Pub. Employment Relations Bd. v. Bellflower Unified School etc. ( 2018 )

Filed 12/4/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
PUBLIC EMPLOYMENT No. B288594
RELATIONS BOARD,
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. BS161585)
v.
BELLFLOWER UNIFIED
SCHOOL DISTRICT,
Defendant and Appellant;
CALIFORNIA SCHOOL
EMPLOYEES ASSOCIATION,
CHAPTER NO. 32,
Real Party in Interest.
APPEAL from order granting petition for writ of
mandate. Mary H. Strobel, Judge. Affirmed.
Law Offices of Eric Bathen, Eric J. Bathen, and
Richard D. Brady for Defendant and Appellant Bellflower
Unified School Distrct.
J. Felix DeLaTorre, General Counsel, Wendi L. Ross,
Deputy General Counsel, Laura Z. Davis and Sheena J.
Farro, Regional Attorneys for Plaintiff and Respondent
Public Employment Relations Board.
Andrew J. Kahn, Chief Counsel and Christina C.
Bleuler, Deputy Chief Counsel, for Real Party in Interest
California School Employees Association.
_________________________________________
Real party in interest California School Employees
Association (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 (Govt. Code,
§ 3540 et seq., EERA).1 After notice and hearing, respondent
Public Employment Relations Board (PERB or the Board),
the agency charged with interpreting and administering the
EERA, issued two decisions and orders requiring, among
other things, that appellant post two specific notices to its
employees. After the decisions and orders became final in
1 Undesignated statutory references are to the Government
Code.
2
2015, appellant refused to post the notices, claiming that
they were out of date and misleading. PERB filed the
underlying enforcement proceeding, and the trial court
issued a writ of mandate instructing appellant to comply
with the Board’s two orders. Appellant appeals, contending
that PERB failed to prove the decisions and orders were
issued pursuant to its established procedures, and that
PERB’s General Counsel abused his discretion under a
regulation authorizing him to conduct an investigation or
hearing prior to filing an enforcement proceeding.
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 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
3
closure caused layoffs and reductions in hours, in violation of
section 3543.5, subdivisions (a), (b) and (c) of the EERA.2
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.
On January 20, 2012, PERB issued a complaint,
alleging that appellant had committed an unfair practice
and had violated section 3543.5, subdivisions (a) through (c)
of the EERA, by failing to meet and bargain in good faith
with CSEA over the effects of the proposed layoffs, and that
appellant had implemented layoffs and reductions in hours
for its employees. The OGC convened an informal
conference with the parties to explore the possibility of
settling the complaint. The matter did not settle.
2 Section 3543.5, subdivisions (a) through (c) provide: “It is
unlawful for a public school employer to do any of the following:
[¶] (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. Knowingly
providing an exclusive representative with inaccurate
information, whether or not in response to a request for
information, regarding the financial resources of the public school
employer constitutes a refusal or failure to meet and negotiate in
good faith.”
4
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
5
actions taken to comply with the order.3 Requirement (2),
the “limited backpay remedy,” required CSEA to “submit its
3 The appended Notice to Employees stated that appellant
would “CEASE AND DESIST” from: “1. Failing to bargain in
good faith with CSEA over the foreseeable impacts of the closure
of Las Flores and the abolishment of classified positions; [¶]
2. Denying classified bargaining unit members the right to be
represented by CSEA; [¶] 3. Denying CSEA the right to represent
its members.” It said appellant would take the following
“AFFIRMATIVE ACTIONS DESIGNED TO EFFECTUATE THE
POLICIES OF THE EERA”: “1. Within twenty (20) days of the
service of a final decision in this matter, meet and negotiate in
good faith with CSEA, upon receipt of CSEA’s proposals
addressing the foreseeable effect of the May 2010, decision to
close Las Flores and abolish classified positions. [¶] 2.
Compensate at their normal rate, any CSEA bargaining unit
members who were affected by layoffs resulting from the May 6,
2010, decision by the District’s Board of Education . . . to close
Las Flores and abolish classified positions. CSEA shall submit
its bargaining proposals within twenty (20) days following the
service of this decision and order. Should CSEA fail to submit
such proposals within this twenty (20)-day time frame, this
limited backpay remedy shall not go into effect. Provided CSEA
submits its proposals, payments shall remain in effect until the
earliest of the following conditions: (1) the date the parties reach
an agreement on those subjects pertaining to the effects of the
May 2010 [decision], by the District School Board to close Las
Flores and abolish classified positions; (2) the parties[] exhaust
the [‘]negotiating an impasse[’] procedures prescribed by EERA;
or (3) subsequent failure by CSEA to bargain in good faith.” The
notice stated it was an “official notice” that “must remain posted
for at least thirty (30) consecutive workdays from the date of
posting” and “must not be reduced in size, defaced, altered or
covered with any other material.”
