EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Duty to Bargain Effects

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When an employer, having reached a decision that falls outside the scope of bargaining, believes in good faith that its decision has no reasonably foreseeable effects on terms and conditions of employment, “before refusing to negotiate, [the] employer must attempt to clarify through discussions with the union any uncertainty as to what is proposed for bargaining and whether it falls within the scope of representation.” (Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90, 112 [citations and internal quotation marks omitted].) Indeed, “[r]efusing an effects bargaining demand without first attempting to clarify ambiguities and[/]or whether matters proposed for bargaining fall within the scope of representation, violates the duty to bargain in good faith.” (Ibid. [citations and internal quotation marks omitted].) The court clarified that “an employer may satisfy its duty to seek clarification either ‘at the bargaining table’—that is, by formally meeting and conferring—or through an informal exchange between parties.” (Id. at p. 114 [emphasis in original].) Just as an employer acts at its peril if it mistakenly refuses to bargain over a bargainable decision (or bargainable effects), a union acts at its peril if, as here: (1) an employer’s decision falls outside the scope of representation but has bargainable effects; (2) the employer, acting on a good faith doubt as to whether there are bargainable effects, seeks a clarification meeting; and (3) the union refuses to meet because it believes the employer has already commenced implementation, but the union ultimately fails to prove the employer had in fact done so. (pp. 26-28 & fn. 11.)