Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2622E	Cabrillo Community College District 504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices or related employment decision in response to any intervening protected activity. (p. 7.) Here the District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct or result of its investigation. (pp. 8-9.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices in response to any intervening protected activity. (p. 7.) Here the District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct of its investigation. (pp. 8-9.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General When an employer initiates an investigation into an employee’s conduct prior to any knowledge of the employee’s protected activity and follows its customary practices in the investigation, it is difficult to demonstrate pretext, absent other factors raising an inference of unlawful motivation. However, retaliation may be shown if the employer alters its investigation practices or related employment decision in response to any intervening protected activity. (p. 7.) The District began its investigation before it learned of the employee’s protected activity and the evidence shows the protected activity did not influence the conduct or result of its investigation. (pp. 8-9.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity An employee’s protected activities do not immunize the employee from otherwise legitimate employment decisions, including an employer’s workplace investigation. (p. 7.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 1100.01000: CASE PROCESSING PROCEDURES; CHARGE; In General/Prima Facie Case At the charge investigation stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (p. 4.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 1100.02000: CASE PROCESSING PROCEDURES; CHARGE; Investigation of Charge At the charge investigation stage, the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation. (p. 4.) more or view all topics or full text.	43	126	02/04/19
2622E	Cabrillo Community College District 1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal On appeal of dismissal of an unfair practice charge, the Board’s inquiry is limited to the legal sufficiency of the charging party’s allegations, i.e. whether the factual allegations, if accepted as true, would state a prima facie violation. It does not determine whether a preponderance of the evidence will ultimately establish the factual allegations as true. (p. 4.) more or view all topics or full text.	43	126	02/04/19
2652E	Contra Costa Community College District 604.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy In assessing potential privacy rights of third party students in response to information request seeking student complaints of discrimination against faculty, Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g (FERPA), and its California equivalent, do not cover complaints requested by union. (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754-755.) In any event, proving FERPA coverage provides neither a necessary nor a sufficient basis for community college district to withhold the complaints. FERPA allows disclosure by consent of a student, and student consent is typically necessary to allow a school to investigate fully the student’s complaint. Most employers properly inform complainants that if they do not consent to disclosure as needed to investigate, it may be impossible to investigate their complaints. On the other hand, even in the absence of FERPA coverage, Board must weigh complainants’ interests in having their complaints treated as confidential to the extent possible while still affording all applicable rights to accused employees and their exclusive representatives. However, a blanket policy of nondisclosure is inconsistent with an employer’s duty to provide information. more or view all topics or full text.	44	18	06/26/19
2652E	Contra Costa Community College District 604.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Confidentiality; Privacy Where a student complaint of discrimination against a faculty member employee is relevant to a union in representing the employee, it does not follow automatically that the employer must always fully disclose the entire student complaint to the union. Rather, there are two main categories of exceptions. First, a complaining student may insist on confidentiality, even knowing this may limit the school’s ability to respond. Secondly, where the student is willing to allow disclosure to permit a fair investigation, a school may still propose to the union limits on disclosure that keep complaints confidential to the extent possible while maintaining the union’s ability to represent the employee. At times, a complainant’s name may already be known, or may become quickly identifiable given the nature of the complaint. Other times, as where an instructor is accused of making explicit remarks about his or her personal life in front of an entire class, due process rights do not necessarily entitle the accused em more or view all topics or full text.	44	18	06/26/19
2652E	Contra Costa Community College District 604.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Subjects of Information A union has a right to sufficient information regarding alleged wrongdoing to enable a union representative to represent an employee in a meaningful manner during an investigatory interview, but the union does not obtain the right to an underlying written complaint until after the initial investigatory interview. more or view all topics or full text.	44	18	06/26/19
