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DecisionDescriptionPERC Vol.PERC IndexDate
2622E Cabrillo Community College District
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
On appeal of dismissal of an unfair practice charge, the Board’s inquiry is limited to the legal sufficiency of the charging party’s allegations, i.e. whether the factual allegations, if accepted as true, would state a prima facie violation. It does not determine whether a preponderance of the evidence will ultimately establish the factual allegations as true. (p. 4.) more or view all topics or full text.		 43 126 02/04/19
2622E Cabrillo Community College District
1107.13000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative and Judicial Notice
Certain records may be subject to permissive notice under Evidence Code section 452, subdivision (c), unless sufficient notice of the request for administrative notice was provided to each adverse party and there is “sufficient information” for the ALJ or Board to determine whether administrative notice is proper. (p. 10.) The Board lacked sufficient information, and thus was not required, to take notice of a federal agency report because the party requesting notice did not provide the Board or any other Board agent with a copy of the report. Moreover, the Board typically declines to take permissive notice of documents that are of no probative value to the issues before it. Without a copy of the report, the Board was not able to assess its probative value and declined to take permissive notice. (p. 10.) more or view all topics or full text.		 43 126 02/04/19
2626E Orcutt Union Elementary School District
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
The six-month statute of limitations period may be tolled either by statute or the doctrine of equitable tolling. (p. 4, fn. 4.) more or view all topics or full text.		 43 140 02/22/19
2626E Orcutt Union Elementary School District
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
Under EERA section 3541.5, subd. (a)(2), the limitations period is subject to statutory tolling during the time it takes to exhaust any grievance machinery that ends in binding arbitration and that covers the matter at issue in the unfair practice charge. (p. 4, fn. 4.) more or view all topics or full text.		 43 140 02/22/19
2626E Orcutt Union Elementary School District
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
The limitations period may be equitably tolled while the parties utilize a non-binding dispute resolution procedure if: (1) the procedure is contained in a written agreement negotiated by the parties, (2) the procedure is being used to resolve the same dispute that is the subject of the unfair practice charge, (3) the charging party reasonably and in good faith pursues the procedure, and (4) tolling does not frustrate the purpose of the statutory limitation period by causing surprise or prejudice to the respondent. (pp. 4-5) more or view all topics or full text.		 43 140 02/22/19
2626E Orcutt Union Elementary School District
1101.06000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Statutory and Equitable Tolling
Under EERA section 3541.5, subd. (a)(2), the limitations period is subject to statutory tolling during the time it takes to exhaust any grievance machinery that ends in binding arbitration and that covers the matter at issue in the unfair practice charge. (p. 4, fn. 4.) more or view all topics or full text.		 43 140 02/22/19
2626E Orcutt Union Elementary School District
1101.06000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Statutory and Equitable Tolling
The limitations period may be equitably tolled while the parties utilize a non-binding dispute resolution procedure if: (1) the procedure is contained in a written agreement negotiated by the parties, (2) the procedure is being used to resolve the same dispute that is the subject of the unfair practice charge, (3) the charging party reasonably and in good faith pursues the procedure, and (4) tolling does not frustrate the purpose of the statutory limitation period by causing surprise or prejudice to the respondent. (pp. 4-5) more or view all topics or full text.		 43 140 02/22/19
2626E Orcutt Union Elementary School District
1101.06000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Statutory and Equitable Tolling
In a unilateral change case, the limitations period is not tolled during the parties’ subsequent efforts to negotiate the foreseeable effects of the change. (p. 4.) First, the parties’ bargaining obligations are from statute, not a dispute resolution procedure contained in a negotiated written agreement. Second, the parties’ effects bargaining procedures were not used to resolve the same dispute that is the subject of the charge: an alleged unilateral change. (p. 5.) more or view all topics or full text.		 43 140 02/22/19
2643E California School Employees Association (Williams)
800.02000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Grievance Handling/Contract Administration
When a union fails to fairly represent an employee in grievance processing, the employee is not entitled to make whole relief unless he or she would have prevailed had the union properly processed the grievance. (p. 8.) In such case, the typical remedy is an order that the union process the grievance or make the employee whole if that process is not available or would be ineffectual. The latter remedy requires the employee prove in compliance proceedings that he or she would have prevailed on a properly process grievance. (p. 8, fn. 5.) more or view all topics or full text.		 43 185 05/17/19
2643E California School Employees Association (Williams)
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
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. (p. 2, fn. 2.) more or view all topics or full text.		 43 185 05/17/19
2643E California School Employees Association (Williams)
1107.05000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Precedential Authority of PERB Decisions
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. (p. 2, fn. 2.) more or view all topics or full text.		 43 185 05/17/19
2643E California School Employees Association (Williams)
1107.18000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Review of Findings Not Excepted To
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. (p. 2, fn. 2.) more or view all topics or full text.		 43 185 05/17/19
2643E California School Employees Association (Williams)
1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
