GENERAL LEGAL PRINCIPLES; WAIVER – Failure to Timely Raise Affirmative Defense

Single Topic for Decision 0646E

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* * * OVERRULED IN PART by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S, where the Board held that pre-arbitration deferral is discretionary, not jurisdictional. * * *

Where the Board lacks jurisdiction under EERA section 3541.5, it must dismiss the matter on own motion, regardless of whether jurisdictional issue was raised by parties or whether parties acquiesced or stipulated that PERB has jurisdiction. Lack of jurisdiction cannot be overcome by established practices or customs of the Board, nor by Board regulation. Pre-arbitration deferral under EERA is not an affirmative defense subject to a party's waiver.