All notes for Subtopic 608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2835H | Regents of the University of California 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 2847M | * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To prove waiver by inaction, it is necessary to prove “conscious abandonment” of the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 [internal quotation marks omitted].) (p. 17.) more or view all topics or full text. | 12/20/22 | ||
| 2847M | * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In Omnitrans (2010) PERB Decision No. 2143-M, the employer refused to process a grievance filed by the union’s president alleging violations of several MOU articles, claiming among other things that the grievance procedure did not allow the union to file grievances in its own name and that the union president lacked standing to file a grievance because he was not himself an “employee” as defined by the MOU. (Id. at p. 7.) PERB found no clear and unmistakable waiver and therefore concluded that the employer unlawfully changed the status quo by refusing to process the union’s grievance. (Id. at pp. 7-8.) (p. 16, fn. 7.) more or view all topics or full text. | 12/20/22 | ||
| 2847M | * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Following Omnitrans (2009) PERB Decision No. 2010-M, PERB held that a grievance procedure which repeatedly referred to the grievant as “the employee” did not waive the union’s statutory right to seek collective relief. (pp. 15-16.) more or view all topics or full text. | 12/20/22 | ||
| 2847M | * * * JUDICIAL APPEAL PENDING * * * Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.) more or view all topics or full text. | 12/20/22 | ||
| 2833E | Pittsburg Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 2758M | County of Ventura 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A union may waive its right to bargain the reasonably foreseeable effects of an employer’s decision if it fails to demand to bargain such effects. “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.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38.) To establish that a union waived its right to bargain by inaction, “the evidence must demonstrate an intentional relinquishment of the union’s right to bargain.” (Santee Elementary School District (2006) PERB Decision No. 1822, p. 3 (Santee), citing San Francisco Community College District (1979) PERB Decision No. 105.) To trigger a union’s obligation to demand bargaining, notice of a proposed change must “clearly inform[] the employee organization of the nature and scope of the proposed change.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 30, citing Santee, supra, PERB Decision No. 1822.) Applying these standards, the Board found that the County did not provide the Association with clear notice of its decision to implement its tax withholding decision until November 2017. Although the County’s September 2017 letter announced that “the constructively received income will be included in your taxable wages, and taxes will be calculated and withheld,” it lacked critical details that would have put the Association on notice of the County’s intended change. Most importantly, the letter contravened what the County’s Labor Relations Manager had represented to the Association during negotiations in March and April 2017, thereby requiring the Association to figure out which set of representations were correct. Thus, the September 2017 letter did not, by itself, clearly inform the Association of the County’s planned change. The requisite notice came instead from the County’s November 2017 letter, which contained the specifics of how the County intended to implement its tax plan. (pp. 43-45.) more or view all topics or full text. | 45 | 87 | 03/23/21 |
| 2610H | Regents of the University of California (Berkeley) (University Council-American Federation of Teachers) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In this case, because the parties’ memorandum of understanding was expired at the time the employer made the decision to change employees’ schedules, the Board found that the ALJ properly analyzed the employer’s decision as a unilateral change under NLRB v. Katz (1962) 369 U.S. 736, and correctly rejected the employer’s waiver defense. Nothing in the memorandum of understanding suggested that the schedule waiver provision was intended to outlive the contract’s term. (pp. 20-21.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Marysville Joint Unified School District (1983) PERB Decision No. 314 arose in the context of a bilateral agreement and must be limited to that context. There is a separate and narrow line of waiver precedent relating to waivers not arising from a bilateral agreement. Under these cases, the party asserting waiver must show that the other party’s conduct was sufficiently clear to rise to the level of conscious abandonment, typically because the employer has provided proper advance notice of a proposed change and the union has failed to request to meet and confer. [Citations.] This line of cases gave no benefit to the employer here, as it did not provide advance notice to the union. (p. 18.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Despite the narrow holding of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) as a waiver by contract defense, the Board has at times applied the case in an inconsistent manner. For instance, the Board has periodically applied Marysville not as a contract waiver defense but rather as an element necessary for a charging party to establish as part of its prima facie case for a unilateral change, effectively requiring the charging party to prove that a contract did not permit the change at issue. [Citations.] However, more modern Board decisions have returned to treating Marysville as a waiver defense. [Citations.] As part of returning to Marysville’s roots, the Board has held that an employer commits a prima facie unilateral change if it begins to enforce a contract or policy in a new way, a holding that in practice requires the employer to raise Marysville’s contractual waiver doctrine as an affirmative defense. (p. 17.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The Board issued Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) the day after it issued Grossmont Union High School District (1983) PERB Decision No. 313 (Grossmont), which also dealt with waiver by contract. In Grossmont, the Board held that a union waived its right to bargain about specific changes to work schedules when it agreed to a contract that specified the work schedules. [Citation.] Grossmont helps interpret Marysville. Since the same Board decided Marysville so closely after Grossmont, it is highly unlikely the Board intended Marysville to depart from the Grossmont standard, especially as neither decision distinguishes the other as involving different considerations. (p. 16, fn. 9.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2731M | City of Culver City 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To the extent the employer contended that its decision to make the contested schedule changes did not represent a change in policy, but simply a reversion to the parties’ memorandum of understanding, that argument is appropriately framed as an affirmative defense, rather than a negation of the change element of the union’s prima facie case of a unilateral change. (p. 12, fn. 5.) more or view all topics or full text. | 45 | 6 | 06/10/20 |
| 2745M | County of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Zipper clause generally permits both parties to refuse to bargain changes in matters covered by the terms of the clause during the life of their bargaining agreement. (p. 21.) But one cannot propose new terms and conditions of employment and simultaneously use the zipper clause as a shield to prevent the introduction of integrally related counterproposals, which amounts to unlawful piecemeal bargaining. (pp. 21-22.) more or view all topics or full text. | 45 | 39 | 09/18/20 |
| 2745M | County of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Changes to job specifications, including training and certification requirements, are within the scope of representation unless the change is imposed by an outside agency or required to comply with an inflexible law or other immutable provision. (pp. 17-18.) Exception did not apply when State law set specific requirements for certain emergency personnel but did not discuss dispatchers at issue. (pp. 18-19.) Exception did not apply where a local agency, although granted authority to establish the policies and procedures at issue, was not an outside agency but a department of the same agency. (pp. 19-20.) more or view all topics or full text. | 45 | 39 | 09/18/20 |
| 0375E | Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Unless external law sets an inflexible standard or other immutable provision, bargaining over a proposal within the scope of representation should not be precluded. (pp. 6-7; see, e.g., PERB Decision No. 375 headnotes under Sections 101.01000, 101.02000, 102.02000.) more or view all topics or full text. | 8 | 15021 | 01/05/84 |
| 2268E | Berkeley Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession When external law establishes immutable provisions in an area otherwise within the scope of representation, matters are negotiable only to the extent of the employer’s discretion, that is, to the extent that the external law does not “set an inflexible standard or insure immutable provisions.” (p. 9.) District’s proposed recoupment procedures for overpaid wages to individual employees exceeds the negotiable exceptions to California’s immutable policies protected employee wages from prejudgment attachment. (pp. 9-11.) more or view all topics or full text. | 37 | 7 | 05/29/12 |
| 2736M | City of Santa Maria 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer cannot rely on its own municipal code or ordinances to establish that a union waived its right to bargain about a subject within the scope of representation. (Pages 18-20. more or view all topics or full text. | 45 | 17 | 06/30/20 |
| 2740M | County of Merced 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The County did not establish that Union waived its right to bargain for two independent reasons. First, the County came to a firm decision before providing the Union notice of the proposed change and an opportunity to bargain to agreement or impasse; accordingly, the Union was not obligated to request bargaining, or to accept the County’s offer to meet and confer after the employer has already reached a firm decision. Second, a waiver of bargaining rights must be clear and unmistakable, demonstrating that a party intentionally relinquished its right to bargain. (Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 39 (LAUSD).) Any doubts must be resolved against the party asserting waiver. (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) In this case, the Union did not clearly and unmistakably demonstrate that it intentionally relinquished its right to bargain. more or view all topics or full text. | 45 | 29 | 08/10/20 |
| 2740M | County of Merced 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession representation if it can establish as an affirmative defense that an MOU clearly and unambiguously shows the Union waived its right to negotiate over changes to an employment term. (City of Culver City (2020) PERB Decision No. 2731-M, pp. 14-20; Moreno Valley Unified School District (1995) PERB Decision No. 1106, adopting proposed decision at p. 9; Los Angeles Unified School District (1984) PERB Decision No. 407, p. 5; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 2; Grossmont Union High School District (1983) PERB Decision No. 313, p. 4.) “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.) “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) Thus, the County must show that the language is clear and unambiguous as part of its affirmative defense, rather than the Union bearing a burden to show that the language at issue is not clear and unambiguous. The County’s contract defense failed because the MOU was at least ambiguous. more or view all topics or full text. | 45 | 29 | 08/10/20 |
