| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 3054E |
Alliance College-Ready Public Schools
1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief
Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)
Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1203.01000: REMEDIES FOR UNFAIR PRACTICES; BARGAINING ORDERS; REMEDIES AGAINST EMPLOYERS; In General
Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)
Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Observing the fact of Alliance’s unlawful technical refusals to bargain in prior cases, the Board found Alliance’s conduct in this case particularly egregious because its statutory obligation to recognize and bargain with UTLA as the exclusive representative of bargaining units at Burton Tech and Gertz/Merkin had been long settled. Yet, as the tail end of the first round of bargaining ultimately revealed, after the parties painstakingly negotiated terms and settled on TAs, Alliance continued to delay, obfuscate, and engage in gamesmanship. For these reasons, the Board exercised its discretion to craft a remedy appropriate to the harms in this case. Those included customary remedies for bad faith bargaining, namely, an order to: cease and desist the unlawful conduct, post a notice of the violation, bargain with UTLA in accordance with a prescribed schedule, and make employees whole for any losses suffered as a result of the violation. (Imperial Irrigation District (2023) PERB Decision No. 2861-M, pp. 64-68; City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10; see also Tri-Fanucchi Farms v. Agricultural Labor Relations Bd. (2017) 3 Cal.5th 1161, 1168 & 1171 [Board’s remedial powers are “necessarily broad” and it holds discretion to impose make-whole relief on a case-by-case basis].)
Make-whole relief included the monetary difference for any harms resulting from amounts bargaining unit employees would have earned or received under the TAs less amounts they earn under the current status quo, in addition to reimbursement for UTLA’s bargaining costs, resource diversion, or waste of resources resulting in material part from Alliance’s violations. (Tri-Fanucchi Farms v. Agricultural Labor Relations Bd., supra, 3 Cal.5th 1161, 1171 [make-whole relief appropriate for employees impacted by bad faith bargaining, based on consideration of “previous interactions between the employer and the union” and harm done to employees].) Backpay (if any) would commence from the date the tentative agreements would have taken effect, January 1, 2025. Appropriate make-whole relief here also included ordering Alliance to restore the status quo by placing Articles 1 through 24 of the Burton Tech TA and Gertz/Merkin TAs back on the table, at UTLA’s request. (City of San Gabriel (2020) PERB Decision No. 2751-M, p. 32; City of Palo Alto (2018) PERB Decision No. 2664-M, p. 5.) These remedies were distinct from imposing contractual terms on parties, or from ordering a bargaining party to make a proposal that it never previously offered. (George Arakelian Farms, Inc. v. Agricultural Labor Relations Bd. (1989) 49 Cal.3d 1279, 1286, fn. 3; City of San Gabriel, supra, pp. 32-33; City of Palo Alto, supra, p. 3.) And these remedies were needed, in combination, to restore UTLA’s bargaining position to where it would have been absent Alliance’s bad faith bargaining violations, return the parties to bargaining from the parity model that was the defining feature of the TAs, and create a level playing field for future bargaining. (pp. 45-48) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses
Board rejected Alliance’s argument that UTLA’s execution of the Interim MOUs estopped UTLA from alleging that Alliance failed to bargain in good faith. Alliance argued that since UTLA received the benefit of the Interim MOUs, it could not dispute Alliance’s good faith in bargaining up to and including July 31, 2025, the date the parties executed the Interim MOUs. The gravamen of UTLA’s bad faith bargaining allegations concerned Alliance’s refusal to ratify the TAs, first on July 10, 2025, and next on September 10, 2025, and its subsequent conduct. Even if the recitals in the Interim MOUs could have bound UTLA as to conduct through July 31, 2025, nothing in the recitals came close to approaching a waiver of UTLA’s right to challenge Alliance’s conduct after that date. (Modoc County Office of Education (2019) PERB Decision No. 2684, p. 11 [“waiver of statutory rights must be ‘clear and unmistakable,’ and the evidence must demonstrate an ‘intentional relinquishment’ of a given right”].) There was ample evidence of Alliance’s bad faith post-dating the Interim MOUs to find that it violated its statutory obligations under EERA. (p. 42) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
606.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; In General
