Decision 1988M – City of Burbank

LA-CE-326-M

Decision Date: November 25, 2008

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 11

Decision Headnotes

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.02000 – Conflicts Between PERB-Administered Laws and Other California Statutes; Education Code/Supersession; MMBA Supersession

The discovery provisions of the California Arbitration Act (Code of Civil Procedure section 1280 et seq.) do not eliminate or limit a party’s entitlement to relevant information under MMBA section 3505.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

An exclusive representative is entitled to all information that is necessary and relevant to the discharge of its duty to represent a bargaining unit member in a contractual disciplinary arbitration proceeding. Employer violated MMBA section 3505 by failing to promptly provide information requested by the employee organization that was relevant to an employee’s pending arbitration challenging his discipline for violation of the employer’s attendance policy. All of the requested information was presumptively relevant because it related to either the use of sick or FMLA leave by the employee or by other members of the bargaining unit. The employer failed to establish an affirmative defense to production of the information. The employer also failed to provide the information in a timely manner because it produced some of the information almost three months after the initial request and did not produce the rest until ordered to do so by the arbitrator during the hearing.

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.05000 – Subjects of Information

Information requested by exclusive representative regarding employee’s use of sick and FMLA leave and use of such leave by other bargaining unit members was presumptively relevant to employee’s pending arbitration challenging discipline for violation of the employer’s attendance policy.

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

MOU’s silence regarding arbitration discovery did not waive exclusive representative’s statutory right to information necessary and relevant to its representation of a bargaining unit member in contractual disciplinary arbitration proceedings.

1103.00000 – CASE PROCESSING PROCEDURES; COMPLAINT
1103.05000 – 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.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.03000 – By Contract/Zipper Clauses/Management Rights Clauses

MOU’s silence regarding arbitration discovery did not waive exclusive representative’s statutory right to information necessary and relevant to its representation of a bargaining unit member in contractual disciplinary arbitration proceedings.

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.07000 – 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.