FAQs

Below are some of the most frequently asked questions we have encountered. Please click a question to jump to its corresponding answer. To return to this list, please click the “Back to Top” link positioned after every answer.

PERB and its Jurisdiction

Q. What is PERB?

A. The Public Employment Relations Board (PERB or Board) is a quasi-judicial administrative agency charged with administering the collective bargaining statutes covering employees of California’s public schools, colleges, and universities, employees of the State of California, employees of California local public agencies (cities, counties and special districts), trial court employees, trial court interpreters, supervisory employees of the Los Angeles County Metropolitan Transportation Authority, Judicial Council employees, Orange County Transportation Authority employees, Bay Area Rapid Transit District (BART) employees and child care providers who participate in a state-funded early care and education program.

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Q. Am I covered by PERB’s jurisdiction?

A. PERB’s jurisdiction is limited to certain public sector employees. Private sector employees, such as those employed by private hospitals, factories, or corporations, are governed by the National Labor Relations Act. Alleged violations of the National Labor Relations Act must be filed with the National Labor Relations Board, the federal agency charged with enforcing private sector labor relations. [1-844-762-NLRB (6572) or http://www.nlrb.gov/nlrb/home/default.asp.]

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Q. What public sector employees are covered by PERB administered statutes?

A. PERB administers several public sector labor relations acts, covering the following groups of employees: (1) any person (except management and confidential employees) employed by a public school employer, including community colleges (EERA); (2) any person (except management, supervisory and confidential employees) employed by the University of California, the Hastings College of the Law, or the California State University (HEERA); (3) any civil service employee of the State of California, and the teaching staff of schools under the jurisdiction of the State Department of Education (excluding management, supervisory and confidential employees) (Dills Act); (4) any person employed by any public agency, including employees of cities, counties, charter counties, districts and other political subdivisions (MMBA), (except police officers, management employees, and employees of the City of Los Angeles and the County of Los Angeles); (5) trial court employees paid from the trial court’s budget and subject to trial court supervision (Trial Court Act); (6) trial court interpreters who are employed by the court and are not independent contractors (Court Interpreter Act); (7) supervisory employees employed by the Los Angeles County Metropolitan Transportation Authority (TEERA); and (8) Judicial Council Employer-Employee Relations Act (JCEERA); Orange County Transportation Authority employees (Orange County Transit District Act (OCDTA)); Bay Area Rapid Transit District (BART) employees (BART Act); Sacramento Regional Transit District employees (Sac RTD Act); Santa Cruz Metropolitan Transit District Act employees, Santa Clara Valley Transportation Authority employees, and child care providers who participate in a state-funded early care and education program (The Building a Better Early Care and Education System Act of 2019, known as the Childcare Provider Act (CCPA)).

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Q. Does PERB’s jurisdiction extend to transit employees?

A. It depends. Most California public transit districts are subject to the labor relations provisions that are found in the Public Utilities Code enabling statutes, in joint powers agreements, or in incorporation articles and bylaws.  Of those, the Orange County Transportation Authority employees (Orange County Transit District Act (OCDTA)); Bay Area Rapid Transit District (BART) employees (BART Act); Sacramento Regional Transit District employees (Sac RTD Act), Santa Cruz Metropolitan Transit District Act employees, and Santa Clara Valley Transportation Authority employees ​do falll under PERB’s jurisdiction but other PUC districts do not fall under PERB’s jurisdiction. However, a few transit districts are subject to the Meyers-Milias-Brown Act (MMBA) and thus within PERB’s jurisdiction. Included among those covered by the MMBA are the Sonoma-Marin Area Rail Transit District Authority (SMART) and the San Francisco Municipal Railway (MUNI). In addition, supervisory employees employed by the Los Angeles County Metropolitan Transportation Authority are covered by a statute (Transit Employer-Employee Relations Act) that is under PERB’s jurisdiction.

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Q. Does PERB investigate allegations of race, gender, sexual orientation or religious discrimination?

A. No. PERB has no jurisdiction to enforce statutes regarding discrimination based on gender, sexual orientation, race, or religion. Allegations such as these are considered by the California Civil Rights Department (CRD) [1-800-884-1684 or https://calcivilrights.ca.gov/] and/or the federal Equal Employment Opportunity Commission [1-800-669-4000 or http://www.eeoc.gov].

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Q. What types of allegations does PERB review?

A. The statutes enforced by PERB do not prohibit all acts of perceived unfairness or discrimination against covered employees; rather, PERB’s jurisdiction is limited to resolving claims of unfair practices which violate the applicable Act. For example, PERB has jurisdiction to consider claims by an employee organization that the employer has failed and/or refused to bargain in good faith or has interfered with employee organization rights granted by the statute. Also, an individual employee may file an unfair practice charge alleging that the employer or the employee organization representing him or her has discriminated against the employee in reprisal for protected activity under the Act, or has interfered with rights guaranteed by the Act. An employer may also file a charge against a union, alleging, for example, that the union failed to bargain in good faith.

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Q. Should I contact PERB if I am having a problem with pay or overtime issues?

A. No. If you work for a private employer and are having problems with your employer regarding payment of wages, overtime issues, holiday pay or other pay issues, you should contact the Labor Commissioner in your area [http://www.dir.ca.gov/DLSE/dlse.html]. If you work for a public employer, contact your exclusive bargaining representative (union) or personnel office for more information as appropriate.

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Q. Should I contact PERB if I need help with a pension or benefits problem?

