Plaintiffs, International Brotherhood of Electrical Workers, Local Union 1245 (union) and some of its members, appeal from a judgment denying their petition for writ of mandate and complaint for injunctive relief. They seek mandate to compel defendant, the City of Gridley (city), to meet and confer with the union regarding wages, hours and other terms and conditions of employment and an injunction requiring the city to reinstate union members' employment until or unless they are discharged for cause pursuant to adequate pretermination notice and hearing.
This case presents two issues: (1) May a local government, consistent with the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq., hereinafter MMBA or the act),
In January 1974, at a time when there was no recognized employee organization representing its employees, the City of Gridley adopted two resolutions (Nos. 2 and 3) to govern relations with its employees. Resolution No. 2 established, inter alia, a procedure by which city employees could select an exclusive bargaining representative to meet and confer with the city.
In March 1974, the union was elected as the city employees' exclusive representative and was formally recognized by the city in April. Negotiations between the union and the city resulted in a three-year agreement effective July 1, 1975. The agreement did not contain a no-strike clause, stating only that "the City and Union recognize their mutual obligation for the continuous rendition and availability of ... service." Nor did the agreement discuss strike sanctions. It did provide that it did not "abrogate or reduce the scope of any present plan or rule, which is not specifically covered...." Notice of resolutions Nos. 2 and 3 had been mailed to the union prior to its selection by the employees as their bargaining representative.
On Friday, September 22, however, 18 employees of the city's public works, fire and finance departments went on strike, apparently with the knowledge and encouragement of the union. With the exception of two employees on vacation, these employees constituted the entire staffs of the affected departments. The city immediately notified the union that it considered the strike illegal. On Friday afternoon, the city's municipal employee relations officer mailed a notice to the striking workers demanding that they return to work at their next regular shift assignment or be discharged; the next regular shift for all but one of the employees was Monday, September 25. On Friday afternoon, the officer also notified the union that he had revoked its recognition as a bargaining representative.
Saturday morning, the city council met in emergency session and, after learning that the one striking employee who had been assigned to work that day had failed to report for duty, immediately dismissed all 18 striking employees, rescinding the employee relations officer's previous notice and demand. On Sunday, the union notified the city that all employees would return to work on Monday, but the city refused to accept them.
The following day petitioners filed the instant action seeking (1) a writ of mandate ordering the city to meet and confer with the union and (2) an injunction compelling the city to reinstate the employees. After the union and employees exhausted the available administrative remedies, the trial court ruled in favor of the city, concluding that the city was authorized by its resolutions to revoke the union's recognized status and to dismiss the employees summarily without any predismissal procedures. By the time of the trial court's ruling, 17 of the 18 employees had been reinstated.
The MMBA neither authorizes nor prohibits in express terms revocation of recognition for any particular cause, let alone as a sanction for strikes by public employees.
Enacted in 1968, the MMBA furnishes only a "sketchy and frequently vague framework of employer-employee relations for California's local governmental agencies." (Organization of Deputy Sheriffs v. County of San Mateo (1975) 48 Cal.App.3d 331, 336 [122 Cal.Rptr. 210].) A product of political compromise, the provisions of the act are confusing, and, at times, contradictory. Unlike the Educational Employment Relations Act, enacted in 1975, the MMBA does not establish an administrative agency such as the Public Employee Relations Board to regulate local labor relations. Rather, the act leaves to local government agencies the power to establish and enforce rules governing relations with their own employees. (See generally Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act in the Courts (1972) 23 Hastings L.J. 719; Comment, The Collective Bargaining Process at the Municipal Level Lingers in its Chrysalis Stage (1974) 14 Santa Clara Law. 397; Ross, Implementation of the Meyers-Milias-Brown Act by California's Counties and Larger Cities, supra, 8 Cal.Pub.Emp.Rel. No. 6.)
The extent of local government powers under the act was a subject of early dispute, spurred by language in the preamble which, if read literally, might have suggested that the statute was not intended to be binding on local governments that chose to adopt rules and regulations contrary to its provisions.
