Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2852H	Regents of the University of California 1000.02060: SCOPE OF REPRESENTATION; Hiring While the ultimate decision as to whom to hire for a particular position is left to management’s discretion, it is well-established that criteria for personnel selection are within the scope of representation. Because UC Santa Cruz’s concurrent appointment policy establishes a general hiring criterion for every lecturer appointment, i.e., that they cannot also be employed in a FLSA non-exempt position, it “involves the employment relationship.” (pp. 13-14.) more or view all topics or full text.	47	121	02/09/23
2852H	Regents of the University of California 1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated Under HEERA, “[a] subject is within the scope of representation” “as a ‘term or condition of employment’” “if: (1) it involves the employment relationship, (2) it is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective bargaining is an appropriate means of resolving the conflict, and (3) the employer’s obligation to negotiate would not unduly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the employer’s mission.” Applying this test, the Board found that UC Santa Cruz’s decision to adopt a prohibition against concurrent appointments in FLSA exempt and non-exempt positions was within the scope of representation. (pp. 13-17.) more or view all topics or full text.	47	121	02/09/23
2852H	Regents of the University of California 1103.05000: CASE PROCESSING PROCEDURES; COMPLAINT; Answer or Other Defense/Waiver The University waived any untimeliness argument by not asserting the statute of limitations as an affirmative defense in its answer. (p. 12, fn. 8.) more or view all topics or full text.	47	121	02/09/23
2852H	Regents of the University of California 602.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); Change in or Deviation from Written Agreement or Policy A union can prove that an employer changed or deviated from the status quo by showing: (1) deviation from a written agreement or written policy, (2) a change in established past practice, or (3) a newly created policy or application or enforcement of existing policy in a new way. UC Santa Cruz’s September 27, 2019 letter set the status quo against which the Board measured the policy change announced in UC Santa Cruz’s November 25, 2020 letter, viz., the action alleged in the complaint to constitute the unlawful unilateral change. The September 27, 2019 letter acknowledged there were “many employees on campus with multiple staff or academic appointments which cross bargaining units and FLSA statuses.” However, nowhere in the September 27, 2019 letter did UC Santa Cruz indicate it was considering a prohibition against concurrently holding a non-exempt staff position and an exempt academic position. But its November 25, 2020 letter announced just such a policy, thereby changing the status quo. (pp. 10-11.) more or view all topics or full text.	47	121	02/09/23
2852H	Regents of the University of California 602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General To prove a prima facie case of an unlawful unilateral change, a charging party must show that: (1) the employer changed or deviated from the status quo; (2) the change or deviation concerned a matter within the scope of representation; (3) the change or deviation had a generalized effect or continuing impact on represented employees’ terms or conditions of employment; and (4) the employer reached its decision without first providing adequate advance notice of the proposed change to the union and bargaining in good faith over the decision, at the union’s request, until the parties reached an agreement or a lawful impasse. (p. 9.) more or view all topics or full text.	47	121	02/09/23
A496M	County of Orange 1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals The Board exercised its discretion to resolve charging party’s repugnancy claim rather than remanding it to the ALJ, because doing so promotes administrative efficiency. (Alliance Judy Ivie Burton Technology Academy High School, et al (2022) PERB Decision No. 2809, pp. 23-24 [Board may exercise discretion to promote efficiency by resolving issues at Board level in the first instance]; PERB Reg. 32661, subd. (d) [where charging party files repugnancy claim, the Board itself “may, at any time, direct that the record be submitted to the Board itself for decision”].) (p. 7.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals A Board agent’s decision to defer a charge to arbitration and place it in abeyance pending completion of such proceedings is an administrative decision appealable under PERB Regulation 32360. (County of Santa Clara (2020) PERB Order No. Ad-482-M, pp. 10-11.) In an appeal from an administrative decision, the appellant has the burden to show that the challenged decision is contrary to law. (County of Santa Clara (2021) PERB Order No. Ad-485-M, p. 6.) (p. 4.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1104.02000: CASE PROCESSING PROCEDURES; PROCEDURE BEFORE ALJ; Motions “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.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53 (Oxnard).) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard, supra, PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “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.” (Ibid.) (pp. 5-6.