*The information provided does not, and is not intended to, constitute legal advice or citable legal authority . The content is for general informational purposes only. Please refer to the specific PERB regulations, precedential decisions, or other legal authorities as is appropriate.
Abeyance: A temporary suspension of activity in a case. An abeyance is usually granted by the Board and can last up to six months at a time. An abeyance may be extended up to an additional six months if all parties agree. Unless approved by the Board itself, a case may not remain in abeyance for more than two years. (PERB Reg. 32143, subd. (a).)
Administrative Law Judge (ALJ): A PERB employee (also called a Board agent) who conducts formal administrative hearings. During the hearing the ALJ will take sworn testimony (statements under oath), consider documents and other evidence submitted, and establish the official factual record. (PERB Reg. 32170.) After the hearing, the ALJ will issue a Proposed Decision. See Proposed Decision.
Adverse Action: An employer action that has a negative impact on employment. To determine whether an employer’s action is adverse, PERB considers if a reasonable person under the same circumstances (facts or conditions) would consider the action to have a negative (adverse) impact (effect) on their employment. (City of San Diego (2020) PERB Decision No. 2747-M, p. 27.)
Affirmative Defense: A respondent’s statement of facts and arguments that, if true, will defeat the charging party’s allegations in the complaint, even if all the allegations in the complaint are true. The respondent has the burden of proving an affirmative defense. Examples of affirmative defenses are that the unfair practice charge is untimely or the dispute is subject to final and binding arbitration.
Agent/Agency: A relationship that arises when one person (a principal [not to be confused with a school principal]) provides consent to another (an agent) to act on the principal’s behalf, subject to the principal’s control, and the agent consents to do so. When an agent is acting within this authority, they are acting with agency. An agent’s actions have legal consequences for the principal when the agent acts within the scope of the agent’s actual authority or with apparent authority, or the principal later ratifies (approves of or supports) the agent’s action.
Allegations: A statement that is declared or asserted (alleged) in a legal pleading (i.e., complaint) as being true or provable, without having yet been proved. A charging party has the burden to prove the allegations (legal accusations) in the complaint at hearing.
Amended Charge: The subtraction or addition of allegations to an original unfair practice charge that occurs before the complaint is issued. An amended charge must contain all allegations the charging party relies on (PERB Reg. 32621), and must follow the requirements of PERB Regulation 32615. An amended charge is titled sequentially, i.e., first amended charge, second amended charge, etc.
Answer: A formal written statement that admits or denies the allegations in the complaint and sets forth any available affirmative defenses. A respondent must file an answer to the complaint within 20 days following the date of service of the complaint or at a time set by the Board agent. Along with other requirements detailed in PERB Regulation 32644, an answer must include a specific admission or denial of each allegation contained in the complaint and a statement of any affirmative defense. If a respondent fails to file an answer, the Board may find such failure constitutes (is equal to) an admission of the truth of the material facts alleged in the charge and a waiver of respondent’s right to a hearing. (PERB Reg. 32644.)
Appeal of Dismissal: A dismissal of an unfair practice charge may be appealed to the Board itself. The appeal must be in writing and must state the specific issue(s) of procedure, fact, law, or rationale (reason for) that is appealed and state the grounds for the appeal. (PERB Regs. 32350 & 32360.)
Bargain in Good Faith: The duty of an employer and exclusive representative (union) is to meet and negotiate with a willingness to reach an agreement regarding matters within the scope of representation (wages, hours of employment, and other terms and conditions of employment).
Bias/Prejudice: A preconceived (predetermined) judgment formed without a factual basis or a clear predisposition (bias) against a party.
Board itself: The appointed members of the Board.
Board Agent: A PERB employee acting on behalf of PERB.
Board Decision: The Board itself may issue a decision based upon the record of hearing or affirm, modify (change), or reverse the proposed decision, order the record re-opened for taking further evidence, or any other action it considers necessary. (PERB Reg. 32320.)
