EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000) – In General, Per Se and Totality of Conduct; Prima Facie Case

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PERB applies the totality of conduct test to allegations of bad faith bargaining conduct that do not constitute a per se refusal to bargain. Under the totality test, a party is permitted to maintain a “hard bargaining” position on one or more issues, if the entire course of its bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. Here, based on indicators the ALJ noted and others we note below, we find that IBEW proved not only per se bargaining violations but also bad faith bargaining under the totality test. First, the ALJ correctly found that the District approached negotiations “with an attitude that is incompatible with good faith bargaining.” These repeated statements ignored the nature of an emergency defense. Even when a sudden emergency resulting from circumstances beyond an employer’s control leaves it no alternative but to take immediate action, there remains an obligation to bargain in good faith as time allows. By asserting from the onset of negotiations that it had no obligation to bargain with IBEW over the Sequestration Policy, and repeating that sentiment, the District disregarded precedent holding that even when an emergency allows temporary unilateral action, it does not simply extinguish the duty to bargain.

Other bad faith indicators are the District’s reversal of its bargaining position without any explanation and its failure to respond to IBEW Counter #5 in any manner and without any explanation or rationale. Lastly, the District’s three per se violations—unilateral implementation of the Sequestration Policy, failure to respond to IBEW’s two RFIs, and premature abandonment of negotiations—are separate, contemporaneous unfair practices that serve as additional indicators of bad faith on the part of the District. Based on the foregoing, the totality of circumstances demonstrates the District bargained in bad faith with IBEW. (pp. 50-54.)