City of Inglewood (PERB 2424M)

STATE OF CALIFORNIA
DECISION OF THE
PUBLIC EMPLOYMENT RELATIONS BOARD
TALAI SMITH,
Charging Party, 1
v.
CITY OF INGLEWOOD,
Respondent.
Case No. LA-CE-750-M
PERB Decision No. 2424-M
June
1,
2015
Appearances: City Employees Associates by Mary LaPlante, Labor Representative, for
Talai Smith; Bergman Dacey Goldsmith by Michele M. Goldsmith, Attorney, for City
of
Inglewood.
Before Martinez, Chair; Huguenin and Winslow, Members.
DECISION
MARTINEZ, Chair: This case is before the Public Employment Relations Board
(PERB or Board) on exceptions filed by Talai Smith (Smith) to the proposed decision
of
a
PERB administrative law judge (ALJ). The unfair practice complaint identified the Inglewood
Management Employees Organization (IMEO) as the charging party and alleged an unlawful .
unilateral change under the Meyers-Milias-Brown Act (MMBA).2 IMEO withdrew from the
case one week before the formal hearing. The case then went to a formal hearing without a
charging party, let alone a charging party with standing to pursue the type
of
unfair practice
alleged. This case is dismissed because there was no basis to proceed to a formal hearing once
IMEO, the exclusive representative and charging party, withdrew from the case.
For purposes of continuity, the same caption as used in the proposed decision appears
here, including reference to Talai Smith as the charging party.
2 The MMBA is codified at Government Code section 3500 et seq. Undesignated code
sections are to the Government Code.

BACKGROUND
Section 1
of
the unfair practice charge form seeks information about the charging party.
The filer is asked whether the charging party is an employee, an employee organization, an
employer or the public.
The unfair practice charge in this case was filed under a cover letter dated February
1,
2012, signed by Mary L. Neeper, Labor Representative, with the City Employees Associates
(CEA).3 The box for "employee organization" is checked off. The "full name" provided is
"Talai Smith." The address given is "c/o CEA, 2918 East ih Street, Long Beach, CA 90804."
The person filing the charge is identified as "Mary L. Neeper, Labor Representative."
The charge alleges an unlawful unilateral change in the duties
of
a bargaining unit
position. The charge alleges that IMEO is the exclusive representative
of
the bargaining unit
and that the bargaining unit position in question was then occupied by Smith. According to the
charge, the parties' grievance procedure was pursued to seek a reclassification
of
Smith; the
grievance steps were exhausted; and Smith was not reclassified. The charge alleges that by
this conduct, the City violated the duty to meet and confer in good faith with IMEO under
MMBA section 3505.
By letter
of
April 30, 2013, CEA Labor Representative Mary LaPlante (LaPlante)
wrote:
The Unfair Practice Charge was filed by the Inglewood
Management Employees Organization (IMEO), who is the
exclusive bargaining representative for the positions
of
Administrative Secretary and Senior Administrative Analyst and
for the employee, Talai Smith (Smith). The IMEO, as the
exclusive representative, has the standing necessary to file a
claim with the PERB.
3 At the request ofIMEO, the charge was placed in abeyance on June 18, 2012, pending
a reclassification study undertaken by the City. The charge was removed from abeyance on
September 18, 2012, at the further request ofIMEO.
2

