FF-676 - Public Employment Relations Board

efore the Panel. The Union bases this assertion on the fact that it signed a MOU with
the District on October 11, 2012, modifying specified plan benefits only after the
District agreed to remove the following language from the MOU at the reque~t of the
Union:
"This agreement shall be considered non-precedence setting and in no way
relinquishes the right of either party to negotiate in the area of Health and Welfare.
This agreement has no effect on any other portion of the District's benefit plan."
Essentially, the Union argues that, by agreeing to remove this proposed language, the
District .waived its right to negotiate any other aspect of the Health and Welfare
benefit, including premiuni caps and eligibility thresholds.
Notwithstanding its contention that the District waived its right to negotiate on this
issue, the Union indicated its willingness to agree to the District's proposed
contribution rates for 2012-13, but only via a side letter or MOU. The Union also
asserts that the District has a practice of underfunding the Health and Welfare plan to
the benefit of the District's general fund which, if continued, could lead to employees
having to pay out of pocket towards their medical insurance coverage. Finally 1 the
Union asserts that, becaus~ the District has en~ into a MOU with ASTA
permitting a reopener until June 13, 2013, ASTA could negotiate a better contribution
rate than the Union would have should premium rates increase in the meantime.
Panel Discussion/Recommendation- Before addressing the merits of the Parties'
positions, the Pane~ must decide if there is merit to Union's assertion that the District
waived its right to raise these Health and Welfare issues before the Panel. It has long
been the law under EERA and other labor relations laws applicable in both the public
and private sectors that a bargaining waiver must be clear and unmistakable. In its
post hearing brief, the District cited several cases supporting this well established
legal principle. Conversely, other than its bare assertion of waiver, the Union
presented no legal authority for the proposition that the District waived its right to
negotiate under the circumstances present in this case. Accordingly t it is the
conclusion of the Panel that the District did not waive its right to negotiate the issues
addressed in its proposals llllder Article 2 of the CBA.
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