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Decision	Description	PERC Vol.	PERC Index	Date
2692M	*City of South Pasadena * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M** 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case * * * Remedial Order VACATED and MODIFIED by City of South Pasadena (2021) PERB Decision No. 2692a-M. * * * To demonstrate that an employer discriminated or retaliated against an employee in violation of the Meyers-Milias-Brown Act (MMBA), a charging party must prove that: (1) the employee exercised rights under the MMBA; (2) the employer had knowledge of the exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the action because of the exercise of those rights. (p. 10.) more or view all topics or full text.	44	131	01/30/20
2740M	County of Merced 1105.07000: CASE PROCESSING PROCEDURES; EVIDENCE; Administrative and Judicial Notice In ruling on requests to take “administrative” or “official” notice, PERB follows the California Evidence Code provisions regarding judicial notice. (Santa Clara County Superior Court (2014) PERB Decision No. 2394-C, p. 16.) After the close of evidence, the Board granted the County’s request to take administrative notice of a County Board of Supervisors resolution imposing its last, best, and final offer (LBFO) as an official act of a subdivision of the state. However, taking such notice provided evidence only that the County imposed its LBFO in June 2019. Administrative notice does not necessarily extend to all the hearsay facts, legal conclusions, and mixed conclusions of fact and law recited in the resolution, such as its recitations that the parties’ reopener negotiations had ended in impasse after factfinding. (Glaski v. Bank of America (2013) 218 Cal.App.4th 1079, 1090 [“Courts can take judicial notice of the existence, content and authenticity of public records and other specified documents, but do not take judicial notice of the truth of the factual matters asserted in those documents.”]) That principle was particularly paramount where the Union disputed that the parties had reached a bona fide impasse. If the County wished to establish that the parties reached a bona fide, good faith impasse, it needed either to ask the ALJ to hold open the record, or to ask the ALJ or the Board to reopen the record, so that it could introduce competent factual evidence. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 900.05000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Post-Impasse An employer’s right to impose terms is dependent on prior good faith negotiations from their inception through exhaustion of statutory or other applicable impasse resolution procedures. (City of Glendale (2020) PERB Decision No. 2694-M, p. 60; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6; Fresno County In-Home Supportive Services Public Authority (2015) PERB Decision No. 2418-M, p. 54.) Prior or contemporaneous unfair practices may interfere with the bargaining process and invalidate any impasse. (Glendale, supra, PERB Decision No. 2694-M, pp. 68-70; Fresno, supra, PERB Decision No. 2418-M, pp. 54-55.) Accordingly, as part of its required showing of a bona fide, good faith impasse, the employer must demonstrate that unfair practices did not infringe on good faith bargaining or otherwise contribute to the parties’ deadlock. (Glendale, supra, PERB Decision No. 2694-M, pp. 68-70; Fresno, supra, PERB Decision No. 2418-M, pp. 54-55.) Because the County failed to rescind its new policy before bargaining with the Union, the County improperly forced the Union to bargain from a disadvantage and made impossible the good faith give-and-take that is the essence of labor relations. Longstanding precedent required that, in order to permit good faith bargaining to occur, the County needed to restore the status quo more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse When there is any doubt as to whether an impasse exists, the party asserting impasse should clarify. (City of Salinas (2018) PERB Order No. Ad-457-M, p. 5.) MMBA section 3505.4 and PERB Regulation 32802, subdivision (a)(2), refer to a written declaration of impasse as the trigger for a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it may become difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it may be difficult for such an employer to assert that it has exhausted its bargaining obligation. The Board did not address in this decision whether there are instances in which a party may rely on an oral declaration of impasse, particularly for purposes other than triggering a union’s deadline to request factfinding under the MMBA. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse A bona fide impasse exists if the parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices. The party asserting impasse bears the burden of proving it, and therefore bears the risk of declaring impasse prematurely when parties were not objectively at impasse at the time. (City of Glendale (2020) PERB Decision No. 2694-M, p. 61; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (Glendale, supra, PERB Decision No. 2694-M, pp. 60-61.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Ibid.) However, both parties must believe they are at the “end of their rope,” which is typically negated if one party displays continuing movement, or if the other party references a deadline for completion of negotiations and acts in accordance with that deadline. (Ibid.) more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General A bona fide impasse exists if the parties’ differences are so substantial and prolonged that further meeting and conferring is futile, despite good faith negotiations that were free from unfair labor practices. The party asserting impasse bears the burden of proving it, and therefore bears the risk of declaring impasse prematurely when parties were not objectively at impasse at the time. (City of Glendale (2020) PERB Decision No. 2694-M, p. 61; City of San Ramon (2018) PERB Decision No. 2571-M, p. 6.) In determining the existence of impasse on a given date, PERB focuses on numerous factors, including: the number and length of negotiation sessions; the extent to which the parties have exchanged information and thoroughly discussed proposals and counterproposals in good faith; and the nature of the unresolved issues and the parties’ discussions of such issues to date. (Glendale, supra, PERB Decision No. 2694-M, pp. 60-61.) Continued movement on minor issues will not prevent a finding of impasse if the parties remain deadlocked on one or more major issues. (Ibid.) However, both parties must believe they are at the “end of their rope,” which is typically negated if one party displays continuing movement, or if the other party references a deadline for completion of negotiations and acts in accordance with that deadline. (Ibid.) more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The County did not establish that Union waived its right to bargain for two independent reasons. First, the County came to a firm decision before providing the Union notice of the proposed change and an opportunity to bargain to agreement or impasse; accordingly, the Union was not obligated to request bargaining, or to accept the County’s offer to meet and confer after the employer has already reached a firm decision. Second, a waiver of bargaining rights must be clear and unmistakable, demonstrating that a party intentionally relinquished its right to bargain. (Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 39 (LAUSD).) Any doubts must be resolved against the party asserting waiver. (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) In this case, the Union did not clearly and unmistakably demonstrate that it intentionally relinquished its right to bargain. