Board Decisions Summary – January 2022
In January of 2022, the Board issued nine decisions. The decision descriptions and dispositions are below.
Order No. Ad-489
Employer: Los Angeles Unified School District
Case No.: LA-CE-6445-E
Issued date: January 7, 2022
Non-Precedential
Description: Joei Dyes and the AnonymousKnowNothings (Charging Parties) appealed an administrative determination by PERB’s Appeals Office rejecting their appeal of a dismissal as untimely.
Disposition: In a nonprecedential decision, the Board denied the appeal from the administrative determination and affirmed the dismissal. Charging Parties argued that they had a past practice of adding an additional day to a filing deadline when a holiday occurred within the time period to file. PERB Regulations do not provide an extension to the deadline when a holiday falls on a day within the filing period other than the last day to file. The Board found Charging Parties failed to establish good cause to excuse the late filing because based on their conduct in other cases, their explanation for the calendaring error was neither a reasonable nor credible.
Decision No. 2800
Organization: Service Employees International Union Local 1021 (Wilson)
Case No.: SF-CO-852-E
Issued date: January 13, 2022
Non-Precedential
Description: Wilson appealed the dismissal of his unfair practice charge alleging that SEIU Local 1021 violated the Educational Employment Relations Act (EERA) by by failing to adequately represent him during his Skelly hearing and subsequent termination arbitration with Wilson’s employer, the Oakland Unified School District. The Office of the General Counsel dismissed the charges on the grounds that they failed to state a prima facie case. Wilson appealed.
Disposition: The Board dismissed the unfair practice charge without leave to amend.
Decision No. 2598a-S
Employer: State of California (Department of Corrections & Rehabilitation)
Case No.: SA-CE-2047-S
Issued date: January 18, 2022
Precedential
Description: In State of California (Department of Corrections & Rehabilitation) (2018) PERB Decision No. 2598-S, the Board concluded that the Department of Corrections and Rehabilitation (CDCR) interfered with (1) an employee’s right to be represented by her union, the California Association of Psychiatric Technicians (CAPT), prior to and during an invasive body search; and (2) CAPT’s corresponding right to represent employees prior to and during such searches. The Board found that CDCR thereby violated the Dills Act section 3519, subdivisions (a) and (b). CDCR filed a writ petition with the Court of Appeal for the Third Appellate District. In an unpublished opinion and order in Department of Corrections and Rehabilitation v. Public Employment Relations Bd. (October 4, 2021, No. C088562, 2021 WL 4519682), the Court of Appeal affirmed the Board’s conclusion that CDCR violated the Dills Act, but the Court modified the wording of the Board’s remedial order. Specifically, the Court of Appeal held that the remedial order applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline.
Disposition: In accordance with the Court of Appeal’s direction, the Board issued an order that fully supersedes its remedial order in State of California (Department of Corrections & Rehabilitation), supra, PERB Decision No. 2598-S.
Decision No. 2801-M
Organization: International Association of Fire Fighters, Local 55 (Moore)
Case No.: SF-CO-455-M
Issued date: January 24, 2022
Non-Precedential
Description: Charging Party filed an unfair practice charge alleging that International Association of Fire Fighters, Local 55 violated the MMBA by intimidating and shaming him after he decided to withdraw his union membership. OGC determined that Charging Party had not alleged facts that would, if proven, establish a prima facie case of any unfair practice, and dismissed the charge. Charging Party timely appealed from OGC’s dismissal.
Disposition: In a non-precedential decision, the Board affirmed OGC’s dismissal of the unfair practice charge without leave to amend.
Decision No. 2802
Organization: United Teachers Los Angeles (Dyes, et al.)
Case No.: LA-CO-1768-E
Issued date: January 24, 2022
Non-Precedential
Description: Charging Parties filed an unfair practice charge alleging that United Teachers Los Angeles (UTLA) violated EERA by breaching the union’s duty of fair representation. Charging Parties primarily claim that UTLA: (1) failed to require Dyes’ employer, Los Angeles Unified School District, to reverse its decision to dismiss her employment; and (2) did not contact Dyes to inform her of the opportunity to vote on a successor collective bargaining agreement. OGC dismissed the charge, finding that none of the claims stated a prima facie case. Charging Parties timely appealed from OGC’s dismissal.
Disposition: In a non-precedential decision, the Board affirmed the dismissal of the unfair practice charge without leave to amend.
