All notes for Subtopic 1503.01000 – In General

DecisionDescriptionPERC Vol.PERC IndexDate
2667Pa San Diego Metropolitan Transit System
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The grounds for reconsideration are limited to claims that: “(1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence.” (PERB Reg. 32410(a).) A party cannot use the reconsideration process to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to try again. (p. 2) The Board denied the request for reconsideration because it failed to address either of the required criteria but challenged solely the Board’s legal analysis and conclusions in the underlying decision, which is not a basis for reconsideration. (Ibid.) more or view all topics or full text.
11/07/19
2654E * * * JUDICIAL APPEAL PENDING * * * Claremont Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 32300, the Board cannot consider matters not contained in the record when deliberating a party’s exceptions. Thus an external investigator’s report cited in the employer’s exceptions but that it failed to enter into the record could not be considered in determining whether the employer had a legitimate business justification for issuing an employee an order not to contact other employees. (p. 17, fn. 14.) more or view all topics or full text.
07/10/19
2667P San Diego Metropolitan Transit System
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 93080, when deciding transit district representation cases under the Public Utilities Code, the Board shall apply the relevant federal law and administrative practice developed under the Labor Management Relations Act, 1947, as amended. (p. 17.) In doing so, the Board shall apply federal law unless (1) the question presented is governed by an explicit provision of the applicable transit district act, or (2) considerations unique to public sector labor relations require deviation from federal law. (pp. 17-18.) more or view all topics or full text.
09/06/19
2667P San Diego Metropolitan Transit System
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 93025, a determination by SMCS in a transit district representation case arising under the Public Utilities Code is appealable to the Board itself. (p. 17, fn. 9.) more or view all topics or full text.
09/06/19
2667P San Diego Metropolitan Transit System
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulation 93040, governing hearings before SMCS, does not prohibit consideration of hearsay evidence. SMCS and the Board may thus consider hearsay evidence while taking into account its hearsay nature when determining how much evidentiary weight to give it. (p. 30, fn. 21.) more or view all topics or full text.
09/06/19
A470E Children of Promise Preparatory Academy
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
On appeal from an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations, stating the specific issue(s) of procedure, fact, law or rationale that is appealed and state the grounds for the appeal. (p. 4, citing PERB Regulation 32360.) more or view all topics or full text.
438211/29/18
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 32147, the Board itself may expedite the processing of a case presenting an important question of law, the early resolution of which is likely to improve labor relations, at all levels before PERB. (pp. 11-12.) more or view all topics or full text.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 32215, the Board may order the Division of Administrative Law to conduct an expedited hearing and, upon completion of the hearing, that the record be submitted to the Board itself for a decision on the merits. (p. 12.) more or view all topics or full text.
09/20/19
2670M * * * JUDICIAL APPEAL PENDING * * * County of Santa Clara
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; 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
2643E California School Employees Association (Williams)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
When neither party excepts to the merits of a proposed decision, the merits are not before the Board and are thus final and binding only on the parties to that proposed decision. (PERB Regulations 32300(c), 32305(a).) (p. 2, fn. 2.) more or view all topics or full text.
4318505/17/19
2588E Los Angeles Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
In accordance with PERB Reg. 32207, the parties may submit a stipulated factual record in lieu of a hearing. In such case, the stipulated facts shall be deemed undisputed. (p. 2.) more or view all topics or full text.
436310/17/18
A441M San Diego Metropolitan Transit System * * * PUC TRANSIT CASE. PERB DECISION NUMBER CONTAINS INCORRECT LETTERING, AS CASE DID NOT ARISE UNDER MMBA * * *
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The five-day extension of time for filings made in response to documents served by mail within California under PERB Regulation 32130, subdivision (c), is applicable if the document was served by mail, even if it was also served electronically. (p. 4.) more or view all topics or full text.
