All notes for Subtopic 1402.02000 – Union’s Waiver of Employee or Organizational Rights
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2835H | Regents of the University of California 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights To constitute a waiver of the right to meet and confer under Government Code section 3553, the exclusive representative’s communication to unit employees, or the context in which it was made, must clearly indicate that the representative intentionally relinquished its right to bargain over the content of the employer’s communication. Although we do not foreclose a scenario where an employer could successfully assert a waiver defense to section 3553, subdivision (b), the University did not meet its burden to prove such a defense here. (p. 19.) more or view all topics or full text. | 47 | 69 | 10/07/22 |
| 2835H | Regents of the University of California 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights A waiver of the statutory right to meet and confer must be “clear and unmistakable,” with the evidence demonstrating an “intentional relinquishment” of the right to bargain. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) An employer asserting a waiver defense must prove 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.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38, underline in original.) Because of the notice requirement, “a union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue, until after the employer had already reached a firm decision.” (Regents of the University of California (2018) PERB Decision No. 2610-H, p. 47.)Under this well-established precedent, the University failed to prove that Teamsters waived its right to meet and confer over FAQs. Teamsters did not receive a copy of the FAQs before the University sent them to certain bargaining unit employees. Without advance notice of the entirety of the University’s intended communication to unit employees, Teamsters could not have intentionally relinquished its right to meet and confer over the FAQs. (See City of Sacramento (2013) PERB Decision No. 2351-M, pp. 39-40 [when the exclusive representative first learns of a unilateral change after it has been implemented, “the ‘notice’ is nothing more than ‘notice’ of a fait accompli and the question of waiver never arises”].) (pp. 18-19.) more or view all topics or full text. | 47 | 69 | 10/07/22 |
| 1721E | San Francisco Unified School District and City and County of San Francisco 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights Union’s waiver of its rights in previous rounds of bargaining did not waive its rights for all eternity. The fact that the union did not assert its rights once, does not prevent it from asserting its rights in the future. (p. 10.) more or view all topics or full text. | 29 | 33 | 12/13/04 |
| 2833E | Pittsburg Unified School District 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text. | 47 | 57 | 09/13/22 |
| 2773M | City of Glendale 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights The ALJ wrongly presumed the City Manager’s bias was extinguished by the passage of time. In the absence of Board precedent on this issue, the ALJ analogized to Board decisions addressing retaliation claims—specifically, when temporal proximity between protected activity by an employee and allegedly retaliatory conduct by an employer can constitute evidence of a causal connection between the two. The ALJ concluded that evidence of City Manager’s bias from 2013 was “too remote in time” to prove that he was still biased against IBEW four years later when he conducted IBEW’s unit determination hearing and rendered the decision on IBEW’s petition. In the context of retaliation allegations, the Board has found that “proximity in time between the protected activity and the adverse action goes to the strength of the inference of unlawful motive, but is not determinative by itself.” The Board found it logical to view timing with respect to bias allegations in the same manner, i.e., the timing nexus exists on a continuum, such that no particular amount of time is dispositive for a finding of bias. In other words, while the Board agreed with the ALJ’s decision to analogize to PERB’s precedent on retaliatory animus, it disagreed with the ALJ’s statement that a four-year gap is necessarily too long for animus or bias to remain, especially given that the Board has recognized that management’s first opportunity to act out of animus may not come for a significant period of time. Therefore, absent IBEW’s waiver, it would have been appropriate for the ALJ to weigh all the evidence as to whether the City Manager demonstrated a “clear disposition” against IBEW. (pp. 24-25.) more or view all topics or full text. | 46 | 11 | 06/28/21 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights A union cannot waive bargaining over a negotiable matter when it had no actual or constructive notice of the issue until after the employer had already reached a firm decision. Even if an employer does not implement the change in policy until later, or perhaps not at all, its act of reaching a firm decision to do so without first providing meaningful notice and opportunity for bargaining violates the bilateral scheme of collective bargaining contemplated by our statutes. Where, as here, the bargaining representative has no actual or constructive notice of plans to alter negotiable matters, there is no meaningful notice, and thus no issue of waiver of the right to bargain. (p. 47.) more or view all topics or full text. | 43 | 100 | 12/19/18 |
| 2615M | County of Kern 1402.02000: 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. | 43 | 109 | 12/21/18 |
| 2598S | State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * *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. | 43 | 78 | 11/26/18 |
| 2609I | San Francisco County Superior Court and Region 2 Court Interpreter Employment Relations Committee 1402.02000: 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. | 43 | 99 | 12/18/18 |
| 2602M | City of Commerce 1402.02000: 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. | 43 | 89 | 12/11/18 |
| 2544E | Bellflower Unified School District 1402.02000: 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. | 42 | 70 | 12/15/17 |
| 2544E | Bellflower Unified School District 1402.02000: 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. | 42 | 70 | 12/15/17 |
| 2544E | Bellflower Unified School District 1402.02000: 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. | 42 | 70 | 12/15/17 |
| 2414M | County of Tulare * * * VACATED IN PART by County of Tulare (2016) PERB Decision No. 2414a-M 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights * * * VACATED IN PART ON OTHER GROUNDS by County of Tulare (2016) PERB Decision No. 2414a-M. * * *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. | 39 | 111 | 02/26/15 |
| 1725E | Hilmar Unified School District 1402.02000: 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. | 29 | 35 | 12/15/04 |
| 1682E | Desert Sands Unified School District 1402.02000: 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. | 28 | 241 | 08/25/04 |
| 1577M | County of Riverside 1402.02000: 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. | 28 | 45 | 12/31/03 |
| 1508E | San Marcos Unified School District 1402.02000: 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. | 27 | 27 | 01/16/03 |
| 1638H | Regents of the University of California 1402.02000: 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. | 28 | 162 | 06/09/04 |
| 1580M | Oxnard Harbor District 1402.02000: 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. | 28 | 56 | 01/09/04 |
| 1568E | Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *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. | 28 | 33 | 12/18/03 |
| 1184E | Hacienda La Puente Unified School District 1402.02000: 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. | 21 | 28053 | 02/21/97 |
| 1053E | Rowland Unified School District 1402.02000: 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. | 18 | 25126 | 09/01/94 |
| 0842H | Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego) 1402.02000: 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. | 14 | 21189 | 09/27/90 |
| 0834E | Chula Vista City School District 1402.02000: 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. | 14 | 21162 | 08/16/90 |
| 0208E | Fresno Unified School District 1402.02000: 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. | 6 | 13110 | 04/30/82 |
| 0137E | San Diego Unified School District 1402.02000: 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. | 4 | 11115 | 06/19/80 |