EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
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605.02000 – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)
Where a bargaining proposal is permissive, if the party receiving such a proposal effectively indicates that it will not bargain over the proposal because it is permissive, the proposing party must either withdraw the proposal by the time the parties reach a bona fide impasse, or otherwise demonstrate its willingness to reach an overall agreement without any concession by its counterpart on the permissive topic. (See Anaheim Union High School District (2016) PERB Decision No. 2504, p. 9 [party that objects to bargaining need not use any “magic words,” but must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”]; State of California (Department of Personnel Administration) (2009) PERB Decision No. 2081-S, pp. 3-7 [context is critical in determining whether receiving party has unequivocally refused to bargain over permissive proposal and whether proposing party thereafter unlawfully insisted on the proposal to impasse]; Lake Elsinore School District (1986) PERB Decision No. 603, pp. 7-10 [same] (Lake Elsinore).) Thus, the proposing party may be able to lawfully maintain the proposal by specifying an alternate set of parameters—involving exclusively mandatory bargaining topics—on which it could reach agreement even in the absence of any concession on the permissive topic. (See Lake Elsinore, supra, p. 7 [although a party may not insist on permissive proposal as absolute requirement for agreement, permissive issue may have bearing on party’s position on economic matters or other mandatory proposals].) (pp. 18-19; see also p. 26, fn. 9 [a party that refuses to bargain over a permissive proposal must make it sufficiently clear that it “is unwilling to engage in further negotiations on the issue”].)