Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2930E	Hacienda La Puente Unified School District 505.11000: EMPLOYER DISCRIMINATION; DEFENSES; Legitimate Business Purpose/Business Necessity If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) In such “mixed motive” or “dual motive” cases, the question becomes whether the adverse action would not have occurred “but for” the protected activity. (Id. at p. 16.) To make this determination, we weigh the evidence supporting the employer’s justification for the adverse action against the evidence of the employer’s unlawful motive. (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 19; Rocklin Unified School District (2014) PERB Decision No. 2376, p. 14; Palo Verde Unified School District (2013) PERB Decision No. 2337, p. 33.) As a result, the outcome of a discrimination or retaliation case ultimately is determined by the weight of the evidence supporting each party’s position. (See Novato Unified School District (1982) PERB Decision No. 210, p. 14.) Even direct evidence of unlawful motivation does not bar a respondent from proving that an employee’s protected activity was not the true motivation for its action. (Regents of the University of California (2012) PERB Decision No. 2302-H, p. 4.) (p. 35.) more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General While PERB considers all relevant facts and circumstances in assessing an employer’s motivation, we have identified the following factors as being the most common means of establishing a discriminatory motive, intent, or purpose: (1) timing of the employer’s adverse action in relation to the employee’s protected conduct; (2) disparate treatment; (3) departure from established procedures or standards; (4) an inadequate investigation; (5) a punishment that is disproportionate based on the relevant circumstances; (6) failure to offer a contemporaneous justification, or offering exaggerated, questionable, inconsistent, contradictory, vague, or ambiguous reasons; (7) employer animosity towards union activists; and (8) any other facts that might demonstrate the employer’s unlawful motive. (City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 21.) (pp. 26-27.) more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 503.01000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; In General PERB uses an objective test to determine whether an employer’s action is adverse. (City of San Diego (2020) PERB Decision No. 2747-M, p. 27.) “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 on the employee’s employment.” (Ibid.) Context is highly relevant in determining whether non-punitive directives are adverse. (Ibid.) (p. 24.) more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 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. (San Diego Unified School District (2019) PERB Decision No. 2634, p. 12 & fn. 6.) 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. (City of San Diego (2020) PERB Decision No. 2747-M, p. 26; City and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If a charging party establishes a prima facie case of retaliation, and the evidence also reveals a non-discriminatory reason for the employer’s decision, the respondent may prove, by a preponderance of the evidence as an affirmative defense, that it would have taken the exact same action even absent protected activity. (Ibid.) (pp. 17-18.) more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech EERA allows employee and union speech on protected topics to be impulsive, intemperate, disparaging, or inaccurate, and thereby engender ill feelings and strong responses, unless the employer meets its burden to prove such speech was maliciously dishonest or so insubordinate, opprobrious, or flagrant as to cause substantial disruption in the workplace. (Carpinteria Unified School District (2021) PERB Decision No. 2797, pp. 13-14, 16; Mt. San Jacinto Community College District (2018) PERB Decision No. 2605, pp. 9-14; County of Riverside (2018) PERB Decision No. 2591, p. 9; Chula Vista Elementary School District (2018) PERB Decision No. 2586, p. 16.) more or view all topics or full text.	49	91	11/15/24
2930E	Hacienda La Puente Unified School District 300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech PERB no longer follows a singular test for finding speech unprotected. The superseded test had found speech unprotected if it was so “opprobrious, flagrant, insulting, defamatory, insubordinate, or fraught with malice” as to cause “substantial disruption of or material interference” with operations. (Rancho Santiago Community College District (1986) PERB Decision No. 602.) However, the Board now analyzes whether: (1) speech is proven, by clear and convincing evidence, to have been maliciously false; or (2) speech was sufficiently flagrant or insubordinate as to cause substantial disruption in the workplace, based on all relevant circumstances, including but not limited to: (a) place or forum in which the speech occurred; (b) its subject matter; (c) nature of what occurred; and (d) the extent to which the speech was provoked. (SunLine Transit Agency (2024) PERB Decision No. 2928-M, pp. 18-19; Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, pp. 21-23; Carpinteria Unified School District (2021) PERB Decision No. 2797, p. 14.) more or view all topics or full text.	49	91	11/15/24
