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DecisionDescriptionPERC Vol.PERC IndexDate
2731M City of Culver City
1402.3000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses
An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1205.7000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
A restorative order returning “the parties and affected employees to their respective positions before the unlawful conduct occurred is critical to remedying unilateral change violations, because it prevents the employer from gaining a one sided and unfair advantage in negotiations and thereby ‘forcing employees to talk the employer back to terms previously agreed to.’” [Citation.] While restoration of the status quo ante is a hallmark of most unilateral change remedies [citations], it is not appropriate here given that the parties bargained and subsequently agreed to a new memorandum of understanding (MOU) containing substantially identical schedule and meal period provisions as the expired MOU. The Board found that, by agreeing to certain provisions in the successor MOU, the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1202.2000: REMEDIES FOR UNFAIR PRACTICES; FACTORS LIMITING OR TERMINATING LIABILITY; Agreement Between. the Parties
The Board found that, by agreeing to certain provisions in the successor memorandum of understanding (MOU), the union clearly and unmistakably waived its right to bargain the change in policy concerning schedules and meal periods. Thus, once the successor MOU took effect, the employer was entitled to make the disputed changes to employees’ schedules. Though this finding did not absolve the employer of liability for its unlawful unilateral change, the Board concluded that a return to the status quo would not effectuate the purposes of the Meyers-Milias-Brown Act and accordingly adjusted that portion of the ALJ’s order. (pp. 25-26.) more or view all topics or full text.
06/10/20
2731M City of Culver City
1201.3000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest
As part of a standard unilateral change remedy, make whole relief is warranted if it is more likely than not that employees suffered a harm. Make whole relief compensates employees for the difference between what they actually earned and what they would have earned, but for the employer’s unlawful conduct. [Citation.] Beyond the practical value of such monetary relief, make whole relief also serves an important policy purpose in ensuring that employees are not punished for vindicating their rights, while also acting as a deterrent against future unlawful conduct. [Citation.] As the ALJ observed, PERB may order backpay even though its measure is imprecise. [Citations.] That was arguably the case here. The employer paid employees for all hours worked at appropriate rates. Nevertheless, harm may be quantified in a number of ways, not only increased workload or reduced pay. Here, the schedule changes resulted in employees’ workdays being extended by one hour. While the employer was authorized to implement the schedule changes during the life of the prior memorandum of understanding (MOU) and after the successor MOU took effect, for the period from November 13, 2017, when the employer implemented the schedule change, to November 27, 2017, when the City Council adopted the successor MOU, the changes were unlawful. The best measure of the value of this time would be an hour’s pay per day. However, the Board did not order such a make whole remedy as the ALJ declined to order back pay and the union did not except to the ALJ’s remedial order. (pp. 26-27.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
In this case, because the parties’ memorandum of understanding was expired at the time the employer made the decision to change employees’ schedules, the Board found that the ALJ properly analyzed the employer’s decision as a unilateral change under NLRB v. Katz (1962) 369 U.S. 736, and correctly rejected the employer’s waiver defense. Nothing in the memorandum of understanding suggested that the schedule waiver provision was intended to outlive the contract’s term. (pp. 20-21.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Because the collective bargaining agreement at the center of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) was expired when the employer implemented the shortened lunch periods, PERB has on occasion erroneously suggested that a waiver may survive post-contract expiration. However, the Board long ago impliedly overruled that facet of Marysville and it is now beyond dispute that a contractual waiver expires with the contract unless the parties have clearly and unmistakably agreed that it continues past contract expiration. PERB decisions that have relied on Marysville in the post-expiration context, such as State of California (Employment Development Department) (1998) PERB Decision No. 1247-S, are no longer good law. Here, the Board clarified any prior misapplication of Marysville and expressly reiterated that waivers do not survive beyond the terms of their contracts unless intended to do so by their own terms, a principle that the Board has silently recognized for years. The Board overruled Marysville to the extent it suggested otherwise. (pp. 18-20.