All notes for Subtopic 608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

DecisionDescriptionPERC Vol.PERC IndexDate
2694M * * * JUDICIAL APPEAL PENDING * * * City of Glendale
608.7000: 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.
02/03/20
2691M * * * JUDICIAL APPEAL PENDING * * * City and County of San Francisco
608.7000: 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.
01/17/20
2684E Modoc County Office of Education
608.7000: 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.
11/27/19
2615M County of Kern
608.7000: 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.
4310912/21/18
2599E San Bernardino Community College District
608.7000: 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.
438512/05/18
2599E San Bernardino Community College District
608.7000: 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.
438512/05/18
2544E Bellflower Unified School District
608.7000: 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.
427012/15/17
2544E Bellflower Unified School District
608.7000: 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.
427012/15/17
2544E Bellflower Unified School District
608.7000: 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.
427012/15/17
2544E Bellflower Unified School District
608.7000: 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.
427012/15/17
2568S * * * JUDICIAL APPEAL PENDING * * * State of California (Department of State Hospitals) (California Association of Psychiatric Technicians)
608.7000: 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.
43306/12/18
2518E Los Angeles Unified School District
608.7000: 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.
4114603/06/17
2518E Los Angeles Unified School District
608.7000: 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.
4114603/06/17
2518E Los Angeles Unified School District
608.7000: 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.
4114603/06/17
2464M City of San Diego * * * Decision upheld on appeal to the California Supreme Court (8/2/2018); limited review of remedial order on remand. * * *
608.7000: 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.
4010812/29/15
2321M County of Santa Clara
608.7000: 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.
383007/25/13
2443M City of Milpitas
608.7000: 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.
403607/29/15
2388M City of Palo Alto * * * SUPERCEDED by City of Palo Alto (2017) PERB Decision No. 2388a-M
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
An agency may raise affirmative defenses to a complaint alleging that the agency violated the MMBA by failing or refusing to consult in good faith, including the defense that the charging party waived its consultation right under MMBA section 3507. An exclusive representative may waive its right to bargain over a matter within the scope of representation. Waiver is an affirmative defense, is disfavored and must be clear and unmistakable. An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith. more or view all topics or full text.
392508/06/14
2313E Rio Hondo Community College District
608.7000: 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.
03/21/13
2300H Regents of the University of California
608.7000: 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.
12/20/12
2351M City of Sacramento
608.7000: 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.
3810412/24/13
2296M City of Long Beach
608.7000: 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.
12/04/12
2227M County of Ventura (Office of Agricultural Commissioner)
608.7000: 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.
369612/21/11
2262E Fairfield-Suisun Unified School District
608.7000: 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.
3617605/08/12
2143M Omnitrans
608.7000: 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.
3417111/18/10
1876Ha Trustees of the California State University
608.7000: 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.
337304/15/09
2097M County of Riverside * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
344902/10/10
2055M Metropolitan Water District of Southern California
608.7000: 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.
3314408/26/09
2044M County of Sacramento
608.7000: 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.
3312606/30/09
2045M County of Sacramento
608.7000: 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.
3312706/30/09
2043M County of Sacramento
608.7000: 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.
3312206/30/09
2002E Long Beach Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2014) PERB Decision No. 2359
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
333601/30/09
1960M South Placer Fire Protection District
608.7000: 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.
329606/10/08
1988M City of Burbank
608.7000: 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.
331111/25/08
1926H Trustees of the California State University
608.7000: 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.
3115210/31/07
1910M County of Ventura
608.7000: 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.
3111406/21/07
1895E Newark Unified School District
608.7000: 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.
317803/27/07
1822E Santee Elementary School District
608.7000: 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.
307202/22/06
1758S State of California (Board of Prison Terms)
608.7000: 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.
2910303/24/05
1729E Berkeley Unified School District
608.7000: 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.
294512/21/04
1724M City of Modesto
608.7000: 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.
293612/15/04
1704M Golden Empire Transit District
608.7000: 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.
29711/08/04
1682E Desert Sands Unified School District
608.7000: 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.
2824108/25/04
1674E Fresno County Office of Education
608.7000: 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.
2821908/19/04
1508E San Marcos Unified School District
608.7000: 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.
272701/16/03
1635H Trustees of the California State University (San Marcos)
608.7000: 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.
2815806/04/04
1568E Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Union may waive right to bargain about contracting out unit work. However, such a contractual waiver will not be construed solely from a broadly based management-rights clause. Any waiver of a right to bargain over a negotiable contracting out decision must be “clear and unmistakable.” The “clear and unmistakable” standard is a high one and mandated by the Board’s previous findings that there is a strong public policy against finding waivers based on inferences. A waiver of an exclusive representative’s right to bargain will never be lightly inferred. In cases where the alleged waiver is exceptional in “breadth or severity,” the “clear and unmistakable” standard must be stringently applied. The burden of proof for establishing an affirmative defense of waiver rests exclusively with the District. Board held that contract language giving management right to “contract out work,” when read in context did not constitute a clear and unmistakable waiver without extrinsic evidence; Barstow Unified School District (1996) PERB Decision No. 1138 is overruled. more or view all topics or full text.
