All notes for Subtopic 1108.01000 – In General
| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2861M | Imperial Irrigation District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board ordered various remedies for the District’s unlawful unilateral change and identified issues that could be relevant in compliance. (pp. 65-69.) more or view all topics or full text. | 47 | 163 | 05/08/23 |
| 2855E | The Accelerated Schools 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General While remedial orders must rely to a degree on estimates, that is preferable to allowing uncertainty caused by unlawful conduct to leave an unfair practice without any effective remedy. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 20; Lodi Unified School District (2020) PERB Decision No. 2723, p. 21, fn. 13; City of Pasadena (2014) PERB Order No. Ad-406-M, pp. 8, 13-14, & 26-27.) (p. 17.) more or view all topics or full text. | 47 | 139 | 03/17/23 |
| 2799M | County of Santa Clara 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Parties may argue to the compliance officer as to the import (if any) of negotiations they may have undertaken during any timeframe before PERB’s decision becomes final. (Compare County of Merced (2020) PERB Decision No. 2740-M, pp. 21-22 [employer could not rely on negotiations undertaken before PERB decision became final, as such negotiations did not lead to agreement and occurred before employer fully remedied its unfair practice] with Region 2 Court Interpreter Employment Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 58 [where parties undertook negotiations in context of unremedied unfair practice but reached a superseding agreement, PERB deferred to agreement by discontinuing backpay remedy as of its effective date].) more or view all topics or full text. | 46 | 94 | 12/20/21 |
| 2799M | County of Santa Clara 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General A finding that a respondent committed an unfair practice normally results in the opportunity for the charging party to establish, most often in compliance proceedings, that the respondent’s conduct resulted in harm. (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 10; Desert Sands Unified School District (2010) PERB Decision No. 2092, pp. 31-32.) Where County violated its duty to meet and confer over the effects of surveillance technology ordinance violations, PERB found it appropriate to give the Association the opportunity to establish harm in compliance proceedings. While there were no instances of discipline or criminal liability as of the date the record closed, evidence in compliance proceedings may include harms manifesting at any time. more or view all topics or full text. | 46 | 94 | 12/20/21 |
| A487E | Antelope Valley Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings are not a venue for relitigating the merits of the underlying decision and order. (p. 5.) more or view all topics or full text. | 46 | 56 | 08/27/21 |
| A487E | Antelope Valley Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General “Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that ‘[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.’” (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 8.) (p. 5.) more or view all topics or full text. | 46 | 56 | 08/27/21 |
| 2544Ea | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Records such as Form W-2s, Form 1040s, and other wage and income records are typically sufficient evidence of employee losses, mitigation efforts, and interim earnings. more or view all topics or full text. | 46 | 143 | 03/24/22 |
| 2544Ea | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings should generally not lead to protracted litigation and should be commensurate to the scope of relief at issue. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 21-22.) more or view all topics or full text. | 46 | 143 | 03/24/22 |
| 2796E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings generally should not lead to protracted litigation. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) This principle particularly apt in case where affected teachers will at most be owed 30 minutes of extra pay, plus 7 percent annual interest. With these principles in mind, the Board afforded the compliance officer the discretion to consider any number of methods to expedite compliance. Where the Board directed the compliance officer to resolved in compliance proceedings which teachers more likely than not attended a certain meeting for which they were due compensation, the compliance officer could consider accepting sworn declarations or convening a virtual hearing. Any person who was present at the meeting in question could, depending on the extent of her or his recollection, provide evidence as to who else was present. The Association may subpoena, or the District may agree to produce, any sign-in sheets or other attendance records in the District’s possession. Alternatively, the parties may negotiate to resolve all make-whole relief issues, thereby saving further litigation expenses. more or view all topics or full text. | 46 | 85 | 11/08/21 |
