Decision 0554E – Morgan Hill Unified School District

SF-CE-844

Decision Date: December 27, 1985

Decision Type: PERB Decision

View Full Text (PDF)

Perc Vol: 10
Perc Index: 17032

Decision Headnotes

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.07000 – Failure to Timely Raise Affirmative Defense

Waiver is an affirmative defense which is itself waived if not timely raised.

1400.00000 – GENERAL LEGAL PRINCIPLES; AGENCY
1400.03000 – Union Responsibility

Acquiescence not imputed from actions of union official where it was clear he was not acting in official capacity.

1205.00000 – REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS
1205.07000 – Restoration of Status Quo

Restoration of status quo delayed until end of school year, due to potential disruption.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

Deference given to ALJ's finding that testimony too self-serving and confused to be credible and record provides no reason to disturb that finding.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

The Board will not consider sua sponte a potential affirmative defense which was not raised by the respondent nor addressed by the ALJ; the Board will raise an issue sua sponte only if necessary to correct a serious mistake of law.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

Self-serving and confused testimony not credited.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.07000 – Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession

No waiver by agreement of union official where official not acting with actual or apparent authority; waiver is an affirmative defense which is itself waived if not timely raised.

608.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES
608.05000 – Past Practice; Maintenance of Status Quo

Evidence limited to very actions in dispute does not establish a past practice.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.06000 – Change in Past Practice

Where contract silent, it is appropriate to look to bargaining history or past practice; where a matter was covered by a previous contract and the new contract is silent, an inference is raised that the policy embodied in the old contract continues to be the existing practice.

202.00000 – PARTIES; DEFINITIONS; EMPLOYEE ORGANIZATIONS
202.04000 – Agents (See also 1400)

Acquiescence not imputed from actions of union official where it was clear he was not acting in official capacity.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.01000 – In General

No waiver by agreement of union official where official not acting with actual or apparent authority.