Regents of the University of California (Statewide University Police Association) (PERB 0520H)

STATE 	OF 	CALIFORNIA
DECISION OF 	THE
PUBLIC 	EMPLOYMENT 	RELATIONS 	BOARD
REGENTS 	OF 	THE 	UNIVERSITY 	OF
CALIFORNIA,
Charging 	Party,
v.
STATEWIDE 	UNIVERSITY 	POLICE
ASSOCIATION,
Respondent.
Case No. 	SF-CO-1-H
PERB Decision No. 	520-H
September 17, 	1985
Appearance: 	Marcia J. Canning, 	Attorney for Regents 	of 	the
University 	of 	California.
Before Hesse, chairperson; jaeger, 	Morgenstern, 	Burt and
Porter, Members.
DECISION
BURT, 	Member: 	This 	case 	is before 	the public 	Employment
Relations 	Board 	(PERB or 	Board) 	on 	exceptions 	filed by 	the
Regents 	of 	the 	University of California 	(University) 	to a
proposed 	decision 	of 	an 	administrative 	law 	judge 	(ALJ)
dismissing 	charges 	that 	the 	Statewide 	University 	Police
Association 	(SUPA) 	violated section 	3571.l(c) 	of 	the 	Higher
l
Education 	Employer-Employee 	Relations 	Act 	(HEERA)
1The 	HEERA 	is 	codified 	at 	Government 	Code 	section 	3560
et 	seq. 	All 	references 	are 	to 	the 	Government 	Code 	unless
otherwise 	indicated.
Section 3571.l(c) 	provides:
It 	shall 	be 	unlawful 	for 	an 	employee
)
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_______________ )

by 	engaging 	in 	a 	course 	of 	conduct 	that 	amounted 	to bad-faith
bargaining.
organization 	to:
(c) 	Refuse or 	fail 	to engage 	in meeting and
conferring with 	the 	higher 	education
employer.
We 	have 	reviewed 	the ALJ's 	decision 	in 	light 	of 	the
University's 	exceptions 	and 	the 	record 	as 	a whole 	and we 	affirm
his 	conclusions 	of 	law 	consistent 	with 	the 	discussion 	below.
FACTUAL 	SUMMARY
The 	relevant 	facts 	may be 	summarized as 	follows:
Negotiations 	between 	the 	University 	and 	SUPA began 	in 	June 	1981
when SUPA sent 	its 	initial 	written proposal 	covering 	24 	subject
areas. 	The parties were 	represented by Thomas 	Mannix 	for 	the
University and Robert Jones 	for 	SUPA. 	Between August 	17, 	1981,
when ground rules were established, 	and January 27, 	1982, 	the
parties met 	15 	times, 	usually for 	one to three hours.
At 	the August 17, 	1981 meeting, 	the university proposed
10 	ground rules 	for 	the negotiations. 	SUPA agreed 	to all 	but
one, 	which 	involved 	initialling proposals 	when 	tentative
agreements 	were 	reached. 	SUPA rejected 	that proposal 	and
suggested an 	alternative 	procedure. 	The 	University 	rejected
SUPA's 	suggestion 	and 	no 	agreement 	was 	reached 	on 	how 	the
parties 	would 	confirm tentative 	agreements 	on 	given 	articles.
2
• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	• 	•
2

By November 	13, 	1981, 	the parties had met nine times
without agreement 	on any article. 	At 	that 	time, 	there were
40 	articles on the 	table, 	some placed there by SUPA, 	some by
the 	University. 	During that period, 	each 	party had 	submitted
initial 	proposals 	and 	also 	revised 	proposals 	on 	certain
articles. 	There were articles 	on which 	the parties had 	not
moved 	from their 	initial position, 	and others 	on which 	one
party 	or 	the 	other 	had 	not 	indicated 	its 	position 	in writing.
At 	the November 	18, 	1981 meeting, 	various 	changes 	in
articles were 	proposed 	and 	discussed. 	It was 	agreed 	that 	the
duration of 	the 	contract would be 	one year 	and, 	consequently,
SUPA agreed 	to 	the 	University's 	waiver 	clause proposal. 	At 	the
end of 	this meeting, 	the university 	and 	SUPA were 	in 	agreement
on three articles: 	rules and regulations, 	duration, 	and waiver,
On 	December 	16, 	1981, 	the university gave SUPA proposals on
32 	subjects, 	some of which were revisions of previous
proposals. 	At 	this 	time, 	the 	University also made 	its 	first
salary proposal: 	a 	6-percent 	raise 	to 	take 	effect 	January 	1,
2
1982, 	plus a 	$300 one-time 	"adjustment" 	to each employee.
Mannix 	told Jones 	that 	he 	believed 	he 	would 	not 	receive
authority to agree 	to more than 	6 percent and, 	if 	that were not
enough 	to allow the 	parties 	to 	reach 	agreement, 	that he would
like 	to work 	with 	Jones 	to 	reach 	a 	"controlled" 	impasse 	rather
2This 	"adjustment" 	was 	understood by both 	parties 	to 	be 	a
euphemism 	for 	retroactive 	pay. 33

than an 	"uncontrolled" 	impasse. 	Jones 	told Mannix 	that
6 	percent would not be 	enough 	and Mannix 	replied 	that, 	if 	so,
SUPA was 	free 	to 	strike 	if 	it 	chose 	to do so. 	No agreements
were 	reached at 	that meeting. 	Mannix 	testified 	that 	he 	did not
believe Jones because, 	despite his words, 	SUPA was willing to
continue to meet.
On January 6, 	1982, 	Mannix received a complete contract
proposal 	from SUPA which 	incorporated 	a 	number 	of 	changes 	from
SUPA's previous positions. 	On January 20, 	the University sent
SUPA a new set of proposals. 	Among other 	things, 	the
University proposed 	a 	change 	in 	the 	duration 	clause 	that had
already been agreed to: 	instead of 	a one-year 	contract, 	the
University now proposed 	a 	three-year 	contract. 	The
University's 	salary proposal was 	changed as well: 	it 	now
offered a 	6-percent 	raise beginning 	February 	1, 	1982, 	and a
$350 	one-time 	"adjustment."
By the January 27, 	1982 meeting, 	the parties were 	in
agreement 	on 	11 	articles. 	SUPA stated at 	this meeting 	that 	it
no 	longer 	agreed 	to 	the 	waiver 	clause because 	their 	prior
agreement 	had been 	conditioned 	on 	the 	one-year 	contract
duration which 	the 	university had 	changed. 	The parties 	also
discussed 	the 	15 	articles 	they disagreed on. 	Jones 	indicated
that 	the 	University was 	not 	offering 	enough 	money 	in 	its 	salary
proposal 	to avoid going 	to 	impasse. 	After 	a 	caucus, 	Mannix
indicated 	the 	university was 	willing 	to 	move 	on 	certain 	of 	the
4

proposals, 	but 	that 	it would stand firm on 	certain others. 	He
also stated 	that 	if 	the 	salary 	increase were 	to begin 	on
March 	1, 	1982 	instead of 	February 	1, 	the 	University would have
additional 	money 	to 	add 	to 	either 	the 	one-time 	salary
"adjustment" 	or 	the 	uniform allowance. 	Mannix also 	distributed
copies 	of 	the 	statutory 	impasse procedures.
Although 	the 	university 	contends 	that 	both 	parties 	agreed
that whoever 	wished 	to 	declare 	impasse would present 	a 	final
pre-impasse 	proposal 	to 	the 	other 	party prior 	to 	invoking
HEERA's 	impasse procedures, 	we cannot 	conclude 	that SUPA 	in
fact agreed to 	this procedure. 	The university's 	witness,
Sarah Jo Gilpin-Bishop, 	testified that 	no explicit 	agreement 	to
that 	effect was 	reached, 	and 	the 	minutes 	support 	this
conclusion. 	Nor 	can we 	conclude 	that 	SUPA agreed 	to bring 	a
new 	citizen 	complaint proposal 	to 	the 	next 	meeting.
The parties next met on 	February 8, 	1982 	for 	about
20 	minutes. 	Mannix was 	annoyed that 	SUPA had not brought 	two
proposals 	to 	the 	table 	that he had expected, 	and made 	a 	comment
to Jones about 	SUPA 	"wasting 	the 	university's 	time." 	He 	also
gave 	SUPA 	the 	University's 	new salary proposal 	for 	a 	6-percent
pay increase beginning March 	1, 	1982, 	plus a one-time $400
"adjustment." 	The members 	of 	SUPA's negotiating team caucused
and 	then 	told 	Mannix 	that 	they would 	review the 	university's
position 	and 	either 	arrange 	for 	another 	meeting 	or 	send 	the
University 	its 	final 	offer. 	The 	record 	also 	indicates 	that 	the
5

