EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – In General, Per Se and Totality of Conduct; Prima Facie Case

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In determining whether a party has violated its statutory duty to bargain, PERB uses both a per se and totality of circumstances test, on the specific conduct involved and its effect on the negotiating process. The tests typically rely on different kinds of evidence because they involve a failure to comply with different components of the statutory language. A unilateral change or other per se violation typically involves a failure to meet or follow the procedures for bargaining, while bargaining in bad faith is a failure to do so with the requisite state of mind. A unilateral change to negotiable subjects is regarded as a species of per se violations of the bargaining obligation because of its incompatibility with the bi-lateral scheme for collective bargaining and its inherently destabilizing and detrimental effect on the bargaining relationship, irrespective of intent. The Board rejected charging party’s exception arguing that a unilateral change may be evaluated under a totality of circumstances if the evidence fails to meet the criteria for a per se violation.