6
bargaining proposals within twenty (20) days following the
service of this Decision and Order,” and stated that if CSEA
failed to submit such proposals within the requisite time
frame, “this limited backpay remedy shall not go into effect.”
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
4 The notice posted by appellant stated: “After a hearing in
Unfair Practice Case No. LA-CE-5508, California School
Employees Association and its Chapter 32 v. Bellflower Unified
School District, in which all parties had the right to participate; it
has been found that the Bellflower Unified School District
(District) during the 2009-2010 school year violated the [EERA]
. . . . [¶] As a result of this conduct, we have been ordered to post
(Fn. is continued on the next page.)
7
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
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.’”5
PERB made multiple attempts to obtain appellant’s
compliance. On March 2, 2016, the OGC advised appellant
this notice.” Appellant offered at a later point to post a modified
notice containing the cease and desist portion of the notice to
Employees appended to Decision No. 2385.
5 CSEA sent a letter emphasizing that the notice would
“inform[] the unit employees of the protections afforded by PERB
in [events such as] actions by [appellant] to close schools or lay off
employees without negotiating with their exclusive
representative.”
8
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.
6 In one of its letters, the General Counsel stated: “[T]he
General Counsel does not have the authority to make any
modification to the Board’s orders. On the contrary, I am
obligated by the [EERA] and PERB’s regulations to insure
compliance with the orders as written and, if authorized by the
Board, to initiate an enforcement action in the superior court.
[Citation.]”
9
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.
On September 30, 2015, the Board issued Decision No.
2455, adopting the ALJ’s proposed decision. The Board
specifically rejected appellant’s contention that certain
employees, such as bus drivers who did not work 12-month
assignments, were not entitled to holiday pay, finding that
“[u]nder the [collective bargaining agreement], employees
included within the bargaining unit are entitled to holiday
pay whether they work the holiday or not so long as they are
on paid status on the working day immediately preceding or
succeeding the holiday. The District’s attempt to remove bus
drivers and other CSEA-represented bargaining unit
employees from coverage under the [collective bargaining
agreement] by referring to them as ‘as needed’ or to their
10
assignments as ‘extra-duty or summer session’ or ‘beyond
their “regular” assignments’ fails. These distinctions are
nowhere to be found in the parties’ negotiated labor
agreement.”
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.
7 The appended Notice to Employees stated that appellant
would “cease and desist” from: “1. Failing to negotiate in good
faith by enacting unilateral policy changes concerning issues
within the scope of representation and by failing to timely
(Fn. is continued on the next page.)
11
On November 5, 2015, PERB sent a letter informing
appellant that Decision No. 2455 was final, and identifying
the remedial action to be taken by appellant to comply with
Order No. 2455: posting the Notice to Employees in the
appropriate places for the requisite number of days and
describing the steps taken to rescind the holiday pay policy
change, make all unit employees affected by the change
whole, and provide a complete response to CSEA’s request
for information or certify the previous response was
complete. The letter instructed appellant to file a
respond to requests for necessary and relevant information by
CSEA [¶] 2. Interfering with the rights of unit employees to be
represented by CSEA. [¶] 3. Denying CSEA its right to represent
unit employees.” It further stated that appellant would take the
following “affirmative actions designed to effectuate the policies
of EERA”: “1. Rescind the policy change regarding payment of
holiday leave pay and abide by the terms under the July 1, 2007-
June 30, 2010 collective bargaining agreement . . . . [¶] 2. Make-
whole unit employees . . . for financial losses suffered as a result
of the District’s unlawful action who were working and in paid
status on either July 3, 2012 or July 5, 2012. Any financial losses
should be augmented with interest at a rate of 7 percent per
annum. [¶] 3. Either: (1) provide a complete response to CSEA’s
request for information dated September 19, 2012; or (2) verify,
in writing, to CSEA that the responses provided thus far are
complete.” Like the prior notice, the notice required by Order No.
2455 stated it was an “OFFICIAL NOTICE” that “MUST
REMAIN POSTED FOR AT LEAST THIRTY (30)
CONSECUTIVE WORKDAYS FROM THE DATE OF POSTING”
and “MUST NOT BE REDUCED IN SIZE, DEFACED,
ALTERED OR COVERED WITH ANY OTHER MATERIAL.”
12
compliance statement by November 19, 2015. PERB
extended the deadline several times thereafter.
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
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,
8 CSEA disputed that contention, stating in a March 2016
letter to the OGC that appellant had “failed and refused to make
whole the affected employees for their financial losses with
interest.” CSEA further represented that appellant had failed to
respond to its information requests.
13
2016, the OGC informed appellant it had been authorized by
the Board to seek enforcement of Order No. 2455.
C. Petition for Writ of Mandate
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 to comply with the terms and directives set forth
in the orders.9 The petition asserted that appellant had a
clear, present and ministerial duty to comply with the
orders.
