MANELLA, P. J. —
Real party in interest California School Employees Association, Chapter No. 32 (CSEA), the exclusive representative of most classified employees employed by appellant Bellflower Unified School District (the District), filed two unfair practice charges against appellant in 2010 and 2013 under the Education Employment Relations Act (Gov. Code,
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.
During the 2009 to 2010 school year, appellant decided to close one of its elementary schools, Las Flores, at the end of the school year. The proposed closure had the potential to eliminate some classified positions. On multiple occasions CSEA demanded a meeting to negotiate the effects of the proposal, but no meeting occurred. On November 10, 2010, CSEA filed an unfair practice charge with PERB, alleging that appellant failed to negotiate the closure, and that the closure caused layoffs and reductions in hours, in violation of section 3543.5, subdivisions (a), (b) and (c), part of the EERA.
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 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 Bellflower Unified School Dist. (2014) PERB Decision No. 2385 (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 backpay, (3) post a specific "Notice to Employees" both at employee work locations and by electronic means for 30 consecutive workdays, and (4) provide PERB with written notification of the actions taken to comply with the order.
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 workdays. 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.
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.
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), part 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' posthearing 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.
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 workdays; and (5) provide PERB with written notification of the actions taken to comply with the order by a certain deadline.
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 ...."
During the exchange of letters, appellant proposed posting a modified notice containing only the cease and desist language from the Notice to Employees appended to Decision No. 2455. The general counsel reiterated: "[T]he General Counsel does not have the authority to make any modifications to the Board's orders." The OGC reminded appellant that the purpose of a notice posting was not solely to inform those directly affected by a respondent's unlawful act, but also to "`inform all who would naturally be concerned ... of activity found to be unlawful under the Act in order to provide guidance and prevent a reoccurrence.'" On March 2, 2016, the OGC informed appellant it had been authorized by the Board to seek enforcement of order No. 2455.
On April 1, 2016, PERB filed a petition for writ of mandate under Code of Civil Procedure section 1085 and Government Code section 3542, subdivision (d), seeking to enforce its two orders by obtaining a writ instructing appellant
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, subdivision (a) of title 8 of the California Code of Regulations, 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 an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter. The Board itself may, based on a recommendation of the General Counsel, authorize the General Counsel to seek court enforcement of a final Board order." Claiming to have been "encouraging resolution through negotiations" when it responded to the letters from PERB and the OGC concerning its failure to comply with the two orders, appellant contended that the general counsel had failed to exercise discretion in determining whether to undertake any or all of the actions authorized by the regulation, and that his actions preceding the
The trial court granted the petition. In a detailed order, the court first addressed whether order No. 2385 and order No. 2455 were issued pursuant to procedures established by the Board. The court concluded, based on its review of the complete administrative record, that PERB had met its burden under section 3542, subdivision (d): "The administrative record demonstrates that PERB followed its regulation[s] when `issuing' both orders. For Order No. 2385, following investigation of the underlying unfair practice charge ..., PERB issued a complaint finding that [appellant] had committed an unfair practice under EERA. ...; Reg. § 32620. ... PERB held a formal administrative hearing on the complaint, which resulted in the issuance of a proposed decision by a PERB ALJ ...; Regs. §§ 32168, 32170, 32180, 32212, 32215. ... Both [appellant] and CSEA appealed the proposed decision to the Board ...; Regs. §§ 32300, 32310. ... In accordance with Reg. 32320, on June 30, 2014, the Board issued Decision No. 2385, which included Order No 2385, and served a copy on each party via U.S. mail. [Citation.]" [¶] For Order No. 2455, following investigation of the underlying [unfair practice charge], PERB issued a complaint finding that [appellant] had committed unfair practices under EERA ...; Reg. § 32620. ... PERB held a formal administrative hearing which resulted in the issuance of a proposed decision by a PERB ALJ ...; Regs. §§ 32168, 32170, 32180, 32212, 32215. ... The District subsequently appealed the proposed decision to the Board ...; Regs. §§ 32300, 32310. ... In accordance with Reg. 32320, on September 30, 2015, the Board issued Decision No. 2455, containing Order No. 2455, and served it on the parties via U.S. mail. [Citation.]"
