EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION) – Change In Policy

Single Topic for Decision 2414M

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* * * VACATED IN PART ON OTHER GROUNDS by County of Tulare (2016) PERB Decision No. 2414a-M. * * *

Where there is no ambiguity in the operative language of an agreement, as understood in its ordinary and plain sense, there is no basis for resorting to extrinsic evidence of the parties’ bargaining history to determine their intent. The ALJ erred by relying on evidence of the parties’ subsequent bargaining history rather than clear and unambiguous language indicating what the parties had intended when they had entered into the agreement two years earlier. In every contract dispute, the analysis must begin with the parties’ intent, as demonstrated by the ordinary and plain meaning of the language of their agreement. Every term should be given effect and, wherever possible, PERB should avoid an interpretation that disregards a contractual provision as surplus language. The Board reversed the proposed decision where the ALJ ignored contract language indicating that employees “will be placed” in certain pre-determined pay ranges and job titles as an unambiguous expression of the parties’ intent when they entered into their agreement. When referring to future events, the ordinary and plain meaning of the verb “will” is the same as “shall,” which is to impose a duty or requirement. This usage is the mandatory sense that drafters typically intend and that courts typically uphold as an enforceable obligation. Where the parties agreed that employees “will be placed” in certain pay ranges and job titles upon expiration of their agreement, it was unnecessary to consider their conduct in successor negotiations to determine their intent. Once negotiated, parties should have a reasonable expectation that their collective agreements will be enforced. Contractual rights may survive the agreement that gave rise to them, if the parties so intended. Because the duty to bargain applies to current and future wages, hours and working conditions, an employer may not unilaterally impose reductions in employee wages or benefits for services already performed, even after bargaining in good faith to impasse.