Labor Relations: The Meet and Confer Process

representation matters, impasse procedures, access to employees, communication). 55 Under this language, a potentially broad scope of issues can constitute unfair labor practices. The statute of limitations to file an unfair practice charge under the MMBA is six months. 56 Public agencies should look to current guidelines on identifying unfair labor practices, but should also recognize that the definition may expand to include conduct not previously identified. PERB regulations for unfair practice proceedings identify the steps an agency may take in processing or responding to an unfair practice charge. 57 i. Failure to Bargain in Good Faith The most common unfair practice charge involving bargaining is a charge for failure to bargain in good faith. The courts have been generally guided by private sector precedent in determining the nature of the good faith obligation and the conduct which constitutes a violation of that obligation. PERB is obligated and expected to follow such existing judicial interpretations. In addition, PERB’s many decisions interpreting statutes similar to the MMBA provide guidance as to how PERB may interpret unfair labor practices under the MMBA. In determining whether a party has violated the duty to bargain in good faith, PERB utilizes either the “per se” or “totality of conduct” test, depending on the specific conduct involved and the effect of such conduct on the negotiating process. 58  “Per Se” violations include a unilateral change in a mandatory subject of bargaining, failure to exhaust bargaining or impasse obligations, an outright refusal to bargain, and failure/refusal to provide information. Such acts have the potential to frustrate bargaining and to undermine the exclusivity of the employee organization to such an extent that they are unlawful without any determination of subjective bad faith. 59  The “Totality of Conduct” standard involves consideration of various factors (i.e., context) pertaining to negotiations. PERB will resolve the question of whether a party acted in good faith by analyzing the totality of the conduct between the parties. Although one indicia of bad-faith bargaining is generally insufficient to demonstrate a prima facie case of unlawful conduct, one indicia may be sufficient where it is egregious enough to frustrate bargaining or undermine the union’s authority. 60 Many relevant factors are considered by PERB in deciding whether one party has violated the good faith bargaining obligation. These factors are cumulative. PERB weighs the d . Examples of Unfair Labor Practices

facts to determine whether the conduct at issue “indicates intent to subvert the negotiating process or is merely a legitimate position adamantly maintained.” 61

The following checklist provides examples which are considered material in determining whether the conduct of a party constitutes a lack of good faith when looking at the totality of the conduct.

ii. Checklist: Totality of Conduct Factors Evidencing Bad Faith Bargaining

Take-it-or-leave-it proposals. 62

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Labor Relations: The Meet and Confer Process ©2019 (s) Liebert Cassidy Whitmore 13