Marin Community College District (PERB A126E)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
UNITED PROFESSORS OF MARIN, AFT
LOCAL 1610, AFL-CIO,
Employee Organization,
APPELLANT,
and
MARIN COMMUNITY COLLEGE DISTRICT,
Employer.
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Case No. SF-M-640
(R-140)
PERB Order No. Ad-126
Administrative Appeal
April 21, 1982
Appearances: Michael E. Brailoff, Executive Council Member for
the United Professors of Marin, AFT Local 1610, AFL-CIO; Robert
W. Stroup, Attorney (Paterson & Taggart) for the Marin
Community College District.
Before Gluck, Chairperson; Moore and Tovar, Members.
DECISION AND ORDER -"-
The United Professors of Marin, AFT Local 1610, AFL-CIO
(UPM) appeals a determination that impasse existed between UPM
and the Marin Community College District (District) and the
appointment of a mediator by an agent of the Public Employment
Relations Board (PERB).
This case highlights certain problems encountered by the
Board in applying the provisions of section 3548 of the
Educational Employment Relations Act (EERA) . 1
lThe EERA is codified at Government code section 3540, et
seq. All statutory references in this decision are to the
Government Code, unless otherwise noted.

This
	section 	requires
	the
	Board
	to
	determine
	the
	existence
of
	impasse
	within
	five
	days
	of 	the
	receipt
	of
	a
	request
	for
	the
appointment 	of
	a
	mediator.
	The
	definition
	of
	"impasse"
contained 	in
	section 	3540.l(f)2	
contemplates
	that
	the
	parties
attempted 	in
	good
	faith
	to
	reach
	agreement
	before
	arriving
	at
that 	point
	where
	the
	differences
	in
	their
	positions
	make
further 	negotiations
	futile
	and
	justify
	an
	affirmative 	finding
of 	impasse.
The
	immediate 	problem
	lies
	in 	determining 	the 	presence 	of
good
	faith.
	Often,
	and
	especially
	where
	the
	breakdown
	is
	not
the
	result
	of
	a
	disagreement
	on
	scope, 	the 	matter 	of
	good
	faith
is
	entirely
	subjective,
	a
	question
	of 	the
	party's 	state
	of
	mind
which 	can
	only
	be
	discovered	
by	
examination 	of
	a
	considerable
body
	of
	circumstantial
	evidence.
	Typically,
	this
	issue
	is
resolved 	in
	an
	unfair
	practice
	proceeding
	by
	reviewing
	the
totality
	of 	the
	party's
	conduct,
	and
	then 	only
	after
	a
	full
evidentiary 	hearing.
	To make
	such
	a
	determination
	on
	the
	basis
of 	the
	necessarily 	limited 	investigation 	that
	follows
	a
	request
2section 	3540.l(f)
	states:
(f) 	"Impasse"
	means
	that
	the
	parties
	to	
a
dispute
	over
	matters 	within 	the 	scope 	of
representation
	have
	reached
	a
	point 	inmeeting
	and
	negotiating 	at
	which
	theirdifferences 	in 	positions 	are 	so
	substantial
or 	prolonged
	that 	future 	meetings 	would 	be
futile.
2

for 	the 	appointment 	of 	a 	mediator, 	particularly 	within 	the
Act's 	time 	constraints, 	is 	a 	different 	matter 	altogether. 	To
assist 	the 	investigator, 	PERB 	has 	adopted 	a 	rule 	which 	sets
forth 	those 	factors 	to 	be 	searched 	out 	and .analyzed.3
Unfortunately, 	the 	problem, 	though 	mitigated, 	persists.
Here, 	the 	investigation 	reveals 	that 	the 	parties 	met 	on
17 	occasions 	for 	a 	total 	of 	85 	hours, 	figures 	which 	would
normally 	be 	indicative 	of 	serious 	negotiations. 	Nevertheless,
UPM 	contends 	that 	the 	District 	failed 	to 	negotiate 	in 	good
faith. 	The 	District 	points 	to 	15 	items 	on 	which 	it 	claims
agreement 	was 	reached. 	Yet, 	it 	appears 	that 	these 	may 	be 	but
subdivisions 	of 	one 	of 	the 	16 	different 	subjects 	on 	the 	table.
The 	Board 	agent 	also 	noted 	that 	there 	was 	an 	exchange 	of
proposals 	on 	some 	items. 	The 	evidence 	as 	to 	"good 	faith" 	is
hardly 	conclusive.
3pERB 	rules 	are 	codified 	at 	California Administrative
Code, 	title 	8, 	section 	31000, 	et 	seq.
Section 	36030(c) 	reads:
In 	reaching 	a 	determination 	about 	the
existence 	of 	an 	impasse, 	the 	Regional
Director 	may 	consider 	the 	number 	and 	length
of 	negotiating 	sessions 	between 	the 	parties,
the 	time 	period 	over 	which 	the 	negotiations
have 	occurred, 	the 	extent 	to 	which 	the
parties 	have 	made 	counter-proposals 	to 	each
other, 	the 	extent 	to 	which 	the 	parties 	have
reached 	tentative 	agreement 	on 	issues 	during
the 	negotiations, 	the 	extent 	to 	which
unresolved 	issues 	remain, 	and 	other 	relevant
data.
3

