UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

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When a party initially asserts that a negotiable matter is outside the scope of representation but then engages in actual bargaining there is no per se violation. If a party persists in its position that a negotiable matter is non-negotiable, then its conduct constitutes a violation of the duty to bargain. Although the unions stated that the employer’s proposal to change the prevailing wage formula was outside the scope of representation because it affected “vested rights,” unions did not fail or refuse to bargain because they nonetheless engaged in negotiations over the subject and offered other, legitimate reasons for their refusal to agree to employer’s proposal. Once a party has already explained its basis for its opposition to a proposal, it is unnecessary to continue to do so each time the same or similar terms are proposed. Because the unions had already adequately explained their desire to compare “apples to apples,” there was no need to respond to employer’s subsequent proposals to change the basis for determining prevailing wage formula. The duty to bargain requires that parties bargain sincerely and in good faith but it does not require that every argument made in support of one's position be meritorious or “accurate” in any empirically-verifiable sense. Although the unions gave some explanations for their position that were “questionable,” nothing in the record suggests that their belief in the logic and expediency of maintaining the existing formula was not “sincere” or “fairly maintained.” Moreover, because they also gave pragmatic justifications for their position, their view that the prevailing wage formula was not subject to negotiation, although mistaken, did not constitute an outright refusal to bargain over the subject.