All notes for Subtopic 1402.02000 – Union’s Waiver of Employee or Organizational Rights

DecisionDescriptionPERC Vol.PERC IndexDate
2615M County of Kern
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
To establish waiver of a right to bargain, an employer must prove that the union consciously abandoned its right to do so. (p. 10.) A union does not waive its right to bargain where the employer has already finalized policy changes without providing the union an opportunity to meet and confer to impasse or agreement. (p. 11.) Employer offer to meet and confer inadequate if employer did not restore the status quo, which is a necessary condition for meaningful bargaining to occur. (City of San Ramon, supra, PERB Decision No. 2571-M, p. 15 [good faith bargaining is not possible when employer has already “imposed the very terms under discussion, thereby forcing [the union] to start from a position of having to talk the [employer] back to the status quo.”].) more or view all topics or full text.
4310912/21/18
2598S * * * JUDICIAL APPEAL PENDING * * * State of California (Department of Corrections and Rehabilitation)
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
An employer rule purporting to waive an employee’s Weingarten rights with respect to searches conducted on the employer’s premises would be ineffective and would constitute an unfair practice. (p. 14, fn. 12.) more or view all topics or full text.
437811/26/18
2609I San Francisco County Superior Court and Region 2 Court Interpreter Employment Relations Committee
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Where language in no strike clause is susceptible to more than one interpretation, burden is on charging party employer to provide extrinsic evidence manifesting “clear mutual intent” as to the employer’s preferred interpretation. more or view all topics or full text.
439912/18/18
2602M City of Commerce
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Union’s failure to cite legal authority against employer’s intended course of action does not absolve the employer of interfering with employee and union rights. more or view all topics or full text.
438912/11/18
2544E Bellflower Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
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
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
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
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
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
2414M County of Tulare * * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Although PERB is without jurisdiction to enforce collective bargaining agreements, it may interpret contractual provisions when necessary to decide an unfair practice case. Because unilateral change allegation turned on the parties’ respective rights under their agreement, PERB examined the language of the agreement. more or view all topics or full text.
3911102/26/15
1725E Hilmar Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Statutorily protected rights, such as the right to engage in non-disruptive informational picketing, can be divested by employees or their exclusive representative by a clear and unmistakable waiver. The Association waived its right to hold an informational meeting after a scheduled mediation session when the Association’s representative committed to the District not to hold the meeting at that time. The District therefore did not interfere with the Association’s rights by threatening to cancel a scheduled mediation session if the Association proceeded with its informational meeting in front of District offices. more or view all topics or full text.
293512/15/04
1682E Desert Sands Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
CSEA did not clearly and unmistakably waive its right to negotiate the change in policy. The word “assign” in the District Rights clause does not clearly convey the right to permanently transfer work outside the ERT classification without first negotiating with CSEA. The Higher Classification provision merely allows higher pay for an employee temporarily assigned to perform work in a higher classification. more or view all topics or full text.
2824108/25/04
1577M County of Riverside
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
The County’s claim that SEIU waived the right to negotiate the grievability of promotions is rejected. The MOU did not contain specific exclusions in the grievance procedure for promotions. This is supported by the only evidence of past practice, a 1994-1995 grievance arbitration of a similar issue involving identical MOU language. Instead, the MOU provided that promotions be based upon “merit and ability;” thus, SEIU did not waive the right to grieve promotions on those issues. more or view all topics or full text.
284512/31/03
1508E San Marcos Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Contract provision prohibiting “picketing,” without differentiating between forms of picketing, is insufficient to constitute a clear and unmistakable waiver if the EERA-protected right to engage in non-disruptive informational picketing. Statutorily and constitutionally protected rights – such as the right to engage in non-disruptive informational picketing, can only be divested, by employees or their exclusive representatives, through a “clear and unmistakable waiver.” more or view all topics or full text.
272701/16/03
1638H Regents of the University of California
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
To determine whether a union has waived its right to engage in a sympathy strike, the Board uses the standard in Children’s Hospital Medical Center v. Nurses Ass’n. Under that standard, a general no-strike clause will not be read to apply to sympathy strikes unless there is extrinsic evidence demonstrating a mutual intent to include such strikes. more or view all topics or full text.
2816206/09/04
1580M Oxnard Harbor District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
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
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
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
1184E Hacienda La Puente Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Board will not infer a waiver of the right to bargain from silence; p. 3; p. 19, proposed dec. more or view all topics or full text.
212805302/21/97
1053E Rowland Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
The parties to a collective bargaining agreement may agree to contractual language specifically waiving or limiting the right to bargaining about particular matters; p. 9. The right to bargain to reach agreement on terms and conditions of employment is the very essence of collective bargaining under EERA. Any attempt to limit or waive this statutory right must be mutually agreed to by the parties and expressed in clear and unmistakable terms; p. 10. An employer may not, following impasse, unilaterally impose a waiver of an exclusive representative's statutory right to bargain. Such a waiver of the statutory right to bargain may only occur within the context of a mutually agreed collective bargaining agreement; p. 10. Duration of agreement provisions do not act as a waiver clause barring all negotiations for the specified period; p. 11. Duration of agreement provisions do not act as a waiver clause barring all negotiations for the specified period; p. 11. more or view all topics or full text.
182512609/01/94
0842H Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego)
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
No waiver where employees and non-exclusive representative notified after decision to implement change was made and carried out. more or view all topics or full text.
142118909/27/90
0834E Chula Vista City School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Issue of whether association can waive a statutory right is specifically not decided. more or view all topics or full text.
142116208/16/90
0208E Fresno Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Waiver of statutory right (Ed. Code section 45060) not lightly inferred. more or view all topics or full text.
61311004/30/82
0137E San Diego Unified School District
1402.2000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
Actions of two school board members who wrote letters of commendation to non-strikers are acts of the employer. Letters were written on official school district stationary, board members signed letters with their official board titles, other three members of the school board effectively ratified the action by failing to act when given notice of the letters, and District management authorized placement of the letters in employee personnel files. Education Code sections defining what constitutes an official act of a school board are irrelevant. more or view all topics or full text.
41111506/19/80