EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

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Waiver is an affirmative defense which asserting party has the burden of proving. It is well settled that in order to find a waiver, PERB requires clear and unmistakable evidence that a party has relinquished its rights to bargain; p. 35, proposed dec. The terms of the zipper clause fixed for the life of the agreement those terms and conditions of employment established by past practice and the terms of the contract; p. 36, proposed dec. Union conduct in negotiations will make out a waiver only if subject fully discussed or consciously explored and union consciously yielded its interest in matter. A union that drops a contract proposal during negotiations has not waived its bargaining rights over the matter.