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

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To succeed with a claim that the union’s bargaining demand was inadequate and thus effectively waived the union’s right to meet and negotiate over the effects of a non-negotiable decision, the employer must demonstrate, inter alia, that: (1) the employer met its obligation to seek clarification of the union’s effects bargaining demand (Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375); and (2) even as clarified, the union’s effects bargaining demand was inadequate, to wit, it failed to indicate a desire to bargain effects, as opposed to the decision, or it failed to identify clearly a matter within the scope of representation on which the union sought negotiations. Silence by itself is never clear and unambiguous, to be deemed sufficient to waive statutory rights, a union’s silence must be accompanied by other indicia of intent, for example, unreasonable delay. Whether a delay is unreasonable depends on the circumstances of the particular case.