EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Single Topic for Decision 2388M
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608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507. An exclusive representative may waive its right to bargain over a matter within the scope of representation. Waiver is an affirmative defense, is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.