EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Past Practice; Maintenance of Status Quo

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If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.)