Decision No. 2803
Employer: Oxnard Union High School District
Case No.: LA-CE-6627-E
Issued date: January 26, 2022
Precedential
Description: In March 2020, Oxnard Union High School District responded to COVID-19 by shifting to distance instruction like many school districts. In October 2020 and March 2021, the District and the Oxnard Federation of Teachers and School Employees signed MOUs addressing the eventual return to hybrid instruction or full in-person instruction. The MOUs established a maximum hybrid class size and gave staff a choice whether to return on-site for hybrid instruction during the remainder of the 2020-21 school year. The complaint alleged that the District ultimately deviated from these agreements, thereby violating its bargaining obligations as to its decisions and/or their negotiable effects. After an ALJ held an evidentiary hearing on liability, the Board transferred the record to the Board itself.
Disposition: The Board found the District violated EERA when it: (1) unilaterally repudiated multiple MOU provisions; and (2) failed to satisfy its effects bargaining obligations. The Board held that while management’s right to respond to a public health emergency by instituting distance instruction (while bargaining in good faith as time allows) includes a concomitant right to return to the status quo in stages (also while bargaining in good faith as time allows), the District violated its bargaining duties. The Board found that the Federation gave up other potential demands in exchange for what it achieved in the binding MOUs the parties reached many months into the pandemic, and the District could not repudiate its commitments. The Board remanded to the Division of Administrative law for settlement discussions and absent an agreement, a hearing on remedies.
Order No. Ad-490
Employer: Pasadena Area Community College District
Case No.: LA-CE-6601-E
Issued date: January 27, 2022
Precedential
Description: This case came before the Board on an interlocutory appeal filed by the Pasadena Area Community College District to an administrative law judge’s (ALJ) order compelling it to produce an e-mail to the Pasadena City College Faculty Association that the District claims must be partially redacted.
The parties’ dispute involves a single e-mail that the District asserted includes internal bargaining strategy and is thus protected from disclosure by PERB precedent. The District provided the Association with a partially redacted version of the e-mail, together with a privilege log covering the e-mail and several other items. After the parties reached agreement regarding the other privilege log entries, they asked the ALJ to decide whether the District had to produce the e-mail in unredacted form. The Association asked the ALJ to review the unredacted e-mail in camera before ruling. The ALJ denied the Association’s request for in camera review and ordered the District to produce the e-mail without redactions. The District appealed the part of the ALJ’s order directing production, and the ALJ certified the interlocutory appeal directly to the Board.
The District raised two legal questions for Board review: (1) whether the qualified negotiations protection may be overcome by weighing the asserted protection against the need for disclosure; and (2) whether the qualified negotiations protection is intended to be narrowly construed only to maintain confidentiality of each party’s collective bargaining strategy during pending negotiations. The Board relied on PERB and federal precedent, and incorporated important policy considerations to (1) hold that the qualified negotiations protection is not limited to maintaining confidentiality for pending negotiations; and (2) explain the balancing test for the qualified negotiations protection.
Disposition: The Board granted the District’s appeal, reversed the ALJ’s order that the District disclose unredacted records to the Association, and directed the ALJ to review the relevant records in camera, then apply the balancing test set forth in the Board’s Order and provide the parties with a new ruling.
Decision No. 2804
Employer: South Orange County Community College District
Case No.: LA-CE-6579-E
Issued date: January 28, 2022
Precedential
Description: Charging Party Maria-Ester Nunez appealed a dismissal by PERB’s Office of the General Counsel (OGC) finding that: (1) the amended charge did not allege any nexus factors to support the retaliation allegation; (2) the allegation that the District postponed the Trustees’ vote to deprive Nunez of the opportunity to clarify and correct misleading information was speculative and did not provide other facts that might demonstrate the employer’s unlawful motive; and (3) PERB does not have jurisdiction to enforce the open meeting requirements under the Brown Act.
Disposition: The Board remanded to the OGC to issue a complaint alleging that the South Orange County Community College District terminated Maria-Ester Nunez’s employment because she engaged in activities protected by the Educational Employment Relations Act. All other allegations in the amended unfair practice charge were dismissed without leave to amend.
Decision No. 2805
Employer: Inglewood Unified School District
Case No.: LA-CE-6571-E
Issued date: January 31, 2022
Non-Precedential
Description: Lillian Edith Grant alleged that the Inglewood Unified School District violated the Educational Employment Relations Act (EERA) by transferring Grant to the Human Resources Department, removing various public relations duties from her, recommending her position be eliminated, and ultimately laying off Grant in retaliation for engaging in protected activity. The administrative law judge (ALJ) dismissed the complaint and underlying unfair practice charge, concluding that Grant failed to prove the District engaged in unlawful retaliation. Grant timely appealed.
Disposition: The Board found the ALJ’s factual findings were supported by the record and his conclusions of law are consistent with applicable law. The Board therefore affirmed the dismissal of the complaint for the reasons stated in the proposed decision.