| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2855E |
The Accelerated Schools
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
Effects bargaining violations are equally harmful as decision bargaining violations, as both disrupt and destabilize employer-employee relations by creating an imbalance in the power between management and employee organizations. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 23-24.) In other words, the effects bargaining obligation is not an inferior duty. (Id. at p. 24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 13.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
An employer is privileged to implement its changes before completing effects negotiations based on Compton Community College District (1989) PERB Decision No. 720 (Compton) if: (1) implementation date is based on an immutable deadline or an important managerial interest, such that a delay in implementation beyond the date chosen would effectively undermine the employer’s right to make the decision; (2) employer gives sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) employer negotiates in good faith prior to and after implementation]. (Id., pp. 14-15.) PERB clarified that its decision does not preclude an employer from asserting a Compton defense, including in circumstances where the Education Code sets a deadline by which layoffs must occur. (p. 16, fn. 10.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
Union had a colorable argument that charter school transferred out of the unit certain Health Service Coordinator duties, thereby requiring decision bargaining. (Alum Rock Union Elementary School District (1983) PERB Decision No. 322, pp. 10-12 [an employer must engage in decision bargaining if creation or abolition of classifications involves transfer of traditional bargaining unit duties without fundamental changes].) However, weighing the evidence and drawing reasonable inferences, PERB found that in creating the Registered Nurse (RN) job description, the charter school supplemented and upgraded the former Coordinator duties to such a degree that even the allegedly transferred duties became significantly higher in level than they had been as Coordinator duties. (See County of Santa Clara (2019) PERB Decision No. 2680-M, p. 11 [employer had no decision bargaining obligation when it upgraded its level of protecting the public by replacing a bargaining unit security guard with a non-unit deputy sheriff].) Given there was no dispute that only an RN could provide the desired level of service, nor any dispute that RNs fall outside the bargaining unit, the charter school had an effects bargaining obligation rather than a decision bargaining obligation. (pp. 15-16.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
Although an employer engaged in effects negotiations need not bargain over the policy reasons for its decision, it cannot refuse to bargain over alternatives, as those alternatives fundamentally impact the employment effects at issue. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 51 (Oxnard); County of Santa Clara (2021) PERB Decision No. 2799-M, p. 27; Anaheim Union High School District (2016) PERB Decision No. 2504, pp. 10-11, 15 & adopting proposed decision at p. 41; City of Sacramento (2013) PERB Decision No. 2351-M, p. 22.) Indeed, one purpose of effects bargaining is to permit the exclusive representative an opportunity to persuade the employer to consider alternatives that may diminish the impact of the decision on employees. (Oxnard, supra, PERB Decision No. 2803, p. 52; Santa Clara, supra, PERB Decision No. 2799, p. 27.) (p. 14, fn. 8.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
601.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO BARGAIN IN GOOD FAITH (FOR SPECIFIC SUBJECTS, SEE SCOPE OF REPRESENTATION, SEC 1000); Decision vs Effects Bargaining
An employer’s failure to provide an exclusive representative with adequate notice and an opportunity to bargain is a per se violation of the duty to bargain in good faith if the decision itself falls within the scope of representation, or if the decision has reasonably foreseeable effects on terms or conditions of employment. (Regents of the University of California (2021) PERB Decision No. 2783-H, p. 18; Trustees of the California State University (2012) PERB Decision No. 2287-H, p. 20.) In the former instance PERB refers to the employer as having a “decision bargaining obligation,” while in the latter case the employer has an “effects bargaining obligation.” (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 8, 23-24; County of Santa Clara (2019) PERB Decision No. 2680-M, p. 12.) (pp. 13-14.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
504.14000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Other/In General
PERB considers all facts and circumstances relevant to motivation. The following factors are 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.) Timing of protected activity in relation to an adverse action is not typically sufficient, by itself, to prove discrimination. (City of Santa Monica (2020) PERB Decision No. 2635a-M, pp. 45-46.) (p. 11.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
501.01000: EMPLOYER DISCRIMINATION; DISCRIMINATION; In General; Elements of Prima Facie Case
