Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2605E	Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Test to determine whether the manner in which an employee engaged in face-to-face communications with a manager or supervisor loses statutory protection is conduct-based and analyzes whether it is so “opprobrious” and disruptive to operations that otherwise-protected communication loses statutory protection. (p. 11.) more or view all topics or full text.	43	92	12/12/18
2605E	Mount San Jacinto Community College District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech Employee’s speech loses statutory protection if an objective observer would view it as an actual threat of physical harm. (p. 9.) 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.) Board adopts an objective test to determine whether an alleged threat is so “opprobrious” that it loses statutory protection. (p. 13.) Board must make fact-specific inquiry into all relevant circumstances to distinguish between intemperate remarks and actual threats of physical harm. (p. 14.) Board found that, in context, employee’s words were not objectively physical threats, where words were expressly metaphorical, and they were not accompanied by any physical conduct or other facts indicating that the words were a physical threat rather than a metaphor. more or view all topics or full text.	43	92	12/12/18
2605E	Mount San Jacinto Community College District 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General In determining whether an employer’s action is adverse, the Board uses an objective test and will not rely upon the subjective reactions of the employee. (Chula Vista (2018) PERB Decision No. 2586, pp. 24-25.) “The test which must be satisfied is not whether the employee found the employer’s action to be adverse, but whether a reasonable person under the same circumstances would consider the action to have an adverse impact of the employee’s employment.” (Id. at p. 25, quoting Newark Unified School District (1991) PERB Decision No. 864, pp. 11-12.) The reasonable person test guides us equally when the employer’s alleged adverse action is a warning of a possible future action. (Chula Vista, supra, at p. 25.) (pp. 17-18.) more or view all topics or full text.	43	92	12/12/18
2612M	County of Lassen 300.01000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; In General Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.) more or view all topics or full text.	43	102	12/19/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * An investigatory or disciplinary interview falls within the broad definition of “all matters of employer-employee relations,” and section 3515 therefore guarantees state employees representational rights that are at least as broad as those afforded private-sector employees under NLRB v. J. Weingarten, Inc. (1975) 420 U.S. 251 (Weingarten) and other federal authorities interpreting section 7 of the National Labor Relations Act (NLRA). Not all meetings with management must conform to the requirements of Weingarten before the right to representation attaches. (pp. 7-8.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * Regardless of how a meeting may be characterized or envisioned by management, if it serves to elicit incriminating evidence with the potential to impact the employment relationship, then it is “investigatory” for the purposes of the representational rights guaranteed by the PERB-administered statutes. (Capistrano Unified School District (2015) PERB Decision No. 2440, p. 20 [citing County of Santa Clara, supra, PERB Decision No. 2267-M, adopting proposed decision at pp. 19-20].) (p. 11.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * * An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.) Employer which continued the interrogation after employee requested representation, effectively denied the request, thereby committing an unfair practice. (p. 16.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Highly Unusual Circumstances * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * * An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 408.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Other Circumstances * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S, where, on remand from the Court of Appeal, the Board modified its remedial order to clarify that it applies only in circumstances in which CDCR and its representatives either constitute the appointing authority or are acting as an employer and the employee reasonably fears discipline. * * * An invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right of union representation. The right to union representation attaches whenever an employer demands that an employee submit to an invasive body search, or subjects an employee to such a search. (p. 14.) An invasive body search is fundamentally confrontational. (p. 12.) As in a drug testing situation, an invasive body search is such an unusual and stressful situation that an employee is likely to volunteer information in an effort at self-defense, and therefore has a right to union representation even if the employer does not intend to ask questions. The right to union representation therefore attaches before an employee is invasively searched, just as it attaches before an employee takes a drug or alcohol test. (p. 11.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 1402.01000: GENERAL LEGAL PRINCIPLES; WAIVER; In General * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * If an employer rejects an employee’s request for representation, she cannot be found to have voluntarily waived her right to representation. (p. 15.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * An employer rule purporting to waive an employee’s Weingarten rights with respect to searches conducted on the employer’s premises would be ineffective and would constitute an unfair practice. (p. 14, fn. 12.) more or view all topics or full text.	43	78	11/26/18
2598S	State of California (Department of Corrections and Rehabilitation) * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S 1402.04000: GENERAL LEGAL PRINCIPLES; WAIVER; By Acquiescence/Conduct * * * Remedial Order SUPERSEDED by State of California (Department of Corrections and Rehabilitation) (2022) PERB Decision No. 2598a-S. * * * An employee does not waive her right to union representation by signing an acknowledgement of the employer’s rule that she is subject to search at any time while on the employer’s grounds. (p. 14.) more or view all topics or full text.	43	78	11/26/18
