PERB and its Jurisdiction
Q. What is PERB?
A. The Public Employment Relations Board (PERB or Board) is a quasi-judicial administrative agency charged with administering the collective bargaining statutes covering employees of California’s public schools, colleges, and universities, employees of the State of California, employees of California local public agencies (cities, counties and special districts), trial court employees, trial court interpreters, supervisory employees of the Los Angeles County Metropolitan Transportation Authority, Judicial Council employees, Orange County Transportation Authority employees, Bay Area Rapid Transit District (BART) employees and child care providers who participate in a state-funded early care and education program.
Q. Am I covered by PERB’s jurisdiction?
A. PERB’s jurisdiction is limited to certain public sector employees. Private sector employees, such as those employed by private hospitals, factories, or corporations, are governed by the National Labor Relations Act. Alleged violations of the National Labor Relations Act must be filed with the National Labor Relations Board, the federal agency charged with enforcing private sector labor relations. [1-844-762-NLRB (6572) or http://www.nlrb.gov/nlrb/home/default.asp.]
Q. What public sector employees are covered by PERB administered statutes?
A. PERB administers several public sector labor relations acts, covering the following groups of employees: (1) any person (except management and confidential employees) employed by a public school employer, including community colleges (EERA); (2) any person (except management, supervisory and confidential employees) employed by the University of California, the Hastings College of the Law, or the California State University (HEERA); (3) any civil service employee of the State of California, and the teaching staff of schools under the jurisdiction of the State Department of Education (excluding management, supervisory and confidential employees) (Dills Act); (4) any person employed by any public agency, including employees of cities, counties, charter counties, districts and other political subdivisions (MMBA), (except police officers, management employees, and employees of the City of Los Angeles and the County of Los Angeles); (5) trial court employees paid from the trial court’s budget and subject to trial court supervision (Trial Court Act); (6) trial court interpreters who are employed by the court and are not independent contractors (Court Interpreter Act); (7) supervisory employees employed by the Los Angeles County Metropolitan Transportation Authority (TEERA); and (8) Judicial Council Employer-Employee Relations Act (JCEERA); Orange County Transportation Authority employees (Orange County Transit District Act (OCDTA)); Bay Area Rapid Transit District (BART) employees (BART Act); Sacramento Regional Transit District employees (Sac RTD Act); Santa Cruz Metropolitan Transit District Act employees, Santa Clara Valley Transportation Authority employees, and child care providers who participate in a state-funded early care and education program (The Building a Better Early Care and Education System Act of 2019, known as the Childcare Provider Act (CCPA)).
Q. Does PERB’s jurisdiction extend to transit employees?
A. It depends. Most California public transit districts are subject to the labor relations provisions that are found in the Public Utilities Code enabling statutes, in joint powers agreements, or in incorporation articles and bylaws. Of those, the Orange County Transportation Authority employees (Orange County Transit District Act (OCDTA)); Bay Area Rapid Transit District (BART) employees (BART Act); Sacramento Regional Transit District employees (Sac RTD Act), Santa Cruz Metropolitan Transit District Act employees, and Santa Clara Valley Transportation Authority employees do falll under PERB’s jurisdiction but other PUC districts do not fall under PERB’s jurisdiction. However, a few transit districts are subject to the Meyers-Milias-Brown Act (MMBA) and thus within PERB’s jurisdiction. Included among those covered by the MMBA are the Sonoma-Marin Area Rail Transit District Authority (SMART) and the San Francisco Municipal Railway (MUNI). In addition, supervisory employees employed by the Los Angeles County Metropolitan Transportation Authority are covered by a statute (Transit Employer-Employee Relations Act) that is under PERB’s jurisdiction.
Q. Does PERB investigate allegations of race, gender, sexual orientation or religious discrimination?
A. No. PERB has no jurisdiction to enforce statutes regarding discrimination based on gender, sexual orientation, race, or religion. Allegations such as these are considered by the California Civil Rights Department (CRD) [1-800-884-1684 or https://calcivilrights.ca.gov/] and/or the federal Equal Employment Opportunity Commission [1-800-669-4000 or http://www.eeoc.gov].
