CAPS strives to ensure that all Unit 10 represented employees are informed on how Collective Bargaining for civil service workers was established, what processes are followed to complete negotiations, and other processes, resources, and tools CAPS has available to negotiate the best Memorandum of Understanding (MOU) with the State. Below you will find a summary of the bargaining process and the rights involved.
The collective bargaining process is filled with specific processes, some simple while others are not. The employer and the employee union (termed “exclusive representative” for state service unions) open negotiations to meet and confer over matters within the scope of representation, which include “wages, hours, and other terms and conditions of employment.” These topics are also called “mandatory” subjects of bargaining. The parties may also negotiate about subjects not within this scope, on matters called “permissive” subjects, such as certain internal union procedures although they may not hold out on such proposals to the point of reaching an impasse. The state law governing collective bargaining is the State Employer-Employee Relations Act (SEERA), also known as the Dills Act (see Government Code Sections 3512-3514). The meetings happen “at the bargaining table.”
Throughout Collective Bargaining, the union representative (in our case, the CAPS Bargaining Team) regularly meets with the Governor’s representatives (see Government Code Section 3513(j)) from CalHR, the Department of Finance, and various state departments. Both parties conduct research, make proposals, consider the other party’s proposals, then attempt to reach agreement. Proposals can cover “mandatory subjects of bargaining” and “permissive subjects of bargaining.” If, or when, either party proposes a change in a section that relates to one of the mandatory subjects, the parties must negotiate over the proposal until one of three things happens: an agreement is reached, the proposal is withdrawn, or, when all other proposals have been settled, the required impasse resolution procedures have been exhausted. Permissive subjects of bargaining do not delay the process to reach an agreement. Any agreement at the bargaining table is considered tentative until ratification by the union membership and the State Legislature.
Collective bargaining, through representatives for the employer and employees at the table, aims to reach a mutual agreement. The collective bargaining process requires the parties to negotiate in good faith and attempt to reach a written agreement. The lawful duty to bargain “in good faith” generally means that the parties must genuinely endeavor to reach an agreement while negotiating. The process doesn’t require the parties to reach agreement or make concessions.
Per state law, Government Code Section 3517.8, also called the “Evergreen Clause,” the terms of the expired Memorandum of Understanding (MOU) remain in effect until the parties agree to a new MOU or an impasse is reached. This “Evergreen Clause” prevents the State from unilaterally changing your current pay and benefits, or threatening to do so, as a means of leveraging unions into reaching a new agreement.
The California Public Employment Relations Board (PERB) has authority over these matters. When determining whether either party has engaged in bad faith bargaining, PERB would evaluate the “totality of conduct” surrounding bargaining, not necessarily any one particular action done by either party. The duty to bargain in good faith, in its most basic definition, is for both parties to genuinely endeavor to reach an agreement while negotiating (Government Code 3517).
There is certain conduct that is always considered bad faith bargaining, regardless of circumstances and is treated as a “per se” refusal to bargain in good faith. An example of this is a unilateral change in a mandatory subject of bargaining. There are examples of bad faith bargaining, but there is no black and white. Some examples of the type of behavior that may prove bad faith bargaining include: “going through the motions” of negotiations but lacking a genuine resolve to reach an agreement, failing to exchange reasonable bargaining proposals or make counterproposals, presenting a take-it-or-leave-it, not explaining the reasons for bargaining positions, or being unwilling to make concessions.
The duty to bargain does not compel either party to make concessions. Insistence on a firm position is not necessarily evidence of bad faith, or a “take-it-or-leave-it” bargaining position, because the law merely requires the parties to maintain a sincere interest in reaching an agreement, and even if the reasons for insisting on a particular position or contract term are questionable, if the belief is sincerely held, it may be maintained even if it produces a stalemate. The obligation to bargain in good faith merely requires the parties to explain the reasons for a particular bargaining position with sufficient detail to “permit the negotiating process to proceed on the basis of mutual understanding.”
PERB has the power and duty to decide unfair labor practice (ULP) charges brought before it. ULP proceedings are governed by PERB regulations, codified in the California Code of Regulations, Title 8, sections 40130-40430. If ULP charges are found, PERB has the exclusive jurisdiction to determine what remedy is necessary (Government Code Section 3514.5). Ultimately, the requirement remains to collectively bargain.
While the union and the employer are actively engaged in good faith negotiations at the table, the parties review each and every section of the previous MOU and jointly decide whether it should continue as-is (roll over), change, or be stricken entirely from the MOU. The parties can also propose to add new sections. If a section receives mutual agreement, it is then called a “tentative agreement” (TA). When an entire MOU’s-worth of sections has been tentatively agreed-upon, the parties come to full and final tentative agreement, or a Total Tentative Agreement. This Total Tentative Agreement remains tentative until both the membership of the union and the State Legislature separately vote to ratify the terms of the newly agreed-upon language. If ratified by both parties, the Total Tentative Agreement becomes the successor MOU.
