| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| A502E |
Pasadena Area Community College District
1303.05000: REPRESENTATION ISSUES; ELECTIONS; Challenged Ballots
The Office of General Counsel (OGC) should impound challenged ballots without opening them and resolve challenges only if there are sufficient challenges to potentially impact the outcome. If that is the case, OGC may choose to resolve all challenges, or a subset based on limited issues that may be sufficient to render the remainder non-determinative. OGC should strive for efficiency in resolving challenges, as it does in compliance proceedings. (See, e.g., Bellflower Unified School District (2021) PERB Decision No. 2796, p. 22 [discussing option to accept sworn declarations in lieu of convening a compliance hearing].) (p. 16 & fn. 7.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1303.01000: REPRESENTATION ISSUES; ELECTIONS; In General
The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (p. 14.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1302.03000: REPRESENTATION ISSUES; DECERTIFICATION; Stay of
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination (AD) erred in establishing a certain voter eligibility test for a decertification election. The unit consists of full-time (regular) faculty and part-time (temporary) faculty. Many part-time faculty work intermittently, meaning they work some terms but not others, or work for one term only. The AD concluded that faculty are eligible to vote if they worked during either the Fall 2022 or Spring 2023 terms. The exclusive representative filed an interlocutory appeal, arguing that this standard would enfranchise many part-time faculty who do not have a reasonable expectation of future employment. The Board agent certified the appeal to the Board pursuant to PERB Regulation 32200. The Board partially sustained the appeal, holding as follows. Regular faculty may vote if they are employed in the unit on the eligibility cutoff date and are still employed when they cast their ballots. Because the District’s part-time faculty are intermittent employees, they may vote if their work on behalf of the District includes serving in a unit position during two or more of the most recent six instructional terms, including at least one of the most recent three instructional terms. The Board overruled State of California (Department of Personnel Administration) and Association of Staff, Administrative and Financial Employees (1985) PERB Decision No. 532-S to the extent it can be read as requiring the Office of the General Counsel to apply the same eligibility standards at the proof of support stage and the election stage. (pp. 4-5, 14-15.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
An appeal from an administrative determination does not automatically stay further proceedings. (PERB Reg. 32370.) However, the parties’ agreement to hold the decertification election in the fall mooted any need to formally stay the election pending the Board’s decision. The Board noted that while it is sometimes feasible to hold an election even though there are disputes over voter eligibility, as parties can challenge disputed ballots, which can then be impounded and sealed, with challenges resolved after the fact only if they are potentially dispositive in number, such a path would have been ill advised here because a large portion of the eligibility list was in dispute. Large-scale confusion over global issues (including voter eligibility or unit configuration) will tend to impair employee free choice. (City of Bellflower (2020) PERB Order No. Ad-480-M, p. 12, fn. 12.) In such circumstances, it is typically better to resolve the global issue(s) before holding an election. (Ibid.) (p. 3 & fn. 4.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| A502E |
Pasadena Area Community College District
1107.12000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Interlocutory Appeal
Exclusive representative asked Board agent to certify an interlocutory appeal to the Board over whether the Board agent’s administrative determination erred in establishing a certain voter eligibility test for a decertification election. The Board found that the dispute met all criteria for an interlocutory appeal under PERB Regulation 32200; because there was such a significant dispute over which employees may vote, the appeal involved more than just the “mechanics” of an election as that term is used in PERB Regulation 32380, subdivision (a). (p. 3 & fn. 4.) more or view all topics or full text. |
48 | 19 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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 modified the Order to correct an error and supplemented the remedy to include a verbal reading of the notice posting by a District representative to those District employees in the bargaining unit. (pp. 39-43.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
1205.03000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Notices; Posting, Reading, and Mailing
Because the remedy did not not fully restore the status quo for two employees who lost their department chair positions in retaliation for protected activity, and particularly because the District’s pervasive retaliatory conduct likely harmed their reputations in a way which could impact their ability to compete in future chair elections, 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.
