This case was last updated from Los Angeles County Superior Courts on 06/06/2019 at 21:18:25 (UTC).

PUBLIC EMPLOYMENT RELATIONS BOARD VS BELLFLOWER UNIFIED SCHO

Case Summary

On 04/01/2016 PUBLIC EMPLOYMENT RELATIONS BOARD filed an Other - Other Judicial Review lawsuit against BELLFLOWER UNIFIED SCHO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Disposed - Judgment Entered.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1585

  • Filing Date:

    04/01/2016

  • Case Status:

    Disposed - Judgment Entered

  • Case Type:

    Other - Other Judicial Review

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiffs and Petitioners

PUBLIC EMPLOYMENT RELATIONS BOARD

BOARD PUBLIC EMPLOYMENT RELATIONS

Defendant and Respondent

BELLFLOWER UNIFIED SCHOOL DISTRICT

Interested Party

CALIFORNIA SCHOOL EMPLOYEES ASSOCIATION

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

DE LA TORRE J. FELIX

FARRO SHEENA J.

Defendant and Respondent Attorneys

ERIC BATHEN ESQ

BATHEN ERIC JOHN JR

Interested Party Attorney

BLEULER CHRISTINA CORNELIA

 

Court Documents

PROOF OF SERVICE (CCP ? 1013A)

1/17/2018: PROOF OF SERVICE (CCP ? 1013A)

NOTICE OF ENTRY OF JUDGMENT GRANTING PEREMPTORY WRIT OF MANDATE

1/17/2018: NOTICE OF ENTRY OF JUDGMENT GRANTING PEREMPTORY WRIT OF MANDATE

Proof of Service by Mail

4/26/2019: Proof of Service by Mail

VERIFIED PETITION FOR WRIT OF MANDATE

4/1/2016: VERIFIED PETITION FOR WRIT OF MANDATE

SUMMONS

4/5/2016: SUMMONS

NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

4/7/2016: NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

PROOF OF SERVICE

6/3/2016: PROOF OF SERVICE

PROOF OF SERVICE (CCP SECTION 1013A)

8/17/2016: PROOF OF SERVICE (CCP SECTION 1013A)

NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER PRECLUDING DEFENDANT FROM TAKING DEPOSITIONS OF THE PUBLIC EMPLOYMENT RELATIONS BOARD'S REGIONAL ATTORNEYS AND FURTHER DISCOVERY

12/22/2016: NOTICE OF MOTION AND MOTION FOR PROTECTIVE ORDER PRECLUDING DEFENDANT FROM TAKING DEPOSITIONS OF THE PUBLIC EMPLOYMENT RELATIONS BOARD'S REGIONAL ATTORNEYS AND FURTHER DISCOVERY

PROOF OF SERVICE (CCP 1013A)

12/29/2016: PROOF OF SERVICE (CCP 1013A)

JOINT REQUEST TO STAY BRIEFING SCHEDULE AND TRIAL DATE UNTIL PENDING MOTIONS RESOLVED; ORDER

1/5/2017: JOINT REQUEST TO STAY BRIEFING SCHEDULE AND TRIAL DATE UNTIL PENDING MOTIONS RESOLVED; ORDER

Proof of Service

2/9/2017: Proof of Service

Proof of Service

2/14/2017: Proof of Service

PROOF OF SERVICE (CCP ? 1013A)

3/24/2017: PROOF OF SERVICE (CCP ? 1013A)

BELLFLOWER UNIFIED SCHOOL DISTRICT'S OPPOSITION TO PERB'S MOTION TO QUASH DEPOSITION NOTICES AND OPPOSITION TO MOTIONS FOR PROTECTIVE ORDERS RE DEPOSITION NOTICES, SPECIAL INTERROGATORIES, AND REQUEST

4/5/2017: BELLFLOWER UNIFIED SCHOOL DISTRICT'S OPPOSITION TO PERB'S MOTION TO QUASH DEPOSITION NOTICES AND OPPOSITION TO MOTIONS FOR PROTECTIVE ORDERS RE DEPOSITION NOTICES, SPECIAL INTERROGATORIES, AND REQUEST

PROOF OF SERVICE (CCP ? 1013A)

4/13/2017: PROOF OF SERVICE (CCP ? 1013A)

Minute Order

4/20/2017: Minute Order

Minute Order

10/24/2017: Minute Order

55 More Documents Available

 

Docket Entries

  • 04/30/2019
  • at 3:25 PM in Department 82; Court Order

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  • 04/30/2019
  • Minute Order ( (COURT ORDER)); Filed by Clerk

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  • 04/30/2019
  • Certificate of Mailing for (Minute Order (COURT ORDER) of 04/30/2019); Filed by Clerk

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  • 04/26/2019
  • Objection ( to Return to the Peremptory Writ of Mandate); Filed by Public Employment Relations Board (Petitioner)

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  • 04/26/2019
  • Declaration (of Sheena J. Farro); Filed by Public Employment Relations Board (Petitioner)

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  • 04/26/2019
  • Other - (Exhibits to Declaration of Sheena J. Farro); Filed by Public Employment Relations Board (Petitioner)

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  • 04/26/2019
  • Proof of Service by Mail; Filed by Public Employment Relations Board (Petitioner)

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  • 04/02/2019
  • Notice (Reutrn by Bellflower Unified School District to Writ of Mandate Issued by the Court); Filed by Bellflower Unified School District (Respondent)

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  • 02/04/2019
  • Appeal - Remittitur - Affirmed (Petition for writ of mandate. B288594); Filed by Clerk

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  • 03/15/2018
  • Notice of Designation of Record; Filed by Appellant

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123 More Docket Entries
  • 04/11/2016
  • Proof of Service (not Summons and Complaint); Filed by Petitioner

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  • 04/11/2016
  • Proof of Service

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  • 04/07/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/07/2016
  • NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

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  • 04/07/2016
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

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  • 04/05/2016
  • SUMMONS

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  • 04/05/2016
  • Summons; Filed by Public Employment Relations Board (Petitioner)

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  • 04/01/2016
  • Petition; Filed by null

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  • 04/01/2016
  • DECLARATION OF RONALD R. PEARSON IN SUPPORT OF VERIFIED PETITION FOR WRIT OF MANDATE

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  • 04/01/2016
  • VERIFIED PETITION FOR WRIT OF MANDATE

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Tentative Rulings

Case Number: BS161585    Hearing Date: February 04, 2021    Dept: 82

Public Employment Relations Board,

v.

Bellflower Unified School District,

Judge Mary Strobel

Hearing: February 4, 2021

BS161585

Tentative Decision on Motions to Enforce Writ of Mandate

Petitioner Public Employment Relations Board (“Petitioner”, “PERB”, or “Board”) moves to enforce the writ of mandate issued in this action against Respondent Bellflower Unified School District (“Respondent” or “District”) by ordering District to pay certain employees holiday pay for July 4, 2012, along with 7 percent interest per year.

PERB’s Evidentiary Objections

Supplemental Declaration of Marcy Delgado Dated April 8, 2020

(1) Sustained.

(2) Sustained.

(3) Sustained.

Second Supplemental Declaration of Marcy Delgado Dated April 27, 2020

(1) Sustained.

Declaration of Julie Stanley and Exhibits

(1) Sustained. No foundation or personal knowledge for Exhibit A. Exhibit A is hearsay and declarant does not lay business records or public records foundation. (Evid. Code §§ 1271, 1280.)

(2) Sustained.

(3) Sustained.

(4) Sustained.

(5) Sustained.

(6) Sustained.

(7) Sustained.

(8) Sustained.

Procedural History

Bellflower Unified School District (2014) PERB Decision No. 2385

On June 30, 2014, PERB issued Decision No. 2385 against District. (AR III:620-53.) Decision No. 2385 is not at issue for the instant motions.

