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

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An employer may take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. (p. 11.) A waiver of statutory rights must be “clear and unmistakable,” and the evidence must demonstrate an “intentional relinquishment” of a given right. (p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” [Citation.] “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” [Citation.] (pp. 11-12.)

“Waiver is most readily apparent where the specific subject is covered by the express terms of an existing collective bargaining agreement.” [Citation.] To constitute a waiver, the contract language must “specifically reserve for management the right to take certain action or implement unilateral changes regarding the issues in dispute.” [Citation.] (p. 12.) Waivers must be specifically expressed or necessarily implied, and broadly-worded management rights clauses are often inadequate to constitute a waiver of the right to negotiate over a specific subject. (pp. 12-13.) PERB will not infer a waiver based upon contractual silence. (p. 16.)

In order for PERB to find a waiver when contract language is ambiguous, the bargaining history must show a matter was “fully discussed” or “consciously explored” and the representative “‘consciously’ yielded its interest in the matter.’” [Citation.] (p. 17.) This standard was not met where the record contained no evidence of negotiations that led to the adoption of contract language claimed to constitute a waiver of the Union’s right to bargain over reductions in work hours.