Pub. Emp't Relations Bd. v. Bellflower Unified Sch. Dist.

The unfair practice charge was assigned to PERB's Office of General Counsel (OGC) for investigation and review. The attorney to whom it was assigned notified appellant that the charge was being reviewed and gave appellant an opportunity to file a response.

The decision included a remedial order. Order No. 2455 required appellant to cease and desist from: (1) failing to negotiate in good faith by enacting unilateral policy changes and failing to timely respond to requests for information, (2) interfering with the right of unit employees to be represented by CSEA, and (3) denying CSEA its right to represent unit employees. The order required appellant to take the following affirmative actions: (1) rescind the policy change regarding holiday leave and abide by the terms of the parties' collective bargaining agreement; (2) make whole the affected employees for financial losses suffered; (3) either provide a complete response to CSEA's request for information or verify, in writing, to CSEA that the responses already provided were complete; (4) post a specific Notice to Employees in the form appended to the decision, both at employee work locations and electronically for 30 consecutive work days; and (5) provide PERB with written notification of the actions taken to comply with the order by a certain deadline.^[7] Appellant did not seek judicial review of Decision No. 2455.

We find substantial evidence supports the trial court's conclusion that the decisions and orders were issued pursuant to PERB's procedures, and that there was no abuse of discretion on the part of the General Counsel. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Decision and Order No. 2385

During the 2009 to 2010 school year, appellant decided to close one of its elementary

The matter was assigned to an administrative law judge (ALJ) for resolution. At a noticed hearing on July 10, 2012, CSEA presented evidence. Appellant appeared, but declined to present evidence. On October 12, 2012, after the parties submitted closing briefs, the ALJ issued a proposed decision, finding that appellant had violated the EERA by failing to bargain in good faith with CSEA over the effects of its proposed layoffs.

Both sides filed "exceptions" to the ALJ's proposed decision, causing the matter to be sent to PERB for a final decision. On June 30, 2014, the Board issued Decision No. 2385, essentially adopting the ALJ's findings of fact and conclusions of law and rejecting both parties' exceptions. Included with the decision was Order No. 2385, requiring appellant to cease and desist from: (1) failing to bargain in good faith with CSEA over the foreseeable impact of the closure of Las Flores and the abolishment of classified positions, and (2) denying classified bargaining unit members the right to be represented by CSEA. It required appellant to take the following affirmative actions: (1) meet and negotiate in good faith with CSEA, (2) provide affected bargaining unit members with limited back pay, (3) post a specific "Notice to Employees" both at employee work locations and by electronic means for 30 consecutive work days, and (4) provide PERB with written notification of the actions taken to comply with the order.^[3] Requirement

Appellant's petition for review in the Court of Appeal was denied. Its petition in the Supreme Court was also denied. After Decision No. 2385 became final, CSEA withdrew its request to bargain, eliminating requirements (1) and (2) of the order. This left requirements (3) and (4)-posting the Notice to Employees and notifying PERB of the actions taken to comply with the order.

In August 2015, PERB advised appellant by letter that Decision No. 2385 was final, giving appellant until September 15, 2015 to comply by filing a statement describing the dates the notice to Employees was posted and a computation of the days deemed to be work days. Appellant responded, stating that it had no location "where notices 'customarily are posted,' " and that it had sent no electronic notices because, in its view, it had no employees to whom the notice applied. Appellant reported that it had, however, posted a modified notice in its personnel office.^[4] In subsequent letters, appellant contended that posting the Notice to Employees required by the decision "would be very misleading to all classified employees because of CSEA's decision not to request bargaining or compensation." The OGC responded that appellant had a "fundamental misunderstanding ... regarding the remedial purpose of a notice posting." The purpose of a notice posting is not solely to inform those directly affected by a respondent's unlawful act. As the Board explained in Trustees of the California State University (1988) PERB Decision No. HO-U-335-H [1988 Cal. PERB LEXIS 49] "Order No. Ad-174-H[ ] ...: [¶] '[T]he purpose of a posting requirement is to inform all who

PERB made multiple attempts to obtain appellant's compliance. On March 2, 2016, the OGC advised appellant that the Board had authorized it to seek enforcement of Order No. 2385 in superior court.^[6]

B. Decision and Order No. 2455

In 2012, CSEA received information indicating appellant had failed to pay certain employees who had worked in July for the July 4th holiday. CSEA asked the district superintendent for a list of all unit members performing summer work for appellant and for their salary warrants. The superintendent initially did not respond and later sent a letter claiming to have no obligation to respond, but ultimately supplied a list CSEA believed to be incomplete.

On January 11, 2013, CSEA filed an unfair practice charge with PERB, alleging that appellant had violated section 3543.2, subdivisions (a), (b) and (c) of the EERA by changing its holiday pay policy without giving CSEA notice or an opportunity to bargain. PERB advised appellant of the charge and offered it an opportunity to provide a response. Appellant filed a preliminary response.

On June 3, 2013, after investigation and review, PERB issued a complaint, alleging that appellant had committed an unfair practice by changing its holiday policy without affording CSEA an opportunity to negotiate the decision. An informal settlement conference convened by the OGC did not resolve the matter.

A noticed hearing was held on May 30 and July 22, 2014 at which CSEA presented evidence. Appellant again appeared but presented no evidence. On June 22, 2015, after receipt of the parties' post-hearing briefs, the ALJ issued a proposed decision and order, finding that appellant had violated the EERA by unilaterally changing its policy regarding holiday leave pay and failing to timely respond to CSEA's requests for information. Appellant filed exceptions to the proposed decision.

