Decision 2601H – Regents of the University of California (American Federation of State, County and Municipal Employees, Local 3299)
SF-CE-1035-H
Decision Date: December 10, 2018
Decision Type: PERB Decision
Description: In a two Member decision, the Board reversed the proposed decision in a case alleging that the Regents of the University of California (University) violated the Higher Education Employer-Employee Relations Act (HEERA) by investigating and disciplining employee Patrick Mitchell (Mitchell) in reprisal for participating in and assisting a delegation of AFSCME Local 3299-represented employees who wished to present their concerns to the president of the Ronald Reagan Medical Center (RRMC) at the University’s Los Angeles campus. The University filed no answer to the complaint. At the hearing, it requested leave to file a late answer and to have the untimeliness excused, pursuant to PERB Regulation 32136. Local 3299 moved to have the University’s failure to file an answer deemed an admission of the material facts alleged in the charge and as a waiver of the University’s right to a hearing, pursuant to PERB Regulation 32644, subdivision (c). The Administrative Law Judge (ALJ) denied both motions and ruled that the University’s failure to file an answer waived any affirmative defenses. He then conducted a formal hearing, in which he took evidence and heard argument on the issues raised in the complaint, before issuing the proposed decision dismissing the complaint. On exceptions, the Board agreed with the ALJ that the University’s failure to file an answer constituted a waiver of its affirmative defenses. However, since the University could not validly interpose an affirmative defense, the Board concluded that ALJ should have found the University’s conduct constituted a waiver of its right to a hearing to contest the allegations of the complaint and to present affirmative defenses. On this basis, the Board entered judgment in favor of Local 3299.
Disposition: The Board reversed the proposed decision and found that the University violated the HEERA as alleged in the complaint.
Perc Vol: 43
Perc Index: 88
Decision Headnotes
1103.05000 – Answer or Other Defense/Waiver
Where the respondent has failed even to file any answer, it likewise waives not only its affirmative defenses, but also any specific or general denial it might have asserted, unless it is granted leave to file a late answer and have the untimeliness excused for good cause. (PERB Reg. 32136.) Moreover, PERB Regulation 32644 provides that, “[i]f the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” (PERB Reg. 32644, subd. (c).) Although the language of the regulation appears to be discretionary, when read together with the language of subdivision (b) of 32644 regarding the contents of the answer, the implication is clear that a respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge. That is, without an answer, there can be no general or specific denial of the allegations in the complaint, nor any affirmative defenses.
1503.02000 – Regulations Considered (By Number)
PERB Regulations expressly state that the answer to a PERB complaint “shall” contain, among other things, a “specific admission or denial of each allegation contained in the complaint” and “[a] statement of any affirmative defense[s]” which the respondent wishes to assert. (PERB Reg. 32644, subd. (b)(5), (6).) Requiring parties to give reasonable notice of their claims and defenses is necessary to ensure a fair litigation process, particularly since PERB’s unfair practice procedures do not provide for pre-hearing discovery.
1503.02000 – Regulations Considered (By Number)
Where the respondent has failed even to file any answer, it likewise waives not only its affirmative defenses, but also any specific or general denial it might have asserted, unless it is granted leave to file a late answer and have the untimeliness excused for good cause. (PERB Reg. 32136.) Moreover, PERB Regulation 32644 provides that, “[i]f the respondent fails to file an answer as provided in this section, the Board may find such failure constitutes an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing.” (PERB Reg. 32644, subd. (c).) Although the language of the regulation appears to be discretionary, when read together with the language of subdivision (b) of 32644 regarding the contents of the answer, the implication is clear that a respondent’s failure to answer a PERB complaint effectively results in an admission of the matters alleged therein, as well as those alleged in the charge. That is, without an answer, there can be no general or specific denial of the allegations in the complaint, nor any affirmative defenses.
1503.02000 – Regulations Considered (By Number)
PERB Regulations provide that a late filing may be excused at the discretion of the Board “for good cause only.” (PERB Reg. 32136.) If excused, a late filing is considered timely. (Ibid.) Consistent with the policy favoring preservation of the right to appeal and hearing appeals on their merits, the Board’s application of the Regulation to a variety of factual scenarios reveals that “good cause” is a flexible standard, defined and constrained by considerations of fairness and reasonableness. (Trustees of the California State University (1989) PERB Order No. Ad-192-H, pp. 4-5.) Whether good cause exists is a separate inquiry from whether accepting a late filing would result in prejudice. (Bellflower Unified School District (2017) PERB Order No. Ad-447, p. 5.)