Keyword Search by Headnotes

DecisionDescriptionPERC Vol.PERC IndexDate
2758M County of Ventura
1402.01000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
Since the party asserting waiver bears the burden of proving it as an affirmative defense, PERB resolves any doubts against that party. (p. 48.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
In certain cases involving back pay awards, an appropriate make-whole remedy may include an order requiring compensation for increased tax liability resulting from a lump sum back pay award that covers more than one calendar year. (See, e.g., Don Chavas, LLC (2014) 361 NLRB 101, 102; Economy v. Sutter East Bay Hospitals (2019) 31 Cal.App.5th 1147, 1163-1164; Clemens v. CenturyLink, Inc. (9th Cir. 2017) 874 F.3d 1113, 1117.) Although the case before the Board did not present facts implicating so-called “tax neutralization,” it noted that PERB’s broad statutory authority to investigate and remedy violations of the MMBA empowers it to order this relief where appropriate. (p. 56, fn. 23.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1206.01000: REMEDIES FOR UNFAIR PRACTICES; MODIFICATION OF PRIOR REMEDY; In General
The Board modified the ALJ’s proposed make-whole remedy that directed the County to “compensate Association unit members for any financial losses incurred as a direct result [of] its decision to implement its constructive receipt income tax withholdings decision before completing negotiations over the negotiable effects of that decision.” Because the Board had no reason to determine whether the County was right or wrong in its interpretation of the constructive receipt doctrine, and because unit members were able to obtain at least partial refunds of excess withholdings through a tax expert’s efforts, the Board did not order the County to make employees whole for their additional tax liability or for harms caused when employees sought to reduce their taxes by redeeming accrued leave. Instead, the Board found that reimbursement of ancillary fees incurred was sufficient to make unit members whole. (pp. 53-55.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
When an employer’s violation involved a failure to bargain effects, make-whole relief runs from the date any impacted employee began to experience harm until the earliest of: (1) the date the parties reach an agreement as part of complying with our effects bargaining order; (2) the date the parties have reached impasse and exhausted any post-impasse procedures that may be required or agreed upon; or (3) failure by the union to bargain in good faith. (p. 53.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
The Board found that the County failed to meet any of the elements of the Compton Community College District (1989) PERB Decision No. 720 test, under which an employer is privileged to implement a decision on a non-mandatory topic prior to exhausting its effects bargaining obligation where: (1) the 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) the employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiates in good faith prior to implementation and continues to negotiate afterwards as to the subjects that were not resolved by virtue of implementation. The third element of the test includes an employer’s pre- and post-notice bargaining conduct. (pp. 49-50.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand
A valid demand to bargain does not require a formulaic phrase, but may take any form that conveys the exclusive representative’s desire to meet and confer or negotiate about a matter within the scope of representation. (p. 47, fn. 19.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1402.01000: GENERAL LEGAL PRINCIPLES; WAIVER; In General
The County’s waiver argument was undercut by its own misrepresentations about its tax withholding plan. The Association could not have intentionally relinquished its interest where such relinquishment was induced by the County’s misstatement. (p. 46, fn. 17.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand
The County’s September 2017 letter did not give the Association sufficiently clear notice of the County’s decision to begin withholding taxes based on constructive receipt income such that the Association was obligated to demand effects bargaining. The Association needed more information before it could make a viable demand to bargain the effects of the decision, including: when the County planned to implement the tax withholding; which unit members would be subject to withholding; how the County would calculate the withholding to avoid double taxation and which pay rates it would use to determine employees’ tax liability under the constructive receipt rule; and whether the County would withhold taxes on leave accrued in 2017, on all accrued leave (including that from previous years), or on leave accrued going forward after a certain date. Most importantly, the letter contravened what the County’s Labor Relations Manager had represented to the Association during negotiations in March and April 2017, thereby requiring the Association to figure out which set of representations were correct. Thus, the September 2017 letter did not, by itself, clearly inform the Association of the County’s planned change. The requisite notice came instead from the County’s November 2017 letter, which contained the specifics of how the County intended to implement its tax plan. (pp. 44-45.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
