| Decision | Description | PERC Vol. | PERC Index | Date |
|---|---|---|---|---|
| 2846M |
City and County of San Francisco
1107.03000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Remand for Further Hearing; Remand to General Counsel
The Board affirmed in part and reversed in part the Office of the General Counsel’s partial dismissal and remanded the case to the Office of the General Counsel for issuance of an amended complaint consistent with this Decision. (p. 26.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1000.02074: SCOPE OF REPRESENTATION; Job Specifications
Changes to job specifications, including qualifications, are within the scope of representation unless the changes at issue do no more than is required to comply with an externally-imposed change in the law. (p. 22.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1000.02163: SCOPE OF REPRESENTATION; Work Rules
The employer’s requirement that employees disclose their vaccination status under threat of discipline changed or deviated from the status quo by creating a new policy requiring employees to reveal their vaccination status where previously there had been no such policy. (p. 23.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1000.01000: SCOPE OF REPRESENTATION; In General; Test for Subjects Not Specifically Enumerated
The Board in Regents of the University of California (2021) PERB Decision No. 2783-H (Regents) held that a mandatory influenza vaccination policy issued before a COVID-19 vaccine was available was not within the scope of representation. That decision was based on the particular facts of that case and did not hold that mandatory vaccination policies are always outside the scope of representation. Also, the mandatory vaccination policy at issue in Regents was more than a mere work rule because it applied not only to employees but to “all individuals who work, live, or study on University premises.” Further, the circumstances may have changed significantly enough since the policy change in Regents to warrant a different conclusion on the scope of representation issue. The Board held that based on the facts alleged in the charge, it cannot be said as a matter of law that the union cannot overcome Regents. Rather, these arguable legal and factual disputes weigh in favor of issuing a complaint on the decision bargaining allegation because if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. (pp. 19-21.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
603.04000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; BYPASSING EXCLUSIVE REP; Circumvention of Union; Direct Dealing With Employees
The charge did not allege that the employer approached any employees to obtain a waiver or modification of an existing policy. Nor did it allege that the employer approached employees with a proposal for a new vaccination disclosure policy without first presenting such a proposal to the union. Rather, the charge allegations show that the employer presented the new vaccination disclosure policy to employees (and to the union) as a fait accompli. Therefore, the allegations in the charge fail to establish a prima facie case of direct dealing and dismissal of this allegation is affirmed. (pp. 24-25.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
602.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; UNILATERAL CHANGE (FOR NEGOT OF SPECIFIC SUBJECTS, SEE SEC 1000, SCOPE OF REPRESENTATION); In General
In determining whether an employer’s decision is within the scope of representation under MMBA section 3504, PERB first determines which of the three categories of managerial decisions identified in International Assn. of Fire Fighters, Local 188, AFL-CIO v. Public Employment Relations Bd. (2011) 51 Cal.4th 259 the decision falls into: (1) “decisions that ‘have only an indirect and attenuated impact on the employment relationship’ and thus are not mandatory subjects of bargaining,” such as advertising, product design, and financing; (2) “decisions directly defining the employment relationship, such as wages, workplace rules, and the order of succession of layoffs and recalls,” which are “always mandatory subjects of bargaining”; and (3) “decisions that directly affect employment, such as eliminating jobs, but nonetheless may not be mandatory subjects of bargaining because they involve ‘a change in the scope and direction of the enterprise’ or, in other words, the employer’s ‘retained freedom to manage its affairs unrelated to employment.’” When a decision falls into the third category, PERB first determines whether the decision has “a significant and adverse effect on the wages, hours, or working conditions of the bargaining-unit employees” that “arises from the implementation of a fundamental managerial or policy decision.” If both requirements are met, PERB determines whether “the employer’s need for unencumbered decisionmaking in managing its operations is outweighed by the benefit to employer-employee relations of bargaining about the action in question.” (pp. 14-18.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1100.01000: CASE PROCESSING PROCEDURES; CHARGE; In General/Prima Facie Case