416609/20/16
A447E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB’s Appeals Assistant correctly determined that Charging Party’s response to the exceptions was untimely, as it was not filed and served until more than 20 days following the date of service of the opposing party’s exceptions. The fact that a document is also filed and served by e-mail does not alter the five-day extension of time under PERB Regulation 32130, subd. (c), if the document is also filed and served by regular mail in accordance with PERB Regulations. However, the same is not true for documents filed and served by facsimile. The Regulation states that, “No extension of time applies in the case of documents served in person, or by facsimile transmission as defined in Section 32090.” more or view all topics or full text.
421506/28/17
A447E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board denied Charging Party’s appeal from an administrative determination which denied its filing as untimely due to attorney error. Although an untimely filing may be excused at the discretion of the Board for “good cause” (PERB Reg. 32136), generally, “the Board has not found good cause [to excuse a late filing] in situations where the party’s attorney was directly responsible for the late filing.” Board precedent considers whether good cause exists separate from whether excusing a late filing would result in prejudice. Thus, even if a late filing would not result in prejudice, PERB has no discretion to accept the untimely filing in the absence of good cause. more or view all topics or full text.
421506/28/17
A446E Lake Elsinore Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board denied a school district’s appeal from an administrative determination which rejected the district’s filing as untimely where the untimeliness was due to attorney error, including failure to carefully review PERB Regulations or other materials regarding the filing deadlines, counsel’s failure to seek clarification or an extension of time when confronted with conflicting information as to the filing deadline. (pp. 10-11.) Although an untimely filing may be excused at the discretion of the Board for “good cause” (PERB Reg. 32136), generally, “the Board has not found good cause [to excuse a late filing] in situations where the party’s attorney was directly responsible for the late filing.” (Ibid.) more or view all topics or full text.
421806/28/17
A446Ea Lake Elsinore Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Because a public school employer’s request for reconsideration concerned a Board decision resolving an appeal from an administrative determination, there was no factual record to reconsider. Prior board precedent had determined that reconsideration is not available for decisions arising from administrative appeals. There are only two grounds for reconsideration authorized by PERB Regulation 32410: (1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party requesting reconsideration has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. The Regulation’s focus on prejudicial error of fact or newly-discovered evidence indicates that the reconsideration procedure is limited to Board decisions based on a proposed decision and developed factual record following a formal hearing or stipulated record. (pp. 3-5.) more or view all topics or full text.
4214805/15/18
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Office of the General Counsel correctly relied on the estimated figure of 325 affected employees, as stated in the union’s petition for unit modification, rather than the employer’s estimates of how many employees would eventually be reclassified into the affected classifications. (pp. 21-22.) Proof of support is determined by PERB when a petition is filed and an employer provides a list of employees that comprise the petitioned-for unit or the proposed unit modification. The employer is in the unique position of having sole access to the pertinent information, including which employees perform what duties and under which job titles. Where the employer is unable or unwilling to produce complete and accurate lists of employees in a proposed unit at the time, it is impossible for PERB to verify a showing of support or, as in the present case, whether such a showing is required. In such circumstances, the Board agent conducting the investigation may make reasonable assumptions about the proposed unit or unit modification, including that the number of affected employees estimated by the party of interest applicant is accurate. (Ibid.) more or view all topics or full text.
424709/29/17
A449E Lake Elsinore Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Pursuant to PERB Regulations 323601 and 32136, Charging Parties appealed from the Appeals Assistant’s determination and request that the Board excuse the late filing and consider the attempted amendment to their statement of exceptions when deciding the merits of the underlying unfair practice charge. Because Charging Parties’ appeal from an administrative determination was itself untimely filed, the Board denied the appeal and declined to consider whether Charging Parties had established good cause to excuse their prior late filing, which was the subject of the appeal. more or view all topics or full text.
421706/28/17
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
By adopting a regulation providing that an increase in the size of a bargaining unit by ten percent or more through the addition of unrepresented positions creates a question concerning representation, the “necessary implication is that increasing the unit by less than ten percent does not call into question the incumbent union’s majority support,” and that the agency is without discretion to require a showing of support in such circumstances. (p. 8.) PERB’s unit modification procedures are inconsistent with the NLRB’s accretion doctrine because the plain language and the policies of HEERA and PERB Regulation 32781 differ in significant respects from their private-sector counterparts. PERB cannot change its regulations through decisional law. (pp. 8-9.) more or view all topics or full text.