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In this case, because the parties’ memorandum of understanding was expired at the time the employer made the decision to change employees’ schedules, the Board found that the ALJ properly analyzed the employer’s decision as a unilateral change under NLRB v. Katz (1962) 369 U.S. 736, and correctly rejected the employer’s waiver defense. Nothing in the memorandum of understanding suggested that the schedule waiver provision was intended to outlive the contract’s term. (pp. 20-21.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Marysville Joint Unified School District (1983) PERB Decision No. 314 arose in the context of a bilateral agreement and must be limited to that context. There is a separate and narrow line of waiver precedent relating to waivers not arising from a bilateral agreement. Under these cases, the party asserting waiver must show that the other party’s conduct was sufficiently clear to rise to the level of conscious abandonment, typically because the employer has provided proper advance notice of a proposed change and the union has failed to request to meet and confer. [Citations.] This line of cases gave no benefit to the employer here, as it did not provide advance notice to the union. (p. 18.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Despite the narrow holding of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) as a waiver by contract defense, the Board has at times applied the case in an inconsistent manner. For instance, the Board has periodically applied Marysville not as a contract waiver defense but rather as an element necessary for a charging party to establish as part of its prima facie case for a unilateral change, effectively requiring the charging party to prove that a contract did not permit the change at issue. [Citations.] However, more modern Board decisions have returned to treating Marysville as a waiver defense. [Citations.] As part of returning to Marysville’s roots, the Board has held that an employer commits a prima facie unilateral change if it begins to enforce a contract or policy in a new way, a holding that in practice requires the employer to raise Marysville’s contractual waiver doctrine as an affirmative defense. (p. 17.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The Board issued Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) the day after it issued Grossmont Union High School District (1983) PERB Decision No. 313 (Grossmont), which also dealt with waiver by contract. In Grossmont, the Board held that a union waived its right to bargain about specific changes to work schedules when it agreed to a contract that specified the work schedules. [Citation.] Grossmont helps interpret Marysville. Since the same Board decided Marysville so closely after Grossmont, it is highly unlikely the Board intended Marysville to depart from the Grossmont standard, especially as neither decision distinguishes the other as involving different considerations. (p. 16, fn. 9.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text. | ||||
| 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To the extent the employer contended that its decision to make the contested schedule changes did not represent a change in policy, but simply a reversion to the parties’ memorandum of understanding, that argument is appropriately framed as an affirmative defense, rather than a negation of the change element of the union’s prima facie case of a unilateral change. (p. 12, fn. 5.) more or view all topics or full text. | ||||
| 2694M | City of Glendale 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession City’s asserted waiver defense unavailing for multiple reasons. First, union proposals could not constitute a waiver where parties had not reached agreement. Moreover, union did not receive notice of any proposal to subcontract bargaining unit work, and accordingly could not have waived the right to bargain by acquiescence. Further, City did not establish that union waived its bargaining rights through its conduct; to be effective, an alleged waiver of statutory bargaining rights must be specific, clear, and unmistakable. more or view all topics or full text. | 44 | 135 | 02/03/20 |
| 2691M | City and County of San Francisco 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Equitable waiver or laches defenses rejected as a matter of sound labor relations. When an employer approaches a union to initiate Seal Beach negotiations over a proposed ballot measure, a union should not normally be found to have waived its right to later challenge the resulting rules to the extent they violate the MMBA, either facially or as-applied. more or view all topics or full text. | 44 | 124 | 01/17/20 |
| 2684E | Modoc County Office of Education 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer may take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. (p. 11.) A waiver of statutory rights must be “clear and unmistakable,” and the evidence must demonstrate an “intentional relinquishment” of a given right. (p. 11.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” [Citation.] “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” [Citation.] (pp. 11-12.)“Waiver is most readily apparent where the specific subject is covered by the express terms of an existing collective bargaining agreement.” [Citation.] To constitute a waiver, the contract language must “specifically reserve for management the right to take certain action or implement unilateral changes regarding the issues in dispute.” [Citation.] (p. 12.) Waivers must be specifically expressed or necessarily implied, and broadly-worded management rights clauses are often inadequate to constitute a waiver of the right to negotiate over a specific subject. (pp. 12-13.) PERB will not infer a waiver based upon contractual silence. (p. 16.)In order for PERB to find a waiver when contract language is ambiguous, the bargaining history must show a matter was “fully discussed” or “consciously explored” and the representative “‘consciously’ yielded its interest in the matter.’” [Citation.] (p. 17.) This standard was not met where the record contained no evidence of negotiations that led to the adoption of contract language claimed to constitute a waiver of the Union’s right to bargain over reductions in work hours. more or view all topics or full text. | 44 | 104 | 11/27/19 |
| 2615M | County of Kern 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To establish waiver, an employer must prove that the union consciously abandoned its right to bargain. (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.) more or view all topics or full text. | 43 | 109 | 12/21/18 |
| 2599E | San Bernardino Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Evidence failed to establish a contractual waiver of the right to bargain where it was not established that the management rights clause was in effect at the time of the unilateral change. more or view all topics or full text. | 43 | 85 | 12/05/18 |
| 2599E | San Bernardino Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contractual waiver of the right to bargain must be clear and unmistakable and reflect a conscious abandonment of the right to bargain; a generally worded management rights clause does not suffice. more or view all topics or full text. | 43 | 85 | 12/05/18 |
| 2544E | Bellflower Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The Board rejected a school district’s exception that a Board-ordered remedy including restoration of the status quo and make-whole relief conflicted with federal law governing special education. The district’s statement of exceptions and supporting brief included no citation to any provision of the federal statute or decisional law interpreting it, and the district failed to explain how PERB’s customary remedy for a unilateral change would conflict with federal law. The district’s filing both failed to comply with the requirements of PERB Regulation 32300 governing exceptions, and, even if considered, had no merit. Unless a remedial measure positively conflicts with “inflexible standard[s]” or “immutable provisions” set by external law, the fact that it affects matters normally within the jurisdiction of another tribunal does not, by itself, make PERB’s remedy improper. (pp. 10-11.) more or view all topics or full text. | 42 | 70 | 12/15/17 |
| 2544E | Bellflower Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 2568S | State of California (Department of State Hospitals) (California Association of Psychiatric Technicians) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The bargaining contract allowed Union representatives to review employee personnel and supervisory files only if properly authorized by the employee. (pp. 3-4) Accordingly, DSH argued that the Union waived its right to receive the requested information absent authorization. However, a “waiver by contract” defense is an affirmative defense that must be pled in the respondent’s answer to the complaint or it is waived. (pp. 13-14) more or view all topics or full text. | 43 | 3 | 06/12/18 |
| 2518E | Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Any waiver of bargaining rights must be clear and unmistakable, demonstrating an intentional relinquishment of the right to bargain. A generally-worded management rights clause will not be construed as a waiver of statutory bargaining rights. more or view all topics or full text. | 41 | 146 | 03/06/17 |
| 2518E | Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract provision governing certain procedural matters in the evaluation process is not a clear and unmistakable waiver of right to bargain changes to other matters related to evaluations. more or view all topics or full text. | 41 | 146 | 03/06/17 |
| 2518E | Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In the face of employer’s repeated assurances that it would bargain over negotiable changes, exclusive representative’s participation in ad hoc committees and other process was not a waiver by inaction. more or view all topics or full text. | 41 | 146 | 03/06/17 |
| 2464M | City of San Diego * * * Affirmed, 5 Cal.5th 898 (2018). Remedy modified by City of San Diego (2019) PERB Decision No. 2464a-M * * * 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession PERB rejected defense that Mayor and other City officials were acting as private citizens when they and their staff appeared at press conferences and other public events, used City staff, e-mail accounts, websites and other City resources, as well as the prestige of their City offices to publicize and solicit support for a ballot initiative aimed at altering the pension benefits of City employees. Board affirmed ALJ’s finding that the Mayor acted as the statutory agent of the City in announcing and supporting ballot measure to change City policy regarding employee pension benefits and in refusing to bargain with the Unions over this change in policy. more or view all topics or full text. | 40 | 108 | 12/29/15 |
| 2321M | County of Santa Clara 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Zipper clause limiting the parties’ right to negotiate on matters not specifically referred to or covered in the agreement and preserving the union’s right to negotiate and engage in impasse procedures in respect to a new matter, subject, or practice not referred to in the agreement as to which the County desires to take action does not clearly and unmistakably waive the union’s right to meet and negotiate. more or view all topics or full text. | 38 | 30 | 07/25/13 |
