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

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“Because EERA exists alongside the Education Code, the former gives way to the latter when there is a specific conflict between the statutes.” (Cerritos Community College District (2022) PERB Decision No. 2819, p. 20 (Cerritos); Gov. Code, § 3540 [EERA “shall not supersede other provisions of the Education Code”].) However, “the Education Code’s supersession over EERA is not absolute.” (Cerritos, supra, p. 20.) Rather, as the California Supreme Court first explained in San Mateo City School Dist. v. Public Employment Relations Bd. (1983) 33 Cal.3d 850, parties may bargain over matters the Education Code regulates, provided that its provisions would not be “replaced, set aside or annulled by the language of the proposed contract clause.” (Id. at p. 864.) In other words, the Education Code does not “fully occupy the field” on any subject, and bargaining is permitted to the extent a proposal “would not supersede the relevant part of the Education Code” and instead “would strengthen it.” (Id. at p. 866.) Thus, the Education Code precludes bargaining only to the extent it “clearly evidences an intent to set an inflexible standard or insure immutable provisions.” (Id. at pp. 864-865.) Notably, the Supreme Court has repeatedly reaffirmed these principles since first announcing them. (See, e.g., United Teachers of Los Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 515-516; Board of Education v. Round Valley Teachers Assn. (1996) 13 Cal.4th 269, 286.) Accordingly, there is a duty to bargain whenever the Education Code leaves discretion as to terms or conditions of employment, and the parties may agree to “additional employee protections beyond those provided in the Education Code” if they do not circumvent or eviscerate mandatory statutory provisions. (Cerritos, supra, p. 22; San Francisco Unified School District (2009) PERB Decision No. 2040, p. 5, fn. 4.) (pp. 22-23.)