All notes for Subtopic 1103.02000 – Issuance of Complaint

DecisionDescriptionPERC Vol.PERC IndexDate
2745M County of Sacramento
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
A proposed decision must address the allegations included in the complaint or justify why those allegations need not be addressed. (p. 16.) more or view all topics or full text.
09/18/20
2745M County of Sacramento
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
A complaint alleging surface bargaining typically states that, by the totality of its conduct, including but not limited to the conduct described in the complaint, the respondent failed and refused to meet and confer in good faith. In contrast, a complaint alleging a unilateral change—a per se violation—typically states that the respondent changed policy without affording the exclusive representative prior notice or an opportunity to meet and confer over the change or its effects. (p. 12.) more or view all topics or full text.
09/18/20
2745M County of Sacramento
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
PERB uses a “per se” or “totality of conduct” test to determine whether a respondent violated its obligation to meet and confer in good faith. Although the same conduct may give rise to violations under both per se and surface bargaining theories, they are necessarily different theories and must be alleged as separate unfair practices in the complaint. (pp. 11-12.) The omission of one theory does not foreclose its later consideration if the charging party: (1) moves to amend the complaint to add the independent allegation, or (2) satisfies the unalleged violation doctrine. (p. 13.) more or view all topics or full text.
09/18/20
2712M City and County of San Francisco
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Material factual disputes as to the employer’s motive or motives in not promoting an employee who had engaged in protected activity required resolution at a formal hearing. Among other issues, at hearing the parties would be able to contest evidentiary items such as an organizational chart allegedly showing pre-interview bias, as well as any evidence regarding the relative skills, experience, references, or interview performances of the interviewees. The weight of the overall record would ultimately determine the import of these and other factors. (pp. 23-25.) more or view all topics or full text.
05/06/20
2712M City and County of San Francisco
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
PERB assumes that charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. At this stage, PERB generally does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. It is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), or contested, colorable legal theories, OGC should issue a complaint and generally a formal hearing is needed. Mere legal conclusions are insufficient to state a prima facie case. However, where a material factual dispute turns on the respondent’s state of mind, we take into account that motive is generally within respondent’s own knowledge and that there is little opportunity for pre-hearing discovery. We therefore impose on charging party a relatively low burden to allege facts tending to show the requisite state of mind. (pp. 2-3.) more or view all topics or full text.
05/06/20
2622E Cabrillo Community College District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Following Board review of a dismissal, the Board remanded the case to the Office of the General Counsel for issuance of a complaint. (p. 2, citing Cabrillo Community College District (2015) PERB Decision No. 2453.) Following a formal hearing, the ALJ dismissed the complaint. (p. 1.) Charging party’s exception that the ALJ improperly departed from the Board’s prior decision is misplaced. The Board made no conclusive factual findings in its earlier decision directing OGC to issue a complaint. (pp. 4-5.) Once OGC issued the complaint, it was incumbent upon charging party to prove the complaint allegations during the hearing. (p. 5.) more or view all topics or full text.
4312602/04/19
2505M City of Roseville
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Although a charge must include a clear and concise statement of the facts and conduct alleged to constitute an unfair practice (PERB Reg. 32615, subd. (a)(5)), a complaint alleging surface bargaining need not list every possible indicator of bad faith that may be presented at the hearing. Under PERB’s fact pleading standard, the charging party must include the essential facts (often described as the “who, what, when, where and how” of the charge) with sufficient specificity to permit the Board agent to determine whether “the facts as alleged in the charge state a legal cause of action and [whether] the charging party is capable of providing admissible evidence in support of the allegations.” However, PERB does not require the charging party to identify or provide all of its evidence in the charge. (pp. 12-13.) more or view all topics or full text.
419711/30/16
2475E United Teachers of Los Angeles (Raines, et al)
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Under relation back doctrine, PERB may include additional charging parties after the limitations period has run if their allegations are identical to those included in a previously-filed charge. more or view all topics or full text.
