Park City Education Ass'n v. Board of Education , 244 Utah Adv. Rep. 39 ( 1994 )

ORME, Associate Presiding Judge

(concurring in part and concurring in the result in part):

I concur in the court’s opinion except as to the section entitled “Separate Contracts.” That section deals with whether public employees have the right to bargain individually with public employers even though a collective bargaining agreement is in effect. I see no need to reach this issue.

The sound result reached by the majority can readily be premised solely on the ground alluded to in footnote 7 of the main opinion. Whether or not a public employee is entitled to contract individually and waive certain rights obtained by the employee association in its collective bargaining agreement, no such waiver occurred in this cáse. The Master Contract between the PCEA and the Board specifically accorded health insurance benefits to all full-time, half-time, or part-time teachers subsequently hired. Hadden and Schulthess were hired as half-time teachers and thus entitled to benefits under the Master Agreement. As a matter of public policy as well as sound contract interpretation, any waiver of such rights would have to be intentional, explicit, and unambiguous rather than being left for inference. See Hunter v. Hunter, 669 P.2d 430, 432 (Utah 1983). I would require such a waiver to be expressed in the individual employment contract, to specifically reference the collective bargaining agreement, and to clearly state the employee’s recognition of rights or benefits available thereunder and his or her decision to waive those rights or benefits. No such thing happened here. In contrast to waiving their rights, both employees consistently disputed the Board’s attempt to deprive them of their health benefits.

Accordingly, I join the majority in reversing the trial court’s decision depriving Had-den and Sehulthess of health benefits. • However, I do so based not on their legal inability to separately contract with their employer, but upon the fact that it has not been shown that they intended to contract outside the collective bargaining arrangement and waive important benefits otherwise available to them.