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession representation if it can establish as an affirmative defense that an MOU clearly and unambiguously shows the Union waived its right to negotiate over changes to an employment term. (City of Culver City (2020) PERB Decision No. 2731-M, pp. 14-20; Moreno Valley Unified School District (1995) PERB Decision No. 1106, adopting proposed decision at p. 9; Los Angeles Unified School District (1984) PERB Decision No. 407, p. 5; Marysville Joint Unified School District (1983) PERB Decision No. 314, p. 2; Grossmont Union High School District (1983) PERB Decision No. 313, p. 4.) “Public policy disfavors finding a waiver based on inference and places the burden of proof on the party asserting the waiver.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 19.) “[N]ot only must waiver be clearly established, but any doubts must be resolved against the party asserting waiver.” (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) Thus, the County must show that the language is clear and unambiguous as part of its affirmative defense, rather than the Union bearing a burden to show that the language at issue is not clear and unambiguous. The County’s contract defense failed because the MOU was at least ambiguous. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo The parties’ past practice under the contract before the dispute arose is important evidence of their intent. Past practice can be used to establish the status quo from which PERB assesses an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous MOU language. In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted,” but in the latter instance it need not be as definitive. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 22.) The parties’ past practice met the higher standard, as it was “regular and consistent,” as well as “historic and accepted.” Thus, the Union has established a change in past practice, though even if it could not meet that standard, there would still be no question that the County adopted a new policy setting forth detailed changed parameters for assigning mandatory overtime, and applied and enforced its mandatory overtime policy in a new way. Because the Board found that the parties’ past practice met the higher standard of being “regular and consistent” or “historic and accepted,” a fortiori, it was more than strong enough to be a relevant factor in interpreting the MOU for purposes of resolving the County’s MOU-based defense. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 606.15000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Other County acted in bad faith by refusing to meet, despite the Union’s request, apparently based on an incorrect belief that it was sufficient to deliver an ultimatum by e-mail and not even wait for a response to that ultimatum before announcing its new policy. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 606.15000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Other County was not privileged to ignore the Union’s request to meet again, as good faith negotiations must normally occur face-to-face unless both parties mutually agree otherwise. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 9, and adopting proposed decision at pp. 37-38 & 42; City of Selma (2014) PERB Decision No. 2380-M, pp. 14 & 23, and adopting proposed decision at p. 10; Modesto City Schools (1983) PERB Decision No. 291, p. 35.) PERB noted the parties in this matter negotiated well before the COVID-19 pandemic, and the Board did not consider what standards might apply in such unusual circumstances. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (City of San Diego (2015) PERB Decision No. 2464-M, p. 51.) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand The County did not establish that Union waived its right to bargain for two independent reasons. First, the County came to a firm decision before providing the Union notice of the proposed change and an opportunity to bargain to agreement or impasse; accordingly, the Union was not obligated to request bargaining, or to accept the County’s offer to meet and confer after the employer has already reached a firm decision. Second, a waiver of bargaining rights must be clear and unmistakable, demonstrating that a party intentionally relinquished its right to bargain. (Los Angeles Unified School District (2017) PERB Decision No. 2518, p. 39 (LAUSD).) Any doubts must be resolved against the party asserting waiver. (Placentia Unified School District (1986) PERB Decision No. 595, p. 8.) In this case, the Union did not clearly and unmistakably demonstrate that it intentionally relinquished its right to bargain. more or view all topics or full text.	45	29	08/10/20
2740M	County of Merced 601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case A unilateral change to a matter within the scope of representation constitutes a per se violation of the duty to meet and negotiate. (Stockton Unified School District (1980) PERB Decision No. 143, p. 22.) To establish a prima facie case of an unlawful unilateral change, a charging party must prove that: (1) the employer took action to change policy; (2) the change concerns a matter within the scope of representation; (3) the change has a generalized effect or continuing impact on represented employees’ terms or conditions of employment; (4) the employer reached its decision without first providing advance notice of the proposed change to the employees’ union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (City of San Diego (2015) PERB Decision No. 2464-M, p. 51.) Regarding the first element, there are three primary types of policy changes: (1) deviation from the status quo set forth in a written agreement or written policy; (2) a change in established past practice; and (3) a newly created policy or application or enforcement of existing policy in a new way. (Pasadena Area Community College District (2015) PERB Decision No. 2444, p. 12, fn. 6.) more or view all topics or full text.	45	29	08/10/20
	1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.