To establish a prima facie case of retaliation, a charging party has the burden to prove, by a preponderance of the evidence, that: (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 of the 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 and County of San Francisco (2020) PERB Decision No. 2712-M, p. 15.) If the charging party meets its burden to prove each of these factors, certain fact patterns nonetheless allow a respondent the opportunity to prove, by a preponderance of the evidence, that it would have taken the exact same action even absent protected activity. (Ibid.) This affirmative defense is most typically available when, even though the charging party has proven that protected activity was a substantial or motivating cause of the adverse action, the evidence also reveals a non-discriminatory motivation for the same decision. (Id. at pp. 15-16.) 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.) An employer’s affirmative defense naturally overlaps with the nexus question. (State of California (Correctional Health Care Services) (2021) PERB Decision No. 2760-S, p. 21.) (pp. 9-10.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2855E |
The Accelerated Schools
101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent
California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent governing private sector labor relations, and PERB considers federal precedent only for its potential persuasive value. (Operating Engineers Local Union No. 3 (Wagner et al.) (2021) PERB Decision No. 2782-M, p. 9, fn. 10.) (p. 21, fn. 13.) more or view all topics or full text. |
47 | 139 | 03/17/23 |
| 2856M |
Alameda Health System
1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations
If a charge or complaint alleges interference based upon the same conduct giving rise to another claim, the interference claim is independent if it can be established without the other claim being established. In contrast, if it is impossible to establish interference without establishing the other claim, then the interference claim is a derivative one. Interference can be either an independent violation or derivative of another violation, depending upon whether the facts at issue permit a charging party to establish interference without establishing any other violation. When a complaint alleges both interference and retaliation based on the same set of facts, and PERB sustains a retaliation finding, it will also at least find derivative interference. While retaliation claims may be accompanied by derivative interference claims, where properly pled the same underlying facts may also support an independent interference claim. (p. 26.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech
The MMBA gives employers the right to express even unflattering views on a union’s actions so long as the statements did not include any threats of reprisal or promises of benefit. (See City of Oakland (2014) PERB Decision No. 2387-M, pp. 25-26.) That some employees felt a Board of Trustees member belittled protected activities by labeling them as “political theater” did not convert that phrase into a threat or promise. But his direct statement that protected activity is “not acceptable [in] a time of crisis” sent a different message, one that was not confined to opinion. An employee could reasonably infer that he or she would be punished for engaging in the types of actions which the Board of Trustees member labeled “not acceptable.” That is because a reasonable employee would understand “not acceptable” to mean disallowed or prohibited. While the Board of Trustees member did not state explicitly that employees would be punished, his use of the phrase “not acceptable” was sufficiently coercive to fall outside the safe harbor for free speech. (pp. 35-36.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
409.06000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Free Speech
In an interference case involving employer speech, the surrounding circumstances are relevant to determine if an employee or union representative would objectively tend to feel that the communication coerces, restrains, or otherwise interferes with protected rights. Generally, an employer does not commit an interference violation if it expresses or disseminates its views, arguments, or opinions on employment matters, unless such expression contains a threat of reprisal or force or promise of benefit. This safe harbor for employer speech does not apply, however, “to advocacy on matters of employee choice such as urging employees to participate or refrain from participation in protected conduct, statements that disparage the collective bargaining process itself, implied threats, brinkmanship, or deliberate exaggerations.” The Board examines the context of employer statements to determine whether they convey a threat of reprisal or force, promise of benefit, or demonstrate a preference for either one organization over another, or one group or another within a single organization. In cases involving employer speech, PERB considers the accuracy of the communication in conjunction with the employer’s need to communicate in deciding whether the employer can establish an affirmative defense. (pp. 31-32.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
Ending the employment of an employee who has recently engaged in protected activity is likely to have a chilling effect on other employees’ likelihood of engaging in similar actions, though that effect may be lessened where serious work performance issues justified the employee’s termination. (p. 30.) While there may be instances when an employer’s established defense to retaliation does not defeat an independent interference allegation based on the same underlying facts, that was not the case here. The harm caused by releasing an employee from probation shortly after he engaged in protected activity is outweighed by the employer’s right to release an employee from probation for serious work performance issues. (p. 31.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