424709/29/17
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Because HEERA does not itself mandate an election where an established unit is modified, it is within the Board’s discretion to adopt and interpret regulations defining under what circumstances an election is appropriate, or conversely, removing the Board’s discretion to require an election under specified circumstances. The PERB-administered statutes recognize that employee choice is not absolute, but must be balanced against the other policy objectives identified by the Legislature, including establishing “orderly and clearly defined procedures for meeting and conferring and the resolution of impasses.” (p. 9.) more or view all topics or full text.
424709/29/17
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board rejected the University’s appeal arguing that a union petitioning for unit modification should be required to show proof of support under PERB Regulation 32781 because, when the petition was filed, the University had not yet completed the process of reclassifying unrepresented employees and it projected to reclassify a significant number of additional employees into the new classification. (p. 14.) The administrative determination appropriately reasoned that the proposed addition sought by a unit modification petition at the time the petition is filed is determinative and “not whether the proposed addition grows or shrinks after the time the petition is filed.” (pp. 13-14.) more or view all topics or full text.
424709/29/17
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Pursuant to PERB Regulations, the Board may expedite a unit modification case arising under PERB Regulation 32781. Because the present dispute is a cause of great concern to the parties and affected employees, PERB processed the case on an expedited basis in effort to promote stable employer-employee relations, and thereby effectuate the policies and purpose of HEERA. (p. 17.) more or view all topics or full text.
424709/29/17
J028H Regents of the University of California and University Professional and Technical Employees, Communications Workers of America Local 9119
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board declined to join in an employer’s request for judicial review where the issue, application of the ten percent rule for proof of majority support in unit modifications, was neither “novel” nor one of “special importance” unique to HEERA. HEERA section 3564, subdivision (a), makes PERB unit determinations immune from judicial review except when, in response to a petition for judicial review from an employer or employee organization, the Board agrees that the case is one of “special importance” and joins in the request for review; or when the issue is raised as a defense to an unfair practice complaint. (PERB Reg. 32500.) The Board has joined in a request for judicial review only when: (1) the case presents a novel issue; (2) the issue primarily involves construction of a statutory provision unique to the statute under consideration; and (3) the issue is likely to arise frequently. The Board applies this strict standard because the fundamental rights of employees to form, join and participate in the activities of employee organizations could be jeopardized if PERB’s unit determinations were routinely subject to legal challenges. more or view all topics or full text.
4211102/27/18
A458M County of Solano
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Generally, where the exclusive representative has made a request for factfinding that is timely under any plausible interpretation of the public agency’s local rules and that is accompanied by a statement that the parties have been unable to effect a settlement to their dispute, PERB must accept the request as timely and allow the parties to proceed to factfinding. Here, however, while the local rules appear to contemplate selection of a mediator by mutual agreement of the parties as one option, the employee organization’s conduct was inconsistent with that option, regardless of whether it was the default option or simply one option among others. Because the organization appears to have accepted the selection of the mediator and expressed no reservations about this selection, nor suggested any other mediator or any alternative process whereby the parties would mutually agree on the identity of the mediator, the Board rejected its appeal and adopted the administrative determination that the employee organization’s request for factfinding was untimely. more or view all topics or full text.
427801/09/18
A455M County of Solano
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulations provide that an appeal from an administrative decision will not automatically prevent the Board from proceeding in a case. Pursuant to PERB Regulation 32370, parties seeking a stay of any activity may file a request for a stay with the administrative appeal which shall include all pertinent facts and justification for the request. Except as otherwise provided by PERB Regulations, the Board may order a stay of activity when the ruling or order that is the subject of appeal would be rendered unnecessary or moot, should the Board reverse it. In this case, however, because the administrative determination denied Local 1021’s request for factfinding, there was no ruling or order that would be rendered unnecessary if the Board were to reverse the administrative determination. Accordingly, there was nothing to stay and the Board denied the request. more or view all topics or full text.
