PERB Advisory Committee Meeting Recap

PERB held a meeting of its Advisory Committee on June 28, 2012. A large part of the discussion centered around some regulations that PERB drafted for discussion purposes. You can see a copy of those discussion regs here. I couldn’t attend but my colleague Erich Shiners did and provided me with a summary of what was discussed.

Filing by Email

PERB’s current on-line filing system is cumbersome so PERB is looking at allowing parties to file pleadings via email. I’m in support of this. Hopefully one day PERB will be able to install a docketing system where you can file and review pleadings on-line. Until then any filing system that makes it easier for the parties and generates less paper is a good thing.

Designation of Precedential Decisions

Currently, PERB regulations provide that every Board decision is precedential. PERB is looking at amending the regulations to allow the Board to designate which decisions are precedential. I’m in full support of this idea. It can’t be disputed that many of the decisions issued by the Board don’t need to be precedential because they don’t add anything new to PERB’s body of law. I heard that there was some initial resistance by union representatives to this idea. Apparently, the concern is that the Board may try to downplay certain legal principles or the application of certain legal principles to facts in non-precedential decisions. My response is that the Board can do that already by how it selects facts to include in a Board decision and how it structures a decision. Allowing the Board to designate certain decisions as precedential is consistent with almost every other administrative agency and both state and federal courts. So I think this idea is long overdue.

Service of Warning Letters on Respondent

PERB is considering amending its regulations to provide that respondents receive a copy of the warning letter (a warning letter is a letter the Board agent writes to a charging party letting it know that an unfair practice charge fails to state a prima facie case and providing a deadline to file an amended charge). PERB’s current practice is to send the warning letter only to the charging party. The respondent only gets to see the warning letter if there is an eventual dismissal. The historical justification for this practice has been that it helps the process to provide charging party a confidential assessment of its case. However, respondents—primarily employers—have long complained that such one-sided communication is unfair and causes a perception of bias.

Predictably, this proposal drew strong concerns from union representatives at the Advisory Committee meeting. As a management representative, I certainly would like to get a copy of the warning letter. It helps me respond to an amended complaint by being able to focus on the Board agent’s areas of concern. It also gives me a clue as to what is going on with a case. That said, while I certainly support this proposal, I don’t have a strong opinion on this issue; I guess I’ve lived with the current system so long that I’m used to it.

Deferral Policy:

PERB is considering regulations to provide for the dismissal of charges deferred to arbitration under MMBA (and some other acts). Currently when a charge is deferred to arbitration under EERA, HEERA, or the Dills Act, the charge is dismissed. When a charge is deferred under the MMBA or other Acts, it is placed in abeyance and remains on PERB’s docket. The reason for this difference has its origins in PERB’s interpretation of the statute of limitations. Prior to 2002, PERB (for the most part) considered the statute of limitations to be jurisdictional under Lake Elsinore School District (1987) PERB Decision No. 646. In 2002, PERB overturned Lake Elsinore in State of California (Department of Food and Agriculture) PERB Decision No. 1473-S. Back when PERB considered the statute of limitations to be jurisdictional, it would be a problem to dismiss charges under the MMBA where the statute did not expressly provide for deferral. This is because if the charge ever came back on repugnancy review, the statute of limitations would likely have expired, making any repugnancy review moot. Because the statute of limitations was jurisdictional, PERB had no authority to toll the limitations period during deferral. However, because Lake Elsinore was overturned, PERB can now toll the limitations period while a charge is deferred. Accepting that the Food and Ag decision represents the state of the law, I don’t have any objection to this proposal.

Treatment of Partial Dismissals:

Currently, PERB may issue a complaint on some allegations in an unfair practice charge and dismiss others. When partial dismissal is appealed to Board, the remainder of the complaint nonetheless proceeds to an informal conference and then a formal hearing. To avoid “splitting” cases like this, PERB is considering some alternatives:

Option 1: PERB could issue complaint on allegations that warrant it and issue nothing on remaining allegations. The charging party would have to move to amend the complaint to add the remaining allegations from the charge into the complaint. PERB acknowledged that any proposed amendment must be made early so as not to prejudice the respondent. Union representatives liked this idea because it would keep charges together and get them to hearing faster. I don’t like this idea because it creates uncertainty for my clients. It also seems to render the Board agent’s initial review meaningless. After all, if the Board agent doesn’t deem an allegation worthy of a complaint, why should charging party get a second bite at the apple with the ALJ?

Option 2: If a partial dismissal is appealed, the remainder of the complaint would be automatically stayed. I prefer this alternative because it keeps a case together while providing some meaning to the Board agent’s review. I know union representatives don’t like this idea because it delays a case getting to hearing. However, perhaps the Board can somehow prioritize reviews of partial dismissals to make things go faster.