The Board rejected any automatic rule that an employer’s affirmative defense to retaliation automatically negates the possibility of harm under a related but independent interference allegation, and clarified that an employer’s business defense is properly considered as part of the Carlsbad balancing analysis. (p. 30, fn. 14.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
An adverse employment action taken against a known union activist need not be inherently destructive if nondiscriminatory reasons warrant the action, because in such circumstances the action does not send the message that union activists will be disadvantaged. (p. 28.) While there are instances where animus establishing a prima facie case also triggers the inherently destructive standard, a nondiscriminatory personnel action need not be inherently destructive. (p. 29.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2856M |
Alameda Health System
300.06000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Demands for Change in Working Conditions
It is well established that “advocacy on behalf of a group of employees concerning working conditions is protected activity.” (Berkeley Unified School District (2015) PERB Decision No. 2411, p. 19.) A Board of Trustees member’s characterization of the political theater engaged in by employees and the union is at the heart of this type of protected activity – bringing attention to individual problematic instances to advocate for changes in working conditions. (p. 35.) more or view all topics or full text. |
47 | 144 | 03/23/23 |
| 2770M |
City of Bellflower
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
All California labor relations statutes require confidentiality for proof of support documents, and an employer may not apply its local rules in a contrary manner. Given that relevant protected rights are substantially the same under the MMBA and under EERA, which explicitly provides that proof of support documents are confidential (EERA, § 3544, subd. (b)), there is no plausible basis for the Legislature to believe that in one instance proof of support may be shared with a competing union while in the other instance such sharing is impermissible. The absence of confidentiality language in seven of the nine statutes PERB enforces is incidental, meaning that confidentiality is required as it is necessary to protect other rights in the statute. more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
1306.01000: REPRESENTATION ISSUES; PROOF OF SUPPORT; In General; Requirements
Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.) Among these statutes, only the Educational Employment Relations Act (EERA; § 3540 et seq.) and the Childcare Provider Act (CCPA; Educ. Code, § 8430 et seq.) explicitly provide that proof of support documents are confidential. (EERA, § 3544, subd. (b); Educ. Code, § 8434, subd. (c)(3) [CCPA].) Nonetheless, through rulemaking PERB has interpreted all nine statutes as requiring that proof of support documents filed with PERB are confidential. The differences in statutory wording require harmonization, and accordingly that all California labor relations statutes require confidentiality for proof of support documents. An employer may not apply its local rules in a contrary manner. more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
1300.01000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; In General
Under six of California’s public sector labor relations statutes, employers are not permitted to adopt local rules regarding representation petitions, and parties must file such petitions with PERB. In contrast, the MMBA and two statutes governing trial court labor relations allow employers to establish local rules regarding representation petitions, and parties therefore may only file such petitions with PERB if directed to do so under the local rules or if there is no reasonable local rule that governs the petition in question. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, pp. 8-9.) more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board need not resolve exceptions that would not affect its remedial order. (City of Glendale (2020) PERB Decision No. 2694-M, pp. 58-59.) Moreover, the parties’ dispute about timing of representation petition processing involves at most minor deviations from City’s local rules during the initial months of the COVID-19 pandemic, which the Board found unlikely to recur. (See Gompers Preparatory Academy (2021) PERB Decision No. 2765, p. 14 [discussing the pandemic’s severe and unusual disruptions to all aspects of life, including labor relations proceedings].) more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
The MMBA grants local public agencies authority to adopt reasonable rules concerning union recognition, elections, and specified other topics, “after consultation in good faith with representatives of a recognized employee organization or organizations.” (MMBA, § 3507, subd. (a).) However, such rules and regulations may not undercut or frustrate the MMBA’s policies and purposes. (International Federation of Prof. & Technical Engineers v. City & County of San Francisco (2000) 79 Cal.App.4th 1300, 1306; Huntington Beach Police Officers’ Assn. v. City of Huntington Beach (1976) 58 Cal.App.3d 492, 500-502.) more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
700.07000: EMPLOYER DOMINATION OR ASSISTANCE; DOMINATION OF OR ASSISTANCE TO LABOR ORGANIZATIONS; Favoritism; Contract Ban on Distribution or Solicitation; Unequal Treatment of Unions; Preferential Access; Duty of Strict Neutrality
