Mt. San Antonio Community College District (PERB A124E)

STATE
	QF
	CALIFORNIA
DECISION
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
MT.
	SAN
	ANTONIO
	COMMUNITY
	COLLEGE
DISTRICT,
Employer,
APPELLANT,
and
MT.
	SAN
	ANTONIO 	COLLEGE 	FACULTY
ASSOCIATION,
Res ponde·n
t.
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____________________
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Case
	No.
	LA-R-676,
LA-M-816
PERB
	Order
	No.
	Ad-124
Administrative
	Appeal
December
	30,
	1981
Appearances: 	William Hamilton
	&.Associates 	for 	the
Mt. 	San
	Antonio
	Community
	College
	District;
	Sandie
	Paisley,
Attorney 	for 	the
	Mt. 	San
	Antonio
	College
	Faculty Association.
Before
	Gluck,
	Chairperson;
	Moore 	and
	Tovar,
	Members.
DECISION
The 	Mt. 	San
	Antonio
	Community
	College
	District
	(hereafter
Employer
	or
	District)
	appeals
	a
	regional
	director's
determination
	that
	an 	impasse
	existed 	in 	the
	negotiation 	of
	a
new
	contract
	with 	the
	Mt. 	San
	Antonio 	College 	Faculty
Association 	(hereafter 	Association).
	We
	reverse 	the 	regional
director's
	findings.
FACTS
In
	May
	1981, 	the
	District
	and
	the 	Association
	began
	their
negotiations 	for
	a 	new
	collective
	bargaining 	agreement.
Proposals 	covered
	a
	variety
	of 	terms 	and
	conditions 	of
employment
	including 	wages, 	hours, 	class 	size, 	evaluations,

grievance 	procedures,
	term,
	retirement,
	dues
	and
	payroll
deductions, 	recognition,
	and
	other 	topics
	typically
	included
	in
such 	agreements.
After
	six
	sessions
	totaling
	twenty-eight
	hours,
	the
Association 	declared
	that
	an
	impasse
	existed
	and,
	on
	June 	19,
requested 	the
	Public
	Employment
	Relations
	Board
	(hereafter
	PERB
or
	Board)
	to
	so
	determine
	and
	appoint
	a
	mediator.
	The
Association
	considered
	18
	separate
	articles
	of
	the 	proposed
agreement
	to
	be
	matters
	over
	which
	there
	were
	"major
differences"
	between
	the
	parties.
	After
	an
	investigation,
	the
Board
	agent 	concluded
	that
	the
	parties
	were
	merely 	having
difficulties
	in 	the
	initial
	stages
	of 	bargaining,
	found
	that
	no
"real
	negotiations"
	had
	occurred,
	and
	declined
	to
	appoint
	a
mediator.l
lGovernment 	Code
	section
	3548
	governs 	impasse 	and
	the
appointment 	of 	mediators
	and
	states:
Either
	a
	public 	school
	employer 	or 	the
exclusive 	representative
	may
	declare 	that
	an
impasse 	has 	been 	reached 	between
	the
	parties
in 	negotiations
	over
	matters 	within 	thescope
	of 	representation
	and 	may
	request 	theboard 	to 	appoint
	a
	mediator 	for 	the 	purpose
of
	assisting
	them
	in 	reconciling 	theirdifferences
	and
	resolving 	the 	controversy
	on
terms 	which
	are 	mutually 	acceptable.
	If
	theboard 	determines
	that
	an 	impasse
	exists,
	it
shall, 	in
	no
	event
	later
	than 	five
	workin~
days
	after
	the
	receipt 	of
	a
	request, 	appointa 	mediator 	in 	accordance 	with 	such
	rules 	as
it
	shall 	prescribeo
	The 	mediator
	shall
	meet
forthwith 	with 	the 	parties
	or 	their
representatives, 	either 	jointly 	or
separately,
	and
	shall 	take 	such 	other 	stepsas 	he 	may 	deem 	appropriate 	in 	order 	to
2

The
	parties
	subsequently 	returned
	to 	the
	table
	for
	three
more
	sessions
	for
	a
	total
	of
	ten
	hours
	but,
	on
	August
	7,
	the
Association
	again
	declared
	impasse
	and 	renewed
	its
	request
	that
PERB
	appoint
	a
	mediator.
	The
	Association 	maintains
	that
	no
tentative
	agreements
	had
	been
	reached
	and
	that
	among
	the 	issues
left
	outstanding
	were
	remuneration,
	work
	hours,
	class
	size,
evaluation,
	and
	grievance 	procedures.
	The
	District 	asserts
that
	agreement
	on
	ground
	rules
	had
	been
	concluded.
Shortly
	after 	this
	renewal
	of 	the 	request 	for
	an
	impasse
declaration,
	the
	parties
	agreed
	to
	engage
	in 	voluntary
mediation
	and
	asked
	that
	the
	Association's
	request
	be
	held 	in
abeyance.
	However,
	the 	voluntary
	mediation
	was
	of
	no
	avail
	in
persuade 	the
	parties
	to 	resolve
	theirdifferences
	and
	effect
	a
	mutually 	acceptable
agreement.
	The
	services
	of 	the 	mediator,
including
	any
	per
	diem
	fees,
	and
	actual
	and
necessary
	travel
	and
	subsistence
	expenses,
shall
	be
	provided
	by
	the 	board
	without
	cost
to
	the
	parties.
	Nothing
	in
	this 	section
shall
	be
	construed 	to 	prevent
	the
	parties
from
	mutually 	agreeing
	upon
	their
	own
mediation 	procedure
	and
	in 	the 	event 	of
	such
agreement, 	the
	board
	shall
	not 	appoint
	its
own
	mediator, 	unless
	failure
	to
	do
	so
	would
be
	inconsistent
	with 	the
	policies
	of
	thischapter.
	If
	the
	parties
	agree
	upon
	their
own
	mediation 	procedure, 	the 	cost 	of 	the
services 	of
	any
	appointed 	mediator, 	unlessappointed
	by
	the 	board, 	including
	any
	perdiem
	fees,
	and
	actual
	and
	necessary
	travel
and
	subsistence 	expenses,
	shall
	be 	borne
equally
	by
	the
	parties.
The
	Educational
	Employment
	Relations 	Act
	is 	codified 	at
Government 	Code
	section
	3540
	et.
	seq. 	Unless 	otherwise 	noted,
all 	statutory 	references 	are 	to 	the 	Government 	Code.
3

