EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – In General

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It is unlawful for a public school employer to “[r]efuse or fail to meet and negotiate in good faith with an exclusive representative.” (EERA, § 3543.5, subd. (c).) A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove: (1) the employer took action to change policy; (2) the change in policy concerned a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action has a generalized effect or continuing impact on terms and conditions of employment. (Fairfield-Suisun Unified School District (2012) PERB Decision No. 2262, p. 9.) The Board has recognized three general categories of unilateral changes: (1) changes to the parties' written agreement; (2) changes in established past practice; and (3) newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) The fundamental dispute between the parties in Lodi Unified School District centers on the first element of the prima facie case: whether the District took actions to change policy, either by changing the terms of the agreement or altering its past practice regarding vacation scheduling and cash out of vacation hours over the maximum carryover amount.