority contends that the parties also negotiated on July 25, 2006. When
considering a motion to dismiss on the ground that a charge fails to allege a violation
of
the
Act, we must assume that the essential facts alleged in the charge are true. 	(San Juan Unified
School District (1977) EERB* Decision No. 12.) Accordingly, we assume as true that the
parties engaged in four days of negotiations. 	(*Prior to January 1978, PERB was known as the
Educational Employment Relations Board or EERB.)
66

• 	On August 10, CUHW proposed to increase the $7.50 hourly wage to $10.50.
• 	On August 23, the Public Authority responded with a proposed increase in hourly
wages to $7.65.
O
• 	On September 12, CUHW proposed to increase hourly wages to $9.50 effective
immediately. The Public Authority responded by proposing to increase hourly
wages to $7.85. At that time, the Public Authority expressed its intent to present a
final offer at the fourth and final negotiating session on October 12.
• 	On September 26, CUHW proposed to delay the implementation date of its $9.50
hourly wage proposal to December.
• 	On October 10, CUHW sent the Public Authority a letter expressing CUHW's
concern that the Public Authority was attempting to push the negotiations to
impasse prematurely and stating that CUHW remained flexible, ready and willing to
continue bargaining to negotiate an agreement.
• 	At the final negotiation session on October 12, CUHW lowered its hourly wage
proposal to $9.25. The Public Authority responded by presenting CUHW with a
written declaration of impasse and its "last, best, and final offer" of $8.00 per hour.
In this session the Public Authority also submitted a written request pursuant to
Local Rule section 17 that an impasse meeting be held on October 18, 19, 25 or 26.
CUHW responded by requesting to schedule further negotiations in order to reply to
the final offer. The Public Authority refused this request. CUHW's representatives
did not take the impasse documentation provided by the Public Authority with them
when they left the negotiations. 	Subsequently on the same day, the Public
Authority again provided the impasse documents to CUHW by overnight mail.
• 	On October 24, the Public Authority notified CUHW by email that since CUHW
had not accepted one of the dates offered for an impasse meeting or proposed an
alternate date, the Public Authority would assume CUHW waived its right to an
impasse meeting and would proceed to schedule the matter for determination at a
meeting of the county board of supervisors on October 31. CUHW was given up to
5:00 p.m. on October 25, to respond to this email. By letter dated October 24,
CUHW informed the Public Authority that CUHW did not consider the parties to be
at impasse pursuant to the definition of "impasse" under the Local Rules. CUHW
also expressed its dissatisfaction that the Public Authority would not schedule
further negotiations to allow CUHW to respond to the final offer.
5:00
• 	On October 25, before the Public Authority's 24-hour deadline had expired, CUHW
faxed a letter to the Public Authority which stated that although CUHW did not
agree with the Public Authority's "unilateral declaration of impasse," CUHW would
be available to meet with the Public Authority on November 24.
7
O
.
O
O
7

• 	On October 26, the Public Authority rejected CUHW's request to meet on
November 24, citing
"a
lack
of
good faith" on CUHW's part because the Local
Rules required the scheduling
of
a prompt impasse meeting, CUHW's proposed
date was "well over a month" after the declaration
of
impasse, and would fall "on a
holiday."
• 	On October 27, CUHW responded that it could look at another date that would be
convenient for the Public Authority. 	CUHW also urged the Public Authority to
continue the board meeting scheduled for October
31
in order to give the parties an
opportunity to hold an impasse meeting.
• 	On October 31, the county board
of
supervisors adopted the final $8.00 hourly wage
offer.
B. 	The Public Authority Prematurely Declared Impasse
CUHW has alleged that no impasse existed on October
12
pursuant to the definition
of
impasse in the Local Rules8 and for that reason the Public Authority failed to bargain in good
faith by declaring an impasse at that time. We find that this allegation was improperly
dismissed.
B.
Local Rule section
17
provides, in pertinent part, that "Impasse procedures may be
invoked [by either party] after all other attempts made by both parties to reach agreement
through good faith negotiations have been unsuccessful."
Under Local Rule section 3(i), "Impasse" means that the parties "have reached a point
in their meeting and conferring in good faith on a dispute over matters within the scope
of
their
O
O
O
MMBA section 3507(a)(5) authorizes local agencies to adopt "reasonable rules and
regulations" governing collective bargaining matters, including "[a]dditional procedures for
the resolution of disputes involving wages, hours and other terms and conditions of
employment." The reasonableness of the Public Authority's Local Rules pertaining to the
definition of "impasse" and the "impasse procedures" have not been challenged.

