Decision 0789E – Beverly Hills Unified School District
LA-CE-2725
Decision Date: January 19, 1990
Decision Type: PERB Decision
Perc Vol: 14
Perc Index: 21042
Decision Headnotes
1000.02026 – Contracting Out
Contracting out of former duties of laid off unit member negotiable, as decision based primarily, if not exclusively, by labor costs and decision amenable to bargaining; pp. 14-15, proposed dec. Fact that no additional funds given to contractor for provision of new services does not change conclusion that unit work was contracted out; p. 13.
1503.02000 – Regulations Considered (By Number)
32644 - Requirement that statement of affirmative defenses be included in answer serves to assure a fair litigation process, particularly since PERB procedures do not provide for a formal discovery process; p. 14.
602.02000 – Prior Notice and Opportunity to Bargain
Decision to lay off did not put union on notice of later and separate decision to contract out; pp. 9-10.
602.06000 – Change in Past Practice
Contracting out of former duties of laid off unit member unlawful since it constituted unilateral change in "quantity and kind" of subcontracting; pp. 15-17. Board declines to extend Eureka analysis (transfer of work) to subcontracting, because Oakland analysis strikes proper balance between employer flexibility and prevention of severe changes having a significant effect on the unit; p. 17.
608.05000 – Past Practice; Maintenance of Status Quo
Contracting out of former duties of laid off unit member not consistent with past practice since it constituted a change in the "quantity and kind" of subcontracting; pp. 15-17. Evidence of some contracting out in a different educational program not sufficient to demonstrate general policy of allowing employer to contract out; pp. 16-17, fn. 7.
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
No waiver by inaction where decision to lay off did not put union on notice of later and separate decision to contract out; p. 9; p. 23, proposed dec. ALJ properly refused to consider untimely contract waiver defense where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavilability of key witness; pp. 13-14; pp. 19-23, proposed dec.
1103.05000 – Answer or Other Defense/Waiver
ALJ properly refused to consider contract waiver defense not raised until end of hearing where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavailability of key witness; pp. 13-14; pp. 19-23, proposed dec. Denial of answer that unilateral action took place without notice and opportunity to bargain did not put charging party on notice of contract waiver defense; p. 13. Requirement of Reg. 32644 that statement of affirmative defenses be included in answer serves to assure a fair litigation process, particularly since PERB procedures do not provide for a formal discovery process; p. 14.
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses
ALJ properly refused to consider contract waiver defense not raised until end of hearing where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavailability of key witness; pp. 13-14; pp. 19-23, proposed dec. Den Denial in answer that unilateral action took place without notice and opportunity to bargain did not put charging party on notice of contract waiver defense; p. 13. Requirement of Reg. 32644 that statement of affirmative defenses be included in answer serves to assure a fair litigation process, particularly since PERB procedures do not provide for a formal discovery process; p. 14.
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions
Deference given to credibility determinations of ALJs, in recognition that, by virtue of witnessing the live testimony, ALJ's are in a much better position to accurately make such determinations; p. 8.
1201.02000 – Reinstatement
Reinstatement and back pay inappropriate where contracting out decision separate from earlier lawful decision to eliminate educational program; status quo ante would have been elimination of the unit work, so bargaining order sufficient to make charging party whole; even if unit position had not been eliminated, no evidence that incumbent temporary employee would have been rehired for the succeeding year; pp. 18-20.
1205.07000 – Restoration of Status Quo
Due to potential of disruption in peer counseling program, restoration of status quo ante delayed until end of school year; pp. 20-21.
1402.07000 – Failure to Timely Raise Affirmative Defense
ALJ properly refused to consider contract waiver defense not raised until end of hearing where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavailability of key witness; pp. 13-14, pp. 19-23, proposed dec. Denial in answer that unilateral action took place without notice and opportunity to bargain did not put charging party on notice of contract waiver defense; p. 13. Requirement of Reg. 32644 that statement of affirmative defenses be included in answer serves to assure a fair litigation process, particularly since PERB procedures do not provide for a formal discovery process; p. 14.
1402.05000 – By Delaying or Failing to Request Negotiations
No waiver by inaction where decision to lay off did not put union on notice of later and separate decision to contract out; p. 9; p. 23, proposed dec.