| A488E | Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The names of any individuals claiming they did not receive the employer’s e-mail notices were relevant and necessary to determine the veracity of their statements. Indeed, under these circumstances a declaration that did not identify the declarant would have questionable evidentiary value, as it would not allow the employer or PERB to determine whether, in fact, the e-mail had been sent to the declarant or whether some transmission error had prevented the declarant from receiving it. The unsupported speculation that the employer might retaliate against an employee who submitted a declaration is not a substitute for actual evidence that a bargaining unit member did not receive the employer’s e-mail notices. Because the charging party declined to produce declarations of employees who allegedly did not receive the e-mail Notice, there was no material factual dispute over whether the employer e-mailed the Notice to the entire bargaining unit. Accordingly, Office of the General Counsel correctly determined that the employer complied with the Board’s electronic notice posting order. (pp. 9-11.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General To investigate a claim that some bargaining unit members did not receive a Notice sent by e-mail, Office of the General Counsel issued an Order to Show Cause to determine whether there was a material factual dispute that necessitated an evidentiary hearing. Office of the General Counsel directed the charging party to provide declarations based on personal knowledge under penalty of perjury showing that any bargaining unit member did not receive the e-mail Notice. The charging party declined to provide such declarations, citing concerns that the declarants would face retaliation from the employer. In the absence of any countervailing evidence, Office of the General Counsel correctly relied on the employer’s unrebutted evidence to conclude that it had e-mailed the Notice to all bargaining unit members, thereby complying with the Board’s electronic notice posting order. (p. 10.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In compliance proceedings, the respondent has the burden to prove that it complied with the Board’s order. In the context of physical mail, the Board has adopted the generally accepted rebuttable presumption that documents correctly addressed and properly mailed were received by the addressee. The Board found it appropriate to adopt a similar rebuttable presumption for electronic mail. The employer submitted statements based on personal knowledge under penalty of perjury that it e-mailed the Notice to all certificated bargaining unit members on two occasions, thereby creating a rebuttable presumption that it did so. (p. 10.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance may be determined based solely on documents submitted to Office of the General Counsel. In some instances, an evidentiary hearing is necessary to resolve disputed factual issues. When it is unclear whether a hearing is necessary, an Order to Show Cause may be used to determine if there are material facts in dispute and whether or not there is sufficient evidence to decide a disputed matter without convening an evidentiary hearing. (p. 9.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| A488E | Los Angeles Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 9.) more or view all topics or full text. | 46 | 77 | 10/12/21 |
| 2749E | Sacramento City Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Normally compliance proceedings to establish estimated reasonable legal expenses should involve review of sworn declarations and should not lead to protracted litigation. (City of Alhambra (2009) PERB Decision No. 2037-M, p. 4; Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, p. 8.) Moreover, compliance hearings involving legal expense reimbursement should follow general PERB principles. Thus, it is permissible to estimate appropriate damages even if, as is often the case, the exact measure of damages is uncertain. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.) more or view all topics or full text. | 45 | 58 | 11/02/20 |
| 2749E | Sacramento City Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In general, the most appropriate methodology for determining compensatory legal expenses will be a lodestar approach that focuses on hours reasonably incurred and does not automatically reduce hourly market rates for attorneys who work in a nonprofit, government agency, or in-house legal department and/or who were paid a flat salary, charged discounted rates, or never billed their client. It is permissible, but not required, to use alternative methods as a cross-check on one another to determine an appropriate fee as part of a make-whole remedy. Moreover, it is appropriate to reimburse any incidental costs, as well as pre-judgment and post-judgment interest on all amounts. more or view all topics or full text. | 45 | 58 | 11/02/20 |
| 2749E | Sacramento City Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board provided guidance for compliance proceedings to determine the proper amount of legal expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices and to restore the pre-violation status quo. The term “legal expenses,” which is synonymous with “attorney’s fee award” and “attorney’s fees and costs,” is a broad category that includes virtually any item for which a law firm customarily bills a client, including, inter alia, billable professional services (meaning attorney and law clerk services and certain “paralegal” services that may be performed by legal assistants with or without a paralegal license), as well as incidental costs such as filing fees, electronic research fees, or fees for service of process. (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 888; see also Missouri v. Jenkins by Agyei (1989) 491 U.S. 274, 285-287 [paralegal and law clerk time compensable at prevailing market rate]; Trustees of Const. Indus. and Laborers Health and Welfare Trust v. Redlands Ins. Co. (9th Cir. 2006) 460 F.3d 1253, 1256-1257 [support staff work compensable if those costs not already built into attorney’s hourly fees].) This definition of legal expenses is particularly appropriate in compensatory cases given that PERB precedent allows compensation even for staff who do not work in legal services in any respect. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6.) more or view all topics or full text. | 45 | 58 | 11/02/20 |
| A475E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In light of the employer’s demonstrated proclivity to delay compliance through frivolous objections and legal maneuvers, the Board delegated to the assigned hearing officer the authority to impose sanctions on the employer for pursuing any claim, defense, motion or other action or tactic in the compliance proceedings that was without arguable merit and pursued in bad faith. (p. 14.) more or view all topics or full text. | 44 | 64 | 09/13/19 |
