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

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The totality of conduct test applies to allegations of bad faith bargaining conduct that does not constitute a per se refusal to bargain. The phrases “totality of circumstances” and “totality of conduct” are interchangeable, and either phrase describes the operative test. While PERB frequently refers to bad faith bargaining under this test as “surface bargaining,” that label does not limit the scope of the relevant factors to only those involving superficial bargaining conduct. (p. 32, fn. 13.)