Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2648M	City of Arcadia 405.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; THREATS OR PROMISES; Promise of or Withholding of Benefits PERB found offering to continue labor-management meetings if Association removed president from office was a promise of benefit where Association Vice President expressed strong preference employer continue meetings. more or view all topics or full text.	44	1	06/12/19
2648M	City of Arcadia 407.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION; Employer Favoritism/Absence of Strict Neutrality An employer’s duty of strict neutrality extends to internal union affairs, even in the absence of a competing employee organization. But an employer is not liable for interference, domination, unlawful assistance, or discrimination where it merely attempts in good faith to comply with its duty to bargain—which may require it to recognize one candidate on an interim basis pending the outcome of internal union procedures or other litigation between the factions—irrespective of whether the employer ends up temporarily recognizing the “wrong” candidate based on the outcome of such procedures. more or view all topics or full text.	44	1	06/12/19
2648M	City of Arcadia 407.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION; Employer Favoritism/Absence of Strict Neutrality Employer found to have interfered with internal Association affairs by offering an incentive for a change in internal Association leadership. more or view all topics or full text.	44	1	06/12/19
2611M	County of Orange 300.10000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Solicitation/Organizing Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. However, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 300.11000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Distribution of Literature Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. However, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech The Rancho Santiago standard encompasses two different tests to determine whether employee communications are protected. When an employer’s objection to employee speech is content-based, the speech is protected unless (1) it is demonstrably false, and (2) the employee knew the speech was false or acted with reckless disregard for whether it was true or false. When an employer’s objection to employee speech is conduct-based, the Board analyzes whether the manner in which the employee communicated was so opprobrious, flagrant, insubordinate, or disruptive to workplace operations that it loses its statutory protection. (p. 8.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right Employee and non-employee representatives of employee organizations may access employee work areas, subject to reasonable employer regulation. Any such regulation must be both necessary to the employer’s efficient operations or safety of employees or others, and narrowly drawn to avoid overbroad, unnecessary interference with the exercise of statutory rights. Moreover, an employer’s otherwise lawful access restrictions may nevertheless interfere with protected rights when applied discriminatorily against unions or protected activity. (p. 3.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right An employer may restrict non-business activities during work time, but it may not single out union activities for special restriction or enforce general restrictions more strictly with respect to union activities. (p. 3.) The employer violated this premise because it was aware of and permitted employee-run social committees to engage in non-business activities during work time but singled out union activity (e.g., soliciting information regarding working conditions or ongoing grievances) as being inappropriate non-business activities during work time. (pp. 4-5.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right Though a social committee’s activities may support an employer’s efficient operations (e.g., increasing morale, team building, and generating a productive workforce), the employer may not distinguish between such non-business activities and those of the exclusive bargaining representative when there is no significant difference in the nature or extent of the employer’s and union’s activities. Such distinction results in the overbroad, discriminatory application of an otherwise lawful regulation. (pp. 6-7.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 401.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Bulletin Board Use; Posting of Union Notices Employer unlawfully removed workload grievances posted by the union on its designated bulletin boards, claiming a legitimate business interest in removing derogatory materials from the bulletin boards. Under Rancho Santiago, communications about working conditions are permitted some leeway for intemperate language without losing statutory protection. Though the grievances were uncomplimentary of management, the rhetoric therein was typical of that used in labor disputes, and was thus protected speech. (pp. 9-10.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity While work time is for work, and an employer may therefore restrict non-business activities during work time, an employer fails to meet its burden to establish a legitimate business interest where it singles out or enforces a general rule more strictly with respect to union-related activities. (pp. 3-5.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 602.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); New Policy or Application or Enforcement of Existing Policy in New Way Employer’s changes to union release time policies and practices had more than a de minimis impact on employees’ and their representatives’ representational rights. (p. 12.) Because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment, the employer’s changes, unlike in Claremont Police Officers Assn. v. City of Claremont (2009) 39 Cal.4th 623, resulted in denials of paid release time employees would have otherwise received under the employer’s past practices. (pp. 11-12.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 602.