Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2847M	Kern County Hospital Authority 1101.03000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Computation of Six-Month Period The limitations period begins to run on the date the charging party knew, or should have known, of the conduct underlying the charge. (Gavilan Joint Community College District (1996) PERB Decision No. 1177, p. 4.) The limitations period for a unilateral change allegation begins to run when the charging party has actual or constructive notice of the respondent’s clear intent to implement the change in policy, provided there is no conduct after that date evincing a wavering of such intent. (Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 16.) (p. 8.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General An employer’s announcement of a new policy as a fait accompli would not trigger a duty to demand bargaining and cannot support a waiver defense. Thus, waiver and timeliness normally apply in separate circumstances: announcing a fait accompli can trigger the statute of limitations for a unilateral change charge but cannot support a waiver by inaction defense, while proposing a new policy does not trigger the statute of limitations but can lead PERB to find waiver by inaction if the union does not respond to the proposal within a reasonable time. (County of Merced (2020) PERB Decision No. 2740-M, p. 20.) (pp. 17-18.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 1101.01000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; In General Absent a recognized exception, PERB cannot issue a complaint with respect to any charge based upon an alleged unfair practice occurring more than six months prior to the filing of the charge. (Coachella Valley Mosquito and Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) Before a complaint issues, a charging party bears the burden to allege facts that would, if proven, establish timeliness. (Los Angeles Unified School District (2014) PERB Decision No. 2359, pp. 3, 30.) After a complaint issues, a respondent bears the burdens of pleading untimeliness as an affirmative defense in its answer, and then proving that the statute of limitations bars the charge. (Id. at p. 30.) (pp. 7-8.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 1000.02167: SCOPE OF REPRESENTATION; Exclusive Representative's Right to File Grievances Chula Vista City School District (1990) PERB Decision No. 834 held that EERA grants an exclusive representative the right to file grievances in its own name. The Board based this holding on EERA section 3543.1, subdivision (a), which states in relevant part: “Employee organizations shall have the right to represent their members in their employment relations with public school employers.” Critically, Chula Vista noted that this statutory right is based on the fundamental principle that employees have the right to act collectively through their union. (Id. at p. 22.) The MMBA mirrors EERA in providing unions with a “right to represent”: “Recognized employee organizations shall have the right to represent their members in their employment relations with public agencies.” (MMBA, § 3503.) In Omnitrans (2009) PERB Decision No. 2010-M, the Board found that the MMBA, like EERA, provides an exclusive representative with a statutory right to file union grievances seeking relief on a collective basis. (Id., adopting proposed decision at p. 5.) Any waiver of this union right must be clear and unmistakable. (Ibid.) (p. 15.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession To prove waiver by inaction, it is necessary to prove “conscious abandonment” of the right to bargain. (City of Culver City (2020) PERB Decision No. 2731-M, p. 18.) Showing that a union consciously abandoned its right to bargain typically involves proof that “the union had clear notice, meaning advance knowledge, of the employer’s intent to change policy with sufficient time to allow a reasonable opportunity to bargain about the change and then failed to request negotiations.” (Id., adopting proposed decision at pp. 25-26 [internal quotation marks omitted].) (p. 17.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession In Omnitrans (2010) PERB Decision No. 2143-M, the employer refused to process a grievance filed by the union’s president alleging violations of several MOU articles, claiming among other things that the grievance procedure did not allow the union to file grievances in its own name and that the union president lacked standing to file a grievance because he was not himself an “employee” as defined by the MOU. (Id. at p. 7.) PERB found no clear and unmistakable waiver and therefore concluded that the employer unlawfully changed the status quo by refusing to process the union’s grievance. (Id. at pp. 7-8.) (p. 16, fn. 7.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Following Omnitrans (2009) PERB Decision No. 2010-M, PERB held that a grievance procedure which repeatedly referred to the grievant as “the employee” did not waive the union’s statutory right to seek collective relief. (pp. 15-16.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Where the employer asserts contractual waiver and waiver by inaction, the employer bears the burden of proving clear and unmistakable waiver, viz., that the union intentionally relinquished its right. (City of Culver City (2020) PERB Decision No. 2731-M, p. 13, and adopting proposed decision at p. 23.) PERB resolves any doubt against finding waiver. (County of Merced (2020) PERB Decision No. 2740-M, p. 10.) (pp. 13-14.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo When considering the meaning of ambiguous contract language—including if a respondent asserts an MOU-based defense—PERB considers past practice as one interpretive tool even absent a practice that is “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) (p. 13, fn. 4.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 602.04000: 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 Unwritten Past Practice When considering the meaning of ambiguous contract language—including if a respondent asserts an MOU-based defense—PERB considers past practice as one interpretive tool even absent a practice that is “regular and consistent” or “historic and accepted.” (County of Merced (2020) PERB Decision No. 2740-M, p. 13, fn. 9.) (p. 13, fn. 4.