Board rejected Alliance’s false dichotomy between a party’s conduct during bargaining and a party’s conduct during the TA ratification process. Good faith bargaining demands that the entire course of parties’ bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. (City of San Ramon (2018) PERB Decision No. 2571-M, pp. 7; City of San Jose (2013) PERB Decision No. 2341-M, pp. 22-23; cf. San Bernardino County Superintendent of Schools (2024) PERB Decision No. 2934, pp. 15-16 [in evaluating a claimed failure to participate in good faith in impasse resolution procedures, PERB applies the same per se and totality of conduct tests that govern bad faith bargaining claims] and Regents of the University of California (2026) PERB Decision No. 3010-H, pp. 5-8 [same].) Alliance could not separate its bargaining for a first contract from ratification of that contract. (pp. 41-42) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
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 circumstances, multiple indicators established that Alliance bargained in bad faith, including misrepresenting facts, employing evasive and dilatory tactics, canceling bargaining dates, failing to prepare adequately for negotiations, failing to take one’s bargaining obligation seriously, engaging in regressive bargaining. Alliance’s per se violations served as additional indicators of bad faith bargaining. The Board also considered essential the context in which the bad faith bargaining occurred, i.e., first-contract bargaining. In that context, PERB closely scrutinizes bargaining behavior because bad faith bargaining conduct during negotiations for an initial contract typically has a more deleterious effect on employee support for a nascent union than it would in a well-established collective bargaining relationship. (Gompers Preparatory Academy (2020) PERB Order No. Ad-481, pp. 5-8.) Alliance’s multiple bad faith acts were amplified in these circumstances. (pp. 31-36) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations
For PERB to consider conduct as a per se violation, the conduct must either appear in the complaint or satisfy the unalleged violation doctrine; in contrast, these principles do not apply to a claim of bad faith under the totality of the conduct, as the complaint need not allege all bad faith indicia the evidence may support (and the answer need not allege all countervailing factors). (City of Davis (2018) PERB Decision No. 2582-M, pp. 10-17.) (p. 31, fn. 13) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
605.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Other
Supposals—typically “what-if” ideas that a negotiator puts forward to test the waters, while acknowledging that the negotiator does not currently have authority and would need to obtain authority from the principal—are not inherently lawful or unlawful; their legality depends on whether they are part of a tactic that constitutes either per se bad faith bargaining or constitutes an indicator of bad faith under the totality test. The facts here presented the most extreme possible use of supposals: Alliance chose to bargain using supposals only, with no proposals. That was very different from the more typical approach in which a party has already made actual proposals but, seeing no agreement, uses a supposal discussion to learn what types of solutions are worth considering and what issues to raise with the party’s principal. Alliance’s non-standard use of supposals amounted to a refusal to make proposals, which was a fully independent, alternative ground for finding that its conduct constituted a per se violation. (pp. 17, 28-29) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain
A party’s steadfast refusal to meet and negotiate is a per se failure to bargain in good faith. (City and County of San Francisco (2023) PERB Decision No. 2858-M, p. 12; City of Glendale (2020) PERB Decision No. 2694-M, pp. 64-65 [finding that city’s attempt to “keep stalling” negotiations was an outright refusal to bargain]; Children of Promise Preparatory Academy (2018) PERB Decision No. 2558, p. 26 [initial refusal to bargain was a per se violation of the duty to bargain].) Board found that Alliance engaged in per se bad faith bargaining when it disavowed bargaining dates to which it agreed in interim MOUs and failed to respond to UTLA’s multiple requests for bargaining dates. (pp. 27-28) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
605.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Other
A refusal to offer some explanation or substantiation for one’s position, where such information exists and has been requested, constitutes both an outright refusal to bargain and an indicator of bad faith under the totality of conduct test. (See County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29 [noting that such conduct can amount to outright refusal to bargain]; see also City of Davis (2018) PERB Decision No. 2582-M, p. 19 [if “an argument is important enough to present in the give and take of bargaining, it is important enough to require some sort of proof of its accuracy,” internal quotation marks and citation omitted]; County of Tulare (2015) PERB Decision No. 2461-M, adopting proposed decision at p. 9 [“The obligation to bargain in good faith requires the parties to explain the reasons for a particular bargaining position with sufficient detail to permit the negotiating process to proceed on the basis of mutual understanding” (internal quotation marks and citation omitted)]; City of San Jose (2013) PERB Decision No. 2341-M, p. 42 [allegation that employer refused to use substantive monetary