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

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Because the collective bargaining agreement (CBA) is ambiguous as to whether it applies to this conduct, the employer has not sustained its burden to prove its Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) defense. The university argues that even if it had previously refrained from enforcing its leafleting rules, it was privileged to do so in 2008 because the CBA allowed such enforcement. Marysville establishes that an employer does not waive its right to enforce the clear terms of a CBA even if it had allowed a benefit that was more generous than the agreement. Because the record is devoid of evidence about whether the CBA provision applies to leafleting to the public, the employer cannot rely on Marysville, as the CBA is not clear and unambiguous. We reject the university’s claim that an abandoned negotiating proposal constitutes a waiver. By dropping its demand, the union loses what it sought to gain, but it does not thereby grant management the right to subsequently institute any unilateral change it chooses.