Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration When a charge or complaint alleges multiple claims that are factually or legally interrelated, PERB must first determine whether such interrelated claims are “independent” or “derivative,” following the principle that a claim is independent of another if it can potentially prevail while the other does not. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 9.) For interrelated claims that are independent of one another, the party seeking deferral must separately show that each claim satisfies the applicable deferral test, or else PERB refrains from deferring any of the interrelated claims. (Id. at pp. 10-12.) In contrast, if a claim is derivative of another, the party seeking deferral need not make a separate showing that the derivative claim meets the applicable deferral test. (Id. at p. 10.) (pp. 13-14.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration If a respondent establishes all four elements needed to prevail in a pre-arbitration deferral motion, then PERB follows one of two procedures, depending on which public sector labor relations statute covers the parties. Under the statutes referenced in PERB Regulation 32620(b)(5)—including the Dills Act—a successful deferral motion leads PERB to dismiss the unfair practice charge. In contrast, under the labor relations statutes referenced in PERB Regulation 32620(b)(6), PERB merely places the charge in abeyance. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) However, this is a distinction without a difference. After PERB defers a charge to arbitration and places it in abeyance pursuant to Regulation 32620(b)(6), the case normally remains in abeyance until arbitration is complete. At that point, PERB dismisses the charge unless the charging party can disprove one or more elements of the post-arbitration deferral test discussed post. If the charging party believes one of these circumstances exists, it normally asks PERB to take its charge out of abeyance and amends it to include all needed allegations about the arbitration process and/or arbitration decision. (Trustees of the California State University (Long Beach) (2011) PERB Decision No. 2201-H, pp. 3-6.) A slightly different procedure is available under the statutes covered by PERB Regulation 32620(b)(5). Under those laws, pre-arbitration deferral leads PERB to dismiss the unfair practice charge, meaning there is no opportunity to file an amended charge. Instead, the charging party can file a new charge that alleges the original violation(s) as well as the circumstances preventing PERB from continuing to defer. Therefore, under each PERB-administered statute, after PERB issues a pre-arbitration deferral order, the charging party has a later opportunity to ask PERB to revisit that conclusion post-arbitration. (pp. 10-12.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration Because PERB will not defer where it is futile to do so, the relevant statutory standards that the arbitrator must apply include those related to both liability and remedy. (Oxnard Union High School District (2022) PERB Decision No. 2803, pp. 55-56 [deferral improper where contract required grievant to show employer violated an “express term” in an “arbitrary, capricious or discriminatory manner,” which deviated from PERB standards].) (p. 10.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration Dills Act section 3514(a)(2) sets forth a futility exception, while other exceptions flow from the fact that deferral is a discretionary doctrine. For instance, even if all deferral elements are satisfied, PERB will not defer claims alleging interference with or retaliation for filing a PERB charge or participating in PERB processes. (Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, p. 39.) (p. 9, fn. 5.) Moreover, deferral is normally improper if individual employees wish to arbitrate but their union controls that decision and declines to arbitrate. (State of California (Department of Parks and Recreation) (1995) PERB Decision No. 1125-S, pp. 8-9.) Accordingly, State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S, where the Board deferred to arbitration even though the charging party’s exclusive representative would not arbitrate his claims, is no longer good law on this point. (p. 17, n. 16.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration The most critical element of the pre-arbitration deferral test is often whether the contract and its meaning lie at the center of the dispute. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) For this element, the party seeking deferral must establish two conditions. First, the alleged unfair practice must be arguably prohibited by the parties’ agreement. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) Thus, “it is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid., citation omitted.) Second, beginning with Santa Clara, supra, we have required that “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Id. at p. 8, citation omitted.) Thus, “[i]f resolution of the alleged unfair practice requires application of statutory legal standards, and there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles, deferral is not appropriate.” (Ibid., internal quotation marks and citations omitted.) This condition is satisfied “where the parties incorporate the statutory legal standard into their collective bargaining agreement” or both parties “ask the arbitrator to resolve the statutory unfair practice issue.” (Id. at p. 8, fn. 6.) Notably, “this clarification ensures that our pre-arbitration deferral standard is consistent with our post-arbitration deferral standard, which requires that the arbitrator actually decide the alleged statutory violation.” (Id. at p. 18.) Indeed, it would make little sense to defer pre-arbitration if there was a likelihood of reaching the opposite conclusion post-arbitration. (pp. 9-10; id. at p. 19.