A spoken notice reading is one example of a non-standard remedy that is warranted “whenever customary remedies are insufficient.” Here, however, declining to reinstate the employees as chairs—out of concern for innocent incumbents—could leave employees chilled by Brown’s 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.” (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. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
The Board found it relevant to nexus that the District removed two employees from their department chair positions, without notice, warning, or progressive discipline, for a single alleged act of insubordination and despite significant mitigating circumstances. (p. 31.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
504.13000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Unusually Harsh Treatment
Removing two employees as department chairs for missing a single, hastily-scheduled meeting without asking them their availability reflects a disproportionate response to the circumstances, which supports unlawful motive. (p. 32.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
If an employer takes adverse action shortly after an employee’s protected activities, this tends to suggest more strongly that the two are linked, and the inference of discrimination weakens as the gap in time grows. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 45.) However, timing alone is typically not determinative, and there is no bright line rule for determining how close in time the protected activity must be to the alleged retaliatory conduct. (Id. at p. 46.) Thus, while a charging party typically needs more than just timing evidence to prevail, if the timing inference is weak a charging party will normally need to marshal a stronger array of other, non-timing facts. (Ibid.) Here, all of the adverse actions occurred within 2 months of protected activities, supporting a strong inference of nexus. (pp. 27-29.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures
The Board finds departure from established procedures when an employer takes an adverse action in a way that is inconsistent with the way it normally goes about doing so. (Lake Elsinore Unified School District (2019) PERB Decision No. 2671, p. 7.) We may infer unlawful motive from a respondent’s departure from existing practices in its dealings with the charging party. (Garden Grove Unified School District (2009) PERB Decision No. 2086, adopting dismissal letter at p. 4.) To establish such an inference, the charging party must demonstrate what the respondent’s practice is and how the respondent deviated from that practice. (Ibid.; Los Angeles Unified School District (2014) PERB Decision No. 2390, pp. 11-12 & adopting proposed decision at p. 16.) In the instant matter, the Board found the District departed from established procedures in several ways when it removed Gibbons and Firtha as chairs, refused to recognize their reelection, and assigned them to Introductory Chemistry for the Fall 2020 semester. (pp. 29-30.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
The Board found that two employees’ reassignment to teach Introductory Chemistry for the Fall 2020 schedule constituted an adverse action. A reasonable employee would find a unilateral assignment to teach unfamiliar classes with more students to be adverse. (p. 26.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
503.05000: EMPLOYER DISCRIMINATION; ADVERSE ACTIONS; Transfer, Promotion, or Demotion; Work Assignments and Opportunities
PERB has found that a reasonable employee would view the loss of compensation, including paid release time, as an adverse action. (Fresno County Office of Education (2004) PERB Decision No. 1674, pp. 13-14.) In this matter, the employees’ positions as Department chairs included the opportunity for paid release time and extra duty time that they lost when the District decided they would no longer serve as chairs.
PERB case law has also found an adverse action when an employer strips an employee of duties. (San Diego Unified School District (2019) PERB Decision No. 2683, pp. 9-10.) The Board has found the mere threat of assigning an employee to a position that was “a step down” was adverse. (Trustees of the California State University (2009) PERB Decision No. 2038-H, pp. 11-12.) The employees, senior chemistry faculty members, suffered a loss of compensation, prestige, and duties when the District removed them from their departmental leadership positions via a department-wide e mail, and replaced them with without an Academic Senate election. A reasonable employee serving as a department chair would find a public removal from an elected and compensated position adverse. (pp. 24-25.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
300.15000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Speech
