EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – When Duty Arises/Sufficiency of Bargaining Demand

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The duty to bargain over effects of a non-negotiable decision arises when an employer makes a firm decision. Once a firm decision is made, an employer must provide the union with notice and a reasonable opportunity to negotiate before taking action that impacts matters within the scope of representation. This includes the duty to seek clarification of what is proposed for bargaining and whether what is proposed falls within the scope of representation. A union’s effects bargaining demand is sufficient if it clearly identifies negotiable areas of impact, viz., subject matters within the scope of representation, and clearly indicates a desire to bargain over the effects of the decision as opposed to the decision itself. Upon receiving such a demand, the duty to bargain obliges the employer either to bargain, or to seek clarification of the union’s negotiability rationale. If the employer seeks such clarification, and it thereafter refuses to bargain, it may defend this refusal on the ground that the union’s bargaining demand, as clarified, failed to address an impact that was both reasonably foreseeable and within the scope of representation. If the employer refuses to bargain without seeking clarification of the union’s negotiability rationale, it fails to meet and negotiate in good faith. A union’s effects bargaining demand should afford the employer general notice of the union’s interest in the effects of the decision. An effects bargaining demand need not be specific or made in a particular form so long as it adequately signifies to the employer a desire to negotiate on a subject within the scope of representation, to wit, the effects of a non-negotiable decision rather than the decision itself. Further, the demand must identify clearly the areas of impact, viz., matters within the scope of representation, on which it proposes to bargain. The proper place to clarify bargaining demands and proposals is at the bargaining table itself. This is especially true in effects bargaining, where parties must anticipate the future impact of a non-negotiable decision announced but not yet implemented. When approaching effects bargaining, parties must anticipate changes yet to flow from the employer’s decision. Union and employer may disagree over what effects are possible and within the scope of representation. Thus, clarification is essential. Upon receiving an effects bargaining demand, and before refusing to negotiate, an employer must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation. Refusing an effects bargaining demand without first attempting to clarify ambiguities and or whether matters proposed for bargaining fall within the scope of representation, violates the duty to bargain in good faith.