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Unwritten Past Practice A binding past practice is one which is “unequivocal, clearly enunciated and acted upon, and readily ascertainable over a reasonable period of time as a fixed and established practice accepted by both parties,” or which is “regular and consistent” or “historic and accepted.” (pp. 10-11, fn. 7.) Though no specific period of time is required to develop a past practice, periods of eighteen months and one year were, in combination with other factors, sufficient to establish past practices allowing multiple union representatives to attend meetings and granting employees release time to file grievances, respectively. (Ibid.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 608.02000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Union Bad Faith, Delay, Unreasonable or Unlawful Demands, Violence or Misconduct Though it failed to prove employee representatives engaged in release time abuse, proving such abuse would not relieve the employer of its obligation to bargain proposed changes to release time policies in good faith. (p. 13.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 608.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Management-Rights Clause; Management Prerogative Release time policies are not a fundamental managerial prerogative. (p. 13.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 602.06000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Generalized Effect or Continuing Impact Employer’s changes to union release time policies and practices had more than a de minimis impact on employees’ and their representatives’ representational rights. (p. 12.) Because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment, the employer’s changes, unlike in Claremont Police Officers Assn. v. City of Claremont (2009) 39 Cal.4th 623, resulted in denials of paid release time employees would have otherwise received under the employer’s past practices. (pp. 11-12.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 1000.02117: SCOPE OF REPRESENTATION; Released Time Union release time falls within the scope of representation because of its relationship to employer-employee relations and its direct impact on employees’ wages and hours of employment. (p. 11.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case Retaliation is demonstrated where: (1) the employee exercised statutory rights under a PERB-administered statute, (2) the employer had knowledge of the exercise of those rights, (3) the employer took adverse action against the employee, and (4) the employer took the action because of the exercise of those rights. If the charging party proves all of the elements of its case, the burden of proof shifts to the employer to establish that it had an alternative, non-discriminatory reason for taking the adverse action, and that it, in fact, acted because of this proffered reason and not because of the employee’s protected activity. (pp. 14, 18-19.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence PERB does not determine whether the employer had cause to discipline the employee; rather, it will examine the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 504.01000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Prior Employer Unfair Practices; Prior History of Confrontation/Strife/Discord Separate but related unfair practices may provide circumstantial evidence of union animus, thus supporting a finding that adverse actions were taken because of that animus. (p. 17) Two supervisors involved in or aware of the employer’s prior interference with and unilateral changes to representation rights consulted on an investigation of alleged misconduct by an employee representative, resulting in discipline. The ALJ appropriately considered these relevant facts, in addition to other nexus elements, to impute union animus to the supervisors. (pp. 17-18.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 505.03000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct PERB examines the entire record to determine whether the employer’s proffered reason was honestly invoked and, in fact, was the cause of its adverse action. (p. 19.) When an employer cites accusations or complaints that it did not believe in good faith to be true as evidence of an alternative, non-discriminatory reason, PERB will find such justifications pretext for retaliation. (Ibid.) Because the employer appeared to rely on an insufficient investigation when it accepted a witness’ complaint at face value despite the witness’ subsequent complaint contradicting the first, its proffered justification failed to establish that the first complaint was, in fact, the reason for taking adverse action. (pp. 19-20.) more or view all topics or full text.	43	101	12/19/18
2611M	County of Orange 505.03000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct An employer’s defense that the challenged action would have occurred in the absence of the employee’s protected activity must be proven by sufficient independent, non-hearsay evidence. (p. 20.) The employer could not rely on a hearsay complaint for its defense where it failed to present non-hearsay evidence showing that the events used to justify the written reprimand actually occurred. (pp. 20-21.) more or view all topics or full text.	43	101	12/19/18
2588E	Los Angeles Unified School District 1105.17000: CASE PROCESSING PROCEDURES; EVIDENCE; Stipulations The Board rejected District’s exception that it repeatedly offered to negotiate over the union’s proposal and the union did not accept the offer because there was no evidence that the union declined the District’s two offers to negotiate. (pp. 9-10.) The facts are not subject to dispute because the parties submitted a stipulated factual record. (p. 2.) Therefore, the stipulated facts constitute a judicial admission that the union responded to the District’s initial offer with proposed procedures and that “the District ultimately declined to negotiate” with the union. Absent contrary evidence, the only conclusion the Board may draw from the stipulation is that the District refused to bargain over the union’s proposal. (pp. 9-10.) more or view all topics or full text.	43	63	10/17/18
2588E	Los Angeles Unified School District 1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General In accordance with PERB Reg. 32207, the parties may submit a stipulated factual record in lieu of a hearing. In such case, the stipulated facts shall be deemed undisputed. (p. 2.) more or view all topics or full text.	43	63	10/17/18