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration When PERB considers deferral before the arbitration process is complete (including where the charging party union has not yet filed a grievance), the party seeking deferral has the burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no deferral exception applies. (County of Orange (2022) PERB Order No. Ad-496-M, p. 5.) (p. 9; id. at p. 19.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration While PERB has long phrased the required elements of the deferral defense differently depending on whether the parties have already completed arbitration, recent precedent clarifies that PERB cohesively interprets the pre-arbitration and post-arbitration deferral tests with reference to one another, so that the critical legal principles are consistent in each context. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 18, fn. 12; see also id. at p. 22, fn. 17 [if PERB defers at the pre-arbitration stage, charging party may still argue at the post-arbitration stage that PERB’s assumptions as to how the arbitrator would approach the case did not pan out].) (p. 8.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration A party has the right to ask PERB’s Office of the General Counsel (OGC) to defer to arbitration pursuant to PERB Regulation 32620(b)(5)-(6). Irrespective of whether a party asked OGC for deferral at an earlier stage, it can plead deferral as an affirmative defense in its answer to a complaint and file a deferral motion pursuant to Regulation 32190(a). But no party has a right, at any stage of PERB proceedings, to unilaterally “elect” deferral. (p. 6, fn. 2.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 409.08000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Special Circumstances Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.) Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver A union can contractually waive employees’ statutory right to display protected insignia and messages in the workplace, but to be effective, such a contractual waiver must be clear and unmistakable. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10; Regents of the University of California (2012) PERB Decision No. 2300-H, p. 27.) Normally, imprecise phrasing does not satisfy the clear and unmistakable standard. (Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, pp. 10-11 [contractual provision allowing employer to adopt “reasonable” rules did not waive statutory access rights].) Moreover, a waiver of employees’ statutory rights, even if clear and unmistakable, is unenforceable if it seriously impairs employees’ right to communicate about union matters. (Omnitrans (2009) PERB Decision No. 2030-M, p. 21; accord Regents of the University of California (Irvine), supra, PERB Decision No. 2593-H, p. 11, fn. 9.) (pp. 22-23.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Additional standards apply to allegations that an employer interfered with the right to display union insignia or other protected messages in the workplace. First, an employer rule is unlawful if, on either a facial or as-applied basis, the employer singles out protected conduct or speech, as compared to non-protected activities or speech. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 13.) Second, a facially neutral, consistently applied rule may still be unlawful if the charging party shows that the employer adopted it in retaliation for protected activity. (Ibid.) Third, even as to a rule that is non-discriminatory and non-retaliatory, PERB recognizes that displaying union insignia or other protected messages in the workplace is generally “far less disruptive” than solicitation and distribution, and for that reason there is a rebuttable presumption against restricting such display. (Regents of the University of California, supra, PERB Decision No. 2880-H, pp. 8-9; City of Sacramento (2020) PERB Decision No. 2702-M, p. 9.) An employer may rebut this presumption only if it can establish “special circumstances” that justify the restriction. (City of Sacramento, supra, p. 9.) PERB considers such questions on a case-by-case basis, requiring the employer to make a “concrete, fact-based evidentiary showing” of a special circumstance. (Id. at p. 10.) Relevant factors include whether an insignia or message is likely to negatively affect operations, such as by posing a safety risk, disrupting employee discipline, distracting from work demanding great concentration, or damaging employer property. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 10.) Also important is the specific context in which the employer enacted or enforced the prohibition, the locations involved, industry practice, and the parties’ past practice. (Ibid.) Thus, a history of insignia or messages in the workplace without resulting incidents can undercut an employer’s argument. (Ibid.) General, speculative, isolated, or conclusory evidence of potential disruption to an employer’s operations does not amount to special circumstances. (Ibid.) Moreover, an employer may not rely on a concern to establish special circumstances if the record demonstrates that the employer has asserted it as a pretext for limiting protected activity. (Id. at pp. 10-11.) (pp. 20-22.