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DecisionDescriptionPERC Vol.PERC IndexDate
2803E Oxnard Union High School District
602.08000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Duty to Bargain Effects
An employer must meet and confer over alternatives to the decision as part of effects bargaining. (County of Sonoma (2021) PERB Decision No. 2772-M, p. 54 (Sonoma); 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.) Thus, 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. (Sonoma, supra, PERB Decision No. 2772-M, p. 55.) more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
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
Where neither party declared impasse in effects negotiations—much less exhausted EERA’s post-impasse procedures—any claimed right to implement an allegedly non-negotiable decision before exhausting such impasse procedures would be contingent on evidence of an immutable deadline or important managerial interest, as well on the employer negotiating in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.) more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
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
Where an employer has an obligation to meet and confer over reasonably foreseeable effects a decision, an employer may implement its decision before completing effects bargaining if it can establish each of three elements: (1) the implementation date was 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) the employer gave sufficient advance notice of the decision and implementation date to allow for meaningful negotiations prior to implementation; and (3) the employer negotiated in good faith prior to and after implementation. (Compton Community College District (1989) PERB Decision No. 720, pp. 14-15.) more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
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
Even when an employer has no obligation to bargain over a particular decision, it nonetheless must provide notice and an opportunity to meet and confer over any reasonably foreseeable effects the decision may have on matters within the scope of representation. (County of Santa Clara (2019) PERB Decision No. 2680-M, pp. 11-12.) The employer violates this duty if it fails to provide adequate advance notice, and in such circumstances the union need not request to bargain effects as a prerequisite to filing an unfair practice charge. (County of Santa Clara (2013) PERB Decision No. 2321-M, pp. 30-32.) However, where an employer does provide adequate notice, the union must request to bargain any reasonably foreseeable effects on negotiable matters. (Id. at p. 30.) The union’s request to bargain need not be formalistic or burdensome, nor anticipate every imaginable effect a proposed change may have, but must only identify negotiable areas of impact, thereby placing the employer on notice that it believes the employer’s proposed decision would affect one or more negotiable topics. (County of Sacramento (2013) PERB Decision No. 2315-M, p. 9; Rio Hondo Community College District (2013) PERB Decision No. 2313, p. 13.) more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
The most critical prong of the deferral test is often whether the contract and its meaning “lie at the center of the dispute.” To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 8 (Santa Clara).) “[I]t is not sufficient for the agreement to merely cover or discuss the matter. The conduct alleged to be an unfair practice must be prohibited.” (Ibid.; Fremont Union High School District (1993) PERB Order No. Ad-248, p. 5.) Second, resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation. (Santa Clara, supra, PERB Order No. Ad-485-M, p. 8.) This condition may be met if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue. (Id. at p. 8, fn. 6.) If resolution of the alleged unfair practice requires application of statutory legal standards, and “there is no guarantee that an arbitrator will look beyond the contract and consider statutory principles,” deferral is not appropriate. (Id. at p. 8.) The District did not carry its burden of establishing that deferral is appropriate where the parties’ CBAs contravene the neutral contractual interpretation standards PERB applies in a unilateral change case (see Santa Ana Unified School District (2013) PERB Decision No. 2332, pp. 25-26 [deferral inappropriate both because contract limited arbitrator from providing full make-whole remedy and because contract limited arbitrator from fully considering the issues at stake] and limit the arbitrator to only the interpretation or application of a contract term, which would not resolve the issues arising from the District’s failure to bargain the effects of its decisions. (See Pleasanton Joint School District (1986) PERB Decision No. 594, pp. 2-6 [deferral inappropriate where contract limited arbitrator to finding violation of “express terms,” thereby preventing arbitrator from considering full breadth of issues at stake in unilateral change case].) more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
In County of Santa Clara (2021) PERB Order No. Ad-485-M, PERB explained how the deferral test applies if an unfair practice charge contains multiple claims. Three principles are paramount. First, if a claim is purely derivative—meaning that a charging party cannot establish it without also establishing another claim—then PERB defers the derivative claim if and only if the claim it derives from satisfies the deferral test. (Id. at pp. 9-10.) Second, if multiple claims can be established independently of one another but they are factually or legally interrelated, then PERB does not defer any of them unless each claim meets the deferral test. (Id. at pp. 10-12.) This rule serves to prevent unnecessary piecemeal litigation. (Ibid.) Finally, if multiple independent claims are neither factually nor legally interrelated, then PERB applies the deferral test separately to each claim and may defer any of them depending on how the test applies to each respective claim. (Ibid.) Thus, a charging party cannot avoid deferral of one claim by choosing to include in the same charge an unrelated, non-deferrable claim. more or view all topics or full text.		 46 110 01/26/22
2803E Oxnard Union High School District
102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts
PERB may defer an unfair practice charge to arbitration if the respondent carries its burden to establish that: (1) the dispute arises within a stable collective bargaining relationship; (2) the respondent is willing to waive/ procedural defenses and to arbitrate the merits of the dispute; (3) the contract and its meaning lie at the center of the dispute; and (4) no recognized exception to deferral applies. (Bellflower Unified School District (2021) PERB Decision No. 2796, pp. 19-20; County of Santa Clara (2021) PERB Order No. Ad-485-M, pp. 6-7.) more or view all topics or full text.		 46 110 01/26/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The Board declined to order backpay to begin on the date the District placed affected employee on paid administrative leave, rather than on the date the Board of Education upheld employee’s termination. This was because the complaint alleged only that the District took adverse action against employee by upholding her termination from employment. While the Board found the District was unlawfully motivated in placing employee on administrative leave, the union failed to raise, much less brief, whether this met the requirements of the unalleged violation doctrine, and the Board declined to consider the doctrine sua sponte. (p. 40.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
***VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a, where on remand from the Court of Appeal, the Board vacated its remedial order.*** The Board declined to order backpay to begin on the date the District placed affected employee on paid administrative leave, rather than on the date the Board of Education upheld employee’s termination. This was because the complaint alleged only that the District took adverse action against employee by upholding her termination from employment. While the Board found the District was unlawfully motivated in placing employee on administrative leave, the union failed to raise, much less brief, whether this met the requirements of the unalleged violation doctrine, and the Board declined to consider the doctrine sua sponte. However, nothing in the decision altered the general rule that all categories of losses (including, but not limited to, overtime pay, shift differentials, and holiday pay) are fully compensable based on reasonable estimates. In cases in which PERB either sustains a complaint allegation challenging imposition of paid leave or finds such a violation based on the unalleged violation doctrine, all losses are compensable during the unlawful paid leave. In this case, however, such categories are compensable only after the date of termination. (pp. 39-40 & fn. 14.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The Board found that the District’s Notice of Paid Administrative Leave indicated animus toward employee/union president’s protected activity. The Notice barred employee from entering District property, where it knew the union held its meetings, and from contacting District employees about the investigation, which would undermine employee’s ability to prepare for her investigatory interview and mount her own defense. Despite being advised of these problems, the District did not immediately modify the prohibitions and instead kept them in place for almost six weeks. (p. 35.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.05000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Union Activity of Discriminatee
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** Principal’s comment to employee who was nominated for union vice president supported an inference of animus. When employee told the principal about her nomination, the principal asked employee not to accept it. Whether the principal expressly or impliedly asked employee not to accept the nomination, in either instance her conduct exhibited hostility towards employee’s union activity. (pp. 34-35.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.02000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Disparate Treatment
***VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a, where on remand from the Court of Appeal, the Board vacated this portion of its Discussion.*** Evidence showed that District treated employee who engaged in protected activities disparately from other employees. First, the District had not terminated any other employee for unintentionally misreporting attendance. And, prior to its investigation of employee, the District had never performed a full-scale audit looking at every data entry in computer program to determine whether an attendance clerk had made incorrect entries. Such disparate treatment indicated unlawful motive. (pp. 31-32.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.13000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Unusually Harsh Treatment
***VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a, where on remand from the Court of Appeal, the Board vacated this portion of its Discussion.*** The District’s failure to seriously explore any intermediate discipline for employee who engaged in protected activities, consistent with its standard approach to correcting performance deficiencies, was significant evidence of improper motive. (pp. 31-32) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.08000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Cursory Investigation
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The District’s exaggerated justifications for employee’s termination also reflected a rushed or otherwise inadequate investigation, which is further evidence of improper motive. (pp. 26-27, 35.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.07000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; No reason or Inconsistent Reasons Given; Shifting Justifications
***VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a, where on remand from the Court of Appeal, the Board vacated a portion of this Discussion.*** The District exaggerated justifications for employee’s termination by inflating the financial impact of employee’s errors. The District also alleged the errors were the result of falsification and insubordination, both of which require a showing of intent, without providing any proof of such intent. (pp. 24-30.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.03000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Departure from Past Practices or Procedures
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** Where an employer likely would not have undertaken an investigation (here, the District’s full-scale audit) absent protected activity, it is generally precluded from relying on information it would not have otherwise uncovered. (p. 24.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
504.04000: EMPLOYER DISCRIMINATION; EVIDENCE OF UNLAWFUL MOTIVATION; NEXUS; Timing of Action
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The Board found temporal proximity between employee’s critiques of senior District leaders at a January 9, 2018, Board of Education meeting and the District’s issuance of a January 22, 2018, Notice of Paid Administrative leave. Where the record offered no clear conclusions as to when the District received a parent complaint implicating employee’s data entry error and when the District began to research employee’s possible additional errors, the Board found that the ALJ’s conclusion was the correct one, i.e., that the District more likely than not decided to investigate employee after she spoke at the Board of Education meeting. (pp. 23-24.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** Because MMBA section 3502.1 merely reinforces existing statutory provisions and given that EERA and the MMBA mirror one another in their main provisions protecting the right to participate in union activities, the Board found that the Legislature did not intend to prescribe differing rules and instead intended unfair practices under the differing statutes to be interpreted in a comparable manner. While including statutory language in only one of several laws dealing with the same general subject can demonstrate an intent to create differing rules, that principle does not apply universally and is not helpful or controlling where, as here, it would create an “inexplicable anomaly.” (p. 20.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