A. No. Generally, public employees needing help with pension or benefits issues should contact the Public Employees Retirement System (CalPERS) at 1-888-225-7377 or http://www.calpers.ca.gov.

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Q. May I bypass PERB and allege a violation of PERB-administered statutes in state or federal court?

A. No. Each of the PERB-administered statutes expressly grant PERB exclusive initial jurisdiction over unfair practice charges and their remedies. As such, initial determination as to whether a charge is justified is a matter within PERB’s exclusive jurisdiction.

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PERB Authority

Q. Does PERB enforce collective bargaining agreements?

A. No. PERB-administered statues provide that the board shall not have authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of such an agreement that would not also constitute an unfair practice under the applicable labor relations statute.

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Q. How does PERB remedy or correct violations of the statue?

A. PERB possesses broad discretion to take action and issue orders as necessary to effectuate the purposes and policies of each of the statutes it administers. Such remedies may include orders for back pay and front pay, orders for reinstatement of employees terminated for union activity, removal of disciplinary materials from personnel files, cessation of dues deductions and disclosure of relevant information. Additionally, PERB is authorized to seek enforcement in a court of any of its subpoenas, rulings, orders or decisions. 

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Q. Does PERB award attorney’s fees?

A. PERB has the specific statutory authority to award attorney’s fees and costs. A claim for attorney’s fees will be denied if the issues are debatable and brought in good faith. Under this standard, PERB has authorized attorney fees and costs in very limited circumstances. Neither a Charging Party nor a Respondent should assume they will receive attorney fees and costs if its position prevails.

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Q. Does PERB enforce arbitration awards?

A. No. PERB does not have the authority to enforce arbitration awards. However, it may be an unfair practice for an employer to refuse to comply with an arbitration award. Under certain circumstances, PERB has discretionary jurisdiction to review a settlement or arbitration award solely for the purpose of determining whether it is repugnant to the purposes of the statute.

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Statute of Limitations in Unfair Practice Cases

Q. What is the statute of limitations for PERB-administered statutes?

A. The statute of limitations under the EERA, Dills Act, HEERA, MMBA, TEERA, and Trial Court Act and Court Interpreter Act is six months. 

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Q. When does the statute of limitations begin to run?

A. In general, the limitations period begins to run once the charging party knows, or should have known, of the conduct underlying the charge.

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Q. How is the statute of limitations calculated in duty of fair representation cases?

A. In cases alleging a breach of the duty of fair representation by an employee organization, the statutory limitations period begins to run on the date when the charging party knew or should have known that further assistance from the union was unlikely.

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Filing Documents With PERB

Q. When is a document considered “filed” by PERB?

A. Filers may electronically file a document through e-PERB at any time. However, all documents electronically filed after 11:59 p.m. on a business day, or at any time on a non-business day, will be deemed filed the next regular PERB business day. All documents not filed through e-PERB shall be considered “filed” when the originals are actually received by the appropriate PERB office, as stated in section 32115, during a regular PERB business day. ​

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Q. May I file documents with PERB via facsimile?

A. No. Effective February 15, 2021, all filings must be made via the ePERB Portal unless you are an unrepresented individual. Unrepresented individuals may file through ePERB, U.S. Mail, a delivery service (e.g., UPS, FedEx, etc.), or in person at the appropriate PERB Regional Office.

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Q. What is a “Proof of Service” and how do I complete the form?

A. A “Proof of Service” is a document that demonstrates that the person signing the Proof of Service served the materials on all other parties. A Proof of Service is required for all documents you submit to PERB. In the center of the Proof of Service document, you must print the names and addresses of the parties served. Failure to provide a Proof of Service may result in delays in the processing of your charge or petition, or dismissal of the matter. (PERB Regulations 32140)

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Q. Can I submit documents to PERB via email?

A. No. Effective February 15, 2021, all filings must be made via the ePERB Portal unless you are an unrepresented individual. Unrepresented individuals may file through ePERB, U.S. Mail, a delivery service (e.g., UPS, FedEx, etc.), or in person at the appropriate PERB Regional Office.

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Filing an Unfair Practice Charge

Q. Can an individual employee file an unfair practice charge alleging the employer violated provisions of the Act?

A. Yes. An employee can file a charge against either an employer or an employee organization alleging that the employee’s rights were violated. However, individual employees do not have standing to allege that an employer changed a policy in violation of a collective bargaining agreement, or that the employer failed to bargain with the union in good faith, or allege violations of statutory provisions which protect the collective bargaining rights of employee organizations. (PERB Regulation 32602.)

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Q. May I file a charge against my supervisor?

A. No. An unfair practice charge must name the employer (or employee organization) as the respondent. Charges may not be filed against an individual manager (or union representative), or a co-worker. (PERB Regulation 32602.)

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Q. May I make an appointment with a PERB agent to assist me in completing my unfair practice charge form?

A. No. PERB is a neutral state agency charged with investigating and enforcing public labor relations statutes. As such, PERB agents may not provide you with legal assistance or advice in completing your forms. However, if you have a general question regarding procedures or completion of the charge form, contact your local PERB office. Such assistance in most cases can be obtained over the telephone.

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Q. What additional information should be attached to an unfair practice charge?

A. Generally, it is best to provide PERB with all relevant information. For example, if you are complaining about a poor evaluation or reprimand, you should provide PERB with copies of these documents. Additionally, if your charge contains correspondence between the employer or employee organization, such correspondence should be included with the charge. All attachments must be served on the parties involved. (PERB Regulation 32615.)

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Q. Do I need an attorney to file an unfair practice charge?

