Decision 2013S – State of California (Department of Personnel Administration)

SA-CE-1648-S

Decision Date: March 13, 2009

Decision Type: PERB Decision

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Perc Vol: 33
Perc Index: 57

Decision Headnotes

604.00000 – EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION
604.01000 – In General

Charge failed to state prima facie case of refusal to provide information because it alleged no admissible facts showing that charging party reasserted or clarified its information request after it received employer’s response.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.01000 – In General/Prima Facie Case

To establish a prima facie case, a charging party must allege facts that are capable of being proven by admissible evidence. Allegation that employee organization reasserted its information request was based solely on statements made by and to a California State Mediation and Conciliation Service mediator during impasse mediation. Because Evidence Code section 1119(a) and (b) makes such evidence inadmissible in an administrative adjudication, it cannot support the issuance of a complaint. In the absence of any admissible evidence that the employee organization reasserted its information request, the charge failed to state a prima facie case of refusal to provide information.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.05000 – Dismissal of Charge; Appeal

PERB Regulation 32635(b) did not bar the Board from considering equitable tolling argument raised for the first time on appeal. Charging party presented evidence of timeliness as part of its charge. Equitable tolling was merely a new legal argument based on the same evidence presented to the Board agent. Thus, the equitable tolling argument did not constitute a new allegation or new supporting evidence.

1100.00000 – CASE PROCESSING PROCEDURES; CHARGE
1100.08000 – Pleading Requirements

To establish a prima facie case, a charging party must allege facts that are capable of being proven by admissible evidence. Allegation that employee organization reasserted its information request was based solely on statements made by and to a California State Mediation and Conciliation Service mediator during impasse mediation. Because Evidence Code section 1119(a) and (b) makes such evidence inadmissible in an administrative adjudication, it cannot support the issuance of a complaint. In the absence of any admissible evidence that the employee organization reasserted its information request, the charge failed to state a prima facie case of refusal to provide information.

1101.00000 – CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE
1101.06000 – Statutory and Equitable Tolling

Equitable tolling doctrine does not apply to impasse mediation pursuant to Dills Act section 3518 because filing a request for mediation does not put the other party on notice of the subject of a future unfair practice charge. Charge failed to establish applicability of equitable tolling doctrine because: mediation procedure was not contained in a written agreement negotiated by the parties; the parties did not mediate over the subject of the unfair practice charge; and the respondent would be prejudiced by tolling because it had no notice of the subject of the charge until the charge was filed.