	1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo A restorative order returning “the parties and affected employees to their respective positions before the unlawful conduct occurred is critical to remedying unilateral change violations, because it prevents the employer from gaining a one sided and unfair advantage in negotiations and thereby ‘forcing employees to talk the employer back to terms previously agreed to.’” [Citation.] While restoration of the status quo ante is a hallmark of most unilateral change remedies [citations], it is not appropriate here given that the parties bargained and subsequently agreed to a new memorandum of understanding (MOU) containing substantially identical schedule and meal period provisions as the expired MOU. The Board found that, by agreeing to certain provisions in the successor MOU, the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
	1202.02000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; Agreement Between. the Parties The Board found that, by agreeing to certain provisions in the successor memorandum of understanding (MOU), the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
	1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest As part of a standard unilateral change remedy, make whole relief is warranted if it is more likely than not that employees suffered a harm. Make whole relief compensates employees for the difference between what they actually earned and what they would have earned, but for the employer’s unlawful conduct. [Citation.] Beyond the practical value of such monetary relief, make whole relief also serves an important policy purpose in ensuring that employees are not punished for vindicating their rights, while also acting as a deterrent against future unlawful conduct. [Citation.] As the ALJ observed, PERB may order backpay even though its measure is imprecise. [Citations.] That was arguably the case here. The employer paid employees for all hours worked at appropriate rates. Nevertheless, harm may be quantified in a number of ways, not only increased workload or reduced pay. Here, the schedule changes resulted in employees’ workdays being extended by one hour. While the employer was authorized to implement the schedule changes during the life of the prior memorandum of understanding (MOU) and after the successor MOU took effect, for the period from November 13, 2017, when the employer implemented the schedule change, to November 27, 2017, when the City Council adopted the successor MOU, the changes were unlawful. The best measure of the value of this time would be an hour’s pay per day. However, the Board did not order such a make whole remedy as the ALJ declined to order back pay and the union did not except to the ALJ’s remedial order. (pp. 26-27.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In this case, because the parties’ memorandum of understanding was expired at the time the employer made the decision to change employees’ schedules, the Board found that the ALJ properly analyzed the employer’s decision as a unilateral change under NLRB v. Katz (1962) 369 U.S. 736, and correctly rejected the employer’s waiver defense. Nothing in the memorandum of understanding suggested that the schedule waiver provision was intended to outlive the contract’s term. (pp. 20-21.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Marysville Joint Unified School District (1983) PERB Decision No. 314 arose in the context of a bilateral agreement and must be limited to that context. There is a separate and narrow line of waiver precedent relating to waivers not arising from a bilateral agreement. Under these cases, the party asserting waiver must show that the other party’s conduct was sufficiently clear to rise to the level of conscious abandonment, typically because the employer has provided proper advance notice of a proposed change and the union has failed to request to meet and confer. [Citations.] This line of cases gave no benefit to the employer here, as it did not provide advance notice to the union. (p. 18.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Despite the narrow holding of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) as a waiver by contract defense, the Board has at times applied the case in an inconsistent manner. For instance, the Board has periodically applied Marysville not as a contract waiver defense but rather as an element necessary for a charging party to establish as part of its prima facie case for a unilateral change, effectively requiring the charging party to prove that a contract did not permit the change at issue. [Citations.] However, more modern Board decisions have returned to treating Marysville as a waiver defense. [Citations.] As part of returning to Marysville’s roots, the Board has held that an employer commits a prima facie unilateral change if it begins to enforce a contract or policy in a new way, a holding that in practice requires the employer to raise Marysville’s contractual waiver doctrine as an affirmative defense. (p. 17.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession The Board issued Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) the day after it issued Grossmont Union High School District (1983) PERB Decision No. 313 (Grossmont), which also dealt with waiver by contract. In Grossmont, the Board held that a union waived its right to bargain about specific changes to work schedules when it agreed to a contract that specified the work schedules. [Citation.] Grossmont helps interpret Marysville. Since the same Board decided Marysville so closely after Grossmont, it is highly unlikely the Board intended Marysville to depart from the Grossmont standard, especially as neither decision distinguishes the other as involving different considerations. (p. 16, fn. 9.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.) more or view all topics or full text.
	608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.