Decision 1077H – University of California (University of California-American Federation of Teachers)
SF-CE-340-H
Decision Date: December 16, 1994
Decision Type: PERB Decision
Description: UC unilaterally adopted a policy changing employee merit reviews without negotiating.
Disposition: Violation found. UC ordered to withdraw policy and negotiate upon union’s request.
Perc Vol: 19
Perc Index: 26035
Decision Headnotes
602.03000 – Change In Policy
In determining whether employer action repudiates contract, the rules of contract interpretation are used. These include consideration of extrinsic evidence when the contract language is ambigous. The evidence may be received only to establish a meaning to which the language of the contract is reasonably susceptible; p. 29, proposed dec.
608.05000 – Past Practice; Maintenance of Status Quo
In determining whether employer action repudiates contract, the rules of contract interpretation are used. These include consideration of extrinsic evidence when the contract language is ambiguous. The evidence may be received only to establish a meaning to which the language of the contract is reasonably susceptible; p. 29, proposed dec.
608.07000 – 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.
1203.01000 – In General
The Board found that the University was only required to make itself immediately available for immediate negotiations with UC-AFT concerning merit reviews for lecturers. As the contract was silent on this matter, it was not legally obligated to do more; p. 5, proposed dec.
1402.01000 – In General
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. 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.
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
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.
1404.03000 – General Principles of Contract Interpretation
In determining whether employer action repudiates contract, the rules of contract interpretation are used. These include consideration of extrinsic evidence when the contract language is ambiguous. The evidence may be received only to establish a meaning to which the language of the contract is reasonably suseptible; p. 29, proposed dec.