283312/18/03
1545M Diablo Water District
608.7000: 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.
2711407/29/03
1633E Fullerton Joint Union School District
608.7000: 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.
2815505/19/04
1501E Los Angeles Unified School District
608.7000: 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.
27410/31/02
1534E Colton Joint Unified School District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
279406/23/03
1471E State Center Community College District
608.7000: 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.
263302712/12/01
1467E San Diego Community College District
608.7000: 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.
263301411/28/01
1440E Lucia Mar Unified School District
608.7000: 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.
253207305/24/01
1391S State of California (Department of Corrections)
608.7000: 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.
243111206/26/00
1392S State of California (Department of Corrections)
608.7000: 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.
243111306/26/00
1390S State of California (Department of Corrections)
608.7000: 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.
243111106/26/00
1347S State of California (Department of Motor Vehicles)
608.7000: 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.
233016309/02/99
1344S State of California (Department of Veterans Affairs)
608.7000: 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.
233015408/19/99
1346S State of California (Employment Development Department)
608.7000: 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.
233016409/02/99
1313S State of California (Department of Personnel Administration)
608.7000: 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.
233005501/29/99
1320E Ocean View School District
608.7000: 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.
233008003/22/99
1296S State of California (Department of Personnel Admin)
608.7000: 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.
233000910/22/98
1287E Antelope Valley Union High School District
608.7000: 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.
222916809/25/98
1286E Oak Park Unified School District
608.7000: 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.
222916109/24/98
1271H Regents of the University of California (Federated University Police Officer’s Association)
608.7000: 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.
222911406/30/98
1270E San Bernardino City Unified School District * * * OVERRULED IN PART by Contra Costa Community College District (2019) PERB Decision No. 2652
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
222911306/22/98
1259E Fall River Joint Unified School District
608.7000: 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.
222908204/08/98
1255H Regents of the University of California (California Nurses Association)
608.7000: 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.
222906603/20/98
1206E San Ysidro School District (California School Employees Association and Its San Ysidro Chapter #154))
608.7000: 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.
212812206/23/97
1201S State of California (Department of Corrections)
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
212810706/02/97
1189H Regents of the University of California (Woods, et al.)
608.7000: 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.
212806603/19/97
1186E Hacienda La Puente Unified School District
608.7000: 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.
212805602/27/97
1184E Hacienda La Puente Unified School District
608.7000: 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.
212805302/21/97
1181E Los Angeles Unified School District (Service Employees International Union Local 99)
608.7000: 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.
212802512/10/96
1163E Arcata Elementary School District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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 dec. more or view all topics or full text.
202712006/26/96
1151E Turlock Joint Union High School District
608.7000: 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.
202710005/22/96
1154E El Centro School District
608.7000: 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.
202710606/07/96
1149S State of California (Department of Corrections) (International Union of Operating Engineers)
608.7000: 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.
202708204/30/96
1141E Redwoods Community College District
608.7000: 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.
202704802/28/96
1138E Barstow Unified School District
608.7000: 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.
202704402/20/96
1106E Moreno Valley Unified School District
608.7000: 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.
192609905/19/95
1092E Marin Community College District
608.7000: 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.
192607003/21/95
1090E Norris School District
608.7000: 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.
192606803/16/95
1083E Sierra Joint Union High School District
608.7000: 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.
192605102/17/95
1078E San Jacinto Unified School District
608.7000: 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.
192603612/22/94
1077H University of California (University of California-American Federation of Teachers)
608.7000: 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.
192603512/16/94
1072H Regents of the University of California (University of California-American Federation of Teachers)
608.7000: 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.
192603012/07/94
1050E Poway Unified School District
608.7000: 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.
182510006/13/94
1019E Apple Valley Unified School District
608.7000: 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.
172417010/21/93
0973E West Covina Unified School District
608.7000: 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.
172404202/09/93
0911E Cloverdale Unified School District
608.7000: 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.
152217911/20/91
0861E Perris Union High School District
608.7000: 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.
152201812/20/90
0860E Los Angeles Unified School District (United Teachers Los Angeles)
608.7000: 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.
152201512/19/90
0850H Regents of the University of California (American Federation of State, County and Municipal Employees)
608.7000: 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.
142120810/30/90
0842H Regents of the University of California (Davis, Los Angeles, Santa Barbara and San Diego)
608.7000: 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.
142118909/27/90
0834E Chula Vista City School District
608.7000: 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.
142116208/16/90
0818E Oakland Unified School District
608.7000: 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.
142112906/21/90
0804E Contra Costa Community College District * * * OVERRULED IN PART by Los Angeles Unified School District (2017) PERB Decision No. 2518, pp. 41-42
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
142108504/02/90
0798E Compton Community College District
608.7000: 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.
142107903/22/90
0789E Beverly Hills Unified School District
608.7000: 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.
