Decision 2546S – State of California (Department of Forestry and Fire Protection)

An established policy may be embodied in the terms of the parties’ MOU or collective bargaining agreement. Although PERB lacks authority to enforce contracts, it may interpret contracts when necessary to resolve an alleged unfair practice. In doing so, the Board applies traditional rules of contract interpretation.

The mere fact that an employer has chosen not to enforce its contractual rights does not mean it is forever precluded from doing so. Where an employer has discretion under a contract provision, it does not forfeit that discretion by failing to exercise it.

The mere fact that an employer has chosen not to enforce its contractual rights does not mean it is forever precluded from doing so. Where an employer has discretion under a contract provision, it does not forfeit that discretion by failing to exercise it.

Where contract language is ambiguous, Board will examine extrinsic evidence, including bargaining history and past practice.

Applying traditional rules of contract interpretation, the Board first determines whether the language is clear and unambiguous. If it is not, the Board will examine extrinsic evidence of the language’s meaning, including bargaining history and past practice.

Board found it significant that exclusive representative did not update its own publication regarding the disciplinary process to publicize its belief that new contract language secured a new right in the disciplinary process.