EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Exhaustion of Impasse Procedures or Time Between Impasse and Mediation

Single Topic for Decision 2571M

View all topics for Decision 2571M

Full Decision Text (click on the link to view): Full Text

A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.)