EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Business Necessity; Emergency Exception

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An employer is excused temporarily from its normal bargaining obligation when a sudden emergency resulting from circumstances beyond its control leaves it no alternative but to take immediate action, allowing no time for meaningful negotiations before it must act. (Lucia Mar Unified School District (2001) PERB Decision No. 1440, adopting proposed decision at pp. 46-47; Calexico Unified School District (1983) PERB Decision No. 357, adopting proposed decision at p. 20.) Because an emergency is not a static event, changes taken in good faith reliance on a necessity defense should be limited to the timeframe that the emergency requires, and there remains an obligation to bargain in good faith as time allows. (See, e.g., Pittsburg Unified School District (1983) PERB Decision No. 318, pp. 17 & 20-21 [one aspect of employer’s unlawful conduct was failure to limit its unilateral change to the period necessitated by the alleged emergency].) The onset of the COVID-19 pandemic presented an emergency that temporarily curtailed the District’s bargaining obligations because the District had to act almost overnight to protect staff, students, and their families from a transmissible, life-threatening virus. Accordingly, the District was permitted to require its employees to work from home in March 2020, provided it bargained in good faith as time allowed. The right to respond to a public health emergency by instituting distance learning must logically include, as a general proposition, the right to return to the status quo in stages, while providing employee unions with advance notice and opportunities to bargain when time allows. (Regents of the University of California (1998) PERB Decision No. 1255-H, adopting proposed decision at p. 37.) In the instant case, however, the District reached an agreement with the Federation that allowed employees the right to work from home for the remainder of the school year unless the District required students to return to in-person instruction.