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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In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the specific conduct involved. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 34.) Per se violations generally involve conduct that violates statutory rights or procedural bargaining norms. (Id. at pp. 34-35.) In contrast, the totality of conduct test applies to allegations of bad faith bargaining conduct that do not constitute a per se refusal to bargain. (Id. at p. 35.) 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. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 7-8.) The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. (Id. at p. 7.) A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a party has failed to bargain in good faith. (City of San Jose (2013) PERB Decision No. 2341-M, p. 19.) However, PERB generally considers multiple factors, including bad faith indicia such as: (1) failing to respond to proposals in a timely manner (State of California (Department of Personnel Administration) (1989) PERB Decision No. 739-S, pp. 4-5); (2) dilatory or evasive tactics, canceling meetings, failing to prepare adequately for negotiations, or failing to take one’s bargaining obligation seriously (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26; Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34); and (3) any other conduct that tends to frustrate negotiations without adequate reason.

Conduct sufficient to amount to one or more separate, contemporaneous unfair practices also indicates bad faith under the totality test. (City of San Jose (2013) PERB Decision No. 2341-M, pp. 21 & 43.) This includes both labor law violations away from the bargaining table and acts that could amount to a per se violation of the duty to bargain (City of Davis (2018) PERB Decision No. 2582-M, pp. 9, 11-13), such as refusing to bargain outright over one or more bargainable topics or effects (City of Glendale (2020) PERB Decision No. 2694-M, pp. 67-70; City and County of San Francisco (2023) PERB Decision No. 2858-M, pp. 12-13).

The Board affirmed the ALJ’s finding of a bad faith bargaining violation and additionally found two per se violations of the District’s duty to negotiate in good faith: the District’s flat refusal to bargain from January through March 2023 and its counsel’s statement that the District did not have a duty to negotiate with OE3 during the pendency of the decertification petition. Both of these were also indicators of bad faith under the totality test. (pp. 28-30.)