MMBA section 3506.5, subdivision (d) consists of three clauses, providing that public agencies shall not: (1) “dominate or interfere with the formation or administration of any employee organization,” (2) “contribute financial or other support to any employee organization,” or (3) “in any way encourage employees to join any organization in preference to another.” PERB has consistently held that this provision requires an employer to remain strictly neutral when two unions are in competition with one another. The test is “whether the employer’s conduct tends to influence free choice or provide stimulus in one direction or the other.” Thus, a strict neutrality violation requires neither proof of the employer’s motive nor proof that the employer conduct did, in fact, influence employees. (County of San Bernardino (2018) PERB Decision No. 2556-M, adopting proposed decision at p. 22.) An employer does not tend to tilt the scales toward or away from a union if it merely complies with its legal duty to provide information, or, conversely, honors legally protected privacy rights by instead negotiating an appropriate accommodation of privacy and the union’s need for the information. In this case, however, the employer deviated from such an approach and thereby tilted the scales toward the incumbent union. more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
409.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; DEFENSES; Business Necessity
Employer failed to show a valid business necessity justifying its decision to grant an incumbent union’s request for copies of competing union’s decertification petition proof of support documents, which tends to interfere with protected rights. The request did not establish incumbent union’s ultimate right to the requested documents. Rather, it triggered employer’s duty to assess the request and respond lawfully. Where a union’s request is presumptively relevant but would invade legally protected confidentiality or privacy interests, the employer must bargain with the requesting union to accommodate the union’s interest in the information and the legally protected privacy right. In such negotiations, narrowly tailored redactions can be an appropriate solution, if privacy rights outweigh the union’s need for the redacted information. Here, the employer did not engage in discussions with either union over the incumbent union’s request for proof of support documents, and the record does not reveal that the employer attempted to weigh countervailing interests. Moreover, the incumbent union did not have a need for the documents that outweighed employee confidentiality interests. Proof of support is a unique type of statement supporting a union, which labor law principles have long protected, both in the private sector and in the California public sector since the Legislature enacted a bill to reverse San Juan Unified School District (1977) EERB Decision No. 12. more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
407.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; INTERFERENCE WITH DECERTIFICATION OR RIVAL UNION PETITION; In General
City violated the MMBA by interfering with protected rights when it shared a competing union’s unredacted proof of support documents with incumbent union. Employees covered by the MMBA have comparable rights to those covered by EERA, which explicitly provides for proof of support confidentiality. There is no adequate basis for distinguishing the need for confidentiality under the two statutes, and disclosing proof of support documents has the same tendency to harm protected rights under the MMBA as it does under EERA and the other statutes PERB enforces. more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
400.01000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION; EMPLOYER INTERFERENCE WITH, RESTRAINT, OR COERCION OF EMPLOYEES; In General; Standards
To establish a prima facie interference case, a charging party must show that an employer’s conduct tends to or does result in some harm to union and/or employee rights protected under the statutes PERB enforces. (City of San Diego (2020) PERB Decision No. 2747-M, p. 36.) Once a charging party has established a prima facie case, the burden shifts to the employer. (Ibid.) The degree of harm dictates the employer’s burden. (Ibid.) If the harm is “inherently destructive” of protected rights, the employer 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 business necessity. (Ibid.) In such cases, PERB balances the asserted business necessity 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 or rules that are not inherently destructive, the stronger the tendency to harm, the greater is the respondent’s burden to show its business necessity 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. (Id. at p. 36, fn. 19.) more or view all topics or full text. |
45 | 119 | 06/08/21 |
| 2770M |
City of Bellflower
101.03000: PERB: OPERATION, JURISDICTION, AUTHORITY; APPLICABILITY OF AND CONFLICTS WITH OTHER STATUTES; NLRA/LMRDA Precedent
Although California public sector labor relations precedent frequently protects employee and union rights to a greater degree than does federal precedent, where California statutory provisions are akin to those found in federal law, we consider federal precedent for its potential persuasive value. (City of Santa Monica (2020) PERB Decision No. 2635a-M, p. 47, fn. 16; Contra Costa Community College District (2019) PERB Decision No. 2652, p. 27, fn. 17; see also Social Workers’ Union, Local 535 v. Alameda County Welfare Dept. (1974) 11 Cal.3d 382, 391 [when interpreting California public sector labor relations laws, federal precedent is a “useful starting point,” but it does “not necessarily establish the limits of California public employees’ representational rights”].) more or view all topics or full text. |
45 | 119 | 06/08/21 |
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.