Any new expenditure of state funds that results from negotiations must be approved by the State Legislature in a budget bill, and be signed by the Governor.
Collective bargaining between parties can continue for as long as both parties continue to engage in good faith negotiations. This generally means that the parties will continue to meet at reasonable times with a genuine willingness to reach agreement on matters within the scope of representation. If it is determined that there is a deadlock or stalemate where no more progress can be made without a mediator, either party may seek a determination of impasse from PERB.
If impasse is determined by PERB during collective bargaining, all sections and provisions of the expired MOU are then considered null and void. This means that all rights and privileges granted to the Bargaining Unit by the MOU cease until a new MOU is reached or imposed upon Bargaining Unit Employees (see What Happens if Impasse is Not Resolved) the bargaining unit. This also means the “no strike/no lockout” clauses in the MOU are null and void. Then, rights for state employees would be covered by law, policy, regulations, and court case precedent for state employees, including but not limited to Government Code and CalHR Manual sections cited throughout our MOU (e.g., see Section 13.6, Supersession).
As previously mentioned, all existing terms of the expired MOU remain in effect until both parties agree to a new MOU or an impasse is declared, per the Evergreen Clause in the Dills Act. The current strike language in the CAPS MOU states: “… Neither CAPS nor its agents nor any Bargaining Unit 10 employee, for any reason, will authorize, institute, aid, condone or engage in a work slowdown, work stoppage, strike, or any other interference with the work and statutory functions or obligations of the state…” While strikes (and other job actions) by public employees for specific reasons are indeed legal in California as defined by PERB, there is a contractual obligation not to engage in strikes or to advocate for them unless and until impasse is officially determined for both parties by PERB (Government Code Section 3517.8).
Pre-impasse strikes may also be protected if the union provides evidence to PERB that the strike was provoked by the employer’s unfair labor practices.A “no strike clause” is a mandatory subject of bargaining because striking is considered a statutory right of employees. Public employees have a presumptive right to strike, subject to certain limitations. Thus, during negotiations an employer may insist to impasse on a proposal to limit or waive the right to strike, but it may not unilaterally impose a waiver of the right to strike, even after bargaining in good faith to impasse.
All collective bargaining laws under PERB have their own process for impasse. The Dills Act and associated regulations lay out a general framework of the impasse process for state employees (see Government Code 3517.8 and 3518). PERB governs compliance with the Dills Act. PERB precedent defines “impasse” as when the parties have reached a point in their negotiations at which further meetings without the assistance of a mediator would be futile. While the impasse resolution procedure under the Dills Act is limited to mediation, the Dills Act requires the parties to use the procedure in good faith.
PERB has repeatedly ruled that if a party rushes to impasse, or if impasse declaration is premature, unfounded, or insincere, it may be determined as Bad Faith Bargaining.
For bona fide impasse to exist, the party declaring impasse must have been bargaining in good faith up until that point. Requests for PERB to determine impasse may be filed jointly or by either party. If a request is filed unilaterally, a proof of service on the responding party must accompany the request. PERB determines if impasse exists. In determining whether an impasse exists, PERB investigates and 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 and discussed 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.
Once PERB determines that an impasse exists, the case is referred to the State Mediation and Conciliation Service for the assignment of a mediator. A mediator is mutually agreed upon by both parties.
Mediation is the process detailed in the Dills Act to resolve impasse (Government Code 3518). Mediation begins by PERB releasing a list of possible mediators for both parties to review until a mediator is mutually agreed upon. Subsequently, initial meetings are held individually between each party and the mediator to provide background to the mediator. The mediator’s role is to act as a go-between and help the parties attempt to reach agreement.
The mediator has no authority to impose resolution. A mediator can attempt to persuade the parties to reach agreement but can’t force the parties to reach agreement or implement anything unilaterally. There is no set time frame for the mediation process. The general duty to bargain in good faith under the Dills Act includes a requirement that the parties provide adequate time for the resolution of impasses, therefore the length of mediation can vary depending on circumstances.
Arbitration and fact finding are options for public sector workers covered by other collective bargaining laws but are not options under the Dills Act.
Impasse is not a permanent state. The Dills Act includes a provision for impasse resolution (GCS 3518) that is limited to having an impartial mediator (selected by both parties from a list made available by PERB) assist the parties to reach agreement.
