All notes for Subtopic 409.05000 – Union Consent or Waiver
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2895M | * * * JUDICIAL APPEAL PENDING * * * Palomar Health 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver The employer failed to meet its burden to establish waiver. As a defense to its decision to limit access rights, the employer argued that when the unions agreed in their respective CBAs that each of them “shall designate up to two (2) authorized representatives who shall be granted access to Palomar Health facilities during hours of operation for the purposes of ensuring compliance with the [CBA], adjusting grievances, and updating [union] bulletin boards,” they waived their statutory right to leaflet or table in various non-work areas of a medical center. These arguments failed because the blanket prohibition against solicitation and distribution of literature, without any demonstrated reasonable alternatives, seriously impaired employees’ rights to communicate about union matters and thus could not be waived as a matter of law; because an agreement to grant access to a specific number of representatives for specific reasons does not clearly and unmistakably indicate that the unions waived access for other representatives or for other protected reasons; and because ample record evidence of the parties’ practices under the CBAs included regular leafletting and tabling in the areas the employer then asserted such activities were not allowed, further confirming that the unions did not clearly waive their statutory access rights. (pp. 34-37.) more or view all topics or full text. | 03/15/24 | ||
| 2822E | Victor Valley Union High School District 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver The bargaining unit employees did not waive their confidentiality interest by providing information about their communications with the union president to the District. As part of the disclosures in the dismissal appeal, the bargaining unit member produced the union president’s notes from a meeting with the bargaining unit member as well as e-mail correspondence between the bargaining unit member and the union president. PERB found that this may have weakened the bargaining unit member’s confidentiality interest as to these particular communications, it did not amount to a blanket waiver of confidentiality as to all of bargaining unit member’s communications with the union president. Regarding the other bargaining unit members alleged waiver of confidentiality in their communications with the union president, the District provided no citations to the record for this argument, and PERB therefore need not consider it. more or view all topics or full text. | 47 | 11 | 06/14/22 |
| 2775M | County of San Joaquin 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver A “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” The party asserting the affirmative defense of waiver carries “the burdens of production and persuasion.” (p. 40.) more or view all topics or full text. | 46 | 20 | 06/30/21 |
| 2775M | County of San Joaquin 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver “A union and employer may agree to restrict union activity during paid, non-working time, as long as the restriction does not seriously impair employees’ right to communicate about union matters.” (Omnitrans, supra, PERB Decision No. 2030-M, p. 21.) However, a “waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right.” (p. 40.) more or view all topics or full text. | 46 | 20 | 06/30/21 |
| 2602M | City of Commerce 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver 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 |
| 2593H | Regents of the University of California (Irvine) 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver Waiver of a statutory right is an affirmative defense, and may be established only by: (1) clear and unmistakable agreement; or (2) bargaining history showing that the issue was fully discussed and consciously explored, and that the waiving party intentionally yielded its interest in the matter. more or view all topics or full text. | 43 | 69 | 10/26/18 |
| 2593H | Regents of the University of California (Irvine) 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver Contractual prohibition of “[s]uch internal union business as membership recruitment, campaigning for union office, handbilling or other distribution of literature, and all other union activities shall take place during non-work time” was not a clear and unmistakable waiver of employee rights to discuss union matters during work time. more or view all topics or full text. | 43 | 69 | 10/26/18 |
| 2536M | City and County of San Francisco 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver Any waiver of a statutory right must be established either by: (1) a clear and unmistakable agreement, or (2) by bargaining history showing that the issue was fully discussed and consciously explored, and that the union intentionally yielded its interest in the matter. Because the agreement was not clear and unmistakable, and bargaining history did not show that the union intended to agree that the no-strike clause prohibited sympathy strikes, no waiver was found. more or view all topics or full text. | 42 | 14 | 06/30/17 |
| 2300H | Regents of the University of California 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver Also within PERB’s expertise and jurisdiction is the ability to assess whether the employer’s defense of waiver through collective bargaining agreement language or bargaining conduct is valid. more or view all topics or full text. | 37 | 141 | 12/20/12 |
| 2384H | Trustees of the California State University 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver HEERA section 3580.5’s protections against conflicts of interest are non-waivable. A policy or rule that interferes with the very preconditions of employee choice is invalid, even if it was adopted through otherwise lawful meeting and conferring with the representative, or if the representative knowingly acquiesced to its restrictions on employee choice. more or view all topics or full text. | 39 | 16 | 06/30/14 |
| 1725E | Hilmar Unified School District 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver 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 |
| 1508E | San Marcos Unified School District 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver 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 |
| 1278E | Long Beach Community College District (California School Employees Association) 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver Exclusive representative's failure to request placement on official schedule for mandatory in-service training does not excuse employer's decision to place rival employee organization on official schedule, citing Regents of the University of California v. Public Employment Relations Bd. (1986) 177 Cal.App.3d 648, 655 [223 Cal.Rptr. 127]; p. 3, fn. 4. more or view all topics or full text. | 22 | 29147 | 08/14/98 |
| 0301E | Fremont Union High School District 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver 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. | 7 | 14130 | 04/06/83 |