EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – In General
Single Topic for Decision 1270E
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606.01000 – In General
* * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *
EERA section 3543.5(c) makes it unlawful for a public school employer to refuse or fail to meet and negotiate “in good faith” with an exclusive representative. An employer must negotiate with a good faith intent to reach agreement. Negotiating without such an intent is called “surface bargaining” because of its superficiality. A surface bargaining violation is determined by a “totality of conduct” test that “looks to the entire course of negotiations to determine whether the employer has negotiated with the requisite intention of reaching agreement”; p. 81, proposed decision. Surface bargaining is indicated by a course of conduct that delays or thwarts the bargaining process and for which there is no reasonable explanation or rationale. The duty to negotiate in good faith does not, however, require parties to reach agreement, make concessions on every proposal, or yield positions fairly maintained; p. 81, proposed predictably unacceptable proposals; proposing to eliminate an organizational security clause with which the District had not problems was predictably unacceptable. Proposing to delete 2 sections from the Hours article over which there had been disagreements was predictably unacceptable; p. 83, proposed decision. Another indication of surface bargaining is taking an inflexible position. Walking out is itself evidence of surface bargaining. The essence of lawful hard bargaining is insistence on positions fairly maintained; p. 85, proposed decision.