EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS – Insistence on Nonmandatory/Illegal Subjects (See also Scope of Representation, Sec 1000)

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While an employer can never unilaterally impose a statutory rights waiver, PERB decisions classify certain proposed statutory rights waivers as mandatory topics, others as permissive, and still others as illegal. These designations control whether an employer can insist to impasse on such waivers. The quintessential example of a statutory rights waiver that involves a mandatory bargaining topic is a no-strike clause. (Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, pp. 35-37.) Other statutory rights waivers, in contrast, are permissive, including a proposal for a union to contractually waive its right to file a grievance in its own name, or to waive its right to arbitrate without a grievant’s consent. (Mt. Diablo Unified School District (1990) PERB Decision No. 844, p. 2; Chula Vista City School District (1990) PERB Decision No. 834, pp. 18-23 & 31-35.) The same is true of proposals that a union waive statutory rights by withdrawing or settling a pending grievance, unfair practice charge, or lawsuit. (See, e.g., Lake Elsinore School District (1986) PERB Decision No. 603, pp. 6-9.) Still other statutory rights waivers are illegal, typically because external law sets an immutable and therefore non-waivable standard. (Berkeley Unified School District (2012) PERB Decision No. 2268, p. 9.) This category includes, for example, proposals to allow an employer to garnish employee wages without employee consent, thereby violating the California Labor Code. (Id. at pp. 9-11.) However, given that wages are a mandatory subject of bargaining, garnishment proposals are mandatory provided they do not conflict with external law. (Id. at p. 9; see Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15 [parties cannot negotiate away or waive rights guaranteed by statute, but “may agree to incorporate an external law-derived right into the collective bargaining agreement,” and/or negotiate “more generous terms” or other agreements “in areas left unaddressed by the external law”].) (pp. 21-22.)