All notes for Subtopic 1103.03000 – Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint

DecisionDescriptionPERC Vol.PERC IndexDate
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Because the charging party referenced the substance of the unalleged violation in its statement, and argued the issue in its brief before the ALJ, the Board determined that the respondent had adequate notice of the issue for purposes of the unalleged violations doctrine. (pp. 14-15.) The notice requirement for PERB’s unalleged violations doctrine may be satisfied by a number of circumstances, including when the charging party identifies the issue in its opening statement and argues the issue in its post-hearing briefing. So long as a respondent is informed of the substance of the charge and afforded the basic, appropriate elements of procedural due process, it cannot complain of a variance between administrative pleadings and proof. (p. 14.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
The Board found that the unalleged conduct was intimately related to the subject matter of the complaint and was part of the same course of conduct because it arose from the same rules of conduct adopted by the Court that were the subject of the complaint. (pp. 15-16.) Even though they may involve different theories of liability, for purposes of the unalleged violations doctrine, unalleged matters are intimately related to matters included in the charge or complaint when they stem from the same incident or course of conduct. (p. 15.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Because the record include exhibits and extensive testimony from both parties’ witnesses on the Court’s prohibition against distributing literature “at any time for any purpose in working areas,” the Board found that the issue was fully litigated for purposes of the unalleged violations doctrine. (pp. 16-20.) For the purpose of the unalleged violations doctrine, a matter has been fully litigated when both parties have presented evidence on the issue. (p. 16.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Because the record demonstrated that both sides had had full opportunity to examine and cross-examine witnesses on the Court’s ban on distributing literature “at any time for any purpose in working areas,” the Board found that this requirement of PERB’s unalleged violations doctrine had been met. (pp. 20-21.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Because the Court’s ban on distributing literature “at any time for any purpose in working areas” was part of the same personnel rules identified in the complaint as unlawful, the matter was timely for purposes of PERB’s unalleged violations doctrine. Where unalleged matters involve the same conduct as that alleged in the complaint, the inclusion of one theory of liability in the complaint reflects a determination by the Office of the General Counsel that other theories arising from the same factual allegations are also timely. (p. 21.) more or view all topics or full text.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Although the charging party’s motion to amend the complaint to add a separate interference allegation was rejected as untimely because it was made after the close of the evidentiary record, the Board considered the substance of the amendment as an unalleged violation, after determining that each of the requirements of PERB’s unalleged violations test was met. (pp. 13-24.) Under PERB’s unalleged violations doctrine, the Board may consider allegations not included in the charge or complaint when: (1) the respondent has had adequate notice and opportunity to defend against the unalleged matter; (2) the unalleged conduct is intimately related to the subject matter of the complaint and is part of the same course of conduct; (3) the matter has been fully litigated; (4) the parties have had the opportunity to examine and be cross-examined on the issue; and (5) the unalleged conduct occurred within the same limitations period as those matters alleged in the complaint. The evidence justifying application of the unalleged violations doctrine should be expressly stated, so that all parties are aware of the basis for finding that an unalleged violation can be heard without unfairness. (p. 13.) more or view all topics or full text.
4114002/27/17
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Where conduct allegedly constitutes both evidence of the respondent’s bad faith and a separate unfair practice, the essential facts for each theory of liability should be stated in the complaint and identified as separate unfair practices. A respondent is entitled to notice of the issues in dispute, so that it can preserve documents and secure witnesses, or expect repose as to those unfair practice allegations that are dismissed, withdrawn, abandoned or otherwise disposed of during the Office of the General Counsel’s investigation. (PERB Regs. 32620, subd. (c), 32630, 32640, subds. (a), (b).) Identifying the essential factual allegations and the theories of liability in a complaint is necessary to provide adequate notice and ensure a full and fair adjudication of the issues, including an opportunity for the respondent to raise any affirmative defenses specific to each theory of liability. (pp. 15-16.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
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.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Conduct which is alleged in an unfair practice charge as evidence of bad-faith bargaining but not addressed in the pre-complaint investigation and not included in the complaint is proper for consideration at hearing because, under PERB Regulation 32620, the charging party must have notice in writing of any deficiencies in the charge before an allegation is dismissed. By restricting a charging party to only those indicia of bad faith specified in the complaint, where other indicia have been alleged in the charge but not included in the complaint, PERB would effectively dismiss charge allegations without notice of deficiencies to the charging party. PERB cannot change its Regulations through decisional law. (pp. 13-14.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
As a general rule, a complaint alleging surface bargaining need identify only those factual allegations that, in the opinion of the Office of the General Counsel, are sufficient to state a prima facie case, while other facts, which are probative of the respondent’s conduct or state of mind during negotiations and which were alleged in the charge, may be established through competent evidence at hearing and appropriately considered, without amending the complaint. (p. 15.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or 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
2505M City of Roseville
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
A surface bargaining complaint complies with PERB Regulations and decisional law when it alleges that, by the totality of its conduct, “including but not limited to,” the specific conduct described in the complaint, the respondent has failed and refused to meet and confer in good faith. Notwithstanding the phrase “including but not limited to” or similar language, the complaint identifies the specific acts or indicia that are sufficient to state a prima facie case, while also giving the respondent notice that, under PERB’s totality of conduct test, the specific acts or indicia described in the complaint are not necessarily exhaustive of the evidence the charging party may present at hearing to prove the surface bargaining allegation. (p. 12.) more or view all topics or full text.
