EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES – In General

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In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of the conduct” analysis, depending on the specific conduct involved and its effect on the negotiating process. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34 (Arcadia).) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) The totality of conduct test applies to bad faith bargaining allegations that our precedent has not identified as constituting a per se refusal to bargain. (Id. at p. 35.) Under this test, the Board looks to the entire course of negotiations, including the parties’ conduct at and away from the table, to determine whether the respondent has bargained in good faith. (Ibid.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Ibid.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a negotiating party has failed to bargain in good faith. (City of San Jose (2013) PERB Decision No. 2341-M, p. 19.)