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “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.” (Ibid.) (p. 6.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration “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.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53.) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) (p. 5.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1103.11000: CASE PROCESSING PROCEDURES; COMPLAINT; Request for Deferral to Arbitration Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy In Trustees of the California State University (East Bay) (2014) PERB Decision No. 2391-H, the Board noted that deciding if an arbitration decision or settlement is repugnant to a PERB-administered statute is equivalent to deciding whether to defer to such a decision or settlement after it is final. (Id. at pp. 21-22.) Indeed, in Trustees, the Board listed four “repugnancy elements” that correspond to the Board’s post-arbitration deferral standard, as follows: “[T]he Board will . . . dismiss and defer a complaint to the arbitrator’s award if: (1) the unfair practice issues were presented to and considered by the arbitrator; (2) the arbitral proceeding was fair and regular; (3) the parties agreed to be bound; and (4) the decision of the arbitrator was not ‘clearly repugnant to the purposes and policies of the Act.’” (Id. at p. 22, citing Santa Ana Unified School District (2008) PERB Decision No. 1951, p. 6 (Santa Ana).) Thus, “repugnancy” is a term of art, because the Board may decline to defer to an arbitration award if the unfair practice issues were not presented to and considered by the arbitrator, a circumstance that does not necessarily fall within the normal English definition of the word “repugnant.” An arbitration decision or settlement is repugnant to the governing act if it is “palpably wrong” or “not susceptible to an interpretation consistent with the Act.” (County of Santa Clara (2020) PERB Order No. Ad-482-M, p. 9, fn. 11.) The mere possibility that the Board may have reached a different conclusion does not render the award repugnant. (Ibid.) A repugnancy claim can also focus, in whole or in part, on allegedly unfair procedures or simply on the fact that the arbitrator did not consider the unfair practice issues. Irrespective of whether the party alleging repugnancy focuses on the ultimate result, the process, or a combination, that party “has the burden of affirmatively demonstrating the defects in the arbitral process or award.” (Santa Ana, supra, PERB Decision No. 1951, p. 6.) (pp. 7-8.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy The Board exercised its discretion to resolve charging party’s repugnancy claim rather than remanding it to the ALJ, because doing so promotes administrative efficiency. (Alliance Judy Ivie Burton Technology Academy High School, et al (2022) PERB Decision No. 2809, pp. 23-24 [Board may exercise discretion to promote efficiency by resolving issues at Board level in the first instance]; PERB Reg. 32661, subd. (d) [where charging party files repugnancy claim, the Board itself “may, at any time, direct that the record be submitted to the Board itself for decision”].) (p. 7.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.02000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Post Arbitration; Repugnancy Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration The most critical prong of the deferral test is often whether the contract and its meaning lie at the center of the dispute. (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 55.) To meet this prong, the respondent must show, first, that the parties’ agreement prohibits the alleged unfair practice. (Ibid.) It is not sufficient for the agreement to “merely cover or discuss the matter.” (Ibid.) Rather, “the conduct alleged to be an unfair practice must be prohibited.” (Ibid.) Second, “resolution of the contractual issue must necessarily resolve the merits of the unfair practice allegation.” (Ibid.) This condition exists “if the contract incorporates the statutory legal standard, or if the parties ask the arbitrator to resolve the statutory unfair practice issue.” (Ibid.) “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.” (Ibid.) (p. 6.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration “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.” (Oxnard Union High School District (2022) PERB Decision No. 2803, p. 53.) Moreover, if the charging party is an individual employee and the applicable MOU does not allow an employee to advance a grievance to arbitration, PERB also must determine whether the exclusive representative is willing to proceed to arbitration on the employee’s grievance. (Claremont Unified School District (2014) PERB Decision No. 2357, p. 18.) (p. 5.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 1102.01000: CASE PROCESSING PROCEDURES; DEFERRAL TO ARBITRATION; Pre-Arbitration Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text.	47	66	10/06/22
