Decision 2566C – Los Angeles County Superior Court
LA-CE-44-C
Decision Date: June 12, 2018
Decision Type: PERB Decision
Description: An administrative law judge dismissed the complaint, which alleged that the employer: (1) laid off a group of unrepresented employees in retaliation for their protected activity; (2) interfered with their protected rights by entering into a side letter agreement with the exclusive representative of another group of employees; and (3) laid off the charging parties for reasons other than operational necessity.
Disposition: The Board affirmed and adopted the proposed decision. It explained that when an employer’s act is facially or inherently discriminatory, its unlawful motive can be inferred without specific evidence, but the Board found no such discrimination in this case because the laid off employees were not similarly situated to those who were retained. The Board agreed with the ALJ that the employer proved it would have laid off the charging parties regardless of their protected activity, that the side letter did not interfere with their rights, and that the Board lacked jurisdiction over the statutory provision allowing the employer to lay off employees only for operational necessity.
Perc Vol: 43
Perc Index: 1
Decision Headnotes
100.03000 – Purpose of the Act
The possibility of obtaining better treatment as organized, represented employees is implicit in any collective bargaining scheme. That is precisely the point of collective bargaining.
101.01000 – In General
The Board must attempt to harmonize, when possible, the various statutes under its jurisdiction.
101.01000 – In General
The Board does not have authority to enforce article 5 of the Trial Court Act.
104.01000 – Authority of Board In General; Validity and Application of Regulations (See also 102.01)
The Board cannot enact a regulation expanding the scope of its authority beyond what is authorized by the enabling statute.
400.01000 – In General; Standards
In cases arising under the MMBA and the Trial Court Act, the Board applies the test for interference from Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797, although it is not clear that that case is inconsistent with Carlsbad Unified School District (1979) PERB Decision No. 89.
400.01000 – In General; Standards
Side letter agreement providing that future hires would be in a represented classification and not charging parties’ unrepresented classification did not interfere with right to refrain from participating in activities of employee organization. Although agreement reduced the collective strength of charging parties’ classification, unrepresented employees have no right to meet and confer, and thus no right to protect the strength of their classification.
401.01000 – In General; Prima Facie Case.
In cases arising under the MMBA and the Trial Court Act, the Board applies the test for interference from Public Employees Association of Tulare County, Inc. v. Board of Supervisors of Tulare County (1985) 167 Cal.App.3d 797, although it is not clear that that case is inconsistent with Carlsbad Unified School District (1979) PERB Decision No. 89.
401.01000 – In General; Prima Facie Case.
Side letter agreement providing that future hires would be in a represented classification and not charging parties’ unrepresented classification did not interfere with right to refrain from participating in activities of employee organization. Although agreement reduced the collective strength of charging parties’ classification, unrepresented employees have no right to meet and confer, and thus no right to protect the strength of their classification.
501.01000 – In General; Elements of Prima Facie Case
A prima facie case is established under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416 by “discrimination in its simplest form,” i.e., employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence. Under this standard, allegations that an employer has treated two groups of employees differently are neither necessary nor sufficient, disapproving State of California (Department of Personnel Administration) (2011) PERB Decision No. 2106a-S.
501.01000 – In General; Elements of Prima Facie Case
Where differently treated employees were not similarly situated, there is no prima facie case under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416.
504.14000 – Other/In General
Direct evidence is not necessarily stronger or more persuasive than circumstantial evidence.
505.01000 – In General
In determining whether employer has established its affirmative defense, the Board weighs the evidence supporting the employer’s justification for the adverse action against the evidence of the unlawful motive.
1107.01000 – Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
Although the Board reviews exceptions to a proposed decision de novo, it will generally decline to consider an argument not raised to the ALJ.
1107.06000 – De Novo Review; Standard of Review by Board
Although the Board generally reviews exceptions to a proposed decision de novo, it will generally decline to review an argument not raised to the ALJ.
1407.01000 – General Principles
Statutes must be interpreted to avoid giving effect to drafting errors.
1503.01000 – In General
The Board cannot enact a regulation expanding the scope of its authority beyond what is authorized by the enabling statute. The Board regarded a regulation that appeared to do so as a drafting error.
1503.03000 – Regulations Considered (By Number) (Continued)
PERB Regulation 32606, subdivision (g), contains a drafting error to the extent it defines any violation of the Trial Court Act as an unfair practice. PERB only has jurisdiction over article 3 of the Trial Court Act.