representation at which their differences in positions are so substantial or prolonged that future
meetings would be futile." 9
Charges involving claims of bad faith bargaining which allege that a declaration of
impasse was unfounded under local rules adopted pursuant to the MMBA, are determined by
analyzing the totality of the bargaining circumstances that led up to the impasse declaration.
(City & County of San Francisco (2007) PERB Decision No. 1890-M (San Francisco); City of
Fresno (2006) PERB Decision No. 1841-M; County of Riverside (2004) PERB Decision
No. 1715-M (Riverside).)
Under this test, the Board weighs the facts to determine whether the conduct at issue as
a whoie "indicates an intent to subvert the negotiating process or is mereiy a iegitimate
position adamantly maintained." (Oakland Unified School District (1982) PERB Decision
No. 275 (Oakland).)
In the instant case, the parties agreed to participate in four negotiation sessions to be
held on August 10, August 23, September 12, and October 12, 2006, respectively. 	On
August 10, CUHW proposed to increase the $7.50 hourly wage to $10.50. In response, on
August 23, the Public Authority proposed to increase the hourly wage to $7.65.
On September 12, CUHW proposed to increase hourly wages to $9.50 effective
immediately. The Public Authority responded by proposing to increase hourly wages to $7.85.
9The Local Rules contain the following definitions of "impasse":
9
'Impasse' means that the representatives of the Public Authority
and a Recognized Employee Organization have reached a point in
their meeting and conferring in good faith on a dispute over
matters within the scope of their representation at which their
differences in positions are so substantial or prolonged that future
meetings would be futile. 	[Local Rule, sec. 3(i).]

In addition, the Public Authority expressed its intent to present a final offer at the October 12
negotiation session. On September 26, CUHW proposed to delay the implementation date of
its $9.50 hourly wage proposal to December.
At the final negotiation session on October 12, CUHW lowered its hourly wage
proposal to $9.25. The Public Authority responded by presenting CUHW with a written
declaration of impasse and its "last, best, and final offer" of $8.00 per hour.
Based on the foregoing, it is clear that the parties participated in a series of productive
bargaining sessions in which both parties made significant bargaining concessions at each of
the scheduled sessions. Indeed, the Public Authority offered to increase the hourly rate to
$7.65 on August 23, to $7.85 on September 12, and to $8.00 on October 12, 2006. Likewise,
CUHW also proposed significant concessions regarding the hourly rate at each of these
sessions.
After a careful review of the record, we find the allegations do not support the premise
that the differences in parties' respective positions were so substantial or prolonged that future
meetings would have been futile. 	To the contrary, each bargaining session was marked by
significant concessions by both parties. At a minimum, it appears that an additional bargaining
session would have been necessary for CUHW to consider and respond to the Public
Authority's final offer. No such session was scheduled. Instead, the Public Authority declared
impasse and presented its "last, best, and final offer" to CUHW.
1. 	The Public Authority was not Adamantly Maintaining a Legitimate Position
The Board has held that while a party may not merely go through the motions of
negotiations, it may lawfully maintain an adamant position on any issue. "Good faith" has
been interpreted by the courts as "a genuine desire to reach agreement." (Placentia Fire
1 .
10

Fighters v. City of Placentia (1976) 57 Cal.App.3rd 9 [129 Cal.Rptr. 126].) Although the
parties need not reach agreement, "good faith" requires a "serious attempt to resolve
differences and reach a common ground." (Id.) Adamant insistence on a bargaining position
is not necessarily a refusal to bargain in good faith. 	(Id.; Oakland.) "The obligation of the
employer to bargain in good faith does not require the yielding of positions fairly maintained."
lliLRB v. Herman Sausage Co. (5 th Cir. 1960) 275 F.2d 229 [45 LRRM 2829, 2830].)
Considering the fact that CUHW was never afforded an opportunity to respond to the
Public Authority's last offer, we find this case does not involve a situation in which the Public
Authority adamantly maintained a legitimate position. Rather, the Public Authority
inexplicably declared impasse without allowing CUHW to respond to the Public Authority's
counter-offer and refused to participate in further negotiations. As such, we find this conduct
indicates an intent to subvert the negotiating process and generally demonstrates the lack of a
genuine desire to reach agreement. Accordingly, under the totality of the conduct test, we hold
that that CUHW stated a prima facie case that the Public Authority declared impasse
prematurely and, therefore, failed its duty to meet and confer in good faith.
2. 	CUHW' s Willingness to Bargain is not Dispositive
Relying on National Labor Relations Board precedent, CUHW claims that two parties
cannot be held to be at impasse where one of them requests to continue negotiating also fails to
state a prima facie case that impasse was prematurely declared. This same argument, however,
was raised and rejected in San Francisco where the parties' local impasse rules also allowed
either party to negotiations to declare impasse.
2.
In San Francisco, the employee organization protested that it "had every intention on
bargaining to obtain a contract rather than have a contract imposed by third parties," and had
11	11

