EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Adequate Prior Notice and Opportunity to Bargain

Single Topic for Decision 2915H

View all topics for Decision 2915H

Full Decision Text (click on the link to view): Full Text

PARTIALLY VACATED AND PARTIALLY SUPERSEDED BY Trustees of the California State University v. Public Employment Relations Bd.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.

Victor Valley Union High School District (1986) PERB Decision No. 565 (Victor Valley), which arose in a decision bargaining context, interwove analysis of what constitutes adequate notice from an employer and what constitutes adequate actual knowledge in lieu of notice from the employer. (Id. at pp. 4-6.) County of Santa Clara (2013) PERB Decision No. 2321-M explained how these concepts apply if an employer has a duty to bargain over effects and implementation rather than over the decision itself. (Id. at pp. 30-32.) In either a decision bargaining or effects bargaining context, two points are critical. The first relates to burdens of proof. While a charging party union has the burden to prove that the employer failed to provide adequate advance notice and/or opportunity to bargain, if the employer seeks to rely on the union’s “actual knowledge” in lieu of formal notice, the employer must do so as part of a waiver defense for which it bears the burden of proof. (City of Sacramento (2013) PERB Decision No. 2351-M, pp. 38 & 40 (Sacramento).) Second, the Board has logically and properly interpreted Victor Valley, supra, PERB Decision No. 565 as making the requirements attendant to an actual knowledge showing no less stringent than the requirements when an employer provides formal notice to a union. Thus, to prove a union’s actual knowledge, the employer must show that such actual knowledge satisfied each element of effective notice set forth in Victor Valley, meaning that the union official with actual knowledge must: (1) have authority to act; (2) know of those aspects of the decision that have bargainable effects; and (3) possess the knowledge sufficiently in advance of a firm decision to allow good faith decisional bargaining or sufficiently in advance of implementation to allow for good faith effects bargaining. (Sacramento, supra, pp. 28-42; Victor Valley, supra, at pp. 5-6; accord El Dorado County Deputy Sheriff’s Assn. v. County of El Dorado (2016) 244 Cal.App.4th 950, 956-957; San Diego Adult Educators v. PERB. (1990) 223 Cal.App.3d 1124, 1136.) (pp. 24-25.)