CASE PROCESSING PROCEDURES; EVIDENCE – Background Evidence and Matters Not Alleged

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1105.02000 – Background Evidence and Matters Not Alleged

A charging party who wishes to litigate allegations of per se bargaining violations or other independent unfair practices not identified in the complaint must either amend the complaint to identify the additional theories of liability or satisfy the notice requirement and other criteria of PERB’s unalleged violations doctrine. Although a Board agent or the Board itself may disregard minor defects or variations between the complaint allegations and the issues framed at the hearing or actually litigated by the parties, an additional theory of liability necessarily affects the scope of any Board-ordered remedy and substantially affects the rights of the parties. Because Charging Party’s allegations that the Respondent unilaterally implemented an MOU and that it imposed terms not reasonably contemplated by its LBFO, if proven, would constitute separate per se violations of the City’s duty to bargain, and because these theories of liability were not set forth in the complaint, the Board could only consider them if they satisfied the criteria of PERB’s unalleged violations test. (pp. 24-25.)