A496M	County of Orange 102.01000: PERB: OPERATION, JURISDICTION, AUTHORITY; SCOPE OF PERB JURISDICTION; In General/Exclusive Initial Jurisdiction-Deferral to Arbitration; Deference by Reviewing Courts Under MMBA section 3505.8 and PERB Regulation 32620, subdivision (b)(6), PERB is authorized to: (1) grant a deferral motion and place an unfair practice charge in abeyance if the parties’ dispute is subject to final and binding arbitration pursuant to an MOU; and (2) dismiss the charge at the conclusion of the arbitration process, unless the charging party demonstrates that the ultimate settlement or arbitration award is repugnant to the MMBA. (p. 5.) more or view all topics or full text.	47	66	10/06/22
2835H	Regents of the University of California 1205.04000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Attorneys Fees and Costs To obtain reimbursement of attorney fees or other expenses as a litigation sanction, the moving party must demonstrate that the opposing party’s claim, defense, motion, or other action or tactic was “without arguable merit” and pursued in “bad faith.” (City of Palo Alto (2019) PERB Decision No. 2664-M, p. 7.) To determine whether a claim, defense, motion, or other action is frivolous, we examine whether it is so manifestly erroneous that no prudent representative would have filed or maintained it. (Ibid., citing Lake Elsinore Unified School District (2018) PERB Order No. Ad-446a, p. 5, and cases cited therein.) To determine whether a party acted with subjective bad faith, we examine whether the party’s conduct was dilatory, vexatious, or otherwise an abuse of process, and we may infer such intent from circumstantial evidence. (Ibid., citing City of Alhambra (2009) PERB Decision No. 2036-M, p. 19.) Using this standard, the Board denied Teamsters’ request for attorney fees and costs. Although the Board rejected the University’s argument that section 3553 did not apply to its FAQs, it nonetheless found that the University’s position was not without arguable merit considering the Board had not interpreted section 3553 prior to this decision. Because section 3553 lies at the heart of this case, the Board did not find that the University’s litigation position was so manifestly erroneous that no prudent representative would have maintained it. Nor was the University’s section 3550 affirmative defense clearly foreclosed by existing PERB precedent. Given that the University’s legal arguments did not meet the standard of being without arguable merit, the Board did not separately assess whether such arguments were made in bad faith. (pp. 28-29.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses An employer may attempt to establish a business necessity defense based on an alleged need to correct a union’s inaccurate communication. (See, e.g., Alliance Marc & Eva Stern Math & Science High School et al. (2021) PERB Decision No. 2795, pp. 52-75; Regents of the University of California (2021) PERB Decision No. 2756-H, p. 9.) The University did not claim that Teamsters’ communication was inaccurate such that it necessitated a corrective response from the University. Thus, the fact that the University sent its communication in response to Teamsters’ earlier communication does not establish a business necessity defense. (p. 25.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 410.02000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Defenses Once a charging party establishes a prima facie section 3550 violation, the burden shifts to the employer to prove a business necessity defense. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 35.) The University asserts that it had a legitimate business purpose for sending the FAQs, namely the Administrative Officer IIs’ (AO2) accretion and “a sudden influx of questions” that were “largely prompted by the Teamsters[’] own communication that it sent on October 16, 2020.” The Board found that the University failed to establish a business necessity defense for circulating its FAQs to employees. Even assuming the University had a business necessity to communicate with its employees about the accretion prior to completing meeting and conferring with Teamsters, it could have sent the statement that the University drafted and Teamsters approved on October 16, which provided the most pertinent information about the accretion: that the AO2s had been accreted into the Clerical and Allied Services Bargaining Unit and that bargaining between Teamsters and the University would begin soon. Not only could that statement be lawfully distributed under section 3553, but it did not have the same tendency to deter or discourage employee choice because it was not drafted in the prejudicial manner of the FAQs. Furthermore, the University did not prove any urgency to respond to an allegedly high volume of employee inquiries about the accretion. The University’s evidence in support of its business necessity defense consisted of just three employee e-mails. Two employees inquired—after the University sent the FAQs—about whether they were properly classified as AO2s. The third employee asked simply, “Do you know anything about this?” in reference to Teamsters’ welcome e-mail. None of the employees’ questions were about becoming a Teamsters member or paying dues. Moreover, the University’s statement that it “knew there would be questions about joining the union and union dues” belies its own claim that it sent its communication in response to an “influx” of employee queries. The University did not establish that it narrowly tailored its communication to address employees’ actual inquiries about the accretion. (pp. 24-25.