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DecisionDescriptionPERC Vol.PERC IndexDate
2615M County of Kern
1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights
To establish waiver of a right to bargain, an employer must prove that the union consciously abandoned its right to do so. (p. 10.) A union does not waive its right to bargain where the employer has already finalized policy changes without providing the union an opportunity to meet and confer to impasse or agreement. (p. 11.) Employer offer to meet and confer inadequate if employer did not restore the status quo, which is a necessary condition for meaningful bargaining to occur. (City of San Ramon, supra, PERB Decision No. 2571-M, p. 15 [good faith bargaining is not possible when employer has already “imposed the very terms under discussion, thereby forcing [the union] to start from a position of having to talk the [employer] back to the status quo.”].) more or view all topics or full text.		 43 109 12/21/18
2615M County of Kern
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.) more or view all topics or full text.		 43 109 12/21/18
2615M County of Kern
1200.02000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Cessation of Unfair Practices; Mootness; Isolated Practices
Charging party union may elect to decline restoration of the status quo in any division of employer, particularly where employees in certain divisions may be harmed by rescission of changes. (Denver Post Corp. (1999) 328 NLRB 118, 126, cited with approval in City of Riverside (2009) PERB Decision No. 2027-M, p. 15.) PERB leaves it to charging party union to make this decision because “[w]hether a change is beneficial or detrimental to the employees is a decision reserved to the employees as represented by their union.” (Solano County Employees’ Assn. v. County of Solano (1982) 136 Cal.App.3d 256, 262.) more or view all topics or full text.		 43 109 12/21/18
2629M County of Santa Clara
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
The charging party has the initial burden of demonstrating the “because of” element, that is, a causal connection or “nexus” between the adverse action and the protected conduct. (MMBA, § 3506.5; PERB Regulation 32603, subd. (a); Novato Unified School District (1982) PERB Decision No. 210, pp. 5-6.) Because “retaliatory conduct is inherently volitional in nature,” where it is alleged that the employer has acted in reprisal against employees for participation in protected activity, evidence of unlawful motive is the specific nexus required to establish a prima facie case. (Id. at p. 6.) (p. 8.) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Under Novato, a charging party may prove unlawful motive, intent, or purpose through direct or circumstantial evidence, including evidence which tends to show that an employer’s proffered justification for its action was not its true motive or purpose. (Novato, supra, PERB Decision No. 210, p. 6.) Circumstantial evidence, including evidence under one or more of the nexus factors borrowed from Wright Line and other private-sector authority, can be equally as probative as direct evidence. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) “[D]irect proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus . . . unlawful motive can be established by circumstantial evidence and inferred from the record as a whole.” (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
Board rejects the employer’s argument that the ALJ was required to hold employee to a higher standard of proof in establishing a prima facie discrimination or retaliation case because employee (a medical doctor) was an at-will employee. See Los Angeles Unified School District (2016) PERB Decision No. 2479 (Los Angeles), where Board held that the elements of a prima facie case under Novato remain the same “regardless of the employee’s at-will or similar status or the procedural protections to which the employee may or may not be entitled to in a different forum,” and that “once the employee establishes a prima facie case, the employer’s Novato defensive legal burden attaches, regardless of the status of the employee.” (Id. at p. 14.) (p. 12.) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
In Los Angeles Unified School District (2016) PERB Decision No. 2479, PERB disavowed the suggestion in County of Santa Clara that, with respect to a probationary employee, “[a]n employee alleging discrimination who is subject to dismissal without cause bears a heavier burden in overcoming the employer’s case for non-discriminatory motive.” (Los Angeles, supra, PERB Decision No. 2479, p. 14, quoting County of Santa Clara (2012) PERB Decision No. 2267-M, adopting ALJ proposed decision, at p. 21.) (p. 12) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
503.15000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Other
County’s removal or weakening of certain medical division chief duties was an adverse action imposed because of doctor’s protected activity. (p. 13) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
Under Novato, a charging party may prove unlawful motive, intent, or purpose through direct or circumstantial evidence, including evidence which tends to show that an employer’s proffered justification for its action was not its true motive or purpose. (Novato, supra, PERB Decision No. 210, p. 6.) Circumstantial evidence, including evidence under one or more of the nexus factors borrowed from Wright Line and other private-sector authority, can be equally as probative as direct evidence. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 20, fn. 13.) “[D]irect proof of motivation is rarely possible, since motivation is a state of mind which may be known only to the actor. Thus . . . unlawful motive can be established by circumstantial evidence and inferred from the record as a whole.” (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
PERB generally analyzes allegations of employer reprisal and discrimination under two lines of cases, which can be distinguished primarily by the manner in which they permit the charging party to prove nexus. (City of Yuba City (2018) PERB Decision No. 2603-M, p. 10.) Under Campbell Municipal Employees Association v. City of Campbell (1982) 131 Cal.App.3d 416, 423-424, a charging party may establish “discrimination in its simplest form” via evidence of “employer conduct that is facially or inherently discriminatory, such that the employer’s unlawful motive can be inferred without specific evidence.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 14 (LA Superior Court).) In the absence of evidence sufficient to trigger the Campbell standard, PERB applies the Novato analysis of nexus factors. (LA Superior Court, supra, PERB Decision No. 2566-C, pp. 14-15.) (p. 8) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
