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

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Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.)