A. Generally, most individual employees filing charges with PERB are not represented by an attorney during the initial stages of the process. While a Charging Party is free to seek legal representation, it is not required by PERB at any stage of the proceedings.

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Q. May I bypass PERB and allege a violation of PERB-administered statutes in state or federal court?

A. No. Each of the PERB-administered statutes expressly grant PERB exclusive initial jurisdiction over unfair practice charges and their remedies. As such, initial determination as to whether a charge is justified is a matter within PERB’s exclusive jurisdiction.

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Q. May I withdraw my Charge?

A. A Charging Party may request that their unfair practice charge be withdrawn, with or without prejudice, by sending a written request for withdrawal to the regional attorney or administrative law judge assigned to the case. Withdrawals must include a proof of service. (See below for cases pending before the Board itself.)

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Investigation and Adjudication of an Alleged Unfair Practice

Q. What does the PERB unfair practice process entail?

A. Upon the filing of an unfair practice charge, the charge is assigned to a Board Agent who will complete the initial review. The Charging Party and Respondent will be provided with the case number and name of the Board Agent by letter shortly after filing. The Respondent will be allowed time to respond to the allegations. This response must be sent to the Charging Party as well as to PERB. After receiving the Respondent’s response, the Board Agent will determine if the charge meets the minimum legal standard for a violation of the statute, that is, it states a prima facie case. If the charge fails to meet this standard, the Charging Party will be sent a “Warning Letter” and allowed time to correct the deficiencies in the charge. If the deficiencies are not corrected, the Board Agent will dismiss the charge. The Charging Party may appeal the dismissal to the Board itself.

If the charge states a prima facie case, the Board Agent will issue a “Complaint” and set the case for an informal settlement conference to be conducted by a different Board Agent who will mediate the dispute. If the parties fail to reach agreement during the settlement conference, the case will be set for formal hearing in front of a PERB administrative law judge. (PERB Regulations 32620 – 32690.) 

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Q. What is the “Notice of Appearance” form?

A. The “Notice of Appearance” form, sent with your initial letter, allows you to designate someone else, such as an attorney or union representative, to represent you during the PERB proceedings. If you intend to represent yourself, you do not need to complete this form. However, if you wish to have another person represent you, you must complete this form and serve the form on PERB and the Respondent. It is important to remember that if you designate someone other than yourself as your representative, you will not receive copies of any correspondence from PERB or the Respondent. Both PERB and the Respondent will communicate only with your representative.

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Q. How long does the processing of an unfair practice charge take?

A. Each case is unique and therefore a specific time frame cannot be provided.

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The Unfair Practice Hearing

Q. What happens during a PERB Unfair Practice Hearing?

A. In general:

  • A PERB administrative hearing is like a court trial, but before an Administrative Law Judge (judge).
  • Each party or its representative will have the opportunity to present evidence in support of its respective position. Each side will also have the chance to make a brief opening statement summarizing the evidence it plans to present and explaining why the conduct violates or does not violate a law that PERB enforces.
  • The presentation of evidence makes up the record of the case and includes both testimonial and documentary evidence. This means that a party should be prepared to call witnesses who have first-hand knowledge about the facts of the case to testify in support of its position. An individual charging party may also provide testimony in support of the allegations at issue. Parties should also be prepared to call witnesses who have first-hand knowledge about any documents they are seeking to introduce in evidence.
  • After each side has presented its evidence, each party or party representative may give either a written or spoken argument to the judge explaining why they should prevail in the case. The judge may decide which method of closing argument is presented.
  • After considering all the evidence and arguments, the judge will issue a written proposed decision explaining which party’s evidence was more convincing, why a law that PERB enforces was or was not violated, and whether any remedy should be awarded.

  • A party that disagrees with all or part of the proposed decision may appeal that decision by filing exceptions to the Board itself. Exceptions should be filed with the Appeals Office.

  • If no party files exceptions, the judge’s proposed decision becomes final. If a final decision includes an order for a remedy, the case will enter compliance proceedings where a Board agent will ensure that the remedies are carried out.

  • PERB hearings are generally open to the public, unless the judge orders otherwise.

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Q. Are there PERB Regulations which govern how a hearing is conducted?

A. Yes. PERB has regulations which govern its unfair practice hearings. In general, these regulations begin at PERB Regulation 32147 and end at PERB Regulation 32230. Additional pertinent PERB Regulations can be found at PERB Regulations 32603 through 32690.

The Regulations are available on PERB’s website. These hearing regulations should be reviewed and then regularly consulted as issues arise during the hearing process. These are the regulations which the judges refer to in governing these proceedings. PERB Regulations are codified at Cal. Code Regs., tit. 8, § 31001 et seq.  Links to specific regulations are to the California Code of Regulations.

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Q. Does PERB have forms which assist representatives in their representation during the PERB hearing process?

A. Yes. PERB’s Forms page contains many useful forms. PERB provides representatives with access to numerous forms, including forms concerning consent to electronic service, notice of appearance, substitution of attorney, proof of service, subpoena-testimonial, subpoena-records, transcript order form, and request for the withdrawal of the unfair practice charge, in order to assist them in their representation during the PERB hearing process.

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Q. Does PERB have a glossary of commonly used PERB-practice terms on its website which will assist representatives to gain a better understanding of terminology utilized during the PERB hearing process?

A. Yes. The glossary can be found on the PERB website.

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Q. Does PERB conduct videoconference or in-person hearings?

