EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – In General, Per Se and Totality of Conduct; Prima Facie Case

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* * * OVERRULED IN PART by Trustees of California State University (2012) PERB Decision No. 2287-H, where the Board held that a demand to bargain effects merely needs to identify potential prospective effects, not actual effects, and County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a union does not need to demand to bargain effects, if the employer does not provide reasonable advance notice of the employer’s decision. * * *

In order to state a prima facie case of failure to bargain over the effects of a non-negotiable management decision, the employee organization must demonstrate that it made a valid request to negotiate over identifiable, reasonably foreseeable, and negotiable effects of the decision. In the absence of such a request, an employer who implements a nonnegotiable decision without prior notice does not violate the duty to bargain. Ideally, if the employer reasonably anticipates that its decision will have negotiable effects, it will provide sufficient notice prior to implementation to afford an opportunity for negotiation. However, where the employer does not reasonably anticipate any negotiable effects and therefore implements with little or no prior notice, the union may still demand bargaining after implementation, provided it can identify any negotiable effects. In such cases, once the union is aware of the change, the failure to give formal notice is of no legal import. Moreover, the union does not waive its right to bargain by failing to request bargaining prior to implementation. Nonetheless, the union must still make a valid request to negotiate that clearly identifies the negotiable effects of the decision.