The Board found EERA protects on its face Firtha’s communication to the Academic Senate that she and another employee lost their department chair positions in retaliation for safety complaints. (City of Santa Maria (2020) PERB Decision No. 2736-M, p. 26.) If an employer challenges the accuracy of speech, the employer faces a heightened burden, and it 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. Gross or extreme negligence as to a statement’s truth does not rise to the level of actual malice. The District’s assertion that Brown believed the comments were untrue does not establish by clear and convincing evidence that the statements were maliciously false. (pp. 23-24.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College 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.) Where an employer claims that speech was so flagrant or insubordinate as to disrupt operations, 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. (Carpinteria, supra, PERB Decision No. 2797, p. 14.) When the speech at issue occurred by text message, e-mail, social media, or in another manner that was not face-to-face, there tends to be less likelihood of disruption. (Id. at p. 14, fn. 10.) In the instant matter, the Board found each of these factors favored the protected nature of Gibbons’s May 4 and May 5 e mails. (pp. 21-22.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2865E |
Mt. San Jacinto Community College District
300.06000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Demands for Change in Working Conditions
The Board has long held that EERA protects an employee’s pursuit of a safety related complaint through their union. (Oakdale Union Elementary School District (1998) PERB Decision No. 1246, p. 17 (Oakdale), citing Regents of the University of California (1983) PERB Decision No. 319-H, p. 15, fn. 6.) EERA also protects employees’ right to report safety concerns to their employer (Pleasant Valley School District (1988) PERB Decision No. 708, p. 15), as well as an individual employee’s right report safety concerns to a third party (Oakdale, supra, PERB Decision No. 1246, p. 18). Here, EERA protects the employees’ complaints regarding the lab safety and related staffing concerns and their related e-mailed complaints to District management and their union. (p. 19.) more or view all topics or full text. |
48 | 15 | 06/28/23 |
| 2858M |
City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Bargaining costs were proper make-whole relief where a preponderance of the evidence showed that the City’s MMBA violations illegally frustrated negotiations for more than three months, thereby imposing extra bargaining costs on the union. That portion of union negotiator’s salary attributable to time spent on the negotiations during that period may be compensable, as determined in compliance proceedings. Indeed, in City and County of San Francisco (2020) PERB Decision No. 2691-M, when the Board rejected the charging party’s claim that Charter section A8.409-4(k) is facially invalid, the Board noted that if the City did not interpret its Charter lawfully in the future, a charging party could obtain “reimbursement of costs, including but not limited to costs of bargaining, mediation, or interest arbitration.” (Id. at p. 51, fn. 32.) Accordingly, PERB ordered reimbursement of the union’s bargaining costs. (p. 17.) more or view all topics or full text. |
47 | 156 | 04/26/23 |
| 2858M |
City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
Just as an award of attorney fees and costs should not lose significant value because of extended litigation over the precise amount owed under the award (Bellflower Unified School District (2022) PERB Decision No. 2544a, pp. 56-57), the same is true for an award of bargaining costs. Therefore, after PERB awards bargaining costs, if subsequent disputes over the award’s value extend to such a degree that counsel for the prevailing party must perform work beyond drafting a first set of declarations and supporting briefing, then any further, reasonable time spent effectuating the award of fees and costs may be compensable irrespective of whether the opposing party acts frivolously in litigating the award’s value. (See Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 19-20.) more or view all topics or full text. |
47 | 156 | 04/26/23 |
| 2858M |
City and County of San Francisco
1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs
City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6 (Palo Alto) noted federal private sector labor law precedent that distinguishes between recovery of litigation costs and bargaining costs. (Id. at p. 8, fn. 6 [the “American Rule”—under which parties bear their own litigation costs absent egregious litigation conduct by the opposing party—is inapplicable to bargaining costs].) To the extent federal precedent requires a prevailing party seeking negotiation costs to show that its counterpart’s violations were particularly egregious, such a rule improvidently imposes a version of the American Rule for recovering negotiation costs. Adopting this approach would contravene the dual make-whole and deterrent functions of PERB remedies. Instead, under the statutes PERB administers, the severity of a respondent’s bargaining violations is relevant in assessing causation and the extent of damages. For instance, an egregious violation is more likely than a minor one to make bargaining unproductive for a longer time, thereby increasing the amount of bargaining costs attributable to the violation. (p. 16, fn. 9.) more or view all topics or full text. |
47 | 156 | 04/26/23 |
Notice Regarding Use of Generative Artificial Intelligence (“AI”) at PERB
For information about use of AI in PERB filings, see Atwater Elementary Teachers Association, CTA/NEA (Garcia) (2025) PERB Decision No. 2995-E and our FAQ.