SUPA negotiating 	team, 	although 	ready to 	leave, 	stayed on at
the 	University's 	request 	and 	left 	only after 	a 	University
negotiator 	told 	them there was 	no 	reason 	to wait 	longer.
On Friday, 	February 19, 	1982, 	Jones sent to Mannix a
complete set 	of proposals, 	which he described as 	SUPA's 	"last,
best 	and 	final 	offer 	concerning all 	areas 	of 	this 	year's
negotiations." 	The 	cover 	letter 	indicated 	that 	SUPA had, 	on
the same date, 	informed PERB that 	the parties were at 	impasse,
in 	fact, 	however, 	SUPA filed 	its 	"Declaration of 	impasse" 	with
PERB the 	following Monday, 	February 22. 	At this 	time, 	the
parties were 	in 	substantial 	disagreement 	on a number 	of
articles, 	including salary and 	related monetary 	issues. 	While
the 	University proposed 	a 	6-percent 	raise 	with 	a 	$400
"adjustment," 	SUPA asked 	for 	a 	12-percent 	raise with 	a 	$1,000
"adjustment," 	and also proposed 	shift 	differentials, 	special
assignment 	premiums, 	educational 	incentive pay and merit pay
increases. 	In 	the 	six to 	ten areas 	in which 	there were
significant 	differences, 	there had been 	little 	or 	no movement
to 	narrow 	the 	gap by 	either 	party 	during 	the 	six 	months 	of
negotiations. 	These areas 	included layoff, 	transfer/promotion,
performance evaluation, merit pay, 	citizens' 	complaints,
parking, 	salary and 	other 	economic benefits.
On 	February 23, 	1982, 	Mannix wrote Jones 	that he disagreed
that 	they were 	at 	impasse 	and 	suggested 	a 	further 	meeting 	in
March, 	on February 24, 	he repeated the 	invitation to meet.
6

On 	February 25, 	Jones responded to Mannix's 	February 23
letter. 	He 	gave 	four 	reasons why SUPA believed 	impasse had
occurred:
1. 	The university's actions, 	indicating
that 	"the major 	areas 	of 	our 	final 	offer
were 	totally unacceptable 	to 	the
University."
2. 	Mannix had provided 	the members 	of 	the
SUPA bargaining 	team with 	copies 	of 	the
statutory impasse procedures, 	and
suggested 	that 	if 	a 	total 	wage package
amounting to 	6 	percent was 	unacceptable,
then 	SUPA should 	declare 	impasse.
3. 	The facts 	that, 	at the 	last bargaining
session, 	Mannix had said to SUPA 	"I
don't 	know why you 	continue 	to waste 	our
time with 	these meetings"; 	had made no
further proposals 	on behalf 	of 	the
University; and, according to Jones, had
terminated 	the 	meeting.
4. 	The 	University's 	salary offer 	at 	each 	of
the 	last 	three 	bargaining 	sessions 	had
decreased.3
Jones 	also 	indicated 	that 	SUPA had 	no 	reason 	to 	believe 	that
any 	additional 	meetings 	would 	do 	anything but 	waste 	the
parties' 	time, 	but 	that 	they would meet with 	the 	University 	if
the 	latter 	indicated 	in writing 	that 	it 	was 	prepared 	to make
"significant" 	movement 	toward meeting 	SUPA's 	demands. 	Jones
3Given 	the existing salary range 	for police officers, 	a
6-percent 	increase would 	amount 	to between 	$95 	to 	$114 	each
month. 	Thus, 	the university's successive salary proposals,
which 	postponed 	the 	effective 	date 	of 	the 	6-percent 	raise 	one
month more 	than 	the prior 	salary proposal, 	would 	give 	the
employees 	less 	money than 	the previous 	offer 	even 	after 	a 	$50
increase 	in 	the 	one-time 	"adjustment" 	was 	factored 	in.
7

also 	asked 	the 	University to 	provide 	SUPA with 	a 	list 	of 	the
specific 	areas 	the 	University proposed 	to 	discuss.
On 	March 2, 	1982, 	Mannix wrote SUPA refusing to 	give any
written 	assurance of 	"significant" 	movement. 	He 	said 	that 	the
University wished 	to meet 	to 	clarify 	certain 	aspects 	of 	SUPA's
offer 	and was 	prepared 	to discuss 	areas 	in which 	the parties
were 	in 	disagreement. 	On March 	3, 	Jones 	submitted a 	"Request
to Appoint Mediator" 	to PERB. 	On March 	9, 	Jones 	told PERB that
the parties were scheduled to meet 	on March 	11, 	that he
understood 	the 	impasse 	petition 	would be 	held 	in 	abeyance 	until
after 	that meeting, 	and 	that he would advise PERB 	shortly
thereafter 	if 	SUPA wanted 	the 	impasse 	proceedings 	reactivated.
Despite 	its 	failure 	to 	get 	assurances 	of 	"significant"
movement, 	SUPA met with 	the 	University on March 	11, 	1982.
There was 	some 	discussion 	and 	clarification 	of 	certain 	of
SUPA's 	February 	19 	proposals which 	the 	University 	said 	did 	not
4
conform 	to prior 	agreements, 	and 	SUPA agreed 	to 	change 	the
wording 	in all but one of 	those articles. 	Mannix also
presented 	a 	dues 	deduction 	proposal 	and 	the 	University's 	newest
salary offer: 	a 6-percent raise 	to start April 	1, 	1982, 	and a
$450 	one-time 	"adjustment." 	He 	indicated 	that 	the 	one-time
4The 	discrepancies 	were 	in 	provisions 	regarding
vacations, work-incurred injuries, 	discipline/dismissal,
grievance procedures, 	arbitration procedures, 	and uniform
allowances. 	These were 	not areas 	in which 	the parties had
significant 	differences.
8

adjustment 	might 	be 	increased 	depending 	on 	what 	SUPA would
agree 	to 	in 	the uniform allowance provision, 	but 	did 	not
mention any 	specific numbers. 	Mannix 	testified at 	the hearing
that 	the 	University had 	the opportunity 	to 	respond 	to 	all 	of
SUPA's 	proposals 	at 	that meeting. 	He 	also 	testified 	that he
had 	no 	authority 	to 	offer 	more 	than 	a 	6-percent 	increase 	and 	no
authority 	to 	make 	concessions 	on 	important 	non-monetary 	issues
where 	the 	parties 	differed widely, 	and 	that 	he had 	not 	sought
greater 	authority between 	the 	time 	he 	received 	SUPA's
February 19 	proposals 	and 	the March 	11 	meeting.
SUPA also 	explained at 	that meeting 	that 	its 	"last, 	best
and 	final 	offer" 	was not 	really final, 	but 	that 	SUPA was
unwilling 	to 	make 	any 	substantial 	concessions 	beyond what 	it
had already conceded. 	However, 	SUPA was willing 	to 	listen 	to
any 	new proposals 	by 	the 	university.
The 	University asked 	SUPA to 	set 	a 	date 	for 	a 	later
meeting, 	but 	SUPA refused 	to 	do 	so. 	Jones 	stated 	that 	SUPA was
"declaring 	impasse" 	and requesting a mediator. 	He 	said SUPA
was 	unwilling 	to meet with 	the University without 	a 	mediator.
He 	testified 	that 	SUPA's 	belief 	that 	they were 	at 	impasse was
based 	on 	the 	regressive 	nature 	of 	the 	University's 	salary offer
and 	its 	feeling 	that 	the 	University was 	trying 	to 	drag 	out
negotiations 	as 	long as 	possible 	before 	reaching 	the 	impasse
process.
9