The court observed that appellant had failed to identify any specific procedures PERB had failed to follow, and found that appellant had, in any event, waived any objections to the procedural regularity of the orders by failing to litigate the issue earlier.
With respect to the requirement of section 3542, subdivision (d), that the petitioner establish noncompliance, the court found that appellant had "effectively concede[d] that it ha[d] not complied [with either of the two orders]."
The court next addressed the contention that the general counsel abused the discretion afforded by California Code of Regulations, title 8, section 32980. It found no such abuse: "The provision that `[t]he General Counsel ... may conduct an inquiry, informal conference, investigation, or hearing, as appropriate,' clearly provides the General Counsel's Office with discretion to use a
The court also addressed appellant's contention that "significant events have occurred since PERB issued the [two] Orders so that PERB's General Counsel should have negotiated with [appellant] and acceded to [appellant's] demands to revise the notices." The court was "not persuaded that [appellant's] reasons for refusing to comply with the Orders are appropriately asserted in this enforcement proceeding," citing section 3542, subdivision (d)'s directive that the court "`shall not review the merits of the order,'" and noting appellant's failure to "cite[] authorities that would permit the court to assess whether the passage of time or other events ha[d] made the orders `out of date'" or to present "evidence or argument that the time delay or other events have entirely mooted the remedial purposes of the Notices ...." (Italics omitted.) The court specifically found appellant's argument that the two orders would be misleading to employees to be "speculative and unpersuasive": "The notices contain the dates of the unfair labor practices, so there should be no confusion regarding the underlying events. [Citation.]"
Finally, the court found sufficient evidence that the Board had authorized the filing of the enforcement action in the OGC's representations that it had sought and obtained such authorization.
The court issued a peremptory writ of mandate directing appellant to "1. Comply with the Board's order in ... PERB Decision No. 2385, and [¶] 2. Comply with the Board's order in ... PERB Decision No. 2455," and to file a return to the writ within 30 days, setting forth all measures taken to comply with it. This appeal followed.
"In reviewing a judgment granting or denying a writ of mandate petition, `"we apply the substantial evidence standard of review to the court's factual findings ...."'" (Hayes, supra, 21 Cal.App.5th at p. 746.) Factual findings are examined for substantial evidence and any conflicts in the evidence are resolved in favor of the prevailing party. (Ibid.) However, "[o]n questions of law, including statutory interpretation, the appellate court applies a de novo review and makes its own independent determination." (Ibid.)
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] (Tex-Cal I), judgment affirmed and ordered published (1987) 43 Cal.3d 696 [238 Cal.Rptr. 780, 739 P.2d 140], where the Court of Appeal considered the similar language of Labor Code section 1160.8.
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 posthearing 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), 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 opportunity to respond. (See Cal. Code Regs., tit. 8, § 32620 [processing of case].) Settlement conferences were held. (See id., § 32650 [informal conference].) After determining that the charges had merit, PERB filed and served a complaint. (See id., §§ 32140 [service], 32640 [issuance of complaint].) Noticed hearings were held before PERB ALJ's. (See id., §§ 32168 [conduct of hearing], 32170 [powers and duties of board agent conducting a hearing].) The parties appeared and were given an opportunity to present evidence. (See id., § 32180 [rights of parties].) After
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 California Code of Regulations, 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.