| 2443M | City of Milpitas 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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. Section 7.01.4 of the parties’ contract contains both a restriction on the City’s managerial right to conduct layoffs and a limited waiver of the union’s right to meet and confer over the decision to contract out bargaining unit work. The waiver of the union’s right to bargain is limited by the occurrence of one of the triggering events identified in Section 7.01.4, the City’s loss of Redevelopment Agency (RDA) funding or a general fund deficit of $7 million. Since there is no dispute that the City lost RDA funding in 2012, we conclude that the City was entitled to implement layoffs and contracting out of bargaining unit work subject only to reasonable notice. more or view all topics or full text. | 40 | 36 | 07/29/15 |
| 2313E | Rio Hondo Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To succeed with a claim that the union’s bargaining demand was inadequate and thus effectively waived the union’s right to meet and negotiate over the effects of a non-negotiable decision, the employer must demonstrate, inter alia, that: (1) the employer met its obligation to seek clarification of the union’s effects bargaining demand (Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District (1984) PERB Decision No. 375); and (2) even as clarified, the union’s effects bargaining demand was inadequate, to wit, it failed to indicate a desire to bargain effects, as opposed to the decision, or it failed to identify clearly a matter within the scope of representation on which the union sought negotiations. Silence by itself is never clear and unambiguous, to be deemed sufficient to waive statutory rights, a union’s silence must be accompanied by other indicia of intent, for example, unreasonable delay. Whether a delay is unreasonable depends on the circumstances of the particular case. more or view all topics or full text. | 37 | 197 | 03/21/13 |
| 2300H | Regents of the University of California 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because the collective bargaining agreement (CBA) is ambiguous as to whether it applies to this conduct, the employer has not sustained its burden to prove its Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) defense. The university argues that even if it had previously refrained from enforcing its leafleting rules, it was privileged to do so in 2008 because the CBA allowed such enforcement. Marysville establishes that an employer does not waive its right to enforce the clear terms of a CBA even if it had allowed a benefit that was more generous than the agreement. Because the record is devoid of evidence about whether the CBA provision applies to leafleting to the public, the employer cannot rely on Marysville, as the CBA is not clear and unambiguous. We reject the university’s claim that an abandoned negotiating proposal constitutes a waiver. By dropping its demand, the union loses what it sought to gain, but it does not thereby grant management the right to subsequently institute any unilateral change it chooses. more or view all topics or full text. | 37 | 141 | 12/20/12 |
| 2351M | City of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver of the right to bargain found where exclusive representative had no actual or constructive knowledge of a proposed transfer of bargaining unit work until after employer’s representative began meeting with employees directly to prepare for and implement the transfer. more or view all topics or full text. | 38 | 104 | 12/24/13 |
| 2296M | City of Long Beach 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Provision in local civil service rules authorizing county to reduce work hours for reasons of economy or due to a lack of work or funds does not exempt employer from obligation to meet and confer under the MMBA over implementation of furloughs. Nothing in civil service rules purports to exempt city from MMBA meet and confer obligations prior to implementing reduction in employee work hours. General language authorizing city to determine the size and composition of its workforce and to assign work does not clearly and unmistakably waive union’s right to bargain over the reduction in wages and hours imposed by the implementation of furloughs. more or view all topics or full text. | 37 | 130 | 12/04/12 |
| 2227M | County of Ventura (Office of Agricultural Commissioner) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract language giving employer authority to “relieve employees from duty because of lack of work or for other legitimate reasons” constitutes a clear and unmistakable waiver of the right to negotiate employer’s unilateral reduction in hours. more or view all topics or full text. | 36 | 96 | 12/21/11 |
| 2262E | Fairfield-Suisun Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Waiver by contract will be effective only if the matter was “fully discussed” and the Union “consciously yielded” to it. The “safety” exception to the progressive discipline article did not waive the union’s right to negotiate over a “zero tolerance” policy that required dismissal of employees who refused drug tests. Union did not waive its right to negotiate over a “zero tolerance “ policy where it was adopted retroactively, rendering negotiations futile. Employer failed to show that it gave the Union notice of adoption of the policy. Without notice, the Union could neither acquiesce in the policy nor unreasonably fail to demand negotiations over it. more or view all topics or full text. | 36 | 176 | 05/08/12 |
| 2143M | Omnitrans 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The management rights clause found in the MOU between the parties did not clearly and unmistakenly waive the union’s right to bargain work assignment bidding procedures. Employer illegally bypassed the union when it conducted a Focus Group with bargaining unit employees for the purpose of developing changes to shift bid procedures, surveying bargaining unit employees on their preferences for proposed changes to bidding procedures, and making recommendations to management regarding changes to bid procedures. more or view all topics or full text. | 34 | 171 | 11/18/10 |
| 1876Ha | Trustees of the California State University 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Notice of a proposed change in policy must be given sufficiently in advance of a firm decision to make such a change to allow the exclusive representative a reasonable amount of time to make a demand to negotiate. When an employer has made a firm decision to make a change in policy, the failure to request bargaining will not be considered a waiver of a right to bargain if the request would be futile. more or view all topics or full text. | 33 | 73 | 04/15/09 |
| 2097M | County of Riverside * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a request to bargain need not identify specific effects, and also that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of its decision. * * *In dealing with effects bargaining, the employee organization is entitled to reasonable notice and an opportunity to bargain over the negotiable effects of a non-negotiable decision. The employee organization’s request must clearly indicate the desire to bargain over the effects as opposed to the decision itself. Failure by the employee organization to make a valid request to bargain the negotiable effects of the decision constitutes a waiver of the right to bargain regarding those effects. more or view all topics or full text. | 34 | 49 | 02/10/10 |
| 2055M | Metropolitan Water District of Southern California 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union waived its right to bargain by not requesting to meet and confer over a new long-term vehicle assignment policy or its effects during the five months between the union’s receipt of notice of the policy and the governing board’s adoption of the policy. more or view all topics or full text. | 33 | 144 | 08/26/09 |
| 2044M | County of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A statement by an employer that it may unilaterally change a mandatory subject of bargaining did not establish a waiver by the union. Specifically, the County placed an annual reservation clause in its administrative policy for the plan. more or view all topics or full text. | 33 | 126 | 06/30/09 |
| 2045M | County of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A statement by an employer that it may unilaterally change a mandatory subject of bargaining did not establish a waiver by the union. Specifically, the County placed an annual reservation clause in its administrative policy for the plan. more or view all topics or full text. | 33 | 127 | 06/30/09 |
| 2043M | County of Sacramento 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A statement by an employer that it may unilaterally change a mandatory subject of bargaining did not establish a waiver by the union. Specifically, the County placed an annual reservation clause in its administrative policy for the plan. more or view all topics or full text. | 33 | 122 | 06/30/09 |
| 2002E | Long Beach Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2014) PERB Decision No. 2359 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by Los Angeles Unified School District (2014) PERB Decision No. 2359. * * *Contract language allowing employer to institute a 4/10 workweek “with the concurrence of the affected unit employee(s)” did not waive union’s right to bargain over imposition of a 4/10 workweek on all unit employees. more or view all topics or full text. | 33 | 36 | 01/30/09 |
| 1960M | South Placer Fire Protection District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union never agreed to remove Fire Marshall classification from the bargaining unit and therefore did not waive its right to bring an unfair practice charge alleging that the reclassification constituted an unlawful unilateral change. more or view all topics or full text. | 32 | 96 | 06/10/08 |
| 1988M | City of Burbank 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession MOU’s silence regarding arbitration discovery did not waive exclusive representative’s statutory right to information necessary and relevant to its representation of a bargaining unit member in contractual disciplinary arbitration proceedings. more or view all topics or full text. | 33 | 11 | 11/25/08 |
| 1926H | Trustees of the California State University 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because there was no duty to bargain the decision to implement the policy, the zipper clause was inapplicable. more or view all topics or full text. | 31 | 152 | 10/31/07 |
| 1910M | County of Ventura 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession County has the authority to implement mandatory overtime department-wide as allowed by the plain meaning of the MOA. Under the plain language of the MOA, an association has the right to file a grievance on behalf of an individual employee or a group of likely situated employees, as it did here. more or view all topics or full text. | 31 | 114 | 06/21/07 |
| 1895E | Newark Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The District violated EERA when it failed to meet and negotiate in good faith by refusing, during the 2003-2004 re-opener negotiations, to negotiate concerning the selection of a health insurance carrier. The fact that the health insurance carrier language was contained in the Compensation Article, required the District to negotiate the Association's proposal related to that article; the District did not act in good faith in advancing its positions related to the negotiability of the health care carrier and waiver language. Although the collective bargaining agreement language waives the right to negotiate the health carrier, with the parties agreeing instead to consult, the Compensation Article was subject to negotiation during the 2003-2004 school year negotiations as a re-opener. Since the health care carrier language in dispute is part of the Compensation Article, the District should have negotiated the Association's re-opener proposal related to health carriers, even though the proposal did not include an express repudiation of the contract’s waiver language. more or view all topics or full text. | 31 | 78 | 03/27/07 |
