All notes for Subtopic 1103.05000 – Answer or Other Defense/Waiver

DecisionDescriptionPERC Vol.PERC IndexDate
2715M Eastern Municipal Water District
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text.
05/13/20
2601H Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299)
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Where the respondent has failed even to file any answer, it likewise waives not only its affirmative defenses, but also any specific or general denial it might have asserted, unless it is granted leave to file a late answer and have the untimeliness excused for good cause. (PERB Reg. 32136.) Moreover, PERB Regulation 32644 provides that, “[i]f the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” (PERB Reg. 32644, subd. (c).) Although the language of the regulation appears to be discretionary, when read together with the language of subdivision (b) of 32644 regarding the contents of the answer, the implication is clear that a respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge. That is, without an answer, there can be no general or specific denial of the allegations in the complaint, nor any affirmative defenses. more or view all topics or full text.
438812/10/18
2541M City of Calexico
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Respondent’s admission of allegation in the complaint is conclusive and removes it from the issues in controversy. more or view all topics or full text.
425310/20/17
2568S * * * JUDICIAL APPEAL PENDING * * * State of California (Department of State Hospitals) (California Association of Psychiatric Technicians)
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
An employer waives its affirmative defense of contractual waiver by not raising the defense in its answer or moving to amend the answer before the hearing. (pp. 13-14) more or view all topics or full text.
43306/12/18
2453E Cabrillo Community College District
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Because the function of a Board agent investigating a charge is not to weigh evidence, determine credibility or make findings of fact, it is generally not appropriate at this stage of the proceedings to determine the employer’s true motive for taking adverse action. An employer’s affirmative defense should be considered at the charge-processing stage of unfair practice proceedings only if raised in a verified and properly served position statement, and only if the asserted defense rests on factual allegations that do not contradict those included in the charge, and which the charging party does not dispute. more or view all topics or full text.
405709/17/15
2357E Claremont Unified School District
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Deferral to arbitration is an affirmative defense which is waived, if not timely raised in the respondent’s answer. more or view all topics or full text.
3812802/21/14
1988M City of Burbank
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
Employer waived its affirmative defense of deferral to arbitration by not raising defense in its answer or moving to amend answer at hearing to include defense. Thus, ALJ could not address the defense in proposed decision nor could the Board address the defense on appeal. more or view all topics or full text.
331111/25/08
1971M City of Torrance
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
A defense that the other party to negotiations engaged in conditional bargaining is in the nature of an affirmative defense because it essentially alleges an unfair practice. Union did not raise employer’s conditional bargaining as a defense in its answer nor did it move to amend the answer at hearing to include the defense. ALJ properly declined to address the conditional bargaining defense in the proposed decision. more or view all topics or full text.
3212608/21/08
1225E Sonoma County Office of Education
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver
PERB Regulation 32644 imposes on a respondent the duty to set forth any affirmative defense in its answer; An affirmative defense not raised in the answer will not be considered by the Administrative Law Judge; p. 10, proposed dec. more or view all topics or full text.
222900511/04/97
0789E Beverly Hills Unified School District
1103.5000: CASE PROCESSING PROCEDURES; COMPLAINT; 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. more or view all topics or full text.
142104201/19/90