Notwithstanding its otherwise "sketchy" provisions, the act contains strong protection for the rights of public employees to join and participate in the activities of employee organizations, and for the rights of those organizations to represent employees' interests with public agencies. These protections are included in the preamble of the act, which declares that the act provides "a uniform basis for recognizing the right of public employees to join organizations of their own choice and be represented by such organizations in their employment relationships with public agencies" (§ 3500; italics added), and in section 3502, which states that "[e]xcept as otherwise provided by the Legislature, public employees shall have the right to form, join, and participate in the activities of employee organizations of their own choosing for the purpose of representation on all matters of employer-employee relations." (Italics added.)
These provisions suggest that the power to enact restrictions on the right of employees to be represented by organizations of their own choosing is reserved to the state Legislature. Nevertheless, other language in the act indicates that a local government's obligations to a union are largely predicated on the union's status as a "recognized" employee organization
The central flaw in the city's interpretation of section 3507 is that it ignores the importance of the employees' right to join and participate in the activities of employee organizations "of their own choosing." As noted, this is not an unlimited right; section 3502 is specifically limited by the phrase, "[e]xcept as otherwise provided by the Legislature." However, we find nothing in the act to suggest that an employer may adopt substantive regulations authorizing it to terminate its statutory meet and confer obligation unilaterally whenever a recognized union engages in conduct the employer deems unacceptable. On the contrary, the structure and history of the act suggest that the only limitations on the right of employees to participate in the organization of their choice contemplated by the Legislature as
Section 3501, subdivision (b) of the act defines "recognized employee organization" as "an employee organization which has been formally acknowledged by the public agency as an employee organization that represents employees of the public agency." This language suggests that the Legislature equated recognition with representation of employees.
The city's action was also inconsistent with another stated purpose of the MMBA, to "promote full communication between public employers and their employees...." (§ 3500.) By revoking the union's recognized status at the outset of the strike, the city extinguished the major conduit of communication between the employees and the city at the precise moment that the need for communication was greatest.
The city cites a number of National Labor Relations Board (NLRB) cases as evidence that its revocation of the union's status was "reasonable" despite the apparent conflict with the purposes of the act and the absence of statutory authority.
Carborundum does not support the city's position. It involves violence, not an illegal work stoppage. Even so, it is the only case in which the NLRB has revoked the certification of a labor union because it has engaged in violence.
Even so, on review, the First Circuit raised serious questions about the board's action. (540 F.2d at pp. 12-13.)
There appears to be little question that revocation of union recognition as a sanction for strike activity would fail the tests suggested by the First Circuit in Carborundum. The concern underlying the NLRB's actions in Carborundum and in the later appeal discussing those actions, was not to impose a sanction for union misconduct but to protect the rights of the workers themselves. By engaging in conduct that physically "preclude[d] the maintenance of normal collective bargaining relationships" (540 F.2d at p. 13), the union had breached its obligation to represent the interests of its constituents. Moreover, the court of appeals noted that the union had attempted to "coerce the employees in the unit to refrain from seeking the Union's decertification." (Id., at p. 13.) Thus, the only method available to the NLRB to protect the collective bargaining rights of the employees was, in the words of the board, to withdraw certification until "the employees are able to demonstrate their desires anew ... and the ... Union proves its majority among those employees through the Board's election process." (219 N.L.R.B. at p. 864.)
The problem in the strike context is quite different. The city does not contend that the revocation of a union's recognition after it has instigated a strike is intended to protect the workers' interest in the bargaining process. To be blunt, the action is intended only to punish the workers by stripping them of their representative. This is directly contrary to both the NLRA's and MMBA's protection of employees' rights to select their spokesmen.
Nor can the city contend that it is without other remedies in the strike context. In the past, numerous sanctions which do not interfere with workers' legitimate rights under the MMBA have been imposed in response to illegal strikes or strikes in violation of contract. (See, e.g., City and County of San Francisco v. Evankovich (1977) 69 Cal.App.3d 41 [137 Cal.Rptr. 883] [injunctive relief]; Almond v. County of Sacramento (1969) 276 Cal.App.2d 32 [80 Cal.Rptr. 518] [dismissal of striking employees]. See generally Taggart, Legality of Strikes in California Public Education: A Management Perspective (1978) 18 Santa Clara L.Rev. 895, 901-907; Robins, Penalties in Strikes Against a Public Employer, in Proceedings of NYU Twenty-Second Annual Conference on Labor (1969) p. 315; Jackson, Public Employer Countermeasures to Union Concerted Activity: An Analysis of Alternatives (1979) 8 J.L. & Ed. 73.) If the Legislature believes that an
The city also directs our attention to Independent Metal Workers Union, Local No. 1 and Local No. 2 (Hughes Tool Co.) (1964) 147 N.L.R.B. 1573, in which the NLRB withdrew its certification of a union because it had engaged in race discrimination, as well as Bekins Moving and Storage Co. (1974) 211 N.L.R.B. 138, in which the board determined that it was obliged to withhold certification of racially discriminatory unions. These cases are easily distinguishable, for they were based on the principles of Shelley v. Kraemer (1948) 334 U.S. 1 [92 L.Ed. 1161, 68 S.Ct. 836, 3 A.L.R.2d 441] and Steele v. L. & N.R. Co. (1944) 323 U.S. 192 [89 L.Ed. 173, 65 S.Ct. 226] (affirmative duty to represent all employees in a unit without discrimination). No similar issues are raised here.