A union may waive its right to bargain the reasonably foreseeable effects of an employer’s decision if it fails to demand to bargain such effects. “An employer raising a waiver defense must establish that: (1) it provided the employee organization clear and unequivocal notice that it would act on a matter, and (2) the employee organization clearly, unmistakably and intentionally relinquished its right to meet and confer in good faith.” (City of Palo Alto (2017) PERB Decision No. 2388a-M, p. 38.) To establish that a union waived its right to bargain by inaction, “the evidence must demonstrate an intentional relinquishment of the union’s right to bargain.” (Santee Elementary School District (2006) PERB Decision No. 1822, p. 3 (Santee), citing San Francisco Community College District (1979) PERB Decision No. 105.) To trigger a union’s obligation to demand bargaining, notice of a proposed change must “clearly inform[] the employee organization of the nature and scope of the proposed change.” (County of Santa Clara (2013) PERB Decision No. 2321-M, p. 30, citing Santee, supra, PERB Decision No. 1822.) Applying these standards, the Board found that the County did not provide the Association with clear notice of its decision to implement its tax withholding decision until November 2017. Although the County’s September 2017 letter announced that “the constructively received income will be included in your taxable wages, and taxes will be calculated and withheld,” it lacked critical details that would have put the Association on notice of the County’s intended change. Most importantly, the letter contravened what the County’s Labor Relations Manager had represented to the Association during negotiations in March and April 2017, thereby requiring the Association to figure out which set of representations were correct. Thus, the September 2017 letter did not, by itself, clearly inform the Association of the County’s planned change. The requisite notice came instead from the County’s November 2017 letter, which contained the specifics of how the County intended to implement its tax plan. (pp. 43-45.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
An employer must provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would for a decision involving a mandatory subject of bargaining. Once the union receives proper advance notice, it must demand to bargain effects or risk waiving its right to do so. The union’s demand must clearly communicate its desire to bargain over the effects of the decision, as opposed to the decision itself, and identify the matters within the scope of representation that it proposes to bargain. A union is not required to demand to bargain effects where an employer fails to provide notice prior to implementing the change. (p. 42.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand
An employer must provide notice and a meaningful opportunity to bargain over the reasonably foreseeable effects of its decision before implementation, just as it would for a decision involving a mandatory subject of bargaining. Once the union receives proper advance notice, it must demand to bargain effects or risk waiving its right to do so. The union’s demand must clearly communicate its desire to bargain over the effects of the decision, as opposed to the decision itself, and identify the matters within the scope of representation that it proposes to bargain. A union is not required to demand to bargain effects where an employer fails to provide notice prior to implementing the change. (p. 42.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.20000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Exploding Offers
Making a time-limited, i.e., exploding offer without a legitimate basis is an indicator of bad faith. Here, the County made an offer with an expiration date only three days later, at which point the County did, in fact, withdraw its offer. While County’s argument that its exposure to tax liability would increase as the year progressed was a reasonable basis for not leaving its offer on the table throughout 2017, the County did not give a clear, supportable reason for its exceedingly short, three-day deadline. Nor did it give any reason why it could not have provided a longer, more reasonable period of time for the Association to respond to its offer without materially increasing its potential tax liability. We infer from the County’s inability to justify the tight timeline that the three days was intended at least in part to pressure the Association into reaching agreement on a successor MOA, which is not a legally sufficient explanation to make an exploding offer. Although we do not preclude the possibility of circumstances under which such a short deadline may be legitimately justified, the facts here do not present us with such a situation. (pp. 37-40.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.09000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Failure to Treat Bargaining Obligation Seriously
Failing to prepare adequately for negotiations or to take one’s bargaining obligation seriously are indicators of bad faith. (pp. 36-37.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Dilatory or Evasive Tactics
Engaging in dilatory or evasive tactics is an indicator of bad faith. (p. 36.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Failure to Explain Proposal
Failing to explain a bargaining position in sufficient detail or to provide requested information supporting a bargaining position, without an adequate reason for such failure, is an indicator of bad faith. (p. 36.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.19000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Concealment/Misrepresentation
Misrepresenting facts is an indicator of bad faith. (p. 36.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Under the totality of conduct test, the Board found the following indicia of the County’s bad faith: misrepresenting facts (Rio School District (2008) PERB Decision No. 1986, p. 12); failing to explain a bargaining position in sufficient detail or to provide requested information supporting a bargaining position, without an adequate reason for such failure (City of Davis (2018) PERB Decision No. 2582-M, pp. 19-20, citing NLRB v. Truitt Mfg. Co. (1956) 351 U.S. 149, 152-153; City of San Jose (2013) PERB Decision No. 2341-M, p. 42); engaging in dilatory or evasive tactics, failing to prepare adequately for negotiations, or failing to take one’s bargaining obligation seriously (Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26; Oakland Unified School District (1983) PERB Decision No. 326, pp. 33-34); and making a time-limited, i.e., “exploding,” offer without a legitimate basis. (City of Arcadia (2019) PERB Decision No. 2648-M, p. 43.) (pp. 36-37.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