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Marysville Joint Unified School District (1983) PERB Decision No. 314 arose in the context of a bilateral agreement and must be limited to that context. There is a separate and narrow line of waiver precedent relating to waivers not arising from a bilateral agreement. Under these cases, the party asserting waiver must show that the other party’s conduct was sufficiently clear to rise to the level of conscious abandonment, typically because the employer has provided proper advance notice of a proposed change and the union has failed to request to meet and confer. [Citations.] This line of cases gave no benefit to the employer here, as it did not provide advance notice to the union. (p. 18.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Despite the narrow holding of Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) as a waiver by contract defense, the Board has at times applied the case in an inconsistent manner. For instance, the Board has periodically applied Marysville not as a contract waiver defense but rather as an element necessary for a charging party to establish as part of its prima facie case for a unilateral change, effectively requiring the charging party to prove that a contract did not permit the change at issue. [Citations.] However, more modern Board decisions have returned to treating Marysville as a waiver defense. [Citations.] As part of returning to Marysville’s roots, the Board has held that an employer commits a prima facie unilateral change if it begins to enforce a contract or policy in a new way, a holding that in practice requires the employer to raise Marysville’s contractual waiver doctrine as an affirmative defense. (p. 17.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
The Board issued Marysville Joint Unified School District (1983) PERB Decision No. 314 (Marysville) the day after it issued Grossmont Union High School District (1983) PERB Decision No. 313 (Grossmont), which also dealt with waiver by contract. In Grossmont, the Board held that a union waived its right to bargain about specific changes to work schedules when it agreed to a contract that specified the work schedules. [Citation.] Grossmont helps interpret Marysville. Since the same Board decided Marysville so closely after Grossmont, it is highly unlikely the Board intended Marysville to depart from the Grossmont standard, especially as neither decision distinguishes the other as involving different considerations. (p. 16, fn. 9.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
Although Marysville Joint Unified School District (1983) PERB Decision No. 314 has sometimes been misconstrued as establishing an expansive defense that exists apart from a contractual waiver defense, its holding is notably unremarkable and does not support this construction. Marysville stands for the principle that an employer may assert a contractual waiver defense based on clear and unambiguous—sometimes referred to as “clear and unmistakable”—contract language, even where the employer has not followed such contract language in the past. (p. 15.) However, in spite of the Marysville Board’s finding that the contract language was sufficiently clear to constitute a waiver, here the Board expressed no opinion whether the contract language was in fact clear and unambiguous. (p. 15, fn. 6.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
An employer may lawfully take unilateral action on a matter within the scope of representation where the exclusive representative has waived its right to negotiate over changes to that subject. [Citations.] As waiver is an affirmative defense, the party asserting it bears the burden of proof, and any waiver of the right to bargain must be “clear and unmistakable.” [Citations.] An employer asserting a contractual waiver defense may rely on the waiver only during the term of the contract, unless the parties have explicitly agreed that it continues past contract expiration. [Citations.] Here, the ALJ correctly rejected the employer’s waiver defense on the ground that the memorandum of understanding was expired at the time the employer implemented the schedule changes. (p. 13.) more or view all topics or full text.
06/10/20
2731M City of Culver City
608.7000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession
To the extent the employer contended that its decision to make the contested schedule changes did not represent a change in policy, but simply a reversion to the parties’ memorandum of understanding, that argument is appropriately framed as an affirmative defense, rather than a negation of the change element of the union’s prima facie case of a unilateral change. (p. 12, fn. 5.) more or view all topics or full text.
06/10/20
2731M City of Culver City
603.4000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The Board found that the employer’s e-mail about impending schedule changes, which it sent directly to union members during the pendency of successor contract negotiations, unlawfully bypassed the union. The problem with the e-mail was twofold: first, it dealt with a bargainable topic while ignoring the union and instead directly and exclusively addressing employees. Second, the timing of the e-mail jeopardized the unit members’ perception of the union’s authority precisely at a time such authority was critical, as the tentative agreement had yet to be ratified. Similarly, a manager’s meeting with union-represented employees about the schedule changes prior to the conclusion of successor contract negotiations had the effect of undermining the union’s authority as the exclusive representative by suggesting that employees could communicate directly with the employer about policy changes within the scope of representation. This action hampered the union’s ability to fully meet and confer with the employer during the unfinished negotiations process. (pp. 22-23.) more or view all topics or full text.
