Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
J027E	California Virtual Academies 201.04000: PARTIES; DEFINITIONS; WHO IS AN EMPLOYER?; Joint Employer, Single Employer, and Alter Ego Doctrines (While PERB has not previously concluded that multiple public agencies have comprised a single employer, the Board has considered the “single employer” doctrine under EERA on prior occasions and determined under the facts of those cases that the “single employer” theory did not apply. The Board’s analysis of the doctrine clearly indicates that the “single employer” concept is not novel to the Board. There is nothing “unprecedented” about the Board’s finding that the 11 CAVA schools constitute a single employer.) (The Board’s conclusion that Education Code section 47611.5, subdivision (b) did not preclude a finding that a charter school with multiple sites was a single employer does not present a novel issue warranting judicial review. The fact that CAVA disagrees with the Board’s legal and factual conclusions does not make for a “novel” issue. If such disagreements did determine a “novel issue,” every case involving conflicting statutory interpretations, no matter their merit, would satisfy this element, rendering meaningless the policy considerations that counsel for a very strict standard in joining in requests for judicial review.) more or view all topics or full text.	41	74	09/30/16
2518E	Los Angeles Unified School District 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General Whether employer’s policy represented a change from an identifiable past practice or was an implementation of new policy is not important because in either event, the Board analyzes liability under the unilateral change doctrine. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 602.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Unwritten Past Practice Whether employer’s policy represented a change from an identifiable past practice or was an implementation of new policy is not important because in either event, the Board analyzes liability under the unilateral change doctrine. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception Neither school district’s size nor the low graduation rate of its students excused it from bargaining over the negotiable subject of teacher evaluation criteria. School district did not demonstrate that any failures of its existing observation and evaluation system ever reached emergency proportions. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo Evaluation system implemented by employer was not consistent with a regular and consistent past practice. Evidence of past practice showed a variety of evaluation rubrics that differed from the system that was implemented. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo Evaluation system implemented by employer was not consistent with a dynamic status quo. A practice can be demonstrated by a regular and consistent pattern of past changes in employment conditions, but not by an employer that exercises unfettered discretion. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Any waiver of bargaining rights must be clear and unmistakable, demonstrating an intentional relinquishment of the right to bargain. A generally-worded management rights clause will not be construed as a waiver of statutory bargaining rights. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Contract provision governing certain procedural matters in the evaluation process is not a clear and unmistakable waiver of right to bargain changes to other matters related to evaluations. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In the face of employer’s repeated assurances that it would bargain over negotiable changes, exclusive representative’s participation in ad hoc committees and other process was not a waiver by inaction. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated Evaluation system, including evaluation criteria, is negotiable under the Anaheim test. The requirements of the Stull Act (Education Code section 44660 et seq.) do not remove evaluation criteria from the scope of representation. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1000.02045: SCOPE OF REPRESENTATION; Evaluations The Board’s precedents have broadly and liberally construed the duty to bargain over evaluation procedures, and have explicitly held that “procedures” under EERA section 3543.2(a) encompass evaluation criteria. The requirements of the Stull Act (Education Code section 44660 et seq.) do not remove evaluation criteria from the scope of representation. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General A request for a monetary remedy need not be pleaded in the complaint. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General Evidence of financial losses need not be introduced at hearing. Issues of financial harm may be raised in compliance proceedings before the Office of the General Counsel. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest A request for a monetary remedy need not be pleaded in the complaint. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1201.03000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; Back Pay; Interest Evidence of financial losses need not be introduced at hearing. Issues of financial harm may be raised in compliance proceedings before the Office of the General Counsel. more or view all topics or full text.	41	146	03/06/17
2518E	Los Angeles Unified School District 1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles The Legislature’s specific exclusion of criteria and standards for evaluation in HEERA’s scope of representation suggests that it did not intend to exclude those matters from the scope of representation under EERA. more or view all topics or full text.	41	146	03/06/17
2571M	City of San Ramon 606.15000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; NEGOTIATIONS; INDICIA OF SURFACE OR BAD FAITH BARGAINING; TOTALITY OF CIRCUMSTANCES; Other Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups. more or view all topics or full text.	43	6	06/20/18
2571M	City of San Ramon 608.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Exhaustion of Impasse Procedures or Time Between Impasse and Mediation A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M, p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.) more or view all topics or full text.	43	6	06/20/18