By letter
of
July 23, 2013, LaPlante wrote:
The Inglewood Management Employees Organization (IMEO) is
the filing party and charging party to the above referenced case.
Please provide a status update on the case. Please contact me,
if
you have any questions or need further information.
The Office
of
the General Counsel issued a complaint on July 30, 2013, identifying
IMEO as the charging party and the City as the respondent. The complaint charged the City
with a (c) violation (refusal or failure to meet and negotiate in good faith)4 and a derivative
(a) violation (interference with the right to be represented)5 and a derivative (b) violation
(denial
of
the right to represent). 6
By letter to PERB from LaPlante dated January 20, 2014, IMEO withdrew
"representation." IMEO's withdrawal occurred one week before the formal hearing, which
was scheduled for January 27 and January 28, 2014. The letter. stated that Smith would ·
represent herself at the formal hearing. On January 24, 2014, the City filed a motion to dismiss
the PERB complaint in its entirety.
On the first day
of
hearing, the ALJ granted the City's motion in part. The ALJ
determined that with IMEO's withdrawal, Smith lacked standing to assert a (c) or (b) violation,
and dismissed those allegations. The ALJ amended the complaint sua sponte (on his own
motion) to allege that the City did not follow its reclassification process, a violation
of
MMBA
section 3507, subdivision (d) (local rule/regulation challenge).7 The City objected to the
amendment. The case was heard on the derivative (a) violation, based on the bad faith
4 See MMBA section 3506.5, subdivision (c).
5 See MMBA section 3506.5, subdivision (a).
6 See MMBA section 3506.5, subdivision (b).
7 See MMBA section 3507, subdivision (d), which states in pertinent part: "Employees
and employee organizations shall be able to challenge a rule or regulation of a public agency as
a violation of this chapter."
3

bargaining claim originally alleged in the complaint, and the new MMBA section 3507,
subdivision (d) violation. 8 At the end
of
Smith's case-in-chief, the City moved to dismiss the
remaining claims in the PERB complaint as amended. The ALJ granted the City's motion on
the record and stated that a proposed decision would issue forthwith.
PROPOSED DECISION
The proposed decision issued on January 29, 2014. The ALJ framed the following
issues for decision:
1.
	Does Smith have standing to assert a violation
of
MMBA
section 3506.S(b) or (c) on behalf oflMEO? ·
2. 	Did the City violate any local rules or regulations
regarding reclassification requests?
3.
	Did the City otherwise interfere with Smith's protected
rights?	
:.
Regarding the standing issue, the ALJ concluded that Smith lacked standing to assert
the bargaining rights
of
IMEO, and that the City had no obligation under the MMBA to meet
and confer in good faith with Smith as an individual employee. Regarding the local rules
issue, the ALJ concluded that, with respect to the reclassification request, there was
insufficient proof that the City violated City Service Rules (CSR), Rule II, Section 6(e),9 or
any other local rule. Regarding the interference issue, the ALJ concluded that there was no
showing that the City interfered with Smith's protected right to file or pursue a grievance, to
8 CEA did not represent Smith at the formal hearing.
9 CSR Rule II, Section 6(e) provides:
Any classified employee may at any time submit a request to the
[City] through his department head for a review of the
specification and allocation of his position, setting forth the
reasons he feels justifies the review. 	Such a review shall then be
made, appropriate action taken, and the employee and the
department head so notified.
4

represent herself in her employment relations with the City, or to engage in any other right
protected by the MMBA. Based on the foregoing conclusions
of
law, the ALJ dismissed the
complaint and underlying unfair practice charge.
EXCEPTIONS
Smith retained CEA to represent her on appeal. Smith contends that she was "neither
prepared for the amended complaint nor able to articulate how the evidence presented shows a
violation
of
the local rules." Smith further asserts:
Had Ms. Smith been represented at hearing, the evidence
submitted would have been used to show that 21-months delay in
resolving a reclassification request would be unreasonable and a
violation
of
the local rules that calls for the continuously
maintained, proper classification that reflects the current duties
performed by each employee, specifically Ms. Smith.
It is Ms. Smith's position that the
Citf
s failure to provide an
accurate job description that reflects her current duties is a
·violation
of
the Civil Service Rules and an unfair labor practice.
Had this information been presented at hearing, we believe the
results would have been in favor
of
Ms. Smith. We respectfully
request that Ms. Smith be granted a hearing with the Board, so
that her case can be presented with all the necessary evidence to
render a decision, based on the local rules violation.
RESPONSE TO EXCEPTIONS
The City points out that Smith's exceptions relate only to the issue whether the City
violated its local rules, the MMBA section 3507, subdivision ( d) violation, not to the standing
or interference issues or to the ALJ's dismissal
of
the (c) and (b) violations. The City contends
that Smith's exceptions lack merit and that the ALJ's proposed decision should be affirmed.
The City argues that the Board should reject Smith's attempt to offer new evidence not
presented at the formal hearing about the reclassification process and that the Board should
also reject Smith's attempt to introduce on appeal new theories not litigated at the formal
hearing concerning the MMBA section 3507, subdivision (d) violation. The City asserts that if
5