| 1822E | Santee Elementary School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A valid request to negotiate will be found if it adequately indicates a desire to negotiate on a subject within scope. (Newman-Crows Landing Unified School District (1982) PERB Decision No. 223.) In this case, STA made a reasoned decision not to demand to barain the adoption of the Board Policy after being given 2 weeks notice of the Board’s intent. Protests over District’s contemplated change is not a demand to bargain. An employer is obligated to provide the exclusive representative with notice and an opportunity to negotiate over the effects of its decisions that have an impact upon matters within scope. (Oakland Unified School District (1985) PERB Decision No. 540.) Union did not waive its right to negotiate the impacts of the Board Policy because it had waived its right to negotiate over the decision to adopt the BP. more or view all topics or full text. | 30 | 72 | 02/22/06 |
| 1758S | State of California (Board of Prison Terms) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Entire agreement clause waiving right to bargain the decision survives expiration of the MOU due to operation of Dills Act section 3517.8. more or view all topics or full text. | 29 | 103 | 03/24/05 |
| 1729E | Berkeley Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Collective bargaining agreement language was waiver of right to bargain increases in health care. Benefit payments. more or view all topics or full text. | 29 | 45 | 12/21/04 |
| 1724M | City of Modesto 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession This case is distinguishable from Los Angeles Community College District (1982) PERB Decision No. 252 where the contractual zipper clause did not allow the employer from unilaterally changing shifts without bargaining where the shifts were set forth in the contract. Under the zipper clause, the City is not obligated to negotiate a change in health benefit premiums. more or view all topics or full text. | 29 | 36 | 12/15/04 |
| 1704M | Golden Empire Transit District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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. | 29 | 7 | 11/08/04 |
| 1682E | Desert Sands Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 1674E | Fresno County Office of Education 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The Association was unaware of previous “reassignments” because notice of previous reassignments was sent to Association members, not to Association officials. more or view all topics or full text. | 28 | 219 | 08/19/04 |
| 1508E | San Marcos Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 1635H | Trustees of the California State University (San Marcos) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession It is well settled that an employer may take unilateral action if the exclusive representative waived its right to bargain. But any waiver of this right will not be lightly inferred. To show that an exclusive representative has waived its right to negotiate, there must be evidence of either “clear and unmistakable” language, or of “demonstrable behavior waiving a reasonable opportunity to bargain over a decision not already firmly made by the employer.” Here, Board found insufficient evidence to establish waiver by union. Contract clauses only provided that evaluations be done and that a rating system be determined. more or view all topics or full text. | 28 | 158 | 06/04/04 |
| 1568E | Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART 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 |
| 1545M | Diablo Water District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession After the employer provided notice of the proposed changes and union refused to meet with employer until it was officially recognized, union waived its right to bargain over policy. more or view all topics or full text. | 27 | 114 | 07/29/03 |
| 1633E | Fullerton Joint Union School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union alleged that District unlawfully changed employee work schedules. District defended action as permitted by contract. Board held that contract language not clear and unambiguous, but reasonably susceptible to union’s interpretation. Thus, union established prima facie case and complaint should issue. more or view all topics or full text. | 28 | 155 | 05/19/04 |
| 1501E | Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Any waiver of an exclusive representative’s right to bargain must be “clear and unmistakable.” Management-Rights clause in contract was ambiguous, and therefore, cannot constitute a “clear and unmistakable” waiver. Union did not waive its right to bargain by making its request to negotiate to the District’s police chief instead of directing request to the District’s Office of Staff Relations. Although past practice was to direct requests to negotiate to the District’s Office of Staff Relations, the contract was silent on the issue. Since police chief was the one who informed the union of the impending change, it was reasonable for the union to direct its request to him. Union did not acquiesce to District’s change in practice. Although union failed to file an unfair practice charge, union attacked the District’s action at various levels of the District’s hierarchy and temporarily succeeded. more or view all topics or full text. | 27 | 4 | 10/31/02 |
| 1534E | Colton Joint Unified School District * * * OVERRULED IN PART by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by City of Culver City (2020) PERB Decision No. 2731-M, where the Board held that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past the contract expiration. * * *No unilateral change where employer actions are consistent with a previously unenforced provision of the collective bargaining agreement. more or view all topics or full text. | 27 | 94 | 06/23/03 |
| 1471E | State Center Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession General form stating an employee's choice to exclude his or her telephone number from the District's home directory insufficient expression under settlement agreement to provide union waiver of access to home telephone numbers. Exclusive right to "determine the impacts and effects of matters outside the scope of representation as permitted by the [EERA]" insufficient to constitute a waiver which would allow withholding of home telephone numbers from the union based on a general form stating an employee's choice to exclude his or her telephone number from the District's home directory publication; p. 18, proposed dec. Right to take "any action" to run the District efficiently insufficient to constitute a waiver which would allow withholding of home telephone numbers from the union based on a general form stating an employee's choice to exclude his or her telephone number from the District's home directory publication; p. 20, proposed dec. more or view all topics or full text. | 26 | 33027 | 12/12/01 |
| 1467E | San Diego Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession District's prohibition on use of inter-site mail system and photocopying services by union for political purposes is mandated by Education Code section 7054 thus policies prohibiting such use are removed from scope of representation to the extent Section 7054 clearly evidences an intent to set an inflexible standard or insure immutable provisions. more or view all topics or full text. | 26 | 33014 | 11/28/01 |
| 1440E | Lucia Mar Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union did not waive its right to negotiate district's decision either by management rights clause because no evidence issue explored and consciously yielded or by failing to pursue bargaining rights while participating in consultative committee process because it also demanded to bargain. more or view all topics or full text. | 25 | 32073 | 05/24/01 |
| 1391S | State of California (Department of Corrections) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Department's claim that Association waived its right to bargain transfers of work between units in a general management rights clause was rejected. The waiver of a right to bargain must be clear and unmistakable. Here the agreement between the parties contained no language which expressly reserved to Department the right to transfer duties from one bargaining unit to another without negotiating the matter with appropriate employee representative. more or view all topics or full text. | 24 | 31112 | 06/26/00 |
| 1392S | State of California (Department of Corrections) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Department's claim that Association waived its right to bargain transfers of work between units in a general management rights clause was rejected. The waiver of a right to bargain must be clear and unmistakable. Here the agreement between the parties contained no language which expressly reserved to Department the right to transfer duties from one bargaining unit to another without negotiating the matter with appropriate employee representative. more or view all topics or full text. | 24 | 31113 | 06/26/00 |
| 1390S | State of California (Department of Corrections) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Department's claim that Association waived its right to bargain transfers of work between units in a general management rights clause was rejected. The waiver of a right to bargain must be clear and unmistakable. Here the agreement between the parties contained no language which expressly reserved to Department the right to transfer duties from one bargaining unit to another without negotiating the matter with appropriate employee representative. more or view all topics or full text. | 24 | 31111 | 06/26/00 |
| 1347S | State of California (Department of Motor Vehicles) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Where expired collective bargaining agreement provided that employer could establish alternative work schedules, Board found that employer did not unilaterally change working conditions when it implemented an alternate work schedule allowing employees to work a 4/10/40 schedule; pp. 2-3, warning letter. Where, despite actual notice of the change, exclusive representative never requested bargaining over effects of employer's decision to implement alternate work schedule pursuant to the terms of expired collective bargaining agreement, employer's failure to negotiate said effects did not violate Act; p. 2, dismissal letter. more or view all topics or full text. | 23 | 30163 | 09/02/99 |
| 1344S | State of California (Department of Veterans Affairs) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No violation found where the parties' expired memorandum of understanding provided that workweeks and workdays may be scheduled by the State in order to meet the needs of the State, so long as the State does not alter or change shifts for the purpose of avoiding overtime, and provided that it gives no less than 15 calendar days' notice of permanent shift changes. Where supervisor informed Activity Coordinators, pursuant to contractual requirements, that permanent schedule changes would take place during the following month, and announced those changes more than 15 days later, it had no obligation to meet and discuss those changes. more or view all topics or full text. | 23 | 30154 | 08/19/99 |
| 1346S | State of California (Employment Development Department) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Where charge failed to allege that employer deviated from the terms of the existing collective bargaining agreement in revoking bilingual pay for certain employees, Board dismissed charge for failure to state a cause of action, p. 2; dismissal letter. more or view all topics or full text. | 23 | 30164 | 09/02/99 |