06/10/20
2731M City of Culver City
603.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; In General
An employer’s duty to bargain in good faith requires that it provide the exclusive representative with notice and an opportunity to negotiate in good faith over matters within the scope of representation. Consistent with the principle of exclusivity, an employer may not communicate directly with employees to undermine or derogate the representative’s exclusive authority to represent unit members. [Citations.] A charging party may demonstrate that an employer has unlawfully bypassed the exclusive representative by showing that the employer dealt directly with its employees to create a new policy of general application, or to obtain a waiver or modification of existing policies applicable to those employees. [Citations.] (p. 22.) more or view all topics or full text.
06/10/20
2731M City of Culver City
602.1000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
An employer commits a per se violation of its duty to meet and confer when it fails to afford the employees’ representative reasonable advance notice and an opportunity to bargain before reaching a firm decision to establish or change a policy concerning a negotiable subject. To establish an unlawful unilateral action, the charging party must prove facts showing that: (1) the employer took action to change policy; (2) the change in policy concerns a matter within the scope of representation; (3) the action was taken without giving the exclusive representative notice or opportunity to bargain over the change; and (4) the action had a generalized effect or continuing impact on terms and conditions of employment. [Citations.] PERB has recognized three general categories of unlawful unilateral actions: (1) changes to the parties’ written agreements; (2) changes in established past practices; or (3) newly created policies, or application or enforcement of an existing policy in a new way. [Citations.] (pp. 10-11.) more or view all topics or full text.
06/10/20
2731M City of Culver City
504.14000: ; Other/In General
An employer asserting a contractual waiver cannot do so for a retaliatory motive. In such an instance, an employer’s discriminatory application of contractual language may itself give rise to a discrimination claim, and our assessment of an employer’s motivation may include whether the employer, by its assertion of contractual waiver to justify its conduct, engaged in disparate treatment or departed from established procedures or standards. (p. 20.) more or view all topics or full text.
06/10/20
2731M City of Culver City
400.1000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
The Board found that the employer unlawfully interfered with employees’ rights. To prove employer interference with protected rights, a charging party need only show that the employer has engaged in conduct that tends to or does result in at least slight harm to statutory rights. [Citation.] By communicating directly with unit employees on matters subject to bargaining before the tentative agreement was finalized, the employer interfered with the rights of unit employees to be fully represented by the union. (p. 23.) more or view all topics or full text.
06/10/20
J030E Alliance Judy Ivie Burton Technology Academy High, et al.
1311.1000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; In General
Board denied request for judicial review because the employers’ conduct in the underlying representation proceeding was unprecedented, unlikely to recur in future cases, and the factors set out in Peralta Community College District (1978) PERB Decision No. 77 established the appropriateness of the petitioned-for units. more or view all topics or full text.
10/14/20
2719Ea Alliance Judy Ivie Burton Technology Academy High, et al.
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
Parties may not relitigate legal issues under the guise of newly discovered evidence. (P. 5) more or view all topics or full text.
10/14/20
2719Ea Alliance Judy Ivie Burton Technology Academy High, et al.
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
For purposes of establishing that a Board decision contains prejudicial errors of fact warranting reconsideration, an incorrect factual finding is prejudicial only “when it is probable that the party against whom it was made would have achieved a better result but for the error.” (P. 3) more or view all topics or full text.
