GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION – In General
Single Topic for Decision 1568E
Full Decision Text (click on the link to view): Full Text
1404.01000 – In General
* * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *
Union may waive right to bargain about contracting out unit work. However, such a contractual waiver will not be construed solely from a broadly based management-rights clause. Any waiver of a right to bargain over a negotiable contracting out decision must be “clear and unmistakable.” The “clear and unmistakable” standard is a high one and mandated by the Board’s previous findings that there is a strong public policy against finding waivers based on inferences. A waiver of an exclusive representative’s right to bargain will never be lightly inferred. In cases where the alleged waiver is exceptional in “breadth or severity,” the “clear and unmistakable” standard must be stringently applied. The burden of proof for establishing an affirmative defense of waiver rests exclusively with the District. Each contract clause must be read in conjunction with phrases surrounding it and harmonized as a whole.