EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Business Necessity; Emergency Exception

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Under exceptionally limited circumstances, an employer may be excused from negotiating on the basis of true emergency that provides a basis for claiming that a business necessity excused a unilateral change. However, to establish “operational necessity” or “business necessity” as a defense to a unilateral change, the employer must establish an actual financial or other emergency that leaves no alternative to the action taken and allows no time for meaningful negotiations before taking action. The alleged necessity must be the unavoidable result of a sudden change in circumstance beyond the employer’s control. The Public Defender’s alleged “legitimate business reasons” for unilaterally constraining a union’s authority to choose its representatives for investigatory interviews do not rise to the required level of an unforeseen and unavoidable result due to a sudden change in circumstance beyond the employer’s control. The Public Defender knew of the relevant circumstances two years before it unilaterally implemented its new and expanded policy, and the Public Defender cites no evidence of any exigent circumstances that could justify its unilateral action.