All notes for Subtopic 1104.02000 – Motions
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A448E | Community Learning Center Schools, Inc. 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. The Board remanded the matter to the ALJ to address the scope of any waiver of attorney-client or attorney work-product privileges with respect to the requested documents. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| A496M | County of Orange 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions “PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53 (Oxnard).) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard, supra, PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “If resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid.) (pp. 5-6.) more or view all topics or full text. | 47 | 66 | 10/06/22 |
| A448E | Community Learning Center Schools, Inc. 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The Board affirmed the ALJ’s partial denial of a motion to quash a subpoena duces tecum seeking, among other items, advice, counsel and opinion documents provided by, sought from, or received by the respondent’s attorneys regarding conflict of interest issues, teachers serving on charter school boards, and union avoidance strategies. The Board found the requested documents relevant because the respondent had asserted its reliance on advice of counsel as a defense. The Board remanded the matter to the ALJ to address the scope of any waiver of attorney-client or attorney work-product privileges with respect to the requested documents. more or view all topics or full text. | 42 | 16 | 06/29/17 |
| 2782M | Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions After receiving cross-motions for summary judgment, the ALJ found respondent union liable for the violations as alleged in the complaints. The Board reversed and dismissed the complaints and underlying charges. Union pointed to sufficient undisputed facts to demonstrate that charging parties could not prevail in their interference claims. The Board held that where the sole challenged conduct is a respondent’s public records request, a charging party must meet PERB’s traditional interference standards and show that the request, or any part of it, was both baseless and in bad faith. The Board found undisputed facts showing that union’s request was not baseless, making a formal hearing unnecessary. more or view all topics or full text. | 46 | 35 | 07/26/21 |
| 2782M | Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions A Board agent may issue a decision without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 13.) more or view all topics or full text. | 46 | 35 | 07/26/21 |
| 2761M | County of San Joaquin 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions ALJ should have granted union’s motion to amend. The ALJ ruled on the merits of the issue prior to the close of the hearing, which is only appropriate if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing on one or more issues unnecessary. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, pp. 13 & 15.) While there can be occasions in which an ALJ may, on her or his own accord, raise potential summary judgment on a claim, the ALJ here did so without notice to the parties and without an adequate substantive basis. Because the ALJ sought to resolve a theory on the merits without hearing evidence on it, he should have applied “the standard governing the pre-complaint investigation of an unfair practice charge.” (Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) In those circumstances, a hearing is required if there were, as here, “contested, colorable legal theories.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13.) more or view all topics or full text. | 45 | 92 | 04/12/21 |
| 2761M | County of San Joaquin 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions PERB favors a liberal right to amend pleadings, so that parties are not deprived of the opportunity to have their issues heard on the merits due to legal technicalities. (Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 (EMWD).) A party may amend a complaint during a hearing unless the amendment “would result in undue prejudice to other parties.” (Ibid.; Contra Costa Community College District (2019) PERB Decision No. 2669, p. 8.) Notably, “prejudice typically means that a party has been prevented from preparing or presenting evidence or argument. It does not typically mean that an amendment improves one party’s pleadings and thereby presents an additional obstacle to the opposing party; were that the case, nearly every proposed amendment would be prejudicial.” (EMWD, supra, PERB Decision No. 2715- M, pp. 11-12.) 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. (Id. at p. 8.) This standard remains the same even if a charging party moves to amend its complaint after resting its case-in-chief. (EMWD, supra, PERB Decision No. 2715-M, p. 9, citing Contra Costa Community College District, supra, PERB Decision No. 2669, p. 8.) Thus, at any stage, 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? (EMWD, supra, PERB Decision No. 2715-M, p. 9.) In some cases, moreover, a proposed amendment may cause so little prejudice that there is no need for a continuance. (Ibid.) more or view all topics or full text. | 45 | 92 | 04/12/21 |
| 2747M | City of San Diego 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The Teamsters’ motion to amend the complaint during the hearing was appropriate under PERB Regulation 32648, which provides that the Board agent shall permit an amendment if the Board agent determines that amendment of the charge and complaint is appropriate. In determining the appropriateness of the amendment, the Board agent shall consider, among other factors, the possibility of prejudice to the respondent. The Board found that even if the addition of a new theory of liability based on conduct that occurred more than two years prior—but not discovered by Teamsters until three months before its motion to amend—would constitute prejudice, any such prejudice was dispelled because the City had four months to prepare to defend against the new interference allegations, which were fully litigated during the remaining days of hearing. (See Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8 [“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.”].) more or view all topics or full text. | 45 | 45 | 10/06/20 |