A. See PERB Regulation 32180 (c). PERB hearings can be conducted either by videoconference or in-person at one of PERB’s regional offices, however, it is the judge who determines the format and location of the hearing.

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Q. How is a judge assigned to a case?

A. If a case is not resolved during the informal settlement conference, the PERB Regional Attorney will solicit dates as to when both parties are available for hearing in three to four months. That information is passed forward to the PERB Division of Administrative Law which will then assign a PERB judge to preside over the hearing. The PERB judge will then send out a hearing notice which sets forth the date and time of the hearing. The hearing notice will provide further details of the hearing such as the location, the mode of the hearing (videoconference or in-person) and other information which will be helpful to the representative.

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Q. May a non-lawyer serve as an advocate at a PERB hearing?

A. Yes. Under PERB Regulation 32180 (a), each side the right to self-representation, representation by an attorney, or by a non-attorney representative. PERB does not provide either party with a representative. Each party is responsible for securing its own representative or proceeding without a representative.

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Q. May employee charging parties represent themselves at a PERB hearing?

A. Yes. PERB Regulation 32180 (a). PERB regulations allow employees the right to represent themselves at a PERB hearing.

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Q. How does a representative of a party file a Notice of Appearance Form or add/substitute a new representative to appear at the hearing?

A. See PERB Forms Notice of Appearance (PERB 920), Substitution of Attorney (PERB 920a), and Proof of Service. A representative or party is to complete the appropriate form with a proof of service and file it via the ePERB Portal. Parties/representatives need not use these specific forms, but the filing should include the same information set forth in the forms, include an appropriate proof of service, and must be filed via the ePERB Portal, except for unrepresented pro pers who may file via U.S. Mail, a delivery service such as FedEx or UPS, or hand delivery.

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Q. How may the parties communicate with the judge during the hearing process?

See PERB Regulation 32185 (a). A party or its representative may not communicate with the judge about the merits the case, i.e., any issue that the judge may have to decide unless the other party is also included. If either side breaks the rule of ex parte communication, the judge will notify the other party of the communication. If a party is unsure of whether a communication concerns the merits of the case, it should include the opposing party’s representatives in the communication with the judge. Written communications to the judge should be copied to the opposing representative. Requests that a judge simply sign a subpoena is an example of a communication that need not be copied to the opposing representative. See PERB Regulation 32150 (d)(1).

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Q. Are PERB hearings open to the public?

A. See PERB Regulation 32168 (c) and Government Code section 11425.20. In general, PERB hearings are open to public observation, but the judge may close portions of the hearing to the public if needed to protect the disclosure of privileged, confidential, and other information protected by the federal or state Constitution, or federal or state statute or regulation. The judge may also exclude witnesses from the hearing until it is their turn to testify. If that happens, each party is typically allowed one “party representative” to sit through the hearing even if that person will also be a witness. A member of the public can request to attend a videoconference hearing by sending in a request to PERB at PERBQuestions@perb.ca.gov, and by informing PERB of the case name and case number and date and time of the hearing which they desire to attend. For an in-person hearing, a member of the public may simply come to the PERB regional office at the time and date when the in-person hearing is scheduled to be conducted.

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Q. Do the rules of evidence apply at a PERB hearing?

A. See PERB Regulation 32176. The technical rules of evidence as applied in courts are not required in PERB hearings. Hearsay evidence is admissible in these hearings, but cannot be utilized to support a factual finding. Some communications, such as those between an attorney and a client, have a legal protection called a privilege, meaning those communications cannot be used as evidence during the hearing. See Evidence Code section 900, et seq.

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Q. Who has the burden of proof in PERB hearings?

A. See PERB Regulation 32178. In general, the charging party (the party who filed the unfair practice charge) has the burden to prove the elements of the complaint by a preponderance of the evidence. Respondent has the burden to prove its affirmative defenses as set forth in its answer.

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Q. Are PERB hearings recorded and a transcript provided?

A. All hearings are audio-recorded. A transcript is prepared by an outside transcriber if one or both parties pay for a copy of the transcript. PERB does not pay for the transcription of a formal hearing for the parties.

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Q. Can parties keep trying to settle their case before, during and after the hearing has been conducted?

A. Yes. The parties may continue to negotiate a resolution of the complaint issued by PERB. If the parties want to discuss a resolution during the actual scheduled time of the hearing, permission needs to be sought from the judge to engage in such settlement discussions. The parties should keep the judge apprised of the progress of the settlement discussions, such as how close they are to a resolution, especially as hearing dates approach or the judge is preparing a proposed decision to be issued. The parties SHOULD NOT give the judge any details about any settlement proposal being offered.

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Q. Can a charging party decide to withdraw its charge, in part or in whole, before the hearing?

A. Yes. See PERB Regulation 32625. . Before or even during the hearing, a charging party may request to withdraw all or parts of its charge. PERB has provided forms to make these filings simple for the charging party.The Forms page on PERB’s website has the following forms if you wish to withdraw or partially withdraw your charge: (1) Unfair Practice Charge-Request for Withdrawal and (2) Unfair Practice Charge-Partial Withdrawal Request. These withdrawals should indicate whether the charging party desires the withdrawal of the charge(s)/allegation(s) to be “with” or “without prejudice,” meaning with or without the ability to refile the same claim again later. Note that standard timelines apply when a charge is withdrawn without prejudice and later refiled. A proof of service is required for this filing.

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Q. Can charging party amend its complaint before the scheduled hearing?