DISCUSSION
In 	determining whether 	a party's 	negotiating 	conduct
constitutes 	an unfair 	practice,5 PERB uses both 	a 	"per 	se"
and a 	"totality of 	the 	conduct" 	test, 	depending on 	the 	specific
conduct 	involved, 	and 	its 	effect 	on 	the negotiating process.
Pajaro Valley 	Unified 	School 	District 	(1978) 	PERB 	Decision
No. 	51; 	Stockton 	Unified School District 	(1980) 	PERB Decision
No. 	143; 	Westminster school District 	(1982) 	PERB Decision
No. 	277. 	We have said that 	the duty to bargain 	in 	good faith
requires 	that 	the parties negotiate with 	a 	genuine 	intent 	to
reach 	agreement and 	that a 	"totality of 	the conduct" 	test 	is
usually 	applied 	to 	determine 	if 	good 	faith 	bargaining has
occurred. 	This 	test looks 	to 	the entire 	course of negotiations
to 	see 	whether 	the 	parties have 	negotiated with 	the 	required
5The 	University 	charges 	SUPA 	with 	violating 	HEERA 	section
3571.l(c), 	which makes 	it unlawful for an employee organization
to 	refuse or 	fail 	to engage 	in 	"meeting and conferring with 	the
higher 	education 	employer." 	The 	language 	of 	this 	section 	is
slightly different 	than 	the 	wording 	of 	the 	analogous 	EERA
section 3543.6(c), 	which refers to a failure to 	"meet and
negotiate 	in 	good 	faith." 	similarly, 	the HEERA definition 	of
"meet and confer" 	(HEERA sec. 	3562(d)) 	is slightly different
than 	the 	EERA definition of 	"meet 	and 	negotiate" 	(EERA sec.
3540.1(h)). 	Despite the differences, 	the clear 	thrust of
section 3571.l(c) 	is 	the same as 	the 	thrust of 	section
3543.6(c).
Both parties, 	in their post-hearing briefs, 	cite PERB
decisions 	in 	EERA cases, 	and NLRB 	cases 	concerning 	good-faith
negotiations 	standards. 	Neither 	party has 	argued 	that 	the
differences 	between 	the 	HEERA 	language 	and 	the 	EERA 	language
require 	any 	difference 	in 	substantive 	analysis 	of 	bargaining
conduct 	of 	an 	employee 	organization 	charged with 	a 	failure 	to
carry out 	its 	statutory 	duty. 10	10

subjective 	intention of 	reaching an 	agreement, 	Certain 	acts,
however, 	have 	such 	potential 	to 	frustrate 	negotiations 	and 	to
undermine 	the 	exclusivity of 	the 	bargaining 	agent 	that 	they 	are
held 	to be 	unlawful 	without 	any finding of 	subjective 	bad
faith. 	These 	latter acts are 	considered 	"per 	se" 	violations;
an outright 	refusal 	to bargain on a 	subject within 	the 	scope 	of
representation 	is 	an example of 	such a 	violation. 	Pajaro
Valley Unified School District, 	supra, 	at pp. 	4-5; 	Stockton
Unified School District, 	supra, 	at p. 	22. 	We have examined the
totality of 	SUPA's 	conduct 	to determine whether 	it 	acted 	in 	bad
faith 	in 	its 	negotiations with 	the 	university and, 	in addition,
we have 	looked at 	certain aspects of 	that 	conduct 	to 	see 	if
they amounted 	to per 	se 	violations.
We have 	also 	considered 	the 	factual 	record 	in 	light 	of 	the
66
statutory 	impasse 	procedures. 	We have 	held 	that 	impasse
exists 	where 	the parties have
considered 	each 	other's 	proposals 	and
counterproposals, 	attempted to narrow the
gap of 	disagreement and have, 	nonetheless,
reached a 	point 	in 	their 	negotiations 	where
continued 	discussion 	would 	be 	futile.
6HEERA section 3562(k) 	defines 	"impasse" 	as when 	the
parties 	"have 	reached a point 	in meeting and 	conferring at
which 	their 	differences 	in 	positions 	are 	such 	that 	further
meetings would be 	futile." 	PERB Regulation 	32793(c) 	sets 	forth
certain 	factors 	which 	the 	Board may 	consider 	when 	determining
whether 	impasse exists. 	These 	factors 	include: 	the number 	and
length 	of 	negotiating sessions, 	the 	time 	period 	over 	which
negotiations have 	occurred, 	the extent 	to which 	the 	parties
have made 	and 	discussed 	counterproposals, 	the 	extent 	to which
tentative 	agreements 	have 	been 	reached 	and 	unresolved 	issues
remain, 	and 	"other 	relevant data."
11

Mt. 	San Antonio Community College District 	(1981) 	PERB Order
No. Ad-124, at p. 	5.
The 	thrust 	of 	the University's 	charge 	is 	that 	from
February 8, 	1982 	on, 	SUPA's actions were designed 	to bring
about 	commencement 	of 	the 	statutory 	impasse procedures 	and
avoid having 	to bargain 	face-to-face with 	the 	University. 	The
University 	contends 	that 	SUPA's 	allegedly 	unfounded 	and
otherwise 	improper 	declaration 	of 	impasse 	constitutes 	a 	failure
to bargain 	in 	good 	faith. 	The 	university 	originally pointed 	to
the 	following 	conduct 	by SUPA 	in 	support 	of 	its 	contentions:
(1) 	SUPA's 	failure 	to present certain proposals 	at 	the
February 	8 	meeting and 	its 	failure 	to 	negotiate 	at 	that
meeting; 	(2) 	its subsequent declaration of 	impasse without
allowing the 	University 	to 	review and 	respond 	to 	its 	"final"
proposals; 	(3) 	SUPA's meeting with 	the University on March 	11
without any real 	intention of negotiating; 	and 	(4) 	its 	refusal
to meet after 	March 	11 without 	a mediator 	present.
SUPA contends 	that 	there was 	genuine 	impasse 	in 	the
negotiations 	in 	February and March, 	that 	it had not 	agreed to
any specific pre-impasse procedure and that, 	therefore, 	it
cannot 	be 	faulted 	for 	its 	decision 	to 	declare 	impasse 	on
February 19. 	It 	denies 	that 	it failed to prepare 	for 	the
meetings 	and 	argues 	that 	it 	did not 	insist 	on 	any preconditions
to 	further 	meetings 	after 	February 	8, 	and 	that 	it 	did not
prevent 	the 	University 	from responding 	to 	its 	"final"
pre-impasse proposals.
12

