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

Single Topic for Decision 2262E

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Waiver by contract will be effective only if the matter was “fully discussed” and the Union “consciously yielded” to it. The “safety” exception to the progressive discipline article did not waive the union’s right to negotiate over a “zero tolerance” policy that required dismissal of employees who refused drug tests. Union did not waive its right to negotiate over a “zero tolerance “ policy where it was adopted retroactively, rendering negotiations futile. Employer failed to show that it gave the Union notice of adoption of the policy. Without notice, the Union could neither acquiesce in the policy nor unreasonably fail to demand negotiations over it.