Q. What types of allegations does PERB review?
A. The statutes enforced by PERB do not prohibit all acts of perceived unfairness or discrimination against covered employees; rather, PERB’s jurisdiction is limited to resolving claims of unfair practices which violate the applicable Act. For example, PERB has jurisdiction to consider claims by an employee organization that the employer has failed and/or refused to bargain in good faith or has interfered with employee organization rights granted by the statute. Also, an individual employee may file an unfair practice charge alleging that the employer or the employee organization representing him or her has discriminated against the employee in reprisal for protected activity under the Act, or has interfered with rights guaranteed by the Act. An employer may also file a charge against a union, alleging, for example, that the union failed to bargain in good faith.
Q. Should I contact PERB if I am having a problem with pay or overtime issues?
A. No. If you work for a private employer and are having problems with your employer regarding payment of wages, overtime issues, holiday pay or other pay issues, you should contact the Labor Commissioner in your area [http://www.dir.ca.gov/DLSE/dlse.html]. If you work for a public employer, contact your exclusive bargaining representative (union) or personnel office for more information as appropriate.
Q. Should I contact PERB if I need help with a pension or benefits problem?
A. No. Generally, public employees needing help with pension or benefits issues should contact the Public Employees Retirement System (CalPERS) at 1-888-225-7377 or http://www.calpers.ca.gov.
Q. May I bypass PERB and allege a violation of PERB-administered statutes in state or federal court?
A. No. Each of the PERB-administered statutes expressly grant PERB exclusive initial jurisdiction over unfair practice charges and their remedies. As such, initial determination as to whether a charge is justified is a matter within PERB’s exclusive jurisdiction.
PERB Authority
Q. Does PERB enforce collective bargaining agreements?
A. No. PERB-administered statues provide that the board shall not have authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of such an agreement that would not also constitute an unfair practice under the applicable labor relations statute.
Q. How does PERB remedy or correct violations of the statue?
A. PERB possesses broad discretion to take action and issue orders as necessary to effectuate the purposes and policies of each of the statutes it administers. Such remedies may include orders for back pay and front pay, orders for reinstatement of employees terminated for union activity, removal of disciplinary materials from personnel files, cessation of dues deductions and disclosure of relevant information. Additionally, PERB is authorized to seek enforcement in a court of any of its subpoenas, rulings, orders or decisions.
Q. Does PERB award attorney’s fees?
A. PERB has the specific statutory authority to award attorney’s fees and costs. A claim for attorney’s fees will be denied if the issues are debatable and brought in good faith. Under this standard, PERB has authorized attorney fees and costs in very limited circumstances. Neither a Charging Party nor a Respondent should assume they will receive attorney fees and costs if its position prevails.
Q. Does PERB enforce arbitration awards?
A. No. PERB does not have the authority to enforce arbitration awards. However, it may be an unfair practice for an employer to refuse to comply with an arbitration award. Under certain circumstances, PERB has discretionary jurisdiction to review a settlement or arbitration award solely for the purpose of determining whether it is repugnant to the purposes of the statute.
Statute of Limitations in Unfair Practice Cases
Q. What is the statute of limitations for PERB-administered statutes?
A. The statute of limitations under the EERA, Dills Act, HEERA, MMBA, TEERA, and Trial Court Act and Court Interpreter Act is six months.
Q. When does the statute of limitations begin to run?
A. In general, the limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge.
Q. How is the statute of limitations calculated in duty of fair representation cases?
A. In cases alleging a breach of the duty of fair representation by an employee organization, the statutory limitations period begins to run on the date when the charging party knew or should have known that further assistance from the union was unlikely.
Filing Documents With PERB
Q. When is a document considered “filed” by PERB?
A. Filers may electronically file a document through e-PERB at any time. However, all documents electronically filed after 11:59 p.m. on a business day, or at any time on a non-business day, will be deemed filed the next regular PERB business day. All documents not filed through e-PERB shall be considered “filed” when the originals are actually received by the appropriate PERB office, as stated in section 32115, during a regular PERB business day.
Q. May I file documents with PERB via facsimile?
A. No. Effective February 15, 2021, all filings must be made via the ePERB Portal unless you are an unrepresented individual. Unrepresented individuals may file through ePERB, U.S. Mail, a delivery service (e.g., UPS, FedEx, etc.), or in person at the appropriate PERB Regional Office.