The 	ALJ 	found 	that 	within 	the broad 	context 	of 	the
bad-faith 	bargaining charge, 	the 	case presents 	novel questions
concerning 	the 	negotiating obligations 	of 	the 	parties 	when 	it
appears 	they may have 	reached 	impasse. 	He 	framed 	these 	issues
as follows:
1. 	What 	conduct 	is 	permitted 	to an 	employer
or 	an employee organization which, 	after 	a
series 	of negotiation meetings believes 	in
good faith 	that 	the parties 	are at a
negotiations 	deadlock?
2. 	May an employer 	or 	an employee
organization be 	found 	to be 	guilty of 	an
unfair 	practice 	under 	HEERA 	for 	a 	premature
or 	otherwise 	unfounded 	declaration 	of
impasse?
He 	agreed 	that beginning sometime 	in 	February, 	SUPA determined
that 	its 	interests 	would be best 	served by 	invocation 	of 	the
statutory 	impasse 	procedures, 	and 	that 	once 	SUPA arrived at
that 	conclusion, 	its actions were planned 	to bring about
commencement 	of 	those 	procedures 	rather 	than 	continue with
face-to-face 	negotiations 	with 	the 	University. 	He 	noted 	that
SUPA's actions were, 	to some extent, 	careless or 	clumsy, 	but
found 	that 	its 	conduct 	during 	February 	and 	March 	did 	not
constitute bad-faith bargaining. 	Specifically, 	he 	found:
(1) 	SUPA's actions prior 	to 	February 8 provided no 	support
for 	the University's contention 	that 	SUPA was 	acting 	in 	bad
faith beginning on 	February 8, 	1982;
(2) 	SUPA acted 	reasonably on 	February 	8 	and when 	it
declared 	impasse 	on 	February 	19/22.
13

(3) 	Since 	the 	Legislature 	in 	enacting HEERA 	intended 	to
encourage 	the 	parties 	to 	use 	the 	statutory 	impasse 	procedures,
it 	would be 	counterproductive 	to 	penalize a party 	for
good-faith efforts 	to invoke those procedures. 	Therefore, 	the
ALJ 	found 	that 	an 	untimely or 	otherwise 	unfounded 	declaration
of 	impasse 	is not a 	"per 	se" 	refusal 	to bargain.
The ALJ 	did 	indicate 	that 	an 	unfounded 	declaration 	of
impasse 	could be 	evidence 	of 	bad-faith 	bargaining 	under 	the
totality of 	the 	circumstances 	test, 	but 	found 	the 	declaration
here was 	not 	unfounded 	and 	that 	SUPA's 	conduct 	did 	not 	amount
to bad-faith bargaining.
(4) 	SUPA's 	refusal 	to meet with 	the 	University 	from
February 8 	to 	February 	19/22 was 	reasonable and 	its 	refusal 	to
meet 	after 	February 	22 	was 	privileged.
(5) 	Although 	the errors 	SUPA made 	in 	its 	February
proposals 	were 	careless 	and 	the 	proposals 	did 	need 	the
clarification 	they received at 	the March 	11 meeting, 	the ALJ
concluded 	that 	the 	discrepancies 	were 	not 	intentionally made
with 	the 	aim of 	derailing negotiations. 	He 	found no 	evidence
of 	appreciable 	impact 	on 	the 	bargaining 	and 	concluded 	that 	the
errors 	were 	neither 	per 	se violations 	nor 	evidence 	of
underlying bad 	faith. 	He 	also 	concluded 	that 	SUPA's 	withdrawal
of 	its 	agreement 	to 	the waiver 	proposal was 	justified as 	that
agreement 	had 	been 	contingent 	on 	the 	one-year 	contract 	duration
provision 	on 	which 	the 	University had 	changed 	its 	mind.
14

The 	University excepts 	to 	the 	ALJ's 	decision 	on 	three
grounds. 	First, 	the 	University argues 	that 	the ALJ erroneously
expands 	the 	role of 	the 	impasse procedure at 	the 	expense of 	the
collective 	bargaining process, 	and 	that 	the 	"impasse procedure
is 	a 	substitute process and should not 	be 	used as 	a 	replacement
for 	traditional 	collective bargaining." 	According 	to 	the
University, 	exchanging and discussing proposals 	on 	a
face-to-face basis 	is 	a minimum requirement of 	good 	faith
bargaining. 	The university contends 	that, 	until 	an 	impasse 	is
certified, 	the 	impasse 	process 	should not 	interfere with 	the
affirmative 	duty 	to meet 	and bargain.
Second, 	the 	University contends 	that 	the ALJ 	fails 	to
recognize 	that 	impasse 	may be 	broken 	by 	any 	event 	that 	may move
the 	parties 	and 	argues 	that 	the ALJ's 	decision 	creates 	an
"impenetrable barrier 	to 	continued 	negotiations" 	once 	impasse
is 	declared. 	It states 	that, 	by refusing to allow the
University to 	consider 	and respond 	to 	its 	final 	offer, 	SUPA cut
off negotiations. 	The 	University argues 	that 	a party which
invokes 	impasse 	does so at 	its 	own 	risk 	and says 	that 	the ALJ
sets 	a 	new 	standard when 	he 	says 	that 	a party should not 	be
punished 	for 	invoking 	impasse.
Third, 	the 	University reiterates 	its 	basic 	charge 	that,
under 	the 	facts 	of 	this 	case, 	impasse 	is 	a 	legal 	impossibility
because 	SUPA was 	bargaining 	in 	bad 	faith 	and 	created 	the 	very
atmosphere 	of 	futility on 	which 	it 	based 	its 	declaration 	of
15

impasse, 	and 	that 	SUPA should 	not 	be 	allowed 	to 	so 	profit 	from
this 	wrongdoing. 	It 	points 	to 	essentially the 	same 	conduct by
SUPA 	that 	is 	the 	basis 	for 	the 	original 	charge. 	It 	also 	claims
that 	the ALJ, 	in arriving at 	the opposite conclusion, 	credits
facts 	not 	in 	evidence 	and 	fails 	to 	credit 	facts 	not 	in 	dispute.
Thus, 	the 	University's exceptions are twofold: 	it
criticizes 	the 	ALJ's 	legal 	analysis 	of 	the 	role 	of 	impasse 	and
it 	again 	accuses 	SUPA 	of 	utilizing 	an 	unfounded 	declaration 	of
impasse 	created 	by 	its 	own 	bad-faith 	bargaining 	to 	avoid 	its
obligation 	to 	bargain with 	the 	University. 	We 	will 	address
first 	the 	conduct 	which 	the 	University 	alleges 	constitutes 	the
bad-faith 	bargaining 	and 	led 	to 	the 	allegedly 	unfounded
declaration 	of 	impasse. 	The 	findings 	of 	fact 	dispose 	of 	some
of 	these 	allegations.
We 	agree 	with 	the 	ALJ 	that 	nothing 	prior 	to 	February 	8
indicates 	bad-faith bargaining 	on 	the 	part 	of 	SUPA. 	Until 	that
time, 	the parties had met 	frequently, 	offered proposals,
discussed proposals, 	offered revisions on some 	and, 	in 	general,
followed 	the 	normal 	course 	of 	bargaining, 	We 	find 	the 	record
fully 	supports 	the ALJ's 	finding 	that 	there was 	no 	agreement 	to
initial 	tentative agreements, 	so SUPA's 	failure 	to do so has no
significance.
At 	the 	February 8 	meeting 	itself, 	we 	note 	that 	there 	did
not 	seem to be a 	great 	deal 	to 	discuss. 	The University
submitted 	slightly modified 	proposals 	on 	nine 	articles 	that 	had
16

