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

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The Board concluded that the District’s briefing operated as a waiver, albeit one limited in scope. Accordingly, the Board found it appropriate to order the District to compensate each affected employee for at least 274 hours for each week in sequestration, less any hours equivalent it already paid to employees during their sequestration period(s). The Board’s reasons were multiple. First, in its only exception related to the ALJ’s proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration week is appropriate if the Board finds a bargaining obligation. The District thereby waived any argument that our remedial order should mandate payment for less than 274 weekly hours. The District compounded this waiver when it failed to file a response to IBEW’s cross-exceptions or a reply to IBEW’s response. In compliance, therefore, the District may not put on evidence in support of liability for less than the 274 hours per week ordered. (pp. 64-65.)