2571M	City of San Ramon 608.15000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Hard Bargaining A party exhibits bad faith if it fails to adequately explain its inflexible position. (County of San Luis Obispo (2015) PERB Decision No. 2427-M, p. 29; San Bernardino City Unified School District (1998) PERB Decision No. 1270, at pp. 85-86.) However, an inflexible position that is fairly maintained and rationally supported does not, alone, prove bad faith. (Oakland Unified School District (1982) PERB Decision No. 275, p. 16.) Hard bargaining cannot shield party from liability if it adopted a take-it-or-leave-it attitude or rushed to impasse. Employer adopted a “take-it-or-leave it” attitude when it (1) presented its position as an ultimatum, telling union it had a choice of either accepting new terms or arriving at impasse; (2) showed a predetermination to negotiate or impose its own proposals without carefully and mutually reviewing the union’s proposals, issues, and concessions; and (3) declared impasse based not on an assessment of the parties’ actual differences, but on the fact that it had not achieved capitulation to all of its demands. Furthermore, County of Solano (2014) PERB Decision No. 2402-M, is in tension with Regents of the University of California (1983) PERB Decision No. 356-H, p. 21, as it may be bad faith for employer to insist that it will not agree to different terms for different employee groups. more or view all topics or full text.	43	6	06/20/18
2571M	City of San Ramon 806.06000: UNION UNFAIR PRACTICES; DEFENSES; Impasse Broken-Duty to Bargain Even if parties have reached a bona fide impasse after completing negotiations in good faith, an impasse “can be terminated by nearly any change in bargaining-related circumstances” that is sufficient to suggest that “attempts to adjust differences may no longer be futile.” (PERB v. Modesto City Schools District (1982) 136 Cal.App.3d 881, 899.) “Most obviously, an impasse will be broken when one party announces a retreat from some of its negotiating demands.” (Ibid.) Once impasse is broken, “the duty to bargain revives.” (Ibid.) When employer unlawfully imposes the very terms under discussion, good faith bargaining is not possible, because union is forced to start from a position of having to talk the employer back to the status quo. (San Mateo County Community College District (1979) PERB Decision No. 94, p. 15.) more or view all topics or full text.	43	6	06/20/18
2571M	City of San Ramon 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General A party demonstrates bad faith when it rushes to impasse, or if its impasse declaration is “premature, unfounded, or insincere. Employer that raises impasse as a defense to a unilateral change must demonstrate that the parties were at impasse in their negotiations. (North Star Steel Co. (1991) 305 NLRB 45.) Even if the gap between the parties’ positions was substantial and prolonged, an employer may declare impasse only if it has bargained in good faith throughout negotiations, from inception through exhaustion of impasse resolution procedures, and its “conduct is free of unfair labor practices.” (City of San Jose (2013) PERB Decision No. 2341-M (San Jose), p. 40.) Otherwise, an employer’s impasse declaration is evidence of bad faith, irrespective of whether the employer imposes new terms. (County of Riverside (2014) PERB Decision No. 2360-M, p. 12.) If an employer declares impasse without reaching a bona fide good faith impasse, but the employer neither imposes new terms nor refuses to continue bargaining, PERB considers that evidence under the totality of conduct test. (Riverside, supra, PERB Decision No. 2360-M, p. 12.) If the employer refuses to bargain further or proceeds to impose new terms, that is further evidence of bad faith, and is also a per se violation. (Id. at p. 11.) more or view all topics or full text.	43	6	06/20/18
2522H	Trustees of the California State University 300.01000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; In General Probationary employee’s willingness to serve as a witness in support of fellow employee’s complaint against allegedly abusive supervisor was protected activity, regardless of whether the complaint procedure was administrative or collectively-bargained. Individual employee activity aimed at providing mutual aid or protection to a coworker is statutorily protected, notwithstanding its informal and spontaneous nature. (p. 17.) If individual employees are not free to act together informally and spontaneously to provide mutual aid or protection to one another, then it is unlikely that they may ever exercise their right to form or join, much less to participate in the activities of, an employee organization, a right expressly guaranteed by the PERB statutes. (p. 16.) more or view all topics or full text.	41	150	03/20/17
2522H	Trustees of the California State University 300.04000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Individual/Concerted/Activities/Self-Representation Probationary employee’s willingness to serve as a witness in support of fellow employee’s complaint against allegedly abusive supervisor was protected activity, regardless of whether the complaint procedure was administrative or collectively-bargained. Individual employee activity aimed at providing mutual aid or protection to a coworker is statutorily protected, notwithstanding its informal and spontaneous nature. (p. 17.) If individual employees are not free to act together informally and spontaneously to provide mutual aid or protection to one another, then it is unlikely that they may ever exercise their right to form or join, much less to participate in the activities of, an employee organization, a right expressly guaranteed by the PERB statutes. (p. 16.) more or view all topics or full text.	41	150	03/20/17
2522H	Trustees of the California State University 300.05000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Grievances Probationary employee’s willingness to serve as a witness in support of fellow employee’s complaint against allegedly abusive supervisor was protected activity, regardless of whether the complaint procedure was administrative or collectively-bargained. Individual employee activity aimed at providing mutual aid or protection to a coworker is statutorily protected, notwithstanding its informal and spontaneous nature. (p. 17.) If individual employees are not free to act together informally and spontaneously to provide mutual aid or protection to one another, then it is unlikely that they may ever exercise their right to form or join, much less to participate in the activities of, an employee organization, a right expressly guaranteed by the PERB statutes. (p. 16.) more or view all topics or full text.	41	150	03/20/17
2522H	Trustees of the California State University 300.06000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Demands for Change in Working Conditions Probationary employee’s willingness to serve as a witness in support of fellow employee’s complaint against allegedly abusive supervisor was protected activity, regardless of whether the complaint procedure was administrative or collectively-bargained. Individual employee activity aimed at providing mutual aid or protection to a coworker is statutorily protected, notwithstanding its informal and spontaneous nature. (p. 17.) If individual employees are not free to act together informally and spontaneously to provide mutual aid or protection to one another, then it is unlikely that they may ever exercise their right to form or join, much less to participate in the activities of, an employee organization, a right expressly guaranteed by the PERB statutes. (p. 16.) more or view all topics or full text.	41	150	03/20/17