In June, 1999, the California Court of Appeal for the Fourth Appellate District issued a decision on an important case with potential wide-reaching impact to public sector employees: Cathedral City Public Safety Management Association v. City of Cathedral City, 99 CC.OS. 4300 (June 3, 1999). This case originally arose in conjunction with the issue of what to do when an impasse is reached while bargaining under the Meyers-Millias- Brown Act (Gov. Code 3500-3510). The decision that followed is a radical departure from previous decisions and holds that a public sector employer may unilaterally implement a Memorandum of Understanding (“MOU”) when the parties reach an impasse in bargaining.
Essentially, the court ruled that after an impasse is declared, the public employer may implement its last, best and final offer. This has essentially been the law for a long time and is not the most troubling aspect of the case. The problem is that the court also stated that the public employer may implement a multi-year contract that waives the employee organization’s right to bargain during the term of the contract. This has the potential of allowing a public employer to effectively bypass the bargaining process for several years.
Assume that an employee bargaining unit proposes a one-year MOU at 5 percent and the public employer proposes a three-year MOU at 2 percent per year. An agreement cannot be reached between the parties and an impasse is declared. Under the Cathedral decision, the public employer can implement it’s three-year proposal and avoid negotiations for 36 months. This could be a clear incentive to bad faith bargaining. The court’s decision raises several significant concerns. First the court’s conclusion that the city may impose a multi-year MOU following an impasse in negotiations is in potential conflict with Government Code section 3505.1, which states in pertinent part:
“If agreement is reached by the representatives of the public agency and a recognized employee organization ... they shall jointly prepare a written memorandum of such understanding..”
Although the parties in the Cathedral City case failed to reach an “agreement” at the bargaining table and an impasse was declared, the court allowed the imposition of a complete and comprehensive MOU on the bargaining unit. Such unilateral action flies in the face of a good faith, bargained-for-agreement.
Second, the unilateral imposition of a collective bargaining agreement on the parties is unprecedented in private and public sector labor relations. Under the National Labor Relation! Act (“NLRA”), private sector employers may not implement a contract following impasse, but may only make unilateral changes in terms and conditions of employment that are consistent with the employer’s final proposals during negotiations. Atlas Tack Corporation, 226 N.L.R.B. 222, 227 (1976) 9 enforced, 559 F.2d 1201 (1st Cir. 1977).
The California Public Employment Relations Board (“PERB”) follows federal precedent insofar as an employer may unilaterally implement new terms and conditions of employment following a bargaining impasse and exhaustion of applicable impasse resolution procedures. See Rowland Unified School District TB RE.R.C. T 25126 (1994). Such unilateral action does not, however, constitute the imposition of an agreement. Finally, the duty to bargain does not terminate following the declaration of an impasse. Under federal and state law, a bargaining impasse merely suspends the duty to bargain until there is a change in conditions or circumstances favorable to allowing negotiations to resume. (See Raw/and, supra, 18 P.E,R.C. 23126; Gulf States Manufacturing v. NLRB, 704 F.2d 1390 (5th Cit. 1983); NLRB v. Tex-Tan, Inc, 318 F.2d 472 (5th Cir. 1963).
Under the Cathedral court’s decision, a public employer could effectively extinguish the employees’ statutory right to bargain collectively by imposing long-term agreements of five or even 10 years upon declaration of an impasse. If the employer can unilaterally waive the employees’ right to bargain by imposing a multi-year contract, what is to prevent public employers from adopting contract terms that eliminate other rights?
The Cathedral City Public Safety Management Association filed a Petition for Hearing with the California Supreme Court. The Supreme Court was also asked to decertify the decision, which would remove the decision from being cited as president in later cases. On Sept. 15,1999, the California Supreme Court denied the Cathedral City Public Safety Management Association’s request for a hearing, although Justices Mosk and Kennard were of the opinion that a hearing should be granted. Although this is a regrettable loss for the Cathedral City Public Safety Management Association, which must abide by the terms of the Court of Appeal’s decision, the Supreme Court ordered de-publication of the Court of Appeal decision.
The Supreme Court’s order means that the case is not precedent and cannot be cited or relied upon by any public employers. This is a win for PORAC and the other public employee associations who joined as amicus curiae (non-party friend of the court arguing in support of the Association) in the request that the Supreme Court either grant a hearing or de-publish the Court of Appeal’s decision. Although the Cathedral City case can no longer be cited by California public employers, the issue is far from settled. Rumors are that there are public employers who are attempting to impose long-term contracts on public sector bargaining units.