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 401.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; In General; Prima Facie Case. To establish a prima facie interference case under either section 3519(a) or section 3519(b), a charging party union must show that an employer’s conduct tends to or does result in some harm to protected union and/or employee rights. (Regents of the University of California, supra, PERB Decision No. 2880-H, p. 7.) The union need not establish that the employer acted because of an unlawful motive. (Ibid.) If the union establishes a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Id. at pp. 7-8.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Id. at p. 8.) In such cases, PERB balances the asserted business need against the tendency to harm protected rights; if the tendency to harm outweighs the necessity, PERB finds a violation. (Ibid.) Within the category of actions or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business need was important and that it narrowly tailored its actions or rules to attain that purpose while limiting harm to protected rights as much as possible. (Ibid.) (p. 20.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Union claimed that the CBA does not allow arbitration over interference with the union’s own rights in violation of section 3519(b), and for that reason PERB cannot defer any of the claims. PERB assessed whether the section 3519(b) claim involves any standards or facts that could make its outcome or remedy materially diverge from the section 3519(a) claim. Notably, a section 3519(b) claim may, but need not, be derivative of a section 3519(a) claim. (See, e.g., County of San Joaquin (2021) PERB Decision No. 2761-M, pp. 20-22 [finding interference with union’s right to be independent claim].) If and only if the section 3519(b) claim will necessarily involve the same standards applied to the same facts as the section 3519(a) claim, and therefore have the same outcome (and materially the same potential remedies), then PERB can safely defer both claims. Under current Board precedent, the Union’s section 3519(b) claim involves the same statutory standards, the same facts, and effectively the same remedies as the section 3519(a) claim, allowing PERB to defer both claims. PERB noted that the following decisions no longer have precedential value on deferral issues because they relied on the notion that deferral was jurisdictional rather than discretionary, applied standards that are now superseded, and improperly bifurcated interrelated claims: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; and State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S. (pp. 15-16; see also pp. 22-23.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Deferral to arbitration is discretionary. For a 15-year period beginning in 1987, the Board treated deferral as jurisdictional rather than discretionary based on the Board’s holding in Lake Elsinore School District (1987) PERB Decision No. 646 (Lake Elsinore), which the Board reversed in 2002. This impacts multiple deferral standards and means that PERB will not “defer to a brick wall” or to an arbitration that will not apply statutory standards. It also means that deferral is an affirmative defense which may be waived. PERB cautions extra diligence in checking whether principles previously enunciated remain the most current statement of PERB precedent. The Board noted that, in addition to Lake Elsinore, the following decisions have been overruled because, among other infirmities, they relied on the notion that deferral was jurisdictional rather than discretionary: State of California (California Department of Forestry and Fire Protection) (1989) PERB Decision No. 734-S; State of California (Department of Parks and Recreation) (1990) PERB Decision No. 810-S; State of California (Department of Corrections) (1992) PERB Order No. Ad-231-S, pp. 8-10; State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S; State of California (Department of Corrections) (1995) PERB Decision No. 1100-S), and State of California (Office of Emergency Services) (1995) PERB Decision No. 1122-S. (pp. 14, 16-19.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts The Board initially adopted NLRB deferral tests. (See, e.g., Dry Creek Joint Elementary School District (1980) PERB Order No. Ad-81a, pp. 4-5.) Doing so was appropriate given the similarities between the laws PERB administers and federal law governing private sector labor relations. (San Diego Teachers Assn. v. Superior Court (1979) 24 Cal.3d 1, 12.) However, private sector precedent is at most persuasive. (Operating Engineers Local Union No. 3, AFL-CIO (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10; County of Santa Clara (2021) PERB Order No. Ad-485, p. 8, fn. 7.) Even when PERB precedent expressly borrows wording and/or principles from private sector precedent, that “does not mean we necessarily follow subsequent developments in NLRB precedent.” (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 9, fn. 6; El Camino Healthcare District, et al. (2023) PERB Decision No. 2868-M, p. 26, fn. 18; Napa Valley Community College District (2018) PERB Decision No. 2563, p. 13.) As PERB has shifted how it interprets multiple elements of the pre-arbitration and post-arbitration deferral tests over time, such shifts have not necessarily matched the NLRB’s shifts. (pp. 7-8.) more or view all topics or full text.	49	80	10/22/24