Bellflower Unified School District (2015) PERB Decision No. 2455

On January 10, 2013, CSEA filed an unfair practice charge against District alleging that it violated EERA by changing a holiday leave policy without giving CSEA notice or an opportunity to bargain. (AR IV:740-76.) After a formal administrative hearing, an ALJ issued a proposed decision which found that the District had implemented an unlawful unilateral change, and failed to timely respond to CSEA’s requests for information. (AR V:1159, 1161.) After the District filed exceptions, PERB adopted the ALJ’s proposed decision on September 30, 2015. (AR V:1215-60.)

Included with the decision was a remedial order (Order No. 2455), which required the District to: (1) rescind the policy change regarding holiday leave and abide by the terms of the parties' collective bargaining agreement (CBA); (2) make-whole unit 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 provided thus far are complete; (4) post the Notice to Employees, which was appended to the decision, both at employee work locations and electronically; and (5) provide PERB with written notification of the actions taken by the District to comply with the order. (AR V:1224-27.)

The District did not seek judicial review of the Board’s decision or order. (Pet. ¶ 44; Ans. ¶ 44.)

Court Enforcement of Order Nos. 2385 and 2455 and District’s Unsuccessful Appeal

On April 1, 2016, Petitioner filed a verified petition for writ of mandate pursuant to CCP section 1085 and Government Code section 3542(d). Petitioner asserted in the petition that District had failed to comply with Order Nos. 2385 and 2455.

On December 7, 2017, the court granted the writ petition. The court found that Order Nos. 2385 and 2455 were issued pursuant to procedures established by the Board, and that District refused to comply with the orders.

On January 3, 2018, the court entered judgment granting the writ petition. That same date, the court issued a writ commanding District to comply with Board’s orders Nos. 2385 and 2455, and to file a return setting forth all measures taken to comply with the writ.

District appealed, and the judgment was affirmed in full in a published decision. (PERB v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927.) On February 4, 2019, the remittitur was issued.

District’s Returns to the Writ

On April 2, 2019, District filed its return to the writ. On April 26, 2019, Board filed objections to District’s return. On April 30, 2019, the court issued a minute order stating that it had received the objections and that Board may file a motion to enforce the writ if it so chooses. On September 30, 2019, District filed an amended return.

Board’s Prior Motion to Enforce; Court’s Order Granting the Motion

On October 8, 2019, Board filed and served a motion to enforce the writ. On October 17, 2019, District filed its opposition. On October 24, 2019, Board filed its reply.

On October 31, 2019, the court (Judge Daniel Murphy) granted the motion. On November 14, 2019, the court entered PERB’s proposed order which required, inter alia, District to provide the names of all Classified unit less-than-12-month employees who worked on either July 3 or 5, 2012; to specify whether or not the employees were paid for the July 4, 2012, holiday; and to provide related payroll records and information. The compliance date was December 18, 2019.

In the November 14, 2019, order, the court also set a status conference for January 23, 2020, regarding whether District employees are entitled to backpay and the amount of backpay.

January 23, 2020 Status Conference

On January 16, 2020, prior to the status conference, District filed the declarations of Eric Bathen and Marcy Delgado re: compliance with order to enforce writ of mandate. The court considers these declarations in the analysis below. At the status conference, the court ordered counsel to meet and confer to see if an agreement could be reached on the number of employees entitled to backpay and other disputed issues. The court also set a hearing date for a motion to enforce the writ.

The Instant Motions to Enforce

On April 27, 2020, PERB filed a motion to enforce the writ of mandate (cited below as “Mot.”), along with a declaration of Sheena Farro (“Farro Decl.”) and other evidence. That same date, CSEA filed a memorandum of points and authorities (cited as “CSEA Memo.”) and multiple declarations in support of PERB’s motion. On May 6, 2020, District filed an opposition (“Oppo.”) and supporting declarations. On October 1, 2020, PERB and CSEA filed replies.

On October 8, 2020, the matter came for hearing. On its own motion, the court continued the hearing on the motion to February 4, 2021. The court also ordered PERB to file a new motion that addresses “PERB's methodology of compiling lists one and two and their position, legal argument and evidence regarding holiday pay and how it is calculated.”

On December 7, 2020, PERB filed its second motion to enforce in compliance with the court’s order (cited below as “2nd Mot.”) along with a second declaration of Sheena Farro (“2nd Farro Decl.”) The court has received District’s second opposition (“2nd Oppo.”) and PERB’s second reply (“2nd Reply”). No additional papers have been filed by CSEA.

Summary of Applicable Law

“When a respondent believes it has completely fulfilled the terms of a writ, its return should state that it has satisfied the writ in full compliance with the final judgment and writ, and set out the actions taken to meet the writ's terms. ‘While detailed findings are not necessarily required, the [District's] explanation should be thorough enough, and factual enough, to permit effective review by the courts.’ [Citation].” (Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) “The trial court that issues a writ of mandate retains continuing jurisdiction to make any orders necessary for complete enforcement of the writ.” (Ibid.; see CCP § 1097.)

CCP section 1097 “authorizes three methods by which a court may enforce a peremptory writ of mandate: (1) a court may impose a fine not exceeding $1,000; (2) a court may order the disobedient party to be imprisoned until the writ is obeyed; and (3) a court may make any order necessary and proper to enforce the writ.” (King v. Woods (1983) 144 Cal.App.3d 571, 577-578.)

Analysis

PERB’s Order No. 2455 requires District to “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.” (PERB Decision No. 2455 at 11.)

PERB and CSEA contend that District has not demonstrated compliance with the make-whole order in Order No. 2455 and therefore is in violation of this court’s judgment and order enforcing the writ. As a remedy, PERB and CSEA request an order requiring “the District to pay the employees on Lists One and Two holiday pay plus 7 percent interest per annum.” (Mot. at 15; CSEA Memo. 8.)

District Has Not Complied with the Court’s Writ With Respect to the Make-Whole Remedy in PERB Order No. 2455

On April 2, 2019, District filed its return to the writ. In relevant part, the return stated the following: “Regarding PERB Decision No. 2455, …. As to any make whole obligation of the DISTRICT, there is no obligation to make any payments to employees because no employees have come forward requesting payment for the July 4, 2012 holiday nor does the DISTRICT have any records of anyone entitled to be paid that has not already been paid….” (Ibid.) The return was signed by attorney Eric Bathen on behalf of District. No declarations under penalty of perjury were submitted by District in support of the return.

In the amended return, District stated the following: “Regarding PERB Decision No. 2455, the District has met the burden of the make whole remedy because it believes, as was stated at the unfair labor practice hearing, the employee the District was aware of that had not been paid for the July 4, 2012 holiday was paid and that all other employees due the holiday pay have been paid. The District reviewed and researched its payroll records carefully, but since it became a fiscally independent school district on July 1, 2016 and the Los Angeles County Office of Education no longer did payroll for the District, the District has no records to prove or disprove who was paid for the holiday on July 4, 2012. As stated at the unfair labor practice hearing, except for one employee who was later paid, the District believes it had already made payment to the employees who were entitled to the July 4, 2012 holiday pay. CSEA claims that the District is mandated to keep payroll records indefinitely, but the District did not do its own payroll in 2012, but it was done by LACOE. Since the District now is fiscally independent the District has been told by LACOE officials that LACOE continues to maintain those records, but those records do not show what days the employee worked or for what days the employee was paid. The District cannot issue payment without some credible written record that the payment is due.” District did not attach a declaration or other evidence to the return or amended return.

In the court’s order dated October 31, 2019, the court (Judge Daniel Murphy) found that District’s return and amended return did not show compliance with the writ. The court ruled as follows:

In effect, District seeks to relitigate PERB Decision No. 2455, which found that District had not paid employees holiday pay. (PERB Decision No. 2455 at 3-11.) Moreover, District argued in the PERB proceedings that the affected employees were not entitled to holiday pay and that it never paid the employees holiday pay. (Proposed Decision at 18.)…. District cannot now relitigate the Board’s finding that District had not paid employees holiday pay and was required to compensate those employees for financial losses, including 7 percent interest. (See PERB v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 943-44 [“Order No. 2455 requires appellant to … make whole all affected employees …. Appellant remains under that obligation.”].)