425510/25/17
A453H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.
424709/29/17
2566C Los Angeles County Superior Court
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board cannot enact a regulation expanding the scope of its authority beyond what is authorized by the enabling statute. The Board regarded a regulation that appeared to do so as a drafting error. more or view all topics or full text.
43106/12/18
2567E Hartnell Community College District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board denied Charging Party’s exception which asserted that the ALJ had improperly failed to consider evidence that the employer’s decisionmaker had received biased, inaccurate or incomplete information from a subordinate, which influenced the decision to take adverse action against Charging Party. The exception included no citation to the record and did not identify any specific evidence that was neglected. ERB Regulation 32300 requires the party filing exceptions to: (1) state the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. (PERB Reg. 32300.) more or view all topics or full text.
43206/12/18
2567E Hartnell Community College District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Absent any clear statement of the issues or the grounds for an exception or, at least some explanation of each exception’s significance within the overall context of the case, the Board declined to consider several of Charging Party’s exceptions for failure to comply with the requirements of PERB Regulation 32300. (p. 13.) more or view all topics or full text.
43206/12/18
2567E Hartnell Community College District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Charging Party cannot rely on factual allegations made at the pre-hearing stage of PERB proceedings, which PERB accepts as true, with factual findings resulting from a formal hearing and developed record, which are the Charging Party’s burden to prove with competent and admissible evidence. (PERB Regs. 32178.) On review of a dismissal without hearing, the Board treats the charging party’s factual allegations as true and considers them in the light most favorable to the charging party’s case. However, after a complaint issues, the charging party bears the burden of prove the complaint’s allegations by a preponderance of the evidence in order to prevail. (PERB Reg. 32178.) A prior Board decision reversing the dismissal of an unfair practice charge is neither evidence in support of a complaint’s allegations, nor the law of the case as to the merits of the dispute. (pp. 6-7.) more or view all topics or full text.
43206/12/18
2548E Lake Elsinore Unified School District (Edwards)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Despite its highly repetitive and often misplaced or entirely irrelevant arguments, charging party’s appeal from dismissal/refusal to issue a complaint identified the asserted error by the Office of the General Counsel in dismissing her charge, and thus substantially complied with PERB Regulation 32635. While clarity and conciseness are always appreciated, the regulation governing appeals does not expressly require a “clear and concise statement” of the appeal. (p. 11.) more or view all topics or full text.
4210202/02/18
2544E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board rejected a school district’s exception that a Board-ordered remedy including restoration of the status quo and make-whole relief conflicted with federal law governing special education. The district’s statement of exceptions and supporting brief included no citation to any provision of the federal statute or decisional law interpreting it, and the district failed to explain how PERB’s customary remedy for a unilateral change would conflict with federal law. The district’s filing both failed to comply with the requirements of PERB Regulation 32300 governing exceptions, and, even if considered, had no merit. Unless a remedial measure positively conflicts with “inflexible standard[s]” or “immutable provisions” set by external law, the fact that it affects matters normally within the jurisdiction of another tribunal does not, by itself, make PERB’s remedy improper. (pp. 10-11.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; 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
2544E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
In the absence of any explanation or briefing from a school district who argued that the management rights clause remained in effect after 2010, or a request for reconsideration showing both extraordinary circumstances and that the Board’s determination in a prior decision that the parties’ agreement had expired in 2010 contained prejudicial error of fact, the Board had no grounds to consider the district’s waiver defense, which was based on the management rights language, in this case. (p. 7.) The interpretation of a collective bargaining agreement is not simply a factual finding of the sort which the Board or its agents are free to disregard in a subsequent case involving the same language. Because of its significance for governing the parties’ ongoing relationship, a Board finding as to the meaning of a contract term is more akin to a question of law, particularly where, as here, the question is whether the contract itself is illegal or void for public policy, as declared by the three-year limit for collective bargaining agreements set forth in EERA section 3540.1, subdivision (h). (pp. 6-7.) more or view all topics or full text.