Burden of Proof: A party’s duty to prove a disputed (not agreed on) allegation and includes the burden of persuasion (duty to convince factfinder, or Board agent, to view the facts in a way that favors that party) and the burden of production (duty to introduce enough evidence on an issue to have that issue decided by the fact-finder). The charging party shall prove the complaint by a preponderance (majority) of the evidence to prevail (win). (PERB Reg. 32178.)
But For: The test that causation (causing or producing of an effect) exists only when the result would not have occurred without the party’s conduct. For example, in a retaliation case where there is evidence that an adverse action was motivated by both lawful and unlawful reasons, the question becomes whether the adverse action would not have occurred “but for” the protected activity.
Case-In-Chief: The part of the hearing in which a party presents evidence to support its claim or defense.
Charging Party: The individual or entity that filed the unfair practice charge. See Burden of Proof.
Circumstantial Evidence: Evidence based on inference (process of thought resulting in a conclusion) and not on personal knowledge or observation.
Closing Briefs: A post-hearing document filed with the ALJ where the party argues the law and facts that support that the charging party met (or did not meet) its burden of proving the elements of an unfair practice charge.
Collective Bargaining Agreement (CBA): A written legal contract between an employer and exclusive representative (union) detailing the negotiated terms and conditions of employment. A CBA can sometimes be called a Memorandum of Understanding (MOU).
Complaint: If an investigation determines that an unfair practice charge establishes a prima facie (sufficient to establish a fact or raise a presumption) case, a Board agent will issue a complaint. The complaint will contain a statement of the specific facts that establish PERB’s jurisdiction (legal control) over the case, including the identity of the respondent, and shall thoroughly and specifically state the conduct alleged to constitute an unfair practice. The complaint shall include, when known, when and where the conduct alleged to constitute an unfair practice occurred or is occurring, and the name(s) of the person(s) who allegedly committed the acts in question. (PERB Reg. 32640.)
Concerted Activities: Activities engaged in by more than one employee to address work-related issues, such as strikes, picketing, work stoppage, etc. See Protected Activities.
Continuance: The postponement (delay) of the formal hearing to a future date. The party wishing to request a continuance must attempt to contact representatives from all other parties to determine if they approve or oppose the request. The request for continuance must explain in writing the grounds (reasons) for the request and, to the extent the requesting party has been able to determine, the other parties’ positions regarding the request. The request shall be granted only if the requesting party shows good cause for the continuance that outweighs any prejudice (unfairness) to other parties. (PERB Reg. 32205.)
Credibility Determination: The determination whether a witness or some evidence is worthy of belief.
Cross Examination: The questioning of a witness at hearing by the party opposed to (against) the party who called the witness to testify (give evidence). Leading questions (a question that suggests the answer, usually yes or no questions) are allowed on cross examination. Compare Direct Examination.
Cumulative Evidence: Additional evidence of the same character as existing evidence that supports a fact established by the existing evidence.
De Novo Review: The Board’s review of exceptions to a proposed decision, where the entire record is reviewed anew and the Board is free to make different factual findings and reach different legal conclusions than those in the proposed decision. (County of Santa Clara (2019) PERB Decision No. 2629-M, p. 6; County of Sacramento (2020) PERB Decision No. 2745-M, p. 10.)
Declaration: A formal statement signed under the penalty of perjury (crime of lying in court) regarding the truth/accuracy of statements in the document.
Direct Evidence: Evidence that is based on personal knowledge or observation that, if true, proves a fact without inference (process of thought resulting in a conclusion made from the available information) or presumption (thought made beforehand).
Direct Examination: The first questioning of a witness in a hearing conducted by the party who called the witness to testify (give evidence). Compare Cross Examination.
Discovery: A procedure for requesting information that relates to the hearing through either testimonial or documentary subpoenas (order to make someone or something appear at hearing). A testimonial subpoena requires a witness to appear at a Board hearing. A records subpoena requires production of documents, electronically stored information, video records, audio records, or other records or things, either at a Board hearing or at a time and location in advance of such a hearing. A records subpoena may also require a witness to appear at a Board hearing to testify (give evidence). (PERB Reg. 32150.) See Subpoena.
