Decision 2476M – City of Santa Clara

SF-CE-904-M

Decision Date: March 10, 2016

Decision Type: PERB Decision

Description: The exclusive representative of City employees alleged that the City had bargained in bad faith during successor negotiations and had retaliated against the representative and bargaining unit employees for refusing to agree to concessions demanded in a previous round of negotiations.  The representative also alleged that City managers and officials had made coercive statements to employees preceding and during negotiations.  By agreement with the ALJ, the case was tried on a stipulated record, as supplemented by declarations and rebuttal declarations concerning the allegations of coercive statements.  The proposed decision dismissed all allegations and refused to consider the charging party’s declarations on hearsay, reliability and other grounds.

Disposition: The Board reversed the dismissal and remanded for further proceedings on the allegations of coercive employer statements to employees.  The Board reasoned that the charging party was blindsided by the agreement brokered by one ALJ to try the case on a stipulated record with declarations which contained disputed material facts and were more appropriately resolved through a formal evidentiary hearing.

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Perc Vol: 40
Perc Index: 154

Decision Headnotes

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.01000 – 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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.02000 – Regulations Considered (By Number)

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.”

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.01000 – 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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.03000 – Remand for Further Hearing; Remand to General Counsel

Where parties’ surface bargaining dispute turned on undisputed facts, and no party excepted to the factual findings included in a proposed decision, the Board adopted the ALJ’s factual findings but remanded for consideration of competent, reliable evidence to resolve separate interference allegations and to determine whether those allegations would affect the result of the surface bargaining allegation. Independent unfair practices committed at or away from the bargaining table, including allegations of coercive statements by employer agents to employees, may serve as evidence of bad faith in negotiations, and thus support the surface bargaining allegation. On remand, the ALJ may also consider the parties’ exceptions and responses thereto to ensure that any legal conclusions included in a new proposed decision are free of possible error. 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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.02000 – Weight Given to ALJ’s Proposed Decision: Findings, Conclusions, Credibility Resolutions

Where parties’ surface bargaining dispute turned on undisputed facts, and no party excepted to the factual findings included in a proposed decision, the Board adopted the ALJ’s factual findings but remanded for consideration of competent, reliable evidence to resolve separate interference allegations and to determine whether those allegations would affect the result of the surface bargaining allegation. Independent unfair practices committed at or away from the bargaining table, including allegations of coercive statements by employer agents to employees, may serve as evidence of bad faith in negotiations, and thus support the surface bargaining allegation. On remand, the ALJ may also consider the parties’ exceptions and responses thereto to ensure that any legal conclusions included in a new proposed decision are free of possible error. 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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver

Where parties’ surface bargaining dispute turned on undisputed facts, and no party excepted to the factual findings included in a proposed decision, the Board adopted the ALJ’s factual findings but remanded for consideration of competent, reliable evidence to resolve separate interference allegations and to determine whether those allegations would affect the result of the surface bargaining allegation. Independent unfair practices committed at or away from the bargaining table, including allegations of coercive statements by employer agents to employees, may serve as evidence of bad faith in negotiations, and thus support the surface bargaining allegation. On remand, the ALJ may also consider the parties’ exceptions and responses thereto to ensure that any legal conclusions included in a new proposed decision are free of possible error. 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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.17000 – Stipulations

The 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. (PERB Reg. 32207) 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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.14000 – Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements

Hearsay evidence contained in declarations is insufficient, by itself, to make findings and resolve disputed material facts. (PERB Reg. 32176.) 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 and declarations containing disputed factual issues.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.06000 – Hearsay

Hearsay evidence contained in declarations is insufficient, by itself, to make findings and resolve disputed material facts. (PERB Reg. 32176.) 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 and declarations containing disputed factual issues. 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.

1105.00000 – CASE PROCESSING PROCEDURES; EVIDENCE
1105.03000 – Burden of Proof; Weight of Evidence; Presumptions and Inferences; Affirmative Defenses

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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
1503.03000 – Regulations Considered (By Number) (Continued)

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.”