Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2514E	Santa Ana Unified School District 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Due process and fair proceedings required by statutory, regulatory and decisional law preclude PERB from resolving material factual disputes or making credibility determinations in the absence of a formal hearing or stipulated record. (p. 3, fn. 6.) Although the charging party had several medical restrictions that would require modifying the schedule of a hearing, for example, by taking frequent breaks, so that she is not required to sit or stand for more than one hour at a time, such modifications are not inherently unreasonable, nor unprecedented in PERB proceedings where necessary to accommodate a party’s medical condition. (38-39.) Even assuming a full hearing on the merits was impractical or impossible in this case because of the charging party’s medical condition, at minimum, a hearing on the disputed facts underlying the District’s motion to dismiss and its laches defense was necessary before dismissing the case. Alternatively, PERB Regulations authorize a hearing officer to order any person, including a party or material witness who is unable to attend a hearing because of illness or infirmity, to be deposed to ensure that oral testimony is subject to cross examination. (pp. 35-36.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1100.02000: CASE PROCESSING PROCEDURES; CHARGE; Investigation of Charge Position statements and other materials filed with the Board as part of its pre-hearing investigation are not confidential. PERB Regulation 32620, subdivision (c), expressly requires that a respondent’s position statement be served on the charging party and, in this case, the party asserting confidentiality provided no statutory or decisional authority exempting its position statement from disclosure as a public record under the California Public Records Act. (p. 3, fn. 7.) Similarly, although diagnoses, treatments and other medical information may be subject to a right of privacy, a charging party has no right to submit documentation ex parte to a hearing officer and keep it from the respondent, if such information is to be used as the basis for a decision affecting the case, including whether to place the matter in abeyance. (p. 32, fn. 35.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1100.11000: CASE PROCESSING PROCEDURES; CHARGE; Response to Charge Position statements and other materials filed with the Board as part of its pre-hearing investigation are not confidential. PERB Regulation 32620, subdivision (c), expressly requires that a respondent’s position statement be served on the charging party and, in this case, the party asserting confidentiality provided no statutory or decisional authority exempting its position statement from disclosure as a public record under the California Public Records Act. (p. 3, fn. 7.) Similarly, although diagnoses, treatments and other medical information may be subject to a right of privacy, a charging party has no right to submit documentation ex parte to a hearing officer and keep it from the respondent, if such information is to be used as the basis for a decision affecting the case, including whether to place the matter in abeyance. (p. 32, fn. 35.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 104.02000: PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD; Administrative Procedure Act as Affecting PERB Jurisdiction and Procedure PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1105.13000: CASE PROCESSING PROCEDURES; EVIDENCE; Witnesses; Who May Testify; Board Agents as Witnesses; Self-Incrimination; Immunity; Labor Code Section 1151.2 PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1105.14000: CASE PROCESSING PROCEDURES; EVIDENCE; Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) PERB’s fact-finding ability at the pre-hearing stage is also limited by the residuum rule of PERB Regulation 32176 governing evidence in unfair practice cases. Unless subject to an exception, any statement not made by a witness testifying before the factfinder constitutes hearsay evidence when offered for its truth. In the absence of some corroborating, non-hearsay evidence, typically in the form of live testimony, the parties’ declarations are insufficient to support a factual finding in unfair practice proceedings. (pp. 30-31.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued) Even though it may contain other, extraneous and improper matters, where an appeal asserts various factual, legal and procedural errors, explains the grounds for reversal, and provides points and authorities in support of its arguments, the filing substantially complies with the requirement that an appeal “place the Board and the respondent on notice of the issues,” by identifying the substance of the Dismissal and the specific errors of fact, law, or application of law to fact which she claims warrant reversal. (PERB Reg. 32635, subd. (a).) (p. 19.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1107.02000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Weight Given to ALJ's Proposed Decision: Findings, Conclusions, Credibility Resolutions Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.) more or view all topics or full text.	41	132	02/08/17