Novato factors apply where adverse action was not discriminatory on its face. (Novato Unified School District (1982) PERB Decision No. 210, p. 6.) (p. 9) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, PERB has identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in close temporal proximity to the employee’s protected conduct is an important factor; (2) the employer’s disparate treatment of the employee; (3) the employer’s departure from established procedures and standards when dealing with the employee; (4) the employer’s inconsistent or contradictory justifications for its actions; (5) the employer’s cursory investigation of the employee’s misconduct; (6) the employer’s failure to offer the employee justification at the time it took action or the offering of exaggerated, vague or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (County of Yolo (2009) PERB Decision No. 2020-M, pp. 12-13; Novato Unified School District (1982) PERB Decision No. 210, pp. 6-7.) (pp. 9-10) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
When an adverse action advances a management interest—e.g., eliminating opposition to a management objective affecting the terms and conditions of employment—this fact may indicate the adverse action was motivated by the employer’s desire to further that interest. (See County of Yolo (2009) PERB Decision No. 2020-M, p. 13 [the nexus analysis may consider “any other facts that might demonstrate the employer’s unlawful motive”].) (p. 11) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
Context is always relevant in assessing motive. (p. 11, citing proposed decision, at p. 30.) Here, employer’s managerial concerns about employee were directly related to the very matters employee had raised during course of collective bargaining negotiations. more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
505.13000: EMPLOYER DISCRIMINATION; DEFENSES; Other
Even when an employer has a managerial, statutory, or contractual right to take an employment action, its decision to act cannot be based on an unlawful motive, intent, or purpose. (County of Lassen (2018) PERB Decision No. 2612-M, p. 6; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5.) (p. 13) more or view all topics or full text.		 43 145 02/27/19
2629M County of Santa Clara
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
Board ordered reinstatement of all duties and responsibilities transferred from medical division chief because of his protected activities. (p. 13) more or view all topics or full text.		 43 145 02/27/19
2630E Adelanto Elementary School District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board may exercise its discretion to address a party’s exceptions despite their technical non-compliance with PERB Regulation 32300. Although charging party’s exceptions did not cite to relevant portions of the record, they did identify the portions of the proposed decision to which she excepted and the reasons for each exception, and often described the evidence (or lack thereof) that supported the exception. The Board therefore considered the merits of charging party’s exceptions. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation under the Educational Employment Relations Act, the charging party must prove that: (1) the employee exercised rights under the Act; (2) the employer had knowledge of the employee’s exercise of those rights; (3) the employer took adverse action against the employee; and (4) the employer took the adverse action because of the employee’s exercise of those rights. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
Unlawful motive is the required nexus between the employee’s protected activity and the adverse action. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
Employer’s initiation of its investigation into employee’s alleged misconduct the day after she filed a grievance, coupled with its issuance of a notice of unprofessional conduct 13 days after employee’s fourth level grievance meeting with the employer’s governing board, supported an inference that the notice was motivated by employee’s protected grievance activity. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
504.07000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; No reason or Inconsistent Reasons Given; Shifting Justifications
An employer offering exaggerated, inconsistent, or vague reasons may be an indicator of the employer’s discriminatory intent. Although the Board’s task is not to determine whether an employer had just cause to discipline an employee, it must nonetheless consider evidence of the alleged wrongdoing to determine if the employer exaggerated or otherwise mischaracterized what occurred, thereby evincing an unlawful motivation. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation
An employer’s cursory or limited investigation of an employee’s alleged misconduct may be an indicator of the employer’s discriminatory intent. Employer’s investigation—which took several months and entailed collecting 4 to 5 witness statements, hiring an outside investigator, interviewing employee and multiple witnesses, and reporting to law enforcement—was adequate even though it may have relied in part on hearsay statements. more or view all topics or full text.		 43 147 03/01/19
2630E Adelanto Elementary School District
504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation
In determining whether a charging party established a prima facie case of retaliation, the Board is not concerned with the truth of witness’ statements to investigators; rather, the pertinent inquiry for the Board is whether the employer’s investigation was perfunctory, cursory, or inadequate under the circumstances. The fact that some of the statements upon which the employer relied in issuing employee a notice of unprofessional conduct were hearsay does not render its investigation cursory, so as to support an inference of unlawful motivation. more or view all topics or full text.		 43 147 03/01/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
301.01000: UNFAIR PRACTICE ISSUES; STRIKES, SLOWDOWNS AND WORK STOPPAGES; In General
Employer alleged that union’s planned strike would constitute an unfair practice because it included employees the Employer believed provide services essential to public health and safety. A union violates its duty to bargain in good faith if it causes a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. (City of San Jose, supra, 49 Cal.4th at pp. 606-608; Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, p. 2 (Sacramento County Superior Court).) (p. 3) more or view all topics or full text.		 43 137 02/20/19
I060C San Mateo County Superior Court (Service Employees International Union Local 521)
802.01000: UNION UNFAIR PRACTICES; UNLAWFUL STRIKES AND WORK STOPPAGES; In General
Employer alleged that union’s planned strike would constitute an unfair practice because it included employees the Employer believed provide services essential to public health and safety. A union violates its duty to bargain in good faith if it causes a strike by one or more employees whose absence from work imminently and substantially threatens public health or safety. (City of San Jose, supra, 49 Cal.4th at pp. 606-608; Sacramento County Superior Court (United Public Employees Local 1) (2015) PERB Order No. IR-59-C, p. 2 (Sacramento County Superior Court).) (p. 3) more or view all topics or full text.		 43 137 02/20/19