Decision 2566C – Los Angeles County Superior Court

LA-CE-44-C

Decision Date: June 12, 2018

Decision Type: PERB Decision

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Perc Vol: 43
Perc Index: 1

Decision Headnotes

100.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; OPERATION OF EERA, DILLS (SEERA), HEERA
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.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

The Board must attempt to harmonize, when possible, the various statutes under its jurisdiction.

101.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES
101.01000 – In General

The Board does not have authority to enforce article 5 of the Trial Court Act.

104.00000 – PERB: OPERATION, JURISDICTION, AUTHORITY; STATUTORY AUTHORITY OF BOARD
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.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
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.

400.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.

401.00000 – EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS
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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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.

501.00000 – EMPLOYER DISCRIMINATION; DISCRIMINATION
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.

504.00000 – EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS
504.14000 – Other/In General

Direct evidence is not necessarily stronger or more persuasive than circumstantial evidence.

505.00000 – EMPLOYER DISCRIMINATION; DEFENSES
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.

1107.00000 – CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD
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.

1407.00000 – GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION
1407.01000 – General Principles

Statutes must be interpreted to avoid giving effect to drafting errors.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.

1503.00000 – MISCELLANEOUS ISSUES; REGULATIONS
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.