To establish a prima facie case that a respondent employer made an unlawful unilateral change, a charging party union that exclusively represents a bargaining unit must prove: (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. (pp. 9-10.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1100.05000: CASE PROCESSING PROCEDURES; CHARGE; Dismissal of Charge; Appeal
In resolving an appeal of a dismissal, the Board reviews OGC’s decision de novo, applying the same legal standard OGC applied to the allegations in the charge. At this stage of litigation, “the charging party’s burden is not to produce evidence, but merely to allege facts that, if proven true in a subsequent hearing, would state a prima facie violation.” PERB assumes the charging party’s factual allegations are true, and views them in the light most favorable to the charging party. PERB does not rely on the respondent’s responses if they explicitly or implicitly create a factual conflict with charging party’s allegations, even if the respondent’s contrary responses are stated more persuasively or appear as if they may be backed up by more supporting evidence, when compared to charging party’s allegations. Thus, at this stage of the case PERB does not resolve conflicting allegations, make conclusive factual findings, or judge the merits of the dispute. Rather, if there are one or more contested facts (or mixed questions of law and fact) that could affect the outcome, or there are contested, colorable legal theories, a complaint should issue, with the disputed issue(s) to be resolved at a formal hearing. (pp. 8-9.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| 2846M |
City and County of San Francisco
1103.12000: CASE PROCESSING PROCEDURES; COMPLAINT; Concurrent or Derivative Violations
While employees’ use of a vaccination ascertainment form created by their union may qualify as MMBA-protected activity, the union’s appeal stated that the outcome of its interference claim turns on whether the employer took unilateral action on a matter within the scope of representation. The Board therefore found it amounts to a derivative interference claim. (p. 25.) more or view all topics or full text. |
47 | 88 | 11/17/22 |
| A497M |
City and County of San Francisco
1405.01000: GENERAL LEGAL PRINCIPLES; COLLATERAL ESTOPPEL; RES JUDICATA; In General
PERB is not bound by the findings and conclusions of another administrative decision unless collateral estoppel applies. (San Diego Unified School District (1991) PERB Decision No. 885, p. 74). The doctrine of collateral estoppel precludes the relitigation of an issue already decided in another proceeding where: (1) the issue decided in the prior proceeding is identical to that sought to be relitigated; (2) the previous proceeding resulted in a final judgment on the merits; and (3) the party against whom collateral estoppel is asserted was a party or in privity with a party in the prior proceeding. (State of California (Department of Developmental Services) (1987) PERB Decision No. 619-S, p. 14, citing People v. Sims (1982) 32 Cal.3d 468, 484.) Collateral estoppel effect may be given to decisions of administrative agencies when: (1) the agency is acting in a judicial capacity; (2) it resolves disputed issues of fact properly before it; and (3) the parties have had an adequate opportunity to litigate such disputed issues. (State of California (Department of Developmental Services), supra, pp. 14-15; People v. Sims, supra, 32 Cal.3d at p. 484.) In this matter, the Board did not proceed past the first step of analysis, as the issues decided in the prior proceeding were not identical to those raised by the Association’s severance petition. (pp. 27-28.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1403.01000: GENERAL LEGAL PRINCIPLES; ESTOPPEL; In General
The doctrine of judicial estoppel prohibits a party from successfully taking inconsistent positions in the same or different judicial proceedings. (Alliance Judy Ivie Burton Technology Academy High, et al. (2020) PERB Decision No. 2719, pp. 36-37 (Alliance) (judicial appeal pending); Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 181 (Jackson).) Judicial estoppel applies when (1) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 183.) The doctrine’s purpose is to protect the integrity of the judicial process by preventing parties from playing fast and loose with the courts. (Alliance, supra, p. 37, citing Jackson, supra, 60 Cal.App.4th at p. 181.) In this matter, the Board declined to consider whether the City should be estopped from asserting it cannot apply PERB Regulations because the Association failed to fully raise or argue the matter, nor was it addressed in an earlier order to show cause. (pp. 26-27.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