(October 31, 2019 Minute Order at 10-11.)

On January 16, 2020, prior to the January 23, 2020 status conference, District filed the declarations of Eric Bathen and Marcy Delgado re: compliance with order to enforce writ of mandate. Delgado asserted that District provided payroll documents and information to PERB in compliance with the court’s November 14, 2019 order. (Delgado Decl. filed 1/16/20 ¶ 5.) In his declaration, Bathen also relied on hearsay statements of Chief Business Officer, Thuh Binh, that “if hourly classified employees were in paid status on the day before or the day after a holiday, including the Fourth of July, they will be paid for that date.” (Bathen Decl. filed 1/16/20 ¶ 4.) Neither of these declarations indicate that District has made “make-whole” payments required by Order No. 2455 to any employee. Bathen’s declaration is essentially an attempt to re-litigate Order No. 2455, is based on hearsay, and is unpersuasive.

As indicated in PERB’s motion, District provided some documents and information in response to the court’s November 14, 2019 order. (See Mot. 6-7.) District served two subpoenas on LACOE for payroll records and forwarded the subpoenaed records to PERB. (See Farro Decl. C, D, H.) In response, PERB asserted that the payroll records appeared to show that no employees had been paid holiday pay for July 4, 2012. (Id. Exh. I at 499-501.) PERB asked District to show where holiday pay was documented in the payroll records. (Ibid.) On March 16, 2020, the District responded stating that it has provided all the records and that it has no further information to provide. (Farro Decl., Exh. J, 504-514.) The District did not dispute PERB’s observation that the payroll records appeared to show that no employees were paid holiday pay. (Ibid.)

On May 6, 2020, with its first opposition brief, District filed two supplemental declarations of Marcy Delgado. Delgado incorporates Bathen’s declaration from January 16, 2020, and declares that she “also had discussions with the CBO in 2014 who stated to me that the employees that were entitled to payment would be paid including the bus drivers and if they hadn't been paid at that time they would be paid.” (Suppl. Delgado Decl. filed 5/6/20 ¶ 3.) As with Bathen’s declaration, Delgado’s first supplemental declaration is essentially an attempt to re-litigate Order No. 2455, is based on hearsay, and is unpersuasive. The second supplemental declaration states that “the District has provided all the records it has in its possession regarding payment of holiday pay for the July 4, 2012 holiday to PERB and to CSEA.” (2nd Suppl. Delgado Decl. ¶ 2.) This statement lacks foundation and personal knowledge. Moreover, in the second declaration, Delgado does not show that District has made “make-whole” payments required by Order No. 2455 to any employee.

On January 7, 2021, with its second opposition, District filed a declaration of Julie Stanley, the personnel director for District. Stanley purports to authenticate an “assignment list for summer school assignments for classified employees for the 2012 summer school in the district.” (Stanley Decl. ¶ 2.) For reasons discussed in PERB’s second reply and evidentiary objections, all material parts of the Stanley declaration and attached exhibits are inadmissible. Among other reasons, Stanley does not show that “the sources of information and method and time of preparation” of Exhibit A “were such as to indicate its trustworthiness.” (Evid. Code §§ 1271, 1280.) Thus, Exhibit A lacks foundation and is hearsay without exception. Even if admitted, Exhibit A does not show that District has made “make-whole” payments required by Order No. 2455 to any employee.

District has not filed an amended return after the search for records it conducted in response to the November 14, 2019 order. To the extent the Bathen, Delgado, and Stanley declarations and the District’s opposition briefs serve a similar function as a return, District fails to show compliance with the court’s writ with respect to the make-whole order in Order No. 2455. As discussed at length above, Order No. 2455 establishes conclusively that District had not paid certain employees holiday pay. (PERB Decision No. 2455 at 3-11.) District cannot relitigate that issue. District does not show that District has made “make-whole” payments required by Order No. 2455 to any employee. Because District has not complied with the court’s writ and Order No. 2455, a further enforcement order under CCP section 1097 is justified, as discussed below.

Lists One and Two: PERB’s and CSEA’s Evidence of Employees Entitled to Make-Whole Payments Pursuant to Order No. 2455

The make-whole order requires the District to pay holiday pay plus interest to its Classified less-than-12-month employees who worked or were in paid status on July 3 or 5, 2012. (Bellflower, supra, PERB Decision No. 2455, pp. 3, 11.) PERB has compiled two lists of these employees. (2nd Farro Decl. filed 12/7/20, Exh. A.)

List One

PERB’s “List One” includes the following nine employees, all of whom were bus drivers: (1) Dolores Cox; (2) Garcia Melba; (3) William Gramlick; (4) Rosana Guerrero; (5) Treenitta Harber; (6) Nikki Herrera; (7) Everardo Quiroz; (8) Eva Valenzuela; and (9) Dewander White. (Farro Decl. Exh. M at 525; 2nd Farro Decl. Exh. A.)

The bus driver timesheets and payroll records show that employees on List One worked on both July 3 and 5, 2012 and are entitled to holiday pay. (2nd Farro Decl. ¶¶ 2-10, Exh. A, B, F, I.) Despite being entitled to holiday pay, the payroll records for each employee on List One do not show any payment of holiday pay. (2nd Farro Decl., Exh. F, pp. 299-230 [Cox], pp. 312-313 [Garcia], pp. 323-324 [Gramlick], pp. 326-327 [Guerrero], pp. 328-329 [Harber], pp. 332-333 [Herrera], pp. 357-358 [Quiroz], pp. 388-389 [Valenzuela], pp. 394-395 [White].) For example, Dolores Cox’s timesheet shows that she worked 47.5 hours in the pay period, which is exactly what she received pay for. (Compare Farro Decl. Exh. B, 11 with Exh. F, pp. 299-230.) Also, Melba Garcia’s timesheet shows that she worked 38.5 regular hours and 11.5 overtime hours in the pay period, which is exactly what she was paid for according to the payroll records. (Compare Farro Decl. Exh. B, 12 with Exh. F, pp. 312-313.) Employees Nikki Herrera and Treenitta Harber also provided declarations stating that they have still not been paid for the July 4, 2012 holiday. (Leenson Decl., Exh. A, ¶ 4, Exh. B, ¶ 4.) This evidence clearly demonstrates that List One employees are entitled to holiday pay.

Indeed, the District concedes that “Nikki Herrera, Treenitta Harber … had suffered losses through non-payment of holiday pay for July 4, 2012,” but does not provide any explanation for its contention that the other employees have not suffered similar losses, or any proof of holiday payment. (Oppo. filed 5/6/20, p. 4.)

District contends that “[t]here is no evidentiary foundation laid for the timesheets included in PERB' s Exhibit F.” (Oppo. 5.) These exhibits were submitted in the administrative record before PERB. (See AR 895-898, 1000-01, 1003-13.) District does not show that it properly objected below to these records on hearsay grounds. Moreover, District has apparently referred to these time sheets in declarations and letters submitted in this action. (See Suppl. Delgado Decl. ¶ 4; Farro Oct. 2019 Decl. Exh. D.) The court finds sufficient foundation for the bus driver timesheets. (See 2nd Farro Decl. ¶¶ ¶¶ 2-10, Exh. A, B, F, I.)

District also asserts that the list of nine bus drivers in List One is hearsay. (Oppo. 4.) List One contains information compiled from the Bus Driver Timesheets and Los Angeles County Office of Education (LACOE) payroll records. The compilation of information from other records in List One is not hearsay. (See Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 418-419; Evid. Code § 1523(d).)

In its second opposition, District states that it “believes” the bus drivers were paid for the July 4, 2012 holiday but “cannot offer any further evidence regarding those employees.” (2nd Oppo. 6.) By this statement, District essentially concedes that it cannot show that the List One employees have been paid the holiday pay.

