UNION UNFAIR PRACTICES; UNION BARGAINING CONDUCT – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

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804.02000 – Refusal to Bargain in Good Faith (See, also, Scope of Representation, Sec. 1000)

Because bad faith bargaining allegations require assessment of the totality of conduct, the Board may also consider the charging party’s own conduct, regardless of whether the respondent has filed a countercharge. The City contends that the ALJ erred in concluding that it committed bad faith bargaining under the totality of conduct analysis because the ALJ failed to account for the Association’s own bad faith conduct. We disagree. Once the parties reach a tentative agreement, the duty of good faith implies that the negotiators will take the agreement to their respective principals in good faith. Negotiators have an obligation not to “torpedo” the proposed agreement or undermine the process that has occurred. If either party does not ratify the agreement, then the duty to bargain is revived. Torpedoing may take the form of repudiating an agreement, or making false statements about it. However, there is no evidence here suggesting such false statements or repudiation. The City argues that the ALJ ignored evidence that the Association failed to recommend the tentative agreement the parties reached at mediation, and instead torpedoed it during the ratification vote. While there is no dispute the parties reached a tentative agreement at the mediation, none of the evidence the City cites in support of its claim that the Association “indicated [to its membership] that the proposal should be voted down” persuades us that the Association’s representatives actually undermined ratification of the agreement. There is no evidence in the record that any Association agent actively campaigned against ratification of the agreement or repudiated it. Moreover, recommending a tentative agreement by the negotiations team is never a guarantee that the membership will ratify the proposal. We therefore do not find that any conduct by the Association excuses the City’s bad faith conduct. (pp. 28-30.)