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 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 There are three primary means of proving that an employer changed or deviated from the status quo. Specifically, a charging party satisfies this element by showing any of the following: (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. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 10.) Hospital Authority announced a new policy where there was none before—or applied or enforced existing policy in a new way—by declaring that the parties’ MOU bars group or class grievances and grants the Authority unilateral authority to refuse to consolidate grievances. (p. 11.) The Board rejected the Authority’s argument that the MOU implicitly disallows group and class grievances by defining a grievance as a “complaint by an employee” and using other similar singular phrasing. Omnitrans (2009) PERB Decision No. 2010-M and related cases hold that only clear and unambiguous MOU language can bar a union from pursuing collective relief through a grievance, and an MOU does not satisfy that standard where it merely defines the grievant as a singular “employee” and does not explicitly exclude group and class grievances. (Id., adopting proposed decision at p. 5; Chula Vista City School District (1990) PERB Decision No. 834, p. 22.) (p. 12.) The Authority’s claim that the parties’ MOU granted it the right to reject group, class, or consolidated grievances on purely procedural grounds, materially altered the status quo in a manner that could affect future cases. (See, e.g., Sacramento City Unified School District (2020) PERB Decision No. 2749, pp. 8-9 [employer engaged in unilateral change by refusing to allow arbitrator to decide arbitrability dispute].) (pp. 12-13.) more or view all topics or full text.	47	142	12/20/22
2847M	Kern County Hospital Authority 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 establish a prima facie case of an unlawful unilateral change, a charging party must prove 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. (Bellflower Unified School District (2021) PERB Decision No. 2796, p. 9.) (p. 10.) more or view all topics or full text.	47	142	12/20/22
1727E	East Whittier School District 401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia As it stated in Turlock I, the Board does not agree that the wearing of union buttons is “political” activity within the meaning of Education Code section 7055. When examined in light of adjacent statutory provisions and the purposes of EERA, the scope of the definition of “political activities” in Section 7055 cannot reasonably be construed so broadly as to encompass the exercise of concerted activity through the wearing of a button communicating employees’ bargaining demands, expressing unity and support for the union, and building solidarity. While the term “political activities” is not specifically defined in the Education Code, sections 7050-7058, read in their entirety, clearly associate political activity with an election of a candidate or a ballot measure. (p. 14.) more or view all topics or full text.	29	40	12/21/04
1727E	East Whittier School District 401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia Where it is alleged that a button is distracting or disruptive, an objective examination of the button should take place. Buttons that contain profanity, incite violence, or which disparage specific individuals will always meet the special circumstances test. Otherwise, the trier of fact must examine the button in its given context to determine whether an objectively reasonable person would find it unduly distracting or disruptive. In determining whether a button is unduly distracting or disruptive, the trier of fact should consider both PERB precedent and private sector cases under the NLRA, as the ALJ did in analyzing Fabri-Tek. The trier of fact should also compare the buttons to other distractions prohibited or allowed by the employer. (p. 13.) more or view all topics or full text.	29	40	12/21/04
1727E	East Whittier School District 401.07000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Display of Union Insignia It is well-settled under the statutes administered by PERB that employees have a protected right to wear union buttons at the workplace. (State of California (Department of Parks and Recreation) (1993) PERB Decision No. 1026-S (Parks): see also, State of California (Department of Parks and Recreation) (1983) PERB Decision No. 328-S.) In Parks, a unanimous decision, Member Carlyle set forth the simple rule that, “the wearing of union buttons is a protected right, absent special circumstances.” (Parks at p. 4.) What constitutes a “special circumstance” depends on the setting, and “special circumstances” recognized in industrial settings may not be applicable in a classroom. Here, of the five special circumstances or considerations listed in Pay’N Save (employee dissension, safety, property damage, distraction, and public image), the District in this case argues only that distraction is an issue. The District has not shown that the classroom work at issue requires such a high degree of concentration, or that one more distraction could have dire consequences. Further, the District has not demonstrated that any of its students are particularly susceptible to distraction, which might justify banning buttons as to those students. Finally, the Board takes notice that the record establishes that the District permits other articles of clothing and activities which are as distracting, if not more, than the buttons at issue. Accordingly, the Board finds that the District has no established distraction as a special circumstance justifying its policy and regulation. In reaching this finding, the Board has not considered any evidence of actual disruption; rather, the test must be an objective one based on an examination of the buttons at issue. (pp. 8-13.) more or view all topics or full text.	29	40	12/21/04
1721E	San Francisco Unified School District and City and County of San Francisco 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights Union’s waiver of its rights in previous rounds of bargaining did not waive its rights for all eternity. The fact that the union did not assert its rights once, does not prevent it from asserting its rights in the future. (p. 10.) more or view all topics or full text.	29	33	12/13/04