PERB Regulation 61420 provides “[w]henever a severance petition is filed with the Board, the Board shall investigate and, where appropriate, conduct a hearing and/or a representation election, or take such other action as deemed necessary to decide the questions raised by the petition.” PERB recently noted that under a comparable regulation implementing the Educational Employment Relations Act (EERA), “[t]here is ‘no guarantee or entitlement to an evidentiary hearing.’” (Alliance Morgan McKinzie High School, et al. (2022) PERB Order No. Ad-491, p. 13, quoting Children of Promise Preparatory Academy (2013) PERB Order No. Ad-402, p. 16.) Rather, after completing an investigation, the Board agent may either “determine that sufficient evidence has been submitted to raise a material issue that necessitates an evidentiary hearing,” or “that no material issue of fact exists and thus that a hearing is unnecessary.” (Id. at p. 17.) The Board applies an abuse of discretion standard in reviewing a Board agent’s determination whether to conduct a hearing in a representation matter. (Robert L. Mueller Charter School (2003) PERB Order No. Ad 320, p. 11.) Here, the Board found that there were no disputed material facts and thus OGC did not abuse its discretion by declining to hold a hearing. (pp. 22-24.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues
When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) Here, the Board analyzed whether the City’s ERO contained rules that can accomplish severance without an undue burden, and found that it did not. (p. 16.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1308.01000: REPRESENTATION ISSUES; SEVERANCE; In General
MMBA section 3507, subdivision (a) authorizes public agencies to “adopt reasonable rules and regulations after consultation in good faith with representatives of a recognized employee organization or organizations for the administration of employer-employee relations.” Such local rules may include provisions for, among other things, recognizing employee organizations and determining appropriate bargaining units. (MMBA, § 3507, subd. (a)(3), (4); County of Monterey (2022) PERB Decision No. 2821-M, p. 9.)
When a public agency has adopted local rules, PERB has jurisdiction over a representation petition only if the agency’s local rules contain no reasonable provision(s) that can accomplish what the petitioner is seeking without placing an undue burden on the petitioner. (County of Orange (2010) PERB Decision No. 2138-M, p. 9.) “[I]f an agency has not adopted a reasonable local rule on a particular representation issue, PERB Regulations fill the gap” by allowing PERB to process the petition. (Central Basin Municipal Water District (2021) PERB Order No. Ad-486-M, p. 8; MMBA, § 3509, subd. (a); PERB Reg. 61000.) The Board found the City’s ERO provides no avenue for processing a severance request without unduly burdening a petitioner, finding that PERB had jurisdiction over the petition, but dismissing it due to untimeliness. (pp. 16-22; 29-30.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1107.21000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Administrative Appeals
When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
1107.06000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; De Novo Review; Standard of Review by Board
When appealing an administrative determination, the appellant must demonstrate how or why the challenged decision departs from the Board’s precedents or regulations. (Children of Promise Preparatory Academy (2018) PERB Order No. Ad-470, p. 4; Regents of the University of California (2016) PERB Order No. Ad 434-H, p. 8; County of Santa Clara (2014) PERB Order No. Ad-411-M, p. 5.) In representation matters the Board applies an abuse of discretion standard to review a Board agent’s decision whether to hold an evidentiary hearing. (p. 15.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| A497M |
City and County of San Francisco
750.01000: EMPLOYER ADOPTION/ENFORCEMENT OF UNREASONABLE RULE; In General
The process for challenging the application or existence of local rules as contrary to the MMBA is an unfair practice charge. (City of Parlier (2015) PERB Order No. Ad-421-M, p. 8.) The Association had a right to file an unfair practice charge, alleging that the City’s local rules themselves violate the MMBA or that their application in this instance was unreasonable, but that allegation could not be resolved as part of the Association’s severance petition. (p. 29.) more or view all topics or full text. |
47 | 74 | 10/17/22 |
| 2834E |
Butte-Glenn Community College District
1402.07000: GENERAL LEGAL PRINCIPLES; WAIVER; Failure to Timely Raise Affirmative Defense
Employer waived request that PERB order the parties to negotiate over the cost of compiling requested information when it neither raised the alleged undue burden contemporaneously nor offered to bargain with union about it. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 15-16 [assertion that an information request is unduly burdensome must be timely raised so the parties can negotiate over eliminating or reducing the responding party’s burden].) (pp. 17, 19.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
