Decision 2855E – The Accelerated Schools

California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB considers federal precedent only for its potential persuasive value. (Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10.) (p. 21, fn. 13.)

To establish a prima facie case of retaliation, a charging party has the burden to prove, by a preponderance of the evidence, that: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more of the employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party meets its burden to prove each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the exact same action even absent protected activity. (Ibid.) This affirmative defense is most typically available when, even though the charging party has proven that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. (Id. at pp. 15-16.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) An employer’s affirmative defense naturally overlaps with the nexus question. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, p. 21.) (pp. 9-10.)

PERB considers all facts and circumstances relevant to motivation. The following factors are the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) Timing of protected activity in relation to an adverse action is not typically sufficient, by itself, to prove discrimination. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 45-46.) (p. 11.)

An employer’s failure to provide an exclusive representative with adequate notice and an opportunity to bargain is a per se violation of the duty to bargain in good faith if the decision itself falls within the scope of representation, or if the decision has reasonably foreseeable effects on terms or conditions of employment. (Regents of the University of California (2021) PERB Decision No. 2783-H, p. 18; Trustees of the California State University (2012) PERB Decision No. 2287-H, p. 20.) In the former instance PERB refers to the employer as having a “decision bargaining obligation,” while in the latter case the employer has an “effects bargaining obligation.” (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (pp. 13-14.)

Although an employer engaged in effects negotiations need not bargain over the policy reasons for its decision, it cannot refuse to bargain over alternatives, as those alternatives fundamentally impact the employment effects at issue. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 51 (Oxnard); County of Santa Clara (2021) PERB Decision No. 2799-M, p. 27; Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Indeed, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Oxnard, supra, PERB Decision No. 2803, p. 52; Santa Clara, supra, PERB Decision No. 2799, p. 27.) (p. 14, fn. 8.)

Union had a colorable argument that charter school transferred out of the unit certain Health Service Coordinator duties, thereby requiring decision bargaining. (Alum Rock Union Elementary School District (1983) PERB Decision No. 322, pp. 10-12 [an employer must engage in decision bargaining if creation or abolition of classifications involves transfer of traditional bargaining unit duties without fundamental changes].) However, weighing the evidence and drawing reasonable inferences, PERB found that in creating the Registered Nurse (RN) job description, the charter school supplemented and upgraded the former Coordinator duties to such a degree that even the allegedly transferred duties became significantly higher in level than they had been as Coordinator duties. (See County of Santa Clara (2019) PERB Decision No. 2680-M, p. 11 [employer had no decision bargaining obligation when it upgraded its level of protecting the public by replacing a bargaining unit security guard with a non-unit deputy sheriff].) Given there was no dispute that only an RN could provide the desired level of service, nor any dispute that RNs fall outside the bargaining unit, the charter school had an effects bargaining obligation rather than a decision bargaining obligation. (pp. 15-16.)

An employer is privileged to implement its changes before completing effects negotiations based on Compton Community College District (1989) PERB Decision No. 720 (Compton) if: (1) implementation date is based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) employer negotiates in good faith prior to and after implementation]. (Id., pp. 14-15.) PERB clarified that its decision does not preclude an employer from asserting a Compton defense, including in circumstances where the Education Code sets a deadline by which layoffs must occur. (p. 16, fn. 10.)

Effects bargaining violations are equally harmful as decision bargaining violations, as both disrupt and destabilize employer-employee relations by creating an imbalance in the power between management and employee organizations. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 23-24.) In other words, the effects bargaining obligation is not an inferior duty. (Id. at p. 24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 13.)

Although an employer engaged in effects negotiations need not bargain over the policy reasons for its decision, it cannot refuse to bargain over alternatives, as those alternatives fundamentally impact the employment effects at issue. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 51 (Oxnard); County of Santa Clara (2021) PERB Decision No. 2799-M, p. 27; Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Indeed, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Oxnard, supra, PERB Decision No. 2803, p. 52; Santa Clara, supra, PERB Decision No. 2799, p. 27.) (p. 14, fn. 8.)