| 2716E | Alliance College-Ready Public Schools, et al. 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions PERB Regulations give ALJs the authority to entertain any motion regarding the record evidence, including a motion to reopen the record to receive additional evidence if warranted. A motion to reopen the record is governed by the same standard as applies to motions for reconsideration based on new evidence. (Page 18.) more or view all topics or full text. | 44 | 177 | 05/18/20 |
| 2715M | Eastern Municipal Water District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions A Board agent may reach a final decision on the merits without holding an evidentiary hearing if the pleadings (together with any stipulations and any facts that may be administratively noticed) establish that there are sufficient undisputed facts to make a hearing unnecessary. (PERB Reg. 32207; see, e.g., Cal Fire Local 2881 (Tobin) (2018) PERB Decision No. 2580-S, p. 2.) PERB reversed the ALJ’s grant of partial summary judgment where there were facts in dispute that were material to the outcome. PERB noted that because discrimination and retaliation cases are inherently fact-specific, it is the rare case that can be decided on a dispositive motion. more or view all topics or full text. | 44 | 176 | 05/13/20 |
| 2715M | Eastern Municipal Water District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions There is no absolute bar to curing or otherwise amending a pleading while a dispositive motion is pending. The Board found that the ALJ erred by denying employer’s motion to amend answer despite pendency of charging party’s summary judgment motion. 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 |
| 2715M | Eastern Municipal Water District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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? more or view all topics or full text. | 44 | 176 | 05/13/20 |
| 2715M | Eastern Municipal Water District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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.) 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 |
| 2669E | Contra Costa Community College District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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 |
| 2670M | County of Santa Clara 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions In a case submitted under PERB Regulation 32215 to the Board itself for a decision on the merits of the case, the administrative law judge correctly declined to rule on a motion at the hearing to dismiss the underlying complaint. (p. 13, fn. 14.) more or view all topics or full text. | 44 | 67 | 09/20/19 |
| A444M | City of San Luis Obispo 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Because the subject of reply briefs is not specifically set forth in or limited by PERB Regulations, it falls under the Board’s broad, statutory powers to “investigate unfair practice charges or alleged violations of [the MMBA], and [to] take any action and make any determinations in respect of these charges or alleged violations as the board deems necessary to effectuate the policies of [the MMBA].” Where a reply brief clarifies the issues by narrowing the scope of the dispute, the Board may consider a reply, as it would aid the Board in its review of the matter and, by narrowing the scope of issues in dispute, will not prejudice other parties. (pp. 4-5.) more or view all topics or full text. | 41 | 108 | 12/13/16 |
| 2517C | Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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 |
| 2373M | City of Fresno 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions PERB Regulation 32320 permits the Board to take an action it considers proper. The Board has considered the City’s request for withdrawal pursuant to its settlement agreement with the union and concurs that withdrawal is in the best interest of the parties and is consistent with the purposes of the MMBA. more or view all topics or full text. | 38 | 166 | 05/16/14 |
| 2392C | San Bernardino County Superior Court 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions PERB does not generally follow the summary judgment procedure utilized in California state courts. When facts are not in dispute, as they were not in this case, a matter may be deemed submitted on the record based on stipulated facts, briefs and responsive arguments. (PERB Reg. 32207.) Even if this matter were treated as a motion for summary judgment, a moving party bears the burden of proving that no disputed issue of fact exists and that it is entitled to judgment as a matter of law. more or view all topics or full text. | 39 | 52 | 09/26/14 |
| 2212E | Santa Barbara Community College District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Motion to strike party’s closing brief for failure to serve opposing party denied. By filing brief with PERB in a timely manner, party demonstrated a conscientious effort to comply with PERB’s filing regulations, and opposing party has not alleged any prejudice as a result of having been served approximately one week late. Considering that neither party was given the opportunity to file additional briefs, it is doubtful such a showing can be made. This ruling is consistent with California policy favoring resolution of disputes on their merits. more or view all topics or full text. | 36 | 67 | 10/26/11 |
| 1682E | Desert Sands Unified School District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions CSEA’s motion to amend its charge at the hearing to add an allegation of retaliation was denied as untimely. The proposed amendment also did not fall within an exception to the limitations provision in that it did was not fully litigated during the hearing. It should be noted that since the issuance of the proposed decision and the submission of exceptions and responses, the Board issued Long Beach Community College District (2003) PERB Decision No. 1564 (Long Beach) in which it reexamined whether the statute of limitations is a jurisdictional bar and found it instead to be an affirmative defense. As neither party excepted to the ALJ’s ruling on this issue, the Board did not address the effect of Long Beach on this case. more or view all topics or full text. | 28 | 241 | 08/25/04 |