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
9 Section 3542, subdivision (d), provides: “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 file in the court the record of the
proceedings certified by the board, and appropriate evidence
disclosing the failure to comply with the decision or order. If,
after hearing, the court determines that the order was issued
pursuant to procedures established by the board and that the
person or entity refused to comply with the order, the court shall
enforce such order by writ of mandamus. The court shall not
review the merits of the order.”
14
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 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
15
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 filing of the petition for writ of mandate were
“‘unreasonable and arbitrary.’” Finally, appellant contended
that PERB had not established that it had authorized the
OGC to file the petition for writ of mandate.
D. Trial Court’s Order
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 3452, 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
16
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 CCR, title
8, section 32980. It found no such abuse: “The provision
17
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 range of tools to effectuate
compliance with the Board’s decisions and orders.
[Citation.] . . . [Appellant’s] argument that alternative
notices should have been negotiated is contrary to the
mandates of the orders and the language contained in the
Notices themselves, requiring [appellant to] post unaltered
copies of the Notices appended to the decisions.
Furthermore, the record reflects that PERB’s OGC
conducted an inquiry and investigation into whether
[appellant] was complying with the orders, by exchanging
several rounds of correspondence among the parties, and
holding a teleconference. [Citations.] The District made
clear in its communications with PERB that it was electing
not to comply with the orders. [Citations.]” The court
observed that in any event, “[a] post hoc agreement between
only [appellant] and PERB to modify the Board’s final orders
arguably would interfere with CSEA’s right to have the
orders enforced. [Citation.]”
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
18
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.
DISCUSSION
A. Standard of Review
A writ of mandate lies under Code of Civil Procedure
section 1085 “‘to compel the performance of a legal duty
19
imposed on a government official’” or “a public body.”
(James v. State of California (2014) 229 Cal. App. 4th 130,
136; accord, Hayes v. Temecula Valley Unified School Dist.
(2018) 21 Cal.App.5th 735, 746 (Hayes).) “To obtain relief
under Code of Civil Procedure section 1085, ‘“the petitioner
must show there is no other plain, speedy, and adequate
remedy; the respondent has a clear, present, and ministerial
duty to act in a particular way; and the petitioner has a
clear, present and beneficial right to performance of that
duty. [Citation.] A ministerial duty is one that is required
to be performed in a prescribed manner under the mandate
of legal authority without the exercise of discretion or
judgment.”’ [Citation.]” (Hayes, supra, at p. 746.)
“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.)
More fundamentally, we apply the rule that “an
appealed judgment or order is presumed to be correct” and
“error must be affirmatively shown.” (Eisenberg et al., Cal.
Practice Guide: Civil Appeals and Writs (The Rutter Group
2017) ¶ 8:15, p. 8-5, italics omitted.) In addition,
“‘[a]ppellate briefs must provide argument and legal
20
authority for the positions taken. “When an appellant fails
to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the
point as waived.”’ [Citation.]” (Cahill v. San Diego Gas &
Electric Co. (2011) 194 Cal. App. 4th 939, 956.) “‘We are not
bound to develop appellants’ argument for them. [Citation.]
The absence of cogent legal argument or citation to authority
allows this court to treat the contention as waived.’
[Citations.]” (Ibid.)
B. The Board’s Compliance with Procedural
Requirements
Section 3542, subdivision (d), permits the Board to seek
enforcement of any final decision or order in superior court.
The court must issue a writ of mandamus if, after a hearing,
it determines that “the order was issued pursuant to
procedures established by the board and that the person or
entity refused to comply with the order.” Section 3542,
subdivision (d), specifically prohibits the court from
“review[ing] the merits of the order.” Appellant contends
PERB failed to prove that its “complex and extensive”
procedures were followed. The trial court found otherwise.
Substantial evidence supports the trial court’s finding.
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
21
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, judgment
affirmed and ordered published (1987) 43 Cal. 3d 696 (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.) Acknowled-
ging “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. (Tex-Cal I, supra, at
pp. 1537, 1538.) The court went on to state, however: “As
we view it, most appeals of such judgments will be frivolous
in nature. Only two findings are required by the superior
10 Labor Code section 1160.8 permits the Agricultural Labor
Relations Board to “apply to the superior court in any county in
which the unfair labor practice occurred” for enforcement of its
orders, and requires the court to enforce such orders “by writ of
injunction or other proper process” if it determines that “the
order was issued pursuant to procedures established by the board
and that the person refuses to comply with the order . . . .”
