Keyword Search by Headnotes - California Public Employment Relations Board

Decision	Description	PERC Vol.	PERC Index	Date
2834E	Butte-Glenn Community College District 604.01000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; REFUSAL TO PROVIDE INFORMATION; In General The union did not have to reassert or clarify its RFI after receiving the District’s response, because a union need not do so if it is sufficiently clear that the response did not fully satisfy the request, as it was in this case. Here, the District assessed and answered the union’s RFI as if it arose under the California Public Records Act (CPRA) and consequently failed to explore means of obtaining requested information that was not in its central course database. It was sufficiently clear that the District failed to seek information beyond preexisting records and the District unequivocally stated that no more information would be forthcoming. (p. 14.) The Board partially overruled Trustees of the California State University (2004) PERB Decision No. 1732-H, to extent it suggests that an exclusive representative’s failure to reassert or clarify its information request upon receiving a partial response from the employer always bars finding a violation of the duty to bargain in good faith, regardless of whether it was sufficiently clear that the response was incomplete. (p. 14.) 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 Once a party receives a request for relevant information, it must either promptly and fully supply the information or timely and adequately explain its reasons for not doing so. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8 (Sacramento).) The responding party bears the burden of proof as to any defense, limitation, or condition that it asserts. (Ibid.) If the responding party believes that a request is unduly burdensome, seeks confidential information, or is otherwise overbroad, the responding party must affirmatively assert its concerns and offer to bargain over those concerns with the requesting party. (Id. at pp. 12-13; 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]; Petaluma City Elementary School District/Joint Union High School District (2016) PERB Decision No. 2485, p. 19 (Petaluma) [“Even where a request is arguably ambiguous or overly broad, the employer . . . must seek clarification [or] comply to the extent the request seeks relevant information”].) A responding party must exercise the same diligence and thoroughness as it would in other business affairs of importance, and a charging party need not show that a responding party’s lack of care caused harm. (Sacramento, supra, PERB Decision No. 2597, pp. 8-9; Petaluma, supra, PERB Decision No. 2485, p. 19.) Thus, a responding party violates its bargaining duty if it unreasonably delays its response, even if the delay did not prejudice the requesting party. (Sacramento, supra, PERB Decision No. 2597, p. 9; Petaluma, supra, PERB Decision No. 2485, p. 20.) (pp. 9-10.) 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 An employer must normally provide an exclusive representative with all information that is necessary and relevant to its right to represent bargaining unit employees regarding mandatory subjects of bargaining. (State of California (State Water Resources Control Board) (2022) PERB Decision No. 2830-S, pp. 9-10; City and County of San Francisco (2020) PERB Decision No. 2698-M, p. 6.) This is a liberal, discovery-type standard akin to the standard California courts use to determine relevance, and, notably, “necessary” and “relevant” are interchangeable terms that do not have separate meanings. (Sacramento City Unified School District (2018) PERB Decision No. 2597, p. 8.) (p. 9) more or view all topics or full text.	47	68	10/07/22
2833E	Pittsburg Unified School District 1402.03000: GENERAL LEGAL PRINCIPLES; WAIVER; By Contract/Zipper Clauses/Management Rights Clauses Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 1402.02000: GENERAL LEGAL PRINCIPLES; WAIVER; Union's Waiver of Employee or Organizational Rights Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 608.07000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Waiver by Union; Contract Waivers; Bargaining History Estoppel; Disclaimer; Supersession Marysville Joint Unified School District (1983) PERB Decision No. 314 held that an employer may prove a contractual waiver defense based on clear and unambiguous contract language, even where the employer’s practice has not followed such contract language in the past. Here, CBA Article 17, “Summer School,” does not mention adult education and does not constitute a clear and unambiguous waiver as to any Adult Education terms or conditions of employment. CBA Article 6, “Hours of Employment,” mentions adult education in one provision: “The work day for [an] adult education unit member shall be according to the number of classes that are assigned to the unit member.” That language does not clearly and unambiguously waive the right to bargain over a new application requirement. Accordingly, the District did not prove a contractual waiver defense. (p. 14.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 608.05000: EMPLOYER REFUSAL TO BARGAIN IN GOOD FAITH; DEFENSES; Past Practice; Maintenance of Status Quo If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified 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 If a union argues that past practice is not merely evidence as to the meaning of a written agreement or policy, but rather independently establishes the status quo that the employer changed, the past practice must have been “regular and consistent” or “historic and accepted. Precedent does not establish a bright line rule as to what length of time is relevant in evaluating a claimed “regular and consistent” or “historic and accepted” past practice. The answer depends on context, including whether the employment term at issue is one that employees experience on a daily, weekly, monthly, or annual basis. Here, the Association failed to meet its burden to prove the District had a regular and consistent practice of always assigning 19.5 paid hours per week to Adult Education teachers with summer morning core courses. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5; pp. 11-13.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 1000.02156: SCOPE OF REPRESENTATION; Workdays/Workyear A public school employer is required to bargain over employee work hours but not over instructional dates. Thus, any change to the status quo of Adult Education summer teachers’ paid hours was within the scope of representation. (p. 10.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 1000.02064: SCOPE OF REPRESENTATION; Hours of Work A public school employer is required to bargain over employee work hours but not over instructional dates. Thus, any change to the status quo of Adult Education summer teachers’ paid hours was within the scope of representation. (p. 10.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified 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 The Board rejected the District’s argument that its challenged decisions were outside the scope of representation because Adult Education teachers are temporary employees under Education Code section 44929.25, and thus are not entitled to any particular hours of work. Rehiring, reelection, course assignment processes, and work hours for temporary teachers fall within the scope of representation. And even where an employer’s decision involves a managerial decision regarding the nature and extent of a public service, the employer nonetheless must bargain over effects on terms or conditions of employment. The Board overruled Redwoods Community College District (1994) PERB Decision No. 1047, finding that the employer there made no such managerial decision. Rather, it kept public services the same while reallocating which employees did the work and categorically excluding certain employees from working more than 40 hours per week. The employer therefore had a decision bargaining obligation. Moreover, the Board found, Redwoods wrongly implied that an employer’s past practice of making discretionary decisions on terms and conditions of employment, based on financial and other considerations, means that it maintains the status quo when it makes further similar discretionary decisions. That implication misrepresented settled principles of the dynamic status quo doctrine. (pp. 8-9 & fn. 5.) more or view all topics or full text.	47	57	09/13/22
2833E	Pittsburg Unified School District 1000.02162: SCOPE OF REPRESENTATION; Temporary/Short-term Employees Rehiring, reelection, course assignment processes, and work hours for temporary teachers fall within the scope of representation. EERA applies without qualification to any “public school employee,” which the statute defines as “a person employed by a public school employer.” EERA therefore applies to both temporary and permanent employees. (p. 8.) more or view all topics or full text.	47	57	09/13/22
A491E	Alliance Morgan McKinzie High School et al. 1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit When performing a unit appropriateness inquiry for a charter school bargaining unit, we must weigh and balance the statutory criteria to achieve consistency of application and the general objectives of EERA. (Alliance I, supra, PERB Decision No. 2719, p. 24, citing Antioch Unified School District, supra, EERB Decision No. 37, p. 3; Marin Community College District (1978) PERB Decision No. 55.) Among the statutory criteria, we must also take into account the purposes and goals of the Charter School Act (CSA) when deciding cases involving charter schools. (Alliance I, supra, p. 24, citing Orcutt Union Elementary School District (2011) PERB Decision No. 2183, p. 5.) (p. 16.) more or view all topics or full text.	46	141	03/23/22
A491E	Alliance Morgan McKinzie High School et al. 1309.01000: REPRESENTATION ISSUES; UNIT DETERMINATION/CRITERIA (SEE ALSO WHO IS AN EMPLOYEE?, SECTION 200); In General/Definition of Appropriate Unit PERB’s task when considering a petition for representation is to determine whether the petitioned-for unit is appropriate based on the facts present when the petition is filed. (Alliance I, supra, PERB Decision No. 2719, p. 27, fn. 27, citing Children of Promise, supra, PERB Order No. Ad-402, p. 14.) The “petitioning union is not required to seek to represent only the ‘most appropriate unit.’” (Id. at p. 24, citing San Joaquin County Office of Education (2004) PERB Decision No. JR-21, p. 4; Antioch Unified School District (1977) EERB Decision No. 37, p. 3.) When performing this inquiry, we must weigh and balance the statutory criteria to achieve consistency of application and the general objectives of EERA. (Alliance I, supra, PERB Decision No. 2719, p. 24, citing Antioch Unified School District, supra, EERB Decision No. 37, p. 3; Marin Community College District (1978) PERB Decision No. 55.) (pp. 15-16.) more or view all topics or full text.	46	141	03/23/22
A491E	Alliance Morgan McKinzie High School et al. 1307.01000: REPRESENTATION ISSUES; QUESTION CONCERNING REPRESENTATION (QCR); In General/Definition PERB determines unit appropriateness based on the facts present when the petitions were filed. (Alliance I, supra, PERB Decision No. 2719, p. 27, fn. 27, citing Children of Promise, supra, PERB Order No. Ad-402, p. 14.) Because the reorganization the Schools argued governed against finding the unit appropriate was not effective until about eight months after the petitions were filed, the Schools’ argument exceeds the scope of our inquiry. (p. 14.) more or view all topics or full text.	46	141	03/23/22
