Brawley Union High School District (PERB 0266EA)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
BRAWLEY 	UNION 	HIGH 	SCHOOL 	TEACHERS
ASSOCIATION, CTA/NEA,
Charging 	Party,
v.
BRAWLEY 	UNION 	HIGH SCHOOL 	DISTRICT,
Respondent.
Case 	No. 	LA-CE-1311
Request 	for 	R e c o n s i d e r a t i o n
PERB 	D e c i s i o n No. 	266
PERB 	D e c i s i o n No. 	266a
April 7, 	1983
Appearances; 	Charles R. 	Gustafson, 	Attorney for Brawley Union High
School Teachers Association, 	CTA/NEA.
Before Gluck, Chairperson; 	Jaeger 	and Morgenstern, Members.
DECISION
MORGENSTERN, 	Member: 	Pursuant 	to 	regulation 	32410(a)1 of
the Public Employment Relations Board 	(PERB or Board), 	the
Brawley 	Union High School Teachers Association, 	CTA/NEA
1PERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 8, 	section 31001 et 	seq.
Section 32410 provides, 	in pertinent part:
Any 	party 	to a 	decision of 	the Board 	itself
may, 	because 	of 	extraordinary circumstances,
file 	a 	request 	to 	reconsider 	the 	decision
within 	20 	days 	following 	the 	date 	of 	service
of 	the 	decision. 	An 	original 	and 	5 copies
of 	the 	request 	for 	reconsideration 	shall 	be
filed 	with 	the 	Board 	itself 	in 	the
headquarters 	office 	and 	shall 	state 	with
specificity 	the 	grounds 	claimed 	and, 	where
applicable, 	shall 	specify the page 	of 	the
record 	relied on. 	Service 	and 	proof 	of
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(Association) 	requests 	reconsideration of 	a portion of 	the
Board's 	decision 	in Brawley 	Union High School District
(12/21/82) 	PERB Decision No. 	266.
service 	of 	the 	request 	pursuant 	to
Section 	32140 	are 	required. 	The 	grounds 	for
requesting 	reconsideration 	are 	limited 	to
claims 	that 	the 	decision of 	the 	Board 	itself
contains prejudicial errors of 	fact, 	or
newly discovered 	evidence 	or 	law 	which 	was
not 	previously 	available 	and 	could 	not 	have
been discovered 	with 	the 	exercise 	of
reasonable 	diligence.
DISCUSSION
In PERB Decision No. 	266, 	we 	found 	that 	the Brawley Union
High School District 	(District) 	violated subsections 	3543.5 (a),
(b) 	and 	(c) 	of 	the Educational Employment Relations Act
(EERA)2 by 	unilaterally 	refusing 	to make 	a 	"lump sum" 	payment
2EERA 	is 	codified 	at 	Government Code 	section 	3540
et 	seq. 	All 	statutory 	references 	are 	to 	the Government Code
unless 	otherwise 	specified.
Subsections 3543.5(a), 	(b) 	and 	(c) provide as follows:
It 	shall 	be 	unlawful 	for 	a 	public 	school
employer 	to:
(a) 	Impose or 	threaten 	to 	impose 	reprisals
on employees, 	to discriminate 	or 	threaten 	to
discriminate 	against 	employees, 	or 	otherwise
to interfere with, 	restrain, or 	coerce
employees 	because 	of 	their 	exercise of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to employee 	organizations 	rights
guaranteed 	to 	them by 	this 	chapter.
(c) 	Refuse or 	fail 	to meet 	and 	negotiate 	in
good 	faith 	with 	an exclusive 	representative.
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of 	summer 	wages 	as 	required 	by 	the 	collective 	bargaining
agreement 	between 	the parties.
To remedy 	the 	violations, 	we 	ordered 	the District 	to 	cease
and 	desist 	from such further 	violations, 	to 	restore 	the 	lump
sum payment 	option 	and 	direct 	the 	county superintendent 	of
schools 	to 	honor 	such 	pay 	orders 	on 	the Association's 	request
and 	to 	post 	an 	appropriate 	notice 	informing 	employees 	of 	the
decision. 	In 	so doing, 	we 	rejected 	the 	hearing officer's
recommendation 	that, 	if 	we 	found 	the 	contract 	provision 	to 	be
negotiable, 	we 	should 	remand 	to allow 	the District 	to address
its 	"apparent 	defenses 	of 	legal 	inability 	to pay 	and 	lack 	of
jurisdiction 	over 	the 	county 	superintendent of 	schools." 	We
found 	that 	it 	would not 	effectuate 	the purposes 	of 	the Act 	to
remand 	for 	several 	reasons:
1. 	Since 	neither 	party excepted 	to 	the 	hearing 	officer's
failure 	to make 	findings 	or 	conclusions 	regarding 	such
defenses, 	such 	exception was 	waived, 	pursuant 	to PERB
regulation 	32300(c) 	which 	states 	that, 	"an exception 	not
specifically 	urged 	shall 	be 	waived."
2. 	Since 	no such 	defense 	was 	ever 	raised 	by 	the
District - neither 	in its 	answer, 	brief nor 	exceptions, 	we
found 	the District 	had 	waived 	its 	right 	to 	assert 	such 	defenses
under 	the 	rule stated 	in Weiczovek v. 	The Texas Co. 	(1941) 	45
Cal.App.2d 	450, 	459 	[114 P.2d 	377] 	that 	it 	is 	the policy of 	the
-
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law 	that 	litigation 	shall 	not 	be 	had 	in piecemeal 	and 	when 	a
party has 	a defense 	to 	a pending 	cause 	of 	action, 	it must 	be
presented 	then; 	otherwise 	it 	will 	be 	deemed waived.