2904E	Clovis Unified School District 1205.10000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Other Affirmative Relief Pursuant to PERB Regulation 32700, subdivision (b) proof of support for a recognition request or certification petition under EERA normally remains valid for one year. The Board affirmed extension of that period to one year from the date PERB’s decision becomes final as a proper means to address the District’s domination, interference, and PEDD violations.) (p. 63.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing PERB orders spoken notice if customary notice methods, in combination with other remedies, are insufficient. (Mt. San Jacinto Community College District (2023) PERB Decision No. 2865, p. 42.) Such a remedy was necessary given the egregious violations. The Board required the District to: (1) make a video recording in which the District superintendent reads the Appendix to the final Board decision, verbatim, with no other statement of any kind, and provides the rival nonexclusive representative with a true, unedited copy of the video; (2) show the video at a regular staff meeting of certificated employees at each school site (or at a special meeting, if and only if the rival nonexclusive representative and the District agree); and (3) provide the rival nonexclusive representative with at least 10 days’ notice as to when the District will show the video at each school site, and an opportunity to attend each viewing. The Board did not order the Senate to engage in a spoken notice reading, as it was doubtful that the Senate could accomplish such a task without assistance from the District, and the Board’s order prohibits the two entities from having any relationship regarding District teachers’ terms and conditions of employment. (p. 65.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization The Board disestablished all relationships between the Senate and the District having to do with District teachers’ terms and conditions of employment within the meaning of EERA section 3543.2., and extended that remedy to any successor, alias, or alter ego of the Senate, including Clovis Teachers Organization (CTO), an alter ego of the Senate, to the extent that CTO still exists or resumes activity. (Redwoods Community College District (1987) PERB Decision No. 650, pp. 4-5; see also Phillips Petroleum Co. (Kansas City) (1942) 45 NLRB 1318, 1359 [for those employer-dominated organizations no longer active, NLRB orders employer to refrain from recognizing organizations should they return to active existence].) (p. 63.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization In Antelope Valley Community College District (1979) PERB Decision No. 97 (Antelope), the ALJ may have partially misunderstood the meaning of disestablishment, believing it was impossible to issue such an order if the employee organization was not a party. (Id., attached proposed decision at p. 25.) Any such notion would be error, because it is possible to break the ties between two organizations by ordering one of them to break off ties. Indeed, both the Board and the ALJ in Antelope took steps toward doing so. (Id. at p. 27 & attached proposed decision at p. 25 [noting that disestablishment was “essentially accomplished” by ordering employer to cease dealing with dominated organization on matters within the scope of representation].) Here, where both the District and the Senate are parties, the Board ordered both parties to break off ties. (p. 62, fn. 15.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization Benign or malevolent intent is irrelevant to remedying employer domination. (Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 61(Redwoods) [“Section 3543.5(d) unqualifiedly forbids unlawful support, interference and the kinds of actions taken by the [employer] which otherwise tend to influence employee choice, be they benevolent or malevolent”].) Legally, intent is irrelevant to domination violations. And compliance with the law after a rival nonexclusive representative announced its organizing campaign would not have erased decades of entrenched favoritism and the resulting severely tilted playing field. As the NLRB noted in Electromation, Inc. (1992) 309 NLRB 990, disestablishment is proper “even if a concededly employer-dominated organization were altered to remove the elements of unlawful domination,” because removing such ongoing illegality does not transform the organization into a lawful one. (Id. at pp. 995-996, fn. 24, citing National Labor Relations Bd. v. Newport News Shipbuilding & Dry Dock Co. (1939) 308 U.S. 241.) The Board determined that to secure free choice in the District for the first time since EERA’s passage almost five decades ago, it must break the ties between the District and the Senate. (Redwoods, supra, PERB Decision No. 650, adopting proposed decision at pp. 63-64.) (pp. 60-62.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization In Redwoods Community College District (1987) PERB Decision No. 650 (Redwoods), PERB followed federal law and found that disestablishment is the appropriate remedy if a school district dominated a nonexclusive representative, whereas a cease-and-desist order is sufficient if the school district provided the nonexclusive representative with unlawful support or interfered with its formation or administration. (Id., adopting proposed decision at p. 62.) The Board clarified one point in Redwoods, supra, PERB Decision No. 650, which noted in passing that disestablishment may be less disruptive if the dominated organization is a “young” one without “stronger historical ties to employees or the [employer].” (Id., adopting proposed decision at p. 66.) Contrary to that suggestion, the Board clarified that disestablishment and the attendant disruption does not become improper if the dominated organization is more established, with stronger ties. (pp. 55, 59-60.