EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Change in Past Practice
Single Topic for Decision 2109H
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602.06000 – Change in Past Practice
* * * OVERRULED by City of Culver City (2020) PERB Decision No. 2731-M, where the Board held that waiver by contract is an affirmative defense that must be plead and proved by the party asserting it. A charging party is not required to disprove or refute waiver by contract as part of its prima facie case in a unilateral change case. * * *
Where the charge alleged the employer violated past practice regarding sick leave verification and approval for vacation leave, a bare allegation that the relevant practices were “well established” was insufficient for purposes of alleging a prima facie case. The charge must allege facts to demonstrate the past practice. It is not an unlawful unilateral change for the employer to enforce the written terms of the MOU. No prima facie case for unilateral change in policy or practice where the union failed to allege conduct by the employer that was inconsistent with the terms of the MOU.