CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD – Unalleged Violations

Single Topic for Decision 1979C

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* * * OVERRULED IN PART ON OTHER GROUNDS by Napa Valley Community College District (2018) PERB Decision No. 2563. * * *

The Board may review violations not alleged in complaint when all of the following requirements are met: (1) adequate notice and opportunity to defend has been provided to the respondent; (2) the acts are intimately related to the subject matter of the complaint and are part of the same course of conduct; (3) the unalleged violation has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on this issue; and (5) the unalleged violation must be within the applicable statute of limitations. Though the complaint alleged only interference, the Board could consider discrimination allegation arising out of the same facts because parties had extensively litigated whether the employer applied its e-mail use policy to an employee’s union e-mails in a discriminatory manner and in its post-hearing brief the employer defended against the allegation on the alternative grounds of interference and discrimination.