PERB will consider bargaining conduct that occurs outside the statute of limitations period if there is also challenged conduct occurring within the limitations period. Such an approach is necessary because “[a]rtificially removing from consideration any bargaining conduct older than six months for any purpose is antithetical to the ‘totality of the bargaining conduct’ analysis.” (County of San Diego (2020) PERB Decision No. 2721-M, p. 9, fn. 5, quoting Anaheim Union High School District (2015) PERB Decision No. 2434, adopting proposed decision at p. 58.) However, when none of the respondent’s conduct during the limitations period evinces bad faith, evidence from outside the limitations period cannot be used to “reviv[e] a legally defunct unfair practice charge.” (Anaheim, supra, PERB Decision No. 2434, adopting proposed decision at p. 56.) (pp. 35-36.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
1101.06000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Statutory and Equitable Tolling
To toll the statute of limitations based on lack of notice or discovery, a charging party must show that it did not have “clear and unequivocal notice” of the alleged misconduct. (Trustees of the California State University (San Marcos) (2020) PERB Decision No. 2738-H, p. 12.) Here, nothing in the record shows that the Association knew or should have known prior to September 22, 2017 that the County’s Labor Relations Manager Craig Leedham made misrepresentations at the bargaining table. During negotiations in March and April 2017, Leedham repeatedly represented that the County would only report as income and not withhold taxes on employees’ accrued leave hours. Association representatives took Leedham’s statements at face value and communicated them to their membership, recommending that unit members ratify the tentative agreement precisely because of the reassurances the bargaining team had received that the County would only report constructive receipt income. Based on Leedham’s assurances, the Association membership ratified the MOA in May 2017. The Association’s reasonable reliance was reinforced when the County did not communicate anything further about the issue for over four months. It was only upon receipt of the Auditor-Controller’s September 22, 2017 letter directly contradicting Leedham’s March and April 2017 statements that the Association first learned of the County’s misrepresentations. Because the Association could not have discovered that Leedham’s statements were inaccurate until after September 22, 2017, the statute of limitations could not have begun to run prior to that date, and the misrepresentations therefore fall within the limitations period. (pp. 34-35.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
The totality of conduct test applies to allegations of bad faith bargaining conduct that does not constitute a per se refusal to bargain. The phrases “totality of circumstances” and “totality of conduct” are interchangeable, and either phrase describes the operative test. While PERB frequently refers to bad faith bargaining under this test as “surface bargaining,” that label does not limit the scope of the relevant factors to only those involving superficial bargaining conduct. (p. 32, fn. 13.) more or view all topics or full text.
458703/23/21
2758M County of Ventura
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
In determining whether a party has violated its duty to meet and confer in good faith, PERB uses a “per se” test or a “totality of conduct” analysis, depending on the specific conduct involved. Under the totality of conduct test, the ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. A single indicator of bad faith, if egregious, can be a sufficient basis for finding that a party has failed to bargain in good faith. (pp. 32-33.) more or view all topics or full text.
458703/23/21
2783H Regents of the University of California
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request. more or view all topics or full text.
463807/26/21
2783H Regents of the University of California
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request. more or view all topics or full text.
463807/26/21
2783H Regents of the University of California
1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other
After the hearing, the Board notified the parties that the consolidated cases had been placed on the Board’s docket for decision. PERB Regulation 32320, subdivision (a)(1) allows the Board itself to “[i]ssue a decision based upon the record of hearing.” PERB Regulation 32215 allows the Board itself to direct a Board agent to “submit the record of the case to the Board itself for decision.” The University asked the Board to remand the case to the ALJ for a proposed decision, arguing that the ALJ is better suited than the Board to make credibility determinations because he observed the witnesses testify at the hearing. After considering responses from Charging Parties, the Board denied the request. more or view all topics or full text.
463807/26/21
2783H Regents of the University of California
1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
Although the unions presented no evidence that any employee suffered a loss as a result of noncompliance with the employer’s vaccination policy, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the unions will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss as a result of the vaccination policy, such as discipline, unpaid leave, and out-of-pocket payment of vaccine costs. (p. 32.) more or view all topics or full text.
463807/26/21