1721E	San Francisco Unified School District and City and County of San Francisco 1101.07000: CASE PROCESSING PROCEDURES; LIMITATION PERIOD FOR FILING CHARGE; Waiver; Estoppel Union’s waiver of its rights in previous rounds of bargaining did not waive its rights for all eternity. The fact that the union did not assert its rights once, does not prevent it from asserting its rights in the future. (p. 10.) more or view all topics or full text.	29	33	12/13/04
1721E	San Francisco Unified School District and City and County of San Francisco 1407.01000: GENERAL LEGAL PRINCIPLES; STATUTORY CONSTRUCTION; General Principles It is a well-settled rule of statutory construction that the term “or” has a disjunctive meaning. (Houge v. Ford (1955) 44 Cal.2d 706, 712 [285 P.2d 257] (Houge); see also, In re Jesusa (2004) 32 Cal.4th 588 [10 Cal.Rptr.3d 205].) “In its ordinary sense, the function of the word ‘or’ is to mark an alternative such as ‘either this or that.’” (Houge at p. 712.) It is also a well-settled rule of statutory construction that qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. (White v. County of Sacramento (1982) 31 Cal.3d 676, 680 [183 Cal.Rptr. 520].) Thus, where there is a disjunctive “or” before a final clause with a qualifying phrase, the qualifying phrase should be interpreted as only applying to that final clause. (See, e.g., Furtado v. Sierra Community College (1998) 68 Cal.App.4th 876, 881 [80 Cal.Rptr.2d 5891; Fischer v. Los Angeles Unified School Dist. (1999) 70 Cal.App.4th 87 [82 Cal.Rptr.2d 452].) To extend the application of a qualifying phrase back past the disjunctive “or” would violate accepted rules of statutory construction. (Hopkins v. Anderson (1933) 218 Cal. 62, 65 [21 P.2d 560]; County of Los Angeles v. Graves (1930) 210 Cal. 21, 26 [290 P. 444].) (pp. 9-10.) more or view all topics or full text.	29	33	12/13/04
1713E	East Side Union High School District 1201.01000: REMEDIES FOR UNFAIR PRACTICES; REINSTATEMENT; BACKPAY BENEFITS; In General Because the District violated its obligation to negotiate in good faith by unilaterally ceasing to use the public complaint form in cases of sexual and racial harassment/discrimination and ceasing to provide a copy of the complaint to the bargaining unit member named in such cases, the Board ordered the District to return to the status quo ante and to rescind the disciplinary action imposed on two employees affected by use of the new form. The Board also ordered all documentation of those disciplinary actions be destroyed. (adopting proposed decision at p. 15.) more or view all topics or full text.	29	17	11/23/04
1713E	East Side Union High School District 1000.02045: SCOPE OF REPRESENTATION; Evaluations A public complaint form that may be placed in the employee's personnel file is a procedure for the evaluation of certificated employees, an enumerated subject under section 3543.2(a). (adopting proposed decision at p. 13.) more or view all topics or full text.	29	17	11/23/04
1713E	East Side Union High School District 1000.02029: SCOPE OF REPRESENTATION; Disciplinary Action The utilization of a form for documenting public complaints is a matter within the scope of representation. A subject is negotiable if it is specifically enumerated in the Act’s scope of representation definition. (Sec. 3543.2.) Section 3543.2(b) identifies “causes and procedures for disciplinary action, other than dismissal, including a suspension of pay for up to 15 days, affecting certificated employees.” The public complaint procedure whereby formal complaints involving harassment/discrimination were documented in the public complaint form and provided to the Association must be considered a procedure for disciplinary action, because District witness admitted that the public complaint procedure applied to the cases of two employees and because his investigation in both cases resulted in the imposition of discipline short of dismissal. (adopting proposed decision at p. 13.) more or view all topics or full text.	29	17	11/23/04
1713E	East Side Union High School District 602.04000: 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 Unwritten Past Practice A binding past practice is one that is “regular and consistent” or “historic and accepted.” The Board found that the District had a “historic and accepted practice” of utilizing the formal public complaint form in cases of public complaints (i.e., those lodged against a unit member by a student, parent, employee, or other member of the public) and that when such a public complaint form was completed the District administrator provided the employee with a copy of it. The fact that the complaint form was not negotiated is irrelevant. The Association was aware of its use and acquiesced in its use. It is well-settled that unwritten past practices may support a charge of unilateral change. (adopting proposed decision at pp. 9-10.) more or view all topics or full text.	29	17	11/23/04
1713E	East Side 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 Deferral to arbitration under EERA section 3541.5(a)(2) is not jurisdictional, but rather must be asserted as an affirmative defense or waived. As the District failed to raise deferral in its answer, its deferral exception is rejected. (pp. 3-4.) more or view all topics or full text.	29	17	11/23/04
1700H	Regents of the University of California 1205.02000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Access - Remedy for Unfair Practice An appropriate remedy for University’s unlawful access restriction includes a cease and desist order, rescission of University’s absolute prohibition on demonstrations inside University buildings, and a notice posting. (adopting proposed decision at p. 96.) more or view all topics or full text.	28	270	11/01/04
1700H	Regents of the University of California 401.04000: EMPLOYER INTERFERENCE, RESTRAINT, COERCION, EMPLOYER CONDUCT AFFECTING ORGANIZING, UNION ACCESS; SOLICITATION, AND OTHER UNION RIGHTS; Access - Union Right University’s policy prohibiting employee organizations and their representatives from using University phones “unless specifically permitted by a collective bargaining agreement” was an unreasonable regulation of the right of access to a means of communication. (adopting proposed decision at pp. 72-74.) more or view all topics or full text.	28	270	11/01/04