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

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To establish waiver of the right to bargain based on conduct, a respondent has the burden to show the charging party consciously abandoned its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Normally, this involves proof that the union failed to seek bargaining even after the employer provided clear, advance notice of its proposed change with sufficient time to allow a reasonable bargaining opportunity. (Id., adopting proposed decision at pp. 25-26.) Moreover, unratified CBA language cannot form the basis for asserting a management right, absent explicit agreement of the parties. (pp. 17-18.)