Are You Planning to Represent Yourself at a PERB Hearing?
You will want to read this page if, as a result of your unfair practice charge, PERB has issued a complaint against the respondent. What happens next? Should you hire a lawyer or are you going to represent yourself?
If you are representing yourself, the following outline should be helpful in letting you know what to expect. What you will learn here is not a substitute for having an attorney, but can serve as your guide.
PERB regulations govern conduct of proceedings relating to the complaint. PERB regulations are codified at California Code of Regulations, title 8, section 31001 et seq.
(PERB Regulation 31001.)
THE SETTLEMENT CONFERENCE
Your complaint will first be assigned to a PERB agent who will preside over a settlement conference. (PERB Regulation 32650.) A settlement conference is very informal and the Board agent who is assigned will explain how the conference will be conducted. Generally, settlement conferences are conducted as a mediation. The Board agent typically begins by discussing the case with the parties at a joint meeting. Often, the agent then will separate the parties and carry ideas and proposals back and forth between them. Half of all cases settle at the informal conference.
If your case does not settle, nothing that is said at the settlement conference may be used by either side in any subsequent PERB proceeding. (PERB Regulation 32176.)
If your case is settled at the informal conference, there may be a written agreement that withdraws the unfair practice charge. Withdrawal may be with or without prejudice. What is the difference? A withdrawal of the charge with prejudice means that the charge cannot be refiled on these exact facts. Normally, withdrawals produced at a settlement conference are with prejudice.
THE FORMAL HEARING
If the dispute is not settled, the parties will be asked to determine mutually acceptable dates upon which a formal hearing can be scheduled. Usually, three separate sets of dates are obtained from the parties.
The case is then assigned to an Administrative Law Judge (ALJ) for formal hearing. The hearings are conducted in one of the three PERB Offices, or at a location near the place of employment.
The formal hearing is similar to a court trial where witnesses, including yourself, may be called to testify and documentary evidence offered as proof. The hearing will be electronically recorded and, if the parties desire, a transcript will be produced. The charge for a copy of the transcript is $1.50 per page.
YOUR RIGHTS AND RESPONSIBILITIES
A formal notice of the hearing will be issued well before the hearing. If you fail to attend the hearing, and do not give the ALJ good reason, your case could be dismissed.
If you find you cannot attend the hearing as scheduled, you may request a continuance. (PERB Regulation 32205.) You must apply in writing at least five days in advance of the hearing and you must set forth the reasons for the request. You must also state the position of the respondent. The request will be granted only under unusual circumstances and if the other party will not be prejudiced by the delay.
If you or a witness you intend to call needs an interpreter, contact the ALJ in writing in advance of the hearing so that arrangements can be made.
WHAT HAPPENS AT A HEARING?
As charging party, you will be required to present your case first. In order to prevail, you must establish the truth of the allegations in the complaint by a preponderance of the evidence. (PERB Regulation 32178.)
Evidence is entered into the record by the testimony of witnesses and the introduction of documents. Each party will have the right to appear in person, by counsel or by other representative. (PERB Regulation 32180.)
Each party has the right to call, examine and cross-examine witnesses and introduce documentary and other evidence on the issues.
Compliance with technical rules of evidence used in court trials is not required at the formal hearing. Testimony will be taken under an oath or affirmation of truthfulness. Immaterial, irrelevant, or unduly repetitious evidence may be excluded. Rules of privilege shall apply. (PERB Regulation 32176.)
Documents to be introduced shall be in triplicate. One copy is for your record, one copy for the official record and one for the other party. The ALJ will determine the numbering sequence of each document. Multi-page documents should be sequentially numbered by page for easy identification.
If you are seeking to introduce a document into evidence, you must first authenticate it. This means that you have to prove that the document is a true copy of what it purports to be. You may authenticate a document by testimony or declaration. After the document has been identified and authenticated, you may seek its admission into evidence. The other party will have the opportunity to object to its admission. The usual objection made to authenticated documents is that they are not relevant. This means that the objecting party contends that the document is not germane to prove a matter at issue in the case. The ALJ will rule on whether or not to admit the document.
The requirement that the charging party prove its case by a preponderance of the evidence means that you must convince the ALJ that the existence of a fact at issue is more probable than its nonexistence.
After you have presented all your evidence, the other party will be allowed to put on its case. This may consist of witnesses and documents.
You may not submit further evidence after the hearing is closed except under extraordinary circumstances, and only at the discretion of the ALJ.
PERB rules prohibit you from speaking with the ALJ about any matter in dispute outside the hearing of the opposing party. A conversation between a party to a case and the ALJ is called an ex parte communication and PERB rules strictly regulate such communication. (PERB Regulation 32185.)
PERB will, upon request, issue subpoenas to compel witnesses to appear at the hearing. (PERB Regulation 32150.) You must be prepared to pay witness fees, including travel costs, if demanded by the person you subpoena.
PERB will also issue, upon request, a subpoena duces tecum to compel the presentation of documents relevant to your case. You will need to attach a declaration justifying the documents to be subpoenaed.
Both should be requested and served upon the other side in advance of the formal hearing. As a party to the case, you cannot personally serve a subpoena but must have someone else do it for you.
THE ALJ DECISION
At the conclusion of the hearing, the ALJ may order arguments on the record or post-hearing briefs. (PERB Regulation 32212.) An oral argument or brief is where the parties can explain why they believe that the facts and legal principles require a ruling in their favor.
If you have ordered a transcript, you should cite to pages in the transcript which support your interpretation of the evidence.
The ALJ will issue a proposed decision that is mailed to the parties. (PERB Regulation 32215.) Except in cases of unusual complexity, the decision generally will be issued within 50 to 75 days of the submission of any post-hearing briefs.
The decision will become final and binding on the parties if neither side appeals the decision to the Board. (PERB Regulation 32305.) A decision that becomes final because no party files exceptions to it is not precedential and is binding only on the parties to that particular case.
APPEAL OF THE DECISION
If either side appeals to the Board, a panel of Board members will review the entire record and arguments made on appeal. The Board then will render a decision of its own. (PERB Regulation 32300.) The Board may sustain or overrule the ALJ decision or remand the matter for further proceedings. (PERB Regulation Section 32320.)
Appeal of a Board decision may be made to the Court of Appeal.