An unfair practice charge may be filed with PERB by an employer, employee organization, or employee alleging that conduct has occurred which is unlawful under one of the Acts administered by PERB. Examples of unlawful employer conduct are: refusing to negotiate in good faith with an employee organization; disciplining or threatening employees for participating in union activities; or unilaterally changing terms and conditions of employment without bargaining. Examples of unlawful employee organization conduct are: threatening employees if they refuse to join the union; or failing to represent bargaining unit members fairly in their employment relationship with the employer.
An unfair practice charge filed with PERB is evaluated to determine whether a prima facie case of an unlawful action has been established. A charging party establishes a prima facie case by alleging sufficient facts to permit a reasonable inference that a violation of the EERA, Dills Act, MMBA, HEERA, TEERA, Trial Court Act or Court Interpreter Act has occurred. If the charge fails to state a prima facie case, a Board agent issues a warning letter notifying the charging party of the deficiencies of the charge. If the charge is neither amended nor withdrawn, the Board agent dismisses it. The charging party may appeal the dismissal to the Board itself. If the Board agent determines that a charge states a prima facie case of a violation, a formal complaint is issued. The respondent is then given an opportunity to file an answer to the complaint.
Once a complaint has been issued, a Board agent is assigned to the case and calls the parties together for an informal settlement conference, usually within 30 days of the date of the complaint. If settlement is not reached, a formal hearing before a PERB ALJ is scheduled, normally within 90 to 120 days of the date of the informal conference. Following this adjudicatory proceeding, the ALJ prepares and issues a proposed decision. A party to the case may then file an appeal of the proposed decision to the Board itself. The Board itself may affirm, modify, reverse or remand the proposed decision. Proposed decisions which are not appealed to the Board itself are binding upon the parties to the case.
The legal representation function of the Office of the General Counsel includes:
- defending final Board decisions or orders in unfair practice cases when parties seek review of those decisions in state appellate courts;
- seeking enforcement when a party refuses to comply with a final Board decision, order or ruling, or with a subpoena issued by PERB; and
- seeking appropriate interim injunctive relief against those responsible for certain alleged unfair practices;
The representation process under EERA, the Dills Act, HEERA, and TEERA occurs before PERB and normally begins when a petition is filed by an employee organization to represent employees in classifications which reflect an internal and occupational community of interest. If only one employee organization petition is filed and the parties agree on the description of the bargaining unit, recognition must (under EERA and HEERA) be granted and may be granted under TEERA. If more than one employee organization is competing for representational rights of the same bargaining unit, an election is mandatory.
If either the employer or an employee organization disputes the appropriateness of the proposed bargaining unit, a Board agent convenes a settlement conference to assist the parties in resolving the dispute. If the dispute cannot be settled voluntarily, a Board agent conducts a formal investigation and/or hearing and issues a written determination which sets forth the appropriate bargaining unit. Once an initial bargaining unit has been established, PERB conducts a representation election where required. PERB also conducts decertification elections when a rival employee organization or group of employees obtains sufficient signatures to call for an election to remove the incumbent organization.
Under the MMBA, Trial Court Act and Court Interpreter Act, representation processes normally occur under local rules adopted by the public agency. PERB has adopted comprehensive representation rules (see Chapters 5, 7, and 8, respectively of the Board’s Regulations) that are applicable where the public agency or court employer has not adopted local rules.
Representation Section staff also assist parties through the mediation process provided in the EERA, Dills Act and HEERA, and through the factfinding process provided under EERA and HEERA. If the parties are unable to reach an agreement during negotiations, either party may declare an impasse. If PERB agrees that an impasse exists, the State Mediation and Conciliation Service of the Department of Industrial Relations is contacted to assign a mediator. In the event settlement is not reached during mediation, either party, under EERA and HEERA, may request the implementation of statutory factfinding procedures. PERB provides lists of neutral factfinders who make findings of fact and advisory recommendations to the parties concerning terms of settlement.