When a union fails to fairly represent an employee in grievance processing, the employee is not entitled to make whole relief unless he or she would have prevailed had the union properly processed the grievance. (p. 8.) In such case, the typical remedy is an order that the union process the grievance or make the employee whole if that process is not available or would be ineffectual. The latter remedy requires the employee prove in compliance proceedings that he or she would have prevailed on a properly process grievance. (p. 8, fn. 5.) more or view all topics or full text.		 43 185 05/17/19
2643E California School Employees Association (Williams)
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
EERA section 3541.5(c) grants PERB “broad remedial powers to effectuate the purposes of the EERA,” including an award of monetary damages when such relief is necessary to place the injured party in the position it would have been in had the wrongful conduct not occurred, i.e., to make the injured party “whole.” But PERB does not presume damages on the part of employees, even where the representative has failed to adequately represent them. (p. 7.) more or view all topics or full text.		 43 185 05/17/19
2656M Sanitation Districts of Los Angeles County
1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated
As part of the Board’s authority to take any action in a pending case that the Board deems necessary to discharge its duties and effectuate the purposes of the labor relations laws that PERB enforces, the Board has discretion to grant or deny requests to withdraw and dismiss cases pending before the Board itself. (EERA, § 3541.3, subds. (i) and (n); MMBA, § 3509, subd. (a); City of Santa Rosa (Fire Department) (2019) PERB Decision No. 2653-M, p. 2.) Board found withdrawal of the union’s exceptions and request that no further action be taken in the case pursuant to a settlement agreement between the parties to be consistent with the MMBA’s purpose of promoting harmonious labor relations and granted requests. Matter closed and compliance deemed complete. more or view all topics or full text.		 44 26 07/11/19
2620M City of Hayward and Service Employees International Union Local 1021
1107.15000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Withdrawal of Appeal; Request that Decision be Vacated
Based on the Board’s review of the parties’ joint request and their settlement agreement, and the entire record, the Board found granting the request to be in the best interest of the parties and consistent with the purposes of the MMBA to promote harmonious labor relations. more or view all topics or full text.		 43 119 01/08/19
2617E Oxnard Union High School District
1105.14000: CASE PROCESSING PROCEDURES; EVIDENCE; Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements
The Board held the ALJ properly refused to consider documents attached to the charging party’s post-hearing closing brief which were offered in support of her claim that two of respondent’s witnesses testified untruthfully at the hearing. Because she never requested a hearing transcript, the Board had no formal record of their testimony to review and no basis to question the ALJ’s findings of fact based on the witnesses’ testimony. (p. 3.) Nor did charging party explain why she did not introduce the documents, which existed at the time of the hearing, before the evidentiary record closed. Thus, her effort to attack the witnesses’ credibility after they were no longer subject to examination by the employer was inappropriate. (p. 4.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Compliance with PERB Regulation 32300 is necessary to afford the respondent and the Board an adequate opportunity to address the issues raised. When a party fails to comply with those requirements, the Board may dismiss the exceptions without reviewing their merits. (p. 2.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board need not consider arguments in a party’s exceptions that the ALJ adequately addressed in the proposed decision. (p. 2.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Absent good cause, after the evidentiary record closes, a party cannot belatedly proffer evidence it had the opportunity to present during an earlier stage of the proceedings. (p. 3.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
An ALJ did not err in declining to consider documents not introduced at the hearing that the charging party submitted with her post-hearing closing brief. (p. 3.) To the extent the charging party argued the documents were intended to show that the respondent’s witnesses testified untruthfully, the charging party failed to offer any explanation for why she could not have introduced the documents at hearing. (p. 4.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1107.02000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Weight Given to ALJ's Proposed Decision: Findings, Conclusions, Credibility Resolutions
The Board held the ALJ properly refused to consider documents attached to the charging party’s post-hearing closing brief which were offered in support of her claim that two of respondent’s witnesses testified untruthfully at the hearing. Because she never requested a hearing transcript, the Board had no formal record of their testimony to review and no basis to question the ALJ’s findings of fact based on the witnesses’ testimony. (p. 3.) Nor did charging party explain why she did not introduce the documents, which existed at the time of the hearing, before the evidentiary record closed. Thus, her effort to attack the witnesses’ credibility after they were no longer subject to examination by the employer was inappropriate. (p. 4.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
Compliance with PERB Regulation 32300 is necessary to afford the respondent and the Board an adequate opportunity to address the issues raised. When a party fails to comply with those requirements, the Board may dismiss the exceptions without reviewing their merits. (p. 2.) more or view all topics or full text.		 43 111 12/27/18
2617E Oxnard Union High School District
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
Compliance with PERB Regulation 32300 is necessary to afford the respondent and the Board an adequate opportunity to address the issues raised. When a party fails to comply with those requirements, the Board may dismiss the exceptions without reviewing their merits. (p. 2.) more or view all topics or full text.		 43 111 12/27/18
2622E Cabrillo Community College District
501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case
To demonstrate that an employer has retaliated against an employee in violation of the EERA, the charging party must prove that: (1) he exercised rights under the EERA; (2) the District had knowledge of his exercise of those rights; (3) the District took adverse action against him; and (4) the District took the adverse action because of his exercise of those rights. (p. 6.) more or view all topics or full text.		 43 126 02/04/19