1205.12000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; Provision of Information
The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
1205.01000: REMEDIES FOR UNFAIR PRACTICES; MISCELLANEOUS REMEDIAL PROVISIONS; In General
The appropriate remedy in cases involving a failure to provide information typically includes a cease-and-desist order and an order to provide the requested information upon the charging party’s request. (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, pp. 16-18; Regents of the University of California (Davis) (2010) PERB Decision No. 2101-H, p. 37; see also Children of Promise Preparatory Academy (2019) PERB Order No. Ad-473, pp. 4-5 [responding party must provide requested information based upon its duties when its obligation first arose, irrespective of whether intervening events may have created new potential defenses to providing the requested information].) (p. 19.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver
The Board generally “decline[s] to review an exception raising an issue that was not presented to the ALJ.” (Los Angeles County Superior Court (2018) PERB Decision No. 2566-C, p. 12; Colusa Unified School District (1983) PERB Decision No. 296, p. 4.) The Board exercised its discretion to consider the District’s exception where it raised an important issue concerning when an exclusive representative must reassert its information request upon receiving a less-than-complete response from the employer. We accordingly exercise our discretion to consider the District’s exception. (Los Angeles County Superior Court, supra, PERB Decision No. 2566-C, p. 13.) (p. 11.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
604.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Form of Information Provided; Costs
While it is tautological that an employer need not provide information that does not exist, “when the requested information does exist in some form, the fact that the employer may have to compile it from various sources does not excuse the employer from producing it unless the employer can prove doing so would be unduly burdensome.” (State of California (Department of State Hospitals) (2018) PERB Decision No. 2568-S, p. 15.) Moreover, an employer must raise any such burden contemporaneously with the requesting union “so the parties can negotiate over eliminating or reducing the employer’s burden.” (Id. at p. 16.) Otherwise, the employer forfeits the defense and PERB will order the employer to supply the information despite any burden it may impose. (Ibid.) When requested information exists in some form, the fact that the employer cannot retrieve it from a centralized database—and instead may have to compile it from various sources (including employees’ memories)—does not excuse the employer from producing it, unless the employer can prove doing so would be unduly burdensome and has offered to bargain to alleviate the burden. (pp. 17-18.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
604.03000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; Form of Information Provided; Costs
A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “an employer responding to an RFI may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
It is not a charging party’s burden to prove exactly what further information a respondent would have found by conducting a proper, diligent search. (p. 18, fn. 11.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
| 2834E |
Butte-Glenn Community College District
604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General
A responding party cannot rely on CPRA exemptions when responding to an information request arising under a labor relations statute. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 10 (Sacramento); see also County of Tulare (2019) PERB Decision No. 2697-M, pp. 14-15, fn. 9 [party responding to information request under labor relations statute may interpose defense to protect internal collective bargaining strategy but may not assert the broader deliberative process privilege applicable under the CPRA].) While the CPRA provides unions with the same right to public records as any person or organization, the statutes PERB administers confer upon an exclusive representative, as part of its representational rights and duties, a separate, broader right to information. The CPRA may not require an employer to “create a new set of public records,” but a union’s information request “may cover both public records and information that may not be found in any existing record,” meaning that “an employer responding to an RFI may be required to compile information from multiple records, management agents, and other sources, unless it can prove that doing so would be unduly burdensome.” (Sacramento, supra, PERB Decision No. 2597, p. 11.) (p. 15.) more or view all topics or full text. |
47 | 68 | 10/07/22 |
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.
