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DecisionDescriptionPERC Vol.PERC IndexDate
A458M County of Solano
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
Generally, where the exclusive representative has made a request for factfinding that is timely under any plausible interpretation of the public agency’s local rules and that is accompanied by a statement that the parties have been unable to effect a settlement to their dispute, PERB must accept the request as timely and allow the parties to proceed to factfinding. Here, however, while the local rules appear to contemplate selection of a mediator by mutual agreement of the parties as one option, the employee organization’s conduct was inconsistent with that option, regardless of whether it was the default option or simply one option among others. Because the organization appears to have accepted the selection of the mediator and expressed no reservations about this selection, nor suggested any other mediator or any alternative process whereby the parties would mutually agree on the identity of the mediator, the Board rejected its appeal and adopted the administrative determination that the employee organization’s request for factfinding was untimely. more or view all topics or full text.		 42 78 01/09/18
A455M County of Solano
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
PERB Regulations provide that an appeal from an administrative decision will not automatically prevent the Board from proceeding in a case. Pursuant to PERB Regulation 32370, parties seeking a stay of any activity may file a request for a stay with the administrative appeal which shall include all pertinent facts and justification for the request. Except as otherwise provided by PERB Regulations, the Board may order a stay of activity when the ruling or order that is the subject of appeal would be rendered unnecessary or moot, should the Board reverse it. In this case, however, because the administrative determination denied Local 1021’s request for factfinding, there was no ruling or order that would be rendered unnecessary if the Board were to reverse the administrative determination. Accordingly, there was nothing to stay and the Board denied the request. more or view all topics or full text.		 42 55 10/25/17
A455M County of Solano
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
PERB Regulations provide that an appeal from an administrative decision will not automatically prevent the Board from proceeding in a case. Pursuant to PERB Regulation 32370, parties seeking a stay of any activity may file a request for a stay with the administrative appeal which shall include all pertinent facts and justification for the request. Except as otherwise provided by PERB Regulations, the Board may order a stay of activity when the ruling or order that is the subject of appeal would be rendered unnecessary or moot, should the Board reverse it. In this case, however, because the administrative determination denied Local 1021’s request for factfinding, there was no ruling or order that would be rendered unnecessary if the Board were to reverse the administrative determination. Accordingly, there was nothing to stay and the Board denied the request. more or view all topics or full text.		 42 55 10/25/17
A455M County of Solano
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
PERB Regulations provide that an appeal from an administrative decision will not automatically prevent the Board from proceeding in a case. Pursuant to PERB Regulation 32370, parties seeking a stay of any activity may file a request for a stay with the administrative appeal which shall include all pertinent facts and justification for the request. Except as otherwise provided by PERB Regulations, the Board may order a stay of activity when the ruling or order that is the subject of appeal would be rendered unnecessary or moot, should the Board reverse it. In this case, however, because the administrative determination denied Local 1021’s request for factfinding, there was no ruling or order that would be rendered unnecessary if the Board were to reverse the administrative determination. Accordingly, there was nothing to stay and the Board denied the request. more or view all topics or full text.		 42 55 10/25/17
A453H Regents of the University of California
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1307.01000: REPRESENTATION ISSUES; QUESTION CONCERNING REPRESENTATION (QCR); In General/Definition
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1310.01000: REPRESENTATION ISSUES; UNIT MODIFICATION; In General
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1503.01000: MISCELLANEOUS ISSUES; REGULATIONS; In General
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1503.02000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number)
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1503.03000: MISCELLANEOUS ISSUES; REGULATIONS; Regulations Considered (By Number) (Continued)
The Board affirmed prior PERB precedent holding that the language of PERB Regulation 32781 eliminates the Board’s discretion to require proof of majority support when a unit modification petition seeks to add classifications which would increase the size of the existing unit by less than ten percent. (pp. 6-7.) PERB Regulation 32781, which governs petitions for unit modification, provides, in relevant part, that if a unit modification petition “requests the addition of classifications or positions to an established unit, and the proposed addition would increase the size of the established unit by ten percent or more, the Board shall require proof of majority support of persons employed in the classifications or positions to be added.” (pp. 4-5.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
By adopting a regulation providing that an increase in the size of a bargaining unit by ten percent or more through the addition of unrepresented positions creates a question concerning representation, the “necessary implication is that increasing the unit by less than ten percent does not call into question the incumbent union’s majority support,” and that the agency is without discretion to require a showing of support in such circumstances. (p. 8.) PERB’s unit modification procedures are inconsistent with the NLRB’s accretion doctrine because the plain language and the policies of HEERA and PERB Regulation 32781 differ in significant respects from their private-sector counterparts. PERB cannot change its regulations through decisional law. (pp. 8-9.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1307.01000: REPRESENTATION ISSUES; QUESTION CONCERNING REPRESENTATION (QCR); In General/Definition
