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

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Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.)