been 	discussed 	previously, 	and 	its 	salary 	offer 	was 	for 	less
money than 	the 	preceding 	salary 	offer. 	At 	the 	February 	8
meeting, 	agreement was 	reached only on 	the 	topic 	of
"out-of-class 	assignment." 	Since 	the parties had both
discussed 	25 	of 	the outstanding 	articles 	and 	reviewed 	their
outstanding 	differences 	during 	the 	five previous 	negotiating
sessions, 	it was not unreasonable 	for 	SUPA to conclude 	that
additional 	detailed discussion of 	the parties' 	positions would
77
not 	be 	helpful. 	We 	agree 	with 	the 	ALJ 	that 	the 	evidence
supports 	a 	finding that 	the parties 	had 	fundamental 	differences
over 	enough 	major 	issues, 	including 	salary 	and 	other 	economic
proposals, 	to prevent 	them from reaching 	full 	agreement. 	We
agree with 	the 	National 	Labor 	Relations 	Board 	and 	the 	Federal
courts, 	which have 	recognized that 	impasse may exist when 	the
parties 	are 	deadlocked on one or 	several major 	issues, 	even 	if
the parties 	continue 	to meet 	and even 	if 	concessions 	on minor
issues 	are possible. 	NLRB v. 	Tomco Communications 	(9th Cir.
1978) 	567 F.2d 871 	[97 LRRM 2660]; 	Taft Broadcasting Co. 	(1967)
163 NLRB No. 	55; 	aff'd sub nom American Federation of
Television & Radio Artists v. 	NLRB 	(D.C. 	Cir. 	1968) 	395 F.2d
622 	[67 LRRM 3032]. 	Here, 	the parties were far apart on both
economic 	issues and four 	or 	five 	important noneconomic 	issues.
7On 	exception, 	the 	University 	claims 	that 	there was 	no
testimony 	indicating 	SUPA arrived at 	that 	conclusion. 	We 	find
that 	the 	February 	25 	letter 	from SUPA 	is 	sufficient 	basis 	alone
for 	this statement.
17

Therefore, 	by an objective standard, 	the parties were at
impasse. 	We 	do not 	find SUPA's 	failure 	to 	submit 	a 	dues
deduction proposal 	on 	that 	date 	to 	be more 	than a 	harmless
oversight 	that was 	not 	a 	unique occurrence 	in 	the 	negotiating
process, 	in any event, 	it does not rise to the 	level of
bad-faith bargaining. 	Moreover, 	we note that, 	although after
caucusing 	SUPA told 	the 	University 	that 	it would 	review the
University's 	proposals 	further 	and 	either 	set 	another 	day 	for 	a
meeting or 	send a 	final 	offer, 	there was 	testimony 	that 	SUPA
did not 	then break 	up the meeting, 	but 	rather 	stayed 	on 	for 	a
while 	at 	the 	University's 	request. 	Only after 	they were 	told
by a University negotiator 	that 	there was 	no point 	in 	waiting
any longer 	did 	the 	SUPA team leave. 	Thus, 	the brevity of 	the
meeting 	cannot 	be 	attributed 	solely 	to 	a 	desire on 	SUPA's 	part
to cut short 	the discussions.
We 	find 	SUPA's 	conduct between 	the 	February 	8 	meeting and
the 	February 	19/22 	"final" 	offer 	and 	declaration 	of 	impasse 	to
be 	reasonable 	also. 	Since 	the 	university's 	February 	8
proposals 	represented 	little 	movement 	on 	major 	issues 	and 	its
salary proposal was 	for 	less 	than 	the prior 	proposal, 	we 	agree
8 The 	ALJ 	stated this 	correctly 	in 	his 	statement 	of 	facts,
but 	indicated 	incorrectly 	in 	his 	discussion 	that 	SUPA said 	it
would either 	set 	up a further 	meeting or 	declare 	impasse. 	We
find 	this 	error 	to be nonprejudicial 	as 	it 	does 	not 	affect 	our
result. 	See also footnote 9, 	infra.
18

with 	the ALJ 	that 	the 	short 	delay while 	SUPA decided what 	to 	do
9
was not inordinate under 	the circumstances.9
SUPA's 	belief 	that 	the 	parties 	were 	at 	impasse 	following
the 	February 	8 	meeting was 	reasonable 	under 	the 	circumstances
and 	genuinely held. 	While we 	agree 	that 	Mannix's 	"don't 	waste
our 	time" 	comment had no 	general 	significance, 	we 	find that 	the
other 	reasons 	given by 	SUPA 	in 	its 	February 25 	letter 	were
1well-founded,10	0 and we 	have no 	reason 	to believe 	SUPA was
insincere. 	The parties were 	far 	apart on major 	issues 	and 	the
salary proposal 	was 	decreasing. 	We 	reject 	the 	University's
continued 	contention that, 	because 	it 	indicated 	that 	there
might be more money available 	for 	the 	one-time 	adjustment 	if
SUPA would accept 	less 	money 	somewhere 	else, 	the 	salary
proposal was not regressive, 	such a statement, 	without
particulars 	or 	numbers, 	does not alter 	the 	fact 	that 	the actual
9 The 	university excepts 	to 	the 	ALJ's 	statement 	that 	after
receiving 	the 	University's proposals, 	Jones 	indicated 	that 	the
parties might 	be at 	impasse, 	but 	SUPA needed more 	time 	to
arrive at 	its 	conclusion on 	this point. 	It 	is 	true 	there was
no 	evidence 	that Jones 	indicated 	to 	the 	university 	at 	that 	time
that 	SUPA thought 	the parties might be at 	impasse. 	We 	find
this error 	to be nonprejudicial, 	however, 	as 	the main point of
the 	statement was 	that 	SUPA believed 	the parties 	might 	be 	at
impasse 	after 	February 8 	and 	took 	some 	time 	deciding what 	to
do. 	That 	is 	logically inferred 	from the 	record.
1 0 We place 	some, 	but not substantial, 	weight 	on Mannix's
distributing 	the 	impasse 	statutes.
19

salary offer 	submitted was 	for 	less 	money 	than 	the 	prior
offer. 	The 	fact 	that 	the 	University had 	followed 	a 	pattern 	of
submitting 	decreased 	salary 	offers 	makes 	it 	even 	more
reasonable 	for 	SUPA 	to 	think 	future 	negotiations 	would be
futile.
With 	regard 	to 	SUPA's 	"simultaneous" 	presentation of 	its
"final" 	offer 	and its 	filing a declaration of impasse, 	we agree
with 	the 	ALJ 	that 	the 	declaration 	of 	impasse 	itself was
well-founded 	and 	that 	there 	had been 	no agreement 	between 	the
parties 	as 	to 	how 	they would 	conduct 	themselves 	once 	either
party believed 	the 	negotiations 	were 	deadlocked. 	We 	also 	agree
that 	SUPA's 	conduct 	between 	the 	February 	19/22 	final
offer/declaration of 	impasse and 	the March 	11 	meeting, 	although
clumsy, 	does 	not 	rise 	to 	the 	level of bad 	faith. 	As 	discussed
below, 	we 	agree with 	the ALJ's holding 	that once 	the
declaration of 	impasse was 	filed, 	SUPA was 	privileged 	not 	to
meet at all. 	Even were this not so, 	however, 	we 	find SUPA's
conduct under 	the circumstances 	to be 	inartful, 	but not 	in bad
faith. 	Although 	SUPA 	initially 	conditioned a 	future 	meeting
with 	the University on 	the 	latter's 	agreeing 	in writing that 	it
would make 	"significant" 	concessions, 	SUPA abandoned 	this
requirement 	and met with 	the 	university anyway on 	March 	11. 	A
two-week 	delay between 	the 	"final" 	offer/declaration 	of 	impasse
and 	the 	March 	11 	meeting 	does 	not 	constitute 	the 	kind 	of
inordinate 	delay that 	evidences bad 	faith, 	given 	the pace 	of
the 	negotiations 	and 	the question 	of 	impasse.
20