300.13000: UNFAIR PRACTICE ISSUES; PROTECTED ACTIVITIES; Holding Union Office
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** Serving as a union officer is protected activity. The Board overruled Trustees of the California State University (2009) PERB Decision No. 2038-H and similar decisions to the extent they held that an employee must allege “something more” than holding union office to show that he or she has engaged in protected activity under any PERB-administered statute. (pp. 18-21.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The Board rejected the District’s argument that the ALJ erred by relying on evidence of motive from outside the six-month statute of limitations. A statute of limitations applies to allegedly wrongful acts, not to evidence regarding motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17; City of Oakland (2014) PERB Decision No. 2387-M, pp. 34-35; see also County of Ventura (2021) PERB Decision No. 2758-M, p. 35 [applying analogous rule to allow evidence of bad faith conduct from prior to limitations period].) (p. 17.) more or view all topics or full text.		 46 115 02/07/22
2806E Visalia Unified School District * * * VACATED IN PART by Visalia Unified School District (2024) PERB Decision No. 2806a * * *
1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General
***VACATED IN PART ON OTHER GROUNDS by Visalia Unified School District (2024) PERB Decision No. 2806a*** The Board rejected the District’s argument that the ALJ erred by relying on evidence of motive from outside the six-month statute of limitations. A statute of limitations applies to allegedly wrongful acts, not to evidence regarding motive. (State of California (California Correctional Health Care Services) (2019) PERB Decision No. 2637-S, p. 17; City of Oakland (2014) PERB Decision No. 2387-M, pp. 34-35; see also County of Ventura (2021) PERB Decision No. 2758-M, p. 35 [applying analogous rule to allow evidence of bad faith conduct from prior to limitations period].) (p. 17.) more or view all topics or full text.		 46 115 02/07/22
2854E Antelope Valley Community College District
1200.01000: REMEDIES FOR UNFAIR PRACTICES; CEASE AND DESIST ORDERS; In General
In accord with the Board’s standard unilateral change remedy, the Board found it appropriate to order the District to cease and desist from the unlawful conduct found in this decision, to meet and negotiate with the Faculty Union upon request over changes to instructors’ work calendar, and to post physical and electronic notices of its violation. (p. 7.) more or view all topics or full text.		 47 125 02/23/23
2854E Antelope Valley Community College District
1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General
The Board found it appropriate to order the District to make employees whole for any losses suffered as a result of the District’s failure to meet and negotiate in good faith over changes to the academic calendar that altered distribution of instructors’ workdays, holidays, and workload. Although the Faculty Union presented no evidence that any employee suffered a loss as a result of the calendar changes, an unfair practice finding creates a presumption that employees suffered some loss as a result of the employer’s unlawful conduct. Consistent with the presumption, the Faculty Union will have the opportunity to establish in compliance proceedings that any employees they represent suffered a loss of compensation or benefits as a result of the changes to the 2020 2021 calendar and its continuation in subsequent academic years. (p. 7.) more or view all topics or full text.		 47 125 02/23/23
2854E Antelope Valley Community College District
1205.07000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Restoration of Status Quo
In cases where an employer fails to fulfill its bargaining obligation before altering instructors’ work calendar as part of adjusting the student academic calendar, PERB has delayed its requirement to restore the status quo when necessary to prevent unwarranted disruption or interference with student instruction or district operations. The Board found such a delay appropriate here, though the parties were afforded the opportunity to modify the rescission date by mutual agreement. The record shows that the District adopted the calendar changes on December 9, 2019, in order to implement them for the 2020-2021 academic year. The Board ordered a similar timeline for rescinding those changes. Thus, absent mutual agreement, the District must rescind the unilaterally adopted changes to the calendar at the beginning of the next successive academic year following the date the decision is no longer subject to appeal. If that date falls after December 9 of an academic year, rescission must occur at the beginning of the second successive academic year after that date. (pp. 6-7.) more or view all topics or full text.		 47 125 02/23/23
2854E Antelope Valley Community College District
1000.02156: SCOPE OF REPRESENTATION; Workdays/Workyear
While instructors’ work calendar would ideally match students’ academic calendar, in reality that is not always true. Accordingly, PERB precedent distinguishes between a calendar setting employee workdays and a calendar setting student instructional days, requiring bargaining over the former but not the latter. A calendar setting instructors’ workdays during the school year must be negotiated because the term “hours” encompasses not only work schedules and workdays, but also the distribution of workdays in a year. In contrast, a calendar that only sets instructional days for students falls outside the scope of representation. The decision whether to offer certain courses beyond the state’s minimum instructional requirements is also outside the scope of representation. An employer therefore may unilaterally decide to reduce, expand, or cancel classes held outside the regular school year, subject to a duty to bargain the effects of such a decision. However, when an employer elects to move courses from one non-mandatory session to another non-mandatory session and in doing so alters distribution of workdays, holidays, and workload as it did here, it must provide affected employees’ exclusive representative adequate notice and an opportunity to bargain over both the decision and its effects. (pp. 4-5.) more or view all topics or full text.		 47 125 02/23/23