Moreover, in Handy Andy Inc. (1977) 228 N.L.R.B. 447, the board explicitly overruled Bekins, supra, 211 N.L.R.B. 138, explaining that Shelley does not apply to the board's certification procedures because there is no "nexus between the Board's certification and any discrimination undertaken by a union which has received such a certification." In reaching this conclusion, the board reasoned that it "does not ... by certifying a labor organization, place its imprimatur on all the organization's activity, lawful or otherwise. On the contrary, a certification is neither more nor less than an acknowledgement that a majority of the employees in an appropriate bargaining unit have selected the union as their exclusive bargaining representative. [Fn. omitted.] The choice of representative is made by the employees, and may not be exercised by this Board...." (228 N.L.R.B. at p. 450, italics added.)
Thus, far from supporting the city's argument that localities have the power to revoke recognition of unions despite the lack of statutory authorization,
This is not to say, of course, that under the MMBA revocation of recognition would necessarily be inappropriate in all situations. Since we are not faced with facts at all comparable to Carborundum, we have no occasion to determine whether revocation would be permissible in such a case.
Based upon the above discussion, we conclude that the city's revocation of the union's recognized status as majority representative was impermissible under the MMBA.
In Skelly v. State Personnel Board (1975) 15 Cal.3d 194 [124 Cal.Rptr. 14, 539 P.2d 774], we considered the procedural due process safeguards that must be afforded a permanent public employee prior to termination of employment. After reviewing the applicable state and federal decisions, particularly Arnett v. Kennedy (1974) 416 U.S. 134 [40 L.Ed.2d 15, 94 S.Ct. 1633], we concluded that "[a]s a minimum ... preremoval safeguards must include notice of the proposed action, the reasons therefor, a copy of the charges and materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline." (15 Cal.3d at p. 215.)
There is no question that all of the employees terminated by the city had a property interest in their continued employment. Although in the absence of any applicable local ordinance or resolution these employees would "hold office during the pleasure of the city council" (§ 36506), here the city had adopted personnel rules which provided, inter alia, that "[t]he City Council may discharge an employee in the classified service at any time but if the probationary period is completed, the discharge must be for a stated cause." (Rule XIV, § 2, italics added.)
The city also argues that, even if the employees had a property right in their continued employment, a hearing was unnecessary because "[i]t is not disputed that the employees engaged in a strike." (Cf. Codd v. Velger (1977) 429 U.S. 624, 626-627 [51 L.Ed.2d 92, 96, 97 S.Ct. 882].) Even if all the employees had conceded their participation in the strike prior to their termination, the city had discretion regarding the appropriate sanction to impose. Rule XV, section 1 provided that "[t]he extent of disciplinary action shall be commensurate with the offense" and that "the employee's prior employment history may be considered as pertinent in the determination." Resolution No. 3 provided, inter alia, that "participation by an employee in a strike ... shall subject the employee to disciplinary action, up to and including discharge." Thus, at the very least, a hearing was required to determine the nature and extent of the appropriate disciplinary action. (Compare Dixon v. Love (1977) 431 U.S. 105 [52 L.Ed.2d 172, 97 S.Ct. 1723] [post-license revocation hearing sufficient where revocation or suspension "largely automatic" after conviction of certain traffic offenses within
Alternatively, the city contends that in emergencies Skelly permits dismissal of permanent employees without a prior hearing, and suggests that the strike constituted such an emergency. We need not consider whether some emergencies justify dispensing with predismissal safeguards for, even assuming the strike constituted an emergency, the city fails to explain how dismissing all of its striking employees without a hearing would alleviate the emergency. Indeed, the record here suggests that the city's haste in firing its employees only prolonged the "emergency" after the employees had offered to return.