Initially, we observe that to the extent appellant contends the general counsel's postdecision actions can be raised as a defense to an enforcement action, its position is contrary to the statute. Section 3542, subdivision (d), specifically permits the trial court to consider only two factors: whether the order was issued pursuant to the procedures established by the Board, and whether the respondent refused to comply with the order. (See Tex-Cal I, supra, 192 Cal.App.3d at p. 1538; Tex-Cal II, supra, 43 Cal.3d at p. 706.) In any event, the record disclosed no abuse of discretion by the general counsel. As the trial court noted, the OGC conducted an inquiry and investigation into appellant's compliance. It did so under a regulation that was expressly permissive: "The General Counsel ... may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter." (Cal. Code Regs., tit. 8, § 32980, subd. (a), italics added.) As the general counsel correctly advised appellant, nothing in the regulation authorized him to modify a Board order.
Nor did appellant provide a justification for modification of the orders by anyone. With respect to the Notice to Employees in Decision No. 2385, appellant contends that "[a] very significant event had occurred" since its issuance: CSEA had withdrawn its request to bargain, rendering the language of the notice "no longer relevant" and "moot." In fact, this event was anticipated by the parties and the Board, and the decision expressly dealt with what would happen if CSEA failed to initiate a "meet and negotiate" session: The limited backpay remedy would not go into effect. Appellant had an opportunity, prior to the issuance of the decision and order, to propose a modified notice if the meet and negotiate did not take place and appellant believed its nonoccurrence would render any language of the notice misleading. It neither did so nor sought review on any ground related to the wording of the notice.
With respect to the Notice to Employees required by Decision No. 2455, appellant simply attempts to relitigate the merits of the decision. Despite appellant's contention that "there was never any change to the payment of holiday pay policy in the District and the one employee who was entitled to holiday pay has been paid" both the ALJ and the Board found there had been a change. (Underscoring omitted.) Appellant had the opportunity to seek review of that decision, but declined to do so. Appellant also failed to place
Moreover, as PERB has frequently explained, the point of the posting requirement is not only to ensure that affected employees are aware of past violations, but also to ensure that all employees are aware of their rights under the EERA and to influence those who have the authority to prevent violations from reoccurring. (See City of Sacramento (2013) PERB Dec. No. 2351-M, p. 44 [2013 Cal. PERB Lexis 44] ["The Board's authority to inform employees of their rights, and its discretion to determine the circumstances and methods for accomplishing this task, are both well-settled. [Citation.] Since the earliest days of this agency, PERB remedial orders have required offending parties to post notice of their unlawful conduct to ensure that all employees affected by the Board's decision and order are notified of their rights. [Citation.] ... [¶] We believe that physically posting notice of the Board's remedial orders in the workplace remains an essential tool for remedying unfair practices and furthering the policies of the [statutes] we administer."]; Trustees of the California State University, supra, PERB Dec. No. HO-U-335-H at p. 2 [1988 Cal. PERB Lexis 49] ["`The purpose of a posting requirement is to inform all who would naturally be concerned (i.e., employees of the District, as well as management and supervisory personnel who carry out District policies) of activity found to be unlawful under the Act in order to provide guidance and prevent a reoccurrence. The furtherance of the central purpose of the EERA, harmonious labor relations, depends upon awareness of what the statute demands of all parties ... [and] the purposes of that Act are best effectuated by districtwide posting.'"]; Belridge School Dist. (1980) PERB Dec. No. 157, p. 13 [1980 Cal. PERB Lexis 24] ["The District argues that posting should not be ordered in this case because of the length of time that has passed since the conduct found to be an unfair practice occurred. It contends that posting would only disrupt the atmosphere that now exists in the District. The Board acknowledges these concerns, but nevertheless finds that posting is an appropriate remedy here. Posting ensures that employees affected by this decision are informed of their rights under the EERA. The fact that the case has been delayed does not lessen the importance of that remedy as a means of effectuating policies of the EERA."].) Regardless of whether appellant is required to provide additional restitution or backpay, the notices will be helpful to employees who may have information pertinent to new violations of their rights under the EERA under similar
The order granting the petition for writ of mandate is affirmed. Respondent and real party in interest are awarded their costs on appeal.
Willhite, J., and Micon, J.,