A. Yes. See PERB Regulation 32647. A charging party may amend its complaint before the scheduled hearing. The charging party must file a request to amend the complaint and an amended charge specifying what is to be amended(included) in the complaint. (PERB Regulation 32615 (a)(5)). PERB recommends that requests to amend the complaint be filed as far in advance of the scheduled hearing as possible to avoid delaying the hearing. PERB also recommends that the charging party draft the proposed amended complaint language. A charging party may also request to amend the complaint during the hearing under PERB Regulation 32648.

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Q. If the judge grants the request to amend the complaint and issues an amended complaint, can respondent file an answer to the amended complaint?

A. See PERB Regulation 32649. If the request for an amended complaint is granted by the judge, the judge may require the respondent to file an amended answer to the complaint which responds to the new allegation(s) of the amended complaint. Or, the judge may consider all of the new allegations from the amended complaint to be denied by the respondent. See PERB Regulation 32644.

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Q. Can respondent file an amended answer after it filed its original answer?

A. See Eastern Municipal Water District (2020) PERB Decision No. 2715-M, p. 8-9. A judge’s broad authority under PERB Regulation 32170 allows the judge to consider a motion to amend the answer after it has been initially filed.

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Q. How does a representative alert the judge that language assistance (an interpreter) will be needed for a witness or a party?

A. See Government Code sections 11425.10 (a)(9), 11435.05 and 11435.15 (a)(1)(8). A representative should contact the assigned judge in writing while copying the opposing representative of the need for language assistance (an interpreter) for a witness or a party. Such request should specify the language assistance needed (the specific non-English language) and the length of anticipated time for which the language assistance is needed. Representatives should contact the judge on this matter at least six to eight weeks prior to the scheduled hearing so that PERB may retain the services of a competent interpreter.

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Q. How does a representative alert the judge that a representative, a party or witness requires some form of reasonable accommodation to attend, participate in or testify at the hearing?

A. In general, the representative should contact the assigned judge of the case as far in advance as possible to notify the judge of the need for some reasonable accommodation for a person to attend, participate or testify at the hearing. If the requested accommodation falls outside the assigned judge’s scope of authority to grant, the judge shall enlist the assistance of other PERB administrative personnel to inquire as to the request. The request for accommodation and any confidential medical documents accompanying such a request may be provided to the judge without being provided to the opposing party, unless the request involves the opposing party (i.e., a request for continuance or abeyance). The requested accommodation cannot fundamentally alter the nature of the service, program, or activity provided by the agency and cannot cause the agency to violate its own hearing regulations.

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Q. Can representatives file motions prior to the hearing to be considered by the judge?

A. Yes. See PERB Regulation 32190. Both parties may file motions which they believe the judge may need to address prior to the hearing. In general, a motion is a request for the judge to take an action or make some change to the hearing or decide an issue in advance of the proposed decision.  In most cases, motions should be filed via the ePERB Portal, and the opposing representative will have 14 days to respond, unless the judge designates a different response schedule.

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Q. Is there a specific schedule for filing a motion to strike an allegation, defer a case to arbitration, or dismiss/partially dismiss a complaint?

A. Yes. See PERB Regulation 32190. There are specific deadlines for such motion. A representative is to file such motion no later than 45 days before the first day of the scheduled hearing and the response is to be filed within 20 days of the service of the motion, unless directed otherwise by the judge.

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Q. Do judges conduct prehearing conferences to resolve issues and educate representatives as to the procedural aspects of a case?

A. Yes. See PERB Regulation 32170. Judges often schedule prehearing conferences to resolve procedural issues; coordinate and organize the hearing; rule on preliminary and jurisdictional matters; take limited sworn witness testimony, admit documentary or other evidence, take official notice of facts, and approve stipulated facts. Prehearing conferences can be requested by the parties or unilaterally scheduled by the judge.

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Q. Are prehearing videoconferences usually scheduled before the videoconference hearing to explain how the videoconference hearing is conducted?

A. In general, if a hearing is to be held by videoconference, the parties will participate in a prehearing videoconference to ensure that the representatives and party representatives are able to connect to the PERB’s videoconference platform and have good internet connectivity so that such a videoconference hearing can be conducted. The judge may also set a date for the parties to exchange exhibits and provide those exhibits to the judge before the hearing. During the prehearing videoconference, the judge may demonstrate how exhibits will be displayed to witnesses, inform the parties of security questions to be asked to each witness under oath to ensure the integrity of the videoconference proceedings, and answer other questions related to these videoconference proceedings.

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Q. How does a representative obtain a testimonial subpoena for a witness and forward it to the judge for signature?

A. See PERB Regulation 32150 (d). A testimonial subpoena if properly executed and served, may be a way to require someone to testify at a hearing, if that person knows something relevant to the case. The Subpoena-Testimonial (PERB-52) form is located on PERB’s Forms page. The requesting party or party representative should complete the Testimonial Subpoena form except for the date and signature of the board agent and the proof of service portion. A separate Testimonial Subpoena should be filled out for each witness the representative wishes to call. The representative should e-mail the completed testimonial subpoena(s) to PERBSubpoena.Requests@perb.ca.gov. The judge will review the subpoena and sign, if appropriate. If the testimonial subpoena is signed, it will be sent back to the requesting party or party representative who is responsible for proper service on the witness. If it is not signed, the judge will contact the representative to let them know why it was not signed.

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Q. How does a representative obtain a record subpoena for a custodian of records and forward it to the judge for signature?