"room to move" after the employer declared impasse. PERB determined, in its analysis
of
the
charge under the totality
of
the conduct test, that the sum total
of
the employee organization's
allegations, just one
of
which was that the parties were not at impasse because the employee
organization expressed its willingness to keep negotiating, did not state a prima facie case that
San Francisco failed to bargain in good faith.
10
The same
is
true in this case. A holding that
impasse cannot exist
as
long as one party desires to continue bargaining to reach an agreement
is fundamentally inconsistent with local rules which permit either party to the negotiations to
declare impasse and request an impasse meeting. Such a holding would allow any party to
negotiations to prevent impasse and would render the local impasse procedure rule that either
party may declare an impasse meaningless.
C. 	Failure to Participate in Good Faith in Impasse Procedures
CUHW acknowledges that under the MMBA, a local public employer may impose its
last, best and final offer after negotiating to impasse and participating in good faith in impasse
procedures. (Department
of
Personnel Administration v. Superior Court (1992) 5 Cal.App.4
th
155, 188-189
[6
Cal.Rptr.2d 714]; Los Angeles County Assn.
of
Environmental Health
Specialists
v.
County
of
Los Angeles (2002) 102 Cal.App.4
th
1112, 1114-1116 [126
Cal.Rptr.2d 300]; MMBA sec. 3505.4.)
F	C.
CUHW contends on appeal that the allegations that the Public Authority: 	(
1)
refused to
schedule an impasse meeting; and (2) denied CUHW its right to mediation, as provided in the
Local Rules, are sufficient to establish a prima facie case that the Public Authority failed to
participate in good faith in the local impasse procedures.
12
"ThThe employee organization also alleged as indicia of bad faith the city's tardiness,
dilatory tactics, that its negotiator lacked authority to bargain, and that its responses to
information requests were inadequate.
12

The impasse procedures CUHW alleges the Public Authority failed to participate in are
delineated in section 17 of the Local Rules which provides:
Impasse procedures may be invoked after all other attempts made
by both parties to reach agreement through good faith
negotiations have been unsuccessful.
(a) Any party involved in the negotiation of specific issues may
invoke the impasse procedure by filing with the other affected
party (or parties), a written request for an impasse meeting
together with a statement of its position of the disputed issues.
The parties involved shall then promptly schedule an impasse
meeting. The purpose of such impasse meeting is to permit
review of the position of all parties in a final good faith effort to
reach agreement on the disputed issues.
(b) If agreement is not concluded at the impasse meeting, the
parties may mutually agree upon a method of resolving the
dispute including, but not limited to, mediation.
(c) Unless the parties in writing mutually request them to do so,
mediators shall make no public recommendations nor take any
public position. All mediation sessions shall be conducted in
private.
(d) The cost for the services of a mediator, if any, and other
mutually incurred costs of mediation shall be borne equally by
the Public Authority and the recognized employee organization.
1. 	The Impasse Meeting
CUHW alleges the following facts are sufficient to state a prima facie case that the
Public Authority failed to schedule the impasse meeting pursuant to Local Rule section l 7(a):
• 	On October 25, CUHW told the Public Authority that although it did not agree the
parties were at impasse, it would participate in an impasse meeting and suggested
an alternative date. The Public Authority refused to accept that date or suggest
another one.
• 	On October 27, CUHW asked the Public Authority to suggest other dates for an
impasse meeting but the Public Authority refused.
13

