All notes for Subtopic 1105.02000 – Background Evidence and Matters Not Alleged

DecisionDescriptionPERC Vol.PERC IndexDate
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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.
4114002/27/17
2517C Fresno County Superior Court * * * VACATED IN PART by Fresno County Superior Court (2019) PERB Decision No. 2517a-C
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Unless alleged as separate unfair practices, which would expand the respondent’s liability beyond what is already alleged in the complaint, indicators of bad faith alleged in the charge but not included in the complaint were proper for consideration as part of the totality of evidence considered in a surface bargaining case without resort to PERB’s unalleged violations doctrine. As its name suggests, the unalleged violation doctrine applies when, if proven, factual allegations presented at hearing but not included in the complaint would constitute a separate unfair practice in addition to the theories of liability set forth in the complaint. [citations omitted.] Because surface bargaining was alleged in the complaint, there was no additional or unalleged surface bargaining “violation” to consider. Although recognized as evidence of bad faith, making predictably unacceptable proposals and prematurely declaring impasse are not independent unfair practices. (p. 17.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Although charging party’s allegations of making predictably unacceptable proposals and prematurely declaring impasse were not alleged in the complaint, these two allegations were nonetheless appropriate for consideration by analogy to the unalleged violations doctrine. Although the complaint is the operative document for framing the issues for hearing, the Board has reasoned, by analogy to the unalleged violations doctrine, that conduct which constitutes an essential element of an unfair practice, but which was not alleged in the complaint, may still be considered, if it is related to the claims in the complaint, and if the parties have had full opportunity to litigate the issues. (pp. 19-20.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
The language of PERB Regulation 32648 governing amendments at hearing and the policy favoring liberal amendment of pleadings make it the respondent’s burden to show that a proposed amendment would result in undue prejudice. 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. By contrast, the more elaborate test for considering unalleged violations presumes prejudice, unless the charging party can show otherwise by meeting each of the criteria of PERB’s unalleged violations test. (p. 22, fn. 15.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
So long as the 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. 23.) more or view all topics or full text.
419711/30/16
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
2505M City of Roseville
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
2387M City of Oakland
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
While evidence of unlawful motive that occurred outside the six-month limitation period cannot be used to establish an independent violation, it can serve as background evidence of a respondent’s motive for conduct that is part of a timely allegation. Evidence of an employer’s conduct occurring outside the six-month limitations period, including impliedly coercive statements to employees, may be properly considered as evidence of anti-union motivation for allegations within the applicable limitations period. more or view all topics or full text.
392308/04/14
2459E Claremont Unified School District
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
No unalleged violation where employer had no notice of a need to defend, the unalleged violation was not fully litigated, and where charging party had ample opportunity to move to amend the complaint prior to hearing, but did not. more or view all topics or full text.
408810/27/15
2072S State of California (Department of Social Services)
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
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
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Two unalleged violations of interference found. The language of the Board Policy, “or other strike related activities” interferes with employee rights because of its ambiguity, the possibility of a broad interpretation in the future, and its chilling effect on employees’ protected rights. The language of the administrative regulation which threatens to eliminate employee payroll deduction privileges per se interferes with employees’ rights under EERA unalleged violations may be found if intimately related to complaint, part of respondent’s same conduct, fully litigated at hearing with respondent having opportunity to examine and cross examine witnesses. more or view all topics or full text.
307202/22/06
1825M County of Riverside
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
To address unalleged violations, all four requirements of the Tahoe-Truckee test must be met. (Tahoe-Truckee Unified School District (1988) PERB Decision No. 668.) In this case the four requirements were not fully discussed to provide a clear rationale for discussing issues not found in the complaint. more or view all topics or full text.
307803/01/06
1091E Los Angeles Community College District (Mrvichin)
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Evidence of wrongdoing is not itself a bar to all relief sought by a victim of discrimination; McKennon v. Nashville Banner Publishing Co. (January 23, 1995) U.S. [63 U.S.L. Week 41045]; District cannot use after-acquired evidence to support termination; p. 17. more or view all topics or full text.
192606903/16/95
1067S State of California (Department of Personnel Administration) (Association of California State Attorneys and Administrative Law Judges and Professional Engineers in California Government; California State Employees' Association; California Department of Forestry Employees' Association, Local 2881, International Association of Fire Fighters)
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Unalleged violations may be entertained only when adequate notice and the opportunity to defend has been provided to the respondent, and where such acts are intimately related to the subject matter of the complaint, are part of the same course of conduct, have been fully litigated, and the parties have had the opportunity to examine and be cross-examined on the issue; p. 15, proposed dec. more or view all topics or full text.
192601011/09/94
0869H California State University, Hayward (Dees)
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Trier of fact may consider totality of evidence, even events outside statute of limitations to draw inferences; p. 23, proposed dec. more or view all topics or full text.
152205102/25/91
0336E Los Angeles Unified School District
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Where ALJ enlarged scope of issues to resolve question of compliance with public notice requirements by use of public information file, ALJ improperly limited witnesses offered by charging party that might have shed light on issue. more or view all topics or full text.
71422808/18/83
0289E Walnut Valley Unified School District
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Hearing officer can consider facts that occurred before the six-month period proceding the filing of the charge for the purpose of clarifying the actionable conduct; p. 12. more or view all topics or full text.
71408402/28/83
0271E Lemoore Union High School District
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Statute of limitations does not preclude consideration of events occuring prior to the time period if such evidence sheds light on the alleged violation; pp. 36-37, proposed dec. more or view all topics or full text.
71402612/28/82
0264E North Sacramento School District
1105.2000: CASE PROCESSING PROCEDURES; EVIDENCE; Background Evidence and Matters Not Alleged
Not improper for ALJ to hear evidence pertaining to employer's alleged obstructionist conduct in processing of employee's grievance despite the fact that portion of charge alleging arbitrary obstruction of grievance process had been dismissed. ALJ properly considered such evidence in determining whether employer's conduct evidenced a retaliatory motive; p. 11. more or view all topics or full text.
71401712/20/82