Discrimination/Retaliation: An allegation that an employee was treated less favorably than other employees for engaging in protected activity. A charging party must prove four elements for a discrimination/retaliation claim: (1) one or more employees engaged in activity protected by a labor relations statute (law) that PERB enforces; (2) the respondent had knowledge of the protected activity; (3) the respondent took adverse action against one or more of the employees; and (4) the respondent took the adverse action “because of” the protected activity, which means that the protected activity was a substantial or motivating cause of the adverse action. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26.)
Dismissal: If the Board agent concludes (decides) that a charge or the evidence is insufficient (not enough) to establish a prima facie (sufficient to establish a fact or raise a presumption) case, the Board agent shall refuse to issue a complaint, in whole or in part. The refusal shall constitute a dismissal of the charge. The refusal, including a statement of the grounds for refusal, shall be in writing and shall be served on the charging party and respondent. (PERB Reg. 32630.)
Domination: Employer actions or activities that could interfere with the internal activities of an employee organization (union), or could influence employees in choosing which employee organization will represent them. (See Santa Monica Community College District (1979) PERB Decision No. 103.)
Duty of Fair Representation: The responsibility of an exclusive representative (union) to represent all employees in a bargaining unit. Decisions about representation cannot be arbitrary, discriminatory, or in bad faith.
Employee Organization: An organization that includes employees and that represents employees in their relations with their employer. An employee organization may also be called a union or association.
Estoppel: A legal principle (rule) that stops someone from arguing something or making a claim. Judicial estoppel stops someone from arguing something that contradicts (goes against) what they previously said. Collateral estoppel stops someone from making a claim that was already decided by another court or agency.
Evidence: Testimony (statements), writings, objects, or other things offered to prove the existence or nonexistence of a fact. (Evid. Code, § 140.)
Ex Parte Communication: A conversation or written exchange with a PERB employee that does not include the other party. PERB rules strictly regulate (control) these communications; in most circumstances ex parte communications about a case are not allowed. (PERB Reg. 32185.)
Exceptions: An appeal of a proposed decision to the Board itself. A statement of exceptions must (1) explain why the proposed decision is incorrect; (2) cite to exhibits and/or transcripts to support arguments about the facts; and (3) cite to legal authority (cases, laws, regulations, etc.) to support legal arguments. The specific requirements for a statement of exceptions are found in PERB Regulation 32300.
Exclusive Representative: An employee organization (union) that has gone through the process of showing it is supported by a majority of employees in a bargaining unit, and has been recognized or certified as the representative of the bargaining unit.
Expedite: To give a case priority and process it sooner. A party may request that a case be expedited at a specific level of PERB or at all levels of PERB, or PERB may decide to expedite a case on its own at any level, as described in PERB Regulation 32147.
Failure to Prosecute: Refusing to proceed (move forward) or abandoning (not following through with) a case. An ALJ may dismiss a case if the charging party (person or entity who filed the case) does not appear for a hearing or otherwise fails to move their case forward without having a good cause explanation.
Filing: A document transmitted to PERB, or the process for transmitting a document. In most circumstances, electronic filing is mandatory (required) (PERB Reg. 32110, subd. (a)), though unrepresented individuals may choose whether to file electronically (PERB Reg. 32110, subd. (b)). Rules for electronic filing are found in PERB Regulation 32110; rules for non-electronic filing are found in PERB Regulation 32135.
Formal Hearing: A proceeding, usually conducted by an ALJ, where both sides present evidence so that the judge can decide an unfair practice charge. Usually a formal hearing includes witnesses testifying (sworn statements), the parties presenting documents and other evidence, and the judge taking official notice of facts and approving stipulated (agreed-upon) facts. (PERB Reg. 32170, subd. (a)(2).) A formal hearing may also be conducted by a hearing officer.
Foundation: The information (facts and legal) needed for an ALJ or hearing officer to accept evidence and apply it. To have a proper foundation (basis) to submit evidence, a party must show that evidence is relevant (clearly connected) to the case and authentic (real).