In its first opposition, District argued that “PERB does not set forth a method of determining the amount each employee is entitled to receive for the holiday pay.” (Oppo. 5.) The court disagrees. According to the Administrative Record, holiday pay is calculated as follows: “[p]ay for a holiday shall be the same that the employee would have received had the day not been a holiday,” and for part-time employees, it is “prorated on the basis of assigned hours worked per day as it bears to eight hours per day, 40 hours per week, number of weeks per month, or number of months to a calendar year.” (AR, vol. II, pp. 443, 446; 2nd Farro Decl., ¶¶ 17-18.) This calculation has been corroborated by CSEA. (Bleuler Decl. filed 1/21/20 ¶ 15.) For List One employees, holiday pay should be calculated using the hours contained on the timesheets.

In the second opposition, District states: “Concerning the List One employees, if the court finds they entitled to compensation for the July 4, 2012 holiday a payment to them should be an average of the hours worked on July 3 and July 5.” (2nd Oppo. 6.) PERB does not oppose this calculation. (2nd Reply 8.) Neither has CSEA.

Based on the foregoing, the motions are GRANTED as to the List One employees.

List Two

PERB’s List Two “includes the names, job classification, pay rate, and the number of hours worked during the two-week pay period containing July 3 and 5, 2012, for the eighty-three (83) employees who were listed in the ‘Board Books’ and worked during the relevant pay period, but whose time sheets were not provided by the District.” (2nd Farro Decl. ¶ 2, Exh. A.) PERB “compiled the two lists by gathering information from sources provided by the District and Real Party in Interest CSEA,” including “Board Books” that District produced in response to this court’s enforcement order. (Id. ¶¶ 2-6, Exh. C-E.)

The District has provided only LACOE payroll records for the List Two employees—no records have been provided that show the hours these employees worked per day. (2nd Farro Decl. ¶¶ 7-10, Exh. F, I.) Therefore, the most detailed timekeeping information available to PERB for List Two is the total number of hours worked in the July 4, 2012 pay period. (2nd Farro Decl., Exh. A.) The payroll records for the List Two employees do not denote any holiday pay. (2nd Farro Decl., Exh. F, I.) The payroll records for these employees demonstrate that hourly employees worked between 16 and 75 hours during the two-week pay period that included the July 4, 2012 holiday. (2nd Farro Decl., Exhs. A, F, I.)

CSEA has also submitted declarations from Classified employees Treenitta Harber, Nikki Herrera, Lynne Michelle Cuellar, and Sandra Acosta, who all declared that they, and other Classified employees, worked on July 3 and/or 5, 2012, but were not paid July 4 holiday pay. (2nd Farro Decl., Exh. E, pp. 86, 90; Decl. of Lynne Michelle Cuellar (Cuellar Decl.), filed 4/27/2020, ¶ 5; Decl. of Sandra Acosta (Acosta Decl.), filed 4/27/2020, ¶5.)

According to CSEA, Classified less-than-12-month employees work part-time during the summer months and can be scheduled to work daily. (Declaration of Christina C. Bleuler for Case Status Conference (Bleuler Decl.), filed 1/21/20, ¶¶ 14-15.) Because the July 4 holiday fell on a Wednesday in 2012, and school was in session on Tuesday and Thursday, it is likely that these employees worked on both July 3 and 5, since it is standard practice for school districts to prohibit summer employees from taking time off. (Ibid.) CSEA argues that “the inference can be drawn, from [the] circumstances, that the employees were in fact working in their part-time positions for all nine working days of the two-week period between July 1 to July 15, 2012, including July 3 and July 5.” (CSEA Memo. 8.) Based on the evidence summarized above, and District’s failure to submit a sufficient return or persuasive evidence to the contrary, the court agrees that this inference is reasonable.

In opposition, District contends that List Two is hearsay. (Oppo. 4.) However, as discussed above, List Two was compiled from LACOE records supplied by District and presented to the court. In that context, the hearsay objection is not persuasive.

District also contends that List Two is not accurate and “includes some management employees who are paid a salary that would include holiday pay.” (Oppo. 4.) As support, District cites to pay rates of three employees -- Shaunte Boatright, Robin Beato, and Raymond Herrera. (Ibid.) Based on the payroll records, it appears that these three employees were paid on a salaried basis. PERB does not seek to include these employees in the make-whole order as they appear to not be entitled to holiday pay. (2nd Farro Decl. ¶ 14.)

District agues that “PERB, on behalf of the employees, has not come forward with evidence showing that the employee was ‘improperly compensated’ and has not shown ‘the amount and extent of that work.’" (Oppo. 5.) District, not PERB, must show compliance with Order No. 2455 and this court’s writ. District has not done so. Moreover, as discussed above, PERB and CSEA submit compelling evidence that the hourly employees on List Two were not paid holiday pay for July 4, 2012.

In its second opposition filed January 7, 2021, District states: “At the time [Lists One and Two] were prepared, the District had not recovered the data necessary to show what the actual assignment was for the employees listed on List Two. That information has now been retrieved and those lists are attached to the Declaration of Julie Stanley, the Director of Instructional Personnel for the District.” (2nd Oppo. 3.) Based on Exhibit A to the Stanley declaration, district contends that “Substantial evidence supports the conclusion that all of the employees on List Two received pay for the July 4, 2012 holiday.” (Id. at 6.) For several reasons, District’s reliance on the Stanley declaration is unpersuasive.

First, as indicated by the court’s rulings on PERB’s evidentiary declarations, Exhibit A and material parts of the Stanley Declaration are inadmissible. This evidence lacks foundation and personal knowledge, and constitutes hearsay without exception. Stanley does not show that “the sources of information and method and time of preparation” of Exhibit A “were such as to indicate its trustworthiness.” (Evid. Code §§ 1271, 1280.)

Second, Exhibit A’s lack of trustworthiness is compounded in light of the District’s prior statements to PERB and this Court, and by District’s untimely production of this evidence. The District argued at the formal administrative hearing that it never paid these employees holiday pay because it believed that they were not entitled to holiday pay. (AR vol. IV, 808-809; Bellflower, supra, PERB Decision No. 2455, pp. 2, 18, 21 of prop. dec.) Also, the District has repeatedly stated that it has already provided all of the relevant employment and/or payroll records to PERB and CSEA. The District’s legal counsel has stated to PERB that it has “provided all records for the time period of July 1 to July 15, 2012 as to who worked during those summer months in those classified positions” and that it has “no further information to provide.” (2nd Farro Decl., Exh. L, p. 572.) The District’s Amended Return admits that it “has no records to prove or disprove who was paid for the holiday on July 4, 2012.” (Amendment to Return, filed 9/30/19 ¶ 10.)

Finally, even if the court were to consider Exhibit A, despite its inadmissibility, it does not demonstrate that District has actually paid the List Two employees holiday pay for July 4, 2012. Among other reasons, Exhibit A purports to list the hours assigned, not the actual hours worked. (Stanley Decl., ¶ 3, Exh. A.) Exhibit A also does not include 17 of the 84 employees on List Two. (See 2nd Reply 5-6; Reply Farro Decl. ¶¶ 2-5 and Exh. 1.) Nor does Exhibit A provide any information about payment of holiday pay to the employees.

In its first opposition, District argued that “PERB does not set forth a method of determining the amount each employee is entitled to receive for the holiday pay.” (Oppo. 5.) For the reasons stated above, the court disagrees. (See AR, vol. II, pp. 443, 446; 2nd Farro Decl., ¶¶ 17-18.)

PERB argues that “[s]ince the District has failed to retain the records that would detail the exact hours each List Two employee worked on July 3 or 5, in spite of its recordkeeping requirements, the absence of these records leads to the inference that employees on List Two are entitled to eight hours of holiday pay.” (2nd Mot. 13.) “Where the employer's records are inaccurate or inadequate … an employee has carried out his burden if he proves that he has in fact performed work for which he was improperly compensated and if he produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference. The burden then shifts to the employer to come forward with evidence of the precise amount of work performed or with evidence to negative the reasonableness of the inference to be drawn from the employee's evidence.” (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 686 [action for wages under the Fair Labor Standards Act].)

