UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION – Negotiations
Single Topic for Decision 2475E
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800.03000 – Negotiations
The representative has broad discretion to negotiate and modify collectively-bargained terms and conditions of employment but exclusively-represented employees are entitled to notice and some opportunity for input before the representative modifies collectively-bargained rights, so that employees may act to protect their interests. PERB does not require a contract ratification vote or prescribe the particular form of access for employees to communicate their views but the exclusive representative violates the duty of fair representation where it provides no notice of a modification of the collective bargaining agreement and conceals from employees a side letter that substantially affects employee seniority rights. Because “waiver” generally denotes a voluntary relinquishment of a known right, there can be no waiver where there is no actual or constructive notice that a right is being relinquished. Employees cannot have acquiesced or waived their right to give input on a change in their collectively-bargained seniority rights or priority order when they neither knew nor reasonably should have known that the representative was considering modifying seniority or priority rights.