PERB: "Economic Exigency" Not Enough to Declare Impasse

In Selma Firefighters Association, IAFF, Local 3716 v. City of Selma, the Public Employment Relations Board ("PERB") took a hard line against employers’ citing economic exigency to declare impasse.

The City of Selma engaged in MOU negotiations with Selma Firefighters’ Association. During the bargaining process, the City abruptly ended negotiations and declared impasse. The City imposed it’s last, best, and final offer to the Selma Firefighters’ Association, claiming economic exigencies and a budget deadline warranted the impasse.

The City argued this budgeting deadline was relevant because the MOU must be agreed to prior to the next year’s budget being adopted. PERB found against the City. The Board held economic exigency did not warrant the City of Selma to declare impasse and impose its last, best, and final offer. In fact, the Board explained “it has long been noted that such economic exigency provides no justification for suspending the duty to bargain in good faith.” The Board also held an impending budget deadline did not justify the bargaining impasse. The Board ruled collective bargaining has no necessary linkage with the budgetary process.

This decision strengthens employee groups' bargaining position. The case creates a clear precedent that arguments like those utilized by the City of Selma are improper. Employers attempting to justify unilateral action based on claimed “fiscal emergencies” are not operating under an exception to their bargaining obligation. Additionally, an agreement does not need to be reached before a City’s final budget is adopted for the upcoming year.

PERB Rules County Rushed to Declare Impasse

In SEIU Local 721 v. County of Riverside, the Public Employment Relations Board ("PERB") took a hard line against employers that rush to declare impasse.

SEIU and Riverside County started negotiations over a new MOU in late March 2009.  The existing MOU was set to expire on June 30, 2009.  The County sought significant economic concessions.  On June 22, the County presented SEIU with a complete proposed MOU. 

SEIU responded with various counteroffers.  However, the County abruptly ended negotiations and declared impasse.  The County provided several reasons for declaring impasse, including that it could not come up with a counterproposal on an issue regarding stewards' pay.  SEIU responded that the steward's pay issue was not a deal-breaker, and that it was willing to stay all night to complete negotiations.

The County met with SEIU on July 27, but it refused to accept any offers from SEIU.  The County informed SEIU it believed mediation and factfinding would be fruitless and that it would be imposing its LBFO on July 30.  However, the County also said it would be open to negotiations after July 30.

SEIU and the County met on August 10 and 19 and agreed on a new MOU.  The MOU had an effective date of August 1 and eliminated step increases.  But when SEIU learned in September that the County had refused to pay step increases to those employees entitled to them in July, it filed an unfair practice charge.

PERB ruled negotiations were not at a genuine impasse on July 27.  It found the County declared impasse solely because it wanted to take unilateral action.  PERB ordered the County to provide back pay.  PERB also ruled it did not have to apply the "totality of the circumstances" test for bad faith.  Instead, the County's unilateral change of wages (by elimination of the July step increases) was a per se violation.

This decision strengthens employee groups' bargaining position.  When challenging an agency's declaration of impasse, employee organizations do not have to show bad faith by the agency.  Instead, employee organizations only need to show the declaration of impasse was premature.