Although reasonable inferences should be made in calculating the pay owed to List Two employees, PERB’s own evidence does not support eight hours of holiday pay. (2nd Mot. 13.) Indeed, the payroll records for these employees demonstrate that nearly all List Two employees worked between 16 and 51.5 hours during the two-week pay period that included the July 4, 2012 holiday. (2nd Farro Decl. ¶¶ 2-10, Exhs. A, F, I.) Assuming 9 working days (excluding the holiday), these employees would average about 2 to 6 hours per day. Only one employee – Sandra Acosta – worked 75 hours that pay period. (Ibid.) PERB’s and CSEA’s evidence also suggests that the employees likely worked every workday throughout the two-week period. (See e.g. Cuellar Decl. filed 4/27/20 ¶ 5; St. Clair Decl. ¶¶ 9-11; Bleuler Decl. filed 1/21/20 ¶¶ 14-15 [“the inference can be drawn, from all of the above circumstances, that the employees were in fact working in their part-time positions for 16 all nine working days of the two-week period”].) As stated by Senior Labor Relations Representative Jason Ter Keurst, “Less-than-12-month employees working during the summer school session are very frequently assigned part-time schedules. Part-time employees work less than eight hours per day and can work as few as three to four hours per day.” (Ter Keurst Decl. ¶ 10.)

Given this evidence, it appears reasonable to base holiday pay for List Two employees on some average of their two-week pay period hours, as reflected in pay data compiled in List Two. (See 2nd Farro Decl. Exh. A.) Counsel should address this issue at the hearing.

Based on the foregoing, the motions are GRANTED as to the List Two employees.

Conclusion

The motions are GRANTED as to the List One employees. The court will enter an order directing District to make payments of holiday pay for July 4, 2012, plus seven percent interest per annum, to all employees in List One. In calculating the payment owed, District shall use the List One employee’s pay rate multiplied by the average of his or her hours worked on July 3 and July 5, 2012.

The motions are GRANTED as to the List Two employees. The court will enter an order directing District to make payments of holiday pay for July 4, 2012, plus seven percent interest per annum, to all employees in List Two (except for Shaunte Boatright, Robin Beato, and Raymond Herrera.) In calculating the payment owed, District shall use the List Two employee’s pay rate multiplied by an average of his or her hours worked during the pay period that included July 4, 2012. The average should be determined by dividing the total number of hours worked during the pay period by nine. At the hearing, counsel should address whether some other method should be used.

For List One and List Two employees, District shall provide PERB and CSEA with detailed documentation of its payment, including the District’s calculation of the amount owed and photocopies of paystubs and/or checks issued.

Case Number: BS161585    Hearing Date: October 08, 2020    Dept: 82

Public Employment Relations Board,

v.

Bellflower Unified School District,

Judge Mary Strobel

Hearing: October 8, 2020

BS161585

Tentative Decision on Motion to Enforce Writ of Mandate

Petitioner Public Employment Relations Board (“Petitioner”, “PERB”, or “Board”) moves to enforce the writ of mandate issued in this action against Respondent Bellflower Unified School District (“Respondent” or “District”) with an order imposing issue sanctions finding as a matter of law that certain District employees are entitled to holiday pay for July 4, 2012, along with 7 percent interest per year.

PERB’s Evidentiary Objections

Supplemental Declaration of Marcy Delgado Dated April 8, 2020

(1) Sustained.

(2) Sustained.

(3) Sustained.

Second Supplemental Declaration of Marcy Delgado Dated April 27, 2020

(1) Sustained.

Background[1]

Bellflower Unified School District (2014) PERB Decision No. 2385

On June 30, 2014, PERB issued Decision No. 2385 against District. (AR III:620-53.) Decision No. 2385 is not at issue for the instant motion.

Bellflower Unified School District (2015) PERB Decision No. 2455

On January 10, 2013, CSEA filed an unfair practice charge against District alleging that it violated EERA by changing a holiday leave policy without giving CSEA notice or an opportunity to bargain. (AR IV:740-76.) After a formal administrative hearing, an ALJ issued a proposed decision which found that the District had implemented an unlawful unilateral change, and failed to timely respond to CSEA’s requests for information. (AR V:1159, 1161.) After the District filed exceptions, PERB adopted the ALJ’s proposed decision on September 30, 2015. (AR V:1215-60.)

Included with the decision was a remedial order (Order No. 2455), which required the District to: (1) rescind the policy change regarding holiday leave and abide by the terms of the parties' collective bargaining agreement (CBA); (2) make-whole unit 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 provided thus far are complete; (4) post the Notice to Employees, which was appended to the decision, both at employee work locations and electronically; and (5) provide PERB with written notification of the actions taken by the District to comply with the order. (AR V:1224-27.)

The District did not seek judicial review of the Board’s decision or order. (Pet. ¶ 44; Ans. ¶ 44.)

Court Enforcement of Order Nos. 2385 and 2455 and District’s Unsuccessful Appeal

On April 1, 2016, Petitioner filed a verified petition for writ of mandate pursuant to CCP section 1085 and Government Code section 3542(d). Petitioner asserted in the petition that District had failed to comply with Order Nos. 2385 and 2455.

On December 7, 2017, the court granted the writ petition. The court found that Order Nos. 2385 and 2455 were issued pursuant to procedures established by the Board, and that District refused to comply with the orders.

On January 3, 2018, the court entered judgment granting the writ petition. That same date, the court issued a writ commanding District to comply with Board’s orders Nos. 2385 and 2455, and to file a return setting forth all measures taken to comply with the writ.

District appealed, and the judgment was affirmed in full in a published decision. (PERB v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927.)

On February 4, 2019, the remittitur was issued.

District’s Return to the Writ

On April 2, 2019, District filed its return to the writ. In relevant part, the return stated the following:

“Following the Decision of the Court of Appeals in this case on December 4, 2018, counsel for the parties have discussed and communicated in writing, including letters and e-mails, to discuss the implementation of the … PERB Decision Numbers 2385 and 2455….[¶] Those discussions did not result in any final agreement between the three parties as to the obligations of the DISTRICT.” (Court file, 4/2/19.)

“Regarding PERB Decision No. 2455, …. As to any make whole obligation of the DISTRICT, there is no obligation to make any payments to employees because no employees have come forward requesting payment for the July 4, 2012 holiday nor does the DISTRICT have any records of anyone entitled to be paid that has not already been paid….” (Ibid.)

The return was signed by attorney Eric Bathen on behalf of District. No declarations under penalty of perjury were submitted by District in support of the return.

Board’s Objections to Return

On April 26, 2019, Board filed objections to District’s return. On April 30, 2019, the court issued a minute order stating that it had received the objections and that Board may file a motion to enforce the writ if it so chooses.

District’s Amended Return

On September 30, 2019, District filed an amended return, which states the following, inter alia:

“The documents requested by CSEA and ordered by PERB in Decision No. 2455 have been available to CSEA since 2012 pursuant to public information found in the District’s Board Books provided regularly to CSEA officials by the District.” (Court file, 9/30/19.)

“Regarding PERB Decision No. 2455, the District has met the burden of the make whole remedy because it believes, as was stated at the unfair labor practice hearing, the employee the District was aware of that had not been paid for the July 4, 2012 holiday was paid and that all other employees due the holiday pay have been paid….” (Ibid.)

The amended return was signed by attorney Eric Bathen on behalf of District. No declarations under penalty of perjury were submitted by District in support of the amended return.

Board’s Prior Motion to Enforce; Court’s Order Granting the Motion

On October 8, 2019, Board filed and served a motion to enforce the writ. On October 17, 2019, District filed its opposition. On October 24, 2019, Board filed its reply.

On October 31, 2019, the court (Judge Daniel Murphy) granted the motion. On November 14, 2019, the court entered PERB’s proposed order which required, inter alia, District to provide the names of all Classified unit less-than-12-month employees who worked on either July 3 or 5, 2012; to specify whether or not the employees were paid for the July 4, 2012, holiday; and to provide related payroll records and information. The compliance date was December 18, 2019.

In the November 14, 2019, order, the court also set a status conference for January 23, 2020, regarding whether District employees are entitled to backpay and the amount of backpay.

