EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – In General

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The totality of conduct test is generally applied to determine whether an employer is engaged in bad faith bargaining. Some conduct is considered to be a "per se" violation without a determination of the employer's subjective intent. In establishing bad faith, PERB examines the "totality of the bargaining conduct" to determine whether there are sufficient objective indicia of a subjective intent to participate in good faith, or conversely, of an intent to frustrate the bargaing process; pp. 3-4, warning letter. Conduct that moves the parties away from agreement, rather than toward agreement is considered evidence of bad faith. However, one indicia of bad faith bargaining does not meet the totality of circumstances test; p. 4, warning letter. Individually regressive proposals must be reviewed in the context of the entire package of proposals; p. 6, warning letter. Individually regressive proposals must be reviewed in the context of the entire package of proposals; p. 6, warning letter.