PERB Clarifies Employer Bargaining Obligations During Impasse Resolution Proceedings

03.06.2026

In Regents of University of California (2026) PERB Dec. No. 3010-H, the Public Employment Relations Board (“PERB” or “Board”) reset the labor relations landscape for post-impasse proceedings, by clarifying that bargaining obligations do not remain entirely dormant during impasse resolution procedures.  The Board clarified that under HEERA (and analogous labor relations statutory schemes, like the MMBA), the same per se and totality of conduct tests for good faith bargaining apply to parties’ conduct during impasse resolution procedures as they do to pre-impasse bargaining.  In so ruling, the Board partially overruled long-standing precedent (namely, the Victor Valley decision) concerning the “dormant” status of bargaining obligations following impasse.[1]

Background

The dispute arose during successor negotiations between the Regents of the University of California (“UC”) and UPTE-CWA Local 9119 (“UPTE”), during which several employee classifications were accreted into UPTE’s bargaining unit. UPTE sought to bargain wages for these classifications at the “main” bargaining table, but UC proposed that accreted-classifications wages belonged in a separate “accretion bargaining” process. After reaching impasse, the parties proceeded to post-impasse mediation. While that process was ongoing, UC attempted to separately bargain over wages for the newly accreted employees. UPTE responded by maintaining that the subject of wages for accreted positions should be addressed in the PERB-appointed impasse mediator.  When UC refused to do so and sought to separately bargain this subject outside the mediation context, UPTE contended the employer had engaged in unlawful piecemeal bargaining – and filed an unfair labor practice charge with PERB.

The Office of General Counsel (“OGC”) dismissed UPTE’s failure to bargain charge, relying on Victor Valley for the principle that the duty to bargain does not apply (i.e. remains “dormant”) once the parties reach an impasse.  UPTE appealed this dismissal, arguing that the duty to bargain should extend after a declaration of impasse despite 40 years of case authority to the contrary.

PERB’s Decision

PERB chose to rely on  bedrock labor relations principles governing pre-impasse and post-impasse obligations, reversing the OGC’s dismissal and permitting UPTE’s claim to proceed to hearing.  First, the Board placed its holding in context alongside other black letter labor standards. Specifically, PERB reminded the parties that “an impasse dispute resolution procedure continues the bargaining process,” and that under HEERA and other statutory schemes parties owe a separate duty to “participate in such impasse procedures in good faith.”  (Regents of UC, supra, at pp. 5-6 [citing PERB authority under EERA, HEERA and MMBA].) The Board also observed that it applies the same per se and totality of conduct tests to evaluate a party’s refusal to participate in good faith in impasse resolution procedures as it does for pre-impasse bad faith bargaining claims. 

With that framework in place, PERB reasoned that “parties engaged in impasse resolution procedures are bound by a very similar duty” as the pre-impasse duty to bargain. Thus, if a party engages in allegedly bad faith conduct during impasse resolution procedures, the Board must evaluate this purported conduct through  the per se and/or totality of conduct tests.  While the Board insisted that its ruling fit within the “existing framework” of decisional precedent, it left no doubt on the point by overruling Victor Valley “to the extent that the decision misleadingly suggests that the duty to participate in an impasse in good faith differs in its nature from the duty to bargain[.]”  (Ibid, at p. 8.)  While pre-impasse bargaining obligations still remain dormant following impasse, the OGC should have evaluated UC’s conduct during HEERA’s separate obligation to participate in impasse resolution procedures (i.e. mediation) in good faith.

Applying this clarified standard, PERB found that  UC’s conduct (if true, as the OGC must presume under the lenient charge investigatory stage) could constitute a failure to participate in impasse procedures in good faith under the per se and/or totality of conduct tests. Accordingly, PERB remanded the case so a complaint could be issued and the case litigated.

Employer Impacts

PERB’s decision marks a significant shift for public employers.  While the Board insisted that its decision was not novel but merely a clarification of “existing” law, it functionally constitutes a noteworthy shift for many employers.  For decades, employers based their bargaining strategies on a common understanding of Victor Valley and its progeny – namely, that bargaining obligations remain entirely “dormant” post-impasse, and that “participation” in impasse resolution procedures involved a different, limited obligation.  PERB’s decision obliterates this dichotomy. Consequently, employers may no longer rely on the existence of impasse as a shield against demands related to pre-impasse bargaining proposals, positions, etc.

Further, employers face a clearer, unified rule governing impasse conduct. By clarifying that the same per se and totality of conduct tests apply regardless of whether challenged conduct occurs before or after declaration of impasse, PERB removed ambiguity about how to analyze liability for employer behavior throughout bargaining.  Employers should evaluate the impact of this unified legal standard on their bargaining tactics, as they may lose perceived advantages – and invite risk – in splitting issues or limiting discussions based on impasse status.

Finally, while different statutory schemes treat post-impasse mediation differently (e.g. voluntary under the MMBA, while Board-required under HEERA), employers should exercise heightened caution when engaging in impasse mediation. PERB’s reasoning makes clear that once the parties are in mediation, any mandatory subject of bargaining may be properly raised. This broadens the scope of topics unions may raise during mediation and increases the risk that an employer’s refusal to engage on such matters could be construed as bad‑faith participation. The practical effect is that employers must be prepared to address all mandatory subjects during mediation.

Please feel free to contact the authors of this alert or your regular AALRR counsel with questions or to strategize about the impact of this decision on your agency.

[1] Specifically, the Board partially overruled Victor Valley Union High School (1986) PERB Dec. No. 565 and Regents of the University of California (1996) PERB Dec. No. 1157-H as to the reach of these holdings on the “dormancy” of bargaining obligations following impasse.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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