22
court as a condition to the issuance of the ‘writ of injunction
or other proper process’ enforcing the order. These are (1)
the procedural regularity of the order and (2) the refusal of
the party subject to the order to comply therewith. . . . By
the time the enforcement judgment is entered in the typical
case, any serious question of procedural regularity will have
long since been corrected or waived by a failure to object to
the irregularity in a petition for review in the Court of
Appeal. The question of refusal to comply with the Board
order is a fact question for the superior court which seldom
will be overturned on appeal. Normally, Board declarations
of noncompliance and notice will be sufficient evidence to
support a ‘refusal’ finding in this context. Thus, it is difficult
to imagine a case where an appeal from the judgment will be
filed for any purpose other than to delay the enforcement of
the judgment.” (Id. at p. 1538.)11
11 In Agricultural Labor Relations Bd. v. Tex-Cal Land
Management, Inc. (1987) 43 Cal. 3d 696 (Tex-Cal II), the Supreme
Court affirmed the holding that section 3542, subdivision (d)
enforcement actions were appealable, and echoed the Court of
Appeal’s sentiments: it “sympathize[d] with the Board’s desire
for prompt enforcement of its final order once the order is beyond
review on the merits,” “recognize[d] the potential for delay in
frivolous appeals from superior court enforcement judgments,”
and agreed that “the issues on appeal from a superior court
enforcement judgment will be limited. Procedural regularity and
refusal to comply are the only points which can be raised.” (Tex-
Cal II, supra, at pp. 705-706.) The Supreme Court took the
unusual step of ordering the Court of Appeal decision published
notwithstanding its review because “significant Court of Appeal
(Fn. is continued on the next page.)
23
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), 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
opinions should be available as citable precedent with respect to
issues not reached by us on subsequent review,” and the
appellate court’s opinion was “beneficial and worthy of
publication in that regard . . . .” (Id. at 709, fn. 12.)
24
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 CCR, title 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 the conclusion of the
hearings, the parties were given an opportunity to file, and
did file, post-hearing briefs. (See id., § 32212 [Briefs and
Oral Argument].) The ALJs’ issued proposed decisions. (See
id., § 32215 [Proposed Decision].) One or both of the parties
filed exceptions, requiring the Board to review the proposed
decisions. (See id., § 32300 [Exceptions to Board Agent
Decision].) The Board issued and served decisions and
orders affirming the ALJ’s proposed decisions. (See id.,
§ 32320 [Decision of the Board Itself].)
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
25
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
12 Appellant also cited, and continues to cite, patently
irrelevant regulations: CCR, title 8, sections 32621 governing
amendment of charges, 32625 governing withdrawal of charges
and 32649 governing answers to amended charges. Clearly,
these regulations have no applicability where CSEA neither
amended nor withdrew any unfair practice charges. Appellant
provides no explanation for its citation to inapplicable PERB
regulations; to the extent it suggests that meeting the burden of
proof in an enforcement action requires PERB to place a copy of
its regulations into the record and go through each of them, line
by line, explaining to the trial court exactly how it was followed
or why it was irrelevant, we decline to ascribe such an absurd
meaning to section 3542, subdivision (d)’s requirements.
26
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
complied with final Board orders. As discussed, it permits
the General Counsel or his or her designate to “conduct an
inquiry, informal conference, investigation, or hearing as
appropriate, concerning any compliance matter.” Appellant
contends the General Counsel abused his discretion in
refusing to negotiate over the wording of the notices or to
allow appellant to post modified notices.
Initially, we observe that to the extent appellant
contends the General Counsel’s post-decision 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,
27
supra, 192 Cal.App.3d at p. 1358; 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.” (CCR, tit. 8, § 32980, 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.
28
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 evidence before the Board concerning the number of
employees affected. Accordingly, the Board found CSEA’s
allegations true, and ordered appellant to pay all affected
employees and provide CSEA the information needed to
establish which employees were affected. The Notice to
Employees demanded by Order No. 2455 requires appellant
to inform employees that it will rescind the holiday pay
policy change, make whole all affected employees, and
provide CSEA the information it needs to protect those it
represents. Appellant remains under that obligation.
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 [2013 Cal. PERB LEXIS 44] at
pp. *74-*75 [“The Board’s authority to inform employees of
their rights, and its discretion to determine the
29
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 of
remedying unfair practices and further the polices of the
statutes we administer.”]; Trustees of the California State
University, supra, PERB Dec. No. HO-U-335-H at [1988 Cal.
PERB LEXIS 49] at p. *1 [“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 District (1980) PERB Dec. No. 157
[1980 Cal. PERB LEXIS 24] at p. *13 [“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
30
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
circumstances, and should serve as reminders to those in
authority to avoid unilateral action that violates the EERA.
31
DISPOSITION
The order granting the petition for writ of mandate is
affirmed. Respondent and real party are awarded their costs
on appeal.
CERTIFIED FOR PUBLICATION
MANELLA, P. J.
We concur:
WILLHITE, J.
MICON, J.*
________________________________________________________
*Judge of the Los Angeles County Superior Court assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
32