4014702/29/16
2418M Fresno County In-Home Supportive Services Public Authority
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Issuance of a complaint by the Office of the General Counsel signifies that the dispute is not only one that the charging party wishes to pursue, but also one that the agency has determined should be pursued. Identical or overlapping facts supporting more than one theory of liability, each of which is set forth in the complaint, consideration of one theory will generally not replace or subsume consideration of the others. ALJ properly dismissed allegation of surface bargaining under totality of circumstances but failed to consider employer conduct, including imposition of terms that waived or limited statutory rights, as independent per se violations of the duty to bargain. more or view all topics or full text.
3913303/30/15
2453E Cabrillo Community College District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been alleged. However, the Board’s regulations do not empower agents to rule on the ultimate merits of a charge. Where the investigation results in receipt of conflicting allegations of fact or contrary theories of law, fair proceedings, if not due process, demand that a complaint be issued and the matter be sent to formal hearing. The Board has construed this precept to mean that a complaint should issue to test viable competing theories of law. more or view all topics or full text.
405709/17/15
2288M City of Pinole
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
In processing an unfair practice charge, the role of a Board agent is to investigate the charge to determine if an unfair practice has been committed, but the Board’s regulations do not “empower agents to rule on the ultimate merits of a charge.” (Eastside Union School District (1984) PERB Decision No. 466 (Eastside); PERB Regs. 32620 and 32640.) Pursuant to Eastside, a complaint may be issued to test viable competing theories of law. Although the Board’s role ordinarily is to resolve disputed questions of law, under the unique setting of this case, where there is no guiding PERB precedent and the legal issues involved are technical and complex pension laws outside PERB’s normal jurisdiction, it is appropriate to remand matter for issuance of complaint so that the issues may be decided upon a full evidentiary record. more or view all topics or full text.
10/15/12
2082E Ventura County Community College District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
EERA section 3541.5 sets forth PERB’s jurisdiction and authority to determine whether or not charges of unfair practices are justified. Section 3541.5(a)(2) addresses PERB’s authority relative to matters also covered by collective bargaining agreements between the parties, and provides that PERB may review an arbitration decision resulting from the parties’ grievance/arbitration process, to determine whether it is repugnant to the purposes of EERA. However, PERB’s authority remains limited to the issuance of a complaint that alleges respondent engaged in conduct that violates EERA. EERA does not provide for an independent de novo review of third-party arbitration decisions. A charge based solely on a claim that a third-party arbitration decision is repugnant cannot stand on its own and is insufficient to state a prima facie case for violation of EERA. Here the District’s charge sought a repugnancy review of an arbitration between the parties, however, it did not allege conduct by the Respondent/Federation that violated EERA and therefore did not establish a prima facie case against the respondent for violation of the Act. more or view all topics or full text.
341412/09/09
2061E Oakland Unified School District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
The PERB General Counsel's Office will issue a complaint if the charging party has alleged facts that, if proven true in a subsequent hearing, would state a prima facie violation of EERA. more or view all topics or full text.
3315309/10/09
1783M County of Inyo * * * OVERRULED IN PART by County of Tulare (2020) PERB Decision No. 2697-M
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
The Board reversed the dismissal and found the Employer had stated a prima facie case of violation of the MMBA by the United Domestic Workers and directed a complaint to issue. Where union’s negotiator tried to circumvent employer’s negotiator contrary to the ground rules and refused to negotiate. more or view all topics or full text.
30811/07/05
A081Ea Dry Creek Joint Elementary School District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
Arbitrator's remedy found to be repugnant where unilateral action found to have occurred but return to status quo ante not ordered; Board ordered issuance of complaint; p. 9. more or view all topics or full text.
41114107/21/80
1326E Chino Valley Unified School District
1103.2000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
The Board reversed the dismissal and found that the Union had stated a prima facie case of a violation of EERA section 3542.5(c) and directed that a complaint be issued in this case; p. 7. more or view all topics or full text.
233009704/14/99