Procedures

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.

CAPS Contract 2023

What is Collective Bargaining? During negotiations, existing terms continue. What happens if Bad Faith Bargaining occurs during negotiations? When and how does bargaining end? What happens if Total Tentative Agreement isn't reached? What is a No Strike Clause? What is Impasse? How is Impasse determined? What is Mediation? How is Impasse resolved? What happens if Impasse is not resolved?

What is Collective Bargaining?

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 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parties must negotiate over the proposal until one of three things happens: an agreement is reached, the proposal is withdrawn, or, when all other proposals have been settled, the required impasse resolution procedures have been exhausted.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.

During negotiations, existing terms continue.

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.

What happens if bath faith Bargaining occurs during negotiations?

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.