Good Cause: A good reason or explanation. PERB may require a party to show “good cause” for different requests, such as to move a deadline (PERB Reg. 32132), to request PERB to accept a late filing (PERB Reg. 32136), or to postpone (delay) a hearing (PERB Reg. 32205). See Motion to Continue and Request for Extension.
Grievance: A complaint, usually made by an employee or a union, that an employer is not following the terms of the collective bargaining agreement (contract). A grievance is generally filed with the employer, based on the process laid out in the collective bargaining agreement.
Hearing Officer: A PERB employee (also called a Board agent) who conducts formal representation or compliance hearings.
Hearsay: A rule of evidence that stops a party from introducing testimony about some out-of-court statements. (Example: Employee A testifies that she heard Employee B say that Manager C hates unions. Employee A’s testimony is hearsay if used to try show that Manager C is anti-union.) PERB will generally consider hearsay testimony, but it may not be useful if it is not supported by other more reliable evidence. Compare Personal Knowledge.
Inference: A process of thought resulting in a conclusion made from the available information. PERB may, for example, draw an adverse (negative) inference if a party does not produce documents that were properly requested, and, in turn, stop that party from presenting some evidence or arguments. (PERB Reg. 32150, subd. (k).)
Informal Conference: A meeting between a PERB employee who acts as a neutral mediator and the parties where they try to clear up the issues and explore settlement of the case. No evidence is presented and no record is made at an informal conference.
Interference: Actions or activities, either by an employer or a representative, that either tend to or actually do harm rights protected by PERB’s statutes (laws).
Interlocutory Appeal: An appeal to the Board itself of a ruling (either by the ALJ or another PERB employee) before the hearing has concluded. A party usually only has a right to appeal decisions that resolve the case, like when a charge or complaint is dismissed. PERB limits appeals of smaller rulings (like about what evidence comes in at hearing), which have special rules found in PERB Regulation 32200.
Investigatory Interview: A meeting between management and an employee where management questions an employee to get information.
Joinder: A party may request, or the Board may order on its own, that a party not originally included be added to a case. Joinder procedures are found in PERB Regulation 32164.
Judicial Review: Most commonly, a request that PERB join a party in asking a court to review PERB’s decision in a representation matter. The Board may join in a request for judicial review or may decline to join, at its discretion (option). (PERB Reg. 32500, subd. (c).) Judicial review may also refer more generally to a court’s review of a Board decision. See Board Decision.
Jurisdiction: PERB’s right or authority to interpret (explain) and apply the law. PERB only has jurisdiction over (authority to decide) disputes related to public sector collective bargaining in California. For a list of statutes addressed by PERB, please see https://perb.ca.gov/laws-and-regulations/
Leading Questions: During hearing testimony (statements made under oath), questions that suggest the answer and lead a witness to answer in a specific way based on how the questions are phrased (usually yes or no questions). Leading questions are typically not allowed during direct examination, but are allowed and expected during cross examination. (Evid. Code, § 767.)
Leave to Amend: Permission from PERB to revise (change) and refile a document, such as an unfair practice charge.
Legitimate Business Justification: A defense to some kinds of unfair practice charges. In some circumstances (situations), an employer (or union) may overcome an unfair practice charge if it can prove it had a legitimate business justification (reason) for its actions.
Make-Whole Relief: An award that restores a wronged employee to what they would have had if the law was not violated (see status quo). The most common types of make-whole relief include back pay and benefits. See Remedial Order and Remedy.
Memorandum of Understanding (MOU): A written agreement. Memorandum of Understanding is another name for a collective bargaining agreement (CBA) or a contract.
Moot: A matter is moot if further legal proceedings can have no effect.
Motion: A formal request for the assigned ALJ, hearing officer, or Board itself to make a legal ruling. Motion procedures are found in PERB Regulation 32190.
Motion for Judgment on the Pleadings: A party’s request to the ALJ to rule based only on the written arguments and law, without accepting any evidence. A motion for judgment on the pleadings may, for example, be brought because PERB has no jurisdiction over (authority to decide) the subject alleged in the complaint, or when the complaint is insufficient (not enough).
