EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – In General

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The Board has long recognized the harm to collective bargaining caused by an employer’s unilateral actions with respect to negotiable terms and conditions of employment. Unilateral action by an employer without prior discussion with the union does amount to a refusal to negotiate about the affected conditions of employment and must of necessity obstruct bargaining. It will often disclose an unwillingness to agree with the union. It will rarely be justified by any reason of substance. It follows that the Board may hold such unilateral action to be an unfair labor practice without also finding the employer guilty of over-all subjective bad faith. (Pajaro Valley Unified School District (1978) PERB Decision No. 51; NLRB v. Katz (1962) 369 U.S. 736.) To prove up a unilateral change, the charging party must establish that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; (4) the action had a generalized effect or continuing impact on terms and conditions of employment. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262.) An employer may neither unilaterally add new terms to nor repudiate provisions in an existing collective bargaining agreement. The duty to refrain from taking unilateral action concerning negotiable terms and conditions of employment applies in all stages of the collective bargaining process, including during negotiation of successor collective bargaining agreements.