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

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Perc Vol: 19
Perc Index: 26035

Decision Headnotes

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.03000 – Contract Repudiation or Breach

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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
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.

1203.00000 – REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS
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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
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.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
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.