Q. What is a “Proof of Service” and how do I complete the form?
A. A “Proof of Service” is a document that demonstrates that the person signing the Proof of Service served the materials on all other parties. A Proof of Service is required for all documents you submit to PERB. In the center of the Proof of Service document, you must print the names and addresses of the parties served. Failure to provide a Proof of Service may result in delays in the processing of your charge or petition, or dismissal of the matter. (PERB Regulations 32140)
Q. Can I submit documents to PERB via email?
A. No. Effective February 15, 2021, all filings must be made via the ePERB Portal unless you are an unrepresented individual. Unrepresented individuals may file through ePERB, U.S. Mail, a delivery service (e.g., UPS, FedEx, etc.), or in person at the appropriate PERB Regional Office.
Filing an Unfair Practice Charge
Q. Can an individual employee file an unfair practice charge alleging the employer violated provisions of the Act?
A. Yes. An employee can file a charge against either an employer or an employee organization alleging that the employee’s rights were violated. However, individual employees do not have standing to allege that an employer changed a policy in violation of a collective bargaining agreement, or that the employer failed to bargain with the union in good faith, or allege violations of statutory provisions which protect the collective bargaining rights of employee organizations. (PERB Regulation 32602.)
Q. May I file a charge against my supervisor?
A. No. An unfair practice charge must name the employer (or employee organization) as the respondent. Charges may not be filed against an individual manager (or union representative), or a co-worker. (PERB Regulation 32602.)
Q. May I make an appointment with a PERB agent to assist me in completing my unfair practice charge form?
A. No. PERB is a neutral state agency charged with investigating and enforcing public labor relations statutes. As such, PERB agents may not provide you with legal assistance or advice in completing your forms. However, if you have a general question regarding procedures or completion of the charge form, contact your local PERB office. Such assistance in most cases can be obtained over the telephone.
Q. What additional information should be attached to an unfair practice charge?
A. Generally, it is best to provide PERB with all relevant information. For example, if you are complaining about a poor evaluation or reprimand, you should provide PERB with copies of these documents. Additionally, if your charge contains correspondence between the employer or employee organization, such correspondence should be included with the charge. All attachments must be served on the parties involved. (PERB Regulation 32615.)
Q. Do I need an attorney to file an unfair practice charge?
A. Generally, most individual employees filing charges with PERB are not represented by an attorney during the initial stages of the process. While a Charging Party is free to seek legal representation, it is not required by PERB at any stage of the proceedings.
Q. May I bypass PERB and allege a violation of PERB-administered statutes in state or federal court?
A. No. Each of the PERB-administered statutes expressly grant PERB exclusive initial jurisdiction over unfair practice charges and their remedies. As such, initial determination as to whether a charge is justified is a matter within PERB’s exclusive jurisdiction.
Q. May I withdraw my Charge?
A. A Charging Party may request that their unfair practice charge be withdrawn, with or without prejudice, by sending a written request for withdrawal to the regional attorney or administrative law judge assigned to the case. Withdrawals must include a proof of service. (See below for cases pending before the Board itself.)
Investigation and Adjudication of an Alleged Unfair Practice
Q. What does the PERB unfair practice process entail?
A. Upon the filing of an unfair practice charge, the charge is assigned to a Board Agent who will complete the initial review. The Charging Party and Respondent will be provided with the case number and name of the Board Agent by letter shortly after filing. The Respondent will be allowed time to respond to the allegations. This response must be sent to the Charging Party as well as to PERB. After receiving the Respondent’s response, the Board Agent will determine if the charge meets the minimum legal standard for a violation of the statute, that is, it states a prima facie case. If the charge fails to meet this standard, the Charging Party will be sent a “Warning Letter” and allowed time to correct the deficiencies in the charge. If the deficiencies are not corrected, the Board Agent will dismiss the charge. The Charging Party may appeal the dismissal to the Board itself.
If the charge states a prima facie case, the Board Agent will issue a “Complaint” and set the case for an informal settlement conference to be conducted by a different Board Agent who will mediate the dispute. If the parties fail to reach agreement during the settlement conference, the case will be set for formal hearing in front of a PERB administrative law judge. (PERB Regulations 32620 – 32690.)
