Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2928M	SunLine Transit Agency 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights 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 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights 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
2928M	SunLine Transit Agency 300.17000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Other An employer normally must permit off-duty protected activities, including activity in nonwork times and/or nonwork areas. (County of Tulare (2020) PERB Decision No. 2697-M, p. 20.) Thus, an employer acts unlawfully if it bars protected communications “during the workday” or on the employer’s “premises” or “property,” because the employer must tolerate such communications to the same extent as it tolerates other nonofficial activities, such as during breaks. Here, SunLine did not allege that Garcia filmed or posted any videos during his work hours. (Ibid.) (p. 22, fn. 11.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech It is unlikely that speech critical of management would be perceived as representing the employer’s opinion. Following similar reasoning, federal district courts have found no material risk of confusion when a union uses an employer’s name, logo, or other trademark as part of criticizing the company or attempting to organize its employees. (See, e.g., Trader Joe’s Company v. Trader Joe’s United (C.D.Cal.) 2024 WL 305697; Medieval Times USA, Inc. v. Medieval Times Performers United (D.N.J. 2023) 695 F.Supp.3d 593, 602-603 [collecting cases].) (p. 20 & p. 21, fn. 10.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech An employer can only restrict employees’ social media activity based on a showing of “special circumstances necessary to maintain production or discipline.” (Napa Valley Community College District (2018) PERB Decision No. 2563, p. 19 (Napa).) Indeed, while the Board held in Napa that e-mail is “a fundamental forum for employee communication in the present day, serving the same function as [employee] lunch rooms” (ibid.), the same is true for social media. (See, e.g., Alameda Health System (2023) PERB Decision No. 2856-M, pp. 7 & 34 [MMBA protected Facebook, Instagram, and Twitter posts showing employee wearing a garbage bag when there were insufficient gowns during COVID-19 pandemic].) If anything, it is normally more challenging to show special circumstances in restricting off-duty posts to a platform such as YouTube, which public employers neither own nor operate. Here, SunLine did not establish special circumstances. In fact, SunLine provided no evidence that viewers of Garcia’s videos, or viewers of any social media posts about SunLine, have ever been at significant risk of confusion because employees wore SunLine uniforms or failed to state that they were not speaking for SunLine. (pp. 21-22.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech PERB-administered statutes protect most union and employee speech related to legitimate labor and employment concerns. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 18 (San Jacinto).) For instance, employees normally have a statutory right to criticize working conditions, management, or union leadership, if the criticism relates to advancing employee interests or is a logical extension of group activity. (Ibid.) Such speech does not lose protection merely because it is intemperate, disparaging, or inaccurate, or engenders ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate or flagrant as to create a substantial disruption or the serious risk thereof. (Id. at pp. 21-22.) The Board no longer applies a formulation derived from Rancho Santiago Community College District (1986) PERB Decision No. 602, which strung together a series of adjectives to describe the types of speech that could lose protection. (Id. at p. 13 [speech unprotected if “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice”].) Instead, the Board applies one or both of the following two tests, depending on the nature of a respondent’s arguments asserting that speech has lost its protection. (See, e.g., Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14 (Carpinteria).) First, if an employer claims that union or employee speech loses protection because it is false, the employer must prove, by clear and convincing evidence, that the speech was maliciously false, meaning that the speaker either knew of its falsity or recklessly disregarded whether it was true or false. (San Jacinto, supra, PERB Decision No. 2865, p. 23.) Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. (Ibid.) Second, if the employer claims that speech was flagrant or insubordinate and therefore disruptive, PERB conducts a fact-intensive inquiry that considers all relevant circumstances, including but not limited to: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of what occurred; and (4) the extent to which the speech or conduct at issue can fairly be said to have been provoked by the employer. (San Jacinto, supra, PERB Decision No. 2865, p. 22.) Where speech about workplace issues occurs off duty, it is normally more difficult for the employer to show that it loses protection. (Ibid.; but see Carpinteria, supra, PERB Decision No. 2797, p. 14, fn. 10 [employer can take adverse action against employee who threatens physical harm against a colleague, no matter when or by what means the employee conveys the threat].) (pp. 18-19.) more or view all topics or full text.	49	82	10/31/24
