All notes for Subtopic 1402.07000 – Failure to Timely Raise Affirmative Defense

DecisionDescriptionPERC Vol.PERC IndexDate
2525M City of Livermore
1402.7000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.) more or view all topics or full text.
4117305/04/17
1988M City of Burbank
1402.7000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
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
0789E Beverly Hills Unified School District
1402.7000: GENERAL LEGAL PRINCIPLES; WAIVER; 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. more or view all topics or full text.
142104201/19/90
0646E Lake Elsinore School District * * * OVERRULED by State of California (Department of Agriculture) (2002) PERB Decision No. 1473-S
1402.7000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
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. more or view all topics or full text.
121901212/18/87
0554E Morgan Hill Unified School District
1402.7000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Waiver is an affirmative defense which is itself waived if not timely raised. more or view all topics or full text.
101703212/27/85