142104201/19/90
0790E Compton Community College District
608.7000: 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.
142105102/06/90
0784E Compton Unified School District
608.7000: 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.
142102912/29/89
0766E Cajon Valley Union School District
608.7000: 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.
132019809/15/89
0768E Allan Hancock Community College District
608.7000: 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.
132020309/20/89
0771H Regents of the University of California (University of California-American Federation of Teachers)
608.7000: 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.
132020909/28/89
0756H California State University (California State Employees Association)
608.7000: 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.
132017908/31/89
0744E Calistoga Joint Unified School District
608.7000: 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.
132013406/19/89
0720E Compton Community College District
608.7000: 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.
132005703/01/89
0684E Los Rios Community College District
608.7000: 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.
121911206/23/88
0625E Fountain Valley Elementary School District
608.7000: 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.
111811506/23/87
0595E Placentia Unified School District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
101718111/04/86
0565E Victor Valley Union High School District
608.7000: 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.
101707904/10/86
0566E Modesto City and High School Districts
608.7000: 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.
101708004/10/86
0557E Nevada Joint Union High School District
608.7000: 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.
101704012/31/85
0555E Butte Community College District
608.7000: 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.
101703712/30/85
0556E Stanislaus County Department of Education
608.7000: 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.
101703912/31/85
0554E Morgan Hill Unified School District
608.7000: 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.
101703212/27/85
0554Ea Morgan Hill Unified School District
608.7000: 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.
101707103/20/86
1214E Bellflower Unified School District
608.7000: 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.
212812606/30/97
1215S State of California (Department of Youth Authority)
608.7000: 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.
212814308/11/97
0515E Antioch Unified School District
608.7000: 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.
91618008/02/85
0499E Los Rios Community College District
608.7000: 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.
91610503/21/85
0488E Pleasant Valley School District
608.7000: 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.
91609302/27/85
0486E San Mateo County Community College District
608.7000: 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.
91608402/13/85
0487E Victor Valley Union High School District
608.7000: 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.
91608502/15/85
0440E Los Angeles Unified School District
608.7000: 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.
91600411/28/84
0409E Fresno County Board of Education and Superintendent of Schools (Nolt)
608.7000: 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.
81517309/17/84
0410E Gonzales Union High School District
608.7000: 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.
81517709/28/84
0391E Goleta Union School District
608.7000: 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.
81513408/01/84
0374E Azusa Unified School District
608.7000: 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.
81501812/30/83
0373E Mt. Diablo Unified School District  * * * REVERSED IN PART BY Mt. Diablo Unified School District (1984) PERB Decision No. 373b
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
81501712/30/83
0372E Kern Community College District
608.7000: 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.
81501612/29/83
0360E Arcohe Union School District
608.7000: 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.
71429411/23/83
0357E Calexico Unified School District
608.7000: 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.
71429111/22/83
0354E Palo Verde Unified School District
608.7000: 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.
71428110/28/83
0343E South San Francisco Unified School District
608.7000: 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.
71424309/02/83
0337E Kern Community College District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Contract language examined and found not to absolve obligation to negotiate effects of lay off. more or view all topics or full text.
71422908/19/83
0325E Long Beach Unified School District
608.7000: 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.
71419307/08/83
0321E Palo Verde Unified School District
608.7000: 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.
71418206/20/83
0313E Grossmont Union High School District
608.7000: 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.
71416205/26/83
0314E Marysville Joint Unified School District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
71416305/27/83
0307E Delano Joint Union High School District
608.7000: 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.
71414605/05/83
0300E Arvin Union School District
608.7000: 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.
71411903/30/83
0286E Chico Unified School District
608.7000: 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.
71407702/22/83
0269S State of California (Department of Health Services)
608.7000: 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.
71402312/22/82
0252E Los Angeles Community College District
608.7000: 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.
61324110/18/82
0236E Oakland Unified School District
608.7000: 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.
61320108/31/82
0219E Solano County Community College District
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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 circum- stances. more or view all topics or full text.
61315406/30/82
0223E Newman-Crows Landing Unified School District
608.7000: 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.
61316206/30/82
0215E Barstow Unified School District
608.7000: 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.
61313606/11/82
0213E Delano Union Elementary School District
608.7000: 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.
61311704/30/82
0201E Anaheim Union High School District
608.7000: 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.
61307803/26/82
0192E Victor Valley Joint Union High School District
608.7000: 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.
61302712/31/81
0175E Sutter Union High School District
608.7000: 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.
51212810/07/81
0999S State of California (Department of Forestry and Fire Protection)
608.7000: 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.
172411206/22/93
0133E Jefferson School District
608.7000: 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.
41111706/19/80
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
608.7000: 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.
41103102/22/80
0105E San Francisco Community College District
608.7000: 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.
31012710/12/79
0094E San Mateo County Community College District
608.7000: 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.
31008006/08/79
0919E Sylvan Union Elementary School District * * * OVERRULED IN PART by County of Santa Clara (2013) PERB Decision No. 2321-M
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
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.
162301701/07/92