EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – Decision vs Effects Bargaining

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The University’s decision to subcontract the Young Musician’s Program was negotiable under either of two lines of PERB and federal cases. First, it was substantially motivated by labor costs and personnel problems which were peculiarly suitable for resolution through collective bargaining. University’s principal decisionmaker acknowledged that his decision to transfer the Program to a non-University entity was influenced by concerns that the Program consumed revenue from another department needed to cover salaries and other human resources expenditures, and that the Program was undergoing a period of growth and expansion, portending additional expenses in the future. Second, its practical effect was to replace University employees with those of another employer, the Young Musicians Choral Orchestra (YMCO), to perform essentially the same services under similar circumstances. The YMCO later “restored” the Program’s operations, pursuant to contractual agreements with the University. The YMCO uses University space for its performances. Its director is the same, its board president is the same, its marketing identity is largely the same, including its use of University trademarks and scripts, its musical instruments are the same, several of its teachers are the same, and the students served by the Program are also the same. We conclude that the University was not authorized to act unilaterally to close the Program and transfer operations to YMCO. (pp. 33, 38, 41.)