figures when discussing its need for concessions indicated bad faith].) Board found that Alliance committed a per se violation of the duty to bargain in good faith when it repeatedly refused to provide an explanation for its governing board’s two-time rejection of tentative agreements, despite UTLA’s continued efforts to understand Alliance’s negotiation position. (pp. 24-26, 39) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board expressly rejected Alliance’s assertion that UTLA waived any claim that Alliance committed a per se bargaining violation. UTLA argued both bad faith bargaining theories in its post-hearing brief. Although UTLA did not use the term “per se” violation, its supporting points centered on the per se violations and its requested remedy was consistent with a per se theory. (City of Montebello (2016) PERB Decision No. 2491-M, pp. 8-10.) (p. 24, fn. 10) more or view all topics or full text. |
08/28/26 | ||
| 3054E |
Alliance College-Ready Public Schools
1105.06000: CASE PROCESSING PROCEDURES; EVIDENCE; Hearsay
While one set of UTLA’s bargaining notes fell under the business records exception to the hearsay rule (Evid. Code, § 1271; PERB Reg. 32176 [PERB Regulations are codified at Cal. Code Regs., tit. 8, § 31001 et seq.]; Regents of the University of California (2021) PERB Decision No. 2783-H, p. 16, fn. 5; Contra Costa County Fire Protection District (2019) PERB Decision No. 2632-M, p. 7, fn. 7), no recognized exception applied to another set of bargaining notes, as neither the note-taker nor any other qualified witness testified as to how the notes were prepared (Evid. Code, § 1271(c)). However, since a witness testified that the notes were accurate, that corroboration was sufficient for a factual finding. (PERB Reg. 32176.) (p. 19, fn. 9) more or view all topics or full text. |
08/28/26 | ||
| 3053E |
California School Employees Association and its Chapter 827 (Blake)
800.04000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Scope of Duty; Internal Union Affairs
As contemplated in San Francisco Classroom Teachers Association, CTA/NEA (Chestangue) (1985) PERB Decision No. 544, and (Berkeley Federation of Teachers, Local 1078, AFL-CIO (Moore) (1988) PERB Decision No. 658, adopting warning letter, p. 3, the union lawfully determined that representation at Skelly hearings would be provided by the organization as a benefit of membership, consistent with PERB precedent allowing unions to provide membership-only benefits when they do not possess exclusive control over the process. (pp. 8-9.) In so doing, CSEA did not deprive Blake of access to a Skelly hearing nor any other due process protections that the employer, Amador County Office of Education (Amador COE), was obliged to provide. Indeed, Amador COE remained responsible for providing due process regardless of the union’s role. (pp. 8-9.) more or view all topics or full text. |
51 | 62 | 08/26/26 |
| 3053E |
California School Employees Association and its Chapter 827 (Blake)
800.02000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Grievance Handling/Contract Administration
As contemplated in San Francisco Classroom Teachers Association, CTA/NEA (Chestangue) (1985) PERB Decision No. 544, and (Berkeley Federation of Teachers, Local 1078, AFL-CIO (Moore) (1988) PERB Decision No. 658, adopting warning letter, p. 3, the union lawfully determined that representation at Skelly hearings would be provided by the organization as a benefit of membership, consistent with PERB precedent allowing unions to provide membership-only benefits when they do not possess exclusive control over the process. (pp. 8-9.) In so doing, CSEA did not deprive Blake of access to a Skelly hearing nor any other due process protections that the employer, Amador County Office of Education (Amador COE), was obliged to provide. Indeed, Amador COE remained responsible for providing due process regardless of the union’s role. (pp. 8-9.) more or view all topics or full text. |
51 | 62 | 08/26/26 |
| 3053E |
California School Employees Association and its Chapter 827 (Blake)
800.04000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Scope of Duty; Internal Union Affairs
An exclusive representative does not owe a duty of fair representation to a bargaining unit member unless the representative possesses the exclusive means by which such member can vindicate an individual right. Here, the union did not have exclusive control over the disciplinary process because Charging Party’s right to a pre-deprivation hearing, and to pre-disciplinary due process, exist separate and apart from the CBA or CSEA’s obligations as the exclusive representative. Neither union representatives nor the CBA itself waived or diminished Blake’s right to participate in pre-disciplinary processes. (pp. 8-9.) more or view all topics or full text. |
51 | 62 | 08/26/26 |
| 3053E |
California School Employees Association and its Chapter 827 (Blake)
800.02000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; Grievance Handling/Contract Administration