| A475E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In response to the employer’s argument that it was not practical to rescind its unlawful subcontract before it expired by its own terms because rescission would lead to litigation between the employer and the subcontractor, the Board concluded that the employer would have to support that contention at hearing with evidence that it had no legal opportunity to terminate the contract before the expiration date. (p. 12.) more or view all topics or full text. | 44 | 64 | 09/13/19 |
| A475E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Since the parties contested, among other matters, the amount of backpay the employer owed the affected employees, and whether the employer complied with the requirement to rescind the unlawful subcontract “as soon as practical,” the Board remanded the matter to the Office of the General Counsel for an expedited hearing on all outstanding compliance issues. The Board emphasized that the purpose of the hearing would be to determine whether, or to what extent, the District had complied with the Board’s order in Bellflower Unified School District (2017) PERB Decision No. 2544. It was not an invitation to relitigate the merits of the underlying decision and order. (p. 9.) more or view all topics or full text. | 44 | 64 | 09/13/19 |
| A475E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Here, the Office of the General Counsel’s effort to determine compliance through an exchange of correspondence, which in most cases is sufficient, was understandable. In the particular circumstances of this case, however, the better course would have been to issue a notice of hearing, summon the parties to present their evidence on contested issues, and thus obtain a complete record with the greatest possible speed. First, determination of disputed backpay amounts owed to affected employees, including whether employees failed to mitigate their damages, is well-suited for resolution at a hearing, where PERB Regulations give the parties and the hearing officer ample means to obtain the information necessary to make an accurate and complete determination of the respondent’s obligations. Second, a hearing becomes all the more necessary when the Office of the General Counsel believes, as was the case here, that the respondent is engaged in a pattern of delay or is otherwise acting to evade its obligations under a final Board order. Rather than enable obfuscation of the facts with endless rounds of unsworn correspondence, a formal hearing requires the respondent to put its evidence on the record under penalty of perjury. Finally, a hearing permits the hearing officer to craft a proposed order based on findings of fact and conclusions of law that articulates with specificity the steps the respondent must take to discharge its legal obligations. (pp. 8-9.) more or view all topics or full text. | 44 | 64 | 09/13/19 |
| A475E | Bellflower Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that “[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.” This provision grants the Office of the General Counsel considerable discretion to determine the most effective method for ensuring compliance with a Board order. (p. 8.) more or view all topics or full text. | 44 | 64 | 09/13/19 |
| 2643E | California School Employees Association (Williams) 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General When a union fails to fairly represent an employee in grievance processing, the employee is not entitled to make whole relief unless he or she would have prevailed had the union properly processed the grievance. (p. 8.) In such case, the typical remedy is an order that the union process the grievance or make the employee whole if that process is not available or would be ineffectual. The latter remedy requires the employee prove in compliance proceedings that he or she would have prevailed on a properly process grievance. (p. 8, fn. 5.) more or view all topics or full text. | 43 | 185 | 05/17/19 |
| A406M | City of Pasadena 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board determined that the city had not complied with the Board’s previous order to compensate certain employees with back pay and interest after the City unilaterally implemented a new on-call schedule. A compliance decision that is the result of an investigation without a hearing is considered an administrative determination subject to a ten day appeal timeline. more or view all topics or full text. | 38 | 122 | 01/28/14 |
| 2336M | County of Riverside 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Layoff of employees in charging party's classification, which occurred subsequent to unlawful retaliatory dismissal of charging party but prior to Board's reinstatement and back pay order, does not excuse respondent's failure to comply with order of reinstatement; the reinstatement and back pay order became effective as of the date the proposed decision in the unfair practice proceeding would have become final if the respondent had not filed a statement of exceptions, not as of the date of the Board's decision affirming the administrative law judge's order. more or view all topics or full text. | 38 | 62 | 10/18/13 |
| A379E | Long Beach Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board upheld the administrative law judge’s finding that the Long Beach Community College District complied with the Board’s Order in Long Beach Community College District (2008) PERB Decision No. 1941. Specifically, that the Board did not order a traditional back pay remedy, but rather order a limited Transmarine Navigation Corporation (1968) 170 NLRB 389, enf’d NLRB v. Transmarine Navigation Corporation (9th Cir. 1967) 380 F.2d 933 style remedy, requiring the payment of wages and benefits, at pre-layoff rates, starting on March 10, 2008 and continuing until one of its stated conditions was met. more or view all topics or full text. | 33 | 112 | 06/22/09 |