By adopting a regulation providing that an increase in the size of a bargaining unit by ten percent or more through the addition of unrepresented positions creates a question concerning representation, the “necessary implication is that increasing the unit by less than ten percent does not call into question the incumbent union’s majority support,” and that the agency is without discretion to require a showing of support in such circumstances. (p. 8.) PERB’s unit modification procedures are inconsistent with the NLRB’s accretion doctrine because the plain language and the policies of HEERA and PERB Regulation 32781 differ in significant respects from their private-sector counterparts. PERB cannot change its regulations through decisional law. (pp. 8-9.) more or view all topics or full text.		 42 47 09/29/17
A453H Regents of the University of California
1310.01000: REPRESENTATION ISSUES; UNIT MODIFICATION; In General
By adopting a regulation providing that an increase in the size of a bargaining unit by ten percent or more through the addition of unrepresented positions creates a question concerning representation, the “necessary implication is that increasing the unit by less than ten percent does not call into question the incumbent union’s majority support,” and that the agency is without discretion to require a showing of support in such circumstances. (p. 8.) PERB’s unit modification procedures are inconsistent with the NLRB’s accretion doctrine because the plain language and the policies of HEERA and PERB Regulation 32781 differ in significant respects from their private-sector counterparts. PERB cannot change its regulations through decisional law. (pp. 8-9.) more or view all topics or full text.		 42 47 09/29/17
2605E Mount San Jacinto Community College District
503.03000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Warning Letters, Reprimands, Evaluations
When an employer places a document in an employee’s personnel file that impugns the employee’s reputation or otherwise potentially impedes the employee’s professional advancement, such action can constitute adverse action even absent any threat of discipline. (County of Riverside (2009) PERB Decision No. 2090-M, pp. 28, 30 [action need not specifically threaten discipline if it otherwise has an adverse impact on the employee’s employment]; State of California (Department of Youth Authority) (2000) PERB Decision No. 1403-S, pp. 32-33 [adverse action found where employer demeaned employee by issuing a substandard rating for “relationships with people,” and by imposing a documented requirement that a fellow employee had to review budget requests].) (p. 18, fn. 10.) more or view all topics or full text.		 43 92 12/12/18
2605E Mount San Jacinto Community College District
504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) more or view all topics or full text.		 43 92 12/12/18
2605E Mount San Jacinto Community College District
504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
Where employee’s protected email was impetus for employer’s adverse action, employer did not meet its burden to prove that it would have taken same action in the absence of employee’s protected activity. (p. 20.) more or view all topics or full text.		 43 92 12/12/18
2605E Mount San Jacinto Community College District
505.01000: EMPLOYER DISCRIMINATION; DEFENSES; In General
Board considers nature of the employee’s outburst when evaluating whether an alleged threat of physical harm communicated in an e-mail, rather than in a face-to-face meeting with the employer, loses statutory protection. (p. 12.) more or view all topics or full text.		 43 92 12/12/18
2591M County of Riverside
300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech
PERB precedent encourages the parties to respond to problematic speech with more speech, rather than via retaliatory discipline. more or view all topics or full text.		 43 66 10/23/18
2591M County of Riverside
300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech
To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. Employee terminated for making allegedly unfounded assertions about working conditions in federal court litigation reinstated where statements found to be protected; employer did not show by clear and convincing evidence that employee exhibited actual malice in making assertions. more or view all topics or full text.		 43 66 10/23/18
2591M County of Riverside
300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech
Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected. more or view all topics or full text.		 43 66 10/23/18
2591M County of Riverside
501.02000: EMPLOYER DISCRIMINATION; DISCRIMINATION; Burden of Proof; Evidence
To lose statutory protection, an employee’s speech must be maliciously untrue. Any party alleging that another party acted with “actual malice” must satisfy a heightened standard of proof by coming forward with “clear and convincing” evidence. Assertions largely based on opinion unlikely to lose protection under actual malice standard. more or view all topics or full text.		 43 66 10/23/18
2591M County of Riverside
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
Where employer states that it disciplined employee as a result of employee statements, there is no question as to motivation and PERB’s task is to determine whether the statements were statutorily-protected. more or view all topics or full text.		 43 66 10/23/18
2591Ma County of Riverside
1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration
Error in remedial order is a proper subject of reconsideration under newly discovered evidence standard, because erroneous remedial order did not exist and could not have been discovered until the Board issued its decision. (Desert Sands Unified School District (2004) PERB Decision No. 1682a, pp. 4-5; Regents of the University of California (Davis) (2011) PERB Decision No. 2101a-H, p. 5.) more or view all topics or full text.		 43 108 12/18/18
2591Ma County of Riverside
1206.01000: REMEDIES FOR UNFAIR PRACTICES; MODIFICATION OF PRIOR REMEDY; In General
Error in remedial order is a proper subject of reconsideration under newly discovered evidence standard, because erroneous remedial order did not exist and could not have been discovered until the Board issued its decision. (Desert Sands Unified School District (2004) PERB Decision No. 1682a, pp. 4-5; Regents of the University of California (Davis) (2011) PERB Decision No. 2101a-H, p. 5.) more or view all topics or full text.		 43 108 12/18/18
2591Ma County of Riverside
1206.01000: REMEDIES FOR UNFAIR PRACTICES; MODIFICATION OF PRIOR REMEDY; In General
On request for reconsideration, Board modified date discriminatee entitled to be made-whole; remedial order amended to provide back pay entitlement calculated from date employee placed on paid administrative leave rather than on date of termination, where union asserted that it could demonstrate during compliance proceedings that employee lost overtime opportunities and other remuneration as a result of being placed on administrative leave. more or view all topics or full text.		 43 108 12/18/18