Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2858M	City and County of San Francisco 1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs A party seeking an award of attorney fees or other litigation expenses based on legal work performed in that case normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11 (Sacramento City USD).) In contrast, for a charging party to obtain an award based on some or all of the cost of bargaining or otherwise representing employees, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 8, fn. 6; see also Alliance Judy Ivie Burton Technology Academy High et al. (2022) PERB Decision No. 2809, pp. 14, 31-32 [judicial appeal pending]; Oxnard Union High School District (2022) PERB Decision No. 2803, p. 3; County of Santa Clara (2021) PERB Decision No. 2799-M, p. 28, fn. 14; Sacramento City USD, supra, p. 2749, p. 15; City and County of San Francisco (2020) PERB Decision No. 2691-M, p. 51, fn. 32.) (p. 15.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General City violated the MMBA by unlawfully interpreting its Charter and thereby refusing to bargain over retroactivity for more than three months. The City is not immune from liability for new unlawful conduct vis-à-vis a different union merely because it had interpreted its Charter unlawfully in an earlier instance involving a different union and had a pending appeal regarding PERB’s decision in that case. Indeed, if anything, the earlier decision against the City put it on notice that it was acting at its peril if it continued to engage in the same conduct in negotiations with a different union. (pp. 12-13.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General A facial challenge is based only on the text of the rule. A facial challenge is an appropriate means to challenge an employer rule or policy that is alleged to have a chilling effect on employees or a union, or otherwise to interfere with or impinge on protected rights, even before being applied. In City and County of San Francisco (2020) PERB Decision No. 2691-M, PERB determined that Charter sections survived a facial challenge if but only if they are interpreted to avoid tilting the playing field in the City’s favor and to allow adequate time for good faith negotiations and good faith impasse resolution. To save the challenged Charter provisions from facial invalidity, PERB necessarily interpreted the provisions as follows: (1) the section’s submission deadline must be interpreted as the time by which the City and its union negotiating partners should submit those substantive terms of their next MOU that are fully agreed-upon or which an arbitrator has ordered by that date, together with any agreed-upon or ordered contract provisions requiring the parties to engage in further, mid-contract negotiation and/or interest arbitration on any issues meriting such further processes; and (2) the section must be interpreted as allowing such mid-contract negotiation or interest arbitration procedures to establish enhancements that take effect mid-year or retroactive to any date. Because Charter section A8.409-4(k) can be interpreted lawfully and is not facially invalid, the Board held that any future cases involving the provision should be litigated on an as-applied basis. (pp. 9-12.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General The home rule doctrine does not alter the fact that a city’s charter must be consistent with the MMBA. (Boling v. Public Employment Relations Board (2018) 5 Cal.5th 898, 913, citing People ex rel. Seal Beach Police Officers Assn. v. City of Seal Beach (1984) 36 Cal.3d 591, 600 [“[G]eneral law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern”].) (p. 8.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General Under the MMBA, a local agency may adopt reasonable rules and regulations about resolution of collective bargaining disputes. (MMBA, § 3507, subd. (a)(5).) To be lawful, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. Therefore, whether a local agency has adopted its rules, regulations, or charter provisions via a vote of its electorate, a vote of its governing board, or through any other means, the resulting policies must be consistent with the MMBA. The burden of proof is on the party challenging such a rule. (City and County of San Francisco (2020) PERB Decision No. 2691-M, pp. 20-21.) (pp. 7-8.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 608.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; In General After three months, the City eventually stopped unlawfully interpreting its Charter and bargained over the union’s proposal for a retroactive payment. But retraction is not available as a defense to having applied a local rule unlawfully and engaged in per se bad faith bargaining, and even when a retraction defense is available against a bad faith bargaining claim, retraction after three months of bad faith conduct does not immunize a party against liability. (p. 13.) more or view all topics or full text.	47	156	04/26/23
2858M	City and County of San Francisco 605.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; OTHER PER SE VIOLATIONS; Outright Refusal to Bargain The City’s unlawful interpretation of its Charter caused it to refuse for more than three months to consider, much less bargain about, the union’s retroactive pay proposal, a per se failure to bargain in good faith. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 64-65; County of Sacramento (2020) PERB Decision No. 2745-M, pp. 24-25.) (p. 12.) more or view all topics or full text.	47	156	04/26/23
2830Sa	State of California (State Water Resources Control Board) 1205.08000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Expunging Employee Personnel Files If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.) more or view all topics or full text.	47	160	05/02/23
