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

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Unless alleged as separate unfair practices, which would expand the respondent’s liability beyond what is already alleged in the complaint, indicators of bad faith alleged in the charge but not included in the complaint were proper for consideration as part of the totality of evidence considered in a surface bargaining case without resort to PERB’s unalleged violations doctrine. As its name suggests, the unalleged violation doctrine applies when, if proven, factual allegations presented at hearing but not included in the complaint would constitute a separate unfair practice in addition to the theories of liability set forth in the complaint. [citations omitted.] Because surface bargaining was alleged in the complaint, there was no additional or unalleged surface bargaining “violation” to consider. Although recognized as evidence of bad faith, making predictably unacceptable proposals and prematurely declaring impasse are not independent unfair practices. (p. 17.)