We 	also 	reject 	the 	University's 	contention 	that 	it 	was
given no opportunity to discuss SUPA's 	"final" 	offer; 	the
March 	11 meeting, 	however 	reluctantly agreed 	to, 	gave 	the
University 	the 	opportunity 	to 	do 	just 	that. 	The 	University's
March 	2 	letter 	to 	SUPA rejecting 	its 	request 	for 	written
assurances 	of 	significant 	movement 	indicated 	that 	the
University wanted 	to meet 	to 	clarify 	certain 	aspects 	of 	the
February 	19 	proposals 	and 	stated 	that 	the 	University 	would 	be
prepared to 	discuss areas 	in which 	the parties were 	in
disagreement. 	Moreover, 	Mannix 	testified 	that 	the 	University
had 	the 	opportunity 	to 	respond 	to 	all 	of 	SUPA's 	February 	19
proposals on March 	11.
The 	University 	also 	contends 	that 	SUPA went 	to 	the 	March 	11
meeting without 	any 	intention 	of 	negotiating 	and 	thus 	showed
its 	bad 	faith. 	The burden 	is 	on 	the 	university 	to present
evidence 	supporting 	that 	contention, 	and 	the 	only 	evidence
proffered 	is 	James 	Harritt's 	testimony 	that 	SUPA believed 	the
parties 	were 	at 	impasse 	after 	the 	February 	8 	meeting and 	felt
the 	same way after 	the 	March 	11 	meeting when 	they 	refused 	to
meet 	again 	without 	a 	mediator 	and 	reactivated 	their 	impasse
petition. 	Harritt's 	testimony 	is 	insufficient 	evidence of
SUPA's 	alleged 	unwillingness 	to negotiate. 	The 	facts 	clearly
show that, 	despite 	feeling 	the parties 	were 	at 	impasse after
February 	8, 	SUPA allowed 	its 	impasse 	petition 	to be 	placed 	in
abeyance 	and 	did 	again 	meet 	with 	the 	University. 	It 	discussed
21

and agreed 	to all 	but one 	of 	the 	"clarifications" 	the
University wanted 	on 	March 	11.11	11 The 	University presented
only one new proposal 	in 	the 	areas 	in which 	the 	parties 	had
vast 	differences: 	a new salary proposal. 	And, 	consistent with
the pattern shown 	in 	its prior 	salary proposals, 	this 	one 	too
was 	for 	less 	money 	than 	the 	immediately preceding proposal.
Mannix 	testified 	that 	in 	the 	interval between 	the 	February 	19
"final" 	proposals 	and the March 	11 meeting, 	he had not 	sought
authority to 	offer 	more 	than 	a 	6-percent 	increase 	in 	pay or 	to
make 	concessions 	on 	other 	important noneconomic matters, 	In
addition, 	despite 	indicating 	that 	the 	University 	would be
willing 	to 	discuss 	the areas 	in which 	the parties 	were 	in
1122
disagreement, 	Mannix brought 	no other 	proposals 	on 	such
areas 	to 	the meeting. 	Given 	the 	circumstances 	of 	the 	March 	11
meeting, 	we 	find 	that 	SUPA acted 	reasonably. 	It 	had 	no 	duty 	to
initiate 	further 	concessions, 	especially in 	the 	face of 	the
latest 	diminishing 	salary proposal 	from 	the 	University.
11 The 	one 	change 	that 	SUPA 	declined 	to 	accept 	concerned
the 	time 	period 	for 	monetary 	reimbursement 	under 	the
arbitration article. 	Unlike 	the other 	changes, 	which were made
to 	conform to 	language 	to which 	the parties had previously
agreed, 	in 	this 	instance 	there was no prior 	agreement.
12 Jones 	testified without 	contradiction 	that 	the
dues-deduction 	proposal 	submitted 	by 	the 	University
incorporated 	the 	settlement 	agreement 	the 	parties 	had 	arrived
at 	in an 	unfair 	practice 	case.
22

Turning now 	to 	the 	university's 	exceptions 	to 	the 	ALJ's
analysis of 	the 	role of 	the statutory 	impasse procedures 	and
the 	legislative 	intent 	in 	enacting 	them, 	we affirm the 	ALJ's
reasoning. 	We 	find he 	did not 	"expand 	the 	role of 	the 	impasse
process 	procedure 	at 	the 	expense 	of 	the 	collective bargaining
process."
Impasse 	procedures 	are 	an 	integral 	part 	of 	the 	collective
bargaining 	process 	established 	for 	public 	higher 	education
employees 	in California. 	They contemplate a 	continuation of
the bilateral 	negotiations process. 	Mediation 	remains
fundamentally a bargaining process, 	albeit with 	the 	assistance
of 	a neutral 	third party. 	Moreno Valley 	Unified 	School
District 	(1982) 	PERB Decision No. 	206, 	at p. 	5. 	Mediation is
"an 	instrument 	designed 	to advance 	the parties' 	efforts 	to
reach agreement 	. 	. 	. 	." 	Modesto City Schools 	(1983) 	PERB
Decision No. 	291, 	at p. 	36. 	Section 3562(k) 	of HEERA defines
impasse 	as 	"a 	point 	in meeting and conferring at which 	[the
parties'] 	differences 	in positions are 	such 	that 	further
meetings would be 	futile." 	PERB Regulation 32793(a) 	states 	in
pertinent part:
The Board shall, 	within 	five working days
following 	the 	receipt 	of 	the written 	request
for 	appointment of a mediator, 	orally notify
the 	parties 	that 	the 	Board has 	determined
that: 	(1) 	An 	impasse exists and a mediator
has been appointed, 	or 	(2) 	Impasse has not
been 	reached.
Even 	if 	the 	declaration 	of 	impasse were 	untimely or 	unfounded,
it 	would 	ordinarily 	interrupt 	face-to-face 	negotiations 	for 	not
23

more 	than 	ten 	days. 	To 	rule 	that 	such 	a 	declaration 	of 	impasse
is 	a 	per 	se 	unfair 	practice would discourage parties 	from using
the 	impasse procedures 	at 	all. 	A slight 	delay 	in 	negotiations
is preferable to such a rule. 	As 	indicated above, 	however, 	we
find 	that 	a 	genuine 	impasse was 	reached by February 	8 	and we
agree with 	the ALJ 	that 	a 	party's 	refusal 	to meet 	and negotiate
after 	it has 	filed a declaration of 	impasse, 	but before PERB
has made 	its 	determination, 	is privileged. 	Once 	impasse 	is
reached, 	the 	duty 	to negotiate 	in 	good 	faith 	becomes 	the 	duty
to participate 	in 	good 	faith 	in 	the 	impasse procedures. 	We
decline 	to 	compel 	a party to participate 	in a 	futile
negotiating meeting 	during 	this 	short 	period 	of 	time.
In Marin Community College 	District 	(1982) 	PERB 	Order
No. 	Ad-126, 	the Board found 	that 	the 	legislative 	intent 	that
contract 	settlement 	"be 	reached 	as 	expeditiously as 	possible
and 	that 	stalemates 	not be 	permitted 	to 	fester 	into harsh
confrontations" 	outweighed a 	need 	to 	"discourage 	recalcitrant
parties from evading 	. 	. 	. 	their 	good-faith negotiating
obligations 	by 	escaping 	into 	impasse 	proceedings 	virtually 	on
demand" 	and, 	therefore, 	that certification of impasse was
appropriate. 	We said at pp. 	5-6 	that:
Returning 	the 	parties 	to 	the 	table 	cannot 	be
expected 	to 	expedite 	the 	settlement 	of 	this
dispute. 	It 	is unlikely that 	the stalemate
reached 	after 	17 	sessions 	will 	suddenly
dissolve. 	It 	is more 	likely that the
parties' 	resistance would 	intensify and
delay 	even 	further 	the 	ultimate
reconciliation of 	their 	differences, 	if not
make 	such 	reconciliation 	impossible.
24