| 1313S | State of California (Department of Personnel Administration) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession When an employer does not provide notice and the opportunity to bargain over an alleged change, the exclusive representative's failure to pursue bargaining is not considered a waiver; p. 6. When an alleged unilateral change has already been implemented, or if the employer has already made a firm decision to implement the change, the exclusive representative does not waive its right to bargain by not pursuing negotiations; pp. 6-7. The Union's cancellation of a bargaining session and decision not to pursue bargaining did not constitute a waiver of the right to bargain, and did not bar the Union from filing an unfair practice alleging an unlawful unilateral change; p. 7. more or view all topics or full text. | 23 | 30055 | 01/29/99 |
| 1320E | Ocean View School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract language permitting a school district to contract out work which may be lawfully contracted for is a clear and unmistakable waiver of the right to bargain over contracts for transportation services; p. 3, warning letter. more or view all topics or full text. | 23 | 30080 | 03/22/99 |
| 1296S | State of California (Department of Personnel Admin) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract provision which is limited to "the term of this agreement" does not constitute a waiver permitting employer to unilaterally change past practice after expiration of the agreement; p. 3. Adopting and publishing regulations changing travel reinbursement rates for excluded employees does not constitute constructive notice of change in past practice for unit members sufficient to start limitations period; p. 17, proposed dec; Employer mentioning during negotiations of proposed changes in excluded employees travel rules did not give notice to union that its members would not have the same changes applied to them under the expired contract clause. more or view all topics or full text. | 23 | 30009 | 10/22/98 |
| 1287E | Antelope Valley Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession While certain terms and conditions of employment survive expiration of the contract, a waiver of the statutory right to bargain does not remain in effect. Broadly worded contract clause concerning selection and promotion of employees allows district to change its promotional interview policy. more or view all topics or full text. | 22 | 29168 | 09/25/98 |
| 1286E | Oak Park Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession District had no obligation to negotiate its decision to contract out mowing services, even though mowing services had been provided by unit members in the past, because parties' contract permitted contracting out. The District does not lose a contractual right merely because it failed to previously exercise it; p. 2, dismissal letter; citation. more or view all topics or full text. | 22 | 29161 | 09/24/98 |
| 1271H | Regents of the University of California (Federated University Police Officer’s Association) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Charging party failed to show that University's conduct was not consistent with its rights under the agreement with the charging party. Thus, no unilateral change is described; p. 2, warning letter. more or view all topics or full text. | 22 | 29114 | 06/30/98 |
| 1270E | San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by Contra Costa Community College District (2019) PERB Decision No. 2652. * * *Contract language that the District has the right to "maintain the efficiency of District operations" is generally-worded management rights clause, and thus will not be construed as a waiver; p. 57, proposed dec. Waiver may also be established by demonstrative behavior, waiving a reasonable opportunity to negotiate over a decision not already firmly made by the employer. Such a waiver must be an intentional relinquishment of statutory rights. An employee organization does not waive its rights to negotiate by failing to request negotiations after a firm decision has already been made by the employer; p. 58, proposed dec. Employer's failure to require sick leave verification consistently in the past does not preclude it from doing so in the future; p. 54, proposed dec. the past does not preclude it from doing so in the future; p. 54, proposed dec. Speculation will not support the finding of a waiver. more or view all topics or full text. | 22 | 29113 | 06/22/98 |
| 1259E | Fall River Joint Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Where District has made firm decision to implement teacher swap program, the failure of the union to request bargaining of such decision for over one year will not be considered a waiver of the right to bargain, because the request under these circumstances would be futile; p. 28, citing Archoe Union School District (1983) PERB Decision No. 360. Where there is no established past practice of a policy or a similar policy, a policy which potentially affects all special education teachers with a specific mandatory transfer plan is found to be an unlawful unilateral change; p. 28. A mandatory transfer policy affecting multiple teachers clearly has a generalized effect or continuing impact on the terms and conditions of employment of those bargaining unit members requires the District to provide the union with notice and an opportunity to bargain over that employment of those bargaining unit members requires the District to provide the union with notice and an opportunity to bargain over that more or view all topics or full text. | 22 | 29082 | 04/08/98 |
| 1255H | Regents of the University of California (California Nurses Association) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Broadly-worded Management-Rights clause does not entitle University to unilaterally transfer work out of bargaining unit - waiver must be clear and unmistakable; p. 41, proposed dec. more or view all topics or full text. | 22 | 29066 | 03/20/98 |
| 1206E | San Ysidro School District (California School Employees Association and Its San Ysidro Chapter #154)) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession District's contractual right to classify, reclassify and abolish positions does not include right to modify the number of hours in a vacant position based on labor cost considerations: waiver of union's right to meet and confer must be clear and unmistakable; p. 8, proposed dec. Education Code provisions which give District authority to create positions and assign employees to those positions does not encompass the right to reduce the number of hours in a vacant position based on labor cost considerations; p. 9, proposed dec. more or view all topics or full text. | 21 | 28122 | 06/23/97 |
| 1201S | State of California (Department of Corrections) * * * OVERRULED by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by City of Culver City (2020) PERB Decision No. 2731-M, where the Board held that waiver by contract is an affirmative defense that must be plead and proved by the party asserting it. A charging party is not required to disprove or refute waiver by contract as part of its prima facie case in a unilateral change case. * * *MOU clearly sets out procedures for employee trading of monthly and daily shifts. The plain meaning of the agreement that shifts cannot be traded without supervisor approval is not superseded by the past practice of allowing employees to internally arrange their own shifts. Cites Marysville Joint Unified School District (1983) PERB Decision No. 314; p. 3, warning letter. more or view all topics or full text. | 21 | 28107 | 06/02/97 |
| 1189H | Regents of the University of California (Woods, et al.) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No prima facie case for failure to meet and discuss effects of layoff where charge fails to allege that charging parties actually requested to meet and discuss those effects; p. 2, dismissal letter. more or view all topics or full text. | 21 | 28066 | 03/19/97 |
| 1186E | Hacienda La Puente Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To establish waiver of an employer's refusal to bargain or unilateral change, the employer msut show that an employee organization clearly an unmistakably waived its right to bargain on the issue. The management rights clause in the instant case which allowed the District to "determine staffing patterns" and "to assign employees" did not constitute a waiver. more or view all topics or full text. | 21 | 28056 | 02/27/97 |
| 1184E | Hacienda La Puente Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 |
| 1181E | Los Angeles Unified School District (Service Employees International Union Local 99) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union's knowledge of drug policy, violation of which would subject an employee to dismissal, starts the statute of limitations period for a unilateral change even where the employer applies the policy as a "zero tolerance" policy and later dismisses an employee under the new zero tolerance policy. more or view all topics or full text. | 21 | 28025 | 12/10/96 |
| 1163E | Arcata Elementary School District * * * OVERRULED by Huntington Beach Union High School District (2003) PERB Decision No. 1525 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by Huntington Beach Union High School District (2003) PERB Decision No. 1525. * * *After the employer made a unilateral change, participation by the exclusive representative in interest based bargaining session, where the exclusive representative voiced opposition to the change, does not indicate that the parties negotiated and agreed to the change; p. 11; p. 12, proposed decision. more or view all topics or full text. | 20 | 27120 | 06/26/96 |
| 1151E | Turlock Joint Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Employer's unilateral determination of class size is not unlawful unilateral change where employer's action is consistent with collective bargaining agreement (citations); p. 3, warning letter. more or view all topics or full text. | 20 | 27100 | 05/22/96 |
| 1154E | El Centro School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Once on notice exclusive representative bears burden of clearly communicating request to bargain to the employer. "Not waiving" rights or threatened legal action are insufficient. more or view all topics or full text. | 20 | 27106 | 06/07/96 |
| 1149S | State of California (Department of Corrections) (International Union of Operating Engineers) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Employer change in past practice from employees eating their meal while working to a half hour unpaid lunch break is not an unlawful unilateral change when the change is consistent with the parties collective bargaining agreement; p. 4; p. 3, warning letter. more or view all topics or full text. | 20 | 27082 | 04/30/96 |
| 1141E | Redwoods Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An exclusive representative is free to negotiate a waiver of its right to bargain over certain mandatory subjects of bargaining for a specified contractual period. The waiver must be clear and unmistakable and cover all aspects of the particular matter in question; p. 2. An exclusive representative may waive its right to negotiate about a matter within the scope of representation during the life of an agreement. The only requirement is that such a contractual waiver be "clear and unmistakable"; p. 9, proposed dec. Certain statutory provisions are not within the power of the parties to waive; p. 10, proposed dec. more or view all topics or full text. | 20 | 27048 | 02/28/96 |
