EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – Conduct Outside of Negotiations; Prior UPs

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Where the City’s failure to fulfill its bargaining obligation with respect to subcontracting bargaining unit work constituted an egregious unilateral change, the employer’s separate unfair practice contributed to the deadlock in negotiations by creating a new impediment—a significant new set of conditions over which the union had to bargain on a catch-up basis, after the fact, which was more than sufficient to deny the City the right to impose. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 6 & 15.) The subcontracting violation preceded impasse, was not remote in time, and coincided with the City’s refusal to go back to the table. In fact, the City’s subcontracting decision came at a critical time during negotiations for a first contract. The City, while seeking concessions in wages and benefits at the bargaining table due to budget constraints, secretly devised a unilateral means to extract still more savings from the bargaining unit. Because the City failed and refused to comply with its legal duty to provide notice and an opportunity to bargain, the parties lost the opportunity to discuss concessions or other proposals that may have led to viable options in lieu of at least some of the layoffs and involuntary demotions, and destroyed the good faith conditions that would be required for the parties to have any hope of bridging their other divides.