EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – Inconsistent Position Taken; W/ds or Renege on Tentative Agreement

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A party does not engage in regressive bargaining by withdrawing concessions on some subjects, while offering more favorable terms on other subjects, if the overall set of changes do not tend to frustrate an overall compromise—this will typically be true if aggregate movements toward the other party’s position are approximately equal, or greater than equal, to aggregate movements in a regressive direction. (See City of Palo Alto (2019) PERB Decision No. 2664-M, p. 6, fn. 5; Charter Oak Unified School District (1991) PERB Decision No. 873, pp. 17-18.) Proving net regressive conduct often requires some mathematical calculation (when the allegations mainly involve cost items) and requires a more nuanced argument when the allegations involve a mix of cost items and non-cost items.