427012/15/17
2544E Bellflower Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Because the uncontradicted, unimpeached testimony of three union witnesses and one management witness was that the parties’ collective bargaining agreement had expired in 2010, the Board denied a school district’s exception arguing that the agreement’s management rights clause had remained in effect and served as a waiver of the union’s right to bargain over subcontracting of the district’s bus services. (p. 5.) Uncontradicted, unimpeached testimony at hearing is sufficient to carry the burden of proof in an unfair practice case. (PERB Reg. 32178.) more or view all topics or full text.
427012/15/17
2525M City of Livermore
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Because PERB’s Regulation governing exceptions to a proposed decision expressly state that “[r]eference shall be made in the statement of exceptions only to matters contained in the record of the case” (PERB Reg. 32300, subd. (b)), a respondent may not use its statement of exceptions or supporting brief to present new justifications for its conduct. (p. 10.) more or view all topics or full text.
4117305/04/17
A466E Grossmont Union High School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under PERB Regulation 32305, the Board shall not grant extensions of time in appeals arising under one of the enumerated regulations and where the exceptions have been filed in response to a proposed decision at the conclusion of the formal hearing process. (p. 4) There is no such prohibition on extensions of time in cases arising from an administrative appeal under PERB Regulation 32360. (pp. 5, 7) more or view all topics or full text.
431506/20/18
2505M City of Roseville
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; 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
2505M City of Roseville
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; 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
A432H Trustees of the California State University
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board denied a higher education employer’s appeal from an administrative determination rejecting the employer’s late-filed opposition to an appeal from dismissal of an unfair practice charge, finding the employer had not provided sufficient factual detail to establish either a reasonable and credible explanation for its untimely filing or that it made a conscientious effort to comply with the deadline by requesting an extension of time, as required by PERB Regulation 32136 and decisional law. The employer admitted that its designated representative was in possession of the opposing party’s appeal almost two weeks before the deadline, the employer’s representative neither requested an extension of time nor sought clarification of the deadline but instead attempted to extend its own deadline for filing its papers because of delay in receiving opposing party’s appeal due to defective service. Although the Board may grant extensions of time or excuse late filings for good cause, parties cannot take the filing deadlines into their own hands. The Board denied a higher education employer’s request to refuse to consider an opposing party’s appeal for defective service where there was no evidence that the employer had been prejudiced by the failure to properly serve the appeal. Unlike PERB’s regulations and decisional law governing whether to excuse a late filing, no showing of “good cause” is required to excuse defective service; rather, the service requirement may be excused if opposing parties have actual notice of the issues and would not be unfairly surprised or unduly prejudiced. Because the employer was in receipt of opposing party’s appeal almost two weeks before the deadline for filing an opposition to the appeal, it had actual notice of the issues and was not prejudiced by the fact that the appeal was not served in complete conformity with the requirements of PERB Regulation 32140, subdivision (a). more or view all topics or full text.
4013802/11/16
A434H Regents of the University of California
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB has generally construed its regulations governing representation matters narrowly and declined to look to private-sector authority for guidance when PERB’ s regulations expressly address the policy concerns underlying the practice and procedure of private-sector labor boards such as the National Labor Relations Board or Agricultural Labor Relations Board. Because PERB regulations require that all representation elections affecting HEERA units “be conducted by secret ballot under the supervision of the Board,” and that the ballots for such elections also “shall be prepared under the supervision of the Board,” PERB refused to accept and count tie-breaking vote from employee who constructed his own homemade ballot after allegedly not receiving an official ballot. (PERB Reg. 32722, subds. (a) and (b). more or view all topics or full text.
