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

DecisionDescriptionPERC Vol.PERC IndexDate
2861M Imperial Irrigation District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
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.) more or view all topics or full text.
4716305/08/23
2834E Butte-Glenn Community College District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Employer waived request that PERB order the parties to negotiate over the cost of compiling requested information when it neither raised the alleged undue burden contemporaneously nor offered to bargain with union about it. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden].) (pp. 17, 19.) more or view all topics or full text.
476810/07/22
2757M City and County of San Francisco
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Failure to file an answer constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing, and precludes the assertion of affirmative defenses. (PERB Regulation 32644, subdivision (c); Regents of the University of California (2018) PERB Decision No. 2601-H, p. 14.) Thus, a respondent’s failure to establish good cause to excuse a late answer may result in a default judgment. (pp. 8, 15, fn. 5.) more or view all topics or full text.
458403/03/21
A475E Bellflower Unified School District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
“PERB recognizes and adheres to the policy that litigation shall not be had in a piecemeal fashion, so that when a party has a particular claim or defense in a pending cause of action, it must assert it in those proceedings, or it will be waived.” [Citation.] Since the employer never raised the issue of an allegedly indispensable party during the proceedings leading to the Board’s previous decision and order, it forfeited that claim and was barred from raising it during compliance proceedings. (p. 13.) more or view all topics or full text.
446409/13/19
2525M City of Livermore
1402.07000: 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
1402.07000: 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
1402.07000: 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
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
* * * 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. more or view all topics or full text.
121901212/18/87
0554E Morgan Hill Unified School District
1402.07000: 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