Decision A475E – Bellflower Unified School District

LA-CE-5955-E

Decision Date: September 13, 2019

Decision Type: Administrative Appeal

Description:  Respondent Bellflower Unified School District (District) appealed an administrative determination by PERB’s Office of the General Counsel (OGC) finding that the District failed to comply with the Board’s order in Bellflower Unified School District (2017) PERB Decision No. 2544.  After an investigation, OGC determined that the District had not complied with the order because it failed, inter alia, to rescind its unlawful subcontract for school bus services, make affected employees whole through offers of reinstatement and payment of lost wages, and make the union whole by reimbursing it for any lost dues or agency fees.  The District sought reversal of the administrative determination on several grounds, including its contention that it did not receive adequate documentation of the affected employees’ efforts to mitigate lost wages caused by the District’s unlawful contracting out and layoffs.

Disposition: The Board granted the appeal and remanded the case for an expedited evidentiary hearing, where the District would bear the burden of establishing compliance with all aspects of the Board’s order in Bellflower Unified School District (2017) PERB Decision No. 2544.  The Board denied the District’s request for a stay of enforcement actions as moot.

 

View Full Text (PDF)

Decision Headnotes

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 8.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

Here, the Office of the General Counsel’s effort to determine compliance through an exchange of correspondence, which in most cases is sufficient, was understandable. In the particular circumstances of this case, however, the better course would have been to issue a notice of hearing, summon the parties to present their evidence on contested issues, and thus obtain a complete record with the greatest possible speed. First, determination of disputed backpay amounts owed to affected employees, including whether employees failed to mitigate their damages, is well-suited for resolution at a hearing, where PERB Regulations give the parties and the hearing officer ample means to obtain the information necessary to make an accurate and complete determination of the respondent’s obligations. Second, a hearing becomes all the more necessary when the Office of the General Counsel believes, as was the case here, that the respondent is engaged in a pattern of delay or is otherwise acting to evade its obligations under a final Board order. Rather than enable obfuscation of the facts with endless rounds of unsworn correspondence, a formal hearing requires the respondent to put its evidence on the record under penalty of perjury. Finally, a hearing permits the hearing officer to craft a proposed order based on findings of fact and conclusions of law that articulates with specificity the steps the respondent must take to discharge its legal obligations. (pp. 8-9.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

Since the parties contested, among other matters, the amount of backpay the employer owed the affected employees, and whether the employer complied with the requirement to rescind the unlawful subcontract “as soon as practical,” the Board remanded the matter to the Office of the General Counsel for an expedited hearing on all outstanding compliance issues. The Board emphasized that the purpose of the hearing would be to determine whether, or to what extent, the District had complied with the Board’s order in Bellflower Unified School District (2017) PERB Decision No. 2544. It was not an invitation to relitigate the merits of the underlying decision and order. (p. 9.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

In response to the employer’s argument that it was not practical to rescind its unlawful subcontract before it expired by its own terms because rescission would lead to litigation between the employer and the subcontractor, the Board concluded that the employer would have to support that contention at hearing with evidence that it had no legal opportunity to terminate the contract before the expiration date. (p. 12.)

1108.00000 – UNFAIR PRACTICE PROCEDURES; COMPLIANCE
1108.01000 – In General

In light of the employer’s demonstrated proclivity to delay compliance through frivolous objections and legal maneuvers, the Board delegated to the assigned hearing officer the authority to impose sanctions on the employer for pursuing any claim, defense, motion or other action or tactic in the compliance proceedings that was without arguable merit and pursued in bad faith. (p. 14.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

A finding by the Board that an unfair labor practice was committed is presumptive proof that at least some backpay is owed. The burden of establishing that employees failed to mitigate their economic losses rests squarely on the employer that committed the wrongful acts giving rise to those losses. “To establish a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting. Claimants are not expected to seek a job more onerous that [sic] the one from which they were removed but rather are expected to seek a substantially equivalent job.” [Citation.] A “wrongfully-discharged employee is only required to make a reasonable effort to mitigate damages, and is not held to the highest standard of diligence. This burden is not onerous, and does not mandate that the [employee] be successful in mitigating the damage.” [Citation.] It is well established that “any uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.” [Citation.] (p. 10.)

1201.00000 – REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS
1201.03000 – Back Pay; Interest

In direct response to the employer’s contention that the affected employees should have obtained employment from the unlawful subcontractor, it should be self-evident that a wrongfully terminated employee was not required to break with her union or violate her union convictions under the guise of mitigation. Here, the union correctly protested the employer’s unlawful decision to subcontract school bus services to another school district, therefore the affected employees were under no obligation to abandon their union by accepting employment with the unlawful subcontractor. Indeed, the notion that the duty of mitigation required the affected employees to accept employment from the subcontractor under these circumstances is analogous to a suggestion that unlawfully fired workers must cross a picket line to maintain interim employment and become strikebreakers or else forfeit their right to backpay. The Board rejected such a notion as antithetical to the rights guaranteed by EERA. (p. 11.)

1402.00000 – GENERAL LEGAL PRINCIPLES; WAIVER
1402.07000 – 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.)