A union filed an unfair practice charge alleging that a district violated the Meyers-Milias-Brown Act (“MMBA”) by surface bargaining. During reopener negotiations, the union proposed that the district increase its health insurance contribution by 31%. The parties met, and the district rejected the proposal without making a counter. The district explained that: it had increased its health insurance contribution in the previous negotiations; the current contribution allowed most employees to receive significant cash back; comparisons to other units were not valid; and the health insurance premium had only increased by 3 percent.
The union offered a second proposal for a reduced health insurance contribution. The district told the union it would take the second proposal to the governing board, and did so. The district then notified the union that the board had declined the union’s offer, and the district would not make any counteroffer. The union filed an unfair practice charge.
Laura argued on behalf of the district that the ultimate question in surface bargaining claims is whether a party’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. In order to bargain in good faith, a party must be willing to exchange reasonable proposals and try to reconcile differences. Parties must explain the reasons for a particular bargaining position with sufficient detail to permit negotiations to proceed based on mutual understanding. But hard bargaining is allowed. A party’s refusal to move from its position, if supported by rational arguments, can constitute permissible hard bargaining rather than a refusal to bargain. Failing to make a counterproposal does not necessarily violate the duty to bargain. When a party has previously objected to proposals in a way that makes it clear that a later proposal would likely be unacceptable, a counterproposal that offers a different response is not required.
PERB’s General Counsel agreed with the district’s argument that the Union did not state a prima facie case for surface bargaining and dismissed the Union’s charge.