All notes for Subtopic 1105.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2635Ma * * * JUDICIAL APPEAL PENDING * * * City of Santa Monica
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
By his exceptions, charging party asserted that the ALJ relied on arguments that the prevailing employer never offered. PERB takes a practical, fact-based approach to deciding unfair practice charges. Once a party pleads a general theory of violation (or, as here, a defense), PERB employs a flexible approach to determining whether the evidence presented at hearing supports the parties’ claims. (See e.g. San Diego Community College District (2019) PERB Decision No. 2625, adopting proposed decision at p. 19; Bellflower Unified School District (2017) PERB Decision No. 2544, pp 5-6.) PERB held that when ALJs are analyzing unfair practice charges through well-established legal tests such as the Novato framework, they need not ignore legally salient facts even if a party has not specifically urged that they be considered or has failed to offer arguments as to their relevance. These principles certainly hold true in discrimination and retaliation cases, where “the trier of fact may consider the totality of evidence and draw inferences reasonably justified therefrom.” (California State University, Hayward (1991) PERB Decision No. 869-H, adopting proposed decision at p. 23, fn. 13); see also Los Angeles Unified School District (2016) PERB Decision No. 2479, pp. 29-30.) more or view all topics or full text.
01/22/20
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Under PERB Regulation 32176, a factual finding cannot be based solely on uncorroborated hearsay that does not satisfy one of the statutory exceptions. But Respondent’s evidence sufficiently corroborated Charging Party’s hearsay exhibits such that Charging Party met its burden of proof to demonstrate majority status. The Board rejected Respondent’s argument that it must ignore relevant evidence merely because it was not presented in the Charging Party’s case-in-chief but by the party without the burden of proof. (p. 21, fn. 23.) more or view all topics or full text.
09/20/19
2582M City of Davis
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
In regulating the conduct of a hearing, ALJ may exclude immaterial, irrelevant, or unduly repetitious evidence. more or view all topics or full text.
435109/05/18
2544E Bellflower Unified School District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
The Board rejected a school district’s exception that it had no notice that the ALJ considered the duration language of the parties’ agreement ambiguous or that the meaning of the duration language would be dispositive in the case by determining whether the management rights clause remained in effect. (p. 5-6.) A PERB hearing officer has the power and the duty to “[i]nquire fully into all issues and obtain a complete record upon which the decision can be rendered” and to “[r]ender and serve the proposed decision on each party.” (PERB Reg. 32170.) A hearing officer is not required to advise the parties of which factual disputes or legal issues may determine the outcome of the case, nor to make preliminary factual findings at the hearing itself so that the parties may object or offer additional evidence or argument on the issue. (Ibid.) more or view all topics or full text.
427012/15/17
2541M City of Calexico
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Respondent’s admission of allegation in the complaint is conclusive and removes it from the issues in controversy. more or view all topics or full text.
425310/20/17
2523C El Dorado County Superior Court
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
The Board rejected Charging Party’s exception that, by requesting bargaining over a single issue following impasse, the Charging Party had effectively broken the deadlock and revived the Respondent’s duty to bargain over the single issue, which had already been part of the overall deadlock reached in negotiations for a successor MOU. (pp. 10-11.) The Board found no violation of the duty to bargain because Charging Party’s request for single-issue negotiations did not break the impasse and revive the Respondent’s duty to bargain. Although impasse necessarily entails an overall deadlock in negotiations, it may stem from disagreement over a single subject, if the disagreement is of such importance that the parties’ failure to agree on that one subject causes all negotiations to break down. (pp. 10-11.) The party asserting that an impasse has been broken must point to the changed circumstances that would justify a return to the bargaining table. Mere speculation regarding possible concessions by the other party is insufficient to revive bargaining. There must be substantial evidence that a party is committed to a new bargaining position. Vague and general statements about possible concessions or a request by one party for additional meetings, if unaccompanied by an indication of the areas in which that party foresees future concessions, are insufficient to break an impasse where the other party has clearly announced that its position is final. (p. 9.) more or view all topics or full text.
4115203/20/17
2505M City of Roseville
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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
2476M City of Santa Clara
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Charging party was blindsided by ALJ’s categorical refusal to consider declarations on disputed material facts where ALJ previously assigned to the case had agreed to permit the disputed issues to be decided based on declarations and rebuttal declarations rather than live testimony. The Board remanded with instructions for the ALJ to convene a hearing or otherwise determine how best to inquire fully into all issues and obtain a complete record on which a decision could be rendered. more or view all topics or full text.
4015403/10/16
2440E Capistrano Unified School District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Employer’s statement in written reprimand to employee that supervisor had convened meeting, in part, to “monitor the implementation of the directives given the day before,” does not serve as probative evidence of whether employee reasonably believed discipline might ensue, but may be considered as evidence of what employer had intended to accomplish by its agent's unannounced meeting with employee, and thus as an admission that the meeting was "investigative" in nature. (Evid. Code, §§ 1221, 1222, 1271, 1280.) more or view all topics or full text.
402406/30/15
2449E Rio School District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
By withdrawing her subpoenas rather than letting the ALJ address the issue of alleged witness tampering and intimidation at the formal hearing, charging party cannot complain that she was unable to prove her case without the witness she had planned to call or that the ALJ failed to protect them. more or view all topics or full text.
404508/31/15
2072S State of California (Department of Social Services)
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
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. more or view all topics or full text.
3317710/27/09
2063E Los Banos Unified School District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Charging party failed to establish good cause for considering new evidence on appeal, where it was clear that charging party was aware of the newly provided information prior to filing the charge. more or view all topics or full text.
3316109/25/09
1937M City of Commerce
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Under the MMBA a charge must include the applicable local rules alleged to have been violated. (PERB Reg. 32615(a)(4).) The charging party failed to establish how the employer violated its local rules because it provided only one local rule which defined the word “grievance.” Charging party’s failure to provide the terms of the grievance procedure left PERB unable to determine whether the employer violated this procedure. more or view all topics or full text.
323301/11/08
1479S California State Employees Association (Hard, et al.)
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Evidence of CSEA’s animosity toward CDU is contained in its motion to dismiss; p. 21. more or view all topics or full text.
263306505/02/02
1445E San Diego Community College District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Voluntarily submitted proof of support cards not made a part of record could not be relied upon for evidence of dissatisfaction with status quo by the Board in case evaluating unit modification petition. more or view all topics or full text.
253208506/15/01
1258S State of California (Board of Equalization)
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Evidence Code Section 1152 and PERB Regulation 32176 preclude admission of settlement discussions; Where ALJ admits evidence of settlement offer for limited purpose of showing parties' knowledge but used the evidence to find a violation, the evidence should not be admitted; p. 9. more or view all topics or full text.
222908104/03/98
0910H California State University, San Francisco
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Only matters of record can be considered on appeal before the Board itself. PERB Regulation 32300(b). more or view all topics or full text.
152217811/18/91
0640H Regents of the University of California
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Newly-discovered evidence standard stated in Reg. 32410 applies also to evidence offered for first time on appeal; standard not met. more or view all topics or full text.
121900712/10/87
0336E Los Angeles Unified School District
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Official notice of documents of companion case, appeal of partial dismissal of public notice complaint is appropriate, not necessary to read each into the record but rather to incorporate, by reference. more or view all topics or full text.
71422808/18/83
0331E Los Angeles Community College District (Watts) * * * OVERRULED IN PART by Santa Ana Unified School District (2017) PERB Decision No. 2514
1105.1000: CASE PROCESSING PROCEDURES; EVIDENCE; In General
Hearing required only when material facts are in dispute. more or view all topics or full text.
71422308/15/83