All notes for Subtopic 1103.04000 – Amendments
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2745M | County of Sacramento 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 45 | 39 | 09/18/20 |
| 2715M | Eastern Municipal Water District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Although PERB Regulations do not explicitly reference amendments to an answer, the Board holds that a Board agent’s broad powers under Regulation 32170 warrant treating motions to amend an answer on the same basis as motions to amend a complaint. more or view all topics or full text. | 44 | 176 | 05/13/20 |
| 2715M | Eastern Municipal Water District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments PERB favors the liberal amendment of pleadings, “so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities.” (Regents of the University of California (2018) PERB Decision No. 2601-H, p. 12.) PERB Regulations explicitly provide that a party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (PERB Reg. 32648; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8 (Contra Costa), citing Fresno County Superior Court (2017) PERB Decision No. 2517-C, p. 11, partially set aside on other grounds, Superior Court v. Public Employment Relations Bd. (2018) 30 Cal.App.5th 158.) Even if an amended pleading would prejudice the other party, it is appropriate to grant the requested amendment if the ALJ can order accommodations that sufficiently alleviate the prejudice, typically a continuance that allows additional time to prepare the case. (Contra Costa, supra, PERB Decision No. 2669, p. 8.) The Board contrasted the lenient amendment standard which arises before or during a hearing with the stricter unalleged violations standard which attaches after all parties have rested and the hearing is closed. A motion to amend made at the halfway point in the hearing is less likely to cause prejudice which cannot be mitigated than a motion made at the close of a hearing. No matter at what point in the hearing a motion to amend is made, the same core question must be answered: Is there undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance? There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. If charging party was prejudiced by employer’s proposed amendments, the ALJ could have granted a continuance to allow him to amend his summary judgment motion and/or prepare for the hearing. However, PERB’s liberal pleading and amendment rules do not permit gamesmanship. more or view all topics or full text. | 44 | 176 | 05/13/20 |
| 2669E | Contra Costa Community College District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance. more or view all topics or full text. | 44 | 66 | 09/17/19 |
| 2669E | Contra Costa Community College District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The Board found that a charging party’s motion to amend the complaint after closing his case-in-chief was not unduly prejudicial because the ALJ could have sufficient mitigated any prejudice by scheduling additional hearing time after an appropriate continuance. more or view all topics or full text. | 44 | 66 | 09/17/19 |
| 2669E | Contra Costa Community College District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The standard for amendments to the complaint during the hearing is more lenient than the unalleged violations standard. Motions to amend made during the hearing should granted unless there is undue prejudice that cannot be sufficiently mitigated by scheduling additional hearing time after an appropriate continuance. more or view all topics or full text. | 44 | 66 | 09/17/19 |
| 2697M | County of Tulare (Service Employees International Union Local 521) 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments PERB Regulation 32647 requires a charging party to file an amended charge with its request to amend the complaint, if and only if its request comes before the hearing begins. Union did not file an amended charge with its motion, and thereafter Union neither remedied this deficiency nor renewed its motion orally during the hearing, when there would have been no need to file an amended charge. (PERB Regulation 32648.) Accordingly, ALJ’s denial of motion to amend complaint was procedurally correct. more or view all topics or full text. | 44 | 141 | 02/20/20 |
| 2697M | County of Tulare (Service Employees International Union Local 521) 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The ALJ erroneously denied the County’s motion to amend complaint to allege that Union violated bargaining ground rules, which County brought prior to resting its case-in-chief. (See, e.g., Contra Costa Community College District (2019) PERB Decision No. 2669, p. 9 [Even though charging party had rested his case, under PERB’s liberal amendment rules the ALJ should have allowed him to amend the complaint and reopen his case-in-chief, while granting an appropriate continuance if needed to prevent undue prejudice to the responding party].) The Board noted two related principles: (i) The County had no need to amend its complaint, if it sought only to add violation of ground rules as an additional indicator of bad faith, because the complaint need not list all such indicia; and (ii) If the County sought to allege violation of ground rules as an independent violation, then the County could either amend the complaint or satisfy the unalleged violation doctrine. (City of Davis (2018) PERB Decision No. 2582-M, p. 13.) Thus, the County had the right to raise its additional allegation in each of three separate ways—as an indicia of bad faith that need not be spelled out in the complaint, as an amendment to the complaint to assert an independent violation (which the ALJ should have granted), and potentially also as an unalleged independent violation if the unalleged violation doctrine was satisfied. more or view all topics or full text. | 44 | 141 | 02/20/20 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments * * * VACATED IN PART ON OTHER GROUNDS by Fresno County Superior Court (2019) PERB Decision No. 2517a-C. * * *PERB Regulation 32648 authorizes motions to amend the complaint made during the hearing and, absent a showing of undue prejudice, a timely amendment closely related to the allegations in a pending complaint should be allowed in order to serve the principles of economy and finality. However, PERB Regulation 32648 only governs proposed amendments to a complaint made “[d]uring [a] hearing.” Here, the Board reversed the ALJ’s ruling to grant a motion to amend the complaint to include a separate interference allegation closely related to the allegations of the initial charge, because the motion was not made until after the close of the hearing and was therefore not timely within the meaning of the Regulation. After the record has closed and briefs have been submitted, matters not included in the complaint may only be considered by meeting the stricter standard for consideration of unalleged violations. (pp. 12-13.) more or view all topics or full text. | 41 | 140 | 02/27/17 |