the Board decides to construe Smith's exceptions as a request to reopen the record and/or give
oral argument, the requirements for granting such requests have not been satisfied.
DISCUSSION
There was only ever one charging party in this case, IMEO. The complaint identifies
IMEO as the charging party. When IMEO withdrew,
10
the case lost its charging party.
ll	
Smith
never attained the status
of
a charging party and, even
if
she had, she had no standing to pursue
the unlawful unilateral change claim alleged in the complaint as an individual employee. In a
nutshell, this matter went to a formal hearing before a PERB ALJ on a bad faith bargaining
·claim with a respondent and no charging party, let alone a charging party with standing to
pursue the claim.
The formal hearing produced an evidentiary record, which formed the basis for the
proposed decision. The proposed decision is now before the Board on exceptions filed by
Smith who is not a party to the case. With the receipt
ofIMEO's
withdrawal and the City's
motion to dismis's the complaint in its entirety, the case should have been disposed
of
by way
10
The letter
of
withdrawal states that IMEO "hereby withdraws representation
of
[sic]
in the appeal
of
the above referenced case."
It
is an odd choice
of
language given that the
formal hearing is not an appeal and IMEO's representational status is that of an exclusive
representative, not a hearing representative. Certainly, by this letter, IMEO did not intend to
affect IMEO's representational status as the exclusive representative
of
the bargaining unit.
Therefore, the most logical interpretation of this sentence is that, by that letter, IMEO intended
to withdraw from the case. Given that IMEO did not appear at the formal hearing and that, at
the start
of
the hearing, the ALJ dismissed those violations that only can be charged by an
exclusive representative, this interpretation holds sway.
11
Where the exclusive representative is the charging party, it controls the
administrative litigation of its case. (Regents
of
the University
of
California (Lawrence
Berkeley National Laboratory) (2013) PERB Order No. Ad-397-H; Santa Maria-Bonita School
District (2013) PERB Order No. Ad-400.)
It
does not, however, control PERB processes.
It
is unknown what IMEO sought to accomplish when it informed PERB that Smith would
represent herself at the formal hearing.
6

of
a notice or order
of
dismissal. 12 Accordingly, the Board need not pass judgment on the
ALJ's proposed decision in response to Smith's exceptions because the matter should have
ended with IMEO's withdrawal.
Charging Party Status and Standing
When IMEO withdrew, the ALJ might have considered joining Smith as a party to the
case, upon application by Smith or upon the ALJ's own motion. (PERB Reg. 32164.) Smith's
joinder, however, would not have solved the problem created by IMEO's withdrawal. As the
ALJ concluded, Smith lacked standing to pursue a violation
of
the duty to bargain in good
faith, the (c) violation. (See City
of
Santa Monica (2012) PERB Decision No. 2246-M, p. 2.)
Under the collective bargaining statutes enforced by PERB, the duty to meet and confer in
good faith is a reciprocal one belonging only to employers and exclusive representatives.
(Oxnard School District (Gorcey and Tripp) (1988) PERB Decision No. 667, pp. 8-9.)
13
Allowing other entities, such as non-exclusive employee organizations or individuals, to
pursue bargaining claims "could very well interfere with the right
of
the exclusive
representative
to"
determine, in its own best judgment, those matters on which it decides to
negotiate." (Id. at p. 11, quoting Hanford Joint Union High School District Board
of
Trustees
(1978) PERB Decision No. 58.) Accordingly, PERB regularly dismisses claims filed by
individual employees alleging unlawful unilateral policy changes or other violations
of
an
employer's duty to meet and confer in good faith. (See, e.g., Oxnard Union High School
District (2012) PERB Decision No. 2265, dismissal letter at p. 3; City
of
Santa Monica, supra,
12
Although the City did not raise this issue in its response to the exceptions, the Board
is not constrained from applying legal analysis not urged by the parties or from considering
legal issues sua sponte
if
necessary to correct a serious mistake of law or procedure. (See
California State Employees Association (Hard, et al.) (2002) PERB Decision No. 1479a-S.)
13
When interpreting the MMBA, it is appropriate to take guidance from cases
interpreting the National Labor Relations Act and California labor relations statutes with
parallel provisions. (Fire Fighters Union
v.
City
of
Vallejo (1974) 12 Cal.3d 608.)
7

