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

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608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

An employer may lawfully 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. [Citations.] As waiver is an affirmative defense, the party
asserting it bears the burden of proof, and any waiver of the right to bargain must be
“clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense
may rely on the waiver only during the term of the contract, unless the parties have
explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly
rejected the employer’s waiver defense on the ground that the memorandum of understanding
was expired at the time the employer implemented the schedule changes. (p. 13.)