Q. What is the “Notice of Appearance” form?
A. The “Notice of Appearance” form, sent with your initial letter, allows you to designate someone else, such as an attorney or union representative, to represent you during the PERB proceedings. If you intend to represent yourself, you do not need to complete this form. However, if you wish to have another person represent you, you must complete this form and serve the form on PERB and the Respondent. It is important to remember that if you designate someone other than yourself as your representative, you will not receive copies of any correspondence from PERB or the Respondent. Both PERB and the Respondent will communicate only with your representative.
Q. How long does the processing of an unfair practice charge take?
A. Each case is unique and therefore a specific time frame cannot be provided.
The Unfair Practice Hearing
Q. What is the nature of a PERB hearing in an unfair practice charge?
A. Parties are entitled to a representative of their choice. Charging Party bears the burden of proving its case. Parties may call witnesses and introduce documentary evidence. Witnesses testify under oath and may be examined and cross-examined. At the end of the hearing, parties may present oral arguments on the record or through post-hearing briefs. An administrative law judge presides over the hearing.
Q. What are the duties of an administrative law judge?
A. The administrative law judge is responsible for inquiring into all issues and obtaining a complete record upon which the decision is rendered. He or she, among other things, may regulate the course and conduct at the hearing; hold conferences to frame issues; rule on objections, motions and questions of procedure; take evidence and rule on the admissibility of evidence; examine witnesses for the purpose of clarifying facts and issues; authorize the submission of briefs; and render a decision. Powers and duties of an administrative law judge are set forth in PERB Regulation 32170.
Q. May a non-lawyer serve as an advocate at a PERB hearing?
A. A non-lawyer may represent a party at a PERB hearing, and an individual party may represent himself or herself at hearing. However, parties are represented by counsel in most PERB hearings. See also: https://perb.ca.gov/about/representing-yourself-in-perb-hearings/
Q. Do rules of evidence apply in PERB hearings?
A. PERB Regulation 32175 provides that compliance with rules of evidence used in the courts shall not be required in PERB hearings. In brief, that section provides that hearsay evidence is admissible, but it may not be sufficient by itself to support a finding unless it would be admissible over objection in a civil action. Immaterial, irrelevant or unduly repetitious evidence may be excluded. Statements made at a settlement conference are not admissible. The various rules of privilege apply.
Q. Are PERB hearings recorded?
A. PERB hearings are recorded and transcripts are prepared when either one or both of the parties purchases a copy of the transcript. Parties may purchase a transcript after the hearing for use in preparing written briefs or appealing the decision of the administrative law judge. If a party cannot afford to purchase a transcript, he or she may call the appropriate PERB office to see if a copy of the transcript exists and make an appointment to review if appropriate. If no transcript exists, a party may purchase a copy of the recording from PERB for a nominal fee.
Q. Who has the burden of proof in an unfair practice hearing?
A. The charging party must prove the allegations in the complaint by a preponderance of the evidence to prevail.
Q. Does the administrative law judge render a decision immediately following the hearing?
A. Decisions typically are made after the administrative law judge reviews the entire record, including the transcripts of the hearing, exhibits and written briefs filed by the parties. Transcripts usually are available in two to three weeks after the hearing. Briefs usually are submitted in 30-45 days from the close of the hearing and the administrative law judge issues a decision in most cases in 50-75 days from receipt of the final brief. In exceptional cases, the procedure may take longer.
Q. May a decision of an administrative law judge be appealed?
A. The decision of an administrative law judge is a proposed decision that may be appealed to the Board itself in Sacramento. (PERB Regulation 32300.) If the decision is not appealed, it will become final and binding only on the parties to the particular dispute. A decision that is not appealed does not constitute binding PERB precedent as to other parties. (PERB Regulation 32215.)
Filing an Appeal with the Board Itself
Q. How do I get an extension of time to file before the Board itself?
A. Extensions of time must be filed in writing at the headquarters office 3 days prior to the due date. The request must indicate the reason for the extension, the position of the other parties (if known), the amount of time needed and proof of service. If you contact the other party and it is in agreement then there generally is not any problem granting an extension. Otherwise, PERB must find good cause, based on your reason for the extension in your request. If a proof of service is not provided with the request, your extension will not be acted on until one is received. It is critical to include a proof of service with your request. (PERB Regulations 32132(a), 32130, 32135 and 32140.)