Finally, the city argues that the strike "constituted a constructive resignation thereby relieving [it] from any obligations [under Skelly.]" This contention is frivolous. Considering that the workers were absent for just one day, and spent that day picketing in front of the city hall, the city could not have reasonably concluded that the workers had abandoned their positions. Nor has the city suggested that city or state rules permitted automatic termination of employees absent for an extended period, let alone a single day. (Cf. Armistead v. State Personnel Bd. (1981) 124 Cal.App.3d 61 [177 Cal.Rptr. 7] [state statute providing automatic resignation for absence without leave of five days]; Willson v. State Personnel Bd. (1980) 113 Cal.App.3d 312 [169 Cal.Rptr. 823] [same statute]; Baker v. Wadsworth (1970) 6 Cal.App.3d 253 [85 Cal.Rptr. 880] [city rule providing that employee absent seven consecutive days has resigned].)
Although we conclude that the city improperly denied the employees' rights to pretermination hearings, the remedy requested by the union, reinstatement, is not appropriate. (See Barber v. State Personnel Bd. (1976) 18 Cal.3d 395, 402 [134 Cal.Rptr. 206, 556 P.2d 306]; Kirkpatrick v. Civil Service Com. (1978) 77 Cal.App.3d 940, 945 [144 Cal.Rptr. 51].) In any event, it appears that all but one of the affected employees have been rehired. Because the record contains no specifics regarding (1) the period during which the rehired employees were out of work and (2) the post-termination procedures, if any, afforded to employee Knox,
Public employee strikes are illegal. They cannot and should not be condoned. To permit, for example, the firemen of the City of Gridley to instigate a strike is to permit them to hold hostage to their demands the very lives and property of the citizens of Gridley. My colleagues should forthrightly, clearly, and unmistakably acknowledge this. (See San Diego Teacher's Assn. v. Superior Court (1979) 24 Cal.3d 1, 15-18 [154 Cal.Rptr. 893, 593 P.2d 838], dis. opn.) It follows that the employees of the public works, fire and finance departments of the City of Gridley were acting outside the law when they struck. It is with this underlying principle in mind that I concur insofar as it may appear that the record is inadequate to determine whether the City of Gridley's failure to afford its employees a pretermination hearing violated its own rule allowing dismissal "for stated cause" thereby resulting in prejudice to some or all of those employees. Accordingly, remand to flesh out the record on those issues and to provide any appropriate relief appears warranted.
I respectfully dissent, however, from the majority's attempt to rewrite the Meyers-Milias-Brown Act (Gov. Code, § 3500 et seq.; hereinafter the MMBA or the act) with respect to revocation for cause of a union's formal recognition. The purpose of the majority's redrafting, presumably, is better to achieve what it perceives to have been the goals of the act. Whether the majority's law is a "better" one, of course, is beside the point. We are under a constant admonition well expressed by Justice Cardozo: "We do not pause to consider whether a statute differently conceived and framed would yield results more consonant with fairness and reason. We take the statute as we find it." (Anderson v. Wilson (1933) 289 U.S. 20, 27 [77 L.Ed. 1004, 1010, 54 S.Ct. 417].)
The MMBA decribes its purpose in this context "to promote full communication between public employers and their employees by providing a reasonable method of resolving disputes regarding wages, hours, and other terms and conditions of employment between public employers and public employee organizations.... Nothing contained herein shall be deemed to supersede ... rules of local public agencies ... which provide for other methods of administering employer-employee relations nor is it intended that this chapter [embodying the MMBA] be binding upon those public agencies which provide procedures for the administration of employer-employee
As a matter of first impression, it could have been argued that in enacting the MMBA, the Legislature simply provided one "reasonable method" of resolving local public employer-employee disputes, while clearly emphasizing that "other methods" employed by local jurisdictions to resolve those disputes were not to be superseded. Further, in offering local public agencies the option of adopting "procedures" in accordance with the MMBA, it could be noted that the Legislature stipulated that any such agency which chose to adopt MMBA procedures was not to be bound by provisions in the act which otherwise might appear mandatory in the local implementation of those procedures. Apparently, however, we are at least committed to the proposition that local regulations in this area must be "consistent with the purposes of the MMBA." (Los Angeles County Civil Service Com. v. Superior Court (1978) 23 Cal.3d 55, 63 [151 Cal.Rptr. 547, 588 P.2d 249].)
