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

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representation if it can establish as an affirmative defense that an MOU clearly and unambiguously shows the Union waived its right to negotiate over changes to an employment term. (City of Culver City (2020) PERB Decision No. 2731-M, pp. 14-20; Moreno Valley Unified School District (1995) PERB Decision No. 1106, adopting proposed decision at p. 9; Los Angeles Unified School District (1984) PERB Decision No. 407, p. 5; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 2; Grossmont Union High School District (1983) PERB Decision No. 313, p. 4.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) Thus, the County must show that the language is clear and unambiguous as part of its affirmative defense, rather than the Union bearing a burden to show that the language at issue is not clear and unambiguous. The County’s contract defense failed because the MOU was at least ambiguous.