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

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608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

A union may waive its right to bargain the reasonably foreseeable effects of an employer’s decision if it fails to demand to bargain such effects. “An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38.) To establish that a union waived its right to bargain by inaction, “the evidence must demonstrate an intentional relinquishment of the union’s right to bargain.” (Santee Elementary School District (2006) PERB Decision No. 1822, p. 3 (Santee), citing San Francisco Community College District (1979) PERB Decision No. 105.) To trigger a union’s obligation to demand bargaining, notice of a proposed change must “clearly inform[] the employee organization of the nature and scope of the proposed change.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 30, citing Santee, supra, PERB Decision No. 1822.) Applying these standards, the Board found that the County did not provide the Association with clear notice of its decision to implement its tax withholding decision until November 2017. Although the County’s September 2017 letter announced that “the constructively received income will be included in your taxable wages, and taxes will be calculated and withheld,” it lacked critical details that would have put the Association on notice of the County’s intended change. Most importantly, the letter contravened what the County’s Labor Relations Manager had represented to the Association during negotiations in March and April 2017, thereby requiring the Association to figure out which set of representations were correct. Thus, the September 2017 letter did not, by itself, clearly inform the Association of the County’s planned change. The requisite notice came instead from the County’s November 2017 letter, which contained the specifics of how the County intended to implement its tax plan. (pp. 43-45.)