Decision 2966E – Pomona Unified School District

The Board summarized the interplay between superior court jurisdiction and PERB jurisdiction. Normally, PERB has exclusive initial jurisdiction whenever the conduct at issue is arguably prohibited or arguably protected under a PERB-enforced labor relations statute, even if a party chooses to challenge such conduct in court by alleging claims that do not sound in any labor relations statute. (Palomar Health v. National Nurses United (2023) 97 Cal.App.5th 1189, 1200-1204 (Palomar); see also City & County of San Francisco v. International Union of Operating Engineers, Local 39 (2007) 151 Cal.App.4th 938, 945 [courts consider the underlying conduct on which the suit is based rather than the manner in which the plaintiff has chosen to plead its case].) For instance, when an employer sues a union for leafletting, picketing, or strike activity, or an employee sues a union for its handling of a grievance or bargaining conduct, the superior court must dismiss the matter in favor of PERB’s exclusive jurisdiction, and a party that disagrees with PERB’s conclusions has only one recourse: it must exhaust PERB’s jurisdiction at every stage and then appeal PERB’s final decision as allowed under the applicable labor relations statute. (City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, 609 & 611 [exhaustion requires a “full presentation” at “all prescribed stages” of the administrative process]; Palomar, supra, 97 Cal.App.5th at pp. 1210-1212 [dismissing trespass action based on PERB’s exclusive jurisdiction, because conduct at issue was arguably prohibited and arguably protected under labor relations statute]; Curcio v. Fontana Teachers Assn., CTA/NEA (2021) 68 Cal.App.5th 924, 932-933 (Curcio) [exhausting PERB’s jurisdiction “does not mean the party may then file a lawsuit in the superior court,” as PERB jurisdiction “divests the superior courts of jurisdiction”; courts retain only limited jurisdiction to entertain appeals of PERB decisions].) Thus, the sole import of the word “initial,” as used in the phrase “exclusive initial jurisdiction,” is to reinforce that final PERB decisions regarding unfair practice charges are subject to review. (Curcio, supra, 68 Cal.App.5th at p. 932.) In most cases, a party may obtain such review by filing an extraordinary writ in the court of appeal, but for a PERB decision not to issue a complaint, there is only a much more limited right to file a writ in superior court. (Ibid.) (pp. 5-6.)

PERB’s jurisdiction is concurrent rather than exclusive if the conduct at issue arguably breached a collective bargaining agreement while also constituting arguably prohibited or arguably protected conduct under a PERB-enforced labor relations statute. (Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259 (Fresno).) Fresno specifically relied upon EERA’s provision stating that PERB “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” (Id. at p. 264, quoting Gov. Code, § 3541.5(b).) Accordingly, the court held, PERB must make the initial unfair practice determination, “even though the practice might also violate the terms of a contract,” but PERB “is not permitted to bootstrap its jurisdiction by deeming mere contractual violations to be unfair practices.” (Ibid.) (p. 7.)

Where PERB and a superior court have concurrent jurisdiction and a court stays litigation to allow PERB’s adjudication to proceed first, there remains the possibility that the stayed superior court action may proceed after the PERB matter is complete. (Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 274.) The PERB resolution may or may not impact the outcome of any such later superior court litigation, depending on the circumstances. For instance, collateral estoppel normally applies to common issues (if any) already litigated before PERB. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 10 [standard issue preclusion and claim preclusion principles apply when parties to a judicial matter have previously litigated before an administrative agency].) Moreover, even when certain elements of the collateral estoppel test are not satisfied, courts typically defer to PERB’s conclusions on labor relations issues within its expertise. (See Public Employment Relations Bd. v. Modesto City School Dist. (1983) 136 Cal.App.3d 881, 894 [noting “the importance of deferring to the expertise of PERB in appropriate circumstances”].) (p. 8.)

PERB’s modern unilateral change test frames the elements of a prima facie case as having four elements: (1) the respondent changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of bargaining; (3) the change or deviation had a generalized effect or continuing impact on negotiable subjects; and (4) the respondent reached its decision without first providing adequate advance notice of the proposed change to the charging party and bargaining in good faith over the decision, at the charging party’s request, until the parties reached an agreement or a lawful impasse. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9; cf. Regents of the University of California (Los Angeles) (2025) PERB Decision No. 2942-H, p. 17 [“[F]or much of PERB’s history, precedent consolidated the unilateral change test into just two elements”].) The same principles apply when the respondent is a union. (San Francisco County Superior Court & Region 2 Court Interpreter Employment Relations Committee (2018) PERB Decision No. 2609-I, p. 7.) (pp. 9-10.)