An employer is privileged to implement its changes before completing effects negotiations based on Compton Community College District (1989) PERB Decision No. 720 (Compton) if: (1) implementation date is based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) employer negotiates in good faith prior to and after implementation]. (Id., pp. 14-15.) PERB clarified that its decision does not preclude an employer from asserting a Compton defense, including in circumstances where the Education Code sets a deadline by which layoffs must occur. (p. 16, fn. 10.)

Anaheim Union High School District (1981) PERB Decision No. 177 (Anaheim) outlines the general test for assessing whether a topic falls within EERA’s scope of representation. Under Anaheim, supra, PERB Decision No. 177, a topic falls within the scope of representation if it is a statutorily-enumerated subject of bargaining or, if: (1) it is logically and reasonably related to wages, hours or other statutorily enumerated subjects of bargaining; (2) it is of such concern to management and employees that conflict is likely to occur, and the mediatory influence of collective bargaining is an appropriate means for resolving such conflict; and (3) its designation as a negotiable subject would not significantly abridge the employer's freedom to exercise those managerial prerogatives (including matters of fundamental policy) that are essential to achieving its mission. (Id. at pp. 4-5.) However, for certain recurring topics, PERB follows subject-specific standards that implement the overall scope of representation test. (City and County of San Francisco (2022) PERB Decision No. 2846-M, p. 18, fn. 15.) These standards promote consistency and predictability by obviating the need to “reinvent the wheel” and assess what types of facts are important each time a subcontracting or transfer of work case arises. (Id. at pp. 18-19, fn. 15.) Absent such consistent standards, an employer would not know in advance whether the law requires it to bargain a decision. (Ibid.) In layoff cases, the overarching rule is that an employer has a decision bargaining obligation when a layoff is inextricably linked to a bargainable subcontracting or transfer of work decision, and otherwise the employer has an effects bargaining obligation. (International Assn. of Fire Fighters, Local 188 v. Public Employment Relations Bd. (2011) 51 Cal.4th 259, 273-274 & 277; Fire Fighters Union v. City of Vallejo (1974) 12 Cal.3d 608, 621-622; City of Glendale (2020) PERB Decision No. 2694-M, p. 17, fn. 9; see also id. at p. 48.) Under Alum Rock Union Elementary School District (1983) PERB Decision No. 322, an employer must engage in decision bargaining if creation or abolition of classifications involves transfer of traditional bargaining unit duties without fundamental changes. (Id. at pp. 10-12.) (pp. 14-15.)

Summary of parent responses to a survey fell within the official records exception. (Bellflower Unified School District (2014) PERB Decision No. 2385, p. 9.) However, because the record was a summary, it was admissible only if allowable under the secondary evidence rule. The trier of fact has discretion to admit secondary evidence to prove the content of underlying writings if the secondary evidence is otherwise admissible (as here, where it was an official record), but even in that instance the trier of fact should reject secondary evidence where there is a genuine and material dispute about the content of the underlying writing (Evid. Code, § 1521, subd. (a)) or admission would be unfair (id., subd. (b)). The Evidence Code adds further restrictions on oral secondary evidence (Evid. Code, § 1523), but in this case the secondary evidence was a written summary. In this case, the union did not persuade the Board to reject the summary under Evidence Code section 1521, subdivision (a) and/or (b). (p. 6, fn. 5.)

Revisions to PERB Regulations that took effect in January 2022 direct an excepting party to file a single, integrated document—which may be in the form of a brief—while also authorizing a later reply brief focused on responding to new issues that the responding party raised in its opposition. (PERB Regs. 32300, subds. (b) and (d), 32312, subd. (c).) The Union followed a practice permitted under the former version of PERB Regulations, concurrently filing one document entitled “Exceptions to Proposed Decision” and another entitled “Brief in Support of Exceptions to Proposed Decision.” The Board has discretion whether to accept or reject either or both documents. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 14 [although the respondent’s exceptions failed to cite to legal authority as required by PERB Regulations, Board nonetheless “thoroughly analyzed the record and applicable law” to ensure that its order was correct]; Adelanto Elementary School District (2019) PERB Decision No. 2630, p. 8 [Board exercised its “discretion to address [charging party’s] exceptions despite their technical non-compliance with Regulation 32300”].) Where either of the Union’s two filings alone was sufficiently clear to allow the Board to research and resolve the matter, the Board exercised its discretion by considering only the document filed in the form of a brief. (pp. 8-9.)