| 1491S | State of California (State Personnel Board) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Because of confusion in the conduct of PERB’s informal and formal hearing processes in this matter, IUOE did not file a timely response to SPB’s motion to dismiss. In these circumstances, the ALJ’s notice of dismissal without considering IUOE’s response does not yield a just result. more or view all topics or full text. | 26 | 33102 | 07/18/02 |
| A304S | California State Employees Association (Hard and Hackett) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Documents do not qualify for protection under the attorney-client privilege, as a trade secret, or under any other theory offered by CSEA because the memo does not involve or contain attorney advice. more or view all topics or full text. | 24 | 31158 | 09/15/00 |
| A256E | Santa Ana Unified School District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The filings of any appeal of the ALJ's denial of the motion to defer to arbitration would not be complete before the hearing is scheduled to begin. Therefore, a stay of the hearing is appropriate since a hearing may be unnecessary should the Board reverse the ALJ's ruling; p. 2. more or view all topics or full text. | 18 | 25079 | 05/20/94 |
| A090E | Cabrillo Community College District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Motion to dismiss a request for recognition made in the course of a representation hearing not appealable through the administrative appeal process described in PERB Regulation 32350; motion to dismiss should be ruled on by the hearing officer who should prepare proposed decision as required by PERB Regulation 32215; p. 2. PERB Regulation 32350 provides definition of administrative decision; motion to dismiss a request for recognition made during the course of a representation hearing not appealable through administrative appeal process; p. 2. PERB Regulation 32215 requires Board agent conducting hearing to submit proposed decision at the close of a formal hearing; motion to dismiss a request for recognition made during the course of a representation hearing must be addressed by the Board agent in a proposed decision under 32215; p. 2. representation hearing must be addressed by the Board agent in a proposed decision under 32215; p. 2. more or view all topics or full text. | 4 | 11088 | 05/19/80 |
| 0911E | Cloverdale Unified School District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions The ALJ allowed the association to amend the complaint to reflect the evidence produced at the hearing. The theory of law upon which the violation was based was not affected by the amendment of the factual basis for the charge as such, no prejudice shown; p. 23. more or view all topics or full text. | 15 | 22179 | 11/20/91 |
| 0891H | Regents of the University of California (American Federation of State, County and Municipal Employees) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions 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; ALJ Proposed Decision; pp. 3-4. more or view all topics or full text. | 15 | 22117 | 07/03/91 |
| 0792E | Inglewood Unified School District * * * OVERRULED IN PART by Alliance Marc & Eva Stern Math & Science High School, et al. (2021) PERB Decision No. 2795 * * * 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions * * * 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; pp. 6-7. (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 |
| 0733S | California State Employees Association (Parisi) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions A motion to dismiss is treated as a Motion for Summary Judgment, and will be granted where any issue proven is fatal to a complaint. CSEA had no duty to represent the charging party before the SPB; pp. 7-8. more or view all topics or full text. | 13 | 20093 | 05/03/89 |
| 0411E | Los Angeles Community College District (Watts) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions ALJ may properly dismiss public notice complaint before hearing upon motion from respondent. more or view all topics or full text. | 8 | 15178 | 10/04/84 |
| 0341E | Service Employees International Union (Scates) (Pitts) 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Motion to disqualify union's attorney on grounds of defense of union against failure to fairly represent denied. No showing of frivolous or bad faith defense. more or view all topics or full text. | 7 | 14239 | 08/29/83 |
| 0336E | Los Angeles Unified School District 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions Offer, during hearing, of settlement agreement properly deferred to settlement conference setting. Use of settlement agreement, not a part of the record, for purposes of attempting to specify a remedy proper. Motion to correct transcript to identify voice on record properly denied where voice identification not possible and remarks not used in decision. Motion to reopen the record. Charging party's failure to pursue discrepancy in testimony of witness where such discrepancy known before the hearing forecloses affirmative grant of motion to reopen the record. Charging party's failure to pursue discrepancy in testimony of witness where such discrepancy known before the hearing forecloses affirmative grant of motion to reopen the record. Under section 3547(d), new subjects of negotiations need not be placed upon school board's agenda. Under section 3547(d), new subjects of negotiations need not be placed upon school board's agenda. more or view all topics or full text. | 7 | 14228 | 08/18/83 |
| 0331E | Los Angeles Community College District (Watts) * * * OVERRULED IN PART by Santa Ana Unified School District (2017) PERB Decision No. 2514 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions * * * OVERRULED IN PART by Santa Ana Unified School District (2017) PERB Decision No. 2514, where the Board held that a decision to grant a motion to dismiss after a complaint has issued can be appealed pursuant to Regulation 32635 and is not subject to the appellate limitations of Regulation 32190, which is limited to interlocutory matters. * * * ALJ has authority to dismiss complaint in response to motion to dismiss. Motion to dismiss is likened to judgment on the pleadings. more or view all topics or full text. | 7 | 14223 | 08/15/83 |