2514E	Santa Ana Unified School District 1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board Notwithstanding the deference usually shown by the Board toward an ALJ’s factual findings based on credibility determinations, because in this case, there was no formal hearing on the record and no live testimony to serve as the basis for observational or non-observational credibility factors, the Board owed no deference to the ALJ’s findings or credibility determinations. The Board applies a de novo standard of review and is required to consider the entire record. As the ultimate finder of fact, it is free to draw its own findings and conclusions from the record, even where they are contrary to those of an ALJ. (PERB Reg. 32300.) more or view all topics or full text.	41	132	02/08/17
2505M	City of Roseville 1103.04000: CASE PROCESSING PROCEDURES; COMPLAINT; Amendments 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.	41	97	11/30/16
2505M	City of Roseville 1105.02000: 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.	41	97	11/30/16
2505M	City of Roseville 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations 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.	41	97	11/30/16
2505M	City of Roseville 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations Charging Party’s allegation that the City had unilaterally imposed a Memorandum of Understanding, in violation of MMBA section 3505.7, and its allegation that the City had unilaterally imposed terms materially different from those in its LBFO, arose from the same City Council action, but were not sufficiently identified as separate theories of liability at hearing. Because the requirement of notice is not satisfied, the Board could not consider the illegal MOU allegation under PERB’s unalleged violations test. (pp. 26-27.) more or view all topics or full text.	41	97	11/30/16
2505M	City of Roseville 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations Although the City’s brief before the ALJ argued that it did not have adequate notice and opportunity to defend against an allegation that it had imposed terms different from those in its LBFO, it also acknowledged that this allegation had never been formally dismissed and that it had been raised in the charging party’s opening statement at hearing. The City’s brief also included citations in the record in which this issue was the subject of witness testimony. Accordingly, the notice requirement of PERB’s unalleged violations test was satisfied. (pp. 27-28.) more or view all topics or full text.	41	97	11/30/16
2505M	City of Roseville 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations Where a party argues that the same facts constitute separate unfair practices, one alleged in the complaint and one unalleged, the separate theories of liability are intimately related to one another and involve the same course of conduct. Because they involve the same course of conduct, the fact that one theory was included in the complaint necessarily means that the other, unalleged theory is also timely. (p. 28.) more or view all topics or full text.	41	97	11/30/16
2505M	City of Roseville 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations Under PERB’s test for unalleged violations, the requirement that a matter be “fully litigated” is satisfied when both parties have presented evidence on the issue, including submission of one or more joint exhibits reference or pertaining to the unalleged matter. (p. 29.) more or view all topics or full text.	41	97	11/30/16
2505M	City of Roseville 605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain Where parties tentatively agreed to negotiate “Other Post-Employment Benefits” separate from MOU negotiations and no other evidence was presented as to the importance of that subject or whether the parties’ failure to reach agreement on it contributed in any meaningful way to the breakdown in negotiations, Board declined to disturb ALJ’s finding that negotiations had reached a bona fide impasse as the result of good-faith bargaining. Impasse refers to an overall deadlock in negotiations. An employer may not insist on separating one negotiable subject from all others and then bargain to impasse only as to that subject and impose its proposal, while refusing to discuss other subjects that may form the basis of a possible compromise. Although impasse may result from disagreement over a single subject, that subject must be of such critical and overriding importance to the parties that disagreement on that subject alone causes an overall breakdown in negotiations such that further bargaining over any subject would be futile. (pp. 33-35.) more or view all topics or full text.	41	97	11/30/16
2505M	City of Roseville 605.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Conditional Bargaining Where parties tentatively agreed to negotiate “Other Post-Employment Benefits” separate from MOU negotiations and no other evidence was presented as to the importance of that subject or whether the parties’ failure to reach agreement on it contributed in any meaningful way to the breakdown in negotiations, Board declined to disturb ALJ’s finding that negotiations had reached a bona fide impasse as the result of good-faith bargaining. Impasse refers to an overall deadlock in negotiations. An employer may not insist on separating one negotiable subject from all others and then bargain to impasse only as to that subject and impose its proposal, while refusing to discuss other subjects that may form the basis of a possible compromise. Although impasse may result from disagreement over a single subject, that subject must be of such critical and overriding importance to the parties that disagreement on that subject alone causes an overall breakdown in negotiations such that further bargaining over any subject would be futile. (pp. 33-35.) more or view all topics or full text.	41	97	11/30/16