EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS – Outright Refusal to Bargain

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While EERA section 3542, subdivision (a)(2) permits a party to obtain appellate review of a unit determination by engaging in a technical refusal to bargain, a party’s right to do so is limited in several respects. As the Board stated in Alliance Judy Ivie Burton Technology High School (2022) PERB Decision No. 2809, a party engaged in a technical refusal to bargain must rely on evidence already in the administrative record of the unit determination, because the prior representation decision is treated as binding with respect to all issues that were, or could have been, litigated in the representation proceeding. A party may not collaterally attack PERB’s determination using evidence that it could have raised in the unit determination proceeding, nor may it use the technical refusal as an attempt to modify a unit while circumventing PERB’s mandatory unit modification procedure. Because a respondent in a technical refusal case should admit it is refusing to comply with the underlying representation order, PERB can normally grant judgment on the pleadings to resolve a technical refusal to bargain. (pp. 16-17.)