PERB Decision No. 2246-M, p. 2; City
of
Long Beach (2008) PERB Decision No. 1977-M,
p. I I.)
The Board's decision in State
of
California (Department
of
Corrections) (1993) PERB
Decision No. 972-S (State
of
California) is instructive. The unfair practice charge was filed by
a union. The Office
of
the General Counsel issued a complaint alleging violations
of
· section 3 519, subdivisions (b) (denying the employee organization protected rights) and (d)
(dominating
or
interfering with formation
or
administration
of
employee organization, etc.)
of
the Ralph C. Dills Act.
14
Joyce Thomas (Thomas) filed a motion to amend the complaint to
substitute in as the charging party in place
of
the union and to add new factual allegations
regarding events that occurred after issuance
of
the complaint. Apparently there was a conflict
of
interest between Thomas and the union, as the decision states: "This conflict was given as
the basis for the withdrawal by counsel for CSEA." (Id., notice
of
dismissal at p. 2.) The chief
ALJ granted Thomas's motion to amend and, in response thereto, the respondent filed a motion
to dismiss based on Thomas's lack
of
standing as an individual employee to pursue the claims
under the theories set forth in the complaint. In granting respondent's motion to dismiss, the
ALJ held:
[S]ince CSEA was the aggrieved party, it had the right to make
the judgment on pursuit
of
the charge. Ms. Thomas should not
now be able to compel litigation on an issue that CSEA has
chosen to avoid.
Since the rights at issue here are those
of
the union and not
of
an
individual member, the action must be prosecuted in the name
of
the union. When the union withdrew from prosecuting the
alleged violations
of
section 3 519(b) and (d), the legal effect was
the same as
if
the charges had been withdrawn.	·
(Id., notice
of
dismissal at p. 8.)
14
The Ralph C. Dills Act is codified at section 3512 et seq.
8

Thomas appealed the ALJ's dismissal
of
the complaint to the Board, which affirmed the
dismissal and adopted the decision
of
the ALJ as the decision
of
the Board itself. The Board
held:
The rights at issue in this case, the right to represent and the right
to be free from employer interference with internal union
activities, are union rights which require that an alleged violation
of
these rights be prosecuted by the union. To grant an individual
standing to file charges
of
this nature would undermine stable
labor-management relations existing between the employer and
the exclusive representative. When CSEA withdrew from
pursuing the alleged violations, the legal effect was the same as
if
the charges had been withdrawn. Therefore, Thomas does not
have standing to pursue the alleged violations in this case .
. (State
of
California, supra, PERB Decision No. 972-S, pp. 3-4.)
The logic
of
State
of
California applies with equal force here. In State
of
California,
the complaint was amended to join the individual employee as the charging party. Here Smith
was never joined. Even
if
Smith had been joined, consistent with the Board's decision in State
of
California, she would not have had standing to pursue IMEO's bad faith bargaining claim,
as the ALJ correctly determined.
Applying a standing analysis, the ALJ dismissed the (c) and (b) violations, but not the
(a) violation, on the basis that (c) and (b) violations may be pursued only by the union whereas
an (a) violation may be pursued by an individual employee. Although true that an (a) violation
generally may be pursued by an individual employee, the (a) violation in this case was
derivative
of
the (c) violation. With dismissal
of
the (c) violation, both the (a) and the (b)
violations fell away.
Sua Sponte Amendment
of
Complaint
In addition to allowing the (a) violation to go forward, the ALJ amended the complaint
sua sponte to allege a violation of MMBA section 3507, subdivision (d), which provides that
employees and employee organizations shall be able to challenge a rule or regulation of a
9