419711/30/16
2475E United Teachers of Los Angeles (Raines, et al)
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or 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
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or 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
2302H Regents of the University of California
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Consideration of protected acts not described in the PERB complaint is appropriate where those activities are related to the claims in the complaint and where the parties have had the full opportunity to litigate all issues. more or view all topics or full text.
12/21/12
2072S State of California (Department of Social Services)
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Complaint alleging that placement of employee on administrative leave (ATO) as part of the process to reject him on probation put the employer on notice that the decision to reject employee on probation was included within the scope of the complaint. The decision to reject the employee on probation was properly included within the scope of the hearing, given that the employer presented substantial evidence to explain the basis for its decision, the decision was intimately related to the decision to place him on ATO, the rejection decision was fully litigated and the parties had ample opportunity to examine and cross-examine on the issue. more or view all topics or full text.
3317710/27/09
1822E Santee Elementary School District
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Unnecessary to amend the complaint because initial complaint already covers the District’s failure to engage in effects bargaining. more or view all topics or full text.
307202/22/06
1673H California Nurses Association (O'Malley)
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
The Board dismissed O’Malley’s allegation that CNA used O’Malley’s agency fees before issuing a Hudson notice. CNA made every attempt to accommodate O’Malley, including refunding the fees with interest after O’Malley brought the issue to its attention. CNA was also proactive in attempting to arrange with the University to stop O’Malley’s deduction. There is evidence in the record that the Hudson notice was actually sent to the addresses of all non-members provided by the employer before the fees were deducted. The Board finds California Nurses Association (O’Malley) (2004) PERB Decision No. 1607-H dispositive in that once CNA has refunded the agency fees, there is no possibility for harm to O’Malley that the Board could remedy. The Board also stated that to the extent California School Employees Association, Chapter 258 (Gerber) (2001) PERB Decision No. 1472 is inconsistent with California Nurses Association (O’Malley), it is overturned. more or view all topics or full text.
2821808/06/04

1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
MMBA inherently provides association of attorneys in the County Counsel's office with the right to bring a mandamus action against the county for breach of its duty to bargain in good faith and for violation of salary setting provision of county charter, and that there are no statutory or common law grounds for limiting that right. Action does not breach attorneys' obligations of avoiding acquisition of interests adverse to client, avoiding representation of adverse interests, or their common law ethical obligations to their employer-client. more or view all topics or full text.
1186E Hacienda La Puente Unified School District
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Although District argues complaint concerned reclassification which wasn't proven, the disagreement centered on the shift change from the beginning and this was proven and should not be treated as an unalleged violation; p. 5. more or view all topics or full text.
212805602/27/97
1138Ea Barstow Unified School District
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
The Board and its agents make the determination of issues to be considered in a PERB unfair practice proceeding, not the parties to the proceedings; p. 10. more or view all topics or full text.
202710405/31/96
0885E San Diego Unified School District
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Board analogizes to the test for unalleged violations to determine whether protected activity not described in the complaint may be used as the basis for unlawful discrimination; p. 39. more or view all topics or full text.
152210306/14/91
2491M City of Montebello
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Pursuant to PERB’s statutory and regulatory authority, a Board agent may “disregard any error or defect in the complaint that does not substantially affect the rights of the parties.” Where the issues actually litigated at hearing and argued in parties’ briefs involved a job classification not identified in the complaint, the Board affirmed the ALJ’s sua sponte amendment to the complaint to conform to the evidence and issues presented at hearing. Distinguishing City of Inglewood (2015) PERB Decision No. 2424-M. more or view all topics or full text.
413006/30/16
0208E Fresno Unified School District
1103.3000: CASE PROCESSING PROCEDURES; COMPLAINT; Variance of Complaint from Charge; Evidence, Findings, or Order Varying from Complaint; Events Subsequent to Charge or Complaint
Dismissal of claim proper because it was not specifically alleged in the charge. more or view all topics or full text.
61311004/30/82