To the extent an ALJ assesses credibility based upon observing a witness in the act of testifying, the Board defers to such assessments unless the record warrants overturning them. (Los Angeles Unified School District (2014) PERB Decision No. 2390, p. 12.) (p. 8.) Board found that the employer witness’s testimony was clear and precise, and that as a former employee, she had the opportunity to testify without fear of repercussion from her employer. (p. 12.)

While the ALJ should have analyzed the direct dealing allegation, the Board exercised its discretion not to resolve or remand that claim given that the Board’s remedial order already ordered the charter school to bargain with Union over the effects of its layoff decision. (City of Bellflower (2021) PERB Decision No. 2770-M, p. 10 [declining to resolve or remand a claim that would not materially alter the Board’s remedy even were it proven]; County of San Joaquin (2021) PERB Decision No. 2761-M, p. 83 [same]; City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59 [same].)

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.)

PERB uses “back pay” as a shorthand for all the forms of make-whole relief discussed in Bellflower Unified School District (2022) PERB Decision No. 2544a. (p. 17, fn. 11.)

Where an employer does not fulfill its decision bargaining obligation, PERB’s standard remedy includes rescission and make whole relief. (Lodi Unified School District (2020) PERB Decision No. 2723, p. 20; see also County of Kern & Kern County Hospital Authority (2019) PERB Decision No. 2659-M, pp. 16-19 & 26-27.) For instance, where the employer has a decision bargaining obligation because layoffs were inextricably intertwined with a decision to assign non-unit employees or subcontractors work that was substantially similar to work that bargaining unit employees traditionally performed, the standard remedy includes recission and make whole relief. (See, e.g., Regents of the University of California (Berkeley) (2018) PERB Decision No. 2610-H, pp. 35 & 94-96 [reinstating laid off youth music instructors where program continued via grant to a non-University entity that amounted to subcontracting, and holding that even a decision affecting “the merits, necessity or organization” of a service is subject to decision bargaining if it is “intertwined with a negotiable decision”]; City of Sacramento (2013) PERB Decision No. 2351-M, pp. 19-20 & 49 [ordering reinstatement where all that changed as a result of city’s decision to transfer work was the identity of the employees assigned to perform the duties, in contrast to cases in which an employer lays off employees because it is changing its level of services].) (p. 18.)

Where PERB orders reinstatement, back pay ends on the reinstatement date. The employer may then provide the union with notice and an opportunity to bargain over a new, prospective decision, meaning it may eventually effect its desired change by reaching an agreement or by imposing its last, best, and final offer after bargaining to a good faith impasse and participating in good faith in all required and agreed upon impasse procedures. Because reinstated employees are back at work throughout such negotiations, neither party must bargain from a position of unlawful advantage or disadvantage. (Bellflower Unified School District (2022) PERB Decision No. 2544a, pp. 21, 23-24 [reinstatement is a critical part of restoring the status quo, which is necessary before parties can engage in fair negotiations]; County of Merced (2020) PERB Decision No. 2740-M, pp. 21-23 [if employer fails to rescind its unlawful decision and restore the status quo, good faith decision bargaining is impossible].) (pp. 18-19.)

If an employer has no decision bargaining obligation but violates its duty to bargain effects, PERB does not necessarily direct the employer to rescind its underlying decision. (County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 28-29.) If PERB does not order reinstatement or other forms of rescission for an effects bargaining violation, full retroactive back pay may be necessary to provide adequate compensation, deterrence, and a level field for fair effects negotiations. (p. 19.)