A. See PERB Regulation 32150 (d). A records subpoena, if properly executed and served, may be a way to require someone to produce documents and other records in a case. The Subpoena-Records (PERB-53) form is located on PERB’s Forms page and may be used to request documents about the case from another entity. The representative should complete the Records Subpoena form except for the date and signature of the board agent and the proof of service portion. In addition, the representative must submit a declaration of materiality, sworn under penalty of perjury under the State of California, that describes why the records to be produced are relevant. The representative should send the completed records subpoena(s) and the declaration of materiality to PERBSubpoena.Requests@perb.ca.gov. The judge will review the records subpoena and declaration. If it is signed, it will be sent back to the requesting party or party representative.  If it is not signed, the judge will contact the party or representative to explain why it was not signed. the person or custodian of records of the entity being served with a record subpoena has at least 20 days to respond, the requesting party can request that the records be produced on the hearing date or another date where there is no hearing scheduled.

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Q. Who does the representative serve with the testimonial subpoena or records subpoena with the declaration of materiality?

A. See PERB Regulation 32150 (e)(1). In general, the testimonial subpoena must be personally served on the witness and the records subpoena and declaration of materiality must be personally served on the witness or custodian of records of the entity to whom the records are being sought. However, if a subpoena is being served on a party or an agent of a party, it is permissible to serve a representative who is designated in a notice of appearance or who has signed a filing in the matter on behalf of the party, unless that representative no longer currently represents the party.

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Q. How much time should the representative allot for serving a testimonial subpoena in advance of the hearing or a records subpoena with the declaration of materiality in advance of the production date?

A. See PERB Regulation 32150 (e)(2). In general, the testimonial subpoena must be served at least 10 days prior to the scheduled appearance and the records subpoena with its declaration of materiality must be served at least 20 days prior to the set production date for the records. The judge may also find reduced periods of time for appearance/production to be sufficient.

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Q. Can non-party witness(es) demand witness fees and travel expenses at the time of service of the subpoena?

A. Yes. See PERB Regulation 32150 (e)(4). Non-party witness(es) may demand from the party serving the subpoena, at the time of the service of the subpoena, a witness fee of $35.00 per day and a mileage reimbursement of $0.20 per mile, round-trip, for travel required to testify.

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Q. How does a representative attempt to seek to continue the scheduled hearing to a subsequent hearing date?

A. See PERB Regulation 32205. A continuance is a request to move the hearing to a later date. While continuances of scheduled hearings extend the length of the hearing process, if a continuance is to be requested, a representative should first contact the opposing representative to see if the opposing representative objects to the request for continuance and the reason for such objection. The representative requesting the continuance should provide such request in writing to the judge via the ePERB Portal, and state the position of the opposing representative. If the request to the judge is provided at least seven days prior to the scheduled hearing the request must demonstrate “good cause” for the continuance which outweighs any prejudice to the other parties. If the request is provided fewer than seven days prior to the scheduled hearing, the request must demonstrate “extraordinary circumstances” justifying the continuance that outweighs any prejudice to the other parties. Continued hearings are rescheduled based on the judge’s availability with input from the parties. PERB does not guarantee that the rescheduled hearing dates will be close in time to the prior dates.

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Q. If there is no dispute between the parties as to the facts and the relevant exhibits in the case, can the case be submitted for legal argument upon stipulated facts and admitted joint exhibits?

A. Yes. See PERB Regulation 32207. A stipulation is a voluntary agreement by the parties on certain facts in the case. Stipulated facts, where appropriate, may be submitted to the judge. Reaching agreements on what facts and exhibits the judge considers may reduce the length and complexity of the hearing. A hearing is not required unless the parties dispute the facts in the case. If the parties agree on all material facts, a hearing is not required, and the parties can submit the case for decision based on the legal arguments submitted to the judge either in written or oral form.

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Q. How do I file exhibits for formal hearing?

A. Below are guidelines (not requirements) to help both the constituent and PERB with exhibits filed for formal hearing. Note: exhibits may, but do not need to, be submitted via the ePERB Portal. TThe judge will provide instructions on how to send exhibits for the formal hearing. In a videoconference hearing, the parties must exchange an electronic copy of their exhibits prior to the formal hearing, at a date set by the judge. The guidelines are:

  1. File size less than 20 MB (easily e-mailed to judge and other party(ies))
  2. Text searchable
  3. Scan quality:  300 dpi
  4. Page count:  300 – 500 pages per volume
  5. Name the exhibit documents clearly so the judge knows which party filed them:
    1. CP Exhibits 1-25, Exhibits 26-50, etc.
    2. RP Exhibits A-P, RP Exhibits Q-EEE, etc.
    3. Joint Exhibits I-IX, etc.
  6. Print document to PDF from Word instead of photocopying when possible
  7. Using Adobe Acrobat Pro, save PDF as “reduced size PDF”
    1. File/Save As Other/Reduced Size PDF
  8. Bookmarking should be done to the first page or page divider of each exhibit, e.g. Exhibit 1, Exhibit 2, or Exhibit A, Exhibit B, etc. so that the judge and parties can locate the next exhibit quickly during the formal hearing.
  9. Bates stamping is helpful if there are many exhibits.

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Q. How does the unfair practice hearing begin?

A. The judge begins the hearing by “opening the record” announcing the date and time of the hearing, the case number and name and introducing themselves as the judge presiding over the matter. “Opening the record” or going “on the record” typically means that the audio recording of the hearing has begun.

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Q. Are the representatives expected to announce their appearance when the judge opens the hearing?

