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

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A union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) The Board found that principle especially significant where the District first deviated from its past practice in Spring 2020, when the pandemic privileged it to do so without reaching an impasse or agreement, provided that the District bargained in good faith as practicable. (County of Santa Clara (2023) PERB Decision No. 2876-M, pp. 32-34.) Because an emergency is not a static event, changes taken during an emergency must be limited to the timeframe that the emergency requires. (Id. at p. 35.) Thus, as the pandemic began to ease and the District moved back toward in-person instruction, the District could have lawfully returned to its established, pre-COVID procedures for assigning and scheduling ESL courses, or it could have bargained with ASTU if it wished to change to a new system. (pp. 12-13.)