EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Impact and Extent
Single Topic for Decision 2494M
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602.05000 – Impact and Extent
The duration of the unilateral act does not necessarily determine whether there was a unilateral change. Nor does a temporary change immunize an employer from a finding that it has unlawfully changed working conditions. Nor does the fact that only one employee was immediately affected determine whether there was a unilateral change, as even a change to a vacant bargaining unit position may be negotiable. Under PERB precedent, even if an employer’s action affects only one employee, it nonetheless has a generalized effect or continuing impact on the unit members’ terms and conditions of employment if based on the employer’s assertion of a contractual or other legal right to act unilaterally. Employer may not rely on the practice in departments outside of the bargaining unit to establish a binding past practice permitting it to unilaterally implement a negotiable term or condition of employment. What occurs in other departments with other bargaining units is irrelevant to working conditions in the bargaining unit in question. When there is no evidence that the union knew about the use of performance improvement plans in other departments outside of the bargaining unit in question, it cannot be said that this was a mutually accepted past practice.