An exclusive representative does not owe a duty of fair representation to a bargaining unit member unless the representative possesses the exclusive means by which such member can vindicate an individual right. Here, the union did not have exclusive control over the disciplinary process because Charging Party’s right to a pre-deprivation hearing, and to pre-disciplinary due process, exist separate and apart from the CBA or CSEA’s obligations as the exclusive representative. Neither union representatives nor the CBA itself waived or diminished Blake’s right to participate in pre-disciplinary processes. (pp. 8-9.) more or view all topics or full text. |
51 | 62 | 08/26/26 |
| 3053E |
California School Employees Association and its Chapter 827 (Blake)
800.01000: UNION UNFAIR PRACTICES; DUTY OF FAIR REPRESENTATION; In General; Prima Facie Case
An exclusive representative does not owe a duty of fair representation to a bargaining unit member unless the representative possesses the exclusive means by which such member can vindicate an individual right. Here, the union did not have exclusive control over the disciplinary process because Charging Party’s right to a pre-deprivation hearing, and to pre-disciplinary due process, exist separate and apart from the CBA or CSEA’s obligations as the exclusive representative. Neither union representatives nor the CBA itself waived or diminished Blake’s right to participate in pre-disciplinary processes. (pp. 8-9.) more or view all topics or full text. |
51 | 62 | 08/26/26 |
| 3048M |
City of Novato
1103.02000: CASE PROCESSING PROCEDURES; COMPLAINT; Issuance of Complaint
In resolving an appeal from a dismissal, the Board reviews OGC’s determinations de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2 (San Francisco).) At the pre-complaint stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven, would state a prima facie case. (Ibid., citing County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) The Board assumes that charging party’s factual allegations are true and views them in the light most favorable to the charging party. (San Francisco, supra, p. 2; Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. (San Francisco, supra, p. 2; Cabrillo I, supra, p. 8.) If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), OGC should issue a complaint. (San Francisco, supra, pp. 2-3; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298 M, p. 13.) Furthermore, a complaint must ordinarily issue when there are contested, colorable legal theories. (San Francisco, supra, p. 3; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13.) In contrast, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (San Francisco, supra, p. 3; Cabrillo I, supra, PERB Decision No. 2453, p. 9.) (pp. 2-3.) more or view all topics or full text. |
51 | 56 | 08/12/26 |
| 3048M |
City of Novato
1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal
In resolving an appeal from a dismissal, the Board reviews OGC’s determinations de novo. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 2 (San Francisco).) At the pre-complaint stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven, would state a prima facie case. (Ibid., citing County of Santa Clara (2013) PERB Decision No. 2321-M, p. 13, fn. 8.) The Board assumes that charging party’s factual allegations are true and views them in the light most favorable to the charging party. (San Francisco, supra, p. 2; Cabrillo Community College District (2015) PERB Decision No. 2453, p. 8 (Cabrillo I); Cabrillo Community College District (2019) PERB Decision No. 2622, p. 4 (Cabrillo II).) The Board does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. (San Francisco, supra, p. 2; Cabrillo I, supra, p. 8.) If there are one or more contested, outcome-determinative facts (or mixed questions of law and fact), OGC should issue a complaint. (San Francisco, supra, pp. 2-3; Salinas Valley Memorial Healthcare System (2012) PERB Decision No. 2298 M, p. 13.) Furthermore, a complaint must ordinarily issue when there are contested, colorable legal theories. (San Francisco, supra, p. 3; County of Santa Clara, supra, PERB Decision No. 2321-M, p. 13.) In contrast, it is appropriate to dismiss an alleged violation without issuing a complaint if the parties’ filings disclose undisputed facts sufficient to defeat the claim. (San Francisco, supra, p. 3; Cabrillo I, supra, PERB Decision No. 2453, p. 9.) (pp. 2-3.) more or view all topics or full text. |
51 | 56 | 08/12/26 |
| 3048M |
City of Novato
409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity
Where charging party alleged facts amounting to a prima facie case of surveillance or the appearance of surveillance of picketing activity, the respondent can contest charging party’s factual allegations at the formal hearing. The respondent can also present evidence that it had a legitimate business need outweighing the tendency to harm protected rights, and that it narrowly tailored its conduct to that business need while limiting harm to protected rights as much as possible. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 42-48; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-23.) (pp. 6-7.) more or view all topics or full text. |
51 | 56 | 08/12/26 |
| 3048M |
City of Novato
406.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH STRIKES AND PICKETING: LOCKOUTS; In General