Motion for Summary Judgment: A request by a party that the assigned ALJ decide all or part of a case without a hearing because there is no argument about the facts and the only remaining part is a question of law.
Motion to Amend: A request to change a complaint after it has issued. Before a case is at the formal hearing level, a charging party may move (request) to amend the complaint by filing with the Board agent: (1) a request to amend the complaint; and (2) an amended unfair practice charge that follows the requirements of PERB Regulation 32615. During a hearing, a charging party may move to amend the complaint by amending the charge in writing or orally on the record. (PERB Regs. 32647, 32648.)
Motion to Compel: A request that an ALJ or hearing officer force a party’s opponent to respond to a records subpoena (request for documents).
Motion to Continue: A request by a party to delay formal hearing date(s). For requests filed at least seven days before a hearing, the ALJ or hearing officer will grant the motion only if the requesting party can show good cause for the delay that outweighs any prejudice (damage to a person or entity’s legal rights) to other parties. For requests filed less than seven days before the hearing, the ALJ or hearing officer will grant the motion only if the requesting party can show extraordinary circumstances for the delay that outweigh any prejudice to other parties. (PERB Reg. 32205.)
Motion to Dismiss: A request before, during, or after a hearing that an ALJ or hearing officer dismiss (throw out) a complaint. An ALJ or hearing officer considering a pre-hearing motion to dismiss should grant such a motion only when the facts in the complaint and/or facts that are subject to administrative notice establish a fatal defect or, based on undisputed (certain) material facts, the charging party is unable to prove one or more essential elements of its prima facie case. (PERB Reg. 32190, subd. (a).) Compare Motion for Judgment on the Pleadings and Motion for Summary Judgment.
Motion to Exclude Witnesses: A request that certain witness(es) to a case be removed from observing a formal hearing before it is the witness’s turn to testify. The purpose of excluding such witnesses is to avoid the testimony being influenced by witnesses testifying before them.
Motion to Revoke a Subpoena: A request by a person served with a subpoena (order to appear at hearing to testify or produce documents) asking that it be excused from obeying such subpoena. (PERB Regs. 32150, subds. (h), (i); 93045.)
Nexus: The connection between an employee’s protected activity and an adverse action that is necessary to prove a retaliation or discrimination claim.
Non-Precedential: A Board decision designated as non-precedential applies only to the parties in the case. A non-precedential decision cannot be cited (used as support) in any matter pending before a Board agent or the Board itself, unless the decision involves a party to the case. Compare Precedential.
Notice of Appearance: A form filed by each party to a case, in which the party names a representative to appear on the party’s behalf throughout the PERB proceeding. The form also includes an option for the party to agree to electronic service in the case.
Objection: A verbal or written statement disputing something that has happened, or is about to happen in a formal hearing, providing reasoning, and seeking the ALJ’s or hearing officer’s ruling on the point. Some common objections at PERB hearings include relevance, speculation, hearsay, and outside of scope.
Offer of Proof: A verbal statement during a hearing that is used to convince an ALJ or hearing officer to admit the testimonial evidence that is about to be offered. Usually an offer of proof comes after an objection to such testimony. An offer of proof usually contains an explanation for why the evidence is being offered, and an argument supporting why the evidence should be admitted.
Opinion Evidence: A witness’s belief, thought, or conclusion concerning a fact. This evidence is usually inadmissible (excluded) at hearing.
Order: A command from a Board agent or the Board itself directing a party to do or not do a given act.
Order to Show Cause: A command from a Board agent or the Board itself directing a party to explain why it did or did not take some action or why the Board agent or Board itself should not grant the relief requested by the other party.
Party/Interested Party: A person or entity that is directly involved in an unfair practice charge. At PERB, parties usually consist of a charging party, the person or entity that files the unfair practice charge, and respondent, the entity whom the charge is filed against.
Personal Knowledge: Knowledge from firsthand observation or experience. Compare Hearsay.
Position Statement: A written statement from a respondent where it responds to allegations in an unfair practice charge.
Precedential: A Board decision designated as precedential may be cited (used as support) in any matter pending before a Board agent or the Board itself. Compare Non-Precedential.