2928M	SunLine Transit Agency 501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case Except for cases involving alleged facial discrimination, PERB considers a charging party’s discrimination or retaliation claim under the framework set forth in Novato Unified School District (1982) PERB Decision No. 210 (Novato) and its progeny. Under the Novato framework, the charging party’s prima facie case requires each of the following four elements: (1) one or more employees engaged in activity protected by a labor relations statute that PERB enforces; (2) the respondent had knowledge of such protected activity; (3) the respondent took adverse action against one or more employees; and (4) the respondent took the adverse action “because of” the protected activity, which PERB interprets to mean that the protected activity was a substantial or motivating cause of the adverse action. (Alameda Health System (2023) PERB Decision No. 2856-M, p. 27.) If the charging party establishes a prima facie case, but the evidence also reveals a non-discriminatory reason for the decision, the respondent may prove, as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Ibid.) (pp. 17-18.) more or view all topics or full text.	49	82	10/31/24
2904Ea	Clovis Unified School District 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing While PERB considers decisions of the National Labor Relations Board (NLRB) only for their persuasive value, NLRB precedent supports specifying exactly how an employer must provide notice of a decision against it. (See, e.g., HTH Corporation (2014) 361 NLRB 709, 713-716 [specifying the high level executives, supervisors, and managers who must attend spoken notice readings, with sign-in sheets required; and further requiring that notice of NLRB’s findings and separate explanation of rights be electronically posted and physically posted at worksite for three years, mailed to all employees, supervisors, and managers, published twice weekly for eight weeks in two local publications chosen by the NLRB, and provided to all new employees, supervisors, and managers within 7 days of hiring, for three years); United States Service Industries (1995) 319 NLRB 231, 232 [requiring that notice must be translated to Spanish, and specifying that operations manager must read the notice or be present while NLRB agent reads it, “because the record indicates that the employees view him as the personification of the Company.”]) (p. 40, fn. 14.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing The District’s argument--that the Board’s remedial order requiring recently appointed superintendent to read PERB’s notice verbatim would violate superintendent’s constitutional rights—was contrary to precedent. (See, e.g., Barke v. Banks (9th Cir. 2022) 25 F.4th 714, 719 [public officials’ statements in their official capacities do not implicate individual constitutional rights].) Choosing the superintendent to read the notice does not reflect any finding of bad intent on the superintendent’s part, as intent is irrelevant to the violations found. (Clovis Unified School District (2024) PERB Decision No. 2904, p. 36.) Rather, the superintendent is the District official whose participation in the spoken notice will have the greatest tendency to convince listeners that the District will, in fact, comply with the law going forward. (pp. 38-39.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing As explained in Clovis Unified School District (2024) PERB Decision No. 2904 (Clovis), spoken notice is appropriate if customary notice methods, in combination with other remedies, are insufficient. (Id. at p. 65.) To partially level the playing field after decades of District domination of the Faculty Senate, the Board ordered the District to create a video showing the superintendent reading PERB’s notice, and to play the video at regularly scheduled meetings of teachers at each school, during the school year. Although the Board’s only other spoken notice order did not specify video recording or a particular speaker (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 43), that case involved a smaller employer with fewer sites, and the violation was retaliation against two faculty members. Because the District is larger with far more sites, and the violations are more longstanding and wide reaching, the circumstances warranted a video recording by the District’s superintendent. (pp. 37-40.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization The District cited no supporting authority for its argument that disestablishment infringes on its employees’ associational rights, and PERB has long since rejected such argument. (Redwoods Community College District (1987) PERB Decision No. 650, p. 67). (p. 42.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization EERA section 3543.5, subdivision (d) makes it unlawful for an employer to “[d]ominate or interfere with the formation or administration of any employee organization, or contribute financial or other support to it, or in any way encourage employees to join any organization in preference to another.” Disestablishment is the standard remedy for domination violations, even when the domination has ended. (Clovis Unified School District (2024) PERB Decision No. 2904, p. 62. Thus, even were the Board to consider new evidence submitted by the District as part of its reconsideration request, showing that the District eventually discontinued paying stipends and release time to the Faculty Senate, disestablishment of the Faculty Senate would still be necessary because the District’s longstanding, significant monetary support to the Senate provided it with an expensive head start that no other organization could match. (Id. at pp. 58-63.) Indeed, disestablishment is far superior to ordering the employer to level the playing field by providing a competing organization with substantial monetary and in-kind support allowing it to build its organization to the same degree as the formerly dominated organization. (Id. at p. 59 [“To do so would simply replace one employer dominated employee organization with another.”].) (pp. 7, 12; see also p. 41 [disestablishment is necessary even when domination has ended]).) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration The District’s argument that the Board’s remedial order requiring recently appointed superintendent to read PERB’s notice verbatim would violate superintendent’s constitutional rights was not a proper basis for reconsideration. To the extent the District asked the Board to consider new evidence—the fact that the District changed superintendents a year before---the District did not timely seek to reopen the record when it knew that fact, nor would taking note of that fact change the Board’s order. more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration The District’s argument that an employer statement of its views falls within a legal safe harbor if “the communication does not on its face carry the threat of reprisal or force or promise of benefit” was improper in a reconsideration request as it challenged a legal conclusion. more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration The District’s reconsideration request was procedurally improper. First, the District sought to relitigate legal issues or application of law to facts. Moreover, the District raised issues that it had long since waived by not filing exceptions to the ALJ’s conclusions. Further, those portions of the District’s reconsideration request that relied on new evidence were flawed. Even had the District established that its new evidence was relevant, the District failed to establish PERB Regulation 32410’s other four requirements for submitting new evidence in a reconsideration request. The District’s declarations failed to specify when the District discovered the new facts, how soon thereafter it sought to reopen the record or otherwise bring the facts to the Board’s attention, or why it could not have done so earlier. And it was clear from the nature of the assertedly new evidence that it was previously available, could have been discovered with the exercise of reasonable diligence, and was not submitted close to the time of discovery. Accordingly, the Board excluded the District’s proposed new evidence from the record. (pp. 6-7.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration An error or omission in a remedial order can be a proper subject of reconsideration under the newly discovered evidence standard. (County of Ventura (2021) PERB Decision No. 2758a-M, p. 2.) However, this represents “a narrow avenue” allowing corrections to inadvertent errors, and it “does not allow parties to reassert remedy arguments that [the Board has] already considered and rejected.” (Id. at pp. 2-3; see also id. at p. 3, fn. 2 [reconsideration request is proper where certification order included an incorrect classification, backpay order mistakenly began relief on day of termination rather than day of administrative leave, or PERB otherwise made an inadvertent remedial error].) Thus, whether a reconsideration request focuses on the Board’s remedy or any other aspect of a Board decision, a party may not use the reconsideration process “to register its disagreement with the Board’s legal analysis, to re-litigate issues that have already been decided, or simply to ask the Board to try again.” (Id. at p. 3 [internal quotation marks and citations omitted].) (pp. 4-5, 36.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration Requests for reconsideration are subject to the strict standard set forth in PERB Regulation 32410. A request for reconsideration may be filed because of extraordinary circumstances. The grounds for requesting reconsideration are limited to claims that: (1) the decision of the Board itself contains prejudicial errors of fact, or (2) the party has newly discovered evidence which was not previously available and could not have been discovered with the exercise of reasonable diligence. A request for reconsideration based upon the discovery of new evidence must be supported by a declaration under the penalty of perjury which establishes that the evidence: (1) was not previously available; (2) could not have been discovered prior to the hearing with the exercise of reasonable diligence; (3) was submitted within a reasonable time of its discovery; (4) is relevant to the issues sought to be reconsidered; and (5) impacts or alters the decision of the previously decided case. (PERB Reg. 32410(a).) (p. 4.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration A party who has failed to file exceptions may not use a reconsideration request “to make up for shortcomings in their previous filings.” (Alliance College-Ready Public Schools, et al. (2018) PERB Decision No. 2545a, p. 5.) (p. 6.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 1105.14000: CASE PROCESSING PROCEDURES; EVIDENCE; Witnesses: Credibility, Cross Examination and Impeachment; Pretrial Statements While a Board agent has authority to receive evidence by declaration if warranted (City of Santa Clara (2016) Decision No. 2476-M, pp. 9-10), witness evidence tends to be more dependable when it is subject to cross-examination. (p. 7, fn. 4.) more or view all topics or full text.	49	74	10/14/24