There are three primary means of establishing a change in, or deviation from, the status quo: (1) a change or deviation from a written agreement or written policy; (2) a change or deviation from an established, unwritten past practice; or (3) a newly created policy or application or enforcement of existing policy in a new way. (Oakland Unified School District (2023) PERB Decision No. 2875, pp. 12-13.) Deviation from the terms of a contractual release time provision satisfies at least the first of the three means of showing a change or deviation from the status quo. (See, e.g., Centinela Valley Union High School District (2014) PERB Decision No. 2378, p. 8.) (pp. 10-11.)

Deviation from contractual terms has a “generalized effect or continuing impact” if either: (1) the deviation changes a policy or employment term applicable to future situations; or (2) the respondent acts unilaterally based upon an incorrect legal interpretation or insistence on a non-existent legal right that could be relevant to future disputes. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 15-16.) In contrast, “there is no cognizable unilateral change” when a contract breach is “a one-time mistake that has no likelihood of prospectively impacting rights or obligations.” (Id. at p. 19.) (pp. 11-12.)

Past practice can be used to establish the unwritten status quo from which PERB assesses an alleged unilateral change, and it can also be used as an interpretive aid in assessing ambiguous written language. (Pittsburg Unified School District (2022) PERB Decision No. 2833, pp. 10-11 & fn. 6.) In the former instance, a past practice establishes the status quo only if it was “regular and consistent” or “historic and accepted.” (Ibid; County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) However, the inquiry is fundamentally different when analyzing the parties’ past practice to help ascertain the meaning of ambiguous contract language. (Antelope Valley Community College District (2018) PERB Decision No. 2618, p. 21.) In the latter circumstance, the past practice is but one tool for interpreting the contract, and therefore need not be as definitive as when it is defining the status quo in the absence of a contract term. (Id. at p. 22.) (pp. 10-11, fn. 4.)

Reimbursement for the cost of release time falls within the scope of representation. (See, e.g., Centinela Valley Union High School District (2014) PERB Decision No. 2378, p. 8 [repudiation of release time provision in a CBA falls squarely within PERB’s jurisdiction].) (p. 10.)

In processing an unfair practice charge, PERB’s Office of the General Counsel must determine whether the allegations state a prima facie case of any unfair practice, even if the charging party does not assert certain colorable theories. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, p. 13, fn. 12; County of Santa Clara (2022) PERB Decision No. 2820-M, p. 2, fn. 2; County of San Joaquin (2021) PERB Decision No. 2761-M, p. 19; San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23; Hartnell Community College District (2015) PERB Decision No. 2452, pp. 53-54.) (p. 9.)

When considering an appeal of the dismissal of a charge by PERB’s Office of the General Counsel (OGC), the Board assumes the charging party’s factual allegations are true and views them in the light most favorable to the charging party. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) The Board relies on the respondent’s responses only to the extent that they neither explicitly nor implicitly create a factual conflict with charging party’s allegations. (Ibid.) (p. 2, fn. 2.)

In resolving a dismissal appeal, the Board reviews the Office of the General Counsel’s (OGC) decision de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2.) As when the Board addresses exceptions to a proposed decision, it has discretion whether to resolve disputed issues that would not impact the outcome. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) In the unique circumstances of this case, the Board exercised its discretion to resolve the District’s appeal, even though it would not impact the outcome. (p. 4.)

PERB’s jurisdiction is concurrent rather than exclusive if the conduct at issue arguably breached a collective bargaining agreement while also constituting arguably prohibited or arguably protected conduct under a PERB-enforced labor relations statute. (Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259 (Fresno).) Fresno specifically relied upon EERA’s provision stating that PERB “shall not have the authority to enforce agreements between the parties, and shall not issue a complaint on any charge based on alleged violation of any agreement that would not also constitute an unfair practice under this chapter.” (Id. at p. 264, quoting Gov. Code, § 3541.5(b).) Accordingly, the court held, PERB must make the initial unfair practice determination, “even though the practice might also violate the terms of a contract,” but PERB “is not permitted to bootstrap its jurisdiction by deeming mere contractual violations to be unfair practices.” (Ibid.) (p. 7.)

Where PERB and a superior court have concurrent jurisdiction and a court stays litigation to allow PERB’s adjudication to proceed first, there remains the possibility that the stayed superior court action may proceed after the PERB matter is complete. (Fresno Unified School Dist. v. National Education Assn. (1981) 125 Cal.App.3d 259, 274.) The PERB resolution may or may not impact the outcome of any such later superior court litigation, depending on the circumstances. For instance, collateral estoppel normally applies to common issues (if any) already litigated before PERB. (See Noble v. Draper (2008) 160 Cal.App.4th 1, 10 [standard issue preclusion and claim preclusion principles apply when parties to a judicial matter have previously litigated before an administrative agency].) Moreover, even when certain elements of the collateral estoppel test are not satisfied, courts typically defer to PERB’s conclusions on labor relations issues within its expertise. (See Public Employment Relations Bd. v. Modesto City School Dist. (1983) 136 Cal.App.3d 881, 894 [noting the importance of deferring to PERB’s expertise in appropriate circumstances].) (p. 8.)