public agency as a violation
of
the MMBA. Under MMBA section 3507, subdivision (a), a
public agency may adopt reasonable rules and regulations after consultation in good faith with
representatives
of
a recognized employee organization "for the administration
of
employer-
employee relations under this chapter." The rules and regulations subject to this section
include provisions for the following: 	representation procedures;
15
additional procedures for the
resolution
of
employment disputes;
16
employee organization access to work locations;
17
use
of
official bulletin boards and other means
of
communication by employee organizations;18
furnishing non-confidential information to employee organizations;
19
and "any other matters
that are necessary to carry out the purposes
of
this chapter.2° "[T]he power reserved to local
agencies to adopt rules and regulations was intended to permit supplementary local regulations
which are 'consistent with, and effectuate the declared purposes of, the statue as a whole."'
(Huntington Beach Police Officers 'Assn.
v.
City
of
Huntington Beach (1976) 58 Cal.App.3d 492,
502, quoting Grodin, Public Employee Bargaining in California: The Meyers-Milias-Brown Act
in the Courts (1972)
23
Hastings L.J. 719, 724-725.)
An alleged violation
of
any rules and regulations adopted by a public agency pursuant
to MMBA section 3507 shall be processed as an unfair practice charge. (MMBA, § 3509.) As
15
See MMBA section 3507, subdivision (a)(l) (verification that employee organization
represents public agency's employees); subdivision (a)(2) (verification
of
employee
organization's official officers and representatives); subdivision (a)(3) (recognition
of
employee organizations); and subdivision (a)(4) (exclusive recognition
of
employee
· organizations).
16 See MMBA section 3507, subdivision (a)(5).
17
See MMBA section 3507, subdivision (a)(6).
18 See MMBA section 3507, subdivision (a)(7).
19 See MMBA section 3507, subdivision (a)(8).
20 See MMBA section 3507, subdivision (a)(9).

stated in PERB Regulation 32603, subdivision (g), it shall be an unfair practice for a public
agency to violate the MMBA or any local rule adopted pursuant to section 3507. Such conduct
also interferes with employee rights. (County
of
Ventura (2009) PERB Decision No. 2067-M,
proposed dee. at pp. 17-18.)
Related to the bad faith bargaining claim alleged in the complaint are allegations that
the City failed to take action to resolve the process
of
completing its reclassification studies,
including one undertaken in response to Smith's reclassification request. The ALJ honed in on
the reclassification-related alle~ations in arnendingthe
COI?JJlaint
to allege a (d) violation
under MMBA section 3507. CSR Rule II, Section 6(e), permits employees to request
reclassification. Smith requested reclassification, but did not receive a decision from the City
about that request. The proposed decision states that there was insufficient evidence to
conclude that the City's failure to communicate with Smith about her reclassification request
violated CSR Rule II, Section 6(e). The ALJ then dismissed the claim that the City violated its
local rules and the claim that the City's application
of
its local rules to Smith's reclassification
request interfered with Smith's protected rights. In her exceptions, Smith concedes that she
was "neither prepared for the amended complaint nor able to articulate how the evidence
presented shows a violation
of
the local rules."
With IMEO's withdrawal, the ALJ was faced with an unusual predicament. IMEO left
Smith in the lurch on the eve
of
the formal hearing. Only Smith had a personal stake in the
outcome
of
the case. The ALJ showed ingenuity in giving Smith her proverbial day in court,
but it was a day in court even Smith was ill-equipped to handle. However compelling the
ALJ's desire to salvage the proceedings to provide Smith a forum in which to adjudicate the
dispute, the Board is constrained by procedural rules and precedent.
11

