Decision 2888S – State of California (California Correctional Health Care Services)


Decision Date: February 8, 2024

Decision Type: PERB Decision

Description:  The complaint alleged that California Correctional Health Care Services (CCHCS) violated the Dills Act by: (1) denying a request for union representation from an employee, Sean Kane, during a meeting between Kane and his supervisor; and (2) terminating Kane in retaliation for protected activities, including his work on behalf of his union. While the parties litigated at PERB, Kane appealed his dismissal to the State Personnel Board (SPB), which found that Kane engaged in misconduct but directed CCHCS to reduce Kane’s discipline to a one-month suspension. After SPB’s decision became final, a PERB ALJ found that CCHCS unlawfully denied Kane’s request for union representation and terminated him in retaliation for protected activities. The ALJ partially agreed with CCHCS on its affirmative defense, finding that it would have suspended Kane for one month based on his proven misconduct, absent his protected activities. The ALJ therefore matched SPB’s remedy, ordering CCHCS to reduce Kane’s penalty to a one‑month suspension. In their exceptions, both parties asked the Board to rely on certain parts of SPB’s decision.

Disposition:  The Board explained that when PERB resolves a Dills Act discrimination charge after SPB has already resolved whether the state had adequate cause to issue discipline: (1) claim preclusion does not apply; and (2) issue preclusion can apply as to certain issues that are common to both cases, but SPB’s decision does not necessarily control either the ultimate retaliation issue before PERB, or related remedial issues. The Board then applied PERB’s retaliation framework to the record (including those SPB findings meriting preclusive effect) and found no sufficient basis to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. The Board therefore remanded the matter for mediation and, absent a settlement, for further proceedings to determine what level of discipline CCHCS would have imposed absent Kane’s protected activities. Finally, a two-member Board majority found that CCHCS did not unlawfully deny Kane’s request for union representation, while one member wrote separately in favor of affirming the ALJ’s decision on that claim.

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Perc Vol: 48
Perc Index: 124

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