Appellant responded by stating that it had not posted the requisite Notice to Employees because it had no "place where it customarily post[s] items for CSEA unit members," and because the notice "does not represent the current status of the case and would mislead employees that they would be entitled to some compensation...." Appellant further stated that it had "already paid the one employee [who] requested and was entitled to compensation for July 4, 2012...."^[8]

Appellant demurred, contending the matter should have been brought as a petition for administrative writ under Code of Civil Procedure section 1094.5 and that if governed by that provision, the petition was untimely. The court overruled the demurrer, finding that the petition sought "to compel [appellant] to comply with ... PERB's lawful orders and is therefore governed by CCP section 1085." After filing an answer, appellant sought to depose a number of witnesses and propounded other discovery requests, contending discovery was necessary to determine whether the orders were issued " 'pursuant to procedures established by the [B]oard....' " (Quoting § 3542, subd. (d).) The trial court issued a protective order quashing the discovery requests, finding that the determination whether an order was issued pursuant to PERB's procedures "would generally be based on an administrative record."

Relying on the administrative record and the facts set forth above, PERB moved for issuance of the requested writ of mandate. Appellant opposed, contending that PERB had failed to establish that its "enormously complex" procedures had been followed prior to issuing the two decisions and orders. It cited a number of PERB regulations, but failed to identify any applicable provisions that had been overlooked. Appellant also cited section 32980(a) of title 8 of the California Code of Regulations (CCR), which provides: "The [PERB] General Counsel is responsible for determining that parties have complied with final Board orders. The General Counsel or his/her designate may conduct

Preliminarily, we observe that section 3542, subdivision (d), instructs PERB to submit two things to the court to establish entitlement to the requested writ of mandate: "the record of the proceeding" and "appropriate evidence disclosing the failure to comply with the decision or order." This suggests that the Legislature intended section 3542, subdivision (d) enforcement hearings to be relatively streamlined, not requiring the parties to rehash arguments concerning procedural irregularities that were or should have been made to the Board when the complaints were filed and the hearings conducted. This was the conclusion in Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc . (1985) 192 Cal.App.3d 1530 , 243 Cal.Rptr. 505 , judgment affirmed and ordered published (1987) 43 Cal.3d 696 , 238 Cal.Rptr. 780 , 739 P.2d 140 ( Tex-Cal I ), where the Court of Appeal considered the similar language of Government Code section 1160.8.^[10] The issue was whether writs and orders issued under section 1160.8 were appealable. ( Tex-Cal I, supra, at p. 1535, 243 Cal.Rptr. 505 .) Acknowledging "the desirability of prompt enforcement of final [Agricultural Labor Relations Board] orders in labor disputes," the court nonetheless held that orders issued under section 1160.8 were appealable. (

The current appeal falls into the category the court in Tex-Cal I warned against: filed for no discernible purpose other than to delay the enforcement of the judgment. Appellant raised no issues of procedural irregularity in its appearances before the Board, in its post-hearing briefs or in the petitions seeking review of Decision No. 2385, and offers no excuse for its failure to do so. Hence, any objections to procedural deficiencies that preceded the issuance of the final PERB decisions and orders were "long since ... waived" ( Tex-Cal I, supra, 192 Cal.App.3d at p. 1538, 243 Cal.Rptr. 505 ), and the sole issue before the court was whether the decisions and orders themselves were issued and served in accordance with established procedures. The trial court conducted a meticulous review of the administrative record, and found that PERB had established its compliance with all pertinent regulations from the dates the CSEA charges were filed until the final decisions and orders were issued. The record amply supports that conclusion.

In the underlying proceeding, PERB provided the complete administrative record from which its compliance with its procedures prior to issuing the two orders could be easily established. Moreover, as it does in its brief on appeal, it also summarized in detail the factual and procedural history of the two CSEA matters, resolving any potential doubt. The record shows that after CSEA filed the unfair practice charges, PERB assigned them to the OGC for investigation and review. The attorneys to whom they were assigned notified appellant and gave it an

Both below and on appeal, appellant contended that PERB regulations are complex and cited a number of the regulations, but made no attempt to demonstrate that any relevant regulation had been overlooked or disregarded. For example, appellant cited CCR, title 8, section 32620, which requires charges to be "assigned to a Board agent for processing" and describes the duties of the Board agent, including assisting the charging party to state the charge in proper form, advising the charging party of any deficiencies in the charges in a warning letter, answering the procedural questions of both parties, facilitating communications and the exchange of information between the parties, and dismissing any charge where the evidence is insufficient. Neither below nor on appeal, however, has appellant suggested-much less demonstrated-that any part of the regulation was violated. And neither below nor on appeal has appellant identified any relevant regulation that was not followed.^[12]

In sum, as the evidence was undisputed that PERB followed its procedures prior to issuing the subject decisions and orders, the trial court's finding was necessarily supported by substantial evidence. To the extent appellant suggests that section 3542, subdivision (d), requires a more rigorous inquiry than that conducted by the trial court, we disagree. To the extent appellant suggests that procedural irregularities occurred, its failure to support the argument with citations to specific examples and reasoned argument constitutes a waiver of any such contention.

C. OGC's Responsibilities Under CCR, Title 8, Section 32980

CCR, title 8, section 32980 gives the General Counsel responsibility for determining whether the parties have

DISPOSITION

The order granting the petition for writ of mandate is affirmed. Respondent and real party are awarded their costs on appeal.

We concur:

WILLHITE, J.

MICON, J.^[13]