We 	feel 	that 	the same 	situation 	is 	likely to 	exist 	if 	a
party 	is 	forced 	to 	participate 	in 	further 	face-to-face
negotiations 	during 	the 	short 	period 	of 	time between 	its
sincere 	and 	reasonable 	declaration 	of 	impasse 	and 	the 	Board's
determination of 	impasse. 	We 	therefore 	decline 	to 	compel 	a
party to do 	so.13	13
We 	also 	reject 	the 	University's 	argument 	on 	appeal 	that 	the
ALJ 	failed 	to 	recognize how 	impasse 	may be broken 	and 	that 	his
decision 	creates 	"an 	impenetrable 	fortress 	to 	continued
negotiations 	once 	impasse 	is 	declared by a party." 	In 	the 	case
in point, 	SUPA did agree 	to 	its 	impasse 	declaration being
placed 	in 	abeyance 	and acceded 	to 	the 	University's 	request 	for
another 	meeting. 	Thus, 	the 	impasse declaration hardly
constituted 	"an 	impenetrable 	fortress 	to 	continued
negotiations" here. 	Moreover, 	and more importantly, 	while it
is 	perhaps 	possible 	that 	some 	conduct on 	the part 	of 	the party
who 	does 	not 	believe 	impasse 	exists 	might 	break 	whatever
impasse may exist, 	there was 	no 	evidence of 	such 	conduct 	on 	the
part 	of 	the 	University after 	the 	declaration 	of 	impasse was
filed. 	It 	requested 	another 	meeting 	for 	clarification 	and 	got
it. 	While we 	do not say the 	clarification was 	unnecessary or
unimportant,
1 3 We agree with 	the ALJ, 	however, 	that a party declares
impasse 	and 	refuses 	to 	negotiate 	thereafter 	at 	its 	own 	risk.
If 	the 	declaration of 	impasse 	is 	not 	found 	to be 	reasonable 	and
sincere, 	as in this case, 	it may constitute evidence of bad
faith 	bargaining 	under 	the 	totality 	of 	the 	circumstances
standard.
25

it 	essentially 	brought 	the 	language 	of 	certain 	proposals 	into
conformity with 	prior 	agreements. 	The 	University 	offered 	no
new proposals 	in 	the 	areas where vast 	differences 	existed
between 	the 	parties 	except 	a 	salary 	offer which was 	for 	less
money than 	the 	prior 	salary offer. 	There 	is 	no 	evidence 	that
it 	made 	any 	real 	movement 	on 	the 	important 	issues 	which
separated 	the 	parties, 	and we 	find 	SUPA's 	belief 	that 	impasse
still 	existed 	after March 	11 	to 	be 	reasonable. 	Moreover.
SUPA's 	refusal 	to meet 	again without 	a 	mediator 	cannot 	be
characterized 	as 	a 	refusal 	to meet 	and 	negotiate; 	instead 	it
indicates 	an appropriate willingness 	to 	participate 	in 	the
statutory 	impasse 	procedures 	in order 	to 	get 	negotiations
moving 	again.
ORDER
For 	the 	above 	reasons, 	we 	find 	that 	the 	Statewide
University 	Police 	Association 	bargained 	in 	good 	faith 	from
August 	1981 	to February 	1982 	and. 	when 	it 	then concluded 	that
the 	negotiations would 	not 	lead 	to 	a 	contract, 	had 	the 	right 	to
invoke 	impasse. 	We, 	therefore, 	ORDER the charge and complaint
in Case No. 	SF-CO-1-H DISMISSED.
Members 	Jaeger 	and Morgenstern 	joined 	in 	this 	Decision,
Chairperson Hesse's 	dissent 	begins 	on page 	27,
26

Hesse, 	Chairperson, 	dissenting: 	I disagree with the
majority holding 	that 	"a party's 	refusal 	to meet 	and 	negotiate
after 	it has 	filed a declaration of 	impasse, 	but before PERB
has 	made 	its 	determination, 	is privileged." 	The majority view
deviates 	from previous 	PERB decisions. 	I 	am not persuaded by
the 	majority 	interpretation 	of 	HEERA and 	application 	of 	case
law.
As 	the majority states, 	an exclusive 	representative 	is
required 	to negotiate 	in good 	faith, 	and 	failure 	to do so 	is 	an
unfair practice 	under 	section 	3571.l(c). 	The majority finds
that, 	once a party declares 	impasse, 	it 	is no longer required
to negotiate and 	that 	a 	refusal 	to negotiate 	is 	not 	a 	failure
to bargain 	in good 	faith. 	This 	would be 	correct 	if 	the
parties' 	conduct 	were 	regulated by the private 	sector 	labor
law, 	the National Labor Relations Act 	(NLRA). 	Under the NLRA,
once 	impasse 	is 	reached, 	either party may refuse 	to negotiate
further 	(and the employer may 	implement 	its 	last, 	best 	and
final offer). 	(See Dallas General Drivers v. 	NLRB 	(D.C. 	Cir.
1966) 	355 F.2d 842 	[61 LRRM 2065] and Fine Organics, 	Inc.
(1974) 	214 NLRB 158 	[88 LRRM 1130].)
However, 	statutory 	impasse procedures 	and PERB case 	law
distinguish public 	sector 	impasse 	from 	the private 	sector 	or
NLRA impasse. 	Unlike 	the NLRA, 	HEERA's 	impasse procedures 	are
statutorily prescribed. 	(See Gov. 	Code secs. 	3590-3594.)
These 	statutory procedures 	have 	a 	great 	affect 	on the
negotiating process.
27

Thus, 	previous 	Board decisions have 	identified two stages
of 	impasse: 	an 	initial 	impasse and a post-statutory procedure
or 	"second" 	impasse.
[S]tatutory 	impasse procedures 	are 	exhausted
only when 	the 	factfinder's 	report has 	been
considered 	in good 	faith, 	and 	then only 	if
it 	fails 	to change 	the 	circumstances 	and
provides 	no basis 	for settlement 	or 	movement
that could 	lead 	to settlement. 	At 	that
point, 	impasse under EERA is 	identical 	to
impasse 	under 	the NLRA; 	either party may
decline 	further 	requests 	to bargain, 	and the
employer 	may 	implement 	policies 	reasonably
comprehended within previous 	offers 	made 	and
negotiated between 	the parties. 	(Modesto
City Schools 	(1983) 	PERB Decision No. 	291,
at pp. 	32-33.) 	(Emphasis added.)
Inherent 	in Modesto 	is 	the 	requirement 	that 	the parties
continue to negotiate until 	"that point" 	is reached, 	i.e., 	when
the 	statutory procedures have been 	exhausted. 	Only then 	is 	the
NLRA 	"impasse" analogous 	to HEERA; 	before 	then, 	neither party
may decline 	requests 	to bargain 	further.
The majority places 	emphasis 	on the parties' 	declaration of
impasse:
Once 	impasse 	is 	reached, 	the duty to
negotiate 	in good 	faith becomes 	the 	duty 	to
participate 	in good 	faith 	in the 	impasse
procedures.
However, 	the Board has previously held that 	"initial 	impasse 	is
determined 	by 	the 	Board 	after 	a 	request 	by 	either 	party."
(Modesto City Schools, 	supra, 	at p. 	35.) 	Only after PERB
determines 	that 	an 	impasse 	exists 	is 	a mediator 	appointed by
PERB. 	If PERB makes 	a determination that an 	impasse does 	not
exist, 	the parties must 	continue 	to negotiate 	in an attempt 	to
28