To determine whether a party has alleged sufficient facts to state a prima facie case that
a party to negotiations failed to participate in impasse procedures in good faith, PERB
examines alleged indicia
of
bad faith in the context
of
the totality
of
the parties' post-impasse
conduct. 	iliewark Unified School District (2007) PERB Decision No. 1895; Riverside;
City
of
Fresno v. People Ex Rel. Fresno Firefighters (1999)
71
Cal.App.4 th 82, 100
[83 Cal.Rptr.2d 603]; PERB Reg. 32603(e).)
For the reasons stated below, we find that under the totality
of
the conduct test, CUHW
has failed to allege sufficient facts to state a prima facie case that the Public Authority violated
the Local Rules by failing to schedule an impasse meeting.
The impasse procedures call for a party that has declared impasse to file with the other
a request for an impasse meeting and a statement
of
its position on the issues in dispute. 	The
facts indicate that the Public Authority complied with that rule on October 12.
Thereafter, the impasse procedures provide that the parties shall promptly schedule an
impasse meeting. It is alleged that the Public Authority's October
12
declaration
of
impasse
proposed four dates within two weeks
of
the declaration for an impasse meeting.proposed four dates within two weeks of the declaration for an impasse meeting.
The facts before us also indicate that CUHW's initial response to the Public Authority's
request for impasse was to ignore it by leaving the documents behind when it left the final day
of
negotiations. The Public Authority responded by having the impasse documents sent to
CUHW later that day by overnight mail. CUHW did not respond to the Public Authority's
request for an impasse meeting, but instead requested that the Public Authority return to
negotiations.
request for an impasse meeting, but instead requested that the Public Authority return to
On October 24, the day before the last two of the four dates the Public Authority
offered for an impasse meeting, the Public Authority contacted CUHW and threatened tooffered for an impasse meeting, the Public Authority contacted CUHW and threatened to
14
CUHW later that day by overnight mail. CUHW did not respond to the Public Authority's
14
On October 24, the day before the last two of the four dates the Public Authority
of negotiations. The Public Authority responded by having the impasse documents sent to
request for impasse was to ignore it by leaving the documents behind when it left the final day
The facts before us also indicate that CUHW's initial response to the Public Authority's
negotiations.

proceed with implementation
of
its final offer at the October
31
meeting
of
the board
of
supervisors unless CUHW contacted the Public Authority within 24 hours to schedule an
impasse meeting. 	CUHW responded the next day that it would participate in an impasse
meeting but suggested the meeting be held on November 24, a public holiday that was almost a
month and a half after the request for an impasse meeting. By memo dated October 26, the
Public Authority objected to CUHW's proposed meeting date as not being prompt and being a
public holiday.
On October 27, a few days before the board
of
supervisors would consider
implementing the Public Authority's final wage offer, CUHW responded to the Public
Authority's objections by offering to look at another date but not proposing a specific date for
an impasse meeting. Instead, it asked the Public Authority to suggest additional dates on
which it would be available for an impasse meeting.
Although the parties never held an impasse meeting, we conclude under the totality
of
the conduct test that CUHW has failed to allege a prima facie case that the Public Authority
failed to participate in good faith in the scheduling
of
an impasse meeting.
2. 	Denial
of
Right to Mediation
15
CUHW also alleges that the Public Authority's failure to hold an impasse meeting
thereby "robbed" CUHW
of
its right to mediation pursuant to Local Rule section l 7(b ).
Under section l 7(b) of the Local Rules, parties to impasse proceedings may participate
in voluntary mediation as an available dispute resolution tool provided that both parties agree
to use the non-binding procedure. CUHW has not alleged that it ever requested mediation
during the impasse procedures or that the Public Authority refused such a request.

Accordingly, CUHW has failed to state a prima facie case that the Public Authority failed to
participate in local impasse procedures in good faith based on there being no opportunity to
mediate.
16
mediate.
ORDER	ORDER
The Board hereby REVERSES the Board agent's dismissal
of
the unfair practice charge
in Case No. SA-CE-434-M and REMANDS the case to the Public Employment Relations
Board General Counsel's office for the issuance
of
a complaint consistent with this Decision.	Board General Counsel's office for the issuance of a complaint consistent with this Decision.
Members McKeag and Neuwald joined in this Decision.	Members Mckeag and Neuwald joined in this Decision.
16
participate in local impasse procedures in good faith based on there being no opportunity to
Accordingly, CUHW has failed to state a prima facie case that the Public Authority failed to
in Case No. SA-CE-434-M and REMANDS the case to the Public Employment Relations
The Board hereby REVERSES the Board agent's dismissal of the unfair practice charge