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

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Marysville Joint Unified School District (1983) PERB Decision No. 314 arose in the
context of a bilateral agreement and must be limited to that context. There is a
separate and narrow line of waiver precedent relating to waivers not arising from a
bilateral agreement. Under these cases, the party asserting waiver must show that
the other party’s conduct was sufficiently clear to rise to the level of conscious
abandonment, typically because the employer has provided proper advance notice of
a proposed change and the union has failed to request to meet and confer. [Citations.]
This line of cases gave no benefit to the employer here, as it did not provide advance
notice to the union. (p. 18.)