The Office
of
the General Counsel is the division within PERB that is authorized to
issue unfair practice complaints. (PERB Reg. 32620, subd. (b)(7).) The Office
of
the General
Counsel is responsible for determining whether the factual allegations
of
the charge state a
prima facie case and whether the charging party is capable
of
providing admissible evidence in
support
of
the allegations. (Kings In-Home Supportive Services Public Authority (2009) PERB
Decision No. 2009-M.)
If
the Office
of
the General Counsel determines that the charge states
a prima facie case, a complaint shall issue, identifying the conduct alleged to constitute an
unfair practice. (PERB Reg. 32640, subd. (a).)
Once issued, an unfair practice complaint may be amended, but only on motion
of
the
charging party. PERB Regulation 32647 allows the charging party to move to amend the
complaint before the formal hearing.
21
PERB Regulation 32648 allows the charging party to
move to amend the complaint during the formal hearing.22
Under our regulatory system, it is the role
of
the Office
of
the General Counsel to
determine the types
of
unfair practices for which there is a prima facie showing, and the legal
theories upon which the unfair practice complaint should issue. (See Los Banos Unified
School District (2007) PERB Decision No. 1935 [where a charging party fails to allege that
any specific section
of
the Government Code has been violated, the Board agent, upon a
review
of
the charge, may determine under what section the charge should be analyzed].)
By contrast, the ALJs have considerable authority, but they have no role in determining
the claims to be pursued at hearing by the charging party or the legal theories supporting those
21
But amended complaints served after the answer is filed shall be deemed denied,
except for those matters admitted in the answer that were not changed by the amendment.
(PERB Reg. 32644, subd. (a).)
22 In ruling on a motion to amend the complaint that is made during the hearing, the
ALJ shall consider the possibility of prejudice to the respondent, among other factors. (PERB
Reg. 32648.)
12

claims. The powers and duties
of
the ALJ are set out in PERB Regulation 32170. They
include: (a) inquiring fully into all issues and obtaining a complete record; (b) authorizing the
taking
of
depositions; (c) issuing subpoenas and ruling on petitions to revoke subpoenas;
(d) regulating the course and conduct
of
the hearing; (e) holding conferences for the settlement
or simplification
of
issues; (f) ruling on objections, motions (including motions to amend the
complaint) and questions
of
procedure; (g) administering oaths and affirmations; (h) taking
evidence and ruling on the admissibility
of
evidence; (i) examining witnesses for the purpose
of
clarifyil'lg the facts and issues;
G)
authorizing the submission
of
briefs; (k) hearing oral
argument;
(1)
rendering a proposed decision; and (m) carrying out the duties
of
an ALJ as
authorized.23
The powers and duties
of
the ALJ include ruling on a motion to amend the complaint,
but do not include amending the complaint sua sponte on behalf
of
the charging party. Taking
such action blurs the line between the role
of
the Office
of
the General Counsel and the role
of
the ALJ. Assisting the charging party to state the facts and conduct alleged to constitute an
unfair practice is among the powers and duties
of
the Office
of
the General Counsel in
processing an unfair practice charge. (PERB Regs. 32620, subd. (a)(l), and 32615,
subd. (a)(5).) It is not among the powers and duties
of
the ALJ. By the same token, the Office
of
the General Counsel would be
iri
excess
of
its authority
if
it were to resolve disputes over
23
The ALJ also has discretionary authority to dismiss a complaint sua sponte absent a
showing
of
good cause based on charging party's failure to prosecute the complaint. (State
of
California (Department
of
Corrections) (2006) PERB Decision No. 1806-S; Los Angeles
Unified School District (1984) PERB Decision No. 464 [ALJs have inherent power to control
the proceedings, a power also found in PERB Reg. 32170, subd. (d), including discretionary
authority to dismiss a complaint sua sponte absent good cause for failure to prosecute].) The
withdrawal from a case by the sole charging party is equivalent to a failure to prosecute. Here,
the ALJ would have been well within his discretionary authority to dismiss the complaint
sua sponte at that time.
13

