REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS – In General

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1200.00000 – REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS
1200.01000 – In General

It does not infringe on SPB’s jurisdiction for PERB to issue a remedy based upon proof by a preponderance of the evidence establishing what level of discipline the state would have issued absent protected activities. First, SPB’s jurisdiction to review disciplinary actions taken against state civil service employees is consistent with the concurrent jurisdiction of PERB---a “watchdog” agency---to provide a full remedy if such employees establish that the state discriminated against them in issuing discipline. (State Personnel Bd. v. Fair Employment and Housing Com. (1985) 39 Cal.3d 422, 437-440 [the Legislature has designated “watchdog agencies” like PERB to remedy discrimination and therefore reinforce the constitutional merit principle] (FEHC).) Supreme Court precedent further instructs that where SPB jurisdiction overlaps with that of another watchdog agency, “such as where a disciplinary action is alleged to have been motivated by antiunion animus,” the proper approach is to “harmonize the disparate procedures rather than simply invalidate one or the other.” (FEHC, supra, 39 Cal.3d at p. 438, citing Pacific Legal Foundation v. Brown (1981) 29 Cal.3d 168, 197.) One means of harmonizing is to take a standard approach to collateral estoppel, in which granting collateral estoppel to another agency’s findings may or may not be dispositive in a separate claim, depending on the circumstances. In this way, PERB’s jurisdiction to enforce the Dills Act does “not supplant” SPB jurisdiction, nor is it “supplanted by” SPB’s jurisdiction. (FEHC, supra, 39 Cal.3d at pp. 431; see also State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, pp. 36-41 [PERB may remedy discriminatory conduct against a state civil service employee despite a contrary order of the SPB]; State of California (Department of Transportation) (1984) PERB Decision No. 459-S, pp. 8-9 [“SPB has been granted the authority to review disciplinary actions,” but PERB is “charged with reviewing those same disciplinary actions when the charge involves a claim that the exercise of [Dills Act] rights was a motivating factor in the decision to discipline,” meaning that an SPB order “poses no impediment” to PERB directing the state to rescind three discriminatory disciplinary actions].) (pp. 35-36.)