EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Change in or Deviation from Written Agreement or Policy

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In assessing a written agreement or policy to determine the status quo, PERB first considers whether the language is clear and unambiguous; if so, it is unnecessary to go beyond the plain language of the contract itself to ascertain its meaning. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 33.) Where the language is ambiguous, PERB may look to bargaining history and past practice to discern the parties’ intent. (Ibid.) While past practice evidence of any strength may be relevant when assessing ambiguous written language, past practice evidence must be stronger if it is to establish an unwritten status quo wholly apart from any writing, under the second means of establishing a unilateral change. Specifically, a past practice only establishes a purely unwritten status quo if it was “regular and consistent” or “historic and accepted.” (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-11.) (pp. 15-16.)