2830Sa	State of California (State Water Resources Control Board) 1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs The union sought an award of litigation sanctions based on legal work performed in this case. A party seeking such relief normally must meet a standard akin to that under Rule 11 of the Federal Rules of Civil Procedure, showing that its opponent pursued a frivolous argument in bad faith. (Sacramento City Unified School District (2020) PERB Decision No. 2749, p. 11.) Because the state employer raised non-frivolous arguments in this case, the union could not meet this standard. In contrast, for a charging party to obtain an award based on litigation fees or costs in a separate proceeding, or based on salaries or other costs of representation or bargaining, it need only show by a preponderance of the evidence that the offending party’s conduct caused a harm and that it is reasonably feasible to estimate the financial impact. (City and County of San Francisco (2023) PERB Decision No. 2858, p. 15.) The Board noted that, although the state employer’s unfair practice may have increased the union’s costs of representation in a separate proceeding before the SPB, the union did not pursue and neither party litigated this potential make-whole theory. (p. 6 & fn. 4.) more or view all topics or full text.	47	160	05/02/23
2830Sa	State of California (State Water Resources Control Board) 1205.12000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Provision of Information Where the state employer failed to provide the union with sufficient information for it to meaningfully represent an employee in an investigatory interview, the Board supplemented the proposed decision’s cease and desist order by directing the state employer to refrain from relying on: (1) any information or admission obtained during the unlawful investigatory interview; or (2) the employee’s conduct during the interview. While the record did not show that the employer had so far relied on any such information, admission, or conduct, to compensate for the harm caused by the unfair practice, the Board found it important to ensure that the Water Board does not do so in the future. (pp. 6-7.) more or view all topics or full text.	47	160	05/02/23
2830Sa	State of California (State Water Resources Control Board) 408.03000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH RIGHT TO SELF OR UNION REPRESENTATION; WEINGARTEN RIGHTS; Investigatory Interviews If an employer’s unfair practice during an investigatory interview is one material cause of eventual discipline, the proper remedy is to rescind the discipline, purge related records, and make the employee whole, typically while leaving open whether the employer may lawfully re-investigate any alleged misconduct or issue lesser discipline. (County of San Joaquin (Sheriff’s Department) (2018) PERB Decision No. 2619-M, p. 13 & fn. 13; Capistrano Unified School District (2015) PERB Decision No. 2440, pp. 45 & 47-53 (Capistrano).) The primary basis for proving that unfair practices in an investigatory interview materially caused discipline is to show that the discipline was based, at least in part, on information or admissions obtained in the interview, or on employee conduct during the interview. (Capistrano, supra, PERB Decision No. 2440, p. 47.) (p. 5.) more or view all topics or full text.	47	160	05/02/23
2861M	Imperial Irrigation District 1402.01000: GENERAL LEGAL PRINCIPLES; WAIVER; In General The Board concluded that the District’s briefing operated as a waiver, albeit one limited in scope. Accordingly, the Board found it appropriate to order the District to compensate each affected employee for at least 274 hours for each week in sequestration, less any hours equivalent it already paid to employees during their sequestration period(s). The Board’s reasons were multiple. First, in its only exception related to the ALJ’s proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration week is appropriate if the Board finds a bargaining obligation. The District thereby waived any argument that our remedial order should mandate payment for less than 274 weekly hours. The District compounded this waiver when it failed to file a response to IBEW’s cross-exceptions or a reply to IBEW’s response. In compliance, therefore, the District may not put on evidence in support of liability for less than the 274 hours per week ordered. (pp. 64-65.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense The Board concluded that the District’s briefing operated as a waiver, albeit one limited in scope. Accordingly, the Board found it appropriate to order the District to compensate each affected employee for at least 274 hours for each week in sequestration, less any hours equivalent it already paid to employees during their sequestration period(s). The Board’s reasons were multiple. First, in its only exception related to the ALJ’s proposed remedy, the District summarily agreed that 274 hours’ pay per sequestration week is appropriate if the Board finds a bargaining obligation. The District thereby waived any argument that our remedial order should mandate payment for less than 274 weekly hours. The District compounded this waiver when it failed to file a response to IBEW’s cross-exceptions or a reply to IBEW’s response. In compliance, therefore, the District may not put on evidence in support of liability for less than the 274 hours per week ordered. (pp. 64-65.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General The Board ordered various remedies for the District’s unlawful unilateral change and identified issues that could be relevant in compliance. (pp. 65-69.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo The Board found it proper to order rescission of the Sequestration Policy based on the violations found. Moreover, even had the District followed the law, an emergency is not a static event, and the short-term pandemic emergency has subsided. At such point, an employer can no longer rely on a policy it had unilaterally implemented prior to reaching a bona fide impasse following good faith negotiations. (p. 64, fn. 36.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 601.