3. 	Our 	disposition of 	the 	apparently 	identical 	defenses
in Calexico Unified 	School District 	(12/20/82) 	PERB Decision
No. 	265 	militated 	against 	remand.
4. 	The Board 	stated, 	"our 	determination of 	this matter
does 	not 	preclude 	the District's 	assertion of 	such 	defenses 	in
a 	compliance 	hearing," 	citing 	Santa Monica Community 	College
District 	(9/21/79) 	PERB Decision No. 	103 	and San Francisco
Community College District 	(10/12/79) 	PERB Decision No. 	105.
The 	Association 	urges 	reconsideration of 	only 	this 	fourth
and last 	statement on 	the 	grounds 	that:
1. 	No PERB 	regulation or 	procedure 	for 	a compliance
hearing 	exists. 	To permit such a hearing would, 	therefore, 	be
contrary 	to PERB regulations; 	and
2. 	To permit 	the District 	to 	raise matters previously
waived 	would 	be 	contrary 	to 	the 	waiver 	rule 	cited 	by 	the 	Board
itself 	in 	this 	decision 	and 	would 	be 	prejudicial 	to 	the
Association.
The 	Association's 	first 	ground 	for 	seeking 	reconsideration
is 	without merit. 	Though 	PERB has 	no 	rule specifically
governing 	compliance 	hearings, 	such 	hearings 	are 	conducted
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pursuant 	to 	the Board's 	statutory 	authority 	under
section 3541.3:
(h) 	To hold hearings 	. 	. 	. 	relating 	to any
matter 	within 	its 	jurisdiction;
(i) 	To 	investigate 	unfair 	practice 	charges
or 	alleged violations of 	this 	chapter, 	and
take 	such 	action 	and 	make 	such
determinations 	in 	respect of 	such 	charges 	or
alleged 	violations 	as 	the 	board 	deems
necessary 	to effectuate 	the 	policies 	of 	this
chapter.
(j) 	To bring 	an 	action 	in a court of
competent 	jurisdiction 	to 	enforce 	any of 	its
orders, 	decisions 	or 	rulings 	. . . .
(n) 	To 	take 	such 	other 	action as 	the 	board
deems 	necessary 	to discharge 	its 	powers 	and
duties 	and 	otherwise 	to 	effectuate 	the
purposes of 	this 	chapter.
Additionally, 	subsection 3542(d) 	provides, 	in pertinent
part, as follows:
If 	the 	time 	to petition 	for
extraordinary 	relief 	from a 	board
decision has 	expired, 	the 	board may
seek 	enforcement 	of 	any 	final 	decision
or 	order 	in a district 	court 	of 	appeal
or 	a superior 	court 	in 	the district
where 	the 	unit 	determination or 	unfair
practice 	case 	occurred. 	The 	board
shall 	respond 	within 10 	days 	to 	any
inquiry 	from a 	party 	to 	the 	action 	as
to 	why 	the 	board 	has 	not 	sought 	court
enforcement of 	the 	final 	decision 	or
order. 	If 	the 	response 	does 	not
indicate 	that 	there 	has 	been 	compliance
with 	the 	board's 	final 	decision or
order, 	the 	board 	shall 	seek 	enforcement
of 	the 	final decision or 	order 	upon 	the
request of 	the party. 	. 	. 	.
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In order 	to determine whether 	there has been compliance
with 	the Board's final decision or 	order, 	it may be necessary
for 	the Board to conduct a hearing on the 	issue, 	consistent
with 	its 	above-cited 	general grant 	of 	authority.
However, 	the Association's 	second ground for 	requesting
reconsideration 	has 	merit.
The general and well-established 	rule 	is 	that 	"a right once
waived 	is gone forever" 	(Jones v. Maria 	(19 20) 	48 Cal.App.171
[191 P. 943]) 	and may not be re-asserted, Hein Estate 	(1939) 	32
Cal.App.2d 438 	[90 P.2d 100]; Faye v. Feldman 	(1954) 	128
Cal.App.2d 319 	[275 P.2d 121]. 	Consistent with this rule, we
found 	that 	the District 	waived 	its 	right 	to 	raise 	these
defenses 	to 	the finding of 	violation. 	That 	i s , 	the District is
precluded from arguing 	that 	its 	refusal 	to make lump sum
payments was 	lawful because 	justified 	by business 	necessity.
However, 	we recognize that, while inability to pay and lack
of 	jurisdiction over 	the superintendent will not be considered
as defenses 	to 	the violation, 	as a practical matter, 	they may
well 	affect 	the District's 	ability 	to 	comply with our 	ordered
remedy. 	To that extent, 	they may necessarily have to be
considered 	at 	a compliance hearing.
DECISION AND ORDER
The 	r e q u e s t 	for 	r e c o n s i d e r a t i o n 	is 	GRANTED. 	Upon
r e c o n s i d e r a t i o n , 	we 	hereby 	amend 	and 	c l a r i f y 	t h a t 	p o r t i o n 	of
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our 	decision which 	indicated 	that, 	at a compliance hearing, 	the
District 	is 	not precluded from asserting defenses 	which 	it 	had
previously waived.
Should a compliance hearing became necessary to determine
whether 	the District has complied with the Board's decision and
order 	in this case, defenses waived by the District may not be
re-asserted 	to excuse or justify its violation of 	the Act. 	The
District may not argue the matter of 	its legal right to make
unilateral 	changes 	in 	its pay policy, 	irrespective of 	its
reasons.
It is so ORDERED.
Chairperson Gluck and Member Jaeger 	joined 	in this Decision.
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