If the mediator is successful in assisting the parties, impasse will be resolved. Impasse can be resolved by either party breaking the stalemate by passing a proposal on one of the mandatory subjects of bargaining that caused the impasse. Impasse may break and the duty to bargain may revive when either party makes a concession, or due to a “changed circumstance.” An impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.)
Should the impasse process not result in a tentative agreement to present for ratification to the membership and the State Legislature – i.e., if the mediator is unable to persuade the parties to reach agreement – the Governor’s representatives have ability to present the “Last, Best, and Final Offer” (LBFO) to the union for them to either take or leave. If the union does not agree to this LBFO, the parties move to the final step. The final step, should it be reached, allows the Governor to impose any or all of their LBFO on the employee union (GCS 3517.8(b)). Any proposal in the LBFO that, if implemented, would require the expenditure of funds shall be presented to the State Legislature for approval and, if approved, shall be controlling without further legislative action.
To find out more about CAPS’ bargaining efforts, please access the Bargaining section of this website. If you have any additional questions, please reach out to CAPS at email@example.com.
Glossary of Terms
Subjects that are required to be bargained, which under the Dills Act directly impact wages, hours, and working conditions (other terms and conditions of employment).
Subjects that can be bargained, but which are not mandatory under the Dills Act, so they do not affect wages, hours, and working conditions. Examples can include internal union affairs, selection of bargaining representatives, etc.
The intent of one of the parties, proven through the entirety of the current round of bargaining, to not reach agreement with the other party. Elements that constitute as a potential indicator of bad faith conduct include cancellation of bargaining sessions, refusal to provide information, refusal to meet and unreasonable meeting sites, direct dealing, unilateral changes, and more. An isolated instance, or even several instances, does not necessarily constitute “bad faith.” Some examples of the type of behavior proves bad faith bargaining, which is often referred to as “surface bargaining” include: “going through the motions” of negotiations but lacking a genuine resolve to reach an agreement, failing to exchange reasonable bargaining proposals or make counterproposals, presenting a take-it-or-leave-it, not explaining the reasons for bargaining positions, or being unwilling to make concessions. There are examples of bad faith bargaining, but there’s no black and white.
The mutual obligation of the employer and the employee organization to negotiate over mandatory subjects of bargaining. In practical terms, this means approaching bargaining with an open mind, following procedures that will enhance the prospects of settlement, being willing to meet as often as necessary, providing the union with information it needs to bargain meaningfully, discussing the demands of employees freely and justifying negative responses to these demands, and considering compromise proposals.
Determined by PERB. When the parties have reached a point in their negotiations at which further meetings without the assistance of a mediator would be futile.
Notice of impending legal action.
The final proposal made by the employer, after impasse is declared, which can only be accepted or rejected. Used to convey that further negotiation will not be undertaken – i.e., there is no additional movement possible.
A method of resolving impasse in which a neutral third-party, or mediator, assists the parties in reaching agreement. The mediator’s role is to act as a go-between and help the parties attempt to reach agreement.
Unlawful conduct by the employer or employee organization that violates any right protected by the bargaining act. Examples include threatening employees or discriminating against employees because they participated in protected union activities; violations of the duty to bargain and participate in impasse and mediation procedure set forth in Government Code Section 3518 in good faith; and unilateral changes to terms and conditions of employment that must be bargained. (See Government Code Sections 3519, 3519.5.)
The act of bringing labor-management disputes before an impartial third party, typically an Administrative Law Judge (ALJ). The impartial third party will decide the issue and that decision is typically binding.
Factfinding: A third party investigation of labor-management disputes done by an authorized or designated board, panel, or individual. The result of the investigation is a report, issued by the third party, describing the issue in dispute and may hold recommendations for a solution.
Temporary, concerted activities performed by workers, designed to put pressure on their employer. Examples include wearing T-shirts, or donning other material with union logos and slogans, holding parking lot meetings, informational picketing, petition signing, etc. Union actions typically build in intensity if actions are not affecting change. Higher intensity union actions can include collective refusal of voluntary overtime, reporting to work in a group (I.e. clocking in at the same time at designated start times), jamming phone lines (I.e. calling high level directors to advocate), collectively clocking out on time together (I.e. leaving the building in a group at designated end times, taking a break at the same time), march on the boss (I.e. delivering a petition as a group to high level directors or Governor appointees), etc. Union actions can lead to a strike.
Employees acting together to pressure the employer to grant a bargaining concession or take a certain action. Common types include slowdowns, sickouts, strikes, and “work to rule” which are concerted efforts by workers to withhold their labor for the purpose of affecting a change in wages, hours or working conditions.