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); When Duty Arises/Sufficiency of Bargaining Demand The District notes that IBEW failed to request bargaining after it sent IBEW notice on May 14 that it would be removing the Sequestration Policy restriction on usage of the 40 hours of post-sequestration vacation time, thereby allowing employees to bank unused time. While there is no complaint allegation relevant to that change, and we find no violation, the District’s argument does not help it with respect to the complaint’s actual allegations. The District’s letter did not refer to the parties’ negotiations or indicate that the District was ready to resume those negotiations. We find no reason to consider this letter an invitation to resume bargaining, nor did it put the onus on the union to create another offer in response to the District’s fait accompli. (p. 63, fn. 35.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception “[N]either exigent circumstances nor a business necessity completely absolves an employer of its duty to notify and bargain.” (Santa Clara County Correctional Peace Officers’ Assn. v. County of Santa Clara (2014) 224 Cal.App.4th 1016, 1032.) In a bona fide emergency, the employer need not await impasse before taking steps urgently needed to mitigate the emergency, but then the employer must continue bargaining to the extent practicable. Because an emergency is not a static event, changes taken in good faith reliance on a necessity defense should be limited to the timeframe that the emergency requires, and there remains an obligation to bargain in good faith as time allows. (p. 56.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception The MMBA does not define what circumstances constitute an “emergency.” In Sonoma County Organization etc. Employees v. County of Sonoma (1992) 1 Cal.App.4th 267, the Court of Appeal found that the term “has long been accepted in California as an unforeseen situation calling for immediate action.” (Id. at p. 276.) “[A]n emergency must have a substantial likelihood that serious harm will be experienced” and “is not synonymous with expediency, convenience, or best interests.” (Id. at p. 277, internal citations omitted.) While the statutory emergency defense is unique to the MMBA, the Board has recognized an affirmative defense available under all PERB-administered statutes that serves the same function. This “business necessity” defense requires the employer to prove: (1) an actual financial or other emergency that (2) leaves no real alternative to the action taken and (3) allows no time for meaningful negotiations before taking action. In past decisions, the Board has treated the two defenses as interchangeable by requiring the same elements to establish either affirmative defense. Here, there was certainly an emergency. The COVID-19 pandemic was nascent in the United States and rapidly developing. The District’s provision of electricity and water to residents of Imperial Valley was at risk of disruption. While the pandemic permitted the District to sequester employees before it completed negotiations, however, the District failed to demonstrate that the emergency left it with no real alternative to altering the compensation framework before completing negotiations. In addition, although the circumstances here allowed very limited time before taking action to sequester employees, they imposed no rapid deadline on bargaining over compensation. The District therefore did not establish that it was excused from bargaining compensation under section 3504.5, subdivision (b), because it did not prove the second and third prongs of the defense. Moreover, even had it done so, the defense still requires an employer to meet and confer at the earliest practicable opportunity following implementation (§ 3504.5, subd. (b)), yet the District abandoned negotiations altogether contemporaneously with its implementation. (pp. 55-56, 61-62.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 608.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Business Necessity; Emergency Exception Even when a sudden emergency resulting from circumstances beyond an employer’s control leaves it no alternative but to take immediate action, there remains an obligation to bargain in good faith as time allows. By asserting from the onset of negotiations that it had no obligation to bargain with IBEW over the Sequestration Policy, and repeating that sentiment, the District disregarded the above precedent holding that even when an emergency allows temporary unilateral action, it does not simply extinguish the duty to bargain. (p. 53.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case PERB applies the totality of conduct test to allegations of bad faith bargaining conduct that do not constitute a per se refusal to bargain. Under the totality test, a party is permitted to maintain a “hard bargaining” position on one or more issues, if the entire course of its bargaining conduct, both at the table and away from it, manifests good faith efforts toward reaching an overall agreement. The ultimate question is whether the respondent’s conduct, when viewed in its totality, was sufficiently egregious to frustrate negotiations. Here, based on indicators the ALJ noted and others we note below, we find that IBEW proved not only per se bargaining violations but also bad faith bargaining under the totality test. First, the ALJ correctly found that the District approached negotiations “with an attitude that is incompatible with good faith bargaining.” These repeated statements ignored the nature of an emergency defense. Even when a sudden emergency resulting from circumstances beyond an employer’s control leaves it no alternative but to take immediate action, there remains an obligation to bargain in good faith as time allows. By asserting from the onset of negotiations that it had no obligation to bargain with IBEW over the Sequestration Policy, and repeating that sentiment, the District disregarded precedent holding that even when an emergency allows temporary unilateral action, it does not simply extinguish the duty to bargain. Other bad faith indicators are the District’s reversal of its bargaining position without any explanation and its failure to respond to IBEW Counter #5 in any manner and without any explanation or rationale. Lastly, the District’s three per se violations—unilateral implementation of the Sequestration Policy, failure to respond to IBEW’s two RFIs, and premature abandonment of negotiations—are separate, contemporaneous unfair practices that serve as additional indicators of bad faith on the part of the District. Based on the foregoing, the totality of circumstances demonstrates the District bargained in bad faith with IBEW. (pp. 50-54.