Q. How do I file exceptions/responses to exceptions?
A. A statement of exceptions must be filed with the Board itself within 20 days of service of a proposed decision. The statement of exceptions must be a single, integrated document that may be in the form of a brief and may contain tables of contents and authorities, but may not exceed 14,000 words, including footnotes, but excluding the tables of contents and authorities. Requests to exceed the 14,000-word limit must establish good cause for exceeding the limit and be filed with the Board itself and served on all parties no later than five days before the statement of exceptions is due. PERB Regulation 32300, subdivision (a), is specific as to what the statement of exceptions must contain. The statement of exceptions shall: (1) clearly and concisely state why the proposed decision is in error, (2) cite to the relevant exhibit or transcript page in the case record to support factual arguments, and (3) cite to relevant legal authority to support legal arguments. Exceptions shall cite only to evidence in the record of the case and of which administrative notice may properly be taken. (PERB Reg. 32300, subd. (c).) Non-compliance with the requirements of PERB Regulation 32300 will result in the Board not considering such filing, absent good cause. (PERB Reg. 32300, subd. (d).) A response to exceptions may be filed within 20 days of the statement of exceptions and must conform to PERB Regulation 32300, subsections (b) through (f). Service and proof of service of these documents pursuant to Section 32140 are required.
Q. How do I file an appeal of a dismissal or a response to an appeal of a dismissal?
A. A Charging Party may obtain a review of a dismissal of a charge by filing an appeal to the Board itself within twenty (20) calendar days after service of a dismissal. (PERB Reg. 32635(a).) The appeal must contain the case number. There is no required format for appeals/responses to appeals, however, they must comply with the regulations. (PERB Regulations 32635, 32130, 32135 and 32140.) A response to appeal of dismissal may be filed within 20 days after the appeal. Service and proof of service of the response pursuant to Section 32140 are required.
Q. How do I file an administrative appeal/response to an administrative determination?
A. An administrative appeal must be filed with the Board itself within ten (10) calendar days following the date of service of the decision. (PERB Regulation 32360(a) and (b).) The appeal must be in writing and state the specific issues of procedure, fact, law, or rationale being appealed, as well as the grounds for the appeal. (PERB Regulation 32360(c).) Within ten (10) calendar days following the date an appeal is served, any other party may file with the Board itself a response to the appeal. (PERB Regulation 32375.) There is no required format form for administrative appeals/responses, however, they must comply with the regulations. (PERB Regulations 32360, 32375, 32370, 32130 32135 and 32140.)
Q. How do I file a request for reconsideration/response to request?
A. Any party to a decision of the Board may file for reconsideration of the decision within 20 days following the date of service of the decision. The request for reconsideration shall be filed with the Board itself in the headquarters office and shall state with specificity the grounds claimed and, where applicable, shall specify the page of the record relied on. Service and proof of service of the request pursuant to Section 32140 are required. The grounds for requesting reconsideration are limited to claims that: (1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. A request for reconsideration based upon the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case. There is no required format form for a request for reconsideration /response, however, they must comply with the regulations. (PERB Regulations 32400, 32410, 32130, 32135, and 32140.)
Q. How do I file a request for judicial review/response to request?
A. When filing a request for judicial review before the Board itself, the request must be accompanied by a proof of service. Service and proof of service of the request pursuant to Section 32140 are required. There is no required format form for a request for judicial review/response, however they must comply with the regulations. (PERB Regulations 32500, 32130, 32135, 32140 and 61072.)
Q. May I file a response to a response?
A. This is not recommended, however, the regulations do not preclude it. If a response to a response is absolutely necessary, make sure a proof of service accompanies the document, otherwise, it will not be forwarded to the Board. The Board may accept this document at its discretion.
Q. May I withdraw my Exceptions?
A. When a party requests its exceptions be withdrawn, the Board may approve the request. If the Board approves the withdrawal, the proposed decision becomes final. Withdrawals are filed with the headquarters office and must include a proof of service.
Q. May I withdraw my Charge?
A. When a Charging Party requests that its unfair practice charge be withdrawn and the case is pending before the Board itself, the withdrawal must be approved by the Board for it to be effective. Withdrawals must be filed with the headquarters office and must include a proof of service.