02/29/16
2476M City of Santa Clara
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Pursuant to PERB Regulation 32176, hearsay evidence contained in declarations is insufficient, by itself, to make findings and resolve disputed material facts. Presiding ALJ had discretion to convene a hearing to take live testimony on disputed material facts in order to inquire fully into all issues and obtain a complete record on which a decision could be rendered, even where parties had agreed to proceed on a stipulated record supplemented by declarations and rebuttal declarations containing disputed material factual issues. Pursuant to PERB Regulation 32207, parties may submit stipulated facts where appropriate to a Board agent. No hearing shall be required unless the parties dispute the facts in the case. The regulation authorizes a hearing officer to convene a hearing and take live testimony to resolve material factual disputes, even where the parties themselves have agreed to proceed on a stipulated record and to present disputed facts through sworn declarations. Pursuant to PERB Regulations 32170, subdivision (a), and 32207, presiding Board agent may supplement parties’ stipulated record and declarations by ordering presentation of witnesses or other competent and reliable evidence on issues involving disputed material facts to make credibility determinations and to “[i]nquire fully into all issues and obtain a complete record upon which the decision can be rendered. more or view all topics or full text.
4015403/10/16
2481H Regents of the University of California (Los Angeles)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulation 32150 provides that, before the hearing has commenced, the Board shall issue subpoenas at the request of any party for attendance of witnesses or production of documents at the hearing. The regulation also provides that compliance with the provisions of section 1985 of the Code of Civil Procedure shall be a condition precedent to the issuance of a subpoena for production of documents. After the hearing has begun, a decision to issue subpoenas is left to the sound discretion of the hearing officer. Board declined to disturb ALJ’s ruling denying charging party’s request, made on the last day of presenting his case-in-chief, for production of documents to attack witness credibility. Despite being a self-represented layperson, charging party was familiar with PERB’s unfair practice proceedings from a previous case. PERB Regulation 32300 requires the party filing exceptions to a proposed decision to include: (1) a statement of the specific issues of procedure, fact, law or rationale to which each exception is taken; (2) identify the page or part of the decision to which each exception is taken; (3) designate the portions of the record relied upon; and (4) state the grounds for each exception. Board declined to address charging party’s exceptions or overturn the ALJ’s credibility determinations where charging party failed to cite to the applicable portion of the record, attempted to introduce evidence outside the record, or merely repeated arguments already adequately addressed by the proposed decision. more or view all topics or full text.
4018405/27/16
2431M County of Santa Clara
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
While PERB Regulation 32620 requires a Board agent investigating a charge to assist the charging in stating information that is required, no similar requirement is extended to affirmative defenses not raised by a respondent. more or view all topics or full text.
3918106/10/15
A409M City of Redondo Beach
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board held that an exclusive representative’s factfinding request was untimely pursuant to section 3505.4 of the Meyers-Milias-Brown Act (MMBA) and PERB Regulation 32802. Since the exclusive representative has the sole right to request factfinding, it has the responsibility to ensure that a request for factfinding is timely. more or view all topics or full text.
3815204/09/14
A423M City of Folsom
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Pursuant to the MMBA and PERB Regulations 32802 and 32804, PERB does not conduct or in any manner oversee the factfinding process nor determine the issues to be presented and, by statute, its role is limited to determining whether a request for factfinding meets the statutory criteria, the Board declined to consider arguments that single-issue factfinding is unworkable, time-consuming and inordinately expensive. more or view all topics or full text.
3918406/11/15
2138M County of Orange
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Under the MMBA, PERB regulations will apply only when the agency’s local rules contain no provision that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. Because a county’s local rule governing unit modification provided the functional equivalent of a unit severance rule and did not unduly burden the petitioning union, the local rule, and not PERB regulations, applied to the union’s severance petition. more or view all topics or full text.
3415610/25/10
2113M County of Siskiyou/Siskiyou County Superior Court
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
MMBA section 3509(a) and Trial Court Act section 71639.1(b) grant PERB the authority to adopt rules to apply in areas where a local agency or trial court has no rule. PERB regulations thus serve to “fill in the gaps” when a local agency or trial court has not adopted local rules governing a particular representation issue. Because county and trial court had not adopted local rules governing amendment of certification, PERB’s regulations on the subject applied to petitions to amend an exclusive representative’s certification. more or view all topics or full text.