| 1640E | Lucia Mar Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The District delayed compliance with an order issued by the Board three years before in Lucia Mar Unified School District (2001) PERB Decision No. 1440 and must comply with that order by July 30, 2004, a date agreed to by the parties. The order requires termination of a contract with Student Transportation of America for bus services. more or view all topics or full text. | 28 | 177 | 06/14/04 |
| 1582H | University Professional and Technical Employees, Communications Workers of America Local 9119 (Trout) 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board “may also issue a compliance order on its motion” under HEERA section 3587 and under its plenary powers under HEERA section 3563(m) but Trout has failed to allege facts that would support such an action. more or view all topics or full text. | 28 | 59 | 01/13/04 |
| 1634M | Otay Water District * * * OVERRULED IN PART by Bellflower Unified School District (2022) PERB Decision No. 2544a * * * 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General * * * OVERRULED IN PART by Bellflower Unified School District (2022) PERB Decision No. 2544a, where the Board held that employers are liable for interim employment expenses separately from back pay. * * *Employer's liability is terminated by rejection of valid offer of reinstatement and does not include increased tax liability for lump sum payment of back pay, expenses incurred in obtaining new employment and or financial losses of family members. more or view all topics or full text. | 28 | 156 | 05/19/04 |
| A258E | San Francisco Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board declined to exercise its discretionary authority to seek enforcement of a prior PERB order pursuant to Government Code section 3542(d) and Regulation 32980, since the present dispute is substantively different from that presented to the Board in the earlier case, and to deprive the Respondent of the ability to respond to new factual and legal issues today would potentially deny them a full and fair hearing. more or view all topics or full text. | 18 | 25111 | 08/03/94 |
| 1280E | Hacienda La Puente Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Where Board order requires District to take certain actions, District bears the burden of proving compliance with an order; p. 6, proposed dec. Compliance hearings cannot be used to litigate defenses that were not raised during the underlying unfair practice hearing; p. 10, proposed dec. more or view all topics or full text. | 22 | 29149 | 08/27/98 |
| 1171E | Fresno County Office of Education 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General In a compliance case the burden of proof is on the respondent. Under NLRB precedent, in order to receive any offset against the amount of back pay due, the employer has the burden of establishing that employees failed to mitigate their damages; pp. 3 et seq., proposed dec.; any uncertainty is resolved against the employer. In establishing a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts consistent with the inclination to work and to be self-supporting; Claimants are not expected to seek a job more onerous than the one from which they were removed, but rather are expected to seek a substantially equivalent job. The claimant can still prevail if the record shows reasonable efforts to obtain interim employment; pp. 3-5, proposed dec. more or view all topics or full text. | 21 | 28001 | 09/30/96 |
| 1090E | Norris School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General If a party agrues it has previously complied with the order, this can best be resolved through PERB's compliance proceedings; p. 5. more or view all topics or full text. | 19 | 26068 | 03/16/95 |
| 0625E | Fountain Valley Elementary School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Matter to go to compliance if parties cannot agree to compensation formula within 60 days. more or view all topics or full text. | 11 | 18115 | 06/23/87 |
| 0557E | Nevada Joint Union High School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Whether subsequent agreement constitutes compliance with Board's order is best left to compliance proceedings. more or view all topics or full text. | 10 | 17040 | 12/31/85 |
| 0500E | Santa Clara Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Reinstatement to be delayed if respondent can show in compliance that position would not presently be available anyway in normal course of events; parties, with PERB's approval, may arrive at settlement as alternative to order. more or view all topics or full text. | 9 | 16116 | 04/11/85 |
| 0278E | San Francisco Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Unless it can be shown that an alleged failure to comply with a prior Board order was undertaken for discriminatory reasons or is part of a discrete course of violative conduct, failure to comply does not constitute a per se separate, new violation of the statute. more or view all topics or full text. | 7 | 14035 | 12/31/82 |
| 0266Ea | Brawley Union High School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Party determined to have waived right to assert defense in answer, brief and exceptions cannot raise defense for the first time in a compliance proceeding; p. 6. more or view all topics or full text. | 7 | 14131 | 04/07/83 |
| 0104Ea | Santa Clara Unified School District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Reconsideration denied where District failed to show extraordinary circumstances; on reconsideration, case remanded to hearing officer on District's claim of legal incapacity to comply with remedy under extraordinary circumstances standard. more or view all topics or full text. | 4 | 11081 | 05/07/80 |