A. Yes. Each party or its lead representative is expected to announce their appearance on the record when requested by the judge. The lead representative may also introduce other representatives for the party who are present and the party representative. Parties without any representative will announce their own appearance by identifying themselves on the record. It is recommended that speakers spell their first and last names on the record.

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Q. Can a party request that all witnesses, other than party representatives, be excluded/sequestered from the hearing?

A. Yes. See PERB Regulation 32170 (b)(4). A party may request that witnesses be excluded from the hearing until it is their turn to testify if there is a concern that one witness’s testimony might improperly influence the testimony of other witnesses. It is appropriate at the beginning of the hearing to make such a motion. If such a request is made, the other party will have the opportunity to respond, and the judge will rule on the request. If the request is granted, each party is entitled to have a party representative present at the hearing who will not be excluded/sequestered even if they will also testify.

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Q. Can a representative present an opening statement before its presentation of evidence?

A. Yes. It is common for the charging party to present an opening statement setting forth what evidence it plans to present and what remedy it seeks. The statement should be brief and not more than 15 minutes. The respondent may present its opening statement after charging party or after charging party concludes its presentation of evidence (testimony of witnesses and presentation of exhibits) and before respondent’s presentation of evidence.

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Q. Are representatives allowed to call, examine, and cross-examine witnesses under oath or affirmation, and introduce documentary evidence for their specific cases-in-chief?

A. Yes. See PERB Regulation 32180 (b) and 32170 (b)(7). Each party will be able to present evidence, such as witness testimony and documents in support of its case. However, each party is responsible for bringing its own witnesses and other evidence to the hearing.

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Q. How does the questioning of witnesses work?

A. Each party is responsible for securing its own witnesses either through a subpoena, or by getting them to come to the hearing voluntarily. Generally, the charging party will call all of its witnesses first and have the opportunity to question them about issues that are relevant to the case called direct examination. Afterwards, the respondent will have the chance to cross-examine, or question each of the charging party’s witnesses. The charging party likewise has the right to question the respondent’s witnesses. The opposing party can object to the questions asked or the response provided. Some common objections include relevance, speculation, hearsay, and outside the scope of the questions asked previously. An objection to the form of the question (leading) is common during direct examination if the question suggests the answer. Leading questions are permitted during cross-examination. If the opposing party objects to the question or response, the judge may ask for a response to the objection before ruling on the objection. If the judge sustains the objection the witness may not answer the question, if the judge overrules the objection, the witness may answer the question.

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Q. How does submitting exhibits into the evidentiary record work?

A. Exhibits are typically documents that are relevant to the case. Each party is responsible for securing its exhibits. The act of sending exhibits to the judge and to the other party before the hearing is not the same as admitting exhibits into the record of evidence. In order for the judge to consider an exhibit as part of the evidence record, the exhibit must be “moved” into the record during the hearing. This typically takes place in two possible ways. First, a witness who knows something about the exhibit will “authenticate” it, meaning explain what it is and what the witness knows about it. A party may seek to “admit” authenticated exhibits into the record. Second, the parties may stipulate, or agree, to admit exhibits where there is no dispute over them.

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Q. Does the charging party present its case first?

A. Yes. See PERB Regulation 32178. The charging party has the burden to prove the claims in the complaint by a preponderance of the evidence, and therefore proceeds first. The respondent presents its case-in-chief after the charging party.

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Q. Are representatives allowed to present closing arguments after the presentation of evidence, but before the close of the hearing?

A. See PERB Regulation 32212. A closing argument is each party’s summary of all the evidence presented at the hearing and its argument about why it should prevail over the other party. The representatives may express their preference to the judge as to whether they want to present an oral or written closing argument after the presentation of the evidence, but it is the judge who will decide the manner of the closing argument and when it is to be completed. If the judge concludes that closing arguments should be submitted in writing, the judge will seek input from the parties and then determine a deadline for submitting the written argument.

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Q. Can representatives purchase transcripts of the recorded audio proceeding of the hearing?

A. Yes. The judge will distribute a Transcript Order Form to the parties before the hearing concludes. The form is also on the Forms page of the PERB website. The cost of the transcript is calculated per page at a rate specified on the Transcript Order Form. Any representative, party or a member of the public may purchase a transcription of the audio-recorded proceeding, by completing a Transcript Order Form and submitting it to the judge by e-mail, via the ePERB Portal, or by e-mail attachment to PERBPortal@perb.ca.gov. If a representative/ party cannot afford to purchase a transcript, that representative/party can request the appropriate PERB regional office to determine if a transcript exists and request that the transcript be made available at a PERB office for public inspection.

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Q. What if after a representative obtains transcripts, the representative observes inaccuracies in the transcript which need to be corrected. Can the representatives file a motion to correct the transcript?

A. Yes. See PERB Regulation 32209. A representative may file a motion to correct the transcript within 20 days of being served the transcript. The motion shall specify the alleged errors and provide a proposed correction to the error. Failure to file a timely motion waives any objection as to the accuracy of the transcript.

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Q. What happens after the hearing and arguments are submitted to the judge?

A. See PERB Regulation 32215. After concluding the hearing and receiving the representative’s arguments, the judge will review the evidence and consider the parties’ arguments and then issue a proposed decision. If the judge concludes that there was a violation of a law PERB enforces, the proposed decision will also include a remedy to address the effects of the violation. The time that it takes for the judge to issue a proposed decision from the date that arguments were submitted may vary based upon the length of the hearing, the size of the evidentiary record, the caseload of the judge at the time, the complexity of the complaint or affirmative defenses, as well as other factors.