349506/07/10
A382S State of California (Department of Corrections and Rehabilitation)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB may not modify its regulations by decisional law. In absence of regulation allowing filing of documents under seal, Appeals Assistant properly rejected sealed exhibit that was not served on opposing party. more or view all topics or full text.
344412/30/09
1762S State of California (Department of Consumer Affairs)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
As required by PERB Regulation 32635, the appeal did not provide facts supporting its allegations that the Board agent did not properly investigate the charge, used ex parte communications with the State in rendering his decision and failed to determine whether the charge should be deferred to arbitration. The Board agent fulfilled the requirements of PERB Regulation 32620 in processing the charge. The Board rejected Wilson-Combs’ argument that it must presume the State’s unlawful motive for purposes of finding a prima facie case of retaliation. The charge did not specify the dates of her alleged union activity or facts showing the State’s knowledge of her activity. Contrary to PERB Regulation 32615(a)(5), the charge did not contain a “clear and concise statement of the fact and conduct alleged to constitute an unfair practice.” more or view all topics or full text.
2912104/15/05
1506E Santa Clarita Community College District (College of the Canyons)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
By operation of the very language empowering PERB to make rules, the regulations must be enacted and construed in conformity with the provisions, purposes and policies of the Act. more or view all topics or full text.
273501/08/03
1312E Teachers Association of Long Beach (Filinuk, et al.)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulation 32994(a) requires that an agency fee payer who wishes to challenge the amount of the fee by filing an unfair practice charge must first exhaust the exclusive representative’s agency fee appeal procedure unless the procedure is insufficient on its face; warning letter. more or view all topics or full text.
233005001/27/99
A246S State of California (Department of Personnel Administration) (California Union of Safety Employees)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
It is appropriate to apply the rules of statutory construction to determine the meaning of regulations and when the meaning of terms is ambiguous. more or view all topics or full text.
172410205/18/93
A163E Santa Monica-Malibu Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Board will not regularly excuse a failure to abide by duly-promulgated regulations; p. 3. more or view all topics or full text.
111808004/15/87
A088E Torrance Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
In employer appeal of regional director's determination that voter list in an election must list home addressees pursuant to PERB regulation 32726, legality of regulation is not properly litigated; regional director is without discretion in ordering compliance with regulation, absent an allegation that the order violated the rule; pp. 1-2. more or view all topics or full text.
41108005/06/80
A084E Oakland Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
While entitled to considerable weight, opinion of attorney general which held that disclosure of employees' addresses by employer is unlawful is not law and is not controlling in the determination of the legality of PERB Regulation 32726 requiring disclosure of employees' home addresses on eligible voter list; p. 4. Issue of legality of PERB Regulation requiring employer to disclose employees' home addresses on voter eligibility list is not addressable on appeal of regional director's order to employer to provide such addresses; Board will not address legality of its own regulations; proper forum for repeal of regulation is Board's quasi-legislative rule-making process; p. 4. more or view all topics or full text.
41106204/15/80
A050E Taft Union High School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Regulations validly enacted pursuant to a legislative grant of authority such as EERA section 3541.3(g) have the force and effect of law; p. 4. more or view all topics or full text.
31000012/08/78
0792E Inglewood Unified School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
32648 Board affirmed ALJ's granting of motion to amend where new theory based on same set of facts as alleged in original complaint and where no prejudice demonstrated. 32178 The burden of proof in unfair labor practice cases is preponderance of the evidence; p. 19. (Affirmed, Inglewood Teachers Association v. PERB/Inglewood Unified School District.) more or view all topics or full text.
142105702/15/90
0375E Healdsburg Union High School District and Healdsburg Union School District/San Mateo City School District
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Where regulation does not have retroactive effect, decision must be governed by statute and regulations in effect at time controversy arose; p. 49. more or view all topics or full text.
81502101/05/84
0998H Regents of the University of California (Lawrence Berkeley)
1503.1000: MISCELLANEOUS ISSUES; REGULATIONS; In General
Regulation 32653(b) New evidence was not considered on appeal because there was no showing of good cause; p. 2. more or view all topics or full text.
172410605/26/93