But
	the 	search 	for
	good
	faith
	is
	only
	one
	aspect
	of
	the
Board's
	obligation
	to
	balance 	the
	Act's
	competing
	interests
	in
applying
	section
	3548.
	On
	the
	one
	hand,
	it
	is 	virtually
certain 	that
	the
	Legislature
	intended
	that
	contract
	settlement
be
	reached 	as
	expeditiously
	as
	possible
	and
	that
	stalemates
	not
be
	permitted
	to
	fester 	into
	harsh
	confrontations.4	
PERB
	rule
4section
	3548
	provides, 	in
	pertinent 	part:
...
	If
	the
	board
	determines
	that
	an
impasse
	exists,
	it
	shall,
	in
	no
	event
	later
than
	five
	working 	days
	after
	the
	receipt
	of
a
	request, 	appoint
	a
	mediator
	in
	accordance
with
	such
	rules
	as
	it
	shall
	prescribe
....
Section 	3548.l(a) 	provides 	in
	part:
(a)
	If
	the 	mediator
	is
	unable
	to
	effect
settlement
	of
	the 	controversy within
	15
	days
after
	his
	appointment
	and
	the 	mediator
declares 	that 	factfinding
	is
	appropriat&
to_
the
	resolution
	of 	the
	impasse,
	either
	party
may, 	by
	written 	notification
	to
	the
	other,request 	that 	their
	differences
	be
	submitted
to
	a
	factfinding 	panel.
	Within
	five
	days
after 	receipt
	of 	the
	written 	request,
	each
party
	shall 	select
	a
	person 	to 	serve
	as
	its
member
	of 	the
	factfinding 	panel.
	The
	board
shall,
	within 	five
	days
	after
	such
selection, 	select
	a
	chairperson
	of
	the
factfinding
	panel
...
Section
	3548.2
	provides, 	in 	pertinent 	part:
The
	[factfinding] 	panel
	shall,
	within
	10
days
	after
	its
	appointment,
	meet
	with 	thepar
ti
es
	. 	. 	.
Section 	3548.3(a)
	requires 	the 	panel 	to 	submit
	its
recommendations 	within
	30 	days
	after 	its
	appointment 	unless 	the
parties 	otherwise 	agree 	to
	a
	longer 	period
	and
	further 	provides
4

36040(b)
	recognizes 	these 	expectations	
by	
providing
	that
mediation
	shall
	not
	be
	stayed
	pending
	appeals
	from 	a
determination
	of 	impasse.
On
	the 	other
	hand,
	there
	is
	also
	the
	need
	to
	discourage
recalcitrant
	parties
	from
	evading,
	for
	whatever
	reasons,
	their
good-faith 	negotiating 	obligations
	by
	escaping
	into
	impasse
proceedings
	virtually
	on 	demand.5	
PERB
	would
	subvert
	this
purpose 	of
	the
	Act
	if
	it
	were
	to 	relax
	its
	investigative
standards 	to
	the
	point
	where
	the
	appointment 	of
	a
	mediator
	was
little
	more
	than
	an 	acknowledgment
	of
	an
	absence 	of
	meaningful
negotiations.
It
	is
	in 	the 	course 	of 	balancing 	these
	competing
	purposes
that
	we
	find 	the
	Board
	agent's
	determination 	to
	be
appropriate.
	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
that
	the
	employer
	make
	public 	the
	recommendations
	within
	10
days
	after 	their 	receipt.
See
	also
	San 	Diego
	Teachers Association 	v. 	Superior 	Court
(1979) 	34
	Cal.3d
	1 	[154
	Cal.Rptr.
	893]
...
	the 	impasse 	procedures 	almost
certainly
	were
	included 	in 	the
	EERA
	for 	thepurpose 	of 	heading-off
	strikes.
	(p.
	8).
Ssee 	Mt. 	San Antonio 	Community
College
	District
(12/30/81)
	PERB
	Order 	No. 	Ad-124.
5

reconciliation of their differences, if not make such
reconciliation impossible. It is also to be hoped, though it
is not certain, that use of impasse procedures will be
beneficial.
The information elicited by the investigation does not
justify a finding that the District probably refused to
negotiate in good faith and sought premature resort to
mediation.
Appeal DENIED.
PER CURIAM
6