PERB: "Who, What, When, Where And How" Not Always Necessary In Charge

National Union of Healthcare Workers (2012) PERB Dec. No. 2249-M (Issued on 04/18/12)

This unfair practice charge arises out of a decertification election involving in-home support services workers in Fresno County. The decertification petition was filed by the National Union of Healthcare Workers (NUHW) against the incumbent SEIU-United Healthcare Workers West (SEIU). NUHW alleged that SEIU committed unfair practices during the election by 1) interfering with balloting, 2) engaging in physical and verbal threats, 3) misrepresenting information to bargaining unit members, and 4) unlawfully destroying bargaining unit members’ personal property. NUHW filed an unfair practice charge seeking to have the election set aside.

Citing to United Teachers-Los Angeles (Ragsdale) (1992) PERB Dec. No. 944 (“Ragsdale”), the Board agent dismissed the allegations of interference with balloting and engaging in physical and verbal threats because NUHW failed to identify by name the alleged SEIU agents responsible for the conduct. In reversing the dismissal, the Board rejected the Board agent’s reliance on Ragsdale for requiring the names of the SEIU agents. Instead, the Board held that:

… [T]he name of a person alleged to be an agent of an employee organization or an employer is not an indispensable element in a prima facie case. We reject a formulaic application of an oft-quoted statement from our decision in Ragsdale. We favor a more nuanced analysis turning on the elements of the particular prima facie case. In Ragsdale, the Board itself adopted the warning and dismissal letters of the Board agent as the decision of the Board. We do not believe that in so doing the Board then intended to adopt a statement from the Board agent’s warning letter as a litmus test for assessing the sufficiency of factual allegations. Our test for sufficiency of allegations was and is set forth in our regulation, namely, “a clear and concise statement of the facts and conduct alleged to constitute the unfair practice.” (PERB Reg. 32615(a)(5).) The Ragsdale formulation, that a “Charging Party must allege with specificity who, what, when, where and how” of the respondent’s alleged violation identification may be useful in explaining to a charging party how to plead a violation, but is it is not a hurdle over which every charging party must leap at the risk of dismissal.

Comments:

The Board’s discussion of Ragsdale is interesting. In setting forth the requirements of an unfair practice charge, PERB has often used the phrase, “The charging party’s burden includes alleging the “who, what, when, where and how” of an unfair practice. (State of California (Department of Food and Agriculture) (1994) PERB. Decision No. 1071-S, citing United Teachers-Los Angeles (Ragsdale) (1992) PERB Decision No. 944.)” This phrase—including the citation to Ragsdale— appears in over 130 ALJ and Board decisions. So by rejecting the “formulaic” application of Ragsdale, is the Board signaling a new direction for its Office of the General Counsel? Is the Board lowering the bar for the issuance of a complaint?
Perhaps I’m reading too much into this case. But it certainly seems to me that the Board is signaling at least a slight change in how unfair practice cases will be processed. The Board appears to be telling its Board agents to dig deeper and consider whether the “who, what, when, where and how” is really necessary before dismissing a charge. The end result will likely be the issuance of more complaints. Any increase may be de minimis, but only time will tell.
This case also highlights a suggestion I have made for years. I do not think that PERB should designate all of its Board decisions precedential. This case illustrates one of the problems in designating every single case precedential. Sometimes there will be a phrase in a warning/dismissal letter or proposed decision that will take on a life of its own even though the Board may not have intended it. By selecting only certain decisions to designate as precedential, the Board will be able to spend more time making certain the language in a precedential decision is just the way the Board wants it. Only designating certain Board decisions as precedential would require a regulatory change, but that’s something the Board will hopefully consider.