Decision 1313S – State of California (Department of Personnel Administration)
SA-CE-947-S
Decision Date: January 29, 1999
Decision Type: PERB Decision
Description: Both parties filed exceptions to Board agent’s proposed decision dismissing unfair practice charge and complaint against the State alleging unilateral change in union leave policy and interference of protected rights.
Disposition: Dismissed. Union had not proffered sufficient evidence that the State violated the oms Act.
Perc Vol: 23
Perc Index: 30055
Decision Headnotes
503.15000 – Other
Employer's strict application of contract provision cannot be considered discrimination.
505.11000 – Legitimate Business Purpose/Business Necessity
Employer's strict application of contract provision cannot be considered discrimination.
505.13000 – Other
Employer's strict application of contract provision cannot be considered discrimination.
608.07000 – 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.
1402.05000 – By Delaying or Failing to Request Negotiations
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.
1404.01000 – In General
In interpreting contractual provisions, it is unnecessary to look beyond the plain language of the contract when that language is clear and unambiguous, citing Marysville Joint Unified School District; p. 3. When contract language is found to be ambiguous, the Board looks to bargaining history and the past practice of the parties to ascertain the meaning of the language; p. 3. The pertinent contract language in this case is susceptible to differing interpretations and therefore cannot be considered clear and unambiguous. As a result, the bargaining history and the practice of the parties must be reviewed to ascertain the meaning of the provision; p. 4.