January 23, 2020 Status Conference

On January 16, 2020, prior to the status conference, District filed the declarations of Eric Bathen and Marcy Delgado re: compliance with order to enforce writ of mandate. The court considers these declarations in the analysis below.

At the status conference, the court ordered counsel to meet and confer to see if an agreement could be reached on the number of employees entitled to backpay and other disputed issues. The court also set a hearing date for a motion to enforce the writ.

The Instant Motion to Enforce

On April 27, 2020, PERB filed the instant motion to enforce the writ of mandate. That same date, CSEA filed a memorandum of points and authorities and multiple declarations in support of PERB’s motion, as well as proof of service.

On May 1, 2020, as a result of conditions and orders related to the spread of Covid-19, the motion was continued to October 8, 2020.

On May 6, 2020, District filed an opposition and supporting declarations.

On October 1, 2020, PERB and CSEA filed replies.

Summary of Applicable Law

“When a respondent believes it has completely fulfilled the terms of a writ, its return should state that it has satisfied the writ in full compliance with the final judgment and writ, and set out the actions taken to meet the writ's terms. ‘While detailed findings are not necessarily required, the [District's] explanation should be thorough enough, and factual enough, to permit effective review by the courts.’ [Citation].” (Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) “The trial court that issues a writ of mandate retains continuing jurisdiction to make any orders necessary for complete enforcement of the writ.  If the petitioner or the court is dissatisfied with the return, the court may order the respondent to reconsider.” (Ibid.; see CCP § 1097.)

CCP section 1097 provides in full: “If a peremptory mandate has been issued and directed to an inferior tribunal, corporation, board, or person, and it appears to the court that a member of the tribunal, corporation, or board, or the person upon whom the writ has been personally served, has, without just excuse, refused or neglected to obey the writ, the court may, upon motion, impose a fine not exceeding one thousand dollars. In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.”

CCP section 1097 “authorizes three methods by which a court may enforce a peremptory writ of mandate: (1) a court may impose a fine not exceeding $1,000; (2) a court may order the disobedient party to be imprisoned until the writ is obeyed; and (3) a court may make any order necessary and proper to enforce the writ. Because these methods vary in their severity, different levels of disobedience must be shown to justify their use.” (King v. Woods (1983) 144 Cal.App.3d 571, 577-578.)

“The third method, allowing the court to order compliance, is the least severe and thus only requires that a court find that such an order is necessary and proper under the circumstances.” (King, supra at 577-578.) A fine not exceeding $1,000 may be imposed “upon a finding of the following three elements: first, that the party was personally served with the writ; second, that the party refused or neglected to obey the writ; and third, that the party's refusal or neglect was without just excuse.” (Ibid.)

Analysis

PERB’s Order No. 2455 requires District to “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.” (PERB Decision No. 2455 at 11.)

PERB and CSEA contend that District has not demonstrated compliance with the make-whole order in Order No. 2455 and therefore is in violation of this court’s judgment and order enforcing the writ. As a remedy, PERB and CSEA request an order, which PERB refers to as an “issue sanction,” requiring “the District to pay the employees on Lists One and Two holiday pay plus 7 percent interest per annum.” (PERB Mot. 15 (“Mot.”); CSEA Memo. 8.)

Standard of Review; and PERB’s Contention that District Has Burden to Show Compliance with PERB’s Make-Whole Order

PERB contends that “[a]s the party found to have violated EERA, it is the District’s burden to demonstrate its full compliance with the make-whole order.” (Mot. 10, citing Bellflower Unified School District (2019) PERB Order No. Ad-475, pp. 2, 10 (BUSD) [the finding that “an unfair labor practice was committed is presumptive proof that at least some backpay is owed”]; Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, pp. 8-9 of prop. dec.) PERB seems to contend that this burden of proof also applies to the instant motion to enforce the court’s writ pursuant to CCP section 1097. (See Mot. 13:8-15.)

In its supporting memorandum, CSEA makes a similar but somewhat distinct argument. CSEA contends that “the onus is on the District to prove that employees did not work on July 3 or July 5, based on its failure to maintain mandatory records.” (CSEA Memo. 4.) CSEA relies on statutes and regulations that require school districts to maintain certain employee records and case law that shifts the burden of proof to the employer when inadequate records prevent employees from proving the exact amount of unpaid overtime hours they are owed. (See e.g. 5 CCR § 16023; Amaral v. Cintas Corp. No. 2 (2008) 163 Cal.App.4th 1157, 1187-1192.)

In opposition, District does not respond directly to PERB’s argument that District has the burden to show compliance with Order No. 2455. Rather, District contends that “PERB, on behalf of the employees, has not come forward with evidence showing that the employee[s] [were] ‘improperly compensated’ and has not shown ‘the amount and extent of that work.’" (Oppo. 5, citing Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687.)

As the moving party under section 1097, PERB has an initial burden to show that District has not complied with the writ. As discussed below, PERB has easily met that burden. However, as discussed further below, it is not PERB’s burden to show the specific employees that should be paid or the amount. As the party against which the writ was issued, District has the legal duty to file a return or other evidence showing compliance with the writ. For reasons discussed below, District has not met that burden. Accordingly, a further enforcement order under section 1097 is justified.

District Has Not Complied with the Court’s Writ With Respect to the Make-Whole Remedy in PERB Order No. 2455

“When a respondent believes it has completely fulfilled the terms of a writ, its return should state that it has satisfied the writ in full compliance with the final judgment and writ, and set out the actions taken to meet the writ's terms. While detailed findings are not necessarily required, the [District's] explanation should be thorough enough, and factual enough, to permit effective review by the courts.” (Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.)

On April 2, 2019, District filed its return to the writ. In relevant part, the return stated the following: “Regarding PERB Decision No. 2455, …. As to any make whole obligation of the DISTRICT, there is no obligation to make any payments to employees because no employees have come forward requesting payment for the July 4, 2012 holiday nor does the DISTRICT have any records of anyone entitled to be paid that has not already been paid….” (Ibid.) The return was signed by attorney Eric Bathen on behalf of District. No declarations under penalty of perjury were submitted by District in support of the return.

In the amended return, District stated the following: “Regarding PERB Decision No. 2455, the District has met the burden of the make whole remedy because it believes, as was stated at the unfair labor practice hearing, the employee the District was aware of that had not been paid for the July 4, 2012 holiday was paid and that all other employees due the holiday pay have been paid. The District reviewed and researched its payroll records carefully, but since it became a fiscally independent school district on July 1, 2016 and the Los Angeles County Office of Education no longer did payroll for the District, the District has no records to prove or disprove who was paid for the holiday on July 4, 2012. As stated at the unfair labor practice hearing, except for one employee who was later paid, the District believes it had already made payment to the employees who were entitled to the July 4, 2012 holiday pay. CSEA claims that the District is mandated to keep payroll records indefinitely, but the District did not do its own payroll in 2012, but it was done by LACOE. Since the District now is fiscally independent the District has been told by LACOE officials that LACOE continues to maintain those records, but those records do not show what days the employee worked or for what days the employee was paid. The District cannot issue payment without some credible written record that the payment is due.” District did not attach a declaration or other evidence to the return or amended return.

In the court’s order dated October 31, 2019, the court (Judge Daniel Murphy) found that District’s return and amended return did not show compliance with the writ. The court ruled as follows:

In effect, District seeks to relitigate PERB Decision No. 2455, which found that District had not paid employees holiday pay. (PERB Decision No. 2455 at 3-11.) Moreover, District argued in the PERB proceedings that the affected employees were not entitled to holiday pay and that it never paid the employees holiday pay. (Proposed Decision at 18.) It is reasonably inferred from the PERB Decision and Order that additional employees, other than Treenitta Haber, who was apparently paid (see e.g. Farro Decl. Exh. A at 4), were affected by the failure to pay holiday pay. District cannot now relitigate the Board’s finding that District had not paid employees holiday pay and was required to compensate those employees for financial losses, including 7 percent interest. (See PERB v. Bellflower Unified School Dist. (2018) 29 Cal.App.5th 927, 943-44 [“Order No. 2455 requires appellant to … make whole all affected employees …. Appellant remains under that obligation.”].)

