Decision 2384H – Trustees of the California State University

PERB has jurisdiction to consider unfair practices and other alleged violations of HEERA, including section 3580.5, which prohibits supervisors from participating in collective bargaining and grievance proceedings on behalf of non-supervisory employees.

Under broad principles of agency used in federal labor law and adopted by PERB, there exists a rebuttable presumption that an employer is responsible for the conduct of its supervisors. An employer’s responsibility for the coercive acts of its representatives is not limited by the technical rules of agency or respondeat superior; questions of agency must be determined with reference to the statute’s remedial purpose of protecting employee rights.

When considering allegations that an employer has interfered with employee rights, the well-meaning intent of the employer or of the individual supervisor in question is irrelevant.

HEERA section 3580.5 protects the rights of nonsupervisory employees to collective-bargaining representatives who are single-minded in their loyalty to the employees’ interests, by ensuring that the employer cannot “sit on both sides of the table” in collective bargaining or grievance proceedings. While employees may choose to form, join or participate in the activities of employee organization, or refrain from doing so, their freedom to select a representative does not extend to organizations or individuals who act on behalf of the employer. An employer may violate HEERA Section 3580.5 when it permits an individual to “sit on both sides of the table” as both a representative of employees and as an agent of the employer with influence over personnel policies or practices. Allegations that a higher education employer has violated HEERA Section 3580.5 by allowing a supervisor to represent a nonsupervisory employee in collective bargaining or grievance proceedings may be brought as “interference” allegations under HEERA section 3571 (a).

HEERA section 3580.5’s protections against conflicts of interest are non-waivable. A policy or rule that interferes with the very preconditions of employee choice is invalid, even if it was adopted through otherwise lawful meeting and conferring with the representative, or if the representative knowingly acquiesced to its restrictions on employee choice.

Before dismissing any allegations in a charge, the investigating Board agent must advise the charging party in writing of any deficiencies in the charge in a warning letter, unless otherwise agreed by the Board agent and the charging party. (PERB Reg. 32620, subd. (d).)

As part of PERB’s authority to investigate and remedy unfair practices, the Board may sever, consolidate, expedite, place in abeyance, or otherwise alter the timeline(s) or sequence in which it investigates some or all of the allegations in a charge to promote uniformity in decisions and administrative efficiency. Here, the Board directed that issuance of a complaint on one allegation be held in abeyance until the remainder of the charge has been fully investigated, so that one complaint, including all matters deemed appropriate for hearing, would be processed on the same timeline.

An exclusive representative has standing to allege a violation of HEERA Section 3580.5, where a supervisor’s conduct is alleged to have interfered with, restrained or coerced employees in the exercise of protected rights.

An amended charge may incorporate by reference information or allegations included in a previous iteration of the charge, so long as the amended charge includes a “clear and concise statement” of the charge and otherwise complies with PERB’s regulations. New allegations included in an amended charge may not be dismissed merely because they were not included in the original charge. PERB regulations place no limit on the number of times a charging party may amend its charge before a warning letter issues or before the charge is dismissed.

As part of PERB’s authority to investigate and remedy unfair practices, the Board may sever, consolidate, expedite, place in abeyance, or otherwise alter the timeline(s) or sequence in which it investigates some or all of the allegations in a charge to promote uniformity in decisions and administrative efficiency. Here, the Board directed that issuance of a complaint on one allegation be held in abeyance until the remainder of the charge has been fully investigated, so that one complaint, including all matters deemed appropriate for hearing, would be processed on the same timeline.

Under broad principles of agency used in federal labor law and adopted by PERB, there exists a rebuttable presumption that an employer is responsible for the conduct of its supervisors.

Where charging party states a viable legal theory as to a novel issue, the proper course for the Board on review of a dismissal is to reverse and remand for issuance of a complaint, so that the novel issues may be decided upon a full evidentiary record and with the benefit of briefing by the parties. Here, charging party alleged sufficient facts to state a prima facie case and articulated a viable theory that the University violated HEERA section 3580.5 and/or interfered with protected employee rights by allowing a supervisor to represent a nonsupervisory employee in collectively-bargained complaint proceedings. In reviewing the dismissal of a charge containing multiple, factually distinct allegations, the Board may direct the issuance of a complaint as to some allegations, while remanding others to the Office of the General Counsel for further investigation of any factual or legal issues that were not fully or properly considered before the charge was dismissed.

An employer’s responsibility for the coercive acts of its representatives is not limited by the technical rules of agency or respondeat superior; questions of agency must be determined with reference to the statute’s remedial purpose of protecting employee rights. Where charging party alleges that employer’s labor relations official ratified supervisor’s attendance at meeting “on behalf of” nonsupervisory employee, charging party has satisfied prima facie case that supervisor was acting as employer’s agent at the meeting.