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 410.01200: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Contextual Factors Even without the presumptive section 3550 violation borne of the University’s section 3553, subdivision (b) violation, the Board found that Teamsters proved a prima facie case of a section 3550 violation. The context in which the University distributed the FAQs also supports finding that they tend to deter or discourage employee free choice. The University circulated the FAQs within days of the accretion becoming final, which was a crucial period for Administrative Officer IIs (AO2) to decide whether to join Teamsters. The timing was therefore particularly sensitive to influencing employee free choice. Moreover, the Board noted that the unit employees who received the FAQs were part of a group of employees who received a previous University communication that violated section 3550. That prior communication likely tended to color how AO2s perceived the University’s October 2020 FAQs. (p. 22.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 410.01100: EMPLOYER DETERRENCE OR DISCOURAGEMENT; Content of Communication Even without the presumptive section 3550 violation borne of the University’s section 3553, subdivision (b) violation, the Board found that Teamsters proved a prima facie case of a section 3550 violation. The FAQs tended to influence employee free choice on several fronts. FAQ 2, by asking “Must I join the Union?,” couches union membership in a negative light as a potential compulsory obligation that an employee might wish to avoid. FAQ 3 suffers from a similar pitfall. The question, “Will I have to pay monthly union dues?,” treats the choice to join a union as a financial burden an employee may wish to avoid, thereby emphasizing the cost of union membership without any mention of the benefits. (See Regents of the University of California (2021) PERB Decision No. 2755-H, p. 41 [University’s FAQ regarding union dues framed the Janus decision only in terms of a financial advantage to agency fee payers, eliding any hint that the right-to-work framework Janus imposed may ultimately reduce compensation and protections].) By highlighting these questions and labeling them as “FAQs,” the University suggested that AO2s commonly ask these questions, or should ask them, rather than asking about membership benefits. Spotlighting these topics to the exclusion of others reduced the accretion, and by extension the choice to join and support Teamsters, to an overall burden. (pp. 21-22.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 410.01000: EMPLOYER DETERRENCE OR DISCOURAGEMENT; In General; Standards Section 3550 provides that a “public employer shall not deter or discourage public employees or applicants to be public employees from becoming or remaining members of an employee organization, or from authorizing representation by an employee organization, or from authorizing dues or fee deductions to an employee organization.” The Board interprets “deter or discourage” as to tend to influence an employee’s free choice regarding whether or not to authorize representation, become or remain a union member, or commence or continue paying union dues or fees. (Regents of the University of California (2021) PERB Decision No. 2755-H, p. 21 (Regents).) The test for whether an employer’s communication “tends to influence” is objective. (Id. at p. 24.) The charging party has the burden to show that the communication tends to influence, not that it actually did influence free choice. (Ibid.) We will first examine the content of the communication itself to determine whether it tends to influence employee free choice, and then consider the communication’s context. (Id. at pp. 24-25.) Preliminarily, however, “where a charging party meets its burden to prove an employer violated section 3553, it creates a presumptive section 3550 violation. The employer may rebut the presumption by showing that although the communication required section 3553 negotiations pre-publication, it does not meet the threshold prima facie test for deterring or discouraging employee decisions protected by section 3550.” (Id. at p. 37.) In light of the Board’s conclusion that the University violated section 3553, subdivision (b), it found that the University presumptively violated section 3550 by unilaterally disseminating the FAQs, and that it did not rebut that presumption by establishing the FAQs fell into the “narrow” category of communications that may concern employee rights to choose whether or not to join or support an employee organization but yet not tend to influence employee decisions on those topics. (pp. 20-21.) more or view all topics or full text.	47	69	10/07/22
2835H	Regents of the University of California 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights To constitute a waiver of the right to meet and confer under Government Code section 3553, the exclusive representative’s communication to unit employees, or the context in which it was made, must clearly indicate that the representative intentionally relinquished its right to bargain over the content of the employer’s communication. Although we do not foreclose a scenario where an employer could successfully assert a waiver defense to section 3553, subdivision (b), the University did not meet its burden to prove such a defense here. (p. 19.) more or view all topics or full text.	47	69	10/07/22