PERB need not remedy all effects bargaining violations in the same manner. Reinstatement and retroactive back pay need not go hand in hand. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 33, fn. 16 [reinstatement and back pay are separate remedies]; County of Riverside (2013) PERB Decision No. 2336-M, p. 16 [same].) While an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. Thus, PERB endorses Transmarine-type remedies (no reinstatement and back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) when the employer’s violation arises from closing a facility or ceasing a service, but not otherwise. (See Transmarine Navigation Corp. (1968) 170 NLRB 389 (Transmarine).) PERB orders full back pay, typically without reinstatement in those instances where Transmarine does not effectuate the law’s purposes, i.e., in instances other than closing a facility or ceasing a service. Full back pay is the minimum necessary to deter effects bargaining violations and compensate for the loss of a chance to bargain at a meaningful time, which is exceedingly difficult to restore later. Withholding reinstatement, however, eases the employer’s ability to promptly rectify its failure to bargain effects without having to fully restore the status quo. (pp. 28-30.)

To remedy an effects bargaining obligation, PERB generally directs the offending employer to provide back pay from the first date that employees began to experience harm until the earliest of: (1) the date the parties reach an agreement, typically as part of complying with PERB’s effects bargaining order; (2) the date the parties reach a good faith final impasse, including exhaustion of any required or agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects negotiations in good faith. (County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28; County of Ventura (2021) PERB Decision No. 2758-M, pp. 53 & 56; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 58; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 14.) The shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. PERB overruled, in part, eight older PERB decisions in which the Board extended Transmarine beyond its proper scope. The eight overruled decisions are: South Bay Union School District Board of Trustees (1982) PERB Decision No. 207a, pp. 3-4; Solano County Community College District (1982) PERB Decision No. 219, pp. 17-18; Oakland Unified School District (1983) PERB Decision No. 326, pp. 46-47; County of Kern (1983) PERB Decision No. 337, p. 14; Mt. Diablo Unified School District (1983) PERB Decision No. 373, pp. 67-71; Mt. Diablo Unified School District (1984) PERB Decision No. 373b, pp. 25-26; Placentia Unified School District (1986) PERB Decision No. 595, p. 11 & adopting proposed decision at pp. 26- 28; and Regents of the University of California (Lawrence Livermore National Laboratory) (1997) PERB Decision No. 1221-H, p. 4 & adopting proposed decision at pp. 32-33. (pp. 19, 20, 24, 30, 31 & fn. 14.)

PERB need not remedy all effects bargaining violations in the same manner. Reinstatement and retroactive back pay need not go hand in hand. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 33, fn. 16 [reinstatement and back pay are separate remedies]; County of Riverside (2013) PERB Decision No. 2336-M, p. 16 [same].) While an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. Thus, PERB endorses Transmarine-type remedies (no reinstatement and back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) when the employer’s violation arose from closing a facility or ceasing a service, but not otherwise. (See Transmarine Navigation Corp. (1968) 170 NLRB 389 (Transmarine).) PERB orders full back pay, typically without reinstatement in those instances where Transmarine does not effectuate the law’s purposes, i.e., in instances other than closing a facility or ceasing a service. Full back pay is the minimum necessary to deter effects bargaining violations and compensate for the loss of a chance to bargain at a meaningful time, which is exceedingly difficult to restore later. Withholding reinstatement, however, eases the employer’s ability to promptly rectify its failure to bargain effects without having to fully restore the status quo. (pp. 28-30.)

If an employer has no decision bargaining obligation but violates its duty to bargain effects, PERB does not necessarily direct the employer to rescind its underlying decision. (County of Santa Clara (2021) PERB Decision No. 2799-M, pp. 28-29.) If PERB does not order reinstatement or other forms of rescission for an effects bargaining violation, full retroactive back pay may be necessary to provide adequate compensation, deterrence, and a level field for fair effects negotiations. (p. 19.) Thus, PERB adopted a middle-ground rule: while an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. (p. 28.)

