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socrateaser, Lawyer
Category: California Employment Law
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Experience:  Retired (mostly)
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If an employer ignores a clause under a union contract with

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If an employer ignores a clause under a union contract with respect to one employee for many years, does that clause become void?  My college employer (part-time) is required to offer me 6 units a semester, but in an emergency can offer me 9 units.  I have had 9 units for more than 15 years.  Now the college would like to take me down to 6  on the grounds that 6 units is all they are required to offer.


This issue is more of a contract law question than one of employment law. The real issue is whether or not the employment contract was impliedly modified by the parties respective conduct towards each other.

"Before a contract modifying a written contract can be implied, the conduct of the parties according to the findings of the trial court must be inconsistent with the written contract so as to warrant the conclusion that the parties intended to modify the written contract. " Garrison v. XXXXX XXXXX & Sons (1944) 25 Cal.2d 473.

Your facts suggest a long history of the employer ignoring its own contract. This suggests that the employer consented to modify the contract based upon actual conduct, and that you continued employment in reliance upon that consent.

However, if the union contract contains a "no modification except in writing" provision, then that provision would probably control the outcome of the issue, regardless of whether or not the employer repeatedly modified its contractual rights in favor of the employee.

Civil Code 1698 provides that a written contract may be modified by an oral contract supported by consideration, except as otherwise provided in the written contract. This suggests that a "no modification except in writing" provision would be absolute. However, Subsection (d) provides that "waiver of a provision of a written contract" can overcome the written prohibition of modification except in writing.

The botXXXXX XXXXXne here is that you could probably fight this, but not without the union's help. You are effectively asking the union to try to enforce a contractual waiver against the employer, and that is a pretty complex and expensive legal action, in the event that the employer simply refuses to bend.

Please let me know if I can be of further assistance.

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