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization Disestablishment is the appropriate remedy if a school district dominated a nonexclusive representative, whereas a cease-and-desist order is sufficient if the school district provided the nonexclusive representative with unlawful support or interfered with its formation or administration. (Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 62 (Redwoods); cf. Ventura Community College District (1994) PERB Decision No. 1073, adopting proposed decision at pp. 31-32 [cease and desist order appropriate where employer provided unlawful support, but domination not proven].) Disestablishment is a customary remedy for domination in the public sector, but it is very uncommon, because it is almost unheard of for a California public entity to engage in such conduct. Cases involving employer domination arise more commonly in the private sector, and disestablishment remains the NLRB’s customary remedy for such a violation. (See, e.g., T-Mobile USA, Inc. (2022) 372 NLRB No. 4, at p. 9, enfd. T-Mobile USA, Inc. v. NLRB (D.C. Cir. 2024) 90 F.4th 564 [affirming NLRB decision ordering disestablishment].) A disestablishment order is proper when a cease-and-desist order would be insufficient to overcome years (or decades) of advantages given to an employer-dominated organization. The NLRB and PERB long ago concluded that disestablishment is the only means to effectively remedy domination. (See, e.g., Jack Smith Beverages, Inc. (6th Cir. 1953) 94 NLRB 1401, 1404 (1951), enfd. 202 F.2d 100, 101 [“The [NLRB] continues to be of the opinion that the only effective remedy for a situation in which an employer is found to have unlawfully dominated a labor organization is to order the employer to disestablish the union.”]; Redwoods, supra, PERB Decision No. 650, adopting proposed decision at p. 62.) (pp. 55-59.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.03000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; Decertification or Disestablishment of Labor Organization “Disestablishment” is a term of art that generally refers to “a complete and permanent termination of all relationships between an employer and the affected labor organization, and any successor[,] having to do with wages, hours, and working conditions,” but “does not necessarily mean complete dissolution of the organization.” (See, e.g., National Labor Relations Board (NLRB) Compliance Manual, § 10528.6, https://www.nlrb.gov/sites/default/files/attachments/pages/node-174/compliancemanual-october-2020.pdf [last accessed June 20, 2024].) Disestablishment is the standard remedy in the infrequent cases involving domination. Alternatively, disestablishment is the appropriate remedy where violations other than domination were egregious, recurrent, and persistent. (p. 4.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General Non-customary remedies are appropriate in a variety of circumstances, including where conduct was egregious, intentional, systematic, or repeated; or whenever customary remedies are insufficient, including but not limited due to the nature or duration of the conduct. (Regents of the University of California (2021) PERB Decision No. 2755-H, pp. 55-56.) Such circumstances notably include PEDD and EERA violations that have such long-lasting impacts on employee free choice that traditional remedies may be inadequate to restore such free choice. (Ibid.; Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 6 & adopting administrative determination at p. 4.) (p. 54.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 805.01000: UNION UNFAIR PRACTICES; CAUSING EMPLOYER TO VIOLATE ACT; In General EERA section 3543.6, subdivision (a) bars an employee organization from causing or attempting to cause an employer to commit an unfair practice, while subdivision (b) bars an employee organization from interfering with rights that EERA protects. The test for alleged interference by an employee organization is the same as the test for alleged interference by an employer (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, p. 13), except that in cases involving alleged threats or coercion, PERB recognizes that an employee organization does not have the same power over employees as an employer (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23). (p. 49.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 801.01000: UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION; In General Faculty Senate violated EERA section 3543.6, subdivision (b) via four statements in which the Senate held itself out as the teachers’ sole representative, even though it was not an exclusive representative. The falsity of the Senate’s statements is one factor PERB considered in its interference analysis. (City of San Diego (2020) PERB Decision No. 2747-M, p. 37.) The most important reason PERB found the statements unlawful is that they were part of a synergistic effort by the District and the Senate, spanning many years but accelerated once a rival nonexclusive representative began organizing to: (a) create the perception of a single, exclusive employer-dominated employee organization, without being certified or recognized as an exclusive representative; and (b) grant that body preferential rights and support that would forestall unionization. This effort became a reality not only through preferential treatment and employer domination, interference, and support, but through repeated false statements to teachers and attacks on the rival nonexclusive representative for pointing out the illegality of the scheme. The entire stratagem was inherently destructive of protected rights, and, in the alternative, there was no operational necessity justifying it. (pp. 50-53.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 801.01000: UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION; In General To establish a prima facie interference case, a charging party must show that the respondent’s conduct tends to or does result in some harm to protected rights. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 23.) A charging party need not establish that the respondent had an unlawful motive. (Ibid.) If the charging party establishes a prima facie case, the burden shifts to the respondent. (Ibid.) The degree of harm dictates the respondent’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the respondent must show that the interference results from circumstances beyond its control and that no alternative course of action was available. (Ibid.) For conduct that is not inherently destructive, the respondent may attempt to justify its actions based on operational necessity. (Ibid.) 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 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.) (pp. 49-50.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 801.01000: UNION UNFAIR PRACTICES;RESTRAINT, COERCION, INTERFERENCE OR DISCRIMINATION; In General EERA section 3543.6, subdivision (a) bars an employee organization from causing or attempting to cause an employer to commit an unfair practice, while subdivision (b) bars an employee organization from interfering with rights that EERA protects. The test for alleged interference by an employee organization is the same as the test for alleged interference by an employer (Service Employees International Union, Local 99 (Kimmett) (1979) PERB Decision No. 106, p. 13), except that in cases involving alleged threats or coercion, PERB recognizes that an employee organization does not have the same power over employees as an employer (San Jose/Evergreen Federation of Teachers, AFT Local 6157, and American Federation of Teachers, AFL-CIO (Crawford et al.) (2020) PERB Decision No. 2744, p. 23). (p. 49.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 701.01000: EMPLOYER DOMINATION OR ASSISTANCE; DEFENSES; In General Benign or malevolent intent is irrelevant to remedying employer domination. (Redwoods Community College District (1987) PERB Decision No. 650, adopting proposed decision at p. 61(Redwoods) [“Section 3543.5(d) unqualifiedly forbids unlawful support, interference and the kinds of actions taken by the [employer] which otherwise tend to influence employee choice, be they benevolent or malevolent”].) Legally, intent is irrelevant to domination violations. And compliance with the law after a rival nonexclusive representative announced its organizing campaign would not have erased decades of entrenched favoritism and the resulting severely tilted playing field. As the NLRB noted in Electromation, Inc. (1992) 309 NLRB 990, disestablishment is proper “even if a concededly employer-dominated organization were altered to remove the elements of unlawful domination,” because removing such ongoing illegality does not transform the organization into a lawful one. (Id. at pp. 995-996, fn. 24, citing National Labor Relations Bd. v. Newport News Shipbuilding & Dry Dock Co. (1939) 308 U.S. 241.) The Board determined that to secure free choice in the District for the first time since EERA’s passage almost five decades ago, it must break the ties between the District and the Senate. (Redwoods, supra, PERB Decision No. 650, adopting proposed decision at pp. 63-64.) (pp. 60-62.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 701.01000: EMPLOYER DOMINATION OR ASSISTANCE; DEFENSES; In General Where the Senate is literally dependent on the District’s support and does not collect dues, the Senate’s lack of other resources alone defeats any defense to a domination charge the District and the Senate could otherwise attempt. (Clovis Unified School District (2021) PERB Order No. IR-63, p. 24.) This is true even without any competing organization present. (Id. at p. 22, fn. 14, quoting Azusa Unified School District (1977) EERB Decision No. 38, adopting recommended decision at pp. 6-7[“it may be an unfair practice to render assistance to an employee organization even if there is no other organization in competition with it.”].) Even if member dues were the predominant source of the Senate’s resources, the District’s support would still be unlawful because it occurred in the context of pervasive domination and interference with Senate administration. Such conduct is inherently destructive of protected rights because it tends to chill employees from creating competing organizations. Finally, the District’s support was unlawful because it was unequal, as the District never offered support to other nonexclusive representatives. While an employer typically need not provide a nonexclusive representative with the same support it has bargained with an exclusive representative, if there are only competing nonexclusive representatives, the employer must treat them equally. (pp. 43-44.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 700.01000: EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS; In General Because an employer has greater legal obligations to an exclusive representative than to a nonexclusive representative, the duty of strict neutrality does not always require an employer to afford the latter type of organization all the same privileges as the former. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 22-23, fn. 14; County of San Bernardino (2018) PERB Decision No. 2556-M, p. 10, fn. 11 & pp. 18-19; West Contra Costa Healthcare District (2010) PERB Decision No. 2145-M, p. 22.) (p. 45, fn. 11.