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General Under the MMBA, only a written impasse declaration triggers a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it is difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it is difficult for such an employer to assert that it has exhausted its bargaining obligation. While the District did not declare impasse, its April 20 letter was tantamount to an impasse declaration in that it indicated the District’s intent to conclude negotiations and impose its own terms. Even had this letter expressly declared impasse, in any event the District cannot prove that a bona fide impasse existed as of April 20. Here the District was not faced with a point where continued negotiations would be futile. Far from it. Negotiations had, in fact, been productive for the nine-day period in which the parties had been exchanging proposals. By its April 20 letter, the District abandoned any further negotiations and changed employment terms by implementing the Sequestration Policy. This conduct not only proves a prima facie case of unilateral change but also a prima facie case of outright refusal to bargain, a separate per se violation of the duty to meet and confer in good faith with IBEW. (p. 49, fn. 28 & p. 50.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse Under the MMBA, only a written impasse declaration triggers a union’s deadline to seek factfinding. Thus, absent a written declaration by either party, it is difficult for an employer to claim that a union was tardy in requesting factfinding, and by extension it is difficult for such an employer to assert that it has exhausted its bargaining obligation. While the District did not declare impasse, its April 20 letter was tantamount to an impasse declaration in that it indicated the District’s intent to conclude negotiations and impose its own terms. Even had this letter expressly declared impasse, in any event the District cannot prove that a bona fide impasse existed as of April 20. Here the District was not faced with a point where continued negotiations would be futile. Far from it. Negotiations had, in fact, been productive for the nine-day period in which the parties had been exchanging proposals. By its April 20 letter, the District abandoned any further negotiations and changed employment terms by implementing the Sequestration Policy. This conduct not only proves a prima facie case of unilateral change but also a prima facie case of outright refusal to bargain, a separate per se violation of the duty to meet and confer in good faith with IBEW. (p. 49, fn. 28 & p. 50.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 900.01000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; In General Impasse under the MMBA “exists where the parties have considered each other’s proposals and counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached a point in their negotiations where continued discussion would be futile.” (City of Long Beach (2012) PERB Decision No. 2296-M, p. 15 [finding the employer implemented its planned furlough despite no evidence that the parties’ negotiations had reached a point where further negotiations would be futile, regardless of whether the City declared impasse].) “An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from ‘inception through exhaustion of statutory or other applicable impasse resolution procedures,’ and its ‘conduct is free of unfair labor practices.’” (City of Glendale (2020) PERB Decision No. 2694-M, p. 60, quoting City of San Ramon (2018) PERB Decision No. 2571, p. 6.) A party asserting impasse bears the burden of proving it. If there is doubt as to whether an impasse exists, the party asserting impasse has the burden to seek clarification of the other party’s position. (pp. 48-49.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 900.02000: IMPASSE PROCEDURES; IN GENERAL; DUTY TO PARTICIPATE IN GOOD FAITH; Declaration/Determination of Impasse Impasse under the MMBA “exists where the parties have considered each other’s proposals and counterproposals, attempted to narrow the gap of disagreement and have, nonetheless, reached a point in their negotiations where continued discussion would be futile.” (City of Long Beach (2012) PERB Decision No. 2296-M, p. 15 [finding the employer implemented its planned furlough despite no evidence that the parties’ negotiations had reached a point where further negotiations would be futile, regardless of whether the City declared impasse].) “An employer may impose new terms after impasse only if it has bargained in good faith throughout negotiations, from ‘inception through exhaustion of statutory or other applicable impasse resolution procedures,’ and its ‘conduct is free of unfair labor practices.’” (City of Glendale (2020) PERB Decision No. 2694-M, p. 60, quoting City of San Ramon (2018) PERB Decision No. 2571, p. 6.) A party asserting impasse bears the burden of proving it. If there is doubt as to whether an impasse exists, the party asserting impasse has the burden to seek clarification of the other party’s position. (pp. 48-49.) more or view all topics or full text.	47	163	05/08/23
2861M	Imperial Irrigation District 601.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); In General, Per Se and Totality of Conduct; Prima Facie Case An employer that declares impasse without reaching a bona fide impasse after good faith negotiations, and then refuses to bargain further or proceeds to change employment terms, commits a per se violation. In this case, as the ALJ found, the District did not declare impasse, and it would not have been appropriate for the District to do so given that the parties’ differences were not “so substantial and prolonged that further meeting and conferring would be futile.” (p. 49.) more or view all topics or full text.	47	163	05/08/23