2652E	Contra Costa Community College District 604.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Extra-Contractual Forum; Extra-Contractual Disciplinary Meetings or Proceedings There is no categorical rule denying a union access to information pertaining to a mandatory subject, even when the parties are not in bargaining and the union intends to use the information to advise or represent an employee in relation to an extra-contractual issue or forum. Because discipline is within the scope of representation, information pertaining to actual or potential discipline is presumptively relevant, even if the only contemplated disciplinary forum is extra-contractual. Information pertaining to actual or potential discipline is presumptively relevant, no matter in what forum the disciplinary matter might be resolved, as union has right to information necessary or relevant to its right to represent bargaining unit employees. more or view all topics or full text.	44	18	06/26/19
2652E	Contra Costa Community College District 604.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Extra-Contractual Forum; Extra-Contractual Disciplinary Meetings or Proceedings When a union is considering whether to exercise its right to represent employees in a meeting or proceeding that may adversely affect employment status, or the union does exercise that right, an employer may not deny the union’s related information request on the basis that the meeting or proceeding is extra-contractual or that the union has no duty of fair representation, as union has right to information necessary or relevant to its right to represent bargaining unit employees. Partially overrules San Bernardino City Unified School District (1998) PERB Decision No. 1270 and Carmichael Recreation & Park District (2008) PERB Decision No. 1953-M, to the extent they suggested a categorical rule denying unions access to information for extra-contractual fora. more or view all topics or full text.	44	18	06/26/19
I061M	County of San Mateo 301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General A union violates its duty to bargain in good faith if it holds a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. When an employer asks PERB to seek an injunction against a strike that includes allegedly essential employees, PERB assesses each position on a case by case basis. In determining whether a particular employee’s job is so essential that the employee may not legally strike, PERB considers the nature of the services the employee performs and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after accounting for all possible service reductions and coverage options. PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.02000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Pre-Impasse A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.) PERB denied County’s requests to enjoin strikes, finding no reasonable cause to believe that rebuttable presumption against pre-impasse strikes applied to the noticed strikes. Board therefore did not consider whether union could rebut such a presumption, nor did Board consider whether an injunction prohibiting union from proceeding with its strikes might be just and proper. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.04000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Unfair Practice A strike that occurs prior to impasse and completion of any statutorily-required impasse resolution procedures creates a rebuttable presumption that the union has breached its duty to bargain in good faith. (County of Trinity (United Public Employees of California, Local 792) (2016) PERB Decision No. 2480-M, p. 3 (Trinity).) After bargaining parties have reached a bona fide impasse and exhausted any mandatory impasse resolution procedures, public sector strikes are governed by the same rules as apply in the private sector (City of San Jose (2013) PERB Decision No. 2341-M, p. 39), except that an employer’s “substantial concession” post-impasse might temporarily re-institute the aforementioned rebuttable presumption, until a new impasse is reached. (Trinity, supra, PERB Decision No. 2480-M, p. 5.) more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees In City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the Supreme Court ruled that 72 hours’ strike notice is long enough for PERB injunctive relief procedures to apply, and in such circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to seek an injunction on its behalf. PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard, viz. the nature of the services the employee performs and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after accounting for all possible service reductions and coverage options, including (1) planning to use supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the union has exempted from the strike or who have affirmatively indicated that they plan to work during the strike; (2) contacting all companies or other entities potentially able to provide replacement employees or services, and contracting with such entities if they indicate they can provide replacements; and (3) documenting the extent to which each of the aforementioned options may or may not be feasible, including the available companies or agencies offering what arrangements will protect the public while infringing as little as possible on employees’ protected rights. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees PERB will exclude from its injunctive relief request to the court any positions that PERB has preliminarily found to be essential if the union agrees to exempt those positions from a planned strike. In some cases, the public may be sufficiently protected if the essential employees are on call, i.e., ready to cross the picket line if needed in the event of an emergency. (San Mateo Superior Court (2019) PERB Order No. IR-60-C, p 5, fn. 3.) A striking union need not use any particular format in notifying PERB, the employer, and the affected employees if the union decides to narrow the scope of its planned strike. (Id. at p. 7.) If a union exempts from a planned strike certain employees or positions that PERB has preliminarily found to be essential, such an exemption will normally mean that (1) there is no “reasonable cause” to believe that the union is threatening an unfair practice as to those positions, and (2) injunctive relief is not “just and proper” as to those positions. (Id., p. 5.) more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees PERB partially granted injunctive relief request as to public safety dispatchers, a detention facility cook, a supervising stationary engineer, a boiler watch engineer, a juvenile group home administrator, juvenile group home residential counselors, a hazmat emergency response team lead, adult protective services employees, a deputy public guardian, inpatient pharmacists, and clinical laboratory scientists. PERB denied injunctive relief request as to detention facility food service workers, utility workers, autopsy technicians, airport employees, social workers, social work supervisors, benefits analysts, psychiatric social workers, supervising mental health clinicians, case management specialists, mental health program specialists, supervising dieticians, microbiologists, community workers, and the following categories of health care workers: outpatient pharmacists, respiratory therapists, dietitians, physical and occupational therapists, speech pathologists, laboratory assistants, medical and dental assistants, pharmacy technicians, sterile processing technicians, surgical technicians, supply assistants, telephone operators, cooks, and food service workers, as well as radiologic technologists, imaging specialists, and electrograph technicians who conduct and process x-ray, CT, MRI, EEG, EKG, EMG, and ultrasound tests. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees Health care positions that are not filled on certain holidays and weekend days found not essential. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees In considering the nature of the services, one relevant factor is the extent to which the employer is playing a role that is distinct from private entities providing similar services, whose employees are free to strike without any court or regulatory body considering the impact on the public. Medical centers, for instance, frequently move back and forth between the public and private sectors. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 301.11000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; Essential Employees If hospital eschews national striker replacement companies or other available options that might wholly or partially obviate the need for an injunction, hospital undercuts its own request for injunctive relief. Cost rationale is insufficient reason to seek injunction rather than use replacements. A hospital employer seeking injunctive relief must provide PERB with its specific requests to local and national companies potentially capable of providing replacement employees, as well as those companies’ specific responses to such requests. As with other information that the parties provide during injunctive relief proceedings, an employer must provide updates as replacement availability changes, as employer is unlikely to have received a final and definitive response to its request by the time the employer first files its initial request for injunctive relief. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 1207.01000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; In General PERB denied County’s requests to enjoin strikes, finding no reasonable cause to believe that rebuttable presumption against pre-impasse strikes applied to the noticed strikes. Because Board found no reasonable cause to believe that a rebuttable presumption against pre-impasse strikes applied to noticed strikes, Board did not consider whether union could rebut such a presumption, nor did Board consider whether an injunction prohibiting union from proceeding with its strikes might be just and proper. more or view all topics or full text.	44	17	06/27/19
I061M	County of San Mateo 1207.02000: REMEDIES FOR UNFAIR PRACTICES; INJUNCTIVE RELIEF; Standards for Obtaining Injunctive Relief In City of San Jose v. Operating Engineers Local Union No. 3 (2010) 49 Cal.4th 597, the Supreme Court ruled that 72 hours’ strike notice is long enough for PERB injunctive relief procedures to apply, and in such circumstances, a PERB-covered employer can only seek a strike injunction by asking PERB to seek an injunction on its behalf. PERB makes a preliminary determination as to whether certain positions satisfy the County Sanitation standard, viz. the nature of the services the employee performs and whether the employer has clearly demonstrated that disruption of such services for the length of the strike would imminently and substantially threaten public health or safety. If PERB finds that a lapse in the public service would imminently and substantially threaten the public health or safety, PERB next considers whether the employer has clearly demonstrated that it requires an injunction to protect the public after accounting for all possible service reductions and coverage options, including (1) planning to use supervisors, managers, non-bargaining unit personnel, and bargaining unit employees that the union has exempted from the strike or who have affirmatively indicated that they plan to work during the strike; (2) contacting all companies or other entities potentially able to provide replacement employees or services, and contracting with such entities if they indicate they can provide replacements; and (3) documenting the extent to which each of the aforementioned options may or may not be feasible, including the available companies or agencies offering what arrangements will protect the public while infringing as little as possible on employees’ protected rights. more or view all topics or full text.	44	17	06/27/19