Decision 0789E – Beverly Hills Unified School District

LA-CE-2725

Decision Date: January 19, 1990

Decision Type: PERB Decision

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Perc Vol: 14
Perc Index: 21042

Decision Headnotes

1000.00000 – SCOPE OF REPRESENTATION
1000.02026 – Contracting Out

Contracting out of former duties of laid off unit member negotiable, as decision based primarily, if not exclusively, by labor costs and decision amenable to bargaining; pp. 14-15, proposed dec. Fact that no additional funds given to contractor for provision of new services does not change conclusion that unit work was contracted out; p. 13.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

32644 - Requirement 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.

602.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION)
602.02000 – Prior Notice and Opportunity to Bargain

Decision to lay off did not put union on notice of later and separate decision to contract out; pp. 9-10.

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

Contracting out of former duties of laid off unit member unlawful since it constituted unilateral change in "quantity and kind" of subcontracting; pp. 15-17. Board declines to extend Eureka analysis (transfer of work) to subcontracting, because Oakland analysis strikes proper balance between employer flexibility and prevention of severe changes having a significant effect on the unit; p. 17.

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

Contracting out of former duties of laid off unit member not consistent with past practice since it constituted a change in the "quantity and kind" of subcontracting; pp. 15-17. Evidence of some contracting out in a different educational program not sufficient to demonstrate general policy of allowing employer to contract out; pp. 16-17, fn. 7.

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 inaction where decision to lay off did not put union on notice of later and separate decision to contract out; p. 9; p. 23, proposed dec. ALJ properly refused to consider untimely contract waiver defense where respondent had earlier stated the contract was not at issue and where charging party was prejudiced by unavilability of key witness; pp. 13-14; pp. 19-23, proposed dec.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.05000 – 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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

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. Den 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.

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 credibility determinations of ALJs, in recognition that, by virtue of witnessing the live testimony, ALJ's are in a much better position to accurately make such determinations; p. 8.

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.02000 – Reinstatement

Reinstatement and back pay inappropriate where contracting out decision separate from earlier lawful decision to eliminate educational program; status quo ante would have been elimination of the unit work, so bargaining order sufficient to make charging party whole; even if unit position had not been eliminated, no evidence that incumbent temporary employee would have been rehired for the succeeding year; pp. 18-20.

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

Due to potential of disruption in peer counseling program, restoration of status quo ante delayed until end of school year; pp. 20-21.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.07000 – 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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.05000 – By Delaying or Failing to Request Negotiations

No waiver by inaction where decision to lay off did not put union on notice of later and separate decision to contract out; p. 9; p. 23, proposed dec.