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 700.01000: EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS; In General EERA section 3543.5, subdivision (d) prohibits an employer from “in any way” encouraging employees to join any organization in preference to another.” Therefore, whenever two employee organizations are competing for the right to represent the same employees, and neither organization is certified as the employees’ exclusive representative, the employer must remain strictly neutral. (County of Monterey (2004) PERB Decision No. 1663-M, adopting proposed decision at pp. 17-18; Clovis Unified School District (1984) PERB Decision No. 389, p. 7 [the appearance of a competing employee organization imposes on the employer an additional affirmative obligation of strict neutrality].) To establish a prima facie case that an employer violated this duty of strict neutrality, the test is “whether the employer’s conduct tends to influence [free] choice or provide stimulus in one direction or the other.” (Santa Monica Community College District (1979) PERB Decision No. 103, p. 22.) “An employer that does not maintain strict neutrality in the face of competing employee organizations is deemed to encourage employees to prefer one organization over another, in violation of employees' right to choose an organization free of employer interference. (Clovis Unified School District (2021) PERB Order No. IR-63, pp. 28-29, quoting Azusa, supra, EERB Decision No. 38, pp. 7-8.) Strict neutrality required the District to discontinue its financial and other support to the Senate, or to affirmatively make similar assistance available to all employee organizations. (Id. at pp. 28-29.) (pp. 44-46.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 700.01000: EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS; In General Where the Senate is literally dependent on the District’s support and does not collect dues, the Senate’s lack of other resources alone defeats any defense to a domination charge the District and the Senate could otherwise attempt. (Clovis Unified School District (2021) PERB Order No. IR-63, p. 24.) This is true even without any competing organization present. (Id. at p. 22, fn. 14, quoting Azusa Unified School District (1977) EERB Decision No. 38, adopting recommended decision at pp. 6-7 [“it may be an unfair practice to render assistance to an employee organization even if there is no other organization in competition with it.”].) Even if member dues were the predominant source of the Senate’s resources, the District’s support would still be unlawful because it occurred in the context of pervasive domination and interference with Senate administration. Such conduct is inherently destructive of protected rights because it tends to chill employees from creating competing organizations. Finally, the District’s support was unlawful because it was unequal, as the District never offered support to other nonexclusive representatives. While an employer typically need not provide a nonexclusive representative with the same support it has bargained with an exclusive representative, if there are only competing nonexclusive representatives, the employer must treat them equally. (pp. 43-44.) more or view all topics or full text.	49	14	06/20/24
2904E	Clovis Unified School District 700.01000: EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS; In General EERA section 3543.5, subdivision (d) bars an employer from contributing “financial or other support” to an employee organization. To effectuate EERA’s purposes, this provision allows an employer to “extend benefits to a labor organization in a spirit of cooperation,” provided it does not “lend so much assistance that the employee organization appears to become a ‘company union.’” (City of Arcadia (2019) PERB Decision No. 2648-M, p. 24 (Arcadia).) In applying this standard, PERB examines the totality of an employer’s conduct to determine whether its support for an organization would tend to inhibit employees in their free choice regarding a bargaining representative or interfere with the representative’s maintenance of an arm’s length relationship with the employer. (Clovis Unified School District (2021) PERB Order No. IR-63 (Clovis), pp. 21-22, citing Arcadia, supra, PERB Decision No. 2648-M, pp. 24-25.) This is an objective test. (Clovis, supra, PERB Order No. IR-63, p. 22.) The key question is whether the employer provides support while engaging in preferential treatment, domination, or interference. (Id. at pp. 22-25 [explaining that EERA section 3543.5, subdivision (d) is not a flat ban on financial or other support to an employee organization, but rather a nuanced one that depends on the circumstances].) For example, an employer offering release time to one nonexclusive representative must offer it equally to all nonexclusive representatives. (Clovis, supra, PERB Order No. IR-63, pp. 25.) As another example, employer support is more likely to make an organization appear to be a company union (and therefore be unlawful) if the organization primarily draws its financial support from the employer rather than from its members. (Id. at p. 24, fn. 15.) In contrast, it is typically lawful for an employer to bargain release time or other support with an exclusive representative that also has substantial other resources, though the employer may not otherwise interfere with or dominate the organization. And an employer that does reach such a deal with an exclusive representative typically need not provide equal support to a nonexclusive representative seeking to decertify the exclusive representative, as a nonexclusive representative is definitionally not comparable to an exclusive representative. (Id. at p. 25.) Employer payments to a union do not create the impression of a company union, and therefore are lawful, if a court or governmental agency orders them to remedy legal violations. (pp. 41-42.) more or view all topics or full text.	49	14	06/20/24