| 1138E | Barstow Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A waiver of the right to bargain will not be lightly inferred. Contractual waiver must be shown in clear and unmistakable contract language; p. 13. When contract language is ambiguous, the Board may examine bargaining history for evidence of a conscious abandonment of the right to bargain over a particular subject; p. 13. The clear and explicit meaning of the contract language which states that the district may "contract out work, which may lawfully be contracted for," is that the district has the right to make the decision to contract out a specific area of work without engaging in negotiations with the union over that decision; p. 14. more or view all topics or full text. | 20 | 27044 | 02/20/96 |
| 1106E | Moreno Valley Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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. Contract terms will not justify a unilateral management act on a mandatory subject of bargaining unless the contract expressly or by necessary implication confers such a right; p. 9, proposed dec. Staffing pattern determinations are managerial prerogatives, not subject to negotiations. Such determinations, however, do not include changes of the shifts of individual employees once the initial assignment has been made by the employer. The right to set staffing patterns is not a clear and unmistakable waiver of the right to negotiate shift changes; p. 10, proposed dec. negotiate shift changes; p. 10, proposed dec. more or view all topics or full text. | 19 | 26099 | 05/19/95 |
| 1092E | Marin Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Actual notice to the union was not given by delivery of Board agendas listing salary schedule to the union; pp. 73-75, proposed dec. Proper notice requires an affirmative obligation on the part of the employer to tell the union of proposed changes in negotiable subjects; p. 78, proposed dec. Although it is well established that while a zipper clause may relieve the employer from entertaining union proposals during the life of the contract, it does not cede to the employer the right to make unilateral changes in negotiable matters not covered by the contract (cases omitted); p. 83, proposed dec. more or view all topics or full text. | 19 | 26070 | 03/21/95 |
| 1090E | Norris School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A generally-worded management rights clause will not be construed as a waiver of statutory bargaining rights; p. 19, proposed dec. more or view all topics or full text. | 19 | 26068 | 03/16/95 |
| 1083E | Sierra Joint Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession When the contract is clear and unambiguous on its face, Board does not need to go beyond plain language of the contract to ascertain meaning; p. 11, 12 and 18. Where contract language ambiguous, extrinsic evidence (bargaining history, parties' conduct, etc.) is properly considered by Board to determine the meaning of the contract; p. 11, 12 and 18. more or view all topics or full text. | 19 | 26051 | 02/17/95 |
| 1078E | San Jacinto Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Fact that the District had previously changed starting and ending times, and work schedules of maintenance and operations employees without bargaining does not establish waiver of right to bargain over the District's change in schedule for football games outside normal school hours; p. 23, proposed dec. 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. | 19 | 26036 | 12/22/94 |
| 1077H | University of California (University of California-American Federation of Teachers) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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. The terms of the zipper clause fixed for the life of the agreement those terms and conditions of employment established by past practice and the terms of the contract; p. 36, 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. | 19 | 26035 | 12/16/94 |
| 1072H | Regents of the University of California (University of California-American Federation of Teachers) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract waiver by union is unaffected by the union's unilateral decision to consider the agreement invalid. more or view all topics or full text. | 19 | 26030 | 12/07/94 |
| 1050E | Poway Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Although the district may have utilized only volunteer teachers in the past to supervise student activites, under Marysville Joint Unified School District (1983) PERB Decision No. 314, the district was not precluded from enforcing the terms of the agreement to assign supervision duties to non-volunteers; p. 3, warning letter. An employer is not forever precluded from enforcing its contractual rights although it has not previously enforced them; p. 3, warning letter. more or view all topics or full text. | 18 | 25100 | 06/13/94 |
| 1019E | Apple Valley Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In the face of unambiguous contractual language, a vague and conclusory allegation about the "intention of the parties" unsupported by clear factual allegations is inadequate to state a prima facie case. more or view all topics or full text. | 17 | 24170 | 10/21/93 |
| 0973E | West Covina Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Prior to implementing a proposed change in a negotiable subject, an employer must provide notice to the exclusive representative sufficiently in advance of a firm decision to allow a reasonable amount of time to decide whether to make a demand to negotiate; p. 13. An exclusive representative can be found to have waived the right to bargain where the employer shows that the exclusive representative failed to demand to negotiate, despite having received sufficient notice of the proposed change; p. 14. more or view all topics or full text. | 17 | 24042 | 02/09/93 |
| 0911E | Cloverdale Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver of right to negotiate where discussion of proposed changes did not amount to actual or constructive notice of the District's clear intent to implement a unilateral change in the teachers' schedule. The discussion at the meeting centered on a "tentative" or "potential" schedule for the following year; p. 19. more or view all topics or full text. | 15 | 22179 | 11/20/91 |
| 0861E | Perris Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No unilateral change in health benefit plan where District refused to implement [advisory] recommendation of insurance committee and switch to new plan was done under terms of previously executed agreement with Association which authorized the change in the event the parties could not agree to implement the recommendation. more or view all topics or full text. | 15 | 22018 | 12/20/90 |
| 0860E | Los Angeles Unified School District (United Teachers Los Angeles) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Board affirmed ALJ finding that contract wage rate provision did not apply to particular after-school program which had a distinct academic focus, in addition to a counseling and advising focus; thus, District made unlawful unilateral change when it selected a wage rate for the program; pp. 4-6; pp. 18-20, proposed dec. more or view all topics or full text. | 15 | 22015 | 12/19/90 |
| 0850H | Regents of the University of California (American Federation of State, County and Municipal Employees) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union waived its right to negotiate a change in parking fees because contract permits the change. more or view all topics or full text. | 14 | 21208 | 10/30/90 |
| 0842H | Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Party may bargain over a permissive and nonmandatory subject of bargaining without waiving the right thereafter to take the position the subject is nonmandatory. more or view all topics or full text. | 14 | 21162 | 08/16/90 |
| 0818E | Oakland Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Resolution calling for use of nonvested forfeitures to be used toward employer contributions to annunity plan was consistent with contract, since IRS regulations require that they be used toward future contributions or toward administrative costs and contract provided that administrative costs be paid out of the contributions; pp. 15-20. Fact that District had no previously complied with IRS regulations does justify continued noncompliance; p. 20. more or view all topics or full text. | 14 | 21129 | 06/21/90 |
| 0804E | Contra Costa Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2017) PERB Decision No. 2518, pp. 41-42 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by Los Angeles Unified School District (2017) PERB Decision No. 2518, where the Board held that a broadly worded provision allowing the employer to adopt any policy not in conflict with the collective bargaining agreement does not waive the union’s right to bargain over a new policy within the scope of representation. * * *Union waived right to negotiate staff development by agreeing to a broad management rights/zipper clause which gave the employer the discretion to determine adoption and institution of all past, existing and future policies, procedures, etc., not embodied in contract; pp. 9-10. more or view all topics or full text. | 14 | 21085 | 04/02/90 |
| 0798E | Compton Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No clear, unmistakable evidence of waiver by union where initial communications were made by District agent who neither invited negotiations nor was designated as a management negotiator, and where union was led to believe that District intended to negotiate over student grievance policy; pp. 31-34, proposed dec. more or view all topics or full text. | 14 | 21079 | 03/22/90 |
| 0789E | Beverly Hills Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver by inaction where decision to lay off did not put union on notice of later and separate decision to contract out; p. 9; p. 23, proposed dec. ALJ properly refused to consider untimely contract waiver defense where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavilability of key witness; pp. 13-14; pp. 19-23, proposed dec. more or view all topics or full text. | 14 | 21042 | 01/19/90 |
| 0790E | Compton Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession As District's formulation and distribution of schedule did not amount to the adoption of a final work calendar, District complied with its duty to give union notice and opportunity to bargain. When union rejected offer to negotiate, District was free to implement. more or view all topics or full text. | 14 | 21051 | 02/06/90 |
| 0784E | Compton Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession While broad subject of overtime was addressed in collective bargaining agreement, contract language regarding overtime was too general and imprecise to grant District discretion to authorize and order overtime based on District program needs. District produced no evidence of bargaining history from which one could reasonably interpret the contractual provisions as a waiver of CSEA's right to notice and bargain over changes in overtime pay. more or view all topics or full text. | 14 | 21029 | 12/29/89 |
| 0766E | Cajon Valley Union School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The fact that a party to a collective bargaining agreement has not chosen to enforce its contractual rights in the past, does not mean, ipso facto, it is forever precluded from doing so; p. 4. more or view all topics or full text. | 13 | 20198 | 09/15/89 |
| 0768E | Allan Hancock Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No duty to negotiate decision where contract only required employer to consult with exclusive representative, and no facts alleging past practice requiring employer to negotiate its decision; pp. 5-6, warning letter. more or view all topics or full text. | 13 | 20203 | 09/20/89 |
