All notes for Subtopic 1402.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2598S * * * JUDICIAL APPEAL PENDING * * * State of California (Department of Corrections and Rehabilitation)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.) more or view all topics or full text.
437811/26/18
2544E Bellflower Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
In the absence of any explanation or briefing from a school district who argued that the management rights clause remained in effect after 2010, or a request for reconsideration showing both extraordinary circumstances and that the Board’s determination in a prior decision that the parties’ agreement had expired in 2010 contained prejudicial error of fact, the Board had no grounds to consider the district’s waiver defense, which was based on the management rights language, in this case. (p. 7.) The interpretation of a collective bargaining agreement is not simply a factual finding of the sort which the Board or its agents are free to disregard in a subsequent case involving the same language. Because of its significance for governing the parties’ ongoing relationship, a Board finding as to the meaning of a contract term is more akin to a question of law, particularly where, as here, the question is whether the contract itself is illegal or void for public policy, as declared by the three-year limit for collective bargaining agreements set forth in EERA section 3540.1, subdivision (h). (pp. 6-7.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
The Board rejected a school district’s exception that it had no notice that the ALJ considered the duration language of the parties’ agreement ambiguous or that the meaning of the duration language would be dispositive in the case by determining whether the management rights clause remained in effect. (p. 5-6.) A PERB hearing officer has the power and the duty to “[i]nquire fully into all issues and obtain a complete record upon which the decision can be rendered” and to “[r]ender and serve the proposed decision on each party.” (PERB Reg. 32170.) A hearing officer is not required to advise the parties of which factual disputes or legal issues may determine the outcome of the case, nor to make preliminary factual findings at the hearing itself so that the parties may object or offer additional evidence or argument on the issue. (Ibid.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Because the uncontradicted, unimpeached testimony of three union witnesses and one management witness was that the parties’ collective bargaining agreement had expired in 2010, the Board denied a school district’s exception arguing that the agreement’s management rights clause had remained in effect and served as a waiver of the union’s right to bargain over subcontracting of the district’s bus services. (p. 5.) Uncontradicted, unimpeached testimony at hearing is sufficient to carry the burden of proof in an unfair practice case. (PERB Reg. 32178.) more or view all topics or full text.
427012/15/17
2525M City of Livermore
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.) more or view all topics or full text.
4117305/04/17
2475E United Teachers of Los Angeles (Raines, et al)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Because “waiver” generally denotes a voluntary relinquishment of a known right, there can be no waiver where there is no actual or constructive notice that a right is being relinquished. Employees cannot have acquiesced or waived their right to give input on a change in their collectively-bargained seniority rights or priority order when they neither knew nor reasonably should have known that the representative was considering modifying seniority or priority rights. more or view all topics or full text.
4014702/29/16
2443M City of Milpitas
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
A recognized employee organization may waive its MMBA right to meet and confer. However, waiver is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith. more or view all topics or full text.
403607/29/15
2130S State of California (Department of Personnel Administration)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Union waived its right to pursue future claims against the State employer for State’s failure to implement union leave provisions of its last, best, and final offer. Union entered into a written union leave agreement that contained a clause which explicitly waived the union’s right to pursue future claims on the subject. Because the plain language of the agreement constituted a clear and unmistakable waiver of all future claims, the Board did not consider the bargaining history of the agreement presented by the union. more or view all topics or full text.
3413709/20/10
2107H Regents of the University of California
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Parties cannot waive, either expressly or by implication, PERB’s authority under HEERA section 3563(a) to determine appropriate bargaining units for higher education employers. more or view all topics or full text.
348105/10/10
1704M Golden Empire Transit District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Local 517 did not waive the right to this information through the “Confidentiality Information” provision in the Employee Policy Handbook or through Local 517’s failure to request this information in the past, or the District’s claim that the Local 517 representative had agreed to develop a form that the District had not received. more or view all topics or full text.
29711/08/04
1580M Oxnard Harbor District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
The right to engage in a sympathy strike may be waived in a collective bargaining agreement. However, it is critical to note that the courts have held that a general no-strike clause that does not specify whether sympathy strikes are included or excluded, does not, simply by virtue of its incorporation in a collective bargaining agreement, prohibit such strikes. more or view all topics or full text.
