EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES – Union Consent or Waiver

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A union can contractually waive employees’ statutory right to display protected insignia and messages in the workplace, but to be effective, such a contractual waiver must be clear and unmistakable. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10; Regents of the University of California (2012) PERB Decision No. 2300-H, p. 27.) Normally, imprecise phrasing does not satisfy the clear and unmistakable standard. (Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, pp. 10-11 [contractual provision allowing employer to adopt “reasonable” rules did not waive statutory access rights].) Moreover, a waiver of employees’ statutory rights, even if clear and unmistakable, is unenforceable if it seriously impairs employees’ right to communicate about union matters. (Omnitrans (2009) PERB Decision No. 2030-M, p. 21; accord Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, p. 11, fn. 9.) (pp. 22-23.)