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

To establish waiver of the right to bargain based on evidence other than an effective contract, it is necessary to demonstrate “conscious abandonment” of the right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 24 [internal quotation marks omitted; emphasis original].) However, a union’s acquiescence to a unilateral change in one or more instances does not waive its right to bargain regarding a future change on the same subject. (County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, p. 22, fn. 19.) (pp. 23-24.)