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Expiration of Prior Contract--What Happens June 1, 2015?


Upon expiration of a union contract or MOU, the employer is legally obligated to maintain the status quo on items involving wages, hours, benefits such as health insurance or other working conditions until the parties negotiate an agreement or exhaust the statutory impasse procedures of mediation and fact finding.  During this interim period, it is unlawful for the employer to impose any unilateral changes as to these conditions. Even post-impasse, the state Public Employment Relations Board (PERB) has more recently followed National Labor Relations Board (NLRB) precedent and ruled that certain proposals involving mandatory subjects of bargaining are so inherently destructive of the collective bargaining process that the employer is not privileged to implement them upon impasse. 

However, once the contract has expired there are certain contractual terms that the employer is permitted to unilaterally change. Principal examples of these terms include provisions concerning union security, management rights clauses, zipper clauses, and no strike clauses. Other provisions that are subject to unilateral change are those subjects that fall within the narrow scope of permissive (or non-mandatory) bargaining. In the current Unit 18 MOU, there is little, if anything, of substance that falls within this scope.

Elimination of arbitration is probably the most significant area impacted by an expired contract. PERB has held that contractual arbitration clauses do not continue in effect after expiration of a collective bargaining agreement. Once the contract has expired, the only matters that may continue to arbitration are: (1) disputes involving facts and occurrences that arose before expiration or (2) cases involving post-expiration conduct that infringes on rights accrued or vested under the agreement. 

Under HEERA, related statutes and applicable case law, the union cannot go on strike until and unless the parties have reached and declared an impasse and have exhausted all post-impasse resolution procedures. HEERA states that "impasse means that the parties have reached a point in meeting and conferring at which their differences in positions are such that further meetings would be futile." (Gov't Code sec. 3562(j).) Once impasse has been found, the parties are obligated to participate in good faith in the statutorily mandated procedures for resolving impasse, including mediation and, if ordered by the mediator, fact-finding. This is true even if the union was to allow the contract to lapse by not agreeing to an extension. 

PERB has consistently held that strikes that occur before completion of the statutory impasse procedures create a rebuttable presumption that the union has violated its duty to negotiate in good faith or to participate in good faith in the impasse resolution process. PERB has also held that a strike during negotiations or before exhaustion of the impasse resolution process may constitute an "illegal pressure tactic" and therefore an unfair practice by refusing to negotiate in good faith. (Fresno Unified School District (1982) PERB Dec. No. 208.)

At this point in our negotiations, it would not be found that the parties are anywhere close to impasse. Impasse would not be found until there has been substantial back and forth between the parties on substantive proposals without any progress being made. In determining whether an actual impasse exists, PERB will consider several factors including: (1) the number and length of negotiating sessions and the period of time over which these sessions occurred; (2) the extent to which the parties presented and discussed counterporposals; (3) the extent to which the parties reached tentative agreements on negotiated issues; and (4) the extent to which issues remain unresolved.