| 2505M | City of Roseville 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 41 | 97 | 11/30/16 |
| 2505M | City of Roseville 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 41 | 97 | 11/30/16 |
| 2505M | City of Roseville 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 41 | 97 | 11/30/16 |
| 2475E | United Teachers of Los Angeles (Raines, et al) 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 40 | 147 | 02/29/16 |
| 2420E | Jurupa Unified School District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Charging party’s motion to re-introduce a previously withdrawn charge by amending the complaint at the hearing was untimely, since the alleged conduct occurred more than six months prior to the motion. more or view all topics or full text. | 39 | 141 | 04/23/15 |
| 2424M | City of Inglewood 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Sua sponte amendments to unfair practice complaints by administrative law judges are not permitted because they are not authorized by PERB regulations, they encroach on the duties and powers of the Office of the General Counsel, they impair the rights of the parties to control the litigation and they raise questions of neutrality; the duty to determine the types of unfair practices for which there is a prima facie showing and the legal theories on which the unfair practice complaint should issue belongs to the Office of the General Counsel, not to the administrative law judge. more or view all topics or full text. | 39 | 169 | 06/01/15 |
| 2145M | West Contra Costa Healthcare District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Pursuant to PERB Regulation 32648, the charging party may move to amend the complaint by oral motion on the record. In ruling on such a motion, the ALJ should consider prejudice to the respondent, among other factors. Motion to amend complaint on the fourth and last day of hearing to allege that an employee acted as the employer’s agent when he circulated a petition to ban union representatives from employee break rooms was properly denied because amendment would have been prejudicial to the respondent. Given the lateness of the request to amend, and the fact that the issue had not been raised in the charging party’s charge documents, respondent would not have had adequate notice or an opportunity to fully defend against the allegation. more or view all topics or full text. | 35 | 5 | 11/30/10 |
| 2022M | City of Modesto 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Pursuant to PERB Regulation 32648, the charging party may move to amend the complaint by oral motion on the record. In ruling on such a motion, the ALJ should consider prejudice to the respondent, among other factors. Motion to amend complaint at hearing to include new charge of discrimination based on different alleged facts would have been prejudicial to respondent. Given the lateness of the request to amend, respondent would not have had adequate notice or an opportunity to fully defend against the additional discrimination charge. more or view all topics or full text. | 33 | 84 | 05/12/09 |
| 1546S | State of California (Department of Corrections) 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Board dismissed employee’s appeal where employee only sought to amend complaint. Proper procedure to amend a complaint is through PERB Regulations 32647 and 32648. more or view all topics or full text. | 27 | 118 | 08/13/03 |
| 0891H | Regents of the University of California (American Federation of State, County and Municipal Employees) 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments On motion by AFSCME at the formal hearing, complaint was amended to delete reference to AFSCME seeking information solely on behalf of nonexclusively represented university employees. As a result of this motion, and fact that the issue was actually litigated at formal hearing, ALJ determined University was placed on notice that its conduct, vis-a-vis its exclusively represented employees, was at issue. Accordingly, the complaint was amended at the hearing to allege a violation of subdivision (c) of section 3571; pp. 3-4, proposed dec. more or view all topics or full text. | 15 | 22117 | 07/03/91 |
| 0885E | San Diego Unified School District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments It is clear that a Board agent has the authority to amend a complaint to correct an error. more or view all topics or full text. | 15 | 22103 | 06/14/91 |
| 0792E | Inglewood Unified School District * * * OVERRULED IN PART by Alliance Marc & Eva Stern Math & Science High School, et al. (2021) PERB Decision No. 2795 * * * 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments * * * OVERRULED IN PART ON OTHER GROUNDS by Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795. * * *Board affirmed ALJ's granting of motion to amend where new theory based on same set of facts as alleged in original complaint where no prejudice demonstrated. (Affirmed, Inglewood Teachers Association v. PERB/Inglewood Unified School District (1991) 227 Cal.App.3d 767.) more or view all topics or full text. | 14 | 21057 | 02/15/90 |
| 0553E | Riverside Unified School District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments Where proferred amendment was timely on its face but unrelated to existing complaint, and where hearing already completed, allowance of amendment would not serve principles of economy and fairness, therefore, amendment not "appropriate" pursuant to Reg 32647 (subsequently amended). more or view all topics or full text. | 10 | 17030 | 12/23/85 |
| 2491M | City of Montebello 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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. | 41 | 30 | 06/30/16 |
| 0410E | Gonzales Union High School District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 1) ALJ properly treated charging party's "memo" entitled "Amendment to Unfair Practice Charge" as the timely filing of a motion to amend. Respondent was put on notice by the memo, was given the opportunity to fully litigate the matter and cannot claim it was prejudiced by the procedural irregularity. 2) ALJ properly permitted amendment alleging that acts previously alleged as unilateral change also constitute retaliation. The amendment, although past the six-month period, simply adds a new theory to events that were timely alleged as a violation. It is the same conduct at issue and there is no evidence of prejudice to the respondent. more or view all topics or full text. | 8 | 15177 | 09/28/84 |
| 0917E | Travis Unified School District 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments The Board found it unnecessary to address the ALJ's authority to amend the complaint during the hearing process; p. 2. more or view all topics or full text. | 16 | 23022 | 01/03/92 |