the
	Association's
	view 	and
	it
	revived
	its
	second
	request
	for
	a
PERE-appointed
	mediator
	on
	September 	14.
	On
	September
	16, 	the
regional
	director
	determined
	that
	an
	impasse
	did
	exist,
explaining
	simply
	that
	"the
	situation
	has
	not
	improved.
11
DISCUSS
ION
In
	appealing 	the
	regional
	director's
	determination, 	the
Employer
	claims
	that
	a
	true
	impasse
	did
	not
	exist
	because
	the
negotiation
	process
	had 	been 	impeded 	by
	the
	Association's
failure
	to 	bargain 	in
	good
	faith.2	
The
	District
	also
	objects
to 	the
	impasse
	determination
	on
	the
	ground
	that
	the
	bargaining
status
	between
	the
	parties
	had
	not
	changed 	between 	PERB's
initial
	denial 	of
	impasse
	and
	its
	ultimate 	determination
	that
one
	did
	exist.
According
	to 	subsection
	3540.l(f):
"Impasse"
	means
	that
	the
	parties
	to
	a
dispute
	over
	matters 	within
	the 	scope
	of
representation
	have
	reached
	a
	point 	in
meeting
	and
	negotiating
	at
	which
	theirdifferences 	in 	positions
	are
	so
	substantial
or 	prolonged
	that 	future
	meetings
	would 	be
futile.
PERB
	rule
	36030(c),3 	in 	turn, 	provides 	guidelines
for
	impasse
	determination:
(c)
	In 	reaching
	a
	determination 	about 	the
2A
	charge 	to
	this 	effect
	was
	filed
	by
	the
	District
	on
June 	23, 	1981.
	It
	also 	alleged 	that 	the 	Association
	was
utilizing
	the 	impasse 	procedures 	in
	bad
	faith.
3PERB
	rules
	and
	regulations 	are 	codified 	at 	CaliforniaAdministrative 	Code,
	title
	8, 	section
	31000
	et.
	seq.
4

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
	duringthe
	negotiations,
	the
	extent
	to
	which
unresolved
	issues
	remain,
	and
	other
	relevantdata.
This
	rule 	in
	its
	entirety,
	along 	with
	the
	statute,
indicates 	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.
While
	there 	is
	no
	report 	of
	the
	regional
	director's
investigation
	of
	the
	status
	of 	negotiations 	in
	this
	case, 	the
record 	before
	us 	does 	not 	evidence
	any
	meaningful
	discussion
	of
proposals,
	any
	exchange
	of 	counters,
	or
	any 	movement
	toward
agreement
	on
	substantive 	issues,
	a
	conclusion 	also 	apparently
reached
	by
	the
	regional
	director
	in
	noting
	that
	the
	situation
had 	not 	improved. 	Under
	these 	cir~umstances,
	we
	find 	such
factors
	as 	the
	number 	and
	length 	of 	sessions
	and
	the 	time
period
	over
	which
	negotiations
	have
	occurred,
	enumerated
	in
rule
	36030(c), 	are
	not 	as 	useful 	in
	a
	determination 	of
	impasse
as 	those
	factors,
	noted 	above, 	which
	evidence
	a
	meaningful
effort
	to 	reach 	agreement.
	To
	provide 	mediation
	when,
	as 	here,
5

4 	We 	find 	therefore 	that 	genuine 	impasse
has 	not 	been 	reached.
ORDER
The 	appeal 	of 	the 	Mt. 	San Antonio 	Community 	College
District 	is 	GRANTED 	and 	the 	determination 	of 	the 	regional
director 	is VACATED.
By: 7Fry7Giuck, 	Cha½erson 	Barbara D. 	Moore, 	Member
Irene 	Tovar, 	Member
4charges 	against 	the 	District 	alleging 	bad-fai~~
bargaining 	were 	filed 	by 	the Association 	on 	SeptemLc:L 	18, 	1981.
the 	parties 	have 	made no 	meaningful 	effort 	to 	negotiate 	could
encourage 	them 	to 	bypass 	the 	process 	of 	good-faith 	discussion
of 	employment 	relations 	concerns 	which 	is 	the 	central 	thrust 	of
the 	Act's 	purposee
----- - 	---
6