GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION – General Principles of Contract Interpretation
Single Topic for Decision 1568E
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1404.03000 – General Principles of Contract Interpretation
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.