Nonetheless, in my opinion, that modest requirement of consistency with the purposes of the MMBA is expanded beyond recognition by the majority's construction of the act here. By stretching to the breaking point the legislative guidelines which the MMBA affixed to the vessel of local public agencies' employer-employee relations, the majority comes perilously close to setting it adrift in the uncertain seas of public policy. However well-intentioned, this judicial interference with the legislative will misconceives our role in the scheme of things.
Prior to the union's designation as a "recognized employee organization" by the City of Gridley in April 1974, the city adopted two relevant resolutions governing relations with its employees. Resolution No. 2 provided the mechanism for the employees' selection of their representative organization and the city's formal recognition of that organization. Resolution No. 3 provided, inter alia, for the suspension or revocation of that recognition if a recognized employee organization encouraged or condoned a strike. The union was fully aware of those rules and, indeed, obtained its own "recognition" pursuant to them. Subsequently, according to the undisputed findings of the trial court, the union engaged in the strike activity which was directly prohibited by resolution No. 3.
The city's revocation of the union's recognition thus was expressly authorized by the city's rules. In addition, the trial court expressly found that the city's exercise of that authority here was justified by the facts adduced at trial demonstrating that the union did, in fact, encourage or condone the strike of the city's public works, fire and finance department employees.
Further, assuming that the MMBA was intended both to supersede any inconsistent local rules governing employee relations and to bind local entities which chose to adopt procedures identified in the act, that legislation requires no different result here. To the contrary, it is clear that the MMBA contemplates the enactment of local regulations to cover those areas of employer-employee relations which are not specifically covered by the act, such as revocation of a union's recognition for appropriate cause. In my view, the city's resolution No. 3 conforms to that expectation.
The majority apparently freely acknowledges each of the following propositions, which together ineluctably lead, in my opinion, to the conclusion that the city's resolution is valid, even when that resolution is measured by the standards of the MMBA, to wit: that (1) "the act leaves to local government agencies the power to establish and enforce rules governing relations with their own employees" (ante, p. 197); (2) a local government's obligations to a union depend upon recognition of the union by that government (see Gov. Code, §§ 3503, 3505; ante, p. 198 and fn. 6); (3) the act specifically provides that a local "public agency may adopt reasonable rules and regulations ... [which] may include provisions for ... recognition of employee organizations ..." and that such an agency is enjoined only from unreasonably withholding recognition of an employee organization (Gov. Code, § 3507, italics added; ante, p. 199); and (4) the act neither authorizes nor prohibits a local public agency's revocation of a union's recognition for strike activity (ante, p. 199). Indeed, with respect to the last point, the majority frankly concedes that the Legislature chose not to deal with the question of revocation of recognition at all (ante, p. 199), presumably for the same reason it is seen as having left the matter of recognition to local regulation — lack of any legislative consensus. (See ante, p. 200, fn. 8.)
Even under the majority's interpretation of the MMBA as preemptive of inconsistent local regulation, then, the act's failure to deal with revocation, together with its express general and specific authorization of local public agencies to adopt and enforce their own employee relations rules, strongly suggests to me that the revocation of recognition for cause is a prime area for exercise of local regulatory power under the act. Apparently, however, in pursuing the majority's premises to their logical conclusion, we presume too much. Rather, we are counseled to measure the city's regulation governing revocation of recognition for strike activity by what the majority
Beyond observing the obvious — that the majority's selection of its "guiding principle" ignores the express purpose and intent of the MMBA as codified in the very legislation itself — I also note that there is a wide gap in the majority's reasoning between its "principle" and its conclusion invalidating resolution No. 3. For, although my colleagues first candidly acknowledge that there is no necessary connection between "the Legislature's determination that recognition must be based on employee choice" and the question, under the act, "whether a local government has the power to revoke recognition for other reasons" (ante, p. 201), the majority then simply ignores that clear distinction in apparent deference to its newly discovered principle: Apparently, nothing more than inconsistency with the "guiding principle of ... employee choice" kills the city's resolution No. 3 and its revocation of the union's recognition pursuant thereto. (See ante, p. 201.)