A491E	Alliance Morgan McKinzie High School et al. 1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues Because PERB has already recently considered the issue of whether an Alliance Network-wide unit is the only appropriate unit configuration, and this is the only argument presented by the Charter Schools as the basis for doubting the appropriateness of the bargaining units at issue, there is no material issue of fact and a hearing is not warranted. (Children of Promise, supra, PERB Order No. Ad-402, p. 17.) (pp. 13-14.) more or view all topics or full text.	46	141	03/23/22
A491E	Alliance Morgan McKinzie High School et al. 1311.02000: REPRESENTATION ISSUES; JUDICIAL REVIEW, REPRESENTATION, DECISIONS; Procedural Issues In reviewing whether a Board agent has conducted a proper representation investigation, the Board generally has looked at whether or not the Board agent abused his or her discretion. (p. 13.) more or view all topics or full text.	46	141	03/23/22
A491E	Alliance Morgan McKinzie High School et al. 1300.01000: REPRESENTATION ISSUES; CERTIFICATION/VOLUNTARY RECOGNITION; In General PERB Regulation 33237, subdivision (a) governs the investigation of representation petitions and provides: “Whenever a petition regarding a representation matter 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.” Thus, there is “no guarantee or entitlement to an evidentiary hearing.” (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.) (p. 13.) more or view all topics or full text.	46	141	03/23/22
A487E	Antelope Valley Community College District 1108.02000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; Burden of Proof It is the respondent’s burden to demonstrate its compliance with PERB’s remedial order. (Hacienda La Puente Unified School District (1998) PERB Decision No. 1280, adopting proposed decision at pp. 8-9; City & County of San Francisco (2021) PERB Decision No. 2757-M, p. 15, fn. 10.) The Board’s finding “that an unfair labor practice was committed is presumptive proof that at least some backpay is owed.” (Bellflower Unified School District, supra, PERB Order No. Ad-475, p. 10, citing Arlington Hotel Co., Inc. (1987) 287 NLRB 851, 855.) “‘[A]ny uncertainty [as to backpay] must be resolved against the wrongdoer whose conduct made certainty impossible.’” (pp. 9-10.) more or view all topics or full text.	46	56	08/27/21
A487E	Antelope Valley Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General Compliance proceedings are not a venue for relitigating the merits of the underlying decision and order. (p. 5.) more or view all topics or full text.	46	56	08/27/21
A487E	Antelope Valley Community College District 1108.01000: UNFAIR PRACTICE PROCEDURES; COMPLIANCE; In General “Compliance proceedings are governed by PERB Regulation 32980, subdivision (a), which provides in relevant part that ‘[t]he General Counsel or his/her designate may conduct an inquiry, informal conference, investigation, or hearing, as appropriate, concerning any compliance matter.’” (Bellflower Unified School District (2019) PERB Order No. Ad-475, p. 8.) (p. 5.) more or view all topics or full text.	46	56	08/27/21
2830S	State of California (State Water Resources Control Board) 1107.04000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Unalleged Violations It was appropriate to consider independent claims that the state employer interfered with representational rights by failing to allow meaningful representation at an investigatory interview for two reasons. First, the complaint adequately alleged both bad faith bargaining and independent interference claims. In the alternative, PERB would still consider those interference claims under the unalleged violation doctrine given that: (1) the state employer had adequate notice and opportunity to defend against these claims based on the union’s opening statement; (2) the acts or omissions at issue were intimately related to the subject matter of the complaint and were part of the same course of conduct; (3) the parties fully litigated the allegations; and (4) the parties had the opportunity to examine and cross-examine witnesses regarding the acts or omissions at issue. (County of San Joaquin (2021) PERB Decision No. 2761-M, p. 22 [judicial appeal pending].) (pp. 13-14.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 1107.03000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Remand for Further Hearing; Remand to General Counsel The ALJ found that the state employer established a statute of limitations defense to the union’s bad faith bargaining claim. The ALJ then dismissed the entire complaint, treating the interference claims as purely derivative. PERB reversed and remanded for consideration of the independent interference allegations. On remand, the Board directed the ALJ to consider witness credibility, among other relevant record components, in determining whether the state employer provided the union and employee with the opportunity for meaningful representation during the employee’s investigative interview. (p. 15.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver When resolving exceptions to a proposed decision, we apply a de novo standard of review. (City of San Ramon (2018) PERB Decision No. 2571-M, p. 5.) (p. 8.) more or view all topics or full text.	47	42	08/10/22
2830S	State of California (State Water Resources Control Board) 1107.01000: CASE PROCESSING PROCEDURES;PROCEDURES BEFORE THE BOARD; Exceptions; Responses to Exceptions; Standing; Extensions of Time/Late Filing/Waiver Absent good cause, the Board itself will not consider issues and arguments not raised in the statement of exceptions. (See PERB Reg. 32300, subd. (e).) (p. 2, fn. 2.) more or view all topics or full text.	47	42	08/10/22