10/14/20
2749E Sacramento City Unified School District
1205.4000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
The Board reaffirmed that its litigation sanction standard does not apply to a make-whole award of litigation expenses incurred in an ancillary proceeding to remedy, lessen, or stave off the impacts of unfair practices. PERB orders make-whole relief irrespective of whether the harm at issue involves legal professionals who spent time and resources in ancillary litigation or non-legal staff who spent extra time or resources in bargaining, communicating with members, or other functions. (See City of Palo Alto (2019) PERB Decision No. 2664, p. 8, fn. 6 [litigation sanctions are conceptually different from reimbursement of legal expenses reasonably incurred in an ancillary proceeding as a result of an employer’s underlying conduct].) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
1205.4000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
PERB employs two alternate standards for determining whether to award legal expenses. One standard applies when PERB must determine whether to award a party legal expenses because of the opposing party’s sanctionable conduct in litigating the same case before PERB. That standard, which is akin to Rule 11 of the Federal Rules of Civil Procedure, provides that PERB should make such an award if the offending party maintained a claim, defense or motion, or engaged in another action or tactic, that was without arguable merit and pursued in bad faith. (Bellflower Unified School District (2019) PERB Order No. Ad-475a, p. 4; City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7; Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5; City of Alhambra (2009) PERB Decision No. 2036-M, p. 19; City of Alhambra (2009) PERB Decision No. 2037-M, p. 2.) A different standard applies when a party seeks to be made whole for legal expenses it reasonably incurred in a separate proceeding to remedy, lessen, or stave off the impacts of the other party’s unfair practice. The Board has not required a Rule 11-type showing in such cases and has instead treated legal expenses the same as medical expenses, lost pay, lost staff time, or any other loss. (See, e.g., Omnitrans (2009) PERB Decision No. 2030-M, p. 30; see also Palo Alto, supra, PERB Decision No. 2664-M, p. 8, fn. 6.) PERB has followed the same principles irrespective of whether the ancillary proceeding is civil or criminal. (See County of San Joaquin (Health Care Services) (2003) PERB Decision No. 1524-M, p. 3; City of San Diego (2015) PERB Decision No. 2464-M, pp. 46-47, affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
1205.1000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
The Legislature has delegated to PERB broad powers to remedy EERA violations and to take any action the Board deems necessary to effectuate the Act’s purposes. (EERA, § 3541.5, subd. (c); City of San Diego (2015) PERB Decision No. 2464-M, p. 42 (San Diego), affirmed sub nom. Boling v. Public Employment Relations Bd. (2018) 5 Cal.5th 898; Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189-190.) A “properly designed remedial order seeks a restoration of the situation as nearly as possible to that which would have obtained but for the unfair labor practice.” (Modesto City Schools (1983) PERB Decision No. 291, pp. 67-68.) An appropriate remedy therefore should make whole all injured persons or organizations for the full amount of their losses and should withhold from the wrongdoer the fruits of its violation. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13 (Pasadena).) In addition to serving restorative and compensatory functions, a Board-ordered remedy should also deter future misconduct, so long as the order is not a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 3; San Diego, supra, PERB Decision No. 2464-M, pp. 40-42; Pasadena, supra, PERB Order No. Ad-406-M, pp. 12-13.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
1108.1000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
Normally compliance proceedings to establish estimated reasonable legal expenses should involve review of sworn declarations and should not lead to protracted litigation. (City of Alhambra (2009) PERB Decision No. 2037-M, p. 4; Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, p. 8.) Moreover, compliance hearings involving legal expense reimbursement should follow general PERB principles. Thus, it is permissible to estimate appropriate damages even if, as is often the case, the exact measure of damages is uncertain. (City of Pasadena (2014) PERB Order No. Ad-406-M, p. 13.) more or view all topics or full text.
11/02/20
2749E Sacramento City Unified School District
1108.1000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General
In general, the most appropriate methodology for determining compensatory legal expenses will be a lodestar approach that focuses on hours reasonably incurred and does not automatically reduce hourly market rates for attorneys who work in a nonprofit, government agency, or in-house legal department and/or who were paid a flat salary, charged discounted rates, or never billed their client. It is permissible, but not required, to use alternative methods as a cross-check on one another to determine an appropriate fee as part of a make-whole remedy. Moreover, it is appropriate to reimburse any incidental costs, as well as pre-judgment and post-judgment interest on all amounts. more or view all topics or full text.
11/02/20