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Q. May a proposed decision of the judge be appealed to the Board itself?

A. See PERB Regulation 32300 and 32215. A party may file with the Board itself a statement of exceptions to a judge’s/board agent’s proposed decision within 20 days following the date of service of the decision. If no exceptions are filed, the proposed decision will become final and binding only on the parties to the particular dispute. If a remedy is ordered in the final proposed decision, the case will enter compliance proceedings where a Board agent will ensure that the respondent complies with the ordered remedy. A proposed decision that is not appealed does not constitute binding PERB precedent as to other parties.

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Filing an Appeal with the Board Itself

Q. How do I get an extension of time to file before the Board itself?

A. Extensions of time must be filed in writing at the headquarters office 3 days prior to the due date. The request must indicate the reason for the extension, the position of the other parties (if known), the amount of time needed and proof of service. If you contact the other party and it is in agreement then there generally is not any problem granting an extension. Otherwise, PERB must find good cause, based on your reason for the extension in your request. If a proof of service is not provided with the request, your extension will not be acted on until one is received. It is critical to include a proof of service with your request. (PERB Regulations 32132(a), 32130, 32135 and 32140.)

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Q. How do I file exceptions/responses to exceptions?

A. A statement of exceptions must be filed with the Board itself within 20 days of service of a proposed decision.  The statement of exceptions must be a single, integrated document that may be in the form of a brief and may contain tables of contents and authorities, but may not exceed 14,000 words, including footnotes, but excluding the tables of contents and authorities.  Requests to exceed the 14,000-word limit must establish good cause for exceeding the limit and be filed with the Board itself and served on all parties no later than five days before the statement of exceptions is due.  PERB Regulation 32300, subdivision (a), is specific as to what the statement of exceptions must contain.  The statement of exceptions shall:  (1) clearly and concisely state why the proposed decision is in error, (2) cite to the relevant exhibit or transcript page in the case record to support factual arguments, and (3) cite to relevant legal authority to support legal arguments.  Exceptions shall cite only to evidence in the record of the case and of which administrative notice may properly be taken.  (PERB Reg. 32300, subd. (c).)  Non-compliance with the requirements of PERB Regulation 32300 will result in the Board not considering such filing, absent good cause. (PERB Reg. 32300, subd. (d).)  A response to exceptions may be filed within 20 days of the statement of exceptions and must conform to PERB Regulation 32300, subsections (b) through (f).  Service and proof of service of these documents pursuant to Section 32140 are required.

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Q. How do I file an appeal of a dismissal or a response to an appeal of a dismissal?

A. A Charging Party may obtain a review of a dismissal of a charge by filing an appeal to the Board itself within twenty (20) calendar days after service of a dismissal.  (PERB Reg. 32635(a).)  The appeal must contain the case number.  There is no required format for appeals/responses to appeals, however, they must comply with the regulations. (PERB Regulations 32635, 32130, 32135 and 32140.)  A response to appeal of dismissal may be filed within 20 days after the appeal.  Service and proof of service of the response pursuant to Section 32140 are required.

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Q. How do I file an administrative appeal/response to an administrative determination?

A. An administrative appeal must be filed with the Board itself within ten (10) calendar days following the date of service of the decision.  (PERB Regulation 32360(a) and (b).)  The appeal must be in writing and state the specific issues of procedure, fact, law, or rationale being appealed, as well as the grounds for the appeal.  (PERB Regulation 32360(c).)  Within ten (10) calendar days following the date an appeal is served, any other party may file with the Board itself a response to the appeal.  (PERB Regulation 32375.)  There is no required format form for administrative appeals/responses, however, they must comply with the regulations. (PERB Regulations 32360, 32375, 32370, 32130 32135 and 32140.) 

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Q. How do I file a request for reconsideration/response to request?

A. Any party to a decision of the Board may file for reconsideration of the decision within 20 days following the date of service of the decision. The request for reconsideration shall be filed with the Board itself in the headquarters office and shall state with specificity the grounds claimed and, where applicable, shall specify the page of the record relied on. Service and proof of service of the request pursuant to Section 32140 are required. The grounds for requesting reconsideration are limited to 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 previously available and could not have been discovered with the exercise of reasonable diligence. A request for reconsideration based upon the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case.  There is no required format form for a request for reconsideration /response, however, they must comply with the regulations. (PERB Regulations 32400, 32410, 32130, 32135, and 32140.)

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Q. How do I file a request for judicial review/response to request?

A. When filing a request for judicial review before the Board itself, the request must be accompanied by a proof of service.  Service and proof of service of the request pursuant to Section 32140 are required. There is no required format form for a request for judicial review/response, however they must comply with the regulations. (PERB Regulations 32500, 32130, 32135, 32140 and 61072.) 

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Q. May I file a response to a response?

A. This is not recommended, however, the regulations do not preclude it. If a response to a response is absolutely necessary, make sure a proof of service accompanies the document, otherwise, it will not be forwarded to the Board. The Board may accept this document at its discretion.

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Q. May I withdraw my Exceptions?

A. When a party requests its exceptions be withdrawn, the Board may approve the request. If the Board approves the withdrawal, the proposed decision becomes final. Withdrawals are filed with the headquarters office and must include a proof of service.

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Q. May I withdraw my Charge?

A. When a Charging Party requests that its unfair practice charge be withdrawn and the case is pending before the Board itself, the withdrawal must be approved by the Board for it to be effective. Withdrawals must be filed with the headquarters office and must include a proof of service. 

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