Decision 1138E – Barstow Unified School District
Decision Date: February 20, 1996
Decision Type: PERB Decision
Description: District unilaterally contracted out pupil transportation services without negotiating.
Disposition: Dismissed. No violation found under contract waiver provision.
Perc Vol: 20
Perc Index: 27044
601.03000 – Decision vs Effects Bargaining
While under the terms of the contract the district had no obligation to negotiate with the union over the decision to contract out, the effects of that decision on matters within the scope of representation are negotiable; p. 17.
608.06000 – Management-Rights Clause; Management Prerogative
Under the terms of a broad management rights clause "the employer may not be required to bargain about some changes upon which, in the absence of such clause, he might otherwise be compelled to bargain"; p. 12.
608.07000 – 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.
1000.02026 – Contracting Out
The Board has held that when an employer's decision to contract out work turns upon labor costs, the decision is within the scope of representation; p. 11.
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses
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.
1404.03000 – General Principles of Contract Interpretation
The Board follows the California Civil Code in the interpretation of contractual language including whether contract language constitutes a waiver of the right to bargain. 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 rules of contract interpretation require that the intent of the parties is to be ascertained from the contract language itself, if it is clear and explicit; and an interpretation which gives a reasonable, lawful and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or of no effect, citing Witkin; p. 15.