reach a resolution of their differences. 	It 	is anomalous 	to
conclude 	that 	the parties 	must 	continue 	to negotiate when PERB
determines 	that 	no 	impasse 	exists, 	but 	that a party may refuse
to negotiate before 	PERB makes 	its 	determination. 	The duty to
bargain 	is 	not 	suspended 	or 	terminated 	when 	a party declares
impasse. 	It 	is 	only when this 	Board makes a determination that
an 	impasse 	exists.
The parties 	may mutually agree 	to engage 	in voluntary
mediation and 	follow 	their 	own 	mediation procedure 	at 	any stage
of 	the negotiations. 	However, 	the 	law does 	not require
mediation until 	PERB certifies 	to an 	impasse 	after 	the 	request
by one party.
In the 	instant 	case, 	SUPA did not 	confront 	face-to-face 	the
University negotiators but, 	rather, 	mailed its 	"last, 	best and
final offer" 	to the University on February 19, 	1982, 	and
declared 	impasse.1 	The 	University disputed 	the 	claim of
impasse 	and asked 	for 	further 	sessions. 	SUPA conditioned
further 	bargaining 	sessions 	upon a 	University promise 	to make
significant movement. 	On March 2, 	1982, 	the University renewed
the 	request 	to meet, 	asking SUPA to clarify this 	latest
proposal 	and allow the University to respond to 	it. 	Finally,
on March 11, 	SUPA relented, 	and it met with the University to
clarify some of 	its 	proposals. 	Further 	discussion and movement
1Later, 	on March 11, 	1982, 	SUPA stated that this was not
its 	final offer.
29

on 	some 	issues 	took place 	at 	that 	meeting. 	Even after 	SUPA
informed 	the 	University that 	its 	latest proposals 	were 	not 	the
final 	offer, 	SUPA refused 	the 	University's 	request 	to schedule
further 	negotiating 	sessions 	and 	refused 	to meet 	with 	the
University unless 	a mediator 	was 	present. 	Since both parties
had not 	agreed 	to 	engage 	in 	informal 	mediation and 	PERB had not
yet determined whether 	the parties 	were at 	impasse, 	no mediator
was available. 	It was not until March 22, 	1982, 	five weeks
after 	SUPA's 	declaration of 	impasse, 	that 	the Board agent made
a determination 	that 	an 	impasse 	existed. 	This 	determination,
however, 	was 	reversed by the Board 	in Regents 	of 	the 	University
of California 	(SUPA) 	(1982) 	PERB Order No. 	Ad-129-H.2
SUPA's 	actions 	in mailing 	its 	"last, 	best and 	final offer,"
refusing 	for 	a 	time 	to meet 	and clarify 	its proposals, 	and 	in
conditioning 	further 	negotiations 	on 	significant 	movement 	are
very similar 	to conduct 	which 	this 	Board has 	condemned 	in other
cases. 	Decisions 	of 	this 	Board have 	firmly established 	that 	an
2 In this June 23, 	1982 Order, 	the Board took notice of
the 	inordinate 	amount 	of 	time 	that had 	elapsed 	since 	the
beginning of 	the negotiations 	and urged 	the parties 	"to act
with dispatch" 	in resolving 	their differences. 	On July 1,
1982, 	the parties 	reached agreement on a new contract.
Nevertheless, 	pursuant 	to SUPA's 	request 	for
reconsideration on August 	9, 	1982, 	the Board issued Order
No. 	Ad-129a-H, 	which remanded 	the case to the regional director
to render 	an 	impasse determination. 	The proposed decision did
not 	state whether 	such a 	determination was 	made 	and what 	the
determination was. 	The ALJ, 	however, 	made a finding that the
parties 	were at 	impasse, 	but 	failed 	to note 	that 	the parties
reached agreement on a new contract 	on July 1, 	1982.
30

employer 	commits 	an 	unfair practice when 	it 	engages 	in evasive
tactics and delay, 	fails 	to seek clarification, 	and conditions
bargaining 	on 	economic 	matters 	upon 	agreement 	of 	noneconomic
matters. 	Muroc Unified School 	District 	(1978) 	PERB Decision
No. 	80 	— 	frequent 	change 	of 	negotiators 	and 	delaying
negotiating 	sessions; 	Stockton Unified 	School 	District 	(1980)
PERB 	Decision 	No. 	143 	— 	cancelling 	meetings 	and 	recalcitrance
in scheduling new ones, 	and 	refusing to discuss 	substantive
issues 	until 	new ground rules 	were 	established; 	Oakland 	Unified
School 	District 	(1983) 	PERB Decision No. 	326 	— delaying
meetings 	for 	seven weeks 	and 	arriving 	late 	and 	unprepared;
Davis 	Joint 	Unified School 	District 	(1984) 	PERB Decision No.
393 	— 	failing 	to 	seek 	clarification 	of 	union proposals;
Gonzales 	Union High 	School 	District 	(1985) 	PERB Decision No.
480 	— 	refusing 	to 	negotiate 	during 	summer 	recess, 	and 	refusing
to negotiate on 	employee 	discipline 	and 	employee 	layoffs.
The NLRB has 	found that mailing proposals 	is 	not helpful 	in
bringing parties 	together 	even where 	they appear 	to be
hopelessly apart. 	In R. 	James 	Span 	(1971) 	189 NLRB 219, 	at
p. 	222, 	the NLRB said:
It has 	long been proven that 	usually only
personal 	discussion between 	the parties 	can
be 	effective to narrow it, 	rather 	than the
more 	impersonal 	and 	distant 	communication by
telephone 	calls 	and 	letters.
SUPA's 	failure 	to present 	its 	"last, 	best and 	final 	offer"
directly to the 	University, 	and 	its 	subsequent 	refusal 	to meet
and clarify proposals 	as well as 	the 	"final offer" 	is
31

indicative of an 	intent 	not 	to reach an agreement. 	As 	the
Board 	requires 	an employer 	to 	seek 	clarification 	from 	the 	union
regarding its proposals 	(Davis, 	supra), 	so must we require the
union to meet 	and make such a clarification. 	Upon request, 	the
clarification of 	the 	last, 	best 	and 	final 	offer 	is 	crucial 	to
the 	statutory procedures. 	A unilateral 	suspension of 	the
negotiation process 	frustrates 	the 	HEERA purpose 	of 	achieving
mutual 	agreement.
I 	find 	that 	the 	totality of 	SUPA's 	conduct 	in February and
March 	1982 	evidences 	bad 	faith bargaining 	and a 	violation 	of
EERA section 3571.l(c).
Since 	PERB had 	not 	made 	a determination 	that 	an 	impasse
existed, 	the 	statutory dispute 	resolution procedure was 	not
triggered, 	and 	SUPA did not have 	the right 	to refuse 	to meet
until 	a mediator was present. 	Thus, 	SUPA was 	required by 	its
duty 	to bargain 	in good 	faith 	to meet 	with 	the 	University and
attempt 	to resolve 	their 	differences. 	The 	refusal 	to do so,
before PERB issued 	its determination, 	is 	"per se" bad 	faith
bargaining and a violation of 	section 	3571.l(c).
This 	finding 	is 	required by SUPA's 	actions 	when 	it declared
impasse. 	While 	a party may 	in good 	faith believe 	impasse
exists 	and 	is 	allowed 	to seek 	an 	impasse 	certification 	from 	the
Board, 	such good 	faith belief 	is not determinative. 	The
majority 	is 	correct 	that, 	in Marin Community College District
(1982) 	PERB Order No. 	Ad-126, 	the Board found an impasse;
however, 	it did not do so lightly. 	That 	the parties met 	in 17
32

sessions 	for 	85 hours 	was 	not determinative. 	Other 	factors
were 	considered. 	Certainly, 	meeting 	15 	times 	for only 30 to 45
hours 	on 	a broad 	collective 	bargaining 	agreement 	cannot 	give
the declaring party a 	"pass" 	on 	its 	negotiating duty. 	SUPA
evaded 	its 	"negotiating 	obligations 	by 	escaping 	into 	impasse
proceedings." 	(Marin, 	supra.) 	This 	conduct must not be
condoned.
Member Porter 	concurs 	in this 	Dissent.
33