Neither the public nature of picketing nor the fact that the union and media outlets post images of picketers defeats an otherwise valid claim based on surveillance or the appearance thereof. PERB precedent recognizes that an employer’s surveillance or the appearance thereof tends to intimidate employees from engaging in protected activity, even when the protected activity is public facing. (See, e.g., Palomar Health (2024) PERB Decision No. 2895-M, pp. 44-45 (Palomar) [leafletting patrons at a public facility’s front entrance].) This is consistent with other decisions in which PERB has noted that employers are unique in that their control over discipline makes their conduct more likely to discourage protected activity. (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.) Also instructive is F.W. Woolworth Co. (1993) 310 NLRB 1197 (Woolworth), cited with approval in Palomar, supra, PERB Decision No. 2895-M, p. 43 and County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21. In Woolworth, even though the union had notified local media that employees would be leafletting store entrances, resulting in at least one television spot that included interviews with employees engaged in leafletting, the National Labor Relations Board found the employer liable for unlawfully photographing and video recording the leafletting. (Woolworth, supra, 310 NLRB 1197-1198 [affording little weight to the fact that the union chose to publicize its protected activities]; see also National Steel and Shipbuilding Co. v. National Labor Relations Bd. (D.C. Cir. 1998) 156 F.3d 1268, 1272 [upholding surveillance violation despite fact that union invited local media to attend rally]; John Ascuaga’s Nugget (1990) 298 NLRB 524, 554 fn. 105 [fact that media reporters and photographers were covering an event did not detract from conclusion that surveillance by employer tended to chill protected activity].) (pp. 8-9.) more or view all topics or full text. |
51 | 56 | 08/12/26 |
| 3048M |
City of Novato
403.02000: EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE; Taking Photographs or Motion Pictures
The appearance of surveillance by an employer’s agent is sufficient to establish a prima facie interference case. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 47-48; County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 21-22.) (pp. 6-7.) more or view all topics or full text. |
51 | 56 | 08/12/26 |
| 3048M |
City of Novato
403.02000: EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE; Taking Photographs or Motion Pictures
Surveillance of protected activity, as well as the appearance of such surveillance, constitutes conduct that tends to chill the exercise of protected rights. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 43-48 (Palomar); County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21 (San Bernardino).) Accordingly, a charging party pleads a valid prima facie case of interference by alleging that an employer’s agent has gone beyond merely observing open, public protected activity near the employer’s property and instead has: (a) photographed, video recorded, or engaged in other recordkeeping of protected activities, or (b) created the appearance of such conduct. (Palomar, supra, pp. 43-48; San Bernardino, supra, pp. 20-21.) (p. 6.) more or view all topics or full text. |
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| 3048M |
City of Novato
403.01000: EMPLOYER INTERFERENCE; RESTRAINT, COERCION; SURVEILLANCE; In General; Unlawful Surveillance
Surveillance of protected activity, as well as the appearance of such surveillance, constitutes conduct that tends to chill the exercise of protected rights. (Palomar Health (2024) PERB Decision No. 2895-M, pp. 43-48 (Palomar); County of San Bernardino (2018) PERB Decision No. 2556-M, pp. 20-21 (San Bernardino).) Accordingly, a charging party pleads a valid prima facie case of interference by alleging that an employer’s agent has gone beyond merely observing open, public protected activity near the employer’s property and instead has: (a) photographed, video recorded, or engaged in other recordkeeping of protected activities, or (b) created the appearance of such conduct. (Palomar, supra, pp. 43-48; San Bernardino, supra, pp. 20-21.) (p. 6.) more or view all topics or full text. |
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| 3048M |
City of Novato
400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
To establish a prima facie interference case, the facts must show that a respondent’s conduct tends to or does result in some harm to protected rights. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36 (San Diego).) A charging party need not show that the respondent acted because of an unlawful motive. (Claremont Unified School District (2019) PERB Decision No. 2654, p. 20.) If a charging party union or employee establishes a prima facie interference case, the burden shifts to the employer. (San Diego, supra, PERB Decision No. 2747 M, p. 36.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the employer may attempt to justify its actions based on operational necessity. (Ibid.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Id. at pp. 36-37, fn. 19.) (pp. 5-6.) more or view all topics or full text. |
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