material facts24 or disputes over the meaning
of
ambiguous contractual provisions
25
when
processing and investigating an unfair practice charge. That is the role
of
the ALJ.
Given the unique and sympathetic facts
of
this case, the ALJ' s desire to assist Smith is
understandable. Leaving aside the distinction in the roles
of
the divisions, the problem with
the sua sponte amendment comes into sharp focus by substituting a represented (or
unrepresented) public employer or employee organization for Smith. A sua sponte amendment
would impair the right
of
the parties to control the litigation
of
their claims and defenses,
which claims and defenses may have been selectively chosen to the purposeful exclusion
of
other equally (or more) viable ones. A sua sponte amendment involves the ALJ directly in the
prosecution
of
the case in a way that may signal prejudgment or bias toward one party or the
other. Neutrality and the appearance
of
neutrality are essential. Because
of
the specific facts
of
this case, we by no means intend by this decision to question the ALJ's neutrality. It is clear
he was differently motivated. This decision merely serves to remind that uniformity and
regularity in the application
of
the Board's procedural rules and regulations is what
will
ensure
fairness each and every time.
By this decision, the Board intends no change in the unalleged violations doctrine.
Under this doctrine, the ALJ may entertain unalleged independent violations only under the
following circumstances: (1) adequate notice and opportunity to defend has been provided to
the respondent; (2) the conduct is intimately related to the subject matter
of
the complaint and
part
of
the same course
of
conduct; (3) the unalleged violation has been fully litigated; and
(4) the parties have had the opportunity to examine and be cross-examined. (Tahoe-Truckee
Unified School District (1988) PERB Decision No. 668 (Tahoe-Truckee).) The failure to meet
24
San Juan Unified School District (1977) EERB Decision No. 12. (Prior to 1978,
PERB was known as the Educational Employment Relations Board or EERB.)
25 Eastside Union School District (1984) PERB Decision No. 466.)
14

any
of
these standards will prevent the ALJ from considering unalleged conduct as violations
of
the particular act in question. (Ibid.) The Board in Tahoe-Truckee cited to numerous
private sector precedent for the principle that an ALJ decision finding an unalleged violation
will be rejected where notice was not provided that the evidence
of
unalleged conduct might
constitute the basis for an independent violation. The Board stated:
[W]e find that the ALJ erred in adjudicating allegations never
raised by the parties. That the ALJ and this Board are constrained
from resolving, sua sponte, issues neither set forth in the complaint
nor fully litigated after proper notice and an opportunity to defend
was recently reiterated by the California Court
of
Appeal in
J~R.Norlon Co.
v.
ALRB (1987)192
Cal.AppJd
874.
(Tahoe-Truckee, supra, PERB Decision No. 668, p. 9.)
Under the unalleged violations doctrine, the role
of
the ALJ is not to raise unalleged
violations, but to ensure that the above standards have been met before considering the
unalleged violation as within the scope
of
matters to be decided. A sua sponte amendment to
add a new violation and theory to the complaint is not an unalleged violation.
	It is an alleged
violation, just one alleged by the ALJ, not by the parties. As discussed above, sua sponte
amendments are not authorized by the regulations. They encroach on the duties and powers
of
the Office
of
the General Counsel, impair the rights
of
the parties to control the litigation and
raise questions
of
neutrality. The unalleged violations doctrine implicates none
of
these
concerns.
On a final note, in amending the complaint sua sponte to allege that the City violated its
local rules, the ALJ did not identify the subdivision
of
MMBA section 3507 under which CSR
Rule II, Section 6(e), falls. 	Rules regarding the classification or reclassification
of
employees
may not be representation procedures and do not fall within any of the other enumerated
categories of local rules subject to PERB 's jurisdiction in MMBA section 3507,
subdivision (a). CSR Rule II, Section 6(e), conceivably could be construed, however, not as a
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local rule regarding the classification or reclassification
of
employees, but as a local rule
providing employees with a procedure for resolving classification disputes. Under that
interpretation
of
CSR Rule II, Section 6(e), it may fall under MMBA section 3507,
subdivision (a)(S), as a procedure for the resolution
of
disputes involving wages, hours and
other terms and conditions
of
employment. We need not decide which interpretation prevails,
as the record was not developed on this issue and resolution
of
this issue is unnecessary to the
outcome reached herein. We merely take the opportunity to remind that not all public agency
rules and regulations fall within the definition
of
local rules subject to PERB's jurisdiction.
CONCLUSION
With IMEO's withdrawal and the City's motion to dismiss the complaint, the matter
should have been disposed
of
by an order or notice
of
dismissal. Because there is no charging
party, there is no case, and therefore, the complaint and underlying unfair practice charge are
dismissed.
ORDER
The unfair practice charge and complaint in Case No. LA-CE-750-M is hereby
DISMISSED WITHOUT LEAVE TO AMEND.
Members Winslow and Huguenin joined in this Decision.
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