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

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Bargaining parties can agree to more generous terms than those set out in the Education Code, if doing so strengthens the Education Code’s provisions rather than annulling them. (Cerritos Community College District (2022) PERB Decision No. 2819, p. 21; Los Angeles Unified School District (2013) PERB Decision No. 2326, pp. 14-15.) The Education Code sets a floor regarding entitlement to holiday pay, but bargaining over the timing of holiday accrual and payment can strengthen the statutory provisions. Indeed, the Education Code invites more generous accrual terms. (Ed. Code § 45203, 4th par. [clarifying that statutory language on holiday pay shall not be interpreted as barring employer “from providing holiday pay for employees who have not been in paid status on the days specified herein”].) Timing of accrual and/or payment is normally a mandatory topic. (See, e.g., Laguna Salada Union School District (1995) PERB Decision No. 1103, pp. 11-13 & fn. 13 [employer must bargain over “how and when” employees are paid].) The Board harmonized that general principle with its finding that the Education Code includes a default provision for holiday accrual requirements allowing more generous provisions, to find that the employer did not violate EERA in proposing to continue the parties’ longstanding non-traditional practice regarding accrual and payment of holiday pay. Moreover, because the parties’ longstanding agreement was a beneficial pay practice and not a statutory waiver, its terms remained the status quo at the end of the parties’ CBA. (pp. 25-27.)