2612M	County of Lassen 502.04000: EMPLOYER DISCRIMINATION; PERSONS PROTECTED; Temporary, Extra, Part-Time, Casual, Seasonal, Intermittent or Probationary Employees Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.) more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee Employer unlawfully decided to terminate probationary employee, rather than temporarily reclassify her until she met established qualifications, after employee’s union intervened on her behalf. An employer need not always continue employing an employee who does not meet established qualifications. However, where there is a means to continue employing the employee, the employer may not refrain from doing so, nor cancel a plan to do so, merely because the employee’s union raises questions or otherwise seeks to represent the employee. Such conduct is quintessential retaliation for protected activity and interference with protected rights. (Regents of the University of California (UC Davis Medical Center) (2013) PERB Decision No. 2314-H, pp. 11, 14 [employer notified employee of his options regarding involuntary schedule change, employee sought union’s assistance, and employer then offered inferior options]; Berkeley Unified School District (2003) PERB Decision No. 1538, pp. 4-5 [even where employer had discretion whether to grant scheduling waivers to employees, it could not discontinue granting waivers in response to protected activity].)(p. 6.) An employer may not take adverse action merely because it is perplexed as to how to respond to a union’s advocacy. (p. 7.) more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General MMBA section 3509, subdivision (b), grants PERB wide discretion to determine the appropriate remedy necessary to effectuate the purposes of the Act. The ordinary remedy in a discharge case includes both reinstatement and back pay. Employee should be offered reinstatement to position from which she was terminated; although position required a bachelor’s degree, which employee did not have at time of hire, employee subsequently received her degree prior to reinstatement order. more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 1201.02000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Reinstatement Employee should be offered reinstatement to position from which she was terminated; although position required a bachelor’s degree, which employee did not have at time of hire, employee subsequently received her degree prior to reinstatement order. more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest An employee who has suffered an economic loss due to an employer’s discriminatory conduct must make reasonable efforts to obtain alternative employment. (Fresno County Office of Education (1996) PERB Decision No. 1171, pp. 2-5 & adopting proposed decision at pp. 3-10 (Fresno).) The burden of establishing that a discriminatee failed in this duty rests on the employer who committed the wrongful act. (Id. at pp. 3-4 & adopting proposed decision at p. 4.) Any uncertainty is resolved against the employer. (Id. at p. 2, fn. 1 & adopting proposed decision at pp. 4, 7.) To establish a failure to mitigate, the employer must demonstrate that the claimant failed to make efforts “consistent with the inclination to work and to be self-supporting.” (Fresno County Office of Education (1996) PERB Decision No. 1171, p. 2, fn. 1 & adopting proposed decision at p. 4, internal quotation marks omitted.) Claimants are not expected to seek a job more onerous that the one from which they were removed but rather are expected to seek a substantially equivalent job. (Ibid.) The principle of mitigation of damages does not require success; it only requires an honest good-faith effort. (County of Riverside (2013) PERB Decision No. 2336-M, adopting proposed decision at p. 19 (Riverside).) more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Even where the employer shows that there were multiple appropriate jobs for which an employee failed to apply, the employee can rebut the employer’s defense by showing that she made reasonable job-hunting efforts. (Fresno County Office of Education (1996) PERB Decision No. 1171, adopting proposed decision at pp. 4-5.) more or view all topics or full text.	43	102	12/19/18
2612M	County of Lassen 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Employee pursued mitigating employment with sufficient diligence, where pursuing a Master’s degree was not unreasonable, and employee actively sought other jobs from the date of her termination, even while also pursuing her studies. An employee who enrolls in a course of training or avails herself of other educational opportunities during the back pay period may nevertheless be entitled to back pay to the extent that the employee seeks to combine school with job hunting, or reasonably decides that gaining education and changing careers is the best path toward gainful employment. more or view all topics or full text.	43	102	12/19/18
2604E	Mount San Jacinto Community College District Faculty Association 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver Absent good cause, the Board declines to consider initial exceptions filed by a prevailing party. more or view all topics or full text.	43	91	12/12/18
2604E	Mount San Jacinto Community College District Faculty Association 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver Initial exceptions filed by prevailing party dismissed where good cause for the Board to consider the exceptions not shown. Board declines to adopt ALJ’s findings as a decision of the Board itself; the proposed decision remains nonprecedential and binding on the parties only with respect to the specific controversy involved in the case. This holding prevents prevailing parties from unilaterally turning a favorable ALJ decision into a precedential decision of the Board. more or view all topics or full text.	43	91	12/12/18
2604E	Mount San Jacinto Community College District Faculty Association 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver The Board need not correct an ALJ’s harmless error. (Fremont Unified School District (2003) PERB Decision No. 1528 (Fremont), p. 2.) “This is especially true where the party asserting the errors seeks only to correct them, and does not seek to overturn the ALJ decision itself.” (Id. at pp. 2-3.) more or view all topics or full text.	43	91	12/12/18
2614E	Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279 1103.09000: CASE PROCESSING PROCEDURES; COMPLAINT; Consolidation, Severance, or Bifurcation of Proceedings The Board may consolidate for decision charges that raise the same issues. more or view all topics or full text.	43	105	12/21/18
2614E	Los Rios Community College District and Los Rios College Federation of Teachers, Local 2279 1107.20000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Other The Board has discretion whether to accept reply briefs. more or view all topics or full text.	43	105	12/21/18