Decision 1568E – Long Beach Community College District * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941

LA-CE-4532-E

Decision Date: December 18, 2003

Decision Type: PERB Decision

 * * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941 * * *

Description:  Union alleged that district violated EERA by subcontracting out all unit work.  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.

Disposition:  Board reversed dismissal and remanded case for issuance of complaint.

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Perc Vol: 28
Perc Index: 33

Decision Headnotes

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

* * * OVERRULED IN PART by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.01000 – In General

* * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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. Each contract clause must be read in conjunction with phrases surrounding it and harmonized as a whole.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

* * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.02000 – Union’s Waiver of Employee or Organizational Rights

* * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.01000 – In General

* * * OVERRULED IN PART by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.03000 – Computation of Six-Month Period

* * * OVERRULED IN PART ON OTHER GROUNDS by Long Beach Community College District (2008) PERB Decision No. 1941. * * *

It is the Association’s knowledge that the District intended to unilaterally contract out work that triggers the statute of limitations.

1000.00000 – SCOPE OF REPRESENTATION
1000.01000 – In General; Test for Subjects Not Specifically Enumerated

* * * OVERRULED IN PART ON OTHER GROUNDS by Long Beach Community College District (2008) PERB Decision No. 1941. * * *

It is the Association’s knowledge that the District intended to unilaterally contract out work that triggers the statute of limitations.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

* * * OVERRULED IN PART ON OTHER GROUNDS by Long Beach Community College District (2008) PERB Decision No. 1941. * * *

Regional attorney may consider affirmative defenses if they raise questions of law.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.02000 – Investigation of Charge

* * * OVERRULED IN PART ON OTHER GROUNDS by Long Beach Community College District (2008) PERB Decision No. 1941. * * *

Regional attorney may consider affirmative defenses if they raise questions of law.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

* * * OVERRULED IN PART ON OTHER GROUNDS by Long Beach Community College District (2008) PERB Decision No. 1941. * * *

Regional attorney may consider affirmative defenses if they raise questions of law.

1404.00000 – GENERAL LEGAL PRINCIPLES; CONTRACT ENFORCEMENT/ INTERPRETATION
1404.03000 – General Principles of Contract Interpretation

* * * OVERRULED by Long Beach Community College District (2008) PERB Decision No. 1941, where the Board held that while contracting out is generally within the scope of bargaining, union clearly and unmistakably waived its right to bargain over a decision to contract out police services by agreeing to the management rights clause including the right to contract out work. * * *

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. Each contract clause must be read in conjunction with phrases surrounding it and harmonized as a whole.