Moreover, with its motion, Board cites evidence, including bus driver payroll sheets, that multiple District bus drivers were working on July 3 and/or July 5, 2012, and therefore, are entitled to holiday pay. (Farro Decl., Exh. C, N.) CSEA also provided a list of multiple, additional District employees and positions that were working on July 3 and/or 5, 2012, and are entitled to holiday pay, based on the information available to CSEA. (Farro Decl., Exhs. C, N.)

District has not shown an excuse from compliance. District seems to argue that it should be excused from compliance because LACOE maintained District’s payroll records in 2012. District’s claim that it lacks sufficient records to calculate the employees’ backpay appears contrary to the requirement that public school districts retain employment records and hold documents that are relevant to litigation. (Ed. Code, § 35250; Cal. Code Regs., title 5, §§ 16023, 16022(b).) Moreover, the burden is on District to comply with Order No. 2455. District does not show, with evidence, that it cannot obtain records from LACOE or otherwise take measures to determine which employees are entitled to backpay.

(October 31, 2019 Minute Order at 10-11.)

On November 14, 2019, the court entered PERB’s proposed order which required, inter alia, District to provide the names of all Classified unit less-than-12-month employees who worked on either July 3 or 5, 2012; to specify whether or not the employees were paid for the July 4, 2012, holiday; and to provide related payroll records and information.

On January 16, 2020, prior to the January 23, 2020 status conference, District filed the declarations of Eric Bathen and Marcy Delgado re: compliance with order to enforce writ of mandate. Delgado asserted that District provided payroll documents and information to PERB in compliance with the court’s November 14, 2019 order. (Delgado Decl. filed 1/16/20 ¶ 5.) In his declaration, Bathen also relied on hearsay statements of Chief Business Officer, Thuh Binh, that “if hourly classified employees were in paid status on the day before or the day after a holiday, including the Fourth of July, they will be paid for that date.” (Bathen Decl. filed 1/16/20 ¶ 4.) Neither of these declarations indicate that District has made “make-whole” payments required by Order No. 2455 to any employee. Bathen’s declaration is essentially an attempt to re-litigate Order No 2455, is based on hearsay, and is unpersuasive.

As indicated in PERB’s motion, District provided some documents and information in response to the court’s November 14, 2019 order. (See Mot. 6-7.) District served two subpoenas on LACOE for payroll records and forwarded the subpoenaed records to PERB. (See Farro Decl. C, D, H.) In response, PERB asserted that the payroll records appeared to show that no employees had been paid holiday pay for July 4, 2012. (Id. Exh. I at 499-501.) PERB asked District to show where holiday pay was documented in the payroll records. (Ibid.) On March 16, 2020, the District responded stating that it has provided all the records and that it has no further information to provide. (Farro Decl., Exh. J, 504-514.) The District did not dispute PERB’s observation that the payroll records appeared to show that no employees were paid holiday pay. (Ibid.)

On May 6, 2020, with its opposition brief, District filed two supplemental declarations of Marcy Delgado. Delgado incorporates Bathen’s declaration from January 16, 2020, and declares that she “also had discussions with the CBO in 2014 who stated to me that the employees that were entitled to payment would be paid including the bus drivers and if they hadn't been paid at that time they would be paid.” (Suppl. Delgado Decl. filed 5/6/20 ¶ 3.) As with Bathen’s declaration, Delgado’s first supplemental declaration is essentially an attempt to re-litigate Order No 2455, is based on hearsay, and is unpersuasive. The second supplemental declaration states that “the District has provided all the records it has in its possession regarding payment of holiday pay for the July 4, 2012 holiday to PERB and to CSEA.” (2nd Suppl. Delgado Decl. ¶ 2.) This statement lacks foundation and personal knowledge. Moreover, in the second declaration, Delgado does not show that District has made “make-whole” payments required by Order No. 2455 to any employee.

District has not filed an amended return after the search for records it conducted in response to the November 14, 2019 order. To the extent the Bathen and Delgado declarations and the District’s opposition brief serve a similar function as a return, District fails to show compliance with the court’s writ with respect to the make-whole order in Order No. 2455. As discussed at length above, Order No. 2455 establishes conclusively that District had not paid some employees holiday pay. (PERB Decision No. 2455 at 3-11.) District cannot relitigate that issue. District does not show that District has made “make-whole” payments required by Order No. 2455 to any employee. Because District has not complied with the court’s writ and Order No. 2455, a further enforcement order under CCP section 1097 is justified.

Lists One and Two: PERB’s and CSEA’s Evidence of Employees Entitled to Make-Whole Payments Pursuant to Order No. 2455

PERB and CSEA do not have a burden under CCP section 1097 to show the specific employees entitled to payment under Order No. 2455 or the amounts owed. Rather, District must show in a return that it has complied with the writ and Order No. 2455. (See generally Los Angeles Internat. Charter High School. V. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1355.) Nonetheless, PERB and CSEA have submitted extensive evidence that the court finds relevant to determining the appropriate enforcement remedy under section 1097. The court provides some analysis of this evidence as guidance to the parties. At this juncture, the court finds it unnecessary to definitively opine on which of the employees in Lists One and Two are entitled to “make-whole” pay or the amount owed to each employee.

List One

PERB’s “List One” includes the following nine employees, all of whom were bus drivers: (1) Dolores Cox; (2) Garcia Melba; (3) William Gramlick; (4) Rosana Guerrero; (5) Treenitta Harber; (6) Nikki Herrera; (7) Everardo Quiroz; (8) Eva Valenzuela; and (9) Dewander White. (Farro Decl. Exh. M at 525.)

PERB submits evidence of the following to show that these employees are entitled to “make-whole” payment under Order No. 2455. The District has provided PERB with payroll records that, according to PERB, show Classified less-than-12-month employees who worked over the summer of 2012. (Farro Decl., Exhs. D, 30-334, H, 445- 494.) Each employee’s payroll record shows the pay period dates, the total number of hours worked in the pay period, the rate of pay, itemized deductions, and the total pay provided. (Ibid.) It appears there is no documentation of holiday pay in any of the payroll records. (Ibid.) Despite the statement in Delgado’s Supplemental Declaration that LACOE would have added the holiday pay while processing payroll, the District has not explained to PERB where in the payroll records such holiday pay is documented. (Farro Decl., Exhs. I, 499-501, J, 504-505, K, 517-518, L, 521-522, O, 539, P, 541-542.)

The only daily timekeeping records available to PERB are nine bus driver time sheets, which were provided by CSEA. (Farro Oct. 2019 Decl., Exh. C; see also April 2020 Farro Decl. Exh. F.) These bus driver time sheets demonstrate that the nine employees worked on both July 3 and 5, 2012. (Ibid.) PERB cites evidence that the payroll records provided by the District for these nine employees shows that the employees were paid for the actual hours they worked, as documented on the time sheets—the payroll records do not show any additional holiday pay. (Farro Decl., Exh. D, 233-234, 247, 257, 260-261, 263, 266- 267, 293-294, 324-325, 330-331.) For example, Dolores Cox’s timesheet shows that she worked 47.5 hours in the pay period, which is exactly what she received pay for. (Compare Farro Oct. 2019 Decl. Exh. C with Farro Decl., Exh. D, 233-234.) Also, Melba Garcia’s timesheet shows that she worked 38.5 regular hours and 11.5 overtime hours in the pay period, which is exactly what she was paid for according to the payroll records. (Compare Farro Oct. 2019 Decl., Exh. C with Farro Decl., Exh. D, 247.) According to PERB, no documentation has been provided to demonstrate payment of holiday pay for any of these nine employees whose information has been compiled into a list (List One). (Farro Decl., Exh. M, 525.)