| 0771H | Regents of the University of California (University of California-American Federation of Teachers) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No refusal to bargain in good faith where employer set courseload level at maximum allowed by the contract and set course load on a campus-wide basis; contract authorized University's actions; p. 51, proposed dec. No refusal to bargain in good faith where employer determined course equivalency standard for freshman writing courses on a campus-wide basis pursuant to plain language of the contract; p. 6. more or view all topics or full text. | 13 | 20209 | 09/28/89 |
| 0756H | California State University (California State Employees Association) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contractual language supported CSU's claim that increase in parking fees did not constitute unlawful unilateral change. more or view all topics or full text. | 13 | 20179 | 08/31/89 |
| 0744E | Calistoga Joint Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession A request to negotiate the decision to reduce hours arising out of a transfer of work is not a waiver of the right to request bargaining on the issue of transfer; pp. 9-10. more or view all topics or full text. | 13 | 20134 | 06/19/89 |
| 0720E | Compton Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver due to association's dilatory conduct where no evidence that subject was fully discussed or consciously explored or that the association consciously yielded its interest. more or view all topics or full text. | 13 | 20057 | 03/01/89 |
| 0684E | Los Rios Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Zipper clause does not allow the employer to make unilateral changes in the status quo. Regardless of the existence of a zipper clause, neither party to collective bargaining agreement has a duty to negotiate over any matter covered by the agreement during its term. Board will examine language of the zipper clause and will give it the breadth the language warrants. more or view all topics or full text. | 12 | 19112 | 06/23/88 |
| 0625E | Fountain Valley Elementary School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Refusal to negotiate not waiver in absence of duty to negotiate; nonmandatory legislation does not alter waiver of right to negotiate matters set by contract. more or view all topics or full text. | 11 | 18115 | 06/23/87 |
| 0595E | Placentia Unified School District * * * OVERRULED IN PART BY The Accelerated Schools (2023) PERB Decision No. 2855 * * * 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *No waiver from failure to assert right to bargain on an earlier occasion; no waiver by abandoning effort to codify in contract existing statutory rights; evidence insufficient to show parties intended contract layoff provision to cover reductions, therefore no waiver. more or view all topics or full text. | 10 | 17181 | 11/04/86 |
| 0565E | Victor Valley Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver because contract language not clear and unmistakable; notice to union official insufficient if merely included as agenda item. more or view all topics or full text. | 10 | 17079 | 04/10/86 |
| 0566E | Modesto City and High School Districts 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Waiver found where union did not demand to bargain despite notice of proposed calendar. Waiver found where union refused to discuss calendar issue at bargaining sessions. more or view all topics or full text. | 10 | 17080 | 04/10/86 |
| 0557E | Nevada Joint Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Agreement with union president did not cover change in salary calculation. more or view all topics or full text. | 10 | 17040 | 12/31/85 |
| 0555E | Butte Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No unilateral change in transfer policy where contract gave employer great flexibility in transferring employees; where no reliable bargain history or evidence of special usage or meaning of term, ordinary definition properly applied, party not precluded from exercising contract rights merely because it hadn't done son previously. more or view all topics or full text. | 10 | 17037 | 12/30/85 |
| 0556E | Stanislaus County Department of Education 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union waived right to bargain effects due by its insistence on bargaining the decision and by ignoring the employer's proposals on effects; waiver must be clear and unmistakable and will not be lightly inferred; no waiver where union made oral requests and parties actually bargained. more or view all topics or full text. | 10 | 17039 | 12/31/85 |
| 0554E | Morgan Hill Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver by agreement of union official where official not acting with actual or apparent authority; waiver is an affirmative defense which is itself waived if not timely raised. more or view all topics or full text. | 10 | 17032 | 12/27/85 |
| 0554Ea | Morgan Hill Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver by failing to request bargaining after a firm decision has already been made. more or view all topics or full text. | 10 | 17071 | 03/20/86 |
| 1214E | Bellflower Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Unilateral change in staffing patterns is dismissed because District's rights clause gives control over this subject to the District. more or view all topics or full text. | 21 | 28126 | 06/30/97 |
| 1215S | State of California (Department of Youth Authority) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In the contract, the union waived its right to negotiate over a decision to change teachers shifts and assign work to teachers during their preparation periods. more or view all topics or full text. | 21 | 28143 | 08/11/97 |
| 0515E | Antioch Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Merit system of personnel administration codified in Education Code does not permit the District to unilaterally set wages/salary structures. more or view all topics or full text. | 9 | 16180 | 08/02/85 |
| 0499E | Los Rios Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Voting procedures for reclassification review board consistent with parties' agreement in negotiations. more or view all topics or full text. | 9 | 16105 | 03/21/85 |
| 0488E | Pleasant Valley School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union's action with regard to earlier reduction in hours no waiver as to later reductions not yet comtemplated; no waiver where union's actions, when viewed in context, constitute adequate demand to bargain; no waive from failure to request bargaining where firm decision already made. more or view all topics or full text. | 9 | 16093 | 02/27/85 |
| 0486E | San Mateo County Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver where contract silent and evidence insufficient to demonstrate waiver based on conduct in negotiations; failed attempt to codify status quo in contract does not constitute waiver of right to negotiate any proposed change in the status quo; contract did not cede to employer the right to take unilateral action. more or view all topics or full text. | 9 | 16084 | 02/13/85 |
| 0487E | Victor Valley Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Employer's action consistent with contract. more or view all topics or full text. | 9 | 16085 | 02/15/85 |
| 0440E | Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Allegation of failure to negotiate by refusal to honor contractual procedure for grievance arbitration fails to state a prima facie case. Contract, which had expired, contained clause precluding arbitrator from having power to render award on grievance occurring after expiration of agreement. R.A. dismissal upheld. more or view all topics or full text. | 9 | 16004 | 11/28/84 |
| 0409E | Fresno County Board of Education and Superintendent of Schools (Nolt) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Exclusive representative ceded to employer the right to reduce lunch period by agreeing to contract provision that teachers were entitled to reduce lunch period by agreeing to contract provision that teachers were entitled to "one duty-free lunch break of at least 30 minutes each day." By this language, the exclusive representative granted employer the right to enforce a 30-minute lunch period if it so chose. It is of no significance that employer did not put reduction into effect for 18 months. Relies on Marysville JtUSD, PERB Dec. No. 314. more or view all topics or full text. | 8 | 15173 | 09/17/84 |
| 0410E | Gonzales Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Charging party did not waive its right to negotiate about school calendar by failing to present specific proposals. Charging party's failure was reasonable given respondent's refusal to acknowledge that it had an obligation to negotiate. more or view all topics or full text. | 8 | 15177 | 09/28/84 |
| 0391E | Goleta Union School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union did not waive its right to negotiate when it made a demand that District rescind its action. Not essential that request to negotiate be specific or made in particular form; p. 21 (citing Newman-Crows Landing (1982) PERB Dec. No. 223). more or view all topics or full text. | 8 | 15134 | 08/01/84 |
| 0374E | Azusa Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession One month delay in presenting proposal did not constitute waiver by union of right to negotiate effects of layoff; pp. 14-15. more or view all topics or full text. | 8 | 15018 | 12/30/83 |
| 0373E | Mt. Diablo Unified School District * * * OVERRULED IN PART by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by Mt. Diablo Unified School District (1984) PERB Decision No. 373b and OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *Although Board will not readily infer waiver of right to negotiate, merely because events arise which were not in the contemplation of the parties during prior negotiations does not mean every contract term can be renegotiated; p. 47. more or view all topics or full text. | 8 | 15017 | 12/30/83 |
| 0372E | Kern Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Association's general demand to bargain effects of layoff insufficient to preserve rights. Failure to present proposals clarifying its position, after District invited it do, so constituted waiver; p. 11. more or view all topics or full text. | 8 | 15016 | 12/29/83 |
| 0360E | Arcohe Union School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union does not waive right to bargain subcontracting where it does not get notice before the subcontracting occurs. Employee member of unit seeing item on board agenda two days before board action is not notice. more or view all topics or full text. | 7 | 14294 | 11/23/83 |
| 0357E | Calexico Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No waiver of right to negotiate where notice of action inadequate to put union on notice of specific action to be taken. No effective notice of action where union representative picked up school agenda a few days before board adoption of unilateral order. Notice of change of position not notice of unilateral action. more or view all topics or full text. | 7 | 14291 | 11/22/83 |
| 0354E | Palo Verde Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Parties contract provided for specified holidays, is clear and unambiguous, and legislative enactment of student holiday did not remove employer's right to refuse to negotiate additional holiday. more or view all topics or full text. | 7 | 14281 | 10/28/83 |
| 0343E | South San Francisco Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract provisions incorporating personnel rules cover layoff procedures constitute waiver of right to negotiate effects of layoff. more or view all topics or full text. | 7 | 14243 | 09/02/83 |
| 0337E | Kern Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *Contract language examined and found not to absolve obligation to negotiate effects of lay off. more or view all topics or full text. | 7 | 14229 | 08/19/83 |
| 0325E | Long Beach Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Failure to request negotiations on impact of managerial decision is fatal to a later charge. Page 4 citing Newman Crows Landing. more or view all topics or full text. | 7 | 14193 | 07/08/83 |