To remedy an effects bargaining obligation, PERB generally directs the offending employer to provide back pay from the first date that employees began to experience harm until the earliest of: (1) the date the parties reach an agreement, typically as part of complying with PERB’s effects bargaining order; (2) the date the parties reach a good faith final impasse, including exhaustion of any required or agreed upon post-impasse procedures; or (3) the date the union fails to pursue effects negotiations in good faith. (County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28; County of Ventura (2021) PERB Decision No. 2758-M, pp. 53 & 56; Region 2 Court Interpreter Employment Relations Committee & California Superior Courts of Region 2 (2020) PERB Decision No. 2701-I, p. 58; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 14.) The shorter back pay remedy originating in Transmarine Navigation Corp. (1968) 170 NLRB 389 (where back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) effectuates the purposes of California public sector labor law only if the effects negotiations arose because of a decision to close a facility or cease offering a service. PERB overruled, in part, eight older PERB decisions in which the Board extended Transmarine beyond its proper scope. The eight overruled decisions are: South Bay Union School District Board of Trustees (1982) PERB Decision No. 207a, pp. 3-4; Solano County Community College District (1982) PERB Decision No. 219, pp. 17-18; Oakland Unified School District (1983) PERB Decision No. 326, pp. 46-47; County of Kern (1983) PERB Decision No. 337, p. 14; Mt. Diablo Unified School District (1983) PERB Decision No. 373, pp. 67-71; Mt. Diablo Unified School District (1984) PERB Decision No. 373b, pp. 25-26; Placentia Unified School District (1986) PERB Decision No. 595, p. 11 & adopting proposed decision at pp. 26- 28; and Regents of the University of California (Lawrence Livermore National Laboratory) (1997) PERB Decision No. 1221-H, p. 4 & adopting proposed decision at pp. 32-33. (pp. 19, 20, 24, 30, 31 & fn. 14.)

PERB need not remedy all effects bargaining violations in the same manner. Reinstatement and retroactive back pay need not go hand in hand. (Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 33, fn. 16 [reinstatement and back pay are separate remedies]; County of Riverside (2013) PERB Decision No. 2336-M, p. 16 [same].) While an effects remedy need not include reinstatement, it should at least include retroactive back pay in those circumstances where the employer has violated its bargaining duty but has neither closed a facility nor ceased offering a service. Thus, PERB endorses Transmarine-type remedies (no reinstatement and back pay begins when the parties start effects negotiations and continues for the length of those negotiations or for two weeks, whichever is greater) when the employer’s violation arose from closing a facility or ceasing a service, but not otherwise. (Transmarine Navigation Corp. (1968) 170 NLRB 389 (Transmarine). PERB orders full back pay, typically without reinstatement in those instances where Transmarine does not effectuate the law’s purposes, i.e., in instances other than closing a facility or ceasing a service. Full back pay is the minimum necessary to deter effects bargaining violations and compensate for the loss of a chance to bargain at a meaningful time, which is exceedingly difficult to restore later. Withholding reinstatement, however, eases the employer’s ability to promptly rectify its failure to bargain effects without having to fully restore the status quo. (pp. 28-30.)

It is proper to have a different rule for effects bargaining violations involving a facility closure or decision to cease offering a public service, since contemporaneous negotiations in those instances have the least likelihood of altering a planned layoff. In contrast, when an employer’s effects bargaining obligation does not arise from a decision to close a facility or cease offering a service, contemporaneous good faith negotiations have a higher likelihood of effecting change in the employer’s plan, particularly because a union can offer meaningful concessions and compromises that it cannot offer years after the fact in the wake of a PERB remedial order. When an employer has neither closed a facility nor ceased offering a service, a Transmarine-type remedy does not adequately deter violations, improperly saddles innocent employees with the downside risk of uncertainty, and insufficiently compensates them for having lost the opportunity to bargain at a meaningful time. (pp. 25-31.)