The majority's alternative attack on resolution No. 3 on the ground of "unreasonableness" seems to me equally unfounded. The threat of revocation of a union's recognition for encouraging or condoning an illegal strike impresses me as a sound means of achieving the goals of the MMBA. While it is clearly in the interest of the employees of the city to afford themselves an opportunity to be represented at the "meet and confer" table by an organization of their choice, it is no less in the interest of the citizens of the city that essential governmental functions continue while those discussions take place. Further, it must be remembered that the MMBA creates no neutral board to provide prompt adjudication of "unfair labor practices" and thus to forestall prolonged interruption of city services while differences are being resolved. Resolution No. 3 is a reasonable means of keeping the parties both at the "meet and confer" table and at work, thus furthering both the act's goal "to promote full communication between public employers and their employees ..." (Gov. Code, § 3500) and the public interest. Contrary to the majority's perception (see ante, p. 201), it was not the city which severed the "major conduit" of information between employer and employees; it was the union which extinguished the last flickering flame of communication between the two by promoting the illegal strike and mandating invocation of resolution No. 3 to deal with the crisis in public affairs which was triggered by the strike.
Nor can the city's revocation of the union's recognition for illegal activity be considered "unreasonable" per se in view of the statutory and decisional approval of such sanctions in other contexts of which the majority is aware.
In brief, the majority attempts to substitute a consistent statutory framework for one it perceives as "sketchy and frequently vague." While that goal may be commendable, in my view the majority goes too far with its renovations, "remodeling" an edifice which the Legislature never erected, presumably because of a lack of legislative consensus to do so.
Justice Frankfurter put the guiding interpretive principle well: "[N]o one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature.... A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation." (Frankfurter, The Reading of Statutes, in Of Law and Men (Elman edit. 1956) p. 53.)
Except as indicated heretofore, I would discharge the writ.
Despite the lack of statutory authorization, a number of local governments have apparently adopted revocation of recognition as a sanction for union strike activity. (See Ross, Implementation of the Meyers-Milias-Brown Act by California's Counties and Larger Cities (Mar. 1971) 8 Cal.Pub.Emp.Rel. No. 6 [listing 13 counties and cities permitting revocation of recognition as a sanction for strike]; Hospital Workers Strike, Union Recognition Revoked (Dec. 1981) 51 Cal.Pub.Emp.Rel. No. 29; Strikers Replaced in Hollister Hospital Strike (Sept. 1981) 50 Cal.Pub.Emp.Rel. No. 29 [union recognition revoked].)
While we do not consider whether Boeing would be persuasive authority in a case where it was applicable, we hasten to emphasize that dismissal of employees is impermissible if its purpose is to intimidate, restrain, coerce or discriminate against those employees because of the exercise of their right to participate in an employee organization. (§ 3506.)
As under the NLRA, an agreement that thwarts the policies or purposes of the act will not be enforced. (See City of Hayward v. United Public Employees (1976) 54 Cal.App.3d 761 [126 Cal.Rptr. 710]; J.I. Case Co. v. Labor Board (1944) 321 U.S. 332, 337 [88 L.Ed. 762, 767, 64 S.Ct. 576].) However, under the NLRA, certain rights guaranteed by the act may be waived if the contract manifests a "clear and unmistakable" waiver (see Timken Roller Bearing Company v. N.L.R.B. (6th Cir.1963) 325 F.2d 746, 751, cert. den. (1964) 376 U.S. 971 [12 L.Ed.2d 85, 84 S.Ct. 1135]; Beacon Journal Pub. Co. v. N.L.R.B. (6th Cir.1968) 401 F.2d 366, 367-368) or there is evidence that the waiver was fully bargained-for. (Jacobs Manufacturing Co. (1951) 94 N.L.R.B. 1214, enforced National Labor Relations Board v. Jacobs Mfg. Co. (2d Cir.1952) 196 F.2d 680.) We have no occasion to consider whether the right involved here may be bargained away, for the general provision in the memorandum of understanding stating that it did not "abrogate ... any rule," is insufficiently precise to constitute a valid waiver, and the city has failed to direct us to any evidence in the record suggesting that the matter was bargained over, or even discussed, in negotiations leading to the memorandum of understanding. (See generally Morris, The Developing Labor Law (1971) at pp. 462-469.)