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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PARTIALLY VACATED AND PARTIALLY SUPERSEDED BY Trustees of the California State University v. Public Employment Relations Bd. (2026) 118 Cal.App.5th 90 and Trustees of the California State University (2026) PERB Decision No. 2915a-H, which held if employer establishes union obtained actual notice of a decision with bargainable effects, the burden is on the union if it claims there was insufficient time for good faith negotiations before the employer began implementation.

County of Santa Clara (2013) PERB Decision No. 2321-M (Santa Clara) overruled multiple decisions that mistakenly required a union to demand effects bargaining whenever it gained “actual knowledge” (also known as “actual notice”) of an employer decision, even if implementation was already underway. (Id. at pp. 26-32; see also City of Sacramento (2013) PERB Decision No. 2351-M, pp. 17 & 38 (Sacramento) [explaining Santa Clara’s import].) After Santa Clara and Sacramento, there remains only a narrow path for an employer, after failing to afford a union notice, to rely on the fact that a union official nonetheless gained actual knowledge of the decision. Specifically, as part of an affirmative defense asserting that a union clearly and unmistakably waived its right to bargain, the employer must show that a union official with authority to act obtained full, timely, actual knowledge of the decision not only before the employer began implementation, but also with sufficient time to allow good faith bargaining before implementation. (Santa Clara, supra, pp. 28-29 [citing Victor Valley Union High School District (1986) PERB Decision No. 565, pp. 4-6]; accord Sacramento, supra, pp. 38-42.) (p. 24.)