285601/09/04
1568E Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Union may waive right to bargain about contracting out unit work. However, such a contractual waiver will not be construed solely from a broadly based management-rights clause. Any waiver of a right to bargain over a negotiable contracting out decision must be “clear and unmistakable.” The “clear and unmistakable” standard is a high one and mandated by the Board’s previous findings that there is a strong public policy against finding waivers based on inferences. A waiver of an exclusive representative’s right to bargain will never be lightly inferred. In cases where the alleged waiver is exceptional in “breadth or severity,” the “clear and unmistakable” standard must be stringently applied. The burden of proof for establishing an affirmative defense of waiver rests exclusively with the District. Board held that contract language giving management right to “contract out work,” when read in context did not constitute a clear and unmistakable waiver without extrinsic evidence; Barstow Unified School District (1996) PERB Decision No. 1138 is overruled. more or view all topics or full text.
283312/18/03

1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Jurisdiction over subject matter cannot be conferred by consent, waiver or estoppel. [136 Cal.App.3d at 890] more or view all topics or full text.
1106E Moreno Valley Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
A waiver of the right to bargain a matter within the scope of negotiations must be "clear and unmistakable." The evidence must indicate an intentional relinquishment of the union's rights; p. 9, proposed dec. more or view all topics or full text.
192609905/19/95
1077H University of California (University of California-American Federation of Teachers)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Waiver is an affirmative defense which asserting party has the burden of proving. It is well settled that in order to find a waiver, PERB requires clear and unmistakable evidence that a party has relinquished its rights to bargain; p. 35, proposed dec. Union conduct in negotiations will make out a waiver only if subject fully discussed or consciously explored and union consciously yielded its interest in matter. A union that drops a contract proposal during negotiations has not waived its bargaining rights over the matter. more or view all topics or full text.
192603512/16/94
1078E San Jacinto Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
In determining whether waiver of bargaining rights is clear and unmistakable express contractual terms as well as evidence of negotiating history reflecting a conscious abandonment of the right to bargain over a particular subject can be examined; p. 18, proposed dec. more or view all topics or full text.
192603612/22/94
1010H California State University (California Faculty Association)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Employer didn't waive right to engage in factfinding as there was no intentional relinquishment of the right in clear and unmistakable terms. more or view all topics or full text.
172414809/02/93
0860E Los Angeles Unified School District (United Teachers Los Angeles)
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Board affirmed ALJ's conclusion that District conduct not excused by past practice defense because specific program at issue not same or similar to previous programs; pp. 4-6; pp. 20-23, proposed dec. more or view all topics or full text.
152201512/19/90
0754E Calexico Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Statute of limitations is jurisdictional and cannot be waived; even, if waivable, raising of such defense as events become an issue is not a waiver of that defense; pp. 6-7. more or view all topics or full text.
132015907/17/89
0556E Stanislaus County Department of Education
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Waiver must be clear and unmistakable and will not be lightly inferred. more or view all topics or full text.
101703912/31/85
0554E Morgan Hill Unified School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
No waiver by agreement of union official where official not acting with actual or apparent authority. more or view all topics or full text.
101703212/27/85
0313E Grossmont Union High School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
A waiver, to be effective, must be clearly and unequivocably conveyed; p. 11. more or view all topics or full text.
71416205/26/83
0301E Fremont Union High School District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
As employees request for representation was clearly transmitted to the supervisors who called and met with employee, employee did not waive her representational rights; p. 8. Failure to renew request for representation does not constitute a waiver when it would have been futile to renew the request; p. 10. more or view all topics or full text.
71413004/06/83
0252E Los Angeles Community College District
1402.1000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Union's waiver must be demonstrated by either "clear and unmistakable" language, or demonstrative behavior waiving a reasonable opportunity to bargain over a decision not already firmly made by the employer; absent employer notice, union couldn't have intentionally relinquished its interest in the matter by inaction; pp. 9-10. Waiver must be an intentional relinquishment of the union's rights; p. 10. more or view all topics or full text.
61324110/18/82