2904Ea	Clovis Unified School District 409.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Discontinuance of Illegal Activity; Retraction; Repudiation; Public Disavowal An employer must make a diligent effort if it hopes to erase the effects of its interference via an “honestly given retraction.” (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 31.) Indeed, a retraction is irrelevant unless it is: (1) timely; (2) unambiguous; (3) specific in nature to the coercive conduct; (4) free from other illegal conduct; (5) adequately publicized to the affected employees; (6) not followed by other illegal conduct; and (7) accompanied by assurances the employer will not interfere with protected rights in the future. (Ibid.) The District’s partial, tardy actions to pull back on conduct which tended to influence employee free choice of bargaining representative did not meet any of the above criteria, much less all of them. (pp. 15-17.) more or view all topics or full text.	49	74	10/14/24
A519H	Regents of the University of California (Los Angeles) 1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals PERB Regulation 32300(b), as revised in 2022, directs an excepting party to file “a single integrated document that must not exceed 14,000 words, including footnotes,” and which “may be in the form of a brief.” In this case, however, Respondent instead filed two separate documents, following a practice that Regulation 32300 permitted before 2022. PERB’s Appeals Office rejected Respondent’s exceptions and supporting brief because Respondent filed two documents rather than a single document. PERB has discretion whether to accept or reject either or both documents, or to grant an extension of time to allow an adjusted filing that would comply with PERB Regulations. (Regents of the University of California (2023) PERB Decision No. 2880-H, p. 6; The Accelerated Schools (2023) PERB Decision No. 2855, pp. 8-9; PERB Regs. 32132 & 32136.) Although either of Respondent’s two filings would have been sufficient to allow the Board to research and resolve the matter, the Board allowed the filing of Respondent’s brief because it was more integrated and useful, while disallowing Respondent’s other filing. (pp. 1-2.) more or view all topics or full text.	49	56	09/05/24
2916Ta	Los Angeles County Metropolitan Transportation Authority 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration Board decisions since Berkeley Federation of Teachers, Local 1078 (Crowell) (2015) PERB Decision No. 2405a have held that reconsideration is available only where the underlying Board decision reviewed a proposed decision based on a developed factual record. Decisions reviewing administrative determinations by PERB’s Office of the General Counsel to grant or deny representation petitions without a formal hearing are not subject to reconsideration under this rule. more or view all topics or full text.	49	88	11/15/24
2916Ta	Los Angeles County Metropolitan Transportation Authority 1107.10000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Request for Reconsideration Pursuant to PERB Regulation 32410, requests for reconsideration must allege prejudicial errors of fact or newly discovered evidence that would affect the outcome of the case. An employer’s claim that the Board erred in determining it had not raised an objection to a unit modification petition based on statutory community of interest factors was a claimed legal error and not a valid request for reconsideration. more or view all topics or full text.	49	88	11/15/24
2930E	Hacienda La Puente Unified School District 1206.01000: REMEDIES FOR UNFAIR PRACTICES; MODIFICATION OF PRIOR REMEDY; In General The Legislature has vested PERB with broad authority to decide what remedies are necessary to effectuate the purposes and policies of EERA and the other acts we enforce. (EERA, § 3541.5, 1st par. & subd. (c); Mt. San Antonio Community College Dist. v. Public Employment Relations Bd. (1989) 210 Cal.App.3d 178, 189.) PERB remedies must serve the dual purposes of compensating for harms that an unfair practice causes and deterring further violations. (County of San Joaquin v. Public Employment Relations Bd. (2022) 82 Cal.App.5th 1053, 1068; The Accelerated Schools (2023) PERB Decision No. 2855, p. 16 (Accelerated Schools); Bellflower Unified School District (2022) PERB Decision No. 2544a, p. 26.) Our de novo review on exceptions to a proposed decision includes review of the proposed remedy. (Accelerated Schools, supra, PERB Decision No. 2855, pp. 16-31).) Here, in reviewing the remedy de novo, the Board supplemented the remedy to include a verbal reading of the notice posting by a District representative to those District employees in the bargaining unit. more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing A spoken notice reading is one example of a non-standard remedy that is warranted “whenever customary remedies are insufficient.” (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 56.) Here, the District’s actions caused the Chapter President to decline to run for that office when her term was up, and could leave other employees chilled by its retaliatory acts. The Board therefore found that this case called for a non-standard remedy. “Notice reading is a way to let in a ‘warming wind of information’ to not only alert employees to their rights but also impress upon them that, as a matter of law, their employer or union must and will respect those rights in the future. Reading the notice (and any explanation of rights) aloud disseminates that information through the work force in a clear and effective way.” (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 42-43 citing Noah’s Ark Processors, LLC D/B/A WR Reserve (2023) 372 NLRB 80, p. 6, citations omitted.) (pp. 42-43.) more or view all topics or full text.	49	91	11/15/24