In opposition, District admits that PERB’s exhibits show that Nikki Herrera and Treenitta Harber, both on List One, “suffered losses through non-payment of holiday pay for July 4, 2012.” (Oppo. 4; see also Id. 6:3-5.) Despite this admission, District has not filed a return showing make-whole payment under Order No 2455 to Herrera and Harber.[2]

District contends that “[t]here is no evidentiary foundation laid for the timesheets included in PERB' s Exhibit F.” (Oppo. 5.) These exhibits were submitted in the administrative record before PERB. (See AR 895-898, 1000-01, 1003-13.) District does not show that it properly objected below to these records on hearsay grounds. Accordingly, District waived the objection. Moreover, District has apparently referred to these time sheets in declarations and letters submitted in this action. (See Suppl. Delgado Decl. ¶ 4; Farro Oct. 2019 Decl. Exh. D.) The court finds sufficient foundation for the bus driver timesheets. (See Farro Oct. 2019 Decl., Exh. C; see also April 2020 Farro Decl. Exh. F.)

District also asserts that the list of nine bus drivers in List One is hearsay. (Oppo. 4.) Farro declares that List One contains information compiled from the Board Books, the Bus Driver Timesheets and Los Angeles County Office of Education (LACOE) payroll records. In this context, the compilation of information from other records in List One is not hearsay. (See Vanguard Recording Society, Inc. v. Fantasy Records, Inc. (1972) 24 Cal.App.3d 410, 418-419; Evid. Code § 1523(d).) District cites no authority to the contrary. However, depending on the remedy for District’s non-compliance with the writ, discussed further below, PERB needs to clarify who compiled the information in List One and how it was done. It is unclear whether declarant Farro performed that task or someone else from PERB.

District contends that “PERB does not set forth a method of determining the amount each employee is entitled to receive for the holiday pay.” (Oppo. 5.) Relatedly, District contends that “PERB, on behalf of the employees, has not come forward with evidence showing that the employee[s] [were] ‘improperly compensated’ and has not shown ‘the amount and extent of that work.’" (Oppo. 5, citing Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687.) For a motion to enforce a writ under CCP section 1097, PERB did not have the burden to determine the amount of holiday pay owed to each employee. Rather, District has the duty to make this determination and show compliance with the writ. District has failed to do so for the employees in List One.

List Two

PERB’s List Two includes 83 employees that, according to PERB, are “less-than-12-month Classified employees implicated by the make-whole order.” (See Mot. 9; Farro Decl. Exh. M at 526-527.) List Two refers to employees in several different job classes, including “clerical asst.,” “Instr Asst – special Ed,” “Health Asst – sp ed,” “bus driver,” and “unknown.” List Two compiles data about the employees’ pay period hours and pay rate for the pay period that included July 3 and 5, 2012.

PERB submits evidence that “no records have been provided that show the hours employees worked per day” and that “the most detailed timekeeping information available to PERB is the total number of hours worked in the July 4, 2012 pay period.” (Mot. 9; see e.g. Farro Decl. Exh. D, H.) PERB and CSEA contend, citing evidence, that “[b]ecause the July 4 holiday fell on a Wednesday in 2012, and school was in session on Tuesday and Thursday, it is likely that these employees worked on both July 3 and 5, especially since it is standard practice for school districts to prohibit summer employees from taking time off during summer assignments.” (Mot. 9; see e.g. Bleuler Decl. ISO of Jan. 23, 2020 Status Conference ¶¶ 14-15; see also Ter Keurst Decl. ¶ 9.) As argued by CSEA, “the inference can be drawn, from [the] circumstances, that the employees were in fact working in their part-time positions for all nine working days of the two-week period between July 1 to July 15, 2012, including July 3 and July 5.” (CSEA Memo. 8.)

In opposition, District contends that List Two is hearsay. However, as discussed above, List Two appears to be compiled from LACOE records supplied by District. In that context, the hearsay objection is not persuasive. As with List One, if the court determines it is appropriate for the court to resolve factual disputes, PERB needs to clarify who compiled the information in List Two and how it was done.

District also contends that List Two is not accurate and “includes some management employees who are paid a salary that would include holiday pay.” (Oppo. 4.) With respect to alleged inaccuracy, District points to the payrates for Robin Beato, Shaunte Boatright, and Raymond Herrera, which appear to reflect payrates for longer periods than the hourly payrates for the other employees on List Two. District does not show with evidence that the payrates listed for Robin Beato, Shaunte Boatright, and Raymond Herrera are inaccurate when the relevant time period is considered. With respect to management employees, District only cites evidence that Shaute Boatright was a management employee in July 2012. (Suppl. Delgado Decl. ¶ 6.) Even with respect to Boatright, the cited evidence is conclusory and appears to be based on questionable evidentiary foundation. (Ibid.)

District contends that “PERB does not set forth a method of determining the amount each employee is entitled to receive for the holiday pay.” (Oppo. 5.) As discussed above, for a motion to enforce a writ under CCP section 1097, PERB did not have the burden to determine the amount of holiday pay owed to each employee. Rather, District has the duty to make this determination and show compliance with the writ. District has failed to do so for any of the employees in List Two.

Issue Sanction?

As a remedy, PERB and CSEA request an order, which PERB refers to as an “issue sanction,” requiring “the District to pay the employees on Lists One and Two holiday pay plus 7 percent interest per annum.” (Mot. 15; CSEA Memo. 8.)

PERB’s proposal of an issue sanction appears to be based on civil discovery law. That concept is misplaced here, where PERB brings a motion to enforce compliance with the writ pursuant to CCP section 1097. Section 1097 provides in relevant part: “In case of persistence in a refusal of obedience, the court may order the party to be imprisoned until the writ is obeyed, and may make any orders necessary and proper for the complete enforcement of the writ.” (emphasis added.) One order which appears to be necessary for enforcement of the writ is an order specifically delineating which employees are entitled to be made whole, and the way in which the amount of compensation should be calculated.

The question for the court is how the evidentiary disputes regarding who must be paid and how much are to be resolved. In part, this will likely turn on whether it is appropriate to make evidentiary determinations against District based on its failure to keep appropriate records. If those presumptions are made, at least with respect to List Two, whether a presumption of an eight-hour work day is appropriate is also an issue.

The PERB order, enforced by the court through Gov’t Code section 3542 and CCP section 1085 did not resolve the issue of which employees were entitled to holiday pay and the amount of that compensation. The court questions whether that factual dispute should be resolved by the court in the first instance, based on written declarations. Writs are not generally adjudicated through live testimony. Alternatively, the court could remand the case to PERB for that determination. The court will discuss this issue with the parties at the hearing.

District’s Contention that It Has Made a Good Faith Effort to Avoid Making a Gift of Public Funds

The court briefly discusses District’s contention that it “has been acting in a good faith effort to: (1) fully comply with the PERB Order 22 No. 2455 and the Court's Enforcement Orders, and (2) avoid making a gift of public funds to persons not actually entitled to receive the funds.” (Oppo. 11.) The court finds this argument disingenuous under the circumstances discussed above. District admits that some employees are entitled to make-whole payment under Order No. 2455 and yet District has failed to make such payments to any employees. As discussed above, PERB and CSEA also submit evidence, based on records provided by District, that some other employees may also be entitled to a make-whole payment. In that context, District’s delay in complying with PERB’s Orders or providing a legally adequate return to the writ – which prolongates this litigation and results in other costs to taxpayers – cannot be viewed as a good faith attempt to preserve taxpayer funds.

Conclusion

The court will discuss with the parties the appropriate way to resolve factual disputes about the identity of persons entitled to Holiday pay and the method for determining the amount of that compensation.


[1] Parts of the background section are taken from the court’s minute order issued December 7, 2017, granting the writ petition, and the court’s October 31, 2019, minute order granting a prior motion to enforce the writ.

[2] Although not stated in any return filed by District, as noted by Judge Murphy, there appears to be inconclusive evidence in the record that Treenitta Harber may have already been paid for July 4, 2012 in compliance with Order No. 2455. (See Oct. 31. 2019 Minute Order at 11, citing Oct. 2019 Farro Decl. Exh. A at 4.) At the least, District admits Nicki Herrera from List One has not been paid for July 4, 2012.

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