2926S	State of California (Department of Corrections and Rehabilitation) 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Each labor relations statute PERB administers either explicitly or implicitly states a preference for parties to resolve unfair practice issues through contractual arbitration, if arbitration under the operative contractual provisions is adequate to fully and fairly resolve the claims that would otherwise proceed through PERB’s process. (County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 16-17; see § 3514.5(a)(2).) Nonetheless, deferral to arbitration is an affirmative defense, meaning that a party seeking deferral has the burden to timely plead the defense. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 17.) (p. 7.) more or view all topics or full text.	49	80	10/22/24
2928M	SunLine Transit Agency 505.03000: EMPLOYER DISCRIMINATION; DEFENSES; Misconduct An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 409.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union or Employee Misconduct An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 402.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; QUESTIONING/INTERROGATING EMPLOYEES; In General An employer does not retaliate against or interfere with employee rights when it conducts an initial investigation of arguably protected activity based upon receiving a facially plausible complaint, provided that: (1) the nature of the complaint legitimately calls into question whether the employee conduct was protected; and (2) if the employer acquires information indicating that the alleged conduct was protected, the employer immediately ceases the investigation and notifies all affected employees regarding its outcome. (Chula Vista Elementary School District (2018) PERB Decision No. 2586, pp. 30-31.) Moreover, during its investigation, the employer must narrowly tailor its questions to the business necessity at hand—investigating a facially plausible complaint—while minimizing, to the greatest degree possible, inquiries that tend to chill protected activity. (See, e.g., William S. Hart Union High School District (2018) PERB Decision No. 2595, pp. 7-8 [employer exceeded scope of permissible inquiry by seeking identity of unit members who attended union meeting and substance of conversations with union steward].) Thus, PERB looks at the specific circumstances not only to determine whether the employer had adequate cause to commence an investigation despite its potential to chill protected activity, but also whether the employer unduly continued the investigation or otherwise violated the MMBA during its course. (Trustees of the California State University (Northridge) (2019) PERB Decision No. 2687-H, p. 4 & p. 5, fn. 6 (Trustees).) While an employer cannot continue its investigation after acquiring information indicating that the alleged conduct was protected, Garcia did now show that SunLine violated this principle. Indeed, Garcia’s failure to cooperate made him less able to provide the investigator with information showing that the MMBA protected his conduct (pp. 24-26.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 503.14000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Involuntary Leaves Placing an employee on involuntary paid leave pending a misconduct investigation constitutes adverse action. (Cabrillo Community College District (2015) PERB Decision No. 2453, p. 18.) (p. 24.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 505.13000: EMPLOYER DISCRIMINATION; DEFENSES; Other An employer cannot establish an affirmative defense based on applying a policy in a manner that infringes on protected rights. (See, e.g., Arrow Elec. Co., Inc. v. National Labor Relations Bd. (6th Cir. 1998) 155 F.3d 762, 766-767 [where employer had policy barring “neglect of duty,” it could not rely on that policy as a non-discriminatory basis for terminating employees, because employees’ alleged neglect was in fact protected strike activity].) (p. 24.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 505.13000: EMPLOYER DISCRIMINATION; DEFENSES; Other If the employer takes adverse action based upon speech that has a mix of protected and unprotected parts, PERB must resolve whether the employer would have taken exactly the same action based solely on the unprotected portions of the speech. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 18-20.) The Board found that the facts here did not fall into that pattern, because SunLine did not introduce any of the videos that gave rise to the written warning, nor did it prove that any part of those videos were unprotected. Accordingly, there was no non-discriminatory reason for discipline. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 13, fn. 7 [no need to separately assess affirmative defense if charging party has already disproven it in as part of prima facie case]; County of Riverside (2018) PERB Decision No. 2591-M, p. 18 [where all speech was protected, there was no basis for a mixed motive defense].) (p. 23.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver A non-contractual policy cannot support a contractual waiver defense. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) (p. 22, fn. 11.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 409.05000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Union Consent or Waiver A union can contractually waive certain statutory rights, but only if the waiver is clear and unmistakable and does not seriously impair employees’ right to communicate about protected matters. (Regents of the University of California (Irvine) (2018) PERB Decision No. 2593-H, p. 10 & p. 11, fn. 9.) (p. 22, fn. 11.) more or view all topics or full text.	49	82	10/31/24