| 0321E | Palo Verde Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contractual silence on matter within scope is not waiver. Employee organization's drop of proposal at negotiation table is not waiver. Union representative's conditioned concession where condition not met is not waiver. Union representatives concession based upon total agreement, where not concluded before change, not waiver. more or view all topics or full text. | 7 | 14182 | 06/20/83 |
| 0313E | Grossmont Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession As the wording of the workload provision was sufficiently clear to establish a "clear and unmistakeable" objective meaning, the Association, by agreeing to these provisions, waived its right to negotiate over the change in the District's assignment of classes; p. 17. Exclusive representative may, by contractual agreement, waive its right to negotiate a change, and the employer is thereby free to make that change; p. 11. more or view all topics or full text. | 7 | 14162 | 05/26/83 |
| 0314E | Marysville Joint Unified School District * * * OVERRULED IN PART by Culver City Employees Association v. City of Culver City (2020) PERB Decision No. 2731-M 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by City of Culver City (2020) PERB Decision No. 2731-M, where the Board held that Marysville involved a contractual waiver defense to a unilateral change allegation, and that, contrary to suggestions in post-Marysville decisions, such a contractual waiver does not survive expiration of the collective bargaining agreement. * * *As clear and unambiguous language of collective bargaining agreement guaranteed employees a duty-free lunch period of no less than 30 minutes each day, District's decision to reduce lunch period to no more than 30 minutes was consistent with the contractual provision; p. 9. more or view all topics or full text. | 7 | 14163 | 05/27/83 |
| 0307E | Delano Joint Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession As Association failed in its communications to indicate that it wished to meet and discuss the District's contemplated layoffs, the Association waived its right to bargain; p. 8. Association waives its right to bargain where it merely protests an employer's contemplated unilateral actions, but makes no meaningful attempt to request negotiations; p. 8. more or view all topics or full text. | 7 | 14146 | 05/05/83 |
| 0300E | Arvin Union School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because association did not have a reasonable opportunity to negotiate prior to the adoption of the policy, Association's failure to protest the adoption of the disciplinary procedures does not constitute a waiver; p. 11. more or view all topics or full text. | 7 | 14119 | 03/30/83 |
| 0286E | Chico Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No violation under Grant Joint Union HSD (1982) PERB Decision No. 196 where sick leave verification requirements during sick out were a reasonable application of the contract's provisions; p. 12. more or view all topics or full text. | 7 | 14077 | 02/22/83 |
| 0269S | State of California (Department of Health Services) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union conduct did not indicate waiver of a reasonable opportunity to bargain merely because union representative acknowledged that district representative was "following orders;" pp. 12-13. Successful assertion of the defense of laches requires a showing that (1) Charging Party unreasonably delayed in asserting its claim, and (2) Charging Party either acquiesced in the act about which it now complains, or Respondent relied to its detriment on charging party's conduct or silences; laches not demonstrated by these facts; p. 13. more or view all topics or full text. | 7 | 14023 | 12/22/82 |
| 0252E | Los Angeles Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession 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. Contract terms will not justify a unilateral management act on a mandatory subject of bargaining unless the contract expressly or by necessary implication confers such a right; p. 10. Purpose of zipper clause is to foreclose further requests to bargain negotiable matters during the life of a contract; it does not cede to the employer the right to make unilateral changes in the status quo; p. 11. The fact that union drops a contract proposal during the course of p. 11. The fact that union drops a contract proposal during the course of Union does not waive its right to negotiate by failing to request negotiations where it had no notice of the intended change before the decision had been firmly made; pp. 16-17. more or view all topics or full text. | 6 | 13241 | 10/18/82 |
| 0236E | Oakland Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Waiver of bargaining rights by a union will not be lightly inferred; it must be clearly conveyed, or demonstrated by behavior waiving a reasonable opportunity to bargain a decision not firmly made; p. 15. Silence by union does not constitute a union's waiver. more or view all topics or full text. | 6 | 13201 | 08/31/82 |
| 0219E | Solano County Community College District * * * OVERRULED IN PART by The Accelerated Schools (2023) PERB Decision No. 2855 * * * 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART ON OTHER GROUNDS by The Accelerated Schools (2023) PERB Decision No. 2855 * * *No "supersession" of Education Code applicable. Nothing in Education Code sections 87002, 87400, 88004 prevents District from negotiating with classified unit over decision to transfer out work of tutoring center specialist and off-campus representatives; pp. 12-15. EERA and the Education Code provisions can be harmonized under the circumstances. more or view all topics or full text. | 6 | 13154 | 06/30/82 |
| 0223E | Newman-Crows Landing Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No violation where exclusive rep made a general demand to bargain over decision to lay off, a managerial prerogative, rather than a specific request to bargain effects of lay-off. A valid request to bargain must signify a desire to negotiate on a subject within scope although it is not essential that the request be made in a particular form; pp. 7-9. more or view all topics or full text. | 6 | 13162 | 06/30/82 |
| 0215E | Barstow Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Education Code sections giving District right to adopt rules regarding manner of proof of illness does not supercede EERA sections 3540. Read together, the sections and EERA supercession section 3543.2 provide that district shall adopt leave verification rules subject to its duty to negotiate any change in working conditions of its employees. more or view all topics or full text. | 6 | 13136 | 06/11/82 |
| 0213E | Delano Union Elementary School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No evidence of waiver of right to bargain on part of union shown; p. 15. more or view all topics or full text. | 6 | 13117 | 04/30/82 |
| 0201E | Anaheim Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Waiver not shown simply because Union did not bargain before July 1 - date District believed it had to act to implement proposed change. Mutual agreement to postpone negotiations until after the July 1 date does not constitute waiver. District did not show "demonstrative behavior [by Union] waiving a reasonable opportunity to bargain over a decision not already firmly made by the employer;" p. 8. more or view all topics or full text. | 6 | 13078 | 03/26/82 |
| 0192E | Victor Valley Joint Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Failure by parties to incorporate contract provision dealing with past practice of calculating salaries does not constitute waiver on part of union where contract is otherwise silent on method of calculation. more or view all topics or full text. | 6 | 13027 | 12/31/81 |
| 0175E | Sutter Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Union did not waive right to negotiate about employer change of work day from five periods to six periods. School district employer gave union no reasonable opportunity to negotiate over the issue. Employer ignored union's two requests to negotiate. more or view all topics or full text. | 5 | 12128 | 10/07/81 |
| 0999S | State of California (Department of Forestry and Fire Protection) 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Absent some form of waiver, the duty to bargain continues during the term of the collective bargaining agreement; pp. 11-12. A waiver clause typically provides that there is no further duty to bargain specified negotiable subjects during the term of the agreement. The purpose of such a clause is to lend stability to the bargaining relationship by limiting the possibility of continuous negotiations; p. 12. Parties are free to seek negotiations on subjects within the scope of representation which are covered by an agreement which does not include a waiver clause; p. 12. In matters involving the fundamental employment relationship, the unique status of the Dills Act as a supersession statute mandates that great deference be given to the rights of employees and their exclusive representatives; p. 16. great deference be given to the rights of employees and their exclusive representatives; p. 16. statutory provisions relating to the employment relationship by agreeing to memorandum of understanding provisions which differ from the specified statutory provisions; p. 17. By designating specific sections of the Government Code as supersedable, the Legislature has provided clear direction of its intent to ensure that the subjects of those sections are appropriate subjects of collective bargaining within the scope of representation; p. 17. more or view all topics or full text. | 17 | 24112 | 06/22/93 |
| 0133E | Jefferson School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Section 3540 does not prohibit negotiation of issues that are covered in the Ed. Code as long as those provisions are not explicitly precluded by the Ed. Code; the exclusion of provisions which mirror the Ed. Code does not violate the supercession provision of EERA. more or view all topics or full text. | 4 | 11117 | 06/19/80 |
| 0116E | Davis Unified School District/New Haven Unified School District/Newark Unified School District/State Center Community College District/Centinela Valley Union High School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession No contract waiver found where union agreed to maintain the status quo for a limited term, but that agreement had expired; pp. 16-17. more or view all topics or full text. | 4 | 11031 | 02/22/80 |
| 0105E | San Francisco Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Board will not readily infer a party has waived its rights; no waiver found where Federation repeated its demand to negotiate until District implemented unilateral change. more or view all topics or full text. | 3 | 10127 | 10/12/79 |
| 0094E | San Mateo County Community College District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession District must show by clear and unmistakable language or demonstrate behavior that union waived right to negotiate; no waiver found as to salary reductions, but as to involuntary leaves and health benefit costs the Board held the Association failed to demand negotiations upon being notified; p. 21. more or view all topics or full text. | 3 | 10080 | 06/08/79 |
| 0919E | Sylvan Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M, where the Board held that a union does not need to demand to bargain effects if the employer does not provide reasonable advance notice of the employer’s decision. * * *No prima facie violation of District's duty to bargain effects where Association receives actual notice of decision and fails to make an adequate demand to bargain. more or view all topics or full text. | 16 | 23017 | 01/07/92 |