EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – Decision vs Effects Bargaining

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In Trustees of the California State University (2012) PERB Decision No. 2287-H (CSU) we ruled that when assessing a charge of failure to negotiate over effects of a non-negotiable decision, the proper focus is on prospective, not actual, impact. We there reviewed and disavowed prior Board decisions, to the extent they require a charging party to establish “actual impact” when alleging failure or refusal to bargain over negotiable effects. For the reasons outlined in CSU, we likewise disavow similar provision in San Francisco Unified School District (2009) PERB Decision No. 2048. A charging party may state a prima facie case of refusal to negotiate over the effects on discipline and evaluation procedures of a firm decision to install surveillance cameras, without alleging that the employer has created either new grounds for discipline or new evaluation procedures. Upon receiving a union’s effects bargaining demand, the employer has three options: (1) accede to the demand and address the union’s concerns in negotiations; (2) ask the union for its negotiation justification, viz., seek clarification of (a) the areas of impact proposed for negotiation and (b) whether these areas of impact are within the scope of representation; or (3) refuse the union’s demand. In choosing the third option, the employer does so at its peril if its refusal is later determined to be unjustified.