Pre-Hearing Conference: A meeting between case parties and a Board agent that happens shortly before a formal hearing. The purpose of the meeting is generally to discuss evidence-related matters and to narrow the issues for hearing.
Prejudice: Damage to a person or entity’s legal rights, which if shown by the opposing party will usually defeat the action sought by the other party. Dismissing a charge with prejudice means that the charging party may not raise the same allegations again in a later charge. Compare Without Prejudice.
Preponderance of the Evidence: The stronger weight of the evidence (more likely than not). This is the burden of proof in a PERB formal hearing.
Prima Facie Case: A charging party’s establishment of enough evidence to allow a Board agent to conclude there has been a violation of one of PERB’s statutes, unless the respondent establishes a defense.
Privilege: The legal permission (or immunity from liability) to do or not do a given act.
Probative: Evidence that tends to prove or disprove a point at issue.
Proof of Service: A written verification (proof) that specified document(s) were served on the parties listed, by the means listed (for example, by mail or electronic mail). The person signing a proof of service must verify they served the party(or parties) by the means listed, and must be at least 18 years of age.
Proposed Decision: A written decision by an ALJ or hearing officer that is issued after a formal hearing. Unless expressly adopted by the Board itself, a proposed decision will only be binding to the parties in the case, and will not be considered precedential for future cases. (PERB Reg. 32215.)
Protected Activities: In general, under California labor relations laws, covered employees have the right to form, join, and participate in the activities of employee organizations (unions) of their own choosing for the purpose of representation on all matters of employer-employee relations. Examples of protected activities include joining a union, serving as a union leader, and filing a grievance. See Concerted Activities.
Reasonable: When something is fair under the circumstances. When analyzing whether a “reasonable employee” would consider an employer’s action to be adverse in a retaliation case, this is an objective (not subjective) standard.
Rebuttal: A response to opposing party’s evidence during a hearing.
Reconsideration: A request by a party to a Board decision asking the Board revisit its decision because of extraordinary circumstances. A party’s request for reconsideration can be based only on 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 available before and could not have been discovered with the exercise of reasonable great care. A request for reconsideration based on the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not available before; (2) could not have been discovered before the hearing with the exercise of reasonable great care; (3) was submitted within a reasonable time of its discovery; (4) is related to the issues to be reconsidered; and (5) affects or changes the decision of the previously decided case. (PERB Reg. 32140.)
Re-cross Examination: An opportunity for an opposing party to question an adverse party’s witness(es) a second time after the adverse party has finished its redirect examination. The scope of questioning is limited to the topics discussed during redirect.
Recusal: A judge, mediator, or other PERB employee’s removal of themself from a case, usually because of a conflict of interest. A party may also request a PERB employee recuse (remove) themselves from a case by filing a written motion that follows the requirements listed in PERB Regulation 32155, subdivisions (d) or (e).
Redirect Examination: An opportunity for the party who called the witness to testify (give evidence) to question the witness a second time after the opposing party has finished its cross examination. The scope of questioning is limited to the topics discussed during cross examination.
Regulation: An agency rule that implements a law that was enacted by the legislative process. Regulations have the force of law and must be followed. PERB Regulations can be found at perb.ca.gov/laws-and-regulations/regulations/
Relevance: A matter is relevant if it is related to one or more issues of an unfair practice proceeding. Relevance usually refers to witness questioning and testimony at hearing, or other forms of evidence.
Remand: When an unfair practice or representation case is sent back to the assigned ALJ or Office of the General Counsel to continue processing the case, usually with directions from the Board itself.
Remedial Order: The part of a decision that orders a respondent take actions to restore (as closely as possible) the parties to the positions that existed before the unfair labor practice happened. A remedial order will only be included where a party is found to have committed an unfair labor practice. See Make-Whole Relief, Remedy and Status Quo.
Remedy: If, after a hearing, a party is found to have committed an unfair labor practice, PERB will order a remedy, which usually requires the respondent to take specific actions to restore the status quo (restore the parties to the position that existed prior to the unfair labor practice). Remedies may include posting a Notice to Employees informing them of the violation, ordering back pay, ordering reinstatement of employees terminated for union activity, removing disciplinary materials from personnel files, or disclosing relevant information. See Make-Whole Relief, Remedial Order, and Status Quo.
Request for Extension: A party may request an extension of time beyond the assigned deadline to file a document with PERB. If an extension of time is granted, the deadline to file will be moved to a later date. Requests for extensions of time must be filed in writing at least three (3) days before the due date. The request must state why the extension of time is needed, and, if known, the position of other parties to the case. See PERB Regulation 32132 for all the requirements for a request for an extension of time.
Respondent: The party who the unfair practice charge has been filed against, which can be a public employer or a union. The respondent is the party that is alleged to have committed an unfair labor practice.
Response to Exceptions: After either party has filed exceptions (an appeal) to an ALJ’s or hearing officer’s proposed decision, the opposing party may file a response to the exceptions. The deadline is within 20 days from when the exceptions were served. (See PERB Reg. 32310.)
Retroactivity: When a statute, regulation, or ruling in a decision applies to actions that happened before it was created or issued. While statutes and regulations usually don’t have retroactive effect, PERB decisions generally do have retroactive effect.
Right to Representation: Unions that exclusively represent members of a bargaining unit have the right to represent their members on matters within the scope of representation. This includes representing members while negotiating a collective bargaining agreement with the employer, enforcing the terms of a collective bargaining agreement, or representing a member during an employer’s investigatory interview of that employee.
Scope of Cross-Examination: At hearing the parties will each be able to present evidence in support of their case. When a witness is called by a party to testify, the opposing party will have the opportunity to question that witness afterward, and that questioning is called “cross-examination.” Cross examination generally uses leading questions (questions that suggest the answer and can usually be answered with a yes or no). The topics of cross-examination are limited to matters that have a tendency to be relevant to the case or defense(s), or to attack the witness’s credibility. The ALJ or hearing officer has authority to direct and limit the parties’ questioning to what is relevant and not repetitive, and to rule on objections if made.
Scope of Direct Examination: At hearing the parties will each be able to present evidence in support of their case. When a witness is called by a party to testify, the questioning of that witness when it is performed by the party requesting their testimony is called “direct examination.” Direct examination is limited by the type of questioning and the scope of questioning. First, the party questioning the witness on direct examination must ask open-ended questions (cannot ask leading questions that suggest the answer to the witness). Second, the topics of the direct examination are limited to matters that have a tendency to be relevant to the case or defense(s). The ALJ or hearing officer has authority to direct and limit the parties’ questioning to what is relevant and not repetitive, and to rule on objections if made.
Service of Process: To legally deliver a document to a party by mailing it to the party or the designated representative, providing it to them in-person, or (only with the party’s written consent) e-mailing it to them. Every document filed with PERB must be “served” on all parties to the case and must include a “proof of service” form that explains what was served, who was served, and the method of service. If a Proof of Service form is not filed with PERB along with the document served, it may delay the processing of the filing, or it could cause the filing to be dismissed or rejected. See PERB Regulation 32140 for more information about Proof of Service.
Settlement: When both parties to a case agree to terms where the charging party withdraws the whole charge, or an allegation in the charge, in exchange for something from the respondent. Settlement is voluntary. Parties often officially document a settlement with a written settlement agreement, which is signed by the parties to the case and/or their representatives and generally disposes of the entire case.
Skelly Hearing: A Skelly Hearing is based on the case Skelly v. State Personnel Board (1975) 15 Cal.3d 194, which requires employers to give permanent civil service employees notice of (1) significant proposed disciplinary action, (2) the reasons for the action, (3) a copy of the charges and the materials upon which they are based, and (4) an opportunity to respond to the charges either orally or in writing before the discipline is imposed. A “Skelly hearing” refers to the employee’s opportunity to respond to the charges and usually results in a determination of whether there are reasonable grounds to believe the charges against the employee are true and support the proposed disciplinary action.
Speculation: Testimony or argument that is not based on personal knowledge or experience. Compare Personal Knowledge.
Standing: A party’s right to file an unfair practice charge or representation petition. At PERB, a party’s status as employee, employer, exclusive representative union, or non-exclusive representative union determines the types of charges or petitions the party has standing to file. For example, employees have standing to allege that their union or employer committed an unfair labor practice that harmed their rights, but do not have standing to allege that an employer committed an unfair labor practice that violated a union’s rights (such as failing to meet and confer in good faith with the union).
Status Quo: The original state of terms and conditions of employment, or the state of affairs before a change is made to terms and conditions of employment. The status quo can be based on terms that an employer and union have agreed to in a Memorandum of Understanding (MOU) or Collective Bargaining Agreement (CBA), or it can be based on evidence of past practice that was either was “regular and consistent” or “historic and accepted.” See Remedial Order and Remedy.
Statute of Limitations: The time limit for filing an unfair practice charge. PERB usually cannot decide a charge based on events that happened more than six (6) months before the charge was filed, or six (6) months after the charging party knew or should have known of the events alleged to be unlawful.
Stipulation: A voluntary agreement between the parties to a case.
Subpoena: A subpoena requires a person (or a union or government representative) to appear for hearing or provide specific documents to a party. A “testimonial subpoena” requires this person to appear as a witness for questioning. A “records subpoena” requires the person to provide specified documents or records, and may also require them to appear as a witness for questioning. A party wishing to have a PERB ALJ or hearing officer issue a subpoena must follow all of the requirements of PERB Regulation 32150. See Discovery.
Testimony: Evidence that a competent witness gives under oath at hearing.
Unalleged Violations: A violation or violations not included in the complaint. An unalleged violation may be considered during a hearing or by the Board itself if certain requirements are met – this is referred to as the “unalleged violation doctrine.” The requirements for the unalleged violation doctrine are: 1) the respondent was aware of the allegation and had time to prepare a defense, 2) the allegation is closely related to the issues at hearing, 3) the allegation was fully considered during the hearing, and 4) both parties had the opportunity to examine the evidence related to the allegation.
Unfair Practice Charge: A form (charge) filed with PERB alleging that an employer or union violated one or more of the of laws that PERB administers.
Unlawful Motivation/Animus: In a retaliation/discrimination case, if an adverse action was taken because of an employee’s or union’s protected activity, that is considered an unlawful motive.
Waiver: (1) A party to a case can “waive” or forfeit the ability to make an argument when the party should have made the argument earlier in the processing of the case, but did not. If the party raises the argument later in the case after not making it when they should have, the argument can be regarded as “waived,” and if so, the argument will not be considered. (2) A defense arguing that the charging party union voluntarily abandoned their right – usually their right to negotiate over a specific matter.
Warning Letter: A letter PERB sends to the charging party if their unfair practice charge does not meet the minimum legal standard to show a possible violation of a law that PERB administers.
Weight of Evidence: The measure of credible proof (evidence that is likely to be believed) of the charging party compared with the credible proof of the respondent.
Weingarten Rights: Public employees have the right to have a union representative present during an interview with their employer that the employee believes could lead to discipline, usually called an “investigatory interview.” The term refers to the US Supreme Court decision that granted the protection, NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251.
Withdrawal of Allegations: If a charging party no longer alleges a part of an unfair practice charge, the allegation(s) can be withdrawn. In order to withdraw an allegation, a charging party usually needs to request withdrawal in writing and include the PERB case number.
Withdrawal of Charge: If a charging party doesn’t want to pursue an unfair practice charge, the charge can be withdrawn. In order to withdraw the charge, a charging party needs to request withdrawal in writing and include the PERB case number. When a charge has been withdrawn, the case is usually closed and ends PERB’s process. A charge may be withdrawn unilaterally (on its own) by the charging party, or as part of a settlement.
Without Prejudice: A decision that does not prevent a party from raising the matter again in the future. For example, if an ALJ